When a student alleges that she has been subjected to unwanted sexual contact, a district’s next steps can determine how it fares in a Title IX case.
As a Tennessee district learned in S.C. v. Metropolitan Government of Nashville, No. 22-5125 (6th Cir. 11/15/23), harassment or bullying that occurs under a district’s watch after a charge of sexual harassment has been raised can itself be a form of discrimination based on sex.
A high school student was video recorded engaging in a sexual activity with a classmate on school property, but the student did not consent to either the sexual contact or its video recording. The video rapidly spread on social media and third-party websites, including pornography-distributing outlets.
Although a school representative arranged for the student and her mother to come to school to discuss the incident, the school’s principal never involved the district’s Title IX coordinator. Prior to the meeting, the student’s mother gave the principal a list of students who sent threats against the student and her family.
The meeting was not recorded, and its substance was disputed. According to the principal, the student said in the meeting that the activity had been consensual, but at trial, the District Court concluded that even if the student did not describe the encounter as a rape explicitly, “she more than likely did not describe the encounter as welcome or consensual.”
At the conclusion of the meeting, the principal suspended the student for three days.
After her suspension, the student entered an in-patient facility for support and treatment services and continued coursework remotely. When the student was discharged from the facility, the family moved to a different county due to continued threats.
The student’s grades dropped substantially, she began abusing drugs and alcohol, she withdrew from socializing, and she engaged in self-harm. At the time of trial, four years after the incident, she still suffered from severe mental health disorders, including post-traumatic stress disorder.
The student sued under Title IX, and her claim was consolidated with those of three other students who also alleged that they were video recorded while experiencing unwanted sexual contact.
Eventually, the District Court found the district liable under Title IX, concluding that the threats made against the student and her family triggered the district’s Title IX duties to prevent gendered interference with the student’s education. The District Court found that the unwanted sexual encounter and spread of the video afterward was sufficiently traumatic that it amounted to a risk of disrupting the student’s education and implicated the district’s Title IX responsibilities.
The District court awarded the student $75,000 in damages, prompting the district to appeal to the 6th U.S. Circuit Court of Appeals.
Title IX prohibits discrimination based on sex in any education program receiving federal funding. Under Title IX, districts can face liability for deliberate indifference to known acts of student-on-student sexual harassment where the harasser is under the school’s disciplinary authority.
In affirming the District Court’s ruling in the student’s favor, the 6th Circuit explained that the district was aware of continuing and severe threats made against the student but “did nothing in response” beyond directing the student to police.
“Some of these threats were made during school hours or, at a minimum, in connection with the school environment,” the 6th Circuit wrote. “As a result of the school’s inaction, the threats and harassment continued.”
The 6th Circuit upheld the $75,000 emotional distress damages award.
‘Gravamen’ of student’s IDEA claim about hearing impairment doesn’t preclude her ADA case
Those who have followed special education in the U.S. Supreme Court for the past six or seven years will have heard of the Fry and Perez cases that provide the standards for what happens when an ADA or Section 504 claim is about something the IDEA covers.
However, as a federal appeals court pointed out in the case of a Texas student in Lartigue v. Northside Independent School District, No. 22-50854 (5th Cir. 11/16/23), even courts don’t always accurately apply those standards.
A high school student with a hearing impairment used a hearing aid and required interpretation services. The student had an IEP, but, according to the student, the district failed to properly accommodate her hearing impairment as required by the IEP. For example, the student claimed that:
- The district repeatedly failed to provide closed captioning for films and videos shown in class.
- The district failed to ensure that two interpreters were available at all times so that one interpreter would be available if the other needed to take a break.
- The counseling services the student requested were provided out in the open hallways of the school, which allegedly deprived the student of the confidentiality and privacy required for counseling to be effective.
- The district’s failure to timely provide the student with communication access real time, or CART, translation services for a live debate competition left her unable to fully participate in the extracurricular activity.
The student’s parents sued under the IDEA and the Americans with Disabilities Act. The parents also filed a complaint with the state education agency, contending that the district failed to provide FAPE. A hearing officer concluded that the district satisfied the IDEA’s requirements and provided the student with FAPE.
After the administrative proceedings concluded, the District Court found that the student has satisfied the IDEA’s exhaustion requirements and thus could move ahead with her ADA lawsuit.
The district moved for summary judgment, which the District Court initially denied. However, on the district’s motion for reconsideration, the court reached a different conclusion, finding that the student did not have a standalone claim under the ADA because the essence of her complaint was the denial of FAPE.
The student appealed to the 5th U.S. Circuit Court of Appeals.
Based on U.S. Supreme Court rulings, under the IDEA, in a suit against a public school for alleged violations of the ADA or other similar anti-discrimination statutes, courts first assess whether the “gravamen”—or crux—of the complaint concerns the denial of a FAPE or, instead, is based on disability discrimination.
If the complaint does not concern the denial of a FAPE, then the plaintiff need not go through the IDEA’s administrative hurdles. On the other hand, if the complaint is predicated on a FAPE denial, then the court must ask what relief is sought. If the relief sought is not one that the IDEA can provide, such as compensatory damages, then, again, the plaintiff need not go through the IDEA’s administrative hurdles.
But if the relief sought is of the type that the IDEA offers, then the plaintiff must fully exhaust the administrative processes as required by the IDEA.
Based on what the Supreme Court has held, the 5th Circuit found that the district court committed “reversible error.”
In particular, the 5th Circuit noted that nothing in the IDEA restricts or limits a plaintiff’s ability to assert an ADA claim, even if the gravamen of her complaint was the denial of FAPE. Instead, if the central focus of an ADA claim is about FAPE, then the IDEA requires that the plaintiff exhaust administrative remedies before heading to court, which is what happened in the student’s case when the hearing officer ruled on the IDEA charge.
Because it found that the District Court’s order was contrary to the text of the IDEA, the 5th Circuit vacated the grant of summary judgment and remanded the case.
A dissenting judge in the case would have affirmed on grounds of collateral estoppel, which applies when the issues of fact that make up a claim are the same as those in an already-decided previous claim. According to this judge, the student’s ADA claim brought up the same issues as her IDEA claim, on which she was unsuccessful in the administrative hearing.
Faulty elevator raises disability discrimination problems for S.C. district
It’s not often the case, but situations may arise where repair crews and maintenance staff hold the keys to whether a district is compliant with disability law.
In Horry County Schools, No. 11-23-1154 (OCR 07/14/23), OCR recently determined that a non-functioning elevator put a South Carolina district on the wrong side of Section 504’s and ADA Title II’s accessibility requirements and may have led to a FAPE denial.
A complaint filed with OCR alleged that because the district did not properly maintain and repair an elevator, two students with disabilities were denied access to some of their classes. As acknowledged in a statement by the principal, the elevator was out of service, either partially or completely, for the better part of five months. Additionally, during a videoconference attended by district staff, the company that serviced the district’s elevator confirmed that the elevator in question would continue to be out of service beyond the end of the school year.
The district provided one of the students with an accommodation that involved the student taking a course online in a first-floor media center. However, the teacher of the course asserted that this accommodation was not fair to the student because it resulted in his being isolated from the rest of the class and denied him the opportunity students in the class had to collaborate with other students.
Additionally, the media specialist, whose duties did not include assisting the student, was not available to the student in the media center because he was assisting the substitute teacher in the classroom while the teacher was on maternity leave.
Although the student requested that the class be taught in a first floor classroom, the principal insisted on the student’s attending class from the media center. According to the student, this caused him to experience panic attacks.
Regarding the other student, the district claimed that it accommodated her by allowing her to work in a downstairs location of the building. Although the principal reported otherwise, the student and teacher reported to OCR that they were not satisfied with this arrangement.
Under Section 504 and ADA Title II, districts must ensure that their facilities are accessible to and usable by people with disabilities so they are not excluded from a district’s programs or activities. A district must maintain accessible features and equipment in operable working condition, although temporary or isolated interruptions or mechanical hiccups are acceptable if they do not persist beyond a reasonable period of time.
Based on its investigation, OCR determined that the fact that the elevator was inoperable for most of the school year denied students with disabilities, including the two at issue in the case, access to district programs and activities and may have resulted in a denial of FAPE.
As a result, the district entered into a resolution agreement with OCR.
