United States District Court, D. Maine
MICHAEL MCCANN, et al., on behalf of J.M., a minor, Plaintiffs,
YORK SCHOOL DEPARTMENT, et al., Defendants.
ORDER ON YORK SCHOOL DEPARTMENT'S MOTION TO
LEVY, CHIEF U.S. DISTRICT JUDGE
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”),  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.
complaint alleges the following facts, which I treat as true
for purposes of the motion to dismiss.
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). Also in 2013, the School Department
created a Section 504 Plan for J.M., which provided accommodations
for him including additional time for certain tasks and
permission to take breaks when he was feeling anxious.
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
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.
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
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. ¶
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,  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. ¶
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.
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.
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).
Title IX Claim
IX prohibits discrimination “on the basis of sex”
in educational programs that receive federal financial
assistance. 20 U.S.C.A. § 1681(a). “[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).
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.
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.
“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.”
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”).
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. 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. ...