Smith v. The Comal Indep. Sch. Dist.

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KATY SMITH and JANE DOE, a minor, Plaintiffs, v. THE COMAL INDEPENDENT SCHOOL DISTRICT, Defendant.

No. SA-22-CV-1051-FB (HJB)

United States District Court, W.D. Texas, San Antonio Division

August 4, 2023

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Henry J. Bemporad United States Magistrate Judge

To the Honorable United States District Judge Fred Biery:

This Report and Recommendation concerns the Motion to Dismiss filed by Defendant Comal Independent School District. (Docket Entry 9.) Pretrial matters in this case have been referred to the undersigned for consideration. (See Docket Entry 18.) For the reasons set out below, I recommend that Defendant's Motion to Dismiss (Docket Entry 9) be GRANTED.

I. Jurisdiction.

Plaintiffs' suit presents claims under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., 42 U.S.C. § 1983, as well as a state law claim. (See Docket Entry 1, at 812.) The Court has original jurisdiction over federal claims pursuant to 28 U.S.C. § 1331, and it exercises supplemental jurisdiction over Plaintiffs' state claim pursuant to 28 U.S.C. § 1367. I have authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

II. Background.^[1]

Plaintiff Katy Smith was a physical education teacher at Defendant Comal Independent School District (“CISD”) where her four-year-old daughter, Plaintiff Jane Doe, was a student. (Docket Entry 1, at ¶ 1.)

On October 13, 2021, while Jane Doe remained at school after hours with her mother, an incident occurred between Jane Doe and a student enrolled in the special education program (“the Special Education Student” or “the Student”), who was eight. (Docket Entry ¶¶ 1 16.) The Special Education Student was participating in Defendant's afterschool program. (Id. at ¶ 16.) Plaintiffs allege that the Special Education Student stopped Jane Doe on the way to the gym bathroom, removed Jane Doe's toys from her hands, and maneuvered Jane Doe into the bathroom. (Id. at ¶ 10.) After Jane Doe entered a bathroom stall and shut the door, the Student crawled under the door into Jane Doe's stall. (Id. at ¶ 11.) The Student then “told Jane Doe that Jane Doe needed to defecate and allow [the Student] to wipe her.” (Id. at ¶ 12.) Jane Doe told the Student that she did not need help, but the Student insisted and then physically forced her; the Student “touched Jane Doe's anus, wiping it.” (Id. at ¶¶ 12, 13.)

During this incident, the Student was unsupervised for approximately forty minutes and wiped at least one other child. (Docket Entry 1, at ¶¶ 14, 16.) Plaintiffs allege that the Student “has a history of masturbating in front of students and ... has had multiple issues in the past.” (Id. at ¶ 3.) According to Plaintiffs, the school district was aware of the Student's prior conduct but the afterschool program staff either “was not trained or noticed” about the Student's tendencies or did know “about them and still allowed her to be absent for an extended period of time.” (Id. at ¶ 18.)

Plaintiff Smith went through the school district's grievance process; at the level three grievance hearing, the school board voted 6 to 1 against finding the administration at fault. (Docket Entry 1, at ¶ 7.) Plaintiffs then filed this suit against Defendant alleging violations of Title IX § 1983, and gross negligence under Texas law. (Docket Entry 1.) III. Legal Standard.

Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a cause of action in a complaint when it fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss under 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Henley v. Biloxi H.M.A., L.L.C., 48 F.4th 350, 353 (5th Cir. 2022) (citation omitted). “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.” Id. “While the court must accept the facts in the complaint as true, it will ‘not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.'” Arnold, 979 F.3d at 266 (citation omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Firefighters' Ret. Sys. v. Grant Thornton, L.L.P., 894 F.3d 655, 669 (5th Cir. 2018) (citation omitted).

In deciding a Rule 12(b)(6) motion to dismiss, “[t]he court's review is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Allen v. Vertafore, Inc., 28 F.4th 613, 616 (5th Cir. 2022) (citation omitted).^[2]

IV. Analysis.

Plaintiffs bring claims under Title IX and § 1983, as well as a state law gross negligence claim. Defendant seeks to dismiss each of Plaintiffs' claims for failure to state a claim for relief. Each claim will be addressed in turn.

A. Title IX Claim.

Plaintiffs' first claim arises under Title IX, which provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Title IX includes a private right of action through which “school districts may be liable for, among other things, student-on-student sexual harassment.” Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 341 (5th Cir. 2022) (citation omitted).

To state a Title IX claim against a school district for student-on-student harassment, a plaintiff must allege:

the district (1) had 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.

Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 534 F.Supp.3d 682, 688 (N.D. Tex. 2021) (citation omitted). Defendant challenges Plaintiffs' allegations as to each element of this claim.

1. Knowledge.

To be held liable, the school district “must have actual knowledge that harassment has occurred, is occurring, or that there is a ‘substantial risk that sexual abuse would occur.'” CypressFairbanks, 53 F.4th at 341 (citation omitted). “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id.

Plaintiffs allege that the Special Education Student had a “history of masturbating in front of students and ... has had multiple issues in the past.” (Docket Entry 1, at ¶ 3.) According to Plaintiffs, the school district was aware of the Student's tendencies and chose not to train or give notice to the afterschool staff and had no appropriate supervision in place. (Id. at ¶¶ 47, 53.)

Defendant argues that Plaintiffs' allegations regarding the Special Education Student's prior conduct is not sufficient to put school officials on notice that the Student might try to touch or wipe Jane Doe and that school officials did not perceive a substantial risk of serious harm to Jane Doe. (Docket Entry 9, at 4.) At this stage in the proceedings, however, Plaintiffs' claim need only be plausible to survive dismissal. Plaintiffs' allegations that Defendant was aware of the Student's prior conduct are sufficient, at this early stage, to support a plausible inference that a risk of harm existed.

2. Control.

Defendant argues it did not have substantial control over the students because the alleged incident occurred after school hours, and Jane Doe was not enrolled in the afterschool program. (Docket Entry 9, at 5.)

A school district's liability is limited to “circumstances wherein the [district] exercises substantial control over both the harasser and the context in which the known harassment occurs.” Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645 (1999). The Supreme Court interpreted “control” to mean that “the harasser is under the school's disciplinary authority.” Id. at 647. The school district is said to have substantial control when the misconduct occurs during school hours and on school grounds or while the students are involved in school activities or otherwise under the supervision of school employees. Id. at 646.

As explained by Davis, Title IX requires Defendant to have control over the alleged harasser, not the victim. See 526 U.S. at 646-47. Plaintiffs allege that the Special Education Student's prior conduct occurred during school hours, and that the incident with Jane Doe occurred while the Student was enrolled in Defendant's afterschool program. (Docket Entry 1, at ¶¶ 2-3, 16.) These allegations are sufficient to allege that Defendant had substantial control over both the harasser and the context in which the harassment occurred. See Davis, 526 U.S. at 646-47.

3. Based on the victim's sex.

Defendant argues that the actions of the Special Education Student were not based on Jane Doe's sex. (Docket Entry 9, at 7.) Same-sex sexual harassment is actionable under Title IX so long as the offensive behavior is based on sex and “not merely tinged with offensive sexual connotations.” Sanches v. Carrollton-Farmers Branch Indep. Sch Dist., 647 F.3d 156, 165 (5th Cir. 2011) (citation omitted). In this case, Plaintiffs have alleged that the Special Education Student previously masturbated in front of students; such...