A student with an intellectual disability in the Houston ISD alleges that he was sexually assaulted by another student three times, that he told his teacher about it each time, and that she did nothing about it. Assuming that all of that is true, is it enough to make the HISD liable for what happened to the student?
No. The federal court in Houston dismissed the case, noting that “What happened to [this student] is horrific. But Title IX precedent creates a ‘high bar’ to hold school districts liable for the unlawful acts of school employees.”
To clear that “high bar” the student must prove that someone who has the “authority to address the alleged discrimination and to institute corrective measures on the [school district’s] behalf has actual knowledge of discrimination….and fails to adequately respond.” The narrow issue presented by this case was whether a teacher has that authority. The student alleged that the teacher knew of the three assaults, and failed to do anything about it. The court was ruling on a Motion for Summary Judgment, which meant that the court had to assume that those allegations were true. So it came down to this: is a classroom teacher, one who is also the case manager for the student, a person who can “institute corrective measures” to address the situation?
The court said no, and its analysis may surprise a lot of educators. The court noted that there were many things that the teacher could or even must do in a situation like this:
…the record evidence shows that [the teacher] had a duty to report incidents of sexual assault that she learned of, had the authority to send a special education student like [the plaintiff] or [the student who allegedly assaulted him] to [the assistant principal] in the case of a rule infraction, and could recommend changes to [the student’s] IEP. This is not enough to support a finding that [the teacher] was assigned the authority to rectify the harassment [the student] allegedly reported to her. (Emphasis added).
What would have been sufficient evidence?
[The teacher] could not make the decision to initiate an investigation, impose increased supervision of [either of the students] during restroom breaks under their Plans, require that they use different restrooms, remove one of them from the school, rearrange their schedules to ensure they remained separated throughout the day, or mandate that either or both attend counseling.
Ask yourself: who does have the authority to do those things? Assistant principals and principals do. So if there had been evidence that an A.P. or a principal had been informed of the three sexual assaults, the student would have had a stronger case.
One more thing is worth mentioning. As Loyal Daily Dawg Readers know, the Title IX regulations were amended in 2020 to say that a school district is responsible for addressing sexual harassment of a student when any district employee knows about it. ANY district employee. So why did that not come up in the court’s analysis? It did. And the court simply noted that the amended regulation became effective on August 14, 2020. This case involved things that happened well before that, so the amended regulation was not yet in effect.
It’s I.M. v. Houston ISD, decided by the federal court for the Southern District of Texas on November 19, 2021. It can be found at 2021 WL 5416715.
DAWG BONE: A DUTY TO “DO SOMETHING ABOUT IT” IS NOT THE SAME AS THE AUTHORITY TO “INSTITUTE CORRECTIVE MEASURES.”
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: the Commissioner’s shrinking jurisdiction….