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Two school districts facing a Title IX lawsuit brought by a student with disabilities who alleges she was sexually assaulted won summary judgment this week, but the federal judge may relinquish jurisdiction over the state-law claims.
E.C., who is developmentally and cognitively disabled, was a 15-year-old freshman at Eastern Hancock High School in 2017, when she alleges that she and a senior arranged to have sex in a school bathroom. Employees learned about the incident shortly after the encounter and contacted the Indiana Department of Child Services, the sheriff’s department and both students’ parents.
The school and the parents of the senior, Samson Livingston, agreed to let him finish his remaining courses remotely. The school also created a plan with E.C.’s parents that required E.C. to be escorted at all times on school grounds.
Before transferring to Eastern Hancock, Livingston had attended New Palestine High School. He received special education services throughout his high school career.
Livingston’s troubles at New Palestine included putting a laxative in a female classmate’s coffee and an accusation from his female show choir partner that he touched her inappropriately several times.
New Palestine investigated the allegations. While the investigation didn’t reveal conclusive evidence that his actions were intentional, it concluded the actions did create an “environment where some female students in the choir class were uncomfortable.”
Livingston was not disciplined, but the school ordered that he and his show choir partner could no longer be dance partners.
Livingston transferred to Eastern Hancock in early 2017.
A school administrator requested his records from New Palestine, which sent a disciplinary history that said “None.” That’s because the laxative incident was expunged, and unverified allegations of sexual assault or harassment aren’t noted in a student’s official record.
Eastern Hancock’s principal later said that if he had been told of the allegations against Livingston, he would’ve had “serious concerns” and investigated further.
Before his encounter with E.C., school officials investigated an incident involving an inappropriate email Livingston sent to a female student, although the assistant principal concluded the conversation was consensual.
Also prior to the encounter was E.C.’s relationship with another student, K.D., who asked her to be his girlfriend.
The designated evidence only shows that they held hands, but E.C.’s mother contacted a special education teacher about the relationship, saying that she believed K.D. was “too touchy feely” and that she was afraid he would make “lewd comments.”
Nothing more came of the issue, but the assistant principal reported the situation and made the school aware that E.C. was “especially susceptible to engage with boys who were interested in her,” and that the school was “watching her carefully.”
By her parents as next friends, E.C. filed a lawsuit against the two school corporations and Livingston.
Against Eastern Hancock and Southern Hancock Schools, the latter of which operates New Palestine High School, E.C. brought claims under Title IX of the Education Amendments Act of 1972 and Indiana negligence law. Against Livingston, she brought state-law claims of sexual battery, sexual assault and intentional infliction of emotional distress.
The school districts moved for summary judgment, which the court partially granted Monday.
The districts won summary judgment on E.C.’s Title IX claim, but Indiana Southern District Court Judge James Hanlon ordered the parties to show cause why the court shouldn’t relinquish jurisdiction over the state-law claims against the districts and Livingston.
The deadline to show cause is Sept. 22. If the parties don’t respond, the court will dismiss the claims without prejudice.
E.C. alleged Southern Hancock violated Title IX by being deliberately indifferent to Livingston’s “peer-on-peer harassment” at New Palestine and by facilitating his transfer to Eastern Hancock.
But Southern Hancock argued it was entitled to summary judgment because E.C. never attended New Palestine or any other Southern Hancock school.
The 7th Circuit Court of Appeals hasn’t directly addressed when a school can be liable under Title IX for a sexual assault when the plaintiff didn’t participate in that school’s educational opportunities, Hanlon’s order says.
But he noted the 1st and 6th Circuits have concluded that for a school to be liable under Title IX, the plaintiff must have participated or attempted to participate in the defendant’s educational programs or activities. Specifically, he cited Doe v. Brown Univ., 896 F.3d 127 (1st Cir. 2018), which he said was “particularly instructive” because it relied on two U.S. Supreme Court opinions.
“Therefore, no action or inaction attributable to Southern Hancock could have interfered with E.C.’s access to any of Southern Hancock’s educational programs or activities,” Hanlon ruled. “That places E.C.’s claim against Southern Hancock beyond the scope of Title IX in this case.”
For its part, Eastern Hancock argued it couldn’t be liable under Title IX because E.C. didn’t designate evidence that would allow a jury to find the school was deliberately indifferent or that its response to learning of E.C.’s allegations against Livingston was clearly unreasonable.
E.C. argued Eastern Hancock knew she was vulnerable to engaging with male students and still failed to step in.
Hanlon again sided with the school district, ruling the school’s actions — including the special education teacher monitoring E.C. and K.D. — demonstrate this isn’t a case of a school learning of problems and doing nothing.
“Instead, upon discovering problematic behavior, it engaged in proactive steps to try to stop it from happening again,” the order says. “So even though EHHS’s actions did not prevent E.C. and Mr. Livingston from interacting and engaging in sexual contact in the bathroom, schools are not liable merely if their response is ultimately unsuccessful.”
Hanlon also wrote the factors weigh in favor of the court relinquishing jurisdiction of the remaining state-law claims.
Part of the problem, Hanlon ruled, is that resolving E.C.’s negligence claim against Southern Hancock would require recognizing a new common law duty by evaluating the relationship between the parties, as well as the foreseeability of harm and public policy concerns.
It’s unclear, he wrote, how the Indiana Supreme Court would define the foreseeability of harm or evaluate relevant public policy concerns.
He said the outcome of E.C.’s negligence claim against Eastern Hancock is also uncertain under state law because state courts haven’t clarified how a school’s liability applies in negligence claims based on sexual assault.
Finally, for her claims against Livingston, because neither he nor E.C. moved for summary judgment on the claims of sexual battery, sexual assault and intentional infliction of emotional distress, Hanlon ruled “it appears that they must be resolved at trial.”
The case is E.C., by next friends Mario C. and Kim C. v. Community School Corporation of Eastern Hancock County, Community School Corporation of Southern Hancock County, Samson T. Livingston, 1:19-cv-03563.
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