Bichel v. Kennedale Independent School District

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MERRITT BICHEL, §

§

Plaintiff, §

§

v. § Civil Action No. 4:23-cv-00804-BP

§

KENNEDALE INDEPENDENT § (Consolidated with Civil Action No. 4:23-

SCHOOL DISTRICT, et al., § 00886-BP)

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court are Defendant Kennedale Independent School District’s (“KISD’s”)

Motion to Dismiss Plaintiff’s Complaint and supporting brief, filed August 28, 2023 (ECF Nos. 9,

10); Plaintiff Merritt Bichel’s Response and Brief in Opposition, filed September 19, 2023 (ECF

No. 12); and Defendant [KISD’s] Reply Brief, filed September 27, 2023 (ECF No. 13). Also

pending in Cause No. 4:23-cv-00886 (“the Consolidated Case”) are Defendant Dr. Stephanie

Devlin’s Motion to Dismiss Plaintiff’s Original Petition For Declaratory Judgment and supporting

brief, filed August 28, 2023 (ECF Nos. 3, 4); Plaintiff’s Response and Brief in Opposition, filed

September 18, 2023 (ECF No. 6); and Defendant Dr. Devlin’s Reply Brief, filed September 29,

2023 (ECF No. 7). After considering the pleadings and applicable legal authorities, the Court

GRANTS the Motions and DISMISSES Plaintiff’s claims WITH leave to amend them, except

as to Plaintiff’s Title IX claims against Dr. Devlin, which are DISMISSED WITHOUT leave to

amend.

I. BACKGROUND

Plaintiff Merritt Bichel (“Bichel”) alleges that while attending Kennedale High School, she

“was the subject of a Title IX violation as a result of interactions with another student at the school

which was not investigated according to Title IX requirements and the school policies of [KISD].”

ECF No. 3 at 1. Bichel alleges that she was “bullied and sexually harassed by several students at

Kennedale High School,” one of whom was an adult at the time, and she reported this “to her

school counselor and principal.” Id. at 2. Although the bullying allegations resulted in a “protracted

investigation,” “the sexual assault allegations, which were violations of the [KISD] Student Code

of Conduct, were not properly investigated according to the [KISD] School Board Policy FHH.”

Id. at 2-3. Bichel alleges that although KISD and its Academic Dean contacted the Title IX

coordinator and the alleged perpetrator’s parents, the “Academic Dean never spoke to [Bichel] or

her parent about the violations.” Id. at 4-5. “Due to [KISD]’s lack of action, [Bichel] was subjected

to a hostile environment, including several students actively harassing [her].” Id. at 3.

On August 2, 2023, Bichel sued KISD in this Court. ECF No. 1. She sued under Title IX

of the Education Amendments of 1972 (20 U.S.C. § 1681 et. seq.), also referencing “the denial of

[her] equal protection rights, procedural due process violations, and substantive due process

violations under the Fourteenth Amendment to the U.S. Constitution.” ECF No. 3 at 1-2. Bichel

also alleges violations of KISD’s codes of conduct and handbooks, as well as violations of Title

IX regulations, specifically 34 C.F.R. § 106.45(a) (“A recipient’s treatment of a complainant or a

respondent in response to a formal complaint of sexual harassment may constitute discrimination

on the basis of sex under Title IX.”). Id. at 4. She alleges that KISD “was required to offer [her]

supportive measures as defined in 34 C.F.R. § 106.30.” Id. Additionally, Bichel alleges that under

Title IX regulations, KISD “was required to apply any provisions, rules, or practices adopted by

[KISD] as a part of its grievance process for handling formal complaints of sexual harassment as

defined by 34 C.F.R. § 106.30, equally to both the complainant and the respondent.” Id. at 5. She

alleges that KISD’s “actions and lack of actions amount to deliberate indifference in light of the

known circumstances.” Id. at 8.

On August 28, 2023, KISD moved to dismiss Bichel’s complaint for failure to state a claim

as required under Fed. R. Civ. P. 12(b)(6). ECF No. 9. KISD argues that Bichel’s claims for

violations of her substantive due process, procedural due process, and Equal Protection Clause

rights are unsupported. ECF No. 10 at 4-6. KISD also asserts that even if Bichel had pleaded facts

to support these constitutional claims, it is not liable under a respondeat superior or municipal

liability theory. Id. at 7. KISD seeks dismissal of Bichel’s Title IX claims because the Complaint

contains “nothing more than a boilerplate recitation of Title IX law,” rather than facts supporting

each of the required elements for a school district to be liable for student-on-student harassment.

Id. at 8. KISD also complains that “the Court cannot even determine the identity of the alleged

harassers” or “whether the harassment is actionable . . . given that [Bichel] provided no details of

the alleged harassment, how long the harassment occurred, whether the harassment continued after

she made a report, or who had actual knowledge of the alleged conduct.” Id. Bichel responds that

KISD misconstrues her argument and that “[i]t is precisely [KISD]’s treatment of [Bichel] in

response to a formal complaint of sexual harassment which is the subject matter of [her] suit, not

student-on-student harassment.” ECF No. 12 at 16.

Bichel also brings similar claims against Dr. Stephanie Devlin, KISD’s Director of

Counseling, in the Consolidated Case. In that suit, Bichel seeks “a declaration that [Dr. Devlin]

violated [her] constitutional right to an education by failing to comply with Title IX . . ., 34 C.F.R.

§ 106.45(a)[,] and [ ] 34 C.F.R. § 106.30, and [KISD’s] 2020-2021 Student Code of Conduct.”

ECF No. 1-8 at 2. Dr. Devlin moved to dismiss the case, arguing that qualified immunity applies

to her actions, that Bichel fails to state a claim that her constitutional rights were violated, and that

any Title IX claims against her should be dismissed (presumably because she is an individual).

ECF Nos. 3-4. Dr. Devlin also argues that declaratory relief is inappropriate given the facts of the

case. ECF No. 4.

On October 13, 2023, the Court consolidated the two cases into a single action. Devlin ECF

No. 12. The Motions to Dismiss in both cases are now ripe for the Court’s review.

II. LEGAL AUTHORITIES

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of complaints that fail to state

a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To state a viable claim for relief,

a complaint must include sufficient factual allegations “to raise a right to relief above the

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering a Rule

12(b)(6) motion, courts must “take all well-pleaded facts as true, viewing them in the light most

favorable to the plaintiff ... and ask whether the pleadings contain ‘enough facts to state a claim to

relief that is plausible on its face.’” Yumilicious Franchise, LLC v. Barrie, 819 F.3d 170, 174 (5th

Cir. 2016) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A statute of

limitations may support dismissal under Rule 12(b)(6) when it is evident from the plaintiff's

pleadings that the action is barred, and the pleadings fail to raise some basis for tolling or avoidance

of the bar. Jones v. ALCOA, Inc., 339 F.3d 359, 366 (5th Cir. 2003).

III. ANALYSIS

A. Bichel has not plausibly claimed a violation of her constitutional rights.

i. She has not adequately shown a constitutional violation.

Bichel has not properly pleaded facts to show a violation of her rights under the Due

Process or Equal Protection Clauses. First, she has not stated a plausible procedural due process

claim. The Due Process Clause provides that “[n]o State shall . . . deprive any person of life, liberty,

or property without due process of law.” U.S. Const. amend. XIV, § 1. “[A] student’s legitimate

entitlement to a public education” is a “property interest which is protected by the Due Process

Clause.” Goss v. Lopez, 419 U.S. 565, 574 (1975); see also Babinski v. Sosnowski, 79 F.4th 515,

523 (5th Cir. 2023) (explaining that students “have a Fourteenth Amendment right to some degree

of procedural due process before or shortly after university officials take certain adverse actions

against them.”).

For her procedural due process claim, Bichel argues that “[s]exual assault allegations were

not properly investigated” and that “Defendant’s delays and failures to act denied [Bichel] the right

to access [ ] the educational opportunities or benefits provided by the school.” ECF No. 12 at 10,

11. To substantiate this argument, she raises possible defects in the investigation process. Id. at 7-

10. She alleges that “[KISD]’s Academic Dean never spoke to [her] or her parents about the

violations,” which, the Court notes, may have deprived her of “the opportunity to be heard at a

meaningful time and in a meaningful manner.” Id. at 8; Shah v. Univ. of Tex. Sw. Med. School, 129

F. Supp. 3d 480, 497 (N.D. Tex. 2015) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

However, Bichel’s assertion that “[d]ue to Defendant’s lack of action, [she] was subjected to a

hostile environment, including several students actively harassing [her]” is not detailed enough to

demonstrate under Twombly and Iqbal that KISD, through its investigation process, deprived her

of her property interest in a legitimate entitlement to a public education. Goss, 419 U.S. at 574;

Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. Without more facts about the ensuing “hostile

environment,” the Court cannot find that the potentially defective process ultimately resulted in a

deprivation of rights. Accordingly, Bichel has not stated a plausible procedural due process claim.

Likewise, she has not stated a plausible substantive due process claim. The Supreme Court

has recognized that the Due Process Clause contains a substantive component “protect[ing] against

government interference with certain fundamental rights and liberty interests,” particularly those

that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of

ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 720, 721 (1997). These interests include

the right “to marry, to have children, to direct the education and upbringing of one’s children, to

marital privacy,” and other similar rights. Id. at 720. “In order to hold the State liable for violating

plaintiffs’ substantive due process rights, plaintiffs are required to demonstrate that the State's

conduct shocks the conscience.” M.D. by Stukenberg v. Abbott, 907 F.3d 237, 253 (5th Cir. 2018)

(internal citations and quotations omitted).

The flaws in Bichel’s substantive due process argument result, at least in part, from

conflating procedural and substantive due process. Bichel correctly notes that a “student’s

legitimate entitlement to a public education” is a “property interest which is protected by the Due

Process Clause.” ECF No. 12 at 11; Goss, 419 U.S. at 574. But the fact that an entitlement to a

public education is a property interest protected by procedural due process guarantees does not

automatically make it a “fundamental right” or “liberty interest” protected by substantive due

process guarantees. Id.; Glucksberg, 521 U.S. at 720. In San Antonio Independent School District

v. Rodriguez, the Supreme Court “carefully considered each of the arguments supportive of the

District Court's finding that education is a fundamental right or liberty and [ ] found those

arguments unpersuasive.” 411 U.S. 1, 37 (1973). Therefore, Bichel has not explained how

Defendants violated her substantive due process rights under the Twombly and Iqbal standards.

Second, Bichel has not stated a plausible claim under the Equal Protection Clause. The

Equal Protection Clause prevents States from denying any person within their jurisdiction the

“equal protection of the laws.” U.S. Const. amend. XIV, § 1. To state a claim under the Equal

Protection Clause, Bichel must allege that she (1) “received treatment different from that received

by similarly situated individuals” and (2) “the unequal treatment stemmed from a discriminatory

intent.” Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 412 (5th Cir. 2015) (internal citations

and quotations omitted). To establish discriminatory intent, Bichel must show “that the decision

maker singled out a particular group for disparate treatment and selected [its] course of action at

least in part for the purpose of causing its adverse effect on an identifiable group.” Id. However,

Bichel’s pleadings do not meet this standard. She pleads that “[KISD] discriminated against her

by not properly investigating her Title IX complaint because of her gender,” but she does not

explain or substantiate this claim further, either in her Amended Complaint or her Reply. ECF No.

12 at 14. Accordingly, Bichel has not explained how Defendants violated her Equal Protection

rights.

Finally, Bichel’s threadbare pleadings in the Consolidated Case also do not state

constitutional claims against Dr. Devlin. Because Dr. Devlin pleaded qualified immunity to

Bichel’s claims, Bichel would not only need to show that Dr. Devlin violated one of her

constitutional rights, but also that that right was clearly established at the time of Dr. Devlin’s

alleged misconduct. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). Bichel has not pleaded

facts to meet either prong. Therefore, Bichel’s constitutional claims against Dr. Devlin also should

be dismissed.

ii. She has not adequately shown KISD’s municipal liability.

Bichel also has not pleaded facts to show KISD’s liability. Like other school districts,

KISD “cannot be held liable under Section 1983 on a theory of respondeat superior for the actions

of its employees.” Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir. 1995); see also

Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978) (“[A] municipality cannot

be held liable under § 1983 on a respondeat superior theory.”). Therefore, the Court focuses on

the issue of municipal liability.

To plead municipal liability under § 1983, Bichel must allege “(1) an official policy (2)

promulgated by the municipal policymaker (3) was the moving force behind the violation of a

constitutional right.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009).

The first element requires Bichel to show an official policy. The definition of “official

policy” applies not only to municipalities, but also to school districts. Eugene, 65 F.3d at 1304. An

official policy is:

1. A policy statement, ordinance, regulation, or decision that is officially

adopted and promulgated by the municipality’s lawmaking officers or by

an official to whom the lawmakers have delegated policy-making authority;

or

2. 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. Actual or constructive knowledge of such custom must

be attributable to the governing body of the municipality or to an official to

whom that body had delegated policy-making authority.

Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); Eugene, 65 F.3d at 1304.

The second element of a § 1983 municipal liability claim requires the plaintiff to plead that

the person acting on behalf of the municipality was an official policymaker. Peterson, 588 F.3d at

847. The policymaker must have final policymaking authority and take the place of the governing

body in a designated area of the municipality’s administration. City of St. Louis v. Praprotnik, 485

U.S. 112, 127 (1988); Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984); Bennett v.

City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984). A municipality’s governing body may delegate

policymaking authority expressly or implicitly. Bennett, 728 F.2d at 769. Under Texas law, an

independent school district’s final policymaking authority rests with the district's board of trustees.

Jett v. Dall. Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993).

The third element requires Bichel to show that a policy is the moving force behind a

constitutional violation. Peterson, 588 F.3d at 847. To do so, she must show “a direct causal link

between the municipal policy and the constitutional deprivation.” Piotrowski, 237 F.3d at 580. For

an official policy to be the moving force behind a constitutional violation, the policymaker must

have acted with “deliberate indifference” to the policy’s known or obvious unconstitutional

consequences. Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997). To act with

deliberate indifference, a state actor must know of and disregard an excessive risk to the victim’s

health or safety. Id; see McClendon v. City of Columbia, 305 F.3d 314, 326 n.8 (5th Cir. 2002).

To demonstrate that she met these standards, Bichel briefly argues “that the numerous

employees of [KISD] who failed to comply with Title IX and [KISD]’s own policies regarding

Title IX complaints amounts to [a] custom adopted with deliberate indifference by the District’s

ISD Board of Trustees.” ECF No. 12 at 15. She also explains that KISD’s “acts and omissions

[that] created a hostile learning environment, failed to provide remedies to [Bichel], and violated

[Defendant KISD’s] own policy regarding the length of the investigation are so extreme and

unconscionable[ ] that such actions show [ ] conscious indifference.” ECF No. 3 at 6. These

conclusory assertions do not meet the plausibility standards set forth in Twombly and Iqbal and do

not sufficiently plead the facts necessary to support Bichel’s claims of municipal liability.

B. Bichel has not pleaded a plausible case for violation of Title IX.

Under Title IX, “[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 subject to discrimination under any program

or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). An implied private right

of action exists to enforce Title IX, and monetary damages are available. Gebser v. Lago Vista

Indep. Sch. Dist., 524 U.S. 274, 281 (1998) (citing Cannon v. Univ. of Chi., 441 U.S. 677 (1979)).

Under Title IX, Bichel must show that the alleged discrimination against her was

intentional. Walter v. Birdville Indep. Sch. Dist., No. 4:18-cv-301-A, 2018 WL 3974714, at *2

(N.D. Tex. Aug. 20, 2018) (citing Fort v. Dall. Indep. Sch. Dist., 82 F.3d 414, 1996 WL 167072,

at *3 (5th Cir. 1996)). “To violate Title IX, a funding recipient need not have intended to violate

Title IX, but need only have intended to treat women differently.” Poloceno v. Dall. Indep. Sch.

Dist., No. 3:18-cv-01284-E, 2019 WL 7305216, at *2 (N.D. Tex. Dec. 30, 2019), aff'd, 826 F.

App'x 359 (5th Cir. 2020) (citing Pederson v. La. State Univ., 213 F.3d 858, 881 (5th Cir. 2000)).

Various theories of liability can support recovery under Title IX. “A plaintiff can bring a

Title IX claim when there is an official policy of intentional discrimination by an institution.”

Poloceno, 2019 WL 7305216, at *2 (citing Gebser, 524 U.S. at 290). “A plaintiff can also bring a

Title IX claim when an institution itself intentionally acted in clear violation of Title IX by

remaining deliberately indifferent to acts of discrimination of which it had actual knowledge.” Id.

(citing Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 639 (1999)). Title IX also “seeks to hold

an institution liable for teacher-on-student or student-on-student sexual harassment.” Doe #1 v.

Bd. of Supervisors of La. State Univ. and Agric. and Mech. Coll., No. 21-564-SDD-SDJ, 2022 WL

16701930, at *12 (M.D. La. Nov. 3, 2022) (citing Pederson, 213 F.3d at 882). “Retaliation for

making a complaint of sex discrimination also constitutes intentional discrimination in violation

of Title IX.” Id. (citing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 164 (2005)).

Overall, “liability under Title IX arises not from the discrimination or harassment itself but

from an official decision by the [funding] recipient not to remedy the violation.” Salazar v. South

San Antonio Indep. Sch. Dist., 953 F.3d 273, 278 (5th Cir. 2017). The failure to respond “must

amount to deliberate indifference to discrimination.” Id. at 290. However, a school district’s

failure to follow its own harassment policies is not itself sufficient to demonstrate Title IX liability.

Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 170 (5th Cir. 2011). “Title

IX does not require flawless investigations or perfect solutions.” Id. at 170.

Bichel appears to bring a claim under a deliberate indifference theory of Title IX liability,

but not one fundamentally based on student-on-student harassment. The parties agree that

[a] school district that receives federal funds may be liable for

student-on-student harassment if the district (1) had actual

knowledge of the harassment, (2) the harasser was under the

district’s control, (3) the harassment was based on the victim’s sex,

(4) the harassment was so severe, pervasive, and objectively

offensive that it effectively barred the victim’s access to an

educational opportunity or benefit, and (5) the district was

deliberately indifferent to the harassment.

Id. at 165; ECF No. 12 at 15-16. But Bichel attests that this is not the standard she wishes the Court

to apply. ECF No. 12 at 16.

More specifically, although KISD characterizes the Complaint as relating to liability for

student-on-student harassment (ECF No. 10 at 8), Bichel clarifies that she is not seeking to hold

KISD liable for the student-on-student harassment, but rather, for “[KISD]’s treatment of [her] in

response to a formal complaint of sexual harassment.” ECF No. 12 at 16. Bichel points to 34 C.F.R.

§106.45(a), which states, “A recipient’s treatment of a complainant or a respondent in response to

a formal complaint of sexual harassment may constitute discrimination on the basis of sex under

Title IX.” Id. Bichel also alleges that KISD failed to offer her supportive measures, pointing to 34

C.F.R. § 106.30. ECF No. 3 at 4; ECF No. 12 at 11; see also 34 C.F.R. § 106.45(b)(10)(ii)(“If a

recipient does not provide a complainant with supportive measures, then the recipient must

document the reasons why such a response was not clearly unreasonable in light of the known

circumstances.”). Bichel ultimately concludes that KISD’s “lack of investigation, failure to

provide supportive measures, and denial of [her] access to basic academic support was

unreasonable,” and that KISD’s “actions and lack of actions amount to deliberate indifference in

light of the known circumstances.” ECF No. 3 at 5.

To show deliberate indifference, Bichel must plead that an “appropriate person had

knowledge of the discrimination and responded with deliberate indifference.” Poloceno, 826 F.

App’x at 362 (internal citations and quotations omitted). Such discrimination must be intentional

and must be based on sex. Id. But Bichel has not pleaded facts to show deliberate indifference. She

has not set out facts to support a claim that Defendants intentionally treated her differently during

the investigation process on the basis of her sex.

KISD notes Bichel’s references to Title IX regulations and argues that there is no private

right of action to enforce Title IX’s administrative regulations. ECF No. 13 at 3; see also Gebser

v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292 (1998) (“We have never held, however, that the

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

sorts of administrative requirements.”). KISD is correct, but Bichel may refer to the regulations

not in isolation, but as part of a broader deliberate indifference argument. ECF No. 3 at 3-5.

In the Consolidated Case, Bichel arguably seeks to recover against Dr. Devlin under Title

IX. ECF No. 1-8. Such a claim must be dismissed. “Title IX reaches institutions and programs that

receive federal funds . . . but it has consistently been interpreted as not authorizing suit against

school officials, teachers, and other individuals.” Fitzgerald v. Barnstable Sch. Comm., 555 U.S.

246, 257 (2009) (internal citations and quotations omitted); see also Stollings v. Texas Tech Univ.,

No. 5:20-CV-250-H, 2021 WL 3748964 at *12 (N.D. Tex. Aug. 25, 2021) (applying Fitzgerald to

dismiss a Title IX claim against an individual). “A district court may refuse leave to amend if the

filing of the amended complaint would be futile, i.e., if the complaint as amended would be subject

to dismissal.” Varela v. Gonzales, 773 F.3d 704, 707 (5th Cir. 2014). Therefore, all Title IX claims

against Dr. Devlin should be dismissed with prejudice.

C. The Court grants Bichel leave to amend her First Amended Complaint against

KISD.

“[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading

deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs

advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal.”

Frias, et al. v. Hernandez, et al., No. 3:23-CV-0550-D, 2023 WL 7311193, at *4 (N.D. Tex. Nov.

6, 2023) (quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305,

329 (5th Cir. 2002)). Because Bichel has not stated that she cannot, or is unwilling to, cure the

defects that the court has identified in her pleadings against KISD, the Court grants her twenty-

one days from the date this Memorandum Opinion and Order is filed to file a second amended

complaint that addresses the deficiencies in her pleading against KISD noted above. Frias, 2023

WL at *4. Because Bichel cannot cure her claim under Title IX against Dr. Devlin, the Court does

not grant leave for her to amend that claim.

IV. CONCLUSION

Bichel has failed to state claims under the Constitution and under Title IX. She also has not

successfully pleaded facts to show KISD’s municipal liability. Therefore, the Court GRANTS

Defendant Kennedale Independent School District’s Motion to Dismiss Plaintiff’s Complaint

(ECF No. 9) and Defendant Dr. Stephanie Devlin’s Motion to Dismiss Plaintiff's Original Petition

For Declaratory Judgment (ECF No. 3) filed in the Consolidated Case, Cause No. 4:23-cv-00886.

Although the Court GRANTS the motions to dismiss, it allows Bichel to replead the claims

addressed in this Memorandum Opinion and Order, except as to the Title [X claims against Dr.

Devlin. Bichel SHALL FILE a second amended complaint that addresses the deficiencies noted

above on or before twenty-one days after the date of this Memorandum Opinion and Order.

It is so ORDERED on December 13, 2023.

Thal. ene he

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

14