School does not have to be effective in stopping peer-on-peer sexual harrassment

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Yesterday, in Porto v. Town of Tewksbury, __ F. 2d __ (CA1, Nos. 06-1994, 06-2139) the First Circuit, U.S. Court of Appeals, overturned a jury verdict from the U.S. District Court for Massachusetts that had awarded the plaintiffs $250,000 plus attorneys fees for not effectively stopping (special ed) peer-on-(special ed) peer sexual activity.

The First Circuit agreed with the Town that the plaintiffs had not proven that Tewksbury’s Wynn Middle School’s failure to predict continuing acts on the plaintiffs’ child by the peer constituted "deliberate indifference" to the "sexual harrassment".

The court ruled:

Under Title IX of the Education Amendments of 1972, a recipient of
funding from the United States Department of Education may be liable for damages
if "its deliberate indifference [to peer-on-peer sexual harassment] 'subjects'
its students to harassment." Davis v. Monroe County Bd. of Educ., 526 U.S. 629,
644 (1999). A funding recipient is deliberately indifferent to
student-on-student harassment when "the recipient's response to the harassment
or lack thereof is clearly unreasonable in light of the known circumstances."
Id. at 648. [T]he deliberate indifference must, at a minimum, 'cause [students]
to undergo' harassment or 'make them liable or vulnerable' to it." Id. at 645
(alteration in original) (quoting Random House Dictionary of the English
Language 1415 (1966)). In addition, the acts of sexual harassment must be
"known" to the funding recipient. Id. at 647. Finally, the harassment must be
"so severe, pervasive, and objectively offensive that it can be said to deprive
the victims of access to the educational opportunities or benefits provided by
the school." Id. at 650.

Further citing Davis, the decision went on to say that the legal standard "does not require funding recipients to remedy peer harassment. Davis disapproved of a standard that would force funding recipients to suspend or expel every student accused of misconduct. All that Davis requires is that the school not act clearly unreasonably in response to known instances of harassment."

The whole opinion is available on the First Circuit’s website: www.ca1.uscourts.gov

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