Case: 20-50090     Document: 00515564826         Page: 1     Date Filed: 09/15/2020




              United States Court of Appeals
                   for the Fifth Circuit                                United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                  No. 20-50090                         September 15, 2020
                                                                          Lyle W. Cayce
                                                                               Clerk
   Sonya Brend, B.L. b/n/f,

                                                           Plaintiff—Appellant,

                                       versus

   Copperas Cove Independent School District,

                                                           Defendant—Appellee.


                  Appeal from the United States District Court
                       for the Western District of Texas
                           USDC No. 6:18-CV-00057


   Before Davis, Stewart, and Dennis, Circuit Judges.
   Per Curiam:*
          B.L. and her legal guardian Sonya Brend appeal the district court’s
   grant of summary judgment in favor of the Copperas Cove Independent
   School District in this Title IX case. B.L. claims that, as a seventh grade
   student in the district, (1) starting in September 2015, she was subjected to
   the predominately male-on-female student traditions of “Slap Butt Friday”


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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                                             No. 20-50090


   and “Titty Twister Thursday;” (2) in November, two male students wrote
   her an inappropriate note that they wanted to grab her “booty cheeks;” (3)
   one of the authors of the note, J.A., called her a “slut,” grabbed her by the
   hips and slammed his groin into her, and publicly announced that “If you
   want to have sex with B.L., she’ll do it;” and (4) she was called a “snitch”
   and a “hoe” by other female students.
            A school district that receives federal funds may be liable for student-
   on-student sexual harassment only if, among other things, the district’s
   response to known harassment was clearly unreasonable under the
   circumstances (also referred to as deliberate indifference). 1 For the district
   to have knowledge, “it is not enough that any employee knew of the
   harassment; it must be someone authorized to rectify it.” 2 “[N]either
   negligence nor mere unreasonableness is enough.” 3 To that end, “our
   precedent makes it clear that negligent delays, botched investigations of
   complaints due to the ineptitude of investigators, or responses that most
   reasonable persons could have improved upon do not equate to deliberate
   indifference.” 4
            Assuming without deciding that B.L. suffered actionable sexual
   harassment, she cannot show that the School District was deliberately
   indifferent. The record shows that Assistant Principal Julie Kearney was
   made aware of “Slap Butt Friday” on October 7, 2015, after B.L. was
   involved in an altercation with another female student. While investigating
   the incident, Kearney learned that B.L. herself had been “running around
   slapping everyone on the butt in the locker room” that day and the previous


            1
             Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 

, 650 (1999).
            2
             Doe v. Edgewood Indep. Sch. Dist., 

, 359 (5th Cir. 2020).
           3
             Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 

, 165 (5th Cir. 2011).
           4
             I.F. v. Lewisville Indep. Sch. Dist., 

, 369 (5th Cir. 2019) (quotation marks
   omitted).




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                                        No. 20-50090


   Friday. Kearney informed Brend of B.L.’s conduct and encouraged B.L. to
   report any future instances of “Slap Butt Friday.”
          Later, on October 15, Brend told the School District that she planned
   to meet with a lawyer to discuss B.L.’s harassment. Kearney promptly
   questioned each of B.L.’s teachers, but none were aware of any harassment.
   Kearney attempted to contact Brend, but did not hear back.
          B.L. reported a specific instance of “Slap Butt Friday” on October 30,
   and the male student involved was issued a written warning. Finally, after the
   note incident and B.L.’s allegations of name-calling, the School District’s
   Deputy Superintendent of Operations and Support assigned another
   Assistant Principal to investigate. Several students were interviewed, and
   J.A. was ultimately given detention, instructions to “stay away from [B.L.]
   and not talk to her,” and a warning that future harassment would come with
   further disciplinary action. Lastly, B.L. and J.A.’s teachers were advised to
   be “extra vigilant.” B.L. made no further reports of sexual harassment before
   she withdrew from the school in December.
          School districts enjoy flexibility in responding to student-on-student
   harassment. Here, the School District investigated B.L.’s allegations and
   imposed discipline when they were substantiated. “[C]ourts should refrain
   from second-guessing the disciplinary decisions made by school
   administrators.” 5 We cannot say that the School District responded in a way
   that was clearly unreasonable to B.L.’s reported harassment.
          The judgment of the district court is AFFIRMED.




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