Second Circuit dismisses "distressing" Title IX sexual harassment case

Schoolyard bullying may be on the national agenda these days, but the law does not compel school districts to act with a sense of urgency in dealing with the problem. The districts need only show that they were not deliberately indifferent to the problem. It all shakes out in a case recently decided by the Court of Appeals.

The case is KF v. Monroe Woodbury Central School District, a summary order decided on August 27. The Second Circuit emphasizes that this is a "distressing case." The girl suffered intense and prolonged teasing in eighth and ninth grades and was sexually assaulted on two occasions. This caused her significant anxiety, which prevented her from going to school. She was therefore home-tutored. The district first learned about the sexual harassment eleven months after the second sexual assault. The district then recommended that she attended an out-of-district program. The family objected because other kids in the program had serious disciplinary records. The district then gave her individual tutoring at home.

On the Rule 12 motion, the district court said the school district is not liable under Title IX, and the Court of Appeals (Chin, Cabranes and Hall) affirms. The Second Circuit is not crazy about the school district's response, but it holds that the Complaint does not allege that the district was deliberately indifferent to the harassment. There is no allegation that the district looked the other way when the harassment was unfolding, and it offered the family an alternative educational placement, allowing them to file a grievance if they deemed the placement inappropriate. While the family wanted their daughter sent to a high school in another district, families do not have the right to dictate the district's response, and the district says it lacked the authority to do this. The case does not reach discovery.

This case shows how few racial and sexual bullying cases actually reach the jury. In the late 1990s, a divided Supreme Court said that families can sue to enforce Title IX, but that they have to prove "deliberate indifference" to win the case. That's a much harder burden of proof then the negligence standard in Title VII workplace harassment cases. I think the public wants school districts to do more to stop bullying, but as this case shows, the legal standard has not caught up with public opinion