Bethany T., as next friend and on behalf of T.T., a minor, Plaintiff,
Raymond School District with School Administrative Unit 33, Superintendent Dr. Jean Richards, in her individual and official capacity, Principal Mr. Kirk Beitler, in his individual and official capacity, and Assistant Principal Ms. Jayme Rodriguez, in her individual and official capacity, Defendants. Opinion No. 2013 DNH 074
STEVEN J. McAULIFFE, District Judge.
Defendants move for summary judgment on all counts (doc. no. 28). For the following reasons, the motion is granted in part and denied in part.
Title VI Claim (Count I)
Plaintiff brings her Title VI claim (Count I) against all defendants. Individuals, however, cannot be held liable under that statutory provision. See Shotz v. City of Plantation , 344 F.3d 1161, 1169-71 & n. 11 (11th Cir. 2003) (collecting cases); Thomas v. Salem State Univ. Found., Inc., 2011 WL 5007973, at *6 (D. Mass. Oct. 18, 2011); Howard v. Feliciano, 2008 WL 3471295, at *10 (D.P.R. Aug. 8, 2008). Summary judgment in favor of the individual defendants on plaintiff's Title VI claim is, therefore, warranted.
Summary judgment on plaintiff's Title VI claim as asserted against the school district and the school administrative unit, however, is not subject to summary disposition. The central issue is whether the District was deliberately indifferent to the alleged student-on-student harassment. See Bryant v. Indep. Sch. Dist. No. I-38 , 334 F.3d 928, 931-34 (10th Cir. 2003) (applying deliberate indifference standard to peer racial harassment claim under Title VI) (relying on Davis v. Monroe Cty. Bd. Of Educ. , 526 U.S. 629, 641-44 (1999) (applying deliberate indifference standard to peer harassment claim under Title IX)). See also Zeno v. Pine Plaines Cent. Sch. District , 702 F.3d 655, 665 (2d Cir. 2012) (applying deliberate indifference standard to peer racial harassment claim under Title VI); Saxe v. State Coll. Area Sch. Dist. , 240 F.3d 200, 206 & n. 5 (3d Cir. 2001) (same, and noting that Davis' deliberate indifference standard "applies equally" to Title VI harassment claims).
Deliberate indifference is shown where the "funding recipient's response to the harassment or lack thereof [was] clearly unreasonable in light of the known circumstances.'" Brodeur v. Claremont Sch. Dist. , 626 F.Supp.2d 195, 209 (D.N.H. June 12, 2009) (Laplante, J.) (quoting Davis , 526 U.S. at 648). See also Fitzgerald v. Barnstable Sch. Comm. , 504 F.3d 165, 175 (1st Cir. 2007) (The "proper inquiry is limited to whether the school actions were so lax, so misdirected, or so poorly executed as to be clearly unreasonable under the known circumstances") rev'd on other grounds 555 U.S. 246 (2009). Although, "[i]n an appropriate case" a court may decide, as a matter of law, that the defendant acted with deliberate indifference, Davis , 526 U.S. at 649, deliberate indifference usually presents a jury question. See e.g., Patterson v. Hudson Area Schools , 551 F.3d 438, 449-50 (6th Cir. 2009) ("It is for a jury to decide if Hudson's actions were clearly unreasonable.'").
The school district here posits that this is an appropriate case for summary judgment because the basic facts about what actions it took in response to the alleged harassment are not in serious dispute. Those basic facts, however, give rise to competing inferences about the reasonableness of the district's actions in light of the known circumstances. See generally Rockwell Graphic Sys., Inc. v. DEV Indus. , 925 F.2d 174, 180 (7th Cir. 1991) (Posner, J.) ("[W]hat is reasonable is itself a fact for purposes of Rule 56 of the civil rules."); Lipsett v. Univ. of Puerto Rico , 637 F.Supp. 789, 799 (D.P.R. 1986) ("If from an agreed set of facts one finds that reasonable jurors could draw an inference determinative of the opposing party's claim, then summary judgment would be improper."), citing Taylor v. Gallagher , 737 F.2d 134 (1st Cir.1984). Here, for the reasons set forth in plaintiff's brief, "[a] jury could find... that the investigative or the corrective aspect of the District's response to the incidents as a whole was so lacking as to amount to deliberate indifference." Brodeur , 626 F.Supp.2d at 209 (denying motion for summary judgment on Title IX sexual harassment claim). See also Patterson , 551 F.3d at 448 ("We cannot say that, as a matter of law, a school district is shielded from liability if [it] knows that its methods of response..., though effective against an individual harasser, are ineffective against persistent harassment against a single student. Such a situation raises a genuine issue of material fact for a jury to decide.").
Section 1983 Equal Protection Claim (Count II)
"Ordinarily, the issue of whether a municipality had a custom or policy that caused a violation of a plaintiff's rights is a jury question." Logiodice v. Trustees of Maine Central Inst. , 170 F.Supp.2d 16, 31 (D. Me. 2001) (citing Trevino v. Gates , 99 F.3d 911, 920 (9th Cir. 1996)), aff'd 296 F.3d 22 (1st Cir. 2002). Nevertheless, summary judgment is "appropriate if, on the given facts, no reasonable jury could conclude that the municipality had such a policy or custom." Id.
Here, defendants' argument with regard to policy, practice, or custom is not well-developed, and is insufficient to support entry of judgment. The core of the argument consists of little more than a general assertion of the absence of policy or practice evidence. See Def. Br., doc. no. 28-1, at 29. But school principals and superintendents may be "policymakers" for purposes of school discipline, see e.g., Radideau v. Beekmantown Cent. Sch. Dist. , 89 F.Supp.2d 263, 268 (N.D.N.Y. 2000), and, as plaintiff points out, the actions or inactions of policymakers may evidence a custom or practice of the municipality. See generally City of Canton v. Harris , 489 U.S. 378, 388-89 (1989). There appears to be a triable issue regarding the municipal defendants' policies, practices, or customs, at least in that respect.
Defendants suggest that the deliberate indifference standard for harassment claims brought under the Equal Protection Clause is higher than, say, the deliberate indifference standard under Title VI. Defendants raised the issue for the first time in their reply brief, and further, cite to and argue from two Second Circuit Court of Appeals decisions that do not support their argument. In those cases the court held that, where plaintiff alleges that the defendant inadequately responded to racial harassment, deliberate indifference by the school administrators is sufficient to establish intentional discrimination in the equal protection context. See Destiso v. Cook , 691 F.3d 226, 241 (2d Cir. 2012) (holding that deliberate indifference standard applies in equal protection context where racial harassment is alleged); Gant ex re. Gant v. Wallingford Bd. of Educ. , 195 F.3d 134, 140 (2d Cir. 1999) (same). There is no meaningful difference between the standard applied in those cases and in Title VI cases, where deliberate indifference in the harassment context is also regarded as equivalent to intentional discrimination.
For these reasons, defendants have not met their burden to show that they are entitled to judgment as a matter of law with regard to plaintiff's Section 1983 claim. Defendants' motion for summary judgment as to Count II is denied.
Qualified Immunity - Federal Law Claims
The individual defendants say they are entitled to qualified immunity under the authority of Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982), but the argument is weak and undeveloped. Defendants conclusively assert that they "were not deliberately indifferent to the allegations of harassment." Def. Br., doc. no. 28-1 at 34. But, there is a triable issue of fact regarding the adequacy ...