The 5th Circuit Court of Appeals affirmed a judgment in favor of Marion ISD and two of its employees in a case based on allegations of ugly racial harassment. The court held that the district could not be held liable for what students did to other students unless there was some evidence of deliberate indifference on the part of the school officials. “The evidence here,” the court noted, “even when viewed in the light most favorable to the Plaintiffs, fails to raise a genuine dispute” about the district’s responsiveness.
The allegations of racial harassment in this case are ugly. But the court pointed out that the racial harassment did not come from school officials—it came from other students. And when it learned of what was happening, the school district responded, including taking “relatively strong action to address the most egregious incidents.”
The most shocking incident involved a threatening, vulgar and racially offensive note left next to the car of one of the plaintiffs in the school parking lot. Just to make sure the message got across, the person who did this also left a noose for the plaintiff to find.
The school never found out who did this, but it wasn’t for lack of trying. After the plaintiff informed the assistant principal about this incident, the A.P. reviewed surveillance tape of the parking lot. It did not cover the area of the parking lot where this occurred. The A.P. also turned the matter over the police. The police interviewed several school employees and each of the students that the plaintiff suspected may have been involved. The FBI got involved also, and the court noted that “Marion ISD cooperated with the police and FBI investigations of the incident.”
The district also took steps to accommodate the student who was the victim:
After the parking lot noose incident, Marion ISD provided Plaintiffs with various accommodations, including allowing [the student] to park in the teacher’s parking lot and complete school work in the counselor’s office, and providing [another plaintiff/student] with an aide to walk her to the high school.
It’s important to keep in mind that this was a “student-to-student” harassment case. Thus the plaintiff sought to impose liability on the school district not based on what the school district did directly. Rather, the argument is that the district should be held responsible for what students did to other students. In a case like that, the plaintiff has to prove 1) that the harassment was severe, pervasive and objectively offensive to the point that it deprived the victim of access to educational opportunities or benefits; 2) that the district knew about it; 3) that the district had control over the harasser and the environment where it occurred; 4) that the harassment was based on race; and 5) that the district was deliberately indifferent to the harassment.
The court concluded that no reasonable jury could conclude that the district was “deliberately indifferent.” Case dismissed.
Of course the best way to show that you are not “deliberately indifferent” to harassment based on race, sex, religion or disability is to show that you are proactively seeking to prevent any such misconduct. Proof of how the district responds to harassment that it learns of is important, but equally important and helpful is proof of the training the district provides to create a culture where such harassment will not take place. Marion ISD “required its employees to attend additional training on the district’s discrimination, harassment and bullying policies, and it required students to attend a special assembly on the same topics.”
Good for Marion. The case is Fennell v. Marion ISD, decided by the 5th Circuit Court of Appeals on October 13, 2015. We found it at 2015 WL 5944434.
DAWG BONE: THE BEST WAY TO SHOW YOU ARE NOT “DELIBERATELY INDIFFERENT” IS TO SHOW THAT YOU REALLY CARE