Citations
- 378 F. Supp. 3d 651
Full opinion text
Count IV is a claim under 42 U.S.C. § 1983, based on MNPS's deliberate indifference to ongoing harassment. (Case No. 3:17-cv-01159, Docket No. 1 ¶¶ 53-73; Case No. 3:17-cv-01277, Docket No. 1 ¶¶ 38-58.)
C. First Incident at Hunters Lane: Sally Doe
On February 21, 2017, Sally Doe-then a freshman at Hunters Lane High School-engaged in a sexual encounter with a boy, O.B., in a Hunters Lane boys' restroom. (Docket No. 92-4 ¶ 3.) Sally Doe has attested that she was pulled into the restroom and did not understand or expect that sexual activity was going to occur, she was pressured to engage in the sexual activity, and, although she did not physically fight the sexual activity, she was scared, did not know how to prevent it, and did not consider it welcome. She stopped the sexual activity before completion. (Docket No. 92-6 ¶ 4.) The encounter was recorded on video-Sally Doe believes, by O.B. with his phone. Sally Doe attested that she did not realize she was being recorded and did not welcome or consent to the recording. (Id. ¶ 5.)
The same day, administrators learned that Sally Doe had been seen in or going into the restroom with O.B., and Assistant Principal Melanie McDonald pulled Sally Doe out of class to explain the situation. McDonald asked Sally Doe what she had been doing in the boys' restroom and if she had had sex while there. Sally Doe responded that she had not had sex in the restroom. (Docket No. 83-1 at 16-17.) McDonald had Sally Doe provide a written statement about the matter, and, in the statement, Doe stated only that she and O.B. had gone into the bathroom to discuss something. (Docket No. 83-4 at 23.) Both students were placed on "overnight suspension." (Docket No. 83-2 at 2-3.) The next day or the day after, Sally Doe and her mother met with Assistant Principal Nicole Newman, and Sally Doe admitted to having kissed O.B. but not to the sexual activity. (Docket No. 83-1 at 21-22; Docket No. 83-2 at 9.)
About a month and a half later, on April 7, 2017, another female student, with whom Sally Doe had apparently had a personal falling out, posted the video of the February 21 bathroom encounter on Instagram and "tagged" Sally Doe. Sally Doe does not know how the girl who posted the video obtained it. (Docket No. 92-4 ¶¶ 5-6.) Several of Sally Doe's friends and acquaintances saw the video when it was posted. Sally Doe does not know exactly how many of her peers viewed the video but testified that she believed that "it was a lot of people." (Docket No. 83-1 at 26.) The same day that Sally Doe first saw the video, her mother found out about the video from a family member who, presumably, had seen or become aware of the Instagram post. (Id. at 24.)
The next day, Sally Doe's mother went to Hunters Lane to alert the school of the situation. She met with Assistant Principal Newman, who was in charge of overseeing ninth grade students, and an SRO. (Docket No. 70-3 at 42-43; Docket No. 83-1 at 26; Docket No. 89 ¶¶ 1, 5.) Newman's recollection of the meeting is limited. Newman testified that she does not remember whether she asked Doe who was circulating the video. Newman also does not recall whether she took notes. (Docket No 70-3 at 49.) Sally Doe's mother has attested that she told Newman that she "wanted [her] daughter protected and if that meant that the boy involved had to be suspended or expelled, then that is what should occur." (Docket No. 92-5 ¶ 4.) She also attested that Newman and the SROs focused their questions on the issue of forcible rape and did not raise the issue of a possible Title IX violation or the possibility that the underlying events may have been non-forcible but unwelcome. (Id. ¶ 7.)
Newman did not, to her recollection, inform the executive principal of Hunters Lane, Susan Kessler, about the events. (Docket No. 89 ¶ 5.) Newman testified that she could not recall receiving any training, either at Hunters Lane or outside Hunters Lane, on how to conduct a Title IX investigation. (Docket No. 70-3 at 108.)
The record includes an email exchange between Sally Doe's mother and Newman, beginning on April 11, 2017. (Docket No. 83-7 at 1-6.) Sally Doe's mother described the bullying that Doe was apparently facing at school. Other students were "yelling and throwing things at her as she walk[ed] down the hallway," so much so that she had to put her headphones in to attempt to drown them out. (Id. at 5.) O.B. "tried to fight her...in front of a large crowd" and "told her he was going to have someone...beat her up." (Id. ) "A student in one of her classes had the video[ ] and was talking to the teacher about it[,] even offer[ing] to show the teacher," although the teacher refused. (Id. ) Sally Doe's account of events confirms that she was taunted by her peers with sexually demeaning names such as "ho" and "slut" and that O.B. threatened her. (Docket No. 92-6 ¶ 8.)
On April 12, 2017, Sally Doe's mother wrote, "There is absolutely no way I can send my child to this detrimental environment every day." (Id. at 5.) Newman expressed her concern for what Sally Doe was experiencing and set up a meeting with Sally Doe's father for the next day to "talk and figure out a plan to get [Sally Doe] thr[ough] the rest of the year." (Id. at 4.) Sally Doe's mother responded that Sally Doe's father had tried to encourage Sally Doe to speak to Newman more about the situation, but that Sally Doe had said there was "no point" because the Hunters Lane administration "c[ould]n't control everyone." Sally Doe's mother wrote that she, too, was concerned that "[i]t's just too many children to reprimand." (Id. ) Sally Doe's parents pulled her out of Hunters Lane for the remainder of the year, and she was allowed to complete her exams at home. (Docket No. 83-1 at 29.)
By April 18, 2017, the video was, as far as the parties know, off of social media. (Docket No. 92-4 ¶ 18.) Sally Doe, however, continued to suffer occasional taunting or provocation from other students related to the video. That summer, Sally Doe participated in a summer program at Hunters Lane, and she, during the program, had an altercation with a boy about the video. (Docket No. 83-1 at 37.) Sally Doe returned to Hunters Lane the next year and, at one point, was mocked by another student about the video in front of her then-boyfriend. Afterwards, an assistant principal found her crying in a stairwell. (Id. at 39-40.) Sally Doe originally received an overnight suspension for missing class, but her mother went into the school the next day and explained the situation, after which the suspension was taken off of Sally Doe's record. (Id. at 41-42.)
In November 2017, a male student touched Sally Doe's buttocks without her permission while taking a picture. Thereafter, the student and Sally Doe's boyfriend got into a fight. Sally Doe, her boyfriend, and the student who took the picture while groping her were all suspended based on the fight. Although the disciplinary documentation of the incident does not mention Sally Doe's earlier problems with the video, it does not rule out the possibility that Sally Doe's resultant reputation played a role in the boy's actions. (Docket No. 83-10 at 5.)
Later that school year, Sally Doe was involved in an altercation, during which a student brought up the video. (Docket No. 83-1 at 44.) By the 2018-19 school year, however, the active harassment of Sally Doe had stopped. (Docket No. 92-4 ¶ 22.)
Meanwhile, Nashville police had begun a criminal investigation of O.B. arising out of the creation and dissemination of the video. O.B. was ultimately convicted of sexual exploitation of a minor. (Docket No. 92-4 ¶¶ 10-11.) Police records show that O.B. had previously been investigated, while in middle school, for having allegedly inappropriately touched a female student. (Docket No. 83-4 at 16.) He has now withdrawn from MNPS. (Docket No. 92-4 ¶ 23.)
On August 31, 2017, Sally Doe, through her mother, filed her Complaint. (Case No. 3:17-cv-1209, Docket No. 1.) Counts I and II of the Complaint are for Title IX violations related to MNPS's actions, respectively, before and after the bathroom incident. Count III is a claim under 42 U.S.C. § 1983, based on MNPS's failure to train its employees with regard to sexual harassment. Count IV is a claim under 42 U.S.C. § 1983, based on MNPS's deliberate indifference to ongoing harassment. (Id. ¶¶ 38-56.)
D. Second Incident at Hunters Lane: S.C.
On April 17, 2017, S.C., also a freshman at Hunters Lane, was involved in a sexual encounter with a male student, J.J., on school premises during the students' lunch hour. According to S.C., all of the sexual activity that she engaged in was coerced and unwelcome, although she did not know how to stop it. (Docket No. 92-11 ¶ 4.) Another female student, S.D., recorded the encounter on video. (Docket No. 92-1 ¶¶ 1, 3.) S.C. testified that S.D. had-unbeknownst, at first, to S.C.-come into the room during the encounter and that, by the time S.C. saw S.D., S.D. already appeared to be recording the encounter on her phone. (Docket No. 71-1 at 20.) Later that day, when S.C. was preparing to get on the school bus home, S.D. approached S.C. and informed S.C. that, as S.C. would later describe it, "the video was out and...everybody had it." (Docket No. 92-1 ¶ 7; Docket No. 71-1 at 23.) S.C. left school for the day without informing any teachers or administrators about the sexual encounter or the video. (Docket No. 92-1 ¶ 8.) When S.C. got home, she told her mother that she had had sex for the first time, but she did not tell her mother that a video had been taken of the incident. At some point that night, however, a friend sent the video to S.C.'s mother, who became angry at S.C. (Docket No. 71-1 at 27-28.)
A little after 9:30 p.m. that night, Executive Principal Kessler received a Facebook message from a "community member" with the video attached. (Docket No. 92-1 ¶ 11; Docket No. 74 ¶ 3.) Kessler claims that, by early the next morning, she had "begun [a] formal investigation of the incident." (Docket No. 74 ¶ 5.) Kessler worked with her assistant principals as well as the school's SROs to further the investigation, and Detective Robert Carrigan, a police detective dedicated to investigating sex crimes, also came to the school. (Id. )
Detective Carrigan interviewed S.C. and, after the interview, informed S.C.'s mother that the sexual encounter had been consensual. (Docket No. 92-1 ¶ 16.) S.C. gave a written statement to Kessler and did not state that she had been forced into the encounter. (Docket No. 74-1 at 1.) She did, however, state that she had wanted to stop both the encounter and the videotaping but "just couldn't get the urge to say no." (Id. ) According to Kessler, there was nothing about the content of the video itself suggesting that the sexual activity was non-consensual, and S.C. appeared, in the video, to have been aware of the taping. (Docket No. 74 ¶¶ 7-8.) According to S.C., police, as part of their questioning of her, told her that she could be prosecuted for the creation of child pornography and suggested that, because J.J. had not struck or otherwise violently forced her, the activity was consensual. (Docket No. 92-11 ¶¶ 7-8.) S.C.'s mother also stated that police suggested that S.C. could be prosecuted for child pornography offenses and that, because J.J. had not struck her on the video, it was clear that she had been a willing participant. (Docket No. 92-12 ¶¶ 6, 8.)
Ultimately, the school punished eight students, including J.J., S.C., and S.D., for their involvement in the sexual encounter and/or creating or distributing the video. (Docket No. 92-1 ¶ 20; Docket No. 71-1 at 38.) The other students punished were three male and two female students, all of whom were found to have shared the video. (Docket No. 74 ¶ 9.) All of the students received the same punishment, a three-day suspension. (Id. ¶ 13.) According to S.C. and her mother, Kessler assured them that the matter would "blow over in one day," a prediction that they found shocking. (Docket No. 92-11 ¶ 12; Docket No. 92-12 ¶ 14.)
S.C. attested that she had heard of the practice of "exposing" since the sixth grade and understood it to mean the sharing of sexual photos and/or videos that were not intended to be shared. According to her, at one point, a website had existed specifically for that purpose within the Nashville area, using the name "615exposed." She believed that at least two other incidents of "exposing" had occurred at Hunters Lane before the events involving her; one of those prior instances appears, from S.C.'s description, to have been the Sally Doe incident, while the other involved activity in a baseball dugout. (Docket No. 92-11 ¶ 11.)
S.C. never returned to Hunters Lane, ultimately moving to another school outside the MNPS system. (Docket No. 92-1 ¶ 19.) She testified that another student, R., "put [the video] on Pornhub" two days after it was recorded, which he told her about via Snapchat. (Docket No. 71-1 at 35-36.) S.C. testified that, although she left Hunters Lane, she was taunted about the video "mostly every day" by being called "a ho," "nasty," or "worthless." (Id. at 35.) The taunting came from both peers in her neighborhood and at her new school. (Id. at 37.) She also testified that S.D. made violent threats toward her and her family due to S.C's having "snitched" on her. S.C.'s mother reported those threats to the police. (Id. at 39.) Two male students also sent messages "warning" S.C., although she did not characterize those messages to be as threatening as S.D.'s. (Id. at 45-46.) S.C.'s mother confirms that S.C. and S.C.'s sister received threats and that she complained to the school and police about the threats. (Docket No. 92-12 ¶¶ 11-12.)
S.C. concedes that Kessler had no knowledge of anything in J.J.'s disciplinary history that would have suggested that he was at risk of harassing any female student. (Docket No. 92-1 ¶ 23.) Nor was there anything in the disciplinary records of the students punished for distributing the video that would have alerted Kessler to the possibility that they were particularly predisposed to engage in such an activity. (Id. ¶ 25.) Kessler testified that she had never heard the term "exposing" used to refer to the practice of MNPS students'
circulation of other students' sexual pictures or videos before this lawsuit. (Id. ¶ 26.)
On July 31, 2017, S.C.'s mother sued MNPS on her behalf. (Docket No. 1.) Counts I and II of her Amended Complaint are for Title IX violations related to MNPS's actions, respectively, before and after the bathroom incident. Count III is a claim under 42 U.S.C. § 1983, based on MNPS's failure to train its employees with regard to sexual harassment. Count IV is a claim under 42 U.S.C. § 1983, based on MNPS's deliberate indifference to ongoing harassment. (Docket No. 6 ¶¶ 41-61.)
II. LEGAL STANDARD
Rule 56 requires the court to grant a motion for summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). To win summary judgment as to the claim of an adverse party, a moving defendant must show that there is no genuine issue of material fact as to at least one essential element of the plaintiff's claim. Once the moving defendant makes its initial showing, the burden shifts to the plaintiff to provide evidence beyond the pleadings, "set[ting] forth specific facts showing that there is a genuine issue for trial." Moldowan v. City of Warren , 578 F.3d 351, 374 (6th Cir. 2009) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Conversely, to win summary judgment as to her own claims, a moving plaintiff must demonstrate that no genuine issue of material fact exists as to all essential elements of her claims. "In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party." Moldowan , 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).
At this stage, " 'the judge's function is not...to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.' " Id. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). But "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient," and the party's proof must be more than "merely colorable." Anderson , 477 U.S. 242, at 252, 106 S.Ct. 2505. An issue of fact is "genuine" only if a reasonable jury could find for the non-moving party. Moldowan , 578 F.3d at 374 (citing Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ).
III. ANALYSIS
A. Private Cause of Action Under Title IX
"The express statutory means of enforcement" of Title IX "is administrative: The statute directs federal agencies that distribute education funding to establish requirements to effectuate the nondiscrimination mandate, and permits the agencies to enforce those requirements through 'any...means authorized by law,' including ultimately the termination of federal funding." Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 280-81, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (quoting 20 U.S.C. § 1682 ). The existence of an administrative, funding-based enforcement mechanism does not, however, necessarily preclude additional means of supporting a federal spending program's guarantees, such as private enforcement by those whom the program is intended to benefit. To that end, the Supreme Court has long recognized that "Title IX implies a private right of action to enforce its prohibition" that can be brought by or on behalf of the students harmed by a Title IX violation. Jackson v. Birmingham Bd. of Educ. , 544 U.S. 167, 173, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005) (citing Cannon v. Univ. of Chicago , 441 U.S. 677, 690-693, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) ).
In Gebser v. Lago Vista Independent School District , the Supreme Court addressed the question of whether and when a Title IX funding recipient may be liable for damages arising out of sex-based harassment by a teacher. 524 U.S. at 281, 118 S.Ct. 1989. In attempting to "define the contours of that liability," id. , the Court held that, as in actions under 42 U.S.C. § 1983, an institution's liability for the actions of an individual could not be premised on a theory of vicarious liability or respondeat superior. Id. at 285, 118 S.Ct. 1989. Rather, the Court held that, "in cases...that do not involve official policy of the recipient entity,...a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and institute corrective measures on the recipient's behalf ha[d] actual knowledge of discrimination in the recipient's program and fail[ed] to adequately respond." Id. at 290, 118 S.Ct. 1989.
On one hand, the holding in Gebser , by precluding simple vicarious liability in favor of a focus on the culpability of the institution, erected a hurdle for plaintiffs seeking to recover for harms done to them at school. The focus on institutional responsibility, however, also eliminated any need to rely on the employer/employee relationship as essential to establishing liability. The rationale for liability arising out of an institution's failure to address harassment by a teacher could just as easily be applied to its failure to address harassment by a student's peers. Accordingly, in Davis v. Monroe County Board of Education , 526 U.S. 629, 119 S.Ct. 1661, the Supreme Court extended the holding in Gebser to apply to Title IX cases involving student-on-student harassment. The Court, however, made clear that a school is not liable for all student-on-student harassment. The school's "deliberate indifference must, at a minimum, 'cause [students] to undergo' harassment or 'make them liable or vulnerable' to it." Id. at 645, 119 S.Ct. 1661 (quoting Random House Dictionary of the English Language 1415 (1966); Webster's Third New International Dictionary 2275 (1961)).
The Court in Gebser had considered whether a school could be liable under Title IX for the ongoing harassment of one student plaintiff by one particular peer, concluding that liability was appropriate so long as the school had acted "with deliberate indifference to known acts of harassment" that were "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Id. at 633, 119 S.Ct. 1661. The Sixth Circuit, however, has extended the holdings in Gebser and Davis to allow liability where the funding recipient was deliberately indifferent to prior acts of harassment against the plaintiff by different third-party perpetrators. Patterson v. Hudson Area Schs. , 551 F.3d 438, 449 (6th Cir. 2009) ; Vance v. Spencer Cty. Pub. Sch. Dist. , 231 F.3d 253, 259 (6th Cir. 2000).
With regard to what would constitute deliberate indifference, the Sixth Circuit has held that, "[w]here a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of known circumstances." Vance , 231 F.3d at 261. However, it has also cautioned that "[d]eliberate indifference" in the context of liability for sexual misconduct, "does not mean a collection of sloppy, or even reckless, oversights; it means evidence showing an obvious, deliberate indifference to" the underlying conduct or risk. Doe v. Claiborne Cty., Tenn. ex rel. Claiborne Cty. Bd. of Educ. , 103 F.3d 495, 508 (6th Cir. 1996).
As this court has previously observed, Title IX claims based on harassment or abuse can roughly be separated into two types-"before" claims and "after" claims. "Before" claims focus on a school's actions before an underlying incident (or, at least, before the school's knowledge of that incident) and consider whether the school acted adequately to prevent and prepare for foreseeable risks of harassment or abuse. "After" claims, in contrast, consider the school's response after it learns of an underlying incident to determine whether the school met its obligation to handle the matter without deliberate indifference to its potential discriminatory effect. See Doe v. Univ. of Tenn. , 186 F.Supp.3d 788, 791 (M.D. Tenn. 2016). In a case such as this one, however, involving the dissemination of recorded material, that terminology may be somewhat misleading. While it is simple enough to identify a time "before" the events at issue in this case, the nature of digital media complicates the inquiry of when, if ever, one can say that the parties reached the time "after." Once illicit, private images or videos of a person have been distributed electronically, there may be no guarantee that the person can ever be totally confident that their circulation has been stopped. See Paroline v. United States , 572 U.S. 434, 440, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014) (discussing circulation of child pornography on the internet). In extreme cases, an electronic depiction of a brief, traumatic (or even simply private) experience in one's life may go on to be transmitted to thousands of computers and devices, for years or even decades after the original event. Cf. id. In that regard, the better terminology might not be "before" and "after," but "before" and "during"-before the depiction was created and during the indefinite period thereafter when it could resurface at any time. Nevertheless, the before/after distinction is helpful in clarifying the nature of the claims at issue here, and both parties use that terminology. The court will as well.
1. Lack of Notice Necessary for "Before" Claims
MNPS argues that, with regard to the plaintiffs' "before" claims, it lacked sufficient notice or actual knowledge of any underlying risk of sexual harassment to qualify for liability under Title IX. Although some general risk of sexual harassment and circulation of illicit pictures or videos in schools might be obvious enough, MNPS argues that it did not have any basis for suspecting that any of the particular students involved in these incidents posed a risk of engaging in such behavior. MNPS also points to the lack of evidence that its personnel, with perhaps a few exceptions, were specifically aware of an "exposing" trend among its students.
Regardless of whether particular MNPS personnel knew specifically of the use of the term "exposing," there is ample evidence to allow a jury to conclude that MNPS was on notice of the risk of the dissemination of sexual images of its students without their consent, as well as the possibility of subsequent harassment of the students depicted. First, the risk at issue in this case is an obvious and inevitable danger, given the ages of the students involved and the realities of media and communication technology in this decade. More importantly, however, MNPS schools themselves had witnessed numerous cases that confirmed that risk. One of the SROs who worked at Hunters Lane testified that he could not even put a number on how many instances of students' "sexting pictures" he had dealt with, but estimated that "maybe a dozen" had been "brought to [his] attention" from 2012 to 2017. (Docket No. 83-5 at 26.) He estimated having seen five to ten cases involving sexual videos. (Id. at 27.) In all those cases, he testified, he informed the Hunters Lane administration. (Id. ) Detective Carrigan testified that behaviors similar to those at issue in these cases have occurred in every MNPS high school and middle school, although he clarified that he was not necessarily referring to the dissemination of videos that themselves had been filmed on campus. (Docket No. 92-15 at 24-25.)
The plaintiffs sought discovery from MNPS regarding disciplinary incidents related to sexual harassment, sexual assault, inappropriate sexual behavior, and/or inappropriate sexual contact at MNPS schools from the 2012-13 school year through the 2015-16 school year. The documentation that they received showed over 950 instances of sexual harassment, over 1200 instances of inappropriate sexual behavior, 45 instances of sexual assault, and 218 instances of inappropriate sexual contact. (See Docket Nos. 92 at 16; Docket No. 92-14 1-95.) There were also numerous incidents specifically involving digital communications. Indeed, many of the incidents described involved students taking and/or distributing sexually explicit photographs or videos of themselves and/or other students. (See , e.g. , Docket No. 92-14 at 97, 102, 146, 162.) Regardless of whether one might challenge those numbers on the margins, it is plain that MNPS, through its teachers and administrators, had ample reason to know that inappropriate sexual behavior, including behavior involving sexual pictures and videos, was widespread in MNPS schools.
Moreover, the events involving Mary Doe and Jane Doe in 2016 only added to the notice of the problem available to MNPS before the events involving Sally Doe and S.C. at Hunters Lane. There is also some evidence that Hunters Lane itself experienced a similar, earlier instance of the same problem, involving the circulation of the video of students engaged in sexual activity in an allegedly on-campus dugout. (See, e.g. , Docket No. 71-1 at 25; Docket No. 92-11 ¶ 11; Docket No. 92-32 at 84-91.)
MNPS would have the court erect an artificial barrier around known risks related to widespread misbehavior in favor of a rule that only imposes Title IX liability if a school was aware of a particular problem student or student group likely to commit harassment or a particular student who was especially at risk of being targeted. Nothing in the logic of Title IX or the caselaw construing it supports such a rule. The Title IX standard recognized by the Supreme Court and the Sixth Circuit looks to what is a "clearly unreasonable response in light of the known circumstances. " Vance , 231 F.3d at 260 (quoting Davis , 526 U.S. at 648, 119 S.Ct. 1661 ) (emphasis added). There is no basis for excluding from the "known circumstances" a school district's knowledge that a problem is widespread and recurring throughout its student population. Nor is there any reason to assume that Title IX categorically permits a school district to turn a blind eye to the group dynamics in which harassment sometimes thrives. See Patterson , 551 F.3d at 448-49 (holding that a school's "isolated success with individual perpetrators cannot shield [it] from liability as a matter of law" in a case where a student "suffered harassment over many school years perpetrated by various students"). Title IX requires only that the school have "enough knowledge of the harassment that it reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiff's legal claim is based." Staehling v. Metro. Gov't of Nashville & Davidson Cty. , No. 3:07-0797, 2008 WL 4279839, at *10 (M.D. Tenn. Sept. 12, 2008) (Echols, J.) (quoting Folkes v. N.Y. Coll. of Osteopathic Med. , 214 F.Supp.2d 273, 283 (E.D.N.Y. 2002) ; citing Johnson v. Galen Health Institutes, Inc. , 267 F.Supp.2d 679, 687 (W.D. Ky. 2003) ). Actual knowledge of a serious, widespread problem is at least enough to allow a district to reasonably respond in some way, even if it cannot predict or prevent every future incident.
The reasoning that MNPS wishes the court to graft into Title IX, moreover, would not be adopted by any reasonable person or entity with regard to any other risk. When a driver leaves for work in the morning, he does not know that he is likely to have a collision with a particular other driver at a particular intersection. But the driver still drives safely, because he knows of a general risk of accidents. By the same token, MNPS does not know that any particular school is likely to have a fire, but that presumably does not stop it from stocking its fire extinguishers and making sure the sprinklers work. Lack of knowledge of a more specific risk does not exonerate one from deliberate indifference to a known general risk. In any event, MNPS had more than merely a general knowledge of the risks at issue, because its disciplinary records are replete with instances of actual notice that its students might behave in the manner described by the plaintiffs.
While it may be true that MNPS did not, for the most part, have warning about the specific students addressed in these cases or the specific acts that would occur, those facts are relevant to the adequacy of the school district's preventive actions, not whether it was on sufficient notice of the risk of harassment to give rise to an obligation not to be deliberately indifferent. Because MNPS was not on notice of any risks involving these specific students, it had no obligation to take any targeted steps to preemptively protect the plaintiffs or restrain the other students involved. That lack of specific knowledge does not, however, excuse the district from its responsibility not to recklessly disregard the widespread risk of which it was aware. No one could have looked at the information available to MNPS by 2016 and doubted that it was fully on notice that it needed to be prepared to deal with the risk of sexual misconduct and harassment at its schools, including, specifically, harassment involving the electronic distribution of sexual depictions of its students. Because the plaintiffs have produced facts sufficient to establish notice of a risk of harassment, MNPS can be held liable for harms caused by its deliberate indifference to that risk.
2. Unwelcomeness of Sexual Activity
MNPS argues next that the plaintiffs' claims should fail because (1) the evidence is insufficient to show that the underlying sexual encounters were unwelcome and (2) insofar as the encounters were unwelcome, MNPS was, at least in some of the cases, not informed of that fact and therefore had no duty to respond accordingly. The plaintiffs respond that they have presented evidence that none of the underlying sexual encounters was welcome and that the plaintiffs never consented to the creation and dissemination of the videos.
MNPS is correct that the Sixth Circuit has suggested, at least in an unpublished case, Winzer v. School District for the City of Pontiac , that "sexual activity among students who are voluntary participants, absent any evidence of unwelcome sexual advances," is insufficient to support a Title IX sexual harassment claim. 105 F. App'x 679, 681 (6th Cir. 2004). What MNPS's argument neglects to account for, however, is that that rule, by its own language, assumes voluntary participation, not in merely some sexual behavior, but in the specific behavior at issue in the claim. Courts have recognized that circulation of sexual videos and related harassment can give rise to distinct Title IX issues, even if a school is not liable, under Title IX, for claims related to the initial underlying sexual encounter. See, e.g. , Butters v. James Madison Univ. , 145 F.Supp.3d 610, 618, 621 (W.D. Va. 2015) (recognizing Title IX claim based on circulation of video of off-campus sexual assault, despite plaintiff's conceding that the school did not have liability for the assault). By the same principle, a student can allege harassment related to the non-consensual circulation of her sexually suggestive or explicit photos, regardless of whether she played a role in the creation of the photos or even took them herself. See, e.g. , Doe v. Town of Stoughton , No. CIV.A. 12-10467-PBS, 2013 WL 6498959, at *2 (D. Mass. Dec. 10, 2013) ; Logan v. Sycamore Cmty. Sch. Bd. of Educ. , No. 1:09-CV-00885, 2012 WL 2011037, at *6 (S.D. Ohio June 5, 2012).
The circulation of sexual photos or videos is a distinct set of events that must be considered in its own right for any Title IX implications. For MNPS's defense to prevail, then, the plaintiffs would need to have been voluntary participants, not only in the sexual encounters, but also in the creation and dissemination of the videos. The plaintiffs, however, were not voluntary participants in the circulation of the videos. Many were unaware that they were being taped, and others came to notice or suspect taping only after it had begun. None of the plaintiffs, however, actively assented to being taped or voluntarily participated in the video's circulation.
There are, moreover, disputed issues of fact with regard to whether the underlying sexual encounters involved elements of unwelcomeness that might support a finding of harassment, particularly in light of the plaintiffs' affidavits. All of the plaintiffs have characterized the underlying encounters as at least unwelcome. Even the caselaw cited by MNPS makes clear that "unwelcome sexual advances" can form the basis of liability, despite the fact that a student ultimately voluntarily participates in sexual activity with a party making those advances. Winzer , 105 F. App'x at 681. Indeed, it is well-settled that "the fact that sex-related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit." Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) ; accord Wisniewski v. Pontiac Sch. Dist. , 862 F.Supp.2d 586, 597 (E.D. Mich. 2012) ; see also J.M. ex rel. Morris v. Hilldale Indep. Sch. Dist. No. 1-29 , 397 F. App'x 445, 455 (10th Cir. 2010) (acknowledging that consent did not preclude a finding of actionable harassment under Title IX); Chancellor v. Pottsgrove Sch. Dist. , 529 F.Supp.2d 571, 576 (E.D. Pa. 2008) (explaining, in Title IX case, that, based on the allegations at issue, "consent [was] not a defense"); cf. Bouveng v. NYG Capital LLC , 175 F.Supp.3d 280, 312 (S.D.N.Y. 2016) (explaining differences in elements between sexual harassment and sexual battery).
The Sixth Circuit's mention, in Winzer , of "unwelcome sexual advances" recognizes two layers of complexity that a myopic focus on consent to sexual contact would fail to take into account. First, by acknowledging that sexual advances may have been unwelcome, regardless of the existence of later voluntary sexual activity, the Sixth Circuit has recognized that sexual interactions may be multi-staged and multi-faceted; consent at one stage does not necessarily imply consent or welcomeness at every other. Second, by emphasizing the issue of welcomeness, rather than merely consent, the Sixth Circuit accounts for the fact that, even if sexual activity is consensual, the underlying interaction may be sufficiently unwanted or unwelcome that its intrusion into an educational setting can contribute to an environment of discriminatory harassment. For example, a student might face unwanted, harassing sexual overtures but ultimately consent to sexual activity out of a sense of social pressure. The student's decision to engage in the sex act itself, however, does not absolve the school of its responsibility to take appropriate steps to address the environment that allowed the unwanted advance to happen, if it has notice that a discriminatory environment had arisen. For the same reason, an environment in which girls consent to sex but are then subjected to severe, gendered harassment and humiliation is not rendered Title IX-compliant by the initial consent.
The circulation of private sexual videos without consent, alone, would be sufficient to preserve a Title IX claim from a defense based on the voluntariness of the underlying sexual activity. Moreover, enough questions exist regarding the characterization of the underlying sexual encounters that the court cannot conclude, for the purposes of summary judgment, that all aspects of those encounters were welcome. The court, accordingly, will not grant MNPS summary judgment on that ground.
3. Basis of Sex
MNPS argues next that the circulation of the videos depicting the plaintiffs cannot form the basis of a Title IX claim because the videos depicted both the plaintiffs and the boys involved and, therefore, humiliated, exposed, and/or otherwise interfered with the education of male and female students equally. Accordingly, any harm that the plaintiffs suffered would not have been on the basis of sex, and the plaintiffs' claims would fail because they cannot establish causation.
As the Sixth Circuit has recognized, where harassment involves actions of an explicitly sexual or gendered nature, the question of whether that harassment amounted to sex discrimination is different than it would be in a case where, for example, a supervisor, teacher, or peer was simply accused of being abusive to others in a non-sexual, gender-neutral way. See Gallagher v. C.H. Robinson Worldwide, Inc. , 567 F.3d 263, 271 (6th Cir. 2009) ; see also David S. Schwartz, When Is Sex Because of Sex? The Causation Problem in Sexual Harassment Law , 150 U. Pa. L. Rev. 1697, 1700 (2002) (observing that courts have generally recognized that "sexual conduct per se establishe[s] the 'causation' element necessary under Title VII to prove that the conduct was 'because of sex.' "). In a case involving abusive but non-sexual, facially gender-neutral behavior, it is necessary for the plaintiff to introduce additional facts establishing that the abusive behavior was somehow discriminatorily applied-for example, that a supervisor was abusive toward women more often than men. Otherwise, while the behavior may have been worthy of condemnation-and may even have been "harassment," as the term is commonly used-the behavior would not have been discriminatory. Gallagher , 567 F.3d at 272. Abusive behavior that is explicitly sexual or gender-coded in nature, however, may have a discriminatory effect, even if it is technically visited upon men as well as women. For example, the Sixth Circuit has recognized that the public use of " 'sex specific' words," such as " 'bitch,' 'whore,' and 'cunt' that...may be more degrading to women than men" may, if sufficiently severe and pervasive, amount to sexual harassment, even if men are exposed to the words as often as women. Id. (quoting Reeves v. C.H. Robinson Worldwide, Inc. , 525 F.3d 1139, 1144 (11th Cir. 2008), reh'g en banc granted, opinion vacated , 569 F.3d 1290 (11th Cir. 2009), same result reached on reh'g en banc , 594 F.3d 798 (11th Cir. 2010) ).
Although both male and female students had their privacy violated by these events, the plaintiffs' claims under Title IX are not based on the bare violation of their privacy interests. Under Title IX, what matters is whether the plaintiffs' educations were disrupted in a manner that amounted to discrimination. In order for MNPS's argument to succeed, then, the facts would have to suggest that male and female students faced the same level of educational disruption from being the subjects of circulated sexual videos. The plaintiffs, however, have produced ample evidence based on which a jury could find to the contrary. The girls describe being called graphic, obviously gendered names in the wake of the tapings. The sexual and social dynamics they describe are not ones that treated male and female students equally in terms of the stigma and embarrassment associated with the dissemination of sexual recordings. To the contrary, the bullying described follows the easily recognizable script of treating women and girls as uniquely tainted and lessened by their engagement in sexual activity-a dynamic with which MNPS administrators, as ordinary people living in the world, were undoubtedly familiar. A reasonable juror, therefore, could conclude that male and female students were not harmed equally by MNPS's failure to prevent the development of a culture of digital sexual humiliation in its schools.
MNPS argues next that the circulation of the videos, at least in some of the cases, could not amount to sexual harassment because there is evidence that the students engaged in circulating them were motivated by "personal animus," which MNPS suggests is mutually exclusive with sexual harassment. MNPS's argument appears to be based on assumption-unsupported by caselaw-that the determinative question with regard to causation in a sexual harassment case is the harasser's subjective understanding of his or her own motivations. To the contrary, the Supreme Court has explained that a court must look to the "real social impact of...behavior," "judged from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances.' " Oncale , 523 U.S. at 75, 118 S.Ct. 998 (quoting Harris v. Forklift Sys., Inc. , 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ). Accordingly, while sexual harassment-in the words of the case MNPS cites in support of this argument-must be "gender-oriented ," Davis , 526 U.S. at 651, 119 S.Ct. 1661 (emphasis added), that determination can be made, "irrespective of the harasser's motivation." Gallagher , 567 F.3d at 271. Harassers may have any of a range of personal motivations-desire, revenge, peer pressure, jealousy, or even just general sadism, to name a few. All of those motivations, however, can play a role in driving discriminatory behavior. A person seeking revenge, for example, might find gendered sexual humiliation to be a particularly effective tool for tormenting her target. If the content and nature of harassment is gender-oriented and results in a denial of equal educational benefits on the basis of sex, the murky depths of the harasser's psychology are no defense to a Title IX claim. That is particularly true where, as here, the harasser is not even an employee of the defendant, and the defendant is being sued based on its institutional failures, not the motivation of any one person. Because a reasonable juror could conclude that the harassment in these cases amounted to discrimination on the basis of sex, MNPS is not entitled to summary judgment in that regard.
4. Severity/Pervasiveness
MNPS argues next that the behavior to which the plaintiffs were subjected was not sufficiently severe or pervasive to give rise to a claim for sexual harassment. "[W]hile 'severe and pervasive conduct' is a familiar phrase-one borrowed from the 'hostile work environment' jurisprudence of Title VII-it has a distinct application in Title IX." Hoffman v. Saginaw Pub. Sch. , No. 12-10354, 2012 WL 2450805, at *6 (E.D. Mich. June 27, 2012) (citing Meritor Sav. Bank , 477 U.S. at 67, 106 S.Ct. 2399 ; Davis , 526 U.S. at 651, 119 S.Ct. 1661 ). A school is not perfectly analogous to a workplace, and minor students are not perfectly analogous to adults. Accordingly, some behaviors that plainly would be out of place in a workplace may be tolerable in a school setting as part of the ordinary social development of the school's students. See Davis , 526 U.S. at 651-52, 119 S.Ct. 1661 (noting that, because, "at least early on, students are still learning how to interact appropriately with their peers," it is unsurprising that they may "engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting"). As in the Title VII context, however, the line between what gives rise to a cause of action and what does not is determined, not by some abstract question of what behavior is acceptable, but rather by returning to the conceptual basis of the statutory protection at issue: discrimination. Accordingly, while it may be impossible to ensure that students will never be cruel, inappropriate, or unfair with their peers, a cause of action arises "where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect." Id. at 652, 119 S.Ct. 1661.
There can be little doubt that a juror could conclude that the conduct at issue here was severe and objectively offensive. MNPS presumably needs no reminder of the extraordinary seriousness with which our justice system treats the dissemination of graphic sexual depictions of minors. Indeed, Congress has determined that involvement in the production and distribution of child pornography may warrant imprisonment for years or even decades. See 18 U.S.C. § 2252A(b)(1). The potential psychological harms of being included in such images are well documented. See Paroline , 572 U.S. at 440, 134 S.Ct. 1710. It would be strange if criminal laws treated these matters as possessing the highest level of gravity and yet Title IX did not even consider the conduct "severe" or "objectively offensive." Unsurprisingly, then, multiple courts have found that circulation of sexual pictures or videos and accompanying harassment can rise to the level of severity necessary to support a harassment claim. See Butters , 145 F.Supp.3d at 619 ; Doe v. Town of Stoughton , No. CIV.A. 12-10467-PBS, 2013 WL 6195794, at *2 (D. Mass. Nov. 25, 2013) ; Logan , 2012 WL 2011037, at *6 ; but see Higgins v. Saavedra , No. CIV 17-0234 RB/LF, 2018 WL 327241, at *8 (D.N.M. Jan. 8, 2018) (holding that insults after circulation of video of student showering were insufficiently pervasive to give rise to a sexual harassment claim); Tyrrell v. Seaford Union Free Sch. Dist. , 792 F.Supp.2d 601, 629 (E.D.N.Y. 2011) (holding that "insults, name-calling and pushing" following circulation of picture of off-campus sexual assault were not sufficiently severe and pervasive to give rise to a Title IX claim).
What is left, then, is MNPS's argument that the harassment to which the plaintiffs were subjected was not pervasive. There is variation, among the plaintiffs, with regard to how widely they were mocked or bullied by other students after their tapes were circulated. Even for the plaintiffs whose post-video fallout was less severe, however, the initial circulation of the videos is sufficient to allow a juror to conclude that it amounted to a denial of equal access to education. Despite the fact that the caselaw speaks in terms of conduct that is "severe and pervasive" it is well settled that relatively isolated incidents, if sufficiently egregious, can satisfy the standard for sexual harassment. See Faragher v. City of Boca Raton , 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (observing that even "isolated incidents" can alter the terms and conditions of employment, if "extremely serious"). For example, "[m]ost courts which have addressed the issue have concluded that even a single incident of rape is sufficient to establish that a child was subjected to severe, pervasive, and objectively offensive sexual harassment for purposes of Title IX." Lopez v. Metro. Gov't of Nashville & Davidson Cty. , 646 F.Supp.2d 891, 913 (M.D. Tenn. 2009) (Echols, J.) (citing J.K. v. Ariz. Bd. of Regents , No. CV 06-916-PHX-MHM, 2008 WL 4446712, at *12 (D. Ariz. 2008) ; Kelly v. Yale Univ. , No. Civ.A. 3:01-CV-1591, 2003 WL 1563424, at *3 (D. Conn. 2003) ; Doe v. Dallas Indep. Sch. Dist. , No. CIV.A.3:01-CV-1092-R, 2002 WL 1592694, at *6-7 (N.D. Tex. 2002) ; Ross v. Mercer Univ. , 506 F.Supp.2d 1325, 1358 (M.D. Ga. 2007) ). While the cases currently before the court do not include allegations of forcible rape, they do involve substantial violations of the students' sexual autonomy, which is relevant to just how pervasive the ensuing conduct needed to be to rise to the level of actionable harassment.
Moreover, it is inaccurate to characterize these cases as involving simple, isolated events. Being taped during sexual activity without permission would be an isolated event. The video's being sent to another person is a second event. The next transmission is a third. Although the evidence does not (and likely never could) show how widely the plaintiffs' videos were circulated, there is ample evidence that the circulation, or at least the availability, of the videos was widespread. Indeed, the impossibility of knowing how widely the videos were disseminated is part of why the conduct was so serious. In a contemporary high school, there is little that is more "pervasive" than electronic communication.
The court notes, also, that, insofar as the plaintiffs were taunted less in the wake of the circulation of the videos than they could have been, that was largely the result of most of their parents' perceiving the humiliation that their children were likely to face-as well as the schools' apparent inability to prevent that humiliation-and quickly withdrawing the students from the schools. If anything, MNPS's attempted defense is only possible because the underlying situations got so out of control, so fast, that the students fled. A reasonable juror could conclude that, by the time they did so, the harassment had already reached an actionable level.
For the foregoing reasons, the evidence is sufficient for a reasonable juror to conclude that the conduct to which each of the plaintiffs was subjected was so severe, pervasive, and objectively offensive that it denied her equal access to education. The court, accordingly, will not grant MNPS summary judgment on that ground.
5. Deliberate Indifference
Finally, MNPS argues that, even if claims of the type plaintiffs have raised might, in theory, be viable, they have not identified facts sufficient for a jury to conclude that MNPS's actions, either before or after the videos of the plaintiffs were circulated, were deliberately indifferent. In order to establish deliberate indifference, a plaintiff must show that school administrators responded to the known risk of harassment in a way that was "clearly unreasonable in light of the known circumstances." Davis , 526 U.S. at 648, 119 S.Ct. 1661.
As the plaintiffs' evidence makes clear, the problem of students' creation and circulation of sexual images and videos is widespread in MNPS. The district's approach to such matters, therefore, potentially implicates the education and futures of numerous students-including both the students depicted and those who circulated the videos. The Sixth Circuit has stressed that, while a district facing known sexual harassment "must respond and must do so reasonably in light of the known circumstances," "no particular response is required" in order to comply with Title IX. Vance , 231 F.3d at 260-61 (emphasis added). Accordingly, "courts should avoid second-guessing school administrators' " selection of one particular policy or response over another. Stiles ex rel. D.S. v. Grainger Cty., Tenn. , 819 F.3d 834, 848 (6th Cir. 2016) (citing Davis , 526 U.S. at 648, 119 S.Ct. 1661 ; Vance , 231 F.3d at 260 ). The court, moreover, cannot assume that the only acceptable path is the strictest or most aggressive one, employing the harshest possible discipline against perpetrators, the most invasive surveillance of students' activities and communications, and the most rigorous and time-intensive administrative attention to the problem from school personnel. There are legitimate countervailing concerns that might lead a school district to take a more moderate approach. The bar that a plaintiff in a case such as these must clear, therefore, is high-not merely that schools could have handled matters differently or even that they could have handled them better, but that the district's decisions took it clearly outside the bounds of the reasonable execution of its duties to its students and the federal government under Title IX.
a. "Before" Claims. The plaintiffs argue that the harassment they received was, at least in part, the product of widespread failures of training, coordination, and monitoring by MNPS administrators. As a result, the plaintiffs argue, the district did not realize the depth of the problem it faced, did not train teachers or administrators on how to properly address or respond to incidents involving circulation of inappropriate student pictures or videos, and did not take adequate steps either to prevent harassment or to have in place adequate structures to support students who were the victims of it.
The plaintiffs first argue that the district's policies and poor training resulted in the failure of its Title IX coordinator to be informed of, or realize the depth of, the problems within the district regarding the circulation of sexual pictures and videos. For example, the punishment of students involved in the distribution of the video of S.C. had been coded, in MNPS's systems, as "severe disruption of school activities," a designation that did not flag them as Title IX-related and, therefore, did not result in the Title IX coordinator's being notified. (See Docket No. 92-18 at 75.) A contemporaneous e-mail exchange about the incident and surrounding events included a number of high-level administrators, including Executive Principal Kessler and MNPS Director Shawn Joseph, but did not include the Title IX coordinator. (Docket No. 92-13 at 75-78.) That misclassification and lack of involvement of the coordinator, the plaintiffs argue, was typical.
In her deposition in these cases, McCargar, as the Title IX coordinator at the relevant times, was questioned about when a principal should consider events involving on-campus sexual activity and filming to implicate Title IX. She explained that her position was that, if sexual activity at school was consensual, then that activity would not, in and of itself, amount to a Title IX issue and would not need to be reported to her. She continued that the consensual taping of sexual activity also would not, in and of itself, be a Title IX issue that would require the involvement of the Title IX coordinator. McCargar, however, conceded that, if a tape of students engaged in sexual activity were circulated on social media and it led to the students' being harassed at school, "the potential for a Title IX compliance issue would come into place." (Docket No. 92-25 at 74, 77-89.)
Finally, McCargar was asked whether she, as Title IX coordinator, "t[ook] any steps to ensure that there was any punishment sufficient to deter sexual videotaping of students and/or dissemination of sexting pictures of students." She responded:
Well, first thing, I actually was not aware that that activity was going on. I hadn't heard about it, no. So-so my answer would be, no, I didn't do anything, because, first thing, I wasn't even aware it was going on. And as far as any kind of discipline if that activity had been going on, I didn't get involved with that because I didn't know the activity was going on.
(Id. at 121-22.) She clarified shortly thereafter that she had been generally aware of some "incidents like this, but no one specifically told [her] about specific incidents or how numerous they were." (Id. at 138.) When asked whether she considered it "a problem that the Title IX coordinator [wa]sn't made aware that this type of activity was going on and therefore could not take steps to try to remediate the behavior," she replied, "Let's say that I-if I had to look at it now, I wish I knew that there were these incidents, but I didn't know." (Id. at 122.)
McCargar's successor, Dyer, provided some context regarding how the Title IX coordinator's duties were structured during the relevant time period. Dyer explained that, while MNPS, as required, did have a designated Title IX coordinator, Title IX coordinator was not that person's sole job. Rather, the duties of Title IX coordinator were rolled into the job of the executive director of federal programs, who is responsible for ensuring that federal funding from all applicable federal programs, not just Title IX, is obtained and integrated into MNPS's budget. (Docket No. 92-18 at 22.) Title IX does not require the Title IX coordinator to perform that job full-time. The April 24, 2015 Dear Colleague Letter, however, addressed the benefits of doing so:
Designating a full-time Title IX coordinator will minimize the risk of a conflict of interest and in many cases ensure sufficient time is available to perform all the role's responsibilities. If a recipient designates one employee to coordinate the recipient's compliance with Title IX and other related laws, it is critical that the employee has the qualifications, training, authority, and time to address all complaints throughout the institution, including those raising Title IX issues.
(Docket No. 1-5 at 3.) Dyer admitted that there were many days when she did not devote any time to Title IX matters, with weeks sometimes passing without her performing any Title IX-specific duties. (Docket No. 92-18 at 22, 36.) When asked whether it was "true that [she] spend[s] most of [her] time making sure that [the multimillion-dollar federal funding figure for a particular year] is received by [the] Metro school system," Dyer responded, "Yes." (Id. at 23.) When asked about the division of responsibilities between principals and the coordinator, Dyer's position largely echoed McCargar's, with the coordinator's responsibilities only arising after a principal affirmatively determined that a violation occurred. (Id. at 64-65.) She confirmed that she, like McCargar, was not made aware of the incidents at issue in these cases. (Id. at 89-91.)
Despite the fact that MNPS's policies relied on principals to involve the Title IX coordinator, Kessler testified that she could not remember contacting the coordinator, in her capacity as principal of Hunters Lane, about any Title IX issue at any point during the 2016-17 school year. (Docket No. 92-21 at 37.) When asked why the incident involving S.C. had not been treated as an instance of harassment under Title IX, Kessler explained as follows:
Kessler: Because the...situation was a consensual sexual act. She also consented to be videotaped. When I dealt with the situation, it was only dealing with that particular incident, and then she didn't return back to school. She was issued a penalty, et cetera. But sexual ha