The 10th U.S. Circuit Court of Appeals has whitewashed a Colorado school district of liability for its failure to take any action against four boys who coerced a learning disabled girl into performing sex acts on them.

The principal of Steamboat Springs High School did not discipline any of the girl's tormentors even though the school resource officer who investigated her complaint confirmed that she had been sexually harassed. The boys had threatened to show nude pictures of her around school if she did not comply with their demands.

The girl's mother, Kristine Rost, sued the district for violating her due process and equal protection rights. But a 2-1 majority of the 10th Circuit upheld summary dismissal of the case, saying in its opinion that the district's inaction “was not clearly unreasonable so as to be deliberately indifferent to the harassment.”

“This is not a situation where a school district learned of a problem and did nothing,” Judge Paul J. Kelly wrote. “Rather, given a complicated situation involving the rights of many parties including the alleged perpetrators, the school district deferred to law enforcement.”

The resource officer, Jason Patrick, concluded that it would be difficult to prove the girl did not consent to the sexual conduct and prosecutors declined to file criminal charges.

Kelly did not discuss whether a girl of her age and mental condition was capable of consent. And in a strong dissent, Judge Michael McConnell argued that the principal should have acted after receiving Patrick's report even if the girl was not a victim of criminal assault.

“A great deal of harassment falls short of the criminal; that does not mean a school with actual knowledge of harassing conduct is free to ignore it,” he said.

The harassment of the girl, identified only as K.C., began when she was in middle school and continued in her freshman year at Steamboat Springs High. Things got so bad that she was afraid to go to a math class in which one of her tormentors, Steven Thomas, had also enrolled.

The girl told a middle-school counselor in the spring of 2002 that the boys were “bothering” her, but she did not disclose until January 2003 that Thomas was pestering her for oral sex and that he and another boy, Nick Mangione, had coerced her into sexual conduct. A couple of weeks after reporting the abuse, she suffered an acute psychotic episode.

McConnell found the district's inaction “clearly unreasonable in the light of the known circumstances.” Mangione, he said, had previously been disciplined for harassment,

Yet the school district did absolutely nothing. No discipline. No counseling. No communications with the boys’ parents. The principal did not even call the perpetrators into his office for an admonitory chat. This cannot be a reasonable response.

The institutional failures K.C. has suffered are nothing if not alarming -– as McConnell noted, the middle-school counselor did not even inquire into how exactly the boys were “bothering” her. Unless the 10th Circuit reconsiders, it will have failed her, too.

By Matthew Heller
1/11/08