GOODWIN v. PENNRIDGE SCHOOL DISTRICT et al

RESPONSE in Opposition re MOTION for Summary Judgment REDACTED

E.D. Pa.February 13, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DABRIANNE GOODWIN, Plaintiff, v. PENNRIDGE SCHOOL DISTRICT, et al., Defendants. | | | | | | | | | Civil Action No.: 17-cv-2431-TR PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 1 of 62 i TABLE OF CONTENTS Page OVERVIEW ............................................................................................................................. 1 STATEMENT OF FACTS ........................................................................................................ 6 LEGAL STANDARD ............................................................................................................. 19 ARGUMENT .......................................................................................................................... 20 I. TITLE IX IS A CIVIL RIGHTS LAW THAT REQUIRES DEFENDANTS TO ADDRESS ALL SEXUAL HARASSMENT THAT CREATES A HOSTILE ENVIRONMENT ........................................................................................................ 20 A. Sexual Assault, Physical Assault, Threats, Sexual Epithets, and Rumors Are All Forms of Actionable Sexual Harassment Under Title IX ...................... 21 B. School Districts Have a Civil Rights Duty to Address Sexual Assault Independent of Any Criminal Investigation ...................................................... 25 C. School Districts Must Address Out-of-School Harassment that Creates a Hostile Educational Environment ..................................................................... 26 II. A REASONABLE JUROR COULD CONCLUDE DARBI HAS MET ALL OF THE ELEMENTS OF HER TITLE IX CLAIM ........................................................... 29 A. The Sexual Assault, Physical Assault, Threats, Sexual Epithets, and Rumors that Darbi Suffered Constitutes Severe, Pervasive, or Objectively Offensive Harassment that Deprived Her of Equal Access to Educational Opportunities and Benefits ............................................................................... 29 1. Severe, Pervasive, or Objectively Offensive Harassment ...................... 29 2. Deprivation of Equal Access to Educational Opportunities and Benefits ................................................................................................ 32 B. PSD Had Actual Knowledge of the Harassment and Substantial Control over Darbi’s Harassers and the Context in which the Harassment Occurred ..... 35 1. PSD Had Actual Knowledge................................................................. 35 2. PSD Had Substantial Control over the Harassers and the Context in which the Harassment Occurred ........................................................... 36 C. PSD Was Deliberately Indifferent to the Known Acts of Harassment that Darbi Suffered ................................................................................................. 37 1. PSD Failed to Investigate ..................................................................... 37 2. PSD Failed to Implement an Adequate Safety Plan ............................... 40 3. PSD Failed to Discipline H., B., C., or N. for Harassment..................... 42 4. PSD Effectively Forced Darbi to Transfer to an Inferior Alternative School ................................................................................ 43 D. Defendants Fail Even to Mention, Much Less Address, Dr. Howe’s Opinions .......................................................................................................... 43 Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 2 of 62 ii III. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON DARBI'S § 1983 FAILURE-TO-TRAIN CLAIMS ..................................................... 44 IV. DEBONA AND RATTIGAN ARE NOT ENTITLED TO SUMMARY JUDGMENT ON DARBI'S § 1983 SUPERVISORY LIABILITY CLAIMS ............... 47 V. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON DARBI’S § 1983 HOSTILE ENVIRONMENT CLAIMS ........................................... 49 VI. THIS COURT SHOULD NOT DISMISS DARBI’S OFFICIAL-CAPACITY CLAIMS AGAINST DEBONA AND RATTIGAN ..................................................... 50 VII. DEBONA AND RATTIGAN ARE NOT ENTITLED TO QUALIFIED IMMUNITY ................................................................................................................ 51 CONCLUSION ....................................................................................................................... 54 Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 3 of 62 iii TABLE OF AUTHORITIES Page(s) Cases Andrews v. City of Phila. 895 F.2d 1469 (3d Cir. 1990)............................................................................................... 23 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................................ 48 Barkes v. First Correctional Medical, 766 F.3d 307 (3d Cir. 2014) ................................................................................................ 48 Bialko v. Quaker Oats Co., 434 F. App’x 139 (3d Cir. 2011) ......................................................................................... 20 Bruning ex rel. Bruning v. Carroll Cty. Sch. Dist., 486 F. Supp. 2d 892 (N.D. Iowa 2007) .......................................................................... 38, 39 Burns v. McGregor Elec. Indus., 989 F.2d 959 (8th Cir. 1993) ............................................................................................... 25 C.S. v. S. Columbia Sch. Dist., No. 4:12-CV-1013, 2013 WL 2371413 (M.D. Pa. May 21, 2013) ................................. passim Chavarriaga v. N.J. Dept. of Corr., 806 F.3d 210 (3d Cir. 2015) ................................................................................................ 48 Crossley v. Iroquois Foundry Co., No. CIV. A. 91-1657, 1992 WL 26028 (E.D. Pa. Feb. 6, 1992) ........................................... 20 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) ..................................................................................................... passim Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332 (W.D. Pa. 2008) ........................................................................... passim DiStiso v. Cook, 691 F.3d 226, 232 (2d Cir. 2012) ......................................................................................... 53 Doe by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3d Cir. 2018) .................................................................................... 21, 23, 29 Doe ex rel. Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226 (D. Conn. 2009) ................................................................ 22, 32, 37, 41 Doe v. E. Haven Bd. of Educ., 200 F. App’x 46 (2d Cir. 2006) .................................................................... 23, 24, 27, 32, 37 Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 4 of 62 iv Doe v. Forest Hills Sch. Dist., No. 1:13-CV-428, 2015 WL 9906260 (W.D. Mich. Mar. 31, 2015) ......................... 26, 38, 39 Doe v. Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57 (D. Me 1999) .......................................................................................... 36 Does v. Se. Delco Sch. Dist., 272 F. Supp. 3d 656 (E.D. Pa. 2017).................................................................................... 35 Feminist Majority Found. v. Hurley, 911 F.3d 674 (4th Cir. 2018) ............................................................................. 23, 27, 29, 36 Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003) ................................................................................. 23, 42, 54 Forrest v. Brinker Int’l Payroll Co., 511 F.3d 22 (1st Cir. 2007) .................................................................................................. 24 Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274 ................................................................................................................. 26, 35 Goodwin v. Pennridge Sch. Dist., 309 F. Supp. 3d 367 (E.D. Pa. 2018)............................................................................. passim Gregory v. Chehi, 843 F.2d 111 (3d Cir. 1988) ................................................................................................ 50 In re Wettach, 811 F.3d 99 (3d Cir. 2016) .................................................................................................. 52 Laborers’ Int'l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375 (3d Cir. 1994) .................................................................................................. 52 Hill v. Cundiff, 797 F.3d 948 (11th Cir. 2015) ................................................................................. 39, 41, 53 Hope v. Pelzer, 536 U.S. 730 (2002) ............................................................................................................ 53 Jennings v. Univ. of N. Carolina, 482 F.3d 686 (4th Cir. 2007) ............................................................................................... 23 Jones v. Indiana Area Sch. Dist., 397 F. Supp. 2d 628 (W.D. Pa. 2005) ...................................................................... 38, 42, 43 K.E. v. Dover Area Sch. Dist., No. 1:15-CV-1634, 2017 WL 4347393 (M.D. Pa. 2017)...................................................... 35 Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 5 of 62 v Karchnak v. Swatara Twp., No. 07-CV-1405, 2009 WL 2139280 (M.D. Pa. July 10, 2009) ..................................... 51, 53 Kentucky v. Graham, 473 U.S 159 (1985) ............................................................................................................. 50 Krebs v. New Kensington-Arnold Sch. Dist., No. 16-610, 2016 WL 6820402 (W.D. Pa. Nov. 17, 2016) ................................. 22, 23, 30, 31 L.R. v. Sch. Dist. of Phila., 836 F.3d 235 (3d Cir. 2016) ................................................................................................ 54 M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d 412 (M.D. Pa. 2014) .................................................................................... 33 Monteiro v. City of Elizabeth, 436 F.3d 397 (3d Cir. 2006) ................................................................................................ 51 Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238 (10th Cir. 1999)...................................................................................... 38, 54 Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) ................................................................................................. 53 Parker v. Reema Consulting Servs., Inc., __ F.3d __, 2019 WL 490652 (4th Cir. Feb. 8, 2019) ........................................................... 24 Price ex rel. O.P. v. Scranton Sch. Dist., No. CIV.A. 11-0095, 2012 WL 37090 (M.D. Pa. Jan. 6, 2012) ............................................ 33 Roy v. Correct Care Solutions, LLC, __ F.3d __, 2019 WL 336515 (1st Cir. Jan. 28, 2019) ........................................ 24, 27, 31, 40 S.K. v. N. Allegheny Sch. Dist., 168 F. Supp. 3d 786 (W.D. Pa. 2016) ................................................................ 23, 24, 37, 43 Sauers v. Borough of Nesquehoning, 905 F.3d 711 (3d Cir. 2018) ................................................................................................ 51 Shively v. Green Local Sch. Dist. Bd. of Educ., 579 F. App’x 348 (6th Cir. 2014) ........................................................................................ 53 Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000) ........................................................................................ passim Wharton v. Danberg, 854 F.3d 234 (3d Cir. 2017) ................................................................................................ 48 Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 6 of 62 vi Statutes 18 Pa. C.S. § 3101 ..................................................................................................................... 22 18 Pa. C.S. § 3121(a)(1) ............................................................................................................ 22 Other Authorities Fed. R. Civ. P. 56(a) .................................................................................................................. 19 U.S. Dep’t of Education, Office for Civil Rights, Dear Colleague Letter: Harassment and Bullying (Oct. 26, 2010) ...................................................................... 24, 32 U.S. Dep’t of Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (Jan. 19, 2001) ......................................................................................... 25, 28 Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 7 of 62 1 OVERVIEW DarbiAnne Goodwin (Darbi) has filed suit against Defendants—Pennridge School District (PSD), PSD Superintendent Jacqueline Rattigan, and Pennridge High School (PHS) Principal Gina DeBona—because they failed to address a hostile environment created by her male classmates H., B., C., and N., which deprived her of equal access to educational opportunities and benefits. Through the course of discovery, Darbi has developed extensive evidence of the sexual harassment she suffered and Defendants’ inadequate response to the harassment, including, but not limited to:  In March 2015, Darbi reported that H. had sexually assaulted her during the December 2014 holiday break, resulting in bleeding and bruising. No PSD employee investigated the report or disciplined H. Instead, Defendants claimed— contrary to PSD’s written policies (but consistent with actual practices)—they could not do so because the assault occurred outside of school, because the police did not file charges, and/or because Darbi did not seek a criminal restraining order. While H. was told to stay away from Darbi, Defendants did not take any steps to document or enforce this verbal instruction, and H. testified that he was not told what exactly “no contact” meant.  H. admitted .  After March 2015, Darbi reported that H., C., B., and N. were spreading sexual rumors about her. No PSD employee investigated or disciplined them.  In April 2015, Darbi reported to her guidance counselor that H. had bragged about sexually assaulting her. No PSD employee investigated or disciplined H.  In May 2015, Darbi reported that B. was repeatedly calling her a “slut” and had threatened to “jump” her. Although B. was suspended for three days for the physical threat, he was not disciplined for the sexual slur and was not told to stay away from Darbi, even though PSD knew he lacked self-control and was prone to “blowups.”  In May 2015, the day B. returned to school from his suspension, Darbi had a panic attack. She completed the rest of her sophomore year from home because her medical provider determined she needed to “recover[] from traumatic events.”  PSD employees did not take any steps to help Darbi remain at school. She had a 3.86 grade point average during her freshman year at PHS. After the assault and Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 8 of 62 2 subsequent harassment, however, her grade point average dropped considerably to a 3.27 during her sophomore year.  In August 2015, Darbi reported to her assistant principal that she was continuing to receive harassing messages from H., B., N., or C. No PSD employee investigated or disciplined them.  In August 2015, Darbi’s mother asked PSD employees not to place her daughter in the same classrooms as H., B., N., or C. upon her return to school. During the first week of school in September 2015, Darbi discovered that PSD employees had scheduled her into the same lunch as B., C., and N., and into the same study hall location as H. and B.  In September 2015, although DeBona warned B., C., and N. that they would “face consequences” if they “approached” or “talk[ed]” to Darbi, and although H.’s guidance counselor was informed that H. had been instructed to stay away from Darbi, no PSD employee took any steps to enforce these instructions. DeBona testified that it was “reasonable” for Darbi to see H. at school.  In September 2015, Darbi reported that N. had sent her a “threatening” text message calling her a “hoe” and “cunt” and misspelling “ridiculous” as “redickulas” to include the word “dick.” No PSD employee investigated or disciplined N., even though his assistant principal knew he was prone to “outbursts” and “not able to control himself emotionally.”  In September 2015, Darbi’s medical provider diagnosed her with “severe PTSD.” PSD employees also knew that Darbi had been suffering “[e]xtreme bouts of depression/ cutting/ angry/suicidal thoughts.” No PSD employee evaluated her for disability accommodations.  In November 2015, Darbi reported—and H. admitted—that he had called her a “fucking bitch” after he heard her say, “Wow, speak of the devil” to one of her friends when she unexpectedly saw H. in a PHS hallway. No PSD employee disciplined H. for the sexual slur, violating his “stay away” instruction, or using profanity. DeBona incorrectly testified that “fucking bitch” is not a sexual slur.  In January 2016, Darbi reported that C. had texted her to “hang out” near the one- year anniversary of her sexual assault by H. Although her assistant principal acknowledged it was “a very deliberate act . . . to remind her of a horrible day in her life,” no PSD employee investigated or disciplined C.—in violation of PSD’s written policy (but consistent with actual practice). DeBona incorrectly claimed PSD could not discipline C. because the text was sent “over the school break.” PSD lunch monitors were given a picture of C., but C. was not removed from Darbi’s lunch.  In the months leading up to April 2016, PSD employees knew Darbi was often “too upset to get through the day,” which “stemmed from” the sexual assault. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 9 of 62 3 Throughout the semester, she endured “daily” harassment from H., B., N., and C. during school, leaving her “petrified to go to school” on “most days.”  In April 2016, Darbi reported that C. had intentionally bumped her in the hallway. No PSD employee disciplined C. because, according to her assistant principal, doing so without video evidence would be akin to a “witch hunt.” DeBona instead facilitated a “peer mediation,” during which she told Darbi that the whole year had been a “huge waste of time.”  In April 2016, the evening after the peer mediation, Darbi’s mother withdrew Darbi from school for the second time. Again, PSD employees took no steps to help her remain at PHS, instead effectively pushing her into an inferior cyber program, where she was forced to drop three of her classes and repeat a class that she had completed during her sophomore year.  Because she was forced to leave PHS to avoid her harassers and escape the hostile educational environment, Darbi also had no choice but to withdraw from the student council and to decline a nomination to be the student council president.  In September 2016, after all four of her harassers had graduated, Darbi returned to PHS. However, PSD employees allowed both H. and B. to visit the school during her first week back without informing her in advance.  In May 2017, PSD employees arranged for B. to attend half of Darbi’s senior prom, despite knowing that this arrangement might cause her to suffer an emotional breakdown and would potentially subject her to retaliation from his friends, and despite receiving notice from the National Women’s Law Center that allowing B. to attend her senior prom would violate Title IX.  PSD’s Title IX coordinator who, according to PSD’s own policy, is supposed to be notified of all allegations of sexual harassment, was not notified of any of Darbi’s reports of sexual harassment between March 2015 and August 2015. Dr. William A. Howe is a former Title IX Coordinator for the State of Connecticut who has over 40 years of experience as an educator (with 24 years as a Title IX coordinator, including 17 years as a State Title IX coordinator) and has advised almost 200 school districts, conducted almost 100 workshops, trained more than 4,000 people, and handled approximately 7,000 calls on Title IX compliance. After reviewing the facts underlying this litigation, Dr. Howe concluded: “I would use Pennridge School District’s actions in [Jane Doe’s and Darbi’s] cases as case Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 10 of 62 4 studies on what not to do in order to comply with the requirements of Title IX.” Howe Report at 21, Ex. 82, SODF (“Howe Rep.”) (emphasis added). In light of these facts, Defendants have not shown that there are no material disputes of fact or that they are entitled to judgment as a matter of law on Darbi’s Title IX claim against PSD. Rather than looking at the sum total of all of these facts, Defendants in their summary judgment motion take a scattershot approach, hyper-focusing on some issues, while neglecting others. Defendants simultaneously fail both to recognize the forest for the trees and to identify what is and is not a tree. Their conclusions are based on an apparent inability to (1) recognize sexual harassment, (2) distinguish criminal law from civil rights law, and (3) understand their ability to control their own students and the school environment. First, there is no dispute that both Darbi and H. . Yet Defendants go to great lengths to argue that H.’s conduct did not constitute criminal rape. That is not only wholly irrelevant to Darbi’s civil rights claims, but also is plainly incorrect as a matter of criminal law. Defendants are further mistaken when they argue that sexual epithets like “slut,” “cunt,” and “hoe” are “clearly not related to . . . sexual harassment.” Such a restrictive view of sexual harassment has been rejected by courts throughout the country. Second, Defendants incorrectly believe that they are not responsible for investigating student-on-student sexual assault and that they cannot discipline sexual assailants in the absence of a criminal charge or a criminal restraining order. These assertions are contrary to Title IX and PSD’s own written policies. Finally, Defendants mistakenly believe that PSD is not authorized to investigate or discipline students for out-of- school sexual harassment. Again, both Title IX and PSD’s own policies state otherwise. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 11 of 62 5 Defendants have also moved for summary judgment on Darbi’s § 1983 claims. With respect to the failure-to-train claim, Defendants focus on the number of trainings and the titles of those trainings. There is a reason they choose to focus on quantity not quality: none of the training materials they produced substantively address how to identify and respond to student- on-student sexual harassment. Defendants’ motion should be denied for all the reasons that Darbi’s motion for summary judgement on her failure-to-train claim should be granted. See Pl.’s Summ. J. Mot., ECF No. 96 at 15-25 (hereinafter, “Pl.’s S.J. Mot.”). Substantial evidence similarly exists to support a grant of summary judgment in Darbi’s favor (or at least a trial) on her supervisory liability and hostile environment claims. Id. at 25-33; see, infra, Sections IV-V. In sum, Darbi offers ample evidence from which a reasonable jury could conclude that: (i) she was sexually harassed by PSD students both in and outside of school, (ii) Defendants failed to adequately address the harassment and resulting hostile educational environment, denying her equal access to educational opportunities and benefits in violation of Title IX; (iii) Defendants failed to train their employees with respect to protecting students’ civil rights; (iv) Defendants maintained District-wide practices of failing to address student-on-student sexual harassment; and (v) Defendants’ District-wide practices resulted in a hostile environment that violated Darbi’s constitutional right to equal protection under the law. Defendants employ several tactics in an effort to deal with this plethora of evidence. First, they invite the Court to exceed its role as an adjudicator of legal questions. For instance, they urge this Court to: resolve factual disputes, make credibility determination, and make factual findings about motive and intent. Such determinations must be made by the jury and have no place in summary judgment proceedings. Second, Defendants ask the Court to focus on the allegations in the pleadings rather than the actual evidence developed through discovery and to Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 12 of 62 6 consider wholly irrelevant evidence, such as the short delay between H.’s assault and Darbi reporting it. Finally, Defendants simply fail to address key evidence that refutes their claims and they provide partial information to support an “undisputed fact.” For instance, they never once mention Dr. Howe’s expert opinion that Defendants’ responses to Darbi’s complaints were blatantly deficient in light of what Title IX requires of schools. Similarly, they fail to acknowledge that Roger Canaff, an experienced prosecutor of adolescent sexual assault crimes for more than 20 years, noted in his expert report that H. and that a decision to not prosecute a criminal case “in no way indicates or should suggest” that the allegations were untruthful or did not require a school response. When all of the evidence is viewed, ample evidence exists in support of Darbi’s Title IX and § 1983 hostile environment claims and that no basis exists for resolving those claims on summary judgment in favor of Defendants. The evidence also makes clear that Darbi, not Defendants, is entitled to summary judgment on the § 1983 failure-to-train, municipal liability, and supervisory liability claims. STATEMENT OF FACTS Darbi was a sophomore at PHS during the 2014-2015 school year. Statement of Undisputed Fact ISO Pl.’s S.J. Mot. ¶¶ 1-2, ECF No. 96-3 (hereinafter, “SOUF”). She graduated from PHS in June 2017. H., C., B., and N. were male PHS students in 11th grade, and friends, during the 2014-2015 school year and members of PHS’s class of 2016. SOUF ¶ 9. Defendants Failed to Investigate Darbi’s Report of Sexual Assault On the evening of December 27, 2014, after H. and Darbi socialized with a larger group of PHS students, he drove her home. SODF ¶ 360. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 13 of 62 7 She also discovered that H. had bruised the left side of her chest. Id. In March 2015, Darbi reported the sexual assault to PSD employees—including DeBona, Scott Hegen, David Laboski, and Pete Cortazzo. SOUF ¶ 10; SODF ¶ 361. Rattigan and DeBona testified that no PSD employee investigated her report. SOUF ¶ 11. Laboski testified that he merely asked H. whether H. had assaulted Darbi and felt he “had no other choice” but to believe H.’s initial denial. SOUF ¶¶ 12-13. And Hegen testified that he was did not investigate because the assault “did not happen on the school property.” SOUF ¶ 14. Instead of investigating, Hegen merely spoke to Darbi and her mother and then confirmed that the police had been notified. SODF ¶ 362. Although Laboski verbally instructed H. to “stay away” from Darbi and to refrain from having “contact” with her “inside and outside school,” H. was not given any guidance on what “contact” meant or how to comply with the “stay away” instruction (e.g., that he could not be within a certain distance of her or what he should do if they were in the same hallway). SOUF ¶ 15; SODF ¶ 363. Laboski admitted that he took no additional steps to keep Darbi and H. apart while at school. SOUF ¶ 15; SODF ¶ 363. Moreover, PSD employees failed to create a single written document reflecting their supposed plan to keep Darbi safe at school. SOUF ¶ 16. They offered only arrangements that would have placed the burden on Darbi to leave her classes early Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 14 of 62 8 or arrive late in order to avoid seeing H. in the hallways or to walk around the school with an escort. SOUF ¶ 16; SODF ¶ 364. These “accommodations” not only would have forced her to miss her classes, but also would have subjected her to uncomfortable questions and potentially further harassment from her classmates about why she was constantly missing class and walking around school with an adult monitor. SOUF ¶ 16; SODF ¶ 364. When Pennridge police . SOUF ¶ 17. Sexual assault is a top-level infraction (“Level IV”) at PHS that requires an immediate out-of-school suspension for four-to-ten days, referral to the school psychologist, and/or possible expulsion. SOUF ¶ 19. Erik Henrysen, Darbi’s guidance counselor for junior and senior year, testified that “if [Darbi] [were] [his] daughter, that would be very significant to see [H.] regularly . . . and [for H.] not [to] have been punished.” SODF ¶ 365. Nevertheless, DeBona testified that PSD did not (and could not) discipline H. because the assault occurred outside of school, the police did not bring criminal charges, and Darbi did not obtain a criminal restraining order. SOUF ¶¶ 18-20. Defendants Failed to Investigate Darbi’s Reports that H. and His Friends Were Sexually Harassing Her at School during Spring 2015 From December 2014 through February 2015, H. and his friends spread false rumors that Darbi had “had sex with two people on the same night.” SOUF ¶¶ 22-23; SODF ¶ 366. Darbi notified Hegen and Laboski of the sexual rumors at some point after her March 2015 report of sexual assault. SOUF ¶ 22; SODF ¶ 366. In April 2015, H. bragged to his friends, “[T]his is what I do,” in reference to the sexual assault. SOUF ¶ 21. That same month, Darbi visited her guidance counselor, Pete Cortazzo, in tears to report H.’s “this is what I do” comment. Id.; SODF ¶ 367. Rattigan and Jacqueline McHale, PSD’s Title IX coordinator, were notified of both Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 15 of 62 9 the sexual rumors and H.’s bragging in September 2015. SOUF ¶ 23. Yet no PSD employee investigated either report or disciplined any of Darbi’s harassers for their misconduct. SOUF ¶¶ 24-25. In May 2015, B. repeatedly called Darbi a “slut” and, with C. by his side, sent a text message to another student, who shared it with Darbi, threatening to “jump” Darbi so she could “learn her place.” SOUF ¶ 26; SODF ¶ 368. B. wanted Darbi to learn her place because she had reported H.’s sexual assault to the police and because B. mistakenly believed that she had “snitch[ed]” on H. and C. about an unrelated break-in at an abandoned house. SOUF ¶ 26; SODF ¶ 368. In fact, Darbi had given only H.’s name to the police because H. was the only person whom she knew had been involved in the break-in and because H. had not been punished for sexually assaulting her. SODF ¶ 369. She did not give B. or C.’s name to the police, and moreover, C. had already been arrested and released by the time she spoke to the police. Id. Darbi submitted an incident report of B.’s “jump” text message and separately reported his “slut” comments, which were shared with Rattigan, DeBona, Laboski, and Hegen. Id.; SOUF ¶ 370. B. was suspended for three days for the physical threat, but was neither disciplined for his repeated sexual slurs nor instructed to stay away from Darbi, even though Laboski knew B. could not control himself and was prone to emotional “blowups.” SOUF ¶ 27; SODF ¶ 371. Darbi Withdrew from PHS at the End of Her Sophomore Year (Spring 2015) due to the Sexually Hostile Environment and Suffered a Sharp Decline in Her Grades From February to April 2015, Darbi suffered extreme bouts of depression, cutting, anger, and suicidal thoughts as a result of H.’s assault and the ensuing harassment by him and his friends. SOUF ¶ 48. In May 2015, when B. returned to school from serving his three-day suspension, Darbi suffered a panic attack and was sent home. SOUF ¶ 28. That same day, her Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 16 of 62 10 medical provider notified Hegen that it was in her “best interest” to remain home for the rest of the school year to “recover[] from traumatic events.” SOUF ¶ 29. Darbi completed the rest of her sophomore year from home. Id. DeBona and Hegen did not offer any accommodations or otherwise take any steps to help her remain at school; nor did anyone at PSD evaluate her for mental health accommodations via an individualized education program (IEP) or a Section 504 plan. SOUF ¶ 30. Once a strong academic performer who had been active in extracurricular activities, such as student council, debate, and the student ambassador program, Darbi suffered a sharp decline in her grade point average, which dropped from 3.86 for her freshman year to 3.27 for her sophomore year. SOUF ¶ 31. Defendants Failed to Investigate Darbi’s Report that H. and His Friends Continued to Sexually Harass Her During Summer of 2015 Throughout summer 2015, Darbi’s harassers continued sending her threatening texts and calls from different phone numbers. SODF ¶ 372. These messages included a July 2015 text message from N. calling her a “hoe” and “cunt,” misspelling “ridiculous” as “redickulas” to include the word “dick,” and erroneously accusing her of giving his name to “the cops.” SOUF ¶ 33; SODF ¶¶ 369, 373. In August 2015, Darbi’s mother told Hegen that H., N., B., and C. were sending harassing text messages to Darbi. SOUF ¶ 32. In September 2015, she reported N.’s “cunt” message to Rattigan and McHale. SOUF ¶ 33. No PSD employee investigated either report, and in particular, nothing in the record suggests that PSD employees interviewed N. about his text message. SOUF ¶ 34. Nor were any of Darbi’s harassers disciplined for their harassing calls and texts, even though Laboski knew that N. (much like B.) was an emotional student who was prone to “outbursts” and unable to control himself SOUF ¶¶ 34-35. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 17 of 62 11 Defendants Failed to Take Effective Steps to Keep Darbi’s Harassers Away from Her during Her Junior Year (2015-2016) In August 2015, before the start of junior year, Darbi’s mother asked both Hegen and McHale not to place Darbi in the same lunch, gym, or other classes as H., N., B., or C. SOUF ¶ 36. This request was how McHale, PSD’s Title IX coordinator, first learned of the events that had occurred the prior academic year. SOUF ¶ 37. But on the first day of school, Darbi discovered that PSD had scheduled her into the same lunch as B., C., and N. SOUF ¶ 38; SODF ¶ 374. DeBona and Hegen told Darbi that she had the following options to avoid her harassers: (i) change her lunch period; (ii) keep her lunch period and have two PSD employees monitor her and her three harassers—in addition to the more than 800 other students in the lunchroom that those employees were already tasked with monitoring; or (iii) keep her lunch period and “eat somewhere else.” SOUF ¶ 39; SODF ¶ 374; see Defs.’ Summ .J. Mot. at 15, ECF No. 94 (hereinafter, Defs.’ S.J. Mot.). DeBona stated that there was “no reason” to change her harassers’ lunches, and Hegen claimed that it would be “discrimination” to move them because “they [hadn’t] do[ne] anything.” SOUF ¶ 39. A week later, Darbi discovered that PSD had also scheduled her into the same rooms for study hall as both H. and B. SOUF ¶ 40. At this point, DeBona, Hegen, and McHale were already aware that Darbi—by no choice of her own—was seeing H. at school “3 times a week.” SOUF ¶ 41. H. and B. were subsequently moved to different study hall locations, but were still permitted to visit her study hall whenever they wished. SOUF ¶ 42. In September 2015, B., C., and N. were warned by DeBona and Laboski that if they “approached” or “talk[ed]” to Darbi, they would “face consequences,” and H.’s guidance counselor was informed that H. had been instructed to stay away from Darbi. SOUF ¶ 43; SODF ¶ 375. Yet no PSD employee prescribed specific hallway routes or provided other Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 18 of 62 12 accommodations to minimize the likelihood that Darbi would encounter her four harassers at school. SOUF ¶ 44. In fact, DeBona believed it was “reasonable” for Darbi to have to see H. at school. Id. As a result, throughout her junior year, Darbi continued reporting to Hegen, DeBona, and Rattigan that she was encountering H., B., C., and N. at school and that she did not feel safe. SOUF ¶ 45. At one point, she reported that she had encountered H. at a college fair and at a World Cultures assembly, and that no PSD employee had warned her that H. would be present. SOUF ¶ 46. Darbi Developed Severe Post-Traumatic Stress Disorder as a Result of the Hostile Environment at PHS In September 2015, Darbi was diagnosed by her medical provider with “severe PTSD,” scoring 48 out of 51 possible points on the Childhood PTSD Symptom Scale. SOUF ¶ 47. At this time, Rattigan and McHale learned that Darbi had been suffering from “[e]xtreme bouts of depression/ cutting/ angry/suicidal thoughts” since her sexual assault by H. SOUF ¶ 48. By January 2016, Rattigan, DeBona, McHale, and Hegen had all been informed of Darbi’s PTSD diagnosis. SOUF ¶ 49. However, no PSD employee evaluated her mental health accommodations under an IEP or Section 504 plan. SOUF ¶ 50. Defendants Failed to Adequately Investigate or Remediate Darbi’s Reports of Additional Harassment by H. and C. In November 2015, Darbi was walking down a PHS hallway with a friend when she unexpectedly saw H. and his friends. SOUF ¶ 51. Darbi and her friend had just been discussing Darbi’s fear of seeing H. and his friends at school, and so Darbi said to her friend, “Wow, speak of the devil,” and they continued walking. SODF ¶ 376. H.’s friends said something inaudible to him, and H. responded loudly, “I don’t know, she[’]s a fucking bitch,” knowing Darbi could hear him. SOUF ¶ 51; SODF ¶ 376. Darbi submitted an incident report, and when questioned by Laboski, H. admitted that her report was true. SOUF ¶ 51. No PSD employee disciplined H., Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 19 of 62 13 however, for using a sexual slur, violating his “stay away/no-contact” instruction, or violating PHS’s student conduct code’s prohibition against obscene and abusive language. SOUF ¶¶ 15, 52. Nor did Laboski inform H. that his “fucking bitch” comment violated his “stay away/no- contact” instruction. SOUF ¶ 53. In fact, H. testified that he did not understand that his proximity to Darbi and his “fucking bitch” comment were both violations of the instruction. Id. Although Rattigan and DeBona were both informed of this incident, neither took any action, and DeBona testified that she did not consider H.’s use of “fucking bitch” to be a sexual slur. SOUF ¶ 54. In December 2015, C. texted Darbi inviting her to “hang out” one day before the one- year anniversary of her sexual assault by H., triggering her PTSD symptoms. SOUF ¶ 55; SODF ¶ 377. When Darbi’s mother notified Rattigan, DeBona, Hegen, and McHale of the text message in January 2016, Hegen responded that C.’s text message was “a very deliberate act . . . to remind Darbi of a horrible day in her life.” SOUF ¶ 56. Laboski later testified that it was “reasonable for Darbi to feel threatened after receiving this message.” Id. Yet no PSD employee investigated this incident. SOUF ¶ 57. PSD merely instructed C. to delete Darbi’s phone number and reiterated the instruction for C. not to have contact with her. SODF ¶ 377. Although Darbi said she was uncomfortable being in C.’s lunch, a PSD employee merely instructed the lunch room monitors, who were already responsible for monitoring more than 800 other students, to “keep an eye out” on her harassers. SODF ¶ 378. No PSD employee removed C. from Darbi’s lunch. SOUF ¶ 60. Prior to his text message, C. had already been warned that he would “face consequences” if he “approached” or “talk[ed]” to Darbi, yet he was not disciplined for violating this no-contact instruction or for violating PHS’s student conduct code against harassment. SOUF ¶¶ 43, 58. DeBona did not discipline C. (and believed that PSD could not discipline him) because the message was sent “over the school break.” SOUF ¶ 59. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 20 of 62 14 In April 2016, after C. had moved increasingly closer to Darbi each day they walked past each other between classes, he intentionally bumped her in the hallway. SOUF ¶ 63; SODF ¶ 379. Her guidance counselor, Erik Henrysen, discovered her crying in the hallway after this incident. SODF ¶ 379. Rattigan, DeBona, Hegen, and Laboski were later informed of the incident, and that Darbi at first “was so emotional about the situation that she could not speak.” SOUF ¶ 63. C.’s deliberate physical contact with Darbi was not captured on camera, however, and Hegen testified that he “typically” finds incident reports to be “inconclusive” absent video evidence to avoid starting “a witch hunt.” SOUF ¶ 64. As a result, no PSD employee disciplined C. for violating his no-contact instruction or for violating PHS’s student conduct code against physical assault. SOUF ¶¶ 43, 65. Despite knowing that Darbi was “petrified to come to school,” no PSD employee took any steps to make her feel safe after this incident. SOUF ¶ 66. Instead, DeBona presided over a “peer mediation” between C. and Darbi, the purpose of which, PSD expressly stated, was not to reprimand C. SOUF ¶ 67. During the mediation, DeBona told Darbi that “this year has been a huge waste of time” and that Darbi had “no reason to be afraid” of her harassers. SODF ¶ 380. At this point, no PSD employee had disciplined any of Darbi’s harassers for any of their acts of harassment against Darbi, with the single exception of B.’s suspension for threatening to “jump” her. SOUF ¶¶ 19, 25, 27, 35, 52, 58, 65. Darbi Withdrew from PHS Again at the End of Her Junior Year (Spring 2016) and Was Effectively Forced to Enroll in An Objectively Inferior Education Program In the months leading up to April 2016, Darbi endured “daily” sexual harassment from H., B., N., and C. during school, leaving her “petrified to go to school” on “most days.” SODF ¶ 381. As the harassment continued that semester, she suffered declining attendance and left early from school whenever she was, as her guidance counselor testified, “too upset to get through the day.” SOUF ¶ 61; SODF ¶ 381. She visited her guidance counselor “every couple Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 21 of 62 15 days” due to her “discomfort/unease at school,” which, as he testified, “stemmed from the fact that [H.] had assaulted her.” SOUF ¶ 62. In April 2016, the evening after the “peer mediation,” Darbi’s mother informed Rattigan and DeBona that her “heart [was] broken” for her daughter, who could no longer attend PHS because of her PTSD and the “toll” of seeing her harassers every day. SOUF ¶ 68. Like the prior year, PSD employees offered no suggestions for how Darbi could remain at PHS. SOUF ¶ 69. On May 1, 2016, after almost three weeks away from school without any instruction, Darbi was effectively forced to enroll in what Defendants refer to as a “pilot” cyber program, where she was unable to continue three of her junior-year classes and was forced to repeat a class she had already completed her sophomore year. SOUF ¶ 70. She also had to leave her position on the PHS student council and turn down a nomination to be its president. SOUF ¶ 71. Defendants Failed to Take Steps to Keep Darbi’s Harassers Away from Her During Her Senior Year After starting her senior year in the cyber program, Darbi decided to return to PHS, because H., B., C., and N. had all since graduated. SOUF ¶ 72. But even though the four men were no longer PSD students, PSD refused to ban them from PHS while Darbi was still enrolled as a student. SOUF ¶ 73. Worse still, PSD even allowed B. to visit the school and allowed H. to visit Darbi’s classroom just a week after she rejoined PHS. SODF ¶ 382. Darbi fortunately was not at school when H. and B. made these surprises appearances, but nothing in the record reflects that PSD employees knew this when they allowed her harassers to walk around the school. Id. Nor did any PSD employee give her the minimum courtesy of informing her in advance of their visits. SODF ¶ 383. After these incidents, all four men were still permitted to return to PHS during afterschool activities. SOUF ¶ 73; SODF ¶ 383. Darbi suffered a “downward spiral” of post-traumatic stress disorder when she learned later that she had only narrowly avoided by Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 22 of 62 16 coincidence—not because of any proactive steps taken by PSD—a man who had sexually assaulted her and another who had threatened to assault her. SODF ¶ 384. In May 2017, PSD employees even arranged for B., who was no longer a PSD student, to attend half of Darbi’s senior prom, despite knowing that this would deprive her of equal access to half of her prom, might cause her to have an “emotional breakdown[],” would potentially subject her to retaliation from B.’s friends, and would create a hostile environment for her. SOUF ¶¶ 74-77; SODF ¶ 385. When PSD employees learned that B. would be unable to attend the first half of Darbi’s prom for his own unrelated reasons, a PSD employee suggested that DeBona update Darbi, so that Darbi would not have to anticipate any retaliation from her classmates for being the “cause” of B.’s delayed arrival at prom. SOUF ¶ 75. Yet DeBona failed to do so. Id. A representative from the National Women’s Law Center left phone messages for Rattigan and DeBona and sent an email to PSD’s general counsel explaining that allowing B. to attend Darbi’s prom would violate Title IX, but no PSD employee responded to the email or phone messages. SOUF ¶ 76. Darbi later discovered that PSD employees knew that B. was not planning to attend her prom but had not informed her of this development until Darbi asked about B.’s whereabouts during prom. SOUF ¶ 77. Roger Canaff, An Experienced Prosecutor of Child Sexual Assault Crimes, Has Concluded that a Decision Not to Prosecute in No Way Suggests Darbi’s Allegations Were Untruthful Roger Canaff is a licensed attorney who has more than 20 years of experience prosecuting sexual assault crimes, including specialization in adolescent sexual assault, with the Virginia Office of the Commonwealth’s Attorney, the New York State Office of the Attorney General, the National Center for the Prosecution of Child Abuse (associated with the National District Attorneys Association), and the U.S. Army Legal Services Agency. Canaff Report, Ex. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 23 of 62 17 78, SODF (hereinafter, “Canaff Rep.”). Based on his extensive experience and specialization in adolescent sexual assault, Canaff makes several conclusions in his expert report: First, he concludes that Second, Canaff opines that Dabri’s alleged “delay in reporting is not relevant [because her] decision to tell [her therapist] roughly seven weeks after the incident was not at all atypical for victims[;] nor is it in any way an indication of a false report.” Id. at 6-7. In fact, a delay of “seven weeks” is “very common”—“especially . . . when the attacker is known to the victim”— due to the trauma, shock, and denial experienced by the victim. Id. at 6. As a result, Darbi’s report “should have been treated with seriousness and not viewed with any undue suspicion” by PSD employees. Id. Finally, Canaff twice emphasizes that “it is important [to] stress that the decision to not prosecute the case in no way indicates or should suggest that the allegations are not truthful.” Id. at 7, 8. According to Canaff’s expert opinion, “There are many factors that influence a prosecutor’s decision on whether to file charges,” including “overall case load.” Id. at 7. Moreover, he explains, “in most jurisdictions (including Pennsylvania) a different decision (i.e., to bring charges [against H.]) would have been legally defensible and ethical.” Id. Dr. Howe, An Expert in Title IX Compliance, Has Identified Numerous Deficiencies with Defendants’ Title IX Program Generally and Specifically with Respect to Darbi Dr. William A. Howe is a former Title IX Coordinator for the State of Connecticut, who has over 40 years of experience as an educator (with 24 years as a Title IX coordinator, including Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 24 of 62 18 17 years as a State Title IX coordinator) and has advised almost 200 school districts, conducted almost 100 workshops, trained more than 4,000 people, and handled approximately 7,000 calls on Title IX compliance. Howe Rep. at 21, Ex. 82. Based on his extensive Title IX experience, Dr. Howe reaches a number of conclusions about Defendants’ actions with respect to Darbi. First, Dr. Howe opines that Defendants “could and should have done more to implement a proper safety plan for Ms. Goodwin in the building,” including: (1) “issu[ing] a unilateral no-contact order requiring [her] harassers to not come within 36 feet of her, not to use the same hallways or staircases she used between classes, and/or to leave class a few minutes early or late to avoid contact with her—instead of placing that burden on her”; (2) not “scheduling [them] in the same study hall and lunch in the first place”; and (3) “including a note in each of their student files and alerting [employees] to be aware of possible [scheduling] conflict[s].” Id. at 11-12. Dr. Howe opines that all of these proposals would have been achievable in a school of PHS’s size and density (2,400 students in a 600,000 square foot building). Id. Second, Dr. Howe determines that Defendants did not offer reasonable accommodations to address the mental health issues Darbi faced as a result of the sexual assault and the subsequent sexual harassment: “[a]lthough [Defendants] knew that Ms. Goodwin was experiencing PTSD, anxiety, and suicidality, [they] never offered Ms. Goodwin an IEP or Section 504 plan. Alarms should have gone off when she began to deteriorate, and the school should have intervened at the first indication of her struggling. Instead, [she] was abandoned and left to fail.” Id. at 13. Third, Dr. Howe concludes that “[c]yber school was a poor option for Ms. Goodwin. As a sexual assault survivor, she needed emotional and social support, not isolation at home on a computer. Furthermore, cyber school did not afford her the same opportunities to continue Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 25 of 62 19 demonstrating her exceptional academic and leadership skills, hence limiting her chances of getting into top schools with good financial support.” Id. at 13-14. Fourth, Dr. Howe opines that Defendants “could and should have done more to protect Ms. Goodwin from her harassers after they graduated,” including: (i) “bann[ing] all four of them from returning to campus after they graduated, or at least alert[ing] the front office of the need to separate them from her or give them an escort if they visited campus”; (ii) “[a]t a minimum, . . . giv[ing] Ms. Goodwin advanced notice that her harassers were returning to campus”; (iii) requiring them to obtain “prior authorization” before visiting PHS, just as Defendants required of Darbi“when [she] was a cyber student (and still a PSD student)”; and (iv) “prioritiz[ing] the right of Ms. Goodwin to attend her own prom over the right of her harasser, a non-student, to attend as a guest.” Id. at 12. Finally, Dr. Howe identifies institutional and structural failures at PSD, noting that Defendants “failed to employ a suitable Title IX coordinator; failed to recognize or respond to . . . [Darbi’s] reports as sexual harassment; failed to provide the [her] with appropriate accommodations; failed to conduct prompt and equitable investigations of [her] complaints; and failed to provide adequate training on sexual harassment to employees and students.” Id. at 21. Dr. Howe concludes, ultimately, that Defendants “failed to take appropriate action at every stage of the process.” And he explains that he “would use Pennridge School District’s actions in [Darbi and Jane Doe’s] cases as case studies on what not to do in order to comply with the requirements of Title IX.” Id. (emphasis added). LEGAL STANDARD A court should grant summary judgment when there “is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 26 of 62 20 see Bialko v. Quaker Oats Co., 434 F. App’x 139, 141 (3d Cir. 2011). An issue of material fact exists if evidence is such that a reasonable jury could return a verdict for the nonmovant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of showing the absence of a genuine issue of material fact, and all reasonable doubts and inferences must be resolved in favor of the nonmovant. See, e.g., Crossley v. Iroquois Foundry Co., No. CIV. A. 91-1657, 1992 WL 26028, at *2 (E.D. Pa. Feb. 6, 1992). ARGUMENT This Court should deny Defendants’ motion for summary judgment because they are not entitled to judgment as a matter of law on Darbi’s Title IX and § 1983 claims. Section I explains that school districts have a civil rights obligation under Title IX to (i) address all forms of sexual harassment, (ii) regardless of concurrent criminal proceedings; and (iii) regardless of where it occurs. Section II sets out ample evidence from which a reasonable juror could find in Darbi’s favor as to each Title IX element. Sections III, IV, and V establish that Defendants are not entitled to summary judgment on Darbi’s § 1983 claims of failure to train, supervisory liability, and hostile environment. Section VI explains that Rattigan and DeBona are not entitled to summary judgment on Darbi’s § 1983 claims against them in their official capacities, and Section VII explains that they are not entitled to qualified immunity in their individual capacities. I. TITLE IX IS A CIVIL RIGHTS LAW THAT REQUIRES DEFENDANTS TO ADDRESS ALL SEXUAL HARASSMENT THAT CREATES A HOSTILE ENVIRONMENT Defendants acutely misunderstand that PSD has a civil rights obligation under Title IX to address sexual harassment in order to ensure that all students have equal access to educational opportunities in a safe educational environment. Defendants demonstrate an inability to Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 27 of 62 21 (1) recognize sexual harassment, (2) distinguish criminal law from civil rights law, and (3) understand their ability to control their own students and school environment. A. Sexual Assault, Physical Assault, Threats, Sexual Epithets, and Rumors Are All Forms of Actionable Sexual Harassment Under Title IX A school district is liable for damages for student-on-student sexual harassment where (1) sexual harassment is “so severe, pervasive, or objectively offensive” that the student is “effectively denied equal access to [the school’s] resources and opportunities”; (2) the district had actual knowledge of harassment, and substantial control over the harasser and the context in which the harassment occurred; and (3) the district’s response to the harassment is deliberately indifferent (i.e., “clearly unreasonable in light of the known circumstances”).1 Doe by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 533 n.99 (3d Cir. 2018) (“Boyertown”); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646-48, 650 (1999); see 20 U.S.C. § 1681(a). All sexual assault constitutes sexual harassment for Title IX purposes, including but not limited to vaginal penetration by a penis. See, e.g., Davis, 526 U.S. at 633 (touching of breasts and genitals); Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1180 (10th Cir. 2007) 1 In its March 2018, this Court outlined the six elements—which the three elements outlined in this brief encompass—of Darbi’s Title IX claim: “(1) PSD received federal funds; (2) she was sexually harassed; (3) PSD had ‘substantial control’ over both the harasser(s) and the context of the harassment; (4) PSD had ‘actual knowledge’ of the harassment; (5) PSD was ‘deliberately indifferent’ to the harassment; and (6) the harassment was ‘so severe, pervasive, and objectively offensive’ that it deprived Goodwin of access to educational opportunities or benefits.” Goodwin v. Pennridge Sch. Dist., 309 F. Supp. 3d 367, 375 (E.D. Pa. 2018) (emphasis added). Defendants do not dispute that PSD receives federal funds. Defs.’ S.J. Mot. at 23 n.6. Four months later, in July 2018, the Third Circuit held that a Title IX plaintiff alleging sexual harassment need only show that the harassment was so “severe, pervasive, or objectively offensive.” Boyertown, 897 F.3d at 533. In its opinion, the Third Circuit observed that it had “not always been consistent” in applying the correct test, and that even “the Supreme Court has used both the conjunctive and the disjunctive to describe the plaintiff’s burden.” Id. at 533 n.99 (citing Castleberry v. STI Grp., 863 F.3d 259, 263-64 (3d Cir. 2017)). The Third Circuit ultimately held that the disjunctive “severe or pervasive” is the correct standard under Title IX. Id. (emphasis in original); see Feminist Majority Found. v. Hurley, 911 F.3d 674, 686 (4th Cir. 2018) (same). Ignoring this binding precedent, Defendants apply the conjunctive standard. Defs.’ Mot. at 23. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 28 of 62 22 (nonconsensual oral sex); Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253, 256-57 (6th Cir. 2000) (attempted removal of shirt, request for sexual favors, touching chest and buttocks); Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332, 369 (W.D. Pa. 2008) (digital penetration and touching breasts). A single sexual assault is sufficiently severe, pervasive, and objectively offensive to create a hostile environment and trigger school district liability. Vance, 231 F.3d at 259 n.4. While the criminal definition of “rape” is in fact irrelevant to a school district’s Title IX obligations, see, infra, Section I.B., Darbi’s account of H.’s conduct meets Pennsylvania’s definition of criminal “rape,” which includes “sexual intercourse” (including “intercourse per os”) by “forcible compulsion”—i.e., forced oral sex. 18 Pa. C.S. §§ 3101, 3121(a)(1). A decision to bring charges against H. would have been “legally defensible and ethical.” Canaff Rep. at 7. In the aftermath of a “particularly severe or pervasive” incident of harassment, the “mere presence” or “continuing presence” of the harasser may be sufficient to create an actionable hostile environment. Goodwin, 309 F. Supp. 3d at 375 (citing, inter alia, Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 718 (3d Cir. 1997)). For example, a reasonable jury could find that a student faced severe, pervasive, and objectively offensive harassment when she was forced to share a lunch period and study hall with her off-campus assailant, or forced to attend prom with her off-campus assailant. C.S. v. S. Columbia Sch. Dist., No. 4:12-CV-1013, 2013 WL 2371413, at *9 (M.D. Pa. May 21, 2013) (lunch and study hall); Doe ex rel. Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226, 231 (D. Conn. 2009) (prom). Physical assault and threats of physical violence are also sufficient to give rise to Title IX liability. For example, in Krebs v. New Kensington-Arnold School District, the court held that severe, pervasive, and objectively offensive harassment had occurred in part because, in the context of other classmates calling the Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 29 of 62 23 plaintiff sexual slurs (e.g., “slut,” “whore”), one student sent the plaintiff a text message with a picture of a person slitting their wrist, and later also fractured the plaintiff’s nose and bruised and cut her eye. 2016 WL 6820402, at *2 (W.D. Pa. Nov. 17, 2016); see also Andrews v. City of Phila., 895 F.2d 1469, 1474 (3d Cir. 1990) (explaining egregious sexual harassment occurred when harassers burned plaintiff with chemicals). Other courts have also found that “physically threatening” sexual harassment, even where no physical violence actually results, is actionable under Title IX. See, e.g., Jennings v. Univ. of N. Carolina, 482 F.3d 686, 697-98 (4th Cir. 2007) (citing Davis, 526 U.S. at 650-51). Verbal harassment, too, can be severe and pervasive. For example, a school district is responsible for addressing the hostile environment that results from sexual epithets like “bitch,” “slut,” “cunt,” and “hoe.” Krebs, 2016 WL 6820402, at *2; see also Feminist Majority, 911 F.3d at 682. The Third Circuit has also clarified that under Title VII, which courts look to in interpreting Title IX, the pervasive use of derogatory and insulting terms relating to women can serve as evidence of a hostile environment. See Andrews, 895 F.2d at 1485; see also Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810 (11th Cir. 2010) (en banc) (use of “fucking” as intensifier before “bitch” strengthens hostility against women); Boyertown, 897 F.3d at 533 n.99 (examining Title VII case law for purposes of interpreting Title IX). In addition, school districts are liable for failing to address sexual rumors, such as a rumor that the victim of an off- campus rape has had sex with two male classmates. Doe v. E. Haven Bd. of Educ., 200 F. App’x 46, 48 (2d Cir. 2006); see Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1133 (9th Cir. 2003) (harasser initiated rumor that two students had oral sex in in school bathroom); see also S.K. v. N. Allegheny Sch. Dist., 168 F. Supp. 3d 786, 797-98 (W.D. Pa. 2016). For example, the Department of Education’s interpretive guidance on Title IX explains that sexual harassment Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 30 of 62 24 occurs when students “routinely call[] [the victim] sexually charged names, spread[] rumors about her sexual behavior, and send[] her threatening text messages” after the victim ends “a brief romance” with a male classmate. U.S. Dep’t of Education, Office for Civil Rights, Dear Colleague Letter: Harassment and Bullying 6-7 (Oct. 26, 2010) [hereinafter, “2010 Harassment Guidance”]. Defendants fail to recognize that, if the plaintiff has previously reported harassment by her former romantic partner, verbal harassment, including sexual epithets, from him and his friends is actionable. See, e.g., Roy v. Correct Care Solutions, LLC, __ F.3d __, 2019 WL 336515, at *7 (1st Cir. Jan. 28, 2019) (precedential) (“[T]here is no doubt that a jury could find that [the harasser] calling [the plaintiff] a “bitch” was connected to her sex. It does not matter whether [he] was motivated by 'anger resulting from the breakup of their [brief] previous romantic relationship[.]”). Defendants selectively quote a parenthetical citation in Southern Columbia School District to argue that the case stands for the proposition that “‘name-calling which implicates a student’s sex does not itself permit an inference of sex-based discrimination.’” Defs.’ S.J. Mot. at 25. But that wrongly takes the quotation out of context. The court there said that “what may not amount to sexual harassment in one circumstance may amount to sexual harassment in another,” citing the following Second Circuit’s holding: “Although we recognize that name-calling in school which implicates a student's sex does not itself permit an inference of sex-based discrimination, . . . we cannot exclude the possibility that such name-calling in the context of a reported rape constitutes sexual harassment.” 2 S. 2 Numerous courts have rejected similar arguments that sexual epithets do not constitute sex discrimination under Title VII. See, e.g., Parker v. Reema Consulting Servs., __ F.3d __ Inc., 2019 WL 490652, (4th Cir. Feb. 8, 2019) (precedential) (explaining “bitch” is not gender-neutral even if sometimes directed at men); Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225, 229-30 (1st Cir. 2007) (finding it “beyond dispute” that “bitch” and “cunt” could establish sexual Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 31 of 62 25 Columbia Sch. Dist., WL 2371413, at *9 (ellipses in original) (emphasis added) (quoting E. Haven Bd. of Educ., 200 F. App’x at 48). Defendants’ cannot overcome adverse precedent establishing that sexual harassment can include sexual epithets and rumors. B. School Districts Have a Civil Rights Duty to Address Sexual Assault Independent of Any Criminal Investigation Whereas the primary purpose of a criminal investigation is to punish perpetrators, the purpose of a civil rights investigation (such as a school’s Title IX investigation) is to ensure equal access to educational opportunities for victims of discrimination. See Davis, 526 U.S. at 654. Accordingly, a school district violates Title IX when it fails to address sexual assault that impacts educational opportunities independently of actions taken by the police or prosecutor. As Roger Canaff, a prosecutor who specializes in adolescent sexual assault explains: “There are many factors that influence a prosecutor’s decision on whether to file charges,” and “[t]he decision of a prosecuting agency to not bring charges in no way indicates that the allegations are unbelievable or untruthful.” Canaff Rep. at 7, 8. The Department of Education has recognized this distinction for more than 20 years: “because legal standards for criminal investigations are different, police investigations or reports may not be determinative of whether harassment occurred under Title IX and do not relieve the school of its duty to respond promptly and effectively.” U.S. Dep’t of Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties 21 (Jan. 19, 2001) [hereinafter, “2001 Sexual Harassment Guidance”].3 harassment even if abuse was motivated by gender-neutral reasons)); Burns v. McGregor Elec. Indus., 989 F.2d 959, 964-65 (8th Cir. 1993) (observing “bitch,” “slut,” and “cunt” amount to sexual harassment even if plaintiff was “not . . . propositioned, touched offensively, or harassed by sexual innuendo”). 3 The 2001 guidance updated the Department’s 1997 guidance on the same topic. U.S. Dep’t of Education, Office for Civil Rights, Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12034, 12045 (Mar. 13, 1997). Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 32 of 62 26 Failure to investigate a report of sexual assault beyond merely contacting the police constitutes deliberate indifference in violation of Title IX. In Southern Columbia, the court noted that the district’s refusal to take action regarding an off-campus sexual assault “absent a court order” was contrary to the compliance instructions “Title IX coordinator[s], [school] employees and agents had received [in] Title IX training.” 2013 WL 2371413, at *5. In Greater Johnstown, the court explained that a plaintiff’s “notice of possible harassment . . . trigger[s] the District’s duty to investigate,” and that school principals have “a duty to investigate independently of any police investigation, even if the alleged incident ‘might involve criminal conduct.’” 586 F. Supp. 2d at 369 (emphasis added). Refusal to discipline a student for sexual assault because of the absence of a criminal charge can also constitute deliberate indifference. For example, the school district in Greater Johnstown decided to discipline the assailant for a “Level 4” school violation only after learning that criminal charges would be filed and nearly three months after it was first notified of the sexual assault. Id. at 371-72. The court held that although the school district eventually administered discipline, it had nonetheless acted with deliberate indifference, because its disciplinary decision depended on the filing of criminal charges and the district “more likely than not . . . would have done nothing” in the absence of a criminal charge. Id.; see also Doe v. Forest Hills Sch. Dist., No. 1:13-CV-428, 2015 WL 9906260, at *10 (W.D. Mich. Mar. 31, 2015) (finding deliberate indifference where school district waited for police to make determination and did not suspend assailant until after he pleaded guilty to criminal charges). C. School Districts Must Address Out-of-School Harassment that Creates A Hostile Educational Environment School districts have a clearly defined duty to address the in-school hostile environment that results from out-of-school harassment. See, e.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 33 of 62 27 U.S. 274, 278 (1998) (recognizing school districts’ Title IX duty to address sexual harassment, even though the sexual assaults at issue occurred “never [occurred] on school property” or within school-sponsored activity); E. Haven, 200 F. App’x at 48 (holding school board liable for on- campus harassment that resulted from off-campus rape, including rumor that plaintiff had sex with two boys); N. Allegheny, 168 F. Supp. 3d at 803 (district could be liable for failing to address harassment by classmates at afterschool party and plaintiff’s workplace). The critical inquiry is whether the school has “substantial control” over both (i) the “harasser” and (ii) the “context” in which the harassment occurs. Davis, 526 U.S. at 645. In the context of student-on- student harassment, these prongs are generally satisfied if (i) the harasser is “under the school’s disciplinary authority” and (ii) the harassment occurs on school grounds and during school hours. Id. at 646-47. In cases of out-of-school harassment, these prongs are met if the school is (i) authorized to discipline students for other types of out-of-school misconduct; and (ii) able to correct the hostile environment that arises in school as a result of the out-of-school harassment. See, e.g., Feminist Majority, 911 F.3d at 688 (holding that a university had (i) substantial control over online harassers because it had disciplined students in the past for unrelated off-campus speech, and (ii) substantial control over context of online harassment because it could correct resulting hostile environment through school-wide trainings or assemblies); see also Roy, 2019 WL 336515, at *7 n.4 (out-of-work harassment can affect workplace environment). For example, in Southern Columbia, which Defendants cite, the court rejected a similar argument and concluded that the plaintiff had stated a plausible claim under Title IX. There, as here, the student-plaintiff had been assaulted by another student off-campus, and the defendants argued that the district could not be liable for an off-campus assault under Title IX. Yet the court recognized that such Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 34 of 62 28 an argument misconstrued the legal and factual basis for the plaintiff’s claims and the district’s obligation under Title IX to address a hostile educational environment that ensues in the wake of an off-campus sexual assault: Applying these principles [from Davis on substantial control], the School District cannot be liable for the assault that occurred during the summer and off of school property. But [the plaintiff] does not seek to hold the School District liable for that assault. Rather, she seeks to hold the School District liable on the basis that it subjected her to a sexually hostile environment because she was forced to attend the same school as her attackers and to encounter them on a regular basis and because they and their friends verbally harassed her. S. Columbia, 2013 WL 2371413, at *9 (emphasis added); see Defs.’ S.J. Mot. at 25-26. Defendants here make the same error as the district in Southern Columbia. The Southern Columbia court’s conclusion that the plaintiff had stated a claim under Title IX is consistent with this Court’s recognition that the “mere presence” of a harasser who has engaged in particularly severe or pervasive harassment may be sufficient to create an actionable hostile environment. Goodwin, 309 F. Supp. 3d at 375. And finally, contrary to Defendants’ assertions, a school district is not excused from investigating out-of-school sexual harassment merely because the victim did not report immediately. No case law supports such a requirement, and as Roger Canaff explains, a delay of seven weeks is neither “atypical” nor “relevant,” but rather “especially common when the attacker is known to the victim.” Canaff Rep. at 6-7; see also 2001 Sexual Harassment Guidance at 9 (“[F]ailure to immediately complain may merely reflect a fear of retaliation or a fear that the complainant may not be believed rather than that the alleged harassment did not occur.”). * * * * * In sum, Defendants are wrong when they claim that “there is no statute or case law that imposes an obligation on [PSD] to investigate [a sexual assault] that took place during Christmas break inside a privately owned motor vehicle that was located in a restaurant off-campus and was Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 35 of 62 29 never reported to the school until three months later.” Defs.’ S.J. Mot. at 52. Title IX is imposes such an obligation when the off-campus harassment creates a hostile environment at school, as established by an abundance of case law. II. A REASONABLE JUROR COULD CONCLUDE DARBI HAS MET ALL OF THE ELEMENTS OF HER TITLE IX CLAIM Turning to the facts of the instant case, the evidence shows that a reasonable jury could conclude that Darbi suffered (1) sexual harassment “so severe, pervasive, or objectively offensive” that she was “effectively denied equal access to [the school’s] resources and opportunities”; (2) PSD had actual knowledge of that harassment and had substantial control over her harassers and the context in which the harassment occurred; and (3) PSD’s response to the harassment was deliberately indifferent (i.e., “clearly unreasonable in light of the known circumstances”). Boyertown Area Sch. Dist., 897 F.3d at 533 n.99; Davis, 526 U.S. at 646-48; see also Feminist Majority, 911 F.3d at 686. A. The Sexual Assault, Physical Assault, Threats, Sexual Epithets, and Rumors that Darbi Suffered Constitutes Severe, Pervasive, or Objectively Offensive Harassment that Deprived Her of Equal Access to Educational Opportunities and Benefits. 1. Severe, Pervasive, or Objectively Offensive Harassment Darbi has presented sufficient evidence such that a reasonable jury could find that she was subjected to severe, pervasive, and objectively offensive sexual harassment—more than sufficient to meet the legal standard for a Title IX claim.4 H.’s sexual assault, was sufficient on its own to establish 4 While the standard recently established by the Third Circuit is that the harassment must be “severe, pervasive, or objectively offensive,” Darbi has put forth sufficient evidence such that a reasonable juror could find that she was subjected to harassment that was “severe, pervasive, and objectively offensive” under the more demanding conjunctive standard. Boyertown Area Sch. Dist., 897 F.3d at 533 n.99. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 36 of 62 30 severe, pervasive, and objectively offensive sexual harassment. SOUF ¶ 17; SODF ¶ 360; Greater Johnstown, 586 F. Supp. 2d at 369; Vance, 231 F.3d at 259 (one physical incident sufficient). In addition, like the Southern Columbia plaintiff, who endured harassing comments after being sexually assaulted off-campus, Darbi was called a “fucking bitch” by her off-campus assailant. SOUF ¶ 51; SODF ¶ 376; S. Columbia, 2013 WL 2371413, at *9; see also Reeves, 594 F.3d at 810 (observing that use of “fucking” as intensifier before “bitch” strengthens hostility). Defendants ask this Court to resolve a factual issue (and attempt to victim-blame) by arguing that it was acceptable for H. to “react[]” to her non-harassing comment with a “respon[se] to his friends,” ignoring the fact that H. spoke loudly to ensure that Darbi could hear his harassing comment, and that he was in violation of his instruction to stay away from her. Defs.’ S.J. Mot. at 19, 32; SOUF ¶ 53; SODF ¶ 376. Moreover, in light of the particularly severe nature of the sexual assault, which drew blood and bruised Darbi’s body, H.’s “mere presence,” even without the slur, was enough alone to create a hostile environment. SODF ¶ 360; see Goodwin, 309 F. Supp. 3d at 375 (quoting Wills v. Brown Univ., 184 F.3d 20, 37 (1st Cir. 1999) (“[T]he continuing presence of the harasser may so alter the terms and conditions of education that the victim of harassment may be able to establish a claim for sex discrimination.”)). Darbi was also subjected to specific incidents of harassment similar to those experienced by the Krebs plaintiff, who was called “slut” by classmates and who received a threatening text message from a student who later physically attacked her. 2016 WL 6820402, at *2, *4. Like the Krebs harasser, C. sent Darbi a threatening message to “hang out” on the one-year anniversary of her sexual assault and later calculatingly bumped her in the hallway. SOUF ¶¶ 55-57, 63; SODF ¶¶ 377, 379; Krebs, 2016 WL 6820402, at *2, *4. Defendants once again ask this Court to resolve a factual issue in their favor by arguing that C.’s text message and bump were “not Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 37 of 62 31 threatening” and “did not refer to H.,” Defs.’ S.J. Mot. at 31. Of course, such determinations are for the jury. And a reasonable jury likely will disagree with that characterization when PSD employees have already disagreed: Hegen described C.’s text as “a deliberate act . . . to remind Darbi of a horrible day in her life [i.e., H.’s sexual assault],” and Laboski testified that it was “obviously offensive” and “reasonable for [Darbi] to feel threatened.” SOUF ¶ 56. Also like the Krebs harassers, B. repeatedly called Darbi a “slut”—an undisputed and material fact that Defendants entirely fail to mention—and sent a text message to her former friend threatening to “jump” Darbi. SOUF ¶ 26; see Defs.’ S.J. Mot. at 12-14, 34-36. N. also texted Darbi, calling her a “cunt” and “hoe” and intentionally misspelling “ridiculous” to include the word “dick.” SOUF ¶ 33. Defendants once again ask this Court to resolve an issue for the jury—B.’s and N.’s motives—arguing that they acted “in response to” their belief that Darbi had “snitched” on them to the police. Defs.’ S.J. Mot. at 12-14, 30, 34-35. Defendants ignore Darbi’s testimony saying she did not name anyone except H. to the police. SODF ¶¶ 369, 373. Moreover, they wrongly rely suggest that the dispositive issue is the subjective motive of the harasser.5 Roy, 2019 WL 336515, at *7 (explaining a harasser’s “subjective motives” do not affect conclusion that the use of “sexually degrading, gender-specific epithets” constitutes harassment); see Forrest, 511 F.3d at 229-30 (citing a “raft of case law” that “establishes that the use of sexually degrading, gender-specific epithets, such as ‘slut,’ ‘cunt,’ ‘whore,’ and ‘bitch,’ has been consistently held to constitute harassment based upon sex”). Contrary to Defendants’ belief that the harassment was “isolated or sporadic,” see Defs.’ S.J. Mot. at 32, Darbi was subjected to relentless harassment and an increasingly hostile environment from January 2014 until her second withdrawal from PHS in April 2016. From 5 Defendants could not plausibly apply this logic, for example, to a rapist who raped his victim out of anger “in response to” something the victim did. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 38 of 62 32 December 2014 to April 2015, like the East Haven plaintiff, who was subjected to in-school rumors about sex with two male classmates after an off-campus rape, Darbi endured subsequent rumors from H. and his friends that she had had sex with two boys on the same night, as well as H. bragging, “[T]his is what I do,” in reference to her sexual assault.6 SOUF ¶¶ 21-23; SODF ¶¶ 366-67; see E. Haven, 200 F. App’x at 48. During summer 2015, Darbi continued receiving harassing calls and text messages from H., B., N., and C. SOUF ¶ 32; SODF ¶ 372. During fall 2016, she endured their “continuing presence,” including seeing H. “3 times a week” in September 2015 and at a college fair and assembly. SOUF ¶¶ 41, 44-46; see Goodwin, 309 F. Supp. 3d at 375. Like the Southern Columbia plaintiff, who was sexually assaulted off campus and subsequently forced to share a lunch period and study hall with her assailants, Darbi was also forced to share a lunch period her entire junior year with B., C., and N., as well as the first day of study hall with both H. and B. SOUF ¶¶ 38, 40; S. Columbia, 2013 WL 2371413, at *9. From November 2015 to April 2016, when she withdrew from PHS for the second time, H., B., N., or C. harassed Darbi “daily,” leaving her “petrified to go to school” on “most days.” SOUF ¶ 66; SODF ¶ 381. Finally, like the Coventry school district, which allowed the plaintiff’s sexual assailant to attend her senior prom, PSD allowed B. to attend Darbi’s prom, even though he had sexually harassed her, threatened to physically assault her, and was no longer a PSD student by that time. SOUF ¶¶ 74-77; Coventry, 630 F. Supp. 2d at 231. 6 Although Defendants go to great lengths to say there were no face-to-face “confrontations” or that the harassers did not say anything “to” Darbi during certain periods of time, they neglect to mention that all four harassers spoke persistently to other students about Darbi by spreading sexual rumors and even bragging about sexually assaulting her—conduct that the Department of Education has explicitly recognized as severe or pervasive sexual harassment in violation of Title IX. Defs.’ S.J. Mot. at 18, 34; see 2010 Harassment Guidance at 6-7. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 39 of 62 33 2. Deprivation of Equal Access to Educational Opportunities and Benefits Sexual harassment creates a hostile environment that deprives a student of equal access to educational opportunities and benefits when the harassment detrimentally affects the victim’s mental health and ability to attend a regular day school, among other factors. A student is deprived equal access when, as here, she suffers depression, suicidal ideation, and lower grades; the district “offer[s] [her mother] no practical choice except to remove [her] from the school”; and her alternative instruction fails to provide her with her school textbooks and forces her to repeat half a year of curriculum in one of her classes. Greater Johnstown, 586 F. Supp. 2d at 353, 370. Similarly, a harassment victim is deprived of equal educational access when, as here, she suffers post-traumatic stress disorder, depression, and suicidality; receives lower grades; withdraws from class, extracurricular activities, and eventually the district. Price ex rel. O.P. v. Scranton Sch. Dist., No. CIV.A. 11-0095, 2012 WL 37090, at *4 (M.D. Pa. Jan. 6, 2012); see also M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d 412, 429 (M.D. Pa. 2014) (withdrawal from district); S. Columbia, 2013 WL 2371413, at *6 (transfer to cyber school). Here, Darbi has put forth ample evidence that she was deprived of equal access to educational opportunities at PHS, including being effectively forced to withdraw from PHS not once but twice. Like the Greater Johnstown and Price plaintiffs, Darbi suffered “extreme bouts of depression[,] cutting[,] anger[, and] suicidal thoughts,” and was diagnosed with “severe PTSD” a result of the harassment and hostile environment. SOUF ¶¶ 47-48; Greater Johnstown, 586 F. Supp. 2d at 370, 373; Price, 2012 WL 37090, at *4. Moreover, she left school early whenever she was, as her guidance counselor testified, “too upset to get through the day” due to “the fact that [H.] had assaulted her.” SOUF ¶¶ 61-62; SODF ¶ 381. Defendants again ask this Court to resolve a factual issue in their favor by arguing that Darbi “voluntarily chose” to leave PHS in May 2015 and April 2016, Defs.’ S.J. Mot. at 39, but instead she was directed by her Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 40 of 62 34 medical provider to withdraw from PHS to “recover[] from traumatic events” in May 2015— after B.’s return to school triggered a panic attack. SOUF ¶¶ 28-29. Similarly, contrary to Defendants’ claims, Darbi did not choose to leave PHS again in April 2016, but was withdrawn by her “heartbroken” mother after realizing there was “no other practice choice” to escape her harassers and the “toll” they had taken on her, SOUF ¶ 68—much like the Greater Johnstown plaintiff. 586 F. Supp. 2d at 370. Although Defendants argue that they created a “pilot” cyber program “specifically for Darbi to attend,” a harassment victim’s transfer to cyber school is itself evidence of unequal educational access—which in any event is a question for the jury. S. Columbia, 2013 WL 2371413, at *6. Moreover, Defendants neglect to mention that, like the alternative school in Greater Johnstown, which lacked the necessary textbooks and forced the plaintiff to repeat half a year’s material in one of her courses, their cyber school lacked three of the courses Darbi was taking at the time and forced her to repeat an entire year of coursework from one sophomore year class. SOUF ¶ 70; Greater Johnstown, 586 F. Supp. 2d at 353. Because she withdrew from PHS, Darbi also had to leave her position on the student council and turn down a nomination to be its president. SOUF ¶ 71. Her GPA each year tells the story of the hostile environment she faced: it was a 3.86 for her freshman year before the harassment began; dropped to a 3.27 during her sophomore year due to the assault and subsequent harassment; remained suppressed at a 3.44 during her junior year; and returned to a perfect 4.0 during her senior year after her harassers had graduated. SOUF ¶ 31; SODF ¶ 386. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 41 of 62 35 B. PSD Had Actual Knowledge of the Harassment and Substantial Control over Darbi’s Harassers and the Context in which the Harassment Occurred A plaintiff seeking damages in peer harassment cases must prove that a school employee had actual knowledge of the harassment,7 and that the school district had substantial control over the harasser(s) and the context in which the harassment occurred. Davis, 526 U.S. at 646-47. 1. PSD Had Actual Knowledge Ample evidence exists that numerous PSD officials—including Superintendent Rattigan, Principal DeBona, and Assistant Principals Hegen and Laboski (all of whom were “appropriate persons”); Title IX coordinator McHale; and guidance counselors Cortazzo and Henrysen—had actual knowledge of the harassment Darbi suffered. SOUF ¶¶ 10, 21, 22, 23, 28, 29, 32, 33, 36, 37, 41, 45, 48-49, 51, 54, 55, 56, 62, 63; SODF ¶¶ 361, 366-67, 370. Evidence of their knowledge, which is set forth in more detail in the statement of facts in this memorandum, includes:  H.’s sexual assault: DeBona, Hegen, Laboski, and Cortazzo received notice in March 2015, and Rattigan and McHale were informed in September 2015.  Rumors and H.’s brag: Contrary to Defendants’ assertion that the sexual rumors were never reported to PHS, Defs.’ S.J. Mot. at 36, Hegen and Laboski received notice of the rumors sometime in March 2015. Cortazzo received notice of H’s bragging in April 2015. Rattigan and McHale were informed of both the rumors and H.’s bragging in September 2015. 7 The Supreme Court has required actual knowledge by an “appropriate person” only in cases of employee-on-student harassment, not student-on-student harassment. Gebser, 524 U.S. at 290. Even if Darbi were required to meet the “appropriate person” standard, however, she has set forth facts such that a reasonable juror could find that she satisfies that standard. Courts have held that notice to school officials, including superintendents, principals, and assistant principals, constitutes actual knowledge of harassment by an “appropriate person” in employee-on-student Title IX cases. E.g., Does v. Se. Delco Sch. Dist., 272 F. Supp. 3d 656, 688 (E.D. Pa. 2017) (superintendents and principals); K.E. v. Dover Area Sch. Dist., No. 1:15-CV-1634, 2017 WL 4347393, at *7 n.6, *10 (M.D. Pa. Sept. 29, 2017) (superintendents, principals, and assistant principals). Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 42 of 62 36  B.’s “jump” threat: Rattigan, DeBona, Laboski, and Hegen received notice in May 2015. Rattigan and McHale were informed in September 2015.  Texts: Hegen received notice of harassing texts, including N.’s “cunt” text, in August 2015. Rattigan and McHale were informed of N.’s text in September 2015.  H.’s “fucking bitch” comment: Rattigan, DeBona, and Laboski received notice in November 2015.  C.’s “hang out” text: Rattigan, DeBona, Hegen, and McHale received notice in January 2016.  C.’s bump: Rattigan, DeBona, Hegen, Laboski, and Henrysen received notice in April 2016. Against this backdrop, no reasonable juror could find that PSD lacked notice. 2. PSD Had Substantial Control over the Harassers and the Context in which the Harassment Occurred PSD exercised substantial control over all four of Darbi’s harassers and every incident of harassment. First, PSD had substantial control over H., C., B., and N. because they were under PSD’s disciplinary authority, including, according to Defendants’ own written policies, for acts of bullying (which can include harassment) that occur “outside a school setting.” SOUF ¶ 101; SODF ¶ 387; see Davis, 526 U.S. at 646; Feminist Majority, 911 F.3d at 688. Second, PSD had substantial control over every incident because either (i) the harassment occurred on school grounds and during school hours, or (2) PSD had the ability to correct the hostile environment that resulted from out-of-school harassment. Davis, 526 U.S. at 630; Feminist Majority, 911 F.3d at 688. Defendants are wrong that PSD did not exercise substantial control over H.’s sexual assault, N.’s “cunt” message, and C.’s “hang out” message merely because they took place during school breaks, or because Defendants found out about the assault “three months later.” Defs.’ S.J. Mot. at 8, 26-31. Like the Southern Columbia school district, PSD is liable for the Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 43 of 62 37 out-of-school harassment Darbi experienced because after receiving notice, PSD failed in any way to effectively address the fact that she was attending the same school as her harassers and encountering them on a regular basis at school. 2013 WL 2371413, at *9; see, e.g., E. Haven, 200 F. App’x at 48 (school district liable for on-campus harassment resulting from off-campus rape); N. Allegheny, 168 F. Supp. 3d at 803 (school district liable for harassment of plaintiff at afterschool party and workplace); Coventry, 630 F. Supp. 2d at 231 (school district liable for harassment resulting from off-campus assault). Furthermore, unlike the plaintiff in Williams v. Pennridge School District, Darbi offers copious evidence of continuous in-school harassment by H., C., B., and N. that created an untenably hostile educational environment that effectively forced her to twice withdraw from PHS. 2018 WL 6413314, at *11-*13 (E.D. Pa. Dec. 6, 2018). C. PSD Was Deliberately Indifferent to the Known Acts of Harassment that Darbi Suffered A school district is deliberately indifferent when its “response . . . or lack thereof is clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648. A reasonable jury could find that PSD was deliberately indifferent in, at least, four different ways: (1) PSD repeatedly failed to investigate or failed to adequately investigate her reports; (2) PSD failed to create a safety plan to keep H., B., C., and N. away from her; (3) PSD repeatedly failed to discipline the harassers; and (4) PSD pushed her into homebound instruction and an inferior cyber school, rather than ensuring that she had equal access to educational opportunities at PHS. Ample evidence exists for each of these transgressions, although Darbi need not establish evidence for each transgression to create a material dispute regarding deliberate indifference. 1. PSD Failed to Investigate Failure to investigate a report of sexual harassment is, on its own, sufficient to constitute deliberate indifference in violation of Title IX. See, e.g., Vance, 233 F.3d at 262 (failure to Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 44 of 62 38 investigate “three incidents alone reflect . . . deliberate indifference”); Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1248 (10th Cir. 1999) (“complete refusal to investigate . . . amounts to deliberate indifference”); see also Davis, 526 U.S. at 654 (defendants “made no effort whatsoever either to investigate”). Similarly, if a district does not “avail itself” of “the designated investigator for student-to-student harassment”—“[i]ndeed, [if] [the Title IX coordinator] has never been involved in any investigation of peer-on-peer sexual harassment”— the district has acted with deliberate indifference. Bruning ex rel. Bruning v. Carroll Cty. Sch. Dist., 486 F. Supp. 2d 892, 916 (N.D. Iowa 2007). Courts have rejected the suggestion that “as long as [a school district] ‘does something in response to harassment,’” it has shown it was not deliberately indifferent. Jones v. Indiana Area Sch. Dist., 397 F. Supp. 2d 628, 644 (W.D. Pa. 2005) (quoting Vance, 233 F.3d at 260). Therefore, even where a district conducts a “limited investigation” into an “initial report” of abuse, such an investigation can still constitute deliberate indifference as a matter of law. Forest Hills, 2015 WL 9906260, at *10; see also Doe v. Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57, 64 (D. Me 1999). For example, a school district may not simply contact the police and defer to the results of the police investigation in lieu of conducting its own investigation. Greater Johnstown, 586 F. Supp. 2d at 369. In addition, a school district may not determine the outcome of an investigation “based only on what [respondent] admitted and not on what actually occurred.” Bruning, 486 F. Supp. 2d at 916. Furthermore, a school district does not adequately investigate if it searches in vain for “a signed confession or video tape” and then refuses to investigate further when no tape or confession is found. Forest Hills, 2015 WL 9906260, at *11. Nor may school districts conclude without adequately investigating that “tak[ing] further action” would be equivalent to conducting a “witch hunt.” Greater Johnstown, 586 F. Supp. 2d at 351. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 45 of 62 39 Here, Darbi has set forth evidence that PSD: (i) failed to notify the Title IX coordinator, McHale, of any of Darbi’s reports of harassment until Darbi’s mother reached out herself in September 2015, in violation of PSD policy;8 (ii) failed to investigate, in any fashion, the sexual rumors, H.’s bragging about sexual assault, and the harassing text messages from the four harassers during summer 2015; and (iii) with the exception of B.’s “jump” threat, conducted a woefully inadequate investigation of the other reported incidents. SOUF ¶¶ 24-25, 33-35, 52-57, 88-93. First, with respect to H.’s sexual assault, Laboski simply asked H. whether he had sexually assaulted Darbi and, like the Bruning defendant, ended his inquiry “based only on what [H.] admitted and not on what actually occurred.” SOUF ¶¶ 12-13; Bruning, 486 F. Supp. 2d at 916. Meanwhile, like the Greater Johnstown defendant, Hegen did nothing more than talk to Darbi and her mother and ensure that the police had been notified, admitting in his deposition, “I was not investigating” the assault.” SOUF ¶ 14; Greater Johnstown, 586 F. Supp. 2d at 369. These actions were contrary to PSD’s own written policies on harassment investigations: “The obligation to conduct this investigation shall not be negated by the fact that a criminal investigation of the incident is pending or has been concluded.” SODF ¶ 388. Second, regarding C.’s deliberate bump of Darbi in the hallway, Hegen behaved like the Forest Hills and Greater Johnstown defendants when he decided the investigation was “inconclusive” merely because the incident was not captured on camera and because making a determination without video evidence would be akin to starting a “witch hunt.” SOUF ¶ 64; Forest Hills, 2015 WL 9906260, at *11; Greater Johnstown, 586 F. Supp. 2d at 351. Third, despite obtaining evidence that 8 Indeed, in August 2015, Hegen did not even know the identity of PSD’s Title IX Coordinator and had to obtain her name from DeBona. SOUF ¶ 88. This Court has previously explained that it could plausibly infer that such ignorance by someone in Hegen’s position is “clearly unreasonable.” Goodwin, 309 F. Supp. 3d at 376-77. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 46 of 62 40 verified Darbi’s reports of H.’s “fucking bitch” comment and N.’s “cunt” text, PSD employees refused to make a formal determination of responsibility, which Defendants now incorrectly argue was reasonable since H. and N. were angry at Darbi. SOUF ¶¶ 33-34, 51-54; see Roy, 2019 WL 336515, at *7; Defs.’ S.J. Mot. at 32, 42. In fact, DeBona testified that she did not consider “fucking bitch” in this incident to be a sexual slur. SOUF ¶ 54. Finally, despite admitting that C.’s “hang out” message was “threaten[ing]” and “a very deliberate act . . . to remind Darbi of a horrible day in her life,” PSD employees never even took the most basic step of obtaining the text message, wrongly assuming that they were not responsible for investigating it because it had occurred outside of school. SOUF ¶¶ 56-59. 2. PSD Failed to Implement an Adequate Safety Plan As the Supreme Court has recognized, a school is deliberately indifferent if its actions make a student more “vulnerable” to harassment or “subject” the student to further acts of harassment. Davis, 526 U.S. at 644-45. In addition, a school district is deliberately indifferent if it fails to undertake new safety measures when existing measures have failed. See Vance, 231 F.3d at 261. For example, a school district is deliberately indifferent if a student finds herself in the same study hall on the first day of school as her off-campus assailant—despite having had “multiple discussions with school officials” regarding her schedule. S. Columbia, 2013 WL 2371413, at *6. Similar, a safety plan is “feckless,” “de minimus,” and “patently unreasonable” if it consists of nothing more than warning the assailant to “stay away” and instructing a teacher to “keep an eye out.” Greater Johnstown, 586 F. Supp. 2d at 369-71. PSD employees’ so-called “safety plan” for Darbi was patently unreasonable. Like the Southern Columbia plaintiff, Darbi found herself on the first day of school in the same study hall as her off-campus assailant and other harasser as well as the same lunch as three of her harassers—despite having had “multiple discussions” with Hegen and McHale identifying all Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 47 of 62 41 four harassers by name and requesting not to share classes with them. SOUF ¶¶ 36-40, 89-90; S. Columbia, 2013 WL 2371413, at *6. Defendants alleged safety plans were (i) merely a correction of their own unreasonable scheduling; (ii) never memorialized in a single written document; and (iii) as in Greater Johnstown, nothing more than warning her harassers to “stay away from” her and asking lunch monitors to “keep an eye out”—a feckless plan given that the monitors were already tasked with overseeing more than 800 other students in the same lunch. SOUF ¶¶ 15, 39, 42, 43, 60; Defs.’ S.J. Mot. at 16, 39. Although PSD knew, like the Vance district, that H., B., N., and C. were continuing to harass Darbi, it undertook no new safety measures—such as changing their lunch, prescribing hallway routes, or banning them from visiting her study hall—because they agreed with DeBona’s determination that it was “reasonable” for Darbi to have to see them at school. SOUF ¶¶ 44, 60; Vance, 231 F.3d at 261. So de minimus was PSD’s response that C. was merely reminded again to stay away from Darbi after violating his no-contact instruction, and H. was neither told how to “stay away” nor that calling her a “fucking bitch” was a violation. SOUF ¶¶ 15, 53; SODF ¶ 363. Even after the four men graduated, PSD allowed B. to visit PHS and H. to visit Darbi’s classroom without checking whether she was in school, and arranged for B. to attend Darbi’s senior prom, much like the district in Coventry, even after being informed by her attorney that doing so would violate Title IX. SOUF ¶¶ 73-77; Coventry, 630 F. Supp. 2d at 231. Meanwhile, PSD did nothing to help Darbi remain at PHS before she withdrew in May 2015 and again in April 2016. SOUF ¶¶ 30, 69. Despite knowing she had been diagnosed with PTSD and had suffered extreme bouts of depression and suicidality, PSD never evaluated her for mental health accommodations under an individualized education program (IEP) or Section 504 plan. SOUF ¶ 30. The only arrangements that PSD offered, such as leaving class early or late and Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 48 of 62 42 walking around with an escort, were rightly rejected by Darbi, because they would have placed the burden on her to miss class every day and subjected her to invasive questions and potentially further harassment. SOUF ¶ 16; SODF ¶ 364. 3. PSD Failed to Discipline H., B., C., or N. for Sexual Harassment Failure to discipline a harasser is evidence of deliberate indifference. See, e.g., Davis, 526 U.S. at 635; Flores, 324 F.3d at 1135. A school may not condition discipline of off-campus sexual assault on the existence of criminal charges or a court order. S. Columbia, 2013 WL 2371413, at *5 (court order); Greater Johnstown, 586 F. Supp. 2d at 371-72 (criminal charges). Nor may a district use peer mediation as a substitute for discipline to address harassment. See, e.g., Vance, 231 F.3d at 256 (school district requested plaintiff, seated between two of her five harassers, to explain “what she thought they had done” but produced no evidence of disciplinary action during discovery). A disciplinary response can be clearly unreasonable if it “consist[s] entirely of ‘talking to’ [the harasser], changing his homeroom and moving his locker, even though these responses d[o] not accomplish anything.” Jones, 397 F. Supp. 2d at 645; see also Greater Johnstown, 586 F. Supp. 2d at 371 (no sanctions despite further violations). Here, like the Southern Columbia and Greater Johnstown districts, PSD refused to investigate and discipline H. for off-campus sexual assault, a Level 4 violation according to the PSD student handbook, in the absence of criminal charge or restraining order. SOUF ¶¶ 18-20; S. Columbia, 2013 WL 2371413, at *5; Greater Johnstown, 586 F. Supp. 2d at 371-72. PSD also, like the district in Vance, inappropriately facilitated a “peer mediation” between Darbi and C., explicitly stating that it was not intended to be a disciplinary response and even telling Darbi afterward that it had been a “huge waste of time.” SOUF ¶ 67; SODF ¶ 380; Vance, 231 F.3d at 256. In fact, with the exception of B.’s egregious threat to “jump” Darbi (but not for his other harassment), PSD responded to all instances of harassment by only “talking to” Darbi’s harassers Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 49 of 62 43 and changing H. and B.’s study halls, much like the district in Jones, “even though these responses did not accomplish anything,” and even though PSD knew that B. and N. were prone to “outbursts” and “blowups.” SOUF ¶¶ 15, 19, 22, 24-25, 27-28, 34-35, 43, 52, 58-59, 65; SODF ¶¶ 363, 377, 380; see Jones, 397 F. Supp. 2d at 645. 4. PSD Effectively Forced Darbi to Transfer to an Inferior Alternative School A school’s attempts to induce a harassment victim to attend an objectively inferior alternative school, such as a cyber school, is evidence of deliberate indifference in violation of Title IX. See, e.g., N. Allegheny, 168 F. Supp. 3d at 809-10 (alternative school); S. Columbia, 2013 WL 2371413, at *6 (cyber school). Here, as described above, there is ample evidence that could lead a reasonable juror to conclude that cyber school was an objectively inferior option, and that Darbi “chose” it only after PSD failed to provide her relief from the hostile environment for 16 months despite her repeated pleas for help. SOUF ¶¶ 70-71. D. Defendants Fail Even to Mention, Much Less Address, Dr. Howe’s Opinions Aside from the many fact witnesses whom Defendants fail to acknowledge, Defendants never once mention Dr. Howe, Darbi’s Title IX expert witness. Dr. Howe was a Title IX coordinator for 24 years, 17 of which were spent serving as Title IX Coordinator for the State of Connecticut. Given the abundance of factual disputes, Darbi need not rely upon Dr. Howe’s expert opinions to defeat Defendants’ summary judgment motion. But standing alone, his opinions create issues of genuine dispute. Dr. Howe concludes in his expert opinion that there were blatant deficiencies from a Title IX perspective with Defendants’ response to Darbi’s complaints. He explains that based on his experience, which includes instructing other schools on complying with Title IX, that PSD: could and should have done more to implement a proper safety plan for Ms. Goodwin in the building. PSD should have avoided scheduling Ms. Goodwin and her harassers in the same study hall and lunch in the first place. After moving the Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 50 of 62 44 harassers to a different study hall, PSD should have prohibited them from visiting Ms. Goodwin’s study hall in the cafeteria. . . . PSD should have issued a unilateral no-contact order requiring Ms. Goodwin’s harassers not to come within 36 feet of her, not to use the same hallways or staircases she used between classes, and/or to leave class a few minutes early or late to avoid contact with her—instead of placing that burden on her. PSD could also have prevented Ms. Goodwin from encountering her rapist at the “world cultures assembly” and college fair by including a note in each of their student files and alerting organizers to be aware of possible conflict. . . . PHS has 2,400 students in a large 600,000 square foot building and could have developed an effective plan to separate students in this size and/or density of a building. Howe Rep. 11-12, Ex. 82. He also opines that PSD could have evaluated Darbi for mental health accommodations, that “[c]yber school was a poor option . . . [that] limited her chances of getting into top schools with good financial support,” and that “[she] was abandoned and left to fail.” Id. at 13-14. Opinions this strong, from an expert with Dr. Howe’s extensive Title IX background, further demonstrate why summary judgment is inappropriate on Darbi’s Title IX claim. * * * * * In sum, a jury could reasonably conclude that PSD violated Title IX. As a result, this Court should deny PSD’s motion for summary judgment on Darbi’s Title IX claim. III. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON DARBI’S § 1983 FAILURE-TO-TRAIN CLAIMS Defendants contend that PSD employees received numerous trainings on “harassment, bullying, [and] cyberbullying,” and go on to list the various employee trainings before stating conclusorily that PSD staff “were properly trained regarding Title IX claims, harassment incidents and how to respond to and investigate reports of harassment and sexual harassment.” Defs.’ S.J. Mot. at 39-40. A jury could reasonably reach the opposite conclusion. Defendants do not address the substance of these trainings, which were so deficient that not only should Defendants’ motion be denied, but Darbi’s motion should also be granted, as to these claims. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 51 of 62 45 Defendants’ evidence on their employee trainings is confusing, duplicative, and often irrelevant. It can be divided into three categories: (1) repeated references to the deficient PowerPoint and online Global Compliance Network (“GCN”) trainings discussed in Darbi’s motion for summary judgment, (2) irrelevant trainings and policies, and (3) alleged informal trainings for which Defendants produced no contemporaneous evidence. The only written training materials that Defendants produced in discovery were their past PowerPoint trainings and their current online GCN trainings, both of which are deficient, as explained in Darbi’s motion for summary judgment. Pl.’s S.J. Mot. at 15-17.9 Defendants rely heavily on these deficient trainings and the PSD employees who attended them. Defs.’ S.J. Mot. at 43-45 (citing Defs.’ SOUF ¶¶ 245-251, 253-255, 260, 268, 271, 276, 280-281, 284-285, 287, 291-293, 301, 303-304, 312, 316, 319, 327, 347)). But establishing that PSD had deficient trainings and that PSD employees attended these deficient trainings does nothing to support Defendants’ motion for summary judgment; those “facts” support Darbi’s motion instead. Nearly all the remaining “undisputed” facts on which Defendants rely are irrelevant:  A number of paragraphs discuss meetings and trainings that touch on issues other than sexual harassment; for example, the Peace Center Training discussed bullying, peer conflict, and harassment trends and was offered more than nine months after Darbi left PHS for the second time. Defendants also cite to various 9 The undisputed facts show that the trainings PSD employees attended had identified deficiencies, including the lack of information regarding: (i) the identity of PSD’s Title IX coordinator; (ii) employees’ duty under both Title IX and PSD’s board policies to notify the Title IX coordinator of all student-on-student sex-based harassment; (iii) employees’ duty under both Title IX and PSD’s board policies to investigate all reports of harassment, including those that occur outside of a school activity and regardless of police activity; (iv) how to conduct adequate investigations; (v) how to provide effective safety plans; or (vi) employees’ authority under PSD’s board policies to discipline students for harassment, including that which occurs outside of a school activity or in the absence of a criminal charge. Pl.’s S.J. Mot. at 16. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 52 of 62 46 meetings where school policies were discussed or reviewed, without representing that sexual harassment was actually discussed at those meetings.10  A number of paragraphs generally represent that PSD employees were aware of the existence of certain PSD policies, which is a far cry from establishing that the employees were trained on them or actually understood them11; and  A number of paragraphs relate to wholly irrelevant trainings that either occurred (1) when an employee was not employed by PSD or (2) after Darbi left PSD.12 The remaining paragraphs relate to informal trainings for which they have produced no materials, presentations, notes, or takeaways. Defs.’ SOUF ¶¶ 245, 264, 270, 285, 302-03, 307, 315. While there are serious credibility and weight questions about supposed informal trainings for which no contemporaneous documentation exist, Defendants wrongly suggest those credibility and weight questions should be resolved in their favor at summary judgment. Even if the Court assumes for purposes of summary judgment that sexual harassment had been discussed at these informal trainings, however, no reasonable juror could conclude that Defendants cured the blatant deficiencies in their formal training presentations through a handful of informal trainings—especially where no written training materials were distributed to attendees and not even one attendee took a single note of what they learned. Accordingly, those informal trainings do not establish that Defendants are entitled to summary judgment, and in fact, do not even create an issue of material fact establishing that Darbi’s motion should be denied. Darbi has documented the evidence a reasonable juror could use to conclude that Defendants’ failure to train amounted to deliberate indifference to the rights of PSD students, 10 Defs.’ SOUF ¶¶ 248, 252-54, 256, 258, 267, 275, 279, 282, 286, 304-05, 313-14, 321. Defendants’ Statement of Undisputed Facts establishes that the Peace Center program was focused on bullying and not sexual harassment specifically, Defs.’ SOUF ¶¶ 253-54, but they inaccurately suggest the program concerned sexual harassment. Defs.’ SOUF ¶ 313. 11 Defs.’ SOUF ¶¶ 265-66, 271, 277-78, 294, 306, 310, 317, 323, 325, 332. 12 Defs.’ SOUF ¶¶ 255, 259, 288, 293, 318, 330-31. As an example, Defendants discuss a NOVA seminar held at PSD in 2018, after Darbi graduated. Defs.’ SOUF ¶ 229. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 53 of 62 47 and that contrary to Defendants’ arguments: (i) all Defendants were aware from March 2015 through June 2017 of the constitutionally violative conduct she suffered, Defs.’ S.J. Mot. at 40; see, supra, Section II.B.1; and (ii) the single-incident theory is available here. Defs.’ S.J. Mot. at 41; Pl.’s S.J. Mot. at 17-21. Darbi has also shown that the failure to train was closely related to the violation of her constitutional rights. Pl.’s S.J. Mot. at 21-25. Accordingly, it is Darbi, not Defendants, who is entitled to summary judgment on the failure-to-train claim. IV. DEBONA AND RATTIGAN ARE NOT ENTITLED TO SUMMARY JUDGMENT ON DARBI’S § 1983 SUPERVISORY LIABILITY CLAIMS Defendants argue that Rattigan and DeBona “fail[ed] to act” yet “played no affirmative part in depriving [Darbi] of [her] constitutional rights,” and should therefore escape supervisory liability. Defs.’ S.J. Mot. at 50. But Darbi does not seek to hold Rattigan and DeBona liable for mere passivity in the face of “generalized knowledge” of their subordinates’ misconduct. Id. Rather, Defendants are liable for their own actions under both theories of supervisory liability acknowledged in Defendants’ brief: (1) establishing and maintaining policies and/or customs that directly caused the constitutional harm; and (2) directly participating in violating Darbi’s rights.13 See Defs.’ S.J. Mot. at 46 (quoting A.M. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)); see also Pl.’s S.J. Mot. at 33. Under the first theory, as final policymakers, Rattigan and DeBona actively established municipal policies and/or actively acquiesced to municipal customs among PSD employees of: (i) failing to notify the Title IX coordinator of all harassment complaints; (ii) failing to 13 Defendants also attempt to insert a requirement of substantial control into the elements of Section 1983 failure-to-train claim, which does not impose such a requirement. Defs.’ S.J. Mot. at 42, 46-47 (citing Williams v. Pennridge, 2018 WL 6413314, at *20-21). Substantial control is Title IX–specific requirement. In any event, Darbi has shown that Defendants did exercise substantial control over all four of her harassers and the context of each incident of harassment she suffered. See, supra, Section II.B.2. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 54 of 62 48 investigate and discipline students for harassment that occurs outside of a school activity; (iii) failing to investigate or discipline students for sexual assault independent of police activity; and (iv) failing to create and submit written reports of harassment investigations to the Title IX coordinator. Pl.’s S.J. Mot. at 26-30. While the policies and customs followed by PSD employees involved “failure[s] to act,” Rattigan and DeBona acted affirmatively in approving of, or acquiescing to, said policies and customs. Id. Nothing about Defendants’ actions was passive. DeBona is also liable under the second theory of supervisory liability because she had “personal involvement” when she “participated in violating [Darbi’s] rights.” See Defs.’ S.J. Mot. at 46 (quoting Luzerne Cty., 372 F.3d at 586). As a PSD principal, she was required under PSD’s written policies to write and submit reports of harassment investigations to McHale, the compliance officer and Title IX coordinator. Pl.’s S.J. Mot. at 26-28. However, she did not submit a single report to McHale between Darbi’s first report of harassment in March 2015 and her graduation in June 2017. Id. at 30. DeBona cannot escape liability for her own personal involvement in Doe’s constitutional injuries. Defendants also attempt to avoid supervisory liability by citing a 2010 Third Circuit case that suggested Ashcroft v. Iqbal, 556 U.S. 662 (2009), had created “uncertainty” as to whether individual defendants can be held liable for approving policies and customs. Defs.’ S.J. Mot. at 50 (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 n.8 (3d Cir. 2010)). But neither the Third Circuit nor the Supreme Court has rejected supervisory liability in the decade since Iqbal was decided. In fact, Defendants neglect to mention that the Third Circuit has repeatedly recognized this very theory of supervisory liability in subsequent § 1983 cases. See, e.g., Wharton v. Danberg, 854 F.3d 234, 243 (3d Cir. 2017); Chavarriaga v. N.J. Dept. of Corr., 806 F.3d 210, 223 (3d Cir. 2015); Barkes v. First Correctional Medical, 766 F.3d 307, 320 (3d Cir. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 55 of 62 49 2014), rev’d on other grounds, 135 S. Ct. 2042 (2015). Accordingly, Darbi is not restricted from pursuing her supervisory liability claims against Rattigan and DeBona for violating her equal protection rights through their policies and customs. For all of the reasons articulated in Darbi’s summary judgment motion, the court should not only deny Defendant’s motion for summary judgment but also grant Darbi’s summary judgment motion on her supervisory liability claims. V. DEFENDANTS ARE NOT ENTITLED TO SUMMARY JUDGMENT ON DARBI’S § 1983 HOSTILE ENVIRONMENT CLAIMS A defendant is liable for a hostile educational environment in violation of the Equal Protection Clause if the defendant meets the same elements required for Title IX liability, and the harassment was the result of municipal custom, policy, or practice. Goodwin, 309 F. Supp. 3d at 378 (citing Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009)). For the purposes of an equal protection claim, a defendant’s deliberate indifference to harassment by “any third party under its control” is sufficient to demonstrate intentional discrimination. Id. at 378 (citing Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 294 (3d Cir. 2014)). Darbi has already established that a reasonable jury could conclude that: (1) she suffered sexual harassment so severe, pervasive, and objectively offensive that she was effectively denied equal access to PSD’s resources and opportunities, see, supra, Section II.A; (2) each Defendant had actual knowledge of the harassment she reported, and PSD had substantial control over H., B., C., and N., and the context in which their harassment of her occurred, see, supra, Section II.B.; and (3) Defendants were deliberately indifferent to the harassment by H., B., C., and N., who were under Defendants’ control, see, supra, Section II.C. In addition, Darbi has already shown that a reasonable jury could conclude that Defendants established and/or acquiesced to the following District-wide policies and customs that resulted in the harassment and hostile Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 56 of 62 50 environment that Darbi faced: (i) failing to notify the Title IX coordinator of all harassment complaints; (ii) failing to investigate and discipline students for harassment that occurs outside of a school activity; (iii) failing to investigate or discipline students for sexual assault independently of the police; and (iv) failing to create and submit written reports of harassment investigations to the Title IX coordinator. See Pl.’s S.J. Mot. at 26-30. Moreover, contrary to what Defendants maintain, the harassment Darbi suffered was undeniably sexual in nature. See, supra, Sections I.A & II.A; see also Defs.’ S.J. Mot. at 37-38. A reasonable jury could readily conclude that Defendants violated Darbi’s equal protection rights by failing to address the hostile environment she faced. VI. THIS COURT SHOULD NOT DISMISS DARBI’S OFFICIAL-CAPACITY CLAIMS AGAINST DEBONA AND RATTIGAN Defendants argue that the official capacity claims against Rattigan and DeBona should be dismissed. Defs.’ S.J. Mot. at p. 51 (citing Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988)). Yet Defendants’ reliance on Gregory is misplaced, as the case deals exclusively with issue and claim preclusion. In Gregory the plaintiff attempted to bring a § 1983 claim in federal court against township officials. The court dismissed these claims on the basis of claim preclusion, reasoning that because the plaintiff had named the township as a defendant in a prior adjudicated state action, the township officials named in their official capacity in the federal suit met the “identity of parties” standard of claim preclusion. Gregory, 843 F.2d at 119-120.14 Here, Darbi is not bringing a successive claim, and therefore her claim need not be barred. 14 Gregory cites Kentucky v. Graham, 473 U.S 159, 167 n.14 (1985), for the proposition that the township officials have the same identity as the township for claim preclusion purposes. But Graham did not mandate dismissal of an official-capacity claim merely because it is also asserted claims against the official’s government entity. Rather, the Supreme Court simply observed that there was “no longer a need to bring official-capacity actions against local government officials” if the plaintiff has already sued the local government unit directly. Graham, 473 U.S at 167 n.14 (emphasis added). Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 57 of 62 51 VII. DEBONA AND RATTIGAN ARE NOT ENTITLED TO QUALIFIED IMMUNITY Genuine disputes of material fact preclude this Court from concluding that DeBona and Rattigan are entitled to qualified immunity as a matter of law. There are two prongs of the qualified immunity analysis: (i) whether the defendant’s conduct violated a statutory or constitutional right, and (ii) whether that right was clearly established as a matter of law when the underlying conduct occurred. See, e.g., Sauers v. Borough of Nesquehoning, 905 F.3d 711, 716 (3d Cir. 2018) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The first prong, which Defendants do not address, cannot be resolved at the summary judgment stage given the numerous facts in dispute. See Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006). Summary judgment is not proper where factual disputes create genuine issue of material fact for trial on both those issues and on the question of qualified immunity. Karchnak v. Swatara Twp., No. 07-CV-1405, 2009 WL 2139280, at *22 (M.D. Pa. July 10, 2009); see also Hill v. Cundiff, 797 F.3d 948, 978 (11th Cir. 2015) (finding genuine dispute of material fact as to first prong of qualified immunity analysis). For that reason, Defendants address only the second prong, but in the process reveal that they do not understand Darbi’s constitutional rights, their constitutional obligations, or the doctrine of qualified immunity. They argue only that “no statute or case law” imposes liability (i) where state actors fail to investigate an “alleged rape (that did not occur) that took place during Christmas break inside a privately owned motor vehicle that was located in a restaurant off-campus and was never reported to the school until three months later”; (ii) where the harassment “occurred in response to . . . reporting male students to the police, not in response to reporting that H. raped her; or (iii) where the harassment “constituted either garden variety bullying or ordinary peer conflict.” Defs.’ S.J. Mot. 52. This argument fails for numerous reasons. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 58 of 62 52 First, contrary to Defendants’ argument, there is a statute (and case law interpreting that statute) that imposes liability in these circumstances: Title IX. Second, Defendants’ entire qualified immunity argument rests on their fact-bound and heavily disputed view of what happened to Darbi. Indeed, to accept Defendants’ argument and grant qualified immunity, this Court would have to find that Darbi was not raped, that the harassment she subsequently endured was unrelated to her reports of rape, and that she was not once subjected to harassment (only mere peer conflict and garden variety bullying). But there are material disputes of fact on each of these issues. This Court therefore cannot not conclude, absent a jury trial, that Defendants are entitled to qualified immunity—even if it were to accept Defendants’ dubious, overly restrictive view of Darbi’s constitutional rights. Third, Defendants’ argument focuses only on Defendants DeBona and Rattigan’s duty to investigate the underlying harassment, but ignores entirely the duty to train PSD staff on student-on-student sex-based harassment. Thus, Defendants have neither shown nor even argued that they are entitled to qualified immunity on Darbi’s failure-to- train claims. Fourth, Defendants do not meaningfully grapple with the scope of Daribi’s constitutional rights or attempt to show, as they must, that Darbi lacked clearly established rights. Instead, their ostensible entitlement to qualified immunity rests entirely on two undeveloped sentences, without legal citations or discussion, saying simply that they are entitled to qualified immunity because they have not found law supporting Darbi’s claims. Defendants’ argument is so cursory and undeveloped that it constitutes a waiver and forfeiture of the right to invoke qualified immunity under the second prong. See, e.g., Laborers’ Int'l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994); In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (“[B]ecause they fail to develop either argument in their opening brief, the Court holds that the Wettachs have forfeited these claims.”); Karchnak v. Swatara Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 59 of 62 53 Twp., No. 07-CV-1405, 2009 WL 2139280, at *21 (M.D. Pa. July 10, 2009) (“A party waives an issue if it fails to brief it in its opening brief; the same is true for a party who merely makes a passing reference to an issue without elaboration.”); see also Rodriguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011). In any event, Defendants take an overly myopic view of qualified immunity, suggesting that every single fact in a case—regardless of materiality or significance—must be considered for purposes of determining whether a right is clearly established. But that is not the law, and Defendants cite no law supporting such a restrictive understanding of the circumstances in which a right is clearly established. The Supreme Court has held that a constitutional right is “clearly established” if its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). The Court continued, “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” Id. In fact, a right can be clearly established even if there are “notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” Id. at 740. As Darbi established in her motion for summary judgment, it was clearly established as a matter of law during the relevant time period of this case that a public school’s failure to address sex-based student-on-student harassment, including that which occurs outside of school, constitutes discrimination that violates the Equal Protection Clause of the Fourteenth Amendment. Pl.’s S.J. Mot. at 14 (citing Hill, 797 F.3d at 978-79 (peer sexual harassment); Shively v. Green Local Sch. Dist. Bd. of Educ., 579 F. App’x 348, 350-51, 358 (6th Cir. 2014) (peer religious and sex-based harassment, including online harassment); DiStiso v. Cook, 691 Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 60 of 62 54 F.3d 226, 232, 240-41 (2d Cir. 2012) (peer racial harassment occurring in school and off school grounds); Flores, 324 F.3d at 1132 (peer sexual orientation harassment); Murrell, 186 F.3d at 1243, 1250-51 (peer sexual harassment, including phone calls to plaintiff’s home); see also Nabozny v. Podlesny, 92 F.3d 446, 455-56 (7th Cir. 1996) (peer sexual orientation harassment)); cf. L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 250 (3d Cir. 2016) (holding that there is a clearly established due process right for students to be protected from off-campus sexual assault after being removed from school grounds by a third party). In sum, Defendants DeBona and Rattigan have not met their burden of showing that they are entitled to qualified immunity under either prong of the standard. Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 61 of 62 55 CONCLUSION For these reasons, Plaintiff DarbiAnne Goodwin respectfully submits that Defendants’ motion for summary judgment should be denied. Respectfully submitted, Dated: February 13, 2019 BY: /s/ Courtney G. Saleski Courtney G. Saleski (Bar No. 90207) Ben C. Fabens-Lassen DLA PIPER LLP (US) One Liberty Place 1650 Mark Street, Suite 4900 Philadelphia, PA 19103-7300 Telephone: 215.656.2431 E-mail: Courtney.Saleski@dlapiper.com Ben.Fabens-Lassen@dlapiper.com Matt Graves Aurelie Ercoli DLA PIPER LLP (US) 500 Eighth Street, NW Washington, D.C. 20004 Telephone: 202-799-4469 E-mail: Matthew.Graves@dlapiper.com Shiwali Patel Neena Chaudhry Elizabeth Tang NATIONAL WOMEN’S LAW CENTER 11 Dupont Circle, Suite 800 Washington, D.C. 20036 Telephone: 202-588-5180 Email: nchaudhry@nwlc.org spatel@nwlc.org etang@nwlc.org Case 2:17-cv-02431-TR Document 112 Filed 02/13/19 Page 62 of 62