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Title IX Assists Hazed High School Student-Athlete

State law scuttles a hazing-related lawsuit, but Title IX comes to an abused teen's rescue.

During the past few years, an increasing number of high schools have begun to hold preseason sports camps. While such camps are considered useful in promoting team spirit, as well as improving athletic fundamentals, coaches also need to be aware of the possibility that "team spirit" can spiral out of control.

Many cases of hazing start with activities that are harmless and are meant to make new members feel "part of the team," but these can often escalate and involve inappropriate and even dangerous behaviors. While many coaches and school administrators believe that they are immune from student-on-student hazing and harassment, Roe v. Gustine Unified School District, et al. (2009 U.S. Dist. LEXIS 118880) illustrates that even state immunity statutes cannot protect them from every claim.

The unnamed plaintiff, known in court documents as John Roe, was a high school freshman when he signed up to participate in the Gustine High School preseason football camp. Attendance at the camp was voluntary for team members, who prior to the camp were required to sign a waiver. While at camp, the athletes' on- and off-field behavior was supervised by GHS football coaches.

While participating in the camp, Roe (who was not the only player hazed or assaulted) was subjected to five incidents of hazing. He was assaulted in the locker room and then held down while teammates inserted an air pump into his rectum; while in the shower, he was grabbed and pushed while being called sexual names; he was subjected to a pillow fight in which pillow cases were filled with heavy objects and used to attack teammates; he endured flashing incidents, where upperclassmen repeatedly exposed their genitals to players on and off the field; and last, he was the repeated victim of verbal harassment.

During the camp, at least 15 other students were assaulted by the same group of upperclassmen. One of the incidents was even observed by the team's head coach, Carl Scudder, who witnessed the group of upperclassmen running across the gym to pin another teammate down and put the air pump up the boy's shorts. Although Scudder reprimanded the boys and confiscated the air pump, he failed to investigate the incident or take any disciplinary action. A few days after the camp, during a regular practice, one of the assistant coaches, Adam Cano, overheard some of the players talking about the things that had been done to Roe during camp. The next day, Cano called the school's principal, Dennis Shaw, saying that they needed to speak about the incidents, and they met a few days later. Shaw reported the incidents to the Gustine Police Department, and initiated expulsion proceedings against the group of students involved in the hazing. As a result of the hazing and verbal abuse he endured because of the ongoing investigation, Roe eventually transferred out of Gustine High School.

Roe filed a complaint against the school district, as well as the GHS football coaches, claiming various state-law actions such as negligent supervision, sexual battery and sex discrimination. In addition, he filed federal claims for sexual discrimination under Title IX. In response, the school district and coaches claimed that they were immune from all federal and state claims under the California Education Code. Section 35330 of the code provides that "all persons making the field trip or excursion shall be deemed to have waived all claims against the district, a charter school, or the State of California for injury, accidents, illness or death occurring during or by reason of the field trip or excursion."

In finding that "field trip immunity" protected the district and the coaches from all state-law claims, the court ruled that the statute and case law clearly intended to extend this immunity to school-sponsored activities such as camps. In addition, the court found that the immunity covered all state claims, not just personal injury claims. Therefore, the court granted the district and coaches summary judgment for all of Roe's various state-law actions.

In reviewing whether the immunity covered Roe's federal claims, the court ruled that applying § 35330 would completely eliminate any potential remedy for Roe under Title IX. Such an outcome, the court held, would be inconsistent with Supreme Court precedent and the legislative intent that protection of federal civil rights be encouraged. Therefore, if the district and coaches violated federal law, they could not hide behind the state field trip immunity statute.

In reviewing Roe's Title IX claims, the court held that in order for the student-on-student sexual harassment claim to succeed, he must show four elements. First, the school district must have exercised substantial control over both the harassed and the context of the events; second, Roe must have suffered sexual harassment that was so severe, pervasive and objectively offensive that it deprived him of access to the educational opportunities or benefits provided by the school; third, the school district must have had actual knowledge of the harassment; and fourth, the school must have been deliberately indifferent to the occurrences.

In applying this test to the facts, the court found that Roe satisfied the first element, since the school district, via its employees, had substantial control over Roe and the other athletes at the football camp. As for the second element, the court ruled that Roe had presented enough evidence to prove that the harassment was "severe, pervasive and objectively offensive." In addition, the court ruled that it was not necessary to show physical exclusion to demonstrate that a student has been deprived of an educational opportunity. All that is needed is for the harassment to have a concrete negative effect on the victim's education or access to school-related resources. Therefore, even though Roe continued on the team prior to leaving school and was not physically barred from an educational opportunity, a jury could find that the anxiety and fear of the incident acted to deny Roe an opportunity.

Next, the court examined the "actual knowledge" standard. While Roe had never complained to any of the coaches, the court ruled that there was no requirement that the school district employees observe acts of a sexual nature against Roe to establish actual knowledge. All that was necessary, the court held, was whether the coach had enough knowledge of the harassment that he reasonably could have responded with remedial measures to address the kind of harassment upon which Roe's legal claim was based. Therefore, since Scudder had seen inappropriate behavior that was sexual in nature between the assailants and another student, the court ruled that he did have knowledge that harassment or hazing was going on at the camp. As for the final element, the court held that the school district is only liable for damages when it remains deliberately indifferent to known acts of harassment. While the court noted that courts should refrain from second-guessing the disciplinary decisions of school administrators, the question of whether an institution acted with deliberate indifference is normally left to a jury. The court found, however, that there was evidence that Scudder did not take the appropriate steps after he observed the gym incident involving another student.

Even though the school district and coaches were able to shield themselves from liability under state law via California's field-trip immunity, it is important to note that school administrators may still be potentially liable under federal law. (The case is heading back to court for a jury trial.) Therefore, as preseason camps become more common, it is essential that coaches actively prevent all types of hazing and, if incidents are noticed, that they take immediate remedial action to prevent future incidents. With more state legislatures enacting laws prohibiting all forms of hazing, the court's decision in Roe should send a clear message that the courts are taking this kind of behavior seriously.

Legal Action

A newly formed group of fitness clubs calling itself the Charlottesville Area Fitness Club Owners' Association has sued Albemarle County, Va., and the City of Charlottesville, claiming that the county and city unlawfully awarded more than $3 million to the Piedmont Family YMCA for construction of a new pool. The suit maintains that area clubs should have been given the option, under the Virginia Public Procurement Act, of bidding on the aquatic services that will be offered by the YMCA, which is not a party to the lawsuit.

Greg Wells, CEO of the for-profit ACAC Fitness and Wellness Centers, told Charlottesville Tomorrow that the county provided no notice that there was an opportunity, while the city's notice (a legal advertisement published in October 2007) stated that only proposals submitted by nonprofit groups would be permitted. "We feel we were unjustly denied the opportunity to participate," Wells told the paper.

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