Doe v. Sch. Dist. No. 1

• Decision Date: 17 August 2020
• Docket Number: No. 19-1293,19-1293
• Parties: Jane DOE, Plaintiff - Appellant, v. SCHOOL DISTRICT NUMBER 1, DENVER, COLORADO, a/k/a Denver Public Schools ("DPS"); Tom Boasberg, individually and in his official capacity as superintendent of DPS; Jann Peterson, individually and in her official capacity as an assistant principal with DPS; Jeanette Sculley, individually and in her official capacity as a dean with DPS; Eric Sinclair, individually and in his official capacity as a dean with DPS; Anita Curtiss, individually and in her official capacity as a school psychologist with DPS, Defendants - Appellees, Andy Mendelsberg, individually and in his official capacity as a principal with DPS, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

970 F.3d 1300

Jane DOE, Plaintiff - Appellant,

v.SCHOOL DISTRICT NUMBER 1, DENVER, COLORADO, a/k/a Denver Public Schools ("DPS"); Tom Boasberg, individually and in his official capacity as superintendent of DPS; Jann Peterson, individually and in her official capacity as an assistant principal with DPS; Jeanette Sculley, individually and in her official capacity as a dean with DPS; Eric Sinclair, individually and in his official capacity as a dean with DPS; Anita Curtiss, individually and in her official capacity as a school psychologist with DPS, Defendants - Appellees,Andy Mendelsberg, individually and in his official capacity as a principal with DPS, Defendant.

No. 19-1293

United States Court of Appeals, Tenth Circuit.

FILED August 17, 2020

Igor Raykin, Kishinevsky & Raykin, Aurora, Colorado (Michael Nolt, Kishinevsky & Raykin, Aurora, Colorado on the briefs) for Plaintiff-Appellant.

Holly Ortiz, Semple, Farrington, Everall & Case, P.C., Denver, Colorado (M. Brent Case and Brian S. Condon, Farrington, Everall & Case, P.C., Denver, Colorado on the briefs) for Defendants-Appellees.

Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Jane Doe appeals the dismissal of her Title IX claim against School District No. 1, Denver, Colorado (the District or DPS) for failure to state a claim. According to the complaint, a group of students began sexually harassing Ms. Doe after she was sexually assaulted by another student in March of her freshman year at East High School (EHS). She alleges that despite her numerous reports of the harassment to school personnel, as well as reports from teachers and a counselor, the school administration never investigated her complaints and little if anything was done to prevent the harassment from continuing. She stopped attending regularly scheduled classes about 14 months after the assault, and she transferred to a different school after completing her sophomore year. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.¹

I. THE COMPLAINT

Because this appeal is taken from an order granting the District's motion to dismiss, we "accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to [Ms. Doe]." S.E.C. v. Shields , 744 F.3d 633, 640 (10th Cir. 2014) (internal quotation marks omitted). We ignore factual assertions by the District unless they are based on allegations in the complaint or on other sources proper to consider on a motion to dismiss. See Gee v. Pacheco , 627 F.3d 1178, 1186 (10th Cir. 2010) (on motion to dismiss complaint, court may consider complaint and "(1) documents that the complaint incorporates by reference, (2) documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents’ authenticity, and (3) matters of which a court may take judicial notice" (internal citations and quotation marks omitted)). The complaint alleges the following events:

Jane Doe was a 14-year-old student in her first year at EHS when she was sexually assaulted by a male classmate, referred to as "Student 1," at his parents’ home on a Saturday evening. The following Monday, March 14, 2016, Ms. Doe reported the assault to Jeanette Scully, an EHS dean with disciplinary authority. Dean Scully sent Ms. Doe to see a school psychologist, Anita Curtiss. Ms. Doe's parents were contacted and came to EHS to meet with Dean Scully and Ms. Curtiss. They were told "that the charges would be difficult to prove and doing so would be difficult on the family," Aplt. App. at 17, and were discouraged from filing charges. Although they declined to press charges at the time, citing their concern for Student 1, they did request that the assault be formally documented in school files. After Ms. Doe's report, the school warned her brother (also a student at EHS) not to retaliate against Student 1. Neither Ms. Curtiss nor Dean Scully reported the assault to the Denver Police Department school-resource officer assigned to EHS.

The next day Ms. Doe told Dean Scully that she was facing "backlash from her peers, who[ ] had heard about the assault," and Dean Scully advised her to forget about the assault and not tell anyone. Id. Ms. Doe met with Ms. Curtiss again on March 17 because of "retaliation at school based on her rape report." Id. at 18. She was experiencing "fallout of her friendships," id. , "anxiety about being at school," "fears for the future," "nightmares," and "lack of sleep," id. at 19. Ms. Curtiss reviewed limitations (not described in the complaint) on interactions with Student 1. (The District's brief on appeal asserts that EHS imposed a "no-contact" order between Ms. Doe and Student 1 immediately after the assault was reported, but the complaint does not allege that and the District provides no citation to the record supporting the assertion or any explanation of why we can consider the assertion.) Throughout the week, Ms. Curtiss "counseled" Ms. Doe, telling her that "some things are just more traumatizing for others," that she should "find new friends," and that she would be disciplined for harassment if she contacted Student 1. Id.

The next week, on March 23, one of Ms. Doe's friends told Ms. Curtiss that Ms. Doe had started to cut herself. Ms. Curtiss asked Ms. Doe to complete a safety-plan form and assured her that they would have weekly check-ins about her safety, though Ms. Doe alleges that these weekly check-ins never occurred.

On April 6, Ms. Doe met again with Ms. Curtiss and told her that she was still experiencing conflicts with her peers. Ms. Curtiss gave her advice about how to manage the conflicts. Also on April 6, one of Ms. Doe's teachers emailed Ms. Curtiss to say that Ms. Doe "had a rough week with the gossip around her." Id. at 20. Two days later, Ms. Curtiss emailed Dean Scully about Ms. Doe's ongoing problems with Student 1 and to tell her that Ms. Doe was having problems with harassment by Student 1's friends, which included the friends telling Ms. Doe that "[w]e took a vote and we all agree you'll lose your virginity first." Id. Ms. Curtiss asked Dean Scully to "meet with Student 1 to reiterate that this issue is between Ms. Doe and himself," and that "his friends defending him cannot ... verbally harass Ms. Doe." Id. (brackets omitted). Dean Scully indicated that she would talk with Student 1. No investigation was conducted or disciplinary action taken by the school against Student 1 or the harassers during the school year ending in June, although the complaint does not identify any additional reports to school officials by Ms. Doe before school ended. Ms. Doe does allege one incident of harassment during the summer, when one of Student 1's close friends (Student 3) contacted her over Facetime and asked if she wanted to "sexually experiment with him." Id. at 23.

When school was back in session, "there were additional reports [in early September] that Ms. Doe was being bullied as a result of the rape," and "reports [in late November] indicating that Ms. Doe had ongoing conflicts with other students." Id. at 21. And in December she told Ms. Curtiss that "things at EHS had only gotten worse for her, and that she was considering switching schools." Id. at 22. Ms. Curtiss told her that "if she switched schools, then she would only be running away from her problems." Id.

On January 19, 2017, Ms. Doe reported through an anonymous system called "Safe2Tell" that she was being bullied. Every such report was supposed to be copied to the EHS principal. The report, which is included in the record on appeal, stated that "[c]aller received information about sophomore [Student 3] that has nude photographs of female students on a phone app.... [Student 3] has used the photos to blackmail these students." Id. at 127. (The report did not include any information about how Student 3 got the nude photographs). In response to the report, Eric Sinclair, another dean with disciplinary authority at EHS, and Janet Peterson, an assistant principal, met with Ms. Doe on January 20. She told them her experience from the time of the sexual assault. She reported that she had been subjected to "constant bullying and harassment ... from the boys in the sophomore class at EHS." Id. at 22. She said there was a group of students who would "make drawings of [her] telling her to kill herself, call her names, start rumors about her and make rape jokes about Student 1 to [her]." Id. (capitalization and original brackets omitted). One of the students would "constantly stare at Ms. Doe [and] smirk at her," id. , and Student 3 "shoved her down at lunch" off campus and "called her a dirty slut," id. at 23 (internal quotation marks omitted). Ms. Doe identified a group of five boys who "pulled on her backpack all the time and would draw pictures of her killing herself." Id . Dean Sinclair and Ms. Peterson again called Ms. Doe's parents, who came to campus to discuss their concerns about bullying. No disciplinary action was taken against any of the boys and the harassment continued.

A week later Ms. Doe met with Dean Sinclair and Elisa Spratt, a school psychologist, about "safety concerns." Id. at 24. The Dean said that there was no "hard evidence" of any of the bullying Ms. Doe had alleged. Id. (internal quotation marks omitted). In response, Ms. Doe gave him "copies of numerous pictures and social media exchanges," and the names and phone numbers of the students who were harassing her. Id. Dean Sinclair "briefly glanced" at what Ms. Doe gave him before filing it away. Id. There was no investigation of the harassment or disciplinary action against the offending students.

The school completed a suicide-risk report on Ms. Doe on January 25. It noted the alleged rape and incorrectly stated that it had been reported to the police. It also documented that "Ms. Doe felt everyone got mad at her for reporting Student 1," that "she wasn't sleeping well and thought about...