United States District Court, W.D. Washington
J.J., individually; and AMANDA JACKSON, individually, Plaintiffs,
OLYMPIA SCHOOL DISTRICT, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Olympia School
District's (“District”) motion for partial
summary judgment. Dkt. 16. The Court has considered the
pleadings filed in support of and in opposition to the motion
and the remainder of the file and hereby grants the motion
for the reasons stated herein.
January 22, 2016, Plaintiffs J.J. and Amanda Jackson
(collectively, “Plaintiffs”) filed a complaint
against the District. Dkt. 1. Plaintiffs allege the District
failed to protect J.J. from sexualized hazing when he was a
high school student. Id. Plaintiffs assert claims
under 42 U.S.C. § 1983 and Title IX, as well as a state
law claim for negligence. Id.
14, 2016, the District filed a motion for partial summary
judgment on Plaintiffs' federal claims as stated in
Counts I and II of the complaint. Dkt. 16. On July 29, 2016,
the parties stipulated to an extension of briefing deadlines
on the District's motion to accommodate further
discovery. Dkt. 21. On October 31, 2016, Plaintiffs
responded. Dkt. 27. On November 11, 2016, the District
replied. Dkt. 33.
claims are based on (1) an ongoing culture of sexual
harassment among the male student athletes at Capital High
School, (2) sexual harassment suffered by J.J. in 2010, and
(3) sexual harassment suffered by J.J. in 2012. For the
purposes of summary judgment, the following facts are
accepted as uncontroverted and construed in the light most
favorable to Plaintiffs.
Hazing Culture in Athletic Program
to the events that precipitate this action, and from 2010 to
2012, a “hazing” ritual referred to as
“BND” (short for “Boys Next Door”)
was practiced among male student athletes at Capital High
School. The practice consisted of older student athletes
attempting to digitally penetrate the anus of a younger
athlete. See Dkt. 28 at 99.
are numerous examples suggesting that BND was a common
practice among student athletes at Capital High School.
Unidentified students created a Facebook page where they
would threaten other students with BND online. Id.
at 103. Rumors of “BND” were circulating among
the student athletes with some frequency. See Dkt.
28 at 59, 96, 102-103, 107; Dkt. 28-2 at 29. In at least one
instance, BND was inflicted on a student in the Capital High
School parking lot, with multiple student witnesses present.
Id. at 101. However, there is no evidence that,
prior to 2012, the behavior was ever reported to a school
2010 Harassment at Seaside, Oregon
2010, J.J. was invited as an incoming high school student to
join the Capital High School basketball team in Seaside,
Oregon for the team's annual summer camp. Dkt. 28 at 22.
During the camp, the student athletes slept in a barracks
near Seaside High School with their respective teams.
Id. at 23. J.J. played on the “C-team”
and slept in a room with his teammates that was separate from
“JV” and Varsity students. Id. The
C-team head coach, Kraig Lathrop, slept in the same room.
second night of the camp, J.J. returned to the room from the
shower when he was assaulted by three JV students who pinned
him to his bed and attempted to digitally penetrate him. Dkt.
28 at 26-27. J.J. was wearing only a towel at the time.
Id. During the assault, one of the JV students
kissed J.J. on the neck for approximately 30 seconds while
attempting to digitally penetrate him. Id. At some
point, another one of the JV students that assaulted J.J.
attempted to remove J.J.'s towel. Id. In
addition to J.J. and the attackers, the room was occupied by
ten to twelve other boys who did not come to J.J's aid.
Dkt. 28-2 at 41. J.J. repeatedly yelled “stop, ”
“no, ” and “get off me” at the three
older boys. Dkt. 28 at 26.
assault ended when Lathrop entered the room to order
“lights out.” Dkt. 28 at 27. Lathrop states that
he did not see the above described sexual harassment when he
entered the room. Id. at 127. J.J. confirms that
Lathrop could not have seen details of the harassment due to
the positioning of the boys in the room. Id. at 27.
Upon entering the room, Lathrop ordered “lights
out” and instructed the older boys to return to their
assigned dormitory. Id. None of the students in the
room, including J.J., reported the harassment. Id.
2012 Harassment at Western Washington University
2012, the Capital High School basketball teams attended
another summer camp hosted by Western Washington University.
As part of the camp, the coaches attended a dinner sponsored
by the University for a portion of an evening while their
high school athletes were supervised by the University's
basketball players (called “camp counselors”) and
resident assistants. See Dkt. 28 at 50, 52-53, 55,
the coaches' absence, one of Capital High School student
athletes suggested that a group of five or six players,
including J.J., “go get the freshman.”
Id. at 32. J.J. joined the group and went to a room
occupied by freshman players, where several of his teammates
went inside and began “horseplay” such as
wrestling. Id. at 33, 61. J.J. did not enter and
participate, but stayed at the door and watched while talking
with another teammate. Id. The older teammates
subjected at least one of the freshman players to BND,
see Id. at 50-51, 56-57, 61-62, 64-65, but J.J. did
not see it. Id. at 33, 61.
J.J. and the older players left the room, they were
approached by one of the University's basketball players
acting as a camp counselor who had heard the noise of the
incident. Id. at 33. When the University basketball
player asked the group what the noise was, one of the older
Capital High School teammates responded, “We were
sticking our fingers up the kids' [sic] butt.”
Id. The University basketball player then scolded
J.J. and his teammates and informed them that they could no
longer engage in such conduct. Id.
group of older Capital High School students then retired to
one of their rooms. Id. After approximately an hour,
the group decided “[l]et's get somebody
else.” Id. at 34. At that point, the group
decided they would target J.J. and, while J.J. was pinned
face down on a bed, four of J.J.'s teammates tried to
digitally penetrate him through his basketball shorts.
following morning, the coaches were informed by the camp
counselor of his interaction with J.J. and the other Capital
High School teammates. Id. at 35, 50. Upon receiving
actual notice of the harassment, the coaching staff conducted
interviews with their students, cancelled the remainder of
the team's participation at camp, reported the matter to
District personnel, and then reported it to the Washington
State's Child Protective Services and the police. Dkt.
17-8 at 3-4. After an extensive investigation, the District
determined that the student athletes had been inadequately
supervised at the time of the 2012 incident, thereby leading
the District to terminate the head of the Capital High School
basketball program, Coach Galloway. Id. at 7-8.
Summary Judgment Standard
judgment is proper only if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The moving party is entitled to judgment
as a matter of law when the nonmoving party fails to make a
sufficient showing on an essential element of a claim in the
case on which the nonmoving party has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
There is no genuine issue of fact for trial where the record,
taken as a whole, could not lead a rational trier of fact to
find for the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(nonmoving party must present specific, significant probative
evidence, not simply “some metaphysical doubt”).
See also Fed. R. Civ. P. 56(e). Conversely, a
genuine dispute over a material fact exists if there is
sufficient evidence supporting the claimed factual dispute,
requiring a judge or jury to resolve the differing versions
of the truth. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
determination of the existence of a material fact is often a
close question. The Court must consider the substantive
evidentiary burden that the nonmoving party must meet at
trial-e.g., a preponderance of the evidence in most civil
cases. Anderson, 477 U.S. at 254; T.W. Elec.
Serv., Inc., 809 F.2d at 630. The Court must resolve any
factual issues of controversy in favor of the nonmoving party
only when the facts specifically attested by that party
contradict facts specifically attested by the moving party.
The nonmoving party may not merely state that it will
discredit the moving party's evidence at trial, in the
hopes that evidence can be developed at trial to support the
claim. T.W. Elec. Serv., Inc., 809 F.2d at 630
(relying on Anderson, 477 U.S. at 255). Conclusory,
nonspecific statements in affidavits are not sufficient, and
missing facts will not be presumed. Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).
District moves for summary judgment on Plaintiff's Title
IX claims. Title IX states that no person “shall, on
the basis of sex, . . . be denied the benefits of, or be
subjected to discrimination under any education program or
activity receiving Federal financial assistance.” 20
U.S.C. § 1681(a). The Supreme Court has recognized an
implied private right of action for damages under this
provision. Davis Next Friend LaShonda D. v. Monroe Cty.
Bd. of Educ., 526 U.S. 629, 639 (1999). When such
actions arise from student-on-student harassment, a plaintiff
may recover only by showing (1) deliberate indifference, (2)
to sexual harassment, (3) of which the school district has
actual knowledge, (4) that is so severe, pervasive, and
objectively offensive, (5) that it can be said to deprive the
victims of access to the educational opportunities or
benefits provided by the school. Ray v. Antioch Unified
Sch. Dist., 107 F.Supp.2d 1165, 1169 (N.D. Cal. 2000)
(citing Davis, 526 U.S. at 650).
complaint raises three potential theories of liability under
Title IX. First, Plaintiffs suggest that from 2010 to 2012
the District was deliberately indifferent to an ongoing
custom of sexual “hazing” in its athletic
programs that resulted in the attempted digital penetration
of J.J. in 2010 and 2012. Dkt. 1 at 8. Second, Plaintiffs
allege that the District inadequately responded to known
sexual harassment against J.J. in 2010. Id. Third,