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

Here is an eye-catching line in a recommendation from a Texas magistrate five years ago:

Critically, whether [the student]  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 teachers, 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. 

The magistrate’s observation mirrors the new Title IX regulations that incorporate the “severe, pervasive and objectively offensive” standard for liability.  Let’s remember that much of the vulgar and inappropriate things that students do to each other will fall short of the “severe, pervasive and objectively offense” bar. But that’s no reason to ignore it. In fact, ignoring it allows the cancer of sexual harassment to metastasize.

The recommendation of the magistrate judge was made on December 1, 2015 in the case of K.S.  v. Northwest ISD. We found it at 2015 WL 9450853.  The court’s ruling in favor of the school district was ultimately affirmed by the 5th Circuit in 2017. 


Tomorrow: the first two words you should say in response to a sexual harassment complaint