Paul Fletcher v. Lewisville Indep Sch Dist

Case: 17-40722 Document: 00514828083 Page: 1 Date Filed: 02/08/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 17-40722 February 8, 2019

Lyle W. Cayce

Clerk

I.F.,

Plaintiff–Appellant,

versus

LEWISVILLE INDEPENDENT SCHOOL DISTRICT,

Defendant–Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.F., a former student, sued Lewisville Independent School District

(“LISD”) for violating Title IX of the Education Amendments of 1972, 20 U.S.C.

§§ 1681–1688 (2012), claiming that LISD was deliberately indifferent to her

alleged sexual harassment and retaliated against her by withholding Title IX

protections. LISD moved for summary judgment, and I.F. moved for partial

summary judgment. The district court granted in part and denied in part

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LISD’s motion, finding that whereas the evidence did not establish a genuine

dispute of material fact regarding whether LISD was deliberately indifferent

to I.F.’s reports of sexual harassment and bullying, there was a genuine dis-

pute of material fact regarding the retaliation claim. The court also denied

I.F.’s motion. I.F. appeals, challenging only the summary judgment on deliber-

ate indifference. We affirm.

I.

I.F. was a ninth-grade student at the Hebron High School Ninth Grade

Campus (“Hebron”) in LISD during the 2012−13 school year. On Friday, Sep-

tember 28, 2012, she attended a non-school-sponsored, non-school-affiliated

party at the private residence of fellow Hebron student S.S. at which no LISD

personnel were present. At the party, A.V. and I.G. engaged in sexual activity

with I.F., which she claims was rape.

When I.F. returned to school on Monday, her classmates began to harass

and bully her. According to the complaint, they called her a “whore” and a

“slut,” asked whether she had sex with multiple people, and inquired “how did

it feel to be fucked in every single hole of your body?” A.V. “wore the pants that

he raped [I.F.] in to school, which had [her] blood on them from intercourse,

and stood on the lunch table and said, these are the pants that I took [I.F.’s]

virginity in.”

I.F. informed her mother, Jaime Fletcher (“Fletcher”), that she was being

bullied, and on October 10, Fletcher contacted Hebron counselor Debra

Denson-Whitehead to report the bullying but said nothing about sexual active-

ity or assault. 1 Denson-Whitehead told Fletcher that she would speak with

1 Fletcher stated during her deposition that she told Denson-Whitehead that “there’s

something . . . horribly wrong. Something happened. I don’t know what, but my daughter is

being severely bullied, and it’s really bad.” Ms. Fletcher also told Denson-Whitehead that

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I.F. about the bullying when I.F. returned to school. But on Friday, October 12,

when I.F. next attended school, before Denson-Whitehead could speak with

I.F., Fletcher emailed Denson-Whitehead and told her not to speak with I.F.

that day about the bullying. Denson-Whitehead complied and informed Flet-

cher that she would check in with I.F. the following week. Nevertheless, I.F.

never physically attended any LISD school after October 12.

That same day, I.F.’s parents (“the Fletchers”) learned for the first time

from other parents at a football game that I.F. allegedly had been sexually

assaulted. The Fletchers reported the assault to the Carrollton Police Depart-

ment (“CPD”), which opened an investigation.

On Monday, October 15, the Fletchers met with Denson-Whitehead to

inform her that I.F. had been sexually assaulted at a party by two Hebron

students and that they had reported the assault to CPD, which had opened an

investigation. The Fletchers also gave Denson-Whitehead a list of students

who they believed were involved. This meeting was the first time that Denson-

Whitehead learned of I.F.’s alleged sexual assault. Denson-Whitehead alleges

that she expressed her shock and sorrow to the Fletchers and advised them

that she would notify the administration. According to the Fletchers, Denson-

Whitehead told them that “it was going to be very difficult going against the

football team” and that “the best thing for [I.F.] would be to transfer schools.”

After the meeting, Denson-Whitehead conveyed the information she had

learned regarding the sexual assault to Hebron Assistant Principal Amanda

Werneke and Hebron School Resource Officer Cole Langston, who was also a

police officer at CPD.

she didn’t know whether the bullying was cheerleading bullying, and there was a senior who

was “saying something,” but she “didn’t have any names.”

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On October 16, 2012, Denson-Whitehead reported the same information

to Hebron Principal Mark Dalton. Dalton, Denson-Whitehead, and Werneke

consulted with Langston about the alleged assault. Langston confirmed that

CPD had opened a case and was investigating the sexual assault. He requested

that Hebron refrain from investigating the matter until CPD informed LISD

that it could proceed because any LISD investigation could interfere with and

potentially compromise the criminal investigation. Dalton interpreted that

request to apply to both Fletcher’s complaint that I.F. was being bullied and

I.F.’s alleged sexual assault. Furthermore, both Dalton’s and Denson-

Whitehead’s concerns about I.F.’s alleged sexual assault took precedence over

the previously reported bullying. 2

During this time, I.F. was not attending school, so LISD took steps to

ensure that she earned credit for the classes she was taking. First, Dalton and

Denson-Whitehead worked together with I.F.’s teachers to get I.F. the work

she needed to complete her first-grading-period classes. Dalton also requested

that the teachers be flexible and informed them that I.F. need not complete all

work that was expected from students who were regularly attending class.

Second, Denson-Whitehead informed the Fletchers of several options for

I.F. to continue her education, including continuing to attend Hebron, enrolling

in Texas Tech online/correspondence courses, or transferring to a charter

school. The Fletchers did not choose any of those options. Though they desired

that I.F. return to Hebron, this was not an option unless her alleged assailants

were removed from the school, and the online courses were outside their bud-

get. Instead, after finding out about the LISD Homebound program from the

2Denson-Whitehead stated in her affidavit that “[w]hile not minimizing the purported

bullying of I.F., she considered [the] report of an alleged rape to be much more serious . . .,

particularly given that Mrs. Fletcher had asked [her] . . . not to talk to I.F. about the

bullying.”

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Children’s Medical Center in Dallas, the Fletchers requested that LISD place

I.F. into that program.

LISD’s Homebound program allows students who are unable to attend

school for an extended period of time, for medical reasons, to work from home

and receive credit. LISD requires a physician’s recommendation before a stu-

dent may be placed into the program. The Fletchers obtained that recommen-

dation, and LISD enrolled I.F. in the Homebound program by October 30,

where she remained for the rest of the 2012−13 school year.

In early October 2012, Brian Brazil, Hebron High School’s head football

coach and athletic coordinator, was informed by a freshman football coach that

some of the football players may have been involved in a party, where alcohol

was consumed, thrown by S.S., a member of the freshman team. Brazil held a

meeting with all the football players, where he discussed the rumor of alcohol

consumption at a party and reminded them that LISD’s Extra-Curricular Code

of Conduct prohibited the consumption of alcohol.

Following the meeting, he spoke with S.S. individually about the party,

including asking about the presence of alcohol and drugs. S.S. admitted that

he had consumed alcohol at the party, but falsely stated that no other football

players were present at the party. Brazil suspended S.S. for two games for

violating the alcohol consumption prohibition and spoke with S.S.’s father

about his meeting with S.S.

During the team-wide meeting and the individual meeting with S.S.,

Brazil discussed the party only in relation to alcohol and drugs. At that time,

he did not know anything about the alleged sexual assault. Before he could

interview other players, the Hebron administration advised him that the police

were conducting an investigation into the party and that he should not speak

with anyone else about the party.

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At the end of October 2012, Langston informed LISD that CPD had suf-

ficiently progressed in its investigation of alcohol and drug consumption at the

party that LISD could proceed with its own investigation of alcohol and drug

consumption. Soon thereafter, at the beginning of November, Dalton in-

structed Brazil to investigate the alcohol consumption issue with the football

players. Brazil interviewed several more players, including A.V. and I.G.; at

no point during any of those meetings was there mention of an alleged sexual

assault or alleged sexual misconduct by anyone at the party. After completing

his investigation, Brazil reported to Dalton that only one student had admitted

to drinking and had been disciplined.

In either early November or mid-December, the police authorized LISD

to proceed with its investigation into I.F.’s allegation of sexual assault. 3 Dur-

ing that time, LISD schools were closed for both Thanksgiving break (Novem-

ber 20−25, 2012) and Christmas/New Years break (December 21, 2012, to Jan-

uary 6, 2013). Beginning in early January 2013, Hebron conducted two simul-

taneous investigations regarding I.F.: one concerning the allegation of sexual

assault and another concerning I.F.’s allegations of being cyberbullied.

Werneke led both investigations. For the sexual assault investigation,

during the month of January 2013, LISD interviewed fourteen students,

including A.V. and I.G. On February 19, LISD followed up with four students,

again including A.V. and I.G., interviewing them a second time. Throughout

the interviews, A.V. and I.G. were represented by counsel and did not answer

all of LISD’s questions. Nevertheless, A.V. and I.G. insisted that the sexual

activity with I.F. was consensual. LISD also interviewed I.F., with her lawyer

3 The parties disagree regarding when CPD authorized LISD to proceed with its inves-

tigation into sexual assault. LISD contends that the authorization occurred in mid-Decem-

ber; I.F. asserts that it occurred in early November.

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present, and she gave a written statement.

LISD’s investigation revealed that no adults or LISD personnel wit-

nessed the events at the September 28, 2012, party. Furthermore, the wit-

nesses gave conflicting accounts regarding who was involved, precisely what

had occurred, how intoxicated the students were, and whether I.F.’s sexual

activity with A.V. and I.G. was consensual. LISD found that it did not have

sufficient evidence that I.F. was sexually assaulted at the party. LISD con-

cluded, therefore, that there was no basis for any discipline for sexual assault.

For the cyberbullying investigation, Werneke first became aware that

I.F. was being cyberbullied as she was beginning the sexual-assault investiga-

tion when Fletcher explained the situation in person and provided Werneke a

list of names and the Twitter posting that had started the cyberbullying.

Assisted by Dalton and Assistant Principals Michael Vargas and James Scott,

Werneke interviewed nineteen students in early-to-mid-January and reviewed

several social media posts and photographs that Fletcher had provided. The

investigation revealed that the cyberbullying complaint stemmed from Twitter

tweets and retweets by Hebron High School students on or around Decem-

ber 31, 2012, and January 1, 2013, and that appeared to be in response to a

tweet by I.F. regarding Christianity. Many of the implicated students had not

themselves tweeted but had merely retweeted or liked a comment by another

student.

LISD concluded that those social media posts did not amount to “bully-

ing” as defined by LISD policy because there was no indication that they oc-

curred while the students were on school property or at a school-sponsored

activity, they did not threaten harm to I.F.’s person or property, and they were

not sufficiently pervasive to create a harassing environment. Nevertheless,

LISD did consider the postings “improper and hurtful,” so LISD counseled the

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interviewed students about improper social media conduct, advised them not

to engage in such behavior, and contacted their parents. Werneke received no

further complaints from the Fletchers regarding cyberbullying by the individu-

als involved in this phase of the cyberbullying investigation.

On February 19, however, Fletcher informed Werneke of a different form

of cyberbullying I.F. was experiencing, this time arising from photographs and

harassing comments posted on two Instagram accounts. The next day, Wer-

neke reported the complaint to Langston and Dalton, and CPD began an inves-

tigation. Langston interviewed several Hebron students, including J.J.D., who

later admitted that he had created one of the Instagram accounts and was

responsible for all of the account’s posts. 4 The police charged J.J.D. with crim-

inal harassment, and LISD suspended him for three days and then assigned

him to the Disciplinary Alternative Education Program for thirty days as pun-

ishment. After the Instagram cyberbullying complaint, the Fletchers made no

other cyberbullying complaints.

Once LISD had completed the sexual assault and cyberbullying investi-

gations, it reported its findings to the Fletchers by letter dated April 5, 2013.

I.F. completed her ninth-grade coursework through the Homebound program

and advanced to the tenth grade at the end of the 2012−13 school year. There-

after, the Fletchers withdrew her from LISD, and she never returned there as

a student.

II.

I.F. sued LISD for violating Title IX, asserting that LISD was deliber-

ately indifferent to her alleged sexual harassment and retaliated against her

4 The other account was created by a former LISD student who had left LISD and was

attending a private school in Carrollton.

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by withholding Title IX protections. LISD moved for summary judgment on

all of I.F.’s claims, and I.F. moved for partial summary judgment to establish

that she had proved two essential elements of her claims: (1) that she was

sexually assaulted by two classmates and (2) that she engaged in an activity

protected under Title IX. The magistrate judge (“MJ”) granted LISD’s motion

and denied I.F.’s, determining that the alleged sexually harassing conduct was

not “severe, pervasive, or objectively unreasonable,” that LISD’s responses to

I.F.’s allegations of sexual assault, bullying, and cyberbullying were not delib-

erately indifferent, and that I.F. had failed to show any evidence of retaliatory

actions by LISD.

I.F. objected to the MJ’s order and report and recommendation in the

district court. Considering the parties’ motions de novo, the district court

granted in part and denied in part LISD’s motion, finding that whereas the

evidence did not establish a genuine dispute of material fact regarding whether

LISD was deliberately indifferent to I.F.’s reports of sexual harassment and

bullying, 5 there was a genuine dispute of material fact regarding I.F.’s retali-

ation claim. The retaliation claim proceeded to trial, and a jury returned a

verdict in favor of LISD.

On appeal, I.F. challenges only the summary judgment for LISD on the

deliberate indifference claim. She asserts that summary judgment was inap-

propriate because (1) the question of whether a school district acted with delib-

erate indifference generally should be decided by a jury; (2) the summary judg-

ment evidence contained a factual dispute regarding when LISD should have

commenced its investigation into I.F.’s reports of sexual assault, harassment,

5 Though the district court agreed with the MJ on this point, it found that I.F.’s har-

assment was sufficiently severe, pervasive, and objectively offensive so as to have had a con-

crete, negative effect on her access to education.

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and bullying; and (3) “allowing deliberate-indifference claims to be resolved by

jury deliberations . . . serves the underlying purpose of discouraging gender-

based 6 discrimination, which is the very purpose for which Title IX was enacted

in the first place.”

III.

Title IX states 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 sub-

jected to discrimination under any education program or activity receiving

Federal financial assistance.” 20 U.S.C. § 1681(a). “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 bar[red] the victim’s access to an educational opportunity or benefit,

and (5) the district was deliberately indifferent to the harassment.” Sanches

v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir.

2011) (citation and internal quotation marks omitted).

For a school district to be liable under Title IX, it must have been delib-

erately indifferent to student-on-student harassment. “Deliberate indifference

is an extremely high standard to meet.” Domino v. Tex. Dep’t of Crim. Justice,

239 F.3d 752, 756 (5th Cir. 2001). A school district’s “response to the harass-

ment or lack thereof [must be] clearly unreasonable in light of the known

circumstances.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ.,

526 U.S. 629, 648 (1999). Because “deliberate indifference . . . is . . . a lesser

6I.F.’s reference to “gender” is entirely inappropriate. This case is about sex, not

gender. Title IX addresses sex and never mentions gender. We will flexibly treat I.F.’s claims

as regarding sex discrimination.

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form of intent rather than a heightened degree of negligence,” Leffall v. Dall.

Indep. Sch. Dist., 28 F.3d 521, 531 (5th Cir. 1994) (citation and internal quo-

tation marks omitted), neither negligent nor merely unreasonable responses

are enough, Sanches, 647 F.3d at 167. 7 “Actions and decisions by officials that

are merely inept, erroneous, ineffective, or negligent do not amount to deliber-

ate indifference . . . .” Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211,

219 (5th Cir. 1998). 8 Indeed, as the district court noted, our precedent “makes

it clear that negligent delays, botched investigations of complaints due to the

ineptitude of investigators, or responses that most reasonable persons could

have improved upon do not equate to deliberate indifference.” 9

School districts enjoy flexibility in responding to student-on-student har-

assment and “may tailor their responses to the circumstances.” Lance,

743 F.3d at 1000. Title IX does not require school districts to purge themselves

of harassment, take specific disciplinary actions, nor comply with parents’

remedial demands. Davis, 526 U.S. at 648. Even a school district’s “failure to

comply with [its] regulations . . . does not establish the requisite . . . deliberate

indifference.” Sanches, 647 F.3d at 169 (citation omitted). Given this flexibil-

ity, “courts should refrain from second-guessing the disciplinary decisions

made by school administrators.” Davis, 526 U.S. at 648.

7 See also Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“[D]eliberate indifference

entails something more than mere negligence . . . .”).

8 See also Sanches, 647 F.3d at 168 (“Ineffective responses . . . are not necessarily

clearly unreasonable.”).

9 See Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 997 (5th Cir. 2014)

(determining that the district’s response to complainant’s bullying, despite several instances

of inaction, was not deliberately indifferent); Doe ex rel. Doe v. Dall. Indep. Sch. Dist.,

220 F.3d 380, 388–89 (5th Cir. 2000) (holding that the district was not deliberately indifferent

despite its having erroneously concluded that the complainant had not been sexually as-

saulted); Leffall, 28 F.3d at 531–32 (finding that the district’s decision to hire two unarmed

security guards for a school dance where a student was fatally shot established a lack of

deliberate indifference despite awareness of the risk of violence).

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Accordingly, the strict nature of the deliberate indifference standard and

the considerable flexibility school districts exercise in responding to harass-

ment counsel that “Title IX does not require flawless investigations or perfect

solutions.” Sanches, 647 F.3d at 170. Instead, school districts “must merely

respond to known peer harassment in a manner that is not clearly unreasona-

ble.” Davis, 526 U.S. at 649.

IV.

I.F. asserts that “generally,” “[t]he question of whether an action by a

school district is ‘clearly unreasonable,’” and therefore, that the school district

was deliberately indifferent, “should . . . be decided by juries.” Though she

acknowledges that judgment as a matter of law (“JML”) on deliberate indiffer-

ence is permissible “[i]n an appropriate case,” id., she relies on principles from

civil rights jurisprudence and qualified immunity to contend that the

“Supreme Court would prefer the deliberate-indifference issue to be resolved

by juries rather than judges.”

I.F. first maintains that because the Supreme Court adopted the delib-

erate indifference standard from its civil rights jurisprudence, where the ques-

tion of deliberate indifference is routinely placed before juries, the issue should

be decided by a jury in the Title IX context as well. Second, she states that

because the public policy underlying qualified immunity for individual govern-

mental employees does not apply to school districts, the question whether a

school district’s response to student-on-student harassment was not clearly

unreasonable, and therefore not deliberately indifferent, should be a question

of fact for a jury to decide. I.F. also attempts to distinguish Sanches by inter-

preting it to have found, unlike in the current case, “that there was no evidence

in the record of sexual-based harassment . . . and, therefore, as a matter of law,

the defendant school district could not have been deliberately indifferent to it.”

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I.F.’s assertions conflict with uncontroverted Supreme Court and Fifth Circuit

precedent, and her analogies to disparate areas of law are unavailing.

First, the Supreme Court and this court recognize that in ruling on a

motion for summary judgment, a district court can determine, as a matter of

law, that a party was not deliberately indifferent. “The deliberate-indifference

inquiry does not transform every school disciplinary decision into a jury ques-

tion.” Nevills v. Mart Indep. Sch. Dist., 608 F. App’x 217, 221 (5th Cir. 2015)

(per curiam) (citation omitted). Instead, “[i]n an appropriate case, there is no

reason why courts, on a motion . . . for summary judgment, . . . could not iden-

tify a response as not ‘clearly unreasonable’ as a matter of law.” Davis,

526 U.S. at 649. “Whether an official’s response to actual knowledge of dis-

crimination amounted to deliberate indifference . . . may appropriately be

determined on summary judgment.” Doe, 220 F.3d at 387.

Following these principles, we have repeatedly upheld summary judg-

ments after finding, as a matter of law, that a school district’s response to har-

assment was not deliberately indifferent. 10 In the context of Title IX student-

on-student harassment claims, summary judgment remains an appropriate

tool, and courts may grant summary judgment if there is no genuine dispute

of material fact regarding deliberate indifference. See Doe, 153 F.3d at 220 n.8.

Therefore, I.F.’s claim that courts should generally allow juries to decide the

question of deliberate indifference is merely an advocacy position not grounded

in the law. 11

Second, I.F.’s attempt to rely on principles of qualified immunity is

10 See, e.g., Nevills, 608 F. App’x at 222; Lance, 743 F.3d at 997, 1000–01; Sanches,

647 F.3d at 167–70; Doe, 220 F.3d at 387–89.

11 Moreover, I.F. concedes that we have “issued several opinions in recent years in

which [we have] affirmed summary judgments on deliberate-indifference claims arising out

of student-on-student harassment.”

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meritless. Qualified immunity is not implicated in this appeal, and the doc-

trine does not speak to whether I.F. raised a genuine dispute of material fact

on deliberate indifference to avoid summary judgment. Therefore, the alleged

fact that questions of qualified immunity are often resolved as a matter of law

and that LISD cannot assert qualified immunity here, has no import in resolv-

ing whether a district court may decide deliberate indifference as a matter of

law.

Third, in attempting to distinguish Sanches, I.F. misconstrues its find-

ings. Contrary to I.F.’s assertion, Sanches held the opposite and explicitly

stated that “the district was not deliberately indifferent.” Sanches, 647 F.3d

at 170. Accordingly, I.F.’s claim—that the question whether an action by a

school district was clearly unreasonable, and, thus, that the district was delib-

erately indifferent, should generally be decided by a jury—is meritless.

V.

I.F. claims that a district court’s finding, as a matter of law, that a school

district was not deliberately indifferent instead of allowing a jury to decide the

question “dissuades . . . potential future victims from pursuing their legal rem-

edies, thereby rewarding those who engage in the conduct that Title IX was

enacted to deter.” She likens her case to those of black plaintiffs “50 years ago”

and asserts that “this Court should not conclude today that Texans’ perceived

love of high-school football should eviscerate a young woman’s right to a jury

trial when her gender-discrimination claim potentially threatens the success

of an all-male football team.” At its core, I.F.’s policy reasoning is that allowing

claims of Title IX student-on-student harassment to be decided by a court on

summary judgment is contrary to Title IX’s “purpose” and will “eviscerate the

statute[] that w[as] designed to prevent prejudice.” I.F.’s theory is

unpersuasive.

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The law on whether a district court can grant summary judgment on

Title IX student-on-student harassment claims is settled. Summary judgment

on Title IX claims is appropriate if there are no genuine disputes as to material

facts and the moving party is entitled to JML, and the Supreme Court agrees.

Davis, 526 U.S. at 649. The district court did precisely that, granting summary

judgment to LISD because “I.F. has not shown the existence of a material issue

of fact under the objective standard applicable to review of a Title IX deliberate

indifference claim.” Though I.F. attempts to alter this law by relying on asser-

tions regarding the purpose of Title IX and the alleged consequences of grant-

ing summary judgment on these types of claims, her points are untenable.

Their logical endpoint is that a court would never be able to grant summary

judgment against a claimant without essentially declaring that the movant’s

interests are more important than the claimant’s right to be free from Title IX

discrimination. Consequently, I.F.’s points conflict with settled law.

I.F. further supports her policy reasoning by misconstruing a statement

by the district court regarding high school football. I.F. states that the court

“tacitly” acknowledged that “jurors in the Eastern District of Texas will place

a greater emphasis on preserving a successful high-school football team than

on other conceivable public-policy goals,” such as preventing student-on-

student harassment under Title IX. I.F. uses this interpretation to urge that

the district court should not be allowed to decide that jurors will favor high

school football as a matter of law, and, therefore, that the question of deliberate

indifference should be decided by a jury. Understood in context, however, the

district court’s statement was merely an explanation of why Denson-

Whitehead’s comment that I.F. would encounter difficulties if she “went

against the football team” was a legitimate, if inartful, concern. Therefore, I.F.

cannot use the district court’s observation to support her assertion that by

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allowing courts to grant summary judgment on Title IX claims, they would be

countenancing putting football above preventing Title IX harassment and

eviscerating the antidiscrimination protections afforded by the statute.

VI.

Liability for student-on-student harassment under Title IX requires the

claimant to prove each of five elements. Therefore, to prevail on summary

judgment for a claim of student-on-student harassment, a defendant school

district, as the moving party, must demonstrate that there is no genuine dis-

pute as to any one of the following material facts and that it is therefore

entitled to JML: “(1) [The district] 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 object-

tively offensive that it effectively bar[red] the victim’s access to an educational

opportunity or benefit, and (5) the district was deliberately indifferent to the

harassment.” Sanches, 647 F.3d at 165 (citation and internal quotation marks

omitted).

I.F. and LISD do not dispute prong (2) or (3): I.F.’s harassers, as stu-

dents, were under LISD’s control, and the harassment was based on I.F.’s sex.

The parties dispute the other elements. Based on a de novo review of the rec-

ord, viewing the evidence in the light most favorable to I.F., we determine that

summary judgment is appropriate in LISD’s favor because there is no genuine

dispute that LISD was not deliberately indifferent to I.F.’s claims of

harassment.

A.

The first material fact is whether LISD had actual knowledge of the

harassment. I.F. asserts two distinct allegations of harassment: a sexual

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assault on September 28, 2012, and incidents of sexual harassment following

the alleged sexual assault in the form of bullying and cyberbullying. The bully-

ing consists of three episodes: (1) bullying and harassment by fellow students

in the two weeks following the alleged sexual assault, (2) cyberbullying com-

prising Twitter posts, retweets, and likes that occurred on or around Decem-

ber 31, 2012, and January 1, 2013, and (3) cyberbullying in the form of har-

assing Instagram posts in February 2013.

First, for the sexual assault allegation, LISD had actual knowledge of

the harassment on October 15, 2012, when the Fletchers reported it to Denson-

Whitehead. By October 16, Denson-Whitehead had reported the information

she had learned regarding the sexual assault to Dalton and Werneke. Second,

for the bullying complaint, LISD had actual knowledge of the harassment on

October 10, when Fletcher contacted Denson-Whitehead to report that I.F. was

being bullied. Denson-Whitehead informed Dalton of the bullying complaint

by October 16. Third, for the Twitter cyberbullying complaint, LISD had actual

knowledge of the harassment on January 7, when Fletcher went to Hebron and

provided Werneke with a list of students who she claimed had been cyber-

bullying I.F. on Twitter and a copy of the alleged post that had started the

harassment. Fourth, for the Instagram cyberbullying complaint, LISD had

actual knowledge of the harassment on February 19, when Fletcher contacted

Werneke and told her about photographs and harassing comments posted by

two Instagram accounts. The next day, Werneke reported the complaint to

Dalton.

LISD does not dispute that it had actual knowledge of the sexual assault

and two forms of cyberbullying on the dates set forth above, but it does assert

that it did not have actual knowledge of “any sex-based bullying in connection

with the October 10, 2012, report” because Fletcher’s complaint to Denson-

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Whitehead on that date did not implicate Title IX. LISD maintains that Flet-

cher merely described that I.F. was being bullied generally, or at most, was

experiencing cheerleading bullying, but Fletcher did not give any information

that would lead Denson-Whitehead to believe the bullying was sex-based.

Nevertheless, LISD’s contention is better directed at the question of

LISD’s deliberate indifference, not whether it had actual knowledge of the

bullying. Based on the evidence, it is indisputable that LISD had actual knowl-

edge, through Denson-Whitehead, that I.F. was being bullied in some manner.

Though the parties may dispute whether LISD’s response to that knowledge

was deliberately indifferent, the fact is that LISD knew of the harassment on

that day.

B.

The second material fact is whether the harassment was so severe, per-

vasive, and objectively offensive that it effectively barred I.F.’s access to an

educational opportunity or benefit. The MJ and the district court reached

different conclusions. The MJ determined that the harassing conduct I.F.

endured “was not severe, pervasive, or objectively unreasonable,” nor did it

have a concrete, negative effect on her access to education. Conversely, the

district court found that there was a genuine dispute concerning this material

element. The court determined that I.F. had provided evidence that, “if

believed by a jury, could be a basis for a jury finding that the sexual harass-

ment was so severe, pervasive, or objectively unreasonable so as to have had a

concrete, negative effect on I.F.’s access to education.” Although neither side

challenges this finding on appeal, we are not bound by the parties’ agreement

but must review the summary judgment de novo. Austin v. Kroger Tex., L.P.,

864 F.3d 326, 328 (5th Cir. 2017) (per curiam). Based on that de novo review,

viewing the evidence in the light most favorable to I.F., we determine that I.F.

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has demonstrated a genuine dispute as to a material fact, namely, whether the

harassment she endured was so severe, pervasive, and objectively offensive

that it effectively barred her access to an educational opportunity or benefit.

First, I.F. has raised a genuine dispute as to whether the harassment

she endured was severe, pervasive, and objectively offensive. Her classmates

called her a “whore” and a “slut.” They spread rumors about her, talked about

her loudly in her presence, and excluded her during cheerleading. One student

asked her the race of the baby she would be having. Others asked whether she

had sex with multiple people and “how did it feel to be fucked in every single

hole of your body?” A.V., one of the students I.F. asserts raped her, “wore the

pants that he raped [I.F.] in to school, which had [her] blood on them from

intercourse, and stood on the lunch table and said, these are the pants that

I took [I.F.’s] virginity in.” Multiple football players called her a liar and told

her that she was “going to ruin everything.” The harassment continued online,

with students commenting about I.F.’s alleged assault on Twitter and Insta-

gram. As a result of the harassment, I.F. felt suicidal and depressed, began

cutting herself, had nightmares, and experienced panic attacks. Therefore, she

has demonstrated a genuine dispute regarding whether the harassment was

severe, pervasive, and objectively offensive.

Second, I.F. has raised a genuine dispute as to whether the harassment

effectively barred her access to an educational opportunity or benefit because

she provided evidence that she felt that she could not return to Hebron on

account of the harassment. In her statement of events dated February 8, 2013,

I.F. stated that “I asked [my parents] to pull me out of school because of the

bullying, and that I didn’t want to be there with those two boys who raped me.”

“I thought once the police and school heard about what happened to me that

they would arrest the boys and kick them out of school and I could go back to

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school, but no!” I.F. also asserted during her deposition that Fletcher had

informed LISD that I.F. could not “be going to the same school as [her] rapists.”

Accordingly, I.F. has presented sufficient evidence to raise a genuine dispute

as to a material fact, namely, that the harassment she endured was so severe,

pervasive, and objectively offensive that it effectively barred her access to an

educational opportunity or benefit.

C.

The third material fact is whether LISD was deliberately indifferent to

the harassment. The MJ and the district court agreed that “there is no issue

of fact as to whether the district was deliberately indifferent.” Based on a de

novo review of the record, viewing the evidence in the light most favorable to

I.F., we determine that I.F. has failed to demonstrate a genuine dispute of

material fact to show that LISD’s responses to I.F.’s alleged sexual assault on

September 28, 2012, and incidents of sexual harassment following the alleged

sexual assault in the form of bullying and cyberbullying, were deliberately

indifferent. Therefore, LISD is entitled to JML.

1.

I.F. claims that LISD was deliberately indifferent to her alleged sexual

assault because there was a “lengthy and unjustified delay” before it began its

investigation. I.F. rejects LISD’s contention that it was not cleared to inves-

tigate the sexual assault allegation until mid-December 2012 and asserts that

although CPD “finished its criminal investigation on November 8, 2012, . . .

LISD did not begin its investigation for nearly two months,” in January 2013.

Aside from generally averring that LISD should have initiated the investiga-

tion soon after it received clearance from the police in early November 2012,

I.F. proffers three reasons why LISD’s delay was unjustified.

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First, I.F. contends that the delayed investigation contravened the “Dear

Colleague Letter,” sent to LISD and all other school districts in the United

States, by the U.S. Department of Education’s Office for Civil Rights in 2011,

which states that “a school . . . must promptly investigate” potential harass-

ment and that “a law enforcement investigation does not relieve the school of

its independent Title IX obligation to investigate the conduct.” 12 Second, she

claims the delay was motivated by LISD’s preference for its high school football

program over the Title IX rights of its students. Third, I.F. asserts that the

district court mistakenly did not apply the reasoning of Williams v. Board of

Regents of the University System of Georgia, 477 F.3d 1282 (11th Cir. 2007),

which I.F. interprets as holding that a school may not delay its investigation

in light of a pending criminal investigation where that investigation would not

affect the school’s ability to institute its own procedures. Accepting I.F.’s ver-

sion of when LISD received authorization from CPD to begin its investigation,

each of I.F.’s claims nevertheless fails, and the evidence instead supports the

conclusion that LISD was not deliberately indifferent to I.F.’s sexual assault

allegation.

I.F. misconstrues the Dear Colleague Letter by selectively quoting it.

Though she claims that the letter states that a school district may not delay

its investigation in light of a simultaneous criminal investigation, the letter

contains additional language regarding how a district should approach

coordinating its Title IX investigation with a criminal investigation:

Although a school may need to delay temporarily the fact-finding

portion of a Title IX investigation while the police are gathering

evidence, once notified that the police department has completed

12 Dear Colleague Letter: Sexual Violence 4, Russlynn Ali, Assistant Sec’y for Civil

Rights, Office for Civil Rights, U.S. Dep’t of Educ. (Apr. 4, 2011),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.

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its gathering of evidence (not the ultimate outcome of the investi-

gation or the filing of any charges), the school must promptly re-

sume and complete its fact-finding for the Title IX investiga-

tion.[ 13]

LISD first learned of I.F.’s sexual assault allegation on October 15, 2012.

The next day, Langston requested that LISD refrain from investigating the

matter until CPD informed LISD that it could proceed because any LISD inves-

tigation could interfere with the criminal investigation. According to I.F.,

LISD received that authorization on November 8, 2012, and, thus, should have

begun its investigation at that time. Therefore, because it was complying with

the police request not to investigate for approximately three weeks between

October 15 and November 8, LISD was not violating the letter during that

time.

Furthermore, though LISD did not begin its investigation until January,

accepting I.F.’s version of events, LISD’s delay after the initial three-week per-

iod was not because it was waiting for police authorization. Consequently,

I.F.’s attempt to use the Dear Colleague Letter’s statements about coordination

with criminal investigations—to demonstrate that LISD was deliberately

indifferent during this period—fails. To the extent that I.F. contends that

LISD violated the letter’s mandate that school districts promptly resume their

investigations after a criminal investigation has been completed, that is

exactly the inquiry we are engaging in when we analyze whether LISD’s delay

in beginning its investigation was deliberately indifferent. 14

Next, even accepting I.F.’s allegation of Denson-Whitehead’s statements

13 Id. at 10.

The U.S. Department of Education’s Office for Civil Rights has since rescinded the

14

Dear Colleague Letter. Dear Colleague Letter, Candice Jackson, Acting Assistant Sec’y for

Civil Rights, Office for Civil Rights, U.S. Dep’t of Educ. (Sept. 22, 2017),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.

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as true, I.F. has failed to raise a genuine dispute of material fact that Denson-

Whitehead’s statements evidence LISD’s deliberate indifference because they

were motivated by an animus against I.F. for attempting to “go against the

football team.” As the district court explained, at many high schools in Texas,

the football team and its games are a source of school and community pride.

Many students are involved in the team or related organizations, such as the

cheerleading squad or the band. Consequently, an individual who raises seri-

ous sexual assault allegations against members of the team may experience

resistance.

Denson-Whitehead’s statement that “it was going to be very difficult

going against the football team” must be construed in this context as express-

ing her concern to I.F. and her parents about this potential resistance. Denson-

Whitehead’s subsequent actions support this interpretation. She did not keep

I.F.’s sexual assault allegation to herself or change details to make it seem less

serious. Instead, the same day that she learned of the allegation, she informed

Werneke and Langston, and the next day, she told Dalton. Though Denson-

Whitehead’s comment was inartful and could have been more tactful, it is not

objective evidence of deliberate indifference.

Finally, I.F.’s reliance on Williams, an out-of-circuit case, is misplaced.

The Eleventh Circuit found that the University of Georgia was deliberately

indifferent because it waited eight months after receiving a full police report

before conducting a disciplinary hearing regarding an alleged sexual assault.

Though the university tried to justify the delay by averring to the pending

criminal trials against the alleged assailants, the court rejected its contentions

as insufficient. Williams, 477 F.3d at 1296−97.

I.F.’s case is readily distinguishable from Williams. LISD did not delay

its investigation after receiving a full police report or because criminal trials

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were pending. Instead, LISD delayed because of a specific directive from CPD.

Accepting I.F.’s version of events as true, LISD then further delayed the inves-

tigation for about two months, which included Thanksgiving break and the

Christmas/New Years holidays. This delay was much shorter than the eight-

month delay that the Williams court relied on, in part, in finding that the

university was deliberately indifferent.

Contrary to I.F.’s theory that LISD’s delayed investigation shows delib-

erate indifference, the evidence supports the conclusion that LISD performed

an extensive investigation within a reasonable time. Accepting I.F.’s version

of events that LISD received authorization to begin investigating the sexual

assault allegation on November 8, 2012, LISD’s delay consisted of two periods:

waiting for police authorization from October 16, 2012, to November 8, 2012,

and the November 8, 2012, to January 7, 2013, period. 15

Though a delay in instituting remedial actions may constitute deliberate

indifference under Title IX, 16 LISD’s twenty-eight school-day delay does not

rise to that level. During that period, LISD was actively taking steps to provide

relief to I.F. It worked together with I.F.’s teachers to get her the work she

was missing during her absence and requested the teachers be flexible with

I.F.’s workload, provided her with information regarding educational oppor-

tunities outside of LISD, and assisted I.F. in enrolling in the Homebound

15Based on a 2012-year calendar and the dates for the vacation periods LISD provides,

Thanksgiving break and the Christmas/New Years holidays together consumed three full

school weeks.

16 See, e.g., Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 669–70 (2d Cir. 2012)

(holding that a jury was within its power to find that a school district was deliberately indif-

ferent where it waited over a year to implement remedial action in response to a complaint);

Matthews v. Nwankwo, 36 F. Supp. 3d 718, 725 (N.D. Miss. 2014) (holding that an unjustified

delay of two to three months in separating a complainant from the alleged assailant’s class

was deliberate indifference).

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program. 17 In light of these known circumstances, the delay was not clearly

unreasonable and thus was not deliberately indifferent. See Davis, 526 U.S.

at 648; Sanches, 647 F.3d at 167–68.

Once it began its investigation, moreover, LISD’s response was not

deliberately indifferent. It interviewed fourteen students about the alleged

sexual assault and followed up with four students, including the two alleged

assailants. It interviewed I.F., with her lawyer present, and accepted her writ-

ten statement. After reviewing the evidence, LISD concluded that it could not

establish, with sufficient evidence, that I.F. had been sexually assaulted at the

party, so there was no basis for any LISD discipline for sexual assault. Title IX

did not require LISD to take specific disciplinary actions, comply with parents’

remedial demands, or comply with its own regulations in investigating the

complaint. Davis, 526 U.S. at 648; Sanches, 647 F.3d at 169. Instead of being

clearly unreasonable, to the contrary, LISD’s investigation was thorough and

appropriate. Therefore, LISD’s response to I.F.’s sexual assault allegation was

not deliberately indifferent.

2.

I.F. contends that LISD was deliberately indifferent to her October 10,

2012, bullying complaints because it “never undertook an investigation into”

them. Nevertheless, in light of the known circumstances, LISD’s response to

the harassment in the form of bullying was not deliberately indifferent.

When Fletcher contacted Denson-Whitehead on October 10 to report that

I.F. was being bullied, she did not give specific details. Fletcher stated that

I.F. was being “severely bullied” and opined that it could be cheerleading

17 Furthermore, I.F. was separated from her alleged assailants by her absence from

school and subsequent enrollment in the Homebound program.

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bullying, but other than giving Denson-Whitehead the names of several stu-

dents, who had bullied I.F. at her middle school, who Fletcher was unsure were

involved, Fletcher “didn’t have any names” for this bullying complaint.

Denson-Whitehead said that she would speak with I.F. about the bullying

when I.F. next attended school. But when I.F. returned to school on Friday,

October 12, for the first time since Denson-Whitehead and Fletcher’s conver-

sation, before Denson-Whitehead could speak with I.F., Fletcher emailed

Denson-Whitehead to request that she not speak with I.F., and Denson-

Whitehead complied.

The following Monday, October 15, LISD learned of I.F.’s alleged sexual

assault and shifted its focus to investigating that claim. After that date, I.F.

never provided a statement to LISD regarding the bullying, nor did the Flet-

chers give LISD further details to supplement their earlier complaint about

the bullying. Therefore, in light of the known circumstances, LISD’s response

to the bullying complaint was not clearly unreasonable and thus was not

deliberately indifferent.

3.

I.F. does not specifically allege that LISD was deliberately indifferent to

her complaints of cyberbullying through Twitter and Instagram. Because,

however, I.F. asserts that the cyberbullying was sexual harassment under

Title IX, if there is a genuine dispute regarding whether LISD was deliberately

indifferent to these complaints, summary judgment was inappropriate. Never-

theless, LISD was not deliberately indifferent to the cyberbullying complaints.

In response to I.F.’s first cyberbullying complaint on January 7, 2013,

LISD promptly interviewed nineteen students in early-to-mid January and

reviewed the alleged offending social media posts. Though LISD concluded

that the posts did not constitute “bullying” as defined by LISD policy, it still

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considered them improper and hurtful. LISD therefore counseled the impli-

cated students about inappropriate social media behavior, advised them not to

engage in such behavior in the future, and contacted their parents.

In response to I.F.’s second cyberbullying complaint on February 19,

2013, LISD promptly reported the matter to CPD, which began an investiga-

tion. As a result, one Hebron student was charged with criminal harassment,

and LISD suspended him for three days and assigned him to the Disciplinary

Alternative Education Program for thirty days as punishment.

LISD’s responses to both cyberbullying complaints were reasonable

investigatory efforts aimed at discovering who was responsible, determining

whether Title IX sexual harassment had occurred, and remedying offending

conduct. Consequently, LISD’s investigation was not clearly unreasonable,

and it was not deliberately indifferent.

There is no error. The summary judgment is AFFIRMED.

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