7th Circuit rules for high school in Title IX harassment suit

A woman who argued that her western Indiana high school inadequately responded to her alleged sexual harassment while she was a student there did not sway the 7th Circuit Court of Appeals to reverse a federal judge’s grant of summary judgment to the school on her claims.

As a student attending North Central High School in Farmersburg, Sarah Johnson in 2015 reported to the school principal that two classmates at an off-campus apartment had raped her. One of the those students had a similar allegation made against him a few months before by one of Johnson’s friends, Harley Gilliam.

Although North Central’s principal responded to Gilliam’s allegation by issuing a nocontact order between Gilliam and the alleged abuser, Garrett Froschauer, Gilliam ultimately withdrew from North Central a month later without report that she had been bullied or harassed by Froschauer.

Johnson eventually withdrew from North Central as well, and filed a complaint with the United States Department of Education Office for Civil Rights. She sued Northeast School Corporation and North Central, alleging they subjected her to discrimination on the basis of sex in violation of Title IX, 20 U.S.C. § 1681(a). She also claimed they violated state law by failing to have an anti-bullying policy

Johnson cited a declaration from the executive director of nonprofit Stop Sexual Assault in Schools, Dr. Esther Warkov, who stated that she had knowledge of North Central’s failure to enforce Title IX in the case. She additionally cited the OCR’s report detailing the findings of its Title IX investigation.

The school moved for summary judgment and the U.S. District Court for the Southern District of Indiana, Terre Haute Division, granted the motion on all claims. It additionally excluded the declaration and report.

Appealing to the 7th Circuit, Johnson argued against the district court’s decision to exclude Dr. Warkov’s declaration and the OCR report. She further argued that NESC was not entitled to summary judgment on her Title IX claim.

The 7th Circuit affirmed in Sarah Johnson v. Northeast School Corporation, 19-2870, finding any arguments that Johnson attempted to make about Dr. Warkov’s declaration and the OCR report to be undeveloped and unsupported. It therefore found her arguments waived on those issues. As to the Title XI claim, the 7th Circuit agreed with Johnson’s assertion that NESC had knowledge of her alleged harassment.

“We are skeptical, however, that the conduct Johnson describes occurring at North Central rises to the level of severe, pervasive, and objectively offensive sexual harassment. But we need not resolve these issues because, assuming the entire course of conduct in this case amounts to severe sexual harassment, NESC was not deliberately indifferent to this harassment,” Chief Judge Diane Sykes wrote for the 7th Circuit panel.

First, it concluded that NESC’s response to Gilliam’s allegation was not clearly unreasonable. Rather, the 7th Circuit wrote, “it was reasonable for Principal (Monty) Kirk to defer to law enforcement and DCS where the sexual assault occurred off campus and criminal charges were a possibility.”

It’s true that Principal Kirk could have done more to investigate Gilliam’s specific claims. As Johnson suggests, he could have reached out to DCS employees to get a copy of the report and confirm the results of the investigation. But blaming NESC for failing to take the specific actions that Johnson would have preferred it to take ‘sounds in negligence, not deliberate misconduct,’” the 7th Circuit wrote.

Additionally, it concluded that Johnson cannot now claim that NESC conducted “a lackluster investigation that amounts to deliberate indifference when it was others who stifled its attempt to conduct one.”

“In sum, NESC responded to Johnson’s claims of harassment immediately after (her grandmother Leslie) Hawker informed Principal Kirk that Johnson had been raped offcampus. Its overall response included complying with and attempting to get information from a police investigation, attempting to conduct its own Title IX investigation, issuing a nocontact order, and responding to individual claims of harassment each time Johnson or Hawker reported them to Principal Kirk. This response is not clearly unreasonable, and therefore NESC was not deliberately indifferent to Johnson’s alleged sexual harassment,” the 7th Circuit concluded.

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