Bichel v. Kennedale Indep. Sch. Dist.

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MERRITT BICHEL, Plaintiff, v. KENNEDALE INDEPENDENT SCHOOL DISTRICT, et al., Defendant.

Civil Action Nos. 4:23-cv-00804-BP, 4:23-00886-BP

United States District Court, N.D. Texas, Fort Worth Division

April 24, 2024

MEMORANDUM OPINION AND ORDER

HAL R RAY, JR. UNITED STATES MAGISTRATE JUDGE

Before the Court are the Motion to Dismiss Plaintiff's Second Amended Complaint and supporting brief, filed January 17 2024 by Kennedale Independent School District (“KISD”) and Dr. Stephanie Devlin (“Devlin”). ECF Nos. 20, 21. Plaintiff Merritt Bichel (“Bichel”) did not respond to these filings. After considering the pleadings and applicable legal authorities, the Court GRANTS the Motion and DISMISSES Bichel's claims.

I. BACKGROUND

Bichel alleges that while attending Kennedale High School (“KHS”), her rights were violated under Title IX and under the Constitution. ECF No. 19 at 1-2. The Second Amended Complaint describes two general categories of incidents giving rise to these alleged violations: 1) obscene name-calling by members of the jazz band, possibly fueled by someone sharing an intimate picture of Bichel without her consent, and 2) obscene name-calling in text messages by someone with the screen name “Skankhunter.” See generally id.

The jazz band incidents began in March 2020 when several KHS students, some of whom were members of the band, “bullied and sexually harassed” Bichel. Id. at 3. “These students called [Bichel] a ‘h**,' a ‘desperate h**,' and a ‘wh***.'” Id. Several weeks later, another student called Bichel a “bi***” in connection with a band rehearsal. Id.

“This was very upsetting to [Bichel]. She cried, this ruined her self-confidence, and she became very nervous and afraid when around them in class.” Id. “[Bichel] feels that these students made her hate everything about jazz band, such as the music, her confidence, her ability to have friends, and her ability to have fun.” Id.

Defendant KISD knew about the jazz band incident and its possible cause. On February 10, 2021, Bichel met with KISD's counselor to report that the band students were harassing her. Id. At this meeting, Bichel also reported that a student in the band had an intimate picture of her on his phone. Id. at 4. Bichel believed that this student had discussed or shared this picture with their band classmates and “that this was the catalyst of the patterns of band students sexually harassing Bichel.” Id. Bichel also alleges that she provided information about the band incidents to KISD on or about February 2, 10, 18, and 19, and March 2, 2021. Id. at 3.

On March 23, 2021, Bichel received text messages during school hours from “Skankhunter,” who called her “a ‘cu**,' ‘sl**,' ‘wh***,' ‘bi***,' and ‘h**.'” Id. at 4. Bichel believed the person was associated with a KHS student whose affections she had recently rejected, since the texts referenced this student, and two other students, by name. Id. Bichel notified KISD of this incident on or about March 23 and 29, 2021. Id.

In response to Bichel's complaints, KISD conducted a “protracted investigation” into the bullying and sexual harassment. Id. KISD contacted the school's Title IX coordinator, the Academic Dean contacted the parents of at least one of the alleged perpetrators, and the Academic Dean “had a conversation with the school Counselor and Defendant Devlin regarding the Title IX violations.” Id. at 5.

However, Bichel alleges that Defendants' response to incidents was inadequate. She alleges that KISD did not follow School Board Policy FHH (“Policy FHH”) when investigating the sexual harassment allegations, that the Academic Dean did not speak to Bichel or her parents about the violations, and that Devlin did not contact Bichel's parents about the violations. Id. Bichel alleges that “[KISD's] lack of investigation, failure to provide supportive measures, and denial of [Bichel]'s access to basic academic support was unreasonable,” making KISD deliberately indifferent. Id. at 10. Bichel alleges that KISD and Devlin “received information about the students' sexual harassment of [Bichel] and did not provide her any relief.” Id. at 5.

Bichel also argues that such inadequacies harmed her. She alleges that due to Defendants' inaction after she began reporting the incidents in February 2021, she was “subjected to a hostile environment, including several students actively harassing” her, including the offensive texts mentioned above. Id. She experienced mental anguish “created by Defendant's misconduct and failure to provide remedies....” Id. at 11. She alleges that she “required the supportive measures that [KISD] was statutorily required to provide to her..” Id. at 10. As a result, “[KISD's] delays and failures to act denied her the right to access the educational opportunities or benefits provided by the school.” Id.

Bichel sues KISD and Devlin for violating her procedural due process rights and her rights under Title IX. Id. at 2. She also seeks a declaration under the Texas Declaratory Judgment Act, Chapter 37, Civil Practice and Remedies Code, that Devlin violated her “constitutional right to an education by failing to comply with Title IX of the Education Amendments of 1972, 34 C.F.R. §106.45(a) and in 34 C.F.R. § 106.30, and the [KISD] 2020-2021 Student Code of Conduct (“Student Code”).” Id.

Additionally, Bichel refers to other policies and regulations, listing some of them as additional causes of action. First, Bichel refers to the Student Code and Policy FFH and lists them as causes of action. Id. at 6-7, 9. However, she does not explain how these documents create an independent cause of action, nor could she since a school district's failure to follow its own harassment policies is not itself sufficient to demonstrate Title IX liability. Sanches v. CarrolltonFarmers Branch Indep. Sch. Dist., 647 F.3d 156, 170 (5th Cir. 2011). In the absence of facts to explain how these documents provide independent bases for her claims, the Court construes such references to the Student Code and Policy FHH as further support for her claims that Defendants violated the Constitution and Title IX, not as independent causes of action.

Second, Bichel also appears to argue that sex discrimination in the course of KISD's investigation violated Title IX. ECF No. 19 at 7, 9. Defendants construe Bichel to solely bring a claim for student-on-student harassment theory, but the Court addresses Bichel's argument as a separate claim.

Third, Bichel appears to allege that KISD applied Title IX regulations in an unequal or discriminatory manner in violation of the Fourteenth Amendment's Equal Protection Clause. ECF No. 19 at 10 (“The enforcement by Defendant School of Title IX regulations in a discriminatory manner is within the Fourteenth Amendment.”). Defendants do not address this argument in their Motion, but the Court does so below.

Defendants move to dismiss the Second Amended Complaint because Bichel did not state a procedural due process claim, show KISD's municipal liability, or overcome Devlin's claim of qualified immunity. Id. at 10-12, 16-18. They also argue that Bichel did not state a claim under Title IX because she did not allege facts showing “severe, pervasive, and objectively offensive sex/gender based conduct that is actionable under Title IX” and because KISD was not deliberately indifferent. Id. at 13-16. Finally, they argue that Bichel's request for declaratory judgment should be denied because she has no viable cause of action on which to base it and because it is contrary to public policy. Id. at 19-21.

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).

III. ANALYSIS

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

1. She has not adequately shown a due process violation.

Bichel 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.”). “Applying Goss, [the Fifth Circuit's] cases have explained that due process is triggered only by a student's total exclusion from the educational process.” James v. Cleveland Sch. Dist., 45 F.4th 860, 865 (5th Cir. 2022) (internal citations and quotations omitted). “... [S]tudents lack any protected interest in the separate components of the educational process. This means no protected property...