I. INTRODUCTION
In Medieval Times, there were Castles surrounded by an outer wall separated from the rest of society by a moat with a bridge that only allowed the selected few to enter. The Castle and its occupants were considered a “walled city” that kept to itself and was virtually impenetrable. Hundreds of years later a medieval system still exists, yet not in the form of a Castle and its royal occupants but rather in the form of the School Board and its members. And like the watchmen making sure nobody bothered the fort, superintendents are left to act as buffers to any threat or liability the School Board encounters. However, when trouble arises, these superintendents and other officials of the public institution are merely seen as messengers by the school board rather than the true authoritative figures in the chain of command that they really encompass.
Such were the circumstances in Rasnick v. Dickenson County Sch. Bd. The decision in Rasnick held that under Title IX , the fact that the Superintendent did not have the authority to remedy the sexual harassment suffered by students in prior cases was a defense to the blatant ignorance of the abuse that occurred as a result of the previous events.
Title IX enforces gender equality and prohibits sex discrimination in any program or activity that receives federal financial assistance. At inception, its main objective was to protect federal resources from being used to support discriminatory practices in education programs and also to provide protection to individual citizens against those practices. Thus, individuals could not be sued under Title IX, but rather educational institutions would be held responsible for discriminatory practices.
Title IX had components that needed to be followed in order to have a redress for the wronged actions. First, a person who had authority needed to be contacted, the authority figure needed to be given notice of the wronged actions, and last, the authority figure had to be deliberately indifferent to the actions that were taking place in order to be liable under Title IX. Because Title IX did not define exactly who this person of authority could consist of and many court decisions shied away from making a determinative definition of such a person, the ambiguity of this individual created problems that would become one of the determinative elements of the unjustified holding made in Rasnick v. Dickenson County Sch. Bd.
However, in time, the courts did establish a general principal as to who fulfilled the authority prong. School authorities who have some ability to redress the problem by corrective measures should hold the educational institution liable if their deliberate indifference to the situation creates and sustains a sexually hostile environment. This establishment was agreeable with most of the cases decided by the nations highest courts determine. The court in Rasnick uses the Superintendents proposed inability to redress the problem of previous sexual harassment that had taken place at the school as an excuse for the immunity of the School Board's liability of the sexual harassment that took place because of that ignorance on the part of the school Superintendent.
First, Title IX and its purpose from inception will be discussed. Then the relevant facts and reasoning of the court's holding will be examined. This will lead to the analysis that will show how the Rasnick Court uses the Baynard case to misinterpret the authority of the Superintendent and of the notice requirement to abstain from Title IX liability.
II. BACKGROUND
Title IX was first established in the midst of the women's civil right's movement in the 1960's and 1970's when women brought bias against women in the public field to the forefront and it began to take shape as a major public policy concern. The focus on education fell secondary to the focus on unequal pay for women in the workplace as compared to their male counterparts. However, once the movement took form, several advocacy organizations started suing colleges and universities and the federal government for inhibiting the progress of women. This is the main reason Congress began to have hearings in the summer of 1970 on discrimination against women before a special House Subcommittee on Education. Nevertheless, even with all the efforts, the first attempt to add an amendment against sex discrimination to the Education Amendments of 1971 failed.
Title IX's congressional life, however, started a year later, when it was stressed that economic inequities suffered by women could be traced back to educational inequities. It was argued that the legal protection afforded by the future Title IX statute would offset the persistent, harmful discrimination suffered by women, which led them to experience a second-class citizenship in the workplace. The purpose of the Amendment was to judge people on merit instead of with regard to sex. Finally, on June 23, 1972, legislation was enacted as Title IX of the Educational Amendments Act of 1972, 20 U.S.C.A. § 1681, et seq. Surprisingly, Title IX passed without a lot of debate.
Title IX has made a progression through time of providing the elements of liability on the part of the public institution, specifically, the guidelines of who has to have notice of the problem before liability can be instituted. In 1997, “Policy Guidance” issued by the Department of Education stated that a public institution would be liable for damages if a teacher used his position of authority to aid in the carrying out of the sexual harassment. This would hold the institution liable even if school district officials did not have any knowledge that the incidents were taking place.
After its inception, more recent cases on Title IX, Gebser v. Lago Vista Indep. Sch. Dist. and Davis v. Monroe County Bd. of Educ ., defined some of the key components and redressed procedures for the statute as to who the person in “authority” to whom notice is given should be. Gebser noted that even though the school district had to have knowledge of sexual harassment, the liability could attach upon notice an appropriate person, not necessarily having to be the school or superintendent. The notice also did not have to intricate but rather should have been able to lead to knowing that the employee had knowledge of discrimination occurring.
Similarly, Davis extended Gebser's involuntariness to only hold specific “School Board” officials liable for conduct violating Title IX. Davis stated the harassment had to occur under the control and operations of the recipient public institution. In Davis, the court said that because the liability was limited to circumstances where the recipient exercised substantial control over both the harasser and the context in which the harassment occurred, the misconduct took place under an operation of the recipient. Therefore, the recipient retained substantial control over the sexual harassment.
Therefore, the guidelines on sexual harassment and the recent cases suggest that the person who has to be put on notice of the sexual harassment that is taking place does not have to be a person at the very top of the chain of command. Rather it has to be a person who has some power to provide consequences for the actions that have occurred in some way and has to only have knowledge that the problem can occur. Nowhere does it say that a full redress has to occur by the individual who is playing the “authoritative” figure in the test for liability. This is exactly the wrongful limitation the court saw in Rasnick under the following relevant facts.
III. STATEMENT OF THE CASE
Plaintiffs, Beth Ann Rasnick, Meghan Boyd, and Kayla Robbins were in the seventh grade at Clinchco Elementary School in Dickenson County, Virginia, when starting September 2000, Darrell Wayne Powers, their teacher, began to sexually abuse them. The abuse continued until April 27, 2001, when Ann Rasnick's mother found sexually explicit e-mails from Powers to her daughter, Beth. Subsequently, Mrs. Rasnick contacted the local Superintendent of schools, Danny C. Greear as well as law enforcement authorities. Powers was charged criminally and was forced to resign.
Three years earlier in the 1998-1999 school year, Donna Sykes told then Principal Counts that Powers had “done something to her daughter of a sexual nature.” Allegedly, Powers had put his hand on her daughter's back and shoulder, touching her hair, telling her how pretty she was, and that she ought to be a model. Sykes also testified after the present lawsuit was filed that her daughter told her that Powers had put his privates in her daughter's hand, which Sykes did not know during the 1998-1999 school year.
When Counts told Greear of this incident, according to counts, Greear said, “Stay away from that. If anything is handled in this situation, I'll do the handling. It could be potentially explosive' or something to that effect.” The Sykes complaint was not investigated by Greear.
In the 1999-2000 school year, according to Counts, another parent, Kathy Baker, told him that Powers “patted her on the butt or made some kind of comment about her breast or something like that last fall.” Baker testified that her daughter complained that Powers had leaned over her daughter at a computer and looked down her shirt and said “nice breast.” Again, when Counts went to Greear, Greear told him to back off the case and that Greear would handle and investigate the problem. Greear did not in fact investigate the incident but Greear contends that Counts had never told him of the incidents.
In October 2000, Beth Rasnick had made an allegation involving Powers. Mrs. Rasnick told the new Principal, Judy Compton, that Powers was involved in playing with Beth's hair and whispering to her and that Mrs. Rasnick wanted it stopped. However, Compton could not find anything in Powers' personnel files about any prior inappropriate behavior. Compton promised Mrs. Rasnick to take care of the problem.
Compton went to Powers who denied the complaint and did not inform Greear of the situation. Compton advised Beth's teacher's to tell Compton if they saw anything of an inappropriate nature from Powers.
In April of 2001, Mrs. Rasnick found Powers' inappropriate e-mails to her daughter and reported them to Greear. This lead to an immediate investigation by school authorities and law enforcement personnel. Powers was subsequently forced to resign and charged criminally. The Plaintiff's suffered posttraumatic stress due to the incident.
During the recorded events, the School Board had a sexual harassment policy set in effect. Sexual harassment was defined as “unwelcome sexual advances, requests for sexual favors, sexually motivated physical conduct or other verbal or physical conduct or communication of a sexual nature.” Some examples included graphic verbal comments about an individual's body, sexually purported conversations, sexually motivated patting, or non-propositioned sexual flirtation or propositions.
The standards set in place for a sexual harassment complaint required an investigation to take place. Subsequent to the investigation, a report was to be submitted to the superintendent and then he would have five days to issue a decision as to whether the school's sexual harassment policy was violated. The appropriate actions would then be taken and if the sexual harassment policy was determined to have been broken. As stated per policy, “the Dickenson County School Division shall take prompt, appropriate action to address and remedy the violation as well as prevent any recurrence action may include discipline up to and including expulsion or discharge.” As a safety measure, if the superintendent decided that no violation of the sexual harassment policy had taken place, the harassed parties could seek an appeal to the school board.
The Plaintiff's are suing Powers, Greear and Dickenson County Board (”School Board”) for compensatory damages under 42 U.S.C.A. § 1983 arguing that the defendants were liable for violating their constitutional rights to equal protection and due process. They also put forth a Title IX claim against the School Board. The defendants argue that defendants Compton, Greear and the School Board were “deliberately indifferent” to the risk of harm posed by Powers which in turn caused serious psychological injury to the Plaintiffs. Summary judgment was granted in favor or Compton in an earlier proceeding due to insufficient evidence of deliberate indifference in her actions as to the Plaintiff's rights. Both Greear and the School Board filed motions for summary judgment.
The School Board had two defenses to the Title IX allegation. First, they contended that under Virginia law, superintendents like Greear do not have the power to take corrective measures on behalf of the School Board. Second, they contended that even if Greear did have the power to take on such corrective measures, Greear's knowledge of prior misconduct was not sufficient evidence to prove liability as a matter of law.
According to Virginia Statute, the school boards of the schools retain “exclusive final authority” as to having the final say in the supervision of employees including dismissal, suspension and probation of such employees. Although an exception does exist for superintendents. These school officials may recommend dismissal or probation. Furthermore, superintendents have the authority to suspend teachers for up to sixty days for sexual abuse of a child or indefinitely if the teacher is criminally charged with the abuse. Both of the latter actions taken by the superintendent would be subject to a right to have a hearing in front of the school board.
In making their decisions, the court relies on Baynard v. Malone. Baynard involved a school principal who knew that a teacher had abused students in the past and had been acting inappropriately with students in the present, yet choose not to take any formal action. The principal only told the teacher to act more appropriately. The principal was found liable for being indifferent to the risk of harm from the teacher. However, both the Superintendent and the School Board were found to be innocent because the Superintendent did not have information about the teacher's wrongdoing and the School Board was not liable under Title IX, because according to the court, “Malone, did not have the power under state law to take effective action on the School Board's behalf and that ‘the principal of a public school in Virginia cannot be considered the functional equivalent of the school district'.”
The court in effect granted the School Board's motion for summary judgment as to the Title IX claim and § 1983 claim. However, the court denied summary judgment for Greear on the § 1983 complaint.
The court inferred that the court in Baynard implicitly held that only School Board members could be appropriate officials under Title IX. It was also the interpretation of the court that while Superintendents had higher authority than school principals in Virginia, only the School Board had the ultimate authority to prevent harm to students by removing Powers from his teaching position. The court also acknowledged that even though it may be a minority view, the Fourth Circuit is determinative in its view that notice has to be actual notice of a present abusive situation and not just knowledge of potential abuse.
IV. ANALYSIS OF AUTHORITY AND NOTICE IN RASNICK
The court in Rasnick wrongly concluded Greear's ultimate authority over employees, and this conclusion led to a wrongful assessment of notice and how it applied to Greear's knowledge of the sexual harassment upon which the suit was filed in this case. Furthermore, the case that Rasnick strongly relied upon, Baynard, has been criticized by several courts on its interpretation of Gebser in its relation to notice. Rasnick was wrongly decided because of their mischaracterization of the Superintendent's authority and their use of a Baynard that misinterpreted Gebser's notice provision.
“Authority to take corrective action” has to be defined in order to make sense out of the Gebser authoritative person test. According to Merriam-Webster Online Dictionary, “authority” means “power to influence or command thought, opinion, or behavior ” and “corrective” means “intend to correct.” Thus, a person has to have the power to influence behavior and has to intend to correct something in order to fall under Gebser's authoritative person test to whom notice of sexual harassment should be given.
The Superintendent in Rasnick had the power that is required in order to hold the school liable under Title IX. Under Virginia statute, Greear had the power to recommend dismissal or probation, and could also suspend Powers for up to sixty days for sexual abuse of his students. Furthermore, superintendents have the authority to suspend teachers for up to sixty days for sexual abuse of a child or indefinitely if the teacher is criminally charged with the abuse. The court in Rasnick, however, determined that only the School Board could have taken corrective measures to protect the Plaintiff's from harm. There is a major flaw in this reasoning. The court relied on Baynard and that case is distinguishable from Rasnick because Baynard involved the powers of a school principal while Rasnick involved the authority of a superintendent that is significantly higher as dictated by Virginia statute.
Other authority requires a person to have authority to even lesser degrees of control than Greear actually had in his capacity as Superintendent. In Davis, it was held school liability applied as long as the school had substantial control over the harasser and the context in which the harassment occurred. In, Hawkins v. Sarasota County Sch. Bd., it was concluded that it would be sufficient for at least two teachers and the principal to have notice of harassment in order to support a cause of action under Title IX. The Supreme Court in Gebser concluded that liability did not have to be predicated upon actual notice to the superintendent or the school board but rather upon an “appropriate person” having actual knowledge of the harassment. Gebser further cited an “appropriate person” to be one that at a minimum had authority to hear the sexual harassment complaint and could take some corrective action on the schools behalf. Snelling v. Fall Mt. Regional Sch. Dist. Further elaborated upon this principle, defining the appropriate person as someone who has the power to make corrective measures and be sufficiently high in the school's command chain. In Morlock v. West Cent. Educ. Dist., it was Further extended that authority extended to the Principal and Superintendent because both were characterized as a “building principal” responsible for the complaints under the sexual harassment policy at the school.
Therefore, Rasnick's opposition to Greear's authority gave weight for the Rasnick court to eliminate any possibility of a “should have known” guidelines to actual notice of harassment. The court in Rasnick noted that just because harassment occurred with the same teacher in a prior incident did not mean that notice was given to the incident at hand. However, that is not the view shared by many of the courts counterparts. In Johnson v. Galen Health Institutes, it was concluded that prior complaints sufficed when made by the same students even if the prior complaints did not have to do with the exact events that took place in the present complaint on which a harassment suit was brought. In Gordon v. Ottumwa Cmty. School Dist., the court also concluded that after complaints are made there is a point where school officials know that the school employee is a substantial risk to students without actual notice of the present occurring sexual harassment. In Folkes v. N.Y. College of Osteopathic Med. of N.Y. Inst. of Tech., it was reasoned that reporting of each individual incident when incidents may be numerous of a certain employee's misconduct would become inefficient and hard for the court to pinpoint as to the exact incident that the Title IX violation suit was based upon. Thus, this approach is unrealistic and would cause a detriment to the purposes of Title IX and gender equality in the public institutions. Even the dissent by Justice Michael in Baynard noted that the majority decision stretched Gebser's “actual knowledge of discrimination” clause too far in requiring knowledge of every incident of wrongdoing by the teacher rather than just knowledge of a substantial risk of abuse.
Thus, it is clearly seen that Rasnick made a mistake by mischaracterizing Greear's authority and then using that as an excuse to relinquish notice requirements. There was adequate notice given under the “substantial risk” clause and Greear should have investigated the prior complaints by Mrs. Rasnick and the other parents. If these investigations were done appropriately the further sexual harassment suffered by Beth Rasnick would not have occurred and because they did occur, the School Board should take full responsibility for intentionally ignoring the provisions of their sexual harassment policy.
V. CONCLUSION
The holding in Rasnick has opened the door and has given incentives for school officials to hide evidence of notice to school boards of violation of sexual harassment policies. By misinterpreting authority of superintendents and the notice requirement and how it establishes school board liability, the court in Rasnick has set a precedent that makes the School Board virtually immune to Title IX liability unless specific members of the School Board know of exact acts occurring. Nevertheless, superintendents and even other school officials who have the authority to take any corrective measures of employees have at least the authority to redress sexual harassment either which they know is occurring explicitly or which has a high risk of occurring. Thus, because a School Board only has a limited number of members and because numerous acts of sexual harassment are hard to pinpoint individually, the process that Rasnick advocates in order to hold school boards liable under Title IX would not only frustrate the purposes of Title IX but would also cause major problems in making timely remedies when sexual harassment violations occur.
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