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Sixth Circuit Affirms Title IX Deliberate Indifference Judgment

By Robyn Hagan Cain | Last updated on

John and James Doe -- seventh graders at Waynesboro Middle School -- were bullied in the WMS locker room. A number of eighth graders subjected John and James, (and other basketball team members), to games of "lights out," which involved "turning off all the lights ... and then humping and gyrating on the seventh graders."

The eighth graders also played a game called the "blind-folded sit-up." They challenged James to prove he could do a sit-up blind-folded. When James came to the end of the sit-up, one of the eighth graders had placed his naked buttocks in front of James, which he hit with his blind-folded face.

The "pranks" grew more aggressive when a number of eighth graders on the team grabbed John, forced him to the ground, pulled his pants down and anally penetrated him with a marker.

John didn't initially report this incident to his parents or the school because he felt threatened. Several days later, David Sisk, the basketball team coach, learned of the "marker incident" from his step-daughter, who was also a WMS student. Sisk looked into the incident, but didn't report the allegations to either Principal Ryan Keaton, John's parents, or anyone else.

When John's mother, Shanwee Mathis, learned about the marker incident and complained to school officials, the perpetrators were suspended from school for 11 days, and suspended from the basketball team. (They were later reinstated.)

Tammy McGuire, another parent, complained about the "lights out" and blind-folded sit-up "pranks," but Principal Keaton initially dismissed the incidents as bad pranks. Months later, he punished the conduct through a verbal reprimand.

Mathis and McGuire sued the Waynesville Board of Education (WBOE), alleging that their sons were subjected to student-on-student sexual harassment. A jury awarded them $100,000 each in damages on Title IX claims. WBOE moved for judgment as a matter of law.

A plaintiff in a Title IX student-on-student sexual harassment case must establish the following elements:

  1. The sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school.
  2. The funding recipient had actual knowledge of the sexual harassment.
  3. The funding recipient was deliberately indifferent to the harassment.

WBOE alleged that Mathis and McGuire failed to produce "sufficient evidence of deliberate indifference following actual notice."

The Sixth Circuit Court of Appeals disagreed.

Both the district court and the appellate court concluded that there was ample evidence before the jury from which reasonable jurors could have concluded that WBOE's response constituted deliberate indifference. Additionally, the jury could have reasonably viewed the evidence of the marker incident not as just horseplay gone awry, but rather as a serious incident of sexual assault, warranting a punishment more severe than an 11-day school suspension and a month-long suspension from the basketball team.

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