Under the Law: When is enough enough?

Lurid details of pervasive harassment are not sufficient for districts to lose a lawsuit. This lack of legal recourse for children means they are left to depend on those in the system for protection.

In October 2015, the 5th Circuit Court of Appeals (covering Louisiana, Mississippi, and Texas) issued a decision that makes one wonder if students could ever hold a school district liable for monetary damages for failing to protect them from racial harassment.

The case involves three black students — Kyana, Kyra, and Kavin. They are siblings and were students in the Marion Independent School District, a relatively small, predominantly white school district in south central Texas. All three were subjected to multiple incidents of racial harassment over a period of years, from educators and students, including:

All three girls were repeatedly called racially charged names as early as kindergarten. Other students used the racial slur for African-Americans in conversation, jokes, and as racial barbs. It is unclear whether any students were disciplined as a result of this language.
A noose was left in Kyana’s car with a racially hateful message. (A noose had been left in a different student’s locker the previous year.)
Kavin was referred to as “blackie” and “stupid little black girl” on multiple occasions by students.
In one incident, a group of white students surrounded Kavin. One of the students hit her and called her a derogatory name; Kavin hit the instigator. The principal disciplined the two students equally.
Kyra received a text message from another student showing an animation of KKK members chasing President Obama, after which Kyra and the student who sent the message had a physical fight. The principal disciplined the two students equally.
A coach/educator at the school told Kyana she was a bad influence because she had a child. As a result, the coach was suspended for one game. Kyana was then harassed by other students for getting the coach into trouble.
One of Kyra’s teachers told her class that “all black people are on welfare.” Kyra confronted the teacher and was told to “pipe down,” or she would be sent to the principal. Kyra did not pursue it further at the time.
Another student spat in Kavin’s face and told her: “Go back where you came from.” The student aggressor was “talked to” by the principal.
Kavin tried out for the cheerleading squad and was told by other students that “black girls aren’t pretty enough to be cheerleaders.” In addition, her tryout was recorded by some students and sent out captioned as “Little boy tries out for cheerleading.” Kavin reported this to the cheerleading coach, who did nothing.

As a result of the harassment, Kyana, Kyra, and Kavin withdrew from the school district and were enrolled in another.

A high bar

The Marion ISD did have policies against bullying, harassment, and discrimination. This district required employees to attend training that included these topics at the start of the year. The district did provide Kyana with an accommodation after the noose incident. She was allowed to park in the faculty parking lot, eat lunch with faculty members, and do her schoolwork alone in the counselor’s office. After the noose incident, the district required employees to attend additional training on discrimination, harassment, and bullying. Students also were required to attend a special assembly on these issues.

The family filed a complaint with the school board. The district granted some of their requests and denied others. This case was filed in the federal district court. After pretrial discovery, the court dismissed the claim for failing to state a possible cause of action. The family appealed the decision to the 5th Circuit Court of Appeals. In Fennell v. Marion Independent School District, 804 F. 3d 398 (5th Cir. 2015), the court found that the school district did not violate the students’ statutory or constitutional rights.

It is difficult to actually hold a district liable for monetary damages in these situations; there is a high bar for liability. School districts may be liable for damages only if they had actual knowledge of harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim from access to an education. A district may be liable for harassment if:

The harassment is so severe that it deprives the victims of education opportunities;
The district had actual knowledge of the harassment;
The district had control over the harasser and the environment; and
The district was nonetheless deliberately indifferent to the situation. (Davis v. Monroe County, 526 U.S. 629 [1999]).

The court found that the family had shown that the harassment was sufficiently severe to deprive the students of educational opportunities. The court found that the school was a racially hostile environment. “There is no question . . . that repeatedly being referred to by one’s peers by the most noxious racial epithet in the contemporary American lexicon and being shamed and humiliated on the basis of one’s race is harassment far beyond normal schoolyard teasing and bullying . . . . Moreover, the use of a noose accompanied by a vitriolic and epithet-laden note only underscores the severe, pervasive, and objectively offensive nature of the harassment.” Clearly, the family presented evidence of pervasive harassment.

Deliberate indifference

However, the court found that the family failed to raise the question of whether the school district was deliberately indifferent to the harassment. Since they did not present sufficient evidence to show that there was a genuine dispute over the fact of deliberate indifference, the court dismissed the family’s claim. The record showed that the district did respond to the incidents of which they had knowledge. Taken together, the court said, the district’s weak responses to harassment are concerning but are not tantamount to Marion ISD intentionally subjecting its students to harassment because the district took action to address each of the issues; thus they don’t amount to deliberate indifference.

Courts do not require a school district to successfully end harassment, the law only requires the district to respond to harassment in a way that is not clearly unreasonable.

Courts do not require a school district to successfully end harassment; the law only requires the district to respond to harassment in a way that is not clearly unreasonable (Davis v. Monroe County). This standard is also applied in situations where the harassment is based on gender and disability. The school district is found liable only when school officials’ intentional actions can be said to cause the discrimination or to make students vulnerable to harassment. As applied, the Davis standard results in very few situations where a district may be held liable for monetary damages for harassment. It seems the district must make a conscious decision not to try to remedy the situation in order to be held liable.

This standard does provide protection for the district. It does not put attorneys and courts in the position of second-guessing educators’ academic and disciplinary decisions. But it may not provide the protection children need or deserve. Students must rely on the good judgment of administrators and boards for real protection from harassment.

Citation: Underwood, J. (2016). Under the law: When is enough enough? Phi Delta Kappan, 97 (7), 76-77.