The judge said the girl's "cognitive deficits" raise questions about whether she could consent.
CAMDEN -- A former Willingboro High School student with disabilities can continue to sue the district after she claims she was sexually assaulted twice while a student there, a federal judge has ruled.
The young woman, now 23, said the district failed to prevent or appropriately respond to the incidents, which occurred when she and male students were unsupervised in classrooms.
While Judge Jerome B. Simandle did throw out one of the plaintiff's claims for damages in his decision Friday, he also ruled that she can continue to sue the Willingboro Board of Education under Title IX, the federal law that says schools must protect students from sexual harassment.
The girl initially said at least one of the acts was consensual, but later claimed that neither act was consensual, according to Simandle's summary of the 2014 suit. Her lawsuit raises issues of whether she could legally consent because of her disabilities, which her attorney said include emotional and intellectual issues.
Simandle seemed sympathetic to the point in his decision, stating that there is a "a genuine dispute as to whether plaintiff... had the capacity to welcome or consent to the sexual request" of the first boy, due partly to her "cognitive deficits."
The girl's disabilities are believed to be due in part to fetal alcohol syndrome, the judge wrote.
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Psychologist Victor J. Nitti Jr., who examined her in 2011, wrote in a report that her intellectual abilities were "borderline," her judgement was impaired, and she had significant emotional issues including depression and "loss of control," according to court documents. She also reported she felt like she was being watched and heard voices that no one else heard, the judge noted.
According to the suit, the girl was 15 when she agreed to a request from a 17-year-old boy to perform a sexual act in an empty classroom on March 20, 2009.
Various school staff found out about the incident over the following week, and the school's director of safety, security and attendance investigated along with police and determined it appeared to be consensual. Allegations that staff members delayed in reporting the incident in an attempt to cover it up were also investigated, but no evidence of a cover-up was found, the suit said.
Within a month, the girl's guardians, James and Robbie Lockhart, notified the school they intended to sue because they felt staff had failed to prevent what they considered to be a sexual assault.
Judge Simandle noted that while the girl initially told staff she agreed to the sexual conduct, the school provided no evidence that, after learning that she was alleging it was not consensual, it took action such as reopening the investigation or contacting police to speak with the girl.
The suit claims that the school should have taken steps after the first alleged assault to increase supervision, among other things, which could have stopped the second incident.
Starting in 2011, the lawsuit claims, another special education classmate began touching the girl's buttocks without her consent, including three alleged incidents that were observed by staff.
In April of that year when the girl was 17, she went to the special services classroom during the lunch break to get her purse. There, she says in the suit, the boy grabbed and sexually assaulted her while she tried to push him away. A teacher entered and observed the incident, but staff again believed the incident to be consensual, according to the suit.
The girl was suspended as a result of the incident.
Simandle wrote that to prove the district violated Title IX, the plaintiffs would have to show that staff were aware of the harassment occurring while they were responsible for the students and showed "deliberate indifference" instead of responding appropriately.
He said that is a legitimate question that should be decided at trial, since the school produced no evidence it did a thorough investigation after learning the girl and her family felt the incidents were not consensual.
Also lending weight to the plaintiffs' claims that the school failed to protect her is the allegation that the second alleged assault occurred "following a pattern of sexual misbehavior toward her by the perpetrator that was observed by school personnel," Simandle wrote.
A message seeking comment from Willingboro Public Schools Superintendent Ronald G. Taylor was not returned Tuesday.
Rebecca Everett may be reached at reverett@njadvancemedia.com. Follow her on Twitter @rebeccajeverett. Find NJ.com on Facebook.