5th Circuit on student-to-student harassment

Welcome back to work, Daily Dawg Readers!  I hope the Thanksgiving holiday was enjoyable for you. Now the quick sprint to the next break.  And we’ve got some interesting legal developments to share with you during these next few weeks. 

Title IX coordinators will want to spend some time studying the 5th Circuit’s recent decision in a nasty student-to-student sexual harassment case.  Two overall lessons emerge.  The first is familiar: Document. Document. Document.  The second lesson is to conduct your own investigation and not be overly reliant on how law enforcement handles the situation.

The student sued the district under Title IX alleging that the district was deliberately indifferent in two ways: first, to the “heightened risk” of sexual assault that she faced; and second, in the way the district responded to the sexual assault she suffered.

As to the heightened risk theory, both the district court and the 5th Circuit granted a Summary Judgment in favor of the school district.  The student alleged that the district fell short on Title IX compliance, failed to train the staff, and had a long history of inaction in the face of dating violence and sexual assault among students.  All of this, she alleged, created a “heightened risk” that she would be the victim of a sexual assault.  The court disagreed, holding that the plaintiff has to connect the dots more directly.  The court held that the plaintiff “does not connect this failure to the District’s knowledge about her in particular.”  Key Quote:

…assorted incidents of sexual misconduct involving neither the Title IX victim nor the aggressor are generally insufficient to give a school district actual knowledge of the plaintiff’s assault.

However, the Circuit Court denied the district’s Motion for Summary Judgment on the other theory.  This was about the aftermath to the student’s assault.  The court held that a reasonable jury could conclude that the district responded to the plaintiff’s situation with deliberate indifference.  The school concluded that the sexual encounter between the two students was consensual, although it “went too far.”  It sure did. The girl, 14-years old, had serious physical injuries that led to two surgeries.  

The District Attorney did not prosecute the case and the court quoted the note from the sergeant in the Sheriff’s office that explained why:

[b]ecause the act was consensual between the complainant and suspect, and the fact that the affirmative defense to prosecution applies in this case, criminal charges were not accepted. The suspect did not use duress, coercion, or threats. The suspect is not a registered sex offender and the sexual acts were consensual and the age difference is not more than three years.

The school cited the D.A.’s decision to bolster its conclusion that this was a consensual sexual encounter rather than an assault.  But the court compared the alleged facts in this suit with several other student-to-student cases.  In all of the other cases there was interaction between the public school and law enforcement along with documentation of the school’s independent efforts to ferret out the truth.  But in the facts alleged here, the court noted that there was “virtually no documentation” of an investigation by the school.  Moreover, the court cautioned school officials not to rely too much on a D.A.s decision not to prosecute:

Different legal standards apply to criminal prosecutions and educational discipline, and Title IX requires more than parroting a prosecutorial decision.

The case is a long way from being over, but this published decision is a reminder of some of the basics of Title IX.  Document things carefully and thoroughly.  Interact with law enforcement as appropriate, but apply your school’s standards to the situation rather than the criminal law standards.  Doing those things not only helps out in the event of litigation—more importantly, it also helps protect students from sexual assault.

It’s Roe v. Cypress-Fairbanks ISD, decided by the 5th Circuit on November 14, 2022 and published at 2022 WL 16918818, 


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com

Tomorrow: Toolbox Tuesday!!