Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Dear colleagues;

Sorry this is so long - I usually try to summarize - but it is very important 
and worth reading in its totality --

Wendy Murphy
New England School of Law

617-422-7410

(Cite as: 2006 WL 2662027 (D.Conn.))United States District Court,
D. Connecticut.
John DOE, ex rel. Sally Doe, Plaintiff,v.DERBY BOARD OF EDUCATION, Defendant, 
No. 3:04CV01452(JBA).Sept. 15, 2006.

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DOC. # 22]
ARTERTON, D.J.

*1 John Doe, on behalf of his minor daughters Jane and Sally Doe, brought 
suit against the Derby Board of Education ("Board") alleging a violation of 
Title IX of the Educational Amendments of 1972, 20 U.S.C. §§ 1681-1688. Jane 
Doe subsequently voluntarily withdrew her claim, leaving Sally Doe as the 
sole minor plaintiff represented by John Doe. Defendant Board now moves 
pursuant to Fed.R.Civ.P. 56 for summary judgment on plaintiff's claim. See 
[Doc. # 22]. For the reasons that follow, defendant's motion will be denied.

I. Factual Background
In July, 2002, plaintiff Sally Doe, a 13-year-old student at Derby Middle 
School, was sexually assaulted by Christopher Porto, Jr , a 17-year-old 
student at Derby High School. See Affidavit of Sally Doe ("Sally Aff.") [Doc. 
# 29-3] ¶¶ 1-3. The assault occurred during summer recess and off school 
grounds. See Deposition of Sally Doe ("Sally Dep.") [Doc. # 24-2] at 27-28. 
While it is undisputed that Porto, Jr. was eventually arrested and charged 
for the sexual assault of Sally Doe, plaintiff attests he was arrested in 
August 2002, while defendant Board claims he was not arrested until September 
2002. See Sally Aff. ¶ 2; Defendant's Rule 56(a)1 Statement ("56(a)1") [Doc. 
# 24-1] ¶ 7.

Both Sally Doe and Porto, Jr. returned to school in fall 2002. See Sally Aff. 
¶ 4. The record is unclear whether Porto, Jr. missed any school due to the 
arrest. At the time, Derby High School and Middle School students attended 
classes in the same building. Although the classes were held separately, 
students from the high school could interact with students from the middle 
school, and vice versa. See id. ¶ 3.
John Doe first complained to the school principal, Charles DiCenso, about the 
sexual assault of his daughter sometime in September, although the precise 
date is in dispute. See Affidavit of John Doe ("John Aff.") [Doc. # 29-2] ¶¶ 
5-6; 56(a)1 ¶ 12. Plaintiff contends that after school started in early 
September, Sally Doe told her father that Porto, Jr. was still in school. See 
John Aff. ¶ 5. Outraged, John Doe called the school to complain, and a 
meeting between John Doe and DiCenso was scheduled for mid-September. See id. 
¶ 6. Defendant claims the meeting occurred before the school year started. 
See 56(a)1 ¶ 12
Plaintiff maintains that defendant had actual knowledge of the sexual assault 
soon after Porto, Jr.'s arrest. See Rule 56(a)2 Statement ("56(a)2") [Doc. # 
29-1] ¶ 4; John Aff. ¶ 3; Sally Aff. ¶ 4. Plaintiff claims that the 
investigation and eventual arrest of Porto, Jr. were widely reported in the 
media. See John Aff. ¶ 3; Sally Aff. ¶ 4. Further, plaintiff argues that 
defendant must have known of the arrest because Porto, Jr.'s father, 
Christopher Porto, Sr., was a voting member of defendant Derby Board of 
Education. See 56(a)2 ¶ 6; John Aff. ¶ 6. Defendant, however, contends it had 
no actual knowledge of the sexual assault of Sally Doe until John Doe 
complained to Principal DiCenso. See Affidavit of Charles DiCenso ("DiCenso 
Aff.") [Doc. # 24-5] ¶ 8; 56(a)1 ¶¶ 16, 20.
*2 In any event, John Doe met with Principal DiCenso sometime in September 
and demanded that Porto, Jr. be removed from school. See John Aff. ¶ 6. Based 
on the meeting with John Doe, DiCenso decided to suspend Porto, Jr. for ten 
days. See DiCenso Aff. ¶ 5. DiCenso allegedly instructed John Doe that in 
order to initiate expulsion proceedings against Porto, Jr., Sally Doe would 
need to provide a statement about the sexual assault and cooperate with 
school authorities. See John Aff. ¶ 6. John Doe told DiCenso that he "would 
not subject his daughter to that sort of thing and that if [DiCenso] was 
curious he should obtain the police report from the Derby Police Department." 
Id. DiCenso also allegedly told John Doe that before taking action against 
Porto, Jr., he needed to speak with Christopher Porto, Sr., a member of 
defendant Board. See id.
Sally Doe never presented her claims to DiCenso or any member of the Board 
and Porto, Jr. was allowed to return to school after his ten-day suspension. 
See DiCenso Aff. ¶ 6. John Doe claims that defendant failed to inquire of the 
Derby Police about the facts of the sexual assault. See John Aff. ¶ 6. 
Defendant maintains that plaintiff refused to cooperate, and that it followed 
the Derby school system's procedural guidelines for suspension and expulsion. 
See DiCenso Aff. ¶ 6. Dicenso states that he decided not to pursue expulsion 
of Porto based on the advice of counsel. See id.

Throughout the 2002-2003 school year, Sally Doe was the victim of off-campus 
teasing and harassment by Porto, Jr.'s friends, who spit at her and called 
her a "slut." See 56(a)2 ¶ 7-10; Sally Aff. ¶¶ 5-6; Sally Dep. at 20, 30. 
Although she states in her affidavit that Porto Jr.'s friends would harass 
her both in and out of the school, her deposition testimony explicitly 
contradicts this statement, as she testified that she was subject to 
harassment by Porto Jr.'s friends "not during school but out of school," 
Sally Dep. at 30, and "a party may not create an issue of fact by submitting 
an affidavit in opposition to a summary judgment motion that ... contradicts 
the affiant's previous deposition testimony. See Bickerstaff v. Vassar 
College, 196 F.3d 435, 455 (2d Cir.1999). However, as discussed infra, even 
the evidence of off-campus harassment by Porto, Jr.'s friends is probative of 
plaintiff's claim. Sally Doe also claims she frequently saw Porto, Jr., 
although there is nothing in the record indicating that he himself harassed 
her after the assault. See Sally Dep. ¶¶ 20-21; Sally Aff. ¶¶ 4-6. The 
experience of seeing Porto, Jr. and being harassed by his friends, "was very 
upsetting" to Sally Doe and made her "school year very hard." See Sally Aff. 
¶ 7.

Defendant claims that if Sally Doe was teased, harassed, or subject to 
contact with Porto, Jr., she made no complaints to the Derby school system. 
See Rule 56(a)1 ¶ 9; DiCenso Aff. ¶ 9. Further, although her affidavit claims 
otherwise, Sally Doe testified in her deposition that she was not subjected 
to, and never complained of, harassment during the 2002-2003 school year. See 
Sally Dep. at 20-21, 29-30.

*3 After finishing eighth grade at Derby Middle School, Sally Doe transferred 
to Platt Vocational School, not a part of the Derby school system. See Sally 
Aff. ¶ 8. Sally Doe's affidavit claims that she transferred schools to escape 
harassment and contact with Porto, Jr. See id. She testified at her 
deposition that she transferred to get away from the "stuck-up and fake" 
girls at Derby High, and to meet new people and new friends. See Sally Dep. 
at 19-20. Porto, Jr. was eventually expelled from Derby High School before 
the 2003-2004 school year, after being arrested for sexually assaulting 
another female student. See John Aff. ¶ 8.

II. Standard

Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) 
when the moving party establishes that there is no genuine issue of material 
fact to be resolved at trial and that the moving party is entitled to 
judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317 
(1986). A party seeking summary judgment "bears the burden of establishing 
that no genuine issue of material fact exists and that the undisputed facts 
establish [its] right to judgment as a matter of law." Rodriquez v. City of 
New York, 72 F.3d 1051, 1060-61 (2d Cir.1995) (citing Adickes v. S.H. Kress & 
Co., 398 U.S. 144, 157 (1970)). Materiality is determined by the substantive 
law that governs the case, and "only disputes over facts that might affect 
the outcome of the suit under governing law will properly preclude the entry 
of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 
(1986). "Where the record taken as a whole could not lead a rational trier of 
fact to find for the nonmoving party, there is no genuine issue for trial." 
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

In moving for summary judgment against the party who will bear the burden of 
proof at trial, the movant's burden of establishing that there is no genuine 
issue of material fact in dispute will be satisfied if he or she can point to 
an absence of evidence to support an essential element of the non-moving 
party's claim. See Celotex, 477 U.S. at 322-23. "A defendant need not prove a 
negative when it moves for summary judgment on an issue that the plaintiff 
must prove at trial. It need only point to an absence of proof on plaintiff's 
part, and, at that point, plaintiff must 'designate facts showing that there 
is a genuine issue for trial." ' Parker v. Sony Pictures Entm't, Inc., 260 
F.3d 100, 111 (2d Cir.2001) (quoting Celotex, 477 U.S. at 324); see also 
Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir.1994) 
("[T]he moving party may obtain summary judgment by showing that little or no 
evidence may be found in support of the nonmoving party's case."). The 
non-moving party, in order to defeat summary judgment, must then come forward 
with evidence that would be sufficient to support a jury verdict in his or 
her favor. Anderson, 477 U.S. at 249 ("[T]here is no issue for trial unless 
there is sufficient evidence favoring the nonmoving party for a jury to 
return a verdict for that party."). In making this determination, the Court 
draws all reasonable inferences in the light most favorable to the party 
opposing the motion. Matsushita, 475 U.S. at 587. However, a party opposing 
summary judgment "may not rest upon the mere allegations or denials of the 
adverse party's pleading," Fed.R.Civ.P. 56(e), and "some metaphysical doubt 
as to the material facts" is insufficient. Id. at 586; see also Knight v. 
U.S. Fire Insurance Co., 804 F.2d 9, 12 (2d Cir.1986) ( A non-moving party's 
"mere speculation or conjecture as to the true nature of the facts" will not, 
by itself, defeat a motion for summary judgment).

III. Discussion

*4 Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, 
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 ." 20 U.S.C. § 1681(a). Recipients of federal funding, 
like the Derby Board of Education, may be liable for damages under Title IX 
for student-on-student sexual harassment. See Davis v. Monroe Cty. Bd. of 
Educ., 526 U.S. 629, 653 (1999). There is no dispute that defendant receives 
federal funding and is therefore liable for Title IX student-on-student 
sexual harassment. The issue before the Court is whether plaintiff has 
proffered sufficient evidence on each element of a Title IX claim to survive 
summary judgment.

In Davis, the Supreme Court established that a Title IX claim based on 
student-on-student harassment is supported when the plaintiff demonstrates 
the following elements: 1) the sexual harassment was so severe, pervasive, 
and objectively offensive that it could be said to deprive the plaintiff of 
access to the educational opportunities or benefits provided by the school; 
2) the funding recipient had actual knowledge of the sexual harassment; and 
3) the funding recipient was deliberately indifferent to the harassment. See 
Vance v. Spencer Cty. Pub. School Dist., 231 F.3d 253, 258-59 (6th Cir.2000) 
(citing Davis, 526 U.S. at 633); see also Kelly v. Yale Univ., No. 
3:01-CV-1591 (JCH), 2003 WL 1563424, at *1, *4 (D.Conn. Mar. 26, 2003). Title 
IX liability for student-on-student harassment is limited "to circumstances 
wherein the [funding] recipient exercises substantial control over both the 
harasser and the context in which the known harassment occurs." Davis, 526 
U.S. at 645.

A. Severity of Harassment

There is no dispute that student-on-student sexual assault can constitute 
sexual harassment for Title IX purposes. See Soper v. Hoben, 195 F.3d 845, 
855 (6th Cir.1999) (victim's allegations of rape, sexual abuse and harassment 
qualify as severe, pervasive, and objectively offensive sexual harassment); 
Kelly, 2003 WL 1563424, at *3 (plaintiff's allegations of rape constitute 
severe and objectively offensive sexual harassment). Here, even though the 
defendant Board could not be liable for the rape of Sally Doe, see infra at 
15, it could still be liable for deliberate indifference to known 
post-assault harassment "in a context subject to the school district's 
control," if the harassment was "so severe, pervasive, and objectively 
offensive that it can be said to deprive [plaintiff] of access to the 
educational opportunities or benefits provided by the school." Davis, 526 
U.S. at 645, 650; Kelly, 2003 WL 1563424, at *3.

The evidence shows that Porto, Jr. was permitted to continue attending school 
in the same building as Sally Doe after the assault, leaving open the 
constant potential for interactions between them, and indeed Sally Doe states 
in her affidavit that she saw Porto, Jr. frequently during the school year. 
Sally Aff. ¶¶ 4-7; John Aff. ¶¶ 5-6. She also testifies that Porto, Jr.'s 
friends harassed her on several occasions. Sally Aff. ¶¶ 6-7. For the reasons 
that follow, this evidence could support a reasonable jury conclusion that 
these circumstances rose to the level of "severe, pervasive, and objectively 
offensive" under Davis.

*5 In Kelly, the plaintiff, a sexual assault victim, continued to attend Yale 
Divinity School with her attacker. Although she had no interactions with, and 
was not harassed by, her attacker after the assault, his "presence on campus 
and the accompanying risk that she might encounter him created a hostile 
environment that effectively deprived her of the educational opportunities or 
benefits provided by the school." Kelly, 2003 WL 1563424, at *3. The court 
held that a reasonable jury could find that "following the assault, [the 
attacker's] presence on campus was harassing because it exposed her to the 
possibility of an encounter with him." Id. In similar fashion, Sally Doe was 
constantly exposed to a potential encounter with her assailant because Derby 
High School and Middle School were housed in the same building such that 
students from each could readily come in contact with each other. In fact, 
Sally Doe's affidavit states that she saw Porto, Jr. many times during the 
school year and that the experience of seeing him "was very upsetting" and 
made the "school year very hard." See Sally Aff. ¶¶ 5, 7. Thus, even absent 
actual post-assault harassment by Porto, Jr., the fact that he and plaintiff 
attended school together could be found to constitute pervasive, severe, and 
objectively offensive harassment.

In addition to the evidence that Sally Doe saw Porto, Jr. in school, there is 
also the evidence that his friends harassed her off of school grounds. [FN1] 
Sally Doe testified in her deposition that Porto, Jr.'s friends would harass 
her every time she "saw him." See Sally Dep. at 29-30. While it is not clear 
who "him" refers to, a reasonable jury could infer that "him" referred to 
Porto, Jr. The friends would allegedly drive by Sally Doe in a blue truck and 
call her a "slut". She states that this harassment occurred more than once, 
although she cannot name any of the people in the blue truck. That she was 
harassed by Porto, Jr.'s friends, even if on his behalf, off school grounds, 
is not actionable because Davis mandates that the Board cannot be liable for 
any deliberate indifference to harassment in a context over which the Board 
does not have control. [FN2] However, as considered below, this evidence of 
"proxy-harassment" does bolster plaintiff's claim concerning the severity and 
offensiveness of having to go to school in the same building as Porto, Jr.

FN1. As noted, supra, Sally Doe's affidavit stating that she was also 
harassed by Porto Jr.'s friends in school cannot be used to create a factual 
dispute as it directly contradicts her deposition testimony that Porto Jr.'s 
friends harassed her out of school only.

FN2. It also appears undisputed that the Board was never given notice of any 
such "proxy-harassment." See Sally Dep. at 21; Dicenso Aff. ¶ 9.

Plaintiff must be able to demonstrate that the circumstances were 
sufficiently pervasive, severe, and objectively offensive to "effectively 
deprive[ ] her of 'the educational opportunities or benefits provided by the 
school." ' Kelly, 2003 WL 1563424, at *1, *3 (quoting Davis, 526 U.S. at 
650). Plaintiff claims that as a result of the potential for seeing and/or 
interacting with Porto, Jr., she transferred out of the Derby school system 
after eighth grade. See Sally Aff. ¶ 8. John Doe testified that "Sally, she 
was, she didn't say too much but she was getting harassed at Derby High 
School so I transferred her to Platt Tech in 9th Grade.... She came home 
every day and she was miserable so I know--she really wouldn't tell me what 
was going on but I just assumed that, you know, she was getting some shit, 
you know." See Deposition of John Doe ("John Dep.") [Doc. 30-5] at 15. Sally 
Doe gives alternative reasons for leaving the Derby school system, although 
she does not contradict her father's account that the post-assault situation 
at school factored into her decision to transfer. Indeed, she states in her 
affidavit that going to school in the same building as Porto, Jr. pushed her 
into transferring to Platt Tech. See Sally Aff. ¶ 8. But she also explained 
at deposition that she wanted to leave Derby High School because the girls 
there "act really nice to your face and then talk about you.... Oh, they just 
talk, I don't know. They weren't saying anything bad it's just I don't like 
them--I didn't like the girls. I went to Platt Tech so I could meet new 
people, I did not want to stay with all of those stuck up girls." See Sally 
Dep. at 19.

*6 Despite defendant's argument to the contrary, there is minimally 
sufficient evidence from which a reasonable jury could conclude that going to 
the same school as Porto, Jr. played a role in Sally Doe's decision to 
transfer out of Derby High School, thus depriving her of its educational 
opportunities or benefits. As noted above, the proxy-harassment by Porto, 
Jr.'s friends, while not actionable, supports plaintiff's claim that an 
interaction with Porto, Jr., like her interactions with these friends, would 
be sufficiently distressing or threatening such that the fact of their 
continued mutual presence in the same building and concomitant possibility of 
potential interaction impacted her decision to transfer. Moreover, John Doe's 
testimony about Sally Doe's behavior preceding her transfer is 
uncontradicted, and while Sally Doe points to additional reasons why transfer 
was attractive to her, she also states that "[her] experiences having to go 
to that school while Porto was there, with his friends, made me want to leave 
the school and in fact I did eventually leave." See Sally Aff. ¶ 8.

Thus, plaintiff has presented genuine issues of material fact with respect to 
the first element of the Davis test.

B. Notice to Derby Board of Education

While the Board may be liable for the post-assault school situation, there is 
no dispute that the Board did not receive notice of Porto, Jr.'s sexual 
assault of Sally Doe until after the rape took place and therefore, under 
Davis, the Board cannot be held liable for the sexual assault itself. See 
Davis, 526 U.S. at 642, 649 (actual and adequate notice of harassment 
required before liability is triggered); Reese v. Jefferson School Dist. No. 
14J, 208 F.3d 736, 740 (9th Cir.2000) (defendant school board not liable for 
harassment that occurred before plaintiff reported conduct to the school); 
Kelly, 2003 WL 1563424, at *1, *3 (defendant University not liable for an 
off-campus sexual assault that occurred before plaintiff reported any 
harassment).

When the Board received notice of the sexual assault remains in dispute, 
although plaintiff contends that the Board became aware of the assault 
through the substantial media attention devoted to the investigation and 
arrest of Porto, Jr. in the summer of 2002 and potentially even earlier 
because Porto, Jr.'s father was a member of the Board. Whether defendant had 
actual knowledge of the assault before the 2002-2003 school year began, or 
only after it started when John Doe complained, could have significance to 
the jury in deciding whether defendant's response amounted to deliberate 
indifference.

"Although the actual knowledge standard has been applied repeatedly bycourts 
since Gebser v. Lago Vistal Indep. Sch. Dist., 524 U.S. 274 (1998), its 
contours have yet to be fully defined." Tesoriero v. Syosset Central School 
District, 382 F.Supp.2d 387, 397 (E.D.N.Y.2005) (internal quotations 
omitted). "Accordingly, it is difficult to define what kind of notice is 
sufficient." Id. (internal quotations omitted). Defendant argues that actual 
notice as set forth in Davis and Gebser requires an actual complaint of 
sexual harassment by the victim or a member of the victim's family to a 
school administrator. Defendant argues that Title IX liability does not 
accrue simply because the Board should have known of the sexual assault 
through the news media. "But most courts agree that '[o]n the other hand, the 
actual notice standard does not set the bar so high that a school district is 
not put on notice until it receives a clearly credible report of sexual abuse 
from the plaintiff-student." ' Tesoriero, 382 F.Supp.2d at 397 (quoting Doe 
v. Sch. Admin. Dist. No. 19, 66 F.Supp.2d 57, 63 (D.Me.1999)).

*7 The record on this motion demonstrates a triable issue of fact as to when 
the Board received actual notice of the sexual assault, as the starting point 
for measuring the adequacy of its response. The nature and extent of media 
coverage of the arrest of Porto, Jr. may be evidence from which actual notice 
could be inferred. The circumstances of Porto, Jr.'s father's knowledge of 
his son's arrest for assault on a student of a school for which he serves as 
a member of the Board of Education could also provide a basis for a 
reasonable jury to conclude that the Board had actual knowledge of the sexual 
assault before John Doe met with Principal DiCenso. Thus, plaintiff has 
proffered sufficient evidence from which a jury could conclude that the Board 
received actual notice of the sexual assault before the 2002-2003 school year 
began, yet failed to take any disciplinary action until Principal DiCenso met 
with John Doe in mid-September. Moreover, even if the jury concludes that the 
Board did not have notice of the incident until Dicenso's meeting with John 
Doe, as discussed below the evidence could nevertheless support a conclusion 
that even after this meeting the Board acted with deliberate indifference to 
the situation of plaintiff attending school in the same building as Porto, Jr.

C. Deliberate Indifference

There being evidence in the record from which it could be found that 
defendant had actual notice of the sexual assault at some point, the central 
issue becomes whether defendant's response, or lack thereof, could be found 
to amount to deliberate indifference. Title IX is violated when a federal 
funding recipient's response to known harassment amounts to "deliberate 
indifference to discrimination." See Hayut v. State Univ. of N.Y., 352 F.3d 
733, 751 (2d Cir.2003) (quoting Gebser, 524 U.S. at 290). "Deliberate 
indifference may be found both when the defendant's response to known 
discrimination is clearly unreasonable in light of the known circumstances, 
and when remedial action only follows after a lengthy and unjustified delay." 
Id. (internal citations and quotations omitted). "[T]he deliberate 
indifference must, at a minimum, cause students to undergo harassment or make 
them liable or vulnerable to it." Davis, 526 U.S. at 645. "Deliberate 
indifference is more than a mere reasonableness standard that transforms 
every school disciplinary decision into a jury question." Tesoriero, 382 
F.Supp.2d at 398 (internal quotations omitted). However, deliberate 
indifference will often be a fact-based question, for which bright line rules 
are ill-suited. See id.

In this case, plaintiff proffers sufficient evidence to permit a finding that 
the Board's response was unreasonably delayed and inadequate so as to 
constitute deliberate indifference by making Sally Doe vulnerable to 
harassment.

First, the evidence that the Board took no disciplinary action whatsoever 
against Porto, Jr. until mid-September 2002 could be a component of a jury 
finding of deliberate indifference, depending on the jury's determination of 
when the Board received actual notice of the assault.

*8 Additionally, the action the Board ultimately took also could be 
questioned as inadequate: Porto Jr.'s brief suspension, after which the Board 
allowed him to remain in school exposing Sally Doe to the potential for 
emotional encounters and harassment, could be found to constitute deliberate 
indifference. In this context the Court notes that the fact that Porto, Jr. 
was not actually expelled is not necessarily indicative of defendant's 
inaction or deliberate indifference. "A victim of peer harassment does not 
have the right to any particular remedial demand, immediate expulsion of her 
alleged harasser, or a remedy that would expose the school to a 
constitutional or statutory claim on the part of the accused, Title IX 
requires that the school make an effort to remedy known peer harassment in a 
manner that is not 'clearly unreasonable." ' Kelly, 2003 WL 1563424, at *4 
(citing Davis 526 U.S. at 648-49). However, the Board's failure to even 
consider expulsion, especially in the conflicted context of the assailant's 
father serving as a member of the Board, could give rise to an inference that 
the Board's reliance on Sally Doe's refusal to provide a statement to it was 
a pretext for protecting the son of a member of the Board, particularly where 
there was no statute requiring a victim statement, [FN3] the Board had the 
Derby Police reports available to it, and the Board did not know whether 
Sally Doe would testify if an expulsion hearing was held. [FN4] Moreover, as 
Porto, Jr. was expelled after he was arrested for allegedly sexually 
assaulting another student sometime during the 2002-2003 school year, [FN5] 
the defendant Board would appear pressed to dispute that expulsion for such 
conduct was a reasonable result, leaving a jury to question whether its 
response to Sally Doe's assault was indifferent and due, at least in part, to 
the fact that Porto, Sr. was a member of the Board.



FN3. While defendant notes that before it can expel a student other than for 
conduct involving deadly weapons or drugs on school grounds, a hearing is 
required to provide the student due process, see Conn. Gen.Stat. § 10-233d, 
defendant points to no statute or other policy, and the Court has found none, 
requiring that the accuser participate in such hearing (or related 
investigation).



FN4. A jury could also conclude that Sally Doe's refusal to provide a 
statement directly to the Board on which the father of her assailant sat, 
particularly when she had already cooperated in the Derby Police Department 
investigation, was justifiable.



FN5. John Doe states that Porto, Jr. was arrested for assaulting another 
student and "at that time" was taken out of school. John Aff. ¶ 8.



Further, even apart from the possibility of expulsion, the Board made no 
other efforts to reduce Sally Doe's vulnerability to traumatic interactions 
with her attacker or to otherwise reach out to her to offer protection. 
Indeed, given the circumstances--including the fact of the assault, Sally 
Doe's youth, and her proximity to Porto, Jr. at school--a jury could conclude 
that the Board should have known, even absent a specific complaint from Sally 
Doe or her father, that this was a particularly risky situation necessitating 
its attention.

Thus, there is evidence from which a jury could reasonably conclude that the 
Board's conduct following its notice of Sally Doe's sexual assault amounted 
to deliberate indifference.

IV. Conclusion

Thus, plaintiff has presented triable issues of fact for each element of her 
Title IX claim arising out of student-on-student sexual harassment. The 
possibility that Sally Doe would interact with her alleged assailant could be 
seen as objectively severe; a reasonable jury could also find that the Board 
had actual knowledge of the sexual assault, even prior to the start of the 
2002-2003 school year; and finally, the fact that the Board failed to 
discipline Porto, Jr. until after John Doe complained, and then only 
suspended him for ten days and did not pursue expulsion, could be seen as 
acting with deliberate indifference to known harassment. Therefore, there are 
triable issues of fact and defendant Board is not entitled to summary 
judgment as a matter of law. Defendant's summary judgment motion [Doc. # 22] 
is DENIED.