Davidson County Board of Education (Joe Raedle/Getty Images)
A divided federal appellate court on Thursday resurrected a lawsuit filed against Metro Nashville Public Schools by the parents of two students who were sexually assaulted and videos of their attacks posted online in two different incidents at two different high schools.
A two-judge panel of the 6th Circuit U.S. Court of Appeals struck down a lower court ruling dismissing the two cases against Metro Nashville and ordered U.S. District Judge Aleta Trauger to judge anew “whether the students have presented sufficient evidence” to force a trial.
The majority opinion ruled there was enough evidence of “deliberate indifference” by Metro Nashville Public Schools in cases of sexual harassment and assault at its school in the years prior to the attacks – one at Maplewood High School in 2016 and one at Hunters Lane High School in 2017 – to support the parents’ lawsuits.
“During discovery, Jane Doe and Sally Doe requested disciplinary records across MNPS schools from 2012 to 2016 related to sexual misconduct, resulting in documentation of ‘over 950 instances of sexual harassment, over 1200 instances of inappropriate sexual behavior, 45 instances of sexual assault, and 218 instances of inappropriate sexual contact,” the opinion stated. “Many of those incidents involved students taking and/or distributing sexually explicit photographs or videos of themselves or other students.
“Despite the frequency of inappropriate sexual behavior in MNPS facilities, the incidents were handled on an individual basis by the principal of the school in which the sexual offender was enrolled,” the opinion stated. “To hold MNPS is immune from liability as long as no student is assaulted twice, regardless of its indifference to widespread instances of sexual harassment across its schools, would defeat (federal law’s) purpose of eliminating systemic gender discrimination from federally funded schools.”
Sixth Circuit Judge Ralph B. Guy Jr., parted ways with his two female judicial colleagues, Judges Julia Gibbons and Karen Moore, in the case. In a dissent, Guy contended his colleagues were stretching the law at issue — Title IX and its protections against sex discrimination in publicly-funded schools — out of a sense of outrage, not legal principle.
“The urge to want to blame someone for failing to prevent the sexual misconduct inflicted on Jane in the stairwell and Sally in the bathroom — albeit by different perpetrators at different high schools — and the subsequent peer-to-peer sharing of videos of those encounters cannot justify supplanting or side-stepping what is required to hold a school district liable under Title IX,” Guy wrote.
“The majority seems to suggest that evidence of MNPS’s indifference may be found in the summary of disciplinary actions,” Guy continued. “What to make of those numbers, however, is less than clear. In terms of magnitude, MNPS is a particularly large district with an enrollment of nearly 80,000 students that operates more than a hundred schools, including twenty-some high schools.”
Sex, lies and videotape
A freshman at Maplewood High School, identified in court records only as “Jane Doe,” and another female student were sexually assaulted by four upperclassmen in a stairwell at the school in September 2016.
“Unbeknownst to Jane Doe, the incident was recorded on video and circulated,” the majority opinion stated. “Jane Doe later became aware of the video and that people were calling her ‘slut’ and ‘whore.’ Jane Doe’s brother also found out about the video and informed their parents.”
The girl’s parents, in turn, notified Maplewood Assistant Principal Marvin Olige, “explaining the video was made without Jane Doe’s knowledge and was being circulated at the school,” the opinion stated.
Between 2012 to 2016, there were over 950 instances of sexual harassment, over 1200 instances of inappropriate sexual behavior, 45 instances of sexual assault, and 218 instances of inappropriate sexual contact in Metro Schools. Many of those incidents involved students taking and/or distributing sexually explicit photographs or videos of themselves or other students.
– MNPS records cited by the 6th Circuit Court of Appeals
Her return was short-lived, according to the opinion.
“She was afraid to remain at Maplewood and enrolled in a new school the next day,” the opinion stated.
It is not clear from the opinion if Maplewood officials took any action against the attackers or took steps to investigate the creation and airing of the video of the attack.
Five months later, a freshman at Hunters Lane High School, identified in the opinion as “Sally Doe,” “was led to the bathroom by a male student and pressured into performing oral sex,” the opinion stated. “The male student videoed the incident without Sally Doe’s knowledge.”
The girl was questioned soon after the assault by Assistant Principal Melanie McDonald and asked to provide a written statement, the opinion stated. In the statement, the girl — unaware the male student had videoed the bathroom encounter — said she and the boy “only talked,” the opinion stated.
”About a month and a half later, a female student posted the video of Sally Doe in the bathroom on Instagram,” the opinion stated. “Several of Sally Doe’s friends saw the video, and a family member sent the video to her mother. Sally Doe’s mother and grandmother went to Hunters Lane and met with (Assistant Principal Nicole) Newman and (a school resource officer) to report the video.
“Sally Doe’s mother told Newman she wanted something done and her daughter protected, but Newman told her it was now a criminal matter and to contact Metro Police,” the opinion continued. “After the video was circulated, Sally Doe was called names in the hallway and threatened. Sally Doe’s mother emailed Newman detailing the harassment and seeking an alternative arrangement for the rest of the school year.
“Newman helped arrange for Sally Doe to finish the rest of the school year at home,” the opinion stated. “Sally Doe returned to Hunters Lane during the summer. Again, Sally Doe was called names, such as ‘slut’ and ‘whore.’ Sally Doe’s mother told McDonald, and McDonald said she would keep an eye out for Sally Doe.
“Sally Doe also attended Hunters Lane for the 2017–18 school year,” the opinion continued. “That year, a male student touched Sally Doe’s buttocks when they were in class taking a picture and posted the photo to social media. This resulted in a fight involving three students, including Sally Doe.”
Sally Doe’s parents eventually decided to homeschool her, the opinion stated.
The parents of Jane Doe and Sally Doe sued Metro Nashville Public Schools in 2017, alleging the school system had violated Title IX protections through “deliberate indifference” to prior complaints of sexual harassments and assaults in its school and to the two girls’ plight after videos of their attacks were posted online and circulated.
Trauger, the district court judge assigned the two cases, eventually ruled in favor of Metro Nashville. She concluded there was not enough evidence to show the school system knew there was a problem and, despite that evidence, chose to ignore it. She dismissed both lawsuits. Attorney Mary Parker appealed Trauger’s ruling on behalf of both students.
In its Thursday decision, the 6th Circuit majority panel said Trauger was wrong both in her interpretation of relevant caselaw and her conclusion that Metro Nashville was unaware of a sexual harassment problem in its schools.
“As the disciplinary records cited by Jane Doe and Sally Doe demonstrate, MNPS was aware of issues with sexual harassment in the school system well before the two students reported their incidents,” the majority opinion stated. “Many of these incidents involved photos or videos.
“The district court determined, in light of the school’s response, ‘the facts were not sufficient to allow a reasonable juror to conclude that the school was deliberately indifferent’ to (the two students’) harassment,” the opinion continued. “We disagree.
“A reasonable jury could conclude that, rather than take steps to remedy the violation, MNPS opted to avoid the problem,” the majority concluded.
The two cases now return to Trauger’s court for further proceedings.
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