Case 1:19-cv-20204-UU Document 32 Entered on FLSD Docket 04/17/2019 Page 1 of 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

CASE NO. 1:19-cv-20204-UU

Jane Doe, by and through her mother and next

friend, Mary Doe,

Plaintiff,

vs.

The School Board of Miami-Dade County, et. al.,

Defendants.
_____________________________________/

DEFENDANTS’ RESPONSE TO PLAINTIFF’S NOTICE OF

SUPPLEMENTAL AUTHORITY

The School Board of Miami-Dade County, Florida ( “School Board”), and Alberto

Carvalho, Superintendent of Miami-Dade County Public Schools (“Superintendent Carvalho”)

(collectively, “Defendants”), respond to Plaintiff’s notice of supplemental authority.

Farmer v. Kansas State University, 918 F.3d 1094 (10th Cir. 2019), has no bearing on

Defendants’ arguments on Motion to Dismiss. Defendants recognized the Supreme Court’s

holding in Davis, (and reiterated in Farmer), that “[i]f a recipient does not engage in harassment

directly, it may not be liable for damages unless its deliberate indifference ‘subject[s]’ its

students to harassment, i.e., at a minimum, causes students to undergo harassment or makes them

liable or vulnerable to it.” ECF 12 at 8 (emphasis added) (citing Davis v. Monroe County Bd. of

Educ., 526 U.S. 629, 633 (1999)); Farmer, 918 F.3d at 1104 (“Plaintiffs can state a viable Title IX

claim for student-on-student harassment by alleging that the funding recipient’s deliberate

indifference caused them to be ‘vulnerable to’ further risk of harassment without requiring and

allegation of subsequent actual sexual harassment.”). Defendants did not limit their argument on
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Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
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Defendants’ Response to Notice of Supplemental Authority

Plaintiff’s failure to state a prima facie case of deliberate indifference or loss of educational

benefit to allegations of subsequent actual sexual harassment only. Defendants argued that

Plaintiff did not state a prima facie case under either standard—subsequent sexual harassment or

making Plaintiff vulnerable to further risk of harassment. Defendants factually distinguished the

case at bar from cases where female students “remained at viable risk to further discrimination

or harassment as a result of the actions or inactions by school officials.” ECF 12 at 12:

The district court in Bibb distinguished these facts from other Eleventh Circuit cases
where the female students remained at viable risk to further discrimination or
harassment as a result of the actions or inactions by school officials. . . . Here,
Plaintiff likewise fails to allege that she was systemically barred from returning to
Defendants’ school district or at risk of being denied an education because of
Defendants’ action or inaction. Plaintiff alleges only a harmful effect on her
’reputation and standing in the community’ at large, (Compl. ¶¶ 4, 115), not
specifically an inability to access her education. Finally, Plaintiff does not allege that
any action(s) of Defendants caused her to undergo harassment or made her
vulnerable to it.

(emphasis added).

Defendants also distinguished Williams v. Bd. of Regents of University System of

Georgia, 477 F.3d 1282, 1293 (11th Cir. 2007). See ECF 12 at 12. In Farmer, the Tenth Circuit

cited Williams as an example of when a Title IX plaintiff’s alleged fear of encountering her

attacker is “objectively reasonable.” 918 F.3d at 1105. Williams requires a look at the

circumstances of the case to determine whether Defendants’ conduct rises to the level of

actionable harassment:

Whether gender-oriented conduct rises to the level of actionable ‘harassment’ thus

‘depends on a constellation of surrounding circumstances, expectation, and
relationships,’ including, but not limited to, the ages of the harasser and the victim
and the number of individuals involved.” Id. at 651, 119 S.Ct. 1661 (citations
omitted). ‘[T]o have a ‘systemic effect’ of denying the victim equal access to an
educational program or activity ... gender discrimination must be more
widespread than a single instance of one-on-one peer harassment
....’ Hawkins, 322 F.3d at 1289 (citing Davis, 526 U.S. at 652–53, 119 S.Ct.
1661).

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Williams, 477 F.3d at 1297–98. Unlike in Williams, Plaintiff fails to allege facts showing that she

was systemically barred from returning to Defendants’ school district or at risk of being denied an

education, even if she had wanted to return to the same high school. Plaintiff alleges only a

generalized fear of returning to Carol City High, ECF 1 at ¶ 77, and a harmful effect on her

“reputation and standing in the community” at large, ECF 1 at ¶ 115. But based upon the

circumstances of this case, Plaintiff cannot allege facts showing that Defendants’ caused an inability

to access her education or a tangible risk of being vulnerable to further harassment. ECF 12 at 12;

ECF 14 at 5-6. Williams involved “a cycle of discrimination and deliberate indifference that

lasted for more than one year, ultimately resulting in Williams' withdrawal from and decision not

to return to UGA.” 477 F.3d at 1298. The circumstances of the Williams case also include the

facts that the University of Georgia was dealing with adult students on the main university

campus where students lived, where supervision of students has completely different

considerations, and where a transfer granted to the plaintiff to attend another of the defendant’s

schools was not at issue. Additionally, the Tenth Circuit’s determination in Williams that the

plaintiff’s fear was not clearly unreasonable was also based, in part, upon allegations of actions

taken by the defendant prior to the assaults on the plaintiff, e.g., the fact that the university was

aware of a propensity for sexual misconduct by one of the perpetrators prior to recruiting him.

See id. at 1297.

Here, Defendants argued in their motion to dismiss that this case is more analogous to Doe v.

Bibb County Sch. Dist., 126 F. Supp. 3d 1366, 1375 (M.D. Ga. 2015), aff’d, 688 F. App’x 791 (11th

Cir. 2017) (unpublished), where the student’s mother made her mind up that she would not return to

the same school where the alleged harassment occurred, and where the defendant arranged for her to

attend a different school. See ECF 12 at 12. To be sure, Defendants’ motion outlines the various

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Defendants’ Response to Notice of Supplemental Authority

actions that school officials took in this case to keep Plaintiff safe and address her emotional state,1

even if she had wanted to return to Carol City High. Defendants illustrated how Plaintiff’s

Complaint made the following averments of the actions taken by school officials in response to the

report of sexual assault: they contacted schools police; conducted an investigation that revealed her

statement that she was a willing participant in sexual activity; disciplined the male students;

conducted an internal affairs investigation; referred Plaintiff to a school counselor; referred her for

medical treatment; and most importantly, transferred her to another high school with parental consent

after her mother decided against homeschooling. See ECF 12 at 3-4, 8; ECF 14 at 5-6. The

Complaint also concedes that Plaintiff received a security guard escort from class on the day of the

report. ECF 1 at ¶ 46. As in Bibb, Plaintiff’s Complaint concedes that her mother did not wish to

return her to the same school and did not return her. ECF 1 at ¶ 64, 88.

Similar to Williams, the facts in Farmer are readily distinguishable from the facts of this

case. In Farmer, two college students alleged that their university made them vulnerable to

further incidents of sexual harassment after the university did nothing in response to their reports

of rape at off-campus fraternity houses. 918 F.3d at 1100–11. University officials told the

plaintiffs that they would not, as a matter of university policy, investigate the alleged rapes that

occurred off campus. Id. The Tenth Circuit affirmed the district court’s order denying dismissal

because the plaintiffs showed that the university allowed their “student-assailants—unchecked

and without the school investigating—to continue attending KSU … .” Id. at 1097 (emphasis

added). The fact that no investigation took place was essential to the plaintiffs’ claim that they

reasonably feared running into their attackers and, as a result, could not enjoy educational

1
Bibb points out that an allegation of further emotional harm is not necessarily synonymous with
an allegation of further discrimination. 126 F. Supp. 3d at 1381.

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Defendants’ Response to Notice of Supplemental Authority

benefits. See id. at 1104. Their fears, and actions taken in response to those fears, were

“objectively reasonable” only because the university was doing nothing as a matter of its own

policy. Id. at 1105 (citing Williams, 477 F.3d at 1297. In the case at bar, Plaintiff does not allege

a “pervasive atmosphere of fear,” as alleged against Kansas State University (“KSU”) in Farmer, and

cannot make such an allegation where she was transferred out of the environment where the incidents

took place. Any finding that Plaintiff’s fear was due to a failure by Defendants to keep her safe or

make her vulnerable to further harassment at Carol City High School would be speculation and not

based upon objectively reasonable inferences.

Moreover, the Tenth Circuit was clear in Farmer that, due to its posture of interlocutory

appeal, all parties accepted that KSU was deliberately indifferent and that issue was not before the

court. 918 F.3d at 1100–11. The issue in Farmer was whether requisite harm caused by

deliberate indifference could be shown by alleging and proving that the prior sexual assaults

were so grievous and the likelihood of continuing to encounter the sexual predators on campus

so credible that KSU’s inaction by itself deprived them of the benefits under any education

program. See id. at 1106. In Farmer, the Tenth Circuit did not overrule its prior holding in Rost

v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114 (10th Cir. 2008), but distinguished it on the

basis that “there was no opportunity for further harassment there [in Rost] because the victim’s

mother withdrew the victim from school.” Farmer, 918 F.3d at 1107. In the case at bar, the

district, similar to Bibb and Rost, “took steps to prevent further harassment of the plaintiff by

working with her mother to find safe educational alternatives for the plaintiff; promptly

commenced an extensive investigation and offered to provide the victim remedial measures,”

which according to the Tenth Circuit, is still a proper inquiry “for the purpose of illuminating

whether the funding recipient has been clearly unreasonable,” id. at 1106, and can

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Defendants’ Response to Notice of Supplemental Authority

still prevent a plaintiff from stating an actionable claim for Title IX

discrimination. Rost, 511 F.3d at 1124.

For the aforementioned reasons, the non-binding, factually dissimilar case submitted by

Plaintiff does not support her claim that Defendants were deliberately indifferent and deprived

her of access to educational benefits after she made her report of sexual assaults. Accordingly,

Defendants respectfully ask that this Court grant their motion to dismiss Plaintiff’s complaint

with prejudice.

Dated: April 17, 2019 Respectfully Submitted,

Walter J. Harvey HAMILTON, MILLER & BIRTHISEL

School Board Attorney Attorneys for Defendants
The School Board of Miami-Dade 150 SE 2nd Avenue, Suite 1200
County, Florida Miami, Florida 33131
1450 NE 2nd Avenue, Suite 430 Telephone: (305) 379-3686
Miami, Florida 33132 Facsimile: (305) 373-2294

/s/ Mary C. Lawson /s/ Schuyler A. Smith

MARY C. LAWSON, ESQ. SCHUYLER A. SMITH, ESQ.
Assistant School Board Attorney FBN: 70710
FBN: 584223 E-mail: ssmith@hamiltonmillerlaw.com
E-mail: mlawson@dadeschools.net
Patricia Concepcion
Counsel for Defendants School Board and E-mail: pconcepcion@hamiltonmillerlaw.com
Superintendent Alberto Carvalho FBN: 109058

Co-Counsel for Defendants School Board and

Superintendent Alberto Carvalho

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Jane Doe, a minor, v. The School Board of Miami-Dade County, Florida, et. al.
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Defendants’ Response to Notice of Supplemental Authority

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 17, 2019 the foregoing was electronically filed with the
Clerk of Court via CM/ECF system, which will send a notice of electronic filing to the counsel of
record on the service list below.
/s/ Mary C. Lawson
Mary C. Lawson, Esq.

SERVICE LIST

LEWIS F. MURPHY, ESQUIRE ALLISON L. HERTOG, ESQUIRE

STROOCK & STROOCK & LAVAN, LLP MAKING SCHOOL WORK, P.L.
200 S. Biscayne Blvd., Suite 3100 1550 Madruga Avenue, Suite 333
Miami, FL 33133 Miami, FL 33146
(305) 789-9300 (305) 663-9233
lmurphy@stroock.com Allison@makingschoolwork.com
jsammataro@stroock.com Attorney for Ms. Doe
crodriguez@stroock.com
Attorney for Ms. Doe

ALICE K. NELSON, ESQUIRE EMILY MARTIN

NELSON LAW GROUP NEENA CHAUDHRY
14043 Shady Shores Drive SHIWALI PATEL
Tampa, FL 33613 ELIZABETH TANG
(813) 254-5517 MARGARET HAZUKA
alice@nelsonlg.com NATIONAL WOMEN’S LAW CENTER
Attorney for Ms. Doe 11 Dupont Circle, Suite 800
Washington, D.C. 20036
(202) 588-5180
emartin@nwlc.org
nchaudhry@nwlc.org
spatel@nwlc.org
etang@nwlc.org
mhazuka@nwlc.org
Attorney for Ms. Doe