The 5^th Circuit has concluded that Lewisville ISD was not “deliberately indifferent” in handling a bullying/sexual harassment complaint.  Based on that conclusion, the court granted summary judgment in the district’s favor.

The facts alleged in this case are horrific.  Before I tell you about the legal issues, I want to “go on record” about something.  I hate reporting cases like this one.  No one can read the dry legal analysis of this appellate court opinion and remain unaware of the human suffering that produced this piece of litigation.   This is about a girl who alleges that she was raped and then ridiculed about it.  In the 9^th grade.  The judges do what they are supposed to do—they apply the legal principles to the facts and announce a decision.  My job here is to help you understand the legal issues so that you can better do your job of protecting students from sexual harassment and bullying.  Fifth Circuit decisions are always important—they create legal precedents that I want you to know about. But cases like this also produce heartache. 

Thanks for listening.  Now—here’s what happened.

The parents alleged that their daughter, a 9^th grader, was sexually assaulted by two boys at a party held at a private residence. This was not a school sponsored event, and in fact, there were no school personnel present, but there were many students from the high school.  This party was on a Friday night in the fall—no doubt after the football game.  The two boys who were accused of the assault were football players.

The bullying, according to the lawsuit, started immediately, when the girl came back to school on Monday.   There was name calling and worse, including allegations that one of the boys was bragging about his sexual conquest.

To cut to the chase, the parents eventually filed suit against the district alleging that the school should be held liable for the student-to-student harassment and bullying.  To prevail on that theory, the parents have to prove five things:

1. The school knew about the harassment.
2. The harasser was under the school’s control.
3. The harassment was based on the victim’s sex.
4. It was bad enough that the victim was effectively barred from accessing an educational benefit or opportunity; and
5. The school’s response to the situation was “deliberately indifferent.”

The hardest of those to prove is #5, and that’s where the proof fell short in this case. The court explained that this is an “extremely high standard to meet.”  In reviewing the facts, the court held that the district was not deliberately indifferent.

This case presented the court with a set of facts that is, unfortunately, not unusual these days.  The legal analysis is well established. The courts usually decide these cases in favor of the school district because of the “deliberately indifferent” standard. 

The court’s analysis is not surprising or ground breaking, but there is one new argument that was presented.  The plaintiffs argued that the decision about “deliberate indifference” should always be made by a jury—not the judge.  In particular, the plaintiffs argued that cases alleging “deliberate indifference” should never be tossed out of court on a Motion for Summary Judgment.  When the court grants such a motion it is effectively saying that no reasonable jury could possibly conclude that the district was “deliberately indifferent.” Therefore, the court takes it out of the jury’s hands and awards victory to the school district “as a matter of law.”

The plaintiffs argued that taking this issue away from the jury is contrary to the purposes of Title IX.  The court did not agree, citing numerous previous cases where courts had granted a Motion for Summary Judgment on the issue of “deliberate indifference.”

That may sound like a lot of “inside baseball” of interest only to lawyers. But here’s the practical implications of this: if every student-on-student harassment case has to go to a jury the outcome of those cases becomes much less predictable. The cost of settlement goes way up. Winning a case like this on Summary Judgment is not easy and requires considerable attorney time.  But it’s far less than a jury trial, and, if the facts are solid, the outcome is fairly predictable.

The case is I.F. v. Lewisville ISD, decided by the 5^th Circuit on February 8, 2019. We found it at 2019 WL 491790.  We hope this girl—now a young woman—is on the road to recovery.  All of us who care about public education regret the fact that we can’t always prevent bad things from happening to kids.

DAWG BONE: LEAVE THAT “DELIBERATE INDIFFERENCE” PHRASE TO THE LAWYERS. EDUCATORS HAVE TO BE WAY BETTER THAN THAT AT DEALING WITH STUFF LIKE THIS.

Tomorrow:  Toolbox Tuesday!