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Case citation:  Carmichaelv. Galbraith, __ Fed. Appx. __, 2014 WL 2767590 (5th Cir. 2014) (unpublished).

Summary:  The Carmichaels’ son, Jon, was a thirteen-year-old student at Loftin Middle School, who committed suicide after allegedly being bullied by his fellow students. The Carmichaels filed suit against school officials who, according to the Carmichaels, demonstrated deliberate indifference to the bullying. The Carmichaels’ suit alleged that Jon was bullied throughout “[t]he 2009–2010 school year.” According to the complaint, “[o]n numerous occasions, Jon was accosted by a group of boys in the locker room—oftentimes having his underwear removed—while Defendant Watts observed.” During “[t]he last of these incidents… just before Spring Break—a few days before Jon took his life,” members of the football team “stripped [Jon] nude and tied him up” and “placed [Jon] into a trash can” while calling him “fag,” “queer,” and “homo.” As the complaint explains, “[a] number of students in the locker room observed this deplorable behavior,” and one of these students “videotaped the attack and uploaded it to YouTube.” The harassment against Jon was, according to the complaint, “based on gender or gender-based stereotypes.” Shortly thereafter, Jon committed suicide in March 2010.

The Carmichaels’ complaint further alleged that numerous school officials were aware of and deliberately indifferent to the bullying, including numerous teachers, the bus driver, the school counselor, and other staff. Although the school district had policies in place for addressing bullying, those policies were allegedly ignored in Jon’s case. One teacher, after being told by another teacher that she was concerned about the bullying, “essentially replied that ‘boys will be boys’ and told the teacher to leave it alone.”

The suit asserted claims under Title IX of the Education Amendments of 1972 and equal protection claims.  The district court dismissed the Carmichaels’ claims and the Carmichaels appealed to the Fifth Circuit Court of Appeals.

Ruling:  The Fifth Circuit reversed, holding that the Carmichaels had stated a valid Title IX claim.  The Carmichaels alleged that the bullying experienced by Jon from 2009 to 2010 constituted a “severe, pervasive, and objectively offensive” pattern of student-on-student sexual harassment in violation of Title IX.  While the court properly held that a single instance of student-on-student sexual harassment is not actionable under Title IX, the suit alleged more than a single instance. The Supreme Court explicitly limited Title IX claims based on student-on-student sexual harassment to encompass only “pervasive” and “widespread” conduct with the “systemic effect of denying the victim equal access to an educational program or activity.”

According to the Fifth Circuit, the trial court failed to take note, however, of sexual-harassment allegations in the complaint that satisfied Title IX’s requirement of pervasiveness. In addition to the videotaped incident, in which the football team “stripped [Jon] nude and tied him up,” the complaint also refers to other “numerous occasions” on which “Jon was accosted by a group of boys in the locker room—oftentimes having his underwear removed—while Defendant Watts observed.” The complaint later refers collectively to these occurrences in the plural as “incidents of sexual assault.” The district court did not analyze or even mention these portions of the Carmichaels’ complaint.

The removal of a person’s underwear without their consent on numerous occasions plausibly constitutes pervasive harassment of a sexual character, according to the Fifth Circuit. The appeals court stated:  “depend[ing] on [the] constellation of surrounding circumstances, expectations, and relationships,” uninvited contact with the private parts of either the victim’s or harasser’s body has often been held to constitute sexual harassment under Title IX.” Moreover, it is irrelevant that both the victim and the harassers in the present case were male because same-sex sexual harassment is actionable under Title IX.  Depending on the evidence at trial or summary judgment, the series of incidents where Jon’s underwear was forcibly removed could plausibly constitute “numerous acts of objectively offensive touching.” Such acts plausibly fall outside the list of simple insults, banter, teasing, shoving, pushing, and gender-specific conduct not actionable under Title IX.  The Fifth Circuit, therefore, reversed the trial court’s dismissal of the Carmichaels’ Title IX claim.

The Fifth Circuit upheld dismissal of the equal protection claims against the district, holding that the Carmichaels failed to allege a policy, custom, or practice of the district resulting in the denial of the student’s equal protection rights.  The Fifth Circuit reversed the dismissal of the Title IX claim and returned the case to the trial court.

Comments:   The court was only addressing whether or not the allegations satisfied the “severe and pervasive” standard and whether it was “based on sex.” Still to come in this case will be the dispute over whether the school was on notice, and whether it responded with deliberate indifference. Thus the case has a long way to go, but this ruling is a reminder that same sex harassment should not ever be dismissed as “boys being boys.”



Case citation: Fike v. Miller,      S.W.3d     , 2014 WL 3615783 (Tex. App. – Tyler 2014).

Summary: Hunter Bodine was a student in the Latexo Independent School District, and Travis Miller was one of his coaches. Jim Gregory was the superintendent of LISD. Darlene Fike, on behalf of Bodine, sued the district, Miller, Gregory, and eight other individuals over an incident that occurred in the school gym.  According to the suit, Bodine was in the school gym with other students when he stumbled and fell as he attempted to tap another student on the neck. Ten to twelve students then allegedly ran to Bodine and hit and kicked him while he was on the floor. Bodine was injured, and as a result, he rested and drank from a cup of water instead of participating in the activities of the class.

Miller was assigned to be in the gym supervising the students, but he was not in the gym when Bodine was injured. While Bodine was resting, Miller approached him and told him to discard the water. Bodine tried to tell Miller what happened, but Miller allegedly told Bodine that he did not want to hear his excuses. Miller then asked Bodine why Bodine was in athletics. After Bodine replied that he was in athletics because he “can be,” Miller purportedly responded that Bodine was not fit to be in athletics because he was fat.

As to Miller, Gregory, and the district, Fike asserted a claim of negligence and a violation of the Fourteenth Amendment of the United States Constitution. Miller and Gregory filed a motion to dismiss, arguing that Fike had irrevocably elected to sue the district and, therefore, the suit against them was barred pursuant to Texas Civil Practices and Remedies Code 101.106.  The district filed a plea to the jurisdiction in which it asserted that it had immunity from Fike’s suit. The trial court granted Miller and Gregory’s motion to dismiss and the district’s plea to the jurisdiction. The trial court then severed Fike’s claims against Miller, Gregory, and the district from her claims against the students that she alleged hit and kicked Bodine. Therefore, the trial court’s dismissal of Miller, Gregory, and LISD became final and Fike appealed.

Ruling: The court of appeals upheld the dismissal of Fike’s claims against Miller, Gregory, and the district. To the extent that Fike sought to hold Miller, Gregory, and the district responsible for the actions of the individuals that hit and kicked Bodine based on a violation of the Due Process Clause, the facts did not support the claims. First, there was no evidence or allegation that Miller knew Bodine would be hit and kicked by the other students. While Miller was potentially negligent in leaving the students unsupervised, his conduct did not rise to the level of a constitutional violation. As for Gregory and the district, Fike’s pleadings failed to identify any conduct on their part that constituted an intentional or reckless deprivation of a recognized liberty or property interest. Again, even assuming that Fike’s allegation that the district failed to properly train Miller to supervise the class is the basis for her Due Process Claim, the alleged conduct fell short of a violation of the Due Process Clause. Moreover, Fike had not identified any official policy, practice, or custom that resulted in Bodine’s injuries. Because the facts involving the incident with Bodine did not rise to the level of a constitutional violation, the trial court properly dismissed the constitutional claims.

Fike also contended that Texas Education Code § 22.0511(a) provided a waiver of the defendants’ immunity for excessive force in the discipline of students or negligence resulting in bodily injury to students.  To allege a negligent discipline claim, a plaintiff must assert (1) the school district employee was negligent, (2) the circumstances involved student discipline, (3) the punishment required action on the part of the student, and (4) the student suffered bodily injury as a result of the punishment.  Here, there was no discipline by a school district employee that resulted in injury to Bodine. Bodine was not being disciplined when he was hit and kicked by the other students. Instead, the only potential punishment levied against Bodine was Miller’s demand that Bodine throw away his cup of water. But, Bodine did not suffer bodily injury when he threw away his water. Gregory and the district had nothing to do with any punishment of Bodine. Thus, Fike did not state a cause of action to which § 22.0511(a) would apply.  The appeals court affirmed the dismissal of Fike’s suit against Miller, Gregory, and the district.

Comments:   Coach Miller, according to the suit, was not supervising the students in the gym when he was supposed to. Assuming that this is true, is this negligence?   As usual in these cases, it does not matter.  The coach would be liable for negligence only if it was in the context of disciplining students or driving a motor vehicle.




Case citation:  El Paso ISD v. McIntyre,      S.W.3d      , 2014 WL 3851313 (Tex. App. – El Paso 2014).

Summary: Michael and Laura McIntyre have nine children, five of whom were minors and lived within the El Paso Independent School District.  In 2004, the McIntyres withdrew their children from a private school in order to homeschool them.   However, in January of 2006, the district received an anonymous complaint that the children were not being educated.  An investigation revealed that the oldest child had run away to enroll herself in high school, without the assistance of her parents.   In addition, the grandparents expressed concerns that the children were not attending school or otherwise receiving a proper education.

District middle school and elementary school representatives attempted to visit the family and obtain signed home school verification forms, but the McIntyres refused and were not cooperative. In January of 2007, following their refusal to provide information to campus personnel, various notices and warnings were given to the McIntyres notifying them of their children’s failure to attend school and requesting conferences.  The McIntyres did not cooperate with any of the requests or meet with district officials.

Based on the investigation and the McIntyres’ continued refusal to cooperate or verify that the children were being educated, district truancy officer Mark Mendoza filed truancy complaints against the family.  In response, an attorney from a Home School Legal Defense Association (HSLDA) sent a letter generally stating that the McIntyres were in compliance with the law and threatening to file suit.  The McIntyres eventually filed suit for alleged violations of the Texas Education Code, the Texas Religious Freedom Restoration Act (TRFRA), and the Texas and United States Constitutions.  The truancy charges were later dismissed, in part, because the prosecutor could not secure the oldest child and the grandparents as witnesses. After the trial court declined to dismiss the McIntyres’ claims, the district defendants appealed.

Ruling:  The court of appeals dismissed the claims against the district and the truancy officer.  The TRFRA claims should have been dismissed because the McIntyres failed to provide notice of their claims to the district before filing suit as required by the TRFRA.  The remaining state law claims were also subject to dismissal.  Under Texas law, an aggrieved party whose claim concerns the administration of school laws and involves disputed fact issues is required to exhaust all administrative remedies prior to filing suit.   The McIntyres’ claims involve the “school laws of the State” and they did not pursue administrative remedies before filing suit.   In addition, they did not demonstrate any of the permissible exceptions to the exhaustion requirement.  The case involved factual disputes that should have been reviewed through the administrative process.  Even though constitutional claims sometimes do not require exhaustion, the McIntyres’ claims all related to the administration and applicability of school laws, and thus required exhaustion.   The McIntyres also failed to show that irreparable harm would result if they were required to exhaust administrative remedies.  Instead, they were provided many opportunities to defend against the charges and initiate the administrative process to challenge the truancy charges.  Because the McIntyres failed to exhaust administrative remedies, the remaining state law claims should have been dismissed.  The appeals court, therefore, rendered judgment in the district’s favor.

The state law claims against Mendoza and the superintendent also were dismissed.  Under the election of remedies provision of the Tort Claims Act, a judgment in an action against a governmental entity bars any action involving the same subject matter against an employee of the governmental unit.  Here, because the state law claims against the district were dismissed, the employees also were entitled to dismissal from the suit.

The appeals court next dismissed the constitutional claims against Mendoza based upon alleged conduct that “shocks the conscience” in violation of their due process rights.  According to the court, Mendoza’s conduct did not “shock the conscience.” The truancy complaints filed by Mendoza alleged violations of specific Education Code provisions. The assistant district attorney testified that the complaints sufficiently stated criminal offenses, and did not contain false information.   Mendoza acted with a good faith belief that he was complying with his statutory duty to ensure compliance with truancy laws.  Thus, the McIntyres failed to raise a valid constitutional claim against Mendoza.

The McIntyres also alleged a liberty interest to be free of any state supervision or regulation concerning whatever education they choose for their children in their home.  Citing the Texas Supreme Court decision Texas Education Agency v. Leeper, the appellate court held that districts are authorized to inquire into the curriculum of home schools.  The Texas Education Agency, the Commissioner of Education, and the State Board of Education are permitted to provide school attendance officers lawful methods to inquire into home school curriculum.  The Texas Education Code also vests authority in school district attendance officers to investigate violations of compulsory attendance requirements, monitor school attendance, make home visits and contact parents of students, and enforce compulsory attendance requirements by filing truancy complaints.  Thus, the McIntyres did not establish a violation of their liberty interests by Mendoza.  The appeals court, likewise, held that the McIntyres’ equal protection claim was without merit because they could not show that they were singled out or treated less favorably than others similarly situated.

The appeals court dismissed the McIntyres’ First Amendment claim as well.  According to the court, parents do not have “an absolute constitutional right to educate their children in the home completely free of any state supervision, regulation, or requirements.”  Further, the McIntyres failed to raise a fact issue on whether their sincerely held religious beliefs were substantially burdened by the district’s actions.  Thus, the appeals court dismissed the First Amendment claim.

Comments:  This is a very important decision. It rests squarely on the Texas Supreme Court’s decision in the Leeper case that has been misconstrued by some home school advocates. This court provides a common sense decision that is must reading for attendance officers and home school advocates.  Key Quote: “Leeper does not hold, or even imply, that every alleged ‘home school’ automatically fits within the exemption [from the compulsory attendance requirement]. Rather, the case simply allows certain home schools meeting specific requirements to qualify as ‘private or parochial schools’ for purposes of exemption.”