The 10th Circuit Court of Appeals on Aug. 17 announced a former student’s Title IX case against Denver Public Schools will be allowed to move forward, reversing the lower court’s decision to dismiss the lawsuit for failure to state a claim.
Plaintiff Jane Doe, a former East High School student, alleges she was sexually harassed by a group of students after she reported another student for sexually assaulting her in March of 2016. According to Doe, despite reporting the harassment to school personnel multiple times over several months and additional reports from teachers and a counselor, the school administration failed to investigate or prevent the harassment from continuing.
The harassment included students calling Doe sexually demeaning names, rape jokes, references to her losing her virginity and a Snapchat message that said, “Consent is a myth,” according to court filings.
The district court decided Doe had failed to allege students were harassing her on the basis of sex and threw out the Title IX claims. DPS had argued that the harassment Doe suffered was motivated by her reporting the student who sexually assaulted her, and not on the basis of sex.
“Jane has not pled facts showing that she was subjected to severe, pervasive, and objectively offensive conduct based on her gender,” DPS said in its motion to dismiss. “While she has at most pled facts showing she was bullied by her peers, this is insufficient to state a claim under Title IX.”
However, the 10th Circuit disagreed. “In our view, Ms. Doe has adequately alleged discrimination on the basis of sex,” the appellate court said in its opinion, adding that “a factfinder could decide that the comments that were sexual in nature—such as those relating to consent and the loss of her virginity—were harassment based on sex that went beyond gender-neutral harassment motivated only by a desire to retaliate against one who reports misconduct.”
Citing the 2005 U.S. Supreme Court Case Jackson v. Birmingham Board of Education, the 10th Circuit concluded that retaliation for reporting sex discrimination is itself a form of sex discrimination covered by Title IX, and the sexual assault Doe reported was a form of sex discrimination.
DPS had also argued Doe failed to properly allege she had been denied access to an education, pointing to her 4.0 GPA and the fact that the school allowed her to finish the 2016-2017 school year off campus.
The 10th Circuit rejected those arguments as well, noting that Doe claimed the harassment was so bad she couldn’t attend classes in person, coming in before and after school during the last six weeks of the school year.
“We are somewhat surprised that the District so devalues classroom instruction and experience that it argues that their denial is not a denial of access to education,” the 10th Circuit said in its opinion.
“Yes, Ms. Doe maintained a 4.0 average. Apparently, she is quite bright. Does that mean that she would have derived no benefit from the instruction provided by her teachers?” the court said. “And there is certainly a body of thought that the socialization from attending school with peers is an important, perhaps essential, advantage of the school experience. The District’s argument on this issue is unpersuasive.”
In addition to the school district, DPS superintendent Tom Boasberg, principal Andy Mendelsberg, assistant principal Jann Peterson, deans Jeanette Sculley and Eric Sinclair and school psychologist Anita Curtiss are named as defendants in the lawsuit.
[note – may get comment from Jane Doe’s attorney today, will keep quotes to a minimum or swap out other details to not mess with the length too much.]