United States District Court, M.D. Tennessee, Nashville Division
MICHAEL AND SHELBY BELCHER, et al.
ROBERTSON COUNTY, TENNESSEE, et al.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
TODD J. CAMPBELL, District Judge.
Pursuant to Fed.R.Civ.P. 52(a)(1), the Court makes the following findings of fact and conclusions of law.
This lawsuit was brought by the parents of three children who were students at East Robertson County Elementary School ("the School") during the relevant time period. The action arises from alleged peer-on-peer sexual abuse which occurred at the School. Plaintiffs allege claims against the Robertson County Board of Education and Robertson County, Tennessee (collectively "Defendant") under Title IX (20 U.S.C. § 1681, et seq.) ; 42 U.S.C. § 1983 (failure to train); and the Tennessee Governmental Liability Act (negligence). The case was tried without a jury on September 23, 24, and 25, 2014, and the parties filed post-trial briefs (Docket Nos. 73 and 76).
At all relevant times, ML was a student at the School. He is the alleged perpetrator of sexual abuse against two of the minor children in this action, MB and BE. ML's guardian told the Department of Children's Services ("DCS") that the "sexual stuff" with ML had been going on since he was four years old. Tr. 2 (Docket No. 68) at p. 274; Trial Ex. 44. ML had a history of inappropriate touching while in the Robertson County School System. There was evidence at trial that, while in preschool, ML had touched a little girl's "privates" during nap time. Tr. 2 at p. 15; Tr. 3 (Docket No. 69) at p. 160; see also Trial Ex. 44, p. 6 of 6. Although the preschool is not at East Robertson Elementary, it is a part of Defendant's school system. Tr. 3 at p. 161.
ML's kindergarten teacher testified that, on at least two occasions, ML hit a female student in her private area. Tr. 2 at pp. 65-67, 69. The kindergarten teacher said she reported one of the incidents to the School guidance counselor, who talked with both ML and the girl. Id. at p. 67. Neither the teacher nor the School reported these incidents to DCS. Id. at 69.
ML's first grade teacher testified that she was not made aware of ML's inappropriate behavior in kindergarten and stated that "children's information is supposed to be confidential and is on a need-to-know basis." Tr. 2 at pp. 182-83. In the fall of 2011, ML's teacher began keeping ML and two other boys (MB was one) with her at all times. Id. at pp. 187-88. She told her substitute teacher not to let these children out of her sight. Id. at p. 104.
In first grade, ML received at least two in-school suspensions ("ISS"), one isolation, and one full suspension from the School between November 14, 2011 and February 10, 2012, for "immoral or disreputable conduct" and disruptive behavior. Trial Ex. 22. The ISS note for November 14, 2011, states: "[ML] was punching others in their private area. He also pulled another child out of their chair." Trial Ex. 21. The November 18, 2011 ISS note states that ML was touching and hitting other students, "on-going problem." Id. Defendant suspended ML from school on February 10, 2012, for immoral and disreputable conduct. Trial Ex. 22.
ML was admitted to Vanderbilt Psychiatric Hospital on March 28, 2012. Trial Exs. 12 and 29. ML's mother brought him to the hospital "for increasing aggression at home and at school" and she also reported that he had been "grabbing his genitalia during school." Trial Ex. 29. The DCS intake summary states that ML touched two other children at school and gives the first names of the "other children, " one of whom is MB. Trial Ex. 12. The psychiatric admission evaluation from Vanderbilt also reports that ML admitted he touched himself at school and also touched the genitalia of two other boys while at school (and listed the names of MB and another child). Trial Ex. 29. That evaluation form states that ML's mother's biggest concern was sexual inappropriate behavior by ML touching other kids at school. Id.
The Vanderbilt discharge summary dated April 5, 2012, indicates that ML was observed to be anxious, hyperactive and distracted. Trial Ex. 27. The discharge summary notes that ML has a history of inappropriate sexualized behaviors toward schoolmates, although no inappropriate or sexualized behaviors were noted during this hospitalization, aside from some inappropriate sexualized play with action figures. Id. The discharge summary states that both his aunt and his mother expressed concern about ML's sexually acting out behaviors at home and at school. Id.
ML was readmitted to Vanderbilt Psychiatric Hospital three days after the first discharge. Trial Ex. 28. The second discharge summary, dated April 18, 2012, indicates that ML exhibited hyperactivity and hyperarousal and that he seemed to be sexually focused and had poor boundaries with peers. Id. During this hospital course, ML was monitored because of "his history of inappropriate sexualized behaviors toward other children." Inappropriate sexualized behaviors were noted during this hospitalization, including some inappropriate sexualized comments and gestures toward peers, such as reportedly kissing another male peer. Id. The summary states that DCS was made aware of the hospital's concerns about the risk ML posed to other children given his impulsive and sexualized behaviors. Id.
When ML returned to the School, there was a Safety Plan in place for him, which provided that he would be supervised at all times while at the School. Trial Ex. 4.
During the fall semester of his second grade year,  ML had three ISS referrals for "immoral or disreputable behavior, " "other threats, " and "vulgar, obscene or pornographic images." Trial Ex. 22. On August 16, 2012, ML was suspended from the school bus for three days for hitting a female student in the face. Trial Ex. 31. On September 12-13, 2012, ML was suspended from the school bus for the rest of the year for inappropriately touching the bottom of a female student. Trial Exs. 24 and 31.
WJ is the alleged perpetrator of sexual abuse against another child, JA. WJ had been a victim of sexual abuse by ML. Trial Ex. 38; Tr. 1 at p. 198. WJ's teacher testified that she had no problems with WJ bullying other children or acting out sexually. She stated that WJ was not a difficult student in class in any regard. Tr. 2 at p. 95.
JA's mother testified that WJ sexually harassed JA during both his first and second grade years at the School. Tr. 1 at pp. 192-96. For example, WJ "humped" JA's backpack and leg while they were in the car rider line on more than one occasion. Id. at p. 190. In addition, JA reported that, while they were in the classroom watching a movie, WJ touched and rubbed his genitals while making sexual noises (Id . at p. 192) and also that WJ put his private on JA's head and rubbed it on JA's head on the playground. Trial Ex. 38.
MB's mother testified that in November and December of 2011, MB became very "whiney" at home and did not want to go to school. Tr. 1 at pp.114-15. MB's parents went to talk with MB's teacher, who told them MB was fine in class and was not a discipline problem. Id. at 115. MB's teacher never mentioned to the parents that MB and another child (ML) were being segregated from the rest of the children or why, although in the fall of 2011, they were being required to stay with the teacher at all times. Id. at p. 116; Tr. 2 at p. 188.
MB's mother testified that in April of 2012, she received an "alarming" phone call from the assistant principal at the School. The assistant principal told MB's mother that she (the mother) needed to question MB and ask him if anything inappropriate had happened during school hours. Tr. 1 at p. 118. MB's mother testified that when she asked MB about it, he seemed very uncomfortable, said nothing had happened, and said he did not want to talk about it. Id. at pp. 119-20. MB's mother went to the School the next day to discuss the situation with the principal, who stated, "Well, it's really no big deal." The principal told her they were just following up, checking with parents to see how the school year had been. Id. at pp. 120-21. MB's mother testified that the principal never mentioned any alleged abuse, never explained what she meant by "inappropriate, "never identified what prompted the phone call, and never told her about the Vanderbilt report. Id.
MB's mother filed a complaint with the Robertson County Board of Education, and the director of human services told her that they were protecting the rights and privacy of another student, and they couldn't help her. Tr. 1 at p. 122. No one from the Board of Education ever called MB's parents back about the complaint. Id. at p. 123. Finally, MB's parents contacted the Robertson County Sheriff's Office and turned the problem over to them because they could not get answers from the School or the Board of Education. Id. at p. 124. MB's mother testified that the detective from the Sheriff's Office contacted DCS and filed a complaint on their behalf. Id.
Also in the spring of 2012, MB had a "panic attack, " according to his mother, and begged her not to make him go to school. Upon further questioning, MB reported to his mother than a classmate, ML, "had done bad things" to him. Those things included coming up behind MB, pinning MB's arms down, grabbing MB's penis and rubbing, and "humping" MB's back and leg. Tr. 1 at pp. 126-27. MB told his mother that ML would do these things when they were lining up to go places and that this behavior had been going on "since he had to wear his heavy coat, " which his mother assumed to be late fall or early winter of the previous year. Id. at pp. 126-27.
Believing that her child was not safe at the School, MB's mother kept him at home, and he never went back to East Robertson other than to take his final testing. Tr. 1 at p. 131. Defendant denied MB homebound teaching during this time because it said there was no reason for MB to be absent from school. Id. Defendant did state that MB could attend any other school in the county for the final three weeks of the school year. Id. at pp. 131-32. MB's parents took him to counseling and placed him in a smaller, private school, where he remained at the time of the trial. Id. at pp. 133-34.
Later, MB told his mother that he and ML and another child were being separated from the other children, segregated from the class and required always to stay in the presence of a teacher, being constantly monitored. Tr. 1 at pp.116-17 and 138. Even when the teacher had to leave the classroom, she took these three boys with her. Id. at 141. In other words, MB and the alleged abuser were placed together, with the teacher, separated from the rest of the class, at all times. No one from the school told MB's parents about this segregation. MB's teacher later told his mother that the boys were ...