The lawsuit against the charter school alleges that the school was deliberately indifferent to a girl’s persistent sexual harassment of one of the boys.  The suit alleges that this resulted in the student suffering various physical ailments, and a loss of educational opportunities.  The boy who was a target of this alleged harassment was a student with a disability, receiving special education services.

So put yourself in the shoes of the lawyer representing the boy.  Do you sue under IDEA, alleging a denial of a Free Appropriate Public Education (FAPE)?  Or do you sue under Title IX, alleging that your client is the victim of sex discrimination?

The lawyers in this case went with the Title IX strategy.  In response, the charter school’s lawyers argued that they should have pursued their claim through a special education due process hearing.  This raises the issue known as “exhaustion of administrative remedies.”  The school’s lawyers contended that because 1) the student had a disability; and 2) he was seeking recovery for educational injuries, the parents were required to “exhaust” their administrative remedies through a special education due process hearing.  Since they had not done that, the lawyers argued, the Title IX case should be dismissed.

That didn’t work.  The court pointed out that the alleged sexual harassment had nothing to do with the boy’s disability. A non-disabled student could have brought the same kind of lawsuit without pursuing an administrative hearing.  Here’s the Key Quote that displays the judge’s reasoning:

C.M.’s Title IX claim is thus unrelated to his disability. C.M.’s complaint asserts that he was denied an educational opportunity—the opportunity to attend Priority Systems Charter School—as a result of student-on-student sexual harassment.  These allegations are materially different from alleging that Priority Systems Charter School denied him a FAPE.  C.M. does not challenge his placement or the level of services provided by his IEP. Instead, the core of C.M.’s complaint concerns his harassment by [the female student] and the Defendants’ failure to intervene in spite of C.M.’s complaints.

So the court refused to dismiss the case on the basis of “exhaustion of administrative remedies.” The court also refused to dismiss it on the basis of a failure to allege a viable cause of action. The court pointed out that the allegations in the suit went far beyond alleged negligence:

Plaintiffs’ complaint, however, alleges something more than mere negligence.  Plaintiffs allege that Defendants failed to respond at all.

So this case will proceed. Having failed to get the case tossed out early, the charter school will have the opportunity to defend the case on the merits.  The case is C.M. v. Cedar Park Charter Academy PTO and Priority Systems d/b/a Priority Charter Schools.  The court’s ruling was issued on April 24, 2019 and we found it at 74 IDELR 98 and 2019 WL 1856414.

DAWG BONE: CHARTER SCHOOLS ARE NOT EXEMPT FROM TITLE IX CLAIMS.

Tomorrow: Stay Off My Lawn letter ends up in court.