Education – Title IX – Peer-on-peer harassment

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Where a plaintiff has alleged that the defendant city of Attleboro failed to protect her from peer-on-peer sexual discrimination and harassment while she was attending middle school and high school, the plaintiff has stated a plausible Title IX claim.

“… Plaintiffs allege violations of Title IX, 20 U.S.C. section 1681 against Attleboro (Count I), violation of Noelle’s Equal Protection rights under the Fourteenth Amendment against Attleboro (Count II) and against the Administrators (Count III) pursuant to 42 U.S.C. section1983 and negligence claims against Attleboro (Count IV). … Plaintiffs allege violations of the Declaration of the Rights of the Commonwealth of Massachusetts against Attleboro and the Administrators (Count V) and violations of Mass. Gen. L. c. 151C, section2 (Count VI), Mass. Gen. L. c. 272, section98 and c. 76, section5 (Count VII) and Mass. Gen. L c. 93, section102 (Count VIII) against Attleboro. … Corrine also brings a claim for loss of consortium against Attleboro and the Administrators (Count IX). …

“To constitute sex-based discrimination under Title IX, the alleged name calling, comments and physical assault of [plaintiff Noelle-Marie Harrington] by her peers … must have been because of her sex. … Relevant here, sex based discrimination can be based on sex stereotypes. …

“While at Brennan MS and AHS, both male and female peers allegedly commented on Noelle’s body size, … and would call Noelle names ‘charged with anti-female animus.’ … At Brennan MS, male peers would also ask Noelle out on dates and then call her names when she refused. …

“These allegations plausibly state a Title IX claim because Noelle appears to have been the subject of discrimination because of her sex. Plaintiffs’ allegations regarding the conduct of Noelle’s peers are not simply ‘tinged with offensive sexual connotations,’ … but appear to ‘constitute[] ‘discrimina[tion] … because of . . . sex.” … The name calling and assaults against Noelle were not only deplorable and hurtful, but appear to be based on sexual stereotyping — that Noelle, whether because of her physical appearance, mannerisms or sexual preference, did not conform to certain female stereotypes — rather than because of some other characteristic that is not protected by Title IX. …

“Having adequately pled that Noelle’s harassment by her peers was because of her sex, and concluding that the conduct was severe, pervasive and objectively offensive and interfered with Noelle’s education, a question remains as to whether Plaintiffs have plausibly alleged that Attleboro was ‘deliberately indifferent to the harassment such that its response (or lack thereof) [was] clearly unreasonable in light of the known circumstances.’ …

“While it is true Attleboro employees took some action once they were put on notice of Noelle’s harassment by her peers, Noelle continued to be harassed over the course of four years in both middle and high school. Considering how long Noelle’s harassment persisted, and that many of her bullies were repeat offenders, … Plaintiffs have at least plausibly alleged this element as well, particularly as their allegations, at a minimum suggest that Attleboro ‘failed to take additional reasonable measures after it learned that its initial remedies were ineffective.’ … Accordingly, Defendants’ motion to dismiss Count I is denied. …

“… The Court allows Defendants’ motion as to Counts II, III, IV, VI, VII, VIII and IX and those claims are dismissed. …”

Harrington v. City of Attleboro, et al. (Lawyers Weekly No. 02-115-16) (26 pages) (Casper, J.) (USDC) (Case No. 15-cv-12769-DJC) (March 16, 2016).

Click here for the full-text opinion.