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Doe v. School District Number 1, Denver, Colorado. 8

No. 19-1293. D.Colo. Judge Hartz. Title IX Claim—Sexual Harassment—Motion to Dismiss.

August 17, 2020

Plaintiff was sexually assaulted by another student during her freshman year of high school. She promptly reported the assault to a high school dean, who referred her to the school psychologist. The dean and psychologist met with plaintiff and her parents and discouraged them from filing charges with the police. School personnel did not report the assault to law enforcement. Plaintiff stopped attending regularly scheduled classes a little over a year after the assault and transferred to a different school after completing her sophomore year. About a year and a half after the assault, plaintiff filed a police report and the assailant pleaded guilty to felony sexual assault with force.

Plaintiff filed a Title IX claim against School District No. 1, Denver, Colorado (DPS) alleging that following the assault, she was subjected to continuous physical threats, bullying, and harassment by a group of students that continued into the following school year. The complaint further alleged that despite numerous reports of specific instances of assault and bullying to school personnel, and reports from teachers and a counselor, the school administration neither investigated her complaints nor took disciplinary action against the assailant or the students engaged in harassing plaintiff, and school administrators did not include information concerning the matter in the school file. DPS moved to dismiss the complaint. The district court granted the motion, determining that plaintiff failed to plausibly allege that (1) she was harassed on the basis of sex, (2) the harassment was severe or pervasive, or (3) DPS was deliberately indifferent to the alleged sexual harassment.

On appeal, plaintiff challenged each of these rulings. Title IX prohibits discrimination on the basis of sex under education programs or activities receiving federal financial assistance. A school receiving federal funding can be liable for damages caused by its deliberate indifference to student-on-student sexual harassment that is “so severe, pervasive, and objectively offensive” that it deprives the victim of equal access to educational resources, opportunities, or benefits.

As to the determination regarding the allegations of harassment based on sex, under US Supreme Court precedent, retaliation for reporting sex discrimination comes within the meaning of the statutory language prohibiting discrimination “on the basis of sex,” and the sexual assault plaintiff complained about was an act of sex discrimination. Here, plaintiff adequately alleged that her harassment by other students was on the basis of sex.
Regarding the allegations that the harassment was severe or pervasive, the complaint describes more than half a dozen types of things repeatedly said to plaintiff, alleges that she reported ongoing and continuous harassment to school personnel almost monthly from the time of the sexual assault to the time she left the school, and describes how the harassment affected her. Thus, plaintiff adequately alleged that her harassment was severe, pervasive, and objectively offensive.

On the issue of deliberate indifference, which may be shown by a failure to act to halt the misbehavior, plaintiff alleged continual harassment, despite her repeated reports to school authorities; that school authorities conducted no investigation and failed to document the matter; and that the dean made direct statements that he couldn’t do anything about the situation. Therefore, plaintiff adequately alleged deliberate indifference.
Even though the district court did not rule on this issue, DPS argued that the court’s judgment can be affirmed on the alternative ground that plaintiff’s complaint failed to adequately allege denial of equal access. However, the complaint alleged that the harassment was so intolerable that plaintiff stopped attending classes and ultimately transferred to another school. Accordingly, plaintiff adequately alleged denial of equal access.

The order was reversed and the case was remanded for further proceedings.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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