National and local attorneys file suit against Forest Hills' reaction to assault

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by Cynthia Price
Legal News

The National Women’s Law Center (NWLC), long a leader in watch-dogging the enforcement of title IX protections, has joined in a suit against Forest Hills Public Schools regarding the district’s handling of a sexual assault accusation and its aftermath.

Perhaps best-known for promoting equality in school athletics, Title IX of the Education Amendments of 1972 prevents gender-based discrimination in all education programs receiving federal funding.

It reads: “No 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.”

NWLC originated the same year as Title IX and has played a significant role in the case law that applies to the situation at Forest Hills Central. Verna L. Williams was an attorney at NWLC when she argued the precedent-setting Davis v. Monroe County Board of Education before the United States Supreme Court in 1999.

“That case established that in fact schools can be liable under Title IX,” says Neena Chaudhry, Senior Counsel at NWLC and co-counsel on Jane Doe v. Forest Hills School District.

The plaintiff in the case is called Jane Doe because she was a minor at the time of originally reporting the sexual assault incident. In 2010 “Jane” was a 15-year-old sophomore who, she said, found herself sexually assaulted  in a soundproof band room at Forest Hills Central High School by a young man who was a star on the school’s basketball team, also then a minor.

Her parents reported the incident to the school as well as to the police. The young athlete eventually was charged with two counts of felony criminal sexual conduct, and sentenced to attend sex
offender treatment in 2011 after he pled guilty to a misdemeanor criminal sexual conduct charge. He has since left to attend, and play basketball at, another school, though neither Forest Hills nor the court required that he leave.

Interestingly, in an online interview the young man, referred to as MM in the complaint, is quoted as saying, “I moved because of the better opportunities offered [in basketball] and to keep out of trouble.”

Forest Hills Central failed to investigate “Jane Doe’s” sexual assault report as well as many later communications about intense harassment on the part of her schoolmates. After her grades slipped and she dropped out of all sports, she enrolled in another school to which she must drive every day.

Chaudhry comments, “Too many schools are not fulfilling their legal obligations under Title IX. I shouldn’t attribute motive, and it’s quite possible they’re not aware. But this is an important issue to us, and we hope other school districts can learn and benefit from their case.”

She adds, “There have been a lot of reports of similar situations around the country, right now a number of them making the rounds on the Internet.”

It is difficult not to draw parallels with the well-known Steubenville case where investigation seemed to indicate a local school (and law enforcement) cover-up based on the status of the alleged rapists as football champions. However, as Chaudhry points out, “Each case has its own set of facts, so I can’t really say what the school district situation was in  Steubenville.”

In Davis v. Monroe County, as summarized on the website Oyez, the Supreme Court held that “private damage actions may lie against schools that act with deliberate indifference to harassment that is severe enough to prevent victims from enjoying educational opportunities.” Davis also extended the protections of a previous case, Gebser v. Lago Vista Independent School District, to include student-on-student sexual harassment as well as teacher-on-student.

Anne Buckleitner of Smietanka, Buckleitner, Steffes and Gezon in Grandville, lead local attorney in the Forest Hills case, comments, “One of the questions I’m asked is, does every case of educator sexual abuse give rise to a lawsuit. And my answer is no, it does not. ‘Deliberate indifference’ is a high standard. The difference here is that the school has certain responsibilites that are clearly delineated by the U.S. Department of Education and it’s our contention that Forest Hills failed to meet those responsibilities. For whatever reason, they elected not to investigate.”

Even where a police investigation is ongoing, the school has responsibility to investigate. A recent policy letter from the U.S. Department of Education concerning its Title IX Office of Civil Rights(OCR), states, “OCR’s work indicates that a number of issues related to an adequate, reliable, and impartial investigation arise in sexual harassment and violence complaints. In some cases, the conduct may constitute both sexual harassment under Title IX and criminal activity. Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.”

After “Jane Doe” and her parents felt they had reached a point where the school was unresponsive, they contacted the OCR, which conducted an investigation ending in August 2012. The OCR report, according to language in the Jane Doe v. Forest Hills School District complaint, “found by a preponderance of the evidence that the District failed to promptly and appropriately respond to alleged sexual harassment in violation of Title IX requirements.”

Catherine Tracey of Miller Johnson, attorney for the Forest Hills School District in this case, says that they found OCR’s investigation to be incomplete, in that OCR did not speak with many of the key people at the school district, and “the conclusions they reached are not accurate.”

She added, “The report was surprising and disappointing.”

As part of a resulting resolution agreement with the OCR, the school district has agreed to take steps both specific to “Jane Doe’s” case, such as reimbursing her for counseling costs, and to revise policy and procedures for compliance with Title IX.

“Still, we’re pursuing other categories of damages allowed by law,” Buckleitner says. “The U.S. Department of Education’s administrative proceedings have a different standard, which is just probable cause, but the much more stringent deliberate indifference is what we set out to prove.”

The complaint points also to MCL 380.1311(2), which says, “If a pupil . . . commits criminal sexual conduct in a school building or on school grounds, the school board, or the designee of the school board . . . shall expel the pupil from the school district permanently.”

Buckleitner says, “These parents have never tried to play ‘gotcha’ with the school and have tried to exhaust every mechanism that they thought was available to them.”

She adds that she is “delighted” to work with NWLC on the case. “I find them to be very congenial as well as experts,” she comments.

The final date for Forest Hills School District to submit its answer to the complaint was June 18, and Tracey said earlier that day that they would file by that deadline.

“Forest Hills denies any wrong-doing,” she said, “but we can’t really speak to the specific allegations because of student privacy laws.”