“The kids are calling me ‘retard, chickenhead, twitch, tic-toc and spaz.’  Isn’t this bullying????”

Jamie and Troy Nevills alleged that their son was subjected to name calling and worse while he was attending school in Mart ISD. The boy attended MISD schools from kindergarten until 7th grade, when the parents pulled him out and filed a lawsuit alleging that the school district ignored student-to-student harassment based on disability.

The student was never identified by the district as having a disability under IDEA or Section 504 but that did not prevent the lawsuit. The parents alleged that the school knew very well that their son had a form of Tourette Syndrome which produced verbal and facial tics, and made it difficult for him to speak or concentrate.

In a case involving student-to-student harassment, the parent has to prove five things in order to pin liability on the school district.  In this case, they were: 1) that the student has a disability; 2) that he was harassed based on the disability; 3) that the harassment was severe or pervasive to the point that it altered the condition of his education and created an abusive educational environment; 4) that the school knew about the harassment; and 5) that the school was deliberately indifferent to the harassment.

In many cases like this, the school district will concede one or more of those five facts. For example, if the student has been identified under IDEA or Section 504, there is not much point in contesting Factor Number One—the school itself has identified the student as having a disability.  In this case, however, the district disputed every one of those five critical facts.  The boy had not been identified or served under IDEA or Section 504 and the school denied knowledge of any condition that would qualify as a “disability.” The school denied that the student was harassed based on his disability, and denied that anything “severe” or “pervasive” occurred.

If the school district can conclusively defeat the parent on any one of the five factors, the court will dismiss the case. The parent has to prove all five—so the failure of any one of them is fatal.

Here, MISD filed a Motion for Summary Judgment.  Among other things, the Motion asserted that no reasonable jury could ever conclude that the school’s response to this situation was “deliberately indifferent.”  The 5th Circuit honed in on that one factor, and issued a decision in favor of the district.

That summary makes the whole process sound simple, but it is not. The court ruled in favor of the district because of the record keeping, the documentation, and the affidavits of school personnel that showed how the school responded to the instances cited by the parents. Much of the parents’ case was based on allegations that the school did not punish students who picked on their son.  The record, however, showed that the school responded to the instances it knew about.  Moreover, the principal brought in an outside organization to do some training of the students about bullying.

The 5th Circuit cited its earlier decision in Estate of Lance v. Lewisville ISD, 743 F.3d 982 (5th Cir. 2014) for the notion that public schools are not expected to “purge” themselves of all manner of student-to-student harassment.  Courts are expected to grant “a high level of deference” to school officials.

Judges do not want to be assistant principals.  Nor does the law encourage judicial micromanagement of student discipline cases.  That’s why you see phrases like “high level of deference.”  But keep in mind that the officials in Mart ISD were deferred to because the court could see that they were attentive to what was happening in their schools. They took action. They investigated. They trained.  They documented.

The case is Nevills v. Mart ISD, decided by the 5th Circuit on April 21, 2015.