United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER, UNITED STATES DISTRICT JUDGE.
alleges claims under Title IX of the Education Amendments of
1972, 20 U.S.C. §§ 1680-1688 (“Title
IX”), 42 U.S.C. § 1983, and Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d et seq.
(“Title VI”) based on two incidents of
student-on-student misconduct that occurred on February 6,
2018. Defendants move for judgment on the
pleadings (Doc. 20), arguing Plaintiff fails to state a
claim. Because Plaintiff fails to plausibly allege at least
one essential element of each claim, the Court grants the
is an African-American male student at Lansing Middle School.
Lansing Middle School is a school within Defendant Lansing
Unified School District USD 469 (“Defendant School
District”). On February 6, 2018, Plaintiff was sitting
in study hall when a white male student
(“Student”) asked Plaintiff how Plaintiff would
react to having his penis or buttocks touched and/or grabbed.
Student then groped or touched Plaintiff's buttocks.
Plaintiff told Student to stop the behavior immediately.
Plaintiff “notified Ms. Templeton”-the teacher in
charge of study hall- of “the harassment he was
experiencing” and that Student “was messing with
him in a way Plaintiff disapproved.” Doc. 1 at 4. Ms.
Templeton had not noticed Student's behavior before
Plaintiff reported it. Subsequently, while still in study
hall, Student used his foot and began striking Plaintiff
several times on the buttocks. Plaintiff again told Student
to stop. Ms. Templeton interjected and asked Plaintiff to
move his seat but did not ask Student to relocate his seat or
modify his behavior.
school that day, Plaintiff and Student got on the same bus.
Student was sitting in the seat directly behind Plaintiff. On
the bus, Student grabbed Plaintiff's penis, struck
Plaintiff on the head five times, struck Plaintiff's
body, and kicked Plaintiff in the nose causing Plaintiff to
bleed. The bus driver did not intervene, so Plaintiff then
next morning, February 7, 2018, Plaintiff's mother
contacted Defendant Kerry Brungardt (the Principal of Lansing
Middle School) and Defendant Brooks Jenkins (the Assistant
Principal of Lansing Middle School) via email to describe the
incident and alert them to her concerns. Defendant
Brungardt's responsive email pointed out that Student
suffered injuries and stated that he was withholding a
decision on discipline. Later that day, Defendant Brungardt
suspended Plaintiff from riding the bus that afternoon.
same day, Plaintiff's parents met with Defendants
Brungardt and Jenkins to discuss the incident. Defendants
Brungardt and Jenkins, in describing the incident as they
interpreted it from the video recording made by the bus,
suggested Student was only “hugging” Plaintiff
before the “mutual fight” broke out. Defendants
Brungardt and Jenkins acknowledged that “the school and
its personnel were aware that [Student] had a known history
of bad behavior at school” and questioned Plaintiff as
to why he did not alert a second teacher or provide a more
graphic description of Student's conduct to Ms. Templeton
before getting on the bus.
days later, on February 9, 2018, Plaintiff's mother asked
to view the bus video. On February 12, 2018, Plaintiff's
parents viewed the video with Defendants Brungardt and
Jenkins. After viewing the video together, Defendants
Brungardt and Jenkins acknowledged that Student was the
next day, February 13, 2018, Defendant Brungardt noted that
Plaintiff was not in his appropriate seat on the bus on the
date of the incident and suspended Plaintiff from the bus
again. School officials also questioned Plaintiff on various
topics including: (1) what he could have done to prevent the
February 6, 2018 incident, (2) why he was so quick to fight
Student, (3) whether Student was simply being annoying and
not hitting him that hard, (4) why Plaintiff was not in his
assigned seat, and (5) whether the incident was just an
accident. Plaintiff does not know if Student faced any
consequences for the events on February 6, 2018, and no
further action has been taken regarding this incident.
then, Plaintiff “lost trust” in Defendants
Brungardt and Jenkins and “is in fear while at school
and extracurricular activities.” Plaintiff “lives
in constant fear of further assault, harassment, bullying,
and physical abuse by [Student]” and is “unable
to avoid interactions with [Student] in the hallways and
extracurricular school activities.”
motion for judgment on the pleadings is analyzed under the
same standards that apply to a motion to dismiss for failure
to state a claim. Sanchez, 870 F.3d at 1199.
Accordingly, to survive a motion for judgment on the
pleadings, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
plaintiff's claim is facially plausible if he pleads
sufficient factual content to allow the court “to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The plausibility
standard requires “more than a sheer possibility that a
defendant has acted unlawfully” but “is not akin
to a ‘probability requirement.'” Id.
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of entitlement to relief.'”
Id. (quoting Twombly, 550 U.S. at 557).
standard results in two principles that underlie a
court's analysis. Id. First, “the tenet
that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions.” Id. Stated differently, though
the court must accept well-pleaded factual allegations as
true, it is “not bound to accept as true a legal
conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555 (internal citations and
quotations omitted). “Second, only a complaint that
states a plausible claim for relief survives” the
motion. Iqbal, 556 U.S. at 679. “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not ‘shown'-‘that the
pleader is entitled to relief.'” Id.
(quoting Fed.R.Civ.P. 8(a)(2) (original brackets omitted)).
“In keeping with these [two] principles, a court
considering a [motion] can choose to begin by identifying
pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth.”
Id. “When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
Plaintiff Fails to Allege Essential Elements of the Title IX
contends Defendant School District is liable under Title IX
for the sexual harassment endured by Plaintiff because it had
actual knowledge of Student's sexual harassment based on
Student's behavior in study hall and based on
Student's known history of bad behavior and was
deliberately indifferent to those reports. Defendant School
District argues that Plaintiff fails to plausibly allege that
it had actual knowledge of the sexual harassment before
Plaintiff's mother sent an email on February 7, 2018, and
that once it received notice it appropriately and reasonably
responded to the report.
IX states that “[n]o person in the United States shall,
on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681(a). A
school receiving federal funds may be liable under Title IX
for its own conduct in being deliberately indifferent to
student-on-student harassment. Rost ex rel. K.C. v.
Steamboat Springs RE-2 School Dist., 511 F.3d 1114, 1119
(10th Cir. 2008). A school district may be liable under Title
IX when (1) an appropriate person has actual knowledge of,
and (2) is deliberately indifferent to, (3) harassment that
is so severe, pervasive and objectively offensive as to (4)
deprive access to the educational benefits and opportunities
provided by the school. Id. An “appropriate
person” is one who has authority to take corrective
action to end the harassment. Escue v. N. Okla.
College, 450 F.3d 1146, 1152 (10th Cir. 2006). And a
district is deliberately indifferent “only where the
district's response to the harassment or lack thereof is
clearly unreasonable in light of the known
circumstances.” Rost, 511 F.3d at 1121. In
evaluating deliberate indifference, courts should not
second-guess a school administrator's disciplinary
decisions. Davis ex rel. LaShonda D. v. Monroe Cnty. Bd.
of Educ., 526 U.S. 629, 642 (1999).