Opinion
CA 3:01-CV-1092-R
July 16, 2002
MEMORANDUM OPINION
Defendant's Motion for Judgment on the Pleadings is before the Court. Plaintiff Jane Doe I filed this suit against Defendant Dallas Independent School District ("DISD"), as next friend of her daughter, Jane Doe II, alleging: (1) deliberate indifference to complaints of sexual assault in violation of Title IX of the Education Amendments of 1972, codified in 20 U.S.C. § 1681 ("Title IX"); and (2) due process violations caused by DISD's customs and/or policies in violation of Section 1983, codified in 42 U.S.C. § 1983 ("Section 1983"). For the reasons stated below, Defendant's Motion for Judgment on the Pleadings is GRANTED as to Plaintiff's Section 1983 claim and DENIED as to Plaintiff's Title IX claim.
I. BACKGROUND FACTS
Plaintiff brings suit on behalf of her five-year-old daughter, Jane Doe II, against Dallas Independent School District ("DISD"), alleging that DISD was "deliberately indifferent" to a sexual assault complaint, which led to a second assault by John Doe against Plaintiff's daughter. Jane Doe II's five-year-old classmate John Doe, allegedly committed the first sexual assault while the two were in P.E. class at George W. Truett Elementary School. Plaintiff alleges that there was an insufficient student-to-teacher ratio in the P.E. class.
The complaint alleges that John Doe had a history of fondling and grabbing female classmates in an inappropriate manner, and that DISD administrators knew of John Doe's tendencies before his first assault on Jane Doe II. While in P.E. class on or about March 2, 2001, Jane Doe II claims that John Doe used his hand to violate her vagina, which resulted in vaginal bleeding, pain while urinating, and abdominal pain. The school counselor confirmed to Jane Doe I that Jane Doe II was being truthful. Also, a nurse examined Jane Doe II on March 5, 2001, and her findings supported Jane Doe II's claims.
Jane Doe II had hematuria, a common result of sexual assault. Shortly after the alleged assault, Jane Doe II began to show signs of depression, sleeplessness, weight loss and suicidal tendencies. The victim was an honor student, and also qualified for the Gifted and Talented Program, but due to John Doe's harassment and assault, Jane Doe II was allegedly unable to fully utilize all of the educational opportunities at her school.
The school principal allegedly gave inadequate attention to the problem, and failed to take significant steps to remedy the situation. According to the complaint, the principal did not interview John Doe, obtain any written statements from the counselor or nurse, or hold any type of meeting with parents and teachers. In fact, the complaint alleges that the principal accused Jane Doe II of fabricating the entire incident — in light of the prior corroborative evidence.
After the first incident occurred, John Doe allegedly still had access to Jane Doe II. It is alleged in Plaintiff's complaint that John Doe grabbed Jane Doe II's bottom. But again, the administration's response was deliberate indifference. Teachers told Jane Doe II to forget the incident, thereby forcing Plaintiff to remove her child from school in order for Jane Doe II to seek psychological treatment. Plaintiff alleges that DISD reacted by threatening her with a truancy fine.
Plaintiff's counsel phoned DISD and asked for several things, including: that DISD intervene in the situation to ensure safety, that DISD reimburse Plaintiff for actual counseling costs, and that DISD separate John Doe from the other students. DISD allegedly rejected this offer of quick resolution, and instead, completely distanced itself from the situation.
DISD states, however, that there was only one incident of sexual assault (as Plaintiff has failed to specifically plead that this second incident occurred on DISD property). DISD also states that Plaintiff's remedy sought is unavailable under Texas law. Therefore, DISD has moved for a Judgment on the Pleadings per FED. R. CIV. P. 12(c).
II. ANALYSIS
A. 12(c) Standard
A court which considers a motion for a 12(b)(6) or 12(c) dismissal must look only at the pleadings and accept all allegations in them as true. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695, 710-11 (1990); Cramer v. Skinner, 931 F.2d 1020, 1025 (5th Cir. 1991). Judgment is inappropriate unless the pleadings on their face reveal beyond doubt that the plaintiffs can prove no set of facts that would entitle them to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). A court should therefore dismiss a case only if an affirmative defense or other bar to relief appears on the face of the complaint. See Landry v. Air Line Pilots Ass'n Int'l AFL-CIO, 901 F.2d 404, 435 (5th Cir.), cert. denied, 498 U.S. 895, 111 S.Ct. 244, 112 L.Ed.2d 203 (1990); 2A J. Moore J. Lucas, Moore's Federal Practice para. 12.07, at 12-68 through 12-69 (2d ed. 1990).
When material outside the pleadings is considered, however, the court will generally exercise its discretion to treat the motion as one for summary judgment. The court will then evaluate such extra-pleading materials to determine whether a genuine issue of material fact exists. FED. R. CIV. P. 56(c); see South Central Bell Telephone Co. v. Canal Place Ltd. Partnership, 927 F.2d 867, 868 (5th Cir. 1991).
B. Section 1983
1. There is No Constitutional Duty to Protect Students from Harm by Third Parties, Including Other Students
The Supreme Court has imposed strict limits on Section 1983 recovery for injuries caused by private third parties, noting that the Due Process clause was intended "to protect people from the State, not to ensure that the State protect them from each other". DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 196, 103 L.Ed.2d 249, 109 S.Ct. 998 (1989). Under DeShaney, the government has no duty to protect citizens from deprivations of liberty by third parties, except where (1) the government has custody of the individual and has a duty of care based on that "custodial special relationship," or (2) the government took affirmative steps which put the individual in danger. Id. at 198-202. Since Jane Doe I has not alleged any state-created danger, the only question is whether the school officials had a "custodial special relationship" with Jane Doe II by virtue of her enrollment at George W. Truett Elementary School; and, if so, whether they breached their duty of care to her.
The vast majority of federal courts have held that schools do not maintain a sufficiently "custodial special relationship" with their students to give rise to a duty to protect them against injury from third parties. Willhauck v. Town of Mansfield, 2001 U.S. Dist. LEXIS 13897, *10-*11 [*12] (D. Mass. 2001). The Court of Appeals for the Third Circuit has interpreted the DeShaney special relationship exception to require a test of physical custody. See D.R. by L.R. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992).
In D.R., the plaintiffs, two minor female students and their parents, brought claims under Section 1983 against their high school alleging that while attending art class, they were verbally and sexually molested over a period of five months by several male students in the unisex bathroom and darkroom that were connected to the classroom. Id. at 1365-66. The D.R. court noted that other courts had found a special relationship between prisoners and involuntarily committed mental patients and the state because such persons "are wholly dependant upon the state for food, shelter, clothing and safety. It is not within their power to provide for themselves, nor are they given the opportunity to seek outside help to meet their basic needs. Obviously they are not free to leave." Id. at 1371. In affirming the district court's dismissal of the plaintiffs' Section 1983 claims against the school, the D.R. court held that the state does not have a constitutional duty to protect school children from harm from third parties because the school children are not in the type of physical custody required to raise a special relationship, the school children's liberty is not restricted in any way after school hours, and they do not rely on the school to provide for their basic human needs. Id. at 1372.
In Garza v. Galena Park Ind. Sch. Dist., the plaintiff parent filed a Section 1983 claim against a school district as well as individual school personnel based on their alleged failure to remedy and/or prevent the on-campus sexual harassment and assault of Plaintiff's daughter. 914 F. Supp. 1437, 1438. The Southern District of Texas stated that there exists no "special relationship" duty in the case of "day students who return home each day even though attendance is required and the school exercises disciplinary control over the students." Id. at 1438 (quoting Esmeralda v. Partin, 864 F. Supp. 626, 627 (S.D. Tex. 1994)).
Here, the DISD has not restrained Jane Doe II's freedom to act on her own behalf (or Jane Doe I's freedom to act on her daughter's behalf) so as to give rise to a deprivation of liberty in violation of the Fourteenth Amendment, nor have the Plaintiff's alleged any such restraint. There is no constitutional duty on the part of DISD to protect its students from the acts of other students; therefore, Plaintiffs' Section 1983 claim must fail as a matter of law. Consequently, further inquiry into whether the DISD has acknowledged a custom or written policy which caused the constitutional deprivation is unnecessary. Nonetheless, these DISD customs or policies which Plaintiff claims to be in violation of the constitution will be addressed.
2. Plaintiff Has Not Sufficiently Alleged a DISD Custom or Policy Which Caused Her Damages
To support a claim based upon the existence of an official custom or policy, the Plaintiff must plead facts which show that: 1) a policy or custom existed; 2) the governmental policy makers actually or constructively knew of its existence; 3) a constitutional violation occurred; and 4) the custom or policy served as the moving force behind the violation. Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532 (5th Cir. 1996) (citing Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir. 1987)).
In order for Plaintiff to recover on her Section 1983 claim by showing an "official policy," she must plead facts which demonstrate either:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc). The policymaking authority of DISD is vested exclusively in its Board of Trustees. Doe v. DISD, 153 F.3d 211, 216 (5th Cir. 1998).
Similarly, in order for Plaintiff to recover on her Section 1983 claim by showing a "custom," she must plead facts which show DISD's "toleration of a custom within the school district that led to, caused, or resulted in the deprivation of their daughter's constitutionally protected right." Mosley, 1999 Tex. App. LEXIS 6733, *6, *7 (citing Doe v. Claiborne County, Tenn., 103 F.3d 495, 507 (6th Cir. 1996)). Here, Jane Doe I makes no specific claim that DISD "had an officially executed policy of allowing student-on-student sexual abuse, no claim that it had a custom of tolerating student-on-student sexual harassment, and no claim that there was a clear and persistent pattern of student-on-student sexual abuse in the district." Mosley, 1999 Tex. App. LEXIS 6733 at *7.
Plaintiff's identification of several vague policies in her Response in Opposition to Defendant's 12(c) Motion (overcrowding of classes, unfair investigation techniques, and an ineffective separation policy) does not equate to pleading such policies in her Complaint. Plaintiff's complaint does not allege that Jane Doe II's injuries were caused by an express policy of DISD, but merely states that "there was an insufficient teacher-to-student ratio in the P.E. class at the time of the incident." (Plaintiff's First Amended Complaint at ¶ 9). This is merely a conclusory allegation.
Because Jane Doe I has failed to plead facts that a policy or custom existed, of which the DISD Board of Trustees actually or constructively had knowledge, and because no constitutional violations occurred, Plaintiff's Section 1983 claim must fail as a matter of law.
3. Title IX
Title IX provides that:
"No 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).
In Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), the Supreme Court articulated the standard for Title IX liability in student-on-student sexual harassment cases. Petitioner alleged that her fifth-grade daughter had been the victim of sexual harassment by one of her male classmates. Over the course of several months, Plaintiff's daughter encountered several incidents of sexual harassment. Plaintiff reported each incident to her daughter's teachers and principal, but no disciplinary action was taken against the assailant. These incidents ultimately ceased when the assailant was charged with, and plead guilty to, sexual battery for his misconduct. Id. at 634.
The District Court dismissed petitioner's Title IX claim on the ground that "student-on-student," or peer, harassment provides no ground for a private cause of action under the statute. The Court of Appeals for the Eleventh Circuit, sitting en banc, affirmed.
The United States Supreme Court, however, reversed and remanded, concluding that a private damages action may lie against the school board in cases of student-on-student harassment, but only where the funding recipient acts with deliberate indifference to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit.
1. DISD Acted With "Deliberate Indifference"
Here, Plaintiff is seeking to hold DISD liable for its lack of response to known acts of sexual harassment under the deliberate indifference standard set forth in Davis, alleging that DISD's response was "clearly unreasonable in light of the known circumstances." Davis, 526 U.S. at 648. The alleged circumstances of this case include Jane Doe II's vaginal bleeding, pain while urinating, and abdominal pains. The complaint alleges, moreover, that the principal accused Jane Doe II of fabricating the entire incident.
Judgment is inappropriate unless the pleadings on their face reveal beyond doubt that the plaintiffs can prove no set of facts that would entitle them to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). These pleadings fail to show "beyond doubt" that Jane Doe I can prove no set of facts pertaining to her Title IX claim. There is corroborating evidence by both a nurse and a school counselor, stating that Jane Doe II was sexually assaulted. And the school administration's response to this forceful, bodily invasion of a five-year-old's vagina is very similar to Davis, where the school administration was deliberately indifferent.
In Davis the school took no remedial action whatsoever. Here, the pleadings state that Jane Doe II and John Doe were separated, but that the administration prevented Jane Doe II from attending P.E. class, rather than John Doe. Nevertheless, the action taken to separate Jane Doe II from her assailant could have "effectively denie[d] [Jane Doe II] equal access to education that Title IX is designed to protect." Davis, 526 U.S. at 652.
2. One Incident of Harassment is Enough
DISD repeatedly uses the term persistent harassment as a predicate for Title IX relief. This is incorrect. The Davis court mentioned nothing about persitent abuse of the victim; rather, the U.S. Supreme Court uses the term pervasive. Defendant's mistakenly rely upon the fact that Jane Doe II only had one encounter (because Plaintiff failed to plead with specificity that the second encounter actually occurred on DISD premises) with her alleged assailant, and thereby this disqualifies her for Title IX relief. The Davis court states:
"We thus conclude that finding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Id. at 650.
The term persistent is defined as "existing for a long or longer than usual time or continuously," while pervasive is defined as "that becomes or tends to become diffused throughout every part of." MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 867, 868 (10th ed. 1994). Obviously, the terms have two completely different definitions.
The Davis court does, however, state that "the behavior be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity." Id. at 652. Furthermore, the court states:
"Although, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an effect, we think it unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment." Id. at 652-53.
Assuming that we do not consider the second incident whereby John Doe allegedly "grabbed her bottom" (because it was not specifically stated in the pleadings that the incident occurred on DISD property), one single instance of a forced manual penetration of one's vagina seems to qualify as a "sufficiently severe one-on-one peer harassment."
3. Davis Did Not Involve the Forced Entry of the Victims Vagina
Plaintiff's response stated that "in Davis, no rape, or touching of genitalia occurred." (Plaintiff's Response and Supporting Brief in Opposition to Defendant's 12(c) Motion for Judgment at p. 10). Defendant then responds by stating, "[o]n the contrary, the student in Davis was charged with and pled guilty to sexual battery." (Defendant's Reply to Plaintiff's Response to Motion for Judgment on the Pleadings, and Supporting Brief at p. 5 n. 3). The details of each offensive touching, however, were not included in the Davis opinion. The court makes a general statement that the harassment "included numerous acts of objectively offensive touching," Davis, 526 U.S. at 653, and that ultimately the fifth-grade boy pleaded guilty to criminal sexual misconduct. The Davis court concluded that "there are allegations in support of the conclusion that [assailant's] misconduct was severe, pervasive, and objectively offensive," Id., and that "[plaintiff] may be able to show both actual knowledge and deliberate indifference on the part of the Board." Id. at 654.
A battery, however, is merely some type of offensive touching. In Davis, the offensive touching was sexual, but not necessarily the type of egregious conduct and behavior that John Doe allegedly forced upon Jane Doe II. Therefore, Defendant's assertion that attempts to equate a sexual battery with a forced, manual violation of one's vagina is completely without merit.
4. Plaintiff's Proposed Remedies Were Not in Violation of Texas Law
Contrary to Defendant's Reply to Plaintiff's Response to their 12(c) Motion on the Pleadings, Plaintiff never asked for a remedy that violated the Texas Education Code. Plaintiff's complaint clearly states that Plaintiff "asked DISD for several simple things," which were: (1) intervention in the situation to ensure safety; (2) reimbursement for counseling costs; and (3) separation of John Doe from other students.
DISD states that "by law a student younger than six may not be removed from the classroom, and student younger that ten may not be expelled." (citing TEX. EDUC. CODE §§ 37.006(1), 37.007(h)). This statement is taken out of context, however, as DISD has failed to quote the provision in its entirety. Chapter 37, Subchapter A of the Texas Education Code pertains to "alternative settings for behavior management." Section 37.006 (1) states that "a student who is younger than six years of age may not be removed from class and placed in an alternative education program." Therefore, John Doe could have been "removed from class and transferred" to another school, just as the mentally retarded boy was transferred in Wilson (See § 5 below). Also, John Doe could be removed for any other reason deemed necessary by the school, so long as he was not placed in an alternative education program.
Similarly, Section 37.007(h) states that "[s]ubject to [firearm possession], notwithstanding any other provision of this section, a student who is younger than ten years of age may not be expelled for engaging in conduct described by this section." TEX. EDUC. CODE § 37.007(h).
Jane Doe I, however, never asked DISD to expel John Doe. Likewise, Plaintiff never even recommended that DISD transfer John Doe.
Plaintiff recommended three simple things — all mentioned above — none of which required placing John Doe in an alternative education program, or expelling him from school.
5. Mosley and Wilson are Not Analogous Cases
In Mosely v. Beaumont Indep. Sch. Dist., 1999 Tex. App. LEXIS 6733, *1 (Tex.App.-Beaumont 1999, no pet), the conduct involved was mere leg-touching. While sitting in middle-school science class, another male student touched Defendant's leg more than once. But more importantly, there was no corroborating evidence that the conduct actually occurred. There was a dispute as to whether Defendant's teacher actually even observed the touching. After confronting the two students, the teacher concluded, "either correctly or incorrectly," that Defendant had touched her leg, but that the Mosleys' daughter had allowed him to do so. Id. The court affirmed summary judgment, finding that Plaintiff's Title IX claim failed to amount to the severe, pervasive, and objectively offensive conduct required by Davis.
In Jane Doe II's case, however, the forced manual violation of one's vagina is definitely more severe, pervasive, and objectively offensive than the touching of one's leg. As to the corroborating evidence, although no teacher actually observed John Doe commit the alleged assault, there is strong corroborating evidence from both a school counselor and a nurse that Jane Doe II was the victim of a sexual assault.
Similarly, in Wilson v. Beaumont Independent School District, a mentally retarded twelve-year-old boy named Ken Wilson was allegedly raped by John Doe, a mentally retarded male classmate. 144 F. Supp.2d 690, 692 (E.D. Tex. 2001). One day the teacher took her special education class (containing both Wilson and Doe) for a restroom break. A skirmish erupted in the hallway, however, and afterward, the teacher noticed that Wilson and Doe were no longer with the group. As she looked toward the restroom, she noticed the door closing. She then opened the door and ordered the two fully clothed boys to exit the restroom, whereupon she noticed that Doe had an erection, and Wilson's eyes had a "look of surprise." Plaintiff's alleged that when the teacher asked Wilson what happened, he indicated that Doe had asked Wilson to perform oral sex on him, and that Doe forced Wilson to have anal sex. Id. at 691. The teacher testified, however, that there had been no sexual contact.
Upon learning of the possible sexual molestation, Wilson's mother immediately contacted CPS and the school principal. According to the principal, various administrative procedures were taken, such as talking with the students, speaking with CPS, interviewing employees, getting written statements from employees, holding a meeting with Wilson and his parents, teachers and administrators, and transferring Doe to a new school. Id. at 691. Essentially, Beaumont ISD did many of the things Jane Doe I asked DISD to do here.
And just as Mosley lacked the element of "severe, pervasive, and objectively offensive" conduct, Wilson lacked the element of "deliberate indifference." The Wilson court concluded that although the alleged harassment was severe, the school's response was not clearly unreasonable in light of the known circumstances. Therefore, because Beaumont Independent School District failed to meet the deliberate indifference standard, there was no Title IX liability.
6. Plaintiff May Assert "Hostile Environment" Claim Under Title IX
Before Davis, the rule in the Fifth Circuit was that Title IX imposes liability against a school in the context of student against student sexual harassment only if the claimant can demonstrate that the school responded differently to complaints about the harassment because of the claimants sex. Rowinsky v. Bryan Ind. Sch. Dist., 81 F.3d 1006 (5th Cir. 1996). In other words, Rowinsky thus recognized no institutional liability for peer hostile environment sexual harassment without an additional showing of intentional gender-based discrimination.
However, this notion changed in 1999, as Davis questioned Rowinsky, See Davis, 526 U.S. at 638, and articulated a simple rule for Title IX liability. The plaintiff must show: 1) deliberate indifference to sexual harassment; 2) actual knowledge of the sexual harassment; and 3) that the harassment is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit. Therefore, based on the rule in Davis, disparate treatment by funding recipients is no longer a predicate for Title IX student-on-student sexual harassment claims. DISD created the "hostile environment" by meeting all three of the aforementioned elements. Therefore, Defendant's assertion that students may not bring "hostile environment" claims under Title IX is completely without merit.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Judgment on the Pleadings is GRANTED as to Plaintiff's Section 1983 claim and DENIED as to Plaintiff's Title IX claim. It is so ORDERED.