Thursday, June 6, 2013
Last week, a federal district court in M.D. v. School Bd. of City of Richmond, 2013 WL 2404842 (E.D. Va. 2013), dismissed a six-year old African American child's claim that his school had been deliberately indifferent to racial and sexual harassment. The child alleged:
Between February and the end of April 2013, other children—identified only as
children of Hispanic ethnicity—persistently teased Plaintiff on the basis of his
race and perceived sexual orientation. ( Id. at ¶¶ 9–12.) Specifically,
the other students repeatedly and continuously directed vulgar and offensive
racial epithets at Plaintiff, verbally abused him, physically assaulted him, and
stole his property. ( Id. at ¶¶ 10–12, 23.) The other students also
insinuated that Plaintiff was gay, apparently owing to Plaintiff's non-violent
demeanor. ( Id. at ¶ 12.) In short, the Plaintiff was subjected to what
might be properly characterized as severe bullying. ( Id. at ¶ 23.)
Ultimately, this led Plaintiff to suffer extreme emotional damage and a fear of
school, even after he later enrolled in a new school. ( Id. at ¶¶ 13–14,
The court reasoned that: a) the sexual harassment was based on perceived sexual orientation rather than gender, the later of which the court indicated is necessary to state a claim; and b) the student transferred to another school before the defendant had an opportunity to address the problem; thus, it was not deliberately indifferent to his parents' complaints.
The court's recitation of the facts is limited, but this case raises a few serious issues. First, other courts have not so easily dismissed claims related to sexual orientation claims, as they posit the question is whether a student is being harassed for failure to conform to gender stereotypes. Nabozny v. Podlesny,92 F.3d 446 (7th Cir. 1996);Higgins v. New Balance Athletic Shoes, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999); Schmedding v. Tnemec Co., 187 F.3d 862, 865 (8th Cir. 1999); Doe v. S.E. Greene Sch. Dist., 2006 U.S. Dist. LEXIS 12790 (W.D. Pa. Mar. 24, 2006); Schroeder ex rel. Schroeder v. Maumee Bd. of Educ., 296 F. Supp. 2d 869, 879-880 (N.D. Ohio 2003); Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081 (2000); Carrasco v. Lenox Hill Hosp., 2000 U.S. Dist. LEXIS 5637, 2000 WL 520640, at *8 (S.D.N.Y. Apr. 28, 2000). This court does not address this precedent.
Second, at such a young age, it seems extremely dangerous to speculate as to what this child's sexual orientation is or is not. This court seems to suggest he is heterosexual, but other students perceive him as gay. Again, I am not sure it matters if the question is whether he is being harassed for failure to confirm to gender stereotypes.
Third, the court's best argument is that none of this matters because the district's reaction cannot be shown to be clearly unreasonable because the student transferred by the time the district expressed a willingness to come up with an intervention plan. The court, however, does not explain why as a matter of law plaintiff's allegations that the school did almost nothing for over a month (which is what led to the transfer and distrust) does not state a claim. I wonder how long any parent would leave their six-year child in this situation if the parent had other options. Is the implication of the court's holding that a parent only has a claim if they take a wait and see approach with the harassment?