K.S. v. Northwest Independent School District, Dkt. No. 16-40093 (5th Circuit, May 2, 2017).

K.S. filed suit against Northwest Independent School District, claiming that he was subjected to peer harassment on the basis of his sex by a number of students while he was in the sixth grade.  Over the fall semester of his sixth grade year, he claimed to have been teased repeatedly due to his large breasts.  The perpetrators were at times disciplined, but not always.  Sometimes K.S. was thought to be at fault, and he was disciplined.  There were a few fairly intensive investigations in which multiple student statements were taken, which led to different variations of discipline.

At one point, K.S. and another student were suspended after a shoving match in the hallway.  K.S. was suspended again after a fight was recorded on a campus video camera.  The following day, the school received letters from K.S.’s counselor and doctor describing his depression related to bullying at school, and harassment and teasing.  Neither letter mentioned sex-based harassment. K.S. later withdrew from the District.  The family then unsuccessfully pursued grievances and an appeal of those to the Texas Education Agency before filing suit.

To proceed in his Title IX suit, K.S. had to produce evidence that (1) the school had actual knowledge of the harassment; (2) the harasser was under its control; (3) the harassment was based on his sex; (4) the harassment was so severe, pervasive, and objectively offensive that it effectively barred his access to an educational opportunity or benefit; and (5) the school was deliberately indifferent to the harassment.  The trial court dismissed the suit because the evidence was insufficient to demonstrate that K.S. was effectively barred access to an educational opportunity or benefit or that the District acted with deliberate indifference.  The family appealed.

Ultimately, the Fifth Circuit agreed with the trial court on the issue of deliberate indifference.  According to the appeals court, the deliberate indifference standard sets a “high bar” in which it must be shown that the District’s response to alleged peer sexual harassment was “clearly unreasonable in light of the known circumstances.”  In analyzing the evidence, Courts must “refrain from second-guessing the disciplinary decisions made by school administrators,” so said the Court.

The Court found no deliberate indifference in this case because school officials took some action in response to the specific incidents alleged by K.S. and to the overall situation.  Throughout the semester, the District investigated and took action when K.S. and his mother complained or when K.S. was involved in an altercation.  When K.S. received disciplinary consequences, it was for his own conduct and not motivated by sex discrimination.  According to the Court, the “District took relatively strong action to deal with the overall situation” by moving forward with a psychological evaluation of K.S., telling teachers to monitor him, providing counselors to escort him to and from the restroom, and requiring him to sit behind the bus driver to avoid altercations on the bus.  This evidence supported the ruling in favor of the District.  The appeals court, therefore, upheld the dismissal of the case.  The full Fifth Circuit opinion can be viewed here.

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