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In Benjamin v. Metropolitan School District of Lawrence Township, No. 00-0891-C-T/K, 2002 WL 977661, (S.D. Ind. Mar. 27, 2002), fellow students called the plaintiff "bitch," "whore," and "slut."
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IP 00-0891-C-T/K
March 27, 2002
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Defendant filed a Motion for Summary Judgment. Plaintiff opposes the Motion. This court now GRANTS Defendant's Motion.
I. Factual and Procedural Background
The court took these facts from the submissions of the parties, accepting all non-disputed facts as true and construing disputed facts and all reasonable inferences therefrom in favor of Plaintiff.
Cameron Benjamin and Justin Hall began dating in the fall of 1998. Both attended Lawrence Central High School. Sometime in August of 1999, the two broke up. During the end of their relationship, Hall had been pressuring Cameron for sex. After their relationship ended, Hall and his friend, Rob Marshall, began calling Cameron a "bitch," "slut," and "whore" when they passed her in the hallway at school. Hall also stated that "Cameron has a dick." Cameron reported one of these incidents to the assistant principal, Richard Patterson. The parties dispute what Patterson did in response to Cameron's complaint. In September 1999, Marshall and Tiffany Sallee also called Cameron names in the school cafeteria. A few days after this incident, Mary Anne Burden, another assistant principal, learned of the dispute and spoke with Marshall, asking him to leave the cafeteria immediately after he ate. On the same day as the cafeteria incident, Hall and Marshall verbally attacked Cameron in the hallway. In October, Kurt Benjamin, Cameron's mother, went to Lawrence Central and complained to Burden that Hall was harassing Cameron. Burden met with Cameron and Hall and told them to avoid contact with each other and stop any harassing activities.
On November 4, 1999, Kurt and her husband, William, met Dean Steven Hedrick at Lawrence Central and complained of the continued harassment of Cameron by Hall and Marshall. At this meeting, the Benjamins expressed their disapproval of the use of Hall as an office helper because he had to deliver a paper to Cameron, which occurred without incident. Hedrick then met with Cameron, Hall, Marshall, and Sallee. Hedrick told the three to leave Cameron alone, avoid contact with her, and not speak to her at all. Four days later, William went to Lawrence North to complain about Marshall. The assistant principal of Lawrence North spoke with Marshall and threatened to remove him from the co-op program if more complaints arose. On November 29, William returned to Lawrence Central to complain to the principal, Caroline Hanna, about the harassment of Cameron by Hall and Marshall. Marshall was then banned from the cafeteria.
Marshall attended Lawrence North, but had a co-op job near Lawrence Central so he alternated between Lawrence North and Lawrence Central for classes in the morning.
On December 6, Kurt contacted the assistant athletic director to complain that Sallee was calling Cameron names. The assistant athletic director met with both Sallee and Cameron and threatened to remove Sallee from the cheerleading squad if she continued to call Cameron names. In mid-December, Hall complained to Burden that Cameron was calling him names. She was removed from class to answer questions about the complaint and denied Hall's accusations. On December 17, Hall called Cameron names at a Lawrence Central basketball game.
On January 3, 2000, a Lawrence police officer was called to Lawrence Central to investigate a complaint that another student hit Cameron's car with her purse. An allegation arose that Cameron had tried to intimidate Sallee with her car, leading to an investigation by school officials. This investigation uncovered another parking lot incident in which Cameron allegedly tried to intimidate two other girls with her car. On January 13, a meeting was held between the Benjamins, Hall and his mother, and Sallee. At this meeting, a possible suspension for Cameron based on the parking lot incidents was discussed, but the decision on whether to suspend Cameron was stayed until school officials could talk to more witnesses. The next day, Cameron withdrew from Lawrence Central and enrolled at North Central, despite two prior offers by the school to transfer her to Lawrence North.
On June 2, 2000, Cameron filed suit against Lawrence Township Metropolitan School District alleging a violation of Title IX. The complaint was amended on June 7 and again on June 19. On March 6, 2001, Defendant filed this Motion for Summary Judgment. Plaintiff opposes the Motion. The court now rules as follows.
II. Summary Judgment Standard
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The motion should be granted only if no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the party opposing the motion bears the burden of proof at trial on an issue, that party can avoid summary judgment only by setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). When ruling on a motion for summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. Speculation, however, is not the source of a reasonable inference. See Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir. 1998) (noting that the court is not required to draw every conceivable inference from the record in favor of the non-movant, but only those inferences that are reasonable).
III. Sexual Harassment
Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). The Supreme Court has interpreted this provision as allowing a private cause of action for damages against a school for student-on-student sexual harassment. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999).
However, this is not to say that all acts of teasing rise to the level of a violation of federal rights. "Rather, a plaintiff must establish sexual harassments of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." Id. at 651. Even if this type of harassment occurs, a school is only liable if it is deliberately indifferent to acts of student — student harassment of which it has actual knowledge. Id. at 642-43. In addition, this deliberate indifference must "cause students to undergo harassment or make them liable or vulnerable to it." Id. at 645 (citations and quotations omitted). Finally, the harassment must take place under the school's control. Id. With these general principles in mind, this court now turns to the Defendant's specific contentions.
A. Based on Sex
Defendant first claims that Plaintiff cannot show that any harassment was based on sex. Title IX prevents discrimination on the basis of sex. Therefore, in order to be actionable, the offensive behavior must be based on sex, rather than personal animus or other reasons. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (11th Cir. 2002). The use of terms that have some sexual connotation does not necessarily show that there is discrimination based on the plaintiff's sex. Rather the plaintiff must show (1) that the conduct is motivated by sexual desire, (2) such sex-specific and derogatory terms as to make it clear that the harasser is motivated by general hostility to one sex, or (3) direct comparative evidence about how the alleged harasser treated members of both sexes. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80-81 (1998) (in Title VII context).
Both Plaintiff and Defendant cite to Title VII cases to describe what constitutes harassment "based on sex." Although the law is not identical for purposes of Title VII and Title IX, this court has found no cases giving a separate standard for what is based on sex in the Title IX context and will therefore use the Title VII cases. Accord Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 469 (8th Cir. 1996), overruled on other grounds by Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).
Defendant relies on two cases that hold that harassing conduct based on a failed romantic relationship is not "based on sex" for the purposes of Title VII and does not constitute sexual harassment. See Succar v. Dade County Sch. Bd., 229 F.3d 1343 (11th Cir. 2000); Galloway v. General Motor Serv. Part Operations, 78 F.3d 1164 (7th Cir. 1996). In this case, the harassment started as a result of Cameron and Justin's break up. Plaintiff has presented no evidence that the slurs were the result of Cameron's gender. The phrases "bitch," "whore," and "slut," although upsetting, do not appear to be based on gender bias, but rather Hall and his friends' personal animosity against Cameron. As the Seventh Circuit noted in Galloway,
The repetition of the term ["sick bitch"] together with the other verbal conduct that is alleged reflected and exacerbated a personal animosity arising out of the failed relationship rather than anything to do with a belief by [the alleged harasser], of which there is no evidence, that women do not belong in the work force or are not entitled to equal treatment with male employees. In these circumstances no inference could be drawn by a reasonable trier of fact that [the harasser's] behavior, undignified and unfriendly as it was, created a working environment in which [the victim] could rationally consider herself at a disadvantage in relation to her male coworkers by virtue of being a woman.
78 F.3d at 1168. There is simply no harassment based on sex for the purposes of Title IX.
Plaintiff claims that the harassment occurred because of Justin's sexual desire for Cameron. She then points to the fact that during their relationship, Justin pressured Cameron to have sex with him. However, this pressure occurred months before the harassment began and Plaintiff has presented no evidence that it occurred in areas of school control. Clearly, the pressure to have sex with Justin is completely different from the later harassment. In any event, the harassment by other individuals besides Justin could hardly said to be based on sexual desire.
Plaintiff also argues that the terms "slut" and "whore" are "explicitly gendered derogatory terms for women" that constitute sexual harassment. In support of this contention, Plaintiff relies on Smith v. Sheehan, 189 F.3d 529, 533 (7th Cir. 1999), in which the statement "I'm going to fuck you up bitch" was evidence of a male co-worker's hostility towards women. However, this statement was made during the course of a physical attack on the plaintiff, which clearly did not occur in this case. The Plaintiff's citation to McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996), is similarly unpersuasive. In McDonnell, the court noted that allegations that a woman was a whore or using her sex to secure job advantage could form the basis of a sexual harassment suit. Id. at 259-60. In this case the terms "bitch," "whore," and "slut" do not appear to reference any sexual habits of Cameron, but are used as pejorative terms for woman. As the court in Galloway noted if there is a failed romantic relationship, "[e]ven if the [alleged harasser] didn't abuse any men, there would not be an automatic inference from his use of the word `bitch' that his abuse of the woman was motivated by her gender rather than by personal dislike unrelated to gender." 78 F.3d at 1168.
Finally, Plaintiff points out that the harassing conduct was directed only at girls and cites to another girl that Hall allegedly called a "bitch," etc. During the course of the semester, both boys and girls called Cameron names and Cameron and her friends, in return, called some of the boys names. Of course, those did not include the gender-specific terms directed against Cameron, but that does not appear to be a result of an animus against woman on the part of Hall's friends. Rather, the terms "bitch," "whore," and "slut" are insults which are more appropriately directed at women and other terms, such as "hobgoblin," are more appropriate for either gender. The use of the gender-specific terms, in the words of Judge Posner, "does not necessarily connote some specific female characteristic . . . [but are] simply . . . pejorative term[s] for `woman.'" Galloway, 78 F.3d at 1168.
B. Conduct Actionable Under Title IX
Defendant also claims that the actions in this case do not rise to the level of actionable sexual harassment under Title IX. "Whether gender-oriented conduct rises to the level of actionable harassment . . . depends on a constellation of surrounding circumstances, expectations, and relationships." Davis, 526 U.S. at 651 (citations and quotations omitted). In Davis, the Supreme Court noted that behavior that is unacceptable in a workplace might not constitute actionable sexual harassment in schools because of the differences between adults and children.
[A]t least early on, student are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.
Id. at 651-52.
In this case, Cameron was subjected to name-calling, but it does not rise to the level of actionable peer-on-peer sexual harassment under Title IX. Cameron was not denied access to any activity or educational benefit. She was not inappropriately touched or subjected to any harassment of a physical nature. Rather, after breaking up with her boyfriend, Cameron was called a "bitch," "whore," and "slut" by Hall and several of his friends. Certainly this would be upsetting to a high-school-age girl, but it hardly is "so severe, pervasive, and objectively offensive that it denies [Cameron] the equal access to education that Title IX is designed to protect."
Cameron claims that Justin threatened her life. (Pl.'s Statement of Material Fact ¶ 133.) However, this statement is based on Cameron's hearsay testimony and is inadmissible. Regardless of its admissibility, it is undisputed that this incident occurred over winter break at a movie theater, which is not an area controlled by the school.
Plaintiff relies on Title VII cases to make her case that the harassing conduct was severe, pervasive, and objectively offensive. However, Title VII cases involve actions in the workplace which the Supreme Court has noted are different from activities at schools. Items that might be actionable under Title VII in the workplace will not necessarily be actionable in schools under Title XI because of the differing nature of the participants. Cameron points to incidents in which Justin and his friends yelled at her during the class change in front of hundreds of people. Certainly these incidents were embarrassing, but that is not the issue before the court. The question is whether this conduct was so severe, pervasive, and objectively offensive as to deny Cameron educational benefits or access to education because of this conduct. It was not.
Plaintiff also attempts to rely on the fact that Cameron's grades dropped and she cried at school as evidence that the harassment was severe. However, the Supreme Court has said that a "mere decline in grades" is not enough to survive a motion to dismiss. Davis, 526 U.S. at 652. Teasing can be upsetting in any situation, but it is unfortunately a fact of life. The teasing by Hall and his friends simply does not rise to the level of the sexual propositions and grabbing in Davis or what is actionable under Title IX.
Defendant also claims that Plaintiff cannot demonstrate deliberate indifference on the part of the school corporation. Although this court is also skeptical on the Plaintiff's ability to show deliberate indifference, it is not necessary to reach this issue given the resolution of A and B above. Because Plaintiff cannot show that the harassment was based on sex or "so severe, pervasive, or objectively offensive" so as to deprive Cameron of access to or the benefits of education, summary judgment must be granted for the Defendant.
IV. Conclusion
For the foregoing reasons, the Defendant's Motion for Summary Judgment is GRANTED.