Appeals Court: Schools Can Be Sued For Student-On-Student Sexual Harassment

School districts can be held liable under the Elliott-Larsen Civil Rights Act (ELCRA) for creating a hostile educational environment arising from student-on-student sexual harassment, the Michigan Court of Appeals has ruled for the first time.

“[S]chools stand in loco parentis to the offending student and can be held vicariously liable for student-on-student harassment,” the Court of Appeals held in Doe v Alpena Public School District, et al. (Docket No. 359190). The term in loco parentis means “in place of a parent” and refers to the legal responsibility of a person or organization to perform the functions or responsibilities of a parent.

“We conclude that the trial court erred when it held that student-on-student sexual harassment claims are not actionable under the ELCRA,” the Court of Appeals said in a published opinion written by Judge Thomas C. Cameron. Judge Sima G. Patel and Judge Anica Letica joined the decision.

Background

The plaintiff sued the defendants, the Alpena Public School District and the Alpena Board of Education, in Alpena County Circuit Court on behalf of a female student. The plaintiff alleged the defendants created a sexually hostile educational environment by not adequately responding to several incidents of student-on-student sexual harassment at Besser Elementary School.

The defendants filed a motion to dismiss the plaintiff’s claims pursuant to MCR 2.116(C)(8) (failure to state a claim) and MCR 2.116(C)(10) (no genuine issue of material fact). The defendants maintained that student-on-student sexual harassment is not actionable under the ELCRA and that, even if it was actionable, the plaintiff did not satisfy the elements of her claim.

The trial court granted the defendants’ motion for summary disposition. According to the trial court, there is no remedy under the ELCRA for hostile educational environment claims arising from student-on-student harassment. The trial court also held that, even if a claim could be stated on this basis, the plaintiff failed to demonstrate there was a genuine issue as to whether the defendants were vicariously liable for the alleged actions.

The plaintiff appealed.

Vicarious Liability

On appeal, the plaintiff argued the trial court erroneously granted the defendants’ motion for summary disposition under MCR 2.116(C)(8) by improperly finding that a hostile educational environment claim based on student-on-student harassment is not actionable under the ELCRA.

“We agree,” the Court of Appeals said, explaining there are three general types of sexual harassment under MCL 37.2103(i):

• Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing.

• Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual's employment, public accommodations or public services, education, or housing.

• The conduct or communication has the purpose or effect of substantially interfering with an individual's employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment.

“This case requires us to determine whether [the plaintiff] was subjected to a hostile educational environment,” the Court of Appeals said, noting the doctrine of respondeat superior was at play. Under the doctrine of respondeat superior, an employer is responsible for the actions of its employees performed during the course of their employment.

“Historically, this doctrine held that employers are vicariously liable for the acts of their employees because ‘[a]n employer is generally liable for the torts its employees commit within the scope of their employment,’” the Court of Appeals explained. “Whether schools also exercise control over their students such that a school may be vicariously liable for students’ conduct is an issue of first impression. There is a difference between employers’ control over their employees and schools’ control over their students. … However, this does not mean that schools lack all control over student conduct. A basic principle of Michigan jurisprudence is that schools exercise some amount of control over students via their responsibility in loco parentis.”

Next, the Court of Appeals pointed out that Revised School Code, MCL 380.1 et seq., says in part: “[I]f a pupil enrolled in grade 6 or above commits a physical assault at school against another pupil and the physical assault is reported to the school board, school district superintendent, or building principal, then the school board or the designee of the school board … on behalf of the school board shall suspend or expel the pupil from the school district for up to 180 school days.” The statute further says that, where a student commits a criminal sexual assault against another student, the school “may authorize or order the suspension or expulsion from school” pursuant to MCL 380.1311(1), the appeals court observed.

In addition, a school’s authority over students “is not just in the extreme case of suspension or expulsion - a school is also permitted to exercise ‘restorative practices’ designed to ‘repair[] the harm to the victim and the school community caused by a pupil’s misconduct’ pursuant to MCL 380.1310c,” the Court of Appeals said.

Based on the foregoing authorities, “we hold that schools do exercise a measure of control over students such that they may be vicariously liable for hostile educational environment discrimination arising from student-on-student harassment,” the Court of Appeals wrote. “We find support for this conclusion in a similar federal district court case, Williams v Port Huron Area Sch Dist Bd of Ed, unpublished opinion of the United States District Court for the Eastern District of Michigan, issued March 30, 2010 (Case No. 06-14556), rev’d on other grounds Williams v Port Huron Sch Dist, 455 Fed Appx 612 (2012).”

In Williams, the federal district court said that hostile educational environment claims often involve incidents between teachers and students, and are resolved using the framework for hostile work environments. “However, the federal court was ‘not convinced that teachers have greater protections under the ELCRA than students,’” the Court of Appeals noted. “In the federal district court’s view, a school’s vicarious liability for student-on-student harassment could also be established using the hostile work environment framework.”

Here, the trial court granted the defendants summary disposition under MCR 2.116(C)(8) because the plaintiff did not cite “any binding authority that extends ‘student-on-student’ harassment to an ELCRA claim,” the Court of Appeals said. “However, schools stand in loco parentis to the offending student and can be held vicariously liable for student-on-student harassment. Thus, the trial court erred in granting summary disposition simply because plaintiff asserted a claim predicated on student-on-student harassment.”

The Court of Appeals continued by rejecting the plaintiff’s claim that the trial court wrongly granted the defendants’ motion for summary disposition under MCR 2.116(C)(10). To succeed under this court rule, the defendants “needed to present documentary evidence showing that they investigated the incidents and took prompt and appropriate remedial action immediately upon learning of [the student’s] behavior,” the Court of Appeals stated. “Defendants satisfied this burden.”

As a result, the burden shifted to the plaintiff to show a genuine issue remained as to whether the defendants properly addressed the incidents. “While plaintiff’s response to the motion for summary disposition included a number of exhibits, plaintiff failed to pinpoint anything within the exhibits to support her assertions,” the Court of Appeals said. “Moreover, plaintiff failed to explain why defendants’ other actions - [the student’s] suspensions from school and his removal from the fourth-grade class - were not appropriate remedial actions. Thus, summary disposition was appropriate because plaintiff failed to meet her burden as the nonmoving party.”

The Court of Appeals concluded by emphasizing that the ELCRA provides a remedy for plaintiffs who allege hostile educational environment claims on the basis of student-on-student harassment. “A school avoids vicarious liability for these claims if it investigates and takes prompt and appropriate remedial action upon learning of the student’s behavior.”

Even though the trial court “erred to the extent it concluded summary disposition was proper under MCR 2.116(C)(8), it correctly granted summary disposition under MCR 2.116(C)(10) because plaintiff failed to show a genuine dispute of fact that defendants did not take prompt and appropriate remedial action,” the Court of Appeals said. “[W]e will not reverse where the right result is reached for the wrong reason.”