The opinion
No. 19-0508
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
In re: METROPOLITAN GOVERNMENT OF )
NASHVILLE & DAVIDSON COUNTY, TN, dba )
Metropolitan Nashville Public Schools, )
) O R D E R
Petitioner. )
Before: KETHLEDGE, BUSH, and MURPHY, Circuit Judges.
The Metropolitan Government of Nashville & Davidson County (“Metro”) has petitioned
for our permission to appeal an interlocutory order of the district court granting in part and denying
in part its motion for summary judgment. See 28 U.S.C. § 1292(b). Plaintiffs in this action—the
parents of minor female students S.C., Jane Doe, Sally Doe and Mary Doe—sue Metro under Title
IX and § 1983. Other students videotaped S.C., Jane Doe, Sally Doe, and Mary Doe without their
consent while they were engaged in sexual conduct on school premises, and then circulated the
videos to the victims’ peers.
Title IX provides that “[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court held that
a student who has been sexually harassed by another student has a private cause of action against
the school under this provision if the victim can show that the school acted “with deliberate
indifference to known acts of harassment.” Id. at 633. Plaintiffs in this case alleged that, before
the specific incidents in question, Metro had obtained the required “notice” under Title IX because
it knew of the general “risk of the dissemination of sexual images of its students without their
consent” based on prior incidents involving other students. T.C. ex rel. S.C. v. Metro. Govt. of
Nashville, 378 F. Supp. 3d 651, 668 (M.D. Tenn. 2019). And Plaintiffs further alleged that Metro
was deliberately indifferent to this general risk, as shown by the “widespread failures of training,
coordination, and monitoring by MNPS administrators.” Id. at 677. The district court held that
these types of “‘before’ claims” were cognizable under Title IX, id. at 668–71, and that Plaintiffs
had raised a genuine issue of material fact, id. at 677–80. That was so, even though the district
court recognized that Metro “did not, for the most part, have warning about the specific students
addressed in these cases or the specific acts that would occur.” Id. at 670. The court nevertheless
certified this issue (and one other one) for an interlocutory appeal under § 1292(b).
We delayed ruling on Metro’s petition pending the outcome of Kollaritsch v. Michigan
State University Board of Trustees, __ F.3d __, 2019 WL 6766998 (6th Cir. Dec. 12, 2019), which
raised similar issues. In Kollaritsch, we indicated that “a student-victim plaintiff must plead, and
ultimately prove, that the school had actual knowledge of actionable sexual harassment and that
the school’s deliberate indifference to it resulted in further actionable sexual harassment against
the student-victim, which caused the Title IX injuries.” Id. at *1. In Kollaritsch, we noted that
the initial sexual harassment that triggers a school’s notice and the later sexual harassment caused
by its unreasonable response “must be inflicted against the same victim.” Id. at *4. That analysis
could affect the district court’s decision. But we think it prudent to let the district court decide, in
the first instance, Kollaritsch’s effect (if any) on these facts. We therefore GRANT Metro’s
petition for permission to appeal, VACATE the district court’s summary-judgment decision, and
REMAND for its reconsideration in light of our recent Kollaritsch decision.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540
Deborah S. Hunt POTTER STEWART U.S. COURTHOUSE Tel. (513) 564-7000
Clerk CINCINNATI, OHIO 45202-3988 www.ca6.uscourts.gov
Filed: January 24, 2020
Ms. Mary Ann Parker
Parker & Crofford
1230 Second Avenue, S.
Nashville, TN 37210
Ms. Melissa Roberge
Metropolitan Department of Law
P.O. Box 196300
Nashville, TN 37219
Case No. 19-508, In re: Metropolitan Govt of Nashville
Re:
Originating Case No. : 3:17-cv-01098 : 3:17-cv-01159 : 3:17-cv-01209 : 3:17-cv-01277 :
3:17-cv-01427
Dear Counsel,
The Court issued the enclosed Order today in this case.
Sincerely yours,
s/Jill E Colyer
Case Manager
Direct Dial No. 513-564-7024
cc: Mr. Stephen C. Crofford
Mr. Kirk L. Davies
Mr. J. Brooks Fox
Ms. Vicki Kinkade
Ms. Keli J. Oliver
Enclosure
No mandate to issue