James Hill v. Madison County School Board, et al.

At the time of the rape on January 22, 2010, Doe was a 14-year-old girl and

an eighth grader. From the time her mother became ill and later passed away in

2007, Doe grew up in foster homes scattered throughout North Carolina. In 2008,

Doe moved to Huntsville, Alabama, to live with her siblings’ stepmother, Patricia

Jones, before starting seventh grade. While in Huntsville, Doe attended seventh

grade and a portion of eighth grade at Sparkman Middle School, which is operated

by the Board. CJC, a 15-year old male, was also an eighth-grade student at

Sparkman.

Four Sparkman officials are named as defendants in this suit: Ronnie J.

Blair, Teresa G. Terrell, Jeanne Dunaway, and June Simpson. Blair was the

principal at Sparkman. All assistant principals and teachers reported directly to

Blair, and Blair retained ultimate authority for operation of the school. Terrell and

Dunaway were the assistant principals at Sparkman. June Simpson was a teacher’s

aide for physical education classes.

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B. Board’s Sexual Harassment Policies

Prior to and during the 2009-2010 school year, the Board adhered to the

following policies concerning the resolution of sexual harassment complaints and

the retention of complaint-related documents and student disciplinary records.

1. Investigation and Discipline

Each year, school administrators assigned a team of teachers to instruct the

students about Sparkman’s sexual harassment policies. Both the 2009-2010 Student Code of Conduct and Board Policy Manual in effect on January 22, 2010, 5

include sections addressing student sexual harassment.

According to the Code of Conduct, the principal is ultimately responsible for

handling all harassment complaints. The Code of Conduct states that students may

report harassment to the “[p]rincipal, assistant principal, a teacher, or to whomever

he/she feels the most comfortable.” Students may fill out a student sexual

harassment complaint form, though Principal Blair cannot remember seeing this

form or recall a single instance in which a student used the form. The person

receiving the harassment complaint “shall make the complaint known to the

[p]rincipal,” and the principal “shall investigate the complaint and take appropriate

5 Two policy manuals are in the record. The first was approved “June 1997” and titled “STUDENT SEXUAL HARASSMENT.” The second was approved “June 24, 2010” and titled “6.10 Student Anti-Harassment Policy.” Blair testified he “believe[d]” the June 24, 2010 Policy Manual was in effect on January 22, 2010, but that is obviously a temporal impossibility. He also believed the June 1997 policy was in effect as of January 22, 2010. Viewing the facts in the light most favorable to Doe, only the June 1997 policy was effective as of January 22, 2010.

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action.” Similarly, the Policy Manual provides that the school official to whom a

complaint of sexual harassment is made “shall make the complaint known to the

[p]rincipal of the school, except in cases where the complaint is against the

[p]rincipal.” The principal “shall investigate the complaint and take appropriate

action.”

The record contains few details about the training used to implement the

sexual harassment policies outlined in the Code of Conduct and the Policy Manual.

According to Principal Blair, the Board’s central office conducted all sexual

harassment policy training. Blair reportedly attended an after-school workshop

about sexual harassment conducted at Sparkman, but the record does not reveal

any documentation from this workshop, a list of who attended, the year it occurred,

or the details of the training. Assistant Principal Dunaway remembers attending

sexual harassment training at the Madison County Administrator Academy, but

that program has since been discontinued. Again, the record contains no

documentation of these training sessions.

At the time of her deposition, Assistant Principal Dunaway was not aware

the Code of Conduct had any section addressing sexual misconduct or harassment.

Sparkman did not revisit the sexual harassment policy with its employees every

year, and no records were kept about sexual harassment training. Principal Blair

cannot remember the identity of the Title IX coordinator in 2010; does not know

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how employees would discover the identity of the Title IX coordinator; and

testified students were not told the identity of the Title IX coordinator. Rather than

give each teacher a copy of the sexual harassment policy, a large binder containing

the entire Policy Manual was kept on file at the media center and principals’ office.

Despite Teacher’s Aide Simpson’s entreaties to Blair and other faculty members,

she received “no proper training” on how to handle sexual harassment complaints.

Principal Blair testified that when a student alleged another student

committed sexual harassment, all school personnel were required to report the

allegation up the chain-of-command to him if the complaint was “of significance.”

Blair was responsible for overseeing the investigation of sexual harassment

complaints. The assistant principals and other staff members could also investigate

complaints of sexual harassment, but they were required to report such allegations

to Blair. Blair was not always the person in charge of disciplinary action with

regard to sexual harassment; Dunaway and Terrell, as assistant principals, could

also be in charge. Principal Blair crafted a “catch in the act” policy6 establishing three

exclusive types of evidence sufficient for the school to discipline a student for

sexual harassment. First, if students were “caught and proven” performing a

sexual act, that would be grounds for disciplinary action. Second, physical 6 We refer to this policy as the “catch in the act” policy because the parties have used that phrase in their briefing.

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evidence of sexual harassment could be sufficient. Third, discipline was warranted

if a student admitted guilt. In contrast, “one person saying” sexual harassment

occurred “against another person’s word does not work.” If a student complained

that another student propositioned him or her for sex, that fact alone was not

enough to warrant discipline “because you’ve got one word against another

without witnesses.”

Principal Blair informed other staff members, including Teacher’s Aide

Simpson, that students had to be “caught in the act” of sexual harassment to

impose discipline. Assistant Principal Dunaway testified that “[s]tudents in middle

school, especially with the use of social media, tend to make up a lot of stories

about people and if we disciplined every child for every rumor, we would have no

children at our school.”

2. Recordkeeping

Upon receiving a complaint of sexual harassment or any other disciplinary

infraction, school officials conducted an investigation, which often involved

interviewing witnesses. An investigation normally produced two types of

documents: (1) administrator notes and (2) witness statements.

There was no school-wide policy regarding the retention of administrator

notes made during an investigation. Administrators were authorized to arbitrarily

destroy or preserve these notes. By contrast, there was a specific policy regarding

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witness statements. If the sexual harassment allegation was not proven, the

witness statements were quickly destroyed. If the sexual harassment allegation

was proven, school officials kept the witness statements in a student’s paper file

located in the principals’ office. During the summer shortly after the end of the

academic year, all student conduct files (including both administrator notes, if any,

and witness statements) were shredded. The identity of the school staff member

who performed the shredding is unknown.

After the shredding, the only remaining evidence of a sexual harassment

infraction was an entry in the school’s disciplinary computer database called

iNOW. The database contains a barebones description of each incident, without

any accompanying electronic or paper files revealing the precise nature of the

infraction. Each entry contains an infraction code noting the nature of offense—

such as “sexual harassment” or “inappropriate touching.” When asked how the

school differentiated between inappropriate touching versus sexual harassment,

Terrell testified “one is more serious than the other.” The infraction codes were

meant to allow administrators to evaluate the cumulative and recidivistic nature of

a student’s conduct.

The infraction codes were not a systematic method of classifying

misconduct, but instead an ad hoc determination made solely by Kathy Abernathy,

the school secretary. Assistant Principal Terrell testified that she would not tell

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Abernathy which code to enter, but instead just “hand[ed] her the paperwork.”

Assistant Principal Dunaway likewise “handed [Abernathy] the paperwork and she

. . . filled it out.” Terrell believes Abernathy had been trained in the central office

about iNOW coding, but she does not know the nature or date of this training.

C. Events Prior to the Rape on January 22, 2010

CJC, a 15 year-old eighth grader, attended Sparkman Middle School during

the 2009-2010 school year. Prior to his rape of Doe on January 22, 2010, CJC had

accumulated a disciplinary history of violence and sexual misconduct. We break

this history into four parts: (1) CJC’s recorded disciplinary history in the iNOW

database prior to January 2010, the month of the rape; (2) allegations he had been

propositioning girls to have sex with him in January 2010; (3) an allegation of

“inappropriately touching” a girl on January 13, 2010; (4) and allegations he had

repeatedly propositioned Doe to have sex with him for two weeks prior to the rape.

1. CJC’s Recorded Disciplinary History Prior to January

CJC’s disciplinary record consists of short summaries of incidents logged in

the Board’s iNOW computer system. Over 18 months preceding the rape in

January 2010, CJC had five infractions for sexual misconduct and four infractions

for violent or threatening behavior. There is no supporting documentation of these

incidents due to the shredding policies described above, and none of the

administrators remember any details about the incidents.

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The first relevant entry on CJC’s record is dated September 24, 2008, when

he was a seventh grader at Ardmore High School (Ardmore). CJC received five

days of in-school suspension for “[i]napp [p]ublic [d]isplay of [a]ffect,” described

in the notes as “[t]ouching girls in inappropriate places. Writing inappropriate

notes to girls asking them to have sex with him.” In another incident at Ardmore,

he “[h]it another student” and received three days of in-school suspension.

After transferring to Sparkman during his seventh-grade year, CJC

continued to tally disciplinary infractions for violent and sexual misconduct. On

December 17, 2008, CJC received an unspecified amount of out-of-school

suspension for “[f]ighting” because he “[h]it another student several times on bus.”

On February 4, 2009, CJC received out-of-school suspension for “[m]aking

inappropriate comments to a young lady,” coded as “[s]exual harassment.”

In September 2009 during eighth grade, CJC received an unspecified amount

of out-of-school suspension for “[h]arassment” because he “[o]ffered to pay

another student to beat up a girl also stated that would he would like to kill her.”

On October 23, 2009, CJC was suspended from riding the bus for saying “F---

You” to the driver. On October 28, 2009, CJC received in-school suspension for

“[i]nappropriate touching” coded as “[d]isobedience.” On November 18, 2009,

CJC was again suspended from the bus for “refusing to obey driver and keep hands

off a female student,” with the infraction coded as “[m]inor disruption on bus.”

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One week later, CJC received in-school suspension for “[k]issing” coded as

“[d]isobedience.” On December 15, 2009, CJC received in-school suspension for

“[v]erbal confrontation with another student” coded as “[d]isobedience.” Three

days later, CJC received out-of-school suspension for “[t]hreatening another

student” and “intimidation” while serving his in-school suspension.

Assistant Principal Terrell did not know why the school listed CJC’s

infraction for “[m]aking inappropriate comments to a young lady” as “sexual

harassment,” but listed his failure to “keep hands off a female student” as “[m]inor

disruption on bus.” By Terrell’s admission, there was “not a normal policy” about

“what goes in the infraction box.”

2. Propositioning Girls to Have Sex in Bathrooms in January

In the weeks prior to the rape in January 2010, CJC propositioned female

students to have sex with him in the school bathrooms. There are two competing

versions of CJC’s sexual activity in the bathrooms during January 2010.

According to Teacher’s Aide Simpson, CJC “had been repeatedly

propositioning other female students to have sex in the boys’ bathroom.” The

allegations began shortly after Thanksgiving break in 2009. Simpson reported

CJC’s sexual harassment to Principal Blair in early January and suggested school

officials monitor CJC at all times. Blair responded that school officials “were

going to have to catch [CJC] in the act” before taking any disciplinary action.

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Blair’s recollection differs from Simpson’s. According to Blair, he learned

that approximately one and a half weeks prior to the rape on January 22, 2010,

there was one “alleged incident” involving CJC and female student at the school.

Simpson told Blair that CJC and another student were engaged in consensual

sexual activity in a bathroom in the special education wing. Blair spoke directly to

CJC and the female student about the activity and took notes of the conversations.

Though he normally required students to create a written statement about such

incidents, Blair cannot remember whether CJC made such a statement. Blair also

cannot remember the identity of the female student who made the allegations. CJC

and the female student both denied engaging in any sexual activity. Blair did not

impose any disciplinary action in response to the allegation because it was a “he

say/she say kind of deal.” Since he could not confirm the truth of the allegation, it

did not count as sexual harassment and all documents relating to the investigation

were shredded.

Principal Blair did not examine CJC’s disciplinary records as part of his

investigation. There was no reason to examine the records because he would

“recall” those “big” incidents of sexual harassment that had already occurred.

Nonetheless, he told Assistant Principals Terrell and Dunaway to maintain a

“heightened state of alert” about CJC’s activity. Blair pointed one of the school’s

security cameras, which had an unmonitored screen in the front office, towards the

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school’s special education bathroom.

3. Sexual Harassment on January 13

On January 13, 2010, there was another allegation that CJC was sexually

harassing female students. Assistant Principals Terrell and Dunaway investigated

a complaint that CJC “inappropriately touch[ed]” another female student. There

are no records of this incident.

Principal Blair cannot recall the exact nature of the allegation, or even

whether it involved sexual touching. Assistant Principal Dunaway remembers

some students mentioning that CJC inappropriately touched a girl’s thigh during

class, but she could not identify a witness with personal knowledge of the incident,

nor could she remember the identity of the victim. Assistant Principal Terrell

described the incident as “middle school drama.”

During the investigation, Principal Blair did not review CJC’s iNOW record

or any other documentation. Assistant Principal Dunaway checked CJC’s iNOW

record, but it did not inform her decision about how to discipline him. Dunaway

did not review the supporting paper documentation in CJC’s file regarding the

October 28, 2009 “[i]nappropriate touching” infraction, the November 18, 2009

infraction for “refusing to obey driver and keep hands off a female student”

infraction, or the November 25, 2009 infraction for “[k]issing.” Dunaway chose

not to look at this documentation because she “had no reason to believe he was

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guilty. I had nobody to corroborate the story.”

The incident was recorded in the iNOW database. The database entry says

CJC received 20 days of in-school suspension for “[d]isobedience” due to

“[c]onstant[]distraction continued disruption of learning.” When asked why the

school listed this incidence of sexual harassment as “[d]isobedience,” without any

reference to inappropriate touching, Assistant Principal Dunaway explained the

allegations had not been proven. Assistant Principal Terrell opined the

investigation into the sexual harassment itself was “a constant disruption.”

Even though “[n]othing could be proven” regarding the allegation, Principal

Blair assigned CJC to 20 days of in-school suspension as a “precautionary

measure,” but “not as discipline for him.” In-school suspension involved, inter

alia, sweeping hallways and cleaning the lunchroom. A student assigned to in

school suspension was supervised by a custodian or plant manager. When asked

whether someone was supposed to be with CJC at all times, Blair responded, “[n]ot

necessarily.” A student was assigned a particular task in a certain room or hallway

and was not watched at all times, but instead occasionally left unmonitored. Blair

would not have given CJC such latitude had he been found guilty of misconduct.

CJC, however, had been assigned to in-school suspension as a precautionary

measure.



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4. Propositioning Doe to Have Sex

Over a two-week period prior to January 22, 2010, CJC had been badgering

Doe to have sex with him in the bathroom. Doe refused to respond to him. During

school on January 21, 2010, Doe told Teacher’s Aide Simpson that CJC had been

asking her to have sex. That same night, Doe told her guardian, Patricia Jones, that

“a guy at school, [CJC], was trying to have sex with me at school.” Jones told her

to refuse him.

D. January 22, 2010

1. Prior to the Rape

On Friday, January 22, 2010, Doe rode the bus to school, attended classes,

and walked to gym class at 2:00 pm. The entrance to the gym sat directly opposite

the main hallway where the principals’ office was located. CJC was in the hallway

performing unsupervised cleanup duties as part of his 20-day, “precautionary” in

school suspension for sexual harassment. CJC began talking to Doe next to the

principals’ office. CJC asked Doe to have sex with him in the sixth-grade boys’

bathroom. Doe said nothing and entered the gym.

Doe lined up for roll call and then, rather than enter the locker room with

other students to change into gym clothes, approached Teacher’s Aide Simpson.

Doe and one of her friends (whose identity does not appear in the record) spoke to

Simpson near the entrance of the gym. Doe told Simpson that CJC was still

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“messing” with her. Simpson said “do you want to get [CJC]” in trouble and Doe

said “yes.” Simpson said, “Do you want to—you have to go meet him so that we

could set him up and get him caught because he’s been doing this for a while.”

Doe responded that she “didn’t want to go,” and walked to the locker room. Doe

and her friend then sat in the locker room a few minutes and conversed. A few

minutes later, Doe approached Simpson again and “told her I would do it.”

Simpson asked if Doe was “sure,” and Doe said yes.

Teacher’s Aide Simpson escorted Doe to Assistant Principal Dunaway’s

office, but the precise events that occurred in the office are disputed. The facts

recalled by Doe and Simpson differ significantly from the events described by

Dunaway and Andrea Hallman (another teacher at Sparkman).

Doe recollects that, while in the office, Teacher’s Aide Simpson “told [an

assistant principal] what was going to happen.” According to Simpson, Assistant

Principal Dunaway and another teacher, Andrea Hallman, were in the office. Since

Dunaway was on the phone, Simpson asked for Hallman’s advice about the plan to

catch CJC in the act of sexual harassment. When Dunaway finished her telephone

conversation, Simpson spoke directly to Dunaway and described the plan to use

Doe as bait in a sting operation. Simpson said, “I hope this is legal. I don’t know

what I’m doing.” Dunaway appeared “disinterested” and provided “no direction or

advice.” Instead, Dunaway showed Simpson some “pictures of some tile on the

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cell phone.” At this time, Doe and her friend from gym class were talking to

Hallman in the doorway of the office. Because she had spoken to Dunaway and

Hallman, Simpson believed “someone else was handling the situation, so I returned

to the gym.”

Assistant Principal Dunaway’s description of the events in her office is quite

different. According to Dunaway, she was speaking to Hallman about student

literacy data when she saw Simpson enter the edge of her office and stand near the

door. At some point, Dunaway spoke on the phone with her husband. Simpson’s

back faced Dunaway, and Simpson appeared to be speaking to someone outside the

door while looking right and left. Simpson stood near the door for three to seven

minutes, but she never spoke to Dunaway. Dunaway claims it was “common” for

staff members to stand in her office without speaking to her for long stretches of

time because her office is large and sits next to the school’s main hallway. She

disclaims any knowledge of the plan to use Doe as bait in a sting operation.

According to Hallman’s affidavit, she was in Dunaway’s office when

Simpson arrived. Simpson stated a male student had been asking girls to meet him

in the bathroom for sex. When Simpson made this comment, Dunaway was

possibly conversing on the phone. Hallman stepped into the hallway and saw CJC

working with a school janitor, so she returned to Dunaway’s office. Simpson

never told Dunaway or Hallman about the plan to use Doe in order to catch CJC in

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the bathroom.

2. The Rape

After Doe and Teacher’s Aide Simpson left Assistant Principal Dunaway’s

office, Simpson told Doe to inform CJC that she “would do it.” Doe found CJC

alone in the hallway near the principals’ office. There was no janitorial supervisor

around CJC at this time. Doe told CJC she would have sex, and he said to meet at

the sixth-grade boys’ bathroom. Doe walked slowly toward the bathroom where

she stood by the water fountain. CJC asked her to go inside the bathroom, and she

went in first. CJC told Doe to go inside the most spacious stall. Doe complied and

moved to the back corner of the stall.

CJC directed Doe to pull down her pants, but, since she did not do it quickly

enough, CJC unbuttoned her pants and then pulled his own pants down. Doe

attempted to block the button of her pants, but he moved her hand away. Doe kept

trying to “stall” CJC by telling him “the teachers are going to come,” but CJC said

they would not arrive in time. When CJC pulled his own pants down, Doe told

him “I don’t want to do this” and attempted to pull her pants back up. CJC,

however, pulled them back down and said “I thought you wanted it.” CJC anally

raped Doe. Doe kept telling him to stop.

3. The Aftermath

After leaving Assistant Principal Dunaway’s office, Teacher’s Aide Simpson

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returned to the gym. Shortly thereafter, Doe’s friend told Simpson that Doe had

left to meet CJC. Concerned for Doe’s safety, Simpson returned to Dunaway’s

office. Simpson asked Dunaway and Hallman to search the sixth-grade bathroom.

Dunaway said nothing, and Hallman said she didn’t want to catch students “with

their clothes off.” Simpson called Kennedy, another teacher at Sparkman, and

asked him to search the boys’ bathrooms. She returned to the gym and asked the

gym teacher to also search the boys’ bathrooms. In the meantime, Hallman

checked the hallway, saw a teacher checking a bathroom, and returned to her own

classroom.

Within approximately one minute of receiving Simpson’s phone call,

Kennedy arrived in the sixth-grade boys’ bathroom and saw two pairs of feet

“close together” beneath the stall. He did not feel comfortable saying anything

without another adult present, so he left the bathroom, saw another teacher,

Campbell, and motioned for her to help him. Kennedy and Campbell entered the

bathroom. Campbell asked if anyone was there and told the students to come out.

CJC and Doe exited the stall. Kennedy observed CJC was noticeably erect. CJC

told Kennedy he and Doe “were not doing anything but making out.” Campbell

spoke to Doe in the hallway and asked her what had happened, but Doe could only

answer that he had “touched” her.

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The school receptionist learned about the incident and told Assistant

Principal Terrell that a boy and girl were found in a bathroom. Terrell approached

the bathroom, located Doe, and told her “you’ll be suspended.” Terrell walked

outside the school and spoke to Principal Blair, who was performing bus duty.

Terrell said Doe had been instructed to enter the bathroom, but “things had

changed a little bit—or a lot in the situation.” Terrell walked back inside the

school to escort CJC and Doe to the principals’ office.

Assistant Principals Terrell and Dunaway interviewed Doe. Terrell asked

Doe why she had been in a boys’ bathroom. Terrell cannot remember Doe’s

response, other than “[i]t was some wording in defense of herself.” Both Terrell

and Dunaway claimed Doe appeared calm during this meeting. Teacher’s Aide

Simpson entered the office and made a “fist pump” gesture, saying, “I sent [Doe]

and we got [CJC].” After Simpson’s entrance, Terrell and Dunaway asked Doe to

leave the office and remain seated in the lobby.

Principal Blair interviewed Simpson in his office. Teacher’s Aide Simpson

said she devised the sting operation with Doe in order to catch CJC in the act of

sexual harassment. According to Blair, Simpson said the plan went awry because

Doe failed to meet CJC at the correct bathroom where Simpson had originally

planned to catch him.

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Principal Blair also interviewed CJC. CJC claimed he and Doe had only

kissed consensually in the bathroom. Blair cannot recall whether he and CJC

discussed any of the prior allegations of sexual harassment against CJC.

Finally, Principal Blair interviewed Doe. She initially cried and could not

tell him what happened. After her guardian, Jones, and Teacher’s Aide Simpson

entered the office, Doe explained that CJC had raped her. During this interview,

Doe wrote a contemporaneous statement describing the rape in vivid detail.

Before the police arrived, the administrators conferenced to determine

whether to punish CJC for the rape. They decided to suspend CJC for five days,

subject to a subsequent disciplinary hearing at the central office. According to the

“Suspension Notice” provided to CJC’s guardian, the administrators imposed the

suspension for “[i]nappropriate touching.”

After speaking to the police, Doe was transported to a child advocacy center

where nurses performed tests and provided medical treatment. The medical

records from the examination were consistent with anal rape. Doe suffered anal

lacerations, rectal bleeding, redness, and swelling, all of which are well

documented with photographs. For reasons undisclosed by the record, the

Madison County District Attorney’s Office never filed charges against CJC.

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E. The Board’s Response to the Rape

After contacting CJC’s parents about the sexual assault, Principal Blair

referred CJC’s disciplinary proceeding to Dr. Jim Nash, the Student Support and

Personnel Director for the Board. Nash scheduled an expulsion hearing on

Wednesday, January 27, where he presided as the “Hearing Officer.” There is

virtually no information in the record about this hearing. There are no minutes, no

description of the evidence before Nash, nor an explanation of Nash’s reasoning.

Nash allegedly wrote a report documenting the research and conclusions of his

investigation, but the Board has not produced this report.

The only evidence about the hearing is a one-page form. The form says

Nash sentenced CJC to “Alt[ernative] School Placement / duration of school year

unless results of investigation suggest [unintelligible] punishment.” Later

documents show CJC was assigned to alternative school “pending investigation” of

the rape.

CJC attended alternative school at the “Promoting an Alternative

Commitment to Excellence Alternative Education Program” (PACE) beginning on

February 4, 2010. On February 24, 2010, while at PACE, a teacher caught CJC

viewing pornography on a school computer. CJC claimed he looked at the picture

“to impress a classmate.” PACE gave CJC two days of out-of-school suspension

for this infraction.

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CJC stopped attending PACE on April 2, 2010, and returned to Sparkman on

April 5. The record does not explain why CJC returned to Sparkman, other than a

discharge notation from PACE stating “Dr. Nash approved return due to outcome

of investigation.” The precise nature and findings of this investigation are

unknown. The record also does not show that school officials placed any

additional restrictions on CJC when he returned to Sparkman Middle School.

On May 5, 2010, Sparkman had, according to an email from Assistant

Principal Terrell to Principal Blair and PACE, “additional problems with [CJC].”

Among other things, CJC “kept moving to the table with his girlfriend” and

“hugged a girl in front of the cafeteria.” As a result, Terrell suspended him for

three days and placed him in alternative school the rest of the school year from

May 10 to May 26. This disciplinary infraction was never recorded in Sparkman’s

iNOW database.

CJC’s January 22, 2010 rape of Doe is listed in CJC’s iNOW record. The

database entry says CJC received out-of-school suspension for “[s]exual

[o]ffenses” due to “[i]nappropriate touching a female in boys bathroom.” Assistant

Principal Terrell contends the report describes the incident as inappropriate

touching, rather than rape, because CJC admitted to “making out” with Doe,

whereas no one actually witnessed the rape. Thus, the rape was not definitively

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proven. No one appears to remember who told Secretary Abernathy to describe

the rape as inappropriate touching.

Principal Blair does not know whether he believes CJC actually raped Doe.

Assistant Principal Dunaway never formed an opinion on whether CJC raped Doe

because the police never arrested CJC or charged him with rape. Dunaway

believes a rape cannot occur unless prosecutors bring criminal charges against the

alleged student rapist. Dunaway also believes Doe’s decision to enter the

bathroom makes CJC’s conduct “different” because, in her mind, he was not

“dragging a cave woman by the hair and pulling her into your cave as opposed to

someone saying sure, I’ll go with you.”

Assistant Principal Terrell also never formed an opinion on whether CJC

raped Doe because “[w]e turned it over to the police department for them to

investigate it. That was not my place to make that decision.” After examining the

medical photographs documenting Doe’s anal injuries, Terrell had no opinion on

whether Doe was raped.

With one exception, the Board has not changed a single policy in response to

CJC’s rape of Doe. The Board decided to discontinue the one-day sexual

harassment training workshop for administrators at the Madison County

Administrator Academy. Otherwise, the Board has not changed its sexual

harassment disciplinary policy and recordkeeping policies, nor has it altered the

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way it investigates sexual harassment complaints. Sparkman has not changed its

practice of assigning students to unsupervised janitorial duty as punishment for

alleged sexual harassment. Principal Blair would not change any policies because

“we did as good a job I think as you could do under the circumstances.”

F. Effect of Rape on Doe

After the rape on January 22, Doe continued attending Sparkman until she

withdrew on March 26. She returned to North Carolina to finish eighth grade.

Doe never received any assistance from the Board, in the form of counseling or

otherwise, to deal with her trauma. Upon her return to North Carolina, Doe

attended mental health counseling sessions and was prescribed medication for

depression. Doe discussed the rape with her counselor and how it has affected her.

In seventh and eighth grade at Sparkman, Doe played intramural basketball.

She stopped playing basketball at the end of her eighth-grade year because “I just

didn’t feel like I could do it anymore” and “I was just depressed.” Doe has not

participated in any extracurricular activities since leaving Sparkman. Due to the

rape, Doe prefers to “be by myself” and does not “trust being at school anymore.”

Her grades have suffered because, even though she was diagnosed with bipolar

disorder prior to the rape, her depression has been exacerbated. Doe’s grades have

gone up and down, sometimes earning As, Bs, and Cs, but sometimes receiving Fs.

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G. Destruction of CJC’s Paper Disciplinary File

In a letter dated April 30, 2010, approximately three months after the rape,

Principal Blair received from Doe’s counsel a letter notifying him to preserve

certain records relating to the January 22, 2010 personal injuries of Doe. The letter

stated:

As you may be aware, my law firm represents [Doe] as a result of personal injuries resulting from an incident which occurred on January 22, 2010 at Sparkman Middle School. We specifically request that the following evidence be maintained and preserved and not be destroyed, modified, altered, repaired, or changed in any matter [sic]:

1. Any videos or documents pertaining to the above referenced incident.

2. Any communications, including e-mails, regarding the incident.

Blair says he preserved all the records stemming directly from the January 22,

2010 rape of Doe. Blair preserved no documents, other than the iNOW records,

related to CJC’s other alleged or proven infractions during the 2009-2010 school

year.

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II. PROCEDURAL HISTORY

A. Doe’s Complaint

On September 23, 2010, Doe filed a complaint against the Board, CJC, Blair, Terrell, Dunaway, and Simpson.7 The complaint alleged (1) negligence

against Blair, Terrell, Dunaway, and Simpson; (2) recklessness/wantonness against

Blair, Terrell, Dunaway, and Simpson; (3) negligent/reckless/wanton hiring,

training, retention and supervision against Blair, Terrell, and Dunaway; (4) the tort

of outrage against Blair, Terrell, Dunaway, and Simpson; (5) a violation of Title

IX, 20 U.S.C. § 1681, against the Board; and (6) a violation of the Equal Protection

Clause and Substantive Due Process Clause, 42 U.S.C. § 1983, against all

Defendants. The complaint sought declaratory relief, injunctive relief, and

damages.

B. Motions for Summary Judgment

The Board, Principal Blair, Assistant Principal Terrell, and Assistant

Principal Dunaway collectively moved for summary judgment. The district court

granted summary judgment to the Board on the Title IX claims because CJC’s

sexual misconduct and violent behavior did not “constitute[] sexual harassment so

severe that it was depriving female students of educational opportunities.”

7 The complaint also named CJC as a defendant. The district court dismissed the claims against CJC because he was an unrepresented minor and numerous attempts to appoint a guardian ad litem had proven unsuccessful. That order of dismissal is not on appeal.

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According to the district court, CJC’s disciplinary history was not enough to give

the Board actual knowledge of CJC’s harassment of female students. The district

court found that, even if the Board had actual knowledge, it was not deliberately

indifferent because the disciplinary response to CJC was not clearly unreasonable.

The district court granted summary judgment to the Board, Blair, Dunaway,

and Terrell on the § 1983 claims. The district court granted summary judgment to

Blair, Dunaway, and Terrell on the Alabama negligent/wanton hiring claims, as

well as the tort of outrage claims. The district court also granted summary

judgment to Blair and Terrell on the Alabama negligence/wantonness claims

because they were entitled to state-agent immunity. The district court denied

summary judgment to Dunaway on the negligence/wantonness claims, however,

because she acted beyond her authority by ratifying the sting operation.

In her own motion, Teacher’s Aide Simpson moved for partial summary

judgment on the tort of outrage and § 1983 claims. The district court granted the

motion for partial summary judgment. After the district court’s rulings on the two

motions for summary judgment, the only pending counts were

negligence/wantonness claims against Dunaway and Simpson.

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Dunaway timely filed an interlocutory appeal from the district court’s denial of summary judgment on the negligence/wantonness claims.8 The district court

subsequently dismissed without prejudice the pending state law counts against

Dunaway and Simpson because all claims over which the district court had federal

question jurisdiction had been dismissed and the state-agent immunity issues were not settled under Alabama law.9 Doe timely appealed the orders granting summary

judgment in favor of Defendants. This Court granted the parties’ joint motion to

consolidate the appeals of Doe and Dunaway.

We reverse the grant of summary judgment to the Board on Doe’s Title IX

claim. To prevail on a student-on-student sexual harassment claim, a plaintiff must

prove the funding recipient had actual knowledge the sexual harassment was

severe, pervasive, and objectively offensive. Applying this standard, there is a

genuine dispute of material fact as to whether Doe has satisfied all five elements

necessary to succeed under Title IX.

Under element one, the parties do not contest the Board is a Title IX funding

recipient. Under element two, Blair, Dunaway, and Terrell were appropriate

persons capable of putting the Board on notice of sexual harassment and

discrimination, but Simpson was not. A jury could find the Board learned all of

the facts leading up to the rape and the fact that CJC had raped Doe.

As to element three, the harassment and discrimination Doe faced—of which

the Board had knowledge—was severe, pervasive, and objectively offensive.

CJC’s sexual harassment of Doe was pervasive because he propositioned Doe for

two weeks, school officials orchestrated the sting operation, and the sting operation

resulted in the rape.