“Middle school is an extremely tough time.” Agreed?

I always wonder how judges are effected by their personal experiences in life.  Those impressive figures sitting high above the courtroom in a robe are, after all, naked underneath, just like the rest of us. They all were children. They experienced middle school for themselves.  Were they bullied?  Did they engage in bullying?  Do they have children or grandchildren that tell them how school is today? 

I was shocked to learn that “Slap Ass Friday” is, apparently, a thing among school aged children.  This was going on in Copperas Cove ISD, and, I suspect other places as well.  I learned about it while reading the court’s decision in favor of the district in a Title IX case. 

The plaintiff attended Cove for two years of middle school and filed suit alleging eight incidents that she characterized as sexual harassment.  The court briefly described each of them.  It was all student-to-student, and included verbal insults as well as some physical contact.  Slap Ass Friday was a part of it, and the court’s treatment of that particular allegation is a good illustration of how inappropriate conduct by adolescents does not always amount to sex discrimination under Title IX:

The uncontroverted evidence indicates that Slap Ass Friday was engaged in by all genders, including by [the plaintiff] herself (at least up until September 2015).  Although

indicated during her deposition that more boys than girls engaged in the slapping ritual, this is not sufficient to transform admittedly juvenile teasing into sexual harassment;

The court took a similar approach to the other incidents, noting that they fell short of the type of “severe, pervasive, and objectively offensive” conduct that violates Title IX.  The court offered several examples from other cases of school-based conduct that does violate Title IX:

*A male student being stripped naked, tied up, and having his underwear removed by students on multiple occasions;

*A male student being called “faggot,” “gay,” “queer,” and “man boobs” more than 200 times during his seventh grade year;

*A male student being accosted by a fellow, half-naked male student while enclosed in a bathroom stall and being pressured into oral or anal sex in said bathroom;

*And a female student being involved in a string of incidents with a fellow male student that culminated in the male student being charged with and pleading guilty to sexual battery.

In contrast, this case involved middle school behavior that reflected the “unfortunately typical reality” of middle school.  In short: it was bad. It wasn’t that bad. 

This judicial distinction is well supported in the case law. The court cited this provision from the seminal Supreme Court case on student-to-student sexual harassment:

Courts…must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults….Indeed, at least early on, students are still learning how to interact appropriately with their peers.  It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to students subjected to it.  Davis v. Monroe County Board of Education (1999).

Based on all of that, the court expressed sympathy for the student (“middle school is an extremely tough time”) but tossed the case out of court.  I’m pleased to let you know that our firm represented the district in this case, with Bridget Robinson, Kelly Janes and Haley Turner leading the way.  The case is B.L. v. Copperas Cove ISD, decided by the federal court for the Western District of Texas on January 13, 2020.


The Dawg returns on President’s Day!