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T.Y. v. Shawnee Mission School District USD 512

United States District Court, D. Kansas

June 6, 2018

T.Y., as Parent and Next Friend of P.Y., a Minor, Plaintiff,


          Daniel D. Crabtree United States District Judge

         Plaintiff T.Y. alleges that his daughter, P.Y., was sexually assaulted by another student at her school. Plaintiff brings this lawsuit against defendant Shawnee Mission School District USD 512 (the “District”) and defendants Jim Hinson, Jeremy McDonnell, Jade Peters, and Craig Denny, in their individual capacities (collectively, the “individual defendants”), for their actions before and after the alleged sexual harassment. Plaintiff asserts four claims against defendants- two against the District and two against all defendants. Plaintiff asserts that the District violated Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq. and 42 U.S.C. § 1983 when it denied P.Y. substantive due process through policy, custom, and practice. And Plaintiff asserts claims against all defendants under § 1983 for allegedly violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

         Defendants ask the court to dismiss all four of plaintiff's claims under Rule 12(b)(6) for failing to state a claim. In Section III, below, the court discusses defendants' arguments and plaintiff's responses. The court concludes that the Complaint sufficiently alleges facts to state claims in Counts I, II, and IV, but fails to do so in Court III. And so, the court grants defendants' motion in part and denies it in part.[1]

         I. Facts

         The following facts are taken from plaintiff's Second Amended Complaint (Doc. 18). For brevity's sake, the court refers to this pleading as “the Complaint” and accepts the facts it asserts as true and views them in the light most favorable to plaintiff. Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citing Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)).

         A. Assault and Investigation

         During the 2016-2017 school year, P.Y. was enrolled in the eighth grade at Westridge Middle School (“Westridge”) in the Shawnee Mission School District. Around February 28 or March 1, 2017, P.Y.-with other students-was assigned to a study hall in one of the school's classrooms. During study hall, P.Y. sat next to a male student, A.H. At some point during study hall, A.H. forcibly put his hands down P.Y.'s pants and penetrated her. P.Y. was shocked and frightened; she froze and did not react immediately. Two teachers were assigned to supervise study hall and both were in the room when A.H. allegedly sexually assaulted P.Y.

         At some time between March 1 and 3, 2017, Westridge school officials-including Principal Jeremy McDonnell and Assistant Principal Jade Peters-learned about A.H.'s alleged sexual assault on P.Y. School Resource Officer (“SRO”) Dana Harrison-a law enforcement officer stationed at Westridge-also learned about the alleged sexual assault and took P.Y.'s statement.

         During SRO Harrison's investigation, he told P.Y.'s mother that A.H. allegedly had made unwelcome physical contact with at least three other female students before he did so with P.Y. SRO Harrison told P.Y.'s mother that he first learned about this physical contact with others when he looked at the student file for A.H. Other female students had complained to the District about this physical contact, leading to the documentation in A.H.'s student file. SRO Harrison told P.Y.'s mother that he never had seen so many complaints about a boy as young as A.H.

         Assistant Principal Peters also told P.Y.'s mother that she knew A.H. allegedly had assaulted other female students before P.Y.'s complaint. A policy of the District's known as “JCE” requires the building principal to be informed about any complaint about sexual discrimination or sexual harassment against any student at the principal's school. And so, Principal Jeremy McDonnell also knew or should have known about the other allegations against A.H.

         During one of the prior episodes, A.H. talked to a female student in a sexually suggestive manner and touched her in an unwelcome manner. Another episode involved A.H. touching a female student's buttocks. During another episode, A.H. took a female student's cell phone. When she tried to retrieve the phone from him, he pinned her to a wall and groped her in an unwelcome manner.

         By March 3, 2017, SRO Harrison had filed a police report with the Johnson County District Attorney's Office about A.H.'s assault of P.Y. At that same time, SRO Harrison also informed the District Attorney's Office about the other prior allegations against A.H. In early March 2017, a representative of the District Attorney's Office told P.Y.'s mother that SRO Harrison did not know about these prior allegations against A.H., and that a detective would investigate those allegations. Around March 8, 2017, the Johnson County District Attorney's Office filed a charge of “aggravated indecent liberties with a minor” against A.H. based on the alleged sexual assault of P.Y.

         B. A.H.'s Suspension and Board of Education Meeting

         Around Friday, March 3, 2017, Assistant Principal Peters informed P.Y.'s mother that the District would suspend A.H. for 10 days. The District's spring break was scheduled for Monday, March 13, 2017 through Friday, March 17, 2017. Ms. Peters initially informed P.Y.'s mother that she anticipated A.H. would return from his suspension on March 20, 2017-the Monday after the District's spring break. And so, the District evidently intended to allow A.H. to count spring break days during the week of March 13 through 17 toward his ten-day suspension. Westridge previously had suspended P.Y. for an unrelated event, and the school did not let her count non-school days toward her suspension.

         P.Y.'s mother was upset that the District might allow A.H. to return to school, and contacted Ms. Peters to request that the District expel A.H. P.Y.'s mother contacted Ms. Peters before and during spring break to determine whether A.H. would be returning to school after spring break. At that time, Ms. Peters told P.Y.'s mother that she could not say-definitively- whether the District would permit A.H. to return to school after his suspension. Around March 17, 2017, Ms. Peters requested information from P.Y.'s mother about the criminal charges filed against A.H. P.Y.'s mother referred her to the Johnson County District Attorney's Office. Around March 20, 2017, P.Y.'s mother contacted Westridge again and requested that A.H. not be permitted to return to school. In response, P.Y.'s mother received notice that A.H. would not return to the school for the remainder of the 2016-2017 school year. But she also was advised that A.H. would be permitted to return in about six months when the next school year began.

         On March 27, 2017, P.Y.'s mother attended a public Board of Education meeting for the District. Before the meeting began, she met and introduced herself to Craig Denny, Vice-President of the District's Board of Education. She told Mr. Denny about her daughter's sexual assault. During the Board of Education meeting that followed, P.Y.'s mother spoke about her daughter's sexual assault and the prior allegations against A.H. She requested better protection for students' safety by the District. The District's Superintendent, Jim Hinson, attended and thus knew about P.Y.'s allegations.

         Also, during this Board of Education meeting, P.Y.'s mother hand-delivered a letter to the District Board of Education. Specifically, she addressed the letter to “Craig Denny” and also to the other board members, generally. In the letter, P.Y.'s parents informed Mr. Denny and the Board of Education about the sexual assault their daughter had suffered at Westridge, and also explained that the school knew about the earlier incidents of alleged misconduct by A.H. against other female students. But the letter explained that SRO Harrison only had learned about A.H.'s prior episodes while interviewing individuals about P.Y.'s assault. Specifically, P.Y.'s parents wrote, “It was at that time, during Officer Harrison's interviews that the school then made it known that [A.H.] had 3 previous complaints” against him.

         P.Y.'s parents used the letter to inform the Board of Education that the Johnson County District Attorney's Office had charged A.H. with aggravated indecent liberties with a child, based on his alleged assault of P.Y. P.Y.'s parents also explained that the District Attorney's Office told them that “since the school had not reported [A.H.'s earlier misconduct] prior to now an investigation will be done and additional charges are likely.” Finally, the letter referenced an article published by The Kansas City Star on October 3, 2016. The article reported that a charge of sexual assault was filed against a male student from another school within the District, and attached a copy of the article to the letter to the Board of Education.

         This article reported that a male student at Shawnee Mission East High School allegedly sexually assaulted two other students in September 2016 and exposed himself to a third student in April 2015. He allegedly victimized one of the female students twice. That male student was charged with three felony counts of aggravated indecent liberties with a child and one felony count of lewd and lascivious behavior, according to the article. The charges involved “lewd fondling or touching”-just like the charges against A.H. for his sexual assault of P.Y. In the article, the Johnson County District Attorney, Stephen Howe, confirmed the District had not reported the April 2015 incident to his office, and that he “cannot explain the reason why.” The District Attorney's Office, however, filed charges for the April 2015 incident once they knew about it.

         On or around April 4, 2017, P.Y.'s mother received a response from the Board of Education. This response included policies and information about certain topics raised by individuals during the Board meeting. But the response did not address the concerns raised by P.Y.'s mother directly.

         Also on April 4, 2017, the District Attorney's Office filed an Amended Complaint in the pending criminal matter against A.H. The amendment added three additional battery charges (each a class B person misdemeanor) charging A.H. with making unwelcome contact with female students on three separate occasions. One charge alleged that A.H.'s conduct spanned from December 1 through December 31, 2016, another alleged an incident occurred on February 23, 2017, and the third claimed an incident occurred on February 24, 2017.

         C. A.H. Convicted for His Actions Against P.Y. and Others

         In December 2017, the four charges against A.H. proceeded to trial in Johnson County, Kansas. At the trial, three other students, all female and all alleged victims, testified about batteries before P.Y.'s alleged assault. Specifically, one victim testified that A.H. took her cell phone and retreated to the stairwell with it, presumably to lure her there. After she followed him into the stairwell, A.H. allegedly pinned her to the wall and groped her. Another victim testified that A.H. had engaged in a pattern of ongoing, unwanted contact with her-specifically while the two were on the school bus. The unwanted contact occurred so often, she testified, that she developed a warning system she used with the bus driver. The victim would make a signal-a wink or nod-to inform the bus driver that she wanted to be separated from A.H. This behavior occurred in December 2016-before P.Y.'s alleged assault. P.Y. also testified about the sexual assault she endured. The court found A.H. guilty on four charges. A.H.'s sentencing hearing occurred on January 10, 2018. The court sentenced A.H. to seven days in a juvenile facility, 21 days of house arrest, 12 months of probation, and placement on the sex offender registry.

         P.Y. has experienced difficulty talking about the assault because she feels shame and fear. To date, defendants have not offered P.Y. counseling or any other type of mental health services. Plaintiff alleges that because of the sexual assault, and defendants' failure to prevent the assault and otherwise take appropriate remedial actions, P.Y.'s grades have suffered and she has sustained emotional distress. For example, following the assault, once, P.Y. went out to eat with her family and saw A.H. at the restaurant. This upset P.Y. a great deal. The Complaint in this case alleges that P.Y. has experienced emotional distress caused by defendants' acts and omissions-particularly the omissions by Principal McDonnell and Vice Principal Peters. It also alleges that P.Y. struggles to go out in public, even with her family, for fear of running into A.H. again.

         D. District Policies

         The District has policies and procedures in place to prevent and remedy harassment, discrimination, and violence. Under those policies, the District must take appropriate action to prevent, address, investigate, and remedy such harms. Specifically, one policy in the Westridge student handbook provides:

Harassment Discrimination on the basis of race, ethnicity, disability, religion, or sex in educational institutions will not be tolerated. Such behavior is inappropriate and in violation of Board Policy JCE. All complaints of harassment will be thoroughly investigated and resolved in a prompt and equitable manner. All complaints will be confidential, and reported to the appropriate authorities. Violations of this policy will be treated as serious disciplinary infractions and may result in suspension or expulsion.

Doc. 18 at 13. Likewise, the District handbook provides:

Harassment: Discrimination on the basis of race, ethnicity, disability, religion, or sex in educational institutions will not be tolerated. Such behavior is inappropriate and in violation of Board Policy JCE. All complaints of harassment will be thoroughly investigated and resolved in a prompt and equitable manner. All complaints will be confidential, and reported to the appropriate authorities. Violations of this policy will be treated as serious disciplinary infractions and may result in suspension or expulsion.

Id. at 14. And, the District Policy known as the JCE provides:

The district is committed to maintaining a working and learning environment free from discrimination, insult, intimidation, or harassment due to race, color, religion, sex, age, national origin, or disability.
Any incident of discrimination including acts of discriminatory harassment shall promptly be reported for investigation and corrective action by the building principal or deputy superintendent. Any student who engages in discriminatory conduct shall be subject to disciplinary action, up to and including expulsion from school.
Discrimination and discriminatory harassment against any student on the basis of race, color, national origin, sex, disability, or religion in the admission or access to, or treatment in the district's programs and activities is prohibited. The deputy superintendent, who may be reached at 8200 W. 71st Street, Shawnee Mission, Kansas, 66204 or at (913) 993-6413, has been designated to coordinate compliance with nondiscrimination requirements contained in Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and The Americans with Disabilities Act of 1990.
Complaints About Discrimination, Harassment, or Bullying Any student who believes that he or she has been discriminated against, harassed, or bullied may file a complaint with the building principal, another administrator, the guidance counselor, or another certified staff member. Any school employee who receives a complaint of discrimination, harassment, or bullying from a student shall inform the student of the employee's obligation to report the complaint and any proposed resolution of the complaint to the building principal. If the building principal is the alleged harasser, the report shall be made to the ...

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