     Case: 18-20113      Document: 00515008209         Page: 1    Date Filed: 06/24/2019




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                       No. 18-20113                    June 24, 2019
                                                                      Lyle W. Cayce
I. L.,                                                                     Clerk


               Plaintiff - Appellant

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT; ROBERT SCOTT
ALLEN, Individually and In His Official Capacity; HARRISON PETERS,
Individually and In His Official Capacity; JUSTIN FUENTES, Individually
and In His Official Capacity,

               Defendants - Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-2503


Before DAVIS, JONES, and DENNIS, Circuit Judges.
EDITH H. JONES, Circuit Judge: *
         An incoming student experienced an incident of unwanted sexual contact
with an older student on the premises of Houston’s High School for the
Performing and Visual Arts (“HSPVA”) during school hours.                    After this was
reported, the Houston Independent School District (“HISD”) performed an
immediate internal investigation, while turning over a potential criminal


         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.
    Case: 18-20113         Document: 00515008209         Page: 2    Date Filed: 06/24/2019




                                       No. 18-20113

investigation to the district’s police department.          HISD also placed a strict no-
contact order on the male student that was largely successful in preventing all
contact between him and the victim and prevented any further sexual
harassment.       Having carefully reviewed the record in light of the parties’
briefs, oral argument and applicable law, we conclude that the district court
correctly granted summary judgment to HISD on Plaintiff’s Title IX claim.                 As
a matter of law, the school district did not act with deliberate indifference.
                                     BACKGROUND
      On August 15, 2014, during orientation for the upcoming school year,
Appellant I.L. 1 was sexually assaulted by a fellow student (“S.S.”) at HSPVA.
The students had previously exchanged text messages, some of which were
graphic, but I.L. declined S.S.’s request for a romantic relationship.             After the
sexual assault, I.L. was found crying uncontrollably in a restroom by her friend
and was escorted to a counselor’s office.         There, she completed a handwritten
statement at the request of the school counselor, Travis Springfield. Both
students’ parents were called, and the school Principal, Robert Allen, and
Assistant Principal, Mercy Alonso-Rodriguez, questioned S.S. until HISD
police officers began questioning the young man.
      Based on the text messages and a security video, both of which are
unavailable, school officials testified that they were initially uncertain about
whether the sexual contact was consensual.                     School officials did not
immediately discipline S.S., but instituted a program to keep the students
separated until the conclusion of an HISD police investigation.               Larry Trout,
an Assistant Principal, was tasked with ensuring that S.S. had no contact with

      1   Because the students involved were minors they are referred to by their initials.
                                             2
       Case: 18-20113   Document: 00515008209     Page: 3    Date Filed: 06/24/2019




                                   No. 18-20113

I.L.    He spoke with S.S. the same day, told him that he was to have no contact
with I.L., that if S.S. saw I.L. in the hallway he should go the opposite direction,
that he was not to be alone with I.L. at any time, and that if I.L. entered a room
he was in he had to leave the room immediately.      These instructions were also
communicated to S.S.’s mother.      Throughout the first semester of the 2014–
2015 school year, Trout would find S.S. during lunch, in the hallway, or after
school to ensure S.S.’s compliance, and he met with S.S. monthly to ask
whether there was any contact.      Trout testified that he neither observed nor
heard about any such contact.
        The school otherwise tried to support I.L. in several ways.      Assistant
Principal Rodriguez told I.L. she was available any time she needed to talk,
and would periodically ask I.L. how she was doing, to which I.L. always
responded that she was doing fine. Springfield worked with I.L.’s parents to
address her academic and attendance problems and told her that she could
come to him any time she felt upset.     I.L. suffered in her mental and physical
health throughout the 2014–2015 school year and eventually transferred to
another school during the second semester of the school year.
        The school’s no-contact regime was largely successful.       I.L. and S.S.
never came into contact except for an occasion when they inadvertently
bumped into each other in a school staircase. I.L. did complain to Springfield
that she continued to see S.S. in the hallway and at lunch, which upset her,
but Springfield replied this was inevitable on a small campus.
        Plaintiffs, I.L. and her parents, filed this lawsuit, and after a round of
amended complaints and motions to dismiss, only a Title IX discrimination
claim against HISD and an equal protection claim under 42 U.S.C § 1983

                                         3
       Case: 18-20113   Document: 00515008209     Page: 4    Date Filed: 06/24/2019




                                  No. 18-20113

against the individual defendants remained.          The district court granted
summary judgment in favor of HISD on both claims.           On the Title IX claim,
the district court rejected Plaintiffs’ argument that HISD should have
“conducted a more thorough investigation independent of the HISD police
department investigation, and that HISD should have taken more severe
action against S.S.” and concluded that her evidence did not support a Title IX
claim.    Plaintiffs have appealed only the disposition of the Title IX claim.
        Restated in more detail, the district court found that the school’s
response to the incident, including its investigation and deference to the HISD
police department investigation, were not clearly unreasonable as a matter of
law.     First, the school did investigate by interviewing both parties and
reviewing surveillance footage.       Second, Plaintiffs did not identify any
witnesses that HISD failed to interview or any additional investigation HISD
should have conducted.      Third, Plaintiffs’ complaint that school staff did not
report the incident to Texas Child Protective Services (“CPS”) or state law
enforcement, but only to the school police, misunderstands the Texas Family
Code, which allows a report of child abuse to be made to a local law
enforcement agency.      See TEX. FAMILY CODE § 261.103(a)(1).          In the end,
the court reasoned, HISD’s decision to “rely on the investigative expertise of a
law enforcement agency” by deferring to the investigation of its police
department, rather than its own staff, is “not ‘clearly unreasonable’” where
there is “some indication that the incident may have been consensual, and
where there is the potential for criminal charges if it was an assault.”
        Similarly, the district court found that the restrictions imposed on S.S.
were “significant” and “successful in preventing all but isolated encounters

                                         4
    Case: 18-20113      Document: 00515008209     Page: 5   Date Filed: 06/24/2019




                                   No. 18-20113

between the two students” and thus were not clearly unreasonable as a matter
of law.   While Plaintiffs argued that they advised school staff that I.L. felt
uncomfortable, the “extremely vague” testimony established only that I.L.’s
mother told school staff that I.L. “wasn’t feeling comfortable at school,” and
her father talked to Rodriguez about an “unspecified topic.”    I.L. identified “no
statements . . . that would have placed the school on notice that S.S. was
continuing to harass I.L., if there was in fact ongoing harassment,” and I.L.’s
testimony undermined that contention.
      On appeal, Plaintiffs principally repeat the arguments they pressed
below.    They fault the school’s response in five ways: (1) failing to immediately
discipline S.S.; (2) waiting on the HISD police report; (3) failing to report the
sexual assault to Texas Child Protective Services (“CPS”); (4) ignoring I.L.’s
physical and mental symptoms; and (5) ignoring I.L.’s parent’s requests.
Taken together, they argue, these failures demonstrate that HISD had
knowledge of the harassment, was deliberately indifferent to I.L.’s needs, and
denied I.L. the benefits of her education in violation of Title IX.         HISD
responds that I.L. has not adduced evidence to imply (1) that the district had
any actual knowledge of problems between I.L. and S.S. preceding the sexual
assault or any ongoing sexual harassment of I.L. by S.S., or (2) that HISD’s
actions were deliberately indifferent.
                           STANDARD OF REVIEW
      “We review [a] summary judgment de novo.”                Dunn–McCampbell
Royalty Interest, Inc. v. Nat'l Park Serv., 630 F.3d 431, 435 (5th Cir. 2011).
Summary judgment is appropriate if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.      Fed. R. Civ.

                                         5
    Case: 18-20113     Document: 00515008209        Page: 6    Date Filed: 06/24/2019




                                   No. 18-20113

P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505
(1986).   The evidence is to be viewed “in the light most favorable to the non-
moving party.”    Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 1356 (1986).       The movant has the burden of showing
that summary judgment is appropriate.            Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S. Ct. 2548 (1986).        Once the moving party has carried its
burden, the non-movant must come forward with specific facts showing a
genuine factual issue for trial.   Id.
                                   DISCUSSION
      Title IX provides that “no 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).       A school that receives
federal funding may be held liable for student-on-student sexual harassment.
See Davis v. Monroe Cty. Bd of Educ., 526 U.S. 629, 119 S. Ct. 1661 (1999);
Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165
(5th Cir. 2011). To prove such a claim, a plaintiff must show that “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 barred the victim’s access to an educational opportunity or benefit,
and (5) the district was deliberately indifferent to the harassment.” Doe v.
Columbia-Brazoria Indep. Sch. Dist., 855 F.3d 681, 689 (5th Cir. 2017)
(quoting Sanches, 647 F.3d at 165).


                                          6
     Case: 18-20113      Document: 00515008209           Page: 7     Date Filed: 06/24/2019




                                      No. 18-20113

       Deliberate indifference under Title IX means that the school’s response
or lack of response was “clearly unreasonable in light of the known
circumstances.”      Sanches, 647 F.3d at 167–68 (citations omitted).              Neither
“negligence nor mere unreasonableness is enough.”              Id.     (citations omitted).
Schools need not “remedy the harassment or accede to a parent's remedial
demands,” and “courts should refrain from second-guessing the disciplinary
decisions made by school administrators.”          Id.    (citations omitted).     The law
does not require schools to expel or suspend any student accused of sexual
harassment in order to avoid liability.             See Davis, 526 U.S. at 648–49,
119 S. Ct. at 1661, 1673–74 (schools need not “purg[e]” all harassment or expel
every student accused of misconduct).          “[T]here is no reason why courts, on a
motion . . . for summary judgment . . . could not identify a response as not
clearly unreasonable as a matter of law.”                Sanches, 647 F.3d at 167–68
(citations omitted).
       The district court correctly concluded that Plaintiffs’ evidence and
arguments do not support a Title IX claim because HISD’s response was not
clearly unreasonable as a matter of law.         Plaintiffs’ argue in essence that the
school was deliberately indifferent because it should have done more to
investigate the sexual assault allegations, should have been more responsive
to I.L.’s parents’ demands, such as expelling or suspending S.S. or allowing I.L.
to transfer promptly to another school, and should have complied with certain
administrative requirements. 2 But Plaintiff ignores what the district did do.


       2 As the district court noted, I.L.’s complaint that school staff did not report the
incident to Texas Child Protective Services or state law enforcement, but only to the school
police, misunderstands the Texas Family Code, which allows a report of child abuse to be
made to a local law enforcement agency. See TEX. FAMILY CODE § 261.103(a)(1).
                                              7
     Case: 18-20113        Document: 00515008209           Page: 8     Date Filed: 06/24/2019




                                        No. 18-20113

The school immediately investigated the sexual assault and implemented
remedial measures that were almost entirely successful in eliminating any
contact between the students and prevented future sexual contact or
harassment.        Even if the school’s investigative and disciplinary response
could have been better, neither “negligence nor mere unreasonableness is
enough” to support a Title IX deliberate indifference claim.                          Sanches,
647 F.3d at 167–68 (citations omitted).
       That this case involves a single instance of sexual harassment on a school
campus is particularly relevant to our analysis. 3 I.L. does not allege that the
school knew of any prior subsequent sexual harassment by S.S., including the
text messages, or that those messages constituted sexual harassment.                         The
school’s response to the assault protected I.L. from later sexual harassment
and nearly all contact with S.S.           Because the deliberate indifference inquiry
focuses on the school’s response to known harassment, the response must be
so deficient as to itself constitute harassment.              Based on the success of the
measures HISD invoked, however, no reasonable jury could conclude that the
school’s response was clearly unreasonable.



       3  The Supreme Court has recognized that single instances of sexual harassment
typically do not involve behavior “serious enough to have the systemic effect of denying the
victim equal access to an educational program or activity.” Davis v. Monroe Cty. Bd. of
Educ., 526 U.S. 629, 652–53, 119 S. Ct. 1671, 1676 (1999). Thus, Title IX claims typically
do not attach to a single instance of sexual harassment. The Court reasoned that Congress
could not have intended such a result in light of the “inevitability of student misconduct and
the amount of litigation that would be invited by entertaining claims of official indifference
to a single instance of one-on-one peer harassment.” Id. Thus, the Court, “[b]y limiting
private damages actions to cases having a systemic effect on educational programs or
activities, [] reconcile[d] the general principle that Title IX prohibits official indifference to
known peer sexual harassment with the practical realities of responding to student behavior,
realities that Congress could not have meant to be ignored.” Id.
                                                8
    Case: 18-20113     Document: 00515008209      Page: 9   Date Filed: 06/24/2019




                                  No. 18-20113

      Nor was the school required to provide I.L. with her chosen remedy, for
schools need not “remedy the harassment or accede to a parent's remedial
demands,” and “courts should refrain from second-guessing the disciplinary
decisions made by school administrators.”        Id.   (citations omitted).   The
school might have suspended or expelled S.S., as it ultimately did because he
committed further sexual misconduct immediately before graduation, but the
law does not require that response in order to avert Title IX liability.       See
Davis, 526 U.S. at 648–49, 119 S. Ct. at 1661, 1673–74.
      I.L. argues that summary judgment should be denied because of
additional disputed factual issues – including whether the sexual assault was
consensual and what was the nature of school-parent interaction.        But these
factual disputes are immaterial to whether the school’s response was clearly
unreasonable as a matter of law.       First, whether the assault was actually
consensual is not relevant.   It is the school’s response to allegations of sexual
assault, consensual or not, that determines whether the school acted with
deliberate indifference.   We agree with the reasoning of the district court
that in “a situation where there is some indication that the incident may have
been consensual, and where there is the potential for criminal charges if it was
an assault, it is not ‘clearly unreasonable’ to rely on the investigative expertise
of a law enforcement agency.”    This analysis did not presume that the act was
consensual, but instead gauged the district’s response to a factually complex
situation.
      Second, the competing evidence concerning interactions between the
school and the parents does not foreclose summary judgment.           Even when
viewed in the light most favorable to I.L., these vague communications are

                                        9
   Case: 18-20113     Document: 00515008209     Page: 10   Date Filed: 06/24/2019




                                 No. 18-20113

insufficient to establish that the school district possessed any knowledge that
might have rendered its response deliberately indifferent.    The district court
correctly noted that “the cited testimony is extremely vague and establishes
only that I.L.’s mother notified HSPVA that I.L. ‘wasn’t feeling comfortable at
school’ and her father talked to Rodriguez about some unidentified topic.”   I.L.
also argues that the school was deliberately indifferent to I.L.’s emotional and
physical health problems, which she argues are symptoms of PTSD from the
sexual assault.     But she has not established that HISD connected these
symptoms to her assault rather than her epilepsy, of which it was aware. Nor
does the evidence furnish a basis for inferring that HISD was informed of any
potential connection by I.L., her parents, or medical sources.      In fact, I.L.
admits more than once that she never confided in the school counselors, or even
her parents, about her ongoing fears.    These vague communications raise no
genuine, material issue as to whether HISD responded with deliberate
indifference to I.L.’s condition in the weeks and months following the assault.
      The grant of summary judgment here is supported by decisions of other
circuits arising from similar facts.    In Gabrielle M. v. Park Forest-Chicago
Heights, Ill. Sch. Dist. 163, 315 F.3d 817 (7th Cir. 2003), the court rejected a
plaintiff’s suggestion that a school’s response to peer harassment was clearly
unreasonable even though the school was unsuccessful in preventing future
sexual harassment.     Title IX did not require that “the school district must
have effectively ended all interaction between the two students to prevent
conclusively any further harassment” because “Davis does not require funding
recipients to remedy peer harassment.”          Id. at 825.     Rather, “Davis
disapproved of a standard that would force funding recipients to suspend or

                                        10
   Case: 18-20113     Document: 00515008209       Page: 11   Date Filed: 06/24/2019




                                 No. 18-20113

expel every student accused of misconduct.    All that Davis requires is that the
school not act clearly unreasonably in response to known instances of
harassment.”    Id. at 825 (citations omitted).     See also Deweese v. Bowling
Green Indep. Sch. Dist., 709 F. App’x. 775 (6th Cir. 2017) (finding no Title IX
liability because the remedy following sexual assault prevented the male
student from further harassing the victim although the students continued to
see each other daily and offender remained on campus).
      In no way do we minimize the consequences to I.L. of the assault she
endured or its consequences for her well-being.      Under the law applicable to
recipients of federal funding, however, and on the facts established in this
record, there is no dispute that HISD did not exhibit deliberate indifference in
responding to the assault, preventing further harassment, dealing with S.S.,
and attempting to palliate I.L.’s experience at school.
                               CONCLUSION
      The judgment of the district court is AFFIRMED.




                                       11
