United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
Doe was a student in the Dardanelle School District until her
recent graduation. She alleges that while she was a student
another student sexually assaulted her on two separate
occasions. She sued the District under Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681 et
seq., and under 42 U.S.C. § 1983. The District has
moved for summary judgment on both claims.
should grant summary judgment if the evidence demonstrates
that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine dispute for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party
meets that burden, the nonmoving party must come forward with
specific facts that establish a genuine dispute of material
fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine
dispute of material fact exists only if the evidence is
sufficient to allow a reasonable jury to return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). The Court must view the evidence in the
light most favorable to the nonmoving party and must give
that party the benefit of all reasonable inferences that can
be drawn from the record. Pedersen v. Bio-Med.
Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
2015). If the nonmoving party fails to present evidence
sufficient to establish an essential element of a claim on
which that party bears the burden of proof, then the moving
party is entitled to judgment as a matter of law.
complains of two incidents. The first happened during the
first semester of the 2014 school year when Doe was in ninth
grade. She was playing kick ball in physical education class
when a male student ran into her and called her a
“bitch.” Document #14-5 at 51. In running into
her, the boy's upper arm hit her breast. Id. She
says that he did not grab her. Id. at 67. Doe says
that this was the first adverse interaction she had with that
student and the only one in her ninth-grade year.
Id. at 56-57. After the incident, Doe told her
English teacher as well as the school principal, Marcia
Lawrence. Doe says that she told Lawrence that the student
“called [her] the ‘B' word and hit
[her].” Id. at 58. Doe says that Lawrence said
that she would talk to the male student and then sent Doe
back to class. Id. at 60.
testified that she reassured Doe, talked to her about two or
three things, told Doe that she was going to refer the matter
to the assistance principal, Lynn Balloun, who is a male and
ask him to talk to the male student, and told Doe that she
should immediately come back and report and further issues.
Document #14-2 at 18. Balloun testified that he questioned
the male student extensively and counseled the student
sternly in the presence of a school counselor. Document #14-3
at 13, 17. Balloun memorialized the meeting with the male
student as follows: “Complaint by [Doe] that [the male
student] has been trying to touch her inappropriately. It
evidently has happened several times. Counseled [the male
student] that if it happened again he would have to deal w/
the [student resource officer]. He did not deny it.”
second incident happened on October 26, 2015, when Doe was in
tenth grade and involved the same male student. The two
students had home economics together. Document #14-5 at 68.
Students were not assigned seats by the teacher; they could
select their seats themselves. Id. Doe and the male
student selected seats at the same table next to each other.
Id. Does says that while she was in home economics
watching a movie, the male student “reached his hand up
[her] shorts and touched [her], ” tried “to make
[her] touch him down there, ” and “tried to grab
[her] boob and then grabbed it.” Id. at 93.
Doe left the classroom and reported the incident to Lawrence.
Id. at 91. Doe says that Balloun was also in
Lawrence's office when she reported the male
student's assault. Id. at 92. Doe recalls
Lawrence saying, “I will talk to him about that.
That's not going to happen.” Id.
testified that Doe did not report that the male student put
his hand in her shorts and touched her; she remembers Doe
telling her that the male student tried to put Doe's hand
on his groin and tried to touch Doe's breast. Document
#14-2 at 25; Document #14-9. Upon receiving this report she
told Doe that action more severe than being counseled would
be taken against the male student. Document #14-2 at
25. She says she asked Doe if she wanted to be
removed from the class but that Doe said she liked the class
and wished to stay. Id. at 26. Lawrence says that
she told Doe that she would speak with the home economics
teacher, that she would ensure different seating
arrangements, and that she would instruct the teacher not to
pair Doe and the male student up for any class work.
Id. Lawrence says that she recommended that Doe
speak with a counselor but that Doe refused. Id. In
light of Doe's refusal, Lawrence says that she asked a
counselor to come to her office and Doe recounted the event
again, this time with both Lawrence and the counselor.
Id. at 26-27. The counselor confirmed this account.
Document #14-12 at 10.
of the incident, Lawrence issued a disciplinary referral of
the male student to Balloun. Document #14-2 at 27. Lawrence
directed the teacher to separate Doe and the male student,
and Doe was moved to a different seat. Document #14-11 at 16;
Document #14-5 at 96. Lawrence also discussed the incident
with the teacher and instructed her “about keeping a
light on, or making sure there was a lamp that was a little
bit brighter in the classroom.” Document #14-11 at 17.
wrote a memo dated October 26, 2015, in which he documents
the action he took in response to Lawrence's referral.
Document #14-8. The report states that Balloun spoke with the
male student in the presence of the school's police
officer because “[i]t had been reported once again by
[Doe] that [the male student] had touched her in an
inappropriate manner.” Id. It describes the
male student's very different account and ends by noting
that the officer and Balloun warned the male student
“not to let himself be put in a position where there
was any question.” Id. Balloun said that
following the second incident he “tried to pay
particular attention, as it was warranted, to [the male
student]” and Lawrence tried “to keep an eye on
[Doe].” Document #14-3 at 17. Lawrence testified that
other than questioning by Balloun and the school police
officer, no disciplinary action was taken against the male
student. Document #14-2 at 34. She said that the student
vehemently denied Doe's account and that “it was
very much a he said she said situation.” Id.
not tell her parents about the October 2015 incident after it
happened because she feared they would not believe her.
Document #14-5 at 98. She eventually told them months later.
Id. at 101. In April 2016, Doe's parents
confronted Lawrence and Balloun about the District's
handling of the October 2015 incident. Lawrence explained
that she did not know the incident involved the male student
reaching inside Doe's shorts and touching her. Document
#14-2 at 44. Doe also testified that Lawrence told her
parents that Lawrence did not “recall [Doe] telling us
that that happened.” Document #14-5 at 102. After the
meeting with Doe's parents, Lawrence says that she
immediately reported the sexual assault to a hotline and
turned the matter over to the police. Document #14-2 at 44.
continued to attend school in the District and graduated in
May 2018. She did not have any other interactions with the
male student or any other similar incidents at the school
after the October 2015 assault. Document #14-5 at 96-97.
Doe's grade point average in the 2014-15 school year was
2.18; in the 2015-16 school year it was 1.86; in the 2016-17
school year it was 2.73; and in the 2017-18 school year it
was 3.00. Document #14-1.
District may be liable for student-on-student harassment
under Title IX and section 1983 if it acted with deliberate
indifference. See Davis Next Friend LaShonda D. v. Monroe
Cty. Bd. of Educ., 526 U.S. 629, 633, 119 S.Ct. 1661,
1666, 143 L.Ed.2d 839 (1999) (recognizing a private cause of
action for damages under Title IX); Doe v. Flaherty,
623 F.3d 577, 584-85 (8th Cir. 2010). The Supreme Court has
instructed that the deliberate indifference standard used to
establish municipal liability under section 1983 is the same
standard used under Title IX. Davis, 526 U.S. at
642, 119 S.Ct. at 1671. Under this standard, the District
will be liable only if its “own deliberate indifference
effectively ‘cause[d]' the discrimination.”
See Id. at 643, 119 S.Ct. at 1671 (alteration in
original) (citation omitted). Additionally, the District is
subject to liability only where it is deliberately
indifferent to “known acts of harassment in its
programs or activities . . . that is so severe, pervasive,
and objectively offensive that it effectively bars the
victim's access to an educational opportunity or
benefit.” Id. at 633, 119 S.Ct. at 1666.
school district may be liable under Title IX for
student-on-student harassment, the circumstances in which
liability may be imposed are limited and school districts
enjoy broad discretion in responding to student-on-student
harassment. Id. at 646-49, 119 S.Ct. at 1673-74.
Courts should not “second-guess the disciplinary
decisions made by school administrators.” Id.
at 648, 119 S.Ct. at 1674. Victims of harassment are not
entitled “to make particular remedial demands, ”
and a school need not necessarily expel “every student
accused of misconduct involving sexual overtones.”
Id. Summary judgment is appropriate in cases where a
school district's response was not “clearly
unreasonable in light of the known circumstances.”
Id. at 648, 119 S.Ct. at 1674 (stressing that the
standard “is not a mere ‘reasonableness'
standard”); Gant ex rel. Gant v. Wallingford Bd. of
Educ., 195 F.3d 134, 141 (2d Cir. 1999) (cautioning
against “transform[ing] every school disciplinary
decision into a jury question”).
indifference is “a stringent standard of fault.”
Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 780 (8th
Cir. 2001). Here, Doe has not shown that the District was
deliberately indifferent to the harassment she experienced.
See Davis, 526 U.S. at 645, 119 S.Ct. at 1672
(holding that deliberate indifference at a minimum requires a
school district to cause a victim to undergo harassment or
make the victim vulnerable to it). Doe first informed the
District of harassment after the male student called her a
“bitch” and ran into her breast with his upper
arm. The Court is mindful that the response of school
administrators to student misconduct is tempered and informed
by the reality that “students are still learning how to
interact appropriately with their peers.” Id.
at 651, 119 S.Ct. at 1675. Lawrence issued a disciplinary
referral to Balloun, and Balloun promptly counseled the male
student regarding ...