T.L. ex rel. Lowry v. Sherwood Charter Sch.

Decision Date18 December 2014
Docket NumberNo. 03:13–cv–01562–HZ.,03:13–cv–01562–HZ.
Citation68 F.Supp.3d 1295
PartiesT.L., by and through her father and next friend, Shaun LOWRY; G.L., by and through his father and next friend Shaun Lowry; Shaun Lowry, an individual; and Ashley Larson, an individual, Plaintiffs, v. SHERWOOD CHARTER SCHOOL, an Oregon public charter school, and Sherwood Charter School Board, Defendants.
CourtU.S. District Court — District of Oregon

Kevin C. Brague, Kivel and Howard, LLP, Portland, OR, for Plaintiffs.

Steven A. Kraemer, Mark C. Sherman, Hart Wagner LLP, Portland, OR, for Defendants.


HERNANDEZ, District Judge:

Plaintiffs T.L. and G.L. challenge actions taken by Defendants Sherwood Charter School (SCS) and the Sherwood Charter School Board when they were students at SCS. T.L. and G.L. appear through their next friend and father Shaun Lowry. Lowry and Ashley Larson, formerly a nanny to T.L. and G.L., are Plaintiffs themselves in one claim.

Following the dismissal of several claims in a March 6, 2014 Opinion & Order, 2014 WL 897123, granting in part and denying in part Defendants' motion to dismiss, the following claims remain: (1) a claim by T.L. for peer-on-peer sexual harassment under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (Title IX); (2) a Title IX retaliation claim brought by all Plaintiffs; (3) a 42 U.S.C. § 1983 claim by T.L. alleging a violation of her Fourteenth Amendment due process rights; (4) an intentional infliction of emotional distress (IIED) claim by T.L.; (5) a negligence claim by T.L.; and (6) disability discrimination claims by G.L. under Section 504 of the Rehabilitation Act of 1983, 29 U.S.C. § 794(a), and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132(ADA).

Defendants move for summary judgment on all claims. I grant the motion. As explained below, the Title IX retaliation claims by Lowry and T.L. are the only claims in which questions of fact create an issue for a jury. However, because I agree with Defendants that Plaintiffs fail to establish that SCS is the intended recipient of federal funds, I dismiss the Title IX retaliation claims on that basis. As to all other claims, Defendants are entitled to summary judgment because Plaintiffs fail to create an issue of fact on those claims. Additionally, as to the other Title IX claims and G.L.'s Rehabilitation Act claim, these are alternatively dismissed because of the federal funding issue.


T.L and G.L. both attended SCS during the 2011–12 school year and part of the 2012–13 school year. SCS is a small school with approximately 207 elementary and middle school students attending in the 2012–13 school year. The SCS Board is the governing body of SCS, making decisions in areas such as finance and budgeting, the facility lease, the school's charter, setting policies, overseeing curriculum, and hiring a principal. Jan Smith was SCS's principal during the 2011–12 school year. Joy Raboli replaced her as principal beginning in the 2012–13 school year.

The claims in this case are primarily based on T.L.'s contention that she was sexually harassed by her peer K.L. who also attended SCS, and that SCS failed to take appropriate remedial action in response to her complaints about that harassment. Additionally, in December 2012, because of an incident involving T.L., K.L., and Larson, Larson was restricted from volunteering in SCS's classrooms and T.L. was suspended from school for two days. When Lowry complained about these actions, he allegedly was threatening and abusive to school staff, prompting Raboli to ban him from the SCS campus. Finally, G.L., who has diabetes, contends that Defendants failed to reasonably accommodate his disability.

I. The 2011–12 School Year

T.L. was in seventh grade in the 2011–12 school year. During this year, T.L. was placed in an entirely different class schedule than K.L. at the request of both Lowry and K.L.'s parent. Lowry Depo. (Ex. 1 to Sherman Decl.) at 1201 ; Pls.' Ex. 36 (Feb. 28, 2012 email from Lowry to teacher Baumer and principal Smith telling them that T.L. was complaining about K.L. making negative and vulgar comments to and about T.L. and requesting they be separated as much possible); Lint Decl. at ¶ 4 (noting that during the 2011–12 school year, K.L.'s parents requested that SCS keep K.L. and T.L. as far apart as possible because of T.L.'s frequent taunting of K.L.). According to Lowry, the 2011–12 school year issues were resolved. Lowry Depo. (Ex. 1 to Sherman Decl.) at 120.

II. The 2012–13 School Year
A. September–November 2012

T.L. began the 2012–13 school year at SCS but Lowry withdrew her in September of 2012, briefly enrolled her in an online school, then re-enrolled her at SCS several weeks later. In his deposition, Lowry stated he withdrew T.L. because the family was having a positive experience with the online program and because T.L. had voiced repeated concerns about “a particular student” at SCS who kept making “wildly inappropriate,” offensive, sexually explicit comments to her. Lowry Depo. (Ex. 5 to Brague Decl.) at 112.

However, Lowry also testified that when he notified SCS that he was withdrawing T.L., he did not tell SCS that the reason for the withdrawal was because of any rude or inappropriate comments being made to T.L. by K.L. Id. at 115. Lowry maintains that there were emails to the school alerting them to the issues with K.L. and which suggested, at some unspecified date in time, that he was considering moving T.L. out of SCS. Id. at 112–15. There are no such emails in the record indicating that he made this complaint contemporaneous with T.L.'s withdrawal from SCS in September 2012. In October 2012, Lowry placed T.L. back at SCS because the online school's curriculum was not academically sufficient. Id. at 115–16. Lowry made no mention of any concerns with K.L. when requesting that T.L. be re-enrolled. Defs.' Ex. 8.

In the 2012–13 school year, completely different schedules for T.L. and K.L. were not an option because the eighth graders had to take courses at the same time. Lowry Depo. (Ex. 1 to Sherman Decl.) at 120–21. But, at some unspecified point, SCS staff assured Lowry that T.L. would be seated as far away as possible from K.L. Id. at 121.

In the 2012–13 school year, Paul Baumer was T.L.'s homeroom teacher and also had her for both math and social studies classes. Baumer Depo. (Ex. 7 to Sherman Decl.) at 25–26. T.L. described Baumer as her favorite teacher. T.L. Depo. (Ex. 23 to Sherman Decl.) at 17. Baumer noted that T.L. generally got along with her peers. Baumer Depo. (Ex. 7 to Sherman Decl.) at 25. T.L. did not complain to Baumer about any negative interactions with K.L. Id. at 48. Baumer rejected the assertion that negative interactions between T.L. and K.L. occurred “almost daily.” Id. at 47–48. He did not hear profane terms used between K.L. and T.L. Id. at 48.

On or about November 6 or 7, 2012, an incident occurred in teacher Jasmine Jones's science class involving K.L., two other male students, and female student M.K. Raboli Decl. at ¶ 4; see also Lint Decl. at ¶ 5. The four students had been working together in a group. Id. Apparently, when one of the male students returned from the bathroom, K.L. asked him if he had an erection. Lint Decl. at ¶ 5; see also Raboli Decl. at ¶ 4 (male students were allegedly having inappropriate talk about erections). M.K. apparently told K.L. that his comment was inappropriate, that he was an idiot, and nobody liked him. Lint Decl. at ¶ 5. K.L. allegedly replied with a statement which M.K. understood to be threatening. Raboli Decl. at ¶ 8 (M.K. suggested that K.L. threatened her with his penis); but see Lint Decl. at ¶ 5 (stating that K.L. said something to the effect of [d]on't make me threaten you with my threats even though they are harmless”). M.K., who made Jones aware of the incident, refused Jones's offer to be moved to a different group and indicated she was alright. Raboli Decl. at ¶ 4. Jones moved K.L. to a different group for class on the following day.Id.

Jones emailed K.L.'s mother Cammie Lint that afternoon to tell her about the incident and that Jones was requesting lunch detention for K.L. the following week. Lint Decl. at ¶ 7. Raboli then received an email from M.K.'s mother asking her to investigate the incident. Raboli Decl. at ¶ 5. Raboli interviewed several students. Id. at ¶ 7. The investigation yielded conflicting information. Id. at ¶ 8. There was no clear evidence that K.L. sexually harassed M.K. Id. A threat assessment was conducted to evaluate if K.L. was a threat to others or himself. Id. at ¶ 7. As per school district practice, the threat assessment was conducted by mental health care coordinator Mary Massey with input from Raboli, SCS counselor Melinda Laus, K.L.'s own behavioral specialist, and a school resource officer. Id. at ¶ 9. After reviewing K.L.'s discipline record, the circumstances that led to the outburst, and whether there were particular risk factors present, such as access to weapons, the team unanimously determined that K.L. was not a credible threat to other students or himself. Id. at ¶ 9. Raboli, who as principal has responsibility for suspensions and expulsions, suspended K.L. for 2.5 days in mid-November because of his inappropriate comments to M.K. and the other male students. Id. at ¶ 10. And, before his return, SCS implemented a safety plan for K.L. with input from the threat assessment team. Id. at ¶ 12. This included (1) restricting access between K.L. and M.K.; (2) assigning K.L. and M.K. different passing periods; (3) seating K.L. and M.K. on opposite sides of their classrooms; and (4) having K.L. and M.K sit away from each other during lunch. Id.

Lint also received a phone call from the Sherwood Police Department informing her that an anonymous caller reported that K.L. had threatened a female student with a sexual crime at school and the school was doing nothing. Lint Decl. at ¶ 9. The officer took statements from members of the Lint family. Id. The...

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