The 5^th Circuit has tossed out a lawsuit based on employee-to-student sexual harassment.  The high school student was sexually harassed by a school district police officer and a teacher.  That’s right—two school employees.  She got pregnant by the teacher.  Both school employees were convicted of crimes in connection with this tawdry episode, but the student’s civil suit against the district was unsuccessful. 

The court repeatedly expressed its disgust with the “repeated, and repulsive” treatment of a young girl, but held that there was no way the student could prevail in light of existing legal precedent.  Case dismissed. 

The main problem for the student was the court’s conclusion that the campus cop did not fit the definition of an “appropriate person” under Title IX.  School districts are not liable for damages under Title IX unless the school responded with “deliberate indifference” after an “appropriate person” knew about the sexual harassment.  The cop knew what the teacher had done and could have arrested him.  Instead, according to the pleadings in the case, he “leveraged” his knowledge to pressure the girl for more sex with him.  Yuck. 

So think about that: a school employee with the power to arrest a sexual offender knows that it is happening and tells no one. In fact, he uses this knowledge to his own advantage.  Talk about police misconduct…..

So why is the district not liable for this?  Because the cop was not the teacher’s supervisor and did not have the authority to fire the man.  Yes, he could have arrested him, but the court held that that power was not enough to “repudiate” the conduct and “terminate” the hostile environment.  To be able to do those things, he would have to be in the direct line of supervision: assistant principal, principal, or superintendent.

Would this case come out differently if the new Title IX regulations were in effect?   Under the new regs (effective August 14) the district has a duty to respond if any employee has knowledge of sexual harassment. However, those regulations will govern how OCR conducts administrative investigations, and will not necessarily change the legal standard for liability applied by the courts. 

The case is Doe v. Edgewood ISD decided by the 5^th Circuit on July 6, 2020.  We found it at 2020 WL 3634519. I’m pleased to let you know that the district got some excellent legal representation in this case from Craig Wood and Katie Payne from the San Antonio office of the Walsh Gallegos Law Firm.

DAWG BONE: LIABILITY UNDER TITLE IX REQUIRES KNOWLEDGE OF AN “APPROPRIATE PERSON.” 

Tomorrow:  The riskiness of eligibility decisions.