8th Circuit Takes a Narrow View of Actionable Anti-Gay Taunting Under Title IX

A unanimous U.S. Court of Appeals 8th Circuit panel ruled in Wolfe v. Fayetteville, Arkansas, School District, 2011 Westlaw 3444555 (Aug. 9, 2011), that a public school student seeking to hold the school district liable for sexual harassment under Title IX, 20 U.S.C. Section 1681, must show that the harassment he suffered was motivated by his sex or his failure to conform to gender stereotypes.  Rejecting a challenge to the trial judge's jury instructions, the court affirmed a jury verdict in favor of the school district, despite uncontradicted evidence that the student was subjected so such a continuing barrage of anti-gay epithets and some physical attacks that he withdrew from school in the 10th grade to pursue a General Education Diploma through home study because he felt unsafe at school.

According to the opinion for the court by Judge Kermit Bye, William Wolfe was "ridiculed at the hands of his fellow students on numerous occasions" between his sixth grade and tenth grade years in the Fayetteville school district. "Beginning in sixth grade, Wolfe was harassed several time per week including pushing, shoving, name-calling, and being falsely labeled as homosexual.  The name-calling included gender-based epithets such as 'faggot,' 'queer bait,' and 'homo,' among others.  Over the years the harassment escalated.  In seventh grade, Wolfe was punched and had his head slammed into a window while riding the school bus.  In ninth grade, his classmates created a Facebook page called 'Every One [sic] That Hates Billy Wolfe.'  The picture for the Facebook group showed Wolfe's face photo-shopped onto a figure in a green fairy costume with the work 'HOMOSEXUAL' written across it.  Additionally, Wolfe's classmates graffitied highly offensive, homosexual accusations about Wolfe on bathroom walls and in classroom textbooks.  During Wolfe's last year with FSD, his tenth grade year, Wolfe got in a fight with a classmate, and two days later the classmate jumped out of a car and punched Wolfe while he was walking home from school."

Wolfe's lawsuit claimed that the district failed to take adequate steps to deal with this harassment in violation of Title IX, which provides that "no person in the United States shall, on the basis of sex, be subjected to discrimination under any education program or activity receiving Federal financial assistance."  This provision has been invoked with some success in some other cases to hold schools to account for severe homophobic bullying of gay students.  However, there is no settled Supreme Court precedent dealing with the precise proof requirements to apply the statute, apart from a holding that a school district which did not itself act in a discriminatory way could be held liable if it exhibited deliberate indifference to the known sexual harassment of a student.

In this case, Wolfe was proceeding on the theory that the harassment of him was sex-based because the anti-gay references were intended to impugn his gender or masculinity.  In defense, the school district did not deny Wolfe's factual allegations, but contended that his classmates were not taunting and harassing him because of his sex but rather because of his own bullying behavior and unpopularity.  The jury, having been charged by the trial judge that in order to find a violation of the statute it had to find that the harassment was motivated "by Wolfe's gender or his failure to conform to stereotypical male characteristics," drawing on precedents from workplace harassment cases under Title VII of the Civil Rights Act, concluded that Wolfe had not made out his case and rendered a verdict for the school district.

On  appeal, Wolfe's main argument was that the trial judge in the Western District of Arkansas had not correctly instructed the jury, having rejected Wolfe's proposed jury instruction.  Wrote Judge Bye, "Wolfe suggests it would be sufficient under Title IX to show the harassers used name-calling and spread rumors in an effort to debase his masculinity and thus contends the district court erred in instructing the jury it had to find gender or the failure to conform to gender stereotypes as the harasser's motivation to hold FSD liable." 

The court of appeals disagreed with Wolf, invoking the Supreme Court's famous same-sex harassment ruling in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), where the Court held that same-sex harassment was actionable under Title VII if the plaintiff could prove that the harassment he suffered was "because of sex."  While conceding that the operative wording of Title IX and Title VII differs, nonetheless the 8th Circuit court found that the phrases used are virtually interchangeable and that a fair reading of Title IX also requires a showing of such motivation.

Wolfe had also argued that the trial judge incorrectly failed to instruct the jury on Wolfe's theory of the case, but the 8th Circuit found that Wolfe's proposed instruction on his theory of the case was not "consistent with the law," and that Wolfe had failed to cite any legal authority supporting his theory that Title IX would be violated by showing that the plaintiff had been the subject of name-calling which "attacks the student's masculinity." 

The court also rejected Wolfe's argument that the trial court committed reversible error by empaneling a 12-person jury rather than the more usual 6-person jury for a federal civil trial.  The trial court had responded to the defendants' argument that because Wolfe had gone to the press with his story and generated significant media attention, it was possible that a 6-person jury would be too easily swayed by the notoriety of the case, and a 12-person jury would be less subject to pressure.  The court of appeals found that there was nothing in the law to support the argument that a plaintiff has some entitlement to a smaller jury.

Judge Bye does not comment about the facts beyond reciting them.  However, it is noteworthy that when junior and senior high school students are angry at a fellow student and want to harass and embarrass him to punish him for bad behavior, they resort to homophobic epithets and taunts.  The worst thing you can call somebody at that age is a "faggot."  This remains part of the public school culture that contributes to teen suicide.  Unfortunately, Title IX as construed by this court does not necessarily incentivize schools to take sufficient action in such situations, because of the focus on the motivation of the harassers rather than the impact on the victim of the harassment.  Some proposals have been made to amend federal law to place a legal obligation on school districts to take appropriate steps to protect students from harassment, regardless of the issue of motivation.  This ruling could be Exhibit A in favor of the need for such legislation.  Whatever sins this student committed in the eyes of his peers, one doubts they would justify permitting such intense harassment that he would feel compelled to withdraw from school due to feeling unsafe and unprotected after suffering physical attacks.

Wolfe was represented on the appeal by Arthur Benson of Kansas City.  The school district was represented by Christopher Heller.

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