David C. Nye, Chief U.S. District Court Judge.
This matter comes before the Court on Defendant Lakeland Joint School District #272's ("the District") Motion for Summary Judgment (Dkt. 42), and Motion to Strike (Dkt. 45). The Court held oral argument on May 15, 2019, and afterward took both motions under advisement. For the reasons set forth below, the Court DENIES the District's Motion for Summary Judgment (Dkt. 42), and GRANTS in PART and DENIES in PART the District's Motion to Strike (Dkt. 45).
L.E. was an eighth-grade student at Timberlake Junior High during the 2012-2013 school year. Dkt. 43-3, at 7. That year, Shawn Lawler ("Coach Lawler"), the Timberlake High School cross country and track coach, pulled L.E. out of class along with a few other students who were interested in joining the high school cross country team.
The Camp was operated by Lewis-Clark State College ("LCSC") and was held at LCSC's campus and the Johnson Bar Campground. Dkt. 42-4, at 2. Coach Lawler attended the Camp as a volunteer coach. Id. at 3. The District's male students
At the end of the third day of Camp, L.E. bathed and returned to his tent to change clothes. Dkt. 43-3, at 41, 42. While L.E. was wearing only his underwear, Defendants M.D., J.W., and R.R.
After hearing that L.E. was upset, Coach Lawler spoke with him privately. Dkt. 43-2, at 24. L.E. cried as he told Coach Lawler that M.D. "shoved a plunger into [his] butt." Dkt. 43-3, at 23-24. After this conversation, Coach Lawler gathered the District's male students, chastised them for "screwing around," and had them apologize to L.E. Dkt. 43-2, at 25-26. Coach Lawler did not report the assault to the District. Id. at 20.
After the Camp, L.E., M.D., J.W., and R.R. all attended Timberlake High School, and L.E., J.W., and R.R. ran on the school's cross-country team. Dkt. 43-2, at 14-15, 155; Dkt. 43-3, at 9. Throughout the year, M.D. and J.W. gave L.E. a "rough time." Dkt. 43-3, at 10. On one occasion during class, M.D. said to him, "You liked it in your ass." Id. at 33. M.D. also made multiple derogatory "gay jokes" about him. Id. On another occasion (following a track and field event), J.W. told L.E. that he would "get raped at State." Id. at 10.
During that 2013-2014 school year, Coach Lawler pulled L.E. out of a science class and asked him to attend the Camp again in the summer of 2014. Id. at 9, 30. Coach Lawler said L.E. would not need to pay because of what happened the prior year. Id. at 9. L.E. attended the Camp even though he was expelled from Timberlake High School shortly before the school year ended. Id. at 29-30.
Some time after the Camp in 2014, L.E.'s mother became aware of what happened at the Camp in 2013. Dkt. 43-2, at 108-09. On or about August 31, 2015, she reported it to Georgeanne Griffith, a District employee.
On September 28, 2015, the District issued two letters
However, Lisa Sexton, the District's Title IX Representative and Assistant Superintendent ("Assistant Superintendent Sexton"), wrote an addendum to the reprimand letter on January 8, 2017. Id. at 79. The addendum said that the reprimand and the Professional Standards Commission investigation were unwarranted and concluded that Coach Lawler "responded appropriately to the information he had." Id.
Summary judgment is proper "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." Fed. R. Civ. P. 56(a). This Court's role at summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citation omitted). In considering a motion for summary judgment, this Court must "view[ ] the facts in the non-moving party's favor." Id. To defeat a motion for summary judgment, the respondent need only present evidence upon which "a reasonable juror drawing all inferences in favor of the respondent could return a verdict in [his or her] favor." Id. (citation omitted). Accordingly, this Court must enter summary judgment if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The respondent cannot simply rely on an unsworn affidavit or the pleadings to defeat a motion for summary judgment; rather the respondent must set forth the "specific facts," supported by evidence, with "reasonable particularity" that precludes summary judgment. Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001).
The Court first considers the District's Motion to Strike (Dkt. 45) because it concerns what evidence the Court may consider in deciding the District's Motion for Summary Judgment (Dkt. 42).
The District asks the Court to strike four items from L.E.'s Response to Defendant's Motion for Summary Judgment (Dkt. 43): (1) the Declaration of Brett Sokolov; (2) the two letters dated September 28, 2015; (3) M.D.'s confession that he inserted the plunger handle into L.E.'s anus; and (4) an answer in Assistant Superintendent Sexton's deposition. Dkt. 45, at 1-2. Each will be discussed in turn.
The District moves to strike the Declaration of Brett Sokolov
"As a general rule, `testimony in the form of an opinion or inference otherwise
In his Declaration, Sokolov first lays out his experience with Title IX. Dkt. 43-5. Then he provides his "analysis of and opinions in this matter" under the heading "Basis for Opinions and Conclusions." Dkt. 43-5, at 37. He defines what he deems the "[a]pplicable [l]egal [s]tandards," and he concludes that "[t]he record yields sufficient evidence for a court to find that the School failed to uphold the regulatory standards of Title IX and was deliberately indifferent to its obligations to comply with Title IX, to investigate and remedy discrimination on the basis of sex." Id. at 39. He applies the facts to law, and determines that Coach Lawler was an appropriate official with actual knowledge. Id. at 58, 63. He opines that Coach Lawler's response was "clearly unreasonable in light of known circumstances" and the District was likewise "clearly unreasonable." Id. at 64, 66. He summarizes his conclusions by saying "the School failed in all of its duties ... to act to investigate and remedy in response to notice" of the assault. Id. at 68.
L.E. argues that "expert testimony can be allowed on matters crossing the line between factual and legal conclusions or in cases dealing with complicated legal standard." Dkt. 46, at 4. He quotes the following in support:
29 C.A. Wright & V.J. Gold, Federal Practice and Procedure, Federal Rules Of Evidence, § 6264 n.36 (1997).
This is not that context. Because the Declaration contains opinions on ultimate issues of law, the Court hereby STRIKES the Declaration of Sokolov.
Next, the District moves to strike "the letters dated September 28, 2015, to Mr. Lawler and the Professional Standards Commission." Dkt. 45, at 2. According to the District, the letters are subsequent remedial measures used to establish culpable conduct and should be struck pursuant to Federal Rule of Evidence 407. Dkt. 45-1, at 4-5. Additionally, the District argues that the letter to the Professional Standards Commission must also be stricken because it contains hearsay. Id. at 6.
Federal Rule of Evidence 407 states:
Fed. R. Evid. 407.
L.E. does not contest that the letters are subsequent remedial measures; however, he argues they are admissible under the above exception because they are used to show control. Dkt. 46, at 5. The District disputes that it had control, and since these letters could potentially show that the District had requisite control, they are admissible under Rule 407.
As for the hearsay issue, the District argues:
Dkt. 45, at 6.
In the District's reply brief, the District asserts that both the letter itself and what the letter says L.E.'s mother said are hearsay. Dkt. 47, at 4.
"Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule." Fed. R. Evid. 805. Both the letter itself and the mother's statement conform with a hearsay exception.
The letter itself falls under the Rule 801(d)(2)(D) exception. Rule 801(d)(2)(D) provides that a statement is not hearsay if it "is offered against an opposing party" and "was made by the party's agent or employee on a matter within the scope of that relationship and while it existed." Fed. R. Evid. 801(d)(2)(D). The Rule "takes the broader view that an agent or servant who speaks on any matter within the scope of his agency or employment during the existence of that relationship, is unlikely to make statements damaging to his principal or employer unless those statements are true." Nekolny v. Painter, 653 F.2d 1164, 1172 (7th Cir. 1981). Here the District's Superintendent, Brad Murray, wrote the letter in his official capacity to the Professional Standards Commission of the Idaho Department of Education. Dkt. 43-2, at 68. This letter is clearly a statement made by an agent or employee of the District on a matter within the scope of his employment. Thus, pursuant to Rule 801(d)(2)(D), the letter itself is not hearsay.
What L.E.'s mother told the District about the assault is also not hearsay. That portion of the letter says, "This situation came to our attention this past month when the mother of the abused student told a district level administrator that her son was raped while at the summer cross country camp in the Lewiston area." Id. For a statement to be hearsay, it must be "offer[ed] in evidence to prove the truth of
Because the letters are admissible under Rule 407 and the disputed statements are not offered to prove the truth of the matter asserted, the Court DENIES the Motion to Strike as it pertains to the letters.
During the District's investigation, M.D. told Assistant Superintendent Sexton that he "put the plunger in [L.E.'s] anus one time." Dkt. 43-2, at 52-53, 71. The District moves to strike this confession from the record because it is hearsay.
L.E. argues that this statement qualifies under the Federal Rule of Evidence 804(b)(3) exception because M.D. has invoked his Fifth Amendment right against self-incrimination and is therefore unavailable and because this statement is against M.D.'s interest. Alternatively, L.E. argues that it could fall under the Rule 801(d)(2) exception.
The District argues that hearsay exceptions should only allow the statement to be used against M.D. and not against his codefendants. The District's argument is true for the Rule 801(d)(2) exception. Fed. R. Evid. 801(d)(2). However, unlike the Rule 801(d)(2) exception, there is no language in Rule 804(b)(3) that limits the use of such statement against a codefendant.
Rule 804(b)(3) provides that an unavailable declarant's statement is admissible if it is contrary to the declarant's interest. Fed. R. Evid. 804(b)(3). A statement is against interest when:
Id.
The declarant is M.D., and he is unavailable because he invoked his Fifth Amendment right against self-incrimination. See United States v. Wood, 550 F.2d 435, 441 (9th Cir. 1976). The statement is against the declarant's interest because the confession clearly exposed M.D. "to civil or criminal liability,"
During her deposition, Assistant Superintendent Sexton was asked: "Would you agree that Coach Lawler has the authority to take corrective action against students who engage in hazing or bullying behavior?" Dkt. 43-2, at 54. She responded: "If Coach Lawler is the supervisor of record during his contracted time, he would be required, actually, to do that." Id. However, prior to her answer, the District's attorney objected to the form of the question, and lack of foundation. Id. The District now argues that Assistant Superintendent Sexton's answer cannot be considered until the Court rules on Defense counsel's objections.
L.E. argues that the Court should overrule the objection because "[t]he question posed to Lisa Sexton was clear and was based on her understanding of the relevant District policies and procedures." Dkt. 46, at 8. L.E. notes that "Sexton was designated by the District to testify on the District's behalf pursuant to FRCP 30(b)(6) and was also the Assistant Superintendent and Title IX Coordinator at the relevant times during this litigation." Id. Additionally, she "displayed her familiarity with the relevant policies and procedures within the District during her deposition and prior to the objection at issue in this case." Id.
The Court finds that the question was clear and proper foundation had been established. The District's objection is therefore OVERRULED.
Title IX provides that "[n]o 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). Recipients of federal funding, like the District, may be liable for damages under Title IX for student-on-student sexual harassment. See Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 643, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999).
For student-to-student sexual harassment, there are four requirements for school district liability to attach under Title IX: (1) substantial control; (2) severe and pervasive harassment; (3) actual knowledge; and (4) deliberate indifference. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 739 (9th Cir. 2000). The Court discusses each factor in turn.
First, the District's liability "is limited `to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.'" Id. (quoting Davis, 526 U.S. at 645, 119 S.Ct. 1661).
The District contends that it did not exercise substantial control over M.D., J.W., and R.R. while they attended the Camp. It points to various factors in support of this position, including: the Camp was operated and managed by an outside organization; the Camp was not located on District property; school was not in session; Coach Lawler was working as a
However, whether the District had control over the Camp is largely immaterial here because L.E.'s Title IX claim is not based upon the sexual assault that occurred at the Camp. To be sure, that attack provides important context for L.E.'s Title IX claim, but he is not saying the District is responsible or liable for the attack itself. Instead, L.E.'s Complaint states:
Dkt. 1, at 6 (emphasis added).
Thus, the District's focus on whether it exercised substantial control over the Camp is somewhat misplaced. What really matters here, is that Coach Lawler was allegedly aware that L.E. was sexually assaulted at the Camp, yet he did nothing to adequately correct the behavior or implement safeguards for L.E. at school the following year. The true nature of L.E.'s Title IX claim is that he was subjected to a hostile learning environment due to continued harassment at school, even though Coach Lawler knew that he had been sexually assaulted by fellow students the prior summer.
The District undoubtedly had control over its students during the school year and over the allegedly hostile environment that L.E. endured at the school.
"In evaluating hostile environment claims, courts have adopted a `totality of the circumstances' approach that rejects the disaggregation of the allegations and requires only that the alleged incidents cumulatively have resulted in the creation of a hostile environment." Id. at 319. Therefore, the District cannot sever the Camp incident from any later harassment at the school.
The facts are much like those in Doe v. Derby Board of Education, 451 F.Supp.2d 438 (D. Conn. 2006). In Doe, a male student sexually assaulted a female student off campus during the summer break. Id. at 440. Despite the timing and location of the assault, the District Court still held that the Board could be liable "for the post-assault school situation." Id. at 445. The male student never directly harassed the female student again, id. at 442, yet "even absent actual post-assault harassment by [him], the fact that he and [she] attended school together could be found to constitute pervasive, severe, and objectively offensive harassment." Id. at 444.
Similarly, in Williams v. Board of Regents, 477 F.3d 1282 (11th Cir. 2007), the Court held that the University may have violated Title IX even though the University did not have control over the harasser when he committed the initial, reported
Though neither the Board in Doe nor the University in Williams had control over the distinct, reported incidents of harassment, they were both potentially liable to the extent that their deliberate indifference subsequently subjected their students to a hostile environment that was within their control. Doe, 451 F. Supp. 2d at 446; Williams, 477 F.3d at 1296. See also Davis, 526 U.S. at 644, 119 S.Ct. 1661. Likewise, regardless of whether the District exercised substantial control over the Camp, it undoubtedly exercised substantial control over the high school. Since L.E. claims to have been subjected to hostile learning environment at school, the Court finds the District is liable to the extent that its deliberate indifference to the sexual assault subjected L.E. to severe, pervasive, and objectively offensive harassment at the school.
Second, the harassment must have been so severe, pervasive, and objectively offensive that L.E. was denied an educational benefit. See Davis, 526 U.S. at 633, 119 S.Ct. 1661.
The District argues that the evidence does not support a finding that L.E. was subjected to severe, pervasive, and objectively offensive harassment following the attack. During his deposition, L.E. could only recall two specific incidents of harassment after the Camp. The District asserts that these incidents do not rise to the level necessary to establish a prima facie Title IX claim.
It is true that not all teasing or bullying gives rise to a valid Title IX claim. The Supreme Court has explained:
Davis, 526 U.S. at 651, 119 S.Ct. 1661.
"Whether gender-oriented conduct rises to the level of actionable harassment depends on a constellation of surrounding circumstances, expectation, and relationships, including, but not limited to, the ages of the harasser and the victim and the number of individuals involved." Id. (citations omitted). The Court explained that the "behavior [must] be serious enough to have the systemic effect of
After reviewing cases related to this issue, the District Court for the Eastern District of California summarized:
Roe v. Gustine Unified Sch. Dist., 678 F.Supp.2d 1008, 1028 (E.D. Cal. 2009).
"Although, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an effect" the Supreme Court thought 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." Davis, 526 U.S. at 652-53, 119 S.Ct. 1661.
However, the mere possibility of an interaction with an attacker may be considered sufficiently severe and pervasive harassment. For example, the Roe court quoted at length a decision from the District of Connecticut which explained:
Roe, 678 F. Supp. 2d at 1028 (quoting Doe ex rel. Doe v. Coventry Bd. of Educ., 630 F.Supp.2d 226, 233 (D. Conn. 2009)).
Thus, the mere fact that L.E. continued to see and interact with his attackers at school may be enough to satisfy this element. Regardless, there is more evidence to support a finding that the harassment was so severe, pervasive, and objectively offensive that L.E. was denied equal access to educational opportunities.
Notably, there was more than a single incident of alleged harassment. Although L.E. could not remember many specific incidents, he testified at his deposition that the harassment he experienced at school was upsetting. Dkt. 43-3 at 10. He testified that M.D. frequently made jokes about L.E. being gay. Id. at 33. He also remembers M.D. saying, "You liked it in your ass." Id. At another time, J.W. told L.E. that he was "going to get raped at state," in reference to the state tournament. Id. at 57. While this comment may have simply been a prediction that L.E. would not perform well at the state tournament, the choice of words in light of the earlier attack at Camp is something a reasonable jury may conclude contributed to an environment of severe and pervasive sexual harassment.
Additionally, his father testified that L.E.'s demeanor and behavior changed after the Camp, leading to his ultimate suspension from school. Dkt. 43-2, at 93. A psychologist concluded that L.E.'s "self-reported life-history strongly suggest[s] that he was deeply traumatized by the sexual assault perpetrated in July 2013 and that the assault effectively altered and compromised his life trajectory." Id. at 27. The psychologist diagnosed him with child sexual abuse, post-traumatic stress disorder, major depressive disorder, somatic symptom disorder, and alcohol use disorder. Id. at 26. Given the evidence of the assault's severity and effects, a reasonable jury could conclude that the presence of his attackers and any subsequent harassment created a hostile environment at school so severe, pervasive, and objectively offensive that it deprived L.E. of equal access to an educational opportunity or benefit.
Third, the District must have had actual knowledge of the harassment. See Reese, 208 F.3d at 739. In order for a funding recipient to be subject to Title IX liability, "an official `who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf [must have] actual knowledge of discrimination.'" Id. (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (9th Cir. 2000)). "Although the actual knowledge standard has been applied repeatedly by courts since Gebser v. Lago Vista Indep. Sch. Dist., its contours have yet to be fully defined." Crandell, 87 F.Supp.2d at 320. "[I]t is difficult to define what kind of notice is sufficient." Tesoriero v. Syosset Cent. Sch. Dist., 382 F.Supp.2d 387, 397 (E.D. N.Y. 2005) (citation omitted).
Here, there is no dispute that the only District employee aware of the sexual assault at the Camp was Coach Lawler. There is also no dispute that L.E. never reported the harassment he experienced at school to Coach Lawler, or any other District employee. Thus, the Court first considers whether Coach Lawler was an official who had the authority to address the harassment, and second, whether he had actual knowledge of the harassment.
The Tenth Circuit explained that "deciding who exercises substantial control for the purposes of Title IX liability is necessarily a fact-based inquiry." Murrell v. Sch. Dist. No. 1 of Denver, 186 F.3d 1238, 1247 (10th Cir. 1999). The Court declined "to name job titles that would or would not adequately satisfy this requirement" because school districts assign roles differently. Id. Some courts have found that teachers are appropriate officials when they were able to institute corrective measures. See, e.g., Id. at 1248; J.B. ex rel. Bell v. Mead Sch. Dist. No. 354, 2010 WL 5173164, at *5 (E.D. Wash. 2010). The requirement is simply that the school official is someone with "authority to address the alleged discrimination and to institute corrective measures on the [District's] behalf."
Here, Coach Lawler already said he believed it was his responsibility to respond to and correct the boys' behavior at the Camp. Presumably, once the school year began, Coach Lawler did not lose this ability to address the assault and institute corrective measures to prevent future harassment. After all, he had disciplined students' behavior on other occasions while school was in session. As a result, a reasonable jury could conclude that Coach Lawler had "authority to address the alleged discrimination and to institute corrective measures on the [District's] behalf" and thus was an appropriate official who had actual knowledge of the harassment.
Regardless, the District argues that—even if Coach Lawler had such authority—L.E. never actually reported the harassment he experienced at school to Coach Lawler or anyone else within the District. If that is the harassment he seeks to hold the District liable for, the District contends it must have had actual notice of that harassment—not just the sexual assault that occurred at Camp. Under the circumstances of this case, the Court disagrees.
While the District must have had actual knowledge of some harassment, "actual knowledge of every incident could not possibly be required." See Crandell, 87 F.Supp.2d at 320. Otherwise, a student would have to report each instance of harassment to an appropriate official even when the official was deliberately indifferent to earlier reports. In this case, L.E. reported that M.D. shoved a plunger into
The Crandell Court explained:
Crandell, 87 F.Supp.2d at 320.
As mentioned earlier, in Doe v. Derby Board of Education, the Court held a jury could find the school liable "for the post-assault school situation" even though the reported assault happened off campus and while school was not in session and even though the assaulter did not directly harass the victim again. Doe, 451 F. Supp. 2d at 440, 442, 445. Similarly, in Williams, the Court held that because the University knew of a student's past sexual misconduct before admitting him, the University could be liable under Title IX for his later acts of harassment. Williams, 477 F.3d at 1296.
Likewise, a jury may find that Coach Lawler's actual knowledge of the sexual assault at the Camp was sufficient to give the District adequate notice of subsequent harassment at school. While the District may not have exercised substantial control over the Camp, Coach Lawler's actual knowledge of the sexual assault did not disappear once his contract resumed, and school was back in session. A reasonable jury could find that the District—based upon what Coach Lawler knew—possessed enough knowledge of the harassment when school was back in session that it reasonably could have responded with remedial measures to address the alleged harassment that L.E. was subjected to at school. See Doe A. v. Green, 298 F.Supp.2d 1025, 1034-35 (D. Nev. 2004) ("Clearly, prior complaints made by the same student ... provide[] actual notice, even if the conduct complained of was not identical to the conduct with the plaintiff alleges should have been remedied.").
Fourth, the District is only liable for damages under Title IX where it remained deliberately indifferent to known acts of harassment. See Davis, 526 U.S. at 642-43, 119 S.Ct. 1661.
The District asserts that it was not deliberately indifferent. It argues that upon learning of the attack, Coach Lawler immediately responded to the information he received, talked to the boys involved, and made them apologize. Additionally, once another District employee became aware of the assault two years later, the police and appropriate authorities were notified.
L.E. disagrees with the District's assessment. He states:
Dkt. 43, at 17 (citations omitted).
A school's response is deliberately indifferent where the response is "clearly unreasonable in light of the known circumstances." Davis, 526 U.S. at 648, 119 S.Ct. 1661. In other words, the question is whether the school "made `an official decision... not to remedy the violation.'" Oden v. N. Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 2006) (quoting Gebser, 524 U.S. at 290, 118 S.Ct. 1989) (alteration in original).
"[S]chool administrators are entitled to substantial deference when they calibrate a disciplinary response to student-on-student bullying or harassment." S.B. v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 77 (4th Cir. 2016). "An aggrieved party is not entitled to the precise remedy that he or she would prefer." Oden, 440 F.3d at 1089.
However, if "an institution either fails to act, or acts in a way which could not have reasonably been expected to remedy the violation, then the institution is liable for what amounts to an official decision not to end discrimination." Green, 298 F. Supp. 2d at 1034-35 (citing Gebser, 524 U.S. at 290, 118 S.Ct. 1989).
Other district courts in the Ninth Circuit have recognized that a deliberate indifference inquiry generally does not lend itself well to a determination by the Court on summary judgment. See K. S-A v. Haw., 2018 U.S. Dist. LEXIS 78145, 2018 WL 2144143, at *12 (D. Haw. 2018); Lilah R. ex rel. Elena A. v. Smith, 2011 U.S. Dist. LEXIS 81023, 2011 WL 2976805, at *5 (N.D. Cal. 2011); Green, 298 F. Supp. 2d at 1036. However, the Supreme Court has established that "[i]n an appropriate case, there is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not `clearly unreasonable' as a matter of law." Davis, 526 U.S. at 649, 119 S.Ct. 1661.
However, in this case, a reasonable jury could find that the District's disciplinary response was clearly unreasonable. The whole of the District's disciplinary response was Coach Lawler making the boys apologize. A reasonable jury could find that the apologies were clearly inadequate to remedy what M.D., J.W., and R.R. did to L.E. and that the apologies could not reasonably have been expected to prevent further harassment. Importantly, the District also failed to take any measures to protect L.E. from M.D., J.W., or R.R. once school was back in session. A reasonable jury could find this was deliberately indifferent to what the District (through Coach Lawler) knew happened at the Camp.
Accordingly, because there are genuine disputes regarding material facts in this case, and because a reasonable jury could find that the District violated Title IX by inadequately responding to the assault of
THE COURT HEREBY ORDERS:
