Deliberate indifference to student-on-student sexual harassment claims under Title IX; Doe v Metropolitan Gov’t of Nashville & Davidson Cnty; “Before” claims under Title IX & 42 USC § 1983; “After” claim; Forfeiture of issue as to emotional-distress damages; Cummings v Premier Rehab Keller, PLLC; Metro Nashville Public Schools (MNPS)

The court affirmed the district court’s ruling that defendant-MNPS was liable on plaintiff-S.C.’s Title IX “after” claim of deliberate indifference to student-on-student sexual harassment. But because the district court did not have the benefit of Doe, the court vacated as to S.C.’s Title IX and § 1983 “before” claims. S.C. asserted a Title IX claim for deliberate indifference by MNPS before she was assaulted by another student at high school; “a Title IX ‘after’ claim, alleging deliberate indifference by MNPS during the school’s investigation into her harassment; and Fourteenth Amendment equal protection claims” under § 1983. She “was videorecorded engaging in sexual activity with a male student on school property; however, S.C. did not consent to either the sexual contact or its videorecording. The video was rapidly shared on social media and third-party websites[.]” After a meeting was scheduled with S.C and her mother about the incident, students “began harassing and threatening S.C. and her family via social media.” The court noted three other female students had sued MNPS alleging “the same pattern of events[.]” Two of them were the plaintiffs in Doe. In the current appeal, the court held as to S.C’s “before” claim that “a reasonable jury could find ‘that [S.C.’s] unwelcome sexual contact was a result of MNPS’s indifference to the problem of pervasive sexual misconduct in the schools.’” It noted there were over 1,000 instances of sexual misconduct documented at MNPS schools during the 2016-17 school year alone. Under Doe, there is “Title IX liability when a school is deliberately indifferent to a widespread pattern of sexual harassment.” The court noted the “before” claim here was “effectively identical to” those of the Doe plaintiffs, “and the district court did not have the benefit of the proper standard of review when evaluating S.C.’s ‘before’ claim . . . .” As to the “after” claim, the court held that the district court did not clearly err in finding school officials were “aware of the continuing and severe threats made against S.C. and” yet the school took no action “in response to the bullying and threats against S.C. beyond directing her to the police.” Thus, the district court correctly found MNPS “liable under Title IX for its deliberate indifference to the threats made against S.C. and her family.” The court affirmed the $75,000 damages award for loss of educational benefits and emotional distress, despite Cummings, holding that because “the legality of Title IX emotional distress damages remained an open question during the pendency of this case, MNPS forfeited any challenge to the issue by not raising it before the district court.” Affirmed in part, vacated in part, and remanded.