Ruling on pretrial motions in a case brought by the estate of a student who committed suicide after allegedly suffering severe harassment from fellow students at a public school, Chief U.S. District Judge Glenn T. Suddaby (N.D.N.Y.) allowed the plaintiff to amend the complaint to add a Title IX cause of action for sex discrimination by an educational institution, based on the homophobic nature of slurs aimed at the decedent in Estate of D.B. v. Thousand Islands Central School District, 2016 U.S. Dist. LEXIS 32054, 2016 WL 945350 (March 14, 2016), but only because the proposed amendment does not allege that the student was gay.
Judge Suddaby’s opinion lacks any coherent narration of the facts, only mentioning individual factual allegations in passing while analyzing the various motions before the court. From what one discerns, however, the case concerns a male public school student who was subjected to bullying and harassment by fellow-students, that school officials failed to protect him, and that he committed suicide at home.
The original complaint alleged violations of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act, the 14th Amendment, the Individuals with Disabilities Education Act, the New York State Education Law and the N.Y. Dignity for All Students Act. The opinion does not identify the nature of D.B.’s alleged disability. The First Amended complaint sought to add sex discrimination claims under federal and state law, most significantly Title IX of the Education Amendments Act, which the U.S. Department of Education has construed to protect gay students from bullying and harassment. There are also state law tort claims alleging infliction of emotional distress and negligent supervision. The defendants raised a variety of jurisdictional and procedural arguments in support of their motion to dismiss, and opposed the cross-motion to add new counts, including the Title IX count. The opinion is mainly interesting for the way in which Judge Suddaby analyzed the motion to add a Title IX sex discrimination claim.
Judge Suddaby found that because of 2nd Circuit precedent rejecting the idea that sexual orientation discrimination is actionable as sex discrimination under federal statutes, a student who is harassed with homophobic slurs would have an action under Title IX if the student alleged that the harassment was due to his incorrectly perceived sexual orientation but not his actual homosexual orientation!
There is a sort of “Through the Looking Glass” quality to the judge’s discussion of the Title IX claim. For example, the judge rejects the allegation that calling a boy a “pussy” could be seen as a sexually-related slur. The complaint alleges: “[Another student] called the Decedent a ‘pussy,’ and told him ‘You’re a pussy and you need the shit kicked out of you.’ These are the types of anti-gay and gender-related slurs Decedent was consistently subjected to.’” Judge Suddaby begs to differ. “As shocking as this slur may be,” he wrote, “the Court is not persuaded that it is related to gender under the circumstances. Rather, as Defendants point out, the slur ‘pussy’ is more likely to mean ‘coward’ than anything gender related. Even if the other student did intend the slur to relate to gender, Plaintiff has not made a proper showing of that fact. Rather, most of Plaintiff’s reference to ‘gender-related slurs’ are nothing more than conclusory statements.”
On the other hand, Judge Suddaby accepted the argument that explicitly homophobic slurs could support a “gender stereotyping” claim of sex discrimination under Title IX, provided that the plaintiff was not gay! “The Second Circuit recognizes a fine line between gender stereotyping and bootstrapping protection for sexual orientation,” he wrote. “Because a Title IX sex discrimination claim is treated in much the same way as a Title VII sex discrimination claim, Title VII jurisprudence therefore applies. Under the ‘gender stereotyping’ theory of liability under Title VII, individuals who fail or refuse to comply with socially accepted gender roles are members of a protected class. However, courts in the Second Circuit do not recognize sexual orientation as a protected classification under Title VII or Title IX. The critical fact under the circumstances is the actual sexual orientation of the harassed person. If the harassment consists of homophobic slurs directed at a homosexual, then a gender-stereotyping claim by that individual is improper bootstrapping. If, on the other hand, the harassment consists of homophobic slurs directed at a heterosexual, then a gender-stereotyping claim by that individual is possible.”
In this case, the plaintiff is not alleging that D.B. was gay. To the contrary, wrote Suddaby, “D.B.’s own alleged statements refer to accusations that he was homosexual as ‘stupid gay rumours [sic].’ Moreover, the Amended Complaint alleges that the bullying was based on D.B.’s ‘actual or perceived sexual orientation’ and his ‘perceived and/or presumed sexual orientation.’ Under the circumstances, the Amended Complaint alleges facts plausibly suggesting a gender-stereotyping claim to survive a [dismissal] motion; and the amendment to include this claim is not futile. As a result, Plaintiff’s cross-motion to amend is granted as to the inclusion of the Title IX claim.”
The judge rejected the rather bizarre argument that certain federal claims should be dismissed for failure to exhaust administrative remedies, in light of the difficulty of a deceased person pursuing administrative remedies. But he accepted the argument that the negligent supervision claim could not apply to the suicide, as such, because D.B. took his life at home, not at school. On the other hand, this tort claim could extend to the alleged failures of school officials to respond to the ongoing bullying of D.B. The court rejected plaintiff’s motion to add claims under the N.Y. Civil Rights Law, on the ground that statutory notice of claims had not been served on the school district as a jurisdictional prerequisite to filing suit.
The opinion reflects the retrograde state of the law within the federal 2nd Circuit as a result of a 2000 court of appeals decision, Simonton v. Runyon, which rejected a Title VII sex discrimination brought by a gay plaintiff subjected to sexually-oriented workplace harassment. Attempts are under way to get the Circuit to reconsider this precedent in the context of ongoing litigation asserting sexual orientation discrimination claims under federal sex discrimination statutes, in line with a ruling by the Equal Employment Opportunity Commission in July 2015 that sexual orientation discrimination is “necessarily” sex discrimination in violation of Title VII. EEOC rulings are not binding on the courts, however, and the persuasiveness of this particular EEOC ruling is somewhat compromised by the fact that it represents a reversal of almost half a century of agency precedent.
The Estate of D.B. is represented by Michael D. Meth of Chester, N.Y. Charles C. Spagnoli and Frank W. Miller of East Syracuse represent the school district. Judge Suddaby was appointed to the district court by President George W. Bush during the last year of his second term in office.