Jane Doe v. Edgewood Indep. Sch. Dist.

• Decision Date: 06 July 2020
• Docket Number: No. 19-50737,19-50737
• Citation: 964 F.3d 351
• Parties: Jane DOE, now known as M.E., Plaintiff–Appellant, v. EDGEWOOD INDEPENDENT SCHOOL DISTRICT, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

964 F.3d 351

Jane DOE, now known as M.E., Plaintiff–Appellant,

v.EDGEWOOD INDEPENDENT SCHOOL DISTRICT, Defendant–Appellee.

No. 19-50737

United States Court of Appeals, Fifth Circuit.

FILED July 6, 2020

Luis Roberto Vera, Jr., Esq., Law Offices of Luis Roberto Vera, Jr. & Associates, San Antonio, TX, Brett Scott Bustamante, Esq., Patrick N. Haines, Marie Napoli, Senior Attorney, Napoli Shkolnik, P.L.L.C., Melville, NY, for Plaintiff-Appellant.

Donald Craig Wood, Attorney, Katie Elizabeth Payne, Walsh Gallegos Trevino Russo Kyle, San Antonio, TX, Defendant-Appellee.

Holly Gene McIntush, Austin, TX, for Amicus Curiae Texas Association of School Boards Legal Assistance Fund.

Before OWEN, Chief Judge, and HIGGINBOTHAM and WILLETT, Circuit Judges.

DON R. WILLETT, Circuit Judge:

Under the Supreme Court's decision in Gebser v. Lago Vista Independent School District , a school district is not liable under Title IX for teacher-on-student harassment unless the district, among other things, had "actual notice" of the misconduct and was "deliberately indifferent" to it.¹ As for actual notice, it is not enough the misconduct is reported to any employee. The reported-to employee must "at a minimum ha[ve] authority to institute corrective measures on the district's behalf."² As for deliberate indifference, it is a "high bar"—"neither negligence nor mere unreasonableness is enough."³

This tragic case concerns a high school student who endured two years of repeated, and repulsive, employee-on-student misconduct. Worse, Doe was abused by two school employees, a school peace officer and a teacher, both of whom were later criminally prosecuted. Student-plaintiff Jane Doe asserted Title IX and constitutional claims, but the district court, applying settled precedent, granted summary judgment to the school district. Having carefully reviewed the record in light of the parties’ extensive briefs, oral argument, and governing law, we affirm.

I. BACKGROUND

A. Factual Background

In 2012, Doe enrolled as a freshman at Memorial High School, part of Edgewood Independent School District. Soon after, Manuel Hernandez—one of Memorial's two peace officers—began sexually harassing Doe.⁴ Specifically, Hernandez detained Doe in his on-campus office, professed his feelings for her, and touched and groped her. The following year, Marcus Revilla—Doe's chemistry teacher—also began sexually harassing her. The misconduct escalated, and Doe became pregnant with Revilla's child in December 2013 or January 2014. The record indicates that Hernandez discovered this abuse but did nothing to report or stop it. Instead, Hernandez leveraged his knowledge of Revilla's abuse to coerce Doe into sexual acts with him too.

This abuse of Doe continued until March 2014, when both Revilla and Hernandez were arrested. Hernandez was found guilty of sexual assault of a child. And Revilla pleaded guilty to state and federal charges related to his relationship with Doe and possession of obscene material.

B. Current Lawsuit

Doe sued EISD⁵ under Title IX of the Education Amendments of 1972 and 42 U.S.C. § 1983, alleging that Hernandez and Revilla sexually abused her while she was a student at Memorial and that EISD responded with deliberate indifference to this known abuse. Doe alleges that, while she was being sexually harassed and abused, school personnel received several reports, but EISD employees failed to respond adequately.

After multiple amended complaints and dismissal of some claims and parties, EISD moved for summary judgment on the remaining claims—a Title IX sexual harassment claim and § 1983 substantive due process claims based on (1) failure to train school district employees regarding sexual harassment or abuse, (2) insufficient sexual harassment and child abuse policies, and (3) insufficient employee hiring policies and practices.

Regarding EISD's hiring policies and practices, Doe argues that their inadequacy resulted in the hiring of Hernandez despite the obvious risk he posed to students like Doe. In particular, the record shows that Hernandez, while serving the San Antonio Police Department in 1983, was arrested for "official oppression" of a minor he had arrested.⁶ The SAPD suspended him after determining that he violated department regulations by sexually assaulting the minor. But Hernandez was ultimately found not guilty of the criminal charge. The record also shows that Hernandez has been arrested on another, unrelated occasion. Plus, the record indicates that after twenty-two years at SAPD, Hernandez worked for the University of the Incarnate Word and Texas State University Police Departments, where he caused concern and/or was disciplined for sexual harassment or advances on a colleague, though there's no evidence that EISD was aware of these concerns.

The district court granted summary judgment for EISD on the Title IX claim⁷ and the § 1983 failure-to-train and sexual-harassment-policy claims. But the district court denied summary judgment on Doe's § 1983 claim based on EISD's hiring of Hernandez. EISD filed a motion for reconsideration, arguing that Doe had failed to establish a genuine dispute of material fact as to municipal liability. The district court reversed course and agreed with EISD, issuing a final judgment on all claims, including the hiring claim. Doe timely appealed.

II. STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment, applying the same standard as the district court⁸ and viewing the evidence "in the light most favorable to the non-moving party."⁹ Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."¹⁰ A genuine dispute of material fact exists if a reasonable jury could enter a verdict for the non-moving party.¹¹ And in Title IX cases, the Supreme Court has expressly noted the appropriateness of pretrial dismissal in certain cases: "there is no reason why courts, on a motion ... for summary judgment, ... could not identify a response as not ‘clearly unreasonable’ as a matter of law."¹²

III. DISCUSSION

A. Employee-on-student sexual harassment claims under Title IX

Title IX states that no person "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance."¹³ Passed under Congress's Spending Clause authority,¹⁴ Title IX is contractual in nature, not banning discrimination outright but "conditioning an offer of federal funding on a promise by the recipient not to discriminate."¹⁵ Put simply, there are strings attached. And if a school that receives federal funding violates the "no sex discrimination" condition, it may be held liable for money damages.¹⁶

The Supreme Court in Gebser defined the contours of Title IX liability. And it did so carefully, given the statute's contractual framework. Essentially, schools are liable only for intentional sex discrimination.¹⁷ And while Title IX covers "diverse forms" of such of discrimination¹⁸ —including the despicable conduct that occurred here—it is not easy to prove an intentional violation of Title IX. Boiled down, Title IX requires actual notice to an "appropriate person" and "an opportunity for voluntary compliance."¹⁹

First, "actual knowledge." Under Gebser , a school district cannot be liable in damages for a teacher's sexual harassment of a student unless "an official [with] authority to address the alleged discrimination and to institute corrective measures ... has actual knowledge of discrimination ... and fails adequately to respond."²⁰ And for the district to have knowledge, it is not enough that any employee knew of the harassment; it must be someone authorized to rectify it.²¹

Second, "deliberate indifference." Even if the school district knew about employee-on-student misconduct, the district cannot be liable unless its response amounted to "deliberate indifference."²² And as we have observed, "[t]he deliberate indifference standard is a high one."²³ For example, liability does not attach where the official with authority to take corrective action responds reasonably to a risk of harm, "even if the harm ultimately was not averted."²⁴

Doe falters out of the gate. She cannot show that a district official with the power to take corrective action had actual knowledge of the harassment.²⁵

1. Officer Hernandez is not an "appropriate person" for purposes of Title IX.

As for Doe's Title IX claim, the chief issue on appeal relates to the actual-knowledge requirement. EISD doesn't contest that Hernandez (the peace officer) knew that Revilla (the teacher) was abusing Doe. Nor does EISD contest that Hernandez responded with deliberate indifference. But it is a district's own misconduct—not the actions of its students, rank-and-file employees, or other third parties—that exposes it to liability under Title IX.²⁶ Doe must first prove that an official with authority to take corrective action on behalf of EISD had actual knowledge of the harassment. Gebser refers to such an official as an "appropriate person,"²⁷ and that's issue one: whether Hernandez constitutes an "appropriate person."

Doe argues that Hernandez was an "appropriate person" because (1) EISD's peace officers had authority to monitor the criminality of all EISD personnel, so Hernandez supervised Revilla, and (2) Hernandez had authority to arrest Revilla, so he had authority to institute corrective measures on the district's behalf. This reasoning is unpersuasive.

First, the power to enforce the law does not automatically make Hernandez Revilla's "supervisor." Under Doe's logic, Hernandez would be the supervisor of every EISD employee—including the superintendent. Plus, in the employment-discrimination context, the Supreme Court has defined a "supervisor" as someone the employer has authorized to take "tangible employment actions"—"i.e. , to effect a significant...