Pahssen ex rel. Doe v. Merrill Cmty. Sch. Dist.

• Decision Date: 04 April 2012
• Docket Number: No. 10–1028.,10–1028.
• Citation: 668 F.3d 356,277 Ed. Law Rep. 21
• Parties: Carole PAHSSEN, Next Friend of Jane Doe, a minor, Plaintiff–Appellant, v. MERRILL COMMUNITY SCHOOL DISTRICT; Breckenridge Community Schools; Jeff Jennette; Sheila Pilmore; Sally MacLennan, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

277 Ed. Law Rep. 21

668 F.3d 356

Carole PAHSSEN, Next Friend of Jane Doe, a minor, Plaintiff–Appellant,

v.MERRILL COMMUNITY SCHOOL DISTRICT; Breckenridge Community Schools; Jeff Jennette; Sheila Pilmore; Sally MacLennan, Defendants–Appellees.

No. 10–1028.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 13, 2011.Decided and Filed: Feb. 3, 2012.Rehearing and Rehearing En Banc Denied April 4, 2012.

ARGUED: Victor Joseph Mastromarco, Jr., The Mastromarco Firm, Saginaw, Michigan, for Appellant. Roy H. Henley, Thrun Law Firm, P.C., East Lansing, Michigan, Gregory W. Mair, O'Neill, Wallace & Doyle, Saginaw, Michigan, for Appellees. Lisa J. Stark, United States Department of Justice, Washington, D.C., for Amicus Curiae. ON BRIEF: Manda L. Westervelt, The Mastromarco Firm, Saginaw, Michigan, for Appellant. Roy H. Henley, Thrun Law Firm, P.C., East Lansing, Michigan, Gregory W. Mair, O'Neill, Wallace & Doyle, Saginaw, Michigan, John A. Chasnis, Chasnis, Dogger & Grierson, Saginaw, Michigan, for Appellees. Lisa J. Stark, Mark L. Gross, United States Department of Justice, Washington, D.C., for Amicus Curiae.Before: ROGERS, COOK, and McKEAGUE, Circuit Judges.

OPINION

COOK, Circuit Judge.

Plaintiff–Appellant Carole Pahssen (“Appellant”), as next friend and mother of Jane Doe, sued defendants Breckenridge Community Schools (“Breckenridge”), Breckenridge Superintendent Jeff Jennette (“Superintendent Jennette”), Breckenridge Middle School Principal Sheila Pilmore (“Principal Pilmore”) (collectively “the Breckenridge Defendants”), Merrill Community School District (“Merrill”), and Sally MacLennan for relief on claims stemming from sexual harassment and assault that Jane Doe allegedly experienced while attending Merrill. In her amended complaint, Appellant alleged violations of Title IX of the Education Amendments of 1972 (“Title IX”) against Merrill and Breckenridge, violations of 42 U.S.C. § 1983 against Merrill and the Breckenridge Defendants, and violations of 42 U.S.C. § 1985 against MacLennan and the Breckenridge Defendants. The district court granted summary judgment to the defendants on all claims. We affirm.

I.

During the fall of 2007, Jane Doe and John Doe ¹ were students in Merrill Middle School and Merrill High School, respectively. The two schools' classrooms occupy different wings of the same building in Saginaw County, Michigan. At the beginning of the 2007–2008 school year, John was a ninth grade, Individualized Education Program (“IEP”), special education student. At this time, Jane was in eighth grade and believed that she was John's girlfriend.

Appellant alleges that John sexually harassed Jane on three separate occasions during the first few weeks of the semester. In the first incident, John shoved Jane into a locker. In her deposition, Jane testified that she believed John did this because he saw her talking to another boy and “got jealous.” Megan McMahan, Jane's science teacher and basketball coach, witnessed this incident. In the second incident, John allegedly told Jane that “if she wanted to hang out with him anymore, she would have to” perform oral sex on him.

Last, Appellant asserts that John made “obscene sexual gestures” toward Jane during a school basketball game in which Jane was playing, in plain view of a crowd that included students, teachers, and school administrators. After the game, Jane's stepfather Russ Pahssen approached John to warn him to stay away from Jane; John responded by assuming an aggressive posture and using profane language toward Mr. Pahssen. Parents and school staff then stepped in and defused the situation.

After the basketball game, Mr. Pahssen wrote a letter to Merrill administrators describing the game's events and informing them of John's request for oral sex. The letter also mentioned that when Mr. Pahssen asked Jane about John's gestures during the basketball game, “she just replied that he was a teenage boy and that [Mr. Pahssen] wouldn't understand.” Mr. Pahssen's letter concluded with a warning: “I believe [John] is a volcano waiting to erupt and when he does someone will be hurt, student or staff.”

In response, Merrill convened an IEP team on September 27, 2007. Merrill Middle School Principal Christine Garno (“Principal Garno”) and McMahan, among others, attended the meeting. The IEP team created a plan requiring John to be under constant adult supervision while he was at school for the next 30 days. The plan specified that the team would reconvene to review the plan and discuss possible adjustments “[a]s needed.” Appellant does not allege that John committed any acts of sexual harassment during this 30–day period or the seven weeks after the supervision period expired.

On December 20, 2007, shortly after school had ended for the day, John sexually assaulted Jane on Merrill school grounds. On January 16, 2008, Merrill Superintendent John Searles, citing the assault, recommended that Merrill expel John. The Merrill School Board approved the expulsion at a meeting on January 30, 2008.

While these were the only incidents cited by Appellant that involve Jane, John had a lengthy history of disciplinary problems, including several allegations of sexual harassment and assault, prior to his contact with Jane. John attended Merrill Middle School during the first few months of the 2004–2005 school year, Breckenridge Middle School from February 2005 until the end of the 2005–2006 school year, and Merrill Middle School again starting in August 2006. During his time at Merrill in 2004–2005, John was in trouble so often that then-Merrill Middle School Principal Michael Thayer said “there were few school days where [John] did not receive some type of disciplinary measures.” Appellant does not, however, allege that John committed any acts of sexual harassment during this time.

John's behavior problems continued after he transferred to Breckenridge in February 2005. Principal Pilmore wrote to the Breckenridge Police Department on May 5, 2006, describing a number of infractions involving sexual harassment by John. When John left Breckenridge in May 2006, he was on suspension “pending board action.” A letter from Breckenridge Schools Superintendent Jeff Jennette to MacLennan, dated May 2, 2006, reads:

This is a letter to inform you that Breckenridge Schools will not require your son, [John], to attend Breckenridge Schools in the future. You are free to entertain other educational opportunities for [John], and I wish you and him the best of luck in finding a program that is right for him. The administration has been notified of this, and upon receiving that “records request” from his new district, his records will be sent to his new district with only the information that the new district requires.

Citing this letter and portions of Superintendent Jennette's deposition testimony, Appellant asserts that Breckenridge agreed not to expel John and to “purge” disciplinary records from his file in exchange for MacLennan's withdrawing him from the district.

In August 2006, John re-enrolled at Merrill. In October 2006, after an incident where John attacked a group of students who were calling him “rapist,” then-Middle School Principal Gary Smith wrote MacLennan to inform her that John was suspended for the remainder of the semester. The letter stated:

[B]efore [John] can return to Merrill Community Schools as a student, there must be in writing documents that establish ... progress has been made ... in addressing his oppositional behaviors with adults and peers, his lack of respecting the rights of other students and staff members, anger management, and self-control issues.

John did not return to Merrill Middle School for the remainder of the 2006–2007 school year. Appellant also notes that police arrested John twice for acts of sexual assault while he was enrolled at Merrill and Breckenridge. The record does not suggest, however, that either arrest led to a conviction or juvenile adjudication. Merrill allowed John to re-enroll at Merrill High School as a ninth grader at the beginning of the 2007–2008 school year. It was during this period of his re-enrollment that the incidents involving Jane Doe occurred.

On April 10, 2008, Plaintiff–Appellant filed a complaint against Merrill and various Merrill administrators and officials, alleging violations of Title IX and 42 U.S.C. § 1983. The Merrill defendants moved the district court to dismiss the complaint or, in the alternative, grant summary judgment. The district court granted the motion in part and denied it in part, dismissing all claims against the individual defendants and the § 1983 claims against all parties, but denying the motion with respect to the Title IX claim against Merrill itself. The court then granted Appellant leave to file an amended complaint joining the Breckenridge Defendants and MacLennan. Appellant's amended complaint alleged violations of Title IX against Merrill and Breckenridge, § 1983 against Merrill and the Breckenridge Defendants, and § 1985 against the Breckenridge Defendants and MacLennan. Merrill then renewed its motion for summary judgment, and MacLennan and the Breckenridge Defendants filed motions to dismiss or, in the alternative, for summary judgment. The district court granted summary judgment in favor of the defendants on all counts. This appeal followed.

II.

In her opening brief, Appellant argues that the district court erred in denying her Title IX claim against Merrill, her Title IX claim against Breckenridge, and her § 1985 claim against MacLennan and the Breckenridge Defendants. With respect to her § 1983 claims, Appellant's opening brief simply states that the district court erred in dismissing her “ § 1983 claim,” without referring to any specific parties or counts of her amended complaint. On July 23, 2010, the United States, through the Department of Justice Civil Rights Division (hereinafter, “the government”), filed an amicus curiae brief in support of Appel...