DAVIS et al v. CARMEL CLAY SCHOOLS
ORDER denying 125 Plaintiffs' Motion for Sanctions Regarding Spoliation of Evidence and granting 132 Defendant's Motion for Partial Summary Judgment. Plaintiffs' federal claims are dismissed. The Court will exercise its supplemental jurisdiction over Plaintiffs' remaining claims brought under Indiana law, and the case will proceed accordingly. Signed by Judge Sarah Evans Barker on 9/30/2013. (PGS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
RICKEY L. DAVIS,
SHERONDA DAVIS next best friends of
CARMEL CLAY SCHOOLS,
ORDER ON PENDING MOTIONS
This cause is before the court on Plaintiffs’ Motion for Sanctions Regarding
Spoliation of Evidence [Docket No. 125], filed on December 5, 2012, and Defendant’s
Motion for Partial Summary Judgment [Docket No. 132], filed on December 7, 2012.
Plaintiffs, Rickey Davis and Sheronda Davis, Next Best Friends of M.D., bring this case
against Defendant Carmel Clay Schools (“the School”), pursuant to Title IX of the
Education Amendments Act of 1972 and 42 U.S.C. § 1983, alleging that M.D. was
subjected to unlawful peer-on-peer harassment that violated his substantive due process
and equal protection rights and that the School failed to properly train its officials in
recognizing and responding to sexual assault and harassment.1 For the reasons detailed
Plaintiffs also allege various state law negligence claims. However, the School has
moved for summary judgment only on Plaintiffs’ claims brought pursuant to federal law.
Accordingly, we do not address the merits of Plaintiffs’ state law claims further.
below, we DENY Plaintiffs’ Motion for Sanctions and GRANT Defendant’s Motion for
Partial Summary Judgment.
Facts Related to Defendant’s Summary Judgment Motion
In the fall of 2009, M.D. was a freshman at Carmel High School (“CHS”) and
acted as the manager of the freshman boys’ basketball team. His grades prevented him
from making the team in 2009, but the freshman basketball coach, Justin Blanding,
agreed to help M.D. with his studies by overseeing his academic performance and
assisting him with his assignments. Despite not being officially a team member, M.D.
was encouraged to spend time around the team, and thus Jacob Sutton, the student
manager of the varsity basketball team, assigned M.D. a locker in the basketball locker
room. M.D. would change into his basketball clothes in the locker room before practices
where he used his assigned locker to store his basketball clothes.
Locker Room Harassment
M.D. alleges that from November 2009 through January 2010, he was consistently
harassed in the basketball locker room before and after practice by four senior basketball
players: Robert Kitzinger, Scott Laskowski, Brandon Hoge, and Oscar Falodun. These
four seniors allegedly “flashed” M.D., taunted him with sexual innuendos, grabbed his
genitals, and “gooched” him, a term used to describe anal penetration by another person’s
fingers, either over a layer of clothes or with skin-to-skin contact. According to M.D.,
the “gooching” occurred on at least two or three occasions and the other harassment
occurred almost daily during that time period. Although he is not gay, M.D. believes the
four seniors could have perceived him to be homosexual based on his habits and
proclivities, but that he is “not necessarily sure.” Id. at 30.
M.D. testified that the first “gooching” incident occurred after he told the
basketball team that he had engaged in sexual intercourse with a girl in the varsity locker
room shower. According to M.D., the assault lasted approximately five minutes and
involved his being dragged to the shower, the perpetrators making an attempt to force his
pants down, and finally being successively “gooched” through his clothes by all four
seniors. M.D. screamed “stop,” but no one came to his aid. During the assault, M.D. told
the perpetrators that what they were doing “was gay,” and one of them replied, “it’s not
gay unless you cum.” M.D. Dep. at 96. M.D. alleges that during the second “gooching,”
Falodun came up behind him in the locker room and Falodun put his fingers up M.D.’s
buttocks, anally penetrating him, stating “it wasn’t gay unless you cum.” Id. at 104. On
another occasion, Falodun pushed M.D. up against the wall, put him over a trash can, and
began simulating sex. M.D. testified that because he was “gooched” both over and under
his clothes he began to wear two pairs of gym shorts daily in an attempt to protect
The Bus Incident
On Friday night, January 22, 2010, M.D. traveled on a school bus to Terre Haute,
Indiana, with the freshman, junior varsity, and varsity basketball teams for a game against
Terre Haute South. After a stop for dinner, seniors Laskowski, Hoge, and Kitzinger
boarded the bus and proceeded to sit in the back. M.D. sat near the front of the bus,
approximately a row or two behind where the coaches were sitting. From that location,
M.D. could not hear what was going on in the back of the bus. At some point, however,
M.D. alleges that he heard the three seniors calling his name, and, because he was afraid
of what would happen if he did not see what they wanted, he went to the back of the bus.
The three seniors then grabbed M.D., pulling him into one of the seats, and one of them
sat on his face. The perpetrators tried to remove his shoes and socks and pull down his
pants. They succeeded at pulling down one pair of shorts, but M.D. was wearing two
pairs. Hoge then stuck his fingers into M.D.’s lower buttocks over the shorts. M.D. was
then pulled to the ground at which point he alleges he was anally penetrated. M.D.
contends that he tried to return to the front of the bus but that other freshmen players
were blocking him with their legs. According to M.D., when he tried to call out for help,
the three seniors covered his mouth while the other players simply watched. When M.D.
was finally released by the seniors, he returned to the front of the bus. The three boys’
basketball coaches, including Coach Blanding, were sitting in the front of the bus
throughout the assault. Coach Blanding testified that he did not hear or see anything
during the bus ride that alerted him to any occurrence of physical or sexual abuse or any
other form of hazing.
Disclosure of the Incidents of Harassment and Sexual Assault
At some point in February 2010 – after the bus incident occurred but before
School officials were informed of the incident – M.D. alleges that he was in Coach
Blanding’s office with some of the other players, including Falodun. In Coach
Blanding’s presence, Falodun asked M.D. if he (M.D.) needed “Lubriderm.” Coach
Blanding allegedly questioned M.D. about the comment and M.D. told Blanding that he
had been sexually assaulted on the school bus on the way home from Terre Haute, and
also that he had been harassed on numerous occasions in the boys’ locker room. 2 M.D.
contends that Coach Blanding asked why he did not say anything earlier, and M.D.
replied that he thought Blanding already knew. Plaintiffs allege that Coach Blanding
apparently took no action in response to M.D.’s report of harassment. Coach Blanding
denies that this conversation ever took place, contending that he had no knowledge either
of the incident on the bus or the prior harassment until February 16, 2010, the date on
which School officials were first notified.
Junior varsity boys’ basketball coach Chris Vandenberg also denies that he was
made aware by M.D. or any other student of “hazing or bullying or fighting or
inappropriate sexual contact.” Vandenberg Dep. at 30. Coach Vandenburg testified that,
Plaintiffs allege this conversation occurred on February 8, 2010. However, the School
contends that it is unclear the exact date on which the conversation occurred because M.D.
provided no date for the conversation in his deposition and the Notice of Tort Claim states only
that the conversation occurred during the week of February 8, 2010. Coach Blanding denies that
the conversation with M.D. took place at all and claims that he had no knowledge of M.D.’s
assault allegations or of the incident on the bus before February 16, 2010, the date on which the
School’s administrators first learned of the allegations. Blanding Aff. ¶ 12.
prior to the Terre Haute bus trip, he had heard of an issue between Kitzinger and another
player (not M.D.). According to Coach Vandenberg, he asked the student what happened
and the student responded that he and Kitzinger “got into some kind of … altercation I
guess you would call it.” Id. at 40. Coach Vandenberg testified that he asked the student
further about the incident, but the student assured him that “it was no problem.” Id.
Based on the student’s assurances, Coach Vandenberg did not report this conversation or
take any further action.3
M.D. testified that he had “tried” to tell his physical education teacher, Lisa Ruxer,
and the acting assistant principal for discipline, Kevin Gallman, about the harassment to
which he had been subjected in the boys’ locker room, but that ultimately he did not
disclose to them what had occurred. According to M.D.’s testimony, “The entire team
was aware, but none of the teachers knew about it.” M.D. Dep. at 91. Eventually, the
School learned of the harassment as well as the Terre Haute bus incident not from M.D.,
but from the mother of another student. On February 16, 2010, around 11:00 a.m., a
nurse at the School received a telephone call in which a parent alleged that on January 22,
2010, M.D. was sexually assaulted on the school bus while returning from the Terre
Haute South basketball game. School administrators were immediately informed of the
report and began investigating the allegations. Superintendent Jeffrey Swensson testified
Plaintiffs allege that School officials did in fact have knowledge prior to February 2010
that incidents of hazing and harassment perpetrated by members of the boys’ basketball team had
occurred, both to M.D. and other students. However, Plaintiffs rely on unsworn statements
and/or inadmissible hearsay to support this contention, which do not satisfy the requirements of
Federal Rule of Civil Procedure 56(e) that summary judgment materials “be made upon personal
knowledge, [and] shall set forth such facts as would be admissible in evidence ….”
that he learned of the incident from CHS principal John Williams during a break in a
meeting on February 16, 2010, that had begun at 9:00 a.m. However, it is unclear from
the record the exact time of their conversation. Once notified, School officials informed
their resource officer, Phil Hobson, of the report and also notified the Carmel Police
Department who began an investigation by questioning students. The investigation was
ongoing through March 2010. On the same day that M.D. first made his allegations
public about the three seniors involved in the Terre Haute bus incident, those three
students each received out-of-school suspensions for five days and were ultimately
M.D.’s Disciplinary and Academic Record
During his seven semesters as a student in the Carmel Clay School system, M.D.
had accumulated forty-eight separate disciplinary referrals. From November 2009
through January 2010, the time period during which the harassment is alleged to have
occurred, M.D. had a total of five disciplinary referrals, four for attendance related issues
and one for a “failure to comply.” Dillon Aff. Exh. A. Prior to November 2009, M.D.
was disciplined for offenses such as disruptive behavior, harassment and threats, theft,
fighting, and providing false information. Id. In his only full semester at CHS, which
ended in December 2009, M.D.’s letter grades included a B+, a B, two Cs, a D, a D-, and
two Fs, which resulted in a grade point average of 1.26. Id. The year before, as an eighth
grader, M.D. had earned all Fs in his first quarter; three Fs, a D-, and a C+ in his second
quarter; all Fs in the third quarter; and an A, a D, a D-, and two Fs in his final quarter. Id.
M.D.’s parents testified that they first noticed around the time basketball season
started in 2009 that M.D. had become quiet, easily irritated, and disrespectful to them.
They had no knowledge of any of the incidents of harassment M.D. had experienced until
the issue was brought to light by another school parent on February 16, 2010. According
to Plaintiffs, after being informed by CHS administrators that the students involved in the
harassment would be re-enrolled three days later, M.D.’s father decided to withdraw
M.D. from CHS.
On March 8, 2010, M.D. transferred out of the Carmel Clay School District and
enrolled at Charles A. Tindley Accelerated High School (“Tindley”) in Indianapolis,
Indiana. According to M.D.’s mother, because of M.D.’s low grades and his
questionable status at CHS, Tindley was the only school that would admit him. Tindley
is an accelerated school, which means that tenth grade class work is done in ninth grade.
Upon entrance, after taking a placement examination, M.D. was held back one grade
level, and thus was enrolled as an eighth grader. While he attended Tindley, M.D.
struggled both with his academics as well as controlling his verbal outbursts toward
teachers. M.D. attended Tindley for approximately four or five months, including
participating in the school’s summer sessions to try to complete his freshman year of
studies. Despite these efforts, M.D. was still considered a second-year freshman for the
2010-2011 school year.
Before school began, Tindley’s Dean of Students decided that to hold M.D. back
another year would be a harsh punishment. Instead he recommended M.D.’s transfer to
Herron High School where he would enroll as a freshman. In August 2010, M.D.
transferred to Herron High School in downtown Indianapolis. Because of his low grade
point average, Herron was the only high school that would accept M.D.’s transfer at that
time. In the fall of 2012, M.D. again transferred schools, this time to Horizon Christian,
in order to be closer to his residence in Carmel, Indiana. According to M.D., these
transfers have caused him emotional, psychological, and social inconsistencies that have
made it difficult for him to trust people and to have normal social interactions and
friendships. M.D. is currently undergoing counseling to deal with these difficulties.
Facts Related to Plaintiff’s Motion for Sanctions
The bus utilized by the School on January 22, 2010 to transport the boys’
basketball teams to the game against Terre Haute South had video cameras installed both
at the front and in the middle of the passenger areas, which recorded video footage
whenever the bus was in use. During the time period relevant to the events at issue in
this litigation, the School did not maintain records identifying the individuals who
requested that the hard drives located on the buses be removed nor did it keep logs of
who handled and/or viewed the hard drives once they were removed. However,
according to Rollin Farrand, the Director of Transportation and Facilities of the School,
the school bus computer hard drives were removed only upon the request of an
administrator, and such requests generally would be made in response to specific
precipitating events, such as a complaint or other incident. Video footage from a
particular bus upon request would be uploaded to the School’s servers and the requesting
administrator would be informed that the video was available to be reviewed. After a
requested video was uploaded, the removed hard drive was stored unlocked in the
Transportation Building, essentially serving as a “spare” hard drive until it was needed in
The school bus on which M.D.’s alleged assault occurred was identified by School
officials as Bus #50. It is undisputed that, on February 10, 2010, the hard drive from the
camera installed near the middle of Bus #50 was removed. As previously noted, because
the School did not keep records at that time, the identity of the administrator who made
the request along with an indication of the reason for the request on that date is
unknown.4 There is also no record of which portions of the video footage were uploaded
to the School’s server after that hard drive was removed from Bus #50 or whether the
entire hard drive was uploaded. Based upon the disc size of the hard drive,
approximately twenty school days of video footage could be stored before overwriting of
data would have been necessary. Thus, for example, when the hard drive was removed
from Bus #50 on February 10, 2012, it would have contained video files dating back to
January 13, 2010. Accordingly, the footage from the January 22, 2013 assault would
have been intact on the hard drive at that point.
Plaintiffs’ position is that the hard drive was removed in response to M.D.’s report to Coach
Blanding (which Plaintiffs contend occurred on February 8, 2010) about the locker room harassment and
assault on the bus. The School contends that the hard drive had to have been removed on February 10,
2010 for a reason other than to investigate M.D.’s allegations because it maintains that no School officials
were aware of his allegations until February 16, 2010.
After learning on February 16, 2010 of the allegations surrounding the incident
that occurred on Bus #50, school officials requested that the hard drive from the bus be
pulled for viewing. As noted above, Bus #50’s hard drive from the camera installed in
the middle of the bus had already been removed for viewing on February 10th for an
undetermined reason. According to Plaintiffs’ computer expert, Rebecca Hendricks, the
hard drive was re-accessed on February 22, 2010, at 8:04 a.m., and, according to
Plaintiffs, was reinserted into a different bus (Bus #29) that same day by an unknown
employee of the School.5 As a result of the manner in which the computer system
functioned, once the hard drive from Bus #50 was inserted in Bus #29, all of the video
files then stored on the hard drive would be automatically deleted, and, as new video was
recorded, the individual deleted files began to be overwritten.
Also on February 22, 2010, the School’s Resource Officer, Sergeant Phil Hobson,
Principal John Williams, Athletic Director John Inskeep, Detective Greg Dawson, and
Evidence Technician Scott Pilkinton met in an effort to coordinate the Carmel Police
Department’s investigation with the administrative investigation of the reported incidents.
The next day, on February 23, 2010, the Carmel City Attorney issued a statement to the
media noting that a “video may not even exist.” Exh. 13. Two days later, on February
25, 2010, the hard drive that had originally been installed in Bus #50 was removed from
Bus #29 by Mr. Farrand and his employee, and was stored in an unlocked cabinet in Mr.
According to the Mr. Farrand’s testimony, only he, the garage staff, and the mechanics
had access to the cylindrical keys that were needed to remove and/or insert a hard drive into a
bus. Administrators at the School could ask any of the individuals with cylindrical keys to
remove or insert a bus hard drive. Throughout the time period relevant to this litigation, no
records of such requests were kept.
Farrand’s office in the Transportation Department until March 3, 2010, when it was
turned over upon request to the Fishers Police Department.
The entirety of the video footage from the camera that was installed at the front of
Bus #50 was recoverable. However, the Fishers Police Department was unable to
recover the entirety of the video footage that would have, arguably, depicted the January
22, 2010 assault from the hard drive of the camera located near the middle of Bus #50.
Plaintiffs’ expert, Ms. Hendricks, also accessed the hard drive in an attempt to recover
the overwritten files, but was able to recover only thirty-four out of forty deleted files.
One of the six segments of video footage that was completely unrecoverable was the
segment that would have captured the seven minute sexual assault. Ms. Hendricks’s
expert report explains that deleted files can be recovered. However, when a file is
deleted and then subsequently overwritten by virtue of a new file being recorded over it,
it cannot be recovered. Docket No. 151-6 (Pls.’ Expert Report) at 28.
The Instant Litigation
On June 7, 2011, Plaintiffs filed their complaint against Carmel Clay Schools,
alleging federal claims brought pursuant to Title IX and 42 U.S.C. § 1983 as well as
several state law claims. Plaintiffs filed their Motion for Sanctions on December 5, 2012,
alleging that the School intentionally deleted the video footage from Bus #50’s hard
drive, and, on December 7, 2012, Defendant filed its Motion for Partial Summary
Judgment, seeking to have Plaintiffs’ federal claims dismissed. We now address these
fully briefed motions.
Plaintiffs’ Motion for Sanctions
Under Indiana law, “spoliation” refers to “[t]he intentional destruction, mutilation,
alteration, or concealment of evidence, usually a document.” Cahoon v. Cummings, 734
N.E.2d 535, 545 (Ind. 2000) (quoting BLACK’S LAW DICTIONARY 1409 (7th ed. 1999)).
The prevailing rule in the Seventh Circuit “is that bad faith destruction of a document
relevant to proof of an issue at trial gives rise to a strong inference that production of the
document would have been unfavorable to the party responsible for its destruction.”
Crabtree v. Nat’l Steel Corp., 261 F.3d 715, 721 (7th Cir. 2001) (quotation marks and
citation omitted). “The crucial element is not that the evidence was destroyed but rather
the reason for the destruction.” S.C. Johnson & Son, Inc. v. Louisville & Nashville R.
Co., 695 F.2d 253, 258 (7th Cir. 1982). In order to show “bad faith,” it must be
established that the evidence was intentionally destroyed “for the purpose of hiding
adverse information.” Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir.
1998). “‘Bad faith’ is a question of fact like any other, so the trier of fact is entitled to
draw any reasonable inference.” Id.
Here, Plaintiffs argue that spoliation of evidence occurred when Bus #50’s hard
drive was put into Bus #29 on February 22, 2010 and the video files were deleted and
particular files were subsequently overwritten. It is clear that the act of reinserting the
Bus #50 hard drive into Bus #29 was an intentional act. But there is no evidence based
on the facts currently before us to support a conclusion that that act was undertaken in
order to destroy adverse evidence as opposed to its being mere negligence in the handling
of the hard drive. Plaintiffs continually argue that Ms. Hendricks’s report establishes that
the unrecoverable video files had to have been “first intentionally deleted prior to being
overwritten when placed into Bus #29” in order to have been unrecoverable, but that is
not what Ms. Hendricks’s report states. Instead, her report provides that deleted files
(apparently whether deleted intentionally or as a function of the system) can be
recovered. It is only when the deleted files are overwritten by new files that recovery
becomes impossible. Plaintiffs also attribute to Ms. Hendricks the opinion that the
overwritten files had to have been “manually deleted” before being overwritten in order
to have been unrecoverable, but again no such conclusion appears in Ms. Hendricks’s 46page report.
Accordingly, there is no evidence in the current record to support the conclusion
that any employee of the School manually deleted the video files from the time period
during which the sexual assault occurred before reinserting the hard drive in Bus #29, all
in an effort to destroy evidence. Instead, the facts before us only establish that the video
files were apparently in an undeleted state when the hard drive was reinserted onto Bus
#29, at which point the files were all immediately and automatically deleted as a function
of the computer system itself. It was only once the files began to be overwritten by new
video files that the material became unrecoverable. Although there is nothing in the
record to explain why only those particular six segments of video (including one segment
taken during the sexual assault) were overwritten, there is certainly no allegation or
evidence to show that it was possible for a School official to have specifically identified
and selected particular files to be overwritten, much less that that is what actually
For these reasons, we find no basis for drawing a reasonable inference of bad faith
on the facts before us. If additional evidence regarding the School’s actions relating to its
handling of Bus #50’s hard drive comes to light, we will revisit this issue, but at this
point, Plaintiffs have failed to establish any entitlement to sanctions based on a theory of
Partial Motion for Summary Judgment
A. Standard of Review
Summary judgment is appropriate when the record shows that there is “no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Disputes concerning material facts are genuine where the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material
fact exist, the court construes all facts in a light most favorable to the non-moving party
and draws all reasonable inferences in favor of the non-moving party. See id. at 255.
We note that, even if Plaintiffs could prove that evidence spoliation had occurred, at
best that showing would only permit an adverse jury inference that the missing evidence is
unfavorable to the party who intentionally destroyed it. Such an inference does not lessen or
relieve Plaintiffs’ burden to prove their case. See Flaherty & Collins, Inc. v. BBR-Vision I, L.P.,
990 N.E.2d 958, 970-71 (Ind. Ct. App. 2013) (citations omitted).
However, neither the “mere existence of some alleged factual dispute between the
parties,” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of
Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).
The moving party “bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323.
The party seeking summary judgment on a claim on which the non-moving party bears
the burden of proof at trial may discharge its burden by showing an absence of evidence
to support the non-moving party's case. Id. at 325.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle
for resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th
Cir. 1994). Therefore, after drawing all reasonable inferences from the facts in favor of
the non-movant, if genuine doubts remain and a reasonable fact-finder could find for the
party opposing the motion, summary judgment is inappropriate. See Shields Enterprises,
Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of
Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be
unable to satisfy the legal requirements necessary to establish his or her case, summary
judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Ziliak v.
AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). Further, a failure to prove one
essential element “necessarily renders all other facts immaterial.” Celotex, 477 U.S. at
A plaintiff’s self-serving statements, which are speculative or which lack a
foundation of personal knowledge, and which are unsupported by specific concrete facts
reflected in the record, cannot preclude summary judgment. Albiero v. City of Kankakee,
246 F.3d 927, 933 (7th Cir. 2001); Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999);
Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993).
B. Title IX Peer Harassment
“A school district may incur Title IX liability for student-on-student sexual
harassment if the district was deliberately indifferent to harassment that was so pervasive,
severe, and objectively offensive that it denied the student equal access to education.”
Trentadue v. Redmon, 619 F.3d 648, 654 (7th Cir. 2010) (citing Davis v. Monroe County
Bd. of Educ., 526 U.S. 629, 649 (1999); Gabrielle M. v. Park Forest-Chi. Heights, Ill.
Sch. Dist. 163, 315 F.3d 817, 821 (7th Cir. 2003)). A school is liable for peer-on-peer
harassment only when the school has actual knowledge of the harassing conduct and its
“response to the harassment or lack thereof is clearly unreasonable in light of the known
circumstances.” Davis, 526 U.S. at 648.
Here, the School contends that Plaintiffs have failed to establish a claim pursuant
to Title IX because they have failed to show that the harassment suffered by M.D. was on
the basis of his sex; that the harassment deprived M.D. of educational opportunities; that
the School had actual knowledge of the harassment; and that the School was deliberately
indifferent to the harassment. We address these arguments in turn below.
1. Harassment Based on Sex
Title IX prevents discrimination on the basis of sex. Thus, “in order to be
actionable, the offensive behavior must be based on sex, rather than personal animus or
other reasons.” Benjamin v. Lawrence Tp. Metro. Sch. Dist., No. IP 00-0891-C-T/K,
2002 WL 977661, at *3 (S.D. Ind. Mar. 27, 2002) (citing Frazier v. Fairhaven Sch.
Comm., 276 F.3d 52, 66 (11th Cir. 2002)). The fact that, here, the victim and the
harassers are of the same sex does not necessarily preclude a Title IX claim. The
Supreme Court has held that same-sex harassment can constitute sex discrimination if the
harassment is (1) motivated by sexual desire; (2) motivated by hostility towards a specific
gender; or (3) demonstrates differential treatment of males and females. See Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998) (Title VII).7
These categories are not necessarily exhaustive in describing the ways in which a
plaintiff can establish prohibited same-sex harassment, however. Indeed, “there is no
singular means of establishing the discriminatory aspect of sexual harassment. So long as
the plaintiff demonstrates in some manner that he would not have been treated in the
same way had he been a woman, he has proven sex discrimination.” Shepherd v. Slater
Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999) (Title VII). “Whatever evidentiary route
Oncale was a Title VII case, but federal courts recognize that Title VII cases inform the
analysis of sex discrimination claims under Title IX. E.g., Seiwert v. Spencer-Owen Cmty. Sch.
Corp., 497 F. Supp. 2d 942, 953 (S.D. Ind. 2007) (citation omitted).
the plaintiff chooses to follow, he or she must always prove that the conduct at issue was
not merely tinged with offensive sexual connotations, but actually constituted
discrimination because of sex.” Oncale, 523 U.S. at 81 (internal quotation marks and
alterations omitted) (emphasis in original).
Here, Plaintiffs argue that M.D. was being harassed because of a perceived failure
to adhere to traditional male stereotypes. Under Seventh Circuit law, “[i]f an individual
is being harassed because of a failure to adhere to specific sexual stereotypes, and not
because of his sexual orientation, he has an actionable claim.” Seiwert v. Spencer-Owen
Cmty. Sch. Corp., 497 F. Supp. 2d 942, 953 (S.D. Ind. 2007) (citing Hamm v.
Weyauwega Milk Products, Inc., 332 F.3d 1058, 1065 n.5 (7th Cir. 2003)). The Seventh
Circuit has held that such “gender stereotyping” is actionable under Title IX because it
relies “upon stereotypical notions about how men and women should appear and
behave….” Doe v. City of Belleville, Ill., 119 F.3d 563, 581 (7th Cir. 1997), vacated on
other grounds by 523 U.S. 1001 (1998) (mem.).
Plaintiffs contend that there are sufficient facts in the record at least to raise a
genuine issue of material fact regarding whether M.D.’s harassment was based on the
perpetrators’ belief that he was acting in a manner that did not conform to traditional
male stereotypes. In support of this contention, Plaintiffs emphasize that M.D. was not
on the basketball team and that he was a weaker, smaller male than his attackers,
weighing less than 165 pounds and standing less than 5’10” tall at the time of the
harassment. M.D. also had an “artistic” side that Plaintiffs contend could be perceived as
non-masculine; specifically, M.D. enjoyed hobbies such as writing poetry and creating
music without lyrics. Plaintiffs contend that M.D. was inexperienced with girls and that
he was harassed for his lack of experience. Finally, Plaintiffs argue that the nature of the
sexual assaults to which M.D. was subjected, coupled with the alleged perpetrators’ taunt
that, “it’s not gay unless you cum,” amounts to male stereotyping.
The School rejoins that the evidence designated by Plaintiffs does not establish
that the senior student perpetrators targeted M.D. because on his sex or because they
believed that he did not adhere to traditional male stereotypes. The School highlights the
fact that there is no indication in the record that any of the perpetrators knew of M.D.’s
interest in the arts or that they ever taunted or harassed M.D. based on a belief that he was
somehow less of a man or not masculine because he was smaller statured or enjoyed
artistic pursuits. We agree that there is no such evidence in the record, and, that the
statement “it’s not gay unless you cum,” while crude, does not necessarily indicate that
the harassment was based on M.D.’s sex or failure to adhere to gender stereotypes.
However, even if Plaintiffs failed to produce sufficient evidence that the
harassment of M.D. was based on gender stereotyping, that does not necessarily doom
their Title IX claim. Given that the allegations in this case involve at least two physical
sexual assaults with anal penetration and another incident in which one of the seniors put
M.D. over a trash can and simulated sex, we find the evidence sufficient to raise, at the
very least, a genuine issue of material fact regarding whether the harassment in this case
was “based on sex.” See, e.g., Shepherd, 168 F.3d at 1011 (genuine issue of material fact
regarding whether harassment based on sex when male harasser exposed his penis
multiple times a week to male plaintiff, repeated instances in which harasser “grabbed
himself” and one instance in which harasser “rubbed himself” into an erection while he
threatened to sexually assault plaintiff).
2. Denial of Educational Opportunities
In order to prevail on a Title IX claim, a plaintiff must establish that “the behavior
at issue denies a victim equal access to education.” Gabrielle M., 315 F.3d at 823 (citing
Davis, 526 U.S. at 652). The harassment alleged must have a “concrete, negative effect”
on the plaintiff’s education. Davis, 526 U.S. at 654. Here, we find that Plaintiffs have
failed to establish that M.D. was deprived of educational benefits while the harassment
was ongoing. Although Plaintiffs allege that M.D. became more withdrawn once the
basketball season began and the harassment started, the evidence does not show that
M.D.’s disciplinary record, attendance, or grades declined in any significant way once
M.D. began being harassed nor is there any indication that he was denied access to any
educational opportunities during the period of harassment.
Plaintiffs also submit that M.D. was forced to transfer schools after the harassment
and sexual assaults were made public because of a fear of ridicule and a feeling of
insecurity with the School and its personnel. According to Plaintiffs, because of M.D.’s
low grade point average and the circumstances surrounding his departure from CHS, the
only schools that would admit him required a significant commute from his home
(approximately two hours round trip), necessitated his being held back a grade, and/or
failed to provide an acceptable level of college preparatory classes; thus, following his
transfer from CHS, M.D. had to transfer schools two additional times before finding a
suitable replacement. Plaintiffs maintain that as a result of these transfers M.D. has
experienced and continues to suffer from emotional, psychological, and social
inconsistencies as well as a physical exclusion from his education, which they contend is
the quintessential example of a deprivation of an educational opportunity under Title IX.
See Davis, 526 U.S. at 650 (holding that “the overt, physical deprivation of access to
school resources” constitutes denial of an educational benefit).
The School rejoins that Plaintiffs can point to no denial of educational
opportunities while the harassment was ongoing and argues that Plaintiffs’ voluntary
decision to immediately withdraw M.D. from CHS after the allegations came to light and
before it was even clear what, if any, repercussions would follow is not the type of
physical exclusion contemplated in the case law. Cf. Hawkins v. Sarasota County Sch.
Bd., 322 F.3d 1279, 1288-89 (11th Cir. 2003) (listing example of “circumstances where
male students physically threatened female students daily, thereby successfully
preventing them from using a computer lab or athletic field”). The School argues that,
although Plaintiffs believe that M.D. would have suffered negative consequences if he
had remained a student at CHS, there is no way to know what actually would have
happened because Plaintiffs immediately withdrew him from CCS.
It is true, as the School argues, that it is impossible to know how M.D. would have
been treated had he remained enrolled at CHS after the harassment and sexual assaults
were made public. However, several courts have found withdrawal from school to
constitute “a concrete and negative effect” on the victim’s education under Title IX. See,
e.g., Seiwert, 497 F. Supp. 2d at 953; Doe ex rel. Doe v. Derby Bd. of Educ., 451 F. Supp.
2d 438, 445 (D. Conn. 2006). Given the severity of the harassment and the physical
assaults that occurred here (which, for purposes of this motion at least, the School does
not dispute) as well as the level of publicity the allegations received because of the
perpetrators’ status as varsity basketball players, there is at least a genuine issue of
material fact regarding whether the conduct and the resulting fallout may have been so
severe as to prevent M.D. from being able to continue to attend CHS.
3. Actual Knowledge and Deliberate Indifference
Despite Plaintiffs’ success in establishing that M.D. was subjected to sexual
harassment so severe, pervasive, and objectively offensive to have denied him equal
access to education, they have demonstrably failed to show that the School had
knowledge of the harassment or that, once it learned of the allegations, its response was
clearly unreasonable. “To display deliberate indifference, the school district must first
have ‘actual knowledge’ of the sexual harassment.” Doe-2 v. McLean County Unit Dist.
No. 5 Bd. of Directors, 593 F.3d 507, 512 (7th Cir. 2010) (citation omitted). Plaintiffs
argue that the School had the requisite knowledge of the harassment as early as October
or November 2009 because CCS’s policies required the coaches to supervise the students,
and thus, “it would follow that the coaches knew that sexual assaults were occurring,
particularly if they had been properly supervising the students.” Pls.’ Resp. at 21. But
the case law is clear that “actual – not constructive – notice is the appropriate standard in
peer-harassment cases.” Gabrielle M., 315 F.3d at 823 (citing Davis, 526 U.S. at 64647). Plaintiffs also contend that the coaches and/or the School surely must have known
about the sexual assaults because such conduct had been occurring in the boys’ basketball
program for several years and was “common knowledge” among both the students and
the parents. However, as previously discussed, Plaintiffs cite only inadmissible hearsay
and unsworn statements to support this conclusion, which we do not consider on
Viewing the admissible evidence in the light most favorable to Plaintiffs, as we are
required to do at this stage of the litigation, the earliest date on which any member of the
School’s administrative, coaching or teaching personnel had actual notice of the
harassment and sexual assaults was at some point during the week of February 8, 2010,
when M.D. allegedly told Coach Blanding what had occurred on the school bus on the
return trip from the Terre Haute South basketball game.8 Although Coach Blanding
apparently took no action in response to these allegations, it is undisputed that M.D. did
not suffer any further harassment at the hands of the perpetrators or any other basketball
player following the conversation with Blanding. Thus, there was no causal connection
between Coach Blanding’s apparent inaction and any of the incidents of harassment.
Coach Vandenberg concedes that he had some knowledge of an undefined incident that
occurred earlier between the perpetrators and another student, M.F., but he contends that M.F.
assured him that it was not significant, and thus, he did not investigate further. There is no
indication that Coach Vandenberg was aware that the incident involved sexual harassment or an
assault, and thus, the evidence before us clearly does not support a conclusion that actual
knowledge can be attributed to the School based on this exchange.
The record before us unequivocally establishes that School administrators (not
Coach Blanding) were first made aware of the sexual assault allegations at approximately
11:00 a.m. on February 16, 2010,9 after receiving a telephone call from another student’s
parent reporting what had occurred on the Terre Haute bus trip. Once the School had
actual knowledge of the allegations, its administrators acted quickly, almost immediately
suspending the perpetrators and ultimately expelling them. Given the swiftness of the
response and the seriousness with which the School treated the allegations, we cannot
conclude that it acted in a clearly unreasonable manner once it had actual knowledge of
the harassment. Accordingly, Plaintiffs’ Title IX claim cannot survive summary
Plaintiffs claim that, despite the School’s representations otherwise, administrators had
to have been aware of the sexual assault that occurred on the athletic bus on the return trip from
the Terre Haute South basketball game before the parent’s telephone call on February 16, 2010
because CHS Superintendent Swensson testified that he learned of the allegations from CHS
Principal Williams at a 9:00 a.m. meeting that day and the telephone call did not occur until
about 11:00 a.m. However, Superintendent Swensson’s testimony was not that he was told of
the allegations at 9:00 a.m. but that he received notice during a break in the meeting that began
at 9:00 a.m. He did not pinpoint the time at which the break occurred. Thus, nothing in
Superintendent Swensson’s testimony is inconsistent with the School’s administrators having
first received notice around 11:00 a.m.
In their motion for sanctions, Plaintiffs argue that the missing video taken from the
middle of the school bus could have shown actual knowledge and deliberate indifference on the
part of the boys’ basketball coaches with regard to the sexual assault that occurred the night of
the Terre Haute South basketball game. However, this is nothing more than speculation as there
is no indication in any of the testimony in the record, including the testimony of M.D. himself,
that the coaches were made aware of the struggle in the back of the bus and ignored it or that any
coach heard the struggle, came back to investigate, and failed to take appropriate action to stop
the assault despite witnessing it in progress.
C. Section 1983 Claims
Plaintiffs have also brought claims under 42 U.S.C. § 1983,11 alleging violations
of the Equal Protection and Due Process clauses of the Fourteenth Amendment as well as
a municipal liability claim against the School for a failure to train its employees. We
address each of these claims in turn below.
1. Equal Protection Claim
Plaintiffs argue that the School discriminated against M.D. because of his
perceived sexual orientation, in violation of the Equal Protection Clause of the Fourteenth
Amendment, which provides that “[n]o State shall … deny to any person within its
jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV § 1.
Specifically, Plaintiffs allege that M.D. was harassed and assaulted because of his
perceived homosexuality and that the School was deliberately indifferent to M.D.’s
complaints regarding the harassment he received.
In order to establish an equal protection violation, M.D. must show that the
School: (1) treated him differently from others who were similarly situated; (2)
intentionally treated him differently because of his membership in the class to which he
belonged (i.e., perceived homosexuals); and (3) because homosexuals (or perceived
homosexuals) do not enjoy heightened protection under the Constitution, that the
Section 1983 provides in relevant part that “[e]very person who, under color of any statute,
ordinance regulation, custom, or usage, of any State … subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress….”
discriminatory intent was not rationally related to a legitimate state interest. Schroeder v.
Hamilton Sch. Dist., 282 F.3d 946, 950-51 (7th Cir. 2002) (citations omitted). For this
claim to withstand summary judgment, Plaintiffs must establish that a genuine issue of
material fact exists as to whether the School “acted either intentionally or with deliberate
indifference” to his complaints of harassment because of his perceived homosexuality.
Id. at 951 (citation omitted). If the School demonstrates that it did not deny M.D. equal
protection on account of his perceived sexual orientation or if it had a “rational basis” for
doing so, summary judgment is warranted. Id.
Even if we assume that a genuine issue of material fact exists regarding whether
M.D. was harassed by the senior student perpetrators because they perceived him as
homosexual, Plaintiffs cannot sustain their equal protection claim under § 1983 merely
by showing that students were discriminating against him on that basis. Instead,
Plaintiffs must establish that the School was deliberately indifferent to his complaints of
harassment because of his perceived sexual orientation. See id. at 951-52. There simply
is no evidence that the School perceived M.D. as homosexual, let alone that it treated
M.D.’s complaints of harassment differently than complaints from students whom it did
not perceive as homosexual. Accordingly, Plaintiffs’ equal protection claim clearly
2. Due Process Claim
Plaintiffs next allege that the Due Process Clause of the Fourteenth Amendment
imposed on the School a constitutional duty to protect M.D. Although private actors
generally have no constitutional duty to protect individuals from harm, such a duty is
imposed on the state to protect individuals with whom it has a “special relationship” by
virtue of the state’s custody over the individual or in cases in which the state itself has
created the danger. DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189,
Plaintiffs allege that the state-created danger doctrine applies here. To establish a
substantive due process claim under a state-created danger theory, Plaintiffs must
establish that: (1) the School, by its affirmative acts, created or increased a danger that
M.D. faced; (2) the School’s failure to protect M.D. from danger was the proximate cause
of his injuries; and (3) the School’s failure to protect M.D. “shocks the conscience.” See
Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654 (7th Cir. 2011).
Plaintiffs argue that in early January 2010, Coach Vandenberg knew of a sexual
assault against another member of the basketball team and failed to take appropriate
action by reporting the incident, which Plaintiffs allege empowered the senior student
perpetrators to continue harassing and assaulting M.D. However, as discussed above,
Plaintiffs rely on inadmissible unsworn statements to support this argument regarding
early notice. The admissible evidence in the record establishes that the earliest any
School official had notice of M.D.’s sexual assault was at some point between February 8
and February 16, 2010, when M.D. allegedly told Coach Blanding about the “gooching”
that occurred on the bus ride back from Terre Haute. Plaintiffs allege that Coach
Blanding’s failure to report M.D.’s assault following this conversation put other students
at risk for continued harassment.
There are several problems with Plaintiffs’ argument. First, Plaintiffs are relying
solely on the alleged inaction of the coaches to establish a state-created danger, but it is
well-established under Seventh Circuit precedent that “[i]naction by the state in the face
of a known danger is not enough to trigger the obligation….” Reed v. Gardner, 986 F.2d
1122, 1125 (7th Cir. 1993). Instead, “the so-called state-created danger exception
provides that liability exists when the state affirmatively places a particular individual in
a position of danger the individual would not otherwise have faced.” Buchanan-Moore v.
County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (internal quotation marks and
citation omitted). Any alleged inaction on the part of the coaches simply does not satisfy
this burden. Moreover, it is undisputed that M.D. was not subjected to any further
incidences of harassment between the time of his alleged conversation with Coach
Blanding and the report to the administration on February 16, 2010, at which point the
senior student perpetrators were suspended from classes and ultimately expelled. Thus,
even if Coach Blanding’s failure to report the assault were an affirmative act, Plaintiffs
cannot show that that failure was the proximate cause of M.D.’s injuries. Accordingly,
Plaintiffs’ due process claim based on a state-created danger theory does not survive
3. Failure to Train
Plaintiffs allege that the School failed to properly train its officials and coaches to
recognize and report incidents of sexual harassment or abuse and thus is liable under
Monell v. Department of Social Services, 436 U.S. 658 (1978). However, “a municipality
cannot be liable under Monell when there is no underlying constitutional violation by a
municipal employee.” Sallenger v. City of Springfield, Ill., 630 F.3d 499, 504 (7th Cir.
2010) (citation omitted). Because Plaintiffs have failed to establish an underlying
constitutional violation on the part of any individual CHS employee, there can be no
municipal liability under Monell for a failure to train. Id.
Even if that were not the case, Plaintiffs’ failure to train claim still would fail.
“An allegation of a ‘failure to train’ is available only in limited circumstances.”
Cornfield by Lewis v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th
Cir. 1993). To prevail on such a claim, Plaintiffs must show that the School’s “‘failure
to train its employees in a relevant respect evidences a deliberate indifference’ to the
rights of students.” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)). In
this context, deliberate indifference can arise when, “‘in light of the duties assigned to
specific officers or employees the need for more or different training is so obvious, and
the inadequacy so likely to result in the violation of constitutional rights,” that the
deficiency exhibits deliberate indifference on the part of municipal policymakers.”
Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007) (quoting City of Canton, 489 U.S.
at 390). Deliberate indifference can also be found “when a repeated pattern of
constitutional violations makes ‘the need for further training … plainly obvious to the
city policymakers.’” 487 F.3d at 492 (quoting 489 U.S. at 390, n.10).
Here, it is undisputed that CHS had policies in place concerning the reporting of
child abuse. Plaintiffs have offered no evidence to demonstrate that these policies were
so obviously deficient as to alert the School’s policymakers that its employees would
likely violate the constitutional rights of its students. Nor is there any indication that it
was plainly obvious based on a repeated pattern of violations that the policy had already
failed. Plaintiffs again rely on inadmissible evidence to argue that sexual harassment was
part of the “culture” of the basketball program and thus that it should have been obvious
that the policy was deficient. However, the admissible evidence in the record establishes
that the first time any policymaker at the School learned of an alleged failure to adhere to
the reporting policy was when it received notice in February 2010 of the allegations
surrounding the sexual assault of M.D. that took place on the bus, at which point the
School reported the allegations and then suspended and ultimately expelled the
perpetrators. Plaintiffs do cite to another incident in 1998 when a member of the swim
team was sexually assaulted, but this second, isolated incident is insufficient to show a
widespread practice of an unconstitutional nature. Cf. Grieveson v. Anderson, 538 F.3d
763, 773-75 (7th Cir. 2008) (four instances of alleged unconstitutional conduct did not
constitute widespread pattern or practice); Palmer v. Marion County, 327 F.3d 588, 597
(7th Cir. 2003) (allegations of two instances of unconstitutional conduct did not
demonstrate widespread practice).
State Law Claims
Having determined that all of Plaintiffs’ federal claims must be dismissed, we turn
to the question of whether we should exercise supplemental jurisdiction over the
remaining claims in this case, all of which arise under Indiana law. We have jurisdiction
over the state law claims pursuant to 28 U.S.C. § 1367(a), which extends federal
jurisdiction to all claims that are so related to a claim within the court’s original
jurisdiction that they form part of the same case or controversy within the meaning of
Article III of the Constitution.
Federal courts can decline to exercise supplemental jurisdiction in certain
circumstances, including when a court “has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c)(3). The Seventh Circuit has identified the
following three situations in which a court should retain jurisdiction over supplemental
claims even though all federal claims have been dismissed: where the statute of
limitations would bar the refiling of the supplemental claims in state court; where
substantial federal judicial resources have already been expended on the resolution of the
supplemental claims; and where it is obvious how the claims should be decided.
Williams Elec. Games, Inc. v. Garrity, 479 F.3d 904, 906-07 (7th Cir. 2007) (citation
Neither party sets forth arguments in their briefing regarding this issue. However,
given the degree to which Plaintiffs’ state law and federal claims are interrelated and that
significant federal resources have already been expended on this case, we believe it
would be consistent with the principles of judicial economy, fairness, convenience, and
comity for us to exercise supplemental jurisdiction over Plaintiffs’ remaining state law
claims. See City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997)
(observing that, “when deciding whether to exercise supplemental jurisdiction, a federal
court should consider and weigh in each case, and at every stage of the litigation, the
values of judicial economy, convenience, fairness, and comity”) (internal quotation
marks and citation omitted).
For the reasons detailed in this entry, Plaintiffs’ Motion for Sanctions is DENIED
and Defendant’s Partial Motion for Summary Judgment is GRANTED. The Court will
exercise its supplemental jurisdiction over Plaintiffs’ remaining claims brought under
Indiana law. The case will proceed accordingly.
IT IS SO ORDERED.
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Cari L. Sheehan
LEE FAIRMAN LLP
Gregory P. Gadson
LEE FAIRMAN LLP
LEE FAIRMAN LLP
Robert B. Turner
LEE FAIRMAN LLP
John W. Mervilde
MEILS THOMPSON DIETZ & BERISH
Rick D. Meils
MEILS THOMPSON DIETZ & BERISH
Corinne T.W. Gilchrist
OFFICE OF THE INDIANA ATTORNEY GENERAL
Liberty L. Roberts
ROBERTS LEGAL GROUP, LLC
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