David Stewart Cercone, United States District Judge.
Plaintiff commenced this civil rights action pursuant to Title IX and the Civil Rights Act seeking redress for defendant's alleged failure to remediate bullying and sexual harassment perpetrated by fellow students and its alleged retaliation against plaintiff for reporting the same. Presently before the court is defendant's motion to dismiss. For the reasons set forth below, defendant's motion will be granted in part and denied in part.
It is well-settled that in reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "the court [is required] to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party."
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
This is not to be understood as imposing a probability standard at the pleading stage.
The facts read in the light most favorable to plaintiff are as follows. In the fall of 2009, S.K. ("plaintiff") was a student entering the ninth grade at North Allegheny Intermediate School ("NAI"). NAI consists entirely of ninth and tenth grade students and is part of North Allegheny School District ("defendant" or "the district").
The next day, the first day of school, plaintiff and her parents reported the threatening messages to the principal of NAI, Brendan Hyland. Later that same day Hyland summoned plaintiff to his office over the school's loudspeaker. This announcement alerted the other students to the fact that plaintiff had reported the threats. During her visit to Hyland's office, plaintiff described the threatening Facebook posts and text messages and identified the student who was responsible, but declined to show Hyland her Facebook page. There is no evidence that Hyland or anyone else took any action to punish or otherwise discipline the students who were identified in this initial report.
Following these events, the students who sent the initial messages continued to threaten plaintiff, both via text message and verbally. One such verbal threat was made to plaintiff and a friend. The student said: "I'm going to slit your throats, that's a promise not a threat." Plaintiff and the friend reported this communication to Hyland. Hyland's only response was to bring the student into his office to have a talk with her. The perpetrator was not punished and was not subjected to any disciplinary action.
As the school year progressed, the harassment spread from being initiated by female students to being initiated by male students as well and the conduct became overtly sexual in nature. Plaintiff endured verbal harassment and sexual insults by other students on a daily basis. She was called "slut" and "cunt" as she walked through the hallways and she was frequently taunted about engaging in a multitude of sexual activities. On one occasion a photograph of plaintiff was altered so that a banana could be placed in her mouth. The picture was then distributed throughout the hallways of the school. On two occasions thereafter football players threw bananas at her and loudly proclaimed that she had herpes. After each incident plaintiff reported the offensive conduct to Hyland, the guidance counselor, and teachers. Plaintiff and her parents were repeatedly assured that the superintendent was aware of the situation and the students would be disciplined.
Plaintiff physically was assaulted on multiple occasions. She was pushed, shoved, and inappropriately touched by male students in the hallways. On one occasion, a group of football players pinned her against the lockers and held her there while others grabbed at and groped her in a sexual manner. This particular assault was witnessed by a faculty member who did nothing to stop the conduct or discipline the perpetrators. The offenders were not disciplined for their conduct. None received detention, suspension from school, or suspension from participation in athletics. The student perpetrators, who were members of the football and wrestling teams, were not even confronted.
Plaintiff was subjected to escalating abuse during her lunch period. Initially she was taunted and harassed in the cafeteria.
The harassment and bullying grew to the point where it began to permeate all aspects of plaintiff's life. Plaintiff was harassed when she attempted to attend afterschool events, like football games. In addition to the verbal harassment, male students would approach plaintiff from behind and grab or grope her as she attempted to watch the game. On at least one occasion a group of wrestlers approached her and tried to get her to go behind the bleachers and engage in sexual activities. Plaintiff received a threatening text message prior to a football game from a female student who stated that she planned to beat plaintiff with brass knuckles.
Plaintiff and her parents continued to report all of the incidents of harassment. Nevertheless, no significant measures were taken by the administration. At one point Hyland, who was also one of the school's football coaches, did suggest that if anyone bothered plaintiff at the football game(s) she should come out onto the field and get him.
Frustrated by what they perceived to be the lack of a satisfactory response from the school, plaintiff's parents filed a police report against a female student who had threatened plaintiff. The student denied sending a threatening message and claimed that her phone had been stolen and someone else had sent the message. This student later approached plaintiff in the school hallway and poured a drink on her head and physically assaulted her on multiple other occasions thereafter.
At parties outside of school, male students would attempt to isolate plaintiff and get her to engage in sexual activities. Female students spread rumors about plaintiff and attempted to instigate physical altercations with her. At one party a group of older girls convinced plaintiff to participate in a "rap battle." They then recorded her performance without her knowledge.
Plaintiff received a copy of the video and then shared it with a male student who was a member of the wrestling team. Plaintiff attended a basketball game and the male wrestler was present. During the course of the night, he threw bottles at plaintiff, called her sexually charged names, and grabbed and shook her. Plaintiff was very upset and her parents attempted to speak directly with the wrestler's parents. The wrestler then distributed the rap video of plaintiff to the entire school. The rap video `became an anthem of the students set on sexually harassing' plaintiff. It was played by these students repeatedly in the halls, on the bus, and even in the classroom. Although plaintiff and her parents asked for assistance from the district, the only advice they received was the suggestion that plaintiff transfer out of NAI.
The level of harassment grew to the point where students showed up at plaintiff's place of employment to torment and harass her. This behavior disturbed her employer so much that he personally contacted school district officials and requested that they get the situation under control. No students were disciplined for their behavior.
Hyland was under the impression that the students feared him and that any student engaging in misconduct `would crumble in front of him' when he confronted them. He stated this belief to plaintiff and her parents in response to their repeated reports and complaints that the harassment and threats were continuing unabated. By this juncture, harassing and bullying plaintiff had grown to the point where
The humiliation and stress caused by the relentless harassment took an emotional toll on plaintiff. She gave up attempting to report it because all her previous attempts had been in vain.
In February of 2010, plaintiff attempted to take her own life. Even after this tragic incident the students continued to make derogatory comments about plaintiff and spread rumors. These included stories about her purported death. Again, no action was taken by school officials.
At this time plaintiff's parents requested to speak directly to the school board. The superintendent then scheduled a private meeting with them and discouraged them from doing so. She assured plaintiff and her parents that she would handle the situation personally. Plaintiff provided the superintendent with a list of the offenders, but to plaintiff's knowledge no disciplinary action was ever taken against any of them.
The district officials repeated their suggestion that plaintiff transfer to another school. The school psychologist, who had never met with plaintiff, told plaintiff's parents that she had found the "perfect school." Plaintiff and her parents visited the school and discovered that it was an alternative school for troubled children. Hyland offered plaintiff a brand new laptop as a means of inducing her to transfer. Plaintiff decided to finish her freshman year at Mars School District. Her tuition was paid by the district. It presumably would not have paid the tuition if it would have been able to control and eliminate the disturbing conduct.
Following the transfer plaintiff's parents spoke to the school board about the harassment their daughter had endured and the grave consequences it produced. They spoke about their unsuccessful efforts to persuade the school officials to intervene and their frustration from the school officials' inability to do so and bring the situation under control. They emphasized the need for change.
Believing that their speech to the board would result in the district taking a more proactive approach to bullying and sexual harassment, plaintiff's parents sent her back to NAI for her sophomore year. Plaintiff hoped that her sophomore year would be different because most of the harassers had been tenth graders and therefore had matriculated out of NAI. Unfortunately, plaintiff continued to experience harassment by her peers upon her return to NAI and the inference was raised that the administration had taken no, or at the very least, ineffective action to combat the behavior during plaintiff's absence.
Plaintiff and her parents met with school officials after it became clear that the harassment and bullying were going to continue. Those officials then explained that they had never seen bullying to this extent, and they did not know how to handle it. They seemingly admitted that they were unable to eliminate the harassment and the `discipline' that had been used appeared to be ineffective because it only fueled more of the same. They suggested that plaintiff transfer to another district. Given the bleak prospects for a normal sophomore experience at NAI, plaintiff returned to Mars.
At times the harassment was witnessed by faculty. This was particularly true of the physical assaults, which took on a clear sexual overtone. Also, some of the most overt acts of sexual humiliation and innuendo, such as posting pictures of plaintiff, occurred in school hallways. Perpetrators were not held accountable for their behavior.
A number of the perpetrators were male athletes who participated in football and wrestling. These students were able to accost, grope, and mercilessly humiliate plaintiff without consequence, even when it was witnessed by faculty. Hyland was the coach of the football team.
The "sport" of harassing plaintiff grew to the point where the police were notified and it spilled into plaintiff's private employment. School officials failed to address and control the situation even after the harassment repeatedly was brought to their attention.
Plaintiff's amended complaint purports to advance the following counts: discrimination in violation of Title IX (count one); retaliation in violation of Title IX (count two); and First Amendment retaliation and denial of equal protection under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 (count three).
Defendant sets forth a multitude of reasons in support of its motion to dismiss. First, plaintiff assertedly fails to set forth a viable claim for Title IX discrimination because Hyland's actions were aimed at curtailing the harassment and the district's assistance in helping plaintiff transfer to Mars School District demonstrate as a matter of law that defendant was not deliberately indifferent to plaintiff's plight. Second, a Title IX retaliation claim has not been stated because the complaint does not identify any materially adverse action taken against plaintiff in retaliation for her attempts to seek redress through school officials. Third, a viable
Plaintiff contends that her complaint sets forth an adequate showing of entitlement to relief on all counts. She asserts that she and her parents made defendant aware of ongoing harassment and bullying which escalated and continued unabated over a period of several months, culminating in plaintiff's attempted suicide and transfer to another school district — all of which suffices to set forth a showing that defendant was on notice that its efforts to remediate the situation were ineffective; and the continued use of those efforts reflected an unreasonable course of conduct that was deliberately indifferent to the harassment and plaintiff's rights. A retaliation claim under Title IX has been stated because defendant failed to enforce its anti-harassment policy and then insisted that plaintiff bear the consequences of the students' responses to her complaints: escalating and more intense harassment, culminating in her removal from the school
Plaintiff's complaint adequately pleads a discrimination claim in violation of Title IX of the Education Amendments of 1972. Title IX states in part that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).
It is settled that a funding recipient's deliberate indifference to sexual harassment of a student by another student can constitute sex discrimination under Title IX.
It is undisputed that NAI receives federal financial assistance pursuant to Title IX and that plaintiff avers that sexual harassment occurred. It also is clear that the asserted harassment occurred under circumstances wherein the school district exercised substantial control over both the victim and the harassers. Most of the alleged physical harassment occurred on school property while school was in session or at school-sponsored events such as football and basketball games. And the harassment assertedly became so prevalent that it spilled into plaintiff's place of employment and an afterschool party. Thus, the first, second, third and sixth elements have been advanced with sufficient factual content.
Defendant essentially challenges the amended complaint's factual showing as it relates to the fourth and fifth elements. A school district has knowledge under Title IX if an "appropriate person' has `actual knowledge of discrimination in the recipient's programs" and/or is aware of underlying facts that actually indicate a substantial danger to its students.
It is sufficiently alleged that defendant had actual knowledge of the harassment. Beginning with the first day at NAI and continuing over the course of several months plaintiff and her parents made numerous reports of harassment to both Principal Hyland and the superintendent, each of whom claimed they would "handle" the situation. A school principal and a school district superintendent are appropriate school officials to whom student-on-student harassment should be reported and each is capable of taking corrective action to eliminate the inappropriate conduct.
The amended complaint likewise sets forth a factual basis to support the deliberate indifference requirement. If a school district was in fact aware of the harassment, then the inquiry progresses to whether the district was "deliberately indifferent" toward the discriminatory conduct. If an agent of a funding recipient does not participate in the harassment directly, the recipient cannot be liable unless its deliberate indifference "subjects" the student to harassment. In other words, a school district's actions or inactions must at a minimum "cause [a student] to undergo" harassment or "make [him or her] liable to or vulnerable" to it.
A finding of deliberate indifference depends on the adequacy of a school district's response to the harassment.
Defendant contends that plaintiff cannot sufficiently establish that it acted with deliberate indifference because Hyland took several steps to curtail the harassment, including meeting with plaintiff, confronting a student who had sent threatening messages, providing plaintiff with sheltered access from other students, and expressing a willingness to break from his coaching role if plaintiff alerted him to harassment during a football game. In addition, the district permitted plaintiff to transfer to another district and paid at least some of her tuition costs.
A school district's mere response to reports of unlawful harassment does not in itself defeat an assertion that it was deliberately indifferent.
A reading of the complaint in accordance with the applicable standards and scope of
These "responses" were undertaken in the following context. It is averred with sufficient factual examples that the harassment became more prevalent and severe over the course of several months. It began to encompass sexually degrading taunting and humiliation, sexual groping and grabbing and physical aggression. Although the harassment grew in intensity, none of the harassers were punished or disciplined beyond simply being spoken to by Hyland.
The failure to undertake different or additional measures where it has become apparent that the initial approach has proved to be woefully insufficient supplies a factual basis to permit a finding of deliberate indifference. As the majority in
The scenario constructed by the instant complaint is sufficiently similar. It is alleged in an adequate factual context that defendant failed not only to eliminate the ongoing harassment of plaintiff from the school environment, but also failed to impose any type of punishment that would deter the students from perpetuating the behavior. The conduct repeatedly was reported to appropriate officials and yet it continued undeterred. It escalated to the point where it essentially was open, notorious and prevalent and became `its own sport` among certain of the school's athletes. It began to permeate plaintiff's afterschool activities to the point where plaintiff's employer was so disturbed by the behavior that he personally contacted school officials and requested that they get the situation under control. And still nothing beyond the threat of a verbal reprimand was offered or undertaken.
Against this backdrop the complaint fails to identify any meaningful measures that were undertaken by Hyland, the superintendent or any other district official after it became clear that the initial measure of a verbal reprimand by Hyland had proved to be ineffective. Hyland and the superintendent each assured that the situation would be addressed and resolved. Plaintiff's parents were dissuaded from going directly to the school board. Nevertheless, nothing was implemented to curb the escalating abuse. It follows that plaintiff has averred sufficient facts to state a claim that the district acted unreasonably in light of the circumstances and in a manner that will permit a finding of deliberate indifference.
Plaintiff has set forth a plausible showing of entitlement to relief for sexual harassment in violation of Title IX. Defendant's request to dismiss this claim will be denied.
Defendant's contention that plaintiff has failed to state a claim for retaliation under Title IX stands on different footing. Plaintiff's complaint fails to advance sufficient factual content to show that adverse action was taken against her because she complained about the school environment.
Although the statute does not specifically mention retaliation, it is settled that retaliatory conduct is within the broad prohibition of "discrimination" made unlawful by Title IX.
Plaintiff's averments easily satisfy the first and second requirements. It is asserted throughout the complaint that she and her parents reported a number of the incidents of bullying and harassment. These complaints were made to Hyland and/or the superintendent, each of whom presumably were aware of the evolving environment and had the ability to implement corrective measures. Thus, the requisite showing has been made for the first two requirements.
Plaintiff has fallen short of meeting the third prong because the complaint does not allege specific action taken by the district that can be found to be "materially adverse" within the meaning of Title IX's prohibition against retaliation. To satisfy this requirement plaintiff must identify action that is adverse to a degree that it "might well have dissuaded a reasonable [person] from making or supporting a charge of [or complaint about] discrimination."
The assessment of whether particular conduct or action can be found to be retaliatory is to be undertaken with particular attention to the attendant and surrounding circumstances.
Moreover, a material adverse action is one that "produces injury or harm."
Here, plaintiff asserts that Hyland's half-hearted effort to eradicate the conduct, the effects of that effort in emboldening the harassing students, and the district's subsequent efforts to persuade plaintiff to transfer to an alternative school are sufficient to support a claim of retaliation. She explains:
Plaintiff's Brief in Opposition (Doc. No. 37) at p. 17-18.
Plaintiff's position that a claim of retaliation can be set forth and proven by showing the district was unable to curb the harassment and/or did not sufficiently discipline her harassers, thus subjecting her to additional harassment, is misguided. It is apparent that plaintiff can point to nothing more than the affirmative measures that defendant employed to eradicate the bullying and harassment and the ultimate failure of those measures to curb the hostility to support her claim(s) of retaliatory conduct. But the shortcomings of defendant's efforts to eliminate the sexually discriminatory environment cannot bear the weigh that plaintiff seeks to attach to them.
To show materially adverse action plaintiff advances the very conduct that forms and gave rise to her complaints of discriminatory conduct. Such circular reasoning seeks to circumvent the Supreme Court's admonishment against focusing on the original claim of discrimination in order to assess whether an objective showing of retaliatory action has been made.
Moreover, plaintiff's position seeks to circumvent the showing of intentional conduct needed to recover on a claim of retaliation. The scope of liability under Title IX is limited to the reach of its "prohibition on intentional sex discrimination."
To be sure, retaliation taken against an individual because that individual has complained about sex discrimination is a covered form of discrimination under Title IX.
Plaintiff does not ground her claim of retaliation in a form of action that directly can be attributed to defendant; admittedly, her claim of retaliation is predicated on the consequences of defendant's malfeasance in responding to discrimination by fellow students. But these students already had set upon perpetrating that conduct. In fact, plaintiff has averred that it was prevalent to a disturbing degree and the students who were engaging in the conduct
Against this backdrop there is nothing in the course of defendant's response that will support a direct or inferential showing that defendant independently intended to bring about more or additional harassment by plaintiff's fellow students because she had complained about the environment or defendant's botched efforts to control it. In other words, while plaintiff has alleged and made a plausible showing that the bullying and harassment was pervasive and continued notwithstanding any efforts to eradicate it, and that conduct was perpetrated on the basis of plaintiff's sex, she has at best only made a showing that it was `possible` that defendant intentionally chose to fail in its remedial efforts in order to subject plaintiff to additional bullying and harassment for reporting the same.
It is plaintiff's burden to make a plausible showing that the identified action intentionally was implemented to cause harm or injury because complaints were made about sexual discrimination.
The same is true with regard to plaintiff's contention that defendant effectively forced plaintiff to transfer to another school. Bald and conclusory assertions of cause and effect simply fall short of the level of factual setting and context required to state a claim. It cannot be questioned that plaintiff made the decision to transfer to Mars School District when defendant's efforts to control the discrimination assertedly proved to be inadequate. But the assertion that defendant intentionally failed to gain control over the environment in order to bring about such an injury to plaintiff amounts to nothing more than unsupported speculation. Such speculation falls short of the factual grounding needed to advance a plausible showing of entitlement to relief.
Plaintiff's attempt to anchor her retaliation claim in the framework of the hostile school environment and `constructive transfer` likewise fails to set forth a causal connection between the protected activity and the adverse action. The first step in any assessment of a retaliation claim is to identify what conduct, if any, a reasonable jury could causally link to the existence of retaliatory animus.
In short, making a plausible showing that defendant was deliberately indifferent in preventing further harassment from students and acted unreasonably once it became clear that the measures it took to eliminate the harassment proved to be ineffective does not make a plausible showing that defendant intentionally took adverse action in order to retaliate against plaintiff for complaining about the environment. Something more than the mere statement of a claim for student-on-student sex discrimination under Title IX is required. Plaintiff has failed to supply the factual averments and context that will permit an inference that defendant harbored retaliatory animus and acted on it by engineering a particular course of additional student-based harassment. Having failed to make such a plausible showing with regard to any form of intentional adverse conduct attributable to defendant, it follows a fortiori that a plausible showing of a causal connection between plaintiff's complaints and the alleged forms of retaliation has not been set forth. For these reasons, plaintiff has failed to plead a plausible claim of retaliation in violation of Title IX.
Plaintiff's attempts to graft a civil rights claim out of defendant's response to the student-based sexual harassment likewise are wide of the mark. In general, § 1983 does not itself create substantive rights, but instead provides a vehicle for vindicating a violation of a federal right.
"[I]n any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated."
Plaintiff's § 1983 claim for First Amendment retaliation suffers from the same shortcomings that preclude a claim for retaliation under Title IX. In order to plead a retaliation claim under the First Amendment, a plaintiff must allege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his or her constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.
Plaintiff's complaints to defendant concerning the failure to eradicate or otherwise control the discrimination being perpetrated within the school environment seemingly are entitled to protection under the First Amendment."
Notwithstanding the protection afforded to plaintiff's speech by the First Amendment, plaintiff's attempt to plead a retaliation claim falls short because the complaint lacks facts that set forth a plausible showing that defendant took retaliatory action against plaintiff because she engaged in the expressive activity, i.e. complained about the school environment. In other words, plaintiff's complaint fails to make a plausible showing that defendant took action or inaction with the intent to cause additional sexual harassment to be inflicted in order to punish plaintiff for complaining. Founding the inference that defendant did so on its inability to control the environment or its deliberate indifference to the effect the harassment had on plaintiff's rights conflates the showing needed to support a First Amendment retaliation claim with that needed to state a sex discrimination claim based on a hostile environment. Such a showing is insufficient.
Once again, plaintiff must make a plausible showing that her reports of harassment gave rise to action by defendant that was intended to deter or punish her for making the reports. In other words, the factual allegations must give rise to a reasonably founded expectation that discovery will reveal evidence to support the element that plaintiff's complaints were a motivating factor in a response that was intended to punish or deter plaintiff for making the complaints.
Plaintiff's attempt to set forth a plausible claim for violation of her rights under the Equal Protection Clause of the Fourteenth Amendment suffers from similar shortcomings. "Under the Fourteenth Amendment, no State shall "deny to any person within its jurisdiction the equal protection of the laws.'"
The Supreme Court has recognized that Title IX was not intended "to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for § 1983 suits as a means of enforcing constitutional rights."
"To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class."
Plaintiff asserts that she can advance an equal protection claim that is akin to a selective enforcement claim. She highlights a line of authority recognizing that "[t]he Equal Protection Clause prohibits the "selective enforcement" of a law based on an unjustified standard."
Plaintiff's Brief in Opposition (Doc. No. 37) at 15.
Plaintiff's reliance on the prohibition against selective enforcement is unavailing. To be sure, "it has long been established that discriminatory enforcement of a statute or law by state and local officials is unconstitutional."
Unconstitutional application or administration of a facially impartial law arises when an individual acting under color of state law enforces a law "on the basis of an unjustifiable standard, such as race, or religion, or some other arbitrary factor` or when it is enforced "in order `to prevent the exercise of a fundamental right."
Here, plaintiff has failed to identify any disparate application of a statute, ordinance or rule to her and another individual. Plaintiff herself was not subject to discipline or punishment pursuant to the school's anti-discrimination/bullying policies for engaging in sexual harassment or bullying. The gravamen of her complaint is that the policies assertedly designed to protect her (as well as every other student) were not enforced against others, resulting in her being subjected to ongoing harassment and bullying. Such a comparison fails to satisfy the basic requirement that the disparate enforcement involve an application of a common rule, ordinance or policy to similarly situated individuals.
Plaintiff's effort to state a claim against the district premised on the Fourteenth Amendment's prohibition of sexual discrimination also is wide of the mark. The Equal Protection Clause does confer a constitutional right to be free from sex discrimination.
Although both Title IX and the Equal Protection Clause protect against sexual harassment in the school environment, their respective applications do not necessarily produce parallel or even consistent results.
The standards for establishing liability under Title IX and § 1983 are not wholly congruent.
In order to establish municipal liability a plaintiff must prove that "action pursuant to official municipal policy caused the deprivation" of a federal right.
Proving a government policy or custom can be accomplished in a number of ways.
Here, plaintiff has alleged that the school environment was permeated with sexual harassment to the degree that harassing her had become its own sport. But knowledge of this state of affairs is by plaintiff's own allegations limited to Hyland and the superintendent of the district. Predicating liability solely on the knowledge and inactions of these individuals would be nothing more than a thinly veiled application of vicarious liability pursuant to the respondeat superior doctrine. Liability against defendant cannot proceed on this basis.
Beyond referencing the "knowledge" of the environment and by inference Hyland's inability to eradicate the treatment of plaintiff by her fellow students, plaintiff identifies two "executive" policies to support the imposition of
These identified "policies" are not proper grounds for advancing a claim at the pleading stage. As the Third Circuit recently reiterated, in reviewing the sufficiency of a complaint pursuant to a motion to dismiss, a court is to "identify those allegations that, being merely conclusory, are not entitled to the presumption of truth."
Here, the assertion that defendant decided not to offer plaintiff an equal opportunity for an education, had a discriminatory motive in implementing each measure taken to shelter plaintiff from the harassment and "adopted a policy" to punish the victim rather than the harassers are mere conclusions of law. Consequently, the identified "policies" are not entitled to a presumption of truth.
Plaintiff does allege as historical fact that her parents became so frustrated with Hyland and the superintendent's failure to eradicate the harassment and bullying that they appeared at a school board meeting after plaintiff left NAI in her freshman year and gave an impassioned speech that outlined the harassment that had occurred and the effects it had on plaintiff. They raised their unsuccessful efforts to persuade school officials to intervene and stop the harassment and emphasized the need for change. Believing this public remonstration would cause school officials to become more proactive, plaintiff and her parents then made the decision to permit plaintiff to return for her sophomore year. As noted above, the harassment and bullying continued unabated.
Plaintiff has alleged that through the impassioned speech the board became aware that Hyland and other school officials had not intervened on plaintiff's behalf to a degree necessary to eradicate the student-based harassment and bullying. It also became aware that plaintiff's parents believed that a more proactive approach at NAI was needed to stifle this behavior in relation to the manner in which it had been perpetrated against plaintiff.
The inference is thus raised that the board became aware that the anti-harassment and bullying policies as administered at NAI had proven ineffective with regard to the specific treatment of plaintiff by her fellow students. In addition, the board became aware that plaintiff's parents believed that implementing a more proactive approach was necessary to change the atmosphere
The above referenced facts and inferences fail to identify an official declaration, proclamation or edict that was adopted by the board. Through these allegations plaintiff does not challenge the facial validity of NIA's anti-discrimination/bullying policy. Thus, an act adopting or setting forth an official policy by the board has not been identified.
Plaintiff likewise has failed to aver facts that would support a finding of the existence of a custom or policy. Such informal practices must be so wide-spread, persistent and well-settled as to constitute a virtual reflection of law. The inability to control the harassment and bullying perpetrated on plaintiff, as persistent and routine as it was, reflects the averment of a tragic scenario involving one student and thus lacks the permanency, uniformity and broad application inherent in a municipal custom or practice that has assumed the force of law.
Assuming for the sake of argument that plaintiff is attempting to advance a "policy" or "custom" predicated on the board's failure to take action after the impassioned speech, the amended complaint still fails to set forth a claim for municipal liability. In this regard "it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality."
Plaintiff has failed to make a plausible showing that the asserted failure of the board to take some measure such as changing its existing anti-harassment/bullying policy and/or mandating the implementation of a more proactive approach in administering the same amounted to deliberate indifference that was an independent cause of the ongoing harassment and plaintiff's subsequent transfer from NAI. As an initial matter, plaintiff's allegations of a "policy" being implemented by the board are anchored in a contention that it failed to act in response to the impassioned speech. The Third Circuit repeatedly has declined to permit claims to proceed where they are founded on a failure to act.
Plaintiff's contention that defendant made a conscious choice to have her bear the brunt of the harassment in order to punish her and convince her to transfer from the district is at best ungrounded speculation. The impassioned speech was given after plaintiff had transferred to Mars School District in her freshman year. The notion that the board was placed in a situation where it had to make a conscious choice among varying alternatives at that point, one of which involved a significant risk of violating plaintiff's or other student's constitutional rights, is conjecture. Such speculation and conjecture fall short of the showing needed to proceed.
The same is true with regard to the factual underpinnings of the board's knowledge about the potential for ongoing harassment and/or bullying when plaintiff made the decision to return to NAI at the beginning of her sophomore year. To the contrary, the proposition that plaintiff's mere return to the district without more demonstrated to the board that her rights would be further violated is belied by plaintiff's parents' belief that the harassment would be less than systematic and pervasive due to a change in school officials' attitudes engendered by the speech and the matriculation of the upper classmen.
Moreover, even giving plaintiff the benefit of all doubt, the impassioned speech did not provide grounds to believe the board would have had knowledge that the failure to implement a more proactive anti-harassment and bullying policy would constitute a violation of plaintiff's constitutional rights. "A pattern of similar constitutional
Plaintiff's allegations are limited to the harassment perpetrated against her and fail to identify any basis for assuming that the board was aware of instances where student-initiated harassment or bullying perpetrated on other students was not controlled by the existing school officials and/or NAI's established policies and practices in dealing with such conduct. Accordingly, the amended complaint fails to set forth a factual showing that supports the elements of deliberate indifference and causation as to plaintiff's § 1983 municipal liability claim and this claim must be dismissed for these reasons as well.
Plaintiff's amended complaint fails to set forth a sufficient factual setting to identify the existence of a municipal policy or custom that can give rise to § 1983 liability. Consequently, plaintiff cannot proceed against defendant on a municipal liability claim for violation of equal protection predicated on sexual harassment.
For the reasons set forth above, defendant's motion to dismiss will be denied as to plaintiff's claim for sexual harassment in violation of Title IX and granted in all other aspects. An appropriate order will follow.
The United States Court of Appeals for the Third Circuit has reiterated this principle on a number of occasions.
Most recently, the Third Circuit specifically held that school officials do not have a duty to protect students from bullying in the form of threats, assaults and intimidation based on race, notwithstanding the compulsory school attendance laws and the concomitant in loco parentis authority and discretion generally exercised by school officials.