Johnson v. Ne. Sch. Corp.

• Decision Date: 26 August 2020
• Docket Number: No. 19-2870,19-2870
• Citation: 972 F.3d 905
• Parties: Sarah JOHNSON, Plaintiff-Appellant, v. NORTHEAST SCHOOL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

972 F.3d 905

Sarah JOHNSON, Plaintiff-Appellant,

v.NORTHEAST SCHOOL CORPORATION, Defendant-Appellee.

No. 19-2870

United States Court of Appeals, Seventh Circuit.

Submitted May 20, 2020^*

Decided August 26, 2020

Eric A. Frey, Attorney, Eric A. Frey, Terre Haute, IN, for Plaintiff-Appellant.

Matthew L. Hinkle, Attorney, John V. Maurovich, Attorney, Coots, Henke & Wheeler, Carmel, IN, for Defendant-Appellee.

Before Sykes, Chief Judge, and Ripple and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Sarah Johnson sued North Central High School and Northeast School Corporation ("NESC") in 2018, claiming that their inadequate response to her allegations of sexual harassment violated Title IX, 20 U.S.C. § 1681(a). The district court entered summary judgment for North Central¹ and NESC on all claims. Johnson now takes issue with two of the district court's evidentiary determinations and its disposition of her Title IX claim. Because Johnson has waived any arguments regarding the district court's evidentiary rulings and because NESC was not deliberately indifferent to Johnson's claims of sexual harassment, we affirm.

I. BACKGROUND

On November 5, 2015, Johnson—a student at North Central—told her grandmother, Leslie Hawker, that she had been raped in 2014 at an apartment complex by two classmates, Garrett Froschauer and Romeo Risley. Hawker, after hearing Johnson's allegation, went to North Central, informed Principal Monty Kirk about the off-campus rape, and said that she would report this allegation to the police.

This wasn't the first time that Principal Kirk was made aware of a rape allegation against Froschauer. Harley Gilliam, one of Johnson's friends, alleged that Froschauer raped her in her bedroom the year before. Gilliam's mother reported this incident to Principal Kirk just a few months before Hawker reported Johnson's incident. But Gilliam's mother did not allow school officials to interview Gilliam, so the school waited to hear the results of the investigations being conducted by the Department of Child Services ("DCS") and the sheriff's department. Although Principal Kirk did not receive or seek DCS's official report, he remembers someone from DCS informing him that Gilliam's claim was determined to be unsubstantiated. The official DCS report, however, concluded that "[s]exual abuse is recommended to be substantiated" against Froschauer as to Gilliam.

Principal Kirk responded to Gilliam's allegation by issuing a no-contact order between Gilliam and Froschauer, which prevented them from touching or speaking to each other at school. Gilliam withdrew from North Central a month later but did not report that she had been bullied or harassed by Froschauer during this time.

Shortly after Gilliam's withdrawal, Principal Kirk began responding to Hawker's report that Johnson—like Gilliam—had been raped off-campus by Froschauer. The same night Hawker came to Principal Kirk with this allegation, Principal Kirk told Superintendent Mark Baker, and they began consulting with the school's attorneys about how to handle the situation. Also that same night, Hawker and Johnson went to the sheriff's department and reported the rape. The sheriff's department assigned Deputy Carl Melchert to handle the matter.

Hawker spoke with Principal Kirk again the next morning. She informed Kirk that the police were having Johnson interviewed by a trained professional at a child advocacy center, Susie's Place, and she did not want Johnson interviewed by North Central officials. Hawker also wanted Froschauer immediately removed from school. Principal Kirk told her that an investigation needed to occur before any disciplinary decisions were made. He then confirmed with Deputy Melchert that the sheriff's department was aware of Johnson's allegation and that Johnson would be interviewed at Susie's Place.

That same day, Principal Kirk issued a no-contact order between Johnson and Froschauer. This order prevented Johnson and Froschauer from touching or speaking to each other at school and from using electronic communication to talk about each other. The order did not, however, prevent Johnson and Froschauer from sitting near each other in class. Johnson and Froschauer were aware that the order prevented them from talking to one another.

Johnson and Froschauer had morning classes together, so Principal Kirk considered moving Froschauer out of these classes and placing him in homebound schooling. But based on Froschauer's schedule, he could not be moved out of these classes without it affecting his ability to graduate on time. The school's lawyers advised Principal Kirk not to "negatively impact [Froschauer's] track to graduate on time based on unsubstantiated allegations." And Johnson's physician and Hawker had requested that Johnson be placed in homebound schooling. So, a few weeks after Johnson reported her rape to the school, Principal Kirk placed Johnson in homebound schooling so that she could avoid her morning classes with Froschauer. She still went to school in the afternoons.

Meanwhile, Deputy Melchert continued his investigation. Principal Kirk contacted Deputy Melchert over a dozen times seeking details about the investigation. Deputy Melchert told Principal Kirk only that "the complaining student was going to give a forensic interview." After Johnson's interview, the prosecutor decided not to file criminal charges against Froschauer. Principal Kirk noted that, around this time, "all communication stop[ped]" with Deputy Melchert.

A few months later, Principal Kirk learned that the prosecutor decided not to criminally charge Froschauer. He also learned that the sheriff's department would not release details of the investigation to the school. Principal Kirk reached out to Hawker and again asked if the school could interview Johnson for a Title IX investigation; Hawker again refused this request. Principal Kirk also reached out to Froschauer, but he declined to be interviewed.

Around the same time, Johnson and Hawker informed Principal Kirk that Johnson was being harassed at school. Hawker first emailed Principal Kirk in January, informing him that a girl at school "had told ‘others’ that she was going to ‘kick [Johnson's] ass.’ " As a result of this threat, Johnson did not want to go to the cafeteria for lunch. Principal Kirk made sure that Johnson could eat lunch "in the office" or "otherwise sit in the office if she wanted a break from class." He spoke with the girl who made the threat and told her to not have any communication with Johnson that could be perceived as negative.

The next month, Hawker emailed Principal Kirk because one of Johnson's fellow cheerleaders sent an unkind tweet about Johnson. Hawker wanted immediate action taken against the girl; Principal Kirk informed Hawker that he was discussing the issue with the school's attorneys and he would be following their instructions. Principal Kirk met with the girl who sent the tweet and told her to "knock it off."

Later that afternoon, Hawker called Principal Kirk to tell him that Johnson was harassed and chased down the hallway by students—including Froschauer—after she opened a door for them. Johnson's story was slightly different: while she thought other students laughed at her and chased her down the hallway, she did not identify Froschauer as one of those students. Principal Kirk reviewed video of this incident and concluded that Hawker's and Johnson's allegations did not reflect what occurred.

A few weeks later, Hawker and Johnson obtained a protective order against Froschauer that prevented him from being at school with Johnson. So Principal Kirk sent Froschauer home. The judge soon amended the protective order to allow Froschauer back in school, but Froschauer was still prevented from incidentally contacting Johnson. A police officer informed Hawker of this change and told her that if Froschauer "so much as looked at [Johnson]," Hawker could have Froschauer arrested.

Shortly after Froschauer was allowed back in school, Hawker and Johnson complained to Principal Kirk and the sheriff's department that Froschauer intentionally crossed paths with Johnson in the hallway, in violation of the protective order. Deputy David Holmes responded and met with Hawker and Principal Kirk. Principal Kirk allowed Deputy Holmes to review video of the incident. Deputy Holmes concluded that "[Froschauer] passed by [Johnson] in a manner that was more consistent with someone trying to avoid her as opposed to someone attempting to be close to her or otherwise intimidate her." Froschauer was not arrested by Deputy Holmes or disciplined by Principal Kirk.

Johnson and Hawker also alleged that Froschauer harassed them at a North Central basketball game. Hawker alleged that Froschauer sat directly behind them at the game. Johnson remembered Froschauer sitting behind them, but he was a few risers above them. Principal Kirk was at this game and paid "special attention to ensure [Froschauer] did not interact with [Johnson]." Principal Kirk stated that Froschauer did not sit directly behind Johnson, but instead sat "about 4 rows behind [Johnson] and off to the side."

Johnson eventually withdrew from North Central. Hawker filed a complaint with the United States Department of Education Office for Civil Rights ("OCR"). Johnson sued NESC and North Central. She alleged NESC and North Central subjected her to discrimination on the basis of sex in violation of Title IX, 20 U.S.C. § 1681(a). She also claimed they violated state law by failing to have an anti-bullying policy. The defendants moved for summary judgment on all claims and objected to some evidence that Johnson relied on. Johnson cited a declaration from the Executive Director of the nonprofit organization Stop Sexual Assault in Schools, Dr. Esther Warkov, who stated that she had knowledge of North Central's failure to enforce Title IX in this case. Johnson also cited the OCR's report detailing the findings of its Title IX investigation.

The district court excluded the...