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K.S-A v. State, Department of Education

United States District Court, D. Hawaii

May 9, 2018

K.S-A, a minor, and J.S-A, a minor by and through Joshua Douglas Franklin, as their Guardian Ad Litem Plaintiffs,


          Alan C. Kay Sr. United States District Judge

         For the reasons set forth below, the Court DENIES Plaintiffs' Motion for Partial Summary Judgment, ECF No. 109.


         K.S-A and J.S-A (“Plaintiffs”) are Native Hawaiian minor male children who assert that they have suffered harassment on the basis of sex in violation of Title IX of the Education Amendment of 1972. See generally Motion, ECF No. 109. Plaintiffs were 7 and 6 years old, respectively, when the harassment allegedly started and are now 12 and 11 years old. Mot. at 1, ECF No. 109-1. Plaintiffs attended public elementary schools which are part of the Hawaii School District and are recipients of federal funding. Pl. Concise Statement of Facts ¶¶ 1-2, ECF No. 110 (“Pl. CSF”). Plaintiffs attended Hilo Union Elementary from approximately April, 2012 to April 1, 2015. Def. Concise Statement of Facts ¶ 1, ECF No. 114 (“Def. CSF”). Plaintiffs attended Waiakeawaena Elementary School from approximately May 5, 2015 to May 15, 2015. Id. Plaintiffs next attended Kua O Ka La New Century Public Charter School until approximately October, 2016, when they were enrolled in Pahoa Elementary. Id. ¶ 25; Pl. CSF ¶ 26. Plaintiffs then enrolled in Waiakea Elementary on November 30, 2016. Def. CSF ¶ 25.

         While at Hilo Union, Waiakeawaena, Kua O Ka La, and Pahoa, Plaintiffs claim that they have regularly been subjected to student-on-student harassment, including being called “girl, ” “fag, ” “faggot, ” “gay, ” and “queer.” Pl. CSF ¶¶ 3, 6, 26, 30. This allegedly harassing conduct took place on school premises either during school hours or in after school programs on school property. Id. ¶ 5. The conduct also escalated to physical contact on a few occasions. Id. ¶ 7.

         Plaintiffs claim they reported the harassing conduct to school officials, and assert that some of the conduct took place in front of school officials. Id. ¶¶ 8-9. However, Plaintiffs claim that the harassing conduct continued even after their reports and complaints. Id. ¶ 14. In addition, Plaintiffs assert that no steps were taken to remedy the harassment, no formal investigation was made into the complaints, and the only training on LGBTQ issues was untimely and not relevant to addressing the harassment. Id. ¶¶ 20-22, 32- 39. As a result of these issues, Plaintiffs claim they fell behind in school and transferred schools multiple times. See id. ¶¶ 1, 18, 26, 30.


         On March 15, 2016, Plaintiffs, by and through their biological father Joshua Douglas Franklin as their Guardian Ad Litem, filed a Complaint against Hawaii School District, Hilo-Waiakea Complex, Brad Bennett, and Erin Williams. Compl., ECF No. 1. On August 22, 2017, Plaintiffs filed their First Amended Complaint solely against Hawaii School District. Am. Compl., ECF No. 72. On September 1, 2017, Hawaii School District filed a motion to dismiss the First Amended Complaint. ECF No. 73. The Court granted the motion to dismiss on December 18, 2017. ECF No. 101. Plaintiffs filed their Second Amended Complaint on January 16, 2018, alleging two claims against the State of Hawaii, Department of Education (“Defendant”): a violation of Title IX of the Education Amendment of 1972 (“Title IX”) and a claim for negligent infliction of emotional distress. See generally Second Am. Compl., ECF No. 106.

         On March 1, 2018, Plaintiffs filed a Motion for Partial Summary Judgment regarding their Title IX claim. ECF No. 109-1 (“Mot.”). Defendant filed its Opposition on April 16, 2018. ECF No. 113 (“Opp.”). Plaintiffs filed their Reply on April 23, 2018. ECF No. 115 (“Reply”).

         The Court held a hearing on Plaintiffs' Motion on May 7, 2018.


         Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Federal Rule of Civil Procedure (“Rule”) 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal., 192 F.3d 1252, 1258 (9th Cir. 1999).

         “A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has carried its burden under Rule 56[(a)] its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal quotation marks omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (stating that a party cannot “rest upon the mere allegations or denials of his pleading” in opposing summary judgment).

         “An issue is ‘genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material' only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at 248). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor”) (internal citation and quotation omitted).


         Plaintiffs have moved for partial summary judgment on their Title IX claim and explicitly reserved for trial their claim for infliction of emotional distress. See Mot. at 1, ECF No. 109; Reply at 1 n.1. The Court will therefore only address the Title IX claim and will not discuss Defendant's arguments concerning the emotional distress claim. See Opp. at 13.

         I. Title IX Claim

         Title IX provides that “[n]o 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, ” with certain exceptions not applicable here. See 20 U.S.C. § 1681(a); see also Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 638 (1999). There is an implied private right of action under Title IX allowing plaintiffs to file directly in court. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009). The Supreme Court has held that “the private right of action encompasses intentional sex discrimination in the form of a recipient's deliberate sexual harassment of a student by another student.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (citing Davis and Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-91 (1998)).

         Same-sex harassment claims are cognizable under Title IX, and resolution of such claims is guided by Title VII principles, which the Supreme Court has interpreted to prohibit same-sex harassment. See, e.g., Sanches v. Carrolton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011) (citing Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002); Roe ex rel. Callahan v. Gustine Unified Sch. Dist., 678 F.Supp.2d 1008, 1026 (E.D. Cal. 2009). In addition, as in Title VII cases, harassment motived either by actual gender or failure to conform with gender stereotypes may form the basis of a Title IX claim. See, e.g., Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1048 (7th Cir. 2017). Wolfe v. Fayetteville, Ark. Sch. Dist., 648 F.3d 860, 867 (8th Cir. 2011); Videckis v. Pepperdine Univ., 150 F.Supp.3d 1151, 1160 (C.D. Cal. 2015); see also Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000) (holding that Title VII harassment could be based on perceived non-conformance to socially-constructed gender norms).

         Davis set forth four requirements for the imposition of school district liability under Title IX for student-on-student harassment: (1) the school district “‘exercise[d] substantial control over both the harasser and the context in which the known harassment occurs;'” (2) the plaintiff must suffer “‘sexual harassment...that is 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;'” (3) the school district had “‘actual knowledge' of the harassment;” and (4) the school district's “deliberate indifference subjects its students to harassment.'” Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 739 (9th Cir. 2000) (quoting Davis, 526 U.S. at 644-650) (alternation in original). The Court will address each of these elements in turn.

         A. Substantial Control

         Substantial control can be found where the alleged misconduct occurs during school hours and on school grounds because the school district retains substantial control over the context in which the harassment took place and over the alleged harasser, by virtue of the degree of supervision and control exercised over students in this setting. See Davis, 526 U.S. at 646. Substantial control has also been found where the alleged harassment occurred at a football camp, which was not held on school grounds, but which was sponsored and promoted by the school, was a core part of the school's football program, was under the supervision of the school's teachers and coaches, and students were transported to the camp on the school's buses. Callahan, 678 F.Supp.2d at 1025.

         Plaintiffs' evidence shows that most of the allegedly harassing incidents took place during school hours and on school grounds, see Pl. CSF ¶ 5, and Defendant has not disputed substantial control over these events. However, Defendant does dispute that it bears responsibility for anything that occurred at after-school programs and particularly the two acts of physical violence against K.S-A and J.S-A allegedly occurring there. Opp. at 12; see also Def. CSF ¶¶ 5-7.

         First, K.S-A testified that during A Plus, an after-school program that was held in the cafeteria at Hilo Union Elementary School, [1] another student jumped on him, slammed his head into a pole, and gave him a black eye. Pl. CSF ¶¶ 5, 7 & Ex. C at 55:2-56:24 (incident took place during the A Plus program in the cafeteria), 57:11-18 (after incident, teachers told him to sit in the cafeteria and gave him an ice pack).[2] The Court notes that the record does not establish whether the A Plus program is affiliated with the DOE.[3] Rather, Defendant appears to contend that Plaintiffs were attending the Boys and Girls Club of Hilo, instead of the A Plus program. See Def. CSF, Declaration of Erin Williams (“Williams Decl.”) ¶ 6 (Plaintiffs “went to the Boys and Girls Club of Hilo after school ended for the day”).

         However, taking this as true, Defendant has only disputed which program Plaintiffs were attending, not where the alleged incidents occurred. Defendant admits that the Boys and Girls Club staff would first come to Hilo Union and gather in a central area before taking the participating students to their facility 2-3 blocks away. Id. ¶ 12. A reasonable factfinder cannot infer from evidence that the Boys and Girls Club first meets at Hilo Union and then goes to a separate location that an incident of physical violence which occurred during that program must have taken place off campus. This is particularly true given K.S-A's specific testimony that the incident occurred in the Hilo Union cafeteria, which Defendant has not specifically disputed. See F.T.C. v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a general issue of material fact.”); Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.”). As such, there is no genuine dispute as to where this incident occurred.

         Finally, while Defendant states that it has no authority over the club, it also indicates that its responsibility over participating students only ends when they leave Hilo Union Campus. See Def. CSF, Williams Decl. ¶ 12. A reasonable trier of fact thus could not find that Defendant did not have substantial control over the context in which the incident occurred.

         As to J.S-A, he testified that while he was walking up the stairs at Hilo Union, an older boy choked him and slammed him to the floor. Pl. CSF ¶ 7 & Ex. D at 15:10-17. The record does not show whether this incident took place during school hours or in an after-school program. As such, Defendant's evidence about after-school programs does not create a genuine dispute of fact that this incident occurred on school grounds. And since Defendant states that its responsibility for students only ends when students leave campus, as noted above, a reasonable trier of fact could not find Defendant lacked substantial control over this incident.

         Accordingly, the Court finds that there is no genuine dispute of material fact that Defendant had substantial control over any incidents of alleged harassment which took place on school grounds and during school hours, including the two incidents of physical violence discussed above.

         B. Harassment Causing Deprivation of Educational Opportunities

         To establish the second element of Title IX liability, sexual 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.'” Reese, 208 F.3d at 739 (quoting Davis, 526 U.S. at 650). “Whether gender-oriented conduct is harassment depends on a constellation of surrounding circumstances, expectations, and relationships, including, but not limited to the ages of the harasser and the victim and the number of individuals involved.” Davis, 526 U.S. at 651 (internal citation and quotation omitted). The Supreme Court has cautioned that “[c]ourts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults.” Id.

         At least one court has recognized that a single incident can satisfy a Title IX claim, depending on the circumstances. See Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2000) (recognizing that “one incident can satisfy a claim” but finding that the record before the court showed multiple incidents, including physical contact and attempts to take off plaintiff's clothes). However, “[d]amages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender.” Davis, 526 U.S. at 652.

         1. Severe, Pervasive, and Objectively Offensive Harassment

          Plaintiffs argue that they suffered harassment on an almost daily basis for the three years prior to bringing this suit. Mot. at 17. The claimed harassment appears to largely center on the use of derogatory terms towards Plaintiffs such as “fag, ” “faggot, ” “gay, ” “queer, ” and “girl, ” as well as comments like the “whole family is a bunch of gays and whores” ...

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