U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

Race Abuse by Students Not Within Title VI's Scope, 5th Cir. Rules

What's a school's liability for discrimination suffered by its students at the hands of other students? This was the broad legal question posed by the Fennell family in Kyana Fennell v. Marion Independent School District.

The Fifth Circuit dismiss the complaint against a Marion Independent School District (MISD) and several of its employees. The circuit court found that school officials were not "deliberately indifferent" to racist student behaviors.

Fennell Family's List Incidents

The Fennell Family daughters were high school students who attended Marion ISD, a community that is largely Caucasian. Over the course of several years, the daughters suffered pointed race abuse by several other students over several years' span, including:

  • Statements by students that black girls aren't pretty enough to be cheerleaders
  • A note with the statement "Die F*ckin' n*****r sisters; "Whites will always rule this school!!!!"
  • A noose alongside the printed note

Et cetera. These examples are not only offensive, but fear inducing. The actual complete list is actually quite a bit longer. This case is particularly sobering because of the detailed accounts of racial abuse the family suffered.

School's Response

The facts were established that for every single incident the girls reported to MISD, at least some steps were taken to address the issue: parents were called, students were suspended, and the entire class was made to run laps when none of the students would admit to the abuse.

Applications of Davis

At first, the Circuit Court struggled with the question of how best to apply Title VI of the Civil Rights Act on a racially hostile environment involving student-on-student hate behavior. For the Fifth Circuit, it was a case of first impression.

The circuit court considered two frameworks for the analysis but eventually settled on a four pronged analysis as set out in the case Davis vs. Monroe 526 uS. 629, 650 (1999), as per the Supremacy Clause. The court noted that several appeals courts had applied Davis and found that a "deliberate indifference" standard applied to Title VI student-on-student harassment claims."

"Deliberately Indifferent"

Davis established a four element test as to whether or not a Title IV claim could be sustained against a school that received federal education funding. First, the harassment would have to be severe, pervasive and objectively offensive to deprive victims of education opportunities provided by a school. Second, the school must have had actual knowledge of the abuse. Third, the school would have had dominion and control over the environment where the abuse occurred. Fourth, the school was "deliberately indifferent."

Both courts found that the facts supported all three of the first elements. The girls had sustained abuse by fellow students outside of their school, but enough incidents occurred on school grounds to establish a long and shameful record. To its credit, the school took steps in addressing each of those incidents.

Ironically, that was partly the problem. The circuit found that these steps proved that the MISD was not "deliberately indifferent" the Fennell's plight. Had it not been for this last element, MISD would have been liable under Title VI.

Had MISD administrators done nothing, it would have given the appearance of actual deliberate indifference. But MISD is hardly a winner because publicity arising out of this decision. This decision has already ruffled feathers by legal commentators and again shining a light on whether policy is as effective as proponents would like to believe. It doesn't appear a solution will be found soon.

Related Resources: