Menzia v. Austin Indep School Dist ( 2022 )

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 25, 2022
No. 21-50979 Lyle W. Cayce
Clerk
Therese Menzia, parent of Z.M.-D., a minor child,
Plaintiff—Appellant,
versus
Austin Independent School District,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CV-991
Before Smith, Clement, and Haynes, Circuit Judges.
Edith Brown Clement, Circuit Judge:
Z.M.-D., a person of color and of mixed heritage, alleged that she was
harassed by her peers on the basis of her race and national origin during her
sixth-grade year in the Austin Independent School District. By her next
friend and parent, Z.M.-D. sued the District for failure to address the
reported harassment. The district court ultimately dismissed the suit.
For the reasons that follow, we AFFIRM.
No. 21-50979
I
A
Z.M.-D. immigrated to the United States from Cameroon when she
was eight years old. She attended sixth grade at Martin Middle School in the
Austin Independent School District (Austin ISD or District) from August
2017 to December 2017. During that time, eight students (Harassers) bullied
her “on a daily basis” because of her race and national origin. The Harassers
called her racial slurs and told her to “go back where [she] came from.” The
harassment included physical contact, like shoving. It got so bad that Z.M.-
D. “did not want to go to school anymore.”
On September 26, 2017, Z.M.-D. and her mother, Therese Menzia,
reported these incidents and the names of the Harassers to David Lopez,
Assistant Principal for the sixth grade. Lopez said that he would call the
parents of the Harassers and then follow up with Menzia to ensure the
bullying had stopped. Lopez neither spoke with any parents of the Harassers
nor followed up with Menzia. But it is undisputed that he spoke with at least
one of the Harassers about the harassment.
On October 13, Z.M.-D. told a teacher she “didn’t want to . . . live
anymore” because of the harassment. The teacher brought Z.M.-D. to Asha
Creary, the school counselor, who performed a suicide assessment using the
Columbia-Suicide Severity Rating Scale. Z.M.-D. did not test suicidal.1
1
The magistrate judge found that Z.M.-D. tested as suicidal. This error likely
derived from Creary’s note that Z.M.-D.’s “responses were with a 7.” Category 7 on the
Columbia-Suicide Severity Rating Scale indicates suicidal behavior. See Mary E. Nilsson,
M.E., et al., Columbia-Suicide Severity Rating Scale Scoring & Data Analysis Guide (Feb.
2013), https://cssrs.columbia.edu/wp-content/uploads/ScoringandDataAnalysisGuide-
for-Clinical-Trials-1.pdf. But Creary’s note referred to Z.M.-D.’s responses to the
questions “[H]ow you’ve been feeling on a scale of 1 to 10” and “What’s the lowest
number you’ve felt in the past two weeks?”
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No. 21-50979
Creary called Menzia to pick up Z.M.-D. While there, Menzia signed
referrals allowing further counseling services. Menzia also talked to Lopez,
who confessed he had not spoken with any parents of the Harassers because
he had made one phone call and no one answered. But he said that he would
open an investigation into the reported harassment.
Two school days later, Z.M.-D. assaulted one Harasser, purportedly
in response to being called a “bitch.” The parents of the Harasser wanted to
press criminal charges. After investigating the physical altercation, campus
resource officer, Tim Osio, arrested Z.M.-D. for assault. But Osio released
Z.M.-D. to Menzia’s custody. That day, Menzia followed up with Lopez
about his investigation. Lopez said he had concluded, “[Z.M.-D.] is the
bully.” He said he had conducted the investigation, including multiple
interviews with students and staff, on Friday, October 13. Menzia protested
that she had not requested the investigation until after school let out that
Friday. Lopez said that he had actually completed the investigation on
Monday, October 16. But Menzia later discovered from a school police
officer that Lopez could not have conducted the investigation on Monday
“because he was [in] training the whole day.” Lopez also told Principal
Delagarza-Conness that he had been “unable to effectively investigate and
provide appropriate discipline.” Later that day, Lopez sent Menzia a report
officially concluding his investigation and finding that “the negative
interaction of the two students was mutual” and “the reported conduct does
not constitute ‘bullying’ or ‘harassment’ as defined in law and District
policy.” Recognizing “Menzia’s unhappiness with [ ] Lopez” and in an
effort “to make Z.M.-D. and [ ] Menzia feel comfortable coming to
administration with any issues,” Delagarza-Conness reassigned Z.M.-D. to
Brittany Showels, Assistant Principal for all seventh graders.
On October 18, Z.M.-D. and Menzia attended a removal conference
to determine the appropriate discipline for the October 17 assault. Among
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No. 21-50979
others, Creary, Showels, and Delagarza-Conness attended. Ultimately,
Z.M.-D. received the lowest level of discipline under Austin ISD’s
mandatory policy for assaults: three days’ suspension and removal to the
District’s Alternative Learning Center (ALC) for thirty days.
Before Z.M.-D. was removed to the ALC, she attempted to cut herself
with a pair of scissors. She was admitted to Shoal Creek Hospital for
psychiatric evaluation and treatment of depression and suicidal ideation. She
remained for four days of inpatient treatment. Then, she stayed home from
school for about three weeks. Meanwhile, Menzia appealed the District’s
decision to remove Z.M.-D. to the ALC. Menzia also requested Z.M.-D. be
transferred. The District denied the transfer request but reversed its decision
to remove Z.M.-D. to the ALC. The District also eventually removed the
assault from Z.M.-D.’s disciplinary record.
Upon returning to school in early November, Z.M.-D. reported more
incidents of harassment. On November 9, Z.M.-D. reported that Harassers
called her racial slurs; on November 14, that Harassers touched her hair and
told her that she smelled; on November 15, that a Harasser threw a ball at her
face during school; and on November 17, that Harassers sprayed perfume in
her face while telling her that she smelled.
On November 17, Menzia emailed Delagarza-Conness the names of
the Harassers involved in the recent incidents. The same day, Z.M.-D. met
with Delagarza-Conness, Lopez, Showels, and a school police officer. Austin
ISD implemented a “Stay Away Agreement” between the Harassers and
Z.M.-D., which directed both parties to avoid interacting during the school
day and at all school events. Showels and the school police officer also
opened an investigation into the allegations. However, Z.M.-D. refused to
cooperate. Menzia had told Z.M.-D. not to cooperate because she did not
believe the administrators would help. At Delagarza-Conness’s request,
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No. 21-50979
Menzia ultimately agreed to encourage Z.M.-D. to report harassment. No
other incidents were reported.
On November 27, Menzia requested that Z.M.-D. be transferred to
another school in the District. The request was granted and, in December,
Z.M.-D. transferred to Kealing Middle School.
B
On October 11, 2019, Z.M.-D., by and through Menzia, sued Austin
ISD, bringing claims under 42 U.S.C. § 1983 and Title VI of the Civil Rights
Act of 1964. Menzia alleged that Austin ISD failed to train staff and address
complaints of reported peer harassment based on race and national origin
and, as a consequence, Z.M.-D. suffered damages.
Austin ISD moved to dismiss under Federal Rule of Civil Procedure
12(b)(6). The district court granted the motion as to the § 1983 claim but
denied it as to the Title VI claim. The District then moved for summary
judgment on the Title VI claim. A magistrate judge recommended denying
the motion, finding triable issues of fact as to whether the District was
deliberately indifferent. Austin ISD objected to this finding and conclusion.
The district court agreed with Austin ISD, finding that the District was not
deliberately indifferent as a matter of law because it “took some action in
response to all of the incidents noted by Plaintiffs, including meeting with
Plaintiffs, attempting to contact the parents of the other students reported by
Plaintiffs, conducting an investigation and filing a report, offering Plaintiffs
counseling services, and ultimately replacing the administrator in charge of
Plaintiffs’ claims on October 17, 2017, following a physical altercation
between the victim and another student.” The court granted the motion for
summary judgment and dismissed the Title VI claim. The court denied
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No. 21-50979
reconsideration under Rule 59(e). Menzia timely appealed the grant of
summary judgment and dismissal of the Title VI claim. 2
II
We review the grant of summary judgment de novo. See Estate of Lance
v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 989 (5th Cir. 2014). Summary
judgment is appropriate only if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). On summary judgment, we “view[] all evidence in the light
most favorable to the nonmoving party and draw[] all reasonable inferences
in that party’s favor.” Estate of Lance, 743 F.3d at 989 (quoting Pierce v. Dep’t
of the U.S. Air Force, 512 F.3d 184, 186 (5th Cir. 2007)).
Title VI provides that “[n]o person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. A
school district is liable for student-on-student harassment if it “deci[des] to
remain idle in the face of known student-on-student harassment in its
schools.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 641 (1999). To
prevail on a Title VI claim, a student must establish: (1) the harassment was
“so severe, pervasive, and objectively offensive that it can be said to deprive
the victims of access to educational opportunities or benefits provided by the
school”; (2) the district had actual knowledge of the harassment; (3) the
district had “control over the harasser and the environment in which the
harassment occurs”; and (4) the district was deliberately indifferent. Fennell
2
Menzia has abandoned her appeal of the denial of reconsideration.
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No. 21-50979
v. Marion Indep. Sch. Dist., 804 F.3d 398, 408–09 (5th Cir. 2015) (quoting
Davis, 526 U.S. at 644, 650).
III
A
At the threshold, Menzia argues that the district court applied the
wrong legal standard under Title VI. The district court found that Austin
ISD was not deliberately indifferent as a matter of law because it “took some
action in response to all of the incidents.” Menzia argues that this “some
action” standard fails to consider the reasonableness of the responses in light
of the severity of the harassment reported. We agree.
The deliberate-indifference standard under Title VI derives from the
Supreme Court’s opinion in Davis v. Monroe County Board of Education, a
Title IX case alleging sex-based peer harassment. See 526 U.S. 629 (1999);
Fennell, 804 F.3d at 408 (extending Davis to Title VI claims). The Davis
Court held that a school district is liable for peer harassment “only where [it
is] deliberately indifferent to . . . harassment.” 526 U.S. at 650. And a school
district is deliberately indifferent when its “response to the harassment or
lack thereof is clearly unreasonable in light of the known circumstances.” Id. at
648 (emphasis added). Accordingly, we require a school district do more
than simply respond to harassment, it must “respond[] reasonably to a risk of
harm.” Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380, 384 (5th Cir.
2000) (emphasis added). And “what constitutes appropriate remedial
action . . . will necessarily depend on the particular facts of the case.” Id.;
Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 586 (5th Cir. 2020) (“[I]f the
recipient responds reasonably to a risk of harm, it will not be liable[.]”); cf.
Doe v. Sch. Bd. of Broward Cnty., 604 F.3d 1248, 1263 (11th Cir. 2010) (“The
[ ] inquiry is contextual: it does not require school districts to simply do
something in response to [ ] harassment; rather, they must respond in a
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No. 21-50979
manner that is not ‘clearly unreasonable in light of the known
circumstances.’” (quoting Davis, 526 U.S. at 648)).
Fennell provides an illustration. There, we held that a school district
was not deliberately indifferent to students’ allegations of race-based peer
harassment where the district “took some action in response to almost all of
the incidents[.]” Fennell, 804 F.3d at 410. But, in holding that the responses
were not unreasonable as a matter of law, we did not conclude that the simple
fact of action alone was sufficient. We noted the use of “relatively strong
action to address the most egregious incidents” and of “relatively mild”
action in response to the less severe allegations. Id. at 410–11. “Taken
together, [the] relatively weak responses to harassment [were] concerning”
but not clearly unreasonable in light of the overall response. Id. at 411(emphasis added). Fennell instructs an evaluation of the reasonableness of a
district’s responses in light of the severity of the harassment.
Although the opinion below failed to consider the reasonableness of
Austin ISD’s responses against the severity of the reported harassment, the
court ultimately reached the correct result as discussed in the next Section.
B
The district court found that Austin ISD took the following responses
to the reported harassment: “[1] meeting with Plaintiffs, [2] attempting to
contact the parents of the other students reported by Plaintiffs,
[3] conducting an investigation and filing a report, [4] offering Plaintiffs
counseling services, and [5] ultimately replacing the administrator in charge
of Plaintiffs’ claims[.]” Menzia contends that the district court improperly
resolved factual disputes and relied on District actions not properly
considered remedial responses under Title VI. We tend to agree. But the
record establishes that Austin ISD took additional responsive actions not
addressed by the district court, namely: [6] an informal reprimand of one of
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No. 21-50979
the Harassers, [7] an investigation into the October 17 assault, [8] an
investigation into the November incidents of harassment, and [9] a Stay
Away Order executed between the Harassers and Z.M.-D. Viewed in the
totality, these additional responses establish that the District was not
deliberately indifferent as a matter of law. We consider the disputed
responses and the undisputed responses in turn.
1
The district court improperly credited that Lopez conducted an
investigation. Lopez said that he completed his investigation, replete with
multiple interviews, on either Friday, October 13, or Monday, October 16.
But the record supports a genuine dispute of material fact whether Lopez
could have conducted an investigation on either day. Lopez also told
Delagarza-Conness that “he was unable to effectively investigate” the
harassment. At this stage, Menzia is entitled to the inference that Lopez did
not conduct an investigation.
The district court also found that Lopez took remedial action by
calling the parent of a Harasser. Assuming that Lopez did call, which is not
clear in the record, he did not reach a parent, leave a voicemail, or call again.
While remedial actions that later prove ineffective are not clearly
unreasonable responses, a remedial response that a school district knows at
the time of action is ineffective is clearly unreasonable. See Estate of Lance,
743 F.3d at 1000 (noting “knowingly ineffective interventions” support
deliberate indifference); Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253,
261 (6th Cir. 2000) (“Where a school district has actual knowledge that its
remedial action is inadequate and ineffective,” and it does nothing, “such
district has failed to act reasonably in light of the known circumstances”);
Sch. Bd. of Broward Cnty., 604 F.3d at 1260–61 (agreeing with Vance).
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No. 21-50979
Lopez’s attempted call to a parent does not support that Austin ISD was not
deliberately indifferent as a matter of law.
In addition, the district court concluded that Austin ISD’s meetings
with Menzia and Z.M.-D. constituted a remedial action under Title VI.
However, we agree with Menzia that a school district’s meeting with a Title
VI complainant does not constitute responsive remedial action. While
listening to a student’s report of a racially hostile environment is the first step
in taking measures to address it, such a meeting is not itself a “remedial
action,” Dall. Indep. Sch. Dist., 220 F.3d at 384, because it is not a “response
to the harassment,” Davis, 526 U.S. at 648. Similarly, we reject the district
court’s conclusion that the reassignment of Z.M.-D. to Showels was
responsive to the reported harassment. Delagarza-Conness testified that this
transfer was done “to make Z.M.-D. and Ms. Menzia feel comfortable
coming to administration with any issues.” This brings us full circle. A
school district’s meeting with a Title VI complainant to listen to reports of
racial harassment, and its efforts to encourage complainants to make reports,
are not remedial actions responsive to reported harassment under Title VI.
However, we agree with the district court’s conclusion that the
provision of counseling was a remedial action responsive to the harassment.
We recognize Menzia’s point that “the mere act of listening to students is
not a remedy in and of itself,” Feminist Majority Found. v. Hurley, 911 F.3d
674, 690 (4th Cir. 2018), but the record does not support that Z.M.-D. only
received listening services. Counseling generally consists of both listening
and guidance. See Counseling, Cambridge Dictionary (2022); see also
Hurley, 911 F.3d at 693 (suggesting the benefit of counseling to
complainants). Depending on the severity of the harassment, a school
district’s offer of counseling and nothing more may prove a clearly
unreasonable response. E.g., Doe v. Sch. Dist. No. 1, Denver, Colo., 970 F.3d
1300, 1313–14 (10th Cir. 2020) (“The District commendably provided
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No. 21-50979
counseling . . . . But it is not enough to try to help a student cope with the
misbehavior of other students.”). But that is the case with any remedial
response taken by a school district. Here, counseling was just one of a
number of actions taken by Austin ISD in response to the escalating
circumstances of peer harassment.
2
The record establishes that, in addition to providing Z.M.-D.
counseling services, Austin ISD issued an informal reprimand to one of the
Harassers, investigated the October 17 assault, investigated the reported
incidents in November, and executed a Stay Away Order between the
Harassers and Z.M.-D. 3 These responses, viewed in the totality and in light
of the severity of the harassment, establish that Austin ISD was not
deliberately indifferent as a matter of law.
A complete failure to act is an obvious case of deliberate indifference.
See Sewell, 974 F.3d at 586; Fennell, 804 F.3d at 411. And, depending on the
severity of the harassment, a school district may be deliberately indifferent
where it “failed to take additional reasonable measures after it learned that
its initial remedies were ineffective.” Porto v. Town of Tewksbury, 488 F.3d
67, 74 (1st Cir. 2007); see also Vance, 231 F.3d at 262 (noting deliberate
indifference where school district “continued to use the same ineffective
methods to no acknowledged avail”). The facts of this case do not fall into
3
The District argues that we should also consider removal of the assault charge,
reversal of the decision to send Z.M.-D. to the ALC, and grant of the transfer request. We
disagree that these actions support that the District was not deliberately indifferent. At
worst, the revocation of discipline suggests an error in assigning fault and, at best, is akin to
inaction. The grant of a transfer request is not, under these facts, a reasonable remedial
response to harassment because it “further deprive[s] [the student] of [ ] educational
opportunities.” Jennings v. Univ. of N.C., 482 F.3d 686, 707 (4th Cir. 2007) (Gregory, J.,
concurring); Hayut v. State Univ. of N.Y., 352 F.3d 733, 750 (2d Cir. 2003).
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No. 21-50979
either category. It is undisputed that Austin ISD responded to the reported
harassment. And it is undisputed that the District took additional, reasonable
measures after its first approaches were ineffective.
Austin ISD first tried informal discipline—talking to one Harasser
about the reported conduct—coupled with offering counseling services to
Z.M.-D. When the circumstances of harassment escalated with the October
17 assault, a District police officer conducted an investigation. When the
circumstances escalated with Z.M.-D.’s temporary hospitalization and the
harassment continued upon her return to school, the District executed a Stay
Away Agreement and, in addition, opened an investigation into the incidents
reported. That the investigation does not appear to have been completed is
not unreasonable because Menzia instructed Z.M.-D. not to speak with
District administrators, thus impeding the investigation. Had Menzia and
Z.M.-D. cooperated, the District may have taken additional remedial action.
Significantly, Austin ISD’s responses strengthened as the reported
harassment escalated: from informal talks, to counseling, to investigations, to
a Stay Away Agreement. The “mild punishments” chosen in the beginning
must be evaluated alongside the “relatively strong action” in the end.
Fennell, 804 F.3d at 410–11.
The District responses are similar to actions we held sufficient to
establish that a school district was not deliberately indifferent in Sanches v.
Carrollton-Farmers Branch Independent School District, 647 F.3d 156 (5th Cir.
2011). In Sanches, a school district responded to allegations of sex-based
harassment under Title IX by “[taking] statements after each reported event,
[speaking] to [the offender] about her conduct, and remov[ing] [the offender]
from her sixth-period class and cheerleading tryouts.” Id. at 168. We held
that those responses “were not clearly unreasonable merely because the
actions continued” or because the student desired different disciplinary
action. Id. Rather, “[i]neffective responses . . . are not necessarily clearly
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No. 21-50979
unreasonable,” and “[s]chools are not required to remedy the harassment or
accede to a parent’s remedial demands.” Id. at 167–68. So too here.
Certainly, school districts have responded to reports of harassment
with more robust, immediate actions. See, e.g., Fennell, 804 F.3d at 410(school district offered accommodations and suspended harasser); Estate of
Lance, 743 F.3d at 997–1000 (school district adopted “pattern of active
responses . . . to incidents”). But the deliberate-indifference standard “does
not mean that recipients can avoid liability only by purging their schools of
actionable peer harassment or that administrators must engage in particular
disciplinary action.” Davis, 526 U.S. at 648. A showing of deliberate
indifference is a “tall hurdle,” Sewell, 974 F.3d at 586, because a school
district cannot be liable unless it “consciously avoids confronting
harassment,” or responds with “pretextual or knowingly ineffective
interventions,” Estate of Lance, 743 F.3d at 1000; Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 290 (1998) (noting deliberate indifference is an
“official decision” not to remedy misconduct). We are mindful that
“[j]udges make poor vice principals.” Estate of Lance, 743 F.3d at 996. So
long as a school district’s response is not “clearly unreasonable in light of the
known circumstances,” we “refrain from second-guessing the disciplinary
decisions made by school administrators.” Davis, 526 U.S. at 648.
Austin ISD’s responses, “[t]aken together” and in light of the
reported harassment, do not, as a matter of law, rise to deliberate
indifference. Fennell, 804 F.3d at 411. The district court correctly granted
summary judgment to Austin ISD on the Title VI claim. Accordingly, the
remaining arguments raised by the District with respect to record citations
and a racially hostile environment are moot.
* * * *
We AFFIRM.
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