Doe V Hamilton Co. Board of Education Summary Judgement

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA
JOHN DOE, et al., )

)
Plaintiffs, )
) Case No. 1:16-cv-373 (Lead)
v. )
) Judge Mattice
HAMILTON COUNTY BOARD OF )
EDUCATION, et al., ) Magistrate Judge Steger
)
Defendants. )
)
RICHARD ROE, SR., et al., )

)
Plaintiffs, )
) Case No. 1:16-cv-497
v. )
) Judge Mattice
HAMILTON COUNTY DEPARTMENT )
OF EDUCATION, et al., ) Magistrate Judge Steger
)
Defendants. )
)
ORDER
This matter is before the Court on the Parties' cross-motions for summary
judgment. [Docs. 172, 176, 177, & 178]. These consolidated cases were brought on behalf
of two teenagers, the victims of hazing and sexual assault at their former high school.
While on a school basketball trip, John Doe and Richard Roe, Jr.'s teammates held them
down and sexually attacked them with a pool cue. Doe's attack was particularly
gruesome because it resulted in him being anally penetrated with the narrow end of a
pool cue, leaving him seriously injured. Doe's and Roe's parents, on behalf of their sons,
brought claims against the Hamilton County Department of Education, some of its
Case 1:16-cv-00373-HSM-CHS Document 248 Filed 08/06/18 Page 1 of 62 PageID #: 5848

school administrators, and one of its teachers asserting Title IX, 42 U.S.C. § 1983, and
state law tort claims. Plaintiffs allege, in sum, that Defendants were deliberately
indifferent to Doe's and Roe's harassment in violation of their statutory and
constitutional rights, and further that the school system and its agents were negligent.
Because the Court finds factual questions permeate Doe’s and Roe’s sexual
assault, the Plaintiffs’ Motion for Partial Summary Judgment [Doc. 178] is DENIED.
Although those questions create a triable issue as to pre-assault deliberate indifference,
after the assaults the Hamilton County Department of Education acted reasonably in its
response by promptly punishing Doe and Roe’s attackers and investigating the
incidents. Further, the Court finds there are genuine issues of fact regarding whether the
Department was constitutionally deficient in its relevant staff training. Accordingly,
Hamilton County Department of Education’s Motion for Summary Judgment [Doc. 177]
will be GRANTED in part and DENIED in part. Likewise, there is insufficient
evidence demonstrating the individual defendants in this action violated constitutional
rights, and all are otherwise protected by qualified immunity. As such, Andre
Montgomery, James Jarvis, and Jesse Nayadley’s Motions for Summary Judgment
[Docs. 172, & 176] are hereby GRANTED.
I. BACKGROUND
In 2015, John Doe ("Doe") and Richard Roe, Jr. ("Roe"), were freshmen at
Ooltewah High School ("OHS"), a school administered by the Hamilton County
Department of Education (the “Department”). There Doe and Roe participated in the
school's basketball program. Most freshmen that aspired to play basketball at OHS were
resigned to play on the school's freshman squad, but Doe's and Roe's skill earned them a
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spot on the varsity team. [Doc. 185 at 1]. What at first appeared to be an honor soon
turned out to be a source of torment.
The OHS varsity team was allegedly rife with bullying and hazing. [Doc. 185 at 4,
& 186 at 5]. One favored form of hazing was what the players referred to as “racking-in”
or the "rackings." [Doc. 179 at 2–3] Rackings consisted of upperclassmen beating
freshman players in the team locker room with the lights out. [Doc. 185 at 3]. Three
upperclassmen in particular were prominent “rackers,” Students A, B, and C. [Doc. 185
at 2]. The three actually started the rackings once they joined the basketball team later
that year, in November. [Id.]. All four of the team's freshman players—Doe, Roe, and
Students F and H—fell victim to the rack. [Doc. 185 at 3]. The frequency of rackings
would vary per player; Doe says he was racked-in only once, but Roe claims he was put
through the freshman rack multiple times per week. [Doc. 179 at 2]. Neither Doe nor
Roe ever reported the rackings to school officials. [Doc. 173 at 5].
The varsity team's coach was Andre Montgomery ("Montgomery"), a defendant
in this action. [Doc. 177-1 at 2]. Montgomery was also a teacher at OHS, and he had
coached basketball at the school in some capacity since 2009. [Doc. 185 at 2].
Montgomery's office was next door to the team's locker room, and on more than one
occasion he entered the locker room to find the players inside with the lights off. [Id. at
4–5]. His typical response consisted of him turning on the lights and yelling "knock off
the horseplay." [Id. at 5]. Montgomery also occasionally punished players for hazing or
horseplay. [Id.]. Plaintiffs assert this is evidence Montgomery knew of the rackings. [Id.
at 4]. Montgomery denies he had any such knowledge. [Doc. 173 at 4].
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A. The Gatlinburg Trip
On December 19, 2015, the varsity team and Coach Montgomery traveled to the
Gatlinburg, Tennessee area to participate in the “Smokey Mountains Christmas Classic”
basketball tournament. [Id. at 3]. The trip was scheduled to last five days, with at least
four overnight stays in Gatlinburg. [Id.]. The team’s fourteen players, Montgomery, his
wife, his daughter, and an Assistant Coach, Karl Williams, would all stay in a single
cabin, “JJ’s Hideaway.” [Id.]. The cabin had two floors. [Doc. 185 at 5]. The boys were
divided into three rooms in a downstairs area, and the adults and Montgomery's
daughter stayed in two rooms upstairs. [Id.]. When downstairs, the players were
secluded from the adults, which effectively left them unsupervised. [See e.g. id. at 6].
Montgomery and Williams ventured down “only once or twice” during the entire trip.
[Id.] However, Montgomery claimed he could hear the players downstairs, including
their conversations. [Doc. 185 at 7]. The downstairs area had a den that featured a
billiards table. [Id. at 6]. Prior to and early on in the trip, Student B hinted to the
freshmen that “something” was going to happen during the trip, and the upperclassmen
would talk and joke about using pool cues on the freshmen, although at first Doe
believed it was their intention to merely beat the freshman with the cues. [See Docs. 177-
1 at 3, & 179 at 4]. Doe actually attempted to hide the pool cues to prevent their use.
[Doc. 179 at 4]. Doe’s efforts ultimately failed, however, and before the trip’s end
Students A, B, and C would use those pool cues to sexually assault the team’s four
freshmen.
Montgomery and Williams’ laissez-faire approach to supervision is evidenced by
their actions upon arriving at the cabin on December 19th. The two decided to go
grocery shopping, leaving the players unsupervised for almost two hours. [Doc. 185 at
4
6]. The scene quickly devolved into a proverbial Lord of the Flies situation. [Doc. 179 ].
Once the adults left, upperclassmen shut off the cabin lights. [Doc. 185 at 6]. The
freshmen scattered. Doe, Roe, and another freshman sought shelter in a locked
bathroom, where upperclassmen soon broke in, beat up the screaming freshmen, and
drug them out. [Doc. 177-1 at 5]. Bands of upperclassmen then rounded up and threw
fully clothed freshmen into the cabin’s outdoor hot tub, on that cold December night.
[Doc. 185 at 7]. Doe and Roe were among the victims. [Id.].
The next night, December 20, 2015, the trip took an even darker turn.
Upperclassmen found the hidden pool cues. Students A and C soon grabbed one of the
team’s freshman, Student F, and pinned him to the ground [Doc. 185 at 7]. While the
two held him down, Student B took a pool cue and used it to prod Student F’s anus, over
his clothes. [Id.]. Throughout the attack, Student F screamed. [Id.]. Soon thereafter,
Student A hunted down and grabbed Roe, wrestled him to the ground, and sat on his
back to prevent his escape. [Id.]. Then Student B, like he had done with Student F,
placed a pool cue over Roe’s clothes, between his buttocks, and “attempted to penetrate
… Roe’s rectum” with the cue. [Doc. 177-1 at 6]. While Student B was doing this he was
yelling “don’t be a pussy,” and “take it like a man.” [Doc. 185 at 7].
The sexual assaults continued the next night, on December 21st. [Doc. 177-1 at 6].
After playing a game of pool, Doe heard Students A and C yell, “Get ‘em” as they grabbed
another freshman, Student H. [Id.]. Doe fled the room and hid at the top of the cabin
stairs. [Docs. 177-1 at 6, & 185 at 8]. From there Doe could hear Student H’s screams as
the upperclassmen used a pool cue to simulate sodomy on him as they had before. [Doc.
185 at 8].
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The attacks came to a horrifying crescendo the night of December 22, 2015. That
night, after dinner, Doe went downstairs to grab his cell phone. [Doc. 185 at 8]. There
Students A, B, and C ambushed him. [Id.]. They followed him into his room while
holding a pool cue, and closed and locked the door. [Id.]. Roe witnessed this while
standing at the top of the stairs talking to Williams, and he reported what he was seeing.
[Id.]. Williams’s response was “they better not be doing anything to him.” [Id.]. In the
room, Students A and C held Doe down. [Doc. 177-1 at 7]. Student B then took the pool
cue and forcefully rammed it into Doe’s anus. [Id.]. This was done over his clothes, as it
had been done in prior attacks, but this time the ramming was so forceful that the cue
ripped through two layers of Doe’s clothing and actually penetrated him. [Doc. 185 at 8].
His attackers then ran away. [Id.] Roe could hear Doe’s screams from where he was
standing. [Id.]. Roe and Williams then ran into the room to find Doe lying on the floor,
bleeding from his anus. [Id.]. Coach Montgomery and his wife were called down to the
room shortly thereafter. [Id.]. Although he was in pain and bleeding, Doe was able to get
up and clean himself off. [Id.]. Montgomery then pulled Roe, Doe, and Student F the
side and told them, “Keep this on the low,” and “Don’t let this get out,” referring to the
incident. [Id.]. Apparently, this encouraged Doe to continue on the trip as if nothing had
happened. Montgomery then began questioning the upperclassmen, and Student B
admitted to Montgomery that he “had poked … Doe ‘on the bottom with a pool cue.’”
[Doc. 177-1 at 7].
Sometime later that night, Doe began urinating blood. [Id. at 9]. Montgomery
took him to the local emergency room. [Id.]. During this, a Detective and two police
officers from the Gatlinburg Police Department arrived at the cabin and began
investigating the incident. [Doc. 177-1 at 7]. After their investigation, Montgomery called
6
Students A’s, B’s, and C’s parents, suspended them from the team, and had them
transported back to OHS. [Id.]. The Department would eventually suspend and “zero
tolerance[]” Students A, B, and C from school some time thereafter. [Id. at 8]. The next
day, the remainder of the team, including Roe, competed in the last game of the
tournament before going back to Ooltewah. [Id.].
Back at the hospital, doctors had diagnosed Doe with a “full-thickness bladder
injury,” meaning the attack had perforated both his rectum and bladder. [Id.]. Without
surgery, Doe’s injuries were life threatening. [Id.]. Doe was transported by ambulance to
another hospital, the University of Tennessee Medical Center in Knoxville. [Doc. 185 at
9]. There surgeons performed emergency surgery on Doe, repairing damage caused by
the rape. [Id.]. Doe remained hospitalized for six days, and after his release, he was bed
bound. [Id.]. He was unable to eat or use the bathroom, and had to re-learn to walk.
[Id.]. He did not fully recover until over nine months after his attack. [Id. at 10].
After the Gatlinburg incident, Doe never returned to OHS, choosing instead to
transfer to another school. [Id.]. Roe tried to continue attending OHS, but he claims the
friends of his assaulters’ harassed and threatened him at school. [Doc. 178-1 at 206].
Shortly after returning from Christmas break, he too decided to attend a different
school. [Doc. 185 at 10].
B. Procedural Posture
On August 9, 2016, Doe’s mother, Jane Doe (collectively the “Does” or “Doe
Plaintiffs”), brought a lawsuit on behalf of her son. She asserted claims against the
Department, and in their official and personal capacity: Montgomery, OHS Principal
James Jarvis, and OHS Athletic Director Jesse Nayadley (collectively the "Individual
Defendants"). [Doc. 1]. Likewise, on December 16, 2016, Roe’s parents, Richard Roe, Sr.,
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and Jane Roe (collectively the “Roes” or “Roe Plaintiffs”), brought claims against the
Individual Defendants, the Department, and the Department’s Title IX coordinator,
Marsha Drake. [1:16-cv-497 ECF Doc. 1]. On August 3, 2017, District Judge Travis R.
McDonough consolidated the Does’ and Roes’ cases. [Doc. 65]. On March 12, 2018, the
Individual Defendants moved for summary judgment as to the Does’ claims [Doc. 172]
and Roes’ claims [Doc. 176]. The Does and Roes both responded to the Individual
Defendants’ respective Motions for Summary Judgment on April 2, 2018. [Docs. 184 &
186]. On April 16, 2018, the Individual Defendants replied to the Doe Plaintiffs’
response [Doc. 194] and Roe Plaintiffs’ response [Doc. 195]. The Department and
Marsha Drake also filed a Motion for Summary Judgment on March 12, 2018. [Doc.
177]. Plaintiffs responded separately. The Roes responded to the Department and
Drake’s motion on April 2, 2018. [Doc. 183]. The Does likewise responded to the motion
on the same day. [Doc. 185]. All Plaintiffs filed a Joint Motion for Partial Summary
Judgment against the Department on March 12, 2018. [Doc. 178]. The Department and
Marsha Drake responded to the Plaintiffs’ motion on April 2, 2018. [Doc. 182], and
Plaintiffs replied in turn on April 9, 2018 [Doc. 192]. The Court finds that the issues in
this matter have been fully briefed and are ready for disposition.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 instructs the Court to grant summary
judgment “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party
asserting the presence or absence of genuine issues of material fact must support its
position either by “citing to particular parts of materials in the record,” including
depositions, documents, affidavits or declarations, stipulations, or other materials, or by
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“showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1). When ruling on a motion for summary judgment, the
Court must view the facts contained in the record and all inferences drawn from those
facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v.
Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence,
judge the credibility of witnesses, or determine the truth of any matter in dispute.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue
of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving
party may discharge this burden either by producing evidence that demonstrates the
absence of a genuine issue of material fact or simply “by ‘showing’–that is, pointing out
to the district court–that there is an absence of evidence to support the nonmoving
party’s case.” Id. at 325. Where the movant has satisfied this burden, the nonmoving
party cannot “rest upon its . . . pleadings, but rather must set forth specific facts showing
that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374
(6th Cir. 2009) (citing Matsushita, 475 U.S. at 586; Fed. R. Civ. P. 56). The nonmoving
party must present sufficient probative evidence supporting its claim that disputes over
material facts remain and must be resolved by a judge or jury at trial. Anderson, 477
U.S. at 248-49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 (1968));
see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475-76 (6th Cir.
2010). A mere scintilla of evidence is not enough; there must be evidence from which a
jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252;
9
Moldowan, 578 F.3d at 374. If the nonmoving party fails to make a sufficient showing
on an essential element of its case with respect to which it has the burden of proof, the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323.
III. ANALYSIS
A. Title IX Claims
Title IX of the Education Amendments Act of 1972 (“Title IX”) states, in relevant
part:
No 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 …
20 U.S.C. § 1681(a). There is no explicit reference to private suits for money damages in
Title IX’s text. See id. Instead, the United States Supreme Court has found such actions
are implicit in the statute and its legislative history. Cannon v. Univ. of Chicago, 441
U.S. 677, 709 (1979). Title IX supports lawsuits brought for certain injuries caused by
entities that receive federal educational funds. Id. Because Congress passed the law
pursuant to its spending power, Title IX is contractual in nature and its extension of
liability is appropriately viewed as a condition to the receipt of federal support, and in
effect, schools consent to permit themselves to be subject to Title IX liability when
accepting federal funds. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286–87
(1998).
These precedents have stood for over a generation, and education departments
and schools have long since been put on notice that opting to receive financial assistance
from the federal government comes at a price: increased risk for liability. As is relevant
here, this includes, “in certain limited circumstances,” suits “for discrimination in the
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5857
form of student-on-student sexual harassment.” Davis Next of Friend LaShonda D. v.
Monroe Cty. Bd. of Educ., 526 U.S. 629, 639–644 (1999) (emphasis added). It is not the
case, however, that the basis of such a claim derives from imputing a harasser-student’s
behavior to the fund recipient school. Id. at 645. And when they accept federal funds,
schools do not agree to be their students’ insurers against any harassment they may
face. See e.g. id. Rather, a school may be liable for its students’ injuries under Title IX
when it has “actual knowledge” of, and is deliberately indifferent to, “severe, pervasive,
and objectively offensive” student-on-student sexual harassment that occurs “’under’ an
‘operation’ of the [school].” Id. at 646. Doe and Roe assert this avenue of liability is
applicable to their injuries.
Although they base their claims chiefly under Title IX, Doe and Roe’s case is far
from a prototypical Davis suit for deliberate indifference toward student-on-student
harassment. Davis, for instance, involved a claim brought on behalf of a female student
who was repeatedly sexually harassed over a period of “many months” by a male
classmate. Id. at 633–34. The Davis harasser’s conduct occurred exclusively on school
grounds, during school hours, and the victim and her mother notified school
administrators of the ongoing harassment. Id. Despite her frequent reports, the school
failed to effectively stop the victim’s harassment, and her harasser eventually sexually
assaulted her. Id. at 634. By contrast, this claim involves conduct among students who
are of the same sex. The most egregious conduct occurred far from school property, in a
Gatlinburg cabin over one hundred miles away. Neither Doe nor Roe had reported
harassment to anyone prior to their assault or rape, and if there were any actual, pre-
assault knowledge of sexual harassment on the part of school officials, it was limited to
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two coaches, not a principal or other school administrator. Whether those facts support
relief under Title IX requires careful attention to the Davis elements.
Title IX supports a suit for private money damages for student-on-student sexual
harassment when:
(1) [there is] sexual harassment [that is] so severe, pervasive, and
objectively unreasonable that it could be said to deprive the plaintiff of
access to the educational opportunities or benefits provided by the school,
(2) the funding recipient had actual knowledge of the sexual harassment,
and (3) the funding recipient was deliberately indifferent to the
harassment.
Stiles ex rel. D.S. v. Grainger Cty, Tenn., 819 F.3d 834, 848 (6th Cir. 2016) (citing
Davis, 526 U.S. at 650). The Department has not disputed its status as a federal fund
recipient. Before the claim elements are further explored, however, it must be
determined whether Roe and Doe’s sexual assault and rape occurred “’under’ an
‘operation’ of” OHS, which was administered by the Department. Davis, 526 U.S. at 646.
School liability for student-on-student sexual harassment only extends to harassment
that occurs when the school has the authority to correct and/or prevent the offending
behavior. See e.g. Gordon v. Traverse City Area Pub. Sch., 686 F. App’x 315, 324 (6th
Cir. 2017) (holding the defendant school could not be held liable for being deliberately
indifferent toward students who “liked” a harassing Facebook post when there was no
evidence those “likes” occurred during school hours). In other words, liability under
Davis only attaches when alleged harassment happens “where the school ‘exercises
substantial control over both the harasser and the context in which the known
harassment occurs.’” Id. (emphasis added) (quoting Davis, 526 U.S. at 645).
It is an inescapable fact that the incidents alleged in this case occurred “under” a
school “operation.” Although Doe and Roe were sexually attacked far from campus and
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after the Department had ceased a majority of its operations for Christmas break, the
boys were on a trip organized and sponsored by the Department. The trip’s purpose was
to promote the school’s varsity basketball team and facilitate its competition in a holiday
tournament. In order to ensure the team’s well-being, including providing meals and
transportation, the Department entrusted its agent, Montgomery, to care for the players.
Further, it is without question that Montgomery and Williams had the authority to
“control” the actions of Doe and Roe’s harassers, and as the trip’s chaperones, they had
the ability to control the “context” of the harassment—e.g. they had the ability to control
the players' conduct in the cabin. Davis, 526 U.S. at 645; but see Pahssen v. Merrill
Cmty. Sch. Dist., 668 F.3d 356, 364 (6th Cir. 2012) (“When conduct occurs … off school
grounds entirely, the school district has control over neither the harasser, nor the
context.” (quoting the district court)). Accordingly, the Gatlinburg trip and cabin stay
are well within the school “operation[s]” that Davis contemplated. Id. at 646.
1. Sexual Harassment So Severe, Pervasive, and Objectively

Unreasonable that it Deprived Plaintiffs of Educational
Opportunities
Turning to the first Davis element, the Court must determine whether the case
facts support a finding of: (1) sexual harassment (2) that was so severe, pervasive, and
objectively unreasonable (3) that it deprived Doe and Roe of educational opportunities
at the Department’s school system. See Stiles, 819 F.3d at 848. Although this test stands
as single factor, the first Davis element touches on multiple issues. It should be no
surprise, then, that many courts have found it helpful in their analysis to separate the
element’s considerations. Tumminello v. Father Ryan High Sch., Inc., No. 3:15-cv-
00684, 2015 WL 13215456, at *2 (M.D. Tenn. Dec. 7, 2015) (splitting sexual harassment
element from the severity element), aff’d 678 F. App’x 281 (6th Cir. 2017); Roe ex rel.
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Callahan v. Gustine Unified Sch. Dist., 678 F. Supp. 2d 1008, 1025–29 (E.D. Cal. 2009)
(analyzing severity and sexual harassment elements separately from the denial of
benefits element). This Court will do the same here. First, it will be determined whether
the alleged conduct constitutes sexual harassment, and next the Court will consider
whether the facts support finding the harassment was “so severe, pervasive, and
objectively unreasonable” as to constitute a denial of educational opportunities.
a. Sexual Harassment
Title IX does not cover every instance of student-on-student harassment that
likely occurs on a regular basis in most schools. For instance, generalized bullying—
motivated by personal animus, opportunism, or social status—is not the sort of conduct
proscribed by Title IX. Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647
F.3d 156, 165 (5th Cir. 2011). Congress has not turned everyday schoolhouse teasing into
a potential federal suit in which every childish slight lays bare the school coffers. A
Davis claim is only available to students who have been “harassed on the basis of his or
her sex.” Tumminello v. Father Ryan High School, Inc., 678 F. App’x 281, 284 (6th Cir.
2017) (emphasis added). As such, the Court must determine whether Doe and Roe
experienced harassment “on the basis of” their sex. Id.
In the typical case, harassment can be “indisputably” identified as “sexual
harassment” because it often “involve[s] male students harassing female students,
ostensibly because of sexual desire.” Hoffman v. Saginaw Pub. Sch., No. 12-10354, 2012
WL 2450805, at *8 (W.D. Mich. June 27, 2012); see also Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998) (“Courts and juries have found the inference of
discrimination easy to draw in most male-female sexual harassment situations, because
the challenged conduct typically involves explicit or implicit proposals of sexual activity;
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it is reasonable to assume those proposals would not have been made to someone of the
same sex. The same chain of inference would be available to a plaintiff alleging same-sex
harassment, if there were credible evidence that the harasser was homosexual.” (Scalia,
J., writing)). Issues are not as straightforward when harassment involves harassers and
victims that are the same sex and/or involves conduct that was not apparently
motivated by sexual attraction, as is the case here. See id. To be sure, however, it has
long been “settled law that ‘same-sex sexual harassment is actionable under [T]itle IX.’”
Carmichael v. Galbraith, 574 F. App’x 286, 290 (5th Cir. 2014) (quoting Sanches, 647
F.3d at 165); see also e.g. Mathis v. Wayne Cty. Bd. of Educ., 496 F. App’x 513 (6th Cir.
2012) (finding as cognizable a Davis claim for same-sex sexual harassment). Further,
“harassing conduct need not be motivated by sexual desire to support an inference of
discrimination on the basis of sex.” Oncale, 523 U.S. at 80.1
Doe and Roe experienced same-sex harassment that was not apparently
“motivated by sexual desire.”2 Id. Such harassment could be “on the basis of sex” in a
myriad of circumstances. Id. An obvious example is when classmates tease a student
because he or she does not “conform to traditional gender stereotypes in an observable
way.” See Tumminello, 496 F. App’x at 285. Also, same-sex harassment is “on the basis
of sex” if the harasser is motivated by an animus toward the presence of others that are
1Although Oncale is a Title VII case, the Sixth Circuit has instructed that Title VII cases defining whether
harassment is “on the basis of sex” are informative in Title IX cases. Tumminello, 678 F. App’x at 284
(“The boundaries of ‘on the basis of sex’ have been more extensively analyzed under Title VII
jurisprudence, which often is consulted when interpreting and applying Title IX.”) (citing Fuhr v. Hazel
Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013)).
2 Plaintiffs assert an independent report commissioned by the school concluded that Roe’s attackers were
motivated by “sexual intent.” [Doc. 141 at 6 (citing Doc. 178-3 at 12)]. The independent report, however,
did not say as much; rather it concluded the “assailants had the intent to … sexually harass the victims.”
This is a legal conclusion, not a factual determination of the assailant’s intent. As such, it does not resolve
this factual issue. Further, there is evidence the harassers were not motivated by sexual desire. For
example, Doe, when asked whether his attacker intended his rape to be a “sexual act against you,”
answered “no.” [Doc. 178-2 at 122].
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the same gender. See Oncale, 523 U.S. at 80 (“for example, [harassment is actionable
under Title VII,] if a female victim is harassed in such sex-specific and derogatory terms
by another woman as to make it clear that the harasser is motivated by general hostility
to the presence of women in the workplace”). In other contexts, however, courts have
had a harder time determining whether same-sex harassment occurs “on the basis of”
the victim’s sex. For instance, courts have faced difficulty when confronted with cases in
which a student was harassed due to their sexual orientation. Tumminello, 496 F. App’x
at 286. The Sixth Circuit has held—albeit in an unpublished opinion—that such
harassment is not “on the basis of sex” and thus not covered by Title IX. Id.
Courts have likewise struggled with cases similar to the present one, where
hazing occurs in a sports or team setting. In such situations, it is not always obvious
whether alleged hazing was motivated by the victim’s sex. See e.g. Seamons v. Snow, 84
F.3d 1226 (10th Cir. 1996) (holding incidents of hazing provided no evidence “sex was
used to contribute to a hostile [educational] environment”). Typically when presented
with the issue, there is little objective evidence from which to infer the hazers’ conduct
was carried out “on the basis of sex.” For example, there is often no “direct comparative
evidence about how the alleged harasser treated members of both sexes” in a similar
context (e.g. locker-room horseplay). Oncale, 523 U.S. at 81. Additionally, hazing, by its
nature, is primarily motivated by team hierarchy, seniority, or class position (e.g.
seniors hazing freshmen), not necessarily sex. To further complicate matters, the
Supreme Court has cautioned courts and juries to not overreact and confuse “ordinary
socializing,” such as “male-on-male horseplay,” for sexual discrimination. See id. These
concerns and evidentiary issues have made it difficult to parse out the type of hazing
that Title IX covers.
16
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Here, Doe and Roe point to comments made by some of their hazers as evidence
that their harassment occurred because of their sex—or to be more specific, presumably
due to a perceived failure to live up to their harassers' ideal view of masculinity. For
example, when the team’s upperclassmen would beat up the freshman players in the
team locker room, they would yell: “don’t be a pussy,” “take it like a man,” and “this is
going to make you a man.” [Doc. 179 at 3]. However, those comments are hardly
dispositive. Sanches, 647 at 165 (“The offensive behavior … must still be based on sex,
per the words of [T]itle IX, and ‘not merely tinged with offensive sexual connotations.’”
(quoting Fraizer v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002)); see also
Davis, 526 U.S. at 651–52 (holding “damages” are not available for “name-calling …
even where these comments target differences in gender.”); Diebold v. Hartford Pub.
Sch., No. 1:15-cv-529, 2017 WL 4512575, at *5 (W.D. Mich. May 25, 2017) (holding that
harassment mixed with a gendered comment “fails to support the proposition that the
harassment at issue in this case is ‘on the basis of sex,’ as required for liability under
Title IX.”); J.H. v. Sch. Town of Munster, 160 F. Supp. 3d 1079, 1092–93 (N.D. Ind.
2016) (holding evidence that a victim was called derogatory, gendered names was not
sufficient evidence to support Title IX claim); Roe ex rel. Callahan v. Gustine Unified
Sch. Dist., 678 F. Supp. 2d 1008, 1027 (E.D. Cal. 2009) (“The use of gender-based or
sexually loaded insults such as ‘fag’ or ‘homo’ can certainly be indicative of animus on
the basis of gender, but the use of such terms without more is not necessarily sufficient
to establish gender discrimination.”). Further, statements such as “take it like a man”
and “this is going to make you a man” could reasonably be understood as regarding the
victims’ age, not merely their gender. Nonetheless, the comments, although not direct
evidence that Doe and Roe’s harassers were motivated by gender, are appropriately
17
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considered in the “constellation of surrounding circumstances” of alleged conduct.
Davis, 526 U.S. at 631 (quoting Oncale, 523 U.S. at 82). This is particularly true when
the comments were made in context of the sexual assaults. [See Doc. 185-7 at 121].
Here, when determining whether the team’s hazing can be construed as the type
of harassment proscribed by Title IX, one does not have to look further than the sexual
assaults sitting at the core of these lawsuits. Those assaults, which involved
upperclassmen using pool cues to sodomize or simulate sodomy on freshman players,
occurred near nightly at the Gatlinburg cabin during the trip. The Court finds these
assaults create a factual inference that the team’s hazing amounted to sexual
harassment contemplated by Title IX, meaning it was carried out “on the basis of” Doe’s,
Roe’s, and the other freshmen’s sex. See e.g. Doe v. Rutherford Cty., Tenn. Bd. of Educ.,
No. 3:13-cv-328, at *10 (M.D. Tenn. Aug. 18, 2014). There has been some confusion in
the Sixth Circuit regarding whether a Title IX plaintiff’s alleged sexual assault factors
into the analysis under the first Davis element. See Pahssen, 668 F.3d at 364
(explaining “whether [the court] should consider … sexual assault … under the first
Davis element” presents an “ambiguity,” but did not resolve the issue because the claim
failed on other grounds). Other decisions have not been so uncertain. For example,
shortly after Davis, the Sixth Circuit found “rape and sexual abuse[]” motivated by the
attackers’ sexual desire “obviously qualifies as …. sexual harassment.” Soper v. Hoben,
195 F.3d 845, 855 (6th Cir. 1999) (emphasis added). Likewise, in an unpublished
decision, issued shortly before the Pahssen court perceived an ambiguity in this context,
a Sixth Circuit panel found that a locker room incident in which eighth grade boys
forced their male basketball teammate “to the ground, pulled his pants down and anally
penetrated him with a marker” could reasonably be considered by a jury as a “serious
18
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incident” of sexual harassment, and “not just horseplay gone awry.” Mathis, 496 F.
App’x at 516.
Considering sexual assaults under the first Davis element, as the Mathis court
did, is a logical approach—although it is understandable why one could detect an
ambiguity on this issue. Sexual assaults are by their definition “sexual,” but it does not
follow that those who carry out such attacks are always motivated by their victim’s
gender. That adds a wrinkle into the analysis, because Title IX is concerned with
“discrimination in the form of … sexual harassment,” not necessarily harassment that is
“sexual” in nature. Davis, 526 U.S. at 639 (emphasis added); see also Oncale, 523 U.S.
at 81 (holding the Title VII plaintiff alleging harassment “must always prove the conduct
at issue was not merely tinged with offensive sexual connotations, but actually
constituted ‘discrimina[tion] … because of … sex.’” (emphasis in original)). To be sure, it
is sensible to assume in the overwhelming majority of sexual assault cases, the victim’s
gender is a motivating factor for the attacker; this is indisputably the case when the
attacker is driven by sexual desire. Likely because of this, the Office of Civil Rights
(OCR), the executive agency tasked with enforcing Title IX, has taken this reasonable
assumption one step further and held, as a per se rule, that all acts of “sexual violence”
against students—which the OCR defined as a nonconsensual “sexual acts,” including
“rape, sexual assault, sexual battery”—“are forms of sexual harassment covered by Title
IX.” See Dear Colleague Letter from Russlynn Ali, Assistant Secretary of Education for
Civil Rights (Apr. 4, 2011) available at
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html. OCR’s
determination, although not controlling here, does have some persuasive value. See
Christensen v. Harris Cty., 529 U.S. 576, 587 (2000). However, while the Court agrees
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that most sexual assaults are motivated by the victim’s gender, a Title IX legal
conclusion in this context would only be beneficial if all sexual assaults are necessarily
motivated by the victim’s sex, and this does not appear to be true. This case provides
evidence for that proposition, and its facts are hardly unique. It is an unfortunate reality
that athletic hazing, despite not being typically motivated by sexual desire, can become
sexually exploitive. See Susan P. Stuart, Warriors, Machismo, and Jockstraps: Sexually
Exploitive Athletic Hazing and Title IX in the Public School Locker Room, 35 W. New
Eng. L. Rev. 377, 384–87 (2013) (describing multiple incidents of team hazing that
involved sodomizing victims with foreign objects). It is difficult to find with certainty
that such sexual assaults in hazing are carried out “on the basis of sex.” For instance, as
is relevant here, although the upperclassmen sexually assaulted freshmen players, there
is little direct evidence their actions were motivated by their victims’ gender. It could be
the case that, given the right circumstances, the attackers would have hazed female
freshman players in a similar fashion. However, contemplating a harasser’s motive
inserts a difficult factual determination that must be grounded in common sense and
social experience, and as a result the issue is not easily or helpfully reduced to formulaic
legal conclusions. Instead, if a reasonable inference of discrimination can be drawn from
the evidence, a fact finder should resolve the question. Id. In the context of sexual
assaults in hazing, a jury could reasonably infer the attack was motivated by an
undercurrent of social dynamics that has a basis in the victim’s gender.
Sexually exploitative hazing in male athletics is based on the victim’s gender if the
acts have the intended goal of “diminish[ing]” the victim’s “masculinity” or male
identity. Stuart, supra, at 387. For instance, sexual assaults in hazing can have “the
purpose of feminizing and homosexualizing recruits to establish and reaffirm their
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position at the bottom of the team’s heteromasculine hierarchy.” Id. (quoting Eric
Anderson et al., Male Team Sport Hazing Initiaitons in a Culture of Decreasing
Homohysteria, J. Adolescent Res., July 4, 2011, at 5, available at
http://www.ericandersonphd.com/journal-articles.php). Indeed, when Doe was asked
why he believed he was raped, it appeared that this was his understanding when he said:
“[the attacker] … tried to make me feel like less than a man, less than him.” [Doc. 141 at
5].3 As such, when faced with an incident of sexual assault in the context of hazing, it is
not unreasonable for a jury to infer that the purpose of the attack has a basis in the
victim’s sex. See Gustine, 678 F. Supp. 2d at 1027 (involving a hazing incident in which a
Title IX plaintiff was sodomized with an air pump) (holding “a reasonable jury could
find the alleged” acts “were based upon [the victim’s] sex”).
Here, after considering the “constellation of surrounding circumstances” of the
team hazing—including the sexual assaults, Doe’s rape, and the gendered comments
accompanying the freshman beatings—a reasonable jury could conclude Doe and Roe
were indeed harassed, and further justifiably infer that their harassment occurred on the
basis of their sex. Davis, 526 U.S. at 633. Ultimately, the issue involves a material
question of fact. As such, summary judgment—in either direction—would not be
appropriate. Accordingly, on this issue, the Department’s [Doc. 177] and Plaintiffs’ [Doc.
178] Motions for Summary Judgment are DENIED.
3Excerpt from Doe’s Deposition: “Q … “Was [Student B] homosexual?” “A No. Not that I knew of.” “Q So I
guess that’s where I’m going with this question of is this sexual in nature. Was he doing this as a sexual act
against you?” “A No. I feel like he tried to make me – belittle me. Like tried to make me feel like less than
a man, less than him.” [Doc. 178-2 at 122].
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b. Deprivation of Educational Benefits
Under Davis, damages are not available for all instances of sexual harassment.
An aggrieved Davis plaintiff, instead, has an additional hurdle and must establish he or
she suffered sexual harassment that was “so severe, pervasive, and objectively
unreasonable … that [it] undermine[d] and detract[ed] from the victims’ educational
experience, that the [student was] effectively denied equal access to an institution’s
resources and opportunities.” Davis, 526 U.S. at 651. The Court imposed this
requirement to guard against the imposition of “sweeping liability.” Id. at 652. Students
“may regularly interact in a manner that would be unacceptable among adults,” but
“damages are not available for simple acts.” Id. at 651–52 Rather, sexual harassment
must be “sufficiently severe” to be actionable under Title IX. Id. at 650. Further, circuit
precedent limits evidence under this element to instances of the plaintiff’s own personal
harassment, meaning Davis plaintiffs cannot meet their burden by relying on the
harassment of other students. Pahssen, 668 F.3d at 363.
In Doe’s case, this element is undoubtedly met. After his rape, Doe needed
lifesaving, emergency surgery to repair his perforated bladder and rectal wall.
Thereafter, he was hospitalized for six days, including Christmas. [Doc. 178-2 at 131].
After his discharge, Doe was bed bound for one month; he faced a lengthy recovery,
which included him not being able to eat or use the bathroom, and he had to re-learn
how to walk. [Doc. 185 at 9]. Doe asserts he did not fully physically recover from his
injuries until September 2016, and to this day still feels physical pains related to the
rape. [Id. at 10]. Further, Doe never returned to OHS after his rape, likely due to
embarrassment. [See Doc. 185-4 at 14 (Doe: “[I]f I would’ve returned back to Ooltewah,
a lot of people already knew who I was, they would’ve wanted to know, you know,
22
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exactly want happened (in reference to the rape). So I [made the choice] to [go to] a
different school.”].
Doe’s choice to transfer schools following his rape necessarily inserts a factual
question regarding whether the deprivation was causally related to his harassment. See
Gustine, 678 F. Supp. 2d at 1028. However, even with that factual issue aside, it can be
legally presumed when a plaintiff is hospitalized resulting from harassment arising out
of a school operation, the student’s harassers “undermine[d] and detract[ed]” from his
or her “educational experience.” Davis, 526 U.S. at 651; see also Gustine, 678 F. Supp.
2d at 1028 (holding hospitalization is demonstrable evidence of educational deprivation
(citing Murrell v. School Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1248–49 (10th Cir.
1999))). Further, “severe” physical injuries that require hospitalization necessarily result
in a student’s exclusion from continued participation in an ongoing school operation. Id.
For instance, Doe’s rape injuries prevented access to OHS “resources and opportunities”
in an objective, physical way. Id. Due to his hospitalization, he was unable to participate
in the remainder of the holiday basketball tournament—or participate in basketball in
any capacity for some time afterward, for that matter. It is beyond reasonable dispute
that Doe’s rape was a but-for cause of this deprivation. His attackers, therefore,
empirically deprived him of the full benefit of extracurricular educational opportunities.
As such, it can be concluded as a matter of law that Doe’s rape was “severe” and
“objectively offensive” harassment that deprived him of “institutional resources and
opportunities” at OHS and “undermine[d] and detract[ed] from [his] educational
experience.” Davis, 526 U.S. at 651; see also Vance v. Spencer Cty. Pub. Sch. Dist., 231
F.3d 253, 259 (6th Cir. 2000) (holding in some instances a single incident of
harassment “can satisfy a [Title IX claim”); Soper, 195 F.3d at 855 (holding rape
23
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“obviously qualified as severe, pervasive, and objectively offensive sexual harassment
that could deprive [a student] of access to the educational opportunities provided by [a]
school.”).
Unlike Doe, Roe was never hospitalized as a result of his sexual assault. Similar to
Doe, however, Roe transferred to another school following the Gatlinburg incident.
[Doc. 185-6 at 11]. After his assault, Roe tried to attend OHS for a short time, and he
even continued to compete on the school’s varsity basketball team until the season was
canceled as a result of the Gatlinburg incident. However, during this time the friends of
Roe’s attackers harassed Roe at school by “calling [him] names,” telling him his sexual
assault “wasn’t that big of a deal,” and at times threatening him. [Doc. 178-1 at 206].
Roe claimed this harassment made it difficult for him to continue attending OHS, so he
decided to transfer to another school. [Id.]. Roe’s harassment by his attacker’s friends
was a form of secondary harassment that is hardly unique to this case. For example, in
Doe v. East Haven Bd. of Educ., a fourteen-year-old female student was allegedly raped,
outside of school operations, by two male classmates. 200 F. App’x 46, 48 (2d Cir.
2006). After the allegations became public and the plaintiff returned to school, she was
harassed for weeks by “other, primarily female, students,” which included “verbal
abuse” such as being called: “’[a] slut, a liar, a bitch, [and] a whore.’” Id.4 Further, she
would often “see her rapists at school.” Id. Because of the name calling and the presence
of her rapists, the plaintiff would skip classes and otherwise spend time at school in a
private, secluded room, which the school had provided her. Id. The Second Circuit found
4The Second Circuit recognized “name-calling in school which implicates a student’s sex does not in itself
permit an inference of sex-based discrimination,” see also supra part (a) (finding the same), but found
“we cannot exclude the possibility that such name-calling in the context of a reported rape constitutes
sexual harassment.” Id. As such, the court found a reasonable fact finder could conclude the secondary
harassment, in itself, was actionable sexual harassment under Title IX, if causally related to the plaintiff’s
rape. Id.
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based on those facts “a reasonable fact-finder could conclude that [the plaintiff] was
subjected to a disparately hostile educational environment that deprived her of
educational benefits and opportunities.” Id. (emphasis added). The Court finds the East
Haven court’s analysis persuasive here. Based on these facts, a reasonable fact finder
could conclude Roe’s post-assault harassment was: causally related to his sexual assault,
deprived him of educational opportunities and resources at OHS, and caused him to
transfer to another school. As such, the Department’s Motion for Summary Judgment
[Doc. 177] on this issue is DENIED. Further, because genuine issues of material fact
surround Roe’s alleged deprivation, the Court finds the Plaintiffs’ Motion for Partial
Summary Judgment [Doc. 178] on this issue should also be DENIED.
2. Actual Knowledge
To prove a claim under Davis, a plaintiff must establish the defendant school
system had actual knowledge of the plaintiff’s sexual harassment. This actual knowledge
requirement is an essential element of a Davis claim. With Davis, it was not the
Supreme Court’s intent to broadly construe Title IX to hold schools vicariously liable for
their students’ actions, or create a federal educational negligence claim by making
schools liable when it failed to act to prevent student harassment it “should have
known” about. Davis, 526 U.S. at 642 (emphasis in original); Winzer v. Sch. Dist. for
City of Pontiac, 105 F. App'x 679, 682 (6th Cir. 2004) (holding the Sixth Circuit has
declined to adopt a "constructive-knowledge standard" under Title IX). Rather, liability
under Davis derives from a school’s own conduct, particularly a decision to not act in
fulfilling Title IX duties to prevent severe forms of student-on-student sexual
harassment, and that duty is triggered upon actual notice of such harassment. Id.
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Applying the actual notice standard under Davis is ultimately a matter of who
knew what and when. This presents even further questions, however. Starting with the
who, obviously school systems are not natural persons capable of personal knowledge.
As such, if a school district can be said to have “actual knowledge” of harassment, it
follows that it is imputed from one of its agent’s knowledge. But what sort of agent is
capable of imputing notice to the Department in this context? Is the knowledge of a
school administrator required? Or is a teacher’s knowledge sufficient? Is the knowledge
of a non-teaching staff member, such as a nurse, janitor, or cafeteria worker enough?
The dissenters in Davis criticized the Court for not addressing this question. Id. (“The
majority’s … [actual knowledge] standard begs the question: known to whom?”
(Kennedy, J., dissenting)).
For reasons that will be discussed infra, the Court finds the knowledge of Coach
Montgomery is essential to the viability of Doe and Roe’s claims. At a minimum, a
person capable of imputing knowledge to a school system—what the Gebser court
referred to as an “appropriate person,” 524 U.S. at 290—must have been entrusted with
the school’s “disciplinary authority” over students. See Davis, 526 U.S. at 647. The crux
of the actual knowledge element in this case, then, depends on whether Coach
Montgomery was an “appropriate person.” In Gebser suits, which involve Title IX claims
for teacher-on-student sexual harassment, an “appropriate person” capable of imputing
knowledge is defined as “an official who at a minimum has authority to address the
alleged discrimination and to institute corrective measures.” 524 U.S. at 290. It appears
the same reasoning applies in a Davis case. See Tumminello, 678 F. App’x at 286
(applying Gebser’s appropriate person standard in a Davis case); but see Stiles, 819 F.3d
at 848 (“Actual knowledge requires only that a single school administrator with
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authority to take corrective action had actual knowledge of the sexual harassment.”
(emphasis added) (citing Gebser)).5 Extending Gebser’s rule here, a school agent with
the authority to discipline students and prevent and correct known harassment is an
“appropriate person” whose knowledge can be imputed to the Department. However,
some courts do not agree with that straightforward rationale. For example, the Eleventh
Circuit has added an additional condition to this test and held that an “appropriate
person” must also be one that is “high enough up the chain-of-command that his acts
constitute an official decision by the school district itself not to remedy the misconduct.”
Floyd v. Waiters, 171 F.3d 1264, 1264 (11th Cir. 1999) (involving Gebser claim). When
applying that test in the Davis context, the Eleventh Circuit has found a teacher’s aide is
not an appropriate person capable of imputing knowledge to a school. Hill v. Cundiff,
797 F.3d 948, 971 (11th Cir. 2015). As to “whether notice to a teacher constitutes actual
knowledge on part of a school board,” the Eleventh Circuit has found it to be an “open
question.” Hawkins v. Sarasota Cty. Sch. Bd., 322 F.3d 1279, 1286 (11th Cir. 2003). By
contrast, the OCR has applied a more liberal standard, and has held an appropriate
person includes not only school agents with the authority to discipline students but also
any employee that “has the duty to report” harassment to an “appropriate school
official.” Request for Comment, 65 Fed. Reg. 66092-01, 66102 (Nov. 2, 2000). As
examples, the OCR listed “campus security, bus driver … or staff in the office of student
affairs.” Id.
Here, Coach Montgomery was not only the basketball team’s head coach, he was
also a teacher at OHS. [Doc. 185-11 at 10]. However, even then, his role on the school
5 While Stiles’s rule does hold that the actual knowledge of a single school “administrator” is sufficient, it
is silent on whether an administrator’s knowledge is necessary. See 819 F.3d at 848.
27
5874
trip went beyond his regular duties. The Department, acting outside of its regular scope,
committed itself to the supervision of students on a multiple day trip, including an over
two-and-a-half hour journey and overnight stays. In this undertaking to see to the
welfare of the players on a days-long trip, the Department vested the responsibility
chiefly in one man, Montgomery, although Assistant Coach Williams helped him
supervise the team. [Doc. 185 at 5]. There Montgomery was not simply acting as an
educator or basketball coach, but as a caretaker and guardian entrusted with the players'
well-being, including providing meals, shelter, transportation, and even washing their
clothes [see Doc. 185 at 7]. Far from school campus and outside of normal school
operating hours, Montgomery was not merely a cog in a larger educational bureaucracy,
expected to push harassment problems up the chain of command. Instead, the
Department had at least implicitly commissioned him with its full authority to take
appropriate disciplinary actions during the trip. Further, in Gatlinburg, he had near
autocratic power to dictate the conduct in the cabin, including, for instance, the ability
to assign where players slept and what time they went to bed. While acting in this role,
Montgomery unquestionably had the authority to address, correct, and prevent student-
on-student sexual harassment. As such, the Court finds Montgomery was an
“appropriate person” while in his capacity as a supervisor and his knowledge can be
imputed to the Department.
Because Montgomery was an “appropriate person” under the facts, it must next
be determined what he knew prior to Doe and Roe’s sexual attacks, and whether it
constitutes actual knowledge. “It is difficult to define what kind of notice is sufficient”
under Title IX. Gustine, 678 F. Supp. 2d at 1029 (quoting Tesoriero v. Syosset Cent. Sch.
Dist., 382 F. Supp. 2d 387, 397 (E.D.N.Y. 2005)). Plaintiffs point to two sources of
28
5875
information that should have provided Montgomery with actual notice of “severe,
pervasive, and objectively unreasonable” sexual harassment occurring on the basketball
team. [Doc. 192 at 6]. First, Plaintiffs claim Montgomery knew of the freshman rackings
(the generalized, presumably non-sexual hazing that occurred prior to the Gatlinburg
trip), and that the knowledge provided him actual notice of the later severe sexual
harassment. [Id.]. Secondly, Plaintiffs point to Doe and Roe’s attackers’ disciplinary
history and claim it sufficiently provided actual notice of their propensity to engage in
sexual harassment. [Id.]. The Court finds neither argument is persuasive. Each will be
discussed in turn.
Plaintiffs present multiple examples of Montgomery’s knowledge of the rackings,
all of which were conclusions reached in an independent report commissioned by the
school. [Docs. 183 at 9, 185 at 4, & 192 at 8 (citing the independent report)]. First,
Montgomery’s office was adjacent to the boys' locker room, where the rackings often
occurred. Plaintiffs claim “it [is] ‘unlikely that he would not hear the players banging
around’” next door. [Doc. 185 at 4 (quoting the independent report)]. Two months prior
to the Gatlinburg incidents, a player's mother complained that her son had been hazed.
[Id. at 2]. Further, Montgomery encountered physical evidence of roughhousing, such as
a broken television that Plaintiffs allege was collateral damage in a racking skirmish. [Id.
at 4]. It is also asserted that Montgomery, on several occasions, walked into the locker
room to find the players inside with the lights turned off (supposedly the lights were off
in relation to freshman beatings), and Montgomery would often say "stop the horseplay"
and turn on the lights. [Id. at 4–5]. Finally, Plaintiffs proffer the basketball players
discussed the rackings in front of Montgomery, and he would occasionally punish
upperclassmen for known hazing. [Id.]. For example, he made one player run “suicides,”
29
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supposedly as punishment for participating in rackings. [Id.]. It is not apparent how this
scatter shot of speculative and seemingly unrelated evidence amounts to an “inevitabl[e]
… conclusion” that Montgomery had pre-assault, actual knowledge of “severe” sexual
harassment. [Doc. 183 at 9]. But even if he were aware, Plaintiffs face another obstacle.
The crux of Plaintiffs' argument depends on whether lesser forms of non-sexual
hazing can provide notice for serious forms of sexual harassment. To support the
proposition, Plaintiffs point to Mathis v. Wayne Cty. Bd. of Educ., 782 F. Supp. 2d 542
(M.D. Tenn. 2011). [Doc. 192 at 7]. The Mathis case, discussed supra, involved an attack
similar to this case in which players on an eighth grade boys' basketball team held down
a teammate and anally penetrated him with a magic marker. Mathis, 782 F. Supp. 2d at
546. On the issue of actual knowledge prior to the marker incident, Judge Trauger held
an “institution” can be held “liable” when it “possessed enough knowledge of the
harassment that it reasonably could have responded with remedial measures to address
the kind of harassment upon which plaintiff’s legal claim is based.” Id. at 550 (emphasis
added) (quoting Staehling v. Metro. Gov’t of Nashville and Davidson Cty., No. 3:07-
0797, 2008 WL 4279839, at *10 (M.D. Tenn. Sept. 12, 2008)). The prior “kind of
harassment” the court was referring to was a separate sexual assault nearly identical to
the marker incident underlying that case, with a major difference being the
instrumentality of penetration in the first assault was a pencil rather than a marker. Id.
There was evidence the coach had been aware of the pencil incident prior to the marker
incident. Id. When determining whether the knowledge of the pencil incident, combined
with another event sexual in nature and other “horseplay,” was sufficient to trigger
duties under Title IX, the Mathis court held a reasonable jury could conclude the coach
had “enough” knowledge to spur him into action to prevent further sexual harassment.
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Id. at 551.6 Relying on this case, Plaintiffs claim Montgomery’s alleged knowledge of the
rackings supports a legal conclusion that the Department had actual knowledge of
sexual harassment on the varsity boys basketball program prior to Doe and Roe's
assaults. [Doc. 192 at 6–8]. However, this assertion is wrong for two reasons. First,
there is no evidence from which a reasonable jury must conclude Montgomery was fully
aware of the rackings or their alleged severity. And secondly, even if he were aware,
knowledge of the non-sexual hazing does not constitute actual knowledge of the “kind of
harassment” underlying this case: the sexual assaults.
Prior to their sexual attacks, Students A, B, and C had past disciplinary problems,
which Plaintiffs claim put the Department on notice of their potential for sexual
harassment. Under Davis, actual knowledge can be derived from a harasser’s past
harassment. These past acts may provide a school notice if the conduct demonstrates a
pattern of and propensity for sexual harassment, even if prior harassing was not
directed toward the plaintiff specifically. See Gustine, 678 F. Supp. 2d at 1030
(collecting cases); see also Delgado v. Stegall, 367 F.3d 668, 672 (7th Cir. 2004) (“[I]n
Davis the Court required knowledge only of ‘acts of sexual harassment’ by the
[harasser]” (emphasis added)); Lopez v. Metro. Gov't, 646 F. Supp. 2d 891, 916 (M.D.
Tenn. 2009) (collecting cases) ("'[T]he Davis court did not limit Title IX liability to a
6 Plaintiffs also cite an Eleventh Circuit case that holds “lesser harassment may still provide actual notice
of sexually violent conduct, for it is the risk of such conduct that the Title IX recipient has the duty to
deter.” Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1258 (11th Cir. 2010). Broward County was
a Gebser case involving a high school teacher’s alleged sexual assault of his fifteen-year old student, the
plaintiff. Id. at 1250. Prior to him sexually assaulting the plaintiff, two students on separate occasions had
complained that the teacher had sexually harassed them. Id. 1250–53. The Broward court found the two
prior complaints of sexual harassment were sufficient to satisfy the plaintiff’s “burden of raising a
material issue of fact on the issue of actual notice.” Id. at 1259. The court reasoned a fact finder could view
the prior complaints collectively and find it “provided actual notice … of a pattern of sexual harassment
and a series of related allegations occurring over a period of nine months in [the teacher’s] classroom.” Id.
Accordingly, the “lesser harassment” referred to in Broward was not generalized hazing or horseplay, but
prior allegations of sexual harassment. See id.
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federal education funding recipient's knowledge of, and deliberate indifference to, the
alleged harassment of a particular individual, but instead contemplated that Title IX
claims could be based on the recipient's knowledge of, and deliberate indifference to, a
particular harasser's conduct in general.'" (quoting J.K. v. Arizona Bd. of Regents, No.
CV06-916-PHX-MHM, 2008 WL 4446712, at *14 (D. Ariz. 2008)). Plaintiffs point to a
whole host of student behavior it claims put the Department on notice for the potential
of sexual harassment at OHS. For instance, Plaintiffs broadly focus on school wide,
generalized bullying that often occurred at OHS, what they claim was a "bullying
epidemic." [Doc. 179 at 7]. However, knowledge of general bullying among various
students—which has likely occurred to some degree in every school since there were
schools—falls far short of providing actual notice of on-going student-on-student sexual
harassment or its potential. Outside of generalized bullying, Plaintiffs do point to a few
prior acts specific to Doe and Roe’s attackers. For example, it is asserted Student A had
previously been disciplined for bullying and “rough housing.” [Doc. 185 at 6]. Likewise,
Student B “had been officially reprimanded for engaging in sexually inappropriate
behavior, ‘horseplay,’ and misconduct that warranted suspending him for three OHS
basketball games.” [Id.] And Student C “was formally disciplined by the school system
for fighting and possessing an adult video on his phone.” [Id.]. Despite Plaintiffs’
reliance on these disciplinary events, they are not prior acts of sexual harassment
sufficient to put the Department on notice. Obviously, the fighting, “horseplay,” “rough
housing,” and bullying say little about a person’s propensity for sexual harassment and,
as such, cannot provide actual knowledge of conduct covered by Title IX. Further, the
other incidents, the events cited as being “sexual” in nature, are likewise insufficient
because Plaintiffs fail to demonstrate how the conduct is associated with sexual
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harassment, and if the information was demonstrably linked to covered conduct, it is
otherwise stale. For instance, Student B’s prior “sexually inappropriate behavior” refers
to a 2011 incident, four years prior to the Gatlinburg assaults, in which a then fourteen-
year-old Student B and two other boys told jokes with phallic innuendos. [Doc. 185-16 at
3]. This event hardly gave the Department notice that Student B was a potential sexual
harasser. Further, a pornographic video was found on Student C’s cellphone in 2013,
two years prior to the Gatlinburg attacks. Nevertheless, Student C was not caught
watching the video while at school or showing it to classmates, which could possibly
demonstrate a propensity for a troubling sexual perversion. Rather, school officials were
investigating Student C’s cellphone after he used it to record a school fight when they
stumbled on to the adult video on his phone. [Doc. 185-17 at 4]. These events do not
support a conclusion that the Department had actual knowledge that Doe and Roe's
attackers were sexual assault risks, and as such, they fail to support Plaintiffs burden.
Although this and the non-sexual hazing are insufficient, other evidence in the record
can suffice.
The facts surrounding the Gatlinburg incidents support an inference of actual
knowledge. A rational fact finder could conclude from the evidence that Coach
Montgomery knew about team sexual assaults prior to Doe and Roe's attacks, and
therefore had actual knowledge. As an initial matter, it appears upperclassmen sexually
assaulting freshman with pool cues was not a new or novel practice for the team. For
example, prior to the sexual assaults, Student A told Doe that in years past "upper
classmen had ... 'used the pool sticks on him,'" and Doe overheard the upperclassmen
joking about using the cues. [Doc. 179 at 4]. Depending on whether Montgomery was
present during these statements, they may be admissible for the non-hearsay purpose of
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demonstrating Montgomery's knowledge. See In re Morrison, 555 F.3d 473, 483 (5th
Cir. 2009). Further, at the cabin, Montgomery claimed the walls were thin and that he
was able to hear the players downstairs, including even their conversations. [Doc. 185 at
8]. On December 20th, Students A, B, and C held down their first victim, Student F, and
used a pool cue to simulate sodomy on him. [Doc. 185 at 7]. Throughout this ordeal,
Student F screamed. [Id.]. If Montgomery was able to hear the players' conversations
while upstairs, it follows he should have been able to hear their screams and scuffles as
well. After Student F's attack, Students A and B wrestled Roe to the ground and again
simulated sodomy with a pool cue while yelling "take it like a man" and "don't be a
pussy," and like Student F, Roe screamed. [Id.]. The next day, Student H was similarly
attacked and also screamed. [Id.]. During this attack, Doe was sitting on the cabin stairs,
near the upstairs area where Montgomery was at the time, and Doe could clearly hear
Student H's screams. [Id. at 8]. Likewise, on the following day, Roe was standing near
the top of the stairs with Assistant Coach Williams just prior to Doe's rape. [Id. at 8].
From that vantage point, Roe could see Students A, B, and C carrying a pool cue and
pushing Doe into a room. [Id.] He told Assistant Coach Williams what he saw. [Id.].
Williams did not intervene, Doe was raped, and Roe could hear his screams from where
he was standing. [Id. at 8]. In sum, the attacks occurred daily. During the attacks, the
attackers verbally badgered their victims, who screamed and attempted to fight off their
assailants. These surely were not subtle events. When considered in the context of
Montgomery's claim that he could hear the players while upstairs, a reasonable fact
finder could deduce Montgomery had actual knowledge of the sexual assaults at some
point prior to Doe and Roe's attack. As such, the Department's Motion for Summary
Judgment [Doc. 177] will be DENIED on this issue. On the other hand, the Court finds
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this is a close factual question; reasonable minds could reach different conclusions
based on the evidence. In these situations, summary judgment is not appropriate in
either direction. Accordingly, Plaintiffs' Motion for Partial Summary Judgment is
likewise DENIED.
3. Deliberate Indifference
Title IX imposes liability on federal education funding recipients if it "subject[s]"
persons to discrimination "on the basis of sex." 20 U.S.C. § 1681. Because liability only
results when the recipient can be said to have "subjected" "persons" to sexual
discrimination, there must action—or inaction in the face of a duty—on the part of the
funding recipient, and further, this conduct must have played some causal role in the
victim's discrimination. In the Davis context, liability extends when a school is
deliberately indifferent to student-on-student sexual harassment. Davis, 526 U.S. at
648. A school is deliberately indifferent to student-on-student sexual harassment "only"
when its "response to the harassment or lack thereof is clearly unreasonable in light of
the known circumstances." Davis, 526 U.S. at 648 (emphasis added). It is "clearly
unreasonable," for example, for a school to make "no effort whatsoever either to
investigate or put an end to [known] harassment." Id. at 654. Further, to satisfy the
causation requirement under Title IX, "the deliberate indifference must, at a minimum,
‘cause [students] to undergo’ harassment or ‘make them liable or vulnerable’ to it.”
Vance, 231 F.3d at 260 (quoting Davis, 526 U.S. at 645).
When a case is based on a sexual attack, liability for deliberate indifference can
"flow from two ... time periods." Lopez, 646 F. Supp. 2d at 917–18. Title IX liability can
arise from either:
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(a) when a school exhibits deliberate indifference before a harassing attack
on a student … in a way that makes the student more vulnerable to the
attack itself; or (b) when a school exhibits deliberate indifference after an
attack, that causes a student to endure additional harassment.
Id. Plaintiffs assert there was both pre-assault and post-assault deliberate indifference
here. These assertions will be examined in turn.
a. Pre-Assault Deliberate Indifference
The issue of pre-assault deliberate indifference in this case turns on the factual
question regarding whether Coach Montgomery had actual knowledge of the sexual
assaults prior to each of the Plaintiffs' particular assaults. If there was no actual
knowledge, then Montgomery, and the Department by proxy, cannot be said to have
been deliberately indifferent to what was not known. However, assuming a fact finder
does conclude Montgomery had knowledge, he was certainly deliberately indifferent.
Under those circumstances, his conduct is the model example of "clearly unreasonable"
conduct, because he made "no effort whatsoever either to investigate or put an end to
the harassment." Davis, 526 U.S. at 654. Further, if true, this clearly unreasonable
conduct left Doe and Roe vulnerable to sexual assault and is causally related to their
attacks.
b. Post-Assault Deliberate Indifference
The Roe Plaintiffs also claim the school was deliberately indifferent following
Roe's assault. [Doc. 183 at 12]. It is alleged that officials did not notify Roe's parents
about his assault until he was on his way home, that the Department never offered "any
explanation, comfort, or counseling," and Principal Jarvis, in particular, never reached
out to Roe's family or recognized him as a victim. [Id. at 12–13].
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Before delving into Roe's assertions, it is helpful to first explain what deliberate
indifference is not. First, it is not a negligence standard. See Doe v. Claiborne Cty.,
Tenn., 103 F.3d 495, 508 (6th Cir. 1996). Deliberate indifference "does not mean a
collection of sloppy, or even reckless, oversights." Id.; see also Doe on Behalf of Doe v.
Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998) ("Actions and decisions by
officials that are merely inept, erroneous, ineffective, or negligent do not amount to
deliberate indifference.") It "does not mean that recipients can avoid liability only by
purging their schools of actionable peer harassment." Vance, 231 F.3d at 260 (quoting
Davis, 526 U.S. at 648). The standard is not an open invitation for courts, which are
often unacquainted with the realities of and constraints on school discipline, to "second-
guess[]" school actions with the benefit of hindsight. Davis, 526 U.S. at 648. Further, it
is important to keep in mind that Title IX does not mandate "particular disciplinary
action[s]," and the law does not entitle victims to a "right to make particular remedial
demands." Id. Instead, Title IX simply requires that schools not act clearly unreasonably
toward known student-on-student sexual harassment. See also Patterson v. Hudson
Area Sch., 551 F.3d 438, 451–52, 456 (6th Cir. 2009) (Vinson, J., dissenting).
The Department did not act with deliberate indifference following the sexual
assaults. After Doe's rape, the assailants, Students A, B, and C, were separated from the
other players, they were then taken back to Ooltewah as soon as was practical, later all
three were removed from the team, and ultimately all were suspended from OHS. [Doc.
177-1 at 22]. As a result, Doe and Roe and the assailants never came into contact during
school operations ever again. [Id. at 23]. The Department hired an attorney, Courtney
Bullard, to conduct an investigation into the Gatlinburg incidents on March 22, 2016,
less than three months after the event. [Doc. 182-11 at 1]. These actions are not "clearly
37
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unreasonable," and as such, the Department was not deliberately indifferent following
the sexual attacks. See Davis, 526 U.S. at 649 ("[T]here is no reason courts … could not
identify a response as not 'clearly unreasonable' as a matter of law."). On the other hand,
the Court does find it troubling that after Doe's attack Coach Montgomery allegedly told
Doe, Roe, and another freshman, who had been assaulted, to keep the assaults "on the
low" and to not "let this get out." [Doc. 185 at 8]. If true, the statements are clearly
unreasonable, but Plaintiffs do not allege any further harassment arising from these
statements. So, Title IX liability does not flow from the actions standing alone. Likewise,
although perhaps Principal Jarvis should have contacted the affected families personally
following the Gatlinburg incidents, Title IX does not impose financial liability on school
for the moral blunders or social faux pas committed by its administrators. Accordingly,
Principal Jarvis’ failure to be conciliatory following the attacks does not constitute
deliberate indifference as defined by Title IX.
To be clear, Roe did experience harassment following his sexual assault, see
supra part III.A.1.b, but there is no evidence that he reported this to school officials or
that the school otherwise had actual notice of his post-assault harassment. As such, the
harassment cannot support a post-assault deliberate indifference claim. The harassment
is, however, causally related to his sexual assault and is more properly characterized as
damages resulting from the Department's pre-assault deliberate indifference, not
evidence of post-assault indifference.
Having found the Department did not act with deliberate indifference following
the sexual assaults, Plaintiffs' Motion for Partial Summary Judgment [Doc. 178] will be
DENIED. Further, because the Department was not deliberately indifferent following
the assaults, its Motion for Summary Judgment [Doc. 177] is GRANTED in part, in
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respect to post-assault deliberate indifference allegations. However, with respect to the
pre-assault deliberate indifference, because genuine issues of material fact remain, the
Department's Motion for Summary for Judgment is DENIED on that issue.
B. Section 1983 Claims
Plaintiffs allege Doe’s and Roe’s constitutional rights were violated and assert
claims under 42 U.S.C. § 1983 (“§ 1983”) for relief against all Defendants on various
grounds. In particular, they claim the Individual Defendants were deliberately
indifferent to known sexual harassment and that Defendants failed to protect Doe and
Roe in violation of their substantive due process rights. Additionally, it is asserted the
Department failed to adequately train its staff and that this failure resulted in
constitutional injuries to Doe and Roe.
1. Individual Defendants and Marsha Drake
Plaintiffs claim the events giving rise to this action violated their constitutional
rights. Doe's and Roe's injuries directly resulted from sexual attacks committed by their
teammates. Under 42 U.S.C. § 1983, only state actors can violate the Constitution, and
the actions of private persons do not support claims for constitutional deprivations,
generally speaking. This creates difficulty for plaintiffs asserting constitutional
violations arising out of peer harassment, like in this case. As a general rule, students
are not state actors. Mathis, 782 F. Supp. 2d at 551. There are, however, caveats to the
state action rule. Plaintiffs claim two are relevant here. First, the Equal Protection
Clause supports claims arising from peer harassment under certain circumstances.
Stiles, 819 F.3d at 851. Similarly, a claim against state officials for injuries caused by
private actors can lie under the "substantive" component of the Due Process Clause,
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although those grounds are limited. DeShaney v. Winnebago Cty. Dep't of Soc. Servs.,
489 U.S. 189, 195 (1989).
Claims for unconstitutional gender discrimination in schools can be supported by
§ 1983. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 256 (2009). Under § 1983,
“a plaintiff must set forth facts that, when construed favorably, establish (1) the
deprivation of a right secured by the Constitution or laws of the United States (2) caused
by a person acting under color of state law.” Doe v. Miami Univ., 882 F.3d 579, 595 (6th
Cir. 2018). Further, a plaintiff has to overcome another obstacle, the defendant’s
qualified immunity. Dominguez v. Cor. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009).
To do so, the plaintiff must show: (1) the defendant’s act violated a clearly established
right that a reasonable person would have known of at the time of the incident, and (2)
evidence that shows what happened “was objectively unreasonable in light of the clearly
established constitutional right.” Andrews v. Hickman Cty. Tenn., 700 F.3d 845, 853
(6th Cir. 2012). If a plaintiff fails to demonstrate a constitutional violation or overcome
the defendant’s qualified immunity, the claim fails. Pearson v. Callahan, 555 U.S. 223,
237 (2009). In analyzing these issues, district courts are accorded discretion in choosing
which of these necessary elements it analyzes first. Id.
Under § 1983, a government official is only “liable for his or her own
misconduct.” Marcilis v. Township of Redford, 693 F.3d 589, 596 (6th Cir. 2012). “A
defendant cannot be held liable under section 1983 on a respondeat superior or
vicarious liability basis.” Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996).
Consistent with this, a plaintiff must point to facts “that demonstrate what each
defendant did to violate the asserted constitutional right.” Heyne v. Metro. Nashville
Pub. Sch., 655 F.3d 556, 565 (6th Cir. 2011) (emphasis in original). Plaintiffs assert §
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1983 claims against four individuals: Montgomery, Assistant Principal/Athletic Director
Jess Naydley (“Naydley”), Principal James Jarvis (“Jarvis”), and Roe asserts a claim
against Marsha Drake (“Drake”). Each will be examined in turn.
2. Coach Montgomery
Plaintiffs assert Montgomery violated Doe's and Roe's constitutional right to
equal protection of the law and due process of the law.
a. Equal Protection
The Plaintiffs allege Montgomery violated Doe's and Roe's constitutional right to
equal protection under the law. The Equal Protection Clause of the Fourteenth
Amendment holds, in relevant part, that: “[n]o state shall … “deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The circuit
has settled on how those equal protection claims should proceed in student-on-student
harassment cases.
The Sixth Circuit recognizes two methods of proving an equal protection

violation based on a school official's response to peer harassment: (1)
disparate treatment of one class of students who complain about bullying
as compared to other classes of students, see Soper v. Hoben, 195 F.3d
845, 852 (6th Cir.1999), and (2) deliberate indifference to discriminatory
peer harassment, see Shively v. Green Local Sch. Dist. Bd. of Educ., 579
Fed.Appx. 348, 356–57 (6th Cir.2014) …
Stiles, 819 F.3d at 851–52.
i. Disparate Treatment Claim
Plaintiffs are proceeding on both grounds mentioned. Under the first of those, a
disparate treatment claim, a plaintiff must show the state actor enforced policies in a
way that had a disparate effect regarding a suspect class, such as gender. Further, the
plaintiffs must show that the disparate impact was motivated by the state actor's
discriminatory intent. Soper, 195 F.3d at 852 ("the [plaintiffs] must establish that the
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[school] treated the complaints [regarding sexual harassment] differently because of,
not merely in spite of, the harmful [disparate] effect that such treatment would have.");
see also Washington v. Davis, 426 U.S. 229 (1976); Shively v. Green Local Sch. Dist.
Bd. of Educ., 579 F. App'x 348, 357 (6th Cir. 2014) (“[P]laintiffs must show either that
the defendants intentionally discriminated or acted with deliberate indifference.”).
Plaintiffs assert "OHS went to great measures to address bullying of girls at the school,"
but "[n]o such measures were taken with respect to violence and harassment on the
boys' varsity basketball team." [Doc. 184 at 5]. However, this is insufficient evidence for
a disparate treatment claim for two reasons. First, the allegation is not particular to any
defendant in this case, so it has little value in evaluating a § 1983 claim. Further, the
assertion is insufficient standing alone because Plaintiffs have not proffered evidence
showing that the disparate treatment was motivated by discriminatory intent. See
Soper, 195 F.3d at 852. In sum, Plaintiffs’ disparate treatment claims are unsupported,
and there is no genuine issue for trial on that issue.
ii. Deliberate Indifference
As it relates to Montgomery, the equal protection allegations are more
appropriately applied as a deliberate indifference claim. To make out a claim for
deliberate indifference under the Equal Protection Clause, a plaintiff has to first
demonstrate "he was subjected to discriminatory peer harassment" based on his status
in a suspect class. Id. at 852 (citing Williams v. Port Huron Sch. Dist., 455 F. App’x 612,
620 (6th Cir. 2012)). Second, the plaintiff must demonstrate the "school official[]
responded to the discriminatory peer harassment with deliberate indifference." Id.
Plaintiffs correctly point out that the standard for deliberate indifference under equal
protection is “substantially the same” as it is under Title IX. Id. That is, the official
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responded to known discriminatory harassment "in a manner clearly unreasonable in
light of known circumstances." Id.
Because equal protection's version of deliberate indifference is the same as it was
discussed supra under Title IX, the analysis does not change here. Plaintiffs assert their
harassment was gender-based. [Doc. 184 at 4]. As stated earlier, a jury could reasonably
infer Doe's and Roe's sexual assaults were a form of gender-based harassment. See
Shively, 579 F. App'x at 356 (analyzing equal protection deliberate indifference claim for
gender and religious discrimination). Likewise, if a jury were to draw the permissible
inference that Montgomery had actual knowledge of the assaults, his actions were
clearly unreasonable. Accordingly, a reasonable fact-finder in this case could find
Montgomery was deliberately indifferent to Doe's and Roe's gender-based harassment
in violation of their rights to equal protection. However, that is not the end of the
analysis.
If a constitutional violation is established, the plaintiff must overcome the
defendant's qualified immunity if raised. Montgomery has raised the defense here.
[Docs. 184 & 186 at 20–22]. “Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about open legal questions. When
properly applied, it protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011). To overcome qualified
immunity, the plaintiff must demonstrate the right allegedly violated was "clearly
established" at the time of the violation. Pearson, 555 U.S. at 236. "For a right to be
clearly established, the contours of the right must be sufficiently clear that a reasonable
official would understand what he is doing violates that right." Holzemer v. City of
Memphis, 621 F.3d 512, 527 (6th Cir. 2010). It is important to note, however, that
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"clearly established law should not be defined 'at a high level of generality.'" White v.
Pauly, —— U.S. ——, 137 S.Ct. 548, 552 (2017). Instead, the right “must be
'particularized to the facts of the case.’" Id. “[G]eneral statements of the law are not
inherently incapable of giving fair and clear warning to officers, but in the light of pre-
existing law the unlawfulness must be apparent.” Id. "[A] case on point" is not a
requirement, but "existing precedent must have placed the statutory or constitutional
question beyond debate." Mullenix v. Luna, ——U.S. ——, 136 S.Ct. 305, 308 (2015).
Indication that a right is clearly established can be in the form of a case with "controlling
authority or a robust consensus of cases of persuasive authority." Lattis v. Phillips, 878
F3d 541, 552 (6th Cir. 2017) (emphasis added).
To overcome Montgomery’s qualified immunity, Plaintiffs cite an unpublished
Sixth Circuit opinion, Shively, for its proposition that “the equal protection right to be
free from student-on-student discrimination is well-established.” 579 F. App’x at 358.
However, Plaintiffs make the common mistake of reading Shively’s qualified immunity
ruling too broadly. The Shively panel found school administrators “were not entitled to
qualified immunity” when they allowed “unregulated [student-on-student] religious and
gender-based persecution that spanned a four-year period.” Id. By contrast, the alleged
gender based harassment here lasted at most four days, not four years. See Doe v. Forest
Hills Sch. Dist., No. 1:13-cv-428, 2015 WL 9906260, at *14 (W.D. Mich. Mar. 31, 2015)
(distinguishing Shively’s qualified immunity holding as involving deliberate indifference
over a long duration). Shively is distinguishable on other grounds as well. The
defendants in that case were deliberately indifferent, “[d]espite being told repeatedly
about” the harassed student’s religious and gender-based harassment. Id. at 351.
(quoting the plaintiffs’ brief). Plaintiffs concede here no one reported the sexual assaults
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or the gender based harassment to Montgomery. Given this, it might not have been
“sufficiently clear” to a government agent at the time whether inaction to known but
unreported harassment constitutes deliberate indifference of a constitutional
magnitude. Under these circumstances, Montgomery is entitled to the protections of
qualified immunity, and the deliberate indifference claim against him is due to be
dismissed.
b. Substantive Due Process
The Fourteenth Amendment Due Process Clause holds that “[n]o State shall …
deprive any person of life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. Plaintiffs assert Montgomery violated Doe’s and Roe’s due process
rights by not intervening to prevent their sexual assaults at the hands of their
teammates. “But nothing in the language of the Due Process Clause itself requires the
State to protect the life, liberty, and property of its citizens against invasion by private
actors. The Clause is phrased as a limitation on the State’s power to act, not as a
guarantee of certain minimal levels of safety and security.” DeShaney v. Winnebago
Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). As a result, “generally” the Due
Process Clause “confer[s] no affirmative right to governmental aid, even where such aid
may be necessary to secure life, liberty, or property interests …” Id. at 196. On the other
hand, as with any general rule, there are exceptions. The “substantive component” of
due process imposes duty on the government and its agents to protect individuals in
carefully limited circumstances. The Court will consider two relevant exceptions to the
general rule here.
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i. Special Relationship
First, the state is obligated to protect an individual against harm by private actors
“where a ‘special relationship’ exists between the state and the private individual.”
Kallstorm v. City of Columbus, 136 F.3d 1055, 1066 (1998). The quintessential example
of a “special relationship” between a government and a person is when the government
obtains custody over the person. See id. Minor students in public schools are in some
sense committed to the state’s custody. However, not every instance of government
custody will constitute a special relationship. The relationship is a question of degree
and arises “from the limitation which [the state] has imposed on [the individual’s]
freedom to act on his own behalf,” “not from the State’s knowledge the individual’s
predicament or from [the state’s] expression of intent to help him.” DeShaney, 489 U.S.
at 200.
In this context, “the Sixth Circuit has consistently rejected the existence of a
special relationship between school officials and students based on compulsory
attendance laws or the school’s knowledge of a student’s vulnerability.” Stiles, 819 F.3d
at 854. Nonetheless, it could be argued Montgomery was not acting as merely a “school
official” in the typical school setting, but rather, due to his role as a supervising
chaperone on an overnight school trip, he was acting as the students’ care taker (e.g. he
was expected to provide them with: “food, clothing, shelter, medical care, and
reasonable safety”). Deshaney, 489 U.S. at 200; but see Lee v. Pine Bluff Sch. Dist., 472
F.3d 1026, 1031 (8th Cir. 2007) (holding band director had no special relationship duty
to provide medical care to student on school trip because the student voluntarily chose
to attend the trip). Putting those shrewd arguments to the side, the Court finds the
answer is irrelevant in resolving the claims at hand; qualified immunity bars recovery in
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any event. Pearson, 555 U.S. at 237 (holding courts are permitted to resolve a claim
under qualified immunity without reaching the claim’s underlying merits). Given the
Sixth Circuit’s consistent rejection of special relationships in the educational setting, the
contours of special relationships in this context are not “sufficiently clear” to have put
Montgomery on notice. Holzemer, 621 F.3d at 527. Further, the Plaintiffs have not
persuasively argued why Montgomery is not entitled to qualified immunity under this
theory. As such, they have failed to meet their burden of overcoming Montgomery’s
qualified immunity, and the special relationship claims will be dismissed.
ii. State-Created-Danger
The next circumstance that can give rise to a governmental due process
obligation to protect a person is known as the “state-created-danger” theory of liability.
Kallstrom, 136 F.3d at 1066. “Liability under the state-created-danger theory is
predicated upon affirmative acts by the state which either create or increase the risk that
an individual will be exposed to private acts of violence.” Id. If the government plays a
role in creating a situation that could give rise to an attack by private persons, it is
obliged to prevent such injury. See id. The focus, then, is not necessarily on later
governmental inaction, but rather on the initial act of creating a dangerous situation for
private violence. In other words, “[i]f the state puts a man in a position of danger from
private persons and then fails to protect him, it will not be heard to say that its role was
merely passive; it is as much an active tortfeasor as it if had thrown him into a snake
pit.” Id. (quoting Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1983) (J. Posner,
writing)). However, there are an infinite number of innocuous government activities
that could increase a person’s risk for danger from private attacks. For example, if a city
plants a shrub in the park, a mugger could use it as cover to ambush unsuspecting
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guests. See e.g. Schroder v. City of Fort Thomas, 412 F.3d 724, 728–29 (6th Cir. 2005)
(featuring an alleged state-created-danger claim based on the city’s creation of a street
and setting the speed limit to 25 miles-per-hour). To prevent every act of municipal
groundskeeping from turning into a potential constitutional claim, there are three
limitations on the state-created-danger doctrine that prudently limit its use. To prove a
due process claim on a state-created-danger theory a plaintiff must show three things:
(1) an “affirmative action” (2) that creates a foreseeable risk of (3) a “special danger”
McQueen v. Beecher Cmty Sch., 433 F.3d 460, 464–470 (6th Cir. 2006). Consider how
those elements apply here.
Montgomery’s failure to supervise the players was not an affirmative act. As soon
as Montgomery arrived at the cabin, Plaintiffs assert he left the players virtually
unsupervised while they were downstairs. Obviously, Plaintiffs here would portray this
conduct as Montgomery’s affirmative act of deciding to leave the players unsupervised,
however the failure to supervise students is not an “affirmative act.” McQueen, 433 F.3d
at 466. Indeed, even a teacher walking out of a room leaving children unsupervised is
not an “affirmative act” under the state-created-danger doctrine. See e.g. id. Instead,
Plaintiffs will have to go back in the timeline of events to find an affirmative act;
nevertheless, no prior affirmative acts will suffice here because the prior acts did not
carry a foreseeable risk to the players. Before reaching that discussion, however, the
Court will quickly dispose of the “special danger” element here.
A “special danger” merely means “the state’s actions place the victim specifically
at risk,” as opposed to a risk “that affects the public at large.” Id. at 468. The danger
does not even have to be specific to a single individual, but can be particular to an
identifiable group. Because the alleged conduct in this case was specific to the players on
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OHS varsity basketball team who went on the tournament trip, that is the relevant
group. This is sufficiently particular to meet the special danger requirement. See id.
(holding if the “relevant group included everyone in the school, the special danger
requirement still would be met.”).
Next, to demonstrate a state-created-danger claim, there must be some
culpability on the state actor’s part. The affirmative governmental action must have
been “so ‘egregious’ that it can be said to be arbitrary in the constitutional sense.”
McQueen, 433 F.3d at 469. To make this determination, when the state action was not a
“split-second decision,” courts apply a “subjective recklessness” standard. Id.7 An official
acts with “subjective recklessness” if he acts in the face of an “inference” that a risk for
“serious harm” exists and he is aware of it. Id. (emphasis added). To make that showing,
the plaintiff must do so “circumstantially” and proffer evidence that would permit a
reasonable fact finder to conclude that the risk of “serious harm” … “was so obvious that
the official had to have known about it.” Id. Here, because his failure to supervise the
players was not “an affirmative action,” the Plaintiffs will have to look to Montgomery’s
prior acts to support a state-created-danger claim. Id. at 466. It could be argued that
Montgomery’s “action” was his decision to take the team on a school trip to Gatlinburg
and stay there overnight. It can also be argued that he took an affirmative action by
permitting Students A, B, and C to attend the trip despite their disciplinary records and
prior hazing. However, for reasons already explained, prior to the trip it was not “so
obvious” Students A, B, and C were a danger and would “seriously harm” their
7The McQueen court also uses the term “deliberate indifference” when applying this standard. 433 F.3d at
469. However, the way the standard is applied in this context is materially different than as it is applied
under Title IX and equal protection claims. Under those claims, deliberate indifference requires “actual
knowledge,” but under a state-created-danger claim deliberate indifference can involve less culpable
behavior, such as acting with disregard to a “substantial risk” of harm. Accordingly, the Court will use the
term “subjective recklessness” to avoid confusion.
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teammates. See id. at 469. Further, there is a factual question regarding whether
Montgomery could even access the students’ disciplinary records prior to the trip. The
Individual Defendants argue the Family Education Rights and Privacy Act (FERPA)
legally prevented him from accessing the records. [Docs. 172 & 176 at 16]. Regardless of
whether Montgomery improperly accessed the players’ records, irrespective of FERPA,
or knew of students’ actions outside of those records, the claim would still fail.
“Although [defendant] was [possibly] aware of [Students A’s, B’s, and C’s] disruptive
and violent behavior, no reasonable fact finder could conclude [he] knew” the students
would cause “serious harm” by using a pool cue to sexually assault freshman players or
inflict grave physical injuries on Doe. Id. As such, Plaintiffs have failed to raise a genuine
issue of material fact as to the state-created-danger claim. Accordingly, Plaintiffs claims
against Montgomery will be dismissed. The Individual Defendants Motions for
Summary Judgment [Docs. 172 & 176] are GRANTED.
3. Assistant Principal / Athletic Director Jess Naydley
Plaintiffs’ claims against Naydley will also be dismissed. The evidentiary record
does not contain sufficient factual evidence for a jury to reach a reasonable conclusion
that Naydley violated Doe’s and Roe’s constitutional rights. As evidence, Plaintiffs assert
that one former player and a player’s parent once contacted Naydley to report team
bullying. [Doc. 184 at 7]. Plaintiffs also claim Naydley could often hear players “horse
playing” in the team locker room because his office was located in close proximity.
Further, relying on Bullard’s and another expert’s conclusory statements, Plaintiffs
assert varsity team rackings “dat[ed] back through Nayadley’s tenure” as Athletic
Director and his time as the varsity team’s Head Coach, and “beyond.” [Id.]. Apparently,
the Plaintiffs believe this is evidence Nayadley had actual knowledge of team gender-
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based discrimination. However, the Court finds the assertions fail to support a
reasonable inference regarding Naydley’s knowledge of student-on-student gendered
bullying. Without such knowledge, Naydley cannot be liable for being constitutionally
deliberately indifferent to gender based harassment. Accordingly, Plaintiffs have failed
to raise a genuine issue as to the § 1983 claims against Naydley. The Individual
Defendants Motions for Summary Judgment is GRANTED [Docs. 172 & 176] as to this
issue.
4. Principal James Jarvis
Jarvis’s actions did not violate Doe’s or Roe’s constitutional rights. Jarvis’s
alleged constitutional error was that he refused to “contact any player’s family ‘unless he
had news for them regarding the upcoming basketball season.’” [Doc. 184 at 8]. To be
clear, it is not the Plaintiffs’ assertion that they were never notified of the assaults; they
admit they were.8 Jarvis’s inaction, instead, is in regard to his refusal to conciliate the
players (including non-victims) and their families. [See e.g. Doc. 178-3, Bullard’s
Report, at 14 (holding “Someone from [the school] should have reached out to the
[players’] families to extend support,” and “Jarvis failed to understand the need to reach
out…”]). This refusal so frustrated the Department’s “independent investigator,”
Courtney Bullard, that she asked the Department’s attorney, Scott Bennett, to try to
convince Jarvis to contact the players’ families. [Doc. 184 at 8]. After he likewise failed
to encourage Jarvis to do so, Bennett claimed he was “about ready to shoot Jarvis in the
head,” and that “no other principal in the ‘entire district’ would take [Jarvis’s] stance.”
[Id. at 8–9]. Plaintiffs claim this is evidence Jarvis violated the United States
8 The Roes acknowledged they received notice of Roe's sexual assault when he was returning home from
the basketball tournament. [Doc. 183 at 12]. Their grievance is that the Department "failed to offer any
explanation, comfort, or counseling to Roe." [Id.].
51
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Constitution. [Id.]. That assertion is misplaced, however. Although Plaintiffs base their
claims on equal protection grounds, “[plaintiffs] cannot premise a deliberate
indifference equal protection claim on [a defendant’s] supposedly rude … behavior.”
Stiles, 819 F.3d at 853. There is no constitutional right, so far discovered, that entitles a
person to compassionate state actors, and the equal protection clause “’does not require
that [a defendant] … have a pleasant demeanor’ in responding to harassment, but only
that he respond to it in a manner that is not clearly unreasonable.’” Id. (quoting Port
Huron, 455 F. App’x at 620). Jarvis’s refusal to “reach out” to the players’ families may
have been inconsiderate or boorish, but it was certainly not unconstitutional. Further,
his refusal to contact the players’ families was not deliberately indifferent because it did
not “’cause [the victims] to undergo’ harassment or ‘make them liable or vulnerable to
it.’” Vance, 231 F.3d at 206 (applying deliberate indifference under Title IX); see also
Stiles, 819 F.3d at 852 (“The deliberate indifference standard used for proving a § 1983
equal protection violation in peer harassment cases is ‘substantially the same’ as the
deliberate indifference standard applied in Title IX.”). Accordingly, the Plaintiffs’ claims
against Jarvis fail as a matter of law. The claims against Jarvis will be dismissed, and
Individual Defendants’ Motions for Summary Judgment [Docs. 172, & 176] are
GRANTED in this regard.
5. Coordinator Marsha Drake
Likewise, the Roes’ claims against Marsha Drake are due to be dismissed as a
matter of law. It seems the Roe Plaintiffs believe Drake is financially liable for Roe’s
damages simply because she was the Department’s “Title IX Coordinator.” They claim
she failed to “learn [her] job” and fulfill her duties. [Doc. 183 at 15]. It has long been
established, however, that “only recipients of federal funds may be liable for damages
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under Title IX.” Soper, 195 F.3d at 854. Title IX liability is premised on the notion that
federal fund recipients consent to liability for private money damages when receiving
said funds. Plaintiffs have not alleged facts showing Drake directly received federal
funds or that she otherwise consented to be liable for money damages under Title IX.
Additionally, although Drake had Title IX duties, her duties were owed to the
Department. Her role was to coordinate the Department’s Title IX compliance. See 34
C.F.R. § 106.8(a) (holding “recipients shall designate” an “employee to coordinate [the
school’s] efforts to comply with and carry out its responsibilities” for certain obligations
under Title IX). Her obligations were derivative of the Department’s, and she did not
owe duties directly to the Department’s students or Roe in particular. As such, Plaintiffs’
arguments fail as a matter of law. The Department’s Motion for Summary Judgment will
be GRANTED in part, as to the § 1983 claims against Marsha Drake.
6. The Department - Monell Liability
"Persons" under § 1983 cannot be held vicariously liable. Monell v. Dep't of Soc.
Servs. of City of New York, 436 U.S. 658, 692 (1978). Instead, plaintiffs must
demonstrate defendant's action (or inaction in the face of a duty) violated the
Constitution. Id. As it applies in the educational context, the plaintiff must show: (1) a
deprivation of a constitutional right (2) that the school is responsible for. Ellis v.
Cleveland Mun. Sch. Dist., 455 F.3d 690, 700–01 (6th Cir. 2006). When claims are
brought against local governmental entities, such as the Department here, the plaintiff
must demonstrate the municipality caused the alleged constitutional violation through
an official department "policy" or "custom." Id. at 690–91.
If a governmental entity fails to train its agents, it can be considered a
governmental "policy" supporting liability under § 1983 under certain
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circumstances. City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). "[I]t may
happen that in light of the duties assigned to specific officers or employees the need for
more or different training is so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers of the [government entity] can
reasonably be said to have been deliberately indifferent to the need." Id. at 390.
However, it is not sufficient to allege that training was "negligently administered." Id. at
391. "Neither will it suffice to prove that an injury or accident could have been avoided if
an [employee] had better or more training, sufficient to equip him to avoid the
particular injury-causing conduct." The relevant question, instead, is whether an injury
would "have been avoided had the employee been trained under a program that was not
deficient in the identified respect?" Id. In sum, to show inadequate training a plaintiff
must demonstrate:
(a) the training or supervision was inadequate for the tasks performed;
(b) the inadequacy was the result of the [school district's] deliberate
indifference; and
(c) the inadequacy was closely related to or actually caused the injury.
Ellis, 455 F.3d at 700–01.
Plaintiffs allege the Department failed to properly train its staff, particularly
Montgomery, and that this constituted a department policy of deliberate indifference to
training. The Sixth Circuit "has identified two situations justifying a conclusion of
deliberate indifference in claims of failure to train or supervise." Id. "One is failure to
provide adequate training in light of foreseeable consequence that could result from a
lack of instruction." Id. (quoting Brown v. Shaner, 172 F.3d 927, 931 (6th Cir. 1999)).
For example, it would be deliberate indifference for a city not to "train its police officers
in the use of deadly force because it is obvious that the officer will need to use such force
54
5901
when they are armed with guns and required to arrest fleeing felons." Id. "A second type
of … deliberate indifference is where the city fails to act in response to repeated
complaints of constitutional violations by its officers." Id. (quoting Brown, 172 F.3d at
931). Because here there is no evidence in the record of “repeated complaints of
constitutional violations,” the Court finds that in order for Plaintiffs to succeed on this
claim, they must do so by showing the Department disregarded an obvious need for
training.
Plaintiffs claim bullying at OHS was rampant. [Doc. 179 at 8]. In a 2013 survey,
over half of OHS students reported being bullied at school. [Id.]. Given this, it is more
than likely the Department’s staff and teachers at OHS would encounter students
bullying one another, or at least receive complaints to that effect. On the other hand, not
all schoolhouse bullying is discriminatory on the basis of gender or some other suspect
class, which is what the Constitution and Title IX are ultimately concerned with.
However, given the amount of bullying that occurred here, it was important for the
Department to train OHS staff on how to not only reasonably respond to common
bullying, but to also be able to distinguish more insidious forms of discriminatory
harassment that occurs on the basis of some immutable characteristic, such as biological
sex. It is these discriminatory forms of harassment that require increased school
vigilance and a heightened response to ensure compliance with the demands of equal
protection and the mandates of Title IX.
Here, Department failed to adequately train OHS staff and teachers.
Montgomery, for instance, claimed he never received any training on student-on-
student discriminatory harassment, or training on Title IX and its requirements. [Doc.
179 at 10]. More specifically, Montgomery explained he was never instructed how to
55
5902
recognize student-on-student sexual harassment. [Id.]. Although the Department claims
it conducted bullying and Title IX trainings at OHS, Plaintiffs proffer evidence that these
trainings were not only substantively inadequate, often being brief and not detailed, but
also never involved staff beyond a small number of administrators, many of which were
no longer with the school at times relevant to this case. [Doc. 192 at 18–20].
Montgomery certainly did not attend any of these trainings. The Court is sympathetic to
the fact that schools have many obligations to students, and that choosing among the
many relevant trainings—ranging from academics to school shooters—often involves
unfortunate zero sum options, requiring some trainings to be left out due to financial
and time constraints. With that being said, if a school district employee has served a
school in a capacity that often puts them in close proximity to students, and they serve
in that role for any significant length of time, at least some acquaintance with Title IX
and student-on-student harassment training seems to be at least minimally necessary.
Yet here, Montgomery, despite serving at the school for almost six years prior to the
sexual assaults, claims he never received any such training. A reasonable fact finder
could conclude this was a result of the Department’s deliberate indifference to an
obvious need for relevant Title IX and student-on-student harassment training. Further,
it would not be unreasonable for a jury to conclude that this failure was causally related
to Doe’s and Roe’s injuries.9 Accordingly, the Department’s Motion for Summary
Judgment [Doc. 177] is DENIED. However, because there are genuine issues of
material fact regarding what Montgomery knew in regard to the sexual assaults, the
9 Even though the equal protection deliberate indifference claims against Montgomery will be dismissed
on qualified immunity grounds, this does not alleviate the Department from liability under Monell. See
Doe v. Sullivan Cnty., Tenn., 956 F.2d 545, 553–55 (6th Cir. 1992) (holding if claims against individual
defendant officers are dismissed under mere qualified immunity, a municipality may still be liable under
Monell)
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failure to train claim cannot be resolved at the summary judgment stage. Resolving
those factual questions is necessary to a finding of causation under the failure to train
claim. As such, the Plaintiffs’ Motions for Partial Summary Judgment is likewise
DENIED.
C. Tennessee Governmental Tort Liability Act Claims
Under Tennessee law, governmental entities are immune to suits for injuries
arising out of governmental functions. Tenn. Code Ann. § 29-20-201(a). This immunity
is removed in specific, enumerated circumstances set forth in the Tennessee
Governmental Tort Liability Act (TGTLA), Tenn. Code Ann. § 29-20-202–05. The
Department is a governmental entity within that statute. Among the statute’s provisions,
an entity's immunity is removed in suits for injuries "proximately caused by a negligent
act or omission of any employee within the scope of his employment." Id. at §§ 205.
Plaintiffs assert Defendants are liable for tort claims under this subsection.
Applying the TGTLA to this case raises many novel state law questions. First,
under the TGTLA’s employee negligence exception to the waiver of government
immunity, some Tennessee courts have held that it does not apply if the employee was
“gross[ly] negligen[t],” as opposed to simply negligent. See Fitzgerald v. Hickman Cty.
Gov’t, No. M2017-00565-COA-R3-CV, 2018 WL 1634111, at *5 (Tenn. Ct. App. April 4,
2018) (citing Autry v. Hooker, 304 S.W.3d 356, 364 (Tenn. Ct. App. 2009)).
Montgomery’s negligence, if any, could arguably be considered gross negligence,
depending on how the facts are construed. The Tennessee Supreme Court has not
clearly adopted the gross negligence exception, so it is not clear whether the Court
should apply it here.
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There are other ambiguities in applying the exceptions to waiver of government
immunity under these facts. There are nine exceptions to the removal of immunity for
an employee's negligent act or omission. Id. at §§ 205(1)–(9). One relevant here is the
“intentional torts exception,” which excepts the waiver of immunity for injuries arising
out of specifically enumerated intentional torts. See Limbaugh v. Coffee Med. Ctr., 59
S.W.3d 73, 79 (Tenn. 2001). Among those listed is one for injuries arising out of “civil
rights.” Tenn. Code Ann. § 29-20-205(2). When federal courts apply TGTLA’s civil
rights exception to the waiver of immunity, they have held the term “civil rights” refers
to claims brought for violations of “constitutional rights,” particularly constitutional
torts brought under § 1983. Savage v. City of Memphis, 620 F. App’x 425, 429 (6th Cir.
2015). Because the § 1983 claims against Individual Defendants will be dismissed, all
that will remain are the Title IX and failure to train § 1983 claims against the
Department. This raises multiple issues. First, because Montgomery’s § 1983 claim for
deliberate indifference will be dismissed under qualified immunity, does the claim still
constitute an injury arising out of a “civil right[],” excepting the removal of immunity? It
is not clear.
Further, it is unclear whether Title IX is a “civil rights” claim as that term is used
by the TGTLA. Because Title IX was enacted pursuant to Congress’ spending clause
power rather than its Fourteenth Amendment enforcement power, the law does not
protect constitutional rights, at least not directly. Rather, it is more appropriately
viewed as a contractual condition to the receipt of federal funds. Gebser, 542 U.S. at 284
("Title IX's contractual nature has implications for our construction of the scope of
available remedies."). If the Court takes the traditional route and finds only
constitutional rights are “civil rights” as defined by TGTLA, the Title IX claims would
58
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not fit the definition. Title IX, however, is often thought of as a “civil rights statute” and
considered part of the various laws enacted and codified under the nomer “Civil Rights
Act,” which most often includes laws passed pursuant to Congress’ commerce power
that forbid discrimination on the basis of race, gender, and religion. See Doe by and
through Doe v. Jackson Madison Cty. Bd. of Educ., No. 17-01174-STA-egb, 2018 WL
2927777, at *4 (W.D. Tenn. June 7, 2018) (collecting cases). It is not clear whether
TGTLA contemplates such discrimination laws under its “civil rights” exception. See e.g.
Sneed v. City of Red Bank, Tenn., 459 S.W.3d 17, 27 (Tenn. 2014) (implying claims
arising under the THRA, Tennessee’s version of the federal Civil Rights Acts, are claims
for “civil rights” under TGTLA); Autry, 304 S.W.3d at 364 (“Autry’s injuries arise from
… her claims of sexual harassment, i.e., a violation of Autry’s civil rights.”); but see
Fitzgerald, 2018 WL 1634111, at *6 (holding “workplace harassment is not specifically
enumerated among the intentional torts for which immunity is not removed in section
29-20-205.”).
Not only will application of the TGTLA to this case involve novel questions of
statutory interpretation, the law imposes procedural requirements that will impede
judicial economy and conflict with the Court’s constitutional obligations. The TGTLA
requires the tort claims be tried without a jury. Tenn. Code Ann. § 29-20-307; see also
Young v. City of LaFollettee, No. E2013-00441-COA-R9-cv, 2014 WL 545486, at *6
(Tenn. Ct. App. Feb. 10, 2014) (disagreeing with a federal district court’s holding that
TGTLA claims could be tried by jury if coupled with Title VII claims). This would require
the Court to bifurcate trial and hold a second bench trial for the TGTLA claims after the
Title IX and § 1983 claims are resolved by a jury. The Seventh Amendment to the United
States Constitution, on the other hand, requires federal courts to try cases by jury in civil
59
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“common law” suits where the amount in controversy exceeds “twenty dollars.” U.S.
Const. amend. VII. As to the claims against the Department, the Seventh Amendment
would not apply and a bench trial would be permissible. See Lehman v. Nakshian, 453
U.S. 156, 160 (1981). This is because at common law immunity exempts sovereigns and
their extensions from suit, and if a suit is permitted it must be made in strict accordance
with the waiver of immunity, including requiring a bench trial.10 Id. When it comes to
the TGTLA claims against the Individual Defendants,11 the Seventh Amendment does
require the Court to conduct trial by jury. See City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 709 (1999) (applying § 1983 claims held statutory claims
that “sound in tort” and filed against government agents require a jury trial under the
Seventh Amendment). These conflicting obligations impose significant costs on judicial
economy.
When exercising federal question jurisdiction and presented with state law claims
that present “novel or complex issue[s] of State law,” “district courts may decline to
exercise supplemental jurisdiction.” 28 U.S.C. § 1367(c)(1). As discussed, the TGTLA
claims here introduce multiple complex and novel legal issues, and are dependent on
interpreting state law, many of which are questions of first impression. Federal courts
10 Entities imbued with state power do enjoy some common law sovereign immunity for their
governmental functions. See Owen v. City of Independence, Mo., 445 U.S. 622, 645 (1980). Of course, this
can be waived. The Title IX conditions on funding is such a waiver. But, Congress can also abrogate this
immunity through its authority, and has in fact done so under § 1983, which is why the Department can
be held liable under that statute. Id. (holding a “municipality’s ‘governmental’ immunity is obviously
abrogated by the sovereign’s enactment of a statute making it amenable to suit. Section 1983 was just such
a statute.”). As to Plaintiffs’ tort claims, Tennessee has not carte blanche waived or abrogated immunity
for school board or departments, and as such, any claims for torts against a Tennessee governmental
entity must be consistent with the TGTLA, meaning a bench trial would be a requirement under the
common law principles of sovereign immunity.
11Depending on whether the Department’s immunity is waived, the employees may be held liable under
the TGTLA. See Colson v. City of Alcoa, Tennessee, No. 3:16-CV-377, 2017 WL 4019596, at *12 (E.D.
Tenn. Sept. 11, 2017). Typically, employees enjoy immunity under the statute, but this immunity is
unavailable if the governmental entity retains its immunity. See id.
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should avoid making “needless decisions of state law … both as a matter of comity and
to promote justice between the parties, by procuring for them a surer-footed reading of
applicable law.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). There
are other reasons to decline jurisdiction over the TGTLA claims.
Under the TGTLA, Tennessee “circuit courts shall have exclusive original
jurisdiction over any action brought” for TGTLA claims. Tenn. Code Ann. § 29-20-307
(emphasis added). “[T]he Tennessee legislature expressed a clear preference that
TGTLA claims be handled by its own state courts. This unequivocal preference of the
Tennessee legislature is an exceptional circumstance for declining jurisdiction.”
Gregory v. Shelby Cty., Tenn., 220 F.3d 433, 446 (6th Cir. 2000). Accordingly, the
Court declines to exercise jurisdiction over Plaintiffs’ TGTLA claims. The issues would
be better resolved in Tennessee’s courts. Accordingly, Plaintiffs TGTLA claims are
DISMISSED without prejudice with leave to refile the claims in state court.
IV. CONCLUSIONS
For the reasons stated herein—
 There is sufficient evidentiary support for Plaintiffs’ Title IX claims.

Accordingly, the Department’s Motion for Summary Judgment [Doc. 177] will
be DENIED as to that issue.
 Due to factual questions regarding Doe’s and Roe’s sexual attack, Plaintiffs’
Motion for Partial Summary Judgment [Doc. 178] will be DENIED.
 Because the Department acted reasonably after the sexual assaults, the
Department’s Motion for Summary Judgment will be GRANTED in that
regard.
 The § 1983 claims against the Individual Defendants and Marsha Drake lack
evidentiary support, and qualified immunity applies to the claims that are
otherwise factually supported. The Department’s and the Individual
Defendants’ Motions for Summary Judgment will be GRANTED as to those
claims.
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5908
 Plaintiffs presented evidence creating a genuine triable issue regarding the §
1983 claim against the Department for its failure to adequately train
employees and staff. The Department’s Motion for Summary Judgment [Doc.
177] is DENIED on that issue.
 The Individual Defendants and Marsha Drake are immune from suit under
TGTLA. Accordingly, all claims against Individual Defendants are due to be
dismissed, and the Individual Defendants’ Motions for Summary Judgment
[Docs. 172 & 176] are hereby GRANTED. Likewise Department’s Motion for
Summary Judgment [Doc. 177] is GRANTED in parts relevant to the claims
against Marsha Drake.
 The Court declines to exercise jurisdiction over Plaintiffs TGTLA claims.

Those claims will be DISMISSED without prejudice.
SO ORDERED this 6th day of August, 2018.
/s/ Harry S. Mattice, Jr._____

HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE
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5909

Doe V Hamilton Co. Board of Education Summary Judgement

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

JOHN DOE, et al., )

RICHARD ROE, SR., et al., )

Case 1:16-cv-00373-HSM-CHS Document 248 Filed 08/06/18 Page 1 of 62 PageID #: 5848

indifferent to Doe's and Roe's harassment in violation of their statutory and

Although those questions create a triable issue as to pre-assault deliberate indifference,

Department was constitutionally deficient in its relevant staff training. Accordingly,

will be GRANTED in part and DENIED in part. Likewise, there is insufficient

evidence demonstrating the individual defendants in this action violated constitutional

[Docs. 172, & 176] are hereby GRANTED.

Ooltewah High School ("OHS"), a school administered by the Hamilton County

turned out to be a source of torment.

or the "rackings." [Doc. 179 at 2–3] Rackings consisted of upperclassmen beating

upperclassmen in particular were prominent “rackers,” Students A, B, and C. [Doc. 185

The varsity team's coach was Andre Montgomery ("Montgomery"), a defendant

Gatlinburg, Tennessee area to participate in the “Smokey Mountains Christmas Classic”

Montgomery and Williams’ laissez-faire approach to supervision is evidenced by

happened. Montgomery then began questioning the upperclassmen, and Student B

[Doc. 177-1 at 7].

tournament before going back to Ooltewah. [Id.].

school. [Doc. 185 at 10].

Individual Defendants, the Department, and the Department’s Title IX coordinator,

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 instructs the Court to grant summary

position either by “citing to particular parts of materials in the record,” including

depositions, documents, affidavits or declarations, stipulations, or other materials, or by

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

to the district court–that there is an absence of evidence to support the nonmoving

moving party is entitled to summary judgment. Celotex, 477 U.S. at 323.

No person in the United States shall, on the basis of sex, be

liability is appropriately viewed as a condition to the receipt of federal support, and in

effect, schools consent to permit themselves to be subject to Title IX liability when

and objectively offensive” student-on-student sexual harassment that occurs “’under’ an

applicable to their injuries.

from a prototypical Davis suit for deliberate indifference toward student-on-student

relief under Title IX requires careful attention to the Davis elements.

School liability for student-on-student sexual harassment only extends to harassment

1. Sexual Harassment So Severe, Pervasive, and Objectively

objectively unreasonable” as to constitute a denial of educational opportunities.

Title IX does not cover every instance of student-on-student harassment that

experienced harassment “on the basis of” their sex. Id.

In the typical case, harassment can be “indisputably” identified as “sexual

harassment” because it often “involve[s] male students harassing female students,

discrimination easy to draw in most male-female sexual harassment situations, because

“harassing conduct need not be motivated by sexual desire to support an inference of

discrimination on the basis of sex.” Oncale, 523 U.S. at 80.1

myriad of circumstances. Id. An obvious example is when classmates tease a student

because he or she does not “conform to traditional gender stereotypes in an observable

at 286. The Sixth Circuit has held—albeit in an unpublished opinion—that such

used to contribute to a hostile [educational] environment”). Typically when presented

nature, is primarily motivated by team hierarchy, seniority, or class position (e.g.

that Title IX covers.

to establish gender discrimination.”). Further, statements such as “take it like a man”

upperclassmen using pool cues to sodomize or simulate sodomy on freshman players,

attackers’ sexual desire “obviously qualifies as …. sexual harassment.” Soper v. Hoben,

penetrated him with a marker” could reasonably be considered by a jury as a “serious

did, is a logical approach—although it is understandable why one could detect an