JOHNSTOWN – Ferndale Area School District argues that a junior high school student did not adequately plead Title IX and 14th Amendment violations in her lawsuit, which claimed after informing school administration about harassment and threats of assault she faced regularly, the students responsible carried out their threat and she received no assistance from her school’s administration.
T.B. (by and through her natural parent and guardian, Brittany Bryner) of Cambria County first filed suit in the U.S. District Court for the Western District of Pennsylvania on July 20 versus Ferndale Area School District and Ferndale Junior/Senior High School Principal Travis Robison, both of Johnstown.
According to the lawsuit, T.B. is a female student who was previously enrolled in the Ferndale Junior/Senior High School, a school within the Ferndale Area School District into which the plaintiff moved at the beginning of the 2019-2020 school year.
“Beginning the week after Labor Day weekend in September of 2019, T.B. began getting harassed by fellow female students, R.H. and A.H. These students called T.B. disparaging names on a regular basis, including “slut” and “whore.” R.H. and A.H. also began spreading rumors in the school that T.B. had a sexually transmitted disease,” the suit stated.
“On numerous occasions, T.B. spoke with the Principal of the middle school [Robison] about the harassing conduct. Principal ignored the complaints. T.B. continued to be harassed both in school and on social media for months. She continued to inform Principal, with no redress.”
T.B. shared 1st, 3rd, and 5th Period classes with the girls in question, where she sat close to them, but the suit says their schedules and seats were never changed. At that point, T.B. began to hear rumors about being her assaulted at school by the same girls with whom she shared classes. T.B. told Principal about the rumors of being assaulted and Principal stated, “You’ll be fine” and proceeded to walk back into his office.
Subsequently, school guidance counselor Lori Dodson, called T.B. into her office to discuss the rumors Dodson heard about T.B. being assaulted at school. At that time, the suit states Dodson told T.B. that she wouldn’t let that happen and would take care of it.
“On or about Jan. 21, 2020, Principal implemented a 10-foot rule between T.B., R.H. and A.H. The following day, Jan. 22, 2020, T.B. was assaulted by K.K., the sister of R.H. The assault occurred in the hallway, and there was no adult supervision at the time. K.K. has a history of violence and engaging in harassing, bullying, and assaultive behavior within the school,” per the suit.
“K.K. is known to fight with and for her sister, R.H. As a result of the assault, T.B. developed a concussion and was unable to participate in physical activities for approximately one month from Jan. 22, 2020 until Feb. 21, 2020. Ms. Bryner withdrew T.B. from school, after learning of the assault, on Jan. 22, 2020.”
As a result of the assault, T.B. suffered a concussion, psychological trauma, mental anguish, humiliation and emotional distress.
UPDATE
The Ferndale Area School District filed a motion to dismiss the suit on Sept. 18, claiming it did not violate the minor plaintiff’s rights.
“Plaintiff fails to plead facts that establish that sexual harassment occurred, that the alleged acts of sexual harassment occurred during school hours and/or on school grounds, that the District had actual knowledge of the harassment, that the District was deliberately indifferent to the alleged harassment, or that the harassment was so severe, pervasive and objectively offensive that it deprived plaintiff of access to educational opportunities or benefits provided by the District. As such, the complaint fails to state a Title IX claim for relief that is plausible on its face,” the dismissal motion read.
Further, the District said the actions against T.B. were committed by students and not by Robison as a state actor, thus nullifying her 14th Amendment violation claim.
“Plaintiff has not alleged that she brought previously forward complaints and/or alleged bullying or other type of improper conduct between herself and K.K. that would otherwise need to be investigated by Mr. Robison or the District. More importantly, plaintiff cannot assert a procedural due process claim because she cannot allege an essential element of that claim, that the deprivation of the protected interest was somehow attributable to the District, not a private actor,” the motion stated.
“Here, the complained of actions for alleged harassment and assault are attributable to students, and not to Mr. Robison as a state actor. Actions by private individuals, not the District, are insufficient to give rise to a procedural due process claim. Accordingly, plaintiff’s procedural due process claim should be dismissed with prejudice.”
For counts of Title IX discrimination based upon sex or gender and due process violations under the 14th Amendment, the plaintiff is seeking compensatory damages, punitive damages, attorney’s fees, costs of suit and other relief as deemed appropriate by the Court, and a trial by jury.
The plaintiff is represented by Jennifer O. Price in Murrysville.
The defendants are represented by Carl P. Beard and Jennifer L. Dambeck of Beard Law Group, in Altoona.
U.S. District Court for the Western District of Pennsylvania case 3:20-cv-00136
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com