DOE et al v. BIBB COUNTY SCHOOL DISTRICT

Filing 100

ORDER GRANTING 71 Motion for Judgment on the Pleadings, converted to a motion for partial summary judgment. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 1/28/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JANE DOE I, as next friend of
JANE DOE II,
Plaintiffs,
v.
BIBB COUNTY SCHOOL DISTRICT,
Defendant.

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CIVIL ACTION NO. 5:12-CV-468 (MTT)

ORDER
Plaintiffs Jane Doe I, Jane Doe II’s parent and natural guardian, and Jane Doe II
have sued Defendant Bibb County School District for an alleged violation of Title IX.
Though the second amended complaint asserts a single cause of action, the Parties
agree the Plaintiffs are asserting two separate theories of liability: one based on the
Defendant’s conduct before Jane Doe II’s alleged assault and one based on the
Defendant’s conduct after Jane Doe II’s alleged assault. Before the Court is the
Defendant’s motion for partial judgment on the pleadings on the Plaintiffs’ first theory of
liability. (Doc. 71). The Plaintiffs requested the Court to consider materials outside the
pleadings and treat the motion as a motion for partial summary judgment. See Fed. R.
Civ. P. 12(d). The Court has converted the motion to one for partial summary judgment
and given the Parties time to file any additional materials they wish the Court to
consider. See Text Only Entry, December 3, 2014. For the following reasons, the
motion for partial summary judgment is GRANTED.

I.

BACKGROUND

Plaintiff Jane Doe II was a special education student at Northeast High School,
one of the schools in the public school system operated by Defendant Bibb County
School District. (Doc. 44, ¶¶ 11, 14).1 During the relevant time period, Jane Doe II was
a student in Oslynn Brown’s fourth block class. (Doc. 44, ¶ 21). On January 19, 2012,
a male student came to Brown’s fourth block class and told her another teacher needed
to see Jane Doe II. Brown allowed Jane Doe II to leave her classroom with the student.
(Doc. 44, ¶ 22). The student then led Jane Doe II to a boys’ restroom inside the school
where he and at least five other male students raped and sodomized her. (Doc. 44, ¶¶
23-24). These male students were allegedly members of a gang known as MOB, which
stands for “Money over Bitches.” (Doc. 44, ¶ 25). It is undisputed that Jane Doe II was
never sexually assaulted by another Northeast student prior to the January 19 incident
and that the male students involved were never previously accused of sexually
assaulting another Northeast student.
The Plaintiffs’ theory of liability concerning the Defendant’s conduct before Jane
Doe II’s assault is primarily based on two prior incidents of student-on-student sexual
assault and the Defendant’s responses. The first incident occurred in 2002 when a
female student was allegedly raped in a girls’ restroom at Westside High School,
another school in the public school system operated by the Defendant. After Assistant
Principal Lynn Donehoo learned of the alleged assault, she watched surveillance video
to confirm the report and informed the principal and William “Mitch” Mitchell, the Director
1

The facts regarding the alleged assault on Jane Doe II are taken from the Plaintiffs’ second
amended complaint. (Doc. 44). Though the Court has converted the partial motion for
judgment on the pleadings into a partial motion for summary judgment pursuant to Rule 12(d),
the evidence outside the pleadings pertains to the Defendant’s “actual knowledge” of a problem
of student-on-student sexual assault prior to Jane Doe II’s alleged assault.
-2-

of Student Safety. (Docs. 88 at 34:3-24, 36:1-18, 37:10-20, 39:6-13; 96-1, ¶ 7).2 After
Mitchell investigated, the school administrators concluded a female student, B.H.,
stayed after school and agreed to have sex with a male student in the girls’ restroom.
(Doc. 96-1, ¶ 10). B.H. was then sexually assaulted by three or four other male
students in the restroom. (Doc. 96-1, ¶ 10). According to Donehoo, locks were added
to the bathroom doors and the doors across from the gym at Westside a month or two
after the incident. (Doc. 88 at 43:23-44:11). The doors remained locked during and
between classes, but a student could obtain a key from a teacher to use the restroom.
(Doc. 88 at 44:12-17).
The second incident occurred in 2008 when T.B., a female special education
student, was raped in the Practical Assessment Exploration Skills (“PAES”) lab at
Northeast High School. On the day the rape occurred, Ethel Glover, the lead special
education teacher, and Khoriandre Watkins-Ware, T.B.’s special education teacher,
were conducting Individual Education Program (“IEP”) meetings. (Doc. 77-5 at 3-4).3
Glover generally unlocked the PAES lab in the morning because she was under the
impression that doors in the school were to remain unlocked. (Doc. 77-5 at 4).
Assistant Principal Jeffrey Ashley and Assistant Principal Elizabeth Ricks denied there
was a policy against doors being locked. (Doc. 77-5 at 10-11). Because she had not
arranged for supervision of her students during the IEP meeting, Watkins-Ware had her
students go to the PAES lab. (Doc. 77-5 at 6-7). There were no adults in the lab at the
time.
2

All citations to deposition pages correspond to the deposition page numbers, as opposed to
the CM/ECF page numbers.

3

This document is a summary of MaDonna Baker’s interviews following the 2008 incident. The
Defendant has not objected to the Court’s considering it on summary judgment.
-3-

MaDonna Baker, an investigator for the Department of Student Safety,
immediately informed Deputy Superintendent Sylvia McGee of the incident. (Docs. 962, ¶ 13; 81 at 56:24-57:10). McGee directed Baker to follow the normal protocol for a
full investigation and to notify the Macon Police Department. (Docs. 96-2, ¶ 13; 81 at
58:13-22). Both Baker and Director of Student Safety Robert Sumowski participated in
the investigation, though Baker was the lead investigator. Baker submitted reports to
McGee and the School District’s attorney, and Sumowski submitted his notes. (Docs.
96-2, ¶¶ 16-17; 80 at 34:23-36:25).
After these reports were submitted, McGee convened a meeting with Baker,
Sumowski, a School District attorney, a representative of the District Campus Police
Department, a representative of the District’s Human Resources Department, and
Donna Poole, Director of the District’s Program for Exceptional Children. (Docs. 96-2, ¶
18; 80 at 22:18-25, 37:1-6, 78:17-22). They determined Watkins-Ware violated school
policy when she left a classroom unsupervised and unlocked. (Docs. 96-2, ¶ 19; 81 at
59:8-20; 79 at 46:1-16). Watkins-Ware tendered her resignation to the School District
but was later reinstated under certain conditions. (Docs. 96-2, ¶¶ 19, 20; 81 at 61:1422).4
The team of District officials also determined that Glover violated school policy by
failing to report the rape allegation immediately after she learned of it, but her failure did
not hamper the school administration’s ability to respond because the incident was
reported by another source. (Doc. 96-2, ¶ 21). Glover was reprimanded in a memo
4

The Plaintiffs dispute that Watkins-Ware’s resignation was ever effectively accepted by the
District but do not dispute that she tendered her resignation or that she returned to work for the
District subject to certain conditions. (Doc. 99-1). The document cited is a July 9, 2008 letter
from F. Bradford Wilson, Jr., who represented Watkins-Ware at the time, stating their position
that Watkins-Ware’s resignation was not ever officially accepted.
-4-

from McGee and a memo from Poole on which McGee, Principal Sam Scavella, and
Northeast Zone Coordinator Sabrenai Brown were copied. (Docs. 77-7; 77-8). Poole
informed Glover that “failure by [her] to secure substitute teachers for special education
teachers during their IEP meetings will result in further disciplinary action against [her]
and/or [her] termination.” (Doc. 77-8).
After the 2008 incident, Northeast implemented a policy requiring teachers to
monitor the hallways during the first fifteen or twenty minutes of their planning periods.
(Doc. 79 at 37:6-39:8). The Plaintiffs do not dispute this but contend it is immaterial
because of “the absence of evidence that the District continued to require hall
monitoring, including hall passes, at Northeast High School or elsewhere in its system.”
(Doc. 99 at 9-10). Northeast also retained additional campus police officers and
ordered additional radios for faculty and police communication. (Doc. 79 at 37:6-21).
However, the Plaintiffs also contend this is immaterial because of “the absence of
evidence that the District continued to retain additional campus police[ ] or that staff
members were required to use such radios to communicate.” (Doc. 99 at 10).5
In addition to evidence about the two prior assaults, the Plaintiffs have presented
evidence regarding the Defendant’s policies on sexual harassment prior to the alleged
attack on Jane Doe II. Quintin Green, the principal at Northeast during the 2011-2012
school year, testified that teachers’ training regarding sexual harassment consisted of
5

The Plaintiffs submitted an email sent about a week after Jane Doe II’s alleged assault from
Lynn Farmer, a former Board of Education member, to Romain Dallemand, the superintendent
at the time of Jane Doe II’s assault, pertaining to the settlement of T.B.’s lawsuit and inquiring
what “processes and controls for safety” were “put in place at Northeast” since the 2008
incident. (Doc. 77-10). The Defendant admits the Board of Education was aware of the
settlement prior to the 2012 incident but maintains that Farmer’s inquiry is not relevant to the
issues on summary judgment. (Doc. 90-1, ¶ 4). The email does not add any information about
what was done after the 2008 incident. Thus, the Court agrees the email is not relevant to the
issues on summary judgment.
-5-

his reading a District policy to them at the beginning of the school year. (Doc. 82 at
12:16-13:6, 15:19-16:5).6 Brown, Jane Doe II’s teacher, did not receive this training
because she did not start teaching at Northeast until midway through the school year in
January 2012. (Docs. 82 at 23:23-25:21; 83 at 51:23-52:9).
The Plaintiffs have also submitted the affidavits of Dr. Jimmy Stokes, the
Executive Director of the Georgia Association of Educational Leaders, and Dr. Emily
Collins, the Pupil Services Coordinator (Special Education and School Psychology) for
the Chattahoochee-Flint division of the Georgia Regional Education Service Agency.
(Docs. 77-22; 77-23). Both Stokes and Collins give examples of policies they are
familiar with, such as hall passes, which are implemented in Georgia schools. Stokes
goes on to opine on the effectiveness of those policies and what conduct by a teacher
would violate the policies.
II.

OBJECTIONS

The Defendant objects to: (1) evidence of the Defendant’s alleged noncompliance with Department of Education regulations; (2) evidence of the Defendant’s
remedial measures or available policies the Defendant could have used to prevent
student-on-student sexual harassment; and (3) statistical evidence regarding students’
violations of school rules involving certain sex crimes the Defendant reported to the
Georgia Department of Education.

6

The Plaintiffs cite Green’s deposition for the proposition that “Northeast staff members were
trained about sexual harassment issues by listening to Mr. Green read passages from the
school district’s Code of Conduct for Students, which merely defined prohibited sexual
harassment and admonished students from engaging in it.” (Doc. 77 at 10). Actually, according
to Green’s deposition, teachers were read the District policy on sexual harassment and students
were read the Code of Conduct for Students. (Doc. 82 at 15:19-16:5).
-6-

The Court agrees evidence of the Defendant’s alleged noncompliance with
Department of Education regulations is not relevant because such a violation cannot be
a basis for a Title IX claim. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,
291-92 (1998). Therefore, the Court will not consider this evidence on summary
judgment.
The Defendant contends evidence of its policies or policies it could have used to
prevent student sexual harassment is not relevant to the issue of actual knowledge and
would only be relevant to whether it was deliberately indifference. Because the
elements of a Title IX claim are often intertwined, exclusion of all evidence of the
Defendant’s policies or its responses to the 2002 and 2008 incidents is not warranted.
The Defendant also objects to the Stokes and Collins affidavits discussing the
effectiveness of different school policies because (1) their affidavits only go to the
reasonableness of the Defendant’s policies prior to the January 19 incident and thus are
only relevant to the deliberate indifference element, and (2) they are expert opinions by
individuals who were not previously identified as experts. Unlike evidence of how the
Defendant responded to the 2002 and 2008 incidents, which could be relevant to the
Defendant’s actual knowledge, outside opinions about the reasonableness of school
policies and evidence about the policies generally implemented at Georgia schools are
not relevant to the issues on summary judgment. Thus, the Court will not consider the
affidavits in deciding the motion, regardless of whether they are properly characterized
as expert opinions.
Finally, as to the statistical evidence, the Court finds it is not relevant to the
issues on summary judgment. Other than the type of sex crime, the year, and the

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public school system in which it was committed, there is no indication of the
circumstances surrounding the incidents. Generalized knowledge of past harassment is
not sufficient to impose liability under Title IX.7
III.
A.

DISCUSSION

Summary Judgment Standard

Pursuant to Fed. R. Civ. P. 12(d), if matters outside the pleadings are
considered, a Rule 12(b)(6) motion must be treated as a motion for summary judgment
under Rule 56. “[P]arties must be given a reasonable opportunity to present all the
material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).
A court must grant summary judgment “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). A factual dispute is not genuine unless, based on
the evidence presented, “a reasonable jury could return a verdict for the nonmoving
party.” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.
2002); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant may
support its assertion that a fact is undisputed by “citing to particular parts of materials in
the record, including depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).
The burden then shifts to the non-moving party, who must rebut the movant’s
showing “by producing … relevant and admissible evidence beyond the pleadings.”
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The non-moving party
7

See infra pp. 12-18.
-8-

does not satisfy her burden “if the rebuttal evidence is merely colorable, or is not
significantly probative of a disputed fact.” Id. (quoting Anderson, 477 U.S. at 249-50).
Further, where a party fails to address another party’s assertion of fact as required by
Fed. R. Civ. P. 56(c), the Court may consider the fact undisputed for purposes of the
motion. Fed. R. Civ. P. 56(e)(2). However, “credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury functions,
not those of a judge. … The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in [her] favor.” Anderson, 477 U.S. at 255.
B.

Analysis

The Plaintiffs have sued the Defendant for alleged violations of Title IX, which
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). Although Title IX does not expressly authorize a private right of action, the
Supreme Court has held that an implied right of action for money damages exists.
Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 76 (1992); Cannon v. Univ. of
Chicago, 441 U.S. 677, 717 (1979). In certain circumstances, student-on-student
sexual harassment can give rise to Title IX liability. Davis ex rel. LaShonda D. v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999). Such harassment is only
actionable if: (1) the defendant is a federal funding recipient; (2) “an appropriate person
[has] actual knowledge of the discrimination or harassment the plaintiff alleges
occurred”; (3) the defendant is deliberately indifferent to known acts of harassment; and
(4) the discrimination is “so severe, pervasive, and objectively offensive that it effectively

-9-

bars the victim’s access to an educational opportunity or benefit.” Williams v. Bd. of
Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1293 (11th Cir. 2007) (internal quotation
marks and citations omitted). A Title IX violation can be based on deliberate
indifference before an attack that makes a plaintiff more vulnerable to the attack or
deliberate indifference after an attack that causes a plaintiff to endure additional
harassment. Ross v. Corp. of Mercer Univ., 506 F. Supp. 2d 1325, 1346 (M.D. Ga.
2007).
The Defendant has moved for summary judgment8 on the Plaintiffs’ “before”
theory of Title IX liability based on the Plaintiffs’ failure to sufficiently show the
Defendant had actual knowledge of the harassment. The Eleventh Circuit has made
clear that the “actual knowledge” required to hold a federal funding recipient liable need
not be knowledge about prior harassment of the specific Title IX plaintiff, but “the
substance of the actual notice must be sufficient to alert the school official of the
possibility of the Title IX plaintiff’s harassment.” Doe v. Sch. Bd. of Broward Cnty., Fla.,
604 F.3d 1248, 1254, 1257 (11th Cir. 2010). Applying this principle, the court has found
that a defendant’s knowledge of certain conduct by the same perpetrator, but involving
victims other than the Title IX plaintiff, can be sufficient. In Williams, the court found
actual knowledge sufficient to impose Title IX liability for a student’s rape that occurred
in a UGA basketball player’s dorm room based on UGA officials’ recruitment of the
basketball player when they allegedly knew about his history of past sexual harassment
at other colleges and even though that past misconduct was not as serious as the
plaintiff’s assault. 477 F.3d at 1288-90, 1294.
8

As discussed above, the Defendant actually moved for partial judgment on the pleadings, but
the Court is treating their motion as a motion for partial summary judgment.
-10-

In School Board of Broward County, the court applied the same logic in a
teacher-on-student harassment case and found sufficient actual knowledge based on
two prior complaints made by other students about less severe harassment by the same
teacher. 604 F.3d at 1257-59. The court did note that “some prior allegations of
harassment may be sufficiently minimal and far afield from the conduct underlying the
plaintiff’s Title IX claim that they would not alert a school district official of the risk of a
Title IX plaintiff’s sexual harassment.” Id. at 1258. However, the focus in both of these
cases was whether knowledge of prior misconduct or allegations of misconduct was
sufficient to alert the defendants that the same perpetrator posed a risk of sexual
harassment to students. The court did not address whether actual knowledge can be
found when the substance of the defendant’s knowledge does not involve either the
same victim or the same perpetrator.
It is apparent that “the precise boundaries of … ‘actual knowledge’ … remain
undefined.” Ross, 506 F. Supp. 2d at 1348. Courts have generally described the
substance of the “actual knowledge” required to impose Title IX liability as knowledge of
a substantial risk of abuse to students. See, e.g., Escue v. N. Okla. Coll., 450 F.3d
1146, 1154 (10th Cir. 2006); Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648,
659 (5th Cir. 1997); Carabello v. New York City Dep’t of Educ., 928 F. Supp. 2d 627,
638 (E.D.N.Y. 2013); Doe A. v. Green, 298 F. Supp. 2d 1025, 1033 (D. Nev. 2004);
Johnson v. Galen Health Insts., Inc., 267 F. Supp. 2d 679, 688 (W.D. Ky. 2003). A
more precise inquiry that several district courts have employed is “whether the
appropriate official possessed enough knowledge of the harassment that he or she
reasonably could have responded with remedial measures to address the kind of

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harassment upon which [the] plaintiff’s legal claim is based.” Roe ex rel. Callahan v.
Gustine Unified Sch. Dist., 678 F. Supp. 2d 1008, 1030 (E.D. Cal. 2009); see also
Lopez v. Metro. Gov’t of Nashville and Davidson Cnty., 646 F. Supp. 2d 891, 915 (M.D.
Tenn. 2009); Green, 298 F. Supp. 2d at 1033 n.2; Crandall v. New York Coll. of
Osteopathic Med., 87 F. Supp. 2d 304, 320 (S.D.N.Y. 2000).
Acknowledging this lack of definition, the Plaintiffs argue their “allegations and
evidence of student-on-student harassment meet the broadly worded element
formulations of both the Supreme Court and the Eleventh Circuit.”9 (Doc. 77 at 26).
Courts that have considered a similar theory of liability the Plaintiffs posit in this case—
actual knowledge based on previous sexual harassment of different victims by
perpetrators with no known history of misconduct—have rejected it. See Doe v.
Blackburn Coll., 2012 WL 640046, at *10 (C.D. Ill.) (“Before Plaintiff was assaulted,
Blackburn had notice of two prior sexual assaults against students in 2004, but the
attackers in both those assaults had been identified. Not until after Plaintiff’s assault did
Blackburn learn of the prior assault of another student by an unknown assailant. Given
these facts, the Court concludes that Blackburn had no actual knowledge of any
substantial risk of sexual assault to Plaintiff.”); Schaefer v. Las Cruces Pub. Sch. Dist.,
716 F. Supp. 2d 1052, 1081 (D.N.M. 2010) (“The Defendants had actual knowledge of
three prior incidents of sexual assault by different assailants against different victims,
but the most that can be said about the sexual assault to which AS was a victim—the
only assault for which the Schaefers seek a remedy—is that the Defendants were put

9

The Plaintiffs also cite the Department of Education Office for Civil Rights’ Title IX Guidance
(“OCR Guidance”), published at 62 Fed. Reg. 12034. But the portions of the OCR Guidance to
which the Plaintiffs point deal with the “severe, pervasive” element of a Title IX claim, an
element not at issue in the present motion.
-12-

on notice that it was a possibility.”); T.Z. v. City of New York, 635 F. Supp. 2d 152, 170
(E.D.N.Y.) (“The school cannot be held liable to plaintiff under Title IX for the assault
against C.G. under a theory that it knew of past assaults, given that the school's
knowledge was generalized, and there was no specific threat posed to C.G. or posed by
her assailants.”), rev’d in part on reconsideration, 634 F. Supp. 2d 263 (E.D.N.Y.
2009).10
The only cases the Court has found allowing Title IX claims to go forward when
the past harassment did not involve the plaintiff or perpetrators with a known history of
misconduct are Mathis v. Wayne County Board of Education11 and Simpson v.
University of Colorado Boulder.12 In Mathis, the plaintiffs were mothers suing on behalf
of their sons who were seventh grade basketball players sexually harassed by eighth
grade team members in the school locker room. There was evidence of prior similar
incidents of harassment of younger team members in the locker room, and the court
found a genuine issue of fact as to whether the coach knew about the prior harassment.
782 F. Supp. 2d at 545-46, 550-51. Thus, both the victims and the perpetrators in
Mathis were members of specific groups of students that had previously been involved
in similar instances of assault, and there was a genuine issue of fact on whether an
official knew about the prior incidents.
10

The court in T.Z. found a genuine issue of fact on whether the defendant had actual
knowledge of the plaintiff’s harassment, but the court found prior incidents of sexual harassment
at the school insufficient for the actual knowledge element. Summary judgment was initially
granted in favor of the defendant because the court determined the plaintiff failed to meet other
elements of her Title IX claim. On reconsideration, the court determined there was a genuine
issue of fact on those other elements and thus denied summary judgment. However, the court
did not revisit its previous findings on actual knowledge.

11

782 F. Supp. 2d 542 (M.D. Tenn. 2011).

12

500 F.3d 1170 (10th Cir. 2007).
-13-

In Simpson, the plaintiffs were sexually assaulted by football players and recruits
of the University of Colorado at Boulder. The Tenth Circuit held there was sufficient
evidence for the plaintiffs’ Title IX claims to survive summary judgment based on the
University’s maintaining an unsupervised recruiting program for high school students,
the coach’s knowledge of previous sexual assaults that had occurred during the
program, and his “general knowledge of the serious risk of sexual harassment and
assault during college-football recruiting efforts.” 500 F.3d at 1184-85. The Tenth
Circuit based its analysis not on the framework for Title IX harassment claims outlined
by the Supreme Court in Davis and Gebser,13 but on an alternative formulation similar to
that used to hold a municipality liable for constitutional violations under 42 U.S.C.
§ 1983. Id. at 1177-78. (“Here, … the gist of the complaint is that CU sanctioned,
supported, even funded, a program (showing recruits a ‘good time’) that, without proper
control, would encourage young men to engage in opprobrious acts. We do not think
that the notice standards established for sexual-harassment claims in Gebser and Davis
necessarily apply in this circumstance.”).
In departing from the typical framework, the court noted that the Supreme Court
in Gebser specified its requirements apply to “‘cases … that do not involve official policy
of the [school district].’” Id. at 1177 (quoting Gebser, 524 U.S. at 290) (alteration by
Tenth Circuit). In contrast, the court found that:
[A] funding recipient can be said to have intentionally acted in clear
violation of Title IX when the violation is caused by official policy, which
may be a policy of deliberate indifference to providing adequate training or
13

In this case, the Supreme Court held that a private right of action under Title IX for teacheron-student harassment exists if the federal funding recipient has actual knowledge of the
discrimination and fails to adequately respond (i.e., is deliberately indifferent to it). 524 U.S. at
290.
-14-

guidance that is obviously necessary for implementation of a specific
program or policy of the recipient.
Id. at 1178 (internal quotation marks and citation omitted).14
Given the Mathis and Simpson decisions, as well as the imprecise formulation of
what constitutes actual knowledge, the Court does not foreclose the possibility of Title
IX liability based on a defendant’s knowledge of prior harassment of victims other than
the plaintiff by different perpetrators. At the same time, actual knowledge has to mean
something. The theory of liability the Plaintiffs posit is more akin to a constructive notice
or negligence standard. Because the Defendant knew of two past instances of sexual
harassment involving different students, different scenarios, and, in one case, different
schools within its system, it should have anticipated the attack on Jane Doe II. While
14

The Plaintiffs also appear to argue for Title IX liability based on a failure-to-train theory and
have supplemented their briefing by pointing to a recent case from the Northern District of
Georgia, D.H. ex rel Dawson v Clayton County School District, 2014 WL 5088111 (N.D. Ga.)
(discussing § 1983 failure-to-train claim in context of unconstitutional strip searches by
employees at public school). It is true that the Supreme Court cited its § 1983 municipal liability
precedent in holding that a funding recipient’s conduct must rise to the level of deliberate
indifference before it can be held liable for acts of either teacher-on-student or student-onstudent sexual harassment and that the Tenth Circuit used a failure-to-train framework in
Simpson. However, the Court is not persuaded failure-to-train precedent is perfectly analogous
in this context. A municipality may be held liable under § 1983 on a failure-to-train theory where
it is on actual or constructive notice “that a particular omission in [its] training program causes
city employees to violate citizens’ constitutional rights” and, in the face of this knowledge,
retains the same training program. Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011). In
contrast, the Supreme Court has clearly held that actual knowledge is required before Title IX
liability can be imposed on a funding recipient for sexual harassment. Davis, 526 U.S. at 650;
Gebser, 524 U.S. at 290. Thus, there may be cases where a municipality would be held liable
under § 1983, but a funding recipient faced with analogous incidents of abuse would not be held
liable under Title IX absent actual knowledge. Even assuming the validity of this theory, the
Plaintiffs have not created a genuine issue of fact that such training was obviously necessary as
the Tenth Circuit found it was in Simpson. “Without notice that a course of training is deficient in
a particular respect, decisionmakers can hardly be said to have deliberately chosen a training
program that will cause violations of … rights.” Connick, 131 S. Ct. at 1360. In Connick, the
Supreme Court held past Brady violations that were dissimilar to the one at issue could not have
put officials on notice that “specific training was necessary to avoid this constitutional violation.”
Id. Likewise, the circumstances where unsupervised students sexually assaulted other students
in 2002 and 2008 were not sufficiently similar to alert the Defendant that specific training of its
employees was necessary.
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this may be a good argument in a state law tort case, it has no place yet in the Title IX
context.
In support of their position, the Plaintiffs cite Ross v. Corp. of Mercer University, a
case from this district. 506 F. Supp. 2d 1325 (M.D. Ga. 2007) (Lawson, J.). A female
student who was raped by another student sued Mercer under Title IX. The court found
that Mercer officials had actual knowledge of six past incidents of sexual assault on
Mercer’s campus. Id. at 1352-53. However, the court ultimately concluded that Mercer
officials were not deliberately indifferent to the prior harassment. Id. at 1355-56. The
Court is not persuaded that Ross stands for the broad proposition that “actual
knowledge of a significant risk of abuse” can be garnered from prior sexual assaults
with no discernable connection to the plaintiff’s assault other than their location on the
same campus (or, in the present case, within the same school district). The most that
can be said is that even if the prior incidents of harassment in Ross were sufficient to
impart the requisite knowledge on the defendant, the defendant was not deliberately
indifferent.15
The Plaintiffs attempt to frame their theory as “a long-standing, severely hostile
sexual environment – completely unaddressed despite Defendant’s own diagnosis of
the source of the problem – [which] poses an ongoing threat to students other than
those previously injured.” (Doc. 77 at 26). But the Plaintiffs have not presented
evidence of a “long-standing, severely hostile sexual environment.” Even if the Court
were to consider the statistical evidence of past instances of sexual assault at the

15

The court in Ross even acknowledges that its actual knowledge determination with regard to
one of the prior assaults is “inconsequential” in light of its finding the defendant was not
deliberately indifferent. Ross, 506 F. Supp. 2d at 1353 n.45.
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Defendant’s schools, the Plaintiffs have presented no corresponding evidence to allow
meaningful interpretation of the statistics. As the Defendant points out, the Plaintiffs
have presented no statistical analysis from which the Court could draw any conclusion.
While the Court does not attempt to define how similar past instances of sexual
harassment involving different victims and perpetrators must be for a defendant to be
said to have actual knowledge of the type of harassment on which a plaintiff’s claim is
based, the instances in the present case are plainly insufficient. In the absence of a
common perpetrator (or a victim of ongoing harassment), there must be another
similarity to alert a defendant of a substantial risk of harassment to other students.
There is no indication the 2002 and 2008 incidents were the result of a similar
systemic failure that also contributed to Jane Doe II’s assault, which might have alerted
the Defendant to a substantial risk of the same type of harassment. Had the 2002 and
2008 incidents involved the same gang as Jane Doe II’s assault or involved students
being released to other students without verification, there might be a genuine issue on
the Defendant’s actual knowledge. However, the Plaintiffs’ characterization of the 2002
incident, 2008 incident, and Jane Doe II’s alleged assault as resulting from “failure to
maintain adult supervision in rooms accessible to students” misses the mark. Surely
every student-on-student sexual assault results in part from a lack of adult supervision.
As discussed above, general knowledge that student-on-student sexual assault may
occur in the school setting is insufficient for Title IX liability. As it stands, the Plaintiffs
have failed to create a genuine issue of fact on the Defendant’s actual knowledge for
their “before” theory of Title IX liability, and the Defendant is entitled to judgment as a
matter of law.

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IV.

CONCLUSION

For the foregoing reasons, the Defendant’s motion for partial judgment on the
pleadings, converted to a motion for partial summary judgment, is GRANTED.
SO ORDERED, this 28th day of January, 2015.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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