August 26, 2007
Recent Title IX Gender Stereotype Bullying Case
In Seiwert v. Spencer-Owen Community School Corp., 2007 WL 2020174 (S.D. Ind. July 6, 2007), a federal district court denied a school's motion for summary judgment on a Title IX claim based on a theory similar to the one utilized by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)(a Title VII case).
Title IX of the Education Amendments of 1972 protects students from sex-based discrimination in public schools. In order to recover, a plaintiff must demonstrate that the school was "deliberately indifferent to sexual harassment, of which they [had] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to [have deprived] the victims of access to the educational opportunities or benefits provided by the school." Seiwert, 2007 WL 2020174, at *7 (citing Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650 (1999)).
The Seiwert plaintiff is an eighth grade student who was harassed by other students during a two-year period. Id. at *1. The plaintiff presented evidence that he suffered from teasing and homosexual epithets as well as physical abuse and, ultimately, death threats from students at the school. The plaintiff and his parents reported the bullying to the principle of the school, who did not intervene to discipline the offending students. The bullying culminated in a fight on a school bus and the plaintiff's ultimate decision to enroll in a private school. Id. at * 4.
The court refused to dismiss the case at the summary judgment stage because, in the court's own terms, "[b]eing called outrageous names, physically assaulted, and having one's life threatened is severe and pervasive behavior." Id. at * 7. Perhaps the most interesting part of the case, however, is the court's next inquiry: "whether this harassment amounted to sexual harassment prohibited by Title IX." Id.
In a fashion analogous to the Price Waterhouse case, the court determined that the plaintiff could maintain a cause of action for sexual harassment where, "he was being harassed--not because he was homosexual, but because he was acting in a manner that did not adhere to the traditional male stereotypes." Id. In essence, the court stated that the plaintiff could assert his Title IX claim if he could show that the other students thought that he was a homosexual and did not conform to the traditional view of "masculine" behavior. In this manner, he was discriminated on the basis of his failure to fit into traditional "gender" categories, not because of his sexual orientation.
The case includes other interesting claims, such as equal protection (applying the Nabozny ruling which held that sexual orientation is a protected class, but only requires rational basis review), breach of contract (because the plaintiff was a third-party beneficiary of the school's contract with an independent bus driver), negligent supervision, and negligent infliction of emotional distress--all of which survived summary judgment as well.
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Posted by: Eric | Aug 27, 2007 1:40:28 PM