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'It sends a very important message' | Implications of the verdict of the CMS Title IX case

The lawsuit, brought by a former student, accused CMS of violating her Title IX rights based on how they investigated her claims of sexual assault. A jury disagreed.

MECKLENBURG COUNTY, N.C. — Charlotte-Mecklenburg Schools was at the center of a federal lawsuit that brought national attention to the Queen City.

The lawsuit, brought by a former Myers Park High School student, accused CMS of violating her Title IX rights based on how they investigated her claims of sexual assault.

A jury of eight people disagreed and ruled CMS did not violate her rights. 

At issue in the Jane Doe versus CMS case was one simple question: Did Myers Park High School staff act with deliberate indifference, and violate her Title IX rights, when the former student reported she was sexually assaulted? 

A jury ultimately said no. 

"A school district acts with deliberate indifference when it is acting intentionally in a way that ignores or does not give the right amount of response and reaction to a report of sexual harassment or sexual assault," Jonathan Vogel, founder and managing attorney at Vogel Law Firm, said.

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Deliberate indifference is not the same as negligence in the eyes of the law according to Vogel. 

"Negligence, meaning a breach of a duty of care," Vogel said. "So a particular school or school district might not do everything that one would want them to do in responding to a report. Perhaps there's more they can do, but that's not necessarily acting with deliberate indifference." 

In cross-examination by Jane Doe's lawyer Laura Dunn, former Myers Park's assistant principal Anthony Perkins, who led the sexual assault investigation, admitted that after receiving the report of sexual assault he only attempted to get Jane Doe's statement once. 

It was in the moments before Doe's father decided to check her out of school and take her to get a sexual assault exam and forgo the statement. Perkins said he reached out to Jane Doe's mom once more to ask how Doe was doing and was waiting on the family to reach back out to him. 

He testified he considered it harassment to continue to follow up with Doe for a statement under the circumstances. 

Perkins said as he continued to wait for the family to call back, days later, after talking to the other student accused of assaulting Doe, he was made aware of an email sent by Jane Doe's mother. It was addressed to then Myers Park High School principal Mark Bosco and it said Mrs. Doe, Doe's mother, would not allow Doe to speak to school officials and they were not interested in the results of the school investigation. 

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Perkins said after being made aware of that email he wrapped up his investigation because he knew he wouldn't be able to speak with Doe. 

Mrs. Doe testified she sent the email in question because of a voicemail she received from Bosco saying he had news about the investigation. She described the voicemail as gleeful. Mrs. Doe said the voicemail led her to believe the investigation by the school had been wrapped up without anyone speaking to her daughter. 

Terry Wallace, the lawyer representing CMS, pushed back on this narrative and forced Doe's mom to admit she no longer had the voicemail she claimed Bosco sent her.  

During closing arguments, Wallace brought up the email Mrs. Doe sent to the school, Perkins's attempt at a statement, and the cooperation of the district with CMPD as proof the school didn't act with deliberate indifference. 

Wallace argued the district can't do an investigation with a victim if they don't actively cooperate. 

Vogel, along with other lawyers unrelated to the case, sat and listened to portions of the federal case.

"Title IX jury trials are rare," Vogel said. "They are rare because not many Title IX cases are filed and the ones that are filed are typically settled, like most civil lawsuits. This one went all the way to trial after several years of litigation, which is why it was such a big event."

Vogel has over 25 years of legal experience. He's worked at the U.S. Department of Education and the U.S. Department of Justice, as well as in the U.S. House of Representatives. 

"I think it's important for people to know and I think it's important for everyone to acknowledge that what happened to Jane Doe was serious," Vogel said. "It was sad, and it was tragic, and the jury believed her."

The jury unanimously agreed Doe was sexually assaulted and that she did report the assault to the appropriate person but didn't agree the district acted with deliberate indifference. 

"I felt that Terry Wallace, Wallace Law Firm, who represented Charlotte Mecklenburg Schools did a very good job of making it clear for the jury what the issue was," Vogel said. "So the issue was not just whether Jane Doe was sexually assaulted. The issue was more than that. It was whether a report was made to Myers Park High School and when it was made, did Myers Park High School act with deliberate indifference? Or did they take actions that are responsible that a school should take and would take in response to a report of sexual harassment or sexual assault?"

Jane Doe's lawyers acknowledged the legal bar for deliberate indifference is high but admonished how officials at Myers Park handled the case nonetheless. 

"Even if it didn't meet what the jury understood deliberate indifference required, they wanted a girl who had just been sexually assaulted to give an immediate statement before seeking medical treatment," Linda Bailey, co-counsel for Jane Doe said after the loss. 

Jane Doe's lead counsel, Laura Dunn, specializes in Title IX cases and said there’s room for legislatures to change the legal standard from deliberate indifference to negligence. 

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"The legislatures can fix that it could be the standard of negligence and there would be more accountability and likely more change if the legislature wants to make those fixes," Dunn said. 

Vogel said any lawmakers looking to make changes to Title IX would need to do so on the federal level. 

"Since Title IX is a federal law, it would take the Congress enacting a federal law to essentially overturn decades of court decisions that have interpreted Title IX to require evidence of “deliberate indifference” before a public school district or college that receives federal funds is found liable," Vogel said. 

In his legal opinion, it could face challenges if altered. 

"Since compliance with Title IX is a condition of receiving federal funds, changing the legal standard from “deliberate indifference” to mere negligence would put public school districts in risk of losing tens of millions of dollars each year. That would be devastating to public school students and families," Vogel said. 

Vogel said the outcome of the case likely won’t discourage further lawsuits about potential Title IX violations. 

"It sends a very important message to both students, families, as well as school districts about what it means, what Title IX means," Vogel said. "And how a jury would deliberate when it has before it a case and needs to think about whether a school district has acted with deliberate indifference."

Simply put, the Jane Doe versus CMS case will clarify the legal standard of deliberate indifference in relation to federal law. 

Vogel said there’s a particular lesson for school districts in last week’s verdict. 

"I think the takeaway is when you receive a report of sexual harassment or sexual assault, to act quickly, to act appropriately," Vogel said. 

The lawsuit and activism of other CMS students have led to changes in how the district handles sexual assault cases. The district has announced an expansion in its Title IX office, has clearer guidelines on how incidents should be reported, and have a required outcome letter given to everyone involved in a sexual assault report to make sure they know what CMS decides. 

Contact Shamarria Morrison at smorrison@wcnc.com and follow her on FacebookTwitter and Instagram.

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