School sexual harassment suit can proceed

A school board was deliberately indifferent in failing to protect a high school freshman from sexual harassment, a split panel of the 4th U.S. Circuit Court of Appeals has found.

The panel remanded the claim to the U.S. District Court for the Western District of Virginia at Lynchburg. But the panel affirmed the lower court’s ruling on a Monell claim against the Appomattox County School Board and three substantive due process claims pursuant to 42 U.S.C. § 1983.

Plaintiff Michele Blair, the paternal grandmother and adoptive mother of “S.B.,” sued the school board, superintendent, two high school counselors, and a Maryland public defender, seeking compensatory and punitive damages and attorneys’ fees.

Writing for the majority, Judge Roger L. Gregory said Blair had sufficiently alleged deliberate indifference.

According to Blair, school employees failed to inform her about S.B.’s assertions that S.B. identified as a boy and wanted to be referred to by a male name and pronouns. School counselors also said S.B. could use the male restroom, which allegedly caused the harassment to escalate.

Although S.B. told the school counselors about a bullying and sexual harassment incident on a school bus, there was nothing in the record to suggest that the counselors interviewed the students accused of instigating the harassment, nor did school officials take action against them.

In fact, Gregory wrote that “the direct opposite happened” when a counselor and a county sheriff’s deputy questioned S.B. during the first weeks of the school year, pressuring S.B. to recant reports of threats and “inappropriate touching.” The experience caused S.B. such fear “that she ‘suffered a psychotic breakdown’ and opted to run away from home to save her family,” Gregory said.

Dissenting from the majority, Judge J. Harvie Wilkinson III said the trial court was correct in dismissing Blair’s Title IX claim since the record did not indicate school employees were deliberately indifferent.

“Given what they knew about what was happening, the school employees’ actions were not unreasonable — much less clearly so. It is odd to hold, as the majority does, that action amounts to indifference,” Wilkinson wrote.

The 19-page opinion is Blair v. Appomattox County School Board (VLW 025-2-312).

‘The toughest issues’

Mary Elizabeth McAlister, an attorney with the Child & Parental Rights Campaign, represented the plaintiff.

In a press release, the organization called the 4th Circuit ruling “a milestone in protecting students under Title IX.” It went on to laud the decision for holding schools accountable for ignoring sex-based harassment and setting a precedent for student safety, while expressing disappointment that the parental rights claims were not reinstated.

Handling K-12 Title IX claims is often a challenge, according to several Virginia attorneys.

Matthew D. Green, an attorney at Sands Anderson in Richmond, said the ruling puts teachers and school administrators “under the microscope by second guessing their actions as they deal with some of the toughest issues facing educators and society.  It makes an already difficult job harder.”

Green noted Wilkinson’s dissent in pointing out that the school division took action and responded to the harassment claims — behavior that is inconsistent with the claim of deliberate indifference. He also noted that the decision only reverses the trial court’s motion to dismiss and does so from a procedural posture. The panel accepted the complaint’s allegations as true and drew all reasonable inferences in favor of the plaintiff.

Richmond education law attorney Nicholas Simopoulos agreed that Blair exemplifies “the difficult question” courts often face in Title IX cases when they must review a peer-on-peer sexual harassment claim and determine whether a school’s response was sufficient.

That is a question for the courts that depends on the particular facts and circumstances of a claim, he said. Here, although the school clearly responded to the situation, it wasn’t “in a manner that was clearly or reasonably calculated to end the harassment this child experienced,” Simopoulos said.

At minimum, he said, a school should investigate a Title IX claim by conducting “a meaningful, impartial and thorough investigation” that includes interviewing the accuser, the accused and witnesses and then determining an appropriate outcome or sanction.

“That allegedly did not happen here, and dismissal on a Rule 12(b)(6) motion, which assumes the truth of a plaintiff’s allegations, was understandably error,” Simopoulos said.

Diane Toscano, an attorney at Toscano Law Group in Virginia Beach, said the court’s decision in Blair “signals to plaintiffs that allegations of school failure to adequately address sexual harassment are more likely to survive dismissal and go to trial.”

Toscano also noted that Wilkinson said in his dissent that “courts should not second-guess school officials or risk putting federal judges in charge of day-to-day school discipline.” The panel’s divide, she added, “highlights the ongoing tension in Title IX law between meaningful enforcement to ensure student safety and deference to local educators in navigating difficult situations.”

An attorney for the school board, Melissa Y. York with Harmon Claytor, Corrigan & Wellman in Glen Allen, and Jason Wells, chairman of the Appomattox County School Board, did not respond to requests for comment on the case.

Gender non-conforming

Blair adopted S.B. at age 2. In middle school, S.B. began experiencing depression and eating disorders and engaged in self-harm. Around the end of the 2020-2021 school year, the teen was admitted for in-patient psychiatric care, and soon after was diagnosed with severe gender dysphoria.

During the first days of school, a teacher informed Appomattox County High School counselor Dena Olsen about overhearing S.B. tell a friend that S.B. wanted to use a male name and pronouns. Olsen met S.B. in the hallway and asked if she identified as a boy or a girl, to which S.B. responded a boy.

Olsen said S.B. could use the male restrooms without further exploring the assertion of a male identity, according to the court record. The next day, S.B. met with Olsen and another counselor, Avery Via.

S.B. told the counselors about verbal abuse and threats from boys on the school bus, including threats that S.B. would be sodomized and shot. Olsen and an assistant principal reviewed video from the bus and interviewed other students who confirmed that the events happened as S.B. had reported them.

S.B. also told the school employees that S.B. identified as a boy and wished to use a male name and pronouns. Olsen and Via said S.B. further informed them “that her parents were not supportive of her gender identity.”

After the meeting, Olsen called Blair to pick up S.B. at school, saying only that an “incident” occurred on the bus without providing further details. According to the court record, Blair was not aware of S.B.’s male gender assertions, and the counselors didn’t mention S.B.’s disclosure during the meeting.

Mental breakdown

The harassment continued, with S.B. reporting threats and unwanted touching in the boys’ restroom. Counselors decided the teen should begin using the bathroom in the nurse’s office. About 15 days into the school year, Olsen and a county sheriff’s deputy met with the S.B.

The counselor and deputy “implied that [the teen] had fabricated the reports of threats of rape from males and pressured her to recant her story.” The deputy also informed S.B. of a potential civil lawsuit for defamation.

Later that day, S.B. confirmed to Blair that she was identifying as a boy at school. S.B. also told Blair that a group of boys had shoved S.B. against the wall of the boys’ bathroom and made violent threats. Blair said S.B. did not have to return to school.

But later that night, apparently frightened of further threats and harm, S.B. suffered a psychotic breakdown and ran away.

According to the court record, after running away, S.B. fell victim to sex trafficking in Maryland and Texas.

Due process, ‘Monell’ claims fail

Regarding the due process claims, Blair alleged that the defendants violated her fundamental right to direct the upbringing of her daughter and her right to familial privacy. Blair brought an additional right to familial privacy claim on behalf of S.B.

The defendants filed a motion to dismiss, which the trial judge granted.

Although Blair alleged that “she had a fundamental right” to receive notice of her daughter’s gender assertions, and school officials’ failure to do so was violation of her rights, “under the facts alleged here, none support a finding that these rights are clearly established under the law,” Gregory wrote. “Accordingly, the district court properly dismissed her claims.”

On the question of Monell liability, Blair alleged that the school counselors’ actions were part of a school division protocol that directed staff to withhold information from parents if their children expressed a discordant gender identity unless the student agreed to the disclosure. The plaintiff further alleged that the superintendent and the school board were aware of this protocol.

“But such allegations are conclusory and fail to establish Monell liability even at this stage,” Gregory wrote.

In his dissent, Wilkinson said Davis v. Monroe County Board of Education set a high threshold for Title IX claims stemming from peer harassment.

“And rightly so,” Wilkinson said. “Title IX was never meant to put courts in the business of secondguessing every decision made by school administrators in responding to sexual harassment allegations,” he wrote. “In reversing the dismissal of Blair’s Title IX claim, the majority does just that.”