A landmark $800,000 jury award to a Michigan teenager who was sexually harassed for years by schoolmates sends a message to school districts that taking action against individual students is not enough when there is a pattern of bullying.

A federal jury in Detroit agreed with the parents of Dane Patterson, now 19, that the Hudson Area Schools district showed deliberate indifference to systemic student-on-student sexual harassment — even though perpetrators were warned off when they were caught and even left him alone after that.

Patterson eventually left high school after years of enduring such taunts as “faggot” and “man boobs,” the defacing of his locker with a drawing of a penis inserted into a rectum, an episode in which students urinated on his clothes, and finally a locker room assault in which a star football player rubbed his genitals in Patterson’s face. His parents sued the district for violations of Title IX, the Equal Opportunity in Education Act.

The verdict is eight times what the district offered David and Dena Patterson before the trial. Title IX plaintiffs may also recover attorney fees — which means the final judgment could be the largest ever in a student-on-student harassment case.

The district has vowed to appeal. “[W]hen you’ve got 500 kids and you're supposed to predict what any two or three or one are going to do in advance, well good luck,” its attorney, Timothy J. Mullins, told the Detroit Free Press. “If somebody writes dirty names on a boy's locker and you can't identify who it is, you can't punish the whole school.”

But in many instances, Hudson school officials knew who had abused Patterson. When they would mete out verbal warnings to those perpetrators, the harassment would stop, but other students would come along to torment the boy. The jury found that the district knew about the harassment and deliberately ignored it.

To meet the legal standard of “deliberate indifference,” a school district’s response to harassment has to be “clearly unreasonable” if it is aware of the circumstances.

A federal judge summarily dismissed the Pattersons’ complaint, but the 6th U.S. Circuit Court of Appeals in October reinstated the Title IX sexual harassment claim, finding the verbal reprimands of individual students “did not prevent the overall and continuing harassment of DP [Dane Patterson], a fact of which Hudson was fully aware.”

Title IX, the court noted, says that “Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.” Patterson v. Hudson Area Schools, 551 F.3d 438 (2009).

The bullies were not punished with three-day suspensions, as outlined in the district’s own anti-bullying policy, and the district expelled the football player a few days before the end of the school year but invited him back for a banquet. School officials also made light of Patterson’s plight — one teacher commented in class that he needed to “man up” — and an administrator testified that he thought sexual harassment was defined as unwanted sexual advances.

Todd R. Sorensen, an education/employment attorney at Williams Kastner in Seattle, says the Patterson verdict is part of a trend that has favored plaintiffs suing under Title IX’s peer-on-peer sexual harassment clause.

What makes it unique, he tells On Point, is that the Hudson district did take action to stem the harassment but was found liable for continuing to use verbal reprimands when it knew or should have known they were ineffective. “It’s certainly one of the decisions out there that gives more breathing room to these types of claims,” he says. “Apparently, if you take action and you know it’s not working, that’s not good enough.”

Sorensen doesn't buy Mullins's argument that districts will now have to anticipate bullying and stop it before it happens. “If the district doesn’t know what’s going on, there’s no liability,” he says. “In this case, there was a pattern. The lesson is, if school districts are aware of the bullying, they have to take appropriate action.”

The Pattersons’ attorney, Terry E. Heiss of Ada, Mich., believes the verdict will likely have a “profound, long-term effect … This district never wanted to take responsibility, and I think that’s a message for other districts: you need to make sure your Title IX responses are appropriate.”

What happened to Dane Patterson was not mere teasing, but full-on harassment and intimidation. He deserved to be better protected.

By Julie Edgar
3/29/10