Opinion
Case No. 3:17-cv-1662-YY
09-22-2020
C.M., by and through her next friend, ELIZABETH MCSHANE, Plaintiff, v. BEAVERTON SCHOOL DISTRICT 48J, by and through the BEAVERTON SCHOOL DISTRICT BOARD, an Oregon public school entity, JEFF ROSE, Superintendent, in his Official and Individual Capacity, JOHN HUELSKAMP, Principal, in his Official and Individual Capacities; SHAWN DAVITT, Vice Principal, in his Official and Individual Capacities, Defendants.
OPINION AND ORDER :
Plaintiff brings this action against Beaverton School District ("BSD"), BSD Superintendent Jeff Rose ("Rose"), Sunset High School Principal John Huelskamp ("Huelskamp"), and Sunset High School Vice Principal Shawn Davitt ("Davitt"). Plaintiff's claims stem from sexual abuse by another high school student, I.F., on a BSD school bus in 2016. Plaintiff brings claims for: (1) common law negligence against all defendants; (2) violation of Title IX against all defendants; (3) violation of her Fourteenth Amendment right to equal protection against the individual defendants; and (4) failure to train and supervise, resulting in a violation of her equal protection rights, against BSD.
Plaintiff originally brought a fifth claim for assault and battery against I.F., but he has since been dismissed from the case. See Pl.'s Resp. Order Show Cause, ECF #14.
This court has jurisdiction over plaintiff's claims pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. Defendants have filed a Motion for Summary Judgment. ECF #55. The motion is GRANTED IN PART and DENIED IN PART as explained below.
All parties have consented to allow a magistrate judge to enter final orders and judgment in this case in accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). ECF #18.
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (citing FED. R. CIV. P. 56(e)).
The court "does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). "Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party." Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
II. Background
Plaintiff and I.F. both attended Sunset High School ("Sunset") as special education students during the 2016-2017 school year. See Declaration Jessica McKiernan ("McKiernan Decl.") ¶¶ 6, 7, ECF #57. Sunset is one of six comprehensive high schools in BSD. Declaration Shawn Davitt ("Davitt Decl.") ¶ 3, ECF #56.
As special education students, plaintiff and I.F. were taught through Sunset's Academic Learning Center, a program that provides learning supports for students as determined by each student's Individualized Education Program ("IEP") team. McKiernan Decl. ¶ 2, ECF #57. Plaintiff and I.F. also rode on the same school bus for special education students.
In September 2016, plaintiff disclosed to her mother that "there was a boy on the bus giving her a foot massage." Richman Decl., Ex. 1, at 6, ECF #59-1. Plaintiff's mother told plaintiff that "foot massages were inappropriate on the bus." Id. They did not discuss it further or tell the school. Id.
On Saturday, November 19, 2016, plaintiff disclosed to her mother that I.F. "likes to touch my bum," including between her legs, and made her watch a video called "Strip High Five," which included a naked man. Richman Decl., Ex. 1, at 5, ECF #59-1. That day, plaintiff emailed Jessica McKiernan ("McKiernan"), who was plaintiff's teacher and the special education student case manager, and told her that I.F. had been "inappropriate" with her on the bus ride home for two months and made her and other students watch "inappropriate shows." Id., Ex. 3, at 16; id., Ex. 2, at 2.
On Monday, November 21, 2016, plaintiff met with McKiernan who accompanied her to a meeting with Davitt. Richman Decl., Ex. 3, at 10-11, ECF #59-3. At the meeting, plaintiff disclosed to Davitt that during the previous two months, I.F. had "slapped her bottom multiple times as she got off the bus," "put her foot in his mouth," and showed her a video entitled "Strip High Five." Davitt Decl. ¶ 4, ECF #56; Richman Decl., Ex. 7, at 22, ECF #59-7. Davitt thereafter questioned I.F., who confirmed that all of what plaintiff had reported was true. Davitt Decl. ¶ 4, ECF #56. Id. Davitt suspended I.F. for two days and assigned him the first seat on the bus behind the driver. Id. According to plaintiff, after I.F. was moved to a different seat, he did not touch her and was not "inappropriate" on the bus again. Richman Decl., Ex. 3, at 12, 13, ECF #59-3.
Later, on December 1, 2016, plaintiff told her parents that I.F. had also "unzipped his pants and pulled out his penis and made her hold it." Richman Decl., Ex. 1, at 13, ECF #59-1. The following day, plaintiff's parents reported the information to Huelskamp. Id. At Huelskamp's request, Davitt questioned I.F., who "admitted to exposing himself to [plaintiff] on two occasions and placing her hand on his penis on one of those occasions." Davitt Decl. ¶ 5, ECF #56. I.F. also admitted that he had touched [plaintiff's] breasts on approximately five occasions." Id.
Davitt suspended I.F. for five days and permanently removed him from plaintiff's bus. Davitt Decl. ¶ 5, ECF #56. Davitt also implemented other measures that are discussed in more detail below.
III. First Claim: Negligence
In her first claim, plaintiff asserts a claim of negligence against all defendants, alleging that (1) BSD, as an educator, was in a special relationship with plaintiff, a student, and (2) BSD breached its duty of care and its own policies. Compl. ¶¶ 16-19, ECF #1.
Plaintiff concedes that the individual defendants are personally immune from negligence under the Oregon Tort Claims Act. Resp. 10, 28, ECF #61; see O.R.S. 30.265. Accordingly, the negligence claim against the individual defendants is dismissed.
A. Negligence—General Principles
In Fazzolari By and Through Fazzolari v. Portland School Dist. No. 1J, the Oregon Supreme Court reformulated the elements for an ordinary negligence claim as follows:
[U]nless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.303 Or. 1, 17 (1987).
"But the fact that a party has invoked a special relationship does not mean that foreseeability is irrelevant." Sloan on behalf of Estate of Sloan v. Providence Health Sys.-Oregon, 364 Or. 635, 644 (2019).
Even when a special relationship is the basis for the duty of care owed by one person to another, . . . if the special relationship (or status or standard of conduct) does not prescribe a particular scope of duty, then "common law principles of reasonable care and foreseeability of harm are relevant."Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or. 329, 342 (2004) (quoting Cain v. Rijken, 300 Or. 706, 717 (1986)). Otherwise stated, "when a plaintiff alleges a special relationship as the basis for the defendant's duty, the scope of that duty may be defined or limited by common-law principles such as foreseeability." Id.; see, e.g., Piazza v. Kellim, 360 Or. 58, 73 (2016) ("[A]lthough each defendant is alleged to have had a special relationship with Delgado and a corresponding duty to take reasonable precautions to protect her against criminal conduct by third parties, those duties extended to only reasonably foreseeable criminal conduct.").
Thus, the "threshold inquiry is whether plaintiff has invoked a particular status or relationship that affects [the] analysis." Piazza, 360 Or. at 71-72. The court then examines the scope of that duty and the extent to which common law principles of foreseeability should apply.
A. Special Relationship
"When interpreting state law, [courts] are bound by decisions of the state's highest court. S.D. Myers, Inc. v. City & Cty. of San Francisco, 253 F.3d 461, 473 (9th Cir. 2001). The Oregon Supreme Court has not decided whether a public school has a special relationship with its students. "If there is no such decision available, then [this court] 'must predict how the highest state court would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance.'" Id. (quoting Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 865 (9th Cir. 1996)).
Under Oregon law, "[w]hether a relationship is special is driven by the facts." Shin v. Sunriver Preparatory Sch., Inc., 199 Or. App. 352, 366 (2005). "[T]he cases establish a functional as opposed to a formal analysis in determining whether the special relationship exists; in other words, the crucial aspect of the relationship is not its name, but the roles that the parties assume in the particular interaction where the alleged tort . . . occur[s]." Strader v. Grange Mutual Ins. Co., 179 Or. App. 329, 334 (2002).
A "special relationship" is defined by four traits:
(1) One party relinquishes control over matters, usually financial, and entrusts them to the other party, . . . (2) The party with control is authorized to exercise independent judgment; (3) in order to further the other party's interests; and (4) The relationship either is, or resembles, other relationships "in which the law imposes a duty on parties to conduct themselves reasonably, so as to protect the other parties to the relationship[.]"Bell v. Pub. Employees Ret. Bd., 239 Or. App. 239, 249-50 (2010) (citing Conway v. Pac. Univ., 324 Or. 240, 240-41 (1996), and Onita Pacific Corp. v. Trustees of Bronson, 315 Or. 149, 160 (1992)). "In such relationships, the party in control has a heightened duty to the other party, and the other party has a right to rely on the controlling party's non-negligent performance of that duty." Id. at 250.
"The common thread among special relationships—that is, those warranting a heightened duty of care—is that 'the party who owes the duty has a special responsibility toward the other party.'" Shin, 199 Or. App. at 367 (quoting Curtis v. MRI Imaging Services II, 148 Or. App. 607, 619 (1997)).
This is so because the party who is owed the duty effectively has authorized the party who owes the duty to exercise independent judgment in the former party's behalf and in the former party's interests. In doing so, the party who is owed the duty is placed in a position of reliance upon the party who owes the duty; that is, because the former has given responsibility and control over the situation at issue to the latter, the former has a right to rely upon the latter to achieve a desired outcome or resolution.Conway, 324 Or. at 240. In line with these criteria, Oregon courts have found "[t]his special responsibility exists in situations in which one party has hired the other in a professional capacity [(e.g., lawyer, physician, engineer, architect)], as well as in principal-agent and other similar relationships [(e.g., fiduciary, trustee)]." Mullen v. Meredith Corp., 271 Or. App. 698, 711 (2015) (citing Conway, 324 Or. at 240-41) (alteration in original).
In this district, decisions are split on whether a special relationship exists between a public school and its students. In Achcar-Winkels v. Lake Oswego Sch. Dist., No. 3:15-cv-00385-YY, 2017 WL 2291338, at *4 (D. Or. May 2, 2017), the court held there is a special relationship, and in T.L. ex rel. Lowry v. Sherwood Charter Sch., 68 F. Supp. 3d 1295, 1322 (D. Or. 2014), aff'd sub nom. Lowry v. Sherwood Charter Sch., 691 F. App'x 310 (9th Cir. 2017), and Doe ex rel. Farley, Piazza & Assocs. v. Gladstone Sch. Dist., No. 03:10-cv-01172-JE, 2012 WL 2049173, at *13 (D. Or. June 6, 2012), the court held there is not.
The Ninth Circuit affirmed the decision in Lowry, holding that "the district court properly granted summary judgment . . . because Plaintiffs failed to show that they were in a special relationship with Defendants." 691 F. App'x at 310. The Ninth Circuit cited Shin for its holding that a "'surrogate parent relationship in the context of a boarding school' gave rise to a special relationship by noting that it was 'not at all like a typical high school.'" Id. (citing Shin, 199 Or. App. at 367). The court also cited Farley for the proposition that Oregon courts have never held that a special relationship exists between a public school and its students. Id. (citing Farley, 2012 WL 2049173, at *13). However, the Ninth Circuit's unpublished decision in Lowry is not binding precedent. See Ninth Circuit Rule Appellate Procedure 36-3 ("Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.").
Moreover, as the Achcar-Winkels decision recognizes, there has been a "shift from the Restatement (Second) to the Restatement (Third) [of Torts,]" which "importantly, . . . postdates [the] opinion in" Farley. 2017 WL 2291338, at *3. "Oregon courts frequently look to the Restatements of Torts to provide guidance on questions of law not well developed in [its] jurisprudence." Generaux v. Dobyns, 205 Or. App. 183, 191 n.7 (2006).
Although, as the Supreme Court has stated, the Restatements are not necessarily authoritative, they provide useful guidance regarding the duty imposed as the result of a special relationship or status, Park v. Hoffard, 315 Or. 624, 629 n. 3, 847 P.2d 852 (1993), and both this court and the Supreme Court have consistently turned to them for that purpose, see, e.g., Buchler v. Oregon Corrections Div., 316 Or. 499, 506, 853 P.2d 798 (1993) (adopting Restatement (Second) of Tort section 319 (1965) as Oregon's common-law rule governing custodian's duty regarding a prisoner); Park, 315 Or. at 632, 847 P.2d 852 (relying on Restatement (Second) of Torts section 379A (1965) to define responsibility of landlord for physical harm to persons off the rental property caused by a tenant's dog); McPherson, 210 Or.App. at 610-12, 152 P.3d 918 (citing cases relying on various Restatements as reflecting the scope of the defendants' duty as landlords to protect tenants from criminal act of third person); Dikeman v. Carla Properties, Ltd., 127 Or.App. 53, 60, 871 P.2d 474 (1994) ("Although wholesale reliance on the Restatement is no longer the practice in Oregon, it still may provide guidance.").Stewart v. Kids Inc. of Dallas, OR, 245 Or. App. 267, 278 (2011).
In the Second Restatement of Torts, there was "no provision that specifically identified the school-student relationship as special." RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 40 cmt. l (2012). The Third Restatement, however, expanded the list of recognized special relationships to include the school-student relationship. Id. § 40(b) ("Special relationships giving rise to the duty provided in Subsection (a) include: . . . (5) a schools with its students.").
The Third Restatement notes that "[d]espite the Second Restatement's limited treatment of affirmative duties of schools, such a duty has enjoyed substantial acceptance among courts since the Second Restatement's publication" and "courts generally impose an affirmative duty on schools." Id. § 40 cmt. l (collecting cases). "The core of the duty derives from the temporary custody that a school has of its students, the school's control over the school premises, and the school's functioning in place of parents." Id. § 40 reporter's note to cmt. l.
Additionally, the Oregon Supreme Court has "recognized a special 'duty of supervision' imposed upon schools as far back as 1987." Achcar-Winkels, 2017 WL 2291338, at *3 (citing Fazzolari, 303 Or. at 19 (recognizing "a special duty arising from the relationship between educators and children entrusted to their care apart from any general responsibility not unreasonably to expose people to a foreseeable risk of harm")). In Fazzolari, for example, the Oregon Supreme Court "noted" that "'[t]he vast majority of students are minors, and school personnel assume a great deal of authority over their conduct during the school day.'" Id. (quoting Fazzolari, 303 Or. at 19-20)). "This degree of control is a touchstone of special relationships in Oregon." Id.; see also Piazza, 360 Or. at 72 (recognizing "schools have a special duty to students 'apart from any general responsibility not unreasonably to expose people to a foreseeable risk of harm,' and the 'scope of th[at] obligation does not exclude precautions against risks of crime or torts merely because a third person inflicts the injury'") (quoting Fazzolari, 303 Or. at 19, 20) (alteration in original).
In sum, upon examining decisions of the Oregon Supreme Court and other jurisdictions, and using the Third Restatement of Torts as guidance, the best prediction is the Oregon Supreme Court would find a public high school and its students have a special relationship. See S.D. Myers, 253 F.3d at 473. The relationship meets the four traits of a special relationship under Oregon law. See Bell, 239 Or. App. at 249-50. Parents relinquish control over their children to the school, and the school is authorized to exercise independent judgment in order to further the children's interests. The relationship also resembles other relationships "in which the law imposes a duty on parties to conduct themselves reasonably, so as to protect the other parties to the relationship," such as the relationship between a boarding school and its students, Shin, 199 Or. App. at 367, and a land occupier to entrants on the land. See RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 40 cmt. l (2012) (recognizing the "relationship between a school and its students parallels aspects of several other special relationships," including "a land possessor who opens the premises to a significant public population").
B. Foreseeability
The Third Restatement identifies the special relationship between a school and student as "one imposing an affirmative duty of reasonable care." RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 40, reporter's note to cmt. l (2012) (citing DAN B. DOBBS ET AL., THE LAW OF TORTS § 415, at 708-09 (2d ed. 2011)). There is nothing in the definition of that duty that precludes foreseeability from being a limit on the scope of liability." Sloan, 364 Or. at 645. Thus, this court must analyze the issue of foreseeability.
"[N]egligence claims arising from third-party criminal acts often involve the defendant's failure to monitor or screen a dangerous third person or the placement of another person at unreasonable risk of criminal harm at a location and in circumstances that are unsafe." Piazza, 360 Or. at 81. "In either situation, there is a common requirement: a trier of fact must be able to find from concrete facts that a reasonable person in the position of the defendant reasonably would have foreseen that the person or location and circumstances posed a risk of criminal harm to persons such as the plaintiff." Id. (citing Towe, 357 Or. at 86; Oregon Steel Mills, 336 Or. at 340; Fazzolari, 303 Or. at 17). "Facts pertaining to the similarity, frequency, and recency of prior criminal acts, committed under the same or similar circumstances, or at or near the same location, and involving the same or similar types of victims, as well as the place and character of the location of the current criminal act, are all relevant to the determination." Id.
"The community's judgment, usually given voice by a jury, determines whether the defendant's conduct met that threshold in the factual circumstances of any particular case." Chapman v. Mayfield, 358 Or. 196, 206 (2015). "The court intervenes only when it can say that the actor's conduct clearly meets the standard or clearly falls below it." Fazzolari, 303 Or. at 18 (quoting Stewart v. Jefferson Plywood Co., 255 Or. 603, 607 (1970)).
Here, plaintiff offers the testimony of April Flynn, a former speech pathologist intern at I.F.'s middle school, who attests that during the 2015-2016 school year, I.F. made inappropriate comments, including statements of a sexual nature, to her "multiple times on multiple occasions." Flynn Decl. ¶ 3, ECF #64. I.F. also had a "fixation on feet," and asked her to take her shoes off so he could rub her feet. Id. This made Flynn "uncomfortable enough that [she] quit wearing sandals to work" and reported the incident "[d]ue to the nature of the comments." Id. Flynn reported I.F.'s sexualized comments and boundary issues to her supervisor, and also raised concerns about I.F.'s boundary issues, including touching, space, and hugging, at I.F.'s IEP team meeting in January 2016. Id. ¶ 4.
Defendants object that Flynn's declaration contains hearsay. However, the declaration is not offered to prove the truth of the statements contained therein, e.g., that I.F. wanted to massage Flynn's feet. Rather, they are offered to prove other matters, such as what information the parties and witnesses had and why they acted as they did. As such, they do not constitute hearsay. United States v. Lopez, 913 F.3d 807, 826 (9th Cir. 2019) (observing "an out-of-court statement is not hearsay if offered for any purpose other than the truth of whatever the statement asserts") (emphasis in original).
Thus, just several months before abusing plaintiff, I.F. had documented boundary issues involving touching, and had subjected another female at his school to inappropriate sexualized behavior, including sexual comments on "multiple occasions," a request to touch her, and a foot fetish that was a component of his sexual abuse of plaintiff. See Piazza, 360 Or. at 81 (holding the court considers the similarity, location, type of victim, and character of the criminal act in determining whether a defendant placed a third-party offender in circumstances that were unsafe).
The risk here is further heightened by the fact that, as evidenced by plaintiff's IEP, she was a student who "may be taken advantage of by others who may not have the best intentions" and was "reluctant to raise her hand when she needs help." Brague Decl., Ex. 2, at 5, 6, ECF #62-2. In fact, the IEP team was concerned that plaintiff was "observed going along with a suggestion of peers (i.e., play this game, go for a walk, do this versus that, etc.)," which was "a decision that may be more influenced by passivity [and] the other person(s) aggressive approach." Id. at 6. When all of this evidence is viewed in the light most favorable to plaintiff, a jury could find that I.F.'s abuse of plaintiff on the bus was reasonably foreseeable.
C. Discretionary Immunity
BSD asserts it is entitled to discretionary immunity under O.R.S. 30.265(6)(c). Mot. Summ. J. 37, ECF #55; Reply 26-28, ECF #71. "The Oregon Tort Claims Act provides that a public body is generally subject to suit for its torts and those of its officers, employees, and agents acting within the scope of their employment." John v. City of Gresham, 214 Or. App. 305, 311 (2007) (citing O.R.S. 30.265(1)). "The act, however, provides for immunity from liability for '[a]ny claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.'" Id. (citing former O.R.S. 30.265(3)(c)). "Discretionary immunity . . . is an affirmative defense, . . . and it is the governmental defendant's burden to establish it." Id. "Summary judgment based on discretionary immunity is appropriate only if the defendant establishes all of the elements of the defense as a matter of law." Id. at 312.
"[A] governmental actor is entitled to discretionary immunity for allegedly negligent conduct only if three elements are met." Robbins v. City of Medford, 284 Or. App. 592, 597 (20017). "First, the conduct must be the product of a decision." Id. (citation omitted, alteration in original). "Second, that decision must be a policy decision. . . . A policy decision is one that involves the 'assessments of policy factors, such as the social, political, financial, or economic effects of implementing a particular plan or of taking no action.'" Id. (alteration in original) (quoting Turner v. State of Oregon, 359 Or. 644, 652-53 (2016) ("Discretionary policy decisions are those that involve a balancing of competing policy considerations in determining the public interest.")). "Routine discretionary decisions made by governmental employees in the course of their day-to-day responsibilities are not policy decisions." Id. "Third, the decision must have been made by a governmental decision-maker with the authority to make that type of policy decision." Id.
The court cannot conclude from this record that BSD made a policy decision to place plaintiff on the same bus with I.F., in spite of his documented sexualized behavior. Otherwise stated, the record on summary judgment contains no evidence that an authorized decision-maker considered I.F.'s prior sexualized behavior, balanced the social, financial, or economic effects of placing him on the bus with other special education students, examined the alternatives, and "implemented a particular plan or took no action." Robbins, 284 Or. App. at 597. The record also contains no evidence that BSD made an even more general choice to forego additional supervision on its school buses that carried students with a history of inappropriate sexualized behavior and boundary and touching issues. Again, "decisions entitled to immunity are those that involve the exercise of discretion in developing or implementing policy objectives through the assessment of costs and benefits, the evaluation of effectiveness of risks, and the choice among competing goals and priorities." Timberlake ex rel. Estate of Lyon v. Washingtpon Cty., 228 Or. App. 607, 613 (2009). To be entitled to discretionary immunity, a defendant's decision "must be the result of a choice, that is, the exercise of judgment." Murrell v. Union Pac. R. Co., 544 F. Supp. 2d 1138, 1157 (D. Or. 2008); see also Vokoun v. City of Lake Oswego, 335 Or. 19, 31 (2002) ("The doctrine of discretionary immunity does not immunize a decision not to exercise care at all, if action of some kind is required."). The record here contains no evidence of such a choice.
And even if decision-makers had made such a choice, it is not clear that BSD would be immune. While "[a] public body that owes a particular duty of care . . . has wide policy discretion in choosing the means by which to carry out that duty[,] . . . [t]he range of permissible choices does not . . . include the choice of not exercising care." Mosley v. Portland School Dist. No. 1J, 315 Or. 85, 92 (1992) (citations omitted). Discretionary immunity does not apply where a defendant had "specific knowledge," yet failed to act on it to protect the plaintiff in a timely manner. Id.
Finally, plaintiff's negligence claim includes a theory that BSD was negligent for placing her and I.F. on the bus without supervision in violation of its policies. Resp. 38, ECF #61. The Oregon Supreme Court has specifically distinguished between "decisions involving the making of policy"—where the immunity applies—and "the choice to follow or not to follow a predetermined policy in the face of a particular set of facts involving the safety of a particular individual"—where it does not. Mosely, 315 Or. at 89, 92; see W.S. v. Mollala River Sch. Dist., No. 3:17-CV-01732-SB, 2019 WL 7630946, at *7 (D. Or. Sept. 30, 2019), report and recommendation adopted, 2019 WL 7633162 (D. Or. Nov. 15, 2019) (denying summary judgment on discretionary immunity plaintiffs were "not challenging school policies, which required personnel closely to monitor the special education students and not to allow students to wander the school unsupervised during the lunch hour, but rather the individual school employees' failure to execute those policies") (citing Westfall v. Or. Dept. of Corr., 355 Or. 144, 160 (2014) ("[W]hen the employee, for whatever reason, wrongly fails to apply an otherwise immune policy to a particular case . . . the actions of the employee generally would not be protected by discretionary immunity").
For all of these reasons, summary judgment on the issue of discretionary immunity is denied.
IV. Second Claim: Title IX
Title IX creates a private right of action against educational "institutions and programs that receive federal funds," but not "school officials, teachers, and other individuals." Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009) (citing 20 U.S.C. § 1681(a) and Hartley v. Parnell, 193 F.3d 1263, 1270 (11th Cir. 1999)). Whereas BSD indisputably receives federal funding, plaintiff concedes that individual defendants Rose, Huelskamp, and Davitt are not recipients of federal funds and thus cannot be liable under Title IX. Resp. 10, ECF #61. Therefore, the Title IX claim is dismissed as to the individual defendants.
A plaintiff asserting a Title IX claim based on sexual harassment by a peer must establish five elements. Karasek v. Regents of Univ. of California, 956 F.3d 1093, 1105 (9th Cir. 2020). "First, the school must have 'exercised substantial control over both the harasser and the context in which the known harassment occurred.'" Id. (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 645 (1999)) (alterations omitted). "Second, the plaintiff must have suffered harassment 'that is so severe, pervasive, and objectively offensive that it can be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school.'" Id. (quoting Davis, 526 U.S. at 650) (alterations omitted). "Third, a school official with 'authority to address the alleged discrimination and to institute corrective measures on the school's behalf' must have had 'actual knowledge' of the harassment." Id. (quoting Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 739 (9th Cir. 2000) (alterations and citation omitted). "Fourth, the school must have acted with 'deliberate indifference' to the harassment, such that the school's 'response to the harassment or lack thereof was clearly unreasonable in light of the known circumstances.'" Id. (quoting Davis, 526 U.S. at 648) (alterations omitted). "And fifth, the school's deliberate indifference must have 'subjected the plaintiff to harassment.'" Id. (quoting Davis, 526 U.S. at 644) (alterations omitted).
Here, BSD argues there was no actual knowledge or deliberate indifference.
A. Actual Knowledge
"Title IX does not require direct or actual knowledge of the sexual relationship. Instead, courts within the Ninth Circuit have found that the actual notice requirement is met 'when an appropriate school official has actual knowledge of a substantial risk of abuse to students based on prior complaints.'" Torres v. Sugar-Salem Sch. Dist. # 322, No. 4:17-CV-00178-DCN, 2019 WL 4784598, at *15-16 (D. Idaho Sept. 30, 2019) (emphasis in original) (quoting Doe A. v. Green, 298 F. Supp. 2d 1025, 1032 (D. Nev. 2004)). "In other words, the test is whether the appropriate official possessed enough knowledge of the harassment that he or she reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiff's legal claim is based." Torres, 2019 WL 4784598, at *16 (quoting S.T. v. Yakima School Dist. No. 7, No. 11-CV-3085-TOR, 2013 WL 807197, at *7 (E.D. Wash. March 5, 2013) (internal quotation marks omitted)).
The prior sexual harassment does not have to be "plaintiff specific." Roe ex rel. Callahan v. Gustine Unified Sch. Dist., 678 F. Supp. 2d 1008, 1030 (E.D. Cal. 2009). "Although the Ninth Circuit has not specifically weighed in on the issue, . . . decisions from the Fifth, Seventh, Tenth, and Eleventh Circuits, as well as District Courts in Nevada and California, demonstrate that Title IX's third element is satisfied once an appropriate official has actual knowledge of a substantial risk of abuse of students, whether or not directed at Plaintiff specifically." Id.; see also Delgado v. Stegall, 367 F.3d 668, 672 (7th Cir. 2004) (recognizing that "in Davis the Court required knowledge only of 'acts of sexual harassment' by the [harasser], . . . not of previous acts directed against the particular plaintiff"), overruled on other grounds, Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009).
"Whether an official had actual notice is generally a question of fact." Torres, 2019 WL 4784598, at *16 (citing Doe ex rel. Doe v. Dallas Independent School Dist., 220 F.3d 380, 384 (5th Cir. 2000)). "However, the Court may make this determination as a matter of law if there is no genuine issue of material fact as to actual notice." Id. (citing Dallas, 220 F.3d at 385).
For reasons similar to those discussed in the analysis regarding foreseeability, see, supra, Sect. III.B, a reasonable jury could find that BSD had actual knowledge of a substantial risk that I.F. would harass other students. See Flynn Decl. ¶¶ 3, 4, ECF #64. That is, "[v]iewing the facts in a light most favorable to Plaintiff, a reasonable finder of fact could conclude that the [prior] episode was sexually-motivated and that [BSD] 'possessed enough knowledge of the harassment that [it] reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiff's legal claim is based.'" Callahan, 678 F. Supp. 2d at 1032. BSD also knew that special education students like plaintiff were more vulnerable to such abuse. When this evidence is viewed in the light most favorable to plaintiff, a jury could find that BSD possessed actual knowledge of a substantial risk of abuse of students.
BSD argues the fact that some educators knew I.F. had a foot "fixation" "is not evidence that BSD had actual knowledge of the harassment giving rise to this lawsuit—because this lawsuit is not about I.F.'s giving [plaintiff] a foot massage." Reply 7, ECF #71. However, I.F.'s actions toward Flynn did not pertain merely to a foot massage, but also involved inappropriate sexual comments and boundary issues, including touching. Flynn Decl. ¶ 3, ECF #68. "[C]ourts have endorsed this theory of notice under Title IX: that 'actual knowledge of discrimination' can take the form of knowledge about the alleged harasser's conduct toward others which indicates some degree of risk that the harasser would subject the plaintiff to similar treatment." Brodeur v. Claremont Sch. Dist., 626 F. Supp. 2d 195, 208 (D.N.H. 2009) (collecting cases). Here, I.F.'s sexualized behavior toward Flynn included the same sexualized fetishistic behavior to which plaintiff was ultimately subjected.
Plaintiff also alleges a Title IX violation for actions that BSD took after plaintiff disclosed I.F.'s conduct, including allowing I.F. to be in the same classroom with plaintiff and allowing I.F. to follow plaintiff in the hallways and glare at her. BSD had actual knowledge of those events—it was BSD that placed plaintiff in the same classroom with I.F., and BSD was advised by plaintiff's parents in May 2017 that I.F. was glaring at her and following her. Thus, actual knowledge is not at issue for this aspect of plaintiff's Title IX claim.
B. Deliberate Indifference
To be liable, a school must have acted with "deliberate indifference" to the harassment, such that the school's "response to the harassment or lack thereof [was] clearly unreasonable in light of the known circumstances." Karasek, 956 F.3d at 1105 (quoting Davis, 526 U.S. at 648). "This is a fairly high standard—a 'negligent, lazy, or careless' response will not suffice." Id. (quoting Oden v. N. Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 2006)). The plaintiff must prove that the school's actions amounted to "an official decision not to remedy the discrimination." Id. (quoting Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 290 (1998)) (alteration in original).
"[T]he recipient must merely respond . . . in a manner that is not clearly unreasonable." Davis, 526 U.S. at 649. "Absent an unreasonable response, [the court] cannot 'second-guess[ ] the disciplinary decisions made by school administrators.'" Karasek, 956 F.3d at 1105 (quoting Davis, 526 U.S. at 648). "And the reasonableness of the response depends on the educational setting involved—what would be unreasonable in the context of an elementary school might not be unreasonable in the context of a university." Id. (citing Davis, 526 U.S. at 649).
Like the issue of actual knowledge, assessing deliberate indifference requires examining BSD's actions before and after plaintiff reported I.F.'s abuse on the bus. As to BSD's actions before plaintiff reported the abuse, a reasonable jury could find that BSD acted with deliberate indifference when it had actual knowledge about a substantial risk of abuse but did nothing to prevent it. However, as to BSD's actions after plaintiff reported the abuse, plaintiff has failed to meet the "fairly high standard" that BSD acted with deliberate indifference.
Plaintiff contends that BSD acted with deliberate indifference by permitting I.F. to continue riding the bus after she made her initial report in November 2016. Resp. 17, ECF #61. Upon receiving plaintiff's initial report, BSD suspended I.F. for two days and placed him at the front of the bus. This was not deliberate indifference—BSD did not make an official decision not to remedy the situation. While others "might have handled the situation differently, . . . the Supreme Court has instructed [the court] to 'refrain from second guessing the disciplinary decisions made by school administrators' unless those decisions were 'clearly unreasonable.'" Karasek, 956 F.3d at 1109 (quoting Davis, 526 U.S. at 648).
Plaintiff also contends that BSD acted with deliberate indifference upon receiving plaintiff's more detailed report on December 2, 2016. Specifically, plaintiff complains that (1) BSD allowed I.F. to remain in her classroom, and (2) implemented passing plans that allowed I.F. to "continually appear[] behind [plaintiff] in the halls throughout the remainder of the school year" and harass her, including approaching her on at least one occasion to complain that his TV had been taken away because of her. Resp. 7, ECF #61; Elizabeth McShane Decl. ¶¶ 10, 11, ECF #63. Ultimately, plaintiff contends that BSD should have removed I.F. from Sunset upon learning the full extent of the abuse. Resp. 7, ECF #61.
I.F. did not attend Sunset the following school year.
However, even when the evidence is examined in the light most favorable to plaintiff, it fails to show an "official decision not to remedy" the discrimination. Rather, it shows:
1) Davitt immediately and effectively questioned I.F., who disclosed not only the abuse that plaintiff alleged but also additional acts. Davitt Decl. ¶ 5, ECF #56.
2) Davitt immediately removed I.F. from the bus and suspended him from school for five days. Id.
3) Davitt immediately implemented a "safety plan," which included, among other things, "line-of-sight" supervision of I.F. and having staff monitor him during the lunch period. Id.; see also Richman Decl., Ex. 7, at 10, ECF #59-7 ("And we also had somebody hang out in the lower commons during lunchtime to keep an eye and make sure he didn't sit next to her in any way.").
4) Davitt developed a plan so that I.F. and plaintiff would not to be in the same classroom during eighth period, the one class they shared in McKiernan's Academic Learning Center. Davitt Decl. ¶¶ 5, ECF #56. This class was "a special education study hall, where students received specially designed instruction, including academic support of their school work from their other classes." McKiernan Decl. ¶ 10, ECF #57. Davitt explained that "once that report happened then we had made sure that those two aren't going to be in the same classroom," i.e., "we pulled him out to do any instruction type stuff or support that he needed during that time." Richman Decl., Ex. 7, at 10, ECF #59-7.
5) Davitt immediately initiated the Beaverton School District sexual incident response protocol ("SIRP"), which involved several meetings with an officer from the Beaverton Police Department and McKiernan, during which they discussed the bus incidents and interventions that would be taken at Sunset in response to what happened. Davitt Decl., ¶ 6, ECF #56. A draft SIRP report was prepared, and Sunset promptly began implementing responses described in this draft report, id., including an immediate referral to the Washington County District Attorney on December 2, 2016. Richman Decl. Ex. 7, at 32, ECF #59-7. However, there were "concerns regarding [I.F.'s] culpability." Id. It was "collectively determined that IF's behavior was significantly influenced by his own disability creating a significant limited ability to understand his own behavior and how it may impact others." Id. at 9. Therefore, I.F. was not prosecuted.
6) McKiernan also did the following to "provide a safe environment for" plaintiff:
I instructed my staff to keep any verbal contact from happening between the students while they were in the classroom, and they weren't to have any physical contact. In addition to that, I spoke to my vice principal and spoke to my administrators regularly. So I knew they knew what was going on.
I don't know the exact time line. I made contact with the parents via e-mail and phone call. I had talked to [plaintiff]. I created a transition in building plan for the students to eliminate or minimize any proximity with one another
during their school day. I created the plan and gave a list of their classes and which path would be best for them to take to the school building to eliminate any proximity crossing of the two individuals.Richman Decl., Ex. 2, at 9, ECF #59-2 (emphasis added).
I looked at their schedules, and the one period that they shared was eighth period, study hall. In addition to the transitional plan for [plaintiff] to follow during her school day, I also incorporated the practice of her having the option to come to eighth period and do her schoolwork, or if she wanted to, she had the option to go work in another location, and she could take a friend with her. That was also utilized as a study hall by a lot of students. She was given that option.
If she chose to stay in the classroom, I.F. was not to come into the classroom, and he would work in a small group in another location. In the morning time, prior to there being a modification to the transition plan in building, [plaintiff] was also given the option to come into the classroom prior to school starting, and she could bring a friend in. A lot of my students hang out outside my classroom, and that would have been an area where I.F. potentially could be socializing with his friends.
7) Following a May 2, 2017 email from plaintiff's parents—in which they expressed concerns that I.F. was "staring at [plaintiff], making eye contact, interacting with her, and following her during transitions"—McKiernan e-mailed Davitt and Huelskamp within in an hour and asked for "support." Richman Decl., Ex. 4, at 83, ECF # 59-4. Davitt responded to McKiernan's request immediately. Id. McKiernan also spoke with plaintiff about a plan to keep her safe. Richman Decl., Ex. 3, at 14, ECF #59-3.
On May 16, 2017, McKiernan emailed plaintiff's parents a draft passing-period plan to "serve the purpose of minimizing possible path crossing/interaction throughout the school day." Richman Decl., Ex. 1, at 56, ECF #59-1. McKiernan noted "[t]his proposed plan is an 'add on' to some things [she] already had in place." Id. McKiernan further indicated that it was a "working draft" and she wanted to meet with the parents so the plan could be "reviewed/revised collaboratively." Id. McKiernan mentioned that I.F. also had a passing plan in place. Id. The proposed passing plan for plaintiff made clear that if plaintiff wanted to attend eighth period in the classroom, the "other student will be removed from class during this period." Id. at 49.
On May 22, 2017, McKiernan sent plaintiff's parents an email in which she thanked them for meeting with her and suggested a revised plan to address their concerns about how plaintiff was spending the beginning of eighth period. Id. at 55. McKiernan stated she revised I.F.'s plan so that plaintiff could go straight to eighth period and staff would continue to work with plaintiff to determine if she had homework and where she would like to complete it. Id. McKiernan also suggested revising the plan so that plaintiff could go straight to the T building in the mornings where she had her first two classes and I.F. had no classes. McKiernan believed "this would be supportive or her right/need to feel comfortable and safe." Id. She attached the plan with the changes and asked the parents to look it over, stating "I would like to respect your request to be involved in how and when [plaintiff] aware of the plan and changes to the plan." Id.
The following day, plaintiff's mother emailed McKiernan that plaintiff walked through A hall the previous day and "was met by a frazzled and terse teacher with arms crossed and brows knit, who told her walking down the A hall was 'unacceptable'" and "[s]he was sent away as if she had done something wrong." Id. at 54. Plaintiff's mother asserted that the safety plan was "not working" and that plaintiff continued to be "victimize[d] . . . with ridiculous walking patterns and terse conversations when she forgets the 'safety plan,' while . . . the perpetrator, is given the right to converse with friends in the morning." Id. at 54-55.
McKiernan responded by email later that day: "I am sorry to hear that [plaintiff's] week began with her feeling hurt following an interaction with staff." Id. at 53. She further indicated that she had greeted plaintiff outside of A-4 the previous morning and, observing that I.F. was also present, reminded plaintiff it was an odd day. Id. She asked plaintiff if she wanted to connect with a couple of particular peers who were present and, "[i]n an effort to support her desire to socialize with peers, as well as, support her feelings of being safe, . . . asked the peers . . . if they'd like to 'hang'" and they accompanied plaintiff to her class in the T building. Id.
One week later, McKiernan followed up with plaintiff's parents by email regarding the proposed revised passing plan. Id. at 53. She noted that, per the parents' previous request, "discussions relating to the passing time plan need to include you" and asked for permission before speaking with plaintiff about the new plan. Id. McKiernan also noted that plaintiff learned best by modeling and repetition, "so practicing with staff for a number of ODD and EVEN days would be supportive of her learning style." Id.
These actions do not meet the "fairly high standard" of deliberate indifference—they were not "clearly unreasonable" and do not show that BSD made an "official decision not to remedy" the discrimination. It is uncontroverted that BSD "began to act as soon as it became aware of Plaintiff's allegations." Oden, 440 F.3d at 1089; see also Lossmann v. Sage Int'l Sch. of Boise, 810 F. App'x 577, 578 (9th Cir. 2020) (finding no deliberate indifference where the principal "took immediate action upon hearing [the plaintiff's] report, interviewing both parties and communicating with their parents"). As for how BSD thereafter handled the situation, "[a]bsent an unreasonable response, [the court] cannot 'second-guess[ ] the disciplinary decisions made by school administrators.'" Karasek, 956 F.3d at 1105. It is safe to assume that such decisions are particularly difficult in situations like this where both students are entitled to special education services.
Plaintiff offers her mother's declaration and deposition testimony in support of the argument that BSD acted with deliberate indifference. BSD objects to this evidence on various grounds, including hearsay and lack of personal knowledge. Reply 13, nn.10, 11, ECF #71. Even if this evidence is examined in the light most favorable to plaintiff, it does not meet the "fairly high standard" of deliberate indifference in that it does not show BSD's actions were "clearly unreasonable" or that BSD made an "official decision not to remedy" the discrimination. In essence, plaintiff's mother describes how plaintiff was afraid of I.F. and the passing plan was unsuccessful. Elizabeth McShane Decl., ECF #63. However, when plaintiff's parents sent an email raising these issues to McKiernan in May 2017, she immediately responded as described above. Under such circumstances, this court does not second-guess the school's decisions. See also Richman Decl., Ex. 3, at 15, ECF #59-3 (Plaintiff's deposition: "Q. But after that—after it was reported to Ms. McKiernan, then you felt safe at school in the spring semester? A. Yes.")
BSD also argues that I.F.'s conduct in the spring of 2016 was not sufficiently severe and pervasive to constitute a Title IX violation. Reply 13 n.11, ECF #71. While this argument may have some merit, but it is unnecessary to reach the issue.
In plaintiff's parents view, the appropriate disciplinary decision was to remove I.F. from the school entirely. See Brague Decl., Ex. 4, at 14, ECF #62-4 ("We wanted him out immediately."). As understandable as that view might be for parents whose child was abused, "[t]he [deliberate indifference] standard does not mean that recipients must expel every student accused of misconduct." Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253, 260 (6th Cir. 2000) (citation omitted). Schools are not required to "purge" their schools of "actionable peer harassment" or "engage in particular disciplinary action." Davis, 526 U.S. at 648. Moreover, "an aggrieved party is not entitled to the precise remedy that he or she would prefer." Karasek, 956 F.3d at 1109 (quoting Oden, 440 F.3d at 1089). Thus, summary judgment is granted as to any actions that BSD took occurred after plaintiff made her initial report.
At oral argument, there was discussion about the Ninth Circuit's recent holding in Karasek v. Regents of Univ. of California, 956 F.3d 1093 (9th Cir. 2020), that a pre-assault claim is a "cognizable theory of Title IX liability." Id. at 1112. The complaint does not allege a pre-assault Title IX claim, and the time for amending the complaint has long since passed.
Nevertheless, the court has carefully considered Karasek and the issues presented at oral argument. On this record, construing the evidence in plaintiff's favor and even considering plaintiff's arguably inadmissible evidence, a rational trier of fact could not find for plaintiff on a pre-assault claim. The record contains almost no history of deliberate indifference to reports of sexual harassment and abuse of students generally, and none regarding special education students on school buses specifically. Even assuming Madison Smith's experience shows BSD acted with deliberate indifference to her reports of sexual harassment and assault, much more is needed to create a genuine issue of fact that the school maintained an official policy of deliberate indifference to such reports. Otherwise stated, plaintiff's evidence simply does not compare to that offered in Karasek and Simpson v. Univ. of Colorado Boulder, 500 F.3d 1179 (10th Cir. 2007).
V. Third Claim: Equal Protection
In her third claim, plaintiff alleges an equal protection claim against individual defendants Rose, Huelskamp, and Davitt. As a preliminary matter, summary judgment must be granted as to Rose who was BSD superintendent from the 2011-2012 through 2015-2016 school years and therefore was not employed by BSD during the relevant time period. Declaration Sue Robertson ¶ 3, ECF #58.
To establish an equal-protection violation, a plaintiff "must show that the defendants, acting under color of state law, discriminated against [her] as [a] member[] of an identifiable class," and defendants acted intentionally or with deliberate indifference. Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134-35 (9th Cir. 2003). "'Deliberate indifference' is found if the school administrator 'respond[s] to known peer harassment in a manner that is . . . clearly unreasonable.'" Id. at 1135 (quoting Davis, 526 U.S. at 649). "To survive summary judgment on the issue of motive, the plaintiffs must "'put forward specific, nonconclusory factual allegations' that establish improper motive." Id. (quoting Jeffers v. Gomez, 267 F.3d 895, 907 (9th Cir. 2001)).
Plaintiff alleges that defendants violated her equal protection rights by "failing to investigate I.F.'s sexual misconduct and assaults," "failing to appropriately discipline I.F.," and "manifesting deliberate indifference to the ongoing harassment . . . by I.F." Compl. ¶ 36, ECF #1. In support, plaintiff proffers a letter from the Beaverton Police Department indicating that from January 1, 2014, through June 30, 2018, "[t]here were 14 calls for service to Sunset High School . . . that were coded as a sexual assault by our Dispatch." Id., Ex. 15, ECF #62-15. Plaintiff also proffers the declaration of a former student, Madison Smith, who states that her claims of sexual abuse had been "rebuffed" by defendants. Declaration Madison Smith, ECF #65. Finally, plaintiff offers Huelskamp's testimony that he had not disciplined any students other than I.F. for sexually harassing other students. Brague Decl., Ex. 6, at 6, ECF #62-6. Plaintiff contends this evidence shows "Huelskamp and Davitt fostered an environment at Sunset High School which condoned sexual harassment and they individually are dismissive of female student that make complaints about the hostile education environment" and establishes "improper motive." Resp. 20, ECF #61.
Defendants object to the Beaverton Police Department letter on the basis of untimely disclosure and hearsay. Plaintiff responds that "[t]he police records are impeachment documents." Resp. Evid. Obj. 9, ECF #73. However, she does not explain whose testimony the letter impeaches and how. Plaintiff also does not argue how the letter falls within an exception to the rule against hearsay. Nevertheless, even if the court considers the letter, it does not assist plaintiff in establishing an equal protection claim. The Beaverton Police Department generated nine incident reports from the calls, but five of those calls concerned incidents off campus or when school was closed. Brague Decl., Ex. 15, ECF #62-15. One of the off-campus calls concerned sexual harassment on a school bus, presumably I.F.'s abuse of plaintiff. See id. BSD's discipline records show six such incidents, one of which only resulted in a short in-school suspension. Id., Ex. 16, ECF #62-16. Even construed in plaintiff's favor, this is not a "significant discrepancy."
Defendants object to Smith's declaration on the basis of untimely disclosure. That objection is overruled; the declaration is admissible to impeach Huelskamp's testimony that he did not discipline students for sexual harassment while he was principal.
However, defendants' actions do not rise to the level of deliberate indifference. In Flores, the Ninth Circuit applied the same deliberate indifference standard used in Title IX claims. 324 F.3d at 1135 (citing Davis, 526 U.S. at 649). As discussed extensively above, supra, Sect. IV.B, the actions that defendants took following plaintiff's reports of abuse were not "clearly unreasonable" and did not amount to "an official decision not to remedy the discrimination." Karasek, 956 F.3d at 1105.
It is unnecessary to reach defendants' argument that they were not final policymakers.
In any event, defendants are also protected by qualified immunity. "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Capp v. Cty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Qualified immunity involves a two-pronged inquiry. First, the court considers "whether the facts taken in the light most favorable to the plaintiff show that the [official's] conduct violated a constitutional right." Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Second, the court considers "whether the right in question was clearly established at the time of the [official]'s actions, such that any reasonably well-trained [official] would have known that his conduct was unlawful." Id. (citing District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)); Malley v. Briggs, 475 U.S. 335, 344-45 (1986).
The Supreme Court summarized the "clearly established" prong in Mullenix v. Luna:
A clearly established right is one that is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and alteration omitted). "[Courts] do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Put simply, qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
"We have repeatedly told courts . . . not to define clearly established law at a high level of generality." al-Kidd, 563 U.S. at 742. The dispositive question is "whether the violative nature of particular conduct is clearly established."
Id. (emphasis added). This inquiry "'must be undertaken in light of the specific context of the case, not as a broad general proposition.'" Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001).136 S. Ct. 305, 308 (2015) (alterations in Mullenix).
Here, defendants investigated both reports, suspended I.F. twice, assigned I.F. a seat at the front of the bus and then permanently removed him from the bus, and also increased I.F.'s supervision and plaintiff's support. It is not "sufficiently clear that every reasonable [school] official would have understood that what [defendants did] violates" the Equal Protection Clause. Reichle, 566 U.S. at 664. Therefore, defendants are entitled to qualified immunity.
VI. Fourth Claim: Failure to Train and Supervise
In her fourth claim, plaintiff alleges that BSD failed to properly train and supervise its employees thereby violating her equal protection rights. Compl. ¶¶ 42-52, ECF #1. To establish such a failure to train claim, plaintiff must show that (1) she was deprived of a constitutional right, (2) BSD had a training policy that amounts to deliberate indifference to the constitutional rights of the persons with whom its employees are likely to come into contact, and (3) plaintiff's constitutional injury would have been avoided had BSD properly trained its employees. Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007).
As discussed above, the first prong of this test has not been met in that plaintiff was not deprived of a constitutional right. Therefore, her failure to train claim fails on summary judgment.
CONCLUSION
Defendants' Motion for Summary Judgment (ECF #55) is GRANTED IN PART and DENIED IN PART as follows:
Claim One (Negligence): The motion is granted as to the individual defendants and otherwise denied.
Claim Two (Title IX): The motion is granted as to the individual defendants. The motion is denied with respect to any actions taken by BSD before November 19, 2016, and granted with respect to actions taken thereafter.
Claim Three (Equal Protection) and Claim Four (Failure to Train/Supervise): The motion is granted.
IT IS SO ORDERED.
DATED September 22, 2020.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge