In March, the U.S. District Court of the Western District of Washington ruled against a school district in favor of a student with intellectual disabilities, who was awarded $500,000 by a jury based on the district’s failure to address repeated acts of peer sexual harassment against the student. In the lawsuit, the plaintiff alleged that the school district violated the student’s due process and equal protection rights, violated Title IX, violated the Washington Law against Discrimination, and was negligent. The jury returned a verdict in favor of the plaintiff on her due process, equal protection, and negligence claims, and the court denied the district’s motion to set the verdict aside.
The case, Berg v. Bethel School District, is instructive on a range of issues relating to sexual misconduct involving students with disabilities, including a school district’s duty to protect a student with disabilities from sexual harassment even when the student does not explicitly object to the misconduct.
Background of case
The student, a female ninth grader with cognitive disabilities, was sexually harassed and assaulted by a male special education student. The plaintiff claimed that the district knew the male student had an extensive history of sexual assaults against other students with disabilities and failed to protect the plaintiff from a known risk of harm.
While the school noted in his evaluation that the male student required close oversight due to “voluminous” warnings detailing his past pattern of sexual misconduct, the school removed the male student’s one-to-one supervisor, who was needed all day at school to keep the student from sexually assaulting and abusing other children, from his IEP plan without notice. Following the supervisor’s removal, the student began to sexually abuse and harass the plaintiff both inside and outside of their special education class, including by inappropriate touching, and culminating in a sexual assault involving penetration in a porta-potty by the high school football field.
The special education teacher and classroom paraeducators kept a running log of the in-class harassment and shared their notes with school officials. However, no school official intervened to protect the plaintiff or her classmates from the male student in the classroom. When paraeducators discovered the plaintiff and the male student in the porta-potty, the Vice Principal emergency expelled both students, accusing them of lewd and/or vulgar conduct.
In his deposition, the Vice Principal stated that he did not characterize the male student’s conduct towards the plaintiff as sexual harassment because the plaintiff did not outwardly object: “Sexual harassment has to have—the other person has to be actively—or the person has to object to what’s going on for it to be harassment.” Other school district officials agreed that the male student’s conduct did not meet the standard of sexual harassment. One school official even testified, “I didn’t view the behavior between [the two students] as sexual harassment because her profoundly limited cognitive abilities didn’t permit her to object.”
Knowledge of ongoing harassment
The court found that there was substantial evidence to support the jury’s verdict that the Superintendent, on behalf of the district, either intentionally or with deliberate indifference failed to report abuse and neglect as required by state law, and that the district’s failure to report the male student’s harassment of the plaintiff directly caused the student harm. Notably, the court highlighted that even if the Superintendent were not aware of a specific incident when the male student allegedly sexually abused the plaintiff, “sufficient and substantial evidence” supported a reasonable conclusion that the Superintendent was aware of the male student’s “ongoing, abusive behavior” towards the plaintiff and had knowledge of the male student’s prior history of sexual abuse and assault that could render the district liable for inaction.
Differential treatment of students with disabilities in sexual misconduct policy
The plaintiff also argued at trial that the district’s enforcement of its peer-to-peer sexual harassment policy violated her equal protection rights by treating the student differently based on her disability. The school’s sexual harassment policy stated in part, “For the purpose of this policy, student to student sexual harassment is defined as any unwanted sexual behavior.” To support her claim of differential treatment, the plaintiff cited 1) the district’s failure to enforce its policy in the special education classroom and 2) the policy’s presumption of consent unless a student objected to sexual harassment, which she could not do due to the nature of her disabilities. Oddly, the district conceded that it did not apply its sexual harassment policy to situations in the high school’s special education classroom “because there was constant supervision” while also testifying that a particular incident in question between the male student and plaintiff was “not sexual harassment” because the student “did not object to the conduct.” The court found that there was substantial evidence to support the jury’s verdict that the district’s policy—and its application thereof—lacked a rational basis for its differential treatment of students with disabilities.
While this case was decided outside of our jurisdiction, the court’s decision serves as a useful reminder for school districts to consider how their sexual misconduct policies may apply to students with disabilities. Districts should ensure that their policies do not base a determination of sexual misconduct solely or primarily on a student’s reaction (or lack thereof) to potential sexual harassment. Issues to consider when reviewing your policy may include how you define consent, how you determine unwelcome conduct, what it means for a student to be denied access to educational opportunities, and how a student’s mental capacity—including the lack of capacity due to disability or intoxication—may factor into these considerations. Districts may also need to train school officials to assess for potential misconduct even when parties do not outwardly appear to object to the conduct in question—especially when the interactions involve students with disabilities, which may require a nuanced analysis. In addition, the case reminds school districts that they may be liable for failure to respond to ongoing sexual harassment even when its officials may not have actual knowledge of each specific incident.
Please contact any of our Special Education and Title IX attorneys if you have questions about any of the issues above and how they may relate to your district’s obligations that arise during sexual misconduct cases involving students with disabilities.
*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.v