5th Circuit overturns big jury verdict. South San ISD not liable for sexual assault of student.

I was trying to explain to my friend that our law firm just won a big victory.  The 5th Circuit reversed a decision that went against our client, and in the process, tossed out a jury verdict of $4.5 million.  Obviously, with a verdict like that, the jury was very sympathetic to the plaintiff.  It turned out that my friend was also.  That’s understandable. The plaintiff in this case is a very sympathetic figure.  My friend did not understand how the school district should not be liable when a little boy is sexually molested by a school administrator he had come to trust.

Mr. Alcoser was a vice-principal, and then a principal of a school in South San Antonio ISD.  What he did to the boy was reprehensible, illegal, and not disputed.  The legal issue was: who should be held legally responsible for this?  Mr. Alcoser could be held liable, and he has been held liable in the criminal context. He was sentenced to 18 years in prison for aggravated sexual assault.  His employment with the district was terminated.  But the parents dropped their civil suit against Mr. Alcoser, and focused their lawsuit on the district.

The problem they ran into was that no one else in the district—no one—knew what was going on between Mr. Alcoser and the boy.  This was an undisputed fact.  Thus the case presented an unusually clear legal issue: can the district be liable under Title IX for an employee’s sexual assault of a student, when the only employee in the district who has actual knowledge of the misconduct is the employee himself?

In a well-reasoned and very thorough opinion, relying heavily on prior Supreme Court cases and congressional intent, the 5th Circuit said: No.

To understand this, you have to start with the basics of Title IX. This federal law prohibits sex discrimination by school districts that receive federal financial assistance.  The primary means of enforcing Title IX is through action by the Department of Education to withhold federal funds.  However, several earlier court cases established that Title IX included an “implied private right of action.” That opened the door to lawsuits by individuals seeking damages for sex discrimination.

One of those lawsuits was Gebser v. Lago Vista ISD, decided by the Supreme Court in 1998.  That case set the standard for district liability under Title IX. Those standards are now well established. If an employee sexually molests a student the district can be held liable, but only if the evidence shows that the district had actual knowledge of the misconduct, and responded to it with deliberate indifference.  In this case, Mr. Alcoser obviously knew of the misconduct and he was way more than “deliberately indifferent.”  But no one else did. No one.  In its critical ruling the 5th Circuit held:

“Where a school district’s liability rests on actual notice principles, however, the knowledge of the wrongdoer himself is not pertinent to the analysis.”  Applying that principle to the present facts, the District is not liable for damages based on Title IX since Alcoser’s knowledge of his own wrongdoing is not pertinent. (That quoted part is taken from the Lago Vista decision).

Thus the court concluded that Title IX does not impose liability on the school district under those circumstances. To put it plainly: school districts are not liable under Title IX for sexual abuse. They are liable when they know about it and respond poorly.  Schools must be given the opportunity to correct the problem before liability is imposed. Here, the district did not have that opportunity.

Many people, like my friend, will disagree with this outcome.  The little boy at the heart of this case was a victim of sex discrimination. But when applying legal standards of liability courts have to go beyond that fact to ask another question: yes, the little boy was violated—but by whom?  By the district?  School district policy prohibited sexual misconduct.  One employee intentionally violated the school’s policy and was careful to keep it secret.  No one with the authority to put a stop to it--other than that one employee--was aware.    If Congress, or the Texas legislature wants to impose liability on school districts in cases like this, it could do so. But this court has held that the existing language in Title IX does not go there.

The case is Salazar v. South San Antonio ISD, decided by the 5th Circuit on June 15, 2017.  You can find it at 2017 WL 2590511.  Meredith Walker of our firm’s Irving office and Craig Wood from our San Antonio office headed up the representation of the district in this case.


File this one under: TITLE IX

Tomorrow: Can the superintendent reassign you from principal to assistant principal?