Parent sues district over response to son's sexual harassment

A parent sued a school district for alleged sexual harassment that his son suffered at the hands of another student. The school district requested that the lawsuit be dismissed, arguing that the parent was required to prove that the district had been "deliberately indifferent" to the harassment and had failed to do so. The trial court granted that motion and dismissed the lawsuit. The parent appealed to the court of appeals.

The student was a fifth grader when he was allegedly touched on or around his genital area on at least three separate occasions by another male student in his class. It is unclear when these incidents occurred or when the school discovered them. 

But the student's teacher sent an email to the parent, stating that she wanted to let the parent know about a situation that was happening with one of the male students touching other male students inappropriately. She stated that the student and another boy reported it to her that day at school, but apparently it had happened before. 

Initially the teacher thought that the students were being silly and talking about something else in PE but realized quickly they were being serious. She reassured the parent that she was taking care of the situation with a principal and that an investigation would be launched. She also stated that the other male student suffered from mental issues from childhood trauma, but that this type of behavior was completely unacceptable. 

The parent replied by asking why wasn't this dealt with the first time and the teacher responded that the student had reported it to her for the first time that day.

The student was soon interviewed by a principal. Ultimately, the district disciplined the offending student, including by issuing verbal reprimands, making him run laps around the school track, and assigning him to in-school suspension. 

However, this resolution did not satisfy the parent because the student was forced to share a classroom with the offender on a daily basis and the parent filed a lawsuit regarding the situation, alleging that the district had been deliberately indifferent to the harassment his son had endured.

The Fifth Circuit Court of Appeals noted that for allegations of student-on-student sexual harassment, a school district may be held liable if:

1. the district had actual knowledge of the harassment;
2. the harasser was under the district's control;
3. the harassment was based on the victim's sex;
4. the harassment was so severe, pervasive, and objectively offensive that it effectively barred the victim's access to an educational opportunity or benefit; and
5. the district was deliberately indifferent to the harassment. 

In this case, the issue was whether the district had been "deliberately indifferent" to the harassment.

The court noted that "deliberate indifference" is a high standard. It requires that the district's response to the allegations must have been clearly unreasonable in light of the known circumstances. And the court will not second-guess disciplinary decisions made by school administrators. Instead, the court focuses on whether the district's acts or omissions essentially intentionally subjected the student to harassment.

Under this standard, the court concluded that the failure to separate the students did not amount to deliberate indifference, even if separating the students would have been the most reasonable and appropriate action to take. 

In doing so, the court noted that "actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent" and "responses that most reasonable persons could have improved upon do not equate to deliberate indifference." 

In this case, the evidence did not show any official decision by the district not to remedy the problem. The teacher immediately escalated the issue to the principal, the principal interviewed the student and his friend about the incident, and the offending student was disciplined. These affirmative steps meant that the failure to separate the two children did not amount to deliberate indifference.

The court of appeals upheld the decision to dismiss the lawsuit.