Fourth Circuit panel hears oral argument in case over expansion of Davis deliberate indifference standard
On December 10, 2014, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit heard oral argument in Does v. Board of Education of Prince George’s County, No. 13-2537. The appeal addresses the issue of whether the deliberate indifference standard established for student-on-student sexual harassment claims, in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), should be relaxed to incorporate common law negligence principles .
Council of School Attorneys (COSA) member Leslie R. Stellman of PK Law in Townson, Maryland attended the argument and has provided the following synopsis of the oral argument:
Oral argument on an appeal from the District Court for the District of Maryland’s dismissal, on summary judgment, of a Title IX and negligence claim arising out of alleged same-sex student-on-student sexual harassment was heard before Judges Harvey Wilkinson, Paul Niemeyer, and Robert King. Abbey Hairston argued the case for the The Prince George’s County Board of Education, while Laura Abelson of the Baltimore law firm Brown Goldstein argued for the Does.
Ms. Abelson began by contending that there were numerous disputed facts that should have gone to the jury, and that those facts added up to “deliberate indifference.” She claimed that the school system failed to reasonably respond to harassment and that the district court misapplied the standard for summary judgment.
Judge Wilkinson immediately expressed concern that the Does’ “problem is with the Davis standard,” that it was “not just negligence,” and that “deliberate indifference” requires that the Board was “clearly unreasonable” in its response to alleged harassment. He accused the Does of trying to create a “triable issue of negligence,” when the standard is much higher. Ms. Abelson replied that under Davis, deliberate indifference could be demonstrated by merely showing that the school’s actions made a student more vulnerable to harassment. She contended that the school’s responses were not calculated to be effective.
Judge King observed that, with multiple grades being taught in the same room in a Montessori School, there is more going on for the teacher to be responsible for observing. Judge Wilkinson pointed out that the school contacted the parents of the alleged harasser and placed the student on behavioral probation, then gave him a week of in-school suspension, which the Does’ lawyer conceded was served in the school office.
After some discussion between the Does’ counsel and Judge Neimeyer about alleged incidents which the District Court failed to consider, a discussion ensued about the options given to allow J.D. (the plaintiff) to avoid being in the bathroom at the same time as his alleged harasser (M.O.). Judge Wilkinson then opined: that this was not a school system that, as in Davis, “kissed the whole problem off. “ He recognized that there are a variety of student interactions every day for administrators to deal with and if they were to “jump down M.O.’s throat, his parents would sue the school.”
Judge Wilkinson referred to the events in the case as “isolated events between two people” in a classroom with constantly changing dynamics, and that “it is all a teacher can do to give instruction.” He insisted that the standard of avoiding deliberate indifference is not necessarily making the harassment stop altogether.
When the Does’ counsel invoked the OCR’s DCL standard, Judge Wilkinson insisted that “that is not the standard. That may deal with funding between the federal Department of Education and local school systems.” He rejected the Does’ lawyer’s contention that if the Department of Education funding is contingent on compliance with the DCL, then a jury should follow the DCL.
When Abbey Hairston commenced her argument on behalf of the Board, Judge King confirmed with her that the lawsuit did not seek injunctive relief, only monetary damages. This later led both Judges Wilkinson and King to severely criticize the Does’ lawyer (during her rebuttal argument) about suing the acting principal for money. Ms. Hairston pointed out that the school system recognized the Does’ concerns, but had to take into account the alleged harasser’s rights, the fact that none of the incidents were reported in a timely fashion, and that nonetheless the school system acted as if each incident were as reported by J.D.
When asked by Judge Wilkinson what concrete steps were taken to resolve the problems, she described the school’s code of conduct, which was invoked in an effort to stop any harassment. Judge Wilkinson indicated that, having taught school, he knew that “its hard being a teacher.” Judge Wilkinson agreed that the school “came down hard” on M.O., but that expelling him would have resulted in a lawsuit.
During J.D.’s rebuttal argument, Judge King stated that “you can’t expect us to second guess schools. You want damages against the school and its decision-makers, who you would make personally liable for damages for making the wrong decision. You would have the Fourth Circuit intervene whenever a decision is made where to seat a child or which room to put him in. We would be opening the door to 1,000’s of lawsuits against schools, teachers, staff, and the courts will take over the role of the school administrators. It bothers me that people have to make tough decisions, and even when they are trying, there are already enough difficulties running a school and teaching students. It would be impossible to recruit teachers if the courts were hostile to educators. Whatever you think in hindsight, the school system here tried. You don’t need a jury to determine that there was no deliberate indifference.”
Judge Wilkinson concluded the argument by saying, “we’re not in the business of second guessing teachers’ decisions in the classrooms. We will not make them personally liable.”
As they left the bench to shake hands with the attorneys (a 4th Circuit tradition), Judge Niemeyer told Ms. Hairston that she had presented an “excellent argument.”
I cannot predict the results with certainty, but I would be more than willing to bet quite a bundle on the outcome of this case. The judges were clearly unsympathetic to the plaintiffs, and were unwilling to even consider the DCL for guidance on burdens of proof in Title IX cases as against the Davis deliberate indifference standard. For these reasons, I am quite optimistic that the case will be decided favorably, and that the deliberate indifference standard will be upheld once again.
[Editor’s Note: In June 2014, the National School Boards Association (NSBA) and the Maryland Association of Boards of Education (MABE) filed an amicus brief in support of the Prince George’s County Board of Education. The Legal Clips Sua Sponte item announcing filing of the brief stated:
NSBA/MABE’s brief urges the Fourth Circuit to reject the plaintiffs’ plea to expand Davis using the U.S. Department of Education‘s (ED) Office for Civil Rights (OCR) enforcement guidance and expert opinions on proper investigations or interventions.
In addition to arguing against adoption of OCR’s enforcement guidance on the ground that it fails to meet the Davis standard’s higher bar, the brief asserts that local school officials are in the best position to respond to known incidents of harassment or bullying, as demonstrated by long-standing judicial precedent deferring “to school officials’ decision-making in matters of student discipline and maintaining an orderly, safe learning environment, including peer harassment claims under federal civil rights statutes.”]