Round Two…“The pervasive harassment…was not gender-related; and the gender-related harassment, was not pervasive.”

Yesterday we told you about a Title IX suit against Richardson ISD.  The district persuaded a federal judge to dismiss a suit that alleged student-on-student harassment.  The key was the court’s agreement with the district’s argument that any pervasive harassment was not gender-related, and any gender-related harassment was not pervasive.

To succeed in a Title IX suit like this the plaintiff has to prove, among other things, 1) that the harassment was based on the victim’s sex; and 2) that the harassment was so severe and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit.

Yesterday we explained how the court concluded that the pervasive harassment was not gender related.  Today, we focus on the specific instances of harassment based on sex, and how the court analyzed those allegations.

The plaintiff alleged two specific instances of gender-based harassment. One was labeled “the Exposure Incident” and the other “The Assault in the Park.”  The court acknowledged that both of these incidents, as alleged, were plausibly based on sex.  But the court held that neither incident was so bad that it satisfied Title IX’s demanding standard. Key Quotes:

The Bullies, among other things, exposed their genitals to [the girl], beat her and threatened to rape her.

But those two instances alone are “not so severe, pervasive, and objectively offensive to deprive [the girl] of access to education.”  Watkins v. LaMarque ISD 308 Fed. Appx. 781, 784 (5th Cir. 2009).

Does that surprise you?  You may be even more surprised when you read a more complete description of the Assault in the Park as alleged in the suit:

Plaintiffs allege that…the Bullied knocked [the girl] down and held her ankles and wrists….The Bullies then covered [the girl’s] mouth and…dragged [her] to a park fence. The Bullies allegedly pushed [her] into the fence, restrained her, whipped her back with wet sticks, and poured groundwater down her back.

Plaintiffs claim that once the whipping stopped, the Bullies dragged [the girl] to an electric generator box where they threatened to electrocute and rape her, “then leave her body in an adjacent concrete tunnel” that was “full of snakes” so “that she would never make it out alive.”  Next, Plaintiffs say, the Bullies dragged [the girl] to a restroom in Terrace Park and attempted to force her inside, again threatening to rape her.

Wow.  The school saw this incident quite differently.  The principal conducted an investigation and concluded that the boys (aka “the Bullies") had behaved inappropriately, but intended no harm. The principal assigned disciplinary consequences, but the girl’s parents were not satisfied with that.

From a legal perspective the important point here is that the court held that even if the allegations in the suit are completely accurate, this is not “severe” enough to make the district legally liable for what one student does to another, even if it was all done in the line of sight of the teachers.

Texas recently adopted a new law regarding bullying that makes it clear that a single significant act can amount to bullying. It does not have to be a pervasive, long lasting campaign. I would suggest that the description of what this lawsuit labels as The Assault in the Park is a great example of how a single incident can be “bullying.”  If half of what the suit alleges is true, I would think you have “bullying.”

But as this case illustrates, legal liability for that is another matter.

The case is Chavez v. Richardson ISD, decided by the federal court for the Northern District of Texas on August 23, 2017.  We found it at 2017 WL 3620388.


Tomorrow: Who are the leading experts on special education?