Rost ex rel. K.C. v. Steamboat Springs re-2 School

• Decision Date: 04 January 2008
• Docket Number: No. 06-1518.,06-1518.
• Citation: 511 F.3d 1114
• Parties: Kristine ROST, as parent and next friend of K.C., a minor, Plaintiff-Appellant, v. STEAMBOAT SPRINGS RE-2 SCHOOL DISTRICT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

511 F.3d 1114

Kristine ROST, as parent and next friend of K.C., a minor, Plaintiff-Appellant, v. STEAMBOAT SPRINGS RE-2 SCHOOL DISTRICT, Defendant-Appellee.

No. 06-1518.

United States Court of Appeals, Tenth Circuit.

January 4, 2008.

Jack D. Robinson of Spies, Powers & Robinson, P.C., Denver, CO, for Plaintiff-Appellant.

William Stuller (Kristin C. Edgar, on the brief), of Caplan and Earnest, L.L.C., Boulder, CO, for Defendant-Appellee.

Before KELLY, ANDERSON, and McCONNELL, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Plaintiff-Appellant Kristine Rost, as next friend of her minor daughter, K.C., appeals the district court's grant of summary judgment in favor of Defendant-Appellee Steamboat Springs School District RE-2 ("school district" or "district") on her claims under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, and 42 U.S.C. § 1983 for allegedly violating K.C.'s rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

K.C. was enrolled in Steamboat Springs Middle School as a seventh-grader in August 2000. She received special education and related services pursuant to the Individuals with Disabilities Education Act, due to an early-childhood brain injury.

Beginning in seventh grade and continuing to eighth grade, K.C. was coerced into performing various sexual acts with a number of boys including Steven Thomas, Nick Mangione, Alex Church, and Thomas Barnes ("the boys") who were all named as individual defendants in the complaint. The boys persistently and continuously pestered her for oral sex, calling her "retard" and stupid, threatened to spread rumors to her peers that she frequently engaged in sexual conduct with others, and threatened to distribute naked photographs of her. A police report indicates that the incidents occurred in a variety of private locations and social settings, and a few of the incidents appeared to be "consensual."

Ms. Rost did not know of the sexual harassment until K.C. told school officials on January 16, 2003. However, Ms. Rost urged school officials to talk to K.C. during the spring and fall of 2002 because she suspected that something was wrong with K.C. In the spring of 2002, Ms. Rost first became concerned about K.C. because K.C. did not want to attend school anymore. Her mother repeatedly pleaded with school counselor Margie Briggs-Casson to find out what was bothering K.C. She also spoke with Tim Bishop, principal of the middle school, regarding her concerns about K.C. and what she perceived as Ms. Briggs-Casson's lack of responsiveness. She also told Principal Bishop that the boys had tried to break into her home looking for pain medication. At some point, Ms. Briggs-Casson spoke with K.C., and K.C. told her about the harassment saying that "these boys were bothering me," but at that time, K.C. did not know to use the word assault and did not describe the incidents in more specific terms.

In the fall of 2002, K.C. began her freshman year at the Steamboat Springs High School and the harassment continued. Ms. Rost told David Schmidt, principal of the high school, that K.C. said the boys were bothering her and calling her retarded, she hated school and was afraid to go to school, she was afraid to go to a math class in which Steven Thomas was enrolled, and having an aide with her in class caused the boys to tease her. After a series of meetings, Ms. Rost and Principal Schmidt determined that the aide would sit in the back of the math class instead of beside K.C. Neither Ms. Rost nor school officials knew at that time of any sexual harassment of K.C.

On January 16, 2003, K.C. disclosed to Ann Boler, a counselor at the high school, that Steven Thomas was repeatedly calling her to ask for oral sex. She also disclosed that Steven Thomas and Nick Mangione previously coerced her into sexual conduct by threatening to show others naked pictures of her and spread rumors about her. Ms. Boler could not locate the principal or vice-principal, so she immediately contacted Officer Jason Patrick, the school resource officer. Officer Patrick questioned K.C. in Ms. Boler's office for approximately one to two hours. Ms. Boler later informed Principal Schmidt, and together with Officer Patrick, then informed Ms. Rost of K.C.'s disclosures.

Principal Schmidt decided that because none of the incidents occurred on school grounds and the incidents occurred before any of the students were enrolled in high school, Officer Patrick would investigate the sexual assaults. As a result, Principal Schmidt and the school district did not otherwise investigate the assaults. However, Principal Schmidt did maintain daily contact with Officer Patrick regarding the investigation, and the district assisted him in arranging interviews with the students during the investigation.

The investigation was hampered by Ms. Rost's refusal to communicate (or allow K.C. to communicate) further with the school or law enforcement regarding the incident on the advice of counsel. Based on Officer Patrick's report, the district attorney declined to prosecute the case on the rationale that it would be difficult to prove that the activity was not consensual and the trial would expose K.C. to tremendous trauma.

A couple weeks after reporting the abuse to Ms. Boler, K.C. suffered an acute psychotic episode that required hospitalization. Following K.C.'s discharge from the hospital in February 2003, Ms. Rost met with school officials to discuss educational alternatives for K.C. Ms. Rost accepted an offer for a private tutor but declined any option that required K.C. to return to the high school. The following year, as part of a mediation between Ms. Rost and the district regarding educational alternatives for K.C., an independent educational evaluation was conducted which suggested that K.C. attend a different school from Steamboat Springs High School. In the summer of 2004, K.C. suffered two additional acute psychotic episodes, probably as a result of the assaults; one in Chicago during a visit to her sister, and another in Steamboat Springs just before moving to Carbondale, Illinois.

Ms. Rost, as K.C.'s next friend, filed suit against the school district alleging violations under Title IX and under 42 U.S.C. § 1983 for violations of the Due Process and Equal Protection clauses of the Fourteenth Amendment that the district has a custom of acquiescing to student-on-student sexual harassment and created a dangerous educational environment. Ms. Rost also sued the four boys alleging various state law tort claims. The district court granted summary judgment for the district on the federal claims, and dismissed the pendent state law claims without prejudice.

On appeal, Ms. Rost argues that the district court improperly granted summary judgment on whether the school district had actual knowledge of the sexual harassment and was deliberately indifferent to reports of sexual harassment. She maintains that material issues of fact exist regarding whether the district had an established policy or custom of acquiescing to student-on-student sexual harassment, thereby exposing it to liability under the Fourteenth Amendment, and that the district created a dangerous educational environment for K.C. in violation of 42 U.S.C. § 1983.

Discussion

We review a district court's grant of summary judgment de novo, applying the same standards as the district court. Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1112-13 (10th Cir.2007). Summary judgment is appropriate only "if the pleadings depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the facts in the light most favorable to the nonmoving party. Scott v. Harris, ___ U.S. ___, 127 S.Ct. 1769, 1774, 167 L.Ed.2d 686 (2007).

I. Title IX claim

Ms. Rost alleges that a genuine issue of fact remains regarding Title IX liability for student-on-student sexual harassment endured by K.C. because the district had actual knowledge of the sexual harassment and was deliberately indifferent to those reports. The district argues that there is no evidence that the district had actual knowledge of the sexual harassment before January 16, 2003. And once the district received the notice, it thoroughly investigated the allegations and worked with Ms. Rost to provide K.C. educational alternatives.

Title IX provides, that "[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). A school recipient of federal funds may be liable under Title IX for its own conduct in being deliberately indifferent to student-on-student sexual harassment. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 643, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). A school district may be liable under Title IX provided it (1) has actual knowledge of, and (2) is deliberately indifferent to, (3) harassment that is so severe, pervasive and objectively offensive as to (4) deprive access to the educational benefits or opportunities provided by the school. Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1246 (10th Cir.1999).

A. Actual knowledge

We recognize that district courts differ as to whether notice of prior complaints as opposed to notice of the current harassment for which redress is sought triggers liability under Title IX. See Escue v. N. Okla. College, 450 F.3d 1146, 1153 (10th Cir.2006). In Escue, we found that the plaintiff had not met the more permissive standard (notice of prior complaints) and did not resolve the issue. See id. We need not resolve this issue in this case because Ms. Rost...