Federal Judge Permits Suit from Parents Challenging School’s Assumption of Consent in Title IX Incident Involving Students with Cognitive Disabilities

Doe v. Dennis-Yarmouth Regional School District,

No. 21-CV-10172-PBS, 2022 WL 36480 (D. Mass. Jan. 4, 2022).

By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG Consulting

A 16-year-old female student, with significant cognitive impairments and the mental capacity of a six-year-old, alleged sexual assault by another student. The school deemed the behavior consensual and did not investigate the matter. Her parents sued the school for Title IX violations, claiming the school’s response was deliberately indifferent, both before and after the incident.

PROCEDURAL HISTORY

Jane Doe’s parents (“Plaintiffs”) alleged that another student sexually assaulted, harassed, and abused Jane. Plaintiffs asserted various federal, constitutional, and state law claims against Dennis-Yarmouth Regional School District (“Dennis-Yarmouth”)[1], including an alleged violation of Title IX.[2]

Plaintiffs also asserted claims against the head of the educational program and Jane’s assistant, as individuals, under various Massachusetts state laws.

Dennis-Yarmouth moved to dismiss the claims.

SUMMARY OF FACTS

At the time of the alleged assault on February 5, 2018, Jane had a chronological age of sixteen, but she had the mental capacity of a six-year-old child.[3] Based on her disability, Jane’s individualized education plan (“IEP”) required that she have a one-to-one assistant for the entire school day at Dennis-Yarmouth, including when Jane needed to use the restroom.

Plaintiffs allege that, despite such requirements, when a one-to-one assistant was absent from school, the administration often failed to provide a substitute assistant. As a result, there were not enough staff members to supervise all program students.

Additionally, Dennis-Yarmouth staff members had a thirty-minute lunch break each day. During their lunch break, staff members’ contracts prohibited them from working. Plaintiffs assert that Dennis-Yarmouth did not account for this break when staffing the school. Consequently, there was no guarantee that students needing one-to-one assistants would have supervision during their assistants’ lunch breaks. The Plaintiffs allege that the culmination of these staffing practices ultimately created the circumstances leading to their daughter’s sexual assault while at school.

On February 5, 2018, Jane and Christopher Coe (a student with Down’s Syndrome who also requires one-to-one supervision) were eating lunch in the cafeteria. Christopher’s one-to-one assistant was absent that day, but Dennis-Yarmouth did not provide a substitute. During lunch, Jane went to the staff table, which included Jane’s assistant, to ask to use the restroom. Jane then went to the restroom alone.

Christopher asked the aides at the staff table if he could go to the water fountain. Christopher preceded to go to the water fountain alone. Christopher then approached the girls’ restroom and waited outside. When Jane exited the girls’ restroom, Christopher asked Jane to go with him into the boys’ restroom. Jane and Christopher entered the boys’ restroom shortly thereafter.

Christopher then removed all of Jane’s clothing. Jane stated that Christopher was not being nice to her, touched her “front butt,”[4] and hugged her while they were naked.

Eventually another assistant alerted Jane’s assistant that Christopher and Jane were in the boys’ bathroom. When Jane’s assistant entered the bathroom, Jane and Christopher were naked in the large bathroom stall. Jane reported they had been wrestling.

As a result of this incident, Jane withdrew from Dennis-Yarmouth. Dennis Yarmouth’s Title IX Coordinator, Maria Lopes, later wrote that she did not conduct an investigation into the assault because “the February 5, 2018 encounter between [Jane] and the other student had been viewed as a mutual two-sided interaction.”[5]

FINDINGS AND SIGNIFICANT ISSUES

When considering a motion to dismiss, the court must assume all the plaintiff’s factual allegations are true, and analyze solely whether they could, if proven, add up to liability for the defendant under the causes of action pled.

Plaintiffs argued that Dennis-Yarmouth was deliberately indifferent before and after the incident. Before the incident, Plaintiffs asserted that Dennis-Yarmouth had notice that there were not enough staff members to properly supervise students in the special needs program. Therefore, Dennis-Yarmouth knew there was a risk the students would be unsupervised at certain points in the day. The Plaintiffs argued “but-for” Dennis-Yarmouth’s policies leaving students unsupervised, the sexual assault would not have taken place. The District Court rejected this argument because the Plaintiffs failed to claim that Dennis-Yarmouth had knowledge that sexual harassment could occur if the students were left alone. Plaintiffs also failed to allege that the failure to supervise constituted deliberate indifference.

Alternatively, after the incident, Plaintiffs alleged that the school had knowledge of harassment that was severe, pervasive, and objectively offensive, and its failure to investigate amounted to deliberate indifference. Plaintiffs argued that the Title IX Coordinator’s decision not to conduct a Title IX investigation into the assault and labeling it a consensual “mutual two-sided interaction”[6] could be considered deliberately indifferent, as it involved two students with cognitive disabilities. The Court agreed. Given Jane’s disability and reduced mental capacity, Dennis-Yarmouth’s alleged determination that the sexual activity between Jane and Christopher was “mutual” could illustrate “an investigation that was so deficient as to be unreasonable.”[7]

Dennis-Yarmouth argued that its response could not be considered unreasonable because Plaintiffs withdrew Jane from school after the incident. The Court rejected this argument, asserting that Title IX liability can arise after a student withdraws from school.

Ultimately, the Court denied the Defendants’ motion to dismiss the Title IX claim, so the litigation will continue to trial if it does not settle.

KEY TAKEAWAYS

  • When schools have Title IX reports alleging conduct involving a student with a disability, schools may need to consider the student’s disability when they are assessing the situation and determining the school’s response. In this case, the Title IX Coordinator should have considered whether Jane’s disability could impact her ability to provide consent. Given that Jane had the mental capacity of a six-year-old, the Title IX Coordinator’s assessment that Jane could consent was likely unreasonable, opening the district to liability for deliberate indifference in its response. A Title IX Coordinator needs appropriate training to understand the limits and boundaries of their initial assessment to ensure they do not overreach and supplant the need for an investigation.
  • Schools assessing Title IX reports involving students with disabilities must notify and consult with the students’ parents or guardians, as well as knowledgeable professionals, like the ADA/Section 504 Coordinator and/or Director of Special Education. The Title IX Coordinator may not have the expertise to understand how a student’s disability may have impacted the alleged behavior, the student’s response, or the student’s ability to participate in the Title IX process. Further, the student may have rights protected by the ADA/Section 504 that could intersect with the Title IX process.
  • Finally, hear the case before you decide it. Professionals in the Title IX world are often both sharp and experienced, meaning that they can often readily predict the outcome of a Title IX complaint when it is first filed. Despite that, a conclusion that something was consensual (unless competent parties testify that it was) is a conclusion that really can only be reached by the fact-finding process of investigation and subsequent decision under applicable policy. Current regulations intentionally prohibit Title IX Coordinators from making substantive determinations of the ultimate question of whether a policy violation occurred. Had the district investigated and concluded the conduct as consensual, that outcome would be harder to attack in court than a decision not to investigate at all. Under Title IX, investigation in these types of circumstances, rather than dismissal, is almost always the right answer. Skipping an investigation should be a rare exception, especially where consent is in question, and administrators initially won’t know what really happened without the fuller picture that an investigation can provide.

[1] Count I alleged Dennis-Yarmouth was negligent under the Massachusetts Tort Claims Act (M.G.L. c.258 Section 2) in failing to supervise students who required one-to-one supervision for the entire school day. Count II alleged deprivation of due process rights under 42 U.S.C. 1983. Count III alleged a violation of Section 504 of the Rehabilitation Act (29 U.S.C. 794).

[2] 20 U.S.C. 1681-1686.

[3] The age of consent in Massachusetts is 16.

[4] 2022 WL 36480, par. 9.

[5] 2022 WL 36480, par. 11.

[6] Id.

[7] Id. at par. 49.