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McCann v. York School Department

United States District Court, D. Maine

February 11, 2019

MICHAEL MCCANN, et al., on behalf of J.M., a minor, Plaintiffs,
YORK SCHOOL DEPARTMENT, et al., Defendants.



         This matter is before the Court on Defendant York School Department's (“the School Department”) Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted (ECF No. 9). The School Department seeks dismissal of all three counts asserted against it in the complaint by Plaintiffs Michael and Erin McCann (“the McCanns”), [1] on behalf of their minor son, J.M. Those counts include violations of Title IX, 20 U.S.C.A. § 1681 (West 2019) (Count I), Section 504 of the Rehabilitation Act, 29 U.S.C.A. § 794 (West 2019) (Count II), and the Fourteenth Amendment of the United States Constitution (Count III). Because I conclude that the complaint states a plausible claim for violations of Title IX and Section 504, I deny the School Department's motion in part, as to Counts I and II; however, I grant the School Department's motion as to Count III.


         The complaint alleges the following facts, which I treat as true for purposes of the motion to dismiss.

         J.M. has experienced difficulties with anxiety and attention for many years. In 2013, the same year J.M. started middle school, he was diagnosed with Attention Deficit Hyperactivity Disorder - Inattentive Type (ADHD) and anxiety, which the complaint alleges qualifies as a disability under Section 504 of the Rehabilitation Act, 29 U.S.C.A. § 794 (West 2019).[2] Also in 2013, the School Department created a Section 504 Plan[3] for J.M., which provided accommodations for him including additional time for certain tasks and permission to take breaks when he was feeling anxious.

         Beginning in middle school, J.M. was subjected to bullying and harassment from fellow students because of his “perceived nonconformance with conventional gender norms and stereotypes.” ECF No. 1 ¶ 9. During one incident, which took place during a school-sponsored overnight trip with J.M.'s 7th grade class, the boys with whom J.M. shared a bunk room “defil[ed] J.M.'s pillow with their genitalia” and threw water on him, and then said that J.M. had urinated himself. Id. ¶ 10. The boys threatened to beat J.M. up if he reported them, but J.M. did tell a chaperone what had happened. The chaperone informed School Department officials about the incident.

         Later that same school year, J.M. and his parents complained to the School Department multiple times about other bullying, including an incident where one student videotaped J.M. being physically assaulted by another middle school boy. During a separate bullying incident, J.M.'s iPad was destroyed. J.M.'s parents ultimately withdrew J.M. from York Middle School at the end of his 7th grade year because they felt that the School Department had failed to adequately investigate or address the bullying issues. That summer, J.M. began seeing a mental health counselor.

         In August 2017, J.M. enrolled in 9th grade at York High School. Before the school year began, J.M.'s parents contacted the School Department to discuss changes to J.M.'s Section 504 Plan and to address J.M.'s anxiety and their concerns about his physical safety at school. The School Department did not immediately respond. Meanwhile, beginning in August, J.M. was bullied and harassed by a group of 9th grade girls and a 9th grade boy, G.M. That same group of 9th grade girls then started exchanging social media messages with J.M. and some of his friends. One message referred to G.M. as a “fag, ” and the girls then forwarded that message to G.M., who shared it with his mother. G.M.'s mother told the School Department that J.M. was bullying G.M. Shortly after that incident, G.M. told J.M. that he would have his older brother, D.M., beat up J.M. In September, G.M. and his friends' harassment of J.M. intensified. They taunted J.M. and called him names such as “bitch” and “cunt.” Id. ¶ 20. After one bullying incident in late September, J.M. became so distraught that he left school and walked home, after which J.M.'s parents reported the bullying to the school's Section 504 Coordinator and the school resource officer.

         On October 3, 2017, the School Department convened an emergency Section 504 meeting at the request of J.M.'s parents. Among those in attendance were J.M.'s parents, the Assistant Principal, who is also the school's Section 504 Coordinator, the school counselor, and several teachers. After the meeting, J.M.'s Section 504 Plan was modified to provide that the School Department would work with J.M. to identify a safe place and a trusted adult for him to go to when he felt anxiety. The new Section 504 Plan also stated that J.M. could “access the school social worker and/or his school counselor as necessary.” Id. ¶ 23.

         In the days that followed the emergency Section 504 meeting, G.M. and the 9th grade girls continued to harass J.M. and call him a “bitch” and “cunt.” Id. ¶¶ 24-25. J.M. responded by giving G.M. and the girls the middle finger, [4] after which G.M. again told J.M. that he was going to have his older brother, D.M., beat J.M. up. The McCanns told the School Department and the school resource officer about the new incidents of harassment, including which students were responsible and the fact that G.M. had been threatening assault. On October 19, J.M. told both the school's Section 504 Coordinator and the school resource officer about G.M.'s threats that D.M. would beat J.M. up, and the Section 504 Coordinator told J.M. that she would “take care of it.” Id. ¶ 29.

         At the beginning of the school day on October 20, several students warned J.M. that they had heard that D.M. planned to attack J.M. later that day. J.M. went to the school counselor and told her that D.M. planned to assault him, but the counselor did not alert anyone or take any action to intervene or prevent the assault. After talking with the counselor, J.M. went to his second period class. D.M., who was not a student in the class, walked into the classroom, pointed at J.M., and said “let's take a walk.” Id. ¶ 35. J.M. went out into the hallway, along with several other students who were yelling at J.M. that he “shouldn't have messed with G.M.” Id. ¶ 36. D.M. then physically beat J.M., including pushing him into a glass door, throwing him against a locker and pounding his head against it multiple times, and punching him repeatedly. J.M. lost consciousness during the attack and was taken by ambulance to York Hospital Emergency Room, where he was diagnosed with a head injury, several contusions, and a dislocated jaw.

         J.M. missed over three months of school as a result of his injuries. He was later found to have suffered a major concussion, was diagnosed with Post Traumatic Stress Disorder, and suffered severe emotional distress. After the assault, the Section 504 Coordinator emailed Erin McCann to acknowledge that J.M. had asked her for help. The York High School Principal also sent an email to members of the community about the assault, in which he acknowledged that the School Department had known about the “ongoing conflict” between the students involved. Id. ¶ 44.


         To withstand the School Department's 12(b)(6) motion to dismiss, the counts asserted against the School Department must be supported by “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Merely reciting elements of a claim will not do, . . . [n]or will alleging facts that are too meager, vague, or conclusory to remove the possibility of relief from the realm of conjecture.” Lydon v. Local 103, Int'l Bhd. of Elec. Workers, 770 F.3d 48, 53 (1st Cir. 2014) (internal citation and quotation marks omitted). The question is whether, after isolating and ignoring legal labels and conclusions and drawing all reasonable inferences in the pleader's favor, the complaint's well-pled facts “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012).

         A. Title IX Claim

         Title IX prohibits discrimination “on the basis of sex” in educational programs that receive federal financial assistance. 20 U.S.C.A. § 1681(a).[5] “[A] recipient of funding from the United States Department of Education may be liable for damages if ‘its deliberate indifference [to peer-on-peer sexual harassment] “subjects” its students to harassment.'” Porto v. Town of Tewksbury, 488 F.3d 67, 72 (1st Cir. 2007) (alteration in original) (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 644 (1999)). To prevail on a student-on-student sexual harassment claim under Title IX, a plaintiff must show that he was “subject to severe, pervasive, and objectively offensive sexual harassment by a school peer, ” which caused him to be deprived of “educational opportunities and benefits, ” and that the funding recipient knew of the harassment taking place in its programs but was deliberately indifferent to it. Id. at 72-73 (internal quotation marks omitted).

         The School Department argues that the complaint fails to plausibly allege that the other students' bullying and harassment of J.M. was “on the basis of sex, ” and that the School Department acted with deliberate indifference. The McCanns point to several factual allegations as supporting the conclusion that the bullying of J.M. was “sex-based.” ECF No. 14 at 6. First, in 2015, a group of boys bullied J.M. during an overnight trip, during which they defiled J.M.'s pillow with their genitals and poured water on J.M.'s pants, claiming that J.M. had urinated himself. Second, in 2017, G.M. and the 9th grade girls repeatedly called J.M. names like “bitch” and “cunt, ” which, the McCanns assert, are “derogatory terms debasing femininity.” Id. at 5. Finally, the McCanns argue that the School Department had actual notice of the harassment and that it acted with deliberate indifference by disregarding J.M.'s reports. Id. at 7-8.

         1. Sexual Harassment

         I turn first to the question of whether the complaint plausibly pleads sexual harassment. The complaint alleges that J.M. was subjected to bullying and harassment because of his “perceived nonconformance with conventional gender norms and stereotypes.” ECF No. 1 ¶¶ 9, 52. “[G]ender stereotyping” is a “variation of sex-based discrimination.” Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989)); see also Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1049 (7th Cir. 2017) (“A policy that . . . punishes [an] individual for his or her gender non-conformance . . . violates Title IX.”). Although the allegation that other students harassed J.M. because he did not conform with certain gender stereotypes is somewhat conclusory, it is supported by other factual allegations in the complaint.

         Whether “gender-oriented conduct, ” including name calling, rises to the level of sexual harassment is a factual inquiry that must be tied to the unique circumstances presented in each case. Davis, 526 U.S. at 651; compare Bowe v. Eau Claire Area Sch. Dist., No. 16-cv-746-jdp, 2017 WL 1458822, at *3 (W.D. Wis. Apr. 24, 2017) (plaintiff stated a claim for peer-to-peer sexual harassment under Title IX where complaint alleged that classmates consistently called plaintiff “gender stereotype slurs, ” like “weak, ” “fag, ” and “pussy”), with HB v. Monroe Woodbury Cent. Sch. Dist., No. 11-CV-5881 CS, 2012 WL 4477552, at *17 (S.D.N.Y. Sept. 27, 2012) (plaintiff failed to state a claim under Title IX where classmates used insults like “whore” and “bitch, ” but also called plaintiff multiple gender-neutral names and physically assaulted her “in a non-gender-specific way”). Here, multiple incidents alleged in the complaint involve “gender-oriented conduct.”

         First, the incident during the overnight trip could have resulted from gender stereotyping. The fact that other boys allegedly put their genitalia on J.M.'s pillow and accused him of urinating on himself after throwing water on him could reasonably be considered an assertion of masculinity by adolescent boys reacting to J.M.'s perceived failure to conform to a gender stereotype. See Am. Psychological Ass'n, Boys and Men Guidelines Group, “APA Guidelines for Psychological Practice with Boys and Men” 14 (2018), (observing that “[c]onstricted notions of masculinity emphasizing aggression, homophobia, and misogyny may influence boys to direct a great deal of their energy into disruptive behaviors such as bullying, homosexual taunting, and sexual harassment”).[6]

         Next, G.M.'s and the 9th grade girls' use of gendered language like “bitch” and “cunt” when bullying J.M. also appears to be gender-based. See Roy v. Correct Care Sols., LLC, No. 18-1313, 2019 WL 336515, at *7 (1st Cir. Jan. 28, 2019). A plausible inference may be drawn, based on the repeated use of derogatory words that are usually used as an insult against women, that the other students viewed J.M. as effeminate.[7] Finally, this extended period of bullying culminated with a violent assault. That assault could also have been gender-based, given that it was related to the earlier name calling and other bullying. Viewing the complaint and the history of the alleged conduct holistically, it is plausible that even conduct that appears gender-neutral was motivated by J.M.'s perceived nonconformance with gender stereotypes, given the interwoven instances of gender-based bullying. ...

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