602 F. App'x 949
5th Cir.2015Background
- C.K., a middle-school student in Allen ISD, reported that peers B.H. and T.B. engaged in "t-bagging" (simulated lewd acts without reported removal of clothing or genital contact) and teased him during the 2010–2011 school year. He complained to Assistant Principal Puster on December 9, 2010.
- School officials immediately investigated, interviewed more than 50 students, placed B.H. and T.B. in in-school suspension, and recommended transfer to the Disciplinary Alternative Education Program (DAEP); the students remained in DAEP after C.K. transferred out.
- B.H. had previously been disciplined (placed in DAEP) after an earlier incident involving a minor female; Allen ISD did not disclose details to C.K.’s father, who had emailed the district expressing concern before B.H. returned to campus.
- C.K. reported two other isolated incidents involving other students (E.C. and K.M.); school officials investigated and disciplined K.M. with ISS and a DAEP recommendation.
- The Kellys sued Allen ISD under Title IX alleging sex-based student-on-student harassment and deliberate indifference; the district court granted summary judgment for Allen ISD, and the Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Allen ISD had "actual knowledge" of sexual harassment | The district had knowledge of B.H.’s past misconduct and prior concerns, so it knew or should have known C.K. faced risk | District lacked notice of the specific t‑bagging conduct before C.K.’s December report; prior records did not indicate sexual misconduct toward other students | Held: No actual knowledge as a matter of law; summary judgment for Allen ISD affirmed |
| Whether harassment was based on sex | Argued C.K. was targeted with sexualized conduct and taunting implying a sexual orientation/relationship | District argued incidents were nonsexual mimicry and not motivated by the victim’s sex | Court did not reach merits because actual knowledge dispositive |
| Whether Allen ISD was deliberately indifferent | Plaintiffs contended district’s response was insufficient given prior knowledge of B.H. | District pointed to prompt investigation, discipline, and remedial steps after the complaint | Court did not reach merits because actual knowledge dispositive |
| Whether student conduct occurred under district control such that liability could attach | Plaintiffs argued misconduct happened on school grounds during school hours, so district control satisfied | District agreed control element met but distinguished it from actual knowledge requirement | Court agreed control element is distinct and could be met, but lack of actual knowledge precluded liability |
Key Cases Cited
- Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431 (5th Cir.) (summary judgment standard; de novo review)
- Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337 (5th Cir.) (summary judgment principles)
- Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396 (5th Cir.) (definition of genuine dispute of material fact)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Sup. Ct.) (standard for genuine issue at summary judgment)
- Sanches v. Carrollton–Farmers Branch Indep. Sch. Dist., 647 F.3d 156 (5th Cir.) (elements of Title IX student‑on‑student harassment claim)
- Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (Sup. Ct.) (Title IX private right; actual knowledge requirement)
- Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648 (5th Cir.) (actual knowledge requires awareness of facts creating a substantial risk and drawing that inference)
- Farmer v. Brennan, 511 U.S. 825 (Sup. Ct.) (subjective knowledge and deliberate indifference standards)