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J.J. v. Olympia School District

United States District Court, W.D. Washington

January 24, 2017

J.J., individually; and AMANDA JACKSON, individually, Plaintiffs,



         This 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.


         On 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.

         On June 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.


         Plaintiffs' 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.

         A. Hazing Culture in Athletic Program

         Prior 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.

         There 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 official.

         B. 2010 Harassment at Seaside, Oregon

         In 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. Id.

         On the 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.

         The 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.

         C. 2012 Harassment at Western Washington University

         In 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, 123.

         During 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.

         After 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.

         The 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. Id.

         The 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.


         A. Summary Judgment Standard

         Summary 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. 1987).

         The 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).

         B. Title IX

         The 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).

         Plaintiffs' 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, ...

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