Washington v. Pierce, No. 03-487 (Vt. Dec. 16, 2005)
The Vermont Supreme Court has ruled that a student failed to state a cause of action under Vermont's Public Accommodations Act (VPAA) for student-on-student harassment, because she failed to show that she first had exhausted the administrative remedies available to her or to demonstrate a valid reason for not having done so. A biracial student at Harwood Union High School sued her school district, claiming that she was subjected to racial and sexual slurs from peers. In adopting a standard for finding liability for racial or sexual harassment under the VPAA, the court declined to adopt either the "deliberate indifference" standard urged by the school district, which was established in
Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), for federal Title IX claims, or the negligence standard urged by the student. Instead, the court opted to impose the exhaustion of administrative remedies standard, which it found strikes a balance between these two alternatives "by focusing on more easily-ascertainable criteria." This option, the court found, solves the often contentious issue of whether the school had knowledge of the harassment, because exhaustion of remedies implies actual notice. Establishing a valid reason for excusing the exhaustion requirement also relieves the plaintiff of the burden of proving notice.
At trial the student had acknowledged that she was the target of slurs on only two occasions and that the slurs never involved school staff, only students. She also admitted that she never filed a complaint with the school regarding the harassment. In dismissing her case, the trial court adopted the "deliberate indifference" standard. The supreme court affirmed the dismissal of the claim, but in so doing it held that the VPAA recognizes hostile school environment claims based on peer harassment. When the Vermont legislature imposed the statutory duty on schools to adopt harassment policies, the court noted, the stated purpose was to "implement the provisions of [the VPAA] as they affect schools as places of public accommodation." Further, in amending its anti-harassment statute the legislature confirmed that it "envisioned the VPAA as the means of legal redress for victims of in-school harassment."
Turning to the issue of what standard should be applied to student-on-student harassment claims, the court declined to adopt the Title IX "deliberate indifference" standard, finding that the VPAA is a remedial statute aimed at protecting Vermont's citizens from "a number of serious social and personal harms," while Title IX is a funding statute that conditions receipt of funds on compliance with anti-discrimination mandates. The court concluded that VPAA is "sufficiently distinguishable from Title IX in its structure and purpose that we are not inclined to apply the liability standard" from Title IX to a VPAA claim. But the court also rejected the student's argument that it should adopt what the court characterized as a "truncated version of the [federal] Title VII standard." This standard would eliminate from consideration two important factors: (1) the steps, if any, taken by a school to prevent harassment and/or to correct it once it occurs; and (2) whether the alleged victim utilized the school's "preventive or remedial apparatus." Without consideration of these two factors, schools would be exposed to far greater liability than VPAA could be construed to allow.
The court settled on the exhaustion of remedies standard after reviewing the plain language of VPAA and finding that the legislature sought to balance "the coordinate duties of the school to provide a harassment-free environment and the harassment victim to look first to the school's mechanisms to redress in-school harassment." The exhaustion of remedies requirement, along with the five exceptions to the requirement set forth in the statute, avoids either excluding many worthy claims or exposing schools to greater liability than the legislature intended, the court reasoned.
Washington v. Pierce, No. 03-487 (Vt. Dec. 16, 2005)
[Link to full opinion][
Editor's Note: A New Jersey appellate court recently ruled that students in that state have a cause of action for student-on-student harassment under New Jersey's Law Against Discrimination, which like the VPAA prohibits discrimination in public accommodations, including public schools. However, unlike the Vermont Supreme Court, the New Jersey court imposed the Title VII standard on such claims. See below.]
[NSBA School Law pages on L.W. v. Toms River Regional Schools Board of Education]