United States District Court, D. Massachusetts
JANE DOE, individually and as Mother and Next Friend of J.D., a Minor, Plaintiff,
THE LEAGUE SCHOOL OF GREATER BOSTON, INC., FRANK GAGLIARDI, PATRICK FULLER, SEAN BERTONI, and DONNA GRIFFIN, Defendants.
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT JUDGE
Jane Doe's disabled child, J.D., was placed at Defendant
The League School of Greater Boston, Inc. (the
“School”) for special education services. Doe
alleges that a seventeen year-old residential student at the
School showed J.D. pornographic material and sexually
molested J.D., and that the School did not take proper action
to protect J.D after learning of that conduct. Count I of the
Complaint asserts that the School thereby violated Title IX
of the Education Amendments of 1972, 20 U.S.C. §
1681(a). The School, arguing that it is not a recipient of
federal funds, has moved to dismiss this Count for failure to
state a claim upon which relief can be granted. Mot. Dismiss
Count I of Pls.' Compl. [“Mot. Dismiss”]
[#24]. For the reasons set forth below, the motion is DENIED.
Facts as Alleged in the Complaint
School is a private day and residential school that provides
special education services for students with autism spectrum
disorder. Compl. ¶¶ 2, 10 [#1]. At the time of the
events giving rise to this case, J.D. was an eleven-year-old
disabled student with autism spectrum disorder, mood
disorder, and post-traumatic stress disorder. Id.
¶ 8. In January 2014, J.D.'s public school district
placed him at the School to receive special education
services in compliance with his Individualized Education
Plan. Id. ¶¶ 8-9. In September 2014,
J.D.'s placement changed from day student to residential
student. Id. ¶ 11. J.D. lived in a
school-operated home staffed by School employees twenty-four
hours per day. Id. ¶¶ 12-13.
December 2014, School staff learned that A.B., a
seventeen-year-old residential student living in the same
residence as J.D., showed J.D. pornographic photographs
and/or videos on A.B.'s portable PlayStation device.
Id. ¶ 14. On December 19, 2014, Doe expressed
concerns to the School that J.D. was living with older
students and was being shown sexually explicit material.
Id. ¶ 16. The School did not report A.B.'s
conduct to the Massachusetts Department of Children and
Families, did not remove A.B. from J.D.'s residential
home, and did not take any other action to separate A.B. and
J.D. Id. ¶ 17.
2015, J.D. reported to School staff that A.B. had exposed
himself to J.D., had pulled down J.D.'s pants on multiple
occasions, and had touched J.D.'s genitals. Id.
¶ 18. These events also occurred at the School-operated
residence. Id. A.B., who admitted he had committed
these acts, was removed from the residence but continued to
attend the School. Id. ¶¶ 19-20. The
School did not report these events to the Massachusetts
Department of Children and Families. Id. ¶ 21.
the summer of 2015 to late September 2015, J.D. exhibited
symptoms of severe emotional distress. Id.
¶¶ 22-24. On September 24, 2015, Doe met with
School staff to discuss the extent of the molestation, and
following that meeting, removed J.D. from the School.
Id. ¶¶ 24-27. In October 2015, the
Massachusetts Department of Children and Families reported to
Doe that it had received reports of abuse. Id.
Complaint alleges that J.D. has suffered physical injuries
and severe emotional distress and was deprived of educational
opportunities as a result of the School's failure to
adequately protect J.D. Id. ¶¶ 37-46.
motion under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, to dismiss a complaint for failure to state a
claim upon which relief can be granted, is properly allowed
when the complaint does not contain “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)).
The court considers the facts as alleged in the complaint.
See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1,
5 (1st Cir. 2011). For the purposes of this motion, any
well-pleaded, non-conclusory factual allegations are assumed
true and all reasonable inferences are drawn in the
plaintiff's favor. See Iqbal, 556 U.S. at 680-81
(stating that conclusory allegations are not entitled to a
presumption of truth); Twombly, 550 U.S. at 581.
Finally, the court will “determine whether the factual
allegations are sufficient to support the reasonable
inference that the defendant is liable.” Saldivar
v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (quoting
Cardigan Mtn. Sch. v. N.H. Ins. Co., 787 F.3d 82, 84
(1st Cir. 2015)).
IX prohibits discrimination on the basis of sex “under
any education program or activity receiving Federal financial
assistance.” Education Amendments Act of 1972, 20
U.S.C. §1681(a) (2012). A student who is the victim of
sexual harassment by another student may have a claim against
his or her school under Title IX. Davis v. Monroe Cty.
Bd. of Educ., 526 U.S. 629, 633 (1999). In order to
state such a claim, Doe must allege: (1) that J.D. was
“subject to severe, pervasive, and objectively
offensive sexual harassment by a school peer”; (2) that
the harassment caused J.D. “to be deprived of
educational opportunities or benefits”; (3) that the
School receives federal funds; (4) that the School knew of
the harassment; (5) that the harassment occurred in one of
the School's programs or activities; and (6) that the
School “was deliberately indifferent to the harassment
such that its response (or lack thereof) is clearly
unreasonable in light of the known circumstances.”
Porto v. Town of Tewksbury, 488 F.3d 67, 72-73 (1st
Cir. 2007) (internal quotation marks omitted). The School
argues that it does not receive federal funds, and therefore
that Doe cannot state a claim under Title IX.
that receive federal assistance, whether directly or through
an intermediary, are recipients within the meaning of Title
IX . . . .” NCAA v. Smith, 525 U.S. 459, 468
(1999) [hereinafter Smith I]; Grove City Coll.
v. Bell, 465 U.S. 555, 564 (1984). In Grove City
College, the Court emphasized that the fact that the
institution received funds indirectly did not matter. 465
U.S. at 570-72. Indeed, the Court noted that even Grove City
College recognized “the problematic nature” of
the distinction between direct and indirect funds that it was
Although its interpretation . . . logically would exclude
from coverage under Title IX local school districts that
receive federal funds through state educational agencies,
see, e.g., 20 U.S.C. §§ 3801 et seq.,
Grove City wisely does not attempt to defend this result. In
fact, the College concedes that “[b]ecause federal
assistance is often passed through state agencies, this type
of indirect assistance leads to Title IX jurisdiction over
the education program or activity which ultimately receives
the assistance.” [citation omitted] Grove City has