Good for those Aggies. TAMU has established a four-year program for “young adults with intellectual and developmental disabilities who have exited high school.” They call it the Aggie ACHIEVE program (Academic Courses in Higher Inclusive Education and Vocational Experiences). The students reside in residence halls on the main campus in College Station and have access to all campus-related activities. Those who graduate receive a Certificate in Interdisciplinary Studies.
It's good to learn that one of our state’s leading universities has invested in such a program. I’m guessing that public school counselors and transition coordinators are well aware of the Aggie ACHIEVE program. But I did not know about it until I read the court’s opinion in Doe v. Texas A&M University.
It’s a Title IX case and a Section 504 case based on student-to-student sexual activity. The plaintiffs are the parents of an Aggie ACHIEVE student with Down Syndrome. They allege that their daughter was sexually assaulted by another ACHIEVE student. The suit claims that TAMU should be held liable for this because it “created a heightened risk” that the student would be assaulted.
That “heightened risk” terminology may sound familiar to regular Daily Dawg readers. On Monday of this week I told you about a case from Cypress-Fairbanks ISD where the plaintiff alleged a similar theory. There seems to be a trend in the caselaw to pursue two kinds of Title IX claims in student-to-student cases. The traditional approach is to base the suit on how the school responded to an assault after it occurred. Did the school know about it? Was its response so lame as to be “deliberately indifferent”?
“Heightened risk” cases take a different approach, focusing instead on what happened before the assault occurred. Under this theory the plaintiff alleges that the school should be liable for not preventing an occurrence that it should have seen coming.
In this federal court opinion the court notes that our 5th Circuit has not recognized “heightened risk” as a viable theory of Title IX liability. On the other hand, neither has the 5th Circuit ruled it out. The court then proceeds to analyze the allegations in this suit, and it concludes that, even if “heightened risk” is a viable legal theory, the facts alleged here would not be sufficient to make a “heightened risk” case:
Plaintiffs do not allege that TAMU staff received reports of sexual misconduct committed by Aggie ACHIEVE students, that TAMU failed to address or actively concealed reports of sexual misconduct committed by Aggie ACHIEVE students, or that TAMU received reports of sexual misconduct committed by [this particular student’s] assailants.
While the Title IX claims were tossed out, the case will proceed with allegations of disability-based discrimination. There is a factual dispute between the parties as to whether or not the plaintiffs requested disability-based accommodations. At this stage of the proceedings, however, the court does not sort out such factual issues. Instead, the court looks solely at the allegations in the suit. Those allegations plausibly allege that the plaintiffs asked for accommodations and were given none. So the case proceeds on that basis.
It's Doe v. Texas A&M University, decided by the federal court for the Southern District of Texas on October 6, 2022. It’s cited at 2022 WL 5250294.
DAWG BONE: TWO THEORIES WITH TITLE IX: DID YOU CREATE A HEIGHTENED RISK? AND HOW DID YOU RESPOND AFTER THE FACT?
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: Presidio ISD….