DOE et al v. BIBB COUNTY SCHOOL DISTRICT

Filing 104

ORDER DENYING 102 Motion for Reconsideration. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 2/24/2015. (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
The Plaintiffs have moved the Court to reconsider its order granting the
Defendant’s motion for partial summary judgment. (Doc. 102). Pursuant to Local Rule
7.6, “Motions for Reconsideration shall not be filed as a matter of routine practice.”
M.D. Ga. L.R. 7.6. “Reconsideration is appropriate only if the movant demonstrates (1)
that there has been an intervening change in the law, (2) that new evidence has been
discovered which was not previously available to the parties in the exercise of due
diligence, or (3) that the court made a clear error of law.” Bingham v. Nelson, 2010 WL
339806, at *1 (M.D. Ga.) (internal quotation marks and citation omitted). “In order to
demonstrate clear error, the party moving for reconsideration must do more than simply
restate his prior arguments, and any arguments which the party inadvertently failed to
raise earlier are deemed waived.” McCoy v. Macon Water Auth., 966 F. Supp. 1209,
1223 (M.D. Ga. 1997).
In the order granting the Defendant’s motion, the Court ruled that the Plaintiffs
could not advance a theory of liability based on conduct occurring before the alleged

assault on Jane Doe II. Specifically, the Court ruled that the Plaintiffs could not rely on
two prior incidents of student-on-student sexual assault to prove the Defendant’s liability
for Jane Doe II’s assault. The prior incidents, one of which occurred in 2002 and the
other in 2008, involved different victims and different perpetrators. In its order, the
Court noted that it had found only two cases allowing plaintiffs to base liability on prior
incidents of harassment that did not involve the same victim or the same perpetrator.
For the reasons discussed in that order, neither case supported the Plaintiffs’ theory of
liability based on the 2002 and 2008 incidents. Nevertheless, the Court observed that it
could 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.” (Doc.
100 at 15).
In their motion for reconsideration, the Plaintiffs seize upon this observation and
what the Plaintiffs believe to be a misapplication of summary judgment principles1 and
ask the Court to take Title IX jurisprudence far beyond its current boundaries.
Effectively acknowledging that the 2002 prior incident is clearly insufficiently similar to
Jane Doe II’s assault, the Plaintiffs point to some factual similarities between the 2008
assault and Jane Doe II’s assault and argue that a jury should decide whether the two
events are sufficiently similar to satisfy Title IX’s actual knowledge requirement.2
It is true that the Court looked at the alleged factual similarities between the 2008
assault and Jane Doe II’s assault and concluded that they were not sufficiently similar to
1

The Court acknowledges that federal courts sometimes take an overly expansive view of cases that can
properly be resolved by summary judgment. See Tolan v. Cotton, 134 S. Ct. 1861 (2014).

2

Specifically, with regard to Title IX claims based on harassment occurring before Jane Doe II’s
harassment, “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 (11th Cir. 2010). School Board of Broward County involved prior complaints made by other victims
of harassment by the same teacher who allegedly assaulted the plaintiff.
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satisfy the actual knowledge requirement. It is also true that the Court, having strayed
far beyond the boundaries of Title IX liability recognized by the Eleventh Circuit, could
have held that the Plaintiffs could not at all base Title IX liability on prior incidents
involving different victims and different perpetrators. Nevertheless, recognizing that the
precise boundaries of what may constitute actual knowledge remain undefined, the
Court examined the alleged factual similarities between the 2008 incident and Jane Doe
II’s assault and concluded that they were clearly insufficient to get the Plaintiffs where
they wanted to be. The Court stands by that conclusion.
Regarding the Plaintiffs’ argument that the Court erred in excluding evidence of
sex crimes the Defendant reported to the Georgia Department of Education, the
Plaintiffs do not contest that there is no evidence in the record of the factual
circumstances of any prior incidents other than the 2002 and 2008 incidents the Court
has already considered. The point the Court was making in discussing the lack of
statistical interpretation was that even assuming the number of sex crimes reported by
the Defendant in comparison to those reported by other school districts could somehow
show its actual knowledge of a substantial risk of abuse to other students, there was no
analysis to show the number of incidents reported by the Defendant was statistically
significant.
Finally, the Plaintiffs argue the Court erred in excluding “evidence of feasible,
customary precautions used by neighboring Georgia school districts.” The Plaintiffs
base their argument on the test used by district courts outside this circuit that the Court
quoted in its order: “whether the appropriate official possessed enough knowledge of
the harassment that he or she reasonably could have responded with remedial

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measures to address the kind of harassment upon which [the] plaintiff’s legal claim is
based.” (Doc. 100 at 11-12). The key point is the harassment must be of the same kind
so that the same remedial measures would address both the past harassment and the
plaintiff’s harassment. The Court has already found it is not.
For the foregoing reasons, the Plaintiffs’ motion for reconsideration (Doc. 102) is
DENIED.
SO ORDERED, this 24th day of February, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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