11th Circuit Weighs School Response to Disabled Student Harassment Claim

MIAMI, Fla. (CN) – Fighting to resurrect their sexual harassment lawsuit, a Florida couple claimed in an 11th Circuit appeal Friday that a teacher who made lewd advances on their disabled son was allowed to continue to work around him at his high school, leading him to drop out of classes.

Albert and Barbara Saphir’s attorney, Michael Dolce, argued that the Broward County School Board failed to keep its employee away from the boy after reports surfaced that she’d been inappropriately touching him at a school dance.

Dolce said the Saphirs’ son, a developmentally delayed student, recalled repeatedly encountering the school employee, then 52 years old, at  Cypress Bay High School after the dance.

“[The son’s] testimony was that he saw her so frequently that he thought she was stalking him,” he said.

Dolce told the panel that the stress from the school dance incident, and from subsequent contact with the employee, caused the Saphirs’ son to suffer from worsening depression, which led him to contemplate suicide. Meanwhile, the attorney claimed that when dealing with the Saphirs’ son, school board staff “reinforced the message that [the employee] had done nothing wrong” and that he was being untruthful.

The school board’s attorney, Hudson Carter Gill, countered with an argument that prevailed in the lower court last year. He said that the incident at the dance was the first time the school learned about alleged inappropriate contact between the employee and the Saphirs’ son, and that once the conduct became known, reasonable measures were taken to comply with the Saphirs’ demand that the employee be kept away from the son.

“There was no interaction . … The only thing was that they were on the same physical campus,” Gill told the appellate panel.

Both sides agree that the most egregious allegation was not revealed until 2014, two years after the dance. That’s when the Saphirs’ son reported to a therapist that in addition to the hand-holding and embraces that had been witnessed at the dance, the teacher touched his private parts that night.

The new allegation prompted a criminal investigation, though no charges were filed against the employee. According to the Saphirs, the Office of the State Attorney for Broward indicated it could not pursue charges against her because too much time had passed. The employee, who is not named as a defendant in the lawsuit, ultimately resigned.

Opposing counsel butted heads Friday over whether the school board neglected to uncover the more severe allegation at an earlier date.

While the Saphirs’ attorney said that the school staff neglected to interview their son and thereby failed to timely uncover the claim of genital groping, the school board’s attorney suggested that the victim’s developmental disability led school staff to believe it wouldn’t be fruitful to prod him about the alleged misconduct.

In an early line of questioning, presiding U.S. Circuit Judge Stanley Marcus pressed the Saphirs’ attorney on whether he could show  “deliberate indifference” on the part of school staff, a requirement for the Saphirs to prevail on their sexual harassment claims under Title IX. (Title IX is a federal statute that prohibits sexual harassment and gender-based discrimination in schools and educational programs funded by federal government dollars.)

“What should they have done that they didn’t do?” the judge asked. “As best we can tell, the [school] kept [the employee and the Saphirs’ son] apart.”

Dolce argued in turn that the school could have forwarded the matter to a special investigation unit in 2012, notwithstanding that the more serious allegation of sexual contact had not yet been revealed. And the teacher could have been suspended or otherwise removed from the school, he said.

He added that the Saphirs’ son (now an adult under their care) endured a constant reminder of the controversy, as he was unable to regularly attend his final period class because of the employee’s presence or potential presence there.

The case is on appeal from the Southern District of Florida, where a judge last year found that the Saphirs failed to prove that school staff were in a position to prevent the alleged abuse.

The judge rejected the plaintiffs’ claims for negligent hiring and supervision, noting that there appeared to be  no pertinent prior complaints about the employee which would’ve put the Weston-area school on notice that she posed a danger to students.

The judge further found that under the applicable Title IX precedent, the Saphirs failed to show the school higher-ups acted with deliberate indifference after receiving complaints about the employee being “all over” the Saphirs’ son at the dance.

“Once an appropriate person at the school had actual notice of the harassment that occurred at the ball . . . school officials investigated the incident and informed several staff members that [the teacher] was not allowed to be around [the victim],” the lower court ruling reads.

School officials “took timely and reasonable measures to ensure” the employee was not in contact with the victim, the lower court ruled.

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