Title IX Peer Harassment
DID THE RECORD SUPPORT TITLE IX PEER HARASSMENT CLAIMS?
Case citation: Kelly v. Allen ISD, __Fed. Appx.__, 2015 WL 690276 (5th Cir. 2015) (unpublished).
Summary: In October 2009, Mr. Allen Kelly sent an email to Allen ISD’s Board of Trustees and Superintendent to express concern about a student who would soon be re-entering an Allen ISD school, where his two children were enrolled. That student, B.H., allegedly sexually assaulted a minor female in the spring of that year. Although Allen ISD did not disclose this information to Mr. Kelly, the record shows that Allen ISD disciplined B.H. at the time of the spring incident as appropriate under its Student Code of Conduct by assigning the student to a Disciplinary Alternative Education Program (DAEP), the Dillard Center. At the end of B.H.’s disciplinary placement, the student returned to an Allen ISD elementary school and then to Curtis Middle School the following year. Curtis Middle School officials had periodic meetings to review and report on B.H.’s progress as required by his special-education status.
Mr. Kelly’s son, C.K., and B.H. were students at Curtis Middle School during the 2010–2011 school year. On December 9, 2010, C.K. reported to Assistant Principal Robert Puster that B.H. had targeted him. He stated that B.H. had taken his glasses and made him chase B.H. for them. Then, he stated that “a few weeks ago several boys started ‘T-bagging everybody.’” By this he meant that the boys—B.H. and another child, T.B.—hung their crotches in students’ faces and humped them. There is no evidence that B.H. and T.B. removed their clothing. C.K. also reported that B.H. had teased C.K. on many occasions, taunting him by saying things like “I love you” and “are you my boyfriend” and by taking his things. Puster promised to take action.
Puster and Principal Becky Kennedy investigated the allegations and immediately placed B.H. and T.B. in In–School Suspension (ISS) pending the results of the investigation. They also took reports from over fifty students. On December 13 they recommended placing B.H. and T.B. in the Dillard Center DAEP. Curtis Middle School teachers and administrators also took steps to help C.K. make friends at school, including inviting him to join the Fellowship for Christian Athletes and the Social Skills Group. In addition, just days before the December t-bagging incident, the committee in charge of monitoring B.H.’s special-education needs reported that B.H. was having trouble with his grades and attention. The committee did not make any report or findings as to potential sexual misconduct.
C.K. reported two additional bullying incidents not related to B.H. First, on October 8, 2010, C.K. submitted a Bullying Incident Report Form stating that E.C., another student, raised a middle finger at him. Assistant Principal Joe Gray investigated the incident and determined it was not bullying, though he spoke with both boys to avoid another incident in the future. Second, on December 13, Mrs. Kelly emailed Principal Kennedy, C.K.’s teachers, and guidance counselor Jolene Johnson to report that while C.K. was waiting for her to pick him up from school, K.M., a girl who was friends with B.H. or T.B., pulled on the back of C.K.’s jacket and asked why C.K. was causing trouble for her friend. Puster investigated the incident and immediately assigned K.M. to ISS, where she remained for the rest of the semester. He also recommended a DAEP placement. Soon after the Kellys withdrew C.K. from Allen ISD and transferred him to McKinney ISD. At that time, B.H., T.B., and K.M. were still in DAEP placement.
The Kellys later filed suit claiming that C.K. was subject to sex-based harassment at Curtis Middle School during the 2010–2011 school year in violation of Title IX of the Education Amendments of 1972. The trial court granted pretrial judgment for Allen ISD, concluding that the district did not have actual knowledge of C.K.’s harassment; that any harassment C.K. experienced was not based on his sex; and that Allen ISD was not deliberately indifferent to C.K.’s harassment. The parents appealed to the Fifth Circuit Court of Appeals.
Ruling: The Fifth Circuit affirmed the judgment in favor of the district. A person suing a school district for student-on-student harassment under Title IX must show that the district (1) had actual knowledge of the harassment, (2) the harasser was under the district’s control, (3) the harassment was based on the victim’s sex, (4) the harassment was “so severe, pervasive, and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit,” and (5) the district was deliberately indifferent to the harassment. For a school district to face Title IX liability, it must have had actual knowledge of harassment; constructive notice will not suffice. A school official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference.
The undisputed facts demonstrated that Allen ISD had no knowledge of facts that would permit the inference that C.K. faced a substantial risk of serious harassment, and that no Allen ISD official in fact drew such an inference. First, as regards B.H., the t-bagging incident was first reported on December 9, 2010. C.K. and others told Allen ISD faculty that the incident took place in physical-education class, and student statements uniformly confirm that everything happened “whenever the teachers weren’t looking.” Indeed, the parents themselves confirmed that the incidents typically took place when the children were unsupervised. Nothing in the record indicated that any Curtis Middle School official was aware of the problem prior to C.K.’s December 9 incident report—after which Allen ISD officials took prompt investigative and remedial action. Both Principal Kennedy and Assistant Principal Puster investigated C.K.’s allegations, and Curtis Middle School officials placed B.H. and T.B. in ISS, then recommended they be transferred to the Dillard Center DAEP. Both students remained at the Dillard Center until after C.K. left Curtis Middle School. According to the Court, Allen ISD responded with similar speed and determination to C.K.’s complaint regarding K.M.
It is true that B.H. had previously assaulted a female minor, and that Mr. Kelly emailed the Curtis Middle School Board of Trustees to indicate his concern with B.H.’s presence in C.K.’s school. At B.H.’s final review before the t-bagging incident, which took place on December 6, Curtis Middle School administrators noted that B.H. was having trouble with his grades and attention. There was no indication that B.H. was acting out sexually or bullying his classmates. This falls far short of Title IX’s stringent actual-knowledge standard.
Second, C.K.’s only prior bullying report was against E.C., the student who raised his middle finger at C.K. There is no allegation that E.C. bullied C.K. at all before or after that first incident. The same is true of K.M., the student who pulled on the back of C.K.’s jacket; she and C.K. had no further interaction. Taken together in the light most favorable to the Kellys, these reported incidents do not permit the inference that the district knew that C.K. was at risk of harassment. Therefore, we conclude that Allen ISD did not have “actual knowledge of the harassment.” Because actual knowledge was a necessary element of a prima facie Title IX claim, the appeals court affirmed the judgment in favor of Allen ISD.
Comments: While the ruling was based on a lack of actual knowledge on the part of district staff, the appeals court also noted the district’s “speed and determination” in handling the student’s complaints. The record showed that school administrators immediately placed the students in ISS, conducted an extensive investigation, and issued stiff disciplinary penalties.
DID THE LAWSUIT STATE SUFFICIENT FACTS AGAINST THE SCHOOL DISTRICT AND SCHOOL OFFICIALS STEMMING FROM THE ALLEGED SEXUAL ASSAULT OF THE STUDENT?
Case citation: Doe v. Dixon, 2015 WL 589632 (W. D. Tex. 2015) (unpublished).
Summary: The mother of a Blum Independent School District high school student brought suit on behalf of her son alleging that a teacher’s aide engaged in an inappropriate sexual relationship with her son. The mother alleged that the relationship started at school, during the student’s gym class. The teacher’s aide allegedly first acted friendly toward him at school, sitting next to him, touching him, and bringing him food. It was alleged that the employee was also seen kissing the student. The principal allegedly received complaints from school employees and students about the inappropriate conduct and the principal reprimanded the woman and threatened her with termination. According to the suit, however, inappropriate conduct continued. At one point, it was alleged that the teacher’s aide asked the mother if she could take the student to a movie. Believing that the employee was acting as a mentor and not knowing of the previous allegations, the parent allowed her son to go to the movie. The relationship eventually escalated and it was alleged that sexual activity took place off campus and during a holiday break. The mother found out about the relationship and called the school to report her concerns. The student confirmed the inappropriate relationship and the district fired the teacher’s aide. The lawsuit alleged violations of the student’s due process rights under the Fourteenth Amendment to the United States Constitution. The district filed a motion to dismiss.
Ruling: The trial court dismissed the suit against the district, the principal, and the teacher’s aide. Taking as true the allegations in the suit, the principal initially was only notified of some unspecified “inappropriate” behavior. Nothing in the suit indicated that the principal was advised of the details of the relationship such that he was on notice of inappropriate “sexual” behavior which pointed “plainly toward the conclusion that the subordinate was sexually abusing the student.” Nor did the facts as alleged support a conclusion that the principal was deliberately indifferent to the student’s constitutional rights by failing to take action. The principal reprimanded the employee after learning of some type of “inappropriate” behavior and warned her that she would be terminated if it continued. While the reprimand did not prevent the woman from eventually initiating sexual intercourse with the student, nothing indicates that the intercourse and overt sexual behavior occurred on the school campus. As the teacher’s aide was terminated immediately after the Christmas break and the principal’s reprimand came shortly before, there was little opportunity for the two to continue their activities at school. At most, the record showed that the two continued to text and exchange phone calls, neither of which is an activity which could easily be monitored by other school employees or officials. After the woman was terminated, the principal first learned of the sexual nature of the relationship. At that time, he immediately notified the police. There was nothing in the lawsuit to support a claim that the principal was “deliberately indifferent” toward the constitutional rights of the student.
As with supervisory officials, governmental organizations cannot be held liable for the actions of their employees under a theory of respondeat superior. School district liability under 42 U.S.C. § 1983 requires proof that the actionable behavior was the result of the school district’s official policy, custom, or practice. In this case, because all of the parent’s claims against the district were based upon the principal’s actions, she failed to state a claim for relief against the district based upon any policy, custom or practice adopted by the school board. The court, likewise, dismissed the claims against the teacher’s aide in her official capacity because the sexual contacts with the student did not occur on school property or at school events and were not, therefore, under color of state law.
The remaining claims were against the teacher’s aide for assault and battery and against the woman and principal in their individual capacities for intentional infliction of emotional distress. According to the court, under the Texas Education Code, a plaintiff must give notice to a school district professional employee prior to filing suit which describes the incident from which the claim arose. The suit did not allege that such notice was given in this case. Further, the principal was immune from suit under Texas Education Code § 22.0511(a), because the allegations against him were carried out within the scope of his employment and while acting under color of state law. In addition, the parent’s election to file suit against Blum ISD barred her state law claims against both the principal and teacher’s aide. Then, once the individual defendants were dismissed, the claims against Blum ISD also were dismissed as a school district is only liable for negligence claims arising out of misuse of a motor vehicle. The trial court dismissed the suit.
COULD THE NURSING STUDENTS WHO FAILED TO GRADUATE PURSUE DUE PROCESS CLAIMS?
Case citation: Jackson v. Lee College, 2015 WL 851926 (S. D. Tex. 2015) (unpublished).
Summary: Two former student of the Lee College Associate Degree in Nursing program filed suit against the college alleging that while they were enrolled in the program, college faculty changed the requirements for graduation. Specifically, they claimed that faculty (1) converted the final exit exam from one testing instrument to two, (2) made the exit exam a component of a course required for graduation rather than a stand-alone requirement as it had previously been, and (3) changed test vendors, grading scales, and score requirements. The students were unable to pass the required tests after multiple attempts and were not allowed to graduate. They unsuccessfully challenged the amended graduation requirements through the College’s appeals process prior to filing suit. The students sued Lee College claiming violations of their due process rights. Procedural due process claims were dismissed by the trial court and the college then requested a pretrial judgment on the students’ remaining substantive due process claims.
Ruling: The trial court granted judgment in favor of the college. The students sought relief for due process violations under the Fourteenth Amendment of the Constitution, which requires a demonstration that the college’s actions deprived them of either a property or liberty interest. Courts, including the United State Supreme Court, have reviewed academic decisions of public educational institutions for due process violations by assuming that a student has a protectible constitutional interest in continued enrollment in a college program. Thus, the trial court assumed that the students in this case had a protectible interest in their continued enrollment in the Lee College.
To constitute a violation of substantive due process, the college’s actions must have been based on unconstitutional criteria or have been arbitrary and capricious. The United States Supreme Court has left open a “narrow avenue for judicial review” when the university’s policies are shown to be arbitrary or capricious, unfair, or premised on unconstitutional criteria. However, judges must “show great respect for the faculty’s professional judgment.” A violation may occur if the action is “such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.” According to the trial court, the proper inquiry is whether the college acted arbitrarily when it continually amended its graduation requirements within a month of graduation and held students to grading standards different from those written in the college’s policies. The students had to show there was no rational basis for the college’s decisions.
The court held that the students could not show that the college failed to exercise professional judgment in changing graduation and testing requirements and denying them the opportunity to graduate. The college provided plausible explanations for the changes in policy about which the students complained. The college decided to use two tests instead of one in order to lower the stakes of each test. The college switched test vendors or adjusted scores upward because of potential problems with testing reliability. The comprehensive exam was added as a component of a course based on the guidance of the state nursing board. These decisions were within the college’s professional judgment. Accordingly, the students could not succeed on their substantive due process claims, and the college was entitled to judgment in its favor.