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Hill v. Cundiff, __ F.3d __, 2015 WL 4747048 (11th Cir. 2015).

Facts:  This suit alleged that a female middle school student, referred to as Doe, was raped by another eighth grade male student in a bathroom after school officials decided to use her as bait in a sting operation to catch the male student in the act of sexual harassment.  The suit alleged violations of Title IX by the District and the Fourteenth Amendment’s Equal Protection Clause by the principal, assistant principals, and a teacher’s aide.  The trial court granted a pretrial judgment on each of the student’s claims and the student appealed.

Holding:  The Eleventh Circuit reversed, in part.  The appeals court reversed the grant of judgment for the Board on Doe’s Title IX claim. To prevail on a student-on-student sexual harassment claim, a plaintiff must prove the funding recipient had actual knowledge the sexual harassment was severe, pervasive, and objectively offensive. Applying this standard, there was a genuine dispute of material fact as to whether the student satisfied all five elements necessary to succeed under Title IX. According to the Court, the principal and assistant principals were appropriate persons capable of putting the Board on notice of sexual harassment and discrimination, but the teacher’s aide was not. A jury could find the Board learned all of the facts leading up to the rape and the fact that the male student had raped Doe.  In addition, the harassment and discrimination Doe faced—of which the Board had knowledge—was severe, pervasive, and objectively offensive. The sexual harassment of Doe was pervasive because he propositioned Doe for two weeks, school officials orchestrated the sting operation, and the sting operation resulted in the rape.  According to the court, a jury could also find the Board clearly acted unreasonably and therefore was deliberately indifferent to the sexual harassment and discrimination Doe faced. A jury could find further that the Board’s deliberate indifference barred Doe’s opportunity to continue her education at the school. Since there are genuine questions of fact, the district court erred in granting summary judgment to the Board on Doe’s Title IX claim.

The appeals court also reversed the grant of judgment for the principal on Doe’s § 1983 equal protection claim. There was a genuine dispute of material fact as to whether the principal violated Doe’s constitutional right to equal protection by acting with deliberate indifference to the rape of Doe. Viewing the evidence favorably to Doe, the principal violated clearly established law. No reasonable official in Blair’s position would have believed doing nothing to reform the school’s sexual harassment policies was lawful in light of the clearly established principle that deliberate indifference to sexual harassment is an equal protection violation.

The court likewise reversed the grant of summary judgment to one of the assistant principals on Doe’s § 1983 equal protection claim. Viewing the evidence favorably to Doe, this assistant principal acquiesced to and ratified the sting operation. She is not entitled to qualified immunity because every objectively reasonable government official facing these circumstances would have known the plan to use Doe as rape bait violated the Equal Protection Clause. For the same reason, the court reversed the grant of summary judgment to the teacher’s aide on Doe’s § 1983 equal protection claim.

The appeals court, nevertheless, affirmed the judgment for the Board on Doe’s § 1983 claim. The rape-bait scheme of the teacher’s aide was not a known or obvious consequence of the “catch in the act” policy or the Board’s allegedly inadequate training policies.  The other assistant principal also was properly granted judgment because she did not acquiesce in or ratify the sting operation.

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