The plaintiff in a case pending in East Texas alleges that a school district and its administrators valued the football team at the expense of a female student who was secretly recorded changing clothes.  The court has tossed out several of the legal claims in this case, but the Title IX claim is still alive.

The secret recording occurred off campus in April 2016, but it was not reported to the school until the following February—10 months later.  By that time, according to the suit, the video had been widely shared among students on campus, including by members of the football team in the locker room. The suit alleges that the mother reported the incident to the principal and the superintendent, and further alleges that neither of them made good on their promise to investigate and take action. 

Those bare bones allegations were not enough to allege any possible liability under the U.S. Constitution. Claims of denial of Due Process and Equal Protection against the district and three administrators were dismissed.  However, the court refused to dismiss the Title IX sexual harassment claims against the district. Thus all of the individual defendants in this case—superintendent, principal and football coach—have been dismissed from the case. But the district remains exposed to possible liability for a Title IX violation.

Here’s the standard: the plaintiffs have to prove:

• the plaintiff was sexually harassed;
• it was really bad (the legalese is “severe, pervasive, and objectively offensive”);
• the school knew about it;
• the school’s response was “deliberately indifferent”; and
• the plaintiff suffered as a result.

Here’s how the court viewed the matter:

If, as Plaintiff alleges, (1) Plaintiff reported the continued distribution of the video and resulting harassment, (2) [the principal] and [the superintendent] knew of students viewing the video on campus, and (3) the school undertook no further investigation other than to ask [the football coach] about the incident, it could reasonably be inferred that the school’s actions were clearly unreasonable in light of the known circumstances.

The court also thought the claim of an “unofficial policy” was plausible:

Plaintiff alleges that Carthage ISD employees, acting pursuant to a known and established yet unwritten custom and practice, conspired amongst themselves to hide allegations of sexual harassment in order to protect a football player and the school’s football program and Carthage ISD failed to investigate and report the misconduct and harassment, which involved on-campus occurrences and faculty members.  If taken as true, these allegations support a reasonable inference that Carthage ISD’s policy or custom of inadequately investigating reports of sexual harassment involving football players resulted in Plaintiff’s suffering and the continuous on-campus harassment that she has endured.

This case has a long way to go.  The plaintiff got over this initial hurdle, but still faces a heavy burden of proof. At this stage of the game the court is required to assume the truth of the allegations in the suit, and to give the plaintiff every benefit of the doubt.  Going forward, however, the district will certainly dispute the alleged facts, particularly the accusation of “deliberate indifference.” Whatever documentation the district can produce to show that it took the allegations seriously will be of critical importance.

The case is Harvey v. Carthage ISD, pending in the Eastern District of Texas. The judge issued his order on November 21, 2018. We’ll keep an eye on this one for you.

DAWG BONE: OLD LESSON—DOCUMENT, DOCUMENT, DOCUMENT.

Tomorrow: Toolbox Tuesday!!