Theno v. Tonganoxie Unified School Dist No. 464, 04-2195-JWL.

• Decision Date: 27 July 2005
• Docket Number: No. 04-2195-JWL.,04-2195-JWL.
• Parties: Dylan J. THENO,<SMALL><SUP>1</SUP></SMALL> Plaintiff, v. TONGANOXIE UNIFIED SCHOOL DISTRICT NO. 464, et al., Defendants.
• Court: U.S. District Court — District of Kansas

Page 952

377 F.Supp.2d 952

Dylan J. THENO,¹ Plaintiff, v. TONGANOXIE UNIFIED SCHOOL DISTRICT NO. 464, et al., Defendants.

No. 04-2195-JWL.

United States District Court, D. Kansas.

June 24, 2005.

Memorandum and Order Denying Reconsideration July 27, 2005.

Aften P. McKinney, Arthur A. Benson, II, Jamie Kathryn Lansford, Arthur Benson

& Associates, Kansas City, MO, for Plaintiff.

Terelle A. Carlgren, J. Steven Pigg, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

This case arises from student-on-student harassment of plaintiff Dylan J. Theno while he was a junior high and high school student in defendant Tonganoxie Unified School District No. 464. The defendants are the school district, the school board members, the school district's superintendent, two principals, and two assistant principals. Plaintiff contends that the school district violated Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681 et seq., by being deliberately indifferent to the harassment. Plaintiff also asserts a state law claim against all of the defendants for their negligent failure to supervise the students under their custody and control.²

This matter is presently before the court on Defendants' Motion for Summary Judgment (doc. 78). For the reasons explained below, defendants' motion is granted in part and denied in part. Specifically, the motion is denied with respect to plaintiff's Title IX claim against the defendant school district because the court is persuaded that plaintiff has raised genuine issues of material fact with respect to whether the harassment was gender-based, whether the school was deliberately indifferent to known harassment, and whether the harassment was so severe, pervasive, and objectively offensive that it effectively deprived plaintiff of educational opportunities. The motion is granted with respect to plaintiff's negligent supervision claim because the court finds that Kansas courts would not recognize such a claim under the facts of this case.

STATEMENT OF FACTS

Plaintiff, who is a male, was pervasively harassed by other students over the course of a four-year period beginning in 1999 when he was in seventh grade. As explained in detail below, the harassment consisted of name-calling, teasing, and crude gestures with various sexual overtones. He brings this lawsuit against the school district, the members of its school board, and various school district personnel for their failure to prevent the harassment. Specifically, at all relevant times defendant Richard Erickson was the superintendent of the school district, defendant Stephan Woolf was the principal of the junior high school, defendant Michael Bogart was the principal of the high school, and defendant Brent Smith was the assistant principal of the high school. The harassment ended when plaintiff left public school in November of 2003 when he was in eleventh grade. He subsequently earned his GED and is now attending college. Following is a chronology of the various incidents that occurred during the approximately four-year period of harassment.

Seventh Grade Events (1999-2000 School Year)

In October of 1999, K.L. and C.C. called plaintiff a faggot. K.L. kicked plaintiff's feet from behind, trying to trip him. Plaintiff pushed K.L. into an ironing board. The teacher took plaintiff, K.L., and C.C. to the office. The junior high school assistant principal, Ms. Strong, talked to them and told them that they would get in-school suspensions if they did it again. Plaintiff told Ms. Strong that K.L. was calling him a faggot. Plaintiff also talked with Mr. Woolf on this occasion.

In November of 1999, plaintiff and S.S. got in a fight at a school basketball game after S.S. threw rocks at Dylan. S.S. was walking down the sidewalk yelling, "Dylan's a fag. Dylan likes to suck cock." Dylan punched S.S., who then told Ms. Strong. Dylan received a three-day out-of-school suspension for the fight. He was told that S.S. received a one-day in-school suspension. Dylan also talked with Mr. Woolf about the fight with S.S.

On more than one occasion after Christmas that school year, plaintiff was harassed by students in the lunchroom who were calling him a fag and making comments such as "Dylan masturbates with fish," "How was it fag?" and "Don't you need to make a trip to the bathroom?" A male student, G.P., started making fun of plaintiff at lunch. According to plaintiff, G.P. was "saying stuff like I'm gay, said I masturbate with fish, put a piece of string cheese in his mouth and he started sucking it in and out and said I'm Dylan sucking cock." Plaintiff had no difficulty with G.P. before this incident. G.P. was not mad at plaintiff but was "trying to look cool in front of the other kids because he had just started sitting at that table." Two days later, two male students — M.M. and D.C. — began to make fun of plaintiff regarding a rumor that he got caught masturbating in the bathroom. Plaintiff was told that G.P. started the rumor. At lunch later that day, three male students and one female student teased plaintiff about the bathroom rumor, asking if he was going to "make a trip to the bathroom."

Plaintiff left the lunchroom and went to see Ms. Strong and told her what had happened. She left to go talk with the other kids and, meanwhile, Mr. Woolf pulled plaintiff into his office and wanted to know what happened. When Ms. Strong returned, she said that "I warned them again. I told them if gay, fag, or queer ever left their mouths that they would be three days out-of-school suspended." Ms. Strong counseled G.P. regarding his inappropriate comments and G.P. agreed to never make such statements again.

Plaintiff was going to go back to his class, but he saw his sister, Shannan Theno. Plaintiff told Shannan about the rumor. Shannan, in turn, called Mrs. Theno and told her about the rumor. Mrs. Theno came to the school and found plaintiff standing in the doorway of Ms. Strong's office. Plaintiff told her what was happening and that the administrators had "just warned them again." Plaintiff told his mother that he had told Ms. Strong that G.P. had started the rumor.

Ms. Strong and Mrs. Theno talked. Mrs. Theno told Ms. Strong that N.B. was not the problem, that G.P. had admitted to N.B., who, in turn, had told Dylan, that G.P. had started the rumor and that nothing had been done to G.P. Mrs. Theno was not happy that the other boys were only warned. She believed that the boys should have been suspended for their statements.

Mrs. Theno later spoke by telephone with superintendent Erickson. Mrs. Theno asked Dr. Erickson to review the manner in which the principal (Mr. Woolf) and assistant principal (Ms. Strong) had handled the situation. Dr. Erickson told Mrs. Theno that he would look into the matter and get back to her. A few days later, he reported to Mrs. Theno that he had visited with Mr. Woolf and Ms. Strong and reviewed the school's code of conduct. He told Mrs. Theno that he felt the administrators handled the situation in accordance with the student handbook. Mrs. Theno responded that she was disappointed.

Plaintiff's father contacted G.P.'s father to arrange a meeting. Mr. Theno and plaintiff talked with G.P. and G.P.'s father at the park. G.P. apologized and said it would never happen again. Also, G.P. subsequently informed the other students sitting at the table that he had made up the story about plaintiff masturbating. Since that time, plaintiff has had no further problems with G.P. or with C.C. He may have had a couple of later arguments with K.L. in which words such as "gay" or "fag" were used but he did not report the arguments "because they weren't very serious, it was just short little argument and that was it."

Not long after Ms. Strong, Mr. Woolf, and Dr. Erickson learned of plaintiff's problems at the lunch table, an eighth grader in plaintiff's gym class called him the jack-off kid. That eighth grader was D.W.# 1.

Sometime later, plaintiff had a problem with A.E. at the lunchroom. A.E. put his hair up to mimic the way plaintiff wore his hair and said, "Look, I'm Jack." Plaintiff was then called "jack off boy." Plaintiff and A.E. had been friends with no previous problems. Plaintiff did not report the incident with A.E. to any staff. A.E. made fun of plaintiff on other occasions but plaintiff recalls no specifics and no occasion in which he reported A.E. to an administrator or teacher. On February 17, 2000, plaintiff was counseled and moved to a different lunch table for five days for calling other students faggots after they made fun of his hair. On February 24, 2000, A.E. was disciplined and was given a three-day lunch detention and a warning that the "next incident of harassment will result in more severe consequences."

One day before school while kids were congregating in the cafeteria before the bell for class rang, D.C. and M.M. started making fun of plaintiff. They were asking him "how it was" that he got caught masturbating in the bathroom. Plaintiff asked them what they were talking about and they told him that they had heard the rumor from G.P. Although plaintiff told them the rumor was not true, they kept making fun of him, not just that one time, but after that as well. The next time he heard the rumor was later that day in class from a female student, D.S., who asked plaintiff, "Didn't you get caught?" Plaintiff asked her what she was talking about and she said, "I heard you got caught masturbating in the bathroom."

Also during seventh grade, two boys who plaintiff thinks were M.M. and S.M. spat on the wall in the bathroom and said, "Look, Dylan was here." They would also call plaintiff fag and make fun of him about the rumor.

On another occasion, plaintiff found "stuff" stuck in his locker that had "flamer" written across it and said, "You're gay." Plaintiff asserts that he was told by H.J. that K.W. had placed the item in his locker. Plain...