The Sixth Circuit recently determined a school can be liable in a Title IX case for not responding to social media activity by students. A Nashville, Tennessee, high school student filed suit against the public school system, alleging it was deliberately indifferent to harassment related to her sexual assault and participation in the subsequent investigation. She alleged the school system was deliberately indifferent before the assault and after the assault, and also alleged equal protection claims under 42 U.S.C. § 1983.
According to the Sixth Circuit’s opinion, a video was recorded of the plaintiff during a non-consensual sexual encounter and posted on social media and third party websites. Other students harassed – the plaintiff.
The school’s Executive Principal learned about the video on the evening the incident occurred and the school set up a meeting with the plaintiff’s mother the next day. The plaintiff and her family received harassment and threats from other students on social media. The mother made a list of students who made the threats.
Although there were internal discussions at the school system before the meeting, the Title IX coordinator was not involved.
The plaintiff made a written statement of the incident during the meeting. She stated she “wanted to stop” the male student involved in the sexual encounter and the female student who recorded it, but could not get the courage to do so.
According to the opinion, the plaintiff and her mother “were taken to meet with” a detective, who assumed the incident was consensual. The plaintiff told him about the threats and identified one of the students responsible. She said someone threatened to shoot her mother. The detective suggested the plaintiff illegally participated in making child pornography.
The parties disputed what occurred in the subsequent meeting with the Executive Principal. The plaintiff and her mother testified the plaintiff said the sexual encounter was not consensual, but the Executive Principal said the plaintiff said it had been consensual. The district court concluded the plaintiff likely did not indicate the sexual encounter had been welcome. The mother testified she gave the Executive Principal the list of students who made threats. She also said she told her they were still getting threats. The list was in the Executive Principal’s investigation file and she seemed “defensive and evasive.” The detective testified the plaintiff and her mother intended to tell the Executive Principal about the threats. The Sixth Circuit also pointed out the Executive Principal was aware the video was still being circulated, even if she was not aware of the threats.
The Executive Principal suspended the plaintiff for three days at the end of the meeting. The Assistant Principal contacted the mother a few days later regarding social media messages between the plaintiff and another student. The mother again mentioned the threats, but the Assistant Principal told her to discuss it with the detective.
Following the suspension, the plaintiff entered an in-patient facility and did remote schooling. She continued remote schoolwork after she was discharged. The family moved out of the county for the next school year because they kept receiving threats even when the plaintiff did remote school. The trial occurred four years after the incident and the plaintiff was still suffering PTSD and other severe mental health disorders.
According to the opinion, the school system had a “widespread problem” of students distributing sexual photos and videos of themselves and each other. The students were aware of this issue and referred to it as “exposing.” According to the opinion, the school was also aware of past videos. Female students experienced bullying after being “exposed,” but male students became more popular.
Three other female students sued the school system alleging similar facts of recorded unwanted sexual contact, the video being distributed, and experiencing responses from other students that resulted in disruption of their education. The cases were consolidated.
While this case was pending, the Sixth Circuit decided Kollaritsch v. Michigan State University, which held a university is not liable for the first sexual harassment incident due to lack of actual notice. A student must show additional harassment after the first incident to have a plausible deliberate indifference claim. The district court granted summary judgment in favor of the defendant for the Title IX claim regarding the school’s actions before the incident, but allowed the claims for deliberate indifference after the incident to continue.
Following a trial on the plaintiff’s remaining claims, the district court found the defendant liable on the remaining Title IX claim, concluding the school had a duty to prevent “gendered interference [with the plaintiff’s] education after the threats the plaintiff and her family received. The court determined the incident was “sufficiently traumatic” to risk disrupting the plaintiff’s education such that it triggered the school’s Title IX responsibilities. The court also pointed out the school promptly responded to the video but did not act in response to the threats.
The district court also found the defendant was not liable for the plaintiff’s §1983 claim.
The district court awarded the plaintiff $75,000 for the school system’s deliberate indifference after the incident, reflecting lost educational services and emotional damages.
The parties appealed.
Title IX “Before” Claim
For a Title IX claim of deliberate indifference before the incident, the plaintiff must show a policy of deliberate indifference to sexual misconduct reports that created a known or obvious heightened risk of sexual harassment that was subject to the school’s control, and that the plaintiff suffered harassment to the extent it deprived her of access to the school’s educational opportunities.
The Sixth Circuit concluded that a reasonable jury could find the incident S.C. experienced was a result of the school system’s indifference to pervasive sexual misconduct. The court pointed out one of the other students who filed suit had a video of an “unwelcome sexual encounter” distributed just 10 days before the video of the plaintiff. According to the opinion, there were more than a thousand incidents of sexual misconducts at the system’s schools in the 2016-2017 school year. There was also evidence of multiple videos of unwelcome sexual contact being distributed and more than a dozen incidents of “photographic sexting” between 2012 to 2016. The Sixth Circuit vacated the summary judgment on the plaintiff’s Title IX claim and remanded for the district court to determine if the plaintiff provided sufficient evidence of the Title IX claim before the incident.
Title IX “After” Claim
A school whose response to student-on-student harassment is “clearly unreasonable in light of the known circumstances” is deliberately indifferent. Davis v. Monroe Cnty. Bd. of Educ. The court considers whether the school’s action constituted “an official decision. . . not to remedy the violation.” Foster v. bd. Of Regents of the Univ. of Mich.
The school system did not argue that the court erred in finding the Executive Principal and Assistant Principal both know of the threats and how they were disrupting the plaintiff’s education. The school did not take any action regarding the threats except have the plaintiff speak with the police. There was evidence that some of the threats occurred during school hours or in connection with the school. The Sixth Circuit concluded the school system failed to act according to Title IX and was therefore liable for deliberate indifference to the threats the plaintiff received.
The defendant argued the school did not have “substantial control” in the context of social media, where most of the threats were made. The Sixth Circuit pointed out that the school had disciplined students for circulating the video of the plaintiff over social media.
The school also argued that the threats had been made against the plaintiff’s whole family and therefore were not “gender-oriented.” The Sixth Circuit pointed out the threats were based on the plaintiff’s cooperation in the investigation and the Supreme Court has held that retaliation for a sex-discrimination complaint is itself sex-based discrimination in Jackson v. Birmingham Board of Education.
The Sixth Circuit determined the district court was correct in finding the defendant liable for deliberate indifference related to the threats and harassment.
Sixth Circuit Finds in Favor of Plaintiff
The Sixth Circuit also vacated any summary judgment in favor of the school system on the plaintiff’s § 1983 claim related to the school’s actions before the incident and remanded.
The Sixth Circuit affirmed the defendant’s liability for the plaintiff’s Title IX claim related to the events after the incident and the emotional distress damages award. It vacated the summary judgment on the plaintiff’s Title IX and § 1983 claims related to the school’s actions before the incident and remanded the case to the appeals court.
Seek an Experienced Title IX Defense Lawyer
The expectation that schools discipline students for social media messages could result in increased discipline against students for activity that occurs outside of school or on social media. If your child is accused of sexual harassment or misconduct involving social media, a knowledgeable Washington Title IX defense attorney can fight for your child. Schedule a consultation with Blair & Kim, PLLC, at (206) 622-6562.