10th Circuit: Student entitled to sue DPS over handling of sex assault

Denver Public Schools may be sued under federal civil rights law for its employees’ “deliberate indifference” to the persistent bullying and harassment a female student encountered following her assault, the U.S. Court of Appeals for the 10th Circuit ruled on Monday.

“We are somewhat surprised that the District so devalues classroom instruction and experience that it argues that their denial [of responsibility] is not a denial of access to education,” wrote Judge Harris L. Hartz for the three-member panel. The circuit overturned a lower court decision that dismissed the claim.

"She was a very bright child, had a great shot at being valedictorian," said the victim's lawyer, Igor Raykin of Kishinevsky & Raykin. "She would have loved to stay at East had everything turned out right. It's bad enough that the sexual assault took place in the first place, but what made it worse was the failure of the adults around her."

A 14-year-old East High School Student reported to dean Jeanette Scully in March 2016 that a male classmate had sexually assaulted her at his home. Scully referred the student, identified as Jane Doe, to psychologist Anita Curtiss. Doe’s parents met with the two school employees and were told “the charges would be difficult to prove and doing so would be difficult on the family.”

The Doe family opted against making a police report, but asked the school to document the assault. Scully and Curtiss did not discuss the incident with the school resource officer assigned to East High.

Almost immediately, Doe told Scully that she experienced “backlash” and “retaliation” from students about reporting the assault, but the dean told her to drop the subject, according to court records. After Doe informed Curtiss that she was suffering from anxiety and nightmares, the psychologist said that “some things are just more traumatizing for others,” and advised Doe to “find new friends.”

Curtiss soon learned that Doe attempted to self-mutilate. Both she and Scully were aware of ongoing harassment of Doe, but the school neither investigated the conduct nor disciplined the male student and his associates who were tormenting Doe, the appeals court described.

The harassment resumed in the fall of 2016, and Curtiss admonished Doe that “if she switched schools, then she would only be running away from her problems.” School administrators met with Doe to hear her allegations of being called a “dirty slut,” being the subject of “rape jokes” and how students depicted her in drawings “killing herself,” according to court records.

East High School took no action. The dean of the school, Eric Sinclair, determined there was “no hard evidence” of bullying, despite being given text messages and social media posts claiming otherwise, the court described.

In January 2017, the school assessed Doe’s suicide risk, indicating she had considered overdosing, had written a farewell letter to her sister, and “had lost interest in self-preservation.” The report also claimed, falsely, that the school reported the original assault to police. Around the time that Doe was eating lunch in isolation and leaving the school through a back door due to fear, two staff members expressed concerns that Sinclair was not taking appropriate action.

East High’s principal, Andy Mendelsberg, was opposed to Doe withdrawing before the end of the school year, saying he “would not allow her to get full credit for her grades.” He also told Doe’s parents that he was unaware of anything that Doe had been experiencing over the past year, including the assault.

In November 2017, a DPS attorney contacted Doe’s father, saying other parents had spoken out critically about the school administration. Only three months prior, East High School attracted unwanted attention when videos surfaced of cheerleaders screaming in pain after being forced to perform splits. Doe’s father filed a police report later in November, and the detective could not find records of the assault. The male student would later plead guilty to felony sexual assault with force.

Denver County Court Judge Gary M. Jackson subsequently dismissed criminal charges against school officials for failing to report the assault, finding they acted in good faith and that the detective used a “deceptive investigation technique.” DPS spent nearly $20,000 on legal bills defending its employees, 9News reported.

Doe filed a lawsuit in U.S. District Court, alleging a violation under Title IX of federal law, which ensures that no student is deprived of participating in or benefiting from educational programs on the basis of sex. The criteria for a successful Title IX claim include proving that the school had knowledge of an indifference toward pervasive harassment, to the point that it deprived the student of educational access.

Judge Raymond P. Moore determined in July 2019 that Doe had not plausibly made the case she was the victim of harassment based on her sex. He wrote that he was “not persuaded that the few specific instances described in the complaint are adequate to show harassment that was pervasive and severe.”

The appeals panel, by contrast, agreed with Doe that because the harassment arose from sex discrimination — the comments she received from students as well as her report of the assault — she had adequately stated her case. 

“Further, the specifics that Ms. Doe provides (being called a dirty slut, being told to kill herself, etc.) support an inference that the harassment was objectively offensive,” Hartz wrote. “In our view, Ms. Doe has adequately alleged that her harassment was severe, pervasive, and objectively offensive.”

The school district contended that Doe did not suffer a lack of access to education, which the court quickly dismissed given the maneuvers she employed to avoid her harassers, including coming outside of school hours as early as 5:30 a.m. or as late as 7 p.m. to complete her work.

Hartz commended DPS for providing counseling to Doe, but added that it was insufficient and not a replacement for referring the matter to police.

The school employees’ “refusal to take Ms. Doe’s complaints seriously is reflected in their failure to document them,” he wrote, explaining that “when Ms. Doe and her parents complained to Dean Sinclair in late January or early February of 2017 that ‘nothing was being done to address the bullying and harassment,’ he responded that ‘he could not do anything about it' and that ‘being an asshole isn’t a crime.’ ”

Brie Franklin, the executive director of the Colorado Coalition Against Sexual Assault, said that the public's focus on Title IX has long been on colleges and universities, instead of at the primary and secondary level.

"As a result, many K-12 schools and districts don't have a very robust understanding of Title IX nor have good processes in place for handling complaints," she said. "Schools are obligated to respond when they become aware of a situation, whether that be making accommodations for the complainant (survivor) or addressing retaliatory behavior through education or corrective action.

Raykin, Doe's lawyer, called East High's response a "systemic failure." He used to work as the dean of students at West High School and said that during his time with the school district he received no training on Title IX, and did not believe the lack of training had changed.

"I know the district is not going to apologize," he said. "The only way to get DPS to successfully change their policies is to make it too expensive not to change their policies" though seeking damages in lawsuits.

Only Curtiss, the psychologist, is still employed at the school. She did not immediately return a request for comment. The current East High School principal, John Youngquist, referred inquiries to DPS because he took over leadership of the school in fall 2017.

A spokesperson for the district said that DPS takes allegations of misconduct very seriously. The court's ruling "did not determine the final outcome of this case, but rather decided only that the allegations contained in the Plaintiff's complaint warranted additional fact finding. In arriving at this decision, the court reviewed no evidence and made no factual determinations." The district declined to comment further on the active litigation.

The case is Jane Doe v. School District Number 1 et al.

This story has been updated.