Ayon v. Austin Independent

Case: 24-50267 Document: 100-1 Page: 1 Date Filed: 02/20/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

February 20, 2025

No. 24-50267 Lyle W. Cayce

____________ Clerk

Crystal Ayon, Mother of M.R.A., a minor child,

Plaintiff—Appellant,

versus

Austin Independent School District; Cesar Maldonado,

Individually; Rogelia Lopez, Individually; Claudia Santamaria,

Individually; Alex Phillips, Detective, Austin Independent School District

Police Department; Ashley Gonzalez, Police Chief, Austin Independent

School District Police Department,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:21-CV-209

______________________________

Before Elrod, Chief Judge, and Jones and Stewart, Circuit Judges.

Edith H. Jones:*

Cesar Maldonado repeatedly molested M.R.A. on the special-

education school bus that he drove for Austin Independent School District

_____________________

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited circumstances set

forth in 5th Circuit Rule 47.5.4.

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(“AISD”). He is now serving a twenty-year prison sentence after pleading

guilty to related charges. Crystal Ayon is the mother of M.R.A. She sued

AISD and several of its employees under 42 U.S.C. § 1983 and Title IX,

alleging that their deliberate indifference enabled the sexual assaults. The

district court entered judgment against Maldonado after he failed to appear,

dismissed the remaining individual defendants due to qualified immunity,

and granted summary judgment to AISD on the basis that there was

insufficient evidence of deliberate indifference. Ayon argues in this limited

appeal that there is a genuine dispute whether AISD acted with deliberate

indifference. We AFFIRM.

I.

M.R.A. is a minor with special needs related to a speech impediment.

Starting in 2018, when M.R.A. was five years old, she attended a special-

education program at Uphaus Early Childhood Center (“Uphaus”) in AISD.

She rode a bus specifically reserved for special-education students. Cesar

Maldonado was the bus driver. Regalia Lopez was the bus monitor.

Somewhere between 18,000 and 19,000 children depend on AISD buses for

their commute. AISD buses service several hundred regular routes. They

also are used for transporting students to approximately 8,000 athletic

events and field trips each year.

On May 25, 2018, shortly after she arrived home from school, M.R.A.

revealed to her mother, Ayon, that Maldonado had touched her private parts

on several occasions when she rode the bus. Ayon immediately shared this

information with the bus monitor. The next week, Ayon informed an Uphaus

administrator, who promptly relayed the information to AISD police.

Maldonado was placed on administrative leave while AISD police

investigated the allegations. Camera footage pulled from the bus confirmed

that Maldonado had assaulted M.R.A. multiple times in the preceding weeks.

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Each of the documented incidents occurred in the morning, in the time

between when Maldonado arrived at Uphaus and when school staff retrieved

the students from the bus.

AISD did not review the camera footage until after it received the

report. Nor did it employ anyone to regularly monitor camera footage from

its buses. The cameras installed in AISD buses do not support live

monitoring. And data storage limits only allowed AISD to review video

footage within about three weeks of recording.

AISD police interviewed the bus monitor, who maintained that she

had never witnessed Maldonado touch M.R.A. or received any complaints

about Maldonado. AISD protocol permitted bus monitors to get off the bus

at times (e.g., for a water or restroom break) so long as another adult

remained on the bus with the children. Maldonado later confessed that he

had inappropriately touched M.R.A. on multiple occasions when the bus

monitor was absent. AISD police arrested Maldonado, who was immediately

fired, then prosecuted, convicted and sentenced to prison.

Ayon sued Maldonado, AISD, and several AISD employees in their

individual capacities. The district court granted a motion to dismiss the

employees on qualified-immunity grounds. Maldonado failed to appear, and

the district court entered default judgment against him for $5,000,000.

Those decisions are not at issue.

Ayon appeals the district court’s grant of summary judgment to AISD

on the Section 1983 and Title IX claims. She contends that on the Section

1983 claim, there was sufficient risk of constitutional violations to raise a

question of material fact whether AISD acted with deliberate indifference.

She makes a similar argument under Title IX.

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II.

“This court reviews a grant of summary judgment de novo, applying

the same standard as the district court.” Luminant Mining Co. v. PakeyBey,

14 F.4th 375, 379 (5th Cir. 2021) (internal quotation marks and citation

omitted). Summary judgment is warranted if “there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of

law.” Davidson v. Fairchild Controls Corp., 882 F.3d 180, 184 (5th Cir. 2018)

(quoting Fed. R. Civ. P. 56(a)). The movant may satisfy its burden by

pointing to an absence of evidence to support the nonmovant’s case. Celotex

Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554 (1986). The

nonmovant must then set forth specific facts that show a genuine issue for

trial. “[T]he evidence of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Tolan v. Cotton, 572 U.S. 650, 651,

134 S. Ct. 1861, 1863 (2014) (internal quotation marks omitted) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513

(1986)). But the nonmovant cannot prevail by relying on “conclusory

allegations, unsubstantiated assertions, or only a scintilla of evidence.”

Freeman v. Tex. Dep’t of Crim. Just., 369 F.3d 854, 860 (5th Cir. 2004)

(citation omitted).

III.

A.

To avoid summary judgment for AISD on her Section 1983 claim,

Ayon must produce sufficient evidence to justify a reasonable jury finding

that: (1) an official policy (2) promulgated by AISD (3) was the moving force

behind the violation of a constitutional right.1 Groden v. City of Dallas, 826

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1

Case law establishes that a student who is sexually assaulted at a public school is

“deprived of a liberty interest recognized under the substantive due process component of

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F.3d 280, 283 (5th Cir. 2016). Because the relevant AISD policies are not

unconstitutional on their face, Ayon must also produce evidence that tends

to show they were adopted “with deliberate indifference to the known or

obvious consequences that constitutional violations would result.”

Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001) (internal

quotation marks omitted) (quoting Bd. of Cnty. Comm’rs of Bryan Cnty., Okla.

v. Brown, 520 U.S. 397, 407, 109 S. Ct. 1382, 1390 (1997)). This latter

requirement proves fatal for her claim.

Ayon contends that the relevant question is whether, under the

totality of the circumstances,

it would be obvious that the [video camera and bus monitor

policies] would cause constitutional violations to AISD

students where (i) a sexual predator is driving a bus with video

cameras that he knows are not monitored and capturing footage

that no one will watch unless a report is made; (ii) the

passengers are vulnerable special needs elementary students

who require a bus monitor; and (iii) the only adult eyes

watching the sexual predator, the bus monitor, is allowed to

leave the bus at any given time.

But Ayon produced no evidence in the district court to prove that (1) AISD

knew sexual predators were driving school buses; (2) AISD bus drivers knew

cameras were not monitored; or (3) AISD should have known students on a

special-education bus suffer a unique risk of constitutional violation without

a bus monitor on board at all times. Evidence in the record contradicts all

three assumptions.

_____________________

the Fourteenth Amendment.” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir.

1994).

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First, AISD representatives testified in depositions that AISD

conducts background checks, collects fingerprints, and requires drug testing

for bus driver applicants, which undermines claims that AISD knew it

employed sexual predators. Second, AISD bus drivers are not told, during

training or in their procedure manual, whether cameras are monitored, and

this undermines claims that AISD bus drivers knew that cameras are not

regularly monitored. Third, none of the previous sexual assault incidents

that occurred in AISD involved a bus driver exploiting bus monitor rules on

buses for special-education students, which undermines claims that AISD

should have known about a unique risk to these students.

Shed of these unfounded assumptions, the proper inquiry is whether

it would be obvious to AISD that the combined policies would cause

constitutional violations to students where (1) AISD checks to ensure its

drivers are not known sexual predators; (2) AISD buses are fitted with video

cameras and drivers are not told about monitoring procedures; (3) AISD has

never had a reported incident involving a special-education student; and

(4) bus monitors are allowed to leave the bus only for short breaks. Ayon has

failed to produce sufficient evidence for a reasonable jury to conclude that

the potential for constitutional violations was “obvious” in the light of these

facts.

Deliberate indifference is a “degree of culpability beyond mere

negligence or even gross negligence; it must amount to an intentional choice,

not merely an unintentionally negligent oversight.” James v. Harris County,

577 F.3d 612, 617–18 (5th Cir. 2009) (internal quotation marks omitted)

(quoting Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir.1992)).

Sufficient proof that constitutional violations were obvious “generally

requires that a plaintiff demonstrate at least a pattern of similar violations.”

Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293,

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309 (5th Cir. 2004) (quoting Burge v. St. Tammany Par., 336 F.3d 363, 370

(5th Cir. 2003)).

Ayon relies in part on deposition testimony in which the chief of police

for AISD was asked, “Students being exposed to sexual predators is a risk to

the district. Fair?” He replied, “Yeah. It’s a risk, period. Yeah.” He was

also asked, “Do you think relying on a special needs child to make a report is

an effective way of preventing abuse of special needs children?” He replied,

“No.” But this exchange does not suggest that the risk of constitutional

violations on AISD buses was “obvious.” The admission that sexual

predators are “a risk” to students says nothing of the obviousness of that risk.

And the admission that relying on a special needs child to make a report is an

ineffective way to prevent abuse is insignificant because AISD did more to

prevent abuse by installing cameras on its buses. It cannot be inferred from

this exchange that AISD perceived an “obvious” risk to special-education

students.

Nor was there a sufficient pattern of previous incidents to make such

a risk objectively “obvious.” AISD produced the police reports from every

incident involving allegations of sexual misconduct on a bus since 2013.

Reports were produced for ten alleged employee-student incidents and seven

student-student incidents. Only twice were charges brought for employee-

student misconduct. Charges were substantiated and led to an arrest in one

case, and in the other case the charges were determined to be unfounded and

dismissed. The one substantiated incident—a 2015 series of assaults by a bus

driver—occurred before AISD installed cameras on its buses. The district

court correctly concluded that this “single prior substantiated incident” was

insufficient to establish the obviousness that constitutional violations would

occur.

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Ayon submitted evidence of nine prior sexual assaults on AISD

property—including the same 2015 series of assaults. Seven of those

incidents did not occur on a bus, but occurred in school facilities, where live

monitoring cameras are installed. If anything, those incidents undercut her

argument that monitoring bus cameras would have prevented the sexual

assault from occurring here. Five of those incidents involved student-student

issues. And camera policies were not alleged to have played a role in any of

the nine incidents. This is plainly insufficient to establish a pattern that

would make constitutional violations under AISD’s camera policies

“obvious.” Valle v. City of Houston, 613 F.3d 536, 548 (5th Cir. 2010).

In short: Ayon identifies just one arguably similar violation from a five-

year period in a school district that comprises 72,000 students, 116 schools,

and 10,000 employees. No other student was injured like M.R.A. after AISD

installed cameras on its buses. Finding liability on these facts would be

equivalent to imposing “liab[ility] on the theory of respondeat superior,

which is expressly prohibited by Monell.” Peterson v. City of Fort Worth, Tex.,

588 F.3d 838, 852 (5th Cir. 2009) (citing Monell v. Dep’t of Soc. Servs. of City

of N.Y., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037–38 (1978)). See also Est. of

Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th Cir.

2005) (requiring “notice of a pattern of similar violations” (emphasis

removed)); Yara v. Perryton Indep. Sch. Dist., 560 F. App’x 356, 359 (5th Cir.

2014) (holding that in the absence of similar injuries resulting from the same

policy or activity a school district could not “have reasonably predicted

physical injuries like [those incurred by the plaintiff] would [have]

occur[ed]”). Accordingly, Ayon has failed to establish a genuine dispute

whether AISD’s policies made constitutional violations “obvious.”2

_____________________

2

Ayon also argues that AISD had sufficient notice because of the “single-incident

exception,” which recognizes that “in a limited set of cases” the plaintiff “may establish

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B.

“Title IX prohibits sex discrimination by recipients of federal

education funding.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173,

125 S. Ct. 1497, 1503 (2005). It provides that “[n]o person . . . 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(a). Ayon argues

that AISD violated Title IX because it maintained a policy of deliberate

indifference to reports of sexual misconduct, which created a “heightened

risk” of sexual harassment that was “known or obvious.” The district court

held that Title IX heightened-risk claims are not cognizable in cases of

employee-to-student harassment. This court need not consider whether that

is a correct statement of the law because a heightened-risk claim in this case

would suffer the same flaw as Ayon’s Section 1983 claim: insufficient

evidence that constitutional violations were “obvious” in the light of AISD

policies.

Ayon would fare no better even if she asserted a traditional Title IX

claim. Plaintiffs in this circuit have a traditional Title IX claim where an

“appropriate person” had “‘actual knowledge’ of the discrimination” and

_____________________

deliberate indifference by showing a single incident with proof of the possibility of recurring

situations that present an obvious potential for violation of constitutional rights.” Burge,

336 F.3d at 372–73 (internal quotation marks omitted). Ayon relies on the 2015 series of

sexual assaults to argue it was “obvious” a constitutional violation would result from AISD

policies. This argument fails for at least two reasons. First, Ayon only raised this argument

below in the context of her Section 1983 failure-to-train claim, which she forfeited on

appeal. See Am. Precision Ammunition, L.L.C. v. City of Mineral Wells, 90 F.4th 820, 827

n.6 (5th Cir. 2024) (citation omitted). Second, the 2015 series of sexual assaults—which

occurred on a bus without cameras—could not have made it “obvious” that a

constitutional violation would occur in the different context where a bus monitor is allowed

to temporarily leave a bus installed with unmonitored cameras.

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responded with “deliberate indifference” despite being provided “an

opportunity for voluntary compliance.” Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274, 289–90, 118 S. Ct. 1989, 1999 (1998). Such claims presuppose

that “an official who is advised of a Title IX violation refuses to take

corrective action.” Id. at 290, 118 S. Ct. at 1999. They are “based on

allegations that the defendants failed to address sexually hostile

environments after receiving reports of sexual assault.” Doe v. Tex. A&M

Univ., 634 F. Supp. 3d 365, 376 (S.D. Tex. 2022) (collecting cases).

AISD received a credible report in 2015 of an employee-student sexual

assault on a school bus, and it took prompt corrective action by installing

cameras on its entire bus fleet. Here, Maldonado was immediately

suspended, investigated, fired, and then arrested, charged, and incarcerated.

These facts exemplify anything but “fail[ing] to address sexually hostile

environments,” especially in the light of circuit precedent, which holds that

a police investigation after a report of sexual misconduct tends to negate the

possibility of deliberate indifference. See, e.g., I.F. v. Lewisville Indep. Sch.

Dist., 915 F.3d 360, 376 (5th Cir. 2019) (finding no deliberate indifference to

sexual assault where school district police department launched an

investigation and interviewed students). Ayon therefore cannot state a

traditional Title IX claim.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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