Students harassed because of their real or perceived affectional/sexual orientation in public schools may claim constitutional violations. The following constitutional amendments have been raised:
Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a), creates a cause of action for sexual harassment in schools. There was no mention of application to sexual orientation minorities, therefore legislative history research is inapplicable. The U.S. Dept. of Education, charged with interpreting Title IX, has issued guidelines regarding sexual orientation harassment which provide:
The Guidance has been clarified to indicate that if harassment is based on conduct of a sexual nature, it may be sexual harassment prohibited by Title IX even if the harasser and the harassed are the same sex or the victim of harassment is gay or lesbian. If, for example, harassing conduct of a sexual nature is directed at gay or lesbian students, it may create a sexually hostile environment and may constitute a violation of Title IX in the same way that it may for heterosexual students.
The Guidance provides examples to illustrate the difference between this type of conduct, which may be
prohibited by Title IX, and conduct constituting discrimination on the basis of sexual orientation, which is not prohibited by Title IX. The Guidance also indicates that some State or local laws or other Federal authority may prohibit discrimination on the basis of sexual orientation.
62 Fed. Reg. 12034(1997).
According to The Office of Civil Rights of the U.S. Education Department, "Title IX" imposes liability when
a school fails to remedy discrimination once the school has notice; sexual orientation discrimination violates Title IX when the complaint alleges sufficient facts for a jury to determine that the discrimination was because of sex or involved sex stereotyping. Sexual Harassment of Students by School Employees, Other Students or Third Parties, 62 Fed. Reg. 12034 (1997).
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First Complaint Filed With U.S. Dept. of Education for Sexual Orientation Harassment
Although the aforementioned hurdles must be overcome in order to find school officials liable for Title IX violations in situations implicating sexual orientation harassment in courts, the first complaint filed under Title IX on behalf of a harassed gay student with the U.S. Dept. of Education's Office of Civil Rights led to a finding of Title IX non-compliance and forced the district to overhaul its policies and procedures and to train faculty, staff and students to recognize the various forms of sexual harassment including sexual harassment directed at gay or lesbian students. See Commitment to Resolve entered into between the Federal Government and the Fayetteville County Public Schools, June 1998.
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The Supreme Court found an implied private right of action for sexual harassment claims arising in the context of Title IX discrimination which includes monetary damages. Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76 (1992).
Schools are liable for student-on-student sexual harassment when: 1)the school board acts with deliberate indifference; 2) the acts of harassment are known; and 3) the harassment is so severe, pervasive, and objectively offensive that if effectively bars the victim's access to an educational opportunity. Davis v.Monroe County Board of Education, 526 U.S.629, 648 (1999).
If a plaintiff claims different treatment because of his or her gender or sexual orientation, the government must provide a reason that survives the appropriate scrutiny. City of Cleberne v. Cleburne Living Ctr. , 473 U.S. 432, 440 (1985). Discrimination against a person because of sexual orientation requires a rational state basis for the discrimination. Romer v. Evans, 116 S. Ct. 1620 (1996). Gender discrimination must survive a heightened judicial scrutiny. Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982).
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The only court to consider whether the Equal Protection guarantee is violated when a student is harassed and assaulted based on homosexual status is Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996). The court held that there was no reason offered, and none it could think of, for allowing a student to be victimized because of his orientation which would survive even rational review.
The court in Nabozny, where a boy claimed that he was verbally and physically harassed for over four years and that school officials responded to female students' complaints of harassment and assault while doing nothing to protect him from persistent abuse, held that a reasonable fact-finder could determine that he was also discriminated against because
of his gender. Thus, a jury question as to whether the school responded differently to male-on-female battery as compared to male-on-male battery remained. After the jury found the defendants liable, but before the jury determined damages, the defendants settled for $900,000.
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In Montgomery v. Independent School District, where a student claimed harassment by students because of his perceived orientation through name-calling, verbal abuse, physical assault and various forms of misconduct such as buttocks and genital patting and grabbing, the court denied a motion to dismiss because sufficient facts remained for a jury to determine whether the sexual words and conduct created a sexually hostile environment and whether the
inferences to his effeminate characteristics implicated sex stereotyping. Montgomery, 109 F.Supp. 2d 1081 at 1091-93. The court reiterated that Title IX claims premised solely on sexual orientation discrimination are not actionable. However, where a victim claims that the harassment was based on his sex or gender, as well as his orientation, the court
found room for argument which would preclude a grant of summary judgment.
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Although the Supreme Court has not explicitly held that Title VII principles apply by analogy to Title IX claims, it has cited Title VII cases in determining Title IX disputes. Franklin, 503 U.S. 60 at 65 n.4. Additionally, courts have found that Title IX applies to claims of sex discrimination under Title VII standard for proving discriminatory treatment because Title VII prohibits identical conduct prohibited by Title IX and Title VII is regarded as the most appropriate catalog when defining Title IX's substantive standards. Lipsett v University of Puerto Rico, 864 F.2d 881,(1st Cir. 1988); Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (2d Cir. 1995); Preston v. Virginia ex rel. New River Community College , 31 F.3d 203, 206, (4th Cir. 1989); Doe v. Petaluma County School District , 949 F.Supp. 1415,(N.D. Cal. 1996).
Two types of gender based discrimination are clearly proscribed by Title VII: 1) subjecting an employee to a hostile environment, in which discrimination is because of sex or based on sex, and 2) discrimination based on sex stereotyping. Franklin, 503 U.S. 60 at 74-75; Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51(1989); Montgomery, 109 F.Supp. 2d 1081 at 1090. Also, claims of sexual harassment pertain to same-sex harassment when the conduct is hostile or abusive and not merely tinged with offensive sexual connotations. Oncale v. Sundowner Offshore Servcs., Inc., 523 U.S. 75 (1998).
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In Georgia, courts will find school district liability for Title IX violations only when there is an official decision by the school district not to remedy a known act of misconduct. Floyd v. Waiters, 171 F.3d 1264, 1265(11th 1999). The court in Floyd, where a school security guard allegedly assaulted and raped a student, stressed that some "appropriate person" in the school district must have actual notice of the misconduct.
Government officials performing discretionary functions generally are shielded from liability if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). School officials are not entitled to qualified immunity for gender discrimination claims because the law is clearly established that they must treat male and female students alike with respect to protection. Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982); Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996).
Discrimination based on sexual orientation is also clearly established due to the principle that the law is to be applied and administered with an equal hand. Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886); Romer v. Evans, 517 U.S. 1620, (1996); Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996).
In Nabozny, the only published opinion that addresses whether a reasonable government actor would know that
discrimination against a student based on his orientation was unconstitutional, the court denied the school officials claim
of qualified immunity. Nabozny at 455.
Recently, an unpublished district court also ruled that the school district was not entitled to qualified immunity where five students allege that teachers and administrators did nothing to stop a barrage of harassment based on sexual orientation. Alana Flores, et. al. v. Morgan Hill Unified School District et. al.,. The court dismissed the argument that
reasonable school officials, at the time of the controversy, could have differed about the appropriate response to the plaintiffs complaints and instead held that the claims showed deliberate indifference on the part of the school officials.
In Hartley v. Parnell, where a student was sexually harassed by her teacher, the Eleventh Circuit granted immunity to the school officials. Hartley v. Parnell, 193 F.3d 1263 (11th Cir. 1999). It reasoned that school officials did not deprive the high school student of her right to equal protection by failing to remedy the teacher's sexual abuse because the student did not suffer any further sexual abuse, sexual harassment, or harm of any sort after superintendent learned of student's allegations.
In Georgia, in order to overcome a qualified immunity defense to a 1983 action, it is critical to show that officials knew of the sexual harassment and did nothing to prevent it. This can only be determined on a case by case basis.
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State actors have no constitutional duty to protect a child against danger unless the child is in state custody. DeShaney Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 202 (1998). State compulsory attendance laws have thus far failed to convince courts that school attendance creates the special relationship which would allow the constitutional duty to
attach. See e.g. Doe v. Claiborne County, 103 F.3d 495, 510 (6th Cir. 1996); Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 911 (6th Cir. 1995).
One court held a that school board had the duty to notify plaintiff of her son's suicide attempts which occurred on school grounds. Wyke v. Polk County School Board, 129 F.3d 560 (1997). Several courts have allowed tort liability to hold school officials responsible for allowing student-on-student assaults. See e.g. Malik v. Greater Johnstown Enlarged
School Dist., 669 N.Y.S.2d 729 (1998); Collins v. School Bd., 471 So.2d. 560 (Fla. App. 1985); Wis-Cirillo v. Milwaukee, 150 NW2d. 460 (Wis. 1967).
Many courts have allowed actions against school officials for negligent supervision, which generally holds school officials liable for supervising the activities of students under their care for foreseeable injuries which are proximately related to absence of supervision. See e.g. Malik, 669 N.Y.S.2d 729 (1998); Collins, 471 So.2d. 560 (Fla. App. 1985); Wis-Cirillo, 150 NW2d. 460 (Wis. 1967). School districts must use ordinary care to prevent foreseeable misconduct of other students. See e.g. S.W. v. Spring Lake Park School Dist. No 16, 592 N.W. 2d 870 (Minn. Ct. App. 1999). When the act of a fellow student could reasonably have been anticipated, as when the school has prior knowledge of dangerous conduct, a school can be held responsible for the intentional act of another student. See e.g. Chambers v. Roosevelt Union Free School Dist., 689 N.Y.S. 2d. 171 (App. Div.2d 1999); Marshall v. Courtland Enlarged City School Dist., 697 N.Y.S.2d 395 (App. Div. 3d 1999).
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Unfortunately, courts in Georgia have allowed various defenses which limit application. Caldwell v. Griffin Spalding County Bd. Of Educ. , 232 Ga. App. 892 (1999); Georgia Military College v. Santamorena , 237 Ga. App. 58 (1999); Payne v. Twiggs County Sch. Dist., 232 Ga. App. 175 (1998); Rawls v. Bulloch County School Dist., 223 Ga. App. 234 (1996); Sapp v. Effingham County Bd. of Educ., 200 GA. App. 695 (1991).
The Georgia Tort Claims Act exempts from waiver of liability losses resulting from assault and battery. O.C.G.A. § 50-21-24. Although plaintiffs in Santamorena claimed it was the actions of the school, in placing daughter in remote locations and failing to monitor her safety, that resulted in the harm, the court strictly construed this exception to grant
immunity to school officials. Santamorena, 237 Ga. App. 58, 60(1999). The court determined that the harm, rape, resulted from another student's independent tort, rather than the actions and omissions of the college. See also Department of Human Resources v. Hutchinson, 217 Ga. App. 70 (1995) (where court granted immunity to state for failure to warn and for negligently placing a dangerous juvenile in a home because the harm was caused by the assault of the juvenile and not the state actors).
In Rawls, where a student told the school bus driver that he intended to kill two other students and attacked one of those students the next school day, the court determined that sovereign immunity applied to insulate the school district from the negligence claim. Rawls, 223 Ga. App. 234, 235 (1996). The court upheld the grant of sovereign immunity based on
the 1991 amendment to Georgia Constitution, which extended sovereign immunity to the state and all of its departments and agencies including county-wide school districts.
The court in Payne, where a student was cut by another student on a school bus, also granted sovereign immunity to the school district based on the sovereign immunity. Payne, 232 Ga. App. 175, 175 (1998). The plaintiff alleged that it was the actions of the school officials, in failing to enforce rules prohibiting carrying weapons and in failing to remove knife from
the possession of the offending student after plaintiff made them aware of her possession of it, were not discretionary acts. Ministerial acts do not allow official immunity. Id. The court nonetheless inquired as to whether the school officials of monitoring, supervising and controlling students was ministerial and found that it was not. Id. at 178.
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