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T.C. v. Metropolitan Government of Nashville & Davidson County

United States District Court, M.D. Tennessee, Nashville Division

May 6, 2019



          ALETA A. TRAUGER U.S. District Judge

         Pending before the court in these consolidated cases are five sealed Motions for Summary Judgment. Four Motions for Summary Judgment were filed by the Metropolitan Government of Nashville and Davidson County d/b/a/ Metropolitan Nashville Public Schools (“MNPS”). (Docket No. 71 (regarding S.C.[1]); Docket No. 76 (regarding Jane Doe); Docket No. 82 (regarding Mary Doe); Docket No. 83 (regarding Sally Doe).) The plaintiffs have collectively filed a Response addressing all four MNPS motions (Docket No. 92), to which MNPS has filed a Reply (Docket No. 99). Jane Doe, Sally Doe, and Mary Doe have collectively filed a Motion for Partial Summary Judgment (Docket No. 87), to which MNPS has filed a Response (Docket No. 88). For the reasons discussed herein, MNPS's Motion for Summary Judgment regarding the claims of Sally Doe will be granted in part and denied in part, and all of the other motions will be denied.

         I. BACKGROUND

         “Section 901(a) of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), provides 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 Federal financial assistance.'” Nat'l Collegiate Athletic Ass'n v. Smith, 525 U.S. 459, 465-66 (1999). Title IX, like other federal antidiscrimination laws, [2]recognizes that discrimination can, in some cases, take the form of harassment. See Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 639 (1999). In 2016 and 2017, at least four female MNPS students, all minors, were videotaped[3] by other students while engaged in sexual encounters with male students on the premises of their respective MNPS schools. The resulting video files were circulated among the students' peers electronically. The plaintiffs, through their parents, have sued MNPS, arguing that its handling of the matters and general approach to harassment at its schools led to the deprivation of the plaintiffs' rights under Title IX and their onstitutional rights to equal protection.

         A. Title IX in MNPS

         Federal regulations require that a recipient of funding under Title IX “shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under [Title IX rules], including any investigation of any complaint communicated to such entity alleging its noncompliance with [Title IX rules] or alleging any action which would be prohibited by [Title IX rules].” 45 C.F.R. § 83.15(a). That employee is known as the recipient's “Title IX coordinator.” The funding recipient must “notify all of its students and employees who work directly with students and applicants for admission of the name, office address and telephone number of the” Title IX coordinator. Id. MNPS's Title IX coordinator, from 2012 through the 2016-17 school year, was Julie McCargar. (Docket No. 92-25 at 18, 24.)

         McCargar testified that, when she took the position of Title IX coordinator in 2012, no one from MNPS provided her with any training regarding what her duties were. (Id. at 21.) She did say, however, that she and others in her office received outside training and worked closely with the city's legal department in understanding how to conduct investigations. (Id. at 50.) She testified that, in contrast, principals and assistant principals did not, to her knowledge, receive training regarding how to conduct a Title IX investigation until late in her tenure as coordinator. (Id. at 50.) Principals and assistant principals also were not required to read the Dear Colleague letters that the Title IX coordinator was expected to read to stay abreast of federal Title IX policy. (Id. at 51-52.) Phyllis Dyer, who worked with McCargar and succeeded her as Title IX coordinator, explained that principals did finally receive some training at some time around or after May 2016 (Docket No. 92-18 at 54), although, as the facts below will show, when and if individual principals were trained appears to have varied.

         Even before they received training, the principals and assistant principals were permitted to perform Title IX investigations themselves, rather than relying on the Title IX coordinator. (Docket No. 92-25 at 53, 59-60.) McCargar further testified that she could not recall ever telling the principals to contact her when they became aware of possible Title IX violations. (Id. at 59.) If the principal determined that an incident did, in fact, rise to the level of a Title IX violation, only then would the principal inform the coordinator. (Id. at 79-82.)

         The plaintiffs suggest, persuasively, that the policy McCargar described violates the guidance provided by the U.S. Department of Education's Assistant Secretary for Civil Rights in a Dear Colleague Letter issued on April 24, 2015. (Docket No. 1-5.) According to the letter, a Title IX funding recipient “must inform the Title IX coordinator of all reports and complaints raising Title IX issues, even if the complaint was initially filed with another individual or office or the investigation will be conducted by another individual or office.” (Id. at 3 (emphasis added).) As the plaintiffs point out, the universe of complaints raising Title IX issues is presumably significantly larger than the universe of complaints where a principal has made an affirmative finding of a confirmed Title IX violation.

         When asked about MNPS's compliance with the Department of Education's guidance, McCargar admitted that she was not informed of all complaints “raising Title IX issues, ” if “informed” meant that she was directly contacted in writing or by phone. While she did receive direct notice of cases where principals ultimately concluded that a violation had occurred, she was not informed in that manner where a complaint raised Title IX issues, but the principal ultimately found no violation. (Docket No. 92-25 at 95.) Rather, McCargar explained, she had interpreted the Department's guidance as requiring only that incidents that had raised Title IX issues, but that principals had not deemed to be violations, be entered into a “student management system, ” to which the coordinator had access. (Id. at 96.)

         B. Incident at Maplewood: Mary Doe and Jane Doe

         Mary Doe and Jane Doe were freshmen at Maplewood High School when, on September 21, 2016, they were part of a sexual encounter involving the two of them and four older male students in a school stairwell. Jane Doe has attested that, while she had expected there to be flirting and probably kissing in the stairwell, she did not expect and was not prepared for the sexual activity. She attested that she was intimidated by the age, size, and number of male students involved and, although she did not welcome the sexual activity, she “did not know how to get out of the situation.” (Docket No. 92-8 ¶ 4.) Mary Doe has similarly attested that she did not expect or welcome sexual activity but was intimidated and did not know how to stop it. (Docket No. 92-10 ¶ 4.)

         A male student videotaped the incident, and the video was ultimately circulated among the students' peers. (Docket No. 92-3 ¶¶ 19-20.) Jane Doe testified that she saw a light during the encounter but did not realize that it was from someone recording the activity. (Docket No. 76-4 at 20.) The parties agree that Mary Doe did not, at least immediately, know that the encounter had been taped. (Docket No. 92-3 ¶ 19.) Both girls have attested that they did not consent to being taped or to the tape's being circulated. (Docket No. 92-8 ¶ 5; Docket No. 92-10 ¶ 6.)

         That night, Mary Doe told her mother that someone at school had held her down and put hickeys on her neck. She did not, at the time, reveal the extent of actual sexual activity involved in the encounter. (Docket No. 92-3 ¶¶ 12.) Mary Doe's mother contacted Assistant Principal Marvin Olige about the event, and Mary Doe, her mother, and her grandmother met with Olige and police officers stationed at the school as “School Resource Officers” (“SROs”). (Id. ¶¶ 13-14.) Mary Doe reiterated the inaccurate version of events she had told her mother and provided a written statement to that effect. (Docket No. 77-3.) The SROs, however, pressed Mary Doe about inconsistencies between her account and other information they had received, and she admitted that the version of the story she had given her mother was inaccurate. Olige, the SROs, and Mary Doe's mother, however, appeared to remain unaware of the actual details of the encounter. (Docket No. 92-3 ¶ 18.)

         The parties disagree about the precise series of events through which MNPS and the girls became aware that the video was being circulated but agree that, in the ensuing weeks, a number of people became aware of the video's existence and circulation. (See Id. ¶¶ 19-23.) At some point, the girls became aware that other students had copies of the video. Jane Doe heard that, in connection to the circulation of the video, people were calling her demeaning sexual names like “whore” and “slut.” (Docket No. 92-8 ¶ 6.) Jane Doe's brother also became aware of the video and informed her parents. (Docket No. 76-4 at 28.) On October 12, 2016, Jane Doe's parents reported the video to school officials and met with SROs and Assistant Principal Olige. (Docket No. 89 ¶ 43; Docket No. 92-3 ¶ 24.) Upon learning that Mary Doe was the other female student in the video, Olige pulled her out of class to be questioned. (Docket No. 89 ¶ 44.)

         Jane Doe's mother has attested that she told Olige and the SROs that the video had been made without Jane Doe's knowledge or consent and “circulated at the school and other places.” (Docket No. 92-7 ¶ 3.) She further attested that, in the meeting, Olige and the SROs focused mainly on whether the underlying sexual conduct was forcible rape. (Id. ¶ 5.) She described her perception of Olige's approach to the matter as follows:

The principal's reaction was as though it was no big deal. There was no indication that anyone was going to be punished, suspended, or expelled. The principal never indicated there would be any investigative procedure by the school. The principal never informed us of any action the school would take to ensure that my child would be safe from this type of activity or from any retaliatory acts for reporting the activity. [Mary Doe] was simply sent back to class, as though nothing had happened, and they wanted to handle my daughter the same way.

(Id. ¶ 7.) Jane Doe and Mary Doe confirm that Olige's questioning was focused on whether forcible rape had occurred. (Docket No. 92-8 ¶ 7; Docket No. 92-10 ¶ 5.)

         Olige did not take any notes during the October 12 meetings. (Docket No. 89 ¶ 45.) He did have Jane Doe and a male student write out statements regarding the incidents, but those statements were eventually shredded and are, therefore, not in the record. (Id. ¶ 50.) Olige testified that he did not know why the statements were shredded, but MNPS maintains that the shredding was inadvertent. (Id.; Docket No. 77-1 at 30-31.) Olige did not tell Maplewood Executive Principal Keely Mason about the sexual activity or the video file until after at least one of the underlying lawsuits had been filed. (Docket No. 89 ¶ 55.) Olige also did not refer the students or their parents to MNPS's Title IX coordinator; nor did he suggest to them that a Title IX investigation would or should occur. (Docket No. 76-4 at 50.)

         Olige did not contact Mary Doe's mother to inform her that the incident that they had discussed earlier had included, not merely hickeys, but at least some students having sex and that a video had been made. Mary Doe's mother only learned those details later, during the summer between her daughter's freshman and sophomore years. (Docket No. 92-9 ¶¶ 5-6.) MNPS suggests that, because Olige did not view the video himself, he did not specifically know that Mary Doe had engaged in sexual activity beyond hickeys. At the very least, however, he did know that she was in a video involving a sexual encounter in which other minor students had sex.

         Jane Doe attested that, following the meeting, she was “scared to remain at Maplewood.” (Docket No. 92-8 ¶ 11.) The day after the meeting with Olige or shortly thereafter, Jane Doe's parents enrolled her in a new school, and she never returned to Maplewood. (Docket No. 76-4 at 30-31.) MNPS concedes that, although Olige knew that Jane Doe's parents were concerned and planned to seek a transfer away from Maplewood, he “did not take steps to reassure the family that their daughter would be safe if she stayed at Maplewood, nor did he reassure the family that there was no need to pull her out of school.” (Docket No. 89 ¶ 54.) Jane Doe's mother has characterized the school to which she transferred as having less comprehensive classroom and extracurricular opportunities. Moreover, Jane Doe had been participating in a “College Zone” program at Maplewood, which was intended to help students prepare for and gain admission to college, but her new school did not offer such a program. (Docket No. 92-7 ¶¶ 12-13.) Jane Doe ultimately failed tenth grade at the new school. (Id. ¶ 15.)

         At first, Mary Doe remained at Maplewood. She has described substantial taunting and bullying she received at Maplewood related to the video, including students calling her “nasty” and saying she “got a train run on” her. She says that she complained to school personnel about the bullying, but they “didn't do anything about it.” (Docket No. 92-10 ¶ 11.) She said that, when she would make a new friend, students would then target and bully the friend for “hanging around a nasty person.” (Id. ¶ 13.) According to Mary Doe, at one point a boy grabbed her thighs and told her he wanted her to do the same thing to him as she had done in the video. She claims that she told Olige about the event but that he took no action that she was aware of. (Id. ¶ 14.)

         Mary Doe eventually attended a meeting with Maplewood Dean of Students Jamie Hall and another person about the events and her coping with them. Doe testified that she had informed Hall that she had been having suicidal thoughts in the wake of the incident. In her deposition, Mary Doe described the following exchange:

They said it was, like, a game called [“]Exposed[”] that the seniors do. And I was like, I don't know what that is. . . . I was talking to, I think, Ms. Hall, and she was talking to me-who was I talking to? Who else was in there? There was somebody else in there. And I was upset, at the moment, and I was crying. She was like, What is wrong with you? It was about the situation. She was like, It's the game. It's a game that the seniors play, and you shouldn't worry about it. It's not nothing you should want to kill yourself over and all this. I was like, But it's a video of me out there that I didn't know nothing about, so I should really be upset about it.

(Docket No. 92-23 at 77.) Mary Doe-who attested that she had, prior to these events, been a content and gregarious Maplewood student-concluded that she could not be happy at Maplewood and transferred to another school. (Docket No. 92-10 ¶ 16.) Mary Doe's mother has stated that she felt she had no reasonable alternative but to seek the transfer. (Docket No. 92-9 ¶ 8.) Mary Doe has said that she still gets harassed at the new school due to the video, but only occasionally. (Docket No. 92-10 ¶ 17.)

         Olige elected not to punish any of the students involved in the sexual activity or videotaping “beyond verbal discipline, ” because it was “an opportunity to impart some wisdom and life instruction, ” and he “did not want to subject the students to potential humiliation and discipline for a consensual act.” No. other, higher-level administrator was involved in his decision. (Docket No. 89 ¶¶ 61-62; see Docket No. 70-16 at 11.)

         MNPS provides schools with a two-page “Bullying and Harassment Reporting Form” that includes spaces for specifying what offenders did and what, if any, electronic communications were used. (Docket No. 70-17 at 1-2.) Olige testified that he knew that, if he had filled out such a form, it would have begun a process of the school's determining whether a Title IX violation had occurred. (Docket No. 77-1 at 104.) However, he did not fill out a reporting form related to any of the events involving Jane Doe and Mary Doe. (Docket No. 89 ¶ 66.) Olige testified that, if he had ever been instructed by the district to refer cases involving circulation of sexual videos of students to the school's executive principal or to the Title IX coordinator, he would have done so. (Docket No. 77-1 at 87.)

         Another Maplewood Assistant Principal, Isaiah Long, testified that, in his view, MNPS standard operating procedures, effective as of May 2016, required an assistant principal who became aware of sexual activity being taped at school to report the activity to the executive principal. He further testified that such actions would have warranted substantial punishment, regardless of whether the underlying sexual activity had been consensual. Long, however, was not made aware of the events at issue here until after litigation began. (Docket No. 89 ¶¶ 70-73.) Executive Principal Mason agreed that she should have been informed of the events and that the reporting form should have been used for any sexual cyberbullying on the Maplewood campus. (Id. ¶¶ 77-81.) Mason testified that, had she been aware of the events, she would have punished the students involved. She further testified that she would have treated the release of a sexually explicit video of a student without the student's consent as itself requiring discipline. (Id. ¶ 89; Docket No. 70-12 at 68.)

         The handling of the matter by Olige and the SROs did result in a referral to local police. On October 19, 2016, Detective Michael Adkins of the Metropolitan Nashville Police Department interviewed Mary Doe and Jane Doe about the incident. (Docket Nos. 76-1 & -2.) In the interviews, the girls characterized the sexual activity as consensual. (Docket No. 76-1 at 22; Docket No. 76-2 at 10.) However, Jane Doe told Detective Atkins that she had not known that she was being recorded during the encounter, although she did, as she would later testify, see a boy turning off the flash on his phone at the end. (Docket No. 76-1 at 22-23.) She told Adkins that she found out that the video had been circulated about a week later, when her cousin told her she had seen it. (Id. at 26.) Mary Doe told Detective Atkins that she was completely unaware that she was being filmed and only learned of it later, once the video had been circulated. (Docket No. 76-2 at 8.) The record does not show that any criminal prosecutions resulted.

         Jane Doe, through her parents, filed her Complaint on August 16, 2017. (No. 3:17-cv-01159, Docket No. 1.) Mary Doe, through her mother, filed a Complaint pleading the same causes of action on September 18, 2017. (No. 3:17-cv-01277, Docket No. 1.) Counts I and II of the Complaints are for Title IX violations related to MNPS's actions, respectively, before and after the stairwell incident. Count III is a claim under 42 U.S.C. § 1983, based on MNPS's failure to train its employees with regard to sexual harassment. Count IV is a claim under 42 U.S.C. § 1983, based on MNPS's deliberate indifference to ongoing harassment. (No. 3:17-cv-01159, Docket No. 1 ¶¶ 53-73; No. 3:17-cv-01277, Docket No. 1 ¶¶ 38-58.)

         C. First Incident at Hunters Lane: Sally Doe

         On February 21, 2017, Sally Doe-then a freshman at Hunters Lane High School -engaged in a sexual encounter with a boy, O.B., in a Hunters Lane boys' restroom. (Docket No. 92-4 ¶ 3.) Sally Doe has attested that she was pulled into the restroom and did not understand or expect that sexual activity was going to occur, she was pressured to engage in the sexual activity, and, although she did not physically fight the sexual activity, she was scared, did not know how to prevent it, and did not consider it welcome. She stopped the sexual activity before completion. (Docket No. 92-6 ¶ 4.) The encounter was recorded on video-Sally Doe believes, by O.B. with his phone. Sally Doe attested that she did not realize she was being recorded and did not welcome or consent to the recording. (Id. ¶ 5.)

         The same day, administrators learned that Sally Doe had been seen in or going into the restroom with O.B., and Assistant Principal Melanie McDonald pulled Sally Doe out of class to explain the situation. McDonald asked Sally Doe what she had been doing in the boys' restroom and if she had had sex while there. Sally Doe responded that she had not had sex in the restroom. (Docket No. 83-1 at 16-17.) McDonald had Sally Doe provide a written statement about the matter, and, in the statement, Doe stated only that she and O.B. had gone into the bathroom to discuss something. (Docket No. 83-4 at 23.) Both students were placed on “overnight suspension.” (Docket No. 83-2 at 2-3.) The next day or the day after, Sally Doe and her mother met with Assistant Principal Nicole Newman, and Sally Doe admitted to having kissed O.B. but not to the sexual activity. (Docket No. 83-1 at 21-22; Docket No. 83-2 at 9.)

         About a month and a half later, on April 7, 2017, another female student, with whom Sally Doe had apparently had a personal falling out, posted the video of the February 21 bathroom encounter on Instagram and “tagged”[4] Sally Doe. Sally Doe does not know how the girl who posted the video obtained it. (Docket No. 92-4 ¶¶ 5-6.) Several of Sally Doe's friends and acquaintances saw the video when it was posted. Sally Doe does not know exactly how many of her peers viewed the video but testified that she believed that “it was a lot of people.” (Docket No. 83-1 at 26.) The same day that Sally Doe first saw the video, her mother found out about the video from a family member who, presumably, had seen or become aware of the Instagram post. (Id. at 24.)

         The next day, Sally Doe's mother went to Hunters Lane to alert the school of the situation. She met with Assistant Principal Newman, who was in charge of overseeing ninth grade students, and an SRO. (Docket No. 70-3 at 42-43; Docket No. 83-1 at 26; Docket No. 89 ¶¶ 1, 5.) Newman's recollection of the meeting is limited. Newman testified that she does not remember whether she asked Doe who was circulating the video. Newman also does not recall whether she took notes. (Docket No. 70-3 at 49.) Sally Doe's mother has attested that she told Newman that she “wanted [her] daughter protected and if that meant that the boy involved had to be suspended or expelled, then that is what should occur.” (Docket No. 92-5 ¶ 4.) She also attested that Newman and the SROs focused their questions on the issue of forcible rape and did not raise the issue of a possible Title IX violation or the possibility that the underlying events may have been non-forcible but unwelcome. (Id. ¶ 7.)

         Newman did not, to her recollection, inform the executive principal of Hunters Lane, Susan Kessler, about the events. (Docket No. 89 ¶ 5.) Newman testified that she could not recall receiving any training, either at Hunters Lane or outside Hunters Lane, on how to conduct a Title IX investigation. (Docket No. 70-3 at 108.)

         The record includes an email exchange between Sally Doe's mother and Newman, beginning on April 11, 2017. (Docket No. 83-7 at 1-6.) Sally Doe's mother described the bullying that Doe was apparently facing at school. Other students were “yelling and throwing things at her as she walk[ed] down the hallway, ” so much so that she had to put her headphones in to attempt to drown them out. (Id. at 5.) O.B. “tried to fight her . . . in front of a large crowd” and “told her he was going to have someone . . . beat her up.” (Id.) “A student in one of her classes had the video[] and was talking to the teacher about it[, ] even offer[ing] to show the teacher, ” although the teacher refused. (Id.) Sally Doe's account of events confirms that she was taunted by her peers with sexually demeaning names such as “ho” and “slut” and that O.B. threatened her. (Docket No. 92-6 ¶ 8.)

         On April 12, 2017, Sally Doe's mother wrote, “There is absolutely no way I can send my child to this detrimental environment every day.” (Id. at 5.) Newman expressed her concern for what Sally Doe was experiencing and set up a meeting with Sally Doe's father for the next day to “talk and figure out a plan to get [Sally Doe] thr[ough] the rest of the year.” (Id. at 4.) Sally Doe's mother responded that Sally Doe's father had tried to encourage Sally Doe to speak to Newman more about the situation, but that Sally Doe had said there was “no point” because the Hunters Lane administration “c[ould]n't control everyone.” Sally Doe's mother wrote that she, too, was concerned that “[i]t's just too many children to reprimand.” (Id.) Sally Doe's parents pulled her out of Hunters Lane for the remainder of the year, and she was allowed to complete her exams at home. (Docket No. 83-1 at 29.)

         By April 18, 2017, the video was, as far as the parties know, off of social media. (Docket No. 92-4 ¶ 18.) Sally Doe, however, continued to suffer occasional taunting or provocation from other students related to the video. That summer, Sally Doe participated in a summer program at Hunters Lane, and she, during the program, had an altercation with a boy about the video. (Docket No. 83-1 at 37.) Sally Doe returned to Hunters Lane the next year and, at one point, was mocked by another student about the video in front of her then-boyfriend. Afterwards, an assistant principal found her crying in a stairwell. (Id. at 39-40.) Sally Doe originally received an overnight suspension for missing class, but her mother went into the school the next day and explained the situation, after which the suspension was taken off of Sally Doe's record. (Id. at 41-42.)

         In November 2017, a male student touched Sally Doe's buttocks without her permission while taking a picture. Thereafter, the student and Sally Doe's boyfriend got into a fight. Sally Doe, her boyfriend, and the student who took the picture while groping her were all suspended based on the fight. Although the disciplinary documentation of the incident does not mention Sally Doe's earlier problems with the video, it does not rule out the possibility that Sally Doe's resultant reputation played a role in the boy's actions. (Docket No. 83-10 at 5.)

         Later that school year, Sally Doe was involved in an altercation, during which a student brought up the video. (Docket No. 83-1 at 44.) By the 2018-19 school year, however, the active harassment of Sally Doe had stopped. (Docket No. 92-4 ¶ 22.)

         Meanwhile, Nashville police had begun a criminal investigation of O.B. arising out of the creation and dissemination of the video. O.B. was ultimately convicted of sexual exploitation of a minor. (Docket No. 92-4 ¶¶ 10-11.) Police records show that O.B. had previously been investigated, while in middle school, for having allegedly inappropriately touched a female student. (Docket No. 83-4 at 16.) He has now withdrawn from MNPS. (Docket No. 92-4 ¶ 23.)

         On August 31, 2017, Sally Doe, through her mother, filed her Complaint. (No. 3:17-cv-1209, Docket No. 1.) Counts I and II of the Complaint are for Title IX violations related to MNPS's actions, respectively, before and after the bathroom incident. Count III is a claim under 42 U.S.C. § 1983, based on MNPS's failure to train its employees with regard to sexual harassment. Count IV is a claim under 42 U.S.C. § 1983, based on MNPS's deliberate indifference to ongoing harassment. (Id. ¶¶ 38-56.)

         D. Second Incident at Hunters Lane: S.C.

         On April 17, 2017, S.C., also a freshman at Hunters Lane, was involved in a sexual encounter with a male student, J.J., on school premises during the students' lunch hour.

         According to S.C., all of the sexual activity that she engaged in was coerced and unwelcome, although she did not know how to stop it. (Docket No. 92-11 ¶ 4.) Another female student, S.D., recorded the encounter on video. (Docket No. 92-1 ¶¶ 1, 3.) S.C. testified that S.D. had-unbeknownst, at first, to S.C.-come into the room during the encounter and that, by the time S.C. saw S.D., S.D. already appeared to be recording the encounter on her phone. (Docket No. 71-1 at 20.) Later that day, when S.C. was preparing to get on the school bus home, S.D. approached S.C. and informed S.C. that, as S.C. would later describe it, “the video was out and . . . everybody had it.” (Docket No. 92-1 ¶ 7; Docket No. 71-1 at 23.) S.C. left school for the day without informing any teachers or administrators about the sexual encounter or the video. (Docket No. 92-1 ¶ 8.) When S.C. got home, she told her mother that she had had sex for the first time, but she did not tell her mother that a video had been taken of the incident. At some point that night, however, a friend sent the video to S.C.'s mother, who became angry at S.C. (Docket No. 71-1 at 27-28.)

         A little after 9:30 p.m. that night, Executive Principal Kessler received a Facebook message from a “community member” with the video attached. (Docket No. 92-1 ¶ 11; Docket No. 74 ¶ 3.) Kessler claims that, by early the next morning, she had “begun [a] formal investigation of the incident.” (Docket No. 74 ¶ 5.) Kessler worked with her assistant principals as well as the school's SROs to further the investigation, and Detective Robert Carrigan, a police detective dedicated to investigating sex crimes, also came to the school. (Id.)

         Detective Carrigan interviewed S.C. and, after the interview, informed S.C.'s mother that the sexual encounter had been consensual. (Docket No. 92-1 ¶ 16.) S.C. gave a written statement to Kessler and did not state that she had been forced into the encounter. (Docket No. 74-1 at 1.) She did, however, state that she had wanted to stop both the encounter and the videotaping but “just couldn't get the urge to say no.” (Id.) According to Kessler, there was nothing about the content of the video itself suggesting that the sexual activity was non-consensual, and S.C. appeared, in the video, to have been aware of the taping. (Docket No. 74 ¶¶ 7-8.) According to S.C., police, as part of their questioning of her, told her that she could be prosecuted for the creation of child pornography and suggested that, because J.J. had not struck or otherwise violently forced her, the activity was consensual. (Docket No. 92-11 ¶¶ 7-8.) S.C.'s mother also stated that police suggested that S.C. could be prosecuted for child pornography offenses and that, because J.J. had not struck her on the video, it was clear that she had been a willing participant. (Docket No. 92-12 ¶¶ 6, 8.)

         Ultimately, the school punished eight students, including J.J., S.C., and S.D., for their involvement in the sexual encounter and/or creating or distributing the video. (Docket No. 92-1 ¶ 20; Docket No. 71-1 at 38.) The other students punished were three male and two female students, all of whom were found to have shared the video. (Docket No. 74 ¶ 9.) All of the students received the same punishment, a three-day suspension. (Id. ΒΆ 13.) According to S.C. and her mother, Kessler assured them that the matter ...

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