J T v. Uplift Education

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

J.T., individually and as next friend of §

M.L., a minor, §

§

Plaintiff, §

§ Civil Action No. 3:20-CV-3443-D

VS. §

§

UPLIFT EDUCATION, §

§

Defendant. §

MEMORANDUM OPINION

AND ORDER

Plaintiff J.T., individually and as next friend of her daughter M.L., brings this action

against defendant Uplift Education (“Uplift”), alleging that Uplift is liable under Title IX of

the Education Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”), and 42 U.S.C. § 1983

for the sexual abuse and harassment that M.L. suffered as a kindergarten student at the hands

of her male classroom teacher, an Uplift employee.1 Uplift moves for summary judgment.

Despite the tragic facts of this case, the court must faithfully apply the law to the summary

judgment record and dismiss the case. The court therefore grants Uplift’s motion and

dismisses this action with prejudice.2

1J.T.’s claim under 42 U.S.C. § 1983 is for violating M.L.’s Fourteenth Amendment

rights to personal security, bodily integrity, and equal protection.

2Some of the briefing and summary judgment evidence has been filed under seal. The

court is not filing this memorandum opinion and order under seal because it does not disclose

information that is or should be maintained under seal.

I

During the 2018-2019 school year, M.L. was a kindergarten student at Grand Primary,

an open-enrollment college-preparatory public charter school operated by Uplift.3 Several

times throughout the school year, M.L.’s male classroom teacher, Jamil Wazed (“Wazed”),

sexually abused her and several other female students in his class. To facilitate this abuse,

Wazed showed movies to the class, during which he turned off the classroom lights,

separated certain children from the remaining ones, and demanded that these students

perform sexual acts on him behind a “wall” of privacy folders4 that he created on his desk.

The barrier that Wazed created was roughly three feet wide and two feet high and would

have been visible to anyone who glanced in the window of Wazed’s classroom.

On August 5, 2019, two days before the beginning of the new school year, A.C.

emailed Grand Primary’s Academic Director, Chermanda Frazier (“Frazier”), to report that

her daughter J.G. had mentioned that Wazed “would kiss her on her neck and that his beard

tickled her neck.” D. App. (ECF No. 120-5) at 1342. J.G. was a female student who had

been a kindergartner in Wazed’s class during the 2018-2019 school year. On August 8, 2019

Frazier saw A.C.’s email and immediately responded. Because the allegation that Wazed

3The court recounts the facts in the light most favorable to J.T., as the summary

judgment nonmovant, and draws all reasonable inferences in her favor. See, e.g., Owens v.

Mercedes-Benz USA, LLC, 541 F.Supp.2d 869, 870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.).

4The privacy folders in this case were blue cardboard dividers sold under the

Lakeshore Learning school supply brand. Grand Primary teachers, including Wazed, used

the folders to separate students during testing or when students worked on other guided

assignments to minimize cheating and distractions and to give students privacy in the open

classroom space.

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kissed a student amounted to possible professional misconduct and violated teacher-student

boundaries, Frazier immediately placed Wazed on administrative leave. Consequently, he

was prohibited him from teaching, interacting with students, and entering Uplift property

without invitation and supervision.

The following day, Frazier, together with Grand Primary Deans Yvonne Cooper

(“Cooper”) and Christian Martinez-Canchola (“Martinez-Canchola”) and Social Counselor

Catherine Savoie (“Savoie”) (collectively, the “Administrators”) began an investigation.

During the investigation, the Administrators spoke with A.C., who related that, according to

J.G., Wazed had kissed her on the neck and would also cuddle with students during story

time. Savoie spoke with J.G. and did not observe anything out of the ordinary or hear any

reports of inappropriate conduct. The Administrators then spoke with J.G. together. J.G.

called Wazed her “favorite teacher,” said that she missed him, and stated that Wazed would

kiss her on the neck when the students were good. Id. at 1281. Neither J.G. nor A.C.

reported that Wazed had engaged in any other misconduct.

The Administrators then selected four students from Wazed’s 2018-2019

class—female students M.L., J.A., and Y.Q., and male student L.B.5—to inquire further

about the allegations that Wazed had kissed a student. In M.L.’s conversation with the

Administrators, she stated that she missed Wazed and she called him her favorite teacher.

To investigate J.G.’s report that Wazed had kissed her as “a reward” when she was “good,”

5Uplift maintains that the Administrators selected these four students because they had

strong verbal skills.

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Frazier asked M.L. how Wazed rewarded her when she did well in class and whether he

kissed her. M.L. responded that Wazed kissed her on the cheek but not the neck. M.L. did

not report that Wazed had engaged in any other misconduct. J.A. told the Administrators that

she missed Wazed and that he hugged her, but never kissed her. Y.Q. also said that she

missed Wazed and remembered how he taught reading. She stated that he had given her hugs

and had kissed her “on the forehead like when you kiss your brain.” D. App. (ECF No. 121-

3) at 1589. L.B. stated that he missed Wazed but denied that Wazed had ever kissed him.

Grand Primary then asked Wazed to submit a statement responding to the allegation

that he had kissed a student. Wazed denied the allegation and stated that he “never kissed

a scholar.” D. App. (ECF No. 120-5) at 1368.6 Despite Wazed’s denial, Frazier believed the

students. She determined that Wazed had acted inappropriately, but not maliciously, when

he kissed at least three female students. She then provided Uplift’s Human Resources team

a draft Employee Relations Investigation Packet in which she recommended that Wazed

receive a disciplinary warning regarding violation of standards regarding appropriate

physical contact with students. She also recommended that Wazed be allowed to return to

teaching after meeting with school leadership to “reiterate the expectations regarding student

and staff physical space and touch.” Id. at 1285.

Uplift’s HR Director Gaylon Curry (“Curry”) and Managing Director Priscilla Pharms

reviewed Frazier’s recommendation and rejected it on the ground that Uplift did not tolerate

6“Scholar” is the term that Uplift uses when referring to one of its students.

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any inappropriate physical contact with students and terminated employees for any physical

touching that failed to maintain appropriate boundaries. Curry directed Frazier to revise her

report, get a more detailed statement from Wazed, and prepare to terminate him. Frazier did

as instructed, and Uplift terminated Wazed’s employment on August 16, 2019, eight days

after Frazier first saw A.C.’s email.

On August 19, 2019 Uplift reported to the State Board for Educator Certification

(“SBEC”) that it had terminated Wazed’s employment for failure to maintain appropriate

educator-student relationships and boundaries. Savoie also filed a report with Child

Protective Services (“CPS”), stating that J.G. had disclosed that Wazed had kissed her. CPS

screened the report, noted that Wazed had been terminated, and closed the matter after

determining that the allegations did not involve abuse, neglect, or risk. Frazier also contacted

A.C. to inform her that Uplift no longer employed Wazed and that Uplift had reported his

alleged conduct to CPS and SBEC. A.C. did not return Frazier’s call.

Nearly one year later, on July 16, 2020, J.T., the plaintiff in this lawsuit, contacted

Martinez-Canchola, who had replaced Frazier as Academic Director at Grand Primary. J.T.

reported that her daughter M.L. had disclosed to her that “something” had happened with

Wazed and that J.T. had filed a police report. J.T. did not provide additional details at that

time regarding Wazed’s wrongdoing. Later in July, however, the Grand Prairie Police

Department notified Uplift that Wazed was under criminal investigation for different and

more serious conduct than what had been discovered during Grand Primary’s August 2019

investigation. In September 2020 Wazed was arrested and charged with aggravated sexual

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assault of a child. He ultimately pleaded guilty to one count of aggravated sexual assault of

a child and was sentenced to seven years in prison.

In November 2020 J.T. filed the instant lawsuit. In her second amended complaint,

she brings claims against Uplift under Title IX and § 1983. Uplift moves for summary

judgment on all of J.T.’s claims.7 J.T. opposes the motion. The court has heard oral

argument.

II

Where, as here, a party moves for summary judgment on claims on which the

opposing party will bear the burden of proof at trial, the moving party can meet its summary

judgment obligation by pointing the court to the absence of admissible evidence to support

the nonmovant’s claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the

moving party does so, the nonmovant must go beyond her pleadings and designate specific

facts showing there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence

is such that a reasonable jury could return a verdict in the nonmovant’s favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s failure to produce proof

7Also pending are J.T.’s motion to strike Uplift’s errata sheet, Uplift’s motion to

exclude opinions of Dr. John F. Doherty, Uplift’s motion to exclude opinions of Dr. Robert

Cooper, and Uplift’s objections to and motion to strike J.T’s summary judgment evidence.

Because the court has not considered the portions of Frazier’s deposition to which Uplift’s

errata sheet applies, and because the court holds that Uplift is entitled to summary judgment

even when considering the relevant expert testimony and summary judgment evidence, the

court denies J.T.’s and Uplift’s motions without prejudice as moot.

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as to any essential element of a claim renders all other facts immaterial. See TruGreen

Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.).

Summary judgment is mandatory if the nonmovant fails to meet this burden. Little, 37 F.3d

at 1076.

III

Uplift moves for summary judgment on J.T.’s Title IX claim.

A

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to discrimination

under any education program or activity receiving Federal financial assistance.” 20 U.S.C.

§ 1681. An “education program,” such as a charter school, that receives federal funds8 may

be held liable under Title IX via a private action for damages when its employees sexually

abuse students. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998). Title IX,

however, does not create vicarious liability for the acts of school employees. Id. at 288.

Instead, to establish liability, a plaintiff must demonstrate that a school official with authority

to address the harassment had actual knowledge of the harassment or that there was a

substantial risk that harassment would occur, and the school was deliberately indifferent to

such harassment. Id. at 290; see also Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648,

652-53 (5th Cir. 1997). A school acts with “deliberate indifference” when its “response to

8The court will assume arguendo that Uplift is an education program receiving Federal

financial assistance. This requirement does not appear to be disputed.

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the harassment or lack thereof is clearly unreasonable in light of the known circumstances.”

Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999). A

school can be deliberately indifferent “before the fact”—i.e., the school has actual knowledge

of a substantial risk that sexual abuse or harassment will occur and does not respond

reasonably to that risk—or “after the fact”—i.e., after the school has knowledge of abuse or

harassment, it does not respond reasonably, and the student suffers further harassment as a

result. See, e.g., King v. S. Methodist Univ., 2015 WL 12723026, at *2-3 (N.D. Tex. Apr.

27, 2015) (Solis, J.).

B

The court begins with J.T.’s “before-the-fact” Title IX claim. J.T. first contends that,

before August 2019, Uplift had “actual knowledge” that Wazed was sexually abusing M.L.

“from a teaching assistant who informed appropriate school officials of the abuse.” P. Br.

(ECF No. 138) at 8. In support, J.T. points to M.L.’s testimony that Jazmyne Walker

(“Walker”), an Uplift Teacher Aide, entered Wazed’s classroom while he was abusing M.L.

and undoubtedly “noticed” the abuse, and that “other teachers saw the abuse occurring as

they walked by the classroom.” Id.

J.T. does not contend that Walker or any of the unidentified “other teachers” who

allegedly observed the abuse is an “appropriate person” under Title IX.9 See Gebser, 524

9In fact, J.T. acknowledges in her response brief that “low-level school employees,

including teachers and school peace officers, do not qualify as appropriate school officials

themselves.” P. Br. (ECF No. 138) at 10 (internal quotation marks, brackets, and italics

omitted).

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U.S. at 290 (“An ‘appropriate person’ . . . is, at a minimum, an official of the recipient entity

with authority to take corrective action to end the discrimination.”). She maintains instead

that Walker and the other teachers had an obligation under Texas law to report to law

enforcement any sexual abuse they observed, and an obligation under Uplift policies to report

any knowledge or suspicion of student abuse or sexual harassment. J.T. posits that “it is well

established that when a witness to sexual harassment must report sexual harassment to an

appropriate school official as a ‘mandatory reporter of sexual abuse’ under state law, a

reasonable factfinder could infer that the witness did inform appropriate school officials of

the sexual harassment.” P. Br. (ECF No. 138) at 9 (quoting B.W. Career Tech. Ctr. of

Lackawanna Cnty., 422 F.Supp.3d 859, 879 (M.D. Pa. 2019)). The court disagrees.

Title IX’s knowledge requirement “cannot be satisfied by showing that the school

district should have known there was a substantial risk of abuse.” M.E. v. Alvin Indep. Sch.

Dist., 840 Fed. Appx. 773, 775 (5th Cir. 2020) (per curiam) (emphasis added). “[A]ctual

knowledge[] means that the school must have actual, not constructive, knowledge of sexual

harassment.” Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 341 (5th Cir. 2022)

(citations omitted). “Specifically, the school must have actual knowledge that harassment

has occurred, is occurring, or that there is a ‘substantial risk that sexual abuse would occur.’”

Id. (quoting M.E., 840 Fed. Appx. at 775). Accordingly, liability under Title IX requires that

“the official must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and [s]he must also draw the inference.” Rosa H., 106

F.3d at 658 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

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J.T. has not produced any evidence that would enable a reasonable jury to find that,

before August 2019, an appropriate Uplift official had actual knowledge that Wazed had

sexually abused his students. And based solely on evidence that Walker and “other teachers”

witnessed the abuse, a reasonable jury could not infer that an appropriate Uplift official also

had actual knowledge of the abuse.10

C

J.T. next argues that Uplift had “actual knowledge” that there was a substantial risk

that Wazed would sexually abuse his students.

J.T. maintains that the “evidence raises a triable issue of fact that appropriate school

officials had actual knowledge of Wazed’s habitually darkened room, his privacy-folder wall,

and the obvious risk of sexual abuse they presented.” P. Br. (ECF No. 138) at 15. In support

of this contention, she points to evidence that Wazed admitted that he deliberately created

a dark and secluded classroom environment that provided him cover to molest little girls; that

10In support of her novel theory of imputed knowledge, J.T. cites B.W., 422 F.Supp.3d

859, and Doe v. Loyalsock Township School District, 2022 WL 1110310 (M.D. Pa. Apr. 13,

2022). But both of these cases were decided at the pleadings stage, and in both the plaintiffs

alleged that an appropriate official had actual knowledge of the abuse. See B.W., 422

F.Supp.3d at 879 (denying motion to dismiss Title IX claim where, inter alia, plaintiff

alleged that a teacher, “in accordance with his mandatory reporting duty under 23 Pa. C.S.A

§ 6311 did report Mr. Humphrey’s behavior to the administrators of [CTC] and [the school

districts], but no action was taken.’” (alteration in original) (emphasis added)); Doe, 2022

WL 1110310, at *5 (denying motion to dismiss Title IX claim where plaintiff alleged that

basketball coach’s “inappropriate relationship with [her] was known to the staff and

administration of Loyalsock,” (alteration in original) (emphasis added), and also alleged facts

that reasonably suggested that high school principal “possessed knowledge about the danger

[coach] posed to [plainitff] and other children.”). Neither court inferred the awareness of an

appropriate official based on a different mandatory reporter’s knowledge.

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Wazed admitted to frequently showing educational movies to his class and turning the lights

off during these movies in order to distract the other students so that he could molest little

girls; that Wazed admitted using the privacy folders he had placed on his desk to create a

barrier that was roughly three feet wide and two feet high; that Wazed and M.L. both

acknowledged that the dimmed lights in Wazed’s classroom and the wall of bright blue

privacy folders that he placed on his table during the abuse would have been visibly obvious

to anyone outside the classroom and could have been seen through the large two-feet-wide

window of his classroom door; that Wazed and M.L. confirmed that appropriate officials

routinely walked the halls and visited classrooms and would have walked by while the lights

were dimmed and the privacy-folder wall was erected; that Frazier’s office door was fewer

than 100 feet from Wazed’s classroom; that other administrators admitted that they also did

check-ins and patrolled the halls in the afternoons; that Wazed’s abuse was far more frequent

and long-lasting, involving more victims, over a longer duration of time, and involved far

more egregious and deviant acts that Wazed himself admits; and that Wazed admitted that,

based on how frequently Uplift officials “walked the halls,” and how frequently he abused

his students, “some someone ‘with authority to engage in management level decisions at the

school’ would have ‘definitely’ seen his dimmed lights and privacy folders,” id. at 17.

It is clearly established in the Fifth Circuit that “when a teacher sexually abuses a

student, the student cannot recover from the school district under Title IX unless the school

district actually knew that there was a substantial risk that sexual abuse would occur.” Rosa

H., 106 F.3d at 652-53. As set out above, the “knowledge requirement cannot be satisfied

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by showing that the school district should have known there was a substantial risk of abuse.”

M.E., 840 Fed. Appx. at 775 (emphasis added). Instead, “Title IX requires a showing of

actual, intentional discrimination on the part of the school district.” Rosa H., 106 F.3d at

657.

Based on the summary judgment evidence, the court holds that a reasonable jury could

not find that an “appropriate person” had actual knowledge that there was a substantial risk

that Wazed would sexually abuse his students. At most, the evidence supports the reasonable

inference that an appropriate person could have observed that the lights in Wazed’s

classroom were frequently dimmed, or, if he or she walked by Wazed’s classroom at the time

he was sexually abusing a student, could have observed that Wazed had set up privacy

folders on his desk to create a barrier. But J.T. has not pointed to any evidence that would

enable a reasonable jury to find that an appropriate person actually observed either of these

conditions. M.L.’s and Wazed’s speculation that “someone” who walked past Wazed’s

classroom must have noticed that the lights were dimmed and the privacy folders were

arranged around the desk is insufficient to withstand summary judgment. The fact that the

classroom conditions themselves were open and obvious is alone insufficient to enable a

reasonable jury to find that Frazier or another “appropriate person” actually knew about

them.

Moreover, even if the court assumes arguendo that Frazier or another “appropriate

person” did observe the lights dimmed and/or the privacy folders arranged around the desk

in Wazed’s classroom, this would not of itself permit the reasonable finding that an

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appropriate person knew there was a substantial risk that Wazed would sexually abuse a

student. There are valid educational reasons both for dimming classroom lights (for instance,

to show educational movies) and for using privacy folders (to address potential cheating and

distractions and to give students privacy). Knowledge that Wazed had dimmed the lights and

placed privacy folders on his desk does not necessarily equate to knowledge that Wazed had

sexually abused one or more of his students.

“A Title IX plaintiff seeking damages through an implied right of action must clear

a high bar on the issue of . . . knowledge of the claimed discrimination.” Howell v. Austin

Indep. Sch. Dist., 323 Fed. Appx. 294, 295 (5th Cir. 2009) (per curiam). In this case, “[t]here

may have been, as plaintiff[] contend[s], ‘red flags’ that should have alerted the district of

a substantial risk that [Wazed] was sexually assaulting [M.L.] But the law requires that the

district actually knew of the risk, not just that it should have known.” M.E., 840 Fed. Appx

at 776 (citing Rosa H., 106 F.3d at 652-53, 656). The summary judgment evidence in this

case is insufficient to enable a reasonable jury to find actual knowledge of that risk.

D

The court now turns to J.T.’s “after-the-fact” Title IX claim.

In J.T. v. Uplift Education (J.T. II), 2022 WL 283022 (N.D. Tex. Jan. 31, 2022)

(Fitzwater, J.), the court dismissed J.T.’s Title IX claim based on deliberate indifference after

the fact “without prejudice to reconsidering this ruling if the case law develops favorably to

J.T.’s position.” Id at *2. The court explained:

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The allegations of the [second amended complaint (“SAC”)]

only permit the court to draw the reasonable inference that

Wazed’s harassment of M.L. stopped completely with his

termination, even if the deleterious effects likely continued

unabated. So far as the court is aware, to be held liable under

Title IX, a funding recipient, like Uplift, who does not directly

engage in harassment must subject its students to harassment

through its deliberate indifference. See, e.g., Davis ex rel.

LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645

(1999). At a minimum, this deliberate indifference must cause

its students to undergo harassment or make them liable or

vulnerable to it. Id. But the SAC does not complain that Uplift

caused M.L. to undergo harassment or made her liable or

vulnerable to it after Wazed was discharged; it alleges that

Uplift’s acts or omissions subjected M.L. to the effects of

harassment that she had already suffered due to before-the-fact

deliberate indifference.

Id.

In her response to Uplift’s summary judgment motion, J.T. urges the court to

reconsider its ruling in J.T. II on the ground that the evidence that has developed through

discovery confirms Uplift’s deliberate refusal to disclose the abuse it fostered and its

conscious decision to cover up that abuse, and that the case law that has developed since J.T.

II was decided confirms that Uplift’s acts and omissions constitute deliberate indifference

to sexual abuse and are actionable under Title IX. The court disagrees.

J.T. argues that the proper standard of deliberate indifference in the context of teacher-

on-student harassment does not come from Davis, as this court held in J.T. II,11 but instead

11The court is aware that, after it decided Uplift II, the Sixth Circuit held in Wamer v.

University of Toledo, 27 F.4th 461 (6th Cir. 2022), that Davis’ requirement that the school’s

deliberate indifference “must, at a minimum, cause [students] to undergo harassment or make

them liable or vulnerable to it,” Davis, 526 U.S. at 645, is inapplicable in the context of

teacher-on-student sexual harassment. Wamer, 27 F.4th at 469-70 (concluding that

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comes from Gebser, which “requires a school confronted with credible allegations of teacher-

on-student sexual abuse to do more than merely ‘do no further harm’ by terminating the

abusive teacher and halting the harassing conduct.” P. Br. (ECF No. 138) at 23. J.T.

contends that Gebser requires that “[t]he school must go further, taking affirmative action

to ‘remedy the violation,’” and that “the correct ‘remedial action’ will require the school to

do whatever ‘[is] deem[ed] necessary’ to ‘overcome the effects of the discrimination.’” Id.

(alteration in original) (quoting Gebser, 524 U.S. at 288).

In Gebser the Supreme Court was principally concerned with the question whether

a Title IX plaintiff could recover damages “against a school district for a teacher’s sexual

harassment of a student based on principles of respondeat superior or constructive notice,

i.e., without actual notice to a school district official.” Gebser, 524 U.S. at 285. To answer

that question, the Court was guided by “important clues” in the statute, such as the

“requirement that ‘the injury is attributable to . . . post-actual-knowledge further harassment’

. . . should not apply in the context of teacher-student harassment claims.”). This court, of

course, is not bound by decisions of the Sixth Circuit. But even if it were inclined to agree

with the approach taken in Wamer, the Sixth Circuit court held in that case:

a plaintiff can satisfy the causation requirement by showing that

(1) following the school’s unreasonable response (2) (a) the

plaintiff experienced an additional instance of harassment or (b)

an objectively reasonable fear of further harassment caused the

plaintiff to take specific reasonable actions to avoid harassment,

which deprived the plaintiff of the educational opportunities

available to other students.

Id. at 471. There is no suggestion in the instant case that, following Uplift’s allegedly

unreasonable response, M.L. had an objectively reasonable fear of further harassment.

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requirement in 20 U.S.C. § 1682 that “no [administrative enforcement] action shall be taken

until the department or agency concerned has advised the person or persons of the failure to

comply with the requirement and has determined that compliance cannot be secured by

voluntary means.” Id. at 288 (quoting 20 U.S.C. § 1682). The Court noted that, “[i]n the

event of a violation, a funding recipient may be required to take ‘such remedial action as [is]

deem[ed] necessary to overcome the effects of [the] discrimination. Id. (alterations in

original) (quoting 34 C.F.R. § 106.3(a)).12 The Court concluded that “[i]t would be unsound

. . . for a statute’s express system of enforcement to require notice to the recipient and an

opportunity to come into voluntary compliance while a judicially implied system of

enforcement permits substantial liability without regard to the recipient’s knowledge or its

corrective actions upon receiving notice.” Id. at 289.

The Gebser Court did not hold, as J.T. argues, that Title IX requires a school to do

“whatever is deemed necessary” to overcome the effects of the discrimination. P. Br. (ECF

No. 138) at 23 (brackets omitted). J.T.’s reliance on language in Gebser that quotes a U.S.

Department of Education regulation is therefore misplaced. In the administrative

enforcement context, a recipient that is given notice of a Title IX violation may be required

1234 C.F.R. § 106.3(a) provides:

[i]f the Assistant Secretary finds that a recipient has

discriminated against persons on the basis of sex in an education

program or activity under this part, or otherwise violated this

part, such recipient must take such remedial action as the

Assistant Secretary deems necessary to remedy the violation,

consistent with 20 U.S.C. 1682.

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to “take such remedial action as the Assistant Secretary deems necessary to remedy the

violation.” 34 C.F.R. § 106.3(a). But neither Title IX nor the case law interpreting it

imposes a similar requirement on recipients outside the administrative enforcement context.

In fact, in Gebser, in response to the plaintiff’s argument that the school district had violated

Title IX by failing to promulgate and publicize an effective policy and grievance procedure

for sexual harassment claims, the Court expressly stated that it had never held “that the

implied private right of action under Title IX allows recovery in damages for violation of .

. . administrative requirements.” Gebser, 524 U.S. at 292.

Nor is this court persuaded by J.T.’s argument that “[l]ower courts have

acknowledged that Gebser requires schools to do more than merely fire the offending teacher

to remedy a Title IX violation, and must ‘remedy the violation’ by ‘tak[ing] steps not only

to end the harassment’ but to ‘remedy its effects.’” P. Br. (ECF No. 138) at 24 (citation

omitted). The only case that J.T. cites in support of her position is Doe v. Russell County

School Board, 292 F.Supp.3d 690, 710 (W.D. Va. 2018). In that case the district court held

that there was “sufficient evidence from which a jury could conclude that the School Board

acted with deliberate indifference to [custodian’s] confessed abuse of Doe by failing to offer

counseling or other remedial measures to Doe.” Doe, 292 F.Supp.3d at 710. In reaching this

decision, however, the court relied heavily on guidance from the U.S. Department of

Education, which it conceded “represent[s] [Department] policy in the context of

administrative enforcement actions rather than private lawsuits.” Id. (emphasis added). This

court does not find Doe persuasive, and in its research it has located no similar cases within

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the Fifth Circuit. Cf. B.W., 422 F.Supp.3d at 884-85 (holding that plaintiffs cannot hold

defendants liable under Title IX without establishing that the “deliberate indifference” of an

appropriate person “caused plaintiff students to be subjected to discrimination” and that

“defendants’ alleged failure to provide plaintiffs with counseling and other services [after it

had knowledge of the abuse] cannot be the basis to hold defendants liable under Title IX”

because “the alleged failures of defendants in the instant case to provide counseling and other

services to plaintiffs after the Childline Report did not subject plaintiffs to continued sexual

abuse and harassment, or make them more vulnerable to it.” (some brackets omitted)).

E

It is clearly established that “a damages remedy will not lie under Title IX unless an

[appropriate] official . . . has actual knowledge of discrimination in the recipient’s programs

and fails adequately to respond.” Gebser, 524 U.S. at 290 (emphasis added). For a school

district to be liable, “the response must amount to deliberate indifference to discrimination.”

Id.

Deliberate indifference under Title IX means that the school’s

response or lack of response was “clearly unreasonable in light

of the known circumstances.” Neither “negligence nor mere

unreasonableness is enough.” Schools need not “remedy the

harassment or accede to a parent’s remedial demands,” and

“courts should refrain from second-guessing the disciplinary

decisions made by school administrators.”

I.L. v. Hous. Indep. Sch. Dist., 776 Fed. Appx. 839, 842 (5th Cir. 2019) (quoting Sanches v.

Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 167-68 (5th Cir. 2011)).

“[T]here is no reason why courts, on a motion . . . for summary judgment . . . could not

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identify a response as not ‘clearly unreasonable’ as a matter of law.” Sanches, 647 F.3d at

168 (alterations in original).

Courts in the Fifth Circuit have held that a school district may act with deliberate

indifference where it does nothing in response to allegations of teacher-on-student sexual

abuse. For example, in Doe v. Beaumont Independent School District, 615 F.Supp.3d 471

(E.D. Tex. 2022), when administrators at one school within the Beaumont Independent

School District (“BISD”) became aware of the sexually inappropriate and predatory behavior

of one of its substitute teachers, Brandon Chillow (“Chillow”), the school district failed to

take steps reasonably calculated to stop the abuse. Concluding that the plaintiffs had

sufficiently pleaded that BISD had acted with deliberate indifference, for purposes of their

Title IX claim, the court explained:

Chillow’s termination at [the first school] involved abusive and

harassing conduct that triggered mandatory reporting

requirements. Texas law requires the reporting of abusive

sexual conduct “involving an educator and a student or minor.”

Thus, BISD can hardly be said to have acted reasonably by

failing to report his behavior, or by ignoring such reports, and

then transferring him to other campuses within the school

district where he was free to continue preying on vulnerable

students. Quite the opposite.

Id. (footnote and internal citation omitted).

But when the school district takes some kind of action in response to allegations of

sexual abuse, even if the response is imperfect, courts have held that there is not deliberate

indifference. In Doe ex rel. Doe v. Dallas Independent School District, 220 F.3d 380 (5th

Cir. 2000), for example, the Fifth Circuit held that, although the district was ineffective in

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preventing further abuse, its conduct nevertheless did not amount to deliberate indifference.

In that case, John Earl McGrew (“McGrew”), a third grade teacher and Boy Scout troop

leader at Joseph J. Rhoades Elementary School (“J.J. Rhoades”), sexually molested numerous

male students between 1983 and 1987. Id. at 381. In 1986, J.H. (a J.J. Rhoades student)

reported to Barbara Patrick (“Patrick”), the Principal of J.J. Rhoades, that McGrew had

fondled him. Id. at 387. Although Patrick investigated J.H.’s allegations, she erroneously

concluded that they were unfounded. McGrew was ultimately convicted of one count of

aggravated sexual assault and two counts of indecency with a child. After McGrew’s

criminal conviction, a number of his victims sued Patrick and the Dallas Independent School

District, among others, alleging claims under Title IX. This court (Fish, J.) granted summary

judgment in the defendants’ favor. On appeal, the Fifth Circuit affirmed. It assumed

arguendo that Patrick had actual notice of an allegation of sexual abuse in the spring of 1986.

But it concluded that Patrick had not responded to the allegation of abuse with deliberate

indifference. As the panel explained:

even drawing all reasonable inferences in favor of Plaintiffs, we

must agree with the district court that Plaintiffs have failed to

create a genuine issue of material fact. Patrick interviewed J.H.,

spoke with his mother, spoke with J.H.’s teacher, spoke with

McGrew and warned him either that he would be “dealt with”

if the accusations were founded or that he should avoid acting

in a way that could be misconstrued. She concluded, in error,

that J.H.’s allegation was not true, and her erroneous conclusion

had tragic consequences. However, we cannot say on the facts

before us that these actions, though ineffective in preventing

McGrew from sexually abusing students, were an inadequate

response to J.H.’s allegation.

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Id. at 388.

Similarly, in Ramos v. Cremar, 2017 WL 4512563, at *5 (S.D. Tex. May 12, 2017),

aff’d sub nom. Ramos v. Webb Consol. Indep. Sch. Dist., 724 Fed. Appx. 338 (5th Cir. 2018),

the court also held that the evidence did not permit the conclusion that the school district had

acted with deliberate indifference, even though the school district’s actions “were not

perfect.” Id. at *5. In Ramos a ninth-grade student, O.R., had a sexual relationship with his

teacher, Fallon Cremar (“Cremar”). Id. at *1. When R.J. Montalvo (“Montalvo”), another

teacher at the school O.R. attended, reported to Principal Humberto Soliz (“Soliz”) that he

had seen O.R. hugging Cremar, an investigation ensued. Id. *2. O.R. committed suicide two

days later, before the investigation concluded. Id. at *1. O.R.’s family sued the school

district, alleging claims under § 1983 and Title IX. On the question of deliberate

indifference, the district court found in the school district’s favor.

Viewing the evidence in the light most favorable to the

Plaintiffs, the Court finds that neither WCISD nor its officials in

charge of supervising Ms. Cremar acted with deliberate

indifference in this situation. . . . The morning after Principal

Soliz first learned of any potential misconduct by Cremar, he

observed O.R. and contacted Cremar to obtain a statement.

Sanchez, the superintendent, quickly took action when she

learned of the classroom incident: she took over the

investigation, directed Teacher Montalvo to prepare a report for

Child Protective Services, placed Cremar on administrative

leave, and asked Flores to meet with O.R. and see if he was

alright. WCISD and its officials responded to any risks towards

O.R.’s rights and well-being, and their responses were a far cry

from being “clearly unreasonable.”

Id. at *5. The court reasoned that

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WCISD’s actions were not perfect. For example, Plaintiffs

presented evidence that WCISD failed to follow certain federal

guidelines or inform O.R.’s family of the investigation. Yet

WCISD and its officials still responded reasonably to any

known risks towards O.R.’s rights. Deliberate indifference

requires much greater culpability.

Id.; see also, e.g., King v. Conroe Indep. Sch. Dist., 289 Fed. Appx. 1, 2 (5th Cir. 2007) (per

curiam) (affirming summary judgment in favor of school district on Title IX claim based on

sexual abuse of student by her volleyball coach where principal investigated report that

student and coach were seen kissing and passing notes but erroneously concluded that

allegations were unfounded, noting “[Principal] Stockton met with [Coach] Shupp,

questioned her about the alleged relationship, and, upon receiving a denial, warned her to

keep her relationships with students professional at all times”); Guerrero v. Brownsville

Indep. Sch. Dist., 2020 WL 2583134, at *8 (S.D. Tex. May 5, 2020) (granting summary

judgment on teacher-on-student Title IX claim where evidence showed that “rather than

acting with deliberate indifference, BISD placed [teacher] on administrative leave and

directed her not to contact any students within a day of receiving information of [teacher]’s

wrongful conduct”), rec. adopted, 2020 WL 2596788 (S.D. Tex. May 21, 2020).

The summary judgment record in this case demonstrates that Uplift took timely and

plausibly reasonable measures to investigate and end Wazed’s sexual harassment of students.

Frazier immediately placed Wazed on administrative leave after receiving A.C.’s email

alleging that J.G. had reported that Wazed kissed her. The Administrators then investigated

A.C.’s allegations by interviewing J.G. and four other students from Wazed’s 2018-2019

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kindergarten class. They also interviewed Wazed and immediately terminated his

employment with Grand Primary. In addition, Uplift filed a report with the SBEC and CPS

and contacted A.C., the parent who had initially reported the abuse, to inform her that Wazed

had been terminated.

J.T. maintains that Uplift should have done more. She contends that it should have

taken “the kinds of actions that would address the full scope of the damages caused by

Wazed’s abuse,” P. Br. (ECF No. 138) at 26 (emphasis omitted), including, at a minimum,

informing M.L.’s parents that M.L. had reported that Wazed kissed her on the cheek,

“probing deeper” during its investigation of Wazed after all four of the female students it

interviewed reported abuse, and immediately reporting the abuse to SBEC or CPS, rather

than waiting for more than two weeks.

But the fact that Uplift might have done more or responded differently does not,

without more, establish deliberate indifference. See, e.g., Porto v. Town of Tewksbury, 488

F.3d 67, 73 (1st Cir. 2007) (“[A] claim that the school system could or should have done

more is insufficient to establish deliberate indifference.”). Deliberate indifference in the Title

IX context is a “high bar” and requires the defendant’s response to be “clearly unreasonable

in light of the known circumstances.” Roe, 53 F.4th at 341 (quoting Sanches, 647 F.3d at

167). Neither “negligence nor mere unreasonableness is enough.” Sanches, 647 F.3d at 167;

see also id. at 170 (“Title IX does not require flawless investigations or perfect solutions.”).

Considering the summary judgment record in this case, a reasonable jury could not

find that Uplift’s response to the reported incidents involving Wazed was clearly

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unreasonable or amounted to “an official decision . . . not to remedy the violation.” Gebser,

524 U.S. at 290. Accordingly, because J.T. has failed to create a genuine issue of material

fact on the question wehther Uplift acted with deliberate indifference after the fact, the court

grants Uplift’s motion for summary judgment on this claim.

IV

Uplift also moves for summary judgment on J.T.’s § 1983 claim.

A

Section 1983 provides a remedy against any “person” who, “under color of any

statute, ordinance, regulation, custom, or usage, of any State,” violates another’s rights under,

inter alia, the United States Constitution. 42 U.S.C. § 1983. A municipal entity, such as a

public school district,13 is considered a “person” under § 1983. Moore v. Willis Indep. Sch.

Dist., 233 F.3d 871, 874 (5th Cir. 2000) (“A local government entity, such as a school

district, may be held liable under § 1983 for constitutional violations committed pursuant to

a governmental policy or custom.” (citing Monell v. Dept. of Soc. Servs. of N.Y., 436 U.S.

658, 690 (1978))). But a school district cannot be held vicariously liable under § 1983 for

the individual acts of its employees. See Monell, 436 U.S. at 691. Instead, to establish

municipal liability, a plaintiff must prove “(1) an official policy (or custom), of which (2) a

policy maker can be charged with actual or constructive knowledge, and (3) a constitutional

13The court will assume, as Uplift does in its motion, that an open-enrollment public

charter school, such as Uplift, is also subject to § 1983 liability under Monell. See D. Br.

(ECF No. 119) at 33.

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violation whose ‘moving force’ is that policy (or custom).” Pineda v. City of Houston, 291

F.3d 325, 328 (5th Cir. 2002) (quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th

Cir. 2001)).

The first requirement can be shown by

a policy statement, ordinance, regulation, or decision that is

officially adopted and promulgated by . . . an official to whom

the lawmakers have delegated policy-making authority” or

through a “persistent, widespread practice of city officials or

employees, which, although not authorized by officially adopted

and promulgated policy, is so common and well settled as to

constitute a custom that fairly represents municipal policy.”

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc) (per curiam). Under

the second requirement, a plaintiff must show “[a]ctual or constructive knowledge of [a]

custom” that is “attributable to the governing body of the municipality or to an official to

whom that body ha[s] delegated policy-making authority.” Id.; see also Valle v. City of

Houston, 613 F.3d 536, 542 (5th Cir. 2010). Under the third requirement, a plaintiff must

establish “moving force” causation by showing “that the municipal action was taken with the

requisite degree of culpability” and “a direct causal link between the municipal action and

the deprivation of federal rights.” Valle, 613 F.3d at 542 (quoting Bd. of the Cnty. Comm’rs

v. Brown, 520 U.S. 397, 404 (1997)).

The parties agree that the policymaker in this case is the Uplift Board of Directors

(“Uplift Board”). And the court will assume arguendo that Wazed’s sexual assaults of M.L.

- 25 -

deprived her of a right secured by the Constitution.14 J.T.’s § 1983 claim thus turns on

whether she has introduced sufficient evidence for a reasonable jury to find that an official

policy or custom, of which the Uplift Board had actual or constructive knowledge, was the

moving force behind the deprivation of M.L.’s constitutional right.

B

J.T. contends first that, at the time Wazed was abusing M.L., “officially promulgated

Uplift Board policy permitted teachers to be alone with students in secluded environments

within their darkened classrooms,” and that the sexual abuse in this case resulted from

Uplift’s failure to adopt “any policy prohibiting teachers from dimming or turning off their

classroom lights, barring teachers from being alone in secluded classrooms with students, or

preventing teachers from maintaining features in their classrooms that would keep sexual

abuse hidden.”15 P. Br. (ECF No. 138) at 35.

1

In instances where the policymaker “fails to act affirmatively at all”—i.e., where there

is no policy—the “official policy” requirement may be met “if the need to take some action

14Uplift challenges J.T.’s equal protection claim as duplicative of her substantive due

process claim, D. Br. (ECF No. 119) at 32-33 & 32 n.50, but does not maintain that Wazed

did not violate her right to substantive due process. Because the court is granting summary

judgment on a different basis, it will assume without deciding that Wazed’s sexual assaults

of M.L. deprived her of a Fourteenth Amendment right secured by the Constitution.

15Uplift argues in its reply that J.T. did not plead an “absence of policy” theory in her

second amended complaint and that she cannot raise a new theory of liability in her response.

Because the court is granting Uplift’s motion for summary judgment on this theory of

liability, it will assume arguendo that it has been adequately pleaded.

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to control the agents of the local governmental entity ‘is so obvious, and the inadequacy [of

existing practice] so likely to result in the violation of constitutional rights, that the

policymake[r] . . . can reasonably be said to have been deliberately indifferent to the need.’”

Burge v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999) (alteration in original)

(quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). As with J.T.’s failure-to-train

theory, which the court addresses below, see infra § IV(D), to succeed on her insufficient-

policy theory, J.T. must establish that Uplift acted with deliberate indifference. See Porter

v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (“Liability for failure to promulgate policy and

failure to train or supervise both require that the defendant have acted with deliberate

indifference.”).

“A failure to adopt a policy can be deliberately indifferent when it is obvious that the

likely consequence[] of not adopting a policy will be a deprivation of constitutional rights.”

Id. (quoting Rhyne v. Henderson Cnty., 973 F.2d 386, 392 (5th Cir. 1992)). “Deliberate

indifference is a high standard—‘a showing of simple or even heightened negligence will not

suffice.’” Valle, 613 F.3d at 542 (quoting Piotrowski, 237 F.3d at 579). To establish

deliberate indifference, J.T. must show that Uplift had “actual or constructive notice” that a

particular omission in policy would cause its “employees to violate citizens’ constitutional

rights” and that it still chose to omit that policy. See Porter, 659 F.3d at 447 (quoting

Connick v. Thompson, 563 U.S. 51, 61 (2011)); see also Connick, 563 U.S. at 62 (A “‘policy

of inaction’ in light of notice that its program will cause constitutional violations ‘is the

functional equivalent of a decision by the [defendant] itself to violate the Constitution.’”

- 27 -

(citation omitted)).

A plaintiff may show deliberate indifference in either of two ways. “First, a plaintiff

may demonstrate ‘that a municipality had notice of a pattern of similar violations.’”

Davidson v. City of Stafford, 848 F.3d 384, 397 (5th Cir. 2017) (quoting Kitchen v. Dall.

Cnty., 759 F.3d 468, 484 (5th Cir. 2014)) (failure-to-train case). “Second, a plaintiff may

demonstrate liability based on a single incident if the constitutional violation was the highly

predictable consequence of a particular failure [to promulgate a policy].” Id. (internal

quotation marks omitted) (quoting Kitchen, 759 F.3d at 484).

2

J.T. does not contend that the Uplift Board had notice of a pattern of similar instances

of teacher-on-student sexual abuse within its campuses. Accordingly, to prevail on her

inadequate-policy theory of liability, J.T. must adduce evidence that the constitutional

violation in this case was the “highly predictable consequence” of Uplift’s failure to

promulgate the suggested policies—i.e., policies prohibiting teachers from dimming or

turning off classroom lights, being alone in secluded classrooms with students, or

maintaining features in their classrooms that would hide sexual abuse. Davidson, 848 F.3d

at 397.

In her response brief, J.T. relies on the opinion of her expert, John F. Doherty, Ed.D.

(“Dr. Doherty”), to argue that there was an “obvious risk of sexual abuse created by the

activities [Uplift] tolerated.” P. Br. (ECF No. 138) at 36. She quotes from Dr. Doherty’s

expert report, in which he opines:

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Uplift failed to effectively implement its physical safety policy

which prohibited classroom teachers from having secluded areas

and/or darkened rooms, which in the field of education is

considered a red flag and may encourage and provide an

opportunity for sexual abuse and/or other misconduct by adults

toward children.

P. App. (ECF No. 141) at 329. But Dr. Doherty’s opinion that permitting secluded areas or

darkened rooms is considered a “red flag” in the field of education that “may” encourage and

provide an opportunity for abuse is insufficient to enable a reasonable jury to find that Uplift

knew or should have known that its failure to adopt the specific policies J.T. describes was

highly likely to result in the sexual abuse of its students, including M.L.16

J.T. fails to point to any other evidence that would support the reasonable finding that

the sexual abuse of students was a “highly predictable consequence” of Uplift’s failure to

adopt a policy specifically prohibiting teachers from dimming or turning off classroom lights,

being alone in secluded classrooms with students, or maintaining features in their classrooms

that would keep sexual abuse hidden. Accordingly, the court grants Uplift’s motion for

summary judgment on J.T.’s § 1983 claim to the extent it is based on an insufficient-policy

theory.

16J.T. contends that it was “obvious to the Carrollton Independent School District . .

. that dark and secluded classrooms presented a risk of abuse.” P. Br. (ECF No. 138) at 36.

The evidence she cites in support of this proposition, however, is insufficient to create a

genuine issue of material fact. Wazed’s after-the-fact speculation, based on his own

experience, that sexual abuse “can happen when lights are dimmed in classrooms,” P. App.

(ECF No. 141) at 128, would not enable a reasonable jury to find that the sexual abuse of

students was a “highly predictable consequence” of Uplift’s failure to adopt a policy

prohibiting teachers from dimming or turning off the lights in their classrooms.

- 29 -

C

J.T. contends next that Uplift maintained a persistent, widespread custom of

facilitating Wazed’s sexual abuse of his students.

1

Uplift points to the absence of evidence of a widespread pattern of sexual abuse to

show a board custom, and it contends that there are no allegations or evidence that the Uplift

Board was ever aware of any widespread pattern of educator sexual misconduct with students

or inappropriate response to such allegations.

J.T. responds that Uplift had an “informal custom or practice” of tolerating and

facilitating Wazed’s abuse of the children in his charge; that the evidence shows that Wazed

sexually abused at least seven girls, “and perhaps . . . all the girls in his class,” P. Br. (ECF

No. 138) at 39; that the evidence reasonably suggests that Wazed could have engaged in

hundreds of acts of abuse during his 1½ years at Uplift; that Uplift’s custom or practice

extended to covering up known instances of sexual abuse by any available means after

August 2019; that, at a minimum, the Uplift Board had constructive knowledge of Wazed’s

abuse because “the Board would have surely noticed the signs of Wazed’s sexual abuse of

his students if it had even made casual visits to the school, given that the signs of his abuse

were observable to anyone walking down the hallway, and appeared possibly several times

a week,” id. at 41-42; and that Uplift’s “customary laxity” was the moving force behind

Wazed’s unconstitutional sexual abuse of M.L. “because Wazed’s abuse required the

seclusion that Uplift’s customary laxity permitted.,” id. at 42.

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2

“An official policy ‘usually exists in the form of written policy statements, ordinances,

or regulations, but may also arise in the form of a widespread practice that is so common and

well-settled as to constitute a custom that fairly represents municipal policy.’” Covington

v. City of Madisonville, 812 Fed. Appx. 219, 225 (5th Cir. 2020) (per curiam) (quoting James

v. Harris Cnty., 577 F.3d 612, 617 (5th Cir. 2009)). A “pattern of conduct” is necessary

when the municipal actors are not policymakers. Zarnow v. City of Wichita Falls, 614 F.3d

161, 169 (5th Cir. 2010). “A pattern requires similarity and specificity; [p]rior indications

cannot simply be for any and all ‘bad’ or unwise acts, but rather must point to the specific

violation in question. . . . A pattern also requires ‘sufficiently numerous prior incidents,’ as

opposed to ‘isolated instances.’” Peterson v. City of Fort Worth, 588 F.3d 838, 851 (5th Cir.

2009) (citations omitted). If actions of city employees are to be used to prove a custom for

which the municipality is liable, those actions “must have occurred for so long or so

frequently that the course of conduct warrants the attribution to the governing body of

knowledge that the objectionable conduct is the expected, accepted practice of city

employees.” Id. at 850.

3

The court will assume arguendo that Wazed did engage in hundreds of acts of abuse

during his 1½ year tenure at Uplift, as J.T. argues, and that at least one other person (Walker)

witnessed and failed to report his abuse. Even so, a reasonable jury could not find, based on

these facts, that Uplift had a custom of tolerating the sexual abuse of its students. J.T. has

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not produced evidence that any other teacher at Uplift sexually abused his or her students or

that any other teacher at Uplift (or person with greater responsibility, such as the Academic

Director) witnessed and failed to report a teacher’s sexual abuse. The summary judgment

evidence would only permit the reasonable finding that one Uplift classroom teacher

repeatedly abused his students and that, on one occasion, an Uplift Teacher Aide witnessed

and failed to report that abuse. “[I]solated acts” such as these cannot establish the existence

of a custom or practice. Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003).

And J.T. has failed to adduce sufficient evidence to support the reasonable finding that

tolerance of sexual abuse is the expected, accepted practice of Uplift employees. Peterson,

588 F.3d at 851.17

Even if a widespread pattern or practice could be established by evidence of a single

teacher’s repeated acts of sexual abuse, Uplift would still be entitled to summary judgment

on J.T.’s § 1983 claim because J.T. has failed to adduce any evidence that any member of the

Uplift Board had actual or constructive knowledge that Wazed was sexually abusing

students. “Actual or constructive knowledge of [a] custom must be attributable to the

17J.T. argues in her response brief that “[i]n denying Uplift’s motion to dismiss

Plaintiff’s Second Amended Complaint, the Court held that if this custom turned out to be

as ‘persistent and widespread’ as Plaintiff alleged in that complaint, then Plaintiff would be

able to recover on a section 1983 claim.” P. Br. (No. 138) at 39. But in denying Uplift’s

motion to dismiss J.T.’s second amended complaint, the court accepted as true J.T.’s

allegation that Uplift had a “persistent and widespread custom of tolerating and facilitating

Wazed’s sexual abuse of young girls in his charge.” J.T. II, 2022 WL 283022, at *2. At the

summary judgment phase, the court is not required to accept this allegation as true, and J.T.

is obligated to introduce evidence that raises a genuine issue of material fact.

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governing body of the municipality or to an official to whom that body had delegated

policy-making authority.” Webster, 735 F.2d at 841. Although actual knowledge on the part

of the policymaker must be shown directly, “[c]onstructive knowledge may be attributed to

the governing body on the ground that it would have known of the violations if it had

properly exercised its responsibilities.” Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir.

1984) (en banc).

J.T. does not contend that the Uplift Board had actual knowledge of Wazed’s repeated

acts of sexual abuse. Nor does she maintain that, had it properly exercised its

responsibilities, the Uplift Board would have known that Wazed was sexually abusing his

students. She instead argues that

the Board would have surely noticed the signs of Wazed’s

sexual abuse of his students if it had even made casual visits to

the school, given that the signs of his abuse were observable to

anyone walking down the hallway, and appeared possibly

several times a week. They would have been just as easy to

discover as “public” conversations floating in the hallway or

traveling through the staff breakroom.

P. Br. (ECF No. 138) at 41-42. But J.T.’s speculation about what a member of the Uplift

Board “surely” would have seen by visiting the Grand Primary campus is not sufficient to

defeat summary judgment. See Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003)

(“Unsubstantiated assertions, improbable inferences, and unsupported speculation are not

sufficient to defeat a motion for summary judgment.”). Moreover, to the extent that the

phrase “signs of Wazed’s sexual abuse” refers to the conditions of Wazed’s classroom, a

reasonable jury could not find that these conditions were the “moving force” behind Wazed’s

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sexual abuse. See, e.g., Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 280 (5th

Cir. 2015) (“The ‘moving force’ inquiry imposes a causation standard higher than ‘but for’

causation.” (citation omitted)); Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir.

1992) (“[A] direct causal connection must exist between the policy and the alleged

constitutional deprivation. This connection must be more than a mere ‘but for’ coupling

between cause and effect. To form the basis of liability under § 1983, a municipal policy

must be affirmatively linked to the constitutional violation and be the moving force behind

it.” (citations omitted)). A reasonable jury could only find that Wazed’s classroom

conditions were merely the tools that Wazed used to hide his illegal, predatory conduct.

Accordingly, even if the evidence would enable a reasonable jury to find that the Uplift

Board had constructive knowledge of the conditions of Wazed’s classroom, a reasonable jury

could not find that the Uplift Board had constructive knowledge of any custom that was the

moving force behind the violation of M.L.’s constitutional right. Accordingly, the court

holds that Uplift is entitled to summary judgment dismissing J.T.’s § 1983 claim to the extent

it is based on an alleged custom or practice.

D

J.T. also asserts failure-to-train and failure-to-supervise theories of liability under

§ 1983.

1

“[T]here are limited circumstances in which an allegation of a ‘failure to train’ [or

failure to supervise] can be the basis for liability under § 1983.” City of Canton, 489 U.S.

- 34 -

at 387. To succeed on a failure-to-train or failure-to-supervise claim, a plaintiff must be able

to show: (1) the training procedures or supervision of employees was inadequate, (2) a causal

link between such failure and the violation of plaintiff’s constitutional rights, and (3) such

failure amounts to deliberate indifference. Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th

Cir. 2009) (citation omitted). “‘Deliberate indifference’ is a stringent standard of fault,

requiring proof that a municipal actor disregarded a known or obvious consequence of his

action.” Connick, 563 U.S. at 61 (brackets and citation omitted). Thus when a

municipality’s policymakers are on actual or constructive notice that a particular omission

in their training program causes municipal employees to violate citizens’ constitutional

rights, the municipality may be deemed deliberately indifferent if the policymakers choose

to retain that program. Id.

As with inadequate policy cases, “[p]roof of more than a single instance of the lack

of training or supervision causing a violation of constitutional rights is normally required

before such lack of training or supervision constitutes deliberate indifference.” Thompson

v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 2001). In the absence of a pattern of similar

violations, a plaintiff may sometimes “establish deliberate indifference through the

single-incident exception.” Hutcheson v. Dall. Cnty., 994 F.3d 477, 482 (5th Cir. 2021). To

fit within this “extremely narrow” exception, the plaintiff must show “that the highly

predictable consequence of a failure to train would result in the specific injury suffered.”

Valle, 613 F.3d at 549 (emphasis omitted). “For a violation to be ‘highly predictable,’ the

municipality ‘must have failed to train its employees concerning a clear constitutional duty

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implicated in recurrent situations that a particular employee is certain to face.’” Hutcheson,

994 F.3d at 482-83 (quoting Littel v. Hous. Indep. Sch. Dist., 894 F.3d 616, 624-25 (5th Cir.

2018)). “The single-incident exception ‘is generally reserved for those cases in which the

government actor was provided no training whatsoever.’” Id. at 483 (quoting Peña v. City

of Rio Grande City, 879 F.3d 613, 624 (5th Cir. 2018)). Similarly, to establish liability for

a failure to supervise, “it must have been obvious that the highly predictable consequence of

not [supervising the employees] was that they would” commit the specific constitutional

violation alleged. Peterson, 588 F.3d at 849 (internal quotation marks and citation omitted).

2

Uplift moves for summary judgment on J.T.’s § 1983 claim based on an alleged

failure to train and supervise, contending, inter alia, that it did train Wazed and informed

him that Uplift prohibits sexual abuse; that J.T. cannot identify any deficiencies in the

training provided to Uplift employees; that even if J.T. could show an inadequacy in Uplift’s

training of its employees, there is no evidence that the Uplift Board knew of such inadequacy

and responded with deliberate indifference; that the evidence shows that Uplift’s

administrators did supervise the teachers at Grand Primary; and that even if J.T. could show

an inadequacy in supervision, there is no evidence that the Uplift Board was aware of any

deficiency and responded with deliberate indifference.

J.T. responds that Uplift’s training and supervision of Wazed were inadequate because

Uplift failed to inform its teachers that they should not darken their classrooms or erect

barriers creating areas of seclusion within them, failed to train its staff to be on the lookout

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for such features and react to them, and failed to ensure that its administrators actually

patrolled with enough vigilance to see those features; that “the requisite ‘knowledge’ can be

demonstrated through Uplift’s ‘constructive knowledge,’ which Uplift Board members would

have acquired if they ever walked the halls and saw the obvious almost daily signs of

Wazed’s abuse,” P. Br. (ECF No. 138) at 43; that the training and supervision failures at

issue in this case “directly caused” the violation because Wazed testified that he would have

followed such training and been deprived of the temptation to abuse his students; that there

is a material issue of disputed fact about whether Wazed received any training on sexual

abuse; that if Uplift administrators had been required to conduct patrols of the hallways, look

for features of a secluded classroom environment, and take action to prevent them, M.L.

would not have been assaulted; and that Uplift acted with “deliberate indifference” under the

“single incident” exception because there is a direct line between Uplift’s failure to enforce

its policies for protecting student safety and the violations of student safety that resulted and

there is evidence that Wazed received “no training whatsoever” on sexual harassment and

avoiding environments of seclusion that create the risk of abuse.

3

The court holds that Uplift is entitled to summary judgment on J.T.’s § 1983 claim

based on an alleged failure to train or supervise. Uplift has presented evidence that it had

several policies in place to prevent the sexual abuse of its students. As a condition of

accepting his offer of employment, Uplift required Wazed to acknowledge its policy

prohibiting discrimination and harassment, including sexual harassment, and to agree to

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comply with the Employee Handbook. Before each school year, Uplift provided Wazed

training on recognizing and reporting suspected child abuse and its prohibition of sexual

harassment, and Wazed passed quizzes to show he understood the materials. Wazed also

attended training by Grand Primary’s Social Counselor on CPS reporting, and, each year,

Wazed acknowledged that he reviewed and would comply with the Employee Handbook,

including the prohibition of student harassment and obligation to report threats to students.

Regarding the supervision of teachers, Uplift has presented evidence that it expects

Academic Directors and Deans to routinely enter classrooms and walk the hallways of their

campus every day, unless other obligations prevent them from doing so; that Grand Primary’s

leadership made it a practice to walk the halls on a daily basis; and that Administrators

conducted multiple formal observations of Wazed’s teaching performance each school year,

in excess of the minimum required under Texas law in traditional public schools. In the face

of this evidence, J.T. has failed to create a genuine issue of material fact on the question

whether Uplift was deliberately indifferent to the risk of sexual abuse of its students.

J.T. focuses her response arguments on Uplift’s alleged failure to train and supervise

regarding the conditions of Wazed’s classroom, arguing that

Uplift failed to convey any expectation to Wazed or other

teachers that they should not darken their classrooms or erect

barriers creating areas of seclusion within them. Uplift also

failed to convey any expectation to Wazed’s supervisors that

they must be on the lookout for such features and practices and

react to them. And Uplift failed to ensure that administrators

actually patrolled with enough vigilance to see those features.

P. Br. (ECF No. 138) at 43. But she has not adduced any evidence of a pattern of prior

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incidents of sexual abuse that had anything to do with classroom lighting or barriers or

evidence that the Uplift Board was aware of any such prior incidents and deliberately chose

to do nothing. See Thompson, 245 F.3d at 459.

To the extent that J.T. attempts to rely on the “extremely narrow” single incident

exception, Valle, 613 F.3d at 549, she has not adduced any proof that Uplift failed to provide

any training whatsoever “concerning a clear constitutional duty implicated in recurrent

situations that a particular employee is certain to face,” City of Canton, 489 U.S. at 396

(O’Connor, J., concurring). And she has failed to introduce any evidence to support her

conclusory assertion that “there is a direct line between Uplift’s failure to enforce its policies

for protecting student safety, and the violations of student safety that resulted.” P. Br. (ECF

No. 138) at 46. Moreover, as discussed above, see supra § IV(B)(2), based on the summary

judgment record, a reasonable jury could not find that the sexual assault of students was the

“highly predictable consequence” of a failure to train and supervise teachers on how they

lighted and laid out their classrooms.

Accordingly, because a reasonable jury could not find that Uplift acted with deliberate

indifference in failing to train or supervise its employees, the court grants Uplift’s motion for

summary judgment with respect to J.T.’s § 1983 failure to train or supervise claim.

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* * *

Accordingly, for the reasons explained, the court grants Uplift’s motion for summary

judgment and dismisses this action with prejudice by judgment filed today.

SO ORDERED.

June 27, 2023.

if 4

Ane, JA ood AP HA MMA

DNPW A. FITZWATERS

SENIOR JUDGE

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