Court notes that middle school is a place to “practice newly learned vulgarities”

It was actually a legal brief from the National School Boards Association that used the phrase “newly learned vulgarities.”   It was cited in a Supreme Court opinion dealing with student-on-student sexual harassment. Here is what SCOTUS said, with the NSBA brief quoted:

The law recognizes that children—particularly young children—are not fully accountable for their actions because they lack the capacity to exercise mature judgment….It should surprise no one, then, that the school’s that are the primary locus of most children’s social development are rife with inappropriate behavior by children who are just learning to interact with their peers…. “The real world of school discipline is a rough and tumble place where students practice newly learned vulgarities, erupt with anger, tease and embarrass each other, share offensive notes, flirt, push and shove in the halls, grab and offend.”

In a recent decision involving a middle school in Crowley ISD, the court relied on that language to explain its decision in favor of the district.  The plaintiff in the case alleged that a 6th grade boy sexually forced himself on a 6th grade girl in a school bathroom.  The court held that the plaintiff had the burden of proving three critical facts, and that any reasonable jury would rule against the plaintiff on two of those three.

The plaintiff had to prove: 1) that the plaintiff was subjected to sexual harassment that was so “severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school”; 2) that the school had actual knowledge of the sexual harassment; and 3) that the school acted with deliberate indifference.

In this case, the court held that the school did not have “actual knowledge” and did not respond to what it knew in a “deliberately indifferent” way.  The court’s reference to “newly learned vulgarities” came up in connection with the two sexually explicit notes that the boy had written prior to the alleged assault.  The girl never read the notes, or knew anything about them. The school disciplined the boy for each of these vulgar and inappropriate notes, but did not see them as implicating any particular danger to the girl, or to anyone else.  And then the court cited the earlier SCOTUS case, and its recognition of how immature middle school kids can be.

As far as “deliberate indifference” the plaintiff pointed out all the things that the school could have done but didn’t.  But the court enumerated the many things the school did.  In particular: “The record shows that [the boy] was promptly disciplined within CISD’s disciplinary guidelines for every infraction.”  The A.P. meted out “consequences directed by a district-wide discipline program that is based on a ‘nationally recognized behavior intervention approach.’”   It’s unfortunate that none of those consequences prevented the alleged sexual assault, but as the court noted, the district’s response “was not an inadequate response to the situation.”

Our firm handled this case for the district.  Kudos to attorneys Bridget Robinson and Jennifer Childress for excellent advocacy and representation of the Crowley ISD.

The case is Gray v. Crowley ISD, decided by the U.S. District Court for the Northern District of Texas on April 17, 2017.


 File this one under: TITLE IX

Tomorrow: Reviewing an IEE? Make it easy for everyone!