Where a former high-school student alleged that school administrators acted with deliberate indifference in responding to reports that she had been sexually harassed by another student, she was precluded from seeking emotional distress damages, alleged expenses for medical or psychological treatment and any loss of identifiable professional opportunities.
In this Title IX action, plaintiff alleges that her school’s administrators acted with deliberate indifference in responding to reports that she had been sexually harassed by another student at her school, “Jack Smith.” After the jury found against plaintiff on the issue of whether defendant had “actual knowledge” of the alleged sexual harassment, the court denied plaintiff’s motion for a new trial. Plaintiff appealed, and the United States Court of Appeals for the Fourth Circuit reversed.
In advance of a new trial, the Fairfax County School Board has filed a motion in limine to preclude evidence and argument regarding (1) liability for post-June 2017 conduct and (2) plaintiff’s alleged damages.
The alleged sexual harassment occurred in March 2017 while plaintiff was a junior in high school and Smith was a senior. Defendant’s motion in limine seeks to preclude plaintiff from bringing any claims for discrete Title IX violations by defendant after the 2016-17 school year.
The Fourth Circuit held that a “school may be held liable under Title IX if its response to a single incident of severe sexual harassment, or the lack thereof, was clearly unreasonable and thereby made the plaintiff more vulnerable to future harassment or further contributed to the deprivation of the plaintiff’s access to educational opportunities.”
Accordingly, it is possible that defendant’s inaction during plaintiff’s senior year could give rise to liability, if there is evidence to support such a claim. The court, therefore, will not preclude plaintiff from introducing evidence based on the inaction of any school officials that occurred after the 2016-17 school year.
In the first trial, plaintiff only sought to recover damages for emotional distress she experienced as a result of defendant’s alleged Title IX violations. However, after the Fourth Circuit issued its opinion reversing this case, the Supreme Court decided Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562 (2022), which called into question the availability of emotional distress damages in Title IX cases.
District courts across the country since Cummings have uniformly held that its holding applies to Title IX claims and precluded emotional distress damages accordingly. Having reviewed Cummings and its progeny, the court finds that its holding cannot be distinguished and applies to claims brought under Title IX as an antidiscrimination Spending Clause statute. Accordingly, plaintiff is precluded from seeking emotional distress damages in this case.
Several post-Cummings district courts have allowed plaintiffs to seek recovery for lost opportunities they suffered as a result of discrimination in violation of Spending Clause statutes. Arguing that no such economic losses were alleged, nor presented at the first trial, defendant moves this court to preclude plaintiff from seeking damages for lost educational opportunities in this matter.
The court will deny this request. Lost educational opportunities lie at the heart of Title IX private right of action cases. Plaintiff identified lost educational opportunities in her amended complaint, and the Fourth Circuit cited at least two “concrete, negative effect[s]” the alleged sexual assault had on plaintiff’s ability to participate in educational opportunities and benefits provided by the school.
The court finds, however, that plaintiff has not adequately alleged expenses for medical or psychological treatment that may be recovered post-Cummings. Because the medical expenses plaintiff seeks to recover are proxies for impermissible emotional distress damages, the court will preclude plaintiff from presenting such evidence at trial.
Finally, the court finds the amended complaint inadequately pleads any loss of identifiable professional opportunities, and plaintiff cannot cure this now by presenting evidence or expert testimony that plaintiff has since experienced general difficulty obtaining employment or has generally earned less than she would have absent defendant’s alleged Title IX violations. Additionally, even if plaintiff could allege specific opportunities lost, the court finds that any such losses would be too attenuated in time from the alleged Title IX violations during plaintiff’s high school years to prove defendant’s “breach actually adversely influenced or affected job opportunities.”
Defendant’s motion in limine granted in part, denied in part.
Doe v. Fairfax County School Board, Case No. 1:18-cv-00614, Jan. 25, 2023. EDVA at Alexandria (Nachmanoff). VLW 023-3-030. 13 pp.