Clark Cnty. Sch. Dist. (CCSD) v. Bryan
| Decision Date | 24 December 2020 |
| Docket Number | No. 74566,No. 73856,73856 |
| Citation | 478 P.3d 344 |
| Parties | CLARK COUNTY SCHOOL DISTRICT (CCSD), Appellant, v. Mary BRYAN, Mother of Ethan Bryan; and Aimee Hairr, Mother of Nolan Hairr, Respondents. Clark County School District (CCSD), Appellant, v. Mary Bryan, Mother of Ethan Bryan; and Aimee Hairr, Mother of Nolan Hairr, Respondents. |
| Court | Nevada Supreme Court |
Lewis Roca Rothgerber Christie LLP and Joel D. Henriod, Daniel F. Polsenberg, Dan R. Waite, Brian D. Blakley, and Abraham G. Smith, Las Vegas, for Appellant.
Allen Lichtenstein, Ltd., and Allen Lichtenstein, Las Vegas; Scott Law Firm and John Houston Scott, San Francisco, California, for Respondents.
BEFORE HARDESTY, STIGLICH and SILVER, JJ.
The plaintiffs below raised Title IX and 42 U.S.C. § 1983 claims against a school district for student-on-student harassment after two sixth-graders targeted classmates Nolan and Ethan with sexual slurs, other insults, and physical assaults in the fall of 2011. Nolan's and Ethan's mothers reported the harassment and the physical assaults to the school in September and again in October, but school administrators failed to conduct an official investigation as required by NRS 388.1351 or to prevent continued harassment. Nolan and Ethan eventually withdrew from the school, and their parents (collectively Bryan) later filed the underlying lawsuit. The district court found for Bryan on both their Title IX and § 1983 claims following a bench trial.
On appeal, the school district contests nearly every element of the district court's decision, beginning with whether the harassment was "on the basis of sex," as required for a Title IX claim. Recently the United States Supreme Court ruled that Title VII's prohibition against discrimination "because of ... sex" extends to homosexual and transgender individuals. Bostock v. Clayton Cty ., ––– U.S. ––––, 140 S. Ct. 1731, 207 L.Ed.2d 218 (2020). Applying Bostock ’s reasoning to the analogous language in Title IX prohibiting harassment "on the basis of sex," we first conclude sufficient facts support a claim under Title IX.
The school district also challenges the district court's sole reliance on the violation of state law to satisfy "deliberate indifference," an essential element of both the Title IX and § 1983 claims. Although the state law violation is a factor in determining deliberate indifference, it does not constitute per se deliberate indifference under federal law. We therefore reverse the judgment in Bryan's favor on both claims and remand for further findings on the Title IX claim.
In the fall of 2011, Nolan and Ethan were sixth-graders at Greenspun Junior High, where they played the trombone in band class. Fellow trombone player C., along with his friend D., bullied Nolan by calling him homophobic names and touching his shoulder-length blond hair. In mid-September, C., who sat next to Nolan in band, called Nolan a tattletale and stabbed him in the groin with a pencil, commenting he wanted to know if Nolan was a boy or a girl. Nolan, who had reported C.’s harassment to the dean a few days earlier, believed C. was retaliating for that report.
Nolan and Ethan were friends, and Nolan told Ethan about the incident. Ethan's mother, Mary, overheard the boys talking and thereafter obtained the details from Ethan. On September 15, Mary emailed the band teacher and school counselor to report the bullying and the pencil-stabbing incident, but she did not mention the homophobic slurs. Mary attempted to include Principal Warren McKay on the email but misspelled his email address. The band teacher spoke with C. and D. and rearranged the trombone section, and the school counselor met with Nolan, who stated he was fine.
Nolan's mother, Aimee, learned about the stabbing incident for the first time on September 21. Aimee spoke with both the dean and the vice principal on September 22. She told the vice principal that C. had assaulted Nolan by stabbing him in the genitals while asking "if [Nolan] was a little girl." The school counselor again met with Nolan and walked Nolan to the dean's office, encouraging him to file a report of the stabbing and other bullying. Nolan filed a report stating that C. was messing with his hair, blowing air in his face, kicking his instrument, and calling him and other students names like "duckbill Dave." Nolan did not report the stabbing or the homophobic slurs. The dean met with C. and his mother in late September to discuss the school's hands-off policy for students and to prohibit C. from name-calling.
C. and D. nevertheless continued to harass Nolan by calling him names and bumping into him as he entered or exited the band room. C. and D. also began targeting Ethan and Nolan jointly, calling them "faggots" and teasing them about being boyfriends and engaging in sexual conduct with each other. Nolan and Ethan later testified they did not identify as homosexual, nor did they believe others at Greenspun thought they were homosexual, despite the homophobic slurs.
On October 18, C. scratched Ethan on the leg with a trombone. Ethan told Mary of the incident and that C. had continued to say that Nolan and Ethan were boyfriends and faggots. Mary recalled Ethan reporting, for example, that C. had asked Ethan whether he was learning about shoving staffs "up people's asses so that you can jerk each other off" and "putting penises in somebody's ass."
Mary emailed Principal McKay and the school counselor again on October 19—although she again misspelled Principal McKay's email address. Mary reported the trombone-scratching incident and referenced the September 15 email, reiterating that C. and D. continued to bully Ethan and Nolan. As in her prior email, she omitted mention of the homophobic conduct. The school counselor forwarded the email to the dean. Mary also met with the dean on October 19, telling her of the full extent of the harassment, including the homophobic slurs.
C. and D. continued to call Ethan and Nolan names. Nolan began to withdraw and show signs of stress. Ethan began contemplating suicide. Nolan and Ethan began avoiding class and eventually stopped going to school. The boys withdrew from Greenspun in early 2012 and thereafter enrolled in private schools. Mary sent a third email on February 7 to school administrators and the school district, detailing the homophobic slurs and the sexual nature of the harassment. Principal McKay suspended C. and D. at the direction of district supervisors.
Mary and Aimee filed the underlying lawsuit, which proceeded to trial against Clark County School District (CCSD) on a Title IX claim under 20 U.S.C. § 1681 and a civil rights claim under 42 U.S.C. § 1983.1 The district court presided over a five-day bench trial during November 2016. The CCSD employees generally testified that they believed at least one of Greenspun's administrators had investigated both the September and October reports, and that they did not know of the homophobic nature of the bullying until after Nolan and Ethan withdrew from school. But the CCSD employees gave varied testimony regarding the administrators’ exact response to the September and October reports, and no administrator could recall conducting an investigation complying with NRS 388.1351 (2011),2 the statute governing bullying complaints.
The district court found CCSD liable for student-on-student harassment under both Title IX and § 1983. In its two written orders, the district court focused on the school's failure to conduct any investigation, let alone one as required by Nevada law under NRS 388.1351, when the bullying occurred. The court awarded physical and emotional distress damages of $600,000 apiece to Nolan and Ethan, $50,000 apiece for the cost of alternative schooling over five years, and attorney fees and costs.
CCSD now appeals.
CCSD contests the district court's decision as to nearly every element of the Title IX and § 1983 claims and further contests the awards for damages and attorney fees. While the students’ harassment is disturbing and the administrators’ response deficient under NRS 388.1351, we are constrained to follow federal law governing Title IX and § 1983 claims for student-on-student harassment, which allows for the recovery of damages only in very narrow circumstances. We first address the Title IX claim and remand for findings regarding deliberate indifference under the applicable law. We then address the § 1983 claim and reverse the decision as to that claim.
Title IX is a federal civil rights law enacted in 1972 that provides the following: "No person in the United States 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) (2012) (Title IX).
The first requirement for imposing Title IX liability is that the harassment be "on the basis of sex." Id. For liability to attach to a school district in cases of student-on-student harassment, the plaintiff must also show that the school exercised substantial control over the harasser and the situation, the harassment was so severe as to deprive the plaintiff of educational opportunities, a school official with authority to correct the situation had actual knowledge of the harassment, and the school was deliberately indifferent to the known harassment. Reese v. Jefferson Sch. Dist No. 14J, 208 F.3d 736, 739 (9th Cir. 2000) (). We address these elements in turn.
The harassment fell within the purview of Title IX
The district court based Title IX liability upon perceived sexual orientation harassment, finding the bullying was sexual in nature due to the homophobic name calling.3 On appeal, CCSD contends that the bullying was "sexually tinged" but was not sexual harassment under Title IX because Nolan and Ethan...
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