The United States Supreme Court has declined to grant certiorari in a case in which the First Circuit held that a school system did not act with deliberate indifference in failing to address sexual harassment of a mentally disabled student by a classmate, as required for the school system to be liable under Title IX for student-on-student sexual harassment. The student and his classmate were allowed to have unsupervised access to each other at times, in spite of the town's awareness of prior sexual harassment between them. However, the school system separated the student and the classmate after each episode of harassment, and eventually had the school guidance counselor intervene. There was no showing that the school knew, or that it was obvious, that the classmate would continue to harass the student after the counselor had instructed both boys that such behavior was inappropriate.

The petition for certiorari argued that the First Circuit erred in applying the deliberate indifference standard without consideration of the student's disability. The core of the Title IX claim was that the student, who had an IQ of 62, was disabled and therefore could not protect himself. The nature and extent of the disability, as well as a known history of prolonged sexual abuse by the same perpetrator, made it highly predictable that the student would be victimized again in the absence of close supervision, the petition argued.

The case above is one for which Dr. Dragan provided expert consultation.