"Schooled" On The Law IN Public Education

Forth v. Lamarie Cnty. Sch. Dist. No. 1., No. 21-8078 (10th Vir. Mov. 7, 2023)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit has reversed a federal district court’s grant of summary judgment dismissing a former student’s Title IX claim of sexual harassment against a Wyoming school district. The appellate panel held, contrary to the lower court, that the school district had “actual notice” that a teacher posed a substantial risk of sexual abuse and was deliberately indifferent to the risk.

Issue: Whether the school district is liable under Title IX for sexual harassment because it had actual notice that the teacher posed a substantial risk of sexually abusing students and was deliberately indifferent to that risk?

Facts: Gracie Ann Forth (Forth) appealed from an order granting summary judgment to Laramie County School District No. 1 (LCSD1) on Forth’s claim under Title IX. Forth alleged that while she was a student at Johnson Junior High School (JJHS) one of her seventh-grade teachers, Joseph Meza, sexually abused her over several years beginning in 2014. According to Forth, principals at JJHS had actual notice that Meza posed a substantial risk of abuse and were deliberately indifferent to these risks in violation of Title IX.

On LCSD1’s motion for summary judgment, the district court concluded that LCSD1 did not have actual notice that Meza posed a substantial risk of abuse before it learned that Forth had reported him to the police. Because the district court concluded that Forth failed to establish such notice by LCSD1 during the period before LCSD1 learned of her police report, the court held LCSD1 (lacking such notice) was not deliberately indifferent during that period.

Forth appealed to Tenth Circuit challenging in particular the district court’s conclusion that LCSD1 did not have actual notice of the substantial risk of sexual abuse that Mr. Meza posed during the period before LCSD1 learned of her police report.

Holding/Rationale: The Tenth Circuit pane reversed the district court, holding that the lower court:

“… erred in finding no genuine dispute as to whether LCSD1 had actual knowledge of discrimination because it failed to draw all reasonable inferences in Ms. Forth’s favor and failed to credit certain evidence. Furthermore, because the district court rested its decision that LCSD1 was not deliberately indifferent before it learned of Ms. Forth’s police report entirely on its erroneous conclusion regarding actual knowledge, we also agree with Ms. Forth that the court erred in finding that LCSD1 was not deliberately indifferent before learning of Ms. Forth’s report to the police. Accordingly, we hold that the district court erred in granting summary judgment to LCSD1 on Ms. Forth’s claim under Title IX.”

The panel stressed that “the actual notice standard does not set the bar so high that a school district is not put on notice until it receives a clearly credible report of sexual abuse from the plaintiff-student.” It emphasized “reported incidents of harassment against students other than the plaintiff may establish actual notice of Title IX discrimination.”

Citing Escue v. N. Okla. Coll., 450 F.3d 1146 (10th Cir. 2006), the panel noted the case “did not resolve the related question of whether ‘notice sufficient to trigger liability may consist of prior complaints or must consist of notice regarding current harassment in the recipient’s programs.’” However, it concluded that question need not be answered because “LCSD1 does not contend that, in theory, prior complaints—including those involving students other than the plaintiff— categorically cannot provide actual notice of a substantial risk of sexual abuse.”

The panel stated: “The analytical focus should be on whether the evidence—viewed in its totality—could be said to have given a school district actual notice of a substantial risk of Title IX discrimination in its programs. And, with that focus in mind, we are constrained to conclude that the district court erred in its overall assessment of whether the prior complaints in this case were ‘too dissimilar.’”

The panel concluded: “The district court did not analyze the reasonable inferences available from the incidents reported to LCSD1 in the light most favorable to Ms. Forth. More specifically, viewing the information provided to the JJHS Principals in totality, we agree with Ms. Forth that the district court erred by failing to credit and draw all reasonable inferences in her favor on the actual notice question.” It, therefore, held:

Focusing on six specific pieces of record evidence and drawing reasonable inferences from them in Ms. Forth’s favor, we conclude that she has created a genuine dispute of material fact as to LCSD1’s actual knowledge of a substantial risk of abuse.

 First, the district court failed to draw reasonable inferences in Ms. Forth’s favor from the incident at a school football game in September 2013, when Mr. Cunningham reported to Mr. Balow that he had observed a student with her arm around Mr. Meza while “continually” touching his face and neck. A jury could reasonably infer that it alerted officials that Mr. Meza may have a propensity for inappropriate, physically intimate contact with students. It pointed out that “the incident at the football game was just one of multiple reports that could have provided actual knowledge that Mr. Meza presented a substantial risk of sexual abuse to his students (and Ms. Forth in particular).”

The panel found that “LCSD1 does not contend that it was too distant in time to support a claim of actual notice, as was some of the conduct in Escue.” It stated: “Though this incident involved a student other than Ms. Forth, it is relevant to the notice inquiry because Gebser requires assessing “actual knowledge of discrimination in the recipient’s program,” not merely knowledge of actions taken toward the plaintiff.”

The panel also found the district court failed to draw reasonable inferences from Hall’s report in August 2014 that Meza had requested unlimited classroom visitation rights for Forth. It concluded: “A jury could reasonably conclude that requesting unlimited visitation rights due solely to Mr. Meza’s ‘special relationship’ with Ms. Forth, combined with his ‘threatening’ response exhibited an interest in Ms. Forth that went well beyond a teacher’s interest in a student’s pedagogical or extracurricular success.”

In support of its conclusion, the panel pointed out that Balow testified that according to his annual training as a school principal, “paying closer attention to one particular student” could be a sign of an inappropriate teacher-student relationship and Cunningham similarly testified that “issuing frequent passes to a particular student” could be “a sign of grooming.” It observed that “[a]lthough Mr. Balow and Mr. Cunningham did not testify that these behaviors definitively illustrate a sexually abusive relationship, a jury could nevertheless draw a reasonable inference from their testimony that Mr. Meza’s behavior, as reported by Ms. Hall, put them on notice of the possibility of an improper physical relationship between Mr. Meza and Ms. Forth.”

In addition, the panel found “the district court failed to draw reasonable inferences in Ms. Forth’s favor from Ms. Hall’s reports—made on at least three occasions—that she saw Ms. Forth and Mr. Meza together outside class time in unusual circumstances.” It concluded: “Although spending an inordinate amount of time with a student outside of school hours could, in certain circumstances, reflect that the teacher had assumed a mentor-like or quasi-parental role with the student, a jury could reasonably interpret this behavior of Mr. Meza—when viewed in the context of the other evidence—as signaling to LCSD1 a substantial risk of abuse.”

Acknowledging that even though Barlow’s and Cunningham did not testify any of Mesa necessarily implied an abusive relationship, the panel stated “a jury could draw reasonable inferences in Ms. Forth’s favor from this evidence—specifically, that Ms. Hall’s reports related to behaviors associated with a substantial risk of abuse and would have served to put LCSD1 on notice of this possibility.”

It also found “the district court failed to draw reasonable inferences from reports that students had seen Mr. Meza and Ms. Forth sharing a soda out of the same container.” It pointed out that “[e]ven if one could conjure up a plausibly benign explanation for this soda incident— when viewed in the light of the other reports discussed supra—a jury could reasonably interpret the act of sharing a soda out of the same container as indicative of an inappropriate physical intimacy between Mr. Meza and Ms. Forth.” Additionally, it found “the district court failed to draw reasonable inferences from reports that Mr. Meza planned to adopt Ms. Forth.”

In regard to Meza’s adoption of Forth, the panel observed “a jury could have reasonably determined that—in light of his prior suspicious behavior—Mr. Meza’s adoption of Ms. Forth significantly contributed to the JJHS Principals’ actual notice of a substantial risk of abuse.” Finally, it found “the district court failed to expressly consider—let alone draw reasonable inferences favorable to Ms. Forth from—evidence that at least one of the JJHS Principals, Ms. Hunter, subjectively believed that Mr. Meza’s conduct presented a substantial risk of sexual abuse of students, especially Ms. Forth.”

The panel addressed Forth’s argument that such subjective-belief evidence can be highly probative of actual notice. It stated:

A reasonable jury could draw the inference from the evidence of Ms. Hunter’s interactions with the Garcias that Ms. Hunter subjectively believed that there was at least a substantial risk of Mr. Meza improperly engaging in sexual conduct with Ms. Forth. More to the point, we conclude that the district court erred by not taking this evidence—and the reasonable inferences from it—into account; the court should have at least assigned significant probative value to it on the actual notice issue.

The panel held:

Based on these reports and pieces of evidence, we conclude that Ms. Forth created a genuine dispute of material fact as to whether LCSD1 had actual notice that Mr. Meza posed a substantial risk of abuse. The district court erred in failing to draw the reasonable inferences we have highlighted and, consequently, in finding no genuine dispute of material fact as to actual notice.

According to the panel: “The outcome we reach here is entirely consistent with Gebser and decisions from this Circuit addressing actual notice.” It found that both Gebser and Escue were distinguishable from the fats in the present case. It said, “In sum, the outcome we reach here is entirely consistent with Gebser and decisions from this Circuit addressing the requirements of actual notice under Title IX.”

Taking up LCSD1’s contention that Forth failed to show the school district was deliberately indifferent before learning of Forth’s report to the police, It rejected LCSD1’s argument that “[t]here can be no deliberate indifference where the school district did not have actual knowledge of a substantial risk of abuse.”

The panel held: “Because the district court did not address deliberate indifference before LCSD1 learned of Ms. Forth’s police report beyond its conclusion that LCSD1 lacked actual notice during that period—a conclusion that we have determined here to be erroneous—we leave that issue for the district court to address in the first instance on remand.”