Federal Court of Appeals Holds School District "Not Deliberately Indifferent" to Student-to-Student Sexual Harassment

On January 27, 2009, the Fifth Circuit Court of Appeals held that a male student's sexual harassment of a female special education student was not sufficiently severe to establish a claim under Title IX. The court further held that the school district was not deliberately indifferent to the harassment. See Watkins v. LaMarque Independent Sch. Dist., No. 08-40557, 2009 WL 188079 (Jan. 27, 2009).

In this case, a male special education student allegedly grabbed, kissed, raised the dress of, and exposed himself to a female special education student while the students were alone in a Texas classroom. The female student reported the incident to an aide that day, but after separating the students, the aide did not inform her supervisor of the incident until the following day. The District eventually took several remedial measures, including requesting a police investigation, separating the students, and providing the female student with an escort at all times. After a second incident occurred between the students in which the male student shouted intimidating profanities to the female student, the District reassigned the male student to a different campus. The female student's parents subsequently filed a lawsuit against the School District under Title IX, alleging that the District failed to respond appropriately to the student-to-student sexual harassment. Title IX prohibits sex discrimination in educational programs and activities receiving federal funds. A school's failure to respond appropriately to sexual harassment among students may serve as the basis for a Title IX claim.

The court held that while the District had actual knowledge of the harassment, it was not sufficiently severe, nor was the school District deliberately indifferent to the sexual harassment, both of which are required to establish a claim against the District under Title IX. When considering the severity of the harassment, the court treated the case as if it had involved an eight year old student (because of the student's disability). Still, the court held that while the student's behavior was undoubtedly inappropriate, the single event of harassment was not "so severe, pervasive and objectively offensive to effectively deprive" the female student access to education.

The court also found that no reasonable jury could conclude that the District's decisions to take remedial action in lieu of expelling the student were unreasonable in light of the circumstances. Although these remedial measures were not completely effective, the court held that this did not mean that the District was deliberately indifferent.

This case reinforces the standard that, in order to be liable for student-to-student harassment under Title IX, the District's "deliberate indifference" must cause students to actually undergo harassment or make them vulnerable to it.