A federal judge denied the Tamaqua Area School District’s motion to dismiss a lawsuit stemming from alleged assaults by members of the high school football team.

U.S. Magistrate Judge Joseph F. Saporito Jr. handed down the decision Thursday, allowing the suit filed against the district by the families of two freshman football players to proceed.

The families claim the incidents involving the boys were sexual assaults, the district violated their constitutional rights and failed to take steps which are required of schools following a reported sexual assault.

The district asked the court to dismiss the suit for failing to state a claim upon which relief can be granted under federal procedures.

The court denied the district’s request, stating the civil rights claims in the families’ complaint were adequate to move forward.

Named as defendants in the 14-count suit are Superintendent Raymond Kinder, Assistant Superintendent Steven Toth, high school Principal Thomas McCabe, school board President Larry Wittig, and board members Nicholas Boyle, Melanie Dillman, Thomas Bartasavage, Bryan Miller, Mark Rother, Thomas Rottet, Daniel Schoener and Trina Schellhammer.

Among the claims in the suit are deliberate indifference to report sexual assault/harassment and retaliatory harassment, retaliation following report of sexual assault, deliberate indifference resulting in second attempt sexual assault, deliberate indifference to the right to unbiased treatment, equal protection; negligence: first and second assault, and negligence.

The court found that the families sufficiently alleged deliberate indifference to harassment by a school, which is sufficient to demonstrate intentional discrimination.

The court also found that the suit adequately pleaded a hostile educational environment equal protection claim.

“The plaintiffs have pled the elements of a Title IX claim and that the district maintained customs or policies of failing to recognize, investigate and respond to reports of male-on-male sexual assault and harassment; failing to enforce its existing policies prohibiting sexual assault; and failing to adequately train school administrators and employees on how to recognize, investigate, address, and prevent further sexual assault and harassment of its students,” the court papers said.

The court also found the families’ claims supported a municipal liability claim, calling those same customs or policies unconstitutional.

As for dismissing claims against individual defendants, the court found “these allegations sufficient to defeat the motion to dismiss at the pleadings stage.”

The court looked at the actions and inactions of Kinder, Toth, McCabe, and their shared power to investigate a sexual assault with the school board.

On the Title IX claims, the court found the complaint adequately sets forth a factual basis to support the deliberate indifference requirement.

The court pointed to the district not contacting the plaintiffs or advising them of their child’s rights under Title IX, including supportive and protective measures and representation during the investigation and disciplinary process; failure to acknowledge the assaults as sexual in nature or investigate as attempted sexual assaults.

The court also noted that the district did not make a Childline report as required under state law, and defendants characterized the assaults as “horseplay” and “hazing.”

The court stated “the defendants created a hostile educational environment,” “refused to institute necessary corrective action,” and “failed to provide adequate training” on sexual assault and harassment, retaliation and mandatory reporting.

The district also asked the court to dismiss the retaliation count, because the complaint lacks facts and no actionable conduct attributed to any defendant.

“We disagree,” the court stated. “We find the causation element has been adequately pled. These allegations are sufficient to defeat the defendant’s motions to dismiss the retaliation claim.”

Background

The school district referred to the incident on Nov. 4, 2021, as “hazing.”

According to the 45-page suit, the football team has a “tradition” of sexually assaulting “certain freshman players by holding them down on the ground, beating them up,” and attempting penetration with an object.”

The assaults and response from the district are detailed in the suit.

The incidents were reported to have occurred in the fieldhouse, located at 329 Orwigsburg St., Tamaqua.

An 18-year-old player, Zachary McGlinchey, was charged with simple assault and harassment. He was admitted into the Accelerated Rehabilitative Disposition program.

Two juveniles faced summary harassment charges.

The three students were expelled.