Murrell v. School Dist. No 1

• Decision Date: 04 August 1999
• Docket Number: No. 97-1055,97-1055
• Citation: 186 F.3d 1238
• Parties: (10th Cir. 1999) PENELOPE C. MURRELL, on her own behalf and as mother and guardian ad litem of Penelope C. Jones; and PENELOPE C. JONES, Plaintiffs-Appellants, v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, also known as Denver Public Schools; SCHOOL DISTRICT NO. 1, BOARD OF EDUCATION, also known as Denver Public Schools Board of Education; VIVIAN JOHNSTON, individually and in her capacity as Principal of George Washington High School; KATHLEEN BRADY, individually and in her capacity as Teacher; NELIA HICKS, individually and in her capacity as Teacher; IRV MOSKOWITZ, in his capacity as the Superintendent of Denver Public Schools, Defendants-Appellees, NOW LEGAL DEFENSE AND EDUCATION FUND; ACLU WOMEN'S RIGHTS PROJECT; CONNECTICUT WOMEN'S EDUCATION AND LEGAL DEFENSE FUND; EQUAL RIGHTS ADVOCATES; NATIONAL WOMEN'S LAW CENTER; NORTHWEST WOMEN'S LAW CENTER; TEXAS CIVIL RIGHTS PROJECT; TITLE IX ADVOCACY PROJECT; WOMEN'S LEGAL DEFENSE FUND; NATIONAL ASSOCIATION OF SCHOOL PSYCHOLOGISTS; NATIONAL ASSOCIATION OF SCHOOL WORKERS; LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.; UNITED STATES OF AMERICA, Amici Curiae
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1238

186 F.3d 1238 (10th Cir. 1999)

PENELOPE C. MURRELL, on her own behalf and as mother and guardian ad litem of Penelope C. Jones; and PENELOPE C. JONES, Plaintiffs-Appellants, v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, also known as Denver Public Schools; SCHOOL DISTRICT NO. 1, BOARD OF EDUCATION, also known as Denver Public Schools Board of Education; VIVIAN JOHNSTON, individually and in her capacity as Principal of George Washington High School; KATHLEEN BRADY, individually and in her capacity as Teacher; NELIA HICKS, individually and in her capacity as Teacher; IRV MOSKOWITZ, in his capacity as the Superintendent of Denver Public Schools, Defendants-Appellees,

NOW LEGAL DEFENSE AND EDUCATION FUND; ACLU WOMEN'S RIGHTS PROJECT; CONNECTICUT WOMEN'S EDUCATION AND LEGAL DEFENSE FUND; EQUAL RIGHTS ADVOCATES; NATIONAL WOMEN'S LAW CENTER; NORTHWEST WOMEN'S LAW CENTER; TEXAS CIVIL RIGHTS PROJECT; TITLE IX ADVOCACY PROJECT; WOMEN'S LEGAL DEFENSE FUND; NATIONAL ASSOCIATION OF SCHOOL PSYCHOLOGISTS; NATIONAL ASSOCIATION OF SCHOOL WORKERS; LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.; UNITED STATES OF AMERICA,

Amici Curiae.

No. 97-1055

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 4, 1999

Appeal from the United States District Court for the District of Colorado. D.C. No. 95-Z-2882

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] David C. Feola of King Clexton & Feola, LLC, Denver, Colorado (Alan K. Molk of Lapuyade, Washington & Molk, L.L.C., Denver, Colorado, with him on the briefs), for Plaintiffs-Appellants.

Yolanda S. Wu (Martha F. Davis and Julie Goldscheid with her on the brief) of NOW Legal Defense and Education Fund, New York, New York, for Amici Curiae NOW Legal Defense and Education Fund, ACLU Women's Rights Project, Connecticut Women's Education and Legal Defense Fund, Equal Rights Advocates, National Women's Law Center, Northwest Women's Law Center, Texas Civil Rights Project, Title IX Advocacy Project, Women's Legal Defense Fund on behalf of Plaintiffs-Appellants.

Patrick B. Mooney (Martin Semple with him on the brief) of Semple & Mooney, P.C., Denver, Colorado, for Defendants-Appellees.

Isabelle Katz Pinzler, Acting Assistant Attorney General; and Dennis J. Dimsey and Seth M. Galanter, Attorneys, Department of Justice, Washington, DC, filed a brief for Amicus Curiae United States of America.

Beatrice Dohrn, Legal Director; and David S. Buckel and Ruth E. Harlow of Lambda Legal Defense Fund, Inc., New York, New York, filed a brief for Amici Curiae National Association of School Psychologists, National Association of Social Workers, and Lambda Legal Defense and Education Fund, Inc.

Before SEYMOUR, Chief Judge, ANDERSON and LUCERO, Circuit Judges.

SEYMOUR, Chief Judge.

Penelope C. Murrell brought this action on her own behalf and as guardian ad litem for her daughter, Penelope C. Jones, against School District Number 1, Denver, Colorado (the School District). In her complaint, Ms. Murrell asserted that the School District violated Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., based on the School District's alleged knowledge of and failure to remedy sustained sexual harassment, assault, and battery of Ms. Jones, a developmentally and physically disabled student at George Washington High School (GWHS), by one of her fellow students. Ms. Murrell also asserted two claims under 42 U.S.C. § 1983 against the School District, and individually against the principal of GWHS and two of Ms. Jones' teachers. In her first constitutional claim, Ms. Murrell alleged that the School District, principal and teachers violated the Equal Protection Clause of the Fourteenth Amendment by failing to remedy Mr. Doe's sexual harassment of Ms. Jones. In her second claim, Ms. Murrell alleged the School District, principal and teachers violated the Due Process Clause of the Fourteenth Amendment by failing to protect Ms. Jones from Mr. Doe.¹

The district court dismissed the action under Fed. R. Civ. P. 12(b)(6) for failure to state a claim for which relief may be granted. The court held that Title IX provides no cause of action for a school's failure to prevent and remedy student-on-student sexual harassment, and that the School District had no constitutional duty to protect Ms. Jones from assaults by a fellow student.² Ms. Murrell and Ms. Jones appeal the district court's order with respect to her Title IX and equal protection claims. For the reasons stated below, we reverse in part and affirm in part.

I.

In reviewing the grant of a motion to dismiss, we are bound to construe as true the facts presented in the plaintiff's complaint. See Seamons v. Snow, 84 F.3d 1226, 1231-32 (10th Cir. 1996). Thus construed, the complaint presents the following series of events.

Penelope Jones began attending classes at GWHS on or about October 25, 1993. Ms. Jones was born with spastic cerebral palsy, which severely impairs her ability to use and control the right side of her body. She is also deaf in her left ear. Testing conducted by the School District established that Ms. Jones was also developmentally disabled. According to an Educational Assessment performed in December 1993, Ms. Jones functioned intellectually and developmentally at the level of a first-grader.

Upon enrolling Ms. Jones at GWHS, Ms. Murrell informed the principal of GWHS, Vivian Johnston, and special education teachers Kathleen Brady and Nelia Hicks, that Ms. Jones had been sexually assaulted at her previous school. Ms. Murrell expressed her fear that her daughter's mental and physical disabilities would place her at continued risk. Ms. Murrell asserts that the principal and the teachers assured her Ms. Jones would be properly supervised. The complaint also alleges that these officials had a duty to supervise and ensure the safety of all GWHS students.

GWHS assigned Ms. Jones to the special education program taught by teachers Brady and Hicks. There Ms. Jones encountered another special education student, "John Doe," who was known to have significant disciplinary and behavioral problems which included engaging in sexually inappropriate conduct. According to the allegations in the complaint, the School District was well aware of Mr. Doe's history. Indeed, Mr. Doe's mother had specifically cautioned the teachers and the principal of the need to keep a watchful eye on him and had informed them that Doe was receiving professional treatment for his problems. Despite Mr. Doe's known behavioral problems, the School District appointed him to a position as a "janitor's assistant," through which he gained access to certain unsupervised areas of the school.

In early November 1993, the teachers became aware that Mr. Doe was engaging in aggressive, sexually inappropriate conduct toward Ms. Jones. At about that same time, Ms. Murrell informed the teachers that Mr. Doe had been making harassing phone calls to Ms. Jones at her home. According to the complaint, it was also during this time that Mr. Doe sexually assaulted Ms. Jones on multiple occasions. Sometime in November, Mr. Doe took Ms. Jones to a secluded area and sexually assaulted her. Ms. Jones, who was menstruating at the time, bled and vomited during the course of the assault and battery. Upon discovering Mr. Doe and Ms. Jones, a janitor told them to clean up the mess, returned them to class, and advised the teachers where he had found them. Although the teachers allegedly knew that Mr. Doe had sexually assaulted Ms. Jones on this occasion, they did not so inform Ms. Murrell. Ms. Murrell learned that Ms. Jones had gotten menstrual blood on her clothing and that the teachers had tied other clothing around her waist to hide it, but Ms. Murrell was never told that the janitor had found Mr. Doe and Ms. Jones in a secluded, unsupervised area, nor was Ms. Murrell informed of any of the circumstances leading to the soiling of Ms. Jones' clothing. On at least one of the occasions on which Mr. Doe battered and sexually assaulted her, Ms. Jones informed the teachers of Mr. Doe's conduct. The teachers told Ms. Jones not to tell her mother about the incident and encouraged her to forget it had happened at all. On or about November 24, 1993, Mr. Doe again took Ms. Jones to a secluded area of the school and battered and sexually assaulted her. Although the teachers knew she had been battered and may have known she was sexually assaulted, they informed Ms. Jones' mother only about the non-sexual battery.

Because of these incidents and because she had begun to engage in self-destructive and suicidal behavior, Ms. Jones left school and entered a psychiatric hospital. Only then did Ms. Murrell learn about the sexual assaults and the batteries of her daughter by Mr. Doe. Although Ms. Murrell immediately contacted the teachers to advise them of what she had learned from Ms. Jones, the teachers denied the incidents could have occurred, told Ms. Murrell to send Ms. Jones back to school, and refused to discuss the matter further. Ms. Murrell asked that the information be provided to Principal Johnston in order that she might investigate Ms. Jones' allegations. Ms. Murrell then telephoned the principal herself and left a message on her answering machine. The principal neither returned Ms. Murrell's call nor undertook any investigation of the alleged incidents.

Following her release from the hospital, Ms. Jones attempted to return to school on December 6, 1993, but stayed for only one day because she was once again battered by Mr. Doe and ridiculed by other students for Mr. Doe's earlier sexual attacks on her. After making several unsuccessful attempts to contact the principal, Ms. Murrell eventually learned from the teachers and Mr. Doe's mother that a meeting had been scheduled to discuss Mr. Doe's sexual conduct with Ms. Jones. That meeting took place on December 10 at GWHS and was attended by the principal, Mr. Doe's mother, the teachers, Ms....