Burrow By and Through Burrow v. Postville Comm.

• Decision Date: 17 June 1996
• Docket Number: No. C94-1031.,C94-1031.
• Citation: 929 F. Supp. 1193
• Parties: Lisa BURROW, a Minor, By and Through her Guardian Ad Litem, Next Best Friends and Parents, David BURROW and Jane Burrow, David Burrow, Individually, and Jane Burrow, Individually, Plaintiffs, v. POSTVILLE COMMUNITY SCHOOL DISTRICT, et al., Defendants.
• Court: U.S. District Court — Northern District of Iowa

929 F. Supp. 1193

Lisa BURROW, a Minor, By and Through her Guardian Ad Litem, Next Best Friends and Parents, David BURROW and Jane Burrow, David Burrow, Individually, and Jane Burrow, Individually, Plaintiffs, v. POSTVILLE COMMUNITY SCHOOL DISTRICT, et al., Defendants.

No. C94-1031.

United States District Court, N.D. Iowa, Eastern Division.

June 17, 1996.

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Lawrence F. Scalise and Donald L. Carr, II, Smith Schneider Stiles Hudson, Des Moines, IA, for Plaintiff, Lisa Burrow.

Donald H. Gloe, Miller Pearson Gloe Burns Beatty, Decorah, IA, for Defendant, Postville Community School District.

OPINION AND ORDER

MELLOY, Chief Judge.

Pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-88, 42 U.S.C. § 1983 and Iowa tort law, the Plaintiffs, Lisa Burrow and her Parents, David and Jane Burrow, bring the present action against the Defendants, Postville Community School District ("PCSD"), John Selk, individually and in his official capacity as Superintendent of PCSD, and Dennis White, individually and in his official capacity as Principal of Postville Community High School.¹ The Plaintiffs' complaint alleges that Lisa Burrow was sexually harassed and assaulted by her peers on a continuous basis while she was a student at Postville Community High School, and that the Defendants were notified repeatedly of such harassment but failed to take any meaningful action to end the harassment and protect Lisa Burrow. Specifically, the Plaintiffs allege that the Defendants, by their knowing inaction, intentionally discriminated against Lisa Burrow on the basis of her sex, thus denying her of the benefits of a public education in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-88, as well as denying her of her Fourteenth Amendment rights in violation of 42 U.S.C. § 1983. The Plaintiffs have also brought two pendant state claims under Iowa tort law for both intentional and negligent infliction of emotional distress. The Plaintiffs' maintain that as a direct result of the Defendants' inaction Lisa Burrow suffered injuries to her body, severe mental and emotional distress, and was essentially forced to graduate early to get out of the hostile sexual environment that she encountered at Postville Community High School. Lisa's Parents also claim to have suffered emotionally and financially from the Defendants' failure to protect Lisa. As a result, the Plaintiffs filed the present action on August 5, 1994, seeking redress for the alleged unlawful conduct of the Defendants. The matter presently before the court is the Defendants' Motion for Summary Judgment on all claims (doc. # 12), filed December 7, 1995.

I. Background

During the Fall of 1991, while Plaintiff Lisa Burrow ("Lisa") was a sophomore at Postville Community High School, Lisa told her Parents the names and addresses of the Postville Community High School students who attended a party which took place at her Parents' farmhouse in their absence and caused over $1,500 in damage to the property. Lisa's reporting of the individuals who attended the party and were responsible for such damage apparently incited her fellow students at Postville Community High School to launch a host of verbal and physical assaults against Lisa, many of which took on a sexual nature. This harassing conduct lies at the heart of the present action.

Lisa was allegedly sexually harassed on a daily basis by her fellow students (both male and female) beginning sometime during the 1991-92 school year and continuing until January of 1994 when Lisa graduated from high school a semester early. Specific alleged acts which occurred in March, April and May of 1993, as described in the Plaintiffs' complaint and supporting documentation, include the following: students repeatedly called Lisa vulgar names of a sexual nature and yelled sexual obscenities at her, such as "slut," "whore," "bitch," "skank," and "fuckin' tramp"; students repeatedly threw food and spit wads at Lisa, pushed her into her locker, elbowed her and intentionally ran into her in hallways; a male student repeatedly kicked her between her legs in a sexually offensive manner; students stole her book bag and wrote sexual obscenities and threats on her books, her folders, her locker and school bathroom walls; and students repeatedly threatened her life. According to the Plaintiffs, these acts are representative of the type of harassing conduct Lisa endured over the entire period of time that she was harassed. In addition, the supporting documentation submitted by the Plaintiffs contains student-written documents, distributed by students at school, in which Lisa is specifically referred to or alluded to in sexually degrading and/or vulgar terms, such as "BEER SLUT" and "DUMB CUNT SHOULD HAVE DIED." Other evidence submitted includes work written by Lisa which was defaced with obscenities after being posted in the school. Due to the on-going harassment, Lisa left school on a number of days. Ultimately, the harassment prompted Lisa to request permission to graduate a semester early in January, 1994.

As early as 1991, throughout the 1992-93 school year and up through the time of Lisa's early graduation in January of 1994, Lisa and her Parents, Jane and David Burrow, allegedly made complaints to the PCSD Superintendent, Defendant John Selk ("Superintendent Selk"), and the Postville Community High School Principal, Defendant Dennis White ("Principal White"), to inform them of the alleged problems with students sexually harassing and threatening Lisa. The Plaintiffs contend that during the entirety of the 1992-93 school year, Jane Burrow spoke with Superintendent Selk and Principal White at least three times per week to report the ongoing harassment of Lisa. Further, in January of 1992 legal counsel retained by Lisa and her Parents wrote to and conversed with Superintendent Selk. During such correspondence with the Burrows' attorney, Superintendent Selk allegedly indicated that he would take care of the problem and put an end to the harassment of Lisa. However, according to the Plaintiffs neither Superintendent Selk, nor Principal White nor anyone else in the PCSD took appropriate or effective action to protect Lisa and correct the situation.

In addition to their direct contact with Superintendent Selk, the Plaintiffs allege that on more than one occasion Lisa spoke about the sexual harassment behaviors with a teacher, Mr. John O'Hara, who in turn communicated Lisa's complaints to Superintendent Selk. In particular, the Plaintiffs point to a computer-generated document, entitled "Postville High School Narked On" (Plaintiff's Ex. 32), which was written by unidentified student(s) and contained sexually degrading epithets in reference to Lisa. After finding out from Lisa about the existence and distribution of such document, Mr. O'Hara tried to discover who was responsible for writing the document and went to Superintendent Selk's office with regard to the document. O'Hara Dep. at 26. At his deposition, Mr. O'Hara testified that he was not aware of any further investigation taken by the school or the PCSD in response to the document. O'Hara Dep. at 27-28.

Lisa also spoke with a Postville Community High School guidance counselor, Mr. David Koopman, on several occasions to discuss the problems with students sexually harassing her and a few times came into his office crying and used his phone to call her mother about the harassment. D. Koopman Dep. at 24. Lisa told Mr. Koopman that one of her reasons for wanting to graduate early was the sexual harassment by her peers. D. Koopman Dep. at 26-28. During his deposition, Mr. Koopman stated that he recalls having several conversations about the harassment of Lisa with Mr. O'Hara in the Fall of 1993. D. Koopman Dep. at 39-40.

In support of their allegations, the Plaintiffs point out that prior to and during the significant period of time in which Lisa was harassed PCSD failed to adopt and implement a policy prohibiting sexual harassment at its schools and failed to train teachers and students with regard to sexual harassment. In his deposition, Superintendent Selk admitted that prior to October of 1992, the School District had no official policy to deal with cases of sexual harassment (Selk Dep. at 31-33) and that prior to June of 1993, the School District had no grievance procedure for claims of sexual harassment. Selk Dep. at 75-76. Selk further stated that in his opinion Lisa Burrow was subject to sexual harassment while she was a student at Postville Community High School, beginning sometime during the 1991-92 school year. Selk Dep. at 41-42.

From his deposition testimony it appears that in the latter half of the 1991-92 school year Superintendent Selk was aware that Lisa was being harassed by fellow students. Superintendent Selk acknowledged that Mr. Burrow had notified him of the harassment in a telephone conversation and had asked him to do something about it. Selk Dep. at 43-44. Selk further acknowledged that in October of 1992, he was aware of some of the verbal obscenities that female and male students had called Lisa. Selk Dep. at 49-50. Selk stated that at some point he had met with Lisa about some of the harassing conduct. Selk Dep. at 49-50. After receiving two letters from the Burrows' attorney in January 1992, Superintendent Selk had a talk with one of the female students harassing Lisa and that student's parents. According to Superintendent Selk, he also met with some of the female students who had harassed Lisa and their parents at the beginning of the 1992-93 school year. Selk Dep. at 55-56. Aside from the above-mentioned conversations with a few of the responsible students and some of their parents, it appears that no disciplinary action was taken against the students harassing Lisa, nor were any training sessions held to educate students about sexual harassment during the 1992-93...