United States District Court, D. Hawaii
K.S-A, a minor, and J.S-A, a minor by and through Joshua Douglas Franklin, as their Guardian Ad Litem Plaintiffs,
STATE OF HAWAII, DEPARTMENT OF EDUCATION Defendant.
ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL
C. Kay Sr. United States District Judge
reasons set forth below, the Court DENIES Plaintiffs'
Motion for Partial Summary Judgment, ECF No. 109.
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
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.
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.
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.
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
Court held a hearing on Plaintiffs' Motion on May 7,
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
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).
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).
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.
Title IX Claim
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 indifference...to 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)).
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
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.
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.
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
K.S-A testified that during A Plus, an after-school program
that was held in the cafeteria at Hilo Union Elementary
School,  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). The Court notes that the
record does not establish whether the A Plus program is
affiliated with the DOE. 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”).
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.
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.
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.
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.
Harassment Causing Deprivation of Educational
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.
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
Severe, Pervasive, and Objectively Offensive
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” ...