Carroll K. v. Fayette County Bd. of Educ.

• Decision Date: 25 August 1998
• Docket Number: Civil Action No. 5:98-0425.
• Citation: 19 F.Supp.2d 618
• Court: U.S. District Court — Southern District of West Virginia
• Parties: CARROLL K., et al., Plaintiffs, v. FAYETTE COUNTY BOARD OF EDUCATION, et al., Defendants.

19 F.Supp.2d 618

CARROLL K., et al., Plaintiffs, v. FAYETTE COUNTY BOARD OF EDUCATION, et al., Defendants.

Civil Action No. 5:98-0425.

United States District Court, S.D. West Virginia, Beckley Division.

August 25, 1998.

COPYRIGHT MATERIAL OMITTED

Scott S. Segal, The Segal Law Firm, Charleston, WV, for Plaintiffs.

J. Victor Flanagan, Pullin, Knopf, Fowler & Flanagan, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending is Defendants' motion to dismiss. The matter is ripe for review. After careful consideration, the Court DENIES in part and GRANTS in part the motion.

I. FACTUAL BACKGROUND

Accepting all factual averments of the complaint as true, the Court states the facts.

Carroll K. was a sixth grade student at Collins Middle School during the 1996-97 school year. Before, on, and after April 7, 1997 Carroll K. was the victim of more than one crime of violence committed at the school, all of which were motivated by her gender. On one occasion, police officers were summoned when a student physically assaulted Carroll K., causing her to suffer injuries.¹

On April 7, 1997 Carroll K. and other students were on school property, but outside the school building for lunchtime recess and recreation. When one male student threatened Carroll K. in a bully-like fashion, she attempted in vain to run away. After the male student caught her, he picked her up and put her on his shoulder. After swinging her around in the air, he threw her against a steel pole. While this was happening, Carolyn Benda, who was a teacher at Collins, witnessed its occurring and exclaimed, "Oh God. Here we go again!" but she made no attempt to intervene. As a proximate result of being thrown against the pole, Carroll K. suffered a severe cervical spine injury and now is blind in her left eye.

Carroll K. is joined by her parents, Charles K. and Nancy K., in filing this civil action against Defendants Fayette County Board of Education ("BOE"); David Perry, Collins Middle School principal; Jim Ayers, vice-principal; and Carolyn Benda, teacher. Plaintiffs assert claims under Title IX, 20 U.S.C. §§ 1681, et seq.; 42 U.S.C. § 1983; West Virginia Human Rights Act, West Virginia Code § 5-11-1 et seq.; and state law.

II. DISCUSSION

A. Standard for Rule 12(b)(6) Motions

Our Court of Appeals has often stated the settled standard governing the disposition of a motion to dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure:

In general, a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief. In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.

Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993), cert. denied, 510 U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994) (citations omitted); see also Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir.1996); Gardner v. E.I. Dupont De Nemours and Co., 939 F.Supp. 471, 475 (S.D.W.Va.1996).

It is through this analytical prism the Court evaluates Defendants' motion.

B. Title IX Claims

Title IX provides in pertinent part that, "[n]o person ... 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). In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court held Title IX is enforceable through an implied private right of action and in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), it held monetary damages are available in the implied private action. The text of Title IX should be given "a sweep as broad as its language." North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S.Ct. 1912, 72 L.Ed.2d 299, (1982) (citation omitted).

This case involves a situation of alleged peer-to-peer harassment, a Title IX scenario with which the Supreme Court has not yet been presented. Although our Court of Appeals has addressed peer harassment under Title IX, that opinion has been vacated pending a rehearing en banc. See Brzonkala v. Virginia Polytechnic Inst., 132 F.3d 949 (4th Cir.1997), rehearing en banc granted, opinion vacated (Feb. 5, 1998). Nonetheless, numerous courts have addressed questions similar to the ones raised here, and the Court has considered their opinions.²

Defendants raise several arguments for dismissal, some of which are mentioned merely and not developed. Given a broad reading, the documents argue plaintiffs failed to allege facts that (1) the alleged harassment occurred because of Carroll K.'s gender; (2) the Defendants had actual notice of the alleged harassment; and (3) the BOE had the discriminatory intent to violate Title IX.

First, Plaintiffs have alleged that, on several occasions "Carroll K. was the victim of crimes of violence motivated by gender at Collins Middle School." Complaint at 3 (emphasis added). Because the Court must accept as true all factual averments in the complaint, the complaint survives Defendants' first challenge.

Second, Defendants argue Plaintiffs have not stated facts sufficient to show Defendants had actual notice. The Supreme Court recently held, "in cases ... that do not involve official policy of the recipient entity, ... a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond." Gebser v. Lago Vista Indep. Sch. Dist., ___ U.S. ___, ___, 118 S.Ct. 1989, 1999, 141 L.Ed.2d 277 (1998) (emphasis added). Plaintiffs allege a teacher witnessed the playground event, aware of the male student's actions.³ Moreover, the complaint alleges Defendants "otherwise had knowledge of inappropriate behavior and a hostile sexual environment and took no action to remedy the situation or to intervene in any way." Complaint at 7. The Court cannot conclude there is no set of facts Plaintiffs could prove that would support their claim and entitle them to relief.

Third, Defendants argue Plaintiffs have failed to allege facts showing the BOE had a discriminatory intent. Once an official has actual notice, he must "fail[ ] adequately to respond" which "must amount to deliberate indifference to discrimination." Gebser, 118 S.Ct. at 1999. There must be "in other words ... an official decision by the [federal funds] recipient not to remedy the violation." Id. Allegedly, Benda witnessed the male student picking up Carroll K., said, "Oh, God. Here we go again," and took no action to intervene. Moreover, the complaint alleges Defendants, inter alia,:

[d]iscouraged and inhibited the reporting by female students of gender motivated abuse, hostility, intimidation, discrimination, and harassment;

...

[f]ailed to prevent retaliation against students reporting or complaining of mistreatment, failed to ensure a non-hostile post-disclosure educational environment for students complaining of gender motivated abuse, harassment, hostility, intimidation, discrimination, and disparate treatment, and otherwise knowingly failed to take appropriate remedial action in response to the hostile sexual environment;

[d]ismissed, discounted, and excused the gender motivated harassment, abuse, assault, battery, disparate treatment, hostility, intimidation, discrimination and similar misconduct by the attitude of "boys will be boys."

...

[o]therwise ... took no action to remedy the situation or intervene in any way.

Complaint at 6-7. Although reported cases state more fully developed factual scenarios, including specific factual allegations of officials' failure to respond, see, e.g., Doe v. Londonderry Sch. Dist., 970 F.Supp. 64 (D.N.H.1997), the complaint here sufficiently alleges facts of an official failing to respond adequately.

Although the Court finds the Title IX claim survives the motion to dismiss, it is appropriate to echo another court in cautionary words to Plaintiffs:

While we are permitting plaintiff's complaint to go forward, we caution that not every unwanted interaction of a physical or sexual nature between adolescents states a Title IX claim against a school district. While sexual overtures or contact between a teacher and a student is undeniably out of bounds, a similar relationship between adolescents does not necessarily constitute harassment.

Collier v. William Penn Sch. Dist., 956 F.Supp. 1209, 1214 (E.D.Pa.1997).

C. 42 U.S.C. § 1983

Plaintiffs allege Defendants violated Carroll K.'s Fourteenth Amendment due process right to be free from state-occasioned harm to her bodily integrity, right to privacy, right to freedom and protection from and against a hostile discriminatory environment, and right to be free from gender-motivated abuse and harassment.⁴ Defendants argue, first, Plaintiffs cannot maintain causes of action under both Title IX and § 1983 for the same set of underlying facts and, second, Defendants' actions do not constitute a § 1983 violation.

1. Preemption

Section 1983 serves as a means by which plaintiffs may recover monetary damages and injunctive relief from governmental actors and entities whose actions under color of state or local law deprive such plaintiffs of constitutional rights, privileges and immunities. Importantly, Section 1983 "`is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (citations omitted).

Defendants argue Plaintiffs cannot maintain both a Title IX...