OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
FEIKENS, District Judge.
Defendant school district moves for summary judgment on the Title IX (20 U.S.C. § 1681) and § 1983 claims brought against it by Plaintiff Jonathan Martin.
Jonathan Martin, who is openly gay, was a student at Swartz Creek High School during his freshman and sophomore years, but left the school midway through his sophomore year
Plaintiff claims that the school officials at Swartz Creek High School did not do enough to combat the peer-on-peer harassment he experienced during his attendance, and as a result, he was deprived of his right to an education, and his civil rights were violated (he brings both a due process and an equal protection claim). Although the motion for summary judgment relates to all three counts (Title IX violation; violation of equal protection under § 1983; violation of due process under § 1983), Plaintiff's briefs include no direct rebuttal of the motion regarding the due process or equal protection claims.
Below is the list of incidents that, seen in a light most favorable to Plaintiff, support claims of a pattern of harassment. It is separated into three categories: (1) those incidents described in Plaintiff's brief that school officials were allegedly or
1. A May 2002 incident in which a handwritten note reading "Up the Butt Giver" was included in a school mailing. The incident was reported to school officials. (Pl.'s Br. 3; Def.'s Br. in Support 4.) School officials could not identify the responsible party. (Def.'s Br. in Support 5-6.)
2. A September 2002 incident during the homecoming all-school assembly, where a fellow student, Jake V., loudly asked if Martin "could suck a gold ball out of a garden hose." (Pl.'s Br. 2.) Martin alleges he complained to both the school counselor and the principal about this. (Pl.'s Dep. 71, 74-75.) Defendant does not allege a specific response.
3. An October 25, 2002 incident where Jake V. poured nacho cheese on Martin's head in the lunchroom. (Pl.'s Br. 2; Def's Br. in Support 6.) Principal Michael Vanderlip spoke to Jake V., and Assistant Principal Jan Kauszlarich suspended Jake V. for three days. (Def.'s Br. in Support 7.) Defendant alleges there were no further complaints regarding Jake V. (Id.)
4. Distribution of a fake newspaper article titled "Jon Martin is accused of displaying flagrant homosexuality" by two students, Jake V. and Patrick R., as well as the posting of this article on Martin's locker. (Pl.'s Br. 4.) Martin alleges he reported the distribution to school officials. (Pl.'s Br. 13.) Defendant does not allege a specific response to the posting of the fake article, and it is not clear whether this incident regarding Jake V. occurred before or after the nacho cheese incident (see previous item).
5. Several incidents in which obscene messages were written on Martin's locker in the fall of 2002, including an incident where Patrick R. wrote "Fag Boy," which were reported to the administration. (Pl.'s Br. 4, 13.) Defendant agrees that the administration received complaints from Martin regarding this, but appear to contest that a specific student's name was mentioned in that complaint. (Def.'s Br. in Support 7.) Defendant alleges that Plaintiff's locker was cleaned each time it was defaced, that he was offered a locker at a new location, that the custodian was instructed to perform any needed cleaning immediately, and that a hall monitor was assigned to watch the locker with greater frequency. (Def.'s Br. in Support 8.) Defendant alleges this stopped the incidents. (Id.) Plaintiff alleges that the messages were allowed to remain on his locker for days, and that new ones appeared as soon as old ones were cleaned off. (Pl.'s Br. 4.)
6. An incident where several students sprayed Martin with water and shouted obscenities, witnessed by Kauszlarich; Martin also alleges he complained verbally about the incident to her at the time. (Id.) Defendant does not allege a specific response.
7. Plaintiff's April 15, 2002 complaint about Nick C. behavior. (Pl.'s Br. 13; Def.'s Br. in Support 3-4.) Kauszlarich met with Nick C. and according to
8. Plaintiff's May 2, 2002 complaint about Mike 0's behavior. (Pl.'s Br. 13; Def.'s Br. in Support 4.) Allegedly, assistant Principal Bedell spoke to Mike 0., and Defendant received no further complaints about Mike O. (Def.'s Br. in Support 4.) Plaintiff does not describe the nature or timing of his complaint about Mike 0., but lists him as one of the students he allegedly told administrators was a "primary" harasser. (Pl.'s Br. 13.)
9. An assault in the hallway, which was accompanied by the epithet "faggot." (Pl.'s Br. 3.) This incident was allegedly witnessed by several teachers. (Id.) Plaintiff does not describe the timing of this incident. Defendant does not allege a specific response.
10. An incident where students threw bb pellets at Martin in the presence of a teacher; Martin also alleges he verbally complained about the incident to the teacher at the time. (Id.) Plaintiff does not describe the timing of this incident. Defendant does not allege a specific response.
11. An incident where students made derogatory comments about "gay-dar" in the presence of Principal Michael Vanderlip that Plaintiff also verbally reported to Vanderlip. (Id.) Plaintiff does not describe the timing of this incident. Defendant does not allege a specific response.
12. "Continuous" punching and shoving in the hallways, about which Martin alleges he complained to Kauszlarich. (Pl.'s Br. 3; Pl.'s Dep. 50.) Defendant does not allege a specific response.
13. An alleged statement in a health classroom, "AIDS Cures Queers," which Martin complained about to a teacher. (Pl.'s Br. 3; Pl.'s Dep. 147.) Defendant does not allege a specific response.
14. An unspecified incident that led to Plaintiff reporting that Jeff K. had harassed him. (Pl.'s Br. 13.) Defendant does not allege a specific response.
15. Derogatory comments in the hallway, including "fucking faggot." (Pl.'s Br. 3.)
16. At least one incident of having his crotch and buttocks grabbed at by male students. (Id.)
17. A fight on February 26, 2002 that Martin had with Kaylee B. Defendant
18. A fight on March 25, 2002 that Martin had with Ryan A., for which both students were suspended by Kauszlarich. (Def.'s Br. in Support 3.) Defendant does not say why this fight was part of harassment (for instance, epithets used), but puts this incident under the heading "complaints about student harassment." (Id.)
19. Incidents in November 2002 where notes containing epithets were pushed inside of Plaintiff's locker,
In addition to these incidents, there are some additional factual allegations that are relevant. Defendant alleges it investigated and, when possible, responded to every complaint Plaintiff made. (Br. in Support 9-10.) All specific responses Defendant argues it made are summarized above. Defendant did not make a general allegation that it responded to incidents that occurred in the presence of school officials. Defendant argues Plaintiff has contradicted himself about whether reports of any incidents other than those Defendant discusses were made. (Def.'s Br. in Support 9.) Plaintiff claims that as a result of the harassment, he was brought to the "brink of suicide." (Pl.'s Br. 1.)
Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). A fact is material only if it might affect the outcome of the case under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must view the evidence and any inferences drawn from the evidence in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted); Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir.2001). The burden on the moving party is satisfied where there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The trial court has some discretion to determine whether the respondent's claim is plausible. Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079,
The Supreme Court teaches that in Title IX claims that allege peer-on-peer harassment, a school district may be liable for damages when it acts with deliberate indifference to acts of harassment of which it actually knew
There are two key published Sixth Circuit decisions applying the Davis decision: Soper v. Hoben, 195 F.3d 845 (1999) and Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253 (2000). In Soper, the court found the plaintiff's evidence to be insufficient to sustain a Title IX claim; in Vance, the Sixth Circuit found that the plaintiff's evidence met the Davis standard. Both of these cases relied on a three-prong test drawn from Davis:
Vance, 231 F.3d at 258-59 (citing Soper, 195 F.3d at 854).
Soper involved harassment, molestation, and rape of a female special education student on school property. The Sixth Circuit found the facts "obviously" demonstrated sufficient severity, pervasiveness, and objective offensiveness. 195 F.3d at 855. What the plaintiff lacked, the court said, was allegations to support a finding that the school district was deliberately indifferent. Id. After receiving the complaint,
During the 1994-95 school year, the plaintiff in Vance alleged that she continued to make complaints to school officials about hitting or other unwanted touching in virtually every class, including some specific incidents. Id. at 257. The plaintiff alleged that either school officials spoke with the students but otherwise did not punish them, or failed to respond altogether. Id. This behavior continued after the plaintiff filed her lawsuit, and following an alleged death threat, she withdrew from the school. Id.
In finding that the plaintiff in Vance met all three prongs of the Davis test, the Sixth Circuit stated that:
Id. at 261.
The Sixth Circuit found that the harassment alleged by the plaintiff was sufficiently severe, pervasive, and objectively offensive to meet the first prong. Finding the allegations in Vance were sufficient to show that the school district knew that "talking" to the responsible students, or even expelling one of them, had not ended the harassment, the Sixth Circuit found that allegations were sufficient to support the necessary finding a deliberate indifference. Id. at 262.
a. Severity, Pervasiveness, and Objective Offensiveness
Plaintiff alleges he experienced harassment by more than a half-dozen different individuals over a period of many months, including not only name calling, but several assaults and incidents of unwanted touching, which in some cases allegedly caused injury. (See, e.g., Pl.'s Dep. 52.) Plaintiff alleges the harassment occurred in the classrooms as well as in the halls, that he came to the "brink of suicide" as a result of the constant harassment, and that he transferred schools. (Pl.'s Br. 1.)
Although Plaintiff does not allege a rape or near-rape situation as in Soper and Vance, I do not believe that is required to find the harassment was sufficiently severe, pervasive, and objectively offensive under the standard articulated by the Supreme Court. The alleged conduct goes
b. Actual Knowledge
By its own admission, the Swartz Creek school district was aware of at least one incident (that supports a claim of harassment) in each of February, March, and April of 2002, and two incidents in May. (Def.'s Br. in Support 1-4.) It also admits that when school reconvened that fall, one incident in October required suspension, and in November, there were repeated problems with slurs written on and pushed into Plaintiff's locker. (Def.'s Br. in Support 6-7.) Plaintiff further alleges that beyond these incidents, he made many more complaints to officials, and that many incidents occurred in the presence of school officials. ("Factual Background" supra.) Defendant claims that school officials responded to all complaints, but does not specify the response to some incidents Plaintiff claims to have reported and fails to address entirely the response to several incidents Plaintiff says school officials witnessed. ("Factual Background" supra.) Thus, there is a question of fact for the jury on whether the school district had the requisite knowledge.
However there are two incidents (numbers 15 and 16) Plaintiff mentions that are not accompanied by an allegation that they were reported to school officials or witnessed by these officials. For these two incidents, there is no evidence supporting actual knowledge by Defendant. As a result, such incidents cannot be support for Plaintiffs case. Therefore, I find those two incidents cannot be considered when weighing the Title IX claim. Because the remaining incidents collectively satisfy both the severity prong and the knowledge prong, I will turn to whether there are sufficient allegations of deliberate indifference.
c. Deliberate Indifference
By its own admission, Defendant knew of and responded to at least one incident a month (and sometimes two) during the end of Plaintiff's freshman year and the beginning of his sophomore year. (Def.'s Br. in Support 1-7.) In other words, Defendant's factual allegations alone provide evidence of the school's awareness of continuing incidents of alleged harassment that did not diminish in frequency despite Defendant's response. (Id.) The admitted fact that Plaintiff continued to make complaints of harassment every single month, and that the school district's efforts to discuss these events or otherwise punish individual student harassers did not abate the frequency or severity of such incidents, might alone create a jury question of whether the school was deliberately indifferent (i.e., that it was required to take other types of action to eliminate the behavior in light of those circumstances). When coupled with Plaintiff's many allegations of behavior that was
d. Conclusion—Title IX Claim
I DENY summary judgment as to the Title IX claim, but note that any incident unaccompanied by an allegation of Defendant's knowledge cannot be used to support the Title IX claim.
Defendant moves for summary judgment on the equal protection claim brought under 42 U.S.C. § 1983, and Plaintiffs brief never responds to this portion of Defendant's motion specifically. "The Equal Protection Clause requires public institutions to `treat similarly situated individuals in a similar manner.'" Wayne v. Shadowen, 15 Fed.Appx. 271 (6th Cir.2001) (quoting Buchanan v. City of Bolivar, Tenn., 99 F.3d 1352, 1360 (6th Cir.1996)). "In opposition to a motion for summary judgment, it is plaintiff who possesses the burden of demonstrating that the defendants treated similarly situated individuals in a disparate manner." Buchanan, at 1360. Plaintiff makes no allegation that similarly situated individuals exist, much less that they were treated differently. Therefore, I GRANT summary judgment on the equal protection claim.
Defendant moves for summary judgment on the substantive due process claim, and Plaintiffs brief never responds to this portion of Defendant's motion specifically. To make a claim for damages under 42 U.S.C. § 1983, a plaintiff needs to show (1) a deprivation of a federal right (2) committed by an individual acting under color of law. See Collins v. City of Harker Heights, 503 U.S. 115, 120-21, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992); Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). The Sixth Circuit has held that a school district's failure to prevent peer-on-peer harassment is not a deprivation of a federal right, and therefore no § 1983 claim can lie in this situation. Soper v. Hobert, 195 F.3d 845, 852-53 (6th Cir.1999). Therefore, I GRANT summary judgment on the due process claim.
I GRANT IN PART and DENY IN PART Defendant's Motion for Summary Judgment. Specifically, I GRANT summary judgment on the equal protection and due process claims, and in addition, find that incidents for which there is no allegation of actual knowledge by Defendant cannot be used in support of the Title IX claim. I DENY the remainder of Defendant's motion on the Title IX claim, because the remainder of Plaintiffs allegations are sufficient for a reasonable jury to find a Title IX violation occurred.