Title IX Retaliation Claim (But Not “Deliberate Inference” Claim) Continues Against New York Law School

In Bailey v. N.Y. Law Sch., No. 16 CIV. 4283 (ER), 2017 WL 835190 (S.D.N.Y. Mar. 1, 2017) (J. Ramos), the court held that plaintiff (a law student) sufficiently alleged a retaliation claim (but not a “deliberate indifference” claim) under Title IX of the Educational Amendments Act of 1972. This case arose from an alleged attack of plaintiff on the New York Law School campus by an individual named Stephen Nesbit.

Title IX, codified at 20 U.S.C. § 1681(a), “prohibits discrimination on the basis of gender in educational programs and activities receiving federal financial assistance.” It provides, in relevant part, that (with certain exceptions) “[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.” The statute provides an aggrieved individual with an implied right of action for injunctive relief and monetary damages. Furthermore, “sexual harassment in the educational context—whether teacher-on-student or student-on-student—may constitute discrimination in violation of the statute.”

Initially, the court dismissed plaintiff’s claims against the individual defendants, since the statute “has consistently been interpreted as not authorizing suit against school officials, teachers, and other individuals, since they do not personally receive federal education funding.”

New York Law School, “on the other hand, as a Title IX funding recipient, may be held liable for student-on-student harassment, but only if the School was: (1) deliberately indifferent; (2) to sexual harassment; (3) of which it had actual knowledge; (4) that was so severe, pervasive, and objectively offensive that it deprived the victim of access to the educational opportunities or benefits provided by the school.”

Plaintiff’s “Amended Complaint, on its face, alleges facts demonstrating that NYLS did not act with deliberate indifference in response to Nesbit’s harassment of female students.”

However, the court permitted plaintiff’s retaliation claim to proceed.

The court summarized the law applicable to that claim:

[R]etaliation against individuals because they complain of sex discrimination is intentional conduct that violates the clear terms of [Title IX]. In order to succeed on such a claim, Plaintiff will first need to establish a prima facie case by showing: (1) protected activity; (2) knowledge by the defendant of the protected activity; (3) adverse school-related action; and (4) a causal connection between the protected activity and the adverse action. At the pleading stage, however, a plaintiff need not plead facts giving plausible support to the ultimate question of whether an adverse action was attributable to discrimination; rather, the facts need only give plausible support to a minimal inference of discriminatory motivation. The Second Circuit has clarified that the inference of discriminatory intent supported by the pleaded facts [need not] be the most plausible explanation of the defendant’s conduct. It is sufficient if the inference of discriminatory intent is plausible. (Emphasis in original.)

Applying the law to the facts, the court concluded:

Plaintiff has met her exceedingly low burden of demonstrating a plausible minimal inference that NYLS retaliated against her because of her complaints. Plaintiff alleges that she complained to School officials throughout the 2014–2015 school year and actively participated in the School’s disciplinary process against Nesbit. Am. Compl. ¶¶ 6–8, Ex. A, Ex. B at 2, Ex. E at 3–4. Shortly after she received the School’s final decision with respect to Nesbit, Plaintiff made known to School officials her decision to transfer law schools. Id. ¶ 9, Ex. D. However, Plaintiff was unable to obtain a letter of recommendation that was required for her application. Id. ¶ 9, Ex. E at 1, 4. When she returned to NYLS for the fall 2015 semester, she received the worst grades of her law school career. Id. ¶ 10, Ex. E at 1, Ex. F at 2. Assuming Plaintiff’s allegations to be true, as the Court must at this stage, the Court finds it at least minimally plausible to infer that the School took adverse action against Plaintiff because of her repeated complaints. See Papelino, 633 F.3d at 91 (“Close temporal proximity between the plaintiff’s protected activity and the … adverse action may in itself be sufficient to establish the requisite causal connection.”) (quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010)). Accordingly, Plaintiff may proceed on her Title IX retaliation claim against NYLS.

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