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Home / Expert Opinion / Workplace Issues: Bullying under Title IX: School district not deliberately indifferent

Workplace Issues: Bullying under Title IX: School district not deliberately indifferent

Lindy Korn

Lindy Korn

The Second Circuit in a summary order, decided Aug. 27, held that a Title IX complaint does not allege that the school district was deliberately indifferent to the harassment, and therefore Title IX was not violated in KF ex rel. CF v. Monroe Woodbury Central School District, 13-516-cv.

The Second Circuit emphasized that this is a “distressing case.” The plaintiffs, KF and AF, on behalf of their minor daughter, CF, appealed a judgment of the District Court dismissing their complaint against the school district.

According to the complaint, during the eighth and ninth grades, CF suffered intense and prolonged teasing — indeed, “bullying” — and on two occasions was sexually assaulted. In each instance, a male student demanded that CF perform a sexual act and touched CF in an inappropriate, unwelcomed and invasive manner. CF did not tell anyone about either encounter, but developed severe anxiety and began harming herself.

Attending school soon made CF so anxious that she began receiving two hours of daily tutoring at home in lieu of going to high school with her peers. Approximately 11 months after the second assault occurred, CF attended a 30-day intensive treatment program, where she revealed for the first time that she had been sexually assaulted.

After the Monroe-Woodbury School District learned of what happened to CF, and in response to CF’s anxiety about going to school, it recommended that CF attend an out-of-district program. CF found that this program was attended by students with serious disciplinary records and did not feel that it was an appropriate placement.

The school district then provided CF with individual tutoring so that she would not have to return to school, and informed her parents that they could file a grievance with the Monroe-Woodbury’s Title IX officers if they were unsatisfied.

CF’s parents subsequently filed this suit, claiming that the Monroe-Woodbury School District had violated Title IX because its response to CF’s harassment was insufficient. The District Court granted Monroe-Woodbury’s subsequent motion to dismiss, on the ground that the allegations in the complaint, which if accepted as true fail to demonstrate deliberate indifference by the defendant, as required for the plaintiffs to prevail.

There is no allegation that the school 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 said it lacked authority to do this. The case does not reach discovery.

This case shows how few racial and sexual bullying cases actually reach the jury. The deliberate indifference standard is a much harder burden of proof than the negligence standard in Title VII workplace harassment cases.

The Second Circuit makes a point of stating that in no way does it endorse or ratify Monroe-Woodbury’s response, and that they hope and expect that the school district and CF’s parents will find a way to guarantee her the full benefits of a high school education.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at lkk75atty@aol.com or (716) 856-KORN (5676).