Doe v. Metro. Gov't of Nashville & Davidson Cnty.

• Decision Date: 19 May 2022
• Docket Number: s. 20-6225/6228
• Citation: 35 F.4th 459
• Parties: John DOE and Jane Doe #1, ON BEHALF OF their minor child, Jane DOE #2 (20-6225); Sally Doe, on behalf of her minor child, Sally Doe #2 (20-6228), Plaintiffs-Appellants, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, dba Metropolitan Nashville Public Schools, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

35 F.4th 459

John DOE and Jane Doe #1, ON BEHALF OF their minor child, Jane DOE #2 (20-6225); Sally Doe, on behalf of her minor child, Sally Doe #2 (20-6228), Plaintiffs-Appellants,

v.METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, dba Metropolitan Nashville Public Schools, Defendant-Appellee.

Nos. 20-6225/6228

United States Court of Appeals, Sixth Circuit.

Argued: October 27, 2021

Decided and Filed: May 19, 2022

ARGUED: Mary Parker, PARKER & CROFFORD, Brentwood, Tennessee, for Appellants. J. Brooks Fox, METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Nashville, Tennessee, for Appellee. ON BRIEF: Mary Parker, Stephen Crofford, PARKER & CROFFORD, Brentwood, Tennessee, for Appellants. Melissa Roberge, METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Nashville, Tennessee, for Appellee.

Before: GUY, MOORE, and GIBBONS, Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which MOORE, J., joined. GUY, J. (pp. 468–74), delivered a separate dissenting opinion.

JULIA SMITH GIBBONS, Circuit Judge.

Jane Doe and Sally Doe,¹ two female students at Metropolitan Nashville Public Schools ("MNPS"), were videoed by other students engaging in sexual activity with male students at school. Through their parents, they sued MNPS alleging violations of Title IX and constitutional violations under 42 U.S.C. § 1983. The district court granted summary judgment in favor of MNPS on the students’ claims. We vacate in part, reverse in part, and remand.

I.

In this consolidated appeal, two students from different high schools allege similar treatment by MNPS. We begin with Jane Doe.

Jane Doe was a freshman at Maplewood High School. On September 21, 2016, four upperclassmen male students brought unwelcome sexual activity to Jane Doe and another female student in a stairwell at Maplewood. Unbeknownst to Jane Doe, the incident was recorded on video and circulated. Jane Doe later became aware of the video and that people were calling her "slut" and "whore." DE 92-8, Affidavit, Page ID 3410. Jane Doe's brother also found out about the video and informed their parents. Jane Doe's parents reported the video to Assistant Principal Marvin Olige, explaining the video was made without Jane Doe's knowledge and was being circulated at the school. Olige called in two School Resource Officers ("SROs") and questioned Jane Doe on whether the conduct was forcible rape. Jane Doe's parents asked whether it was safe for Jane Doe to return to class, and when school officials confirmed that it was, Jane Doe returned to class. However, she was afraid to remain at Maplewood and enrolled in a new school the next day.

Sally Doe was a freshman at Hunters Lane High School. On February 21, 2017, Sally Doe was led to the bathroom by a male student and pressured into performing oral sex. The male student videoed the incident, without Sally Doe's knowledge. School administrators learned the students went into the bathroom together, so Assistant Principal Melanie McDonald questioned Sally Doe about what occurred. Sally Doe provided a written statement that the students only talked. The next day, Sally Doe and her mother met with Assistant Principal Nicole Newman and an SRO where Sally Doe admitted to kissing the male student but not to any further sexual activity.

About a month and a half later, a female student posted the video of Sally Doe in the bathroom on Instagram. Several of Sally Doe's friends saw the video, and a family member sent the video to her mother. Sally Doe's mother and grandmother went to Hunters Lane and met with Newman and an SRO to report the video. Sally Doe's mother told Newman she wanted something done and her daughter protected, but Newman told her it was now a criminal matter and to contact Metro Police.

After the video was circulated, Sally Doe was called names in the hallway and threatened. Sally Doe's mother emailed Newman detailing the harassment and seeking an alternative arrangement for the rest of the school year. Newman helped arrange for Sally Doe to finish the rest of the school year at home. Sally Doe returned to Hunters Lane during the summer. Again, Sally Doe was called names, such as "slut" and "whore." DE 83-3, Dep. Tr., Page ID 2358–59. Sally Doe's mother told McDonald, and McDonald said she would keep an eye out for Sally Doe. Sally Doe also attended Hunters Lane for the 2017–18 school year. That year, a male student touched Sally Doe's buttocks when they were in class taking a picture and posted the photo to social media. This resulted in a fight involving three students, including Sally Doe.

In August 2017, Jane Doe and Sally Doe sued MNPS in federal court, alleging violations of Title IX and constitutional violations under § 1983. MNPS moved for summary judgment against both students. In May 2019, the district court denied MNPS's motion as to Jane Doe, but granted the motion as to Sally Doe only in part. However, on MNPS's motion, the district court certified issues in the summary judgment order for interlocutory appeal.

In December 2019, this court decided Kollaritsch v. Michigan State University , 944 F.3d 613 (6th Cir. 2019). Believing Kollaritsch raised similar issues to those in Jane Doe's and Sally Doe's cases, a motions panel of this court granted MNPS's petition to appeal, vacated the district court's summary judgment order, and remanded the matter back to the district court. See In re: Metro. Gov't Nashville & Davidson Cnty. , 19-0508. On remand, the district court granted MNPS's summary judgment motions with respect to all of Jane Doe and Sally Doe's claims. This appeal followed.

II.

We review de novo the district court's grant of summary judgment. Pearce v. Chrysler Grp. LLC Pension Plan , 893 F.3d 339, 345 (6th Cir. 2018). Summary judgment is appropriate only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed. R. Civ. P. 56(a) ). We view the facts and reasonable factual inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is not proper "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III.

Title IX prohibits discrimination on the basis of sex in any education program receiving federal funding. 20 U.S.C. § 1681(a) ; Chisholm v. St. Mary's City Sch. Dist. Bd. , 947 F.3d 342, 349 (6th Cir. 2020). In Davis v. Monroe County Board of Education , the Supreme Court held that a school could be liable under Title IX for subjecting "students to discrimination where [the school] is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school's disciplinary authority." 526 U.S. 629, 646–47, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). After Davis , this court required plaintiffs alleging violations of Title IX via student-on-student harassment to establish a three-part prima facie case: (1) sexual harassment that "was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school"; (2) the school "had actual knowledge of the sexual harassment"; and (3) the school "was deliberately indifferent to the harassment." Pahssen v. Merrill Cmty. Sch. Dist. , 668 F.3d 356, 362 (6th Cir. 2012) (quoting Soper ex rel. Soper v. Hoben , 195 F.3d 845, 854 (6th Cir. 1999) ); see also Vance v. Spencer Cnty. Pub. Sch. Dist ., 231 F.3d 253, 258–59 (6th Cir. 2000).

In Kollaritsch v. Michigan State University , this court limited certain Title IX claims based on student-on-student sexual harassment. 944 F.3d 613 (6th Cir. 2019). Four female students at Michigan State University were sexually assaulted by male students and reported the assaults to administrative authorities. Id. at 618. They alleged the administration's subsequent response was inadequate. Id. This court held the plaintiffs must show "that the school had actual knowledge of some actionable sexual harassment and that the school's deliberate indifference to it resulted in further actionable harassment of the student-victim." Id. at 620 (emphasis added). Because the students were each only assaulted once, this court concluded the women could not show the school's conduct (or lack thereof) caused them to suffer harassment. Id. at 625. The court observed, "the further harassment must be inflicted against the same victim." Id. at 621–22.

A.

Jane Doe and Sally Doe allege two theories of liability under Title IX: liability for MNPS's conduct before the students were harassed and liability for MNPS's conduct after the students were harassed. These theories have been respectively labelled the students’ "before" and "after" claims. We begin with the students’ "before" claims.

Under their "before" theory, Jane Doe and Sally Doe contend MNPS had a widespread problem in its schools: numerous instances of sexual misconduct and the dissemination of sexual images of minor students without their consent. Jane Doe and Sally Doe allege that MNPS was deliberately indifferent to these widespread problems, causing them to be sexually harassed and videoed by fellow students on school property without their consent. Following Kollaritsch , the district court determined that the students’ "before" claims were precluded. In fact, the district court recognized that no "before" theories of liability under Title IX would be viable if Kollaritsch applies because they rely on notice before an incident involving the plaintiff and Kollaritsch requires two instances of harassment against the same plaintiff-victim.

The district court's reading of Kollaritsch does not take into account the very...