No Liability for Peer-On-Peer Sexual Harassment

In Brooks v. the City of Philadelphia, the Eastern District of Pennsylvania dismissed the plaintiff’s case under Title IX and Section 1983 for the school district’s allegedly inappropriate responses to peer-on-peer sexual harassment.  This case provides guidance in light of OCR’s “Dear Colleague” letter on the harassment obligations of school districts.  The case stems from two related incidents of sexual harassment involving two kindergarten students.  A kindergarten support service assistant found two male kindergarten students in the same bathroom stall during recess.  When she asked why they were in the same stall, plaintiff stated that the other student had touched him “in his private area.”  The assistant immediately told the kindergarten teacher who then told the principal.  The principal spoke with both boys and contacted their parents.  The principal promised the parents that she would monitor the students and move their seats away from each other.

Two days after the first incident, another occurred.  Through an interview conducted by the school counselor, the school district found that one student pulled down his pants in the bathroom and tried to rub against the other student in a sexual manner.  The school administration immediately contacted the parents and the Department of Human Services and referred the perpetrator to an institute that deals with sexual issues.  The victim’s parents requested that the victim be moved to a different school, a request that the principal promptly processed.  The victim filed suit alleging violations of Title IX and Section 1983.

The Eastern District dismissed the claims under Title IX.  The court found that the plaintiff could not prove deliberate indifference necessary for a Title IX violation.  To prove deliberate indifference, the plaintiff must show that the response to peer harassment was clearly unreasonable.  In this matter, it is undisputed that the principal notified both sets of parents after the initial incident and attempted to keep the boys apart in the classroom and in the bathroom.  Although an incident occurred two days later, the court held that it did not automatically mean that the school was deliberately indifferent.  The court found that the level of intervention by the school district was appropriate under the circumstances.

With regard to the Section 1983 cause of action, plaintiff claimed that the school district’s actions created a claim under the state created danger exception to the substantive due process clause of the Fourteenth Amendment.  The court found that the specific harm to the specific individual was not foreseeable enough because the plaintiff failed to present any evidence that the school or anyone else was aware of any prior incidents before the ones at issue in the case.  Thus, the school district had no prior knowledge of similar problems.  The court found that the school administration did not act with willful disregard or deliberate indifference for the safety of the plaintiff.  In order to violate due process, the actions of the school district must shock the conscience of the court.  In this case, the court found that the principal and the rest of the school administration acted, at the very least, appropriately in light of the incidents that occurred.  Finally, the court found that the school did not use its authority to create an opportunity for the harm to occur, which would otherwise not have existed.  The school district did not do anything specific to actually cause the harm or facilitate the act.  If anything, the ability of the two boys to get to the bathroom without anyone’s knowledge does not show a deliberate act by the school district, but at the most, there could have been some negligence.  However, mere negligence does not rise to the level of a state-created danger. 

This case reinforces how important it is for a school employee who becomes aware of peer-on-peer sexual harassment to immediately report the incident to the appropriate administrator.  Thereafter, the administrator must promptly inform the parents/guardians of the students involved and develop an appropriate action plan, the implementation of which must be closely supervised.