Hill v. Cundiff, 081215 FED11, 14-12481

Docket Nº:14-12481, 13-15444
Opinion Judge:BLACK, CIRCUIT JUDGE
Party Name:JAMES HILL, as guardian and next friend of BHJ, a minor, Plaintiff - Appellant, v. CHRISTOPHER J. CUNDIFF, et al., Defendants, MADISON COUNTY SCHOOL BOARD, RONNIE J. BLAIR, TERESA G. TERRELL, JEANNE DUNAWAY, JUNE ANN SIMPSON, Defendants-Appellees. JAMES HILL, as guardian and next friend of BHJ, a minor, Plaintiff - Appellee, v. MADISON COUNTY SCHOO
Judge Panel:Before HULL and BLACK, Circuit Judges, and ANTOON, District Judge.
Case Date:August 12, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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JAMES HILL, as guardian and next friend of BHJ, a minor, Plaintiff - Appellant,

v.

CHRISTOPHER J. CUNDIFF, et al., Defendants,

MADISON COUNTY SCHOOL BOARD, RONNIE J. BLAIR, TERESA G. TERRELL, JEANNE DUNAWAY, JUNE ANN SIMPSON, Defendants-Appellees.

JAMES HILL, as guardian and next friend of BHJ, a minor, Plaintiff - Appellee,

v.

MADISON COUNTY SCHOOL BOARD, et al., Defendants,

JEANNE DUNAWAY, Defendant-Appellant.

Nos. 14-12481, 13-15444

United States Court of Appeals, Eleventh Circuit

August 12, 2015

Appeals from the United States District Court for the Northern District of Alabama D.C. Docket No. 5:10-cv-02593-TMP.

Before HULL and BLACK, Circuit Judges, and ANTOON, [*] District Judge.

BLACK, CIRCUIT JUDGE

These consolidated appeals involve student-on-student sexual harassment. Jane Doe, 1 an eighth-grade student at Sparkman Middle School, was raped2 in a bathroom after school officials decided to use her as bait in a sting operation to catch CJC, another eighth-grade student, in the act of sexual harassment. On appeal, Doe argues the district court3 erred in (1) granting summary judgment to the Madison County School Board (Board) on her Title IX sexual harassment claim and (2) granting summary judgment to the Board, Principal Ronnie J. Blair, Assistant Principal Teresa G. Terrell, Assistant Principal Jeanne Dunaway, and Teacher's Aide June Ann Simpson on her 42 U.S.C. § 1983 equal protection claims.4 For the reasons explained below, we affirm the grant of summary judgment to the Board and Terrell on Doe's § 1983 equal protection claims. We reverse, however, the grant of summary judgment to the Board on Doe's Title IX claim and to Blair, Dunaway, and Simpson on Doe's § 1983 equal protection claims.

I. FACTUAL BACKGROUND

A. The Parties

At the time of the rape on January 22, 2010, Doe was a 14-year-old girl and an eighth grader. From the time her mother became ill and later passed away in 2007, Doe grew up in foster homes scattered throughout North Carolina. In 2008, Doe moved to Huntsville, Alabama, to live with her siblings' stepmother, Patricia Jones, before starting seventh grade. While in Huntsville, Doe attended seventh grade and a portion of eighth grade at Sparkman Middle School, which is operated by the Board. CJC, a 15-year old male, was also an eighth-grade student at Sparkman.

Four Sparkman officials are named as defendants in this suit: Ronnie J. Blair, Teresa G. Terrell, Jeanne Dunaway, and June Simpson. Blair was the principal at Sparkman. All assistant principals and teachers reported directly to Blair, and Blair retained ultimate authority for operation of the school. Terrell and Dunaway were the assistant principals at Sparkman. June Simpson was a teacher's aide for physical education classes.

B. Board's Sexual Harassment Policies

Prior to and during the 2009-2010 school year, the Board adhered to the following policies concerning the resolution of sexual harassment complaints and the retention of complaint-related documents and student disciplinary records.

1. Investigation and Discipline

Each year, school administrators assigned a team of teachers to instruct the students about Sparkman's sexual harassment policies. Both the 2009-2010 Student Code of Conduct and Board Policy Manual in effect on January 22, 2010, 5include sections addressing student sexual harassment.

According to the Code of Conduct, the principal is ultimately responsible for handling all harassment complaints. The Code of Conduct states that students may report harassment to the "[p]rincipal, assistant principal, a teacher, or to whomever he/she feels the most comfortable." Students may fill out a student sexual harassment complaint form, though Principal Blair cannot remember seeing this form or recall a single instance in which a student used the form. The person receiving the harassment complaint "shall make the complaint known to the [p]rincipal, " and the principal "shall investigate the complaint and take appropriate action." Similarly, the Policy Manual provides that the school official to whom a complaint of sexual harassment is made "shall make the complaint known to the [p]rincipal of the school, except in cases where the complaint is against the [p]rincipal." The principal "shall investigate the complaint and take appropriate action."

The record contains few details about the training used to implement the sexual harassment policies outlined in the Code of Conduct and the Policy Manual. According to Principal Blair, the Board's central office conducted all sexual harassment policy training. Blair reportedly attended an after-school workshop about sexual harassment conducted at Sparkman, but the record does not reveal any documentation from this workshop, a list of who attended, the year it occurred, or the details of the training. Assistant Principal Dunaway remembers attending sexual harassment training at the Madison County Administrator Academy, but that program has since been discontinued. Again, the record contains no documentation of these training sessions.

At the time of her deposition, Assistant Principal Dunaway was not aware the Code of Conduct had any section addressing sexual misconduct or harassment. Sparkman did not revisit the sexual harassment policy with its employees every year, and no records were kept about sexual harassment training. Principal Blair cannot remember the identity of the Title IX coordinator in 2010; does not know how employees would discover the identity of the Title IX coordinator; and testified students were not told the identity of the Title IX coordinator. Rather than give each teacher a copy of the sexual harassment policy, a large binder containing the entire Policy Manual was kept on file at the media center and principals' office. Despite Teacher's Aide Simpson's entreaties to Blair and other faculty members, she received "no proper training" on how to handle sexual harassment complaints.

Principal Blair testified that when a student alleged another student committed sexual harassment, all school personnel were required to report the allegation up the chain-of-command to him if the complaint was "of significance." Blair was responsible for overseeing the investigation of sexual harassment complaints. The assistant principals and other staff members could also investigate complaints of sexual harassment, but they were required to report such allegations to Blair. Blair was not always the person in charge of disciplinary action with regard to sexual harassment; Dunaway and Terrell, as assistant principals, could also be in charge.

Principal Blair crafted a "catch in the act" policy6 establishing three exclusive types of evidence sufficient for the school to discipline a student for sexual harassment. First, if students were "caught and proven" performing a sexual act, that would be grounds for disciplinary action. Second, physical evidence of sexual harassment could be sufficient. Third, discipline was warranted if a student admitted guilt. In contrast, "one person saying" sexual harassment occurred "against another person's word does not work." If a student complained that another student propositioned him or her for sex, that fact alone was not enough to warrant discipline "because you've got one word against another without witnesses."

Principal Blair informed other staff members, including Teacher's Aide Simpson, that students had to be "caught in the act" of sexual harassment to impose discipline. Assistant Principal Dunaway testified that "[s]tudents in middle school, especially with the use of social media, tend to make up a lot of stories about people and if we disciplined every child for every rumor, we would have no children at our school."

2. Recordkeeping

Upon receiving a complaint of sexual harassment or any other disciplinary infraction, school officials conducted an investigation, which often involved interviewing witnesses. An investigation normally produced two types of documents: (1) administrator notes and (2) witness statements.

There was no school-wide policy regarding the retention of administrator notes made during an investigation. Administrators were authorized to arbitrarily destroy or preserve these notes. By contrast, there was a specific policy regarding witness statements. If the sexual harassment allegation was not proven, the witness statements were quickly destroyed. If the sexual harassment allegation was proven, school officials kept the witness statements in a student's paper file located in the principals' office. During the summer shortly after the end of the academic year, all student conduct files (including both administrator notes, if any, and witness statements) were shredded. The identity of the school staff member who performed the shredding is unknown.

After the shredding, the only remaining evidence of a sexual harassment infraction was an entry in the school's disciplinary computer database called iNOW. The database contains a barebones description of each incident, without any accompanying electronic or paper files revealing the precise nature of the infraction. Each entry contains an infraction code noting the nature of offense- such as "sexual harassment" or "inappropriate touching." When asked how the school differentiated between inappropriate touching versus sexual harassment, Terrell testified "one is more serious than the other." The infraction codes were meant to allow administrators to evaluate the cumulative and recidivistic nature of a student's conduct.

The infraction codes were not a systematic method of classifying misconduct, but instead an ad hoc determination made solely by Kathy Abernathy, the school secretary. Assistant Principal...

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