Fifth Circuit Affirms Grant of Summary Judgment to Texas School District in Race Bullying/Discrimina
In an intensely fact-laden case, the 5th Circuit considered an African-American family’s claim of race discrimination against a Texas school district for its alleged lack of proper response to years of racial harassment/bullying suffered by the family’s three daughters, primarily at the hands of classmates. Because there are so many facts, this summary will first categorize them as the court did, and then point to specific facts in elaborating the court’s decision.
The lawsuit was filed against the school district in 2012, alleging violations of Title VI and the Equal Protection Clause, and against the high school girls’ softball coach and the campus athletic director alleging violations of the Equal Protection Clause. The court placed the racial harassment incidents in four categories: (1) the “noose” incidents, (2) the “racial epithets and slurs” incidents, (3) incidents involving the softball coach and campus athletic director, and (4) other. There were two noose incidents, the first occurring in February 2012, when the children’s mother observed her oldest daughter’s car in the high school parking lot with a noose and a racially vulgar note next to the car. When the mother reported it to the assistant principal, the administrator reviewed the parking lot surveillance tape and reported the incident to local law enforcement. The surveillance recording did not cover the area where the incident reportedly took place, and law enforcement interviewed every person whom the daughter believed may have been involved. The investigation, still unsolved, did not result in substantiation, and the student signed an “affidavit of non-prosecution,” indicating that she no longer wanted to press charges. The second noose incident involved a high school student who was not a party to this lawsuit, and when the high school athletic director determined that the culprits were either in athletics or in a physical education class, he admonished the students and made them run laps as punishment. The racial epithets and slurs incidents are too numerous to mention, but were suffered at the hands of students and nearly all included the use of the pejorative “n” word. The range of disciplinary actions taken by school officials ranged from verbal warnings to suspensions, and in two cases involved suspending two of the three African-American children for reacting physically to the epithets. The incidents involving the coach and high school athletic director involved the athletic director admonishing one of the children for her “ethnic” hairstyle, and the softball coach departing for an away game without one of the plaintiff students and then informing that same student that she would be benched for the following game if she left the away game early. In addition, when two members of the girls’ softball team informed the coach that they were afraid of their African-American teammate, the coach advised the students that they could make a police report. Finally, other incidents of harassment included one of the students receiving a text message with an animation depicting the KKK “chasing President Obama;” an unreported incident claiming a teacher who told one of the children’s class that “all black people [are] on welfare;” a different teacher telling the oldest child, “You’re the bad influence; You’re the one who had a kid at 17;” and classmates recording the cheerleader tryouts involving one of the children and circulating the video among their peers with the title “Little boy tries out for cheerleading.”
The court also noted that the school district “had in place policies prohibiting harassment, bullying, and racial harassment” that were found in both employee and student handbooks, that it required yearly employee professional development in these areas, and that the district required its staff members to attend additional training provided by the U.S. Department of Justice. In addition, the family availed itself of the district’s grievance process, culminating with a grievance hearing before the school board, with varying degrees of success. Finally, the court noted that the district provided some accommodations to the children, including permitting the oldest daughter who was the subject of the noose incident to park her car in the faculty parking lot and complete her assignments in the counselor’s office due to her (the student’s) anxiety.
The 5th Circuit affirmed the federal district court’s grant of summary judgment to the district and individual defendants on all counts. With regard to the Title VI racial discrimination claim brought against the school district, the federal appellate court in a case of first impression adopted the Title IX student-to-student sexual harassment framework from Davis v. Monroe Co. Bd. of Educ., 526 U.S. 629 (1999), to articulate the circumstances under which a federally-assisted school district can be liable under Title VI: (1) the district, through a school official with the authority to remedy the harassment, must have actual notice; (2) the district must be deliberately indifferent, (3) the harassment must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to educational opportunities or benefits provided by the school” (internal citations omitted), and (4) the harassment must take place in a context subject to the district’s control. Noting that the parties did not dispute the actual notice and context elements above, the court focused on elements 2 and 3. Accordingly, based on the facts elaborated above, the court readily found the plaintiffs raised a genuine factual issue that the students were subjected to a racially hostile environment, particularly during years 2009-2012 leading up to the filing of the lawsuit. However, the court declined to hold that the actions of responsible school officials were deliberately indifferent. Noting that school officials’ actions were not “clearly unreasonable,” even if their actions were ultimately not effective, the court observed that the school district responded in some way to all of the substantiated complaints, even if some of the responses were “relatively weak.” Further, because the school district took a range of actions that included annual and additional professional development for its employees, and provided accommodations where it could, its actions could be termed deliberately indifferent.
Turning to the equal protection claims, the court first affirmed the grant of summary judgment in favor of the school district. The court initially noted the standard for a successful equal protection claim against a political subdivision of the state, holding that a plaintiff must prove that he or she must be treated differently from similarly situated individuals (in all aspects but in the protected classification [in this case race]), and that the “unequal treatment stemmed from” an intent to discriminate (internal citation omitted). The court rejected both equal protection claims of the plaintiffs, i.e., that the school district maintained “alleged discriminatory customs or policies” (internal citations omitted), and that the district, with deliberate indifference, failed to train its employees. Regarding each theory, the court noted that the final policymaking authority resided with the school district board of trustees, who did not have notice of the incidents until the board grievance hearing in May 2012, and not school officials, who are by Texas law not final policymakers. Thus, as the board had enacted the policies noted earlier, and required additional training, it could not be liable for the alleged violations of subordinate school officials.
Finally, the court disposed of the equal protection claims against the campus athletic director and the girls’ softball coach. With regard to the athletic director and the “ethnic” hairstyles comment, the court found the comment to be made with racial animus, but found that because the coaching staff made all students wear their hair in its natural color, there was no differential treatment among similarly situated students. With regard to the girls softball coach, the court found that there had not been a previous incident where a student-athlete had been punished for showing up late to an away game, thus there was no differential treatment; regarding the coach’s advising the Anglo student-athletes that they could file a police report on their African-American teammate, the court ruled that the teammates were not similarly situated, as the Anglo students expressed concern about their safety, while the African-American teammate did not. Finally, there was no evidence a racial animus motivated the coach to so advise the students.
Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398 (5th Cir. Oct. 13, 2015)