Doe v. Oyster River Co-Op. School Dist.

Decision Date25 August 1997
Docket NumberCivil No. 95-402-SD.
Citation992 F.Supp. 467
PartiesJanet DOE b/m/n/f the Mother of Janet Doe; Jane Doe b/m/n/f the Mother of Jane Doe; Jane Doe's Mother, individually v. OYSTER RIVER COOPERATIVE SCHOOL DISTRICT.
CourtU.S. District Court — District of New Hampshire

Elanor H. MacLellan, Sulloway & Hollis, Concord, NH, for plaintiffs.

Bradley F. Kidder, Soule, Leslie, Kidder, Zelin, Sayward & Loughman, Laconia, NH, Donald E. Gardner, Devine, Millimet & Branch, PA, Manchester, NH, for defendant.


DEVINE, Senior District Judge.

This civil rights action raises the question of the nature of the liability of a public school district under federal law when one of its students sexually harasses other students. The question is interesting not only for its relative novelty (most circuit courts, including the First Circuit, have not directly addressed the issue), but also because it tests the doctrine of institutional liability under the Civil Rights Acts, a subject which has recently captured much attention.

The plaintiffs include two former students of the Oyster River Middle School, Jane and Janet, and Jane's Mother. They assert claims under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 (Title IX); 42 U.S.C. § 1983; and state law against the Oyster River Cooperative School District.

Before the court are defendant's motions to dismiss and for summary judgment (documents 15, 16, respectively) and plaintiffs' motion to amend the pleadings (document 19). All three motions have been objected to.


Beginning in April 1993, Jane, Janet,1 and other female seventh-grade students allegedly were sexually harassed on a regular basis by a male fellow student (John) at the Oyster River Middle School in Durham, New Hampshire. At the time, John's alleged behavior included exposing his genitalia, touching the girls on the leg, waist, or breast, and making very obscene comments. He also allegedly drew sexually explicit pictures on notebooks and school property.

On June 17, during the last week of school, Janet and some other girls went to the office of the vice principal, Steven LeClair, to complain about John's continued harassment. See Plaintiffs' Exhibits B, C. The girls felt they needed to come in person because LeClair had previously taken no action after they had sent him an unsigned letter in May complaining about sexual harassment.

As LeClair was otherwise occupied, the girls met with a guidance counselor, Carolyn Puffer. Puffer took notes cataloguing John's behaviors and accepted one of John's drawings from the girls. See Plaintiffs' Exhibits B, C. Puffer gave her notes and the drawings to LeClair, who mistakenly believed that the young women were primarily complaining about the pictures. He also mistakenly thought that the girls were only complaining on behalf of Jane. See LeClair Affidavit at ¶ 6.

At some point that day, Puffer told the girls not to tell their parents about the harassment because it would only lead to lawsuits. See Plaintiffs' Exhibit N at 98-99.

On Saturday, June 19, 1993, LeClair contacted Jane's father and informed him that there was a problem. See Defendant's Exhibit H at 52. That Monday, LeClair contacted Janet's mother, but only stated that Janet had reported the harassment on behalf of someone else and that the situation had been resolved. See Plaintiffs' Exhibit G at 71.

As a result of a meeting with Jane's father, LeClair agreed to present three conditions to John's parents. The conditions were that John would write a letter of admission which would be kept sealed by the administration and would be opened in the upcoming school year only for the purposes of discipline enhancement, that John would apologize in person to Jane, and that he would seek counseling. See Defendant's Exhibit H at 44, 52-54, 66, 67; Plaintiffs' Exhibit F at 77.

LeClair failed to follow up on some of the conditions, although John did apologize in person to Jane. When Jane's father telephoned LeClair in mid-August, LeClair stated that he had not yet received John's letter and that he had not pursued the matter further. See Plaintiffs' Exhibit E at 142. LeClair later left the District's employ to take a position at another school.

Jane's father then sent a letter to Superintendent John Powers in a further effort to resolve the situation prior to the start of the new school year. Powers did not respond or even acknowledge the letter. At one point, the parents were informed by someone from the District that it could not inform the teachers at the school about John's inappropriate behaviors.

During the late summer, Jane's father filed a complaint about John's alleged sexual misconduct with the Durham police. In addition, LeClair received a letter of apology from John and forwarded it to the school district. See Defendant's Exhibit A at 112.

When the new school year began in September 1993, John was in Janet's section of classes; however, because of scheduling, Jane did not have any classes with John. In late September, Janet informed a guidance counselor that she was uncomfortable being in John's class. See Plaintiff's Exhibit N (Vol.III), at 33. At the time, Janet had witnessed John using inappropriate language, although it was not directed at her. See id. at 34. Later that fall, John began to engage in lewd acts reminiscent of his behavior the prior year, including touching himself in class. See id. (Vol.II), at 126. However, Janet did not report it to the school administration because, based on the school's response to her complaints the prior spring, she believed the school would do nothing about it. See id. at 129. She did not know at the time that John had been required to seek counseling, although she was aware of John's verbal apology to Jane. Id. She believed that John had not been disciplined at all. See id.

In October of 1993, Janet's mother informed Janet's teachers about John's alleged sexual misconduct during the previous spring. Janet's teachers had not been informed about the previous complaints. Plaintiffs' Exhibit G at 120. Janet's mother also met many times with the school district's superintendent during the 1993/1994 school year, requesting that John be removed from the school or transferred out of her daughter's section. The school district refused. The superintendent of the school system wrote at one point that such action would be "untimely and inappropriate to the welfare and education of the accused." See Plaintiffs' Exhibit R at 4.

In October 1993 the school district held a training session on sexual harassment for teachers, students, and parents.

At the end of November 1993 Janet's mother filed a complaint with the Department of Education's Office for Civil Rights, which conducted a limited investigation into the matter. OCR determined that LeClair had not properly responded to either the unsigned letter or the verbal reports of harassment he received in the spring of 1993; however, OCR appeared to find that the school district did take appropriate corrective actions from August 1993 forward. Specifically, OCR found that

[t]he former assistant principal took no action on the letter, and he failed to adequately respond to the verbal reports of sexual harassment because he did not conduct a thorough and objective investigation, did not take immediate action to fully remediate any harm that occurred, and did not take steps reasonably calculated to prevent sexual harassment from recurring. However, since August 1993, the District has implemented a variety of corrective measures to address the incidents which the complainants reported and to educate District administrators, staff, faculty, students, and parents about recognizing and preventing sexual harassment. Also, the District has revised its policy concerning sexual harassment and is currently revising its grievance procedure which addresses allegations of sexual harassment.

Defendant's Exhibit M (letter dated Mar. 11, 1994). On February 16, 1994, the school board adopted a new policy on sexual harassment. In March the district signed an agreement for corrective action with OCR.

Although Jane was not in John's classes in the eighth grade, she did regularly encounter him in the halls, at recess, and at lunch. See Plaintiffs' Exhibit X. In October Jane learned from another student that John had referred to her as a "tuna-fish smelling cunt." See Plaintiffs' Exhibit M at 74. The assistant principal, Bette Chamberlain, investigated the matter but could make no final determination because the students gave differing versions of the events. See Defendant's Exhibit L at 142-49. As a result, John was not disciplined. Chamberlain stated in deposition that she observed friction on both sides. Plaintiffs claim that Chamberlain was never properly trained about how to discipline students.

After completing eighth grade, Jane left the school district and attended private schools beginning in the ninth grade. She left because of the totality of events involving John. See Plaintiffs' Exhibit M at 55. Janet remained in the school district.

1. Standard of Review

Defendant has filed a motion to dismiss and a motion for summary judgment. Matters outside the pleadings were relied on by plaintiffs in both of their objections and by the defendant in its summary judgment motion. When matters outside the pleadings are presented and not excluded by the court, a motion to dismiss may be treated as one for summary judgment, provided all parties have had the appropriate opportunity to respond. See Friedman v. Israel Labour Party, 957 F.Supp. 701, 705 (E.D.Pa.1997); Rule 12(b), Fed.R.Civ.P.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323, 327 (1st Cir.1996)....

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