I was trying to explain to my friend that our law firm just won a big victory.  The 5^th Circuit reversed a decision that went against our client, and in the process, tossed out a jury verdict of $4.5 million.  Obviously, with a verdict like that, the jury was very sympathetic to the plaintiff.  It turned out that my friend was also.  That’s understandable. The plaintiff in this case is a very sympathetic figure.  My friend did not understand how the school district should not be liable when a little boy is sexually molested by a school administrator he had come to trust.

Mr. Alcoser was a vice-principal, and then a principal of a school in South San Antonio ISD.  What he did to the boy was reprehensible, illegal, and not disputed.  The legal issue was: who should be held legally responsible for this?  Mr. Alcoser could be held liable, and he has been held liable in the criminal context. He was sentenced to 18 years in prison for aggravated sexual assault.  His employment with the district was terminated.  But the parents dropped their civil suit against Mr. Alcoser, and focused their lawsuit on the district.

The problem they ran into was that no one else in the district—no one—knew what was going on between Mr. Alcoser and the boy.  This was an undisputed fact.  Thus the case presented an unusually clear legal issue: can the district be liable under Title IX for an employee’s sexual assault of a student, when the only employee in the district who has actual knowledge of the misconduct is the employee himself?

In a well-reasoned and very thorough opinion, relying heavily on prior Supreme Court cases and congressional intent, the 5^th Circuit said: No.

To understand this, you have to start with the basics of Title IX. This federal law prohibits sex discrimination by school districts that receive federal financial assistance.  The primary means of enforcing Title IX is through action by the Department of Education to withhold federal funds.  However, several earlier court cases established that Title IX included an “implied private right of action.” That opened the door to lawsuits by individuals seeking damages for sex discrimination.

One of those lawsuits was Gebser v. Lago Vista ISD, decided by the Supreme Court in 1998.  That case set the standard for district liability under Title IX. Those standards are now well established. If an employee sexually molests a student the district can be held liable, but only if the evidence shows that the district had actual knowledge of the misconduct, and responded to it with deliberate indifference.  In this case, Mr. Alcoser obviously knew of the misconduct and he was way more than “deliberately indifferent.”  But no one else did. No one.  In its critical ruling the 5^th Circuit held:

“Where a school district’s liability rests on actual notice principles, however, the knowledge of the wrongdoer himself is not pertinent to the analysis.”  Applying that principle to the present facts, the District is not liable for damages based on Title IX since Alcoser’s knowledge of his own wrongdoing is not pertinent. (That quoted part is taken from the Lago Vista decision).

Thus the court concluded that Title IX does not impose liability on the school district under those circumstances. To put it plainly: school districts are not liable under Title IX for sexual abuse. They are liable when they know about it and respond poorly.  Schools must be given the opportunity to correct the problem before liability is imposed. Here, the district did not have that opportunity.

Many people, like my friend, will disagree with this outcome.  The little boy at the heart of this case was a victim of sex discrimination. But when applying legal standards of liability courts have to go beyond that fact to ask another question: yes, the little boy was violated—but by whom?  By the district?  School district policy prohibited sexual misconduct.  One employee intentionally violated the school’s policy and was careful to keep it secret.  No one with the authority to put a stop to it--other than that one employee--was aware.    If Congress, or the Texas legislature wants to impose liability on school districts in cases like this, it could do so. But this court has held that the existing language in Title IX does not go there.

The case is Salazar v. South San Antonio ISD, decided by the 5^th Circuit on June 15, 2017.  You can find it at 2017 WL 2590511.  Meredith Walker of our firm’s Irving office and Craig Wood from our San Antonio office headed up the representation of the district in this case.

DAWG BONE: DISTRICTS ARE LIABLE UNDER TITLE IX FOR THEIR OWN WRONGFUL CONDUCT—NOT THAT OF EACH INDIVIDUAL EMPLOYEE.

File this one under: TITLE IX

Tomorrow: Can the superintendent reassign you from principal to assistant principal?

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 6^th grade boy sexually forced himself on a 6^th 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.

DAWG BONE: WHEN YOU DISCOVER TROUBLING INFORMATION, DO SOMETHING ABOUT IT. 

 File this one under: TITLE IX

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

The National School Boards Association has published a guide to serving transgender students in public schools. We think you will find it helpful.  You can go to the NSBA website and find this as a free download: TRANSGENDER STUDENTS IN SCHOOLS.  The Guide is written as a series of FAQs addressing the most common issues that arise in the operation of your school.  Here is the link.

The law on this subject is evolving. Of course “evolving” means that things are not exactly clear.  We know that students should never be bullied or harassed based on any characteristic, including the student’s sex, sexual orientation or gender identity.  We also know that Title IX regulations specifically permit separation of the sexes with regard to the use of the bathroom, locker rooms and sleeping arrangements, so long as the facilities are comparable. So is it “discrimination” to tell a transgender male (born female) that he cannot use the boys’ bathroom?  According to the first case to reach the Circuit Court level, it is.  The decision, G.G. v. Gloucester County School Board, was decided by 2-1 vote of a panel of the 4^th Circuit. This is not a binding precedent for Texas schools which are in the 5^th Circuit.  However, being the first decision of a federal appellate court, this is an important decision that will be a factor in all future cases.

The 4^th Circuit’s decision is based on the concept of judicial deference to the administrative agency that is responsible for interpreting and enforcing a federal law. The court’s two-person majority found the Title IX regulations ambiguous with regard to transgender students and bathroom use.  In light of that ambiguity, the court held that it must defer to the interpretation of the Department of Education (DOE), as long as that interpretation was reasonable.  The DOE’s interpretation is that schools must “generally treat transgender students consistent with their gender identity.” This would mean that the transgender male must be allowed to use the boys’ bathroom.  The 4^th Circuit majority held that DOE’s interpretation was reasonable, and thus the policy of the Virginia school district that barred the student from the boys’ bathroom was a violation of Title IX.  The dissenting judge found no ambiguity in the regulations, and thus no reason to defer to DOE’s interpretation. He would have upheld the school’s policy. The case is G.G. v. Gloucester County School Board, 2016 WL 1567467, decided by the 4^th Circuit on April 19, 2016.

Litigation over this issue is going to continue for the foreseeable future.  Thus we recommend that you download and study the NSBA Guide.  Remember, also, that every issue that arises in your district concerning transgender students or employees should be reviewed individually.  The Guide published by NSBA is a good starting point for a general outline of the issues and how the DOE and the courts have addressed them so far. But there is no substitute for legal advice from your school’s attorney on whatever specific issues and cases arise.

DAWG BONE: THE CULTURE WARS ALWAYS FIND THEIR WAY INTO THE PUBLIC SCHOOL.

TOMORROW IS TOOLBOX TUESDAY! WE WILL REVIEW A CASE INVOLVING A STUDENT WHOSE VIOLENT OUTBURSTS CAUSED THE SCHOOL DISTRICT TO SEEK AN INTERIM REMOVAL.

THE EMPLOYEE COMPLAINT IS ABOUT THINGS THAT HAPPENED SIX MONTHS AGO.  WHAT TO DO?

1. Dismiss it.  Too late, as per local policy.

2. Don’t dismiss it. There is no deadline in local policy.

3. Look into it because we want to prevent sexual harassment but advise the employee that there is little we can do about it, since the complaint is untimely.

4. Call your lawyer and follow his/her advice.

We think the best answer to this question is B.  There is no deadline in the policies adopted by most districts.  Therefore A is incorrect.  C is also incorrect. Telling the complaining party that there complaint is untimely is wrong. Again, this is because there is no deadline.  As for answer D, of course we always think that it’s good to call your lawyer, but you should not have to call your lawyer to know that this complaint needs to be looked into.

This issue is important because some administrators mistakenly apply Policy DGBA, our general grievance policy, in this situation.  The version of DGBA adopted by most districts says right at the outset that it does not apply to complaints alleging discrimination, harassment or retaliation. Complaints from employees about these issues start out with Policy DIA.  One of the notable differences between DGBA and DIA is that the former has a deadline (usually 15 days) and the latter does not.

This makes sense. We know that people are often reluctant to report sexual harassment. We know that districts should encourage people to report.  Sexual harassment thrives in a culture of silence.  So it makes sense that there is no timeline.

However, the version of DIA that I have seen most often does say this: “Reports of prohibited conduct shall be made as soon as possible after the alleged act or knowledge of the alleged act.  A failure to promptly report may impair the District’s ability to investigate and address the prohibited conduct.”

I see that as an encouragement and a warning.  It encourages prompt reporting, and warns that sitting on the problem too long may impair the district’s ability to do something about it.  But there is nothing there that would justify a refusal to conduct the investigation called for by a proper complaint.

DAWG BONE: DGBA HAS A SHORT TIMELINE.  DIA DOES NOT.  BIG DIFFERENCE.

Yesterday we told you about the case from Virginia where a federal court held that a public school is not required to allow a transgender student to use the bathroom that corresponds to the student’s gender identity.  One of the interesting subtexts to the case involves the role of the Department of Education.  Many people have noted the aggressive posture of DOE under the Obama Administration. The pattern is to issue “Dear Colleague” letters and “Guidance Documents” and then intervene in lawsuits citing their own publications as “the law.”

Judge Robert Doumar, of the Eastern District of Virginia, will have none of it.

The context was “the bathroom wars” involving transgender students. The Virginia school district adopted a board “Resolution” that limited transgender students to 1) the bathroom of their biological sex; or 2) “an alternative appropriate private facility.”  A transgender male student sued, seeking to be allowed to use the boys’ bathroom.

The Obama Administration jumped into the case in support of the student.  The Department of Justice cited a “Dear Colleague” letter from the Department of Education. DOJ also cited a “Guidance Document” from DOE.  According to the Obama Administration, both documents supported the student’s case and represented the official position of the agency that enforces Title IX.

The judge, however, rested his decision not on letter or guidance documents, but rather the officially adopted regulations of Title IX.  As to the DOE’s position, Hizzoner pretty much accused the Obama Administration of making up the law as it goes along.  We quote at length, because we are sure we will see this same argument play out in other cases:

To defer to the Department of Education’s newfound interpretation would be nothing less than to allow the Department of Education to “create de facto a new regulation” through the use of a mere letter and guidance document.  If the Department of Education wishes to amend its regulations, it is of course entitled to do so.  However, it must go through notice and comment rulemaking, as required by the Administrative Procedures Act.  It will not be permitted to disinterpret its own regulations for the purposes of litigation.  As the Court noted throughout the hearing, it is concerned about the implications of such rulings.  Allowing the Department of Education’s Letter to control here would set a precedent that agencies could avoid the process of formal rulemaking by announcing regulations through simple question and answer publications. Such a precedent would be dangerous and would open the door to allow further attempts to circumvent the rule of law—further degrading our well-designed system of checks and balances. [Citations omitted].

DAWG BONE: REGULATIONS CARRY MORE WEIGHT THAN “DEAR COLLEAGUE” LETTERS.

A federal district court in Virginia has held that Title IX does not require that schools allow a transgender student to use the bathroom that corresponds to the student’s gender identity.  In plain language, the student who was born a girl and now identifies as a boy was not allowed to use the boys’ bathroom. The court said that this was OK, and in the process, shot holes through the arguments of the Obama Administration.  We will discuss the Obama Administration’s involvement in this case tomorrow. For today, let’s just look at the bathroom issue.

The student had used the boys’ bathroom, with the permission of the principal, for about seven weeks in the fall of 2014.  The student reported that the other kids had no complaint about this, and there were no reported incidents.  However, school board members started to hear complaints from the start—complaints from both students and parents.  In December, 2014, the school board adopted a Resolution that called for bathrooms and locker rooms to be “limited to the corresponding biological genders.” The Resolution went on to say that “students with gender identity issues shall be provided an alternative appropriate facility.”

As a result of this school board action, the principal informed the student that he would no longer be allowed to use the boys’ bathroom.  He could use any of the three unisex, single-stall restrooms in the building, or the nurse’s office. Or he could go to the girls’ restroom.

The student reported that he was not welcome in the girls’ restroom, especially now that he was receiving treatment that lowered his voice and produced facial hair.  And he felt “stigmatized” by having to use the separate restrooms. So he sued, alleging that the resolution violated Title IX.

The judge pointed out, however that Title IX regulations expressly address the issue of bathrooms and lockers:

A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.  34 CFR 106.33.

The judge noted that the student did not allege that the facilities he was allowed to use were unequal to the boys’ bathroom.  Therefore, he had no “sex discrimination” case.

It’s important to note that the school accommodated this student.  It did not simply order him to use the girls’ bathroom. It made other facilities available.   We are guessing that for most transgender students, such an accommodation will be acceptable.  But if your district encounters a student who seeks legal recourse in an effort to use the bathroom that corresponds to the student’s gender identity, this case will no doubt provide grist for the judicial mill.

The case is G.G. v. Gloucester County School Board, decided by the federal district court for the Eastern District of Virginia on September 17, 2015. We found it at 2015 WL 5560190.

DAWG BONE: BATHROOM WARS PROVIDE THE LATEST ILLUSTRATION OF THE FACT THAT PUBLIC SCHOOLS ARE GROUND ZERO IN THE CULTURE WARS.

The latest Dear Colleague letter from the OCR reminds us that every school district, college or university that receives federal financial assistance needs to designate someone as Title IX Coordinator. The letter points out that having a Coordinator with genuine authority goes a long way toward keeping your school in compliance with the law.

The letter says that your Title IX Coordinator should not have any conflicts of interest.  What does that mean?  The letter says “For example, designating a disciplinary board member, general counsel, dean of students, superintendent, principal, or athletics director as the Title IX coordinator may pose a conflict of interest.”  So the OCR’s strong suggestion is that you should have a fulltime Title IX Coordinator on staff, someone with no other job duties.

This presents some practical problems, especially in small districts.  Consider Mudflap ISD, where the superintendent starts his day by driving the bus.  He also serves as business manager, director of HR, athletic director, and occasionally substitutes in the math class.  Mudflap does not have a lot of money to be spent on administrative positions.  So they are supposed to hire a fulltime Title IX Coordinator?

The feds don’t seem to recognize that there is a big difference between the University of Texas and Mudflap ISD.

But you ought to read the letter for yourself.  It’s important.  http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201504-title-ix-coordinators.pdf

DAWG BONE:  BE SURE YOU HAVE A TITLE IX COORDINATOR WITH ADEQUATE AUTHORITY AND TRAINING.

According to the 9^th Circuit Court of Appeals, softball players in a California school district can sue the school district over the firing of their softball coach.  The suit alleges that the firing violated the students’ rights under Title IX. They alleged that the firing was an act of retaliation, punishing the students because their coach advocated on their behalf.

The legal issue here is what the lawyers call “standing.”  A person cannot sue another person just because. They have to allege facts to establish that they suffered an injury of some sort.  This case breaks new ground by holding that the players on a high school team have legal “standing” to sue under Title IX when their coach is fired.  “Standing” would not be an issue if the coach had filed the suit. He lost his job. That’s an injury sufficient to get him in the courthouse door.  But the kids?????

Here’s how the court put it:

Coach Martinez gave softball players extra practice time and individualized attention, persuaded volunteer coaches to help with specialized skills, and arranged for the team to play in tournaments attended by college recruiters. The softball team was stronger with Coach Martinez than without him.  After Coach Martinez was fired, [the district] stripped the softball team of its voluntary assistant coaches, canceled the team’s 2007 awards banquet, and forbade the team from participating in a Las Vegas tournament attended by college recruiters. The district court found these injuries, among others, sufficient to confer standing on Plaintiffs. We agree.

This case has drawn a lot of attention from advocacy groups interested in Title IX. Moreover, the U.S. Department of Justice joined in the suit against the district. The court held that the district violated Title IX in a number of ways, but the biggest news here is the ruling that the students can claim “retaliation” based on the termination of their coach.

The case is Ollier v. Sweetwater Union High School District, decided by the 9^th Circuit Court of Appeals on September 19, 2014.  It can be found at 768 F.3d 843.

DAWG BONE: TITLE IX INVOLVES MORE THAN A NICE SOFTBALL FIELD.