UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
M. by and through her parents and guardians : MR. AND MRS. M., : Plaintiff, :
v. : CASE NO. 3:05-cv-0177 (WWE)
STAMFORD BOARD OF EDUCATION, : CITY OF STAMFORD : B.T., individually : MARIA FIORI, individually : CRYSTAL FUTRELL, individually, : Defendants. :
MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff M., a disabled child, brings this lawsuit by and through her parents
against defendants Stamford Board of Education; City of Stamford; Maria Fiori,
Assistant Principal of Westhill High School in Stamford, Connecticut where plaintiff was
enrolled; Crystal Futrell, employee of the Board of Education and the city of Stamford
assigned to supervise plaintiff (the Board of Education, Stamford, Fiori and Futrell will
be collectively referred to as the “School Defendants”); and B.T., a former student at
Westhill High School, alleging (1) violations of the Individuals with Disabilities Education
(“IDEA”), 20 U.S.C. § 1400 et seq., and 42 U.S.C. § 1983 against the Board of
Education, Fiori and Futrell; (2) assault and battery against B.T.; (3) violations of the
Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983 against
Fiori and Futrell; (4) negligence against the Board of Education, Fiori and Futrell; (5)
statutory liability against Stamford; (6) reckless and wanton conduct against B.T.; and
(7) violations of Title IX, 20 U.S.C. § 1681(a), against the Board of Education. Now
1
pending before the Court is the School Defendants’ Motion for Summary Judgment
(Doc. #101).1
The Court has jurisdiction over plaintiff’s claims, except as discussed below,
pursuant to 28 U.S.C. § 1331 over plaintiff’s federal law claims and pursuant to 28
U.S.C. § 1367 over plaintiff’s state law claim.
FACTS
At the time of the events alleged in the Amended Complaint, plaintiff was a
sixteen-year old sophomore in the special education program at Westhill High School in
Stamford, Connecticut. A Connecticut probate court has ruled that plaintiff is
incompetent and has appointed plaintiff’s father as her guardian and conservator under
state law. Plaintiff’s parents, as her next friends, representatives and natural guardians,
have brought this suit on her behalf.
The Board of the Education provides special education and related services to
students in Stamford, Connecticut. It is a recipient of federal funds under Title IX.
Defendant Fiori was, at all relevant times, the Assistant Principal of Westhill High
School in Stamford, Connecticut and an employee of the Board of Education and
Stamford. Plaintiff is suing Fiori in her individual capacity. Among other
responsibilities, Fiori oversees special education at Westhill High School and
Educational Assistants, including defendant Futrell.
1 Defendant B.T. has not filed a Notice of Appearance in this case and is not involved in this instant motion. Accordingly, counts II and VI, which make allegations solely against defendant B.T., are not addressed in this Memorandum of Decision.
2
Defendant Futrell was, at all relevant times, a paraprofessional responsible for
supervising plaintiff at Westhill High School. She was an employee of the Board of
Education and Stamford and is being sued in her individual capacity.
Plaintiff had an Individualized Education Plan (“IEP”) in effect from April 2002
through April 2003 dated April 3, 2002.
On October 31, 2002, plaintiff was followed home by two classmates. Plaintiff’s
mother called Fiori to express her concerns about this incident and plaintiff’s safety at
school in general. At a Planning and Placement Team (“PPT”) meeting between
plaintiff’s parents, Fiori and school psychologist Theresa Telesco, it was decided that
plaintiff would be assigned a one-on-one aide for supervision. Defendant Futrell was
subsequently assigned as the aide. No changes were made to plaintiff’s IEP.
According to the plaintiff, Futrell was given no specific training on how to
supervise disabled students in general or plaintiff in particular. Further, plaintiff alleges
that Futrell was not informed on how to handle the myriad situations that arose in her
supervision of plaintiff.
On November 20, 2002, another PPT meeting was held during which plaintiff’s
mother shared her concerns regarding plaintiff’s supervision. No changes, however,
were made to plaintiff’s IEP.
Although plaintiff indicates that there were problems with Futrell’s supervision
during the time after her assignment, there is no indication in the record that plaintiff or
her parents sought to remedy their concerns or complain to Fiori regarding them.
Further, there is no evidence in the record that plaintiff or her parents sought to change
plaintiff’s IEP.
3
Martha Brown, one of plaintiff’s teachers, wrote a note to Fiori on February 5,
2003 stating:
2/4/03 [Defendant B.T.] asked [plaintiff] to have sex. What he said was “will you please come with me?” and [plaintiff] says she knows what he’s talking and always says no. This same conversation has taken place 4-5 times and always happens during [period] 6 as [plaintiff] leaves room 101 and goes to the cafeteria unescorted. [Plaintiff] says she has told Crystal [Futrell] about this.
2/3/03 Christina [another student] reports that [B.T], when she was on her way from [room] 401 to [room] 302 for health, was waiting for her at the bottom of the stairs and said that he wanted her to go with him to “somewhere private.” Christina said “no” and he grabbed her arm with one hand and grabbed her neck with his other hand. She got away.
This kind of incident has happened 5 times or more. Christina has been walking to several of her classes with Crystal, [plaintiff] and Theodore [another student]. (emphasis in original)
After receiving the letter, Fiori investigated B.T.’s placement within the school as well as
his academic record. Fiori arranged for home instruction for B.T. by the middle of
February and B.T. stopped attending Westhill High School by February 11, 2003. Fiori
stated that B.T. may have attended school several more times in February, attendance
records sometimes being inaccurate. He was officially withdrawn on March 5, 2003.
Some time in late February 2003, according to Telesco’s notes of her meeting
with plaintiff, B.T. approached plaintiff during lunch and asked her:
to go down to have sex with him. She said no, but she followed him down. She said there was no physical coercion.... She said once he was down there, he pulled her pants down, tried to put [his penis] in [her vagina], but she wouldn’t let him. She told him no because she did not want to get pregnant. And he said it would be fun. She told me that there was no penetration. They went up to lunch separately
4
afterwards. There [was] no forced sex. He forced her to pull her pants down. He stopped because she wouldn’t let him.
In her deposition, plaintiff stated that B.T. “stuck” his penis in her vagina.
Plaintiff did not tell anyone of the assault until May 5, 2003 in a meeting with
Telesco. This meeting was in response to plaintiff’s removal from an after-school job at
the Tandet Center. Following their meeting, Telesco informed Department of Children
and Families, plaintiff’s grade administrator, plaintiff’s parents and the principal of
plaintiff’s statements. Stamford police also investigated the incident and concluded that
due to the age and intellectual limitations of the students, their actions were not likely
criminal.
On May 9, 2003, plaintiff’s mother met with Fiori and Telesco regarding the
incident. At this meeting, plaintiff’s mother requested home tutoring for plaintiff as
plaintiff was afraid to go back to school. Following this meeting, the Stamford police
arranged for plaintiff to be interviewed by the Child Guidance Clinic. Plaintiff’s mother
also had plaintiff tested to see if she was pregnant or had any sexually transmitted
infections.
According to plaintiff, she has had nightmares and difficulty sleeping for which
medication was prescribed by a psychiatrist. In addition, she asserts that she is
embarrassed by the incident and has trouble trusting people. After the incident,
plaintiff’s parents enrolled her at the Foundation School, a private school for children
with disabilities.
5
DISCUSSION
A motion for summary judgment will be granted where there is no genuine issue
as to any material fact and it is clear that the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Only when
reasonable minds could not differ as to the import of the evidence is summary judgment
proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).
The burden is on the moving party to demonstrate the absence of any material
factual issue genuinely in dispute. Am. Int’l Group, Inc. v. London Am. Int’l Corp., 664
F.2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual issue exists,
the court must resolve all ambiguities and draw all reasonable inferences against the
moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
If a nonmoving party has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof, then summary
judgment is appropriate. Celotex Corp., 477 U.S. at 323. If the nonmoving party
submits evidence which is “merely colorable,” legally sufficient opposition to the motion
for summary judgment is not met. Liberty Lobby, 477 U.S. at 242.
COUNT I
In Count I, plaintiff alleges that defendants violated her rights pursuant to the
IDEA, 20 U.S.C. § 1400 et seq., and 42 U.S.C. § 1983. Defendants respond by
recognizing, inter alia, that the IDEA requires the exhaustion of administrative remedies
and claiming that plaintiff’s failure to exhaust the administrative remedies under the
6
IDEA precludes the Court from exercising subject matter jurisdiction over plaintiff’s
claim.
The lack of subject matter jurisdiction may be raised at any time in the judicial
process. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740 (1976). If and when a court
observes that it is without subject matter jurisdiction, it must dismiss the action. See
Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008).
“Generally, litigants cannot waive subject matter jurisdiction by express consent,
conduct, or estoppel.” Doe v. West Hartford Bd. of Educ., 2000 U.S. Dist. LEXIS 6521,
*5 (D. Conn. Mar. 3, 2000) (citing 13 Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 3522 at 66-67).
The IDEA provides federal grants to states so that they may in turn provide
disabled children with “a free appropriate public education” in the least restrictive,
appropriate environment. See 20 U.S.C. §§ 1400(d)(1)(A), 1401(8), 1411(a)(1) &
1412(a)(5)(A). Under the IDEA, the student’s educators and parents meet and jointly
develop an IEP for each year of the child’s education. See Polera v. Bd. of Educ. of the
Newburgh Enlarged Stamford Sch. Dist., 288 F.3d 478, 482 (2d Cir. 2002); 20 U.S.C.
§§ 1401(11), 1414(d); see also P.J. v. Conn. Bd. of Educ., 788 F. Supp. 673, 676 n.1
(D. Conn. 1992) (“The IEP is produced by what is known as the planning and
placement team, which must include a qualified special education representative of the
school board, the child's teacher, and one or more of the child's parents, and may also
include individuals who evaluate the child or provide special education services to the
child.”). It is through the IEP that the school may monitor the student and her progress.
Polera, 288 F.3d at 482.
7
The IDEA provides for procedural safeguards through which a parent can ensure
her child’s education. 20 U.S.C. § 1415(a). These procedural safeguards include the
rights “to examine all records relating to [the] child and to participate in meetings with
respect to the identification, evaluation, and educational placement of the child, and the
provision of a free appropriate public education to such child and to obtain an
independent educational evaluation of the child,” id. § 1415(b)(1), written notice prior to
any changes in the child's identification, evaluation or educational placement, id. §
1415(b)(3), "an opportunity to present complaints with respect to" such matters, id. §
1415(b)(6), and, whenever any such complaint is made, the right to "an impartial due
process hearing ... by the State educational agency or by the local educational agency,"
with corresponding rights to be accompanied and advised by counsel, to present
evidence and cross-examine witnesses, to receive a written record of proceedings, and
to receive written findings of fact and decisions. Id. § 1415(f)(1) & (h).
The specifics of the administrative process by which a parent can challenge
deficiencies in the IEP are proscribed in accordance with state procedures. In
Connecticut, this is governed by section 10-76h of the Connecticut General Statutes.
Failure to exhaust the administrative remedies required by the IDEA precludes
the court from exercising subject matter jurisdiction over the action. Cave, 514 F.3d at
245. This requirement is meant to “channel disputes related to the education of
disabled children into an administrative process that could apply administrators’
expertise in the area and promptly resolve grievances.” Polera, 288 F.3d at 487. The
reliance on administrative procedures is meant to ensure that “parents seek changes to
a student’s program....” Id. at 483. A plaintiff must exhaust her administrative remedies
8
even though she has claims under both the IDEA and 42 U.S.C. § 1983. Cave, 514
F.3d at 245 n.2.
In her Seconded Amended Complaint, plaintiff fails to allege that she undertook
any of the administrative procedures required by the relevant federal and state laws,
even though the claim is precisely the kind contemplated by the exhaustion
requirement. Specifically, plaintiff alleges that her rights under the IDEA were violated
by the defendants’ failure to adequately supervise plaintiff or adequately address
plaintiff’s need to learn self-protection skills. Furthermore, plaintiff alleges in the
recitation of the facts in her Memorandum in Opposition to Summary Judgment that the
Board of Education, Fiori and Futrell failed to properly train and supervise Futrell, failed
to instruct Futrell on how to deal with plaintiff, that Futrell failed to properly supervise
plaintiff and that Fiori failed to convene a Planning and Placement Team meeting to
address plaintiff’s parents’ concerns.
These issues are precisely the type that would be resolved through an
administrative hearing. As the Court of Appeals for this Circuit has stated:
Exhaustion of the administrative process allows for the exercise of discretion and educational expertise by state and local agencies, affords full exploration of technical educational issues, furthers development of a complete factual record, and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.
Polera, 288 F.3d at 487. Here, had the plaintiff proceeded through the administrative
process provided by the IDEA and section 10-76h, she may have received the desired
oversight and adjustments to her IEP prior to the alleged assault. Furthermore, a
dialogue may have opened up that would have provided better monitoring of M.’s
9
education and allowed her parents to express their concerns to the school
administration.
Because of the failure to exhaust administrative remedies, summary judgment
on Count I is appropriate.
COUNT III
Plaintiff alleges that defendants Fiori and Futrell deprived her of her rights
guaranteed by the Due Process Clause of the Fourteenth Amendment, which provides
that “nor shall any State deprive any person of life, liberty or property, without due
process of law.” U.S. Const. Amend. XIV, § 1. The Due Process Clause of the
Fourteenth Amendment requires that, generally, the state must afford a person due
process of law prior to a deprivation of a constitutionally protected liberty or property
interest. A plaintiff’s rights guaranteed by the Due Process Clause are violated when
“state officials engage in conduct of such an egregious nature as to shock the
conscience.” Bungert v. City of Shelton, 2005 U.S. Dist. LEXIS 23894 (D. Conn. Oct.
14, 2005).
In DeShaney v. Winnebago Cty. Soc. Servs. Dep’t, 489 U.S. 189, 195 (1989),
the Supreme Court observed that the Due Process Clause does not create an
affirmative duty on the part of the state to protect its citizens. Rather, an affirmative
obligation only exists where the state has entered “into a special relationship with an
individual by engaging in an affirmative act of restraining the individual’s freedom to act
on his own behalf....” Crispim v. Athanson, 275 F. Supp. 2d 240, 245 (D. Conn. 2003).
As the Court in Crispim noted, such special relationships are limited to cases in which
the state maintains a custodial relationship with the individual, such as between a
10
prison and inmate or a mental institution and an involuntarily committed patient and not
where the plaintiff is attending a state-run school. Id. at 245-48; see also D.R. v. Middle
Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1370 (3d Cir. 1992) (observing
that a special relationship exists where there is physical custody). The Crispim
conclusion was premised on the fact that:
Though school attendance is compulsory in the State of Connecticut, see Conn. Gen. Stat. § 10-184, it creates a relationship quite different from that of a prison and inmate or mental institution and involuntarily admitted patient. In Connecticut, it is up to the parents of compulsory-school-age children to decide whether education will take place in the home, or in public or private school. Indeed, ... the primary caretakers of compulsory-school-age children remain their parents, irrespective of the fact that the children are present in school at particular times of the day throughout the school year. While it is clear that children of compulsory-school-age who attend school, regardless of the type of school it is, must submit to the authority of school officials who may engage in disciplinary control over the students, such restriction of freedom does not prevent the students from providing for their basic needs.
Crispim at 248. The fact that plaintiff M. may be mentally handicapped does not affect
the applicable constitutional standards. See Dorothy J. v. Little Rock Sch. Dist., 7 F.3d
729, 732 (8th Cir. 1993) (finding that student’s mental disability did not affect the school
officials’ constitutional duties to protect the her).
Viewing the facts in the light most favorable to plaintiff, there are no issues
of material fact remaining on which this claim may stand. Although Fiori and
Futrell allegedly failed to respond to plaintiff’s concerns about B.T., such failures,
if any, do not rise to the level required to support a claim for a violation of
plaintiff’s Fourteenth Amendment Due Process rights. Even if, as plaintiff
11
contends, defendants Fiori and Futrell were aware of B.T.’s sexual invitations to
plaintiff and did not respond, such indifference does not create a danger or
increase plaintiff’s vulnerability. See Scruggs v. Meriden Bd. of Educ., 2007 U.S.
Dist. LEXIS 58517, *39-44 (D. Conn. Aug. 10, 2007) (granting summary
judgment on plaintiff’s due process claim even where school administrators knew
of bullying and did nothing to prevent further beatings); Bungert, 2005 U.S. Dist.
LEXIS 23894, at *12-13; see also Dorothy J. v. Little Rock Sch. Dist., 794 F.
Supp. 1405, 1422 (E.D. Ark. 1992) (“To hold [school administrators liable for
students’ bullying] would impose on schools officials an affirmative duty under
the Due Process Clause to constantly supervise and protect schoolchildren
against any student known to be dangerous while that student is on school
grounds. This is a matter best left to state law.”), aff’d, 7 F.3d 729.
Therefore, the Court will grant summary judgment as to defendants Fiori
and Futrell on Count III.
COUNT IV
Defendants also move for summary judgment on Plaintiff’s negligence
claim against defendants the Board of Education, Fiori and Futrell. Plaintiff
alleges (a) that the defendants had a duty to provide her with adequate
supervision and a safe environment while at school; (b) that the defendants
breached this duty by (i) failing to establish customs or procedures to ensure
supervision; (ii) failing to teach M. self-protective skills; (iii) failing to provide
reasonably adequate supervision; and (iv) failing to take action after Brown’s
note on February 3; and (c) that such breach resulted in the plaintiff’s injuries.
12
Defendants contend that plaintiff’s claim is barred by the doctrine of
governmental immunity under section 52-557n of the Connecticut General
Statutes.
Section 52-577n provides that “a political subdivision of the state shall not
be liable for damages to person or property caused by ... negligent acts or
omissions which require the exercise of judgment or discretion as an official
function of the authority expressly or impliedly granted by law.” Conn. Gen. Stat.
§ 52-557n(a)(2). A state employee can be held liable for negligence in the
misperformance of ministerial acts, but has qualified immunity when performing
acts “wholly for the direct benefit of the public and [which] are supervisory or
discretionary in nature.” Violano v. Fernandez, 280 Conn. 310, 318 (2006).
Three exceptions limit this qualified immunity:
first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm ... second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws ... and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.
Burns v. Bd. of Educ. of City of Stamford, 228 Conn. 640, 645 (1994). The only
exception relevant here is for the Board of Education, Fiori and Futrell’s failure to
act in the case of a perceptible harm to an identifiable person. See Scruggs v.
Meriden Bd. of Educ., 2007 U.S. Dist. LEXIS 58517, *69 (D. Conn. Aug. 10,
2007).
Members of the student body of a school belong to a special class of
individuals to whom the school administrators and teachers owe a special duty of
13
care. Burns at 646. Administrators can only be held liable, however, if they are
aware that their failure to provide adequate supervision would result in the
plaintiff’s complained injury.
The “identifiable person-imminent harm exception” requires that the
danger be limited both in duration and in geography. Scruggs, 2007 U.S. Dist.
LEXIS 58517 at *70. In cases where the Connecticut courts have held the state
actor liable, it has done so on the basis that the duration of the dangerous
condition was limited. See, e.g., Purzycki v. Fairfield, 244 Conn. 101, 110
(1998) (holding administrators and school district liable for injuries that occurred
during a dangerous condition that was “limited in duration and geographical
scope”); Burns, 228 Conn. at 650 (finding superintendent liable for negligence for
failing to clear the school’s walkways of ice during school day). In Doe v. Bd. of
Educ. of City of New Haven, 76 Conn. App. 296 (2003), and Scruggs, however,
the courts ruled that the plaintiffs had not pleaded that the dangerous conditions
were limited in scope.
As in Doe and Scruggs, defendants’ motion as to plaintiff’s claim for
negligence against the Board of Education, Fiori and Futrell must be granted.
Plaintiff has failed to allege that danger to herself was limited in duration or
geographical scope, and her allegations do not specify that she was in danger at
a particular time or in a particular place. Without such limitations, a reasonable
jury would not be able to conclude that the potential harm to the plaintiff was
significant and foreseeable within the meaning of the section 52-552n. Scruggs,
2007 U.S. Dist. LEXIS 58517 at *72. When viewing the facts in the light most
14
favorable to plaintiff, defendants had no way of being aware with sufficient
specificity where and when plaintiff would be assaulted. Even if defendants
should have been aware of the danger that plaintiff faced from B.T., the general
nature of such danger precludes a finding of liability upon a theory of negligence.
Therefore, the Court finds that summary judgment is appropriate as to
Count IV of the Complaint.
COUNT V
Count V alleges that the City of Stamford is liable based on its employees’
negligence under section 7-465 of the Connecticut General Statutes. Because
the Court will strike the negligence claims against defendants Board of
Education, Fiori and Futrell, Stamford can have no liability under section 7-465.
See Healy v. Cronin, 2006 Conn. Super. LEXIS 2422 (Conn. Super. Ct. Mar. 16,
2006).
COUNT VII
In Count VII of her complaint, plaintiff alleges that defendant Board of
Education violated her rights under Title IX, 20 U.S.C. § 1681 et seq., by allowing
and showing deliberate indifference to B.T.’s harassment and interference with
her ability to attend school. In their motion, defendants argue that defendants’
responses to the various events leading up to the alleged assault were
appropriate and sufficient.2
2 The defendants read plaintiff’s complaint as being against individual defendants Fiori and Futrell. Plaintiff’s complaint makes no such allegation. Regardless, a claim under Title IX cannot survive against an individual. See Soper v. Hoben, 195 F.3d 845, 854 (6th Cir. 1999).
15
A recipient of federal funds under Title IX may be held liable for
discrimination stemming from student-on-student sexual harassment. Davis v.
Monroe Cty. Bd. of Educ., 526 U.S. 639, 644-45 (1999). Title IX provides, in
relevant part, that “no person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). To establish a claim under Title IX for
student-on-student harassment, a plaintiff must show: “(1) the alleged
harassment was so severe, pervasive, and objectively offensive that it deprived
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;
and (3) the funding recipient was deliberately indifferent to the harassment.”
Kelly v. Yale Univ., 2003 U.S. Dist. LEXIS 4543, *8 (D. Conn. Mar. 26, 2003)
(internal quotations omitted). Further, liability can only be found in
“circumstances wherein the [funding] recipient exercises substantial control over
both the harasser and the context in which the known harassment occurs.”
Davis, 526 U.S. at 645.
The defendants do not deny that the Board of Education is a recipient of
Title IX funds.
A. Severity of Harassment
The plaintiff alleges that B.T. engaged in persistent sexual advances and
harassment. The harassment which is actionable under Title IX is limited to B.T.
leading plaintiff to the school’s basement where he proceeded to sexually assault
16
her.3 While this occurred only once, because this event followed the February 5
note from Brown to Fiori, it is precisely the type of action covered by Title IX.
See Kelly, 2003 U.S. Dist. LEXIS 4543, at *8-9 (“There is no question that a
rape, as alleged by [the plaintiff], constitutes severe and objectively offensive
sexual harassment under the standard set forth in Davis.”); Soper, 195 F.3d at
855 (noting that a sexual assault constitutes “severe, pervasive, and objectively
offensive sexual harassment”).
Moreover, following the assault, plaintiff alleges that she did not sleep at
night and had nightmares. A psychiatrist prescribed medication to alleviate this.
Furthermore, Dr. Lorefice, plaintiff’s psychiatrist, reported that plaintiff was
traumatized by the incident and that she had difficulty sleeping, diminished
appetite, was vomiting and losing weight.
Based on the allegations described above, a jury could reasonably
conclude that the sexual assault complained of by plaintiff was “severe,
pervasive, and objectively offensive that it can be said to deprive the [plaintiff] of
access to the education opportunities or benefits provided by the school.” Davis,
526 U.S. at 650.
B. Notice by Board of Education
Fiori became aware of the harassment of the plaintiff by B.T. via a letter
sent by Brown to Fiori on February 5. This note sufficiently alerted Fiori, and
3 Although the defendants assert that any physical act between B.T. and the plaintiff was consensual, at this stage, facts must be construed in favor of the non- moving party. Liberty Lobby, 477 U.S. at 255.
17
therefore the Board of Education, to the harassment. See Murrell v. School Dist.
No. 1, 186 F.3d 1238, 1247 (10th Cir. 1999) (“[A] school district is liable if a
school official who had actual knowledge of the abuse was invested by the
school board with the duty to supervise the [harasser] and the power to take
action that would end such abuse and failed to do so."). In addition, the plaintiff
has alleged that Fiori was aware of other sexual activities engaged in by B.T.
through the parents of Michelle Bernando, another special education student at
Westhill High School. The questions of material fact regarding notice preclude
granting summary judgment in this regard but only as to the harassment that
followed the February 5 note.4
C. Deliberate Indifference
The plaintiff alleges that the deliberate indifference of the Board of
Education occurred through the lack of response by Fiori to Brown’s February 5
note. The Court of Appeals for this Circuit has provided that “[d]eliberate
indifference may be found both when the defendant's response to known
discrimination is clearly unreasonable in light of the known circumstances” or
“when remedial action only follows after a lengthy and unjustified delay.” Hayut
v. State Univ. of N.Y., 352 F.3d 733, 751 (2d Cir. 2003). Further, the deliberate
indifference “must, at a minimum, cause [the student] to undergo harassment or
make them liable or vulnerable to it.” Davis, 526 U.S. at 645. The
“unreasonable” standard does not turn the inquiry into a negligence standard.
4 Prior to February 5, Fiori, and therefore the Board of Education, did not have the requisite notice of any harassment of plaintiff by B.T.
18
Instead, “[d]eliberate indifference is more than a mere reasonableness standard
that transforms every school disciplinary decision into a jury question.” Doe v.
Derby Bd. of Educ., 451 F. Supp. 2d 438, 447 (D. Conn. 2006). That is, to avoid
liability, the school district “must merely respond to known peer harassment in a
manner that is not clearly unreasonable.” Davis, 526 U.S. at 649.
The Court is not persuaded by defendants’ citation to Justice Kennedy’s
dissent in Davis. If defendants are trying to argue that responding to claims like
plaintiff’s takes resources away from other tasks, then the Court must reply that
Congress has, through Title IX, created a structure, upheld in Davis, for the
victims of sexual harassment in schools to enforce their rights to a harassment-
free education. It is not up to this Court to ignore plaintiff’s legal rights because
defendants may have to dedicate resources to preventing and responding to
complaints of sexual harassment.
Further, to the extent that defendants point out the apparent catch-22 that
Justice Kennedy discusses, namely, having to balance the victim’s demand for a
response against the alleged harasser’s claims to due process, Davis at 682-83,
the standard established by the majority is one that is deferential to the school’s
response. By establishing a higher standard than simple negligence - that is, by
requiring the plaintiff to show that the school’s response was “not clearly
unreasonable” - the Supreme Court has created a standard that allows courts to
dismiss claims as “not clearly unreasonable” as a matter of law upon a motion to
dismiss, summary judgment or upon a directed verdict, as noted by Justice
O’Connor’s opinion for the Court. See id. at 648-49.
19
Here, there is evidence that would permit a jury to find that the Board of
Education made plaintiff more vulnerable to harassment by B.T. after February
5. While the harassment at the hands of B.T. that prompted the note was not
preceded by sufficient notice of the requisite specificity, the sexual assault of late
February followed the initial harassment and the notice to Fiori. Further, the fact
that, as plaintiff alleges, the school failed to take any disciplinary action provides
evidence from which a jury could reasonably conclude that the Board of
Education’s conduct following its notice of B.T. harassment amounted to
deliberate indifference.
The Court therefore finds that summary judgment is inappropriate as to
Count VII of the Complaint.
CONCLUSION
For the reasons set forth above, the defendants’ motion for summary
judgment [Doc. #101] is GRANTED as to Counts I, III, IV, V and DENIED as to
Count VII. Plaintiff is instructed to file an amended complaint in accordance with
the terms of this Memorandum of Decision within ten days.
Dated at Bridgeport, Connecticut, this 7th day of July, 2008.
/s/ Warren W. Eginton Senior United States District Judge
20