Montgomery v. Independent School Dist. No. 709

• Decision Date: 23 August 2000
• Docket Number: No. 99-393 JRT/RLE.,99-393 JRT/RLE.
• Citation: 109 F.Supp.2d 1081
• Parties: Jesse MONTGOMERY, Plaintiff, v. INDEPENDENT SCHOOL DISTRICT NO. 709, Defendant.
• Court: U.S. District Court — District of Minnesota

109 F.Supp.2d 1081

Jesse MONTGOMERY, Plaintiff, v. INDEPENDENT SCHOOL DISTRICT NO. 709, Defendant.

No. 99-393 JRT/RLE.

United States District Court, D. Minnesota.

August 23, 2000.

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Kyle H. Torvinen, Hendricks, Knudson, Gee, Hayden, Torvinen & Weiby, Superior, WI, for plaintiff.

Elizabeth A. Storaasli, Boyd Agnew Dryer & Storaasli, Duluth, MN, for defendant.

MEMORANDUM OPINION AND ORDER

TUNHEIM, District Judge.

Plaintiff Jesse Montgomery brings this action against Independent School District Number 709 (the "School District") based on its failure to prevent harassment by other students that he experienced during approximately eleven years of education in defendant's schools. Plaintiff asserts that the other students harassed him both because of his gender and his perceived sexual orientation. He brings claims under the Minnesota Human Rights Act ("MHRA"), Minn.Stat. §§ 363.01-363.20, the Equal Protection and Due Process Clauses of the United States and Minnesota Constitutions, and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 ("Title IX").¹ This matter is before the Court on defendant's motion for judgment on the pleadings against plaintiff's claims under the United States Constitution and Title IX, and a portion of his claim under the MHRA. This matter is also before the Court on defendant's motion for summary judgment against all claims and on plaintiff's motion for summary judgment in his favor on the issue of liability in connection with his MHRA, Title IX, due process and equal protection claims.²

BACKGROUND

Plaintiff attended three of defendant's schools from kindergarten through the tenth grade, including Lakewood Elementary School, Ordean Middle School, and East High School. Plaintiff alleges, and defendant does not dispute, that while he was a student in defendant's schools he experienced frequent and continual teasing by other students beginning in kindergarten and recurring on an almost daily basis until the end of the tenth grade, when he transferred to another school district. While some of these taunts were more general in nature, many of them appear to have been directed at plaintiff because of his perceived sexual orientation, including, "faggott," "fag," "gay," "Jessica," "girl," "princess," "fairy," "homo," "freak," "lesbian," "femme boy," "gay boy," "bitch," "queer," "pansy," and "queen." A review of plaintiff's allegations, assuming them to be true for purposes of these motions, reveals that the verbal abuse to which his peers subjected him was severe and unrelenting throughout his entire tenure in defendant's school system.

According to plaintiff, the students' misconduct escalated to the point of physical violence beginning in the sixth grade, when several students punched him, kicked him, and knocked him down on the playground.³ Another student later superglued him to his seat. Plaintiff claims that as he entered middle school and progressed on to high school, the harassment became noticeably worse. While the verbal taunts continued unabated, the physical threats and assaults intensified. Students threatened to beat him up on several occasions. A group of students pushed him down in the hallway in front of his family when they were at the school to attend a choir concert. Another student unzipped his backpack, threw his books to the floor and smashed his calculator. Plaintiff also states that during a gym exercise one of the students charged him and sent him flying several feet through the air, and that during hockey drills the offending students deliberately tripped him or knocked him down on several occasions, causing bruises. Plaintiff further alleges that students frequently kicked or tripped him on the school bus, and that while he was riding the bus or in art class students would throw objects at him such as crayons, paper, popcorn, water, chunks of clay, paint brushes, pencils, pen caps, trash, and other small things.

In addition to these incidents, plaintiff claims that on some occasions the physical threats and assaults he experienced were of a more sexual nature.⁴ He specifically contends that a student in his middle school choir class grabbed his legs, inner thighs, chest and crotch. He states that the same student grabbed his buttocks on at least five or six occasions. Later another student approached him and asked to see him naked after gym class. Plaintiff states that he experienced similar incidents when he was in high school. According to plaintiff, students in his ninth and tenth grade choir classes sometimes put their arms around him or grabbed his inner thighs and buttocks while calling him names targeted at his perceived sexual orientation. Plaintiff states that one of the students grabbed his own genitals while squeezing plaintiff's buttocks, and on other occasions would stand behind plaintiff and grind his penis into plaintiff's backside. The same student once threw him to the ground and pretended to rape him anally, and on another occasion sat on plaintiff's lap and bounced while pretending to have intercourse with him. Other students watched and laughed during these incidents.

Plaintiff alleges that the harassment he experienced deprived him of the ability to access significant portions of the educational environment. During his tenure in defendant's schools, plaintiff generally achieved average to above average grades. Nonetheless, plaintiff states that he stayed home from school on approximately five or six occasions while he was in middle school in order to avoid the harassment. He further states that he did not participate or try to participate in intramural sports because his harassers were participants, that he avoided going to the school cafeteria unless absolutely necessary, and that he avoided using the school bathroom except in emergency situations. When plaintiff was in high school he stopped using the school bus in order to circumvent the continuous harassment he experienced there, requiring his parents and other family members to drive him to school.⁵

Plaintiff states that he reported the students' misconduct to a variety of School District officials, including teachers, bus drivers, principals, assistant principals, playground and cafeteria monitors, locker room attendants, and school counselors. Plaintiff further states that on several occasions when he was in middle school, he and his parents reported the incidents of misconduct to the office of the School District's superintendent.

The officials to whom plaintiff reported the misconduct responded with a variety of measures. Defendant gave plaintiff access to school counselors, and he made appointments with them on a regular basis. Moreover, when plaintiff was in middle school defendant required him to attend a number of group sessions with other boys to discuss strategies for responding to harassment. According to plaintiff, defendant removed him from some of his favorite classes and required him to attend these sessions involuntarily.

Defendant also implemented several disciplinary measures against the offending students, although it appears that School District officials applied such discipline inconsistently. Plaintiff's teachers responded to many of his complaints by verbally reprimanding students or sending them to the principal's office. When students harassed plaintiff on the school bus, the driver sometimes stopped the bus and reprimanded the students. Defendant asserts that it assigned special seats to students on the bus at least temporarily in an attempt to circumvent the misconduct, although plaintiff claims that these seating assignments were not adequately enforced. On some occasions the cafeteria monitor responded to plaintiff's lunchtime complaints by requiring the offending students to stand in a designated area. On two occasions plaintiff's middle school counselor and principal required the offending students to meet with plaintiff and apologize to him. Plaintiff asserts that these sessions were unhelpful and ultimately resulted in a significant amount of retaliatory harassment.

In connection with the incidents of sexual touching he experienced, plaintiff alleges that he made multiple complaints to his choir teacher about the student who repeatedly grabbed his thigh, buttocks, and crotch and pretended to have intercourse with him. The teacher responded to plaintiff's complaints by verbally reprimanding the student, sending him out into the hallway, or sending him to the principal's office. There is no evidence in the record as to whether or how School District officials ultimately disciplined this student once he arrived in the principal's office.

With the exception of one occasion, defendant has not shown that any of the students whom teachers sent to the principal's office in response to plaintiff's reports ever received discipline stronger than a verbal reprimand. The disciplinary measures that defendant took on that occasion were precipitated by a formal complaint that plaintiff's mother filed with the School District in March 1995. At that time plaintiff had been experiencing almost daily harassment on the school bus and in his art class by a particular group of students who called him names, kicked him, or threw objects at him. The principal eventually referred plaintiff's complaint to Terri Kronzer ("Kronzer") with the School District's Human Resources Department. Kronzer conducted an investigation and determined that plaintiff had been sexually harassed. Based on her recommendations, defendant suspended one of the harassers for five days and another for one day. Other harassers received lectures on the School District's sexual harassment policy. Defendant also revoked the bus privileges of two of the students, who were brothers, and transferred the most egregious offender out of plaintiff's art class. Defendant further instructed the hall monitor to "keep an eye" on plaintiff.

Within one week after defendant...