"The Harassment Case"

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ESTHER TOWERS, individually and as parent and guardian of MARLA TOWERS, and MARLA TOWERS, on her own behalf,

Plaintiffs and Appellants,

v.

COPPER COUNTY BOARD OF EDUCATION; SUPERINTENDENT OF THE COPPER COUNTY SCHOOL DISTRICT; CLINT PACKWOOD HIGH SCHOOL; JOHN HOWARD, individually and in his official capacity as principal of CLINT PACKWOOD HIGH SCHOOL; and EARL RYAN, individually and in his official capacity as an instructor at CLINT PACKWOOD HIGH SCHOOL,

Defendants and Respondents.

FACTUAL AND PROCEDURAL HISTORY

Marla Towers was a freshman at Clint Packwood High School in Coppertown, Montana, at the time of the alleged incidents that form the basis of this action. Marla had a propensity for punching people who annoyed her. During the previous school year, she was suspended for three days for punching a boy who called her names. At the beginning of her freshman year, Clint Packwood High School Principal John Howard warned Marla that he would not tolerate any fighting. He suggested that Marla take any problems she might have with other students to the teachers and staff rather than taking matters into her own hands. Marla agreed to give his suggestion a try.

In algebra class, Marla was assigned to the seat next to Brad Black. Three weeks into the fall semester, Brad jokingly commented in front of the entire class that Marla was really built and that she should pose for Playboy. Marla laughed off the comment. After this incident, Brad, emboldened by Marla's inaction, began to whisper sexually suggestive statements to Marla and commenting about various parts of her anatomy. At first, Brad's comments were minor and Marla ignored them. However, the more she ignored them, the more obnoxious Brad's comments became. After enduring a month of this conduct, Marla reported it to her math teacher, Earl Ryan. Mr. Ryan told Marla that she should just ignore it and that she should be flattered that Brad found her attractive as he was one of the most popular boys in the school.

That evening, Marla told her mother, Esther Towers, about Brad's comments. She also told her mother what Mr. Ryan had said when she tried to report the incidents. When Mrs. Towers called Mr. Ryan the following day to complain about Brad's behavior and about the comments Mr. Ryan had made to Marla, Mr. Ryan stated that Brad was just flirting with Marla and that it was harmless.

Brad continued to make sexually suggestive comments to Marla. However, one day, rather than whispering the comments so that only Marla could hear, Brad said them loud enough so that several students sitting nearby heard what he said. After class, Marla, accompanied by two of the students who had overheard Brad's comments, again complained to Mr. Ryan. Mr. Ryan merely shrugged his shoulders and said "boys will be boys."

When Marla arrived home after school, she told her mother of Brad's latest comments and of Mr. Ryan's indifference. Mrs. Towers immediately called the principal, Mr. Howard, to complain. Mr. Howard was shocked by the charges. He told Mrs. Towers that he found it hard to believe that Mr. Ryan or Brad, who was an honor student, could be that insensitive. When Mrs. Towers pointed out that there were witnesses to Brad's comments to Marla as well as Mr. Ryan's indifference to Marla's complaints, Mr. Howard agreed to investigate.

Several weeks went by and, although Brad continued to harass Marla, he did so less frequently. Then, one morning, Marla arrived at school to find a large group of students standing near her locker. Several of the students were pointing at something and laughing. As Marla pushed through the crowd, she realized that they were all looking at a photograph that had been taped to her locker. To her horror, Marla realized that it was a Playboy centerfold and, in place of the centerfold's face, someone had pasted a photograph of Marla. At the top of the centerfold was Marla's name written in large black letters. Marla ripped the picture down and ran into the bathroom. Marla suspected that Brad had pasted the centerfold on her locker, however, remembering her promise to Mr. Howard, she resisted the urge to confront Brad. Fearing what she might do if she saw Brad, Marla decided to go home. She refused to return to school until the situation was resolved.

After this latest incident, Mrs. Towers paid a visit to the school to speak with Mr. Howard in person. She demanded to know what action the school intended to take against Brad. Mr. Howard informed her that he had looked into the incidents and that they were not serious enough to warrant any action against Brad other than a stern talking to, which he had done. Mr. Howard observed that, although finding the centerfold on her locker may have been embarrassing for Marla, it was only a prank. Nevertheless, he agreed to find out who was behind it, punish the culprit, and take steps to see that it never happened again.

Marla, hoping that the situation had been resolved, returned to school after several days. As she entered her algebra class, Marla discovered that Brad was still assigned to the seat next to her. When she asked Mr. Ryan if she could switch places with someone else, he informed her that she would have to wait until the following day so that he could have a chance to adjust his seating chart. Half way through the class, Brad whispered further sexually suggestive comments to Marla and asked if she had liked her picture. Marla, pushed beyond the limits of her self-control, punched Brad as hard as she could, knocking him off of his chair. Based on the grounds that she had been suspended for fighting the previous year and this was a repeat offense, Marla was suspended from school for two weeks, which hurt her grades a great deal.

The investigation into the centerfold incident revealed that several students had witnessed Brad placing the altered photograph on Marla's locker. In addition, before Marla discovered the centerfold, at least two teachers saw the students congregating around the lockers and may have seen the centerfold. However, neither teacher did anything about it. Brad was suspended for one week because of this incident.

Mrs. Towers, outraged over Marla's suspension for defending her reputation and over Brad's lenient punishment for harassing Marla, filed a grievance with the Superintendent of the Copper County School District. The Superintendent determined that the school officials had acted properly in both cases. Mrs. Towers appealed this decision to the Copper County Board of Education. After conducting a grievance hearing, the Board voted to uphold the superintendent's determination. Mrs. Towers then filed a complaint with the Montana Human Rights Commission, which upheld the Board's decision.

Consequently, after exhausting all available administrative procedures, Mrs. Towers brought suit on Marla's behalf in the Twenty-Fifth Judicial District Court, Copper County, seeking declaratory and injunctive relief, as well as compensatory damages and attorney fees. The complaint alleged that the Copper County Board of Education, the Superintendent of the Copper County School District, and school officials had violated 20 U.S.C. § 1681 (more commonly referred to as Title IX) by failing to prevent a student at Clint Packwood High School from sexually harassing Marla while she was a student there. The complaint also alleged that these same school officials had discriminated against Marla by suspending her for a longer term than that of her tormentor for a week and that Marla's suspension was in retaliation for filing a complaint.

The District Court denied relief, thus Mrs. Towers and Marla filed this appeal to the Montana YMCA Model Supreme Court.

ISSUES:

1. Did the District Court err in concluding that Marla was not entitled to relief under Title IX?
2. Did the District Court err in concluding that Marla's suspension from school was not discriminatory and was not in retaliation for filing a complaint?

CASES AND RELATED MATERIALS:

Issue 1

20 U.S.C. § 1681 (Title IX)

Oona R.S. By Kate S. v. McCaffrey, 143 F.3d 473 (9th Cir. 1998)

Doe v. University of Illinois, 138 F.3d 653 (7th Cir. 1998)

Davis v. Monroe County Board of Education, 120 F.3d 1390 (11th Cir. 1997)

Rowinsky v. Bryan Independent School District, 80 F.3d 1006 (5th Cir. 1996)

Issue 2

Art. II, § 4, Mont. Const.

Art. X, § 1, Mont. Const.

§ 20-5-201, MCA

§ 20-5-202, MCA

§ 49-1-101, MCA

§ 49-1-102, MCA

§ 49-1-103, MCA

§ 49-2-301, MCA

§ 49-2-307, MCA