Give us our due—we lawyers are a clever bunch. Only a clever lawyer can take a statute that requires equal treatment of boys and girls and then assert that a teacher who treats the boys and girls the same has violated the statute, seeing as how boys and girls are different. Clever. But clever does not mean correct.
We told you about this case on September 16, 2019, when the federal court tossed out the case against Dallas ISD and one of its PE teachers. This is the memorable situation where the teacher required a 5th grade girl to perform 260 “ceiling jumps” (a.k.a. “burpees”) without a break as punishment for not dressing out properly for class. Yowza.
The girl claimed that this was a Title IX violation, but blew her case up when she testified that the teacher treated the boys and the girls the same. That’s a fundamental problem if your case is based on alleged sex discrimination. But never fear: the lawyer argued that treating the boys and the girls the same was the problem. The court tells us that the Petition:
alleged that [the teacher] treated boys and girls the same even though professional standards of care required him to treat them differently. She asserted that [the teacher’s] P.E. program violated Title IX because it did not consider the physical and metabolic differences between boys and girls.
It did not work. The court reaffirmed its earlier decision, noting that this argument “is just another way of alleging disparate impact” which is a theory of liability that Title IX does not permit. The district was not liable because the district did not violate Title IX.
What about the teacher? Teachers can be personally liable for using excessive force in the discipline of a student. However, the suit alleged that the teacher should be liable pursuant to Texas Education Code 22.0511. That’s a curious position to take. That statute does not authorize such a suit. In fact, it protects teachers from personal liability, while providing for an exception for excessive use of force. Thus the court dismissed the suit against the teacher.
Perhaps things would have been different if the suit had been filed as a simple tort case in state court, arguing that the teacher caused physical injury to the girl by ordering excessive physical punishment. The teacher would have asserted the immunity protection provided by TEC 22.0511, and the court would have to make a ruling about that. But that’s not where the case was filed and that’s not the outcome. Instead, district and teacher are off the hook.
The case is Poloceno v. Dallas ISD, decided by the federal court for the Northern District of Texas on December 30, 2019. We found it at 2019 WL 7305216. The plaintiff has filed a notice of appeal to the 5th Circuit. We’ll keep our eyes on this one.
DAWG BONE: TREATING BOYS AND GIRLS THE SAME DOES NOT VIOLATE TITLE IX. DUH.
Tomorrow: Toolbox Tuesday!!