UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
M.L., a minor, by and through her father and next friend, D.L.
v. Case No. 18-cv-327-PB Opinion No. 2022 DNH 122 Concord School District et al.
MEMORANDUM AND ORDER
Plaintiff M.L., a former student at Concord High School, has sued the
Concord School District and School Administrative Unit 8 under Title IX of
the Education Amendments of 1972, 20 U.S.C. § 1681(a). M.L. alleges that
defendants failed to timely and adequately respond when she reported an
incident of peer-on-peer sexual assault and later complained about the
alleged perpetrator’s retaliatory behavior. Defendants have moved for
summary judgment. Because M.L. cannot show that defendants were
deliberately indifferent in their handling of her complaints, I grant the School
District’s motion.
I. BACKGROUND
M.L. was a resident of Deerfield, New Hampshire, a town some twenty
miles east of Concord. Like many other Deerfield students, M.L. attended
Concord High School (CHS) pursuant to a tuition agreement between the two towns. The event that gave rise to this case occurred during an hour-long bus
ride from CHS to Deerfield on November 29, 2017.
A. Initial Report of Sexual Misconduct
On the evening of November 29, Marie Bolster, a school bus driver,
notified M.L.’s father that she had observed an incident involving M.L. and
another student, L.M., on the bus that afternoon. Although Bolster did not
elaborate, she told M.L.’s father that M.L. did not appear to be her normal
self when she got off the bus. When her father asked M.L. if something had
happened on the bus, she burst into tears. She later told him that L.M. had
acted inappropriately toward her.
The next day, M.L.’s father called James Corkum, M.L.’s Assistant
Principal (AP) 1, to report that something had occurred between M.L. and
L.M. on the bus the day before. Corkum responded that he would
immediately discuss the incident with M.L. and involve the School Resource
Officer (SRO), Mark Hassapes. After the call, Corkum and Hassapes spoke
with M.L. In a written statement, M.L. stated that L.M. had kissed and
touched her without her consent. She reported that L.M. had sat with her
near the back of the bus and kept his hand on her leg and thigh during most
1 At the time, CHS students were separated into groups referred to as “Commons.” Each Commons was assigned an assistant principal, an administrative assistant, two school counselors, and a program assistant. M.L. was in Commons B, and L.M. in Commons A. 2 of the ride. M.L. stated that she moved up a seat after some other students
exited the bus, but L.M. again joined her. According to M.L., toward the end
of the ride, L.M. started kissing her, moved his hand up her thigh to the belt
of her jeans, and repeatedly touched her chest over her clothes for a few
minutes, until the bus driver noticed that something was going on and called
for L.M. to find another seat. Doc. No. 37-9 at 2.
After hearing M.L.’s account of the incident, Corkum, Hassapes, and
Thomas Crumrine, L.M.’s AP, spoke with L.M. L.M. told them that M.L. was
his best friend, that she kissed him on the cheek on the bus, which led him to
believe they were attracted to one another, and that they held hands for the
remainder of the ride. In his written statement, however, L.M. stated that
they kissed on the bus, during which his hands were likely on her hand or
waist. According to L.M., the bus driver then yelled at him, which prompted
him to tell the driver as he was exiting the bus that she should not accuse
him of something without knowing all the facts. Doc. No. 37-8 at 10.
Later that day, L.M. approached SRO Hassapes and asked if they could
speak “man to man.” Doc. No. 37-8 at 11. L.M. then said that more had
happened than just a kiss, that he knew what he had done was wrong, and
that he had apologized to M.L. In response, AP Crumrine met with L.M. and
asked him to explain his comment to Hassapes about being in the wrong.
L.M. responded that he meant that both he and M.L. had realized that the
3 kiss was not something they wanted. Doc. No. 37-8 at 13. Crumrine, however,
did not specifically ask L.M. to explain what he meant when he said that
more had happened than just a kiss.
Meanwhile, that same day, AP Corkum spoke with several other
students who were on the same bus, all of whom denied seeing anything
occur between M.L. and L.M. AP Crumrine also informed L.M.’s father of the
allegations. His father noted that the bus driver was a neighbor with whom
he had a feud.
At the end of the day, Corkum, Crumrine, and Hassapes met with
Principal Thomas Sica to advise him of the incident. They decided not to open
a formal sexual harassment investigation at that point given the lack of
evidence to corroborate M.L.’s story and L.M.’s clean disciplinary record.
They also believed that M.L.’s father did not want a formal investigation,
although M.L.’s father denies communicating as much to any school official.
A few days later, Principal Sica received a written statement
concerning the incident from Bolster, the bus driver. Bolster wrote that she
saw in the rearview mirror what appeared to be L.M.’s head above M.L.’s
head moving in a motion that resembled “making out.” Doc. No. 37-7 at 2.
According to the statement, Bolster then saw L.M.’s rear end sticking out into
the aisle, as if he were in a crawling position on the seat, before “the making
out moves” resumed. Doc. No. 37-7 at 2. Bolster stated that she had
4 instructed L.M. to move to another seat twice, but he ignored her
instructions. Shortly thereafter, as M.L. was getting off the bus, Bolster noted
that M.L. appeared rigid, unlike her typical, more relaxed demeanor. Later,
when it was L.M.’s turn to get off the bus, Bolster wrote that he had tried to
intimidate her, telling her that she needed to get her facts straight and that
he planned to keep sitting with M.L. He then threatened to report to the bus
company that the length of his ride was over the legal limit if Bolster said
anything.
Bolster’s written statement did not change the school officials’ decision
not to proceed with a formal sexual harassment investigation at that time.
B. First Sexual Misconduct Investigation
On December 5, M.L. submitted a second written statement alleging
that L.M. had attempted to contact her father following the bus incident. She
added that she believed L.M. was following her at school because she was
seeing him in unusual places. She also complained that, earlier that day,
L.M. had moved his seat on the bus to be closer to where she was sitting,
despite the bus driver’s prior instruction that he should sit in the back.
That same day, the school launched a formal sexual harassment
investigation of the bus incident and L.M.’s subsequent conduct. AP
Crumrine was put in charge of the investigation. He immediately told L.M.
that he was not to have any contact with M.L., including on the bus, in
5 person, or over social media. See Doc. No. 37-8 at 15. Crumrine also
scheduled a meeting with L.M. and his father for the next day.
The next morning, M.L. and her mother came to school and asked to
speak with a female administrator because M.L. found it difficult to discuss
the bus incident with men. When AP Chali Davis met with them, M.L.
revealed for the first time that L.M. had digitally penetrated her and touched
his genitals during the bus ride. She explained that she froze during the
assault but texted L.M. the following day to tell him that she was not
comfortable with what had happened and no longer wished to be friends.
According to M.L., L.M. responded to her text by saying that he knew he had
gone too far. Lastly, M.L. reiterated that L.M. had tried to get close to her on
the bus the day before.
M.L. told Davis that she did not want to be on the same bus as L.M. or
to see him at school, and that she wanted to stay in places on the school
grounds where she felt comfortable. M.L. added that she had been going to
the library to avoid seeing L.M. during lunch but would prefer to be in the
cafeteria. Davis thought that M.L. was truthful in her account of the incident.
After the meeting, Davis introduced M.L. and her mother to a student
assistance counselor, who offered counseling services to M.L.
After AP Davis shared M.L.’s new allegations with her colleagues, AP
Crumrine and Principal Sica interviewed L.M. in his father’s presence. L.M.
6 was adamant that nothing resembling M.L.’s story had occurred. Meanwhile,
AP Corkum met with four students who were on the same bus and obtained
written statements from two of them. Although none of the students
witnessed the incident, one of them, J.O., stated that L.M. and M.L. were
often flirtatious and physical on the bus and had kissed on a few occasions.
See Doc. No. 37-8 at 17.
That same day, school officials referred M.L.’s sexual assault allegation
to the Deerfield Police Department. They also obtained partial footage of the
day of the incident from the bus’s video monitoring system. The video was low
quality. One segment showed M.L. and L.M. sitting together right before the
alleged assault, but it did not enable the investigators to determine whether
there had been any physical contact between them. The footage confirmed,
however, that Bolster, the bus driver, had twice asked L.M. to find a different
seat, to no avail. Another video segment showed L.M. as he exited the bus
and captured his dialogue with Bolster. It confirmed Bolster’s account that
L.M. was being confrontational and threatened to report her to the bus
company over the length of his ride.
A few days later, on December 11, the school obtained the full video of
the bus ride, which again was low quality. AP Corkum watched the full video
and summarized its contents. According to his summary, the video showed
that M.L. and L.M. were sitting in the same seat for most of the ride. About
7 five minutes before M.L.’s bus stop, L.M. moved up one seat, and M.L.
followed to the seat across the aisle from his. He then joined her in that seat
and appeared to lean in toward her. Next it appeared that she was leaning
toward him and then again that he was leaning toward her, until the bus
driver addressed him. In his deposition, Corkum described the video as
inconclusive and noted that the height of the bus seats made it difficult to
discern what was occurring.
Later that day, AP Crumrine finalized his report of the first sexual
harassment investigation. The December 11 report concluded that L.M.
(1) had violated the school’s sexual harassment policy by initiating
“unwanted physical contact’’ when he kissed M.L. and put his hand on her
thigh or waist, and (2) had been insubordinate to the bus driver. Doc. No. 37-
17. As a result, L.M. was suspended from the bus for ten days, assigned a
seat at the front of the bus going forward, and given a written order directing
him not to contact M.L. in any manner. The no-contact order prohibited both
direct and indirect contact, defined broadly to include gestures, texting,
calling, Facebook, Twitter, Instagram, and communications via a proxy. Doc.
No. 37-18. If the two ended up in the same physical space, the order
instructed L.M. to stay at least ten feet away from M.L. and avoid any
contact, or else remove himself from the situation. The order warned L.M.
that failure to comply could result in suspension or other penalties.
8 In early January 2018, M.L. informed AP Corkum that she had seen
L.M. in the elevator hallway where she was hanging out in the mornings. In
response, AP Crumrine spoke with L.M., determined that he was in the area
for legitimate reasons, and told him to avoid that location in the future.
C. Second Sexual Misconduct Investigation
On January 19, the Deerfield Police Department informed M.L.’s
parents that they were not going to bring charges against L.M. stemming
from the bus incident. Three days later, her parents sent a letter to the
Concord School District Superintendent Terri Forsten, setting forth their
version of what they believed happened on the bus and requesting a meeting.
Forsten met with M.L.’s parents the following week. They made her
aware of a text exchange that took place in December between L.M. and A.C.,
a friend of M.L.’s, where L.M. seemed to threaten M.L. by proxy. In the text
messages, L.M. suggested that M.L.’s allegations against him were lies, that
M.L. would learn what it was like to have someone ruin her life, and that it
was “burying time.” Doc. No. 41-21. This was the first time a school official
had been told about these texts. M.L.’s parents also informed Forsten that
L.M.’s girlfriend was telling other students that L.M. had gone too far on the
bus and that M.L. was suing him for rape. Lastly, M.L.’s parents informed
Forsten that M.L. would pass L.M. in the hallways before math class on
Mondays, that she had not ridden the bus since his bus suspension had
9 ended, and that she wanted alternative transportation. Forsten told M.L.’s
parents that the school would re-open its investigation into the bus incident
and L.M.’s subsequent behavior. She assigned AP Davis to lead the second
investigation.
The next day, M.L. was reassigned to Commons D, which had all
female administrators, so that she could feel more comfortable and
supported. Davis, M.L.’s new AP, introduced M.L. to a new school counselor
and asked her teachers to give her extra time to finish her coursework.
The following week, M.L. and her mother complained to the school that
M.L. was still seeing L.M. on Mondays before math class because L.M. had
the same math teacher and his class was right before hers. Davis met with
M.L. a few days later and provided her with options on how to avoid seeing
L.M. before math class. M.L. elected one route to travel to class, and L.M.
was told to use an alternate route. The math teacher, however, was not told
about the no-contact order.
The next day, M.L. reported to Davis that L.M. had passed by the
elevator hallway where she was sitting in the morning. AP Crumrine met
with L.M. that same day, told him to avoid the elevator hallway, reminded
him that the no-contact order remained in effect, and explained the order to
him.
10 Later that day, Principal Sica wrote a letter to M.L.’s parents to
formally notify them that the bus incident investigation had been re-opened.
The letter also informed them that the school would investigate allegations
that L.M. may have violated the no-contact order or otherwise retaliated
against M.L. Lastly, the letter noted that L.M. had been told both to have no
contact with M.L. and “that retaliation against anyone who raises a concern
or participates in an investigation is strictly prohibited.” Doc. No. 37-20.
Shortly after, M.L.’s mother reported that L.M.’s father had “stared
down” M.L. when he ran into her on the school grounds. AP Davis met with
M.L. later that day to discuss the incident.
Davis conducted her investigation over the next few weeks. She
interviewed numerous students, including M.L., L.M., S.D. (L.M.’s girlfriend),
A.C. (M.L.’s friend who had received L.M.’s “burying time” texts), and J.O.
(the student who had described M.L. and L.M. as flirtatious and physical on
the bus). At that time, S.D. shared with Davis text messages that L.M. had
sent her right after the bus incident, where he stated that he felt “sick to [his]
stomach” as if he had done “something horrible,” that he was afraid of losing
her, and that he was often losing those he cared about because he would do
“something wrong to them.” Doc. No. 37-22 at 9-11. Davis later re-
interviewed L.M. and asked him about those texts. He explained that he was
11 highly upset at the time because of multiple challenging issues in his life,
including his grandmother’s car accident and a friend’s betrayal.
As part of her investigation, AP Davis viewed the bus video footage
numerous times and created a chart comparing the footage and M.L.’s
allegations. On one occasion, she viewed the footage on a bus company laptop,
which had slightly better quality than the version the school had received. In
reviewing that video, Davis noticed that, when the alleged assault occurred,
M.L.’s hands appeared “to be reaching out to [L.M.’s] head – not to push
away, but to pull [him] toward her.” Doc. No. 37-21 at 2. The clearer image
also showed M.L. leaning toward L.M. during the physical interaction. Davis
shared her observations with SRO Hassapes and AP Crumrine, who also
viewed the better version of the bus video and agreed with her observations.
See Doc. No. 37-21 at 7; Doc. No. 47 at 80-81.
AP Davis submitted a report of her investigation to Superintendent
Forsten on February 22. Davis concluded that the first investigation’s finding
that L.M. had made unwanted physical contact with M.L. on the bus was
unsubstantiated. Instead, Davis found it “impossible to conclude” that the
physical interaction was “non-consensual.” Doc. No. 37-21 at 3. According to
Davis, the bus video pointed to M.L.’s willing participation in an “intense
physical interaction.” Doc. No. 37-21 at 3. Davis cited M.L.’s reaching
maneuver pulling L.M. toward her and her leaning toward L.M. during the
12 alleged assault, as well as the fact that M.L. had switched seats to be closer
to L.M. after he had moved away from their first shared seat. Davis found the
seat switching to contradict M.L.’s statement that she was uncomfortable in
the first shared seat because L.M. had kept his hand on her leg and thigh. In
Davis’s view, M.L.’s credibility was further undermined because she was not
forthright about either the seat switching or the nature of her friendship with
L.M., including their prior consensual kissing on the bus. Davis likewise did
not find L.M. credible because the video contradicted his claim that M.L. had
initiated the kissing.
Davis elected not to interview the bus driver and she did not credit her
written statement describing the incident, principally because it did not
match the video footage. Contrary to the bus driver’s account, Davis did not
see L.M.’s body extending out into the aisle in a crawling position and, to
Davis, M.L.’s movements on the bus appeared relaxed, not rigid. Further,
Davis noted that the bus driver had not disclosed the fact that she had
admonished M.L. as she exited the bus by stating, “Different seats next
time.” Doc. No. 37-21 at 3. Lastly, Davis noted that the bus driver appeared
to be vindictive toward L.M. because he had threatened her at the end of the
ride.
A few weeks later, Superintendent Forsten wrote to M.L.’s parents with
a summary of the findings of the second investigation. According to the letter,
13 the investigation found that L.M. had initiated sexual behavior on the bus
ride, including kissing, touching M.L. over and under her clothing, and
touching himself. The investigation found, however, that it was more
probable than not that M.L. “did not indicate that this conduct was
unwelcome at the time of the event,” and that, therefore, L.M. did not violate
the school’s sexual harassment policy. Doc. No. 37-24 at 3-4. But the letter
noted that L.M. had violated the no-contact order, the school’s bullying policy,
and the prohibition against retaliation in the school’s sexual harassment
policy when he texted M.L.’s friend A.C. in an attempt to use her as his proxy
to contact and intimidate M.L. As a result of those violations, L.M. was given
a four-day suspension and required to engage in four meetings with his
school counselor. M.L. transferred to another school shortly thereafter.
A few months later, M.L.’s father filed this lawsuit on M.L.’s behalf to
recover damages for injuries she suffered because of defendants’ alleged
failure to properly investigate M.L.’s reports. Although the complaint initially
asserted four counts and named various school officials as defendants,
plaintiff later voluntarily dismissed three of those counts. The only remaining
claim is asserted under Title IX of the Education Amendments of 1972, 20
U.S.C. § 1681(a), against the two institutional defendants. Those defendants
have moved for summary judgment on the Title IX claim, and plaintiff has
objected.
14 II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals “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). In this context, a “material fact” is one
that has the “potential to affect the outcome of the suit.” Cherkaoui v. City of
Quincy, 877 F.3d 14, 23 (1st Cir. 2017) (cleaned up). A “genuine dispute”
exists if a jury could resolve the disputed fact in the nonmovant’s favor. Ellis
v. Fidelity Mgmt. Tr. Co., 883 F.3d 1, 7 (1st Cir. 2018).
The movant bears the initial burden of presenting evidence that “it
believes demonstrates the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); accord Flovac, Inc. v.
Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016). Once the movant has properly
presented such evidence, the burden shifts to the nonmoving party to
designate “specific facts showing that there is a genuine issue for trial,”
Celotex, 477 U.S. at 324, and to “demonstrate that a trier of fact could
reasonably resolve that issue in its favor.” Flovac, 817 F.3d at 853 (cleaned
up). If the nonmovant fails to adduce such evidence on which a reasonable
factfinder could base a favorable verdict, the motion must be granted. See id.
In considering the evidence presented by either party, all reasonable
inferences are to be drawn in the nonmoving party’s favor. See Theriault v.
Genesis HealthCare LLC, 890 F.3d 342, 348 (1st Cir. 2018).
15 III. ANALYSIS
M.L. claims that defendants are liable for damages under Title IX
because their inadequate response to her reports of peer-on-peer sexual
assault, harassment, and retaliation caused her significant emotional harm.
Defendants argue that they are entitled to summary judgment because they
promptly, fully, and fairly investigated plaintiff’s reports and implemented
adequate protective measures in the interim, leaving a reasonable jury with
no evidence to find them liable under Title IX. Plaintiff objects to summary
judgment on the grounds that defendants’ investigation was fatally flawed
and that they failed to adequately protect her from her harasser. There is no
disagreement, however, on the applicable law.
Under Title IX, a school that receives federal educational funding is
liable for damages when it is “deliberately indifferent to known acts of
harassment in its programs or activities, including severe and pervasive acts
of harassment perpetrated by fellow students in circumstances under the
recipient’s substantial control.” Doe v. Pawtucket Sch. Dep’t, 969 F.3d 1, 7
(1st Cir. 2020) (citing Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 644-
46 (1999)). Deliberate indifference in this context requires a showing that the
school’s “response to the harassment or lack thereof is clearly unreasonable
in light of the known circumstances.” Porto v. Town of Tewksbury, 488 F.3d
67, 72 (1st Cir. 2007) (quoting Davis, 526 U.S. at 648). This is “a stringent
16 standard of fault,” which requires proof that the school “disregarded a known
or obvious consequence of [its] action or inaction.” Id. at 73 (cleaned up). A
single incident of pre-notice, peer-on-peer harassment may trigger Title IX
liability “if that incident were vile enough and the institution’s response,
after learning of it, unreasonable enough to have the combined systemic
effect of denying access to a scholastic program of activity.” Fitzgerald v.
Barnstable Sch. Comm., 504 F.3d 165, 172-73 (1st Cir. 2007), rev’d on other
grounds, 555 U.S. 246 (2009). But see Doe v. Fairfax Cnty. Sch. Bd., 10 F.4th
406, 417 (4th Cir. 2021) (Wilkinson, J., dissenting) (noting ambiguity in the
statutory language and a circuit split on this issue).
A school satisfies its obligation under Title IX if it makes reasonable
efforts to investigate and address peer-on-peer harassment. See Fitzgerald,
504 F.3d at 175. The statute does not require schools “to take heroic
measures, to perform flawless investigations, to craft perfect solutions, or to
adopt strategies advocated by parents.” Id. at 174. In order words, “a claim
that the school system could or should have done more is insufficient to
establish deliberate indifference.” Porto, 488 F.3d at 73. A court may not,
with the benefit of hindsight, “second-guess an educational institution’s
choices from within a universe of plausible investigative procedures.”
Fitzgerald, 504 F.3d at 175. Instead, a court must inquire whether the
17 school’s response was objectively “so lax, so misdirected, or so poorly executed
as to be clearly unreasonable under the known circumstances.” Id.
Defendants’ motion for summary judgment focuses solely on the
deliberate indifference element of the Title IX claim. They argue that the
school’s response to M.L.’s reporting of L.M. for sexual assault, harassment,
and retaliation, was not clearly unreasonable under the circumstances.
Defendants maintain that they took appropriate steps to protect M.L. and
conducted adequate investigations of her allegations. Plaintiff challenges
both assertions.
A. Adequacy of the School’s Actions to Protect M.L.
In terms of the school’s efforts to protect M.L., defendants point to
evidence that they issued an informal no-contact order to L.M. as soon as
they opened the first investigation and then sent him a formal no-contact
order that remained in place throughout the relevant period. On the two
occasions that M.L. reported passing L.M. in the elevator hallway, school
officials immediately met with L.M., ascertained that he had legitimate
reasons to be there, and warned him to stay away from that location. Upon
learning that M.L. and L.M. were regularly in close proximity when L.M. was
making her way to math class on Mondays, school officials assigned the
students different routes to travel for that period. Finally, after M.L.’s mother
reported that L.M.’s father had “stared down” M.L. one time on the school
18 grounds, AP Davis met with M.L. to get more facts. Defendants note that,
although the school did not take concrete steps to ensure that it did not
happen again, it was deemed to be an isolated incident that was unlikely to
reoccur.
I agree with defendants that the evidence, even construed in the light
most favorable to plaintiff, cannot show that they were deliberately
indifferent in their attempts to protect M.L. The no-contact orders were
reasonably broad in scope, prohibiting both direct and indirect contact,
including on social media and via a proxy. That a handful of instances of
contact occurred between M.L. and L.M. is insufficient to show that the no-
contact orders were not “reasonably calculated to end the harassment.” See
Doe v. Oyster River Co-op. Sch. Dist., 992 F. Supp. 467, 480 (D.N.H. 1997);
see also Porto, 488 F.3d at 74 (“[T]he fact that measures designed to stop
harassment prove later to be ineffective does not establish that the steps
taken were clearly unreasonable in light of the circumstances known by [the
school] at the time.”). For the most part, the no-contact orders effectively kept
the two students separated. When M.L. or her parents reported potential
violations of the no-contact orders, defendants responded with reasonable
promptness to remedy the situation. Nor is there any evidence that the
limited contact that occurred in the elevator hallway and before math class
19 involved deliberate attempts on L.M.’s part to contact M.L. such that a
different response may have been required.
Plaintiff’s challenges to the adequacy of the school’s other protective
actions also fail to persuade. Plaintiff argues that additional measures were
required, including a comprehensive safety plan, separate transportation,
notice to the math teacher of the no-contact order, and a solution that would
have enabled M.L. to eat lunch in the cafeteria without seeing L.M. Plaintiff
also contends that the school’s delay in addressing both the “burying time”
texts and the run ins before math class was clearly unreasonable.
To be sure, the additional measures M.L. has identified were available
to defendants, and M.L.’s parents did demand some of them. But Title IX
“does not require an educational institution either to assuage a victim’s
parents or to acquiesce in their demands.” Fitzgerald, 504 F.3d at 175.
Considering the whole record, no reasonable jury could conclude that
plaintiff’s unaddressed demands show deliberate indifference by defendants.
As for the transportation, the school acted reasonably when it created a
physical distance between the two students by instructing L.M. to ride at the
front. Defendants’ failure to notify the math teacher of the no-contact order
was also not clearly unreasonable, considering that the two students were
20 assigned different travel paths to avoid contact before math class. 2 And as for
the cafeteria situation, plaintiff’s counsel admitted at oral argument that
there is no evidence in the record that M.L. and L.M. shared the same lunch
period or that she ever ran into him in the cafeteria. But even if they had
shared a lunch period, the no-contact orders would have required L.M. to
keep his distance from M.L. Defendants’ alleged failure to address her
request to avoid seeing L.M. at lunch, therefore, cannot show that
defendants’ actions were clearly unreasonable.
Defendants’ alleged delay in addressing the “burying time” texts also
does not establish deliberate indifference. Approximately six weeks after
getting notice of those texts, the school concluded that M.L. had violated the
no-contact order and various school policies by sending them. L.M. was
suspended from school for four days as a result. That the school decided to
wait until its second investigation was completed to impose consequences for
those violations does not make its efforts to protect M.L. clearly
unreasonable. Shortly after the texts came to the school’s attention, the
school advised M.L.’s parents that it was investigating them and informed
them that it had specifically warned L.M. that retaliation against M.L. or
2 Plaintiff notes that the travel paths were imperfect because there was still a possibility that they would intersect depending on which stairwell L.M. took. But there is no evidence that their paths in fact crossed on any occasion. 21 others who participate in the investigation was strictly prohibited. Plaintiff’s
position that the school instead should have immediately confronted L.M.
with the texts and disciplined him to protect M.L. from further retaliation
amounts to a mere allegation that the school “could or should have done
more,” which, standing alone, cannot constitute deliberate indifference. See
Porto, 488 F.3d at 73. Regardless, considering the lack of evidence that L.M.
engaged in further retaliation after receiving the warning, it is not even clear
that additional measures were needed to protect M.L. from further
retaliation.
Lastly, the school’s delay in addressing the run ins before Monday’s
math class was not clearly unreasonable. Although an unjustified delay in
instituting remedial actions may constitute deliberate indifference, a delay of
a few weeks resulting in, at most, a handful of contacts between M.L. and
L.M. cannot meet that standard. Cf. Karasek v. Regents of Univ. of Cal., 956
F.3d 1093, 1109-10 (9th Cir. 2020); Zeno v. Pine Plains Cent. Sch. Dist., 702
F.3d 655, 669 & n.13 (2d Cir. 2012).
In sum, no reasonable jury could conclude based on the evidence in the
summary judgment record that defendants were deliberately indifferent in
their attempts to protect M.L. Accordingly, defendants are entitled to
summary judgment as to that aspect of M.L.’s Title IX claim.
22 B. Adequacy of the School’s Investigations
As for the school’s investigations into M.L.’s allegations, defendants
point out that school officials spoke with both M.L. and L.M., as well as
several other students who were on the bus, the same day that M.L.’s father
first reported the bus incident. Based on the available information, they
decided not to proceed with a formal sexual harassment investigation at that
time. But as soon as M.L. reported L.M.’s attempts to contact her a few days
later, the school opened a formal investigation. Then, when M.L. reported
that she had been digitally penetrated, school officials referred the allegation
to the police. They also continued their investigation by re-interviewing L.M.
in his father’s presence, obtaining video footage of the bus ride, and re-
interviewing students who were on the same bus. The bus video, however,
was poor quality, limiting the school officials’ ability to ascertain what had
really happened. Based on the information they had available, which
included an admission from L.M. that he had kissed M.L. and placed his
hands on her waist, the school determined on December 11 that the
unwanted kissing constituted unwanted physical contact in violation of the
school’s sexual harassment policy and that L.M. had been insubordinate to
the bus driver when she had tried to intervene. As a result, L.M. was
suspended from the bus for ten days, assigned a seat at the front of the bus,
and issued a formal no-contact order.
23 Defendants maintain that this first investigation alone satisfied the
school’s obligations under Title IX. Nonetheless, when M.L.’s parents
provided the school with additional facts, including L.M.’s attempt to
intimidate M.L. by proxy, the school agreed to conduct a second investigation.
A new investigator, AP Davis, was assigned to lead that investigation.
According to defendants, Davis conducted a thorough investigation, which
included re-interviewing L.M., M.L., and numerous other students; reviewing
text messages that allegedly violated the no-contact order, as well as
additional text messages from L.M. to his girlfriend following the bus
incident; and reviewing the bus video numerous times, including a better-
quality version that most others did not see. Davis then wrote a report
outlining her findings, essentially concluding that no unwanted touching had
taken place because M.L. was a willing participant. Superintendent Forsten
then wrote a letter to M.L.’s parents detailing the second investigation’s
findings. Although the letter concluded that there was insufficient evidence
that L.M.’s conduct was unwanted, it nonetheless found that he had violated
the no-contact order and school policies by threatening M.L. in the “burying
time” texts. As a result of those violations, the school suspended L.M. for four
days, which defendants maintain was adequate punishment.
I agree with defendants that, on this record, no reasonable jury could
conclude that they were deliberately indifferent in investigating M.L.’s
24 allegations. To be clear, this was far from a perfect investigation. More could
have been done, and a reasonable investigator may well have come to
different conclusions. But I cannot say that the investigation was “so lax, so
misdirected, or so poorly executed as to be clearly unreasonable under the
known circumstances.” See Fitzgerald, 504 F.3d at 175.
Plaintiff’s challenges to the school’s investigations do not identify fatal
flaws. Plaintiff first notes that school officials never interviewed Bolster, the
bus driver, despite her being the only witness to the bus incident. Defendants
also did not interview the school counselor who was helping M.L. in the wake
of the bus incident and who thought that M.L. was being honest about the
assault. Defendants respond that they had Bolster’s written statement and
that they had valid reasons to discount her account of what had happened,
which conflicted with the video footage. As for the counselor, defendants
argue that M.L.’s sessions with her were confidential.
Perhaps defendants should have interviewed Bolster instead of relying
on her written statement, and they could have asked the counselor for her
opinion without asking her to divulge confidential information. But, under
the circumstances, defendants’ failures to do so does not rise to the level of
deliberate indifference. See Fitzgerald, 504 F.3d at 174 (noting that “[i]n
hindsight, there may be other and better avenues that the [school] could have
explored . . . [b]ut Title IX does not require . . . flawless investigations [or]
25 perfect solutions”); see also Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v.
Brown, 520 U.S. 397, 407 (1997) (explaining that “[a] showing of simple or
even heightened negligence will not suffice” under the deliberate indifference
standard).
Nor does plaintiff’s contention that the investigators should have posed
better questions to some witnesses demonstrate deliberate indifference.
Although L.M. was not specifically asked after his “man to man” conversation
with SRO Hassapes what he meant when he said that more had happened
than just a kiss, the school did not ignore that conversation. Instead, AP
Crumrine met with L.M. to follow up on his comments to Hassapes and asked
about a different statement L.M. had made — that he had done something
wrong. A failure to ask other questions that, in hindsight, might have elicited
more illuminating answers does not show that the investigation was “carried
out so inartfully as to render it clearly unreasonable.” See Fitzgerald, 504
F.3d at 175. The same is true regarding questions that Davis asked L.M.’s
girlfriend.
Plaintiff’s argument that the school’s delay in starting the second
investigation shows deliberate indifference also cannot succeed. Under the
circumstances, it was not clearly unreasonable for the school to wait
approximately six weeks until the police completed their investigation into
the sexual assault allegations to conduct the second investigation. See
26 Karasek, 956 F.3d at 1101, 1109-10 (holding that the university’s decision to
delay investigation for several months while police were investigating
plaintiff’s allegations did not constitute deliberate indifference); I.F. v.
Lewisville Indep. Sch. Dist., 915 F.3d 360, 376 (5th Cir. 2019) (delaying
investigation for nearly three months, which included a three-week period
while police were investigating, insufficient to show deliberate indifference).
In the interim, the no-contact order was in effect and being enforced and
defendants took steps to support M.L., including offering counseling services.
M.L.’s attacks on the investigation’s factual findings fare no better. She
first maintains that the investigators should have placed more weight on
L.M.’s texts to his girlfriend because they amounted to an excited utterance.
Although another investigator may well have read those texts differently,
Davis had a rational basis to discount them given L.M.’s explanation that his
comments referred to other events in his life causing him stress.
Lastly, to the extent M.L. challenges Davis’s factual finding that she
had reached out to pull L.M. toward her during the assault, that argument is
meritless. M.L. principally bases this challenge on the low quality of the bus
video. Although the video itself is not part of the summary judgment record,
M.L. cites to the testimony of several witnesses who, plaintiff claims, did not
see what Davis saw.
27 The problem for M.L. is that Davis testified to seeing a better-quality
video on the bus company’s laptop, which the parties did not preserve. Two of
the witnesses, Corkum and Forsten, did not testify to seeing the same version
as Davis, so their testimony is not helpful in seeking to determine what the
better-quality video showed. The testimony of Crumrine, who did see the
same version as Davis, is not inconsistent with Davis’s finding. In fact,
Crumrine testified that Davis had pointed out to him the arm and head
movements in the video and that he had agreed with her assessment at that
time. It is true, as plaintiff notes, that Crumrine stands by his original
conclusion that L.M. engaged in unwanted kissing and touching over
clothing. That Crumrine may have drawn different conclusions based on all
the available evidence, however, does not mean that Davis’s conclusion was
clearly unreasonable. Indeed, the reaching maneuver was only one piece of
evidence that Davis relied on in making her findings. She also focused on
inconsistencies in M.L.’s allegations, including the seat switching and the
nature of her friendship with L.M. On these facts, M.L. has not created a
triable case that Davis was deliberately indifferent in making her findings,
let alone marshaled enough evidence to meet the higher standard that
applies when school investigations are challenged under Title IX on
erroneous outcome grounds. See Doe v. Trustees of Bos. Coll., 892 F.3d 67, 90
(1st Cir. 2018) (holding that Title IX claim challenging university disciplinary
28 proceedings on erroneous outcome grounds requires evidence that casts
“some articulable doubt on the accuracy of the outcome” and indicates that
“gender bias was a motivating factor”) (quoting Yusuf v. Vassar Coll., 35 F.3d
709, 715 (2d Cir. 1994)).
Considering the whole record, the school’s investigations, although
imperfect, were not so lacking in either scope or execution to render them
clearly unreasonable under the circumstances. Thus, defendants are entitled
to summary judgment on this aspect of M.L.’s Title IX claim as well.
IV. CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment
(Doc. No. 37) is granted. The pending motions related to expert disclosures
(Doc. Nos. 35 and 36) are denied as moot. The clerk of court shall enter
judgment accordingly and close the case.
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge
September 30, 2022
cc: Counsel of record