The recent 5th Circuit decision is “unpublished” but it nevertheless sends a strong message about what it takes for a school district to be held liable in a student-to-student sexual harassment case. The court tells us that schools are liable under Title IX only if they “had actual knowledge of harassment; constructive notice will not suffice.” Note: the term “constructive notice” is legalese for “you shoulda known.”
This comes from Kelly v. Allen ISD, decided by the 5th Circuit on February 19, 2015. In the suit, the parents allege that their son was bullied and sexually harassed by another middle school student. The parent had the burden of proving that 1) the district 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.
The school district asserted that the case fell short on several of those five elements, but exercising judicial economy, the 5th Circuit just focused on factor number one: did the school have “actual knowledge”? If the parents failed that test, the whole case fails.
The court held that the school did not have actual knowledge of the sexual harassment. The most outrageous incident was the alleged “t-bagging.” (Don’t you just love middle school?). We choose not to describe what that means. You can Google it. What was relevant here was the fact that the t-bagging occurred when teachers were not present. (Good to hear!) So they didn’t know about it until a student reported it. And when that happened, the school administrators swung into action with a thorough investigation, taking reports from over 50 students. Disciplinary action was taken.
If the parents had gotten past the “actual knowledge” hurdle, no doubt the school would have stressed that its swift and forceful response showed that it was not “deliberately indifferent.” But this case didn’t get that far. The court said that “The undisputed facts in the record lead to the conclusion that Allen ISD had no knowledge of facts that would permit the inference that [the student] faced a substantial risk of serious harassment, and that no Allen ISD official in fact drew such an inference.”
The Office for Civil Rights continues to urge a “should have known” standard in cases like this, but the courts have consistently rejected that in favor of the tougher standard of “actual knowledge.” This case is the latest example, and it can be found at 2015 WL 690276.
DAWG BONE: THE 5TH CIRCUIT TELLS US THAT YOU CAN’T BE LIABLE UNLESS YOU KNEW ABOUT IT.