Sunday, November 21, 1999
School not liable in rape of retarded student
BENCHMARKS
BY BEN L. KAUFMAN
The Cincinnati Enquirer
A divided 6th Circuit panel said educators were not liable for the lunchtime rape of a retarded middle school student by a classmate.
Judges Eugene E. Siler Jr. and Cornelia G. Kennedy said there was no evidence that school officials were deliberately indifferent to the girl's safety.
Judge Karen Nelson Moore said there was enough doubt about educators' actions to leave that decision to a jury.
The girl was a Detroit-area elementary student in 1993 when she told her mother that another “educable mentally impaired” student kissed her after they slipped away from school.
Her mother asked her daughter's teacher to keep an eye on the girl and the unnamed youth to prevent further incidents.
The next year, the girl moved to middle school and her mother said she told the new teacher, Michelle Harmala, about the kissing incident. The mother said the teacher prom ised keen supervision.
Ms. Harmala denies being told about the kissing incident or promising anything.
The girl was in Ms. Harmala's class with 10 other retarded students, including the 14-year-old kisser. The girl was 12 but had the mental age of 71/2 years.
At their next meeting, the mother said, she told the teacher she did not want the girl left alone with the boy.
Again, Ms. Harmala denies hearing this. She taught the boy for the previous two years and said she never saw any sexually aggressive behavior toward classmates. A 1994 psychological evaluation found no inappropriate sexual behavior.
A couple months later, the mother says she complained to Ms. Harmala about “bra snapping” but arrived home to hear worse.
The girl said that the 14-year-old kisser had raped her and that two other classmates had been fondling her on the bus and in class while Ms. Harmala was in the hall.
The girl said Ms. Harmala allowed the youth to help her open her locker and he raped her in the special-education classroom room after the teacher left for lunch.
The boy said the girl agreed to sexual intercourse. Other boys denied any sexual contact.
Her mother carried the girl's story to Ms. Harmala, the principal and police. Ms. Harmala called Child Protective Services, alerted the girl's other teachers, and arranged for an escort and increased supervision for the girl.
Further, school officials installed windows in doors of special-education classrooms, gave Ms. Harmala a long-requested aide, implemented a hall pass rule, put an aide on the youngsters' bus and advised all three boys to get counseling on how to act with girls.
Her mother kept the girl home while police investigated; all three boys remained in class.
In January 1995, police said the accused rapist would be charged and he was suspended from school. The other boys were not prosecuted or disciplined and the girl returned to school that same month.
Her mother sued the educators and school board for gross negligence and violations of her daughter's Constitutional rights to equal protection and bodily integrity and a discrimination-free education under Title IX of the Education Amendments of 1972.
U.S. District Judge Robert E. DeMascio granted summary judgment to the defense, saying there was no disagreement on key issues and the law favored the educators.
The mother appealed and lost again.
Judges Kennedy and Siler said that even if the mother's story were true, the board and superintendent were immune from liability under Michigan law because they acted within their authority and there was no evidence of gross negligence.
(Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”)
The judges said there was no violation of the equal protection clauses in the U.S. Constitution because the mother produced no evidence that her daughter was treated differently than boys who made similar complaints.
Judges Siler and Kennedy said the girl's bodily integrity claim would be a constitutional question if a teacher or other school employee were accused. However, the youths were not school officials and compulsory attendance created no “special relationship” that required educators to protect the girl from classmates.
Turning to Title IX — barring sex discrimination in federally funded education — Judges Siler and Kennedy said the mother had no case against educators as individuals because they personally received no federal money.
Finally, the judges said, the Title IX case failed against the educators in their official roles because there was no evidence of deliberate indifference; they heard about harassment after it happened.
“Once they did learn of the incidents, they quickly and effectively corrected the situation,” Judge Siler wrote.
Wrong on at least two points, Judge Moore said:
• When one side seeks summary judgment, the court must assume the other side's story is true. The mother said Ms. Harmala knew about the older youth's kiss, and the teacher's failure to supervise the girl left the two youngsters alone during lunch. If the mother proved that, it could be gross negligence.
• Similarly, the mother said she told Ms. Harmala about the kissing incident and if jurors concluded that was harassment, educators had notice of harassment and “no steps were actually taken to minimize or stop the harassment.” That could be “deliberate indifference.”
With such central facts unresolved, she concluded, Judge DeMascio should not have granted summary judgment.
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