E. M. v. Austin Independent School Dist ( 2019 )

Case: 18-50256 Document: 00514975684 Page: 1 Date Filed: 05/29/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 29, 2019
No. 18-50256
Lyle W. Cayce
Clerk
E. M., a Minor Child, By Next Friend of Mr. J. M. and Mrs. J. M.,
Plaintiff-Appellant,
v.
AUSTIN INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-387
Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
In this Title IX suit, E.M. alleges that she was subject to harassment
during her junior year in high school. The alleged harasser is D.M., a male
student who, upset about E.M. rejecting his romantic advances, engaged in
repeated conduct that made E.M. feel deeply uncomfortable and unsafe at
school. This behavior culminated in D.M.’s jumping over a railing on the
second floor of the school in an apparent suicide attempt while E.M. was
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 18-50256
watching. A teacher broke his fall and he was not seriously injured. But E.M.,
not knowing that D.M. was not harmed, was distraught over D.M’s attempt on
his life. Indeed, after the incident, a school counselor told her that “D.M. was
obsessed with her and that his actions were connected to his unrequited love
for her.”
A school district is liable for student-on-student harassment only if,
among other things, the district knew about the harassment and was
deliberately indifferent to it. Sanches v. Carrollton-Farmers Branch Indep.
Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011). For the district to have
knowledge, it is not enough that any employee learns of the harassment. The
employee must, at minimum, have the authority to “institute corrective
measures on the [school’s] behalf” to put the school on notice. Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). Deliberate indifference, too,
is a “high bar;” “neither negligence nor mere unreasonableness is enough.”
Sanches, 647 F.3d at 167 (citing Davis ex rel. Lashonda D. v. Monroe Cnty. Bd.
of Educ., 526 U.S. 629, 642, 648 (1999)).
We agree with the district court’s conclusion that no school official with
the relevant authority knew about the harassment until the apparent suicide
attempt. At that point, the school took corrective measures that, even if not
ideal or what E.M. preferred, are at odds with a finding of deliberate
indifference. Specifically, the school adopted a safety plan to provide E.M. with
a security guard escort and updated the plan multiple times in response to
complaints from E.M. As part of the plan, the school modified D.M.’s schedule
to minimize encounters between the two students. The school also created a
specific plan for choir, an activity both students participated in. These
proactive measures show that the district was attentive to, rather than
indifferent to, E.M.’s situation once it learned about the problem. That is
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No. 18-50256
enough under the deliberate indifference standard, which does not allow us to
second-guess the soundness of the corrective measures. Such second-guessing
would be especially inappropriate here as the school faced the difficult task of
adopting measures that would both prevent future harassment of E.M. and
address the serious mental health issues that D.M. was facing.
We therefore agree with the district court, essentially for the reasons
outlined in the magistrate judge’s report it adopted, that this case does not
involve a Title IX violation. The judgment is AFFIRMED.
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