T.C. ex rel. Child v. Metro. Gov't of Nashville & Davidson Cnty.

• Decision Date: 06 May 2019
• Docket Number: Civil No. 3:17-cv-01098, Civil No. 3:17-cv-01277, Civil No. 3:17-cv-01159, Civil No. 3:17-cv-01209
• Parties: T.C. ON BEHALF OF Her Minor Child, S.C., Plaintiff, v. METROPOLITAN GOVERNMENT OF NASHVILLE and Davidson County, Tennessee, d/b/a Metropolitan Nashville Public Schools, Defendant. John Doe and Jane Doe #1 on Behalf of Their Minor Child, Jane Doe #2, Plaintiff, v. Metropolitan Government of Nashville and Davidson County, Tennessee, d/b/a Metropolitan Nashville Public Schools, Defendant. Sally Doe on Behalf of Her Minor Child, Sally Doe #2, Plaintiff, v. Metropolitan Government of Nashville and Davidson County, Tennessee, d/b/a Metropolitan Nashville Public Schools, Defendant. Mary Doe #1 on Behalf of Her Minor Child, Mary Doe #2, Plaintiff, v. Metropolitan Government of Nashville and Davidson County, Tennessee, d/b/a Metropolitan Nashville Public Schools, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

378 F.Supp.3d 651

T.C. ON BEHALF OF Her Minor Child, S.C., Plaintiff,

v.METROPOLITAN GOVERNMENT OF NASHVILLE and Davidson County, Tennessee, d/b/a Metropolitan Nashville Public Schools, Defendant.

John Doe and Jane Doe #1 on Behalf of Their Minor Child, Jane Doe #2, Plaintiff,

v.Metropolitan Government of Nashville and Davidson County, Tennessee, d/b/a Metropolitan Nashville Public Schools, Defendant.

Sally Doe on Behalf of Her Minor Child, Sally Doe #2, Plaintiff,

v.Metropolitan Government of Nashville and Davidson County, Tennessee, d/b/a Metropolitan Nashville Public Schools, Defendant.

Mary Doe #1 on Behalf of Her Minor Child, Mary Doe #2, Plaintiff,

v.Metropolitan Government of Nashville and Davidson County, Tennessee, d/b/a Metropolitan Nashville Public Schools, Defendant.

Civil No. 3:17-cv-01098

Civil No. 3:17-cv-01159

Civil No. 3:17-cv-01209

Civil No. 3:17-cv-01277

United States District Court, M.D. Tennessee, Nashville Division.

Signed May 6, 2019

Mary Ann Parker, Stephen C. Crofford, Parker & Crofford, Nashville, TN, for Plaintiffs.

J. Brooks Fox, Keli J. Oliver, Melissa S. Roberge, Paul Jeff Campbell, II, Phylinda L. Ramsey, R. Alex Dickerson, Metropolitan Legal Department, Nashville, TN, for Defendants

J.F., pro se.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge Pending before the court in these consolidated cases are five sealed Motions for Summary Judgment. Four Motions for Summary Judgment were filed by the Metropolitan Government of Nashville and Davidson County d/b/a/ Metropolitan Nashville Public Schools ("MNPS"). (Docket No. 71 (regarding S.C.¹ ); Docket No. 76 (regarding Jane Doe); Docket No. 82 (regarding Mary Doe); Docket No. 83 (regarding Sally Doe).) The plaintiffs have collectively filed a Response addressing all four MNPS motions (Docket No. 92), to which MNPS has filed a Reply (Docket No. 99). Jane Doe, Sally Doe, and Mary Doe have collectively filed a Motion for Partial Summary Judgment (Docket No. 87), to which MNPS has filed a Response (Docket No. 88). For the reasons discussed herein, MNPS's Motion for Summary Judgment regarding the claims of Sally Doe will be granted in part and denied in part, and all of the other motions will be denied.

I. BACKGROUND

"Section 901(a) of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), provides that ‘[n]o person in the United States 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.’ " Nat'l Collegiate Athletic Ass'n v. Smith , 525 U.S. 459, 465–66, 119 S.Ct. 924, 142 L.Ed.2d 929 (1999). Title IX, like other federal antidiscrimination laws,² recognizes that discrimination can, in some cases, take the form of harassment. See Davis v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 639, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). In 2016 and 2017, at least four female MNPS students, all minors, were videotaped³ by other students while engaged in sexual encounters with male students on the premises of their respective MNPS schools. The resulting video files were circulated among the students' peers electronically. The plaintiffs, through their parents, have sued MNPS, arguing that its handling of the matters and general approach to harassment at its schools led to the deprivation of the plaintiffs' rights under Title IX and their constitutional rights to equal protection.

A. Title IX in MNPS

Federal regulations require that a recipient of funding under Title IX "shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under [Title IX rules], including any investigation of any complaint communicated to such entity alleging its noncompliance with [Title IX rules] or alleging any action which would be prohibited by [Title IX rules]." 45 C.F.R. § 83.15(a). That employee is known as the recipient's "Title IX coordinator." The funding recipient must "notify all of its students and employees who work directly with students and applicants for admission of the name, office address and telephone number of the" Title IX coordinator. Id. MNPS's Title IX coordinator, from 2012 through the 2016–17 school year, was Julie McCargar. (Docket No. 92-25 at 18, 24.)

McCargar testified that, when she took the position of Title IX coordinator in 2012, no one from MNPS provided her with any training regarding what her duties were. (Id. at 21.) She did say, however, that she and others in her office received outside training and worked closely with the city's legal department in understanding how to conduct investigations. (Id. at 50.) She testified that, in contrast, principals and assistant principals did not, to her knowledge, receive training regarding how to conduct a Title IX investigation until late in her tenure as coordinator. (Id. at 50.) Principals and assistant principals also were not required to read the Dear Colleague letters that the Title IX coordinator was expected to read to stay abreast of federal Title IX policy. (Id. at 51–52.) Phyllis Dyer, who worked with McCargar and succeeded her as Title IX coordinator, explained that principals did finally receive some training at some time around or after May 2016 (Docket No. 92-18 at 54), although, as the facts below will show, when and if individual principals were trained appears to have varied.

Even before they received training, the principals and assistant principals were permitted to perform Title IX investigations themselves, rather than relying on the Title IX coordinator. (Docket No. 92-25 at 53, 59–60.) McCargar further testified that she could not recall ever telling the principals to contact her when they became aware of possible Title IX violations. (Id. at 59.) If the principal determined that an incident did, in fact, rise to the level of a Title IX violation, only then would the principal inform the coordinator. (Id. at 79–82.)

The plaintiffs suggest, persuasively, that the policy McCargar described violates the guidance provided by the U.S. Department of Education's Assistant Secretary for Civil Rights in a Dear Colleague Letter issued on April 24, 2015. (Docket No. 1-5.) According to the letter, a Title IX funding recipient "must inform the Title IX coordinator of all reports and complaints raising Title IX issues , even if the complaint was initially filed with another individual or office or the investigation will be conducted by another individual or office." (Id. at 3 (emphasis added).) As the plaintiffs point out, the universe of complaints raising Title IX issues is presumably significantly larger than the universe of complaints where a principal has made an affirmative finding of a confirmed Title IX violation.

When asked about MNPS's compliance with the Department of Education's guidance, McCargar admitted that she was not informed of all complaints "raising Title IX issues," if "informed" meant that she was directly contacted in writing or by phone. While she did receive direct notice of cases where principals ultimately concluded that a violation had occurred, she was not informed in that manner where a complaint raised Title IX issues, but the principal ultimately found no violation. (Docket No. 92-25 at 95.) Rather, McCargar explained, she had interpreted the Department's guidance as requiring only that incidents that had raised Title IX issues, but that principals had not deemed to be violations, be entered into a "student management system," to which the coordinator had access. (Id. at 96.)

B. Incident at Maplewood: Mary Doe and Jane Doe

Mary Doe and Jane Doe were freshmen at Maplewood High School when, on September 21, 2016, they were part of a sexual encounter involving the two of them and four older male students in a school stairwell. Jane Doe has attested that, while she had expected there to be flirting and probably kissing in the stairwell, she did not expect and was not prepared for the sexual activity. She attested that she was intimidated by the age, size, and number of male students involved and, although she did not welcome the sexual activity, she "did not know how to get out of the situation." (Docket No. 92-8 ¶ 4.) Mary Doe has similarly attested that she did not expect or welcome sexual activity but was intimidated and did not know how to stop it. (Docket No. 92-10 ¶ 4.)

A male student videotaped the incident, and the video was ultimately circulated among the students' peers. (Docket No. 92-3 ¶¶ 19–20.) Jane Doe testified that she saw a light during the encounter but did not realize that it was from someone recording the activity. (Docket No. 76-4 at 20.) The parties agree that Mary Doe did not, at least immediately, know that the encounter had been taped. (Docket No. 92-3 ¶ 19.) Both girls have attested that they did not consent to being taped or to the tape's being circulated. (Docket No. 92-8 ¶ 5; Docket No. 92-10 ¶ 6.)

That night, Mary Doe told her mother that someone at school had held her down and put hickeys on her neck. She did not, at the time, reveal the extent of actual sexual activity involved in the encounter. (Docket No. 92-3 ¶¶ 12.) Mary Doe's mother contacted Assistant Principal Marvin Olige about the event, and Mary Doe, her mother, and her grandmother met with Olige and police officers stationed at the school as "School Resource Officers" ("SROs"). (Id. ¶¶ 13–14.) Mary Doe reiterated the inaccurate version of events she had told her mother and provided a written statement to that effect. (Docket No. 77-3.) The SROs, however, pressed Mary Doe about inconsistencies between her account and other information they had received, and she admitted that the version of the story she had given her mother was inaccurate. Olige, the SROs, and Mary Doe's mother, however, appeared to remain unaware of the actual details of the encounter. (Docket No. 92-3 ¶ 18.)

The parties disagree about the precise series of events through which MNPS and the girls...