What did you know? When did you know it? What did you do about it?

School districts can be liable for one student’s sexual harassment of another student only if the school district knew about it and responded to it with “deliberate indifference.”  Most of the lawsuits over this issue focus on that “deliberate indifference” requirement.  Occasionally we see a case that turns on what the district knew, and when it knew it.  That’s our case today.

An elementary student in Bryan ISD was having some problems.  He frequently visited the school nurse.   Often he did not want to go to school.  There was the time when he told the nurse that another student had hit him in the leg with a stick.  He missed school quite a bit.  On top of that, there were bathroom issues. His mom asked that he be allowed to use the nurse’s restroom, due to “potty-training issues.” 

So the school knew that the student was having some issues, and it responded as you would hope it would.  There were multiple contacts between the parents and various school officials during the spring semester of 2016. There were three ARDC meetings.  The nurse had “multiple contacts” with the mother.  The HR director and the principal were both involved in responding to parental concerns.  But in none of those communications did the mother tell anyone at the school that the boy was being sexually harassed by another student.   Did the school know that the boy was having some problems at school?  Yes, and school officials were working with the parent to address those issues.  Did the school know that the boy was being sexually harassed?  No.

That’s why the court dismissed the lawsuit against the district.  It wasn’t until April 28, 2016 that the mother informed anyone at school about an allegation of inappropriate sexual contact.  A CPS investigation ensued, but CPS was not able to identify the alleged perpetrator.  Meanwhile, Bryan ISD took interim measures to ensure safety by approving the boy’s transfer to another school the next day.

We lawyers are always harping about the importance of keeping a written record that reflects what you knew, when you knew it and what you did about it.  Here’s a quote from the court case that demonstrates why such documentation is so important:

[Bryan ISD] carried its burden on summary judgment by pointing to many pieces of evidence, including affidavits of school personnel with whom Plaintiff and [the student] interacted, ARD meeting notes, and medical treatment notes, that consistently demonstrate that neither Plaintiff nor anyone else reported peer-on-peer harassment to [the district] prior to the CPS investigation on April 28, 2016. This evidence unequivocally shows that, prior to that date, [Bryan ISD] did not have knowledge of facts that would give rise to a concern that someone was harassing [the boy], much less knowledge of the alleged peer-on-peer harassment against [the boy].

The court concluded that “no rational jury, in light of all of the evidence” would conclude that the school district “knew” about any sexual harassment of the student.  Case dismissed.

The case is J.G. v. Bryan ISD, decided by the U.S. District Court for the Southern District of Texas on July 30, 2019. We found it at 74 IDELR 257.  I’m pleased to report that Bridget Robinson, a longtime shareholder in our law firm, represented the district in this case. Good documentation by the client; good representation by the lawyer.  Good result.  


Tomorrow: Have you ever “participated” in a physical restraint?