You say the student was “upset” about the bullying, but that this is “irrelevant”? How can that be?

Here is an eye-catching line in a recent recommendation from a Texas magistrate:

Critically, whether K.S. was upset by the conduct of fellow students is not relevant to the Court’s determination of whether the alleged harassment is actionable under Title IX.  “The standard is not subjective; instead, it is whether the harassment was severe, pervasive, and OBJECTIVELY unreasonable.”  Emphasis in the original.

We should point out right away that the student being “upset” IS relevant to principals and assistant principals who are trying to prevent bullying.  So don’t take this Title IX legal standard and apply it to the day-to-day operations of your school.  If a student is harassed, picked on, bullied, and is “upset” about it, school officials need to take action. Investigate; take corrective action; take steps designed to end the harassment, prevent its recurrence and repair any damage.

Leave that “it’s irrelevant” argument to your lawyer, if it should end up in court.  This one did, and the magistrate judge has recommended that the court dismiss the case against the district. The student’s lawyers did not present sufficient evidence to show that the case deserved to go to a trial.  The recommendation notes that no reasonable jury could conclude that the student was deprived of educational opportunities, or that the district was “deliberately indifferent.”  The student’s grades went down a bit, but he was passing his classes.  He had quite a few absences, but most of those were related to medical problems. He spent some time in ISS and DAEP—but that was due to his misconduct, rather than harassment by others.  There were plenty of reports of the boy being picked on…but the district investigated them and took appropriate action.

In short, this is yet another sad case of middle school kids behaving badly.  Fortunately, the law does not impose legal liability on school districts when that happens. The burden of proof is far more demanding, as we can see from the observation that the student being upset was not even relevant.

The case of Thomas v. Northwest ISD is still pending in the Eastern District of Texas. The recommendation of the magistrate judge was made on December 1, 2015. We found it at 2015 WL 9450853.