231 F.3d 253 (6th Cir. 2000), 99-5095, Vance v Spencer Co. Public Sch.

Docket Nº:99-5095
Citation:231 F.3d 253
Party Name:Steven Vance, Minor, by and through his mother, Deborah Vance; Alma McGowen, Minor, by and through her mother, Barbara Erfurth, Plaintiffs-Appellees, v. Spencer County Public School District; Spencer County Board of Education, Defendants-Appellants.
Case Date:November 06, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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231 F.3d 253 (6th Cir. 2000)

Steven Vance, Minor, by and through his mother, Deborah Vance; Alma McGowen, Minor, by and through her mother, Barbara Erfurth, Plaintiffs-Appellees,


Spencer County Public School District; Spencer County Board of Education, Defendants-Appellants.

No. 99-5095

United States Court of Appeals, Sixth Circuit

November 6, 2000

Argued: June 20, 2000

Appeal from the United States District Court for the Western District of Kentucky at Louisville. Nos. 96-00449--Thomas B. Russell, District Judge.

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Oliver H. Barber, Jr., Jeffery S. Miller, BARBER, BANASZYNSKI & ASSOCIATES, Louisville, Kentucky, for Appellees.

Robert L. Chenoweth, Patricia Todd Bausch, CHENOWETH LAW OFFICE, Frankfort, Kentucky, for Appellants.

Before: KEITH, DAUGHTREY, and GILMAN, Circuit Judges.

KEITH, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. GILMAN, J. (pp. 264-65), delivered a separate concurring opinion.


KEITH, Circuit Judge.

This appeal 1 presents questions concerning the nature and extent of circumstantial evidence needed to permit a reasonable inference of gender discrimination by school officials in the student-on-student sexual harassment context. The Spencer County School District ("Spencer")2 appeals from the district court's denial of its

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post-trial motion for judgment as a matter of law. A jury found that Spencer violated both Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, and 42 U.S.C. § 2000d by discriminating against Plaintiff Alma McGowen, a student at one of its schools. For the reasons that follow, this Court AFFIRMS.


In November 1992, Alma McGowen enrolled in Spencer as a sixth grader. On the second day of school, some first graders yelled to her, "Oh, there's that German gay girl, that new girl that just moved here." Alma complained to the Spencer School Counselor, Kathy Whitehead. Whitehead spoke to the children Alma identified and gave presentations on accepting people.

During Alma's sixth grade year, while riding the bus, a high school student asked Alma to describe oral sex. Alma reported the incident to both her mother and Whitehead. Whitehead contacted the high school principal, Murrel Lawson. Lawson expelled the student from the bus for a few days. When the student returned, he continued to curse at Alma and was even more vulgar than before.

During the 1993-1994 school year, Alma attended the Spencer County High School ("Spencer High"). While there, another student, who was the school principal's nephew, confronted Alma in the presence of other students and demanded to know if she was gay. When Alma spoke to David Shelburne, the assistant principal at the high school, he said that the boys considered her cute and they were flirting with her, so she should just "be friendly."

During her seventh grade year, students regularly shoved Alma into walls, grabbed her book bag, and stole and destroyed her homework. Alma reported these incidents to Phyllis Jenkins, the academic counselor, who referred her to Father Ryan, the youth advocate. In response, Father Ryan told her he would see what he could do.

In the fall of the 1993-1994 school year, a male student in her gym class called Alma and other female students "whores" and "motherfuckers," hit them, snapped their bras, and grabbed their butts. He also went into Alma's bag and began to take things from it. When Alma tried to get her pen back from him, the boy stabbed her in the hand with the pen. Alma reported the incident to her gym teacher, who sent her to the principal's office. The office secretary treated Alma's injury. The principal was informed, but did not get involved at that time. A few days later, the student told Alma that he had been talked to, but that he did not get into any trouble because he was a school board member's son.

During the Spring semester of her seventh grade year, Alma's mother wrote two letters concerning her daughter. The first letter concerned an incident in her science class. Some students approached Alma during a bathroom break while the teacher was not in the room. Several of the students called Alma crude names and backed her up against a wall. Two boys held her hands, while other students grabbed her hair and started yanking off her shirt. When a boy stated he was going to have sex with her and began to take his pants off, another boy intervened and assisted Alma. Alma did not report the incident to her teacher. Alma went home and told her mother about the incident. Alma's mother wrote a letter to the principal, which Alma hand-delivered to the front office the following day.

In response to the letter, the classroom teacher spoke with Alma and five of the boys involved in the incident. With Alma seated between two of the boys, the teacher told Alma to tell the boys what she thought they had done. Alma did not know if anything was done to punish the boys.

During the fall of Alma's eighth grade year, 1994-1995, a female special education

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student struck Alma. Principal Lawson spoke to the girl. During that same period, Alma spoke with Kirby Smith, the youth advocate who replaced Father Ryan, about other students harassing her. Smith asked Alma for a list of the students in order to address the situation. Smith spoke with the boys who were on the list that Alma gave him.

Later, one of the boys told Alma in front of a class that he told Smith that he had a crush on her and that he could touch Alma in any way he wanted and no one was going to do anything about it. Afterward, the boy did indeed touch Alma on her chest and butt. He also requested sexual favors several times while the teacher was in the room. Alma testified that nothing was done about these incidents.

In December 1994, Alma spoke with Assistant Principal Shelburne and indicated that the boy, who was a part of the problem in her science class, was still harassing her. A few days later, the boy told Alma that although he had been spoken to, he did not "give a damn about it and he would do whatever he wanted to."

Alma testified that the harassment increased to the point that she was propositioned or touched inappropriately in virtually every class. Alma also testified that the more she complained to the principals, even though they spoke to the students, the harassment seemed to increase and she indicated she grew leery of talking to anyone.

In May 1995, pursuant to the Spencer Harassment Policy, Alma filed a complaint alleging violations of Title IX. The complaint listed detailed instances of sexually harassing conduct. Spencer took no action to address the specific harassment allegations before school started in August 1995. Instead, the Title IX Coordinator allowed Alma to complete the remaining few weeks at home. Alma's complaint was not presented to the Spencer's new Superintendent, who began in July 1995. Additionally, Spencer took the position that it did not have enough information to investigate Alma's specific allegations.

At the beginning of the 1995-1996 school year, Spencer discussed its new sexual harassment policy at the high school. From August 16 through August 31, 1995, Alma attended school. She testified that groups of students continued to ask for sexual favors, touch her in ways that made her uncomfortable, and hit her with books. During this same time period, Alma attended school sexual harassment presentations. Spencer also provided sexual harassment and discrimination training to all its employees.

Alma was diagnosed with depression. On her last day at the high school, a boy told her he was part of the KKK, as were his family members, and they were going to go to her home and burn it down because all Germans should be burned and sent to hell.

On August 31, 1995, Alma withdrew. In the fall of 1995, the Spencer Board of Education (the "Board") received Alma's complaints. The Board invited her and her mother to meet with them. Upon advice of counsel, neither Alma nor her mother met with the Board.

On July 1, 1996, Alma, by and through her mother, filed her complaint. She alleged that Spencer, as a funding recipient, had subjected her to intentional sexual discrimination as a result of peer conduct in violation of Title IX of the Education Amendments of 1972, 86 Stat. 373, as amended, 20 U.S.C. § 1681 et seq., and the Kentucky Civil Right Act. Alma also alleged that Spencer discriminated against her on the basis of her national origin, by failing to take appropriate action for the alleged hostile environment caused by her peers, who allegedly harassed her at school in violation of 42 U.S.C. § 2000d.

On September 1, 1998, a jury trial commenced. At the close of Plaintiff's proof and again at the conclusion of all of the evidence, the Board moved for summary judgment as a matter of law pursuant to

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Federal Rule of Civil Procedure 50. The trial court denied both motions and submitted the case to the jury. The jury returned its verdict in favor of Alma on all counts and awarded her $220,000.

Spencer appeals the lower court's denial of its Rule 50 motion. 3


In reviewing a motion for a judgment as a matter of law under Federal Rule of Civil Procedure 50, this Court...

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