A recent decision by the U.S. District Court in Michigan applied “deliberate indifference for failure to train in light of foreseeable consequences” as the proper legal standard for determining a school’s liability for violating its student’s equal protection rights claim. The Court ruled that the student showed “the district’s complete failure to train its employees on how to respond to sexual assault complaints and sexual harassment was deliberately indifferent and caused her injury.”
On March 31, 2015, Chief Judge Paul Maloney issued a 38-page decision, concluding that failing to train school staff was a violation of students’ Fourteenth Amendment equal protection rights:
Because sexual assault claims arise frequently in the public high school context, it is certainly foreseeable that the failure to train school staff on how to handle such claims would cause disastrous results. The Department of Education has made it clear to school administrators that training and proper responses to sexual assault claims are required. . . . Just like failing to train a police officer on when to use his or her gun, failing to train a school principal on how to investigate sexual assault allegations constitutes deliberate indifference. It is inevitable that these situations would arise at some point, and the complex Title IX requirements virtually ensure that an investigation done without any formal training would be deficient. [Jane Doe v. Forest Hills School Dist. (USDC WDMI 2015) no. 1:13-cv-428]
Two and a half years earlier, the Department of Education’s Office for Civil Rights found the Forest Hills School District violated Title IX in its investigation of a sexual assault complaint.
The Facts of the Case*
Fifteen-year-old “Jane Doe” claims she was sexually assaulted after being forced into a band practice room by another student referred to as “MM.” Doe says she told two friends the next day what happened and they urged her to tell a teacher. Doe wrote a note and left it on her teacher’s desk. After reading the note, the teacher immediately notified a school counselor and the principal about Doe’s allegations.
Shortly after being notified, the principal interviewed Doe and “initially believed her due to her extreme emotional reaction,” and met with local law enforcement and Doe’s parents the next day. A police report was filed, and Doe had a forensic exam two days after the assault.
The principal and other staff members reviewed the school’s surveillance footage of Doe and MM walking around campus on the day of the alleged assault. Although there was no camera in the area where the alleged assault occurred, the principal and the staff members concluded that MM’s and Doe’s “demeanor and actions” on the tape did not support Doe’s report.
The principal also interviewed a cafeteria worker and two students who were near the band practice room around the time of the alleged assault, but they did not see or hear anything unusual. The principal did not, however, interview any of Doe’s friends who spoke to Doe the next day after the alleged assault occurred.
When the principal interviewed MM, he denied Doe’s allegations. The principal said he knew that MM had a history of disciplinary issues at school and had “heard rumors about MM being involved in some kind of sexual misconduct when he was younger.” However, the principal never followed up on those rumors, never requested or received a copy of Doe’s rape kit report, and “explained that his investigation was ‘pretty much done’ at that point.” Instead, he decided to wait for the police to come up with evidence supporting Doe’s story.
Two weeks after Doe’s report, another student reported she was sexually assaulted by MM in the school parking lot. MM was eventually transferred out of the class he shared with Doe, but Doe continued to eat lunch in the library since MM had the same lunch period, and she missed classes and after-school activities because she was being harassed by MM and other classmates.
Meanwhile, when Doe’s parents complained to the principal that MM continued to harass their daughter but the principal told them he couldn’t discipline MM without proof, so he was waiting for the police to provide evidence of the assault.
Finally, after MM pled guilty to misdemeanor simple assault charges, the district suspended MM from school for five days. The Court noted that during MM’s plea colloquy, he admitted engaging in sexual conduct with Doe that constituted criminal sexual conduct for which an adult could be punished by up to two years imprisonment.
As a bit of background, in 2009 the US Supreme Court ruled that students can sue schools for sex discrimination under both Title IX and the Equal Protection Clause in the Fourteenth Amendment of the US Constitution. While Title IX allows awards of compensatory damages, the Equal Protection Clause allows school officials to be sued individually and also provides for the recovery of punitive damages. [Fitzgerald v. Barnstable School Committee (USSCt 2009) no. 07-1125]
Doe sued for sex discrimination under Title IX, claiming an inadequate response to her complaint, and under the Equal Protection Clause, claiming a failure to train employees on how to respond to a student’s sexual assault complaint. Judge Maloney ruled that Doe’s Title IX claim should be decided by a jury, but decided in Doe’s favor on her equal protection claim because there was no factual dispute about the district’s complete failure to train school officials on how to handle sexual assault complaints.
First we’ll look at how the school responded to Doe’s sexual assault report and the factors that the Court found are relevant to determining whether the school’s response violated Title IX.
1. Inadequate Response
Even though the school district took steps to protect Doe — such as telling MM to stay away from her, offering counseling services to Doe, allowing her to park in a different parking lot, and offering to drive her home if she became overwhelmed — the Court concluded that a jury should decide if the school’s responses were merely negligent, or deliberately indifferent (i.e., its response was clearly unreasonable), because:
MM and other students harassed Doe for the remainder of the school year, and administrators merely “talked to” MM repeatedly; when this proved ineffective, the school should have done something different.
The District argued that they could not suspend or expel MM from school because there was no proof that the sexual assault actually occurred. Even when MM was accused of a second assault, the school did not change its response, leading the Court to conclude:
Forest Hills cannot escape liability due to its inability to conclusively substantiate Doe’s complaint to avoid its Title IX duties. Further, after the second complaint of an assault by MM, a jury could certainly find that the school was on notice that there was a risk to students. Apparently, at least arguably, the second report had no impact on the school’s response. [Emphasis in original.]
In fact, the Court pointed out the district seemed to require “nothing short of a signed confession or video tape of the alleged assault or subsequent harassment,” and noted that “Title IX imposes many duties on a school that must occur before a final investigation substantiates a complaint.”
The Court also pointed out that failing to follow Title IX guidance to resolve complaints is a factor in deciding deliberate indifference for Title IX liability. Here, the school did not allow the parties to present witnesses and evidence, nor did the school make a determination of MM’s responsibility within sixty days of Doe’s complaint. And, while “failure to comply with Title IX guidance does not, on its own, constitute deliberate indifference, it is one consideration.” [Emphasis in original.]
Thus, a jury will have to decide whether the school’s response to Doe’s sexual harassment complaint was deliberately indifferent and denied her access to educational opportunities or benefits, violating Title IX.
2. Failure to Train
Deciding the school was liable because it acted with deliberate indifference on Doe’s equal protection claim was not a close call for the Court. At their depositions, the superintendent admitted that the district did not train its employees on how to respond to sexual assault complaints, and the Title IX coordinator and the school principal both testified they still were not sure if Title IX applied in Doe’s case. In fact, the only Title IX training the district’s Title IX coordinator attended was five years before Doe’s assault.
Since “it is certainly foreseeable that the failure to train school staff on how to handle such claims would cause disastrous results,” the Court found that inadequate training was the result of Forest Hills’ deliberate indifference. The Court also found that “sexual assault claims arise frequently in the public high school context,” leading to this conclusion:
It is inevitable that these situations would arise at some point, and the complex Title IX requirements virtually ensure that an investigation done without any formal training would be deficient.
This left the Court to answer the difficult question of how a well-trained person would have handled Doe’s complaint to determine if inadequate training caused Doe’s emotional distress, psychological damages, and damage to her reputation.
Finding that school administrators did not act with bias or ill-will, the Court concluded that the administrators would have followed Title IX guidance on how to handle sexual assault complaints if they had been properly trained:
Thus, if school administrators had been trained properly, it is probable that they would not have waited for the criminal process to be complete before disciplining MM or relied so heavily on information from law enforcement. . . . Training concerning Title IX’s prohibition on retaliation against complainants may also have mitigated Plaintiff’s emotional distress and social ostracization. If the school had done an independent investigation and either punished or exonerated MM quickly, the issue likely would have “blown over” much more quickly.
The Court then ruled that the school district acted with deliberate indifference because it failed to properly train its employees, and is liable to Doe for damages: “if the school administrators had been adequately trained in the optimal methods of addressing sexual assault complaints, even allowing for mistakes, Plaintiff would not have suffered the injuries she alleges.”
This decision should be required reading for anyone who still doubts the importance of Title IX training for school employees. In its guidance document, Questions and Answers on Title IX and Sexual Violence, the Department of Education’s Office for Civil Rights states that schools “should provide training to all employees likely to witness or receive reports of sexual violence.” [Q&A, pp. 38-40]
However, this decision warns school administrators that training employees is not only a compliance issue, but it is also a significant liability issue. The OCR found Forest Hills’ response to Doe’s complaint and its grievance procedures violated Title IX, and now the U.S. District Court has ruled its failure to train makes the district liable to Doe for money damages.
Forest Hills still faces a jury trial on its liability for Title IX violations. This is a classic case of “an ounce of prevention is worth a pound of cure.”
*The facts of the case included in this post are set forth in the Court’s Opinion and Order Granting in Part and Denying in Part Cross Motions for Summary Judgment.