Professional Documents
Culture Documents
No. 13-2537
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Alexander Williams, Jr., District
Judge. (8:11-cv-03229-AW)
Argued:
Decided:
April 7, 2015
ARGUED:
Laura Ginsberg Abelson, BROWN, GOLDSTEIN & LEVY, LLP,
Baltimore, Maryland, for Appellants.
Abbey G. Hairston,
THATCHER LAW FIRM, LLC, Greenbelt, Maryland, for Appellees. ON
BRIEF:
Sharon
Krevor-Weisbaum,
Andrew
D.
Freeman,
BROWN,
GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellants.
Shana R. Ginsburg, THATCHER LAW FIRM, LLC, Greenbelt, Maryland,
for Appellees.
Selene A. Almazan-Altobelli, Director, Advocacy
Services, MARYLAND COALITION FOR INCLUSIVE EDUCATION, Hanover,
Maryland; Mark B. Martin, LAW OFFICES OF MARK B. MARTIN, P.A.,
Baltimore, Maryland, for Amicus Council of Parent Attorneys and
Advocates.
Francisco M. Negrn, Jr., General Counsel, NATIONAL
SCHOOL BOARDS ASSOCIATION, Alexandria, Virginia, for Amici
National School Boards Association and Maryland Association of
Boards of Education.
PER CURIAM:
In
November
2011,
plaintiffs
John
and
Jane
Doe,
Georges
Kathleen Schwab.
that
the
County
and
J.D.s
former
school
principal,
defendants
had
failed
to
protect
J.D.
from
sexual
In November 2013,
to
the
Board
and
Schwab
on
state
law
claims
of
As
I.
A.
In 2008, the Does enrolled J.D. in the fourth grade of a
public
Montessori
school
in
Prince
Georges
County
(the
school). 2
Also
in
Jellisons
fourth-
through
sixth-grade
by
M.O.
and
other
students.
For
example,
students
J.D. also
Neither
Jane Doe spoke with Johnson later that day, however, and
J.D. and M.O. were seated as far from each other as possible and
so that Jellison could readily see both students.
In
February
2009,
J.D.
reported
to
Schwab
that
M.O.
Schwab relayed
call, John Doe advised Jellison that M.O. keeps making sexual
remarks and gestures to J.D.
in March, while Jellisons back was turned from M.O. and J.D.
during a classroom dancing activity, M.O. grabbed J.D.s body
and made humping gestures toward him (the classroom incident).
Jellison did not witness the classroom incident, and it was not
immediately
reported
to
her.
After
receiving
notice
of
the
In
See J.A.
April
2009,
Johnson
Id.
took
leave
from
her
principal
again
assigned
to
Jellisons
classroom,
which
surprised
when J.D. was in fifth grade and M.O. in the sixth Jellison
and Principal Schwab were thrice advised that M.O. had harassed
J.D.
a
harassing
remark
to
[him]
at
the
water
fountain
Id. at 324.
during
In response,
Id.
Nonetheless,
Schwab met with both J.D. and M.O. and talked to them about the
importance of mutual respect.
month, J.D. explained that M.O. said something that made J.D.
uncomfortable, but he did not further elaborate.
Id. at 674.
Schwab talked to M.O., but M.O. denied knowing what made J.D.
uncomfortable.
when M.O. arrived and tried to climb into J.D.s bathroom stall
(the bathroom incident).
After
school that day, J.D. informed his parents of that incident, and
the Does reported it to the school three days later, on December
7, 2009.
In
but
the
video
failed
to
corroborate
the
bathroom
incident.
that
would
J.D.
avoid
M.O.
in
the
bathroom.
One
of
those
within
week
of
its
implementation.
Another
was
soon
rejected
by
J.D.
because
other
J.D.
from
avoided
the
the
schools
school
nurse
for
students
bathroom
his
made
and
sought
resultant
stomach
to the bathroom, but instead told her that the bathroom wasnt
clean.
her bathroom.
B.
The
defendants
involving
J.D.
and
were
M.O.
not
In
notified
the
spring
of
of
other
2009,
incidents
the
Does
One text
See J.A.
365.
ok[?]
between M.O. and J.D., Jane Doe promptly confiscated J.D.s cell
phone, deleted M.O.s phone number from J.D.s contact list, and
returned the phone to her son.
J.D. did not see the photos, and the Does did not report the
text messages to the school.
In
the
summer
of
2010,
the
Does
contacted
the
Prince
had not informed either his parents or the school that M.O. had
sexually assaulted him.
On July 30, 2010, the county police detective interviewed
M.O. regarding J.D.s sexual assault allegations.
M.O. said
occasions
in
the
schools
library
and
bathroom.
The
inconsistencies
events.
between
his
and
M.O.s
versions
of
the
The police
assault
[had]
been
articulated.
See
J.A.
332.
In
J.D. now
10
his
own.
See
id.
at
535.
J.D.
also
thought
that
Id. at 535-
36. 6
C.
In 2000, several years prior to the foregoing events, the
Board
promulgated
4170),
which
its
Administrative
created
grievance
Procedure
procedures
No.
for
4170
(AP
student
and
or
extremism.
students are
encouraged
sexual harassment.
See
to
J.A.
112.
promptly
Pursuant
report
to
AP
4170,
student-on-student
11
persons
reporting
complaint
of . . .
harassment
use
[its]
Id. at 115-16.
Neither
the school nor the Does completed or submitted any AP 4170 forms
regarding M.O.s harassment of J.D.
II.
In
November
2011,
the
Does
filed
their
three-count
Board
only,
alleging
under
Title
IX
the
Board
had
The complaint
also alleged in Counts One and Two that the Board and Principal
Schwab were liable for negligence and gross negligence.
After
four
educational
(1) that
institution
receiving
student
federal
was
enrolled
funds;
at
(2) that
an
the
was
sufficiently
severe
12
or
pervasive
to
create
Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007)).
There has been no dispute as to proof of the first prong of the
Title IX analysis, and the court determined that a reasonable
juror
could
desire,
infer
that
satisfying
the
the
harassment
second
prong.
stemmed
Id.
from
sexual
Further,
with
had
compelled
the
Does
to
withdraw
J.D.
from
the
Title
the
Id. at 653.
According
to
the
district
court,
however,
IX
Id.
at
653-54
(observing
that
[a]
funding
13
concluded
that
the
defendants
were
not
shown
to
be
deliberately indifferent.
were
seated
as
far
apart
as
possible
and
Id. at 654.
Jellison
had
Thereafter, as
suspension.
investigation
Id.
Finally,
failed
to
notwithstanding
corroborate
the
that
bathroom
14
escort.
if
the
Id. at 654-55.
defendants
response
to
the
classroom
incident
was
an
outcome
would
deprive
Id. at 654
administrators
of
the
run
counter
to
educating children.
the
strong
national
policy
in
favor
of
Id. 9
Doe, 982 F.
15
Supp. 2d at 655.
Id.
The court
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291-92
(1998)).
The district court also awarded summary judgment to the
Board and Schwab on the Does negligence and gross negligence
claims.
omitted).
Id.
the
plaintiff;
(2) a
breach
16
of
that
duty;
legally
exercise
student
reasonable
sexual
care
to
harassment.
protect
Id.
him
(citing
from
Lunsford
student-onv.
Bd.
of
Educ. of Prince Georges Cnty., 374 A.2d 1162, 1168 (Md. 1977)).
Additionally, the court allowed that a reasonable juror could
conclude that [J.D.] suffered injuries on account of the alleged
harassment.
Id.
More specifically, as
incidents
were
swift
defendants
took
significant
incident.
and
steps
substantial,
to
address
and
the
the
bathroom
unclear what else . . . could have [been] done, or that any more
measures
would
Although
it
not
have
proved
acknowledged
that
overly
a
burdensome.
failure
to
adhere
Id.
to
determined
weighed
heavily
that
the
against
other
the
Inc.
v.
Young,
321
circumstances
conclusion
that
of
the
this
case
defendants
A.2d
737,
17
746
(Md.
1974),
for
the
proposition
that
statutory
or
regulatory
requirements
are
with
other
circumstances,
whether
or
not
conduct
is
negligent). 10
As an alternative to rejecting the negligence claim for
lack of a breach of duty, the district court ruled that such a
breach by the defendants was not the cause of J.D.s injuries,
see Doe, 982 F. Supp. 2d at 661-63, and that the Does were
barred from recovering on a negligence theory because J.D. was
contributorily negligent and assumed the risk, id. at 663-64.
The Does timely noted this appeal, and we possess jurisdiction
pursuant to 28 U.S.C. 1291.
III.
We
review
judgment.
de
novo
district
courts
award
of
summary
10
was
premised
on
inapplicable
rules
and
procedures,
and
overstates
[the
defendants] failure to follow AP 4170. Id. at 661.
18
IV.
On
appeal,
the
Does
maintain
that
the
district
court
liability
for
the
sexual
harassment
of
J.D.
cannot
be
We address and
Title
IX,
an
imputation
of
liability
to
an
(1) whether
harassment;
and
(2) whether
the
institution
was
19
An
educational
institution
can
be
liable
on
the
institution
is
not
Id. at 648.
required
to
To avoid
remedy
peer
rules.
quotation
marks
Id.
at
648-49
omitted).
On
(alteration
summary
and
judgment,
internal
court
is
Id. at 649.
Supreme
Court
in
its
Davis
decision,
the
district
court
In
challenging that ruling in this appeal, the Does fault the Board
for failing both to discern an escalating pattern of harassment
and to take effective corrective actions.
that
each
instance
of
sexual
harassment
was
an
Civil
clearly
Rights
for
unreasonable
the
when
proposition
it
20
is
that
not
response
calculated
to
is
be
Cnty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000); Office for
Civil
Rights,
Sexual
Harassment
Guidance:
Harassment
of
the
Does
theory,
however,
because
we
We cannot
would
have
to
(rejecting
the
plaintiffs
argument
that,
based
on
21
See
See
Guidelines would not help the Does, however, because this is not
a case where the Board had actual knowledge that its efforts to
remediate [were] ineffective, and it continue[d] to use those
same methods to no avail.
reiterated
their
argument
that
the
Boards
failure
to
of
deliberate
indifference.
The
district
court
Doe,
524
U.S.
274,
291-92
(1998));
see
also
Sanches
v.
Cir.
failure
to
2011)
(explaining
contact
school
that,
under
districts
22
Gebser,
Title
IX
principals
coordinator
AP
4170,
is
not
determinative.
Indeed,
such
explained
by
clearly unreasonable.
the
district
courts
Those steps, as
decision,
were
not
was
breach
of
the
duty
under
Lunsford
v.
Board
of
to
exercise
reasonable
care
to
protect
pupil
from
23
See Othentec
Ltd.
2008)
v.
Phelan,
526
F.3d
135,
140
(4th
Cir.
(The
(internal
quotation
marks
omitted)).
Moreover,
See 597
A.2d 447, 456 (Md. 1991) (ruling that school counselors have a
duty to use reasonable means to attempt to prevent a [students]
suicide
when
they
are
on
notice
of
[the]
students
suicidal
intent).
We also disagree with the Does theory that the defendants
breached their duty to J.D. by failing to follow the Boards
sexual
harassment
summary
judgment
defendants
otherwise
policies,
record
responses
constituted
allegations.
including
demonstrates
tracked
a
AP
AP
reasonable
4170s
4170.
that
Indeed,
many
of
recommendations
investigation
of
the
the
or
J.D.s
24
of
the
bathrooms
potential
witnesses
in
Jellison
interviewed
classroom
incident.
students,
Jellison
entrance,
compliance
three
In
with
students
procuring
discovered
that
Jellison
uncovered
located
previous
witnesses
incidents
and
AP
who
Schwab
interviewed
4170.
Similarly,
had
witnessed
statements
M.O.
had
from
also
the
those
displayed
of
the
classroom
M.O.s
incident,
harassment,
and
M.O.
See
J.A.
128.
Furthermore,
in
response
to
the
4170.
Accordingly,
there
is
no
triable
issue
that
the
12
made
reasonable
following
complaint
care
the
to
about
protect
library
M.O.,
J.D.
incident,
the
from
which
defendants
harm.
exercised
For
occurred
in
example,
Jellisons
classroom
classroom
for
incident,
five
days
M.O.
to
was
serve
removed
an
Next, after
from
in-school
Jellisons
suspension
in
thoughtful
decision
of
the
district
court
that
the
substantial,
Supp. 2d at 659.
and
significant.
See
Doe,
982
F.
26
V.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
27