A cause of action for student-on-student sexual harassment under the Missouri Human Rights Act.

• Author: Johnson, Amanda N.

Doe ex rel. Subia v. Kansas City, Missouri School District, 372 S.W.3d 43 (Mo. App. W.D. 2012)

1. INTRODUCTION

   School districts have an obligation "to protect children in their charge from foreseeable dangers," and a school district's "first imperative must be to do no harm to the children in its care." (1) It seems there would be no argument against guaranteeing students an education free of peer sexual harassment, but there is controversy when determining how much obligation a school district has in ensuring such a guarantee. In Doe ex rel. Subia v. Kansas City, Missouri School District, the Missouri Court of Appeals for the Western District found that Missouri's schools districts have a responsibility under the Missouri Human Rights Act (MHRA) to protect students from peer sexual harassment. (2)

   Before Doe, in order to guarantee that students would not be sexually harassed in a way that would deprive them of their access to public education, legislation like Title IX was used as a vehicle for state and federal courts to provide redress to students who had been victims of peer sexual harassment. (3) However, imposing liability on school districts is controversial because school districts do not have complete control over the behavior of students. (4) When the Supreme Court of the United States allowed a cause of action against public school districts for student-on-student sexual harassment under Title IX, Justice Kennedy stated in his dissent, "the fence the Court has built is made of little sticks, and it cannot contain the avalanche of liability now set in motion." (5)

   Missouri public schools are familiar with harassment and bullying among students. (6) The state legislature attempted to address this issue in 2007 when it passed a state statute that would require every school district to adopt an anti-bullying policy. (7) The state courts are the latest to join in the battle to end harassment in schools, specifically student-on-student sexual harassment, but the courts operated under a different statute than Title XI: the Missouri Human Rights Act.

   Claims for peer sexual harassment in the workplace are commonly filed under the MHRA, but a claim against a public school district had never been decided in Missouri until 2012. (8) The notion of a public school district being liable for peer sexual harassment is controversial. Most claims have been filed under Title IX (9) and few have been filed under state civil rights laws. (10) Under Title IX, the Supreme Court of the United States has held that a public school district is liable if it acted with "deliberate indifference to known acts of harassment[.]" (11)

   The Missouri Court of Appeals for the Western District is the first to decide whether a public school district can be liable under the MHRA. (12) In doing so, the court has imposed a lower standard of liability than Title IX's actual knowledge standard with the purpose of broadening the reach and protection of the MHRA. (13)

   This Note argues that a cause of action under the MHRA is problematic because it misapplies the law with respect to public schools, creating limitless liability against school districts. The cost of damages and legal fees could overwhelm many of Missouri's school districts, taking taxpayer money from funding education and putting it in the pockets of attorneys and plaintiffs.

2. FACTS AND HOLDING

   Doe was a male elementary school student in the Kansas City, Missouri School District (School District). (14) Doe alleged that another male student sexually harassed him on multiple occasions beginning in May 2009. (15) Doe claimed the perpetrator would climb under the stalls in the boys' restroom to commit the sexual harassment. (16) Doe further alleged that even though school administrators and teachers responsible for the perpetrator had knowledge of the behavior, "school personnel permitted the perpetrator to use the restroom at the same time as other male students." (17) In October 2009, Doe filed a charge of discrimination against the School District with the Missouri Com mission on Human Rights (Commission). (18)

   Doe claimed he experienced "emotional distress in the form of anxiety, fear, and depression" due to the sexual harassment and sexual assaults. (19) He asserted that (1) the sexual harassment constituted sex discrimination; (2) his elementary school was a public place of accommodation; and (3) he was "deprived of the full, free, and equal use and enjoyment of the school and its services" because of the School District's acts and omissions. (20) Doe claimed the School District's conduct violated the MHRA. (21) Doe further asserted the School District was liable for the actions of the elementary school's personnel under the doctrine of respondeat superior because the personnel were agents, servants, and employees of the School District. (22) Doe sought compensatory and punitive damages. (23) The School District filed a motion to dismiss Doe's petition, and the circuit court granted the motion on the basis that Doe failed to state a cause of action under the MHRA against the School District. (24) Doe appealed the Circuit Court of Jackson County's dismissal. (25)

   On appeal, Doe argued the circuit court should not have dismissed his petition because "the MHRA prohibits student-on-student sexual harassment that rises to the level of sex discrimination in a public accommodation," and because he alleged sufficient facts to state such a claim under Missouri Revised Statutes section 213.065 of MHRA. (26) On his MHRA claim, Doe raised five issues on appeal: (1) the elementary school he attended was a public accommodation under the MHRA; (27) (2) the MHRA prohibited sex discrimination in public accommodations; (28) (3) section 213.065 encompassed discrimination based on peer sexual harassment, and the school district was liable for "indirectly" denying the benefits of a public accommodation; (29) (4) the standard for determining a school district's liability for peer sexual harassment should be the "know or should have known" standard for determining employer liability under the MHRA; (30) and (5) the allegations of his petition were sufficient to state a cause of action under the standard of liability. (31)

   In response, the School District argued that (1) the elementary school was not a public accommodation because "the building [was] not in fact open to the public"; (32) (2) the MHRA's definition of discrimination limited "the context in which such claims can occur[,]" and public schools are excluded from that context; (33) (3) Doe failed to plead sufficient facts establishing vicarious liability, but was instead attempting to hold the School District liable for the perpetrator's conduct; (34) (4) the applicable standard of liability for peer sexual harassment is the "actual knowledge standard" (35) applied in actions brought under Title IX; (36) and (5) the allegations of Doe's petition were insufficient to state a cause of action because Doe did not allege he was actually denied or refused access to school and young elementary school children cannot engage in conduct constituting unlawful sexual harassment. (37)

   The appellate court reversed the circuit court's dismissal and remanded the case to the circuit court. (38) The appellate court held that (1) a public school is a public accommodation under the MHRA; (39) (2) the MHRA prohibits sex discrimination in public schools; (40) (3) the MHRA's prohibition against indirectly denying benefits to public accommodations encompassed Doe's claim against the School District; (41) (4) a public school district can be liable for peer sexual harassment "if it knew or should have known of the harassment and failed to take prompt and effective remedial action;" (42) and (5) Doe's allegation that he was sexually harassed was sufficient to plead that he was discriminated against in his use of the school. (43)

3. Legal Background

   Students bringing sexual harassment claims against public school districts have primarily filed these claims in federal court under federal law. Few claims have been brought under state law and most are coupled with federal claims. First, this Part will discuss federal liability for harassment beginning with liability under Title IX. Second, this Part will discuss state liability, focusing on the MHRA, Missouri's anti-bullying policy requirement, and how other state legislatures and courts have addressed the issue.

   1. Federal Liability for Harassment Under Title IX

      Generally, students who experienced harassment at the hands of students or teachers initially attempted to bring actions under 42 U.S.C. section 1983, (44) but over time, theories of liability based on violations of Title IX of the Education Amendments Acts of 1972 (45) became more successful in federal courts. (46) After federal courts determined that a school district could be liable for peer sexual harassment, the issue became what the standard of liability should be. (47) In determining the standard, federal courts have compared Title IX to Title VII of the Civil Rights Act of 1964. (48) The reasoning of the Supreme Court of the United States in determining the standard has impacted courts in determining the same issue under state law. (49) Title IX states that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving [f]ederal financial assistance[.]" (50)

      In Franklin v. Gwinnett County Public Schools, the Supreme Court of the United States found that there is an implied right of action for money damages against schools violating Title IX. (51) Franklin involved a suit for sexual harassment of a student by a teacher over a period of two years. (52) The Court relied on the general rule "that absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate...