Seattle Attorneys Blog
In a recent case, the Fifth Circuit affirmed summary judgment in favor of a school district in a Title IX case against it, concluding other students calling the plaintiff “gay” and other names over the period of a few weeks was not severe enough to be actionable.
The plaintiff had been homeschooled prior to enrolling in fifth grade at a Mississippi public school. Most of his fifth-grade school year was held virtually. Although he was teased some in fifth grade, he did not really think he was bullied. For sixth grade, the plaintiff went to a new middle school. Other boys started teasing him more and calling him names. Some of the boys called him “gay.” He believed that meant “[e]ither a boy wants to love another boy or a transgender,” but he also believed the boys called him “gay” sometimes because they thought he could be a girl. He started “blowing kisses” at them, but said that made it worse.
The plaintiff said he repeatedly reported the name-calling to his teachers. His mother also addressed name-calling and bullying with the plaintiff’s teachers, but she was initially not aware the plaintiff was being called “gay.”
In September, the plaintiff got into a physical altercation with another boy at school. The boy unzipped the plaintiff’s backpack, and the plaintiff slapped him. The other boy then shoved the plaintiff, resulting in the plaintiff falling and scraping his elbow. The plaintiff thought he reported it to a teacher.
The next day, the plaintiff’s father spoke to an administrator about the previous day’s incident and about boys calling the plaintiff “gay.” His father testified in a deposition that he had the impression that the administrators knew what was going on.
In October, both the plaintiff and a boy who had called him names in two classes asked to go to the restroom at the same time. The plaintiff alleged the other boy “had been bulling [him] all day” and harassed him in the restroom. According to his complaint, the plaintiff wanted to prove to the other boy that he was a boy and not a girl and not gay. He came out of the stall and exposed his genitals to the other boy. In his deposition, however, the plaintiff said the boy did not call him names in the restroom until the incident. He said he was using a urinal, and the other boy just saw a reflection of him in a mirror.
The other boy reported the incident. The plaintiff admitted exposing himself.
The school suspended him until they could hold a hearing. After the hearing, the school district suspended the plaintiff for the rest of the semester and transferred him to an alternative school during the suspension. It also directed him to go to weekly counseling.
Rather than go to the alternative school, the plaintiff went back to homeschool. The school district denied his appeal. He tried to go back to the middle school the next semester, but the superintended advised he first had to go to the alternative school for six weeks.
The plaintiff, through his father, sued the school district, the superintended, five employees, five classmates, and ten John Does. The classmates were dismissed. The other named defendants moved for summary judgment. The plaintiff argued he suffered sex discrimination under Title IX based on harassment because of perceived homosexuality.
The district court granted summary judgment on the plaintiff’s Title IX deliberate-indifference sex-discrimination claim against the school district. The court concluded both that the alleged behavior was not severe enough to be actionable and that Title IX did no apply to discrimination based on sexual-orientation.
A school district may be liable for sex-based harassment by one student against another if it had actual knowledge of the harassment and the harassment was “so severe, pervasive, and objectively offensive” as to effectively deprive the harassed student of access to an educational opportunity or benefit. Davis ex rel. LaShonda D. v. Monroe County Board of Education.
The Fifth Circuit acknowledged that the other boys’ behavior was “[m]eanspirited, but concluded it was not actionable under Title IX because it did not meet the standard of “severe, pervasive, and objectively offensive” conduct. Ordinary teasing and even bullying is not enough. The conduct must be “severe, pervasive, and objectively offensive” to the extent that it “effectively bars the victim’s access to an educational opportunity or benefit.” Davis. The Fifth Circuit determined that conduct similar to what the plaintiff alleged regularly occurs in middle schools.
The plaintiff argued that the issue of severity of the conduct was a fact question, not an issue for summary judgment. The Fifth Circuit noted it had previously affirmed summary judgment for a school district after concluding “the alleged harassment was not severe, pervasive, and objectively unreasonable,” even when the evidence was viewed in a light most favorable to the plaintiff. Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist.
The Fifth Circuit reached the same conclusion in this case. The plaintiff referred to the name-calling as “incessant.” He alleged that he was called names “[i]n all but one of his classes,” but, according to the court, the evidence showed he did not have issues in two classes. One of his teachers moved the boy who was calling him names to a seat across the classroom. He did not observe any disciplinary action by the band director, but he had only reported to her once or twice. The Fifth Circuit questioned the pervasiveness of the conduct based on these facts.
The Fifth Circuit distinguished the current case from the cases the plaintiff cited, noting three of the Title IX cases he cited involved rape-related harassment. It concluded that “the name-calling [the plaintiff] experienced over several weeks at the start of sixth grade” was not severe enough to be actionable under Title IX. The Fifth Circuit affirmed the summary judgment. The Fifth Circuit did not address the issue of whether Title IX applies to sexual orientation because the case could be determined based on the severity issue.
This case was about the school’s liability, but it does illustrate how the school handled the name-calling as compared to incident in which the plaintiff exposed himself. If your child has been accused of sexual misconduct or sexual harassment at school, you should contact a skilled Washington Title IX defense attorney as soon as possible to protect your child’s rights during the investigation and any disciplinary proceedings. Set up a consultation to discuss your case with Blair & Kim, PLLC, by calling (206) 622-6562.