IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40239

SEAN KELLY, Next Friend of C.K., Minor; SHANNON KELLY, Next friend 

of C.K., Minor, 

 Plaintiffs–Appellants

v.

ALLEN INDEPENDENT SCHOOL DISTRICT, 

 Defendant–Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:12-CV-756

Before PRADO, ELROD, and HAYNES, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:*

This is a Title IX action brought by the parents of C.K., a minor claiming 

he was sexually harassed by another student, against the Allen Independent 

School District (Allen ISD), where C.K. attended middle school. The district 

court granted summary judgment for Allen ISD, concluding that Allen ISD did 

not have actual knowledge of C.K.’s harassment; that any harassment C.K. 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 19, 2015

Lyle W. Cayce

Clerk

 

 Case: 14-40239 Document: 00512940326 Page: 1 Date Filed: 02/19/2015
No. 14-40239

experienced was not based on his sex; and that Allen ISD was not deliberately 

indifferent to C.K.’s harassment. We AFFIRM.

I. BACKGROUND

The Kellys allege that their son, C.K., was subject to sex-based 

harassment at Curtis Middle School during the 2010–2011 school year.

In October 2009, Mr. Kelly sent an email to Allen ISD’s Board of Trustees 

and Superintendent to express concern about a student who would soon be reentering an Allen ISD school. That student, B.H., allegedly sexually assaulted 

a minor female in the spring of that year.1 Although Allen ISD did not disclose 

this information to Mr. Kelly, the record shows that Allen ISD disciplined B.H. 

at the time of the spring incident as appropriate under its Student Code of 

Conduct: it assigned B.H. to a disciplinary placement at its Disciplinary 

Alternative Education Program (DAEP), the Dillard Center. At the end of 

B.H.’s disciplinary placement, he returned to an Allen ISD elementary school 

and then to Curtis Middle School the following year. Curtis Middle School

officials had periodic meetings to review and report on B.H.’s progress as 

required by his special-education status.

Both C.K. and B.H. were students at Curtis Middle School during the 

2010–2011 school year. On December 9, 2010, C.K. reported to Assistant 

Principal Robert Puster that B.H. had targeted him. He stated that B.H. had 

taken his glasses and made him chase B.H. for them. Then, he stated that “a 

1 Mr. Kelly demanded that B.H. be moved to another school; that Allen ISD officials 

provide assurances that other children would be protected from B.H.; and that he be given 

information about how Allen ISD intended to handle B.H.’s on-campus supervision. Lois 

Lindsey, a school-board member, replied with a long email, stressing that student safety “is 

a top priority and will be until a solution is reached.” Allen ISD’s Public Information Officer 

responded that he would circulate the email, but he could not disclose any information about 

the matter.

2

 

 Case: 14-40239 Document: 00512940326 Page: 2 Date Filed: 02/19/2015
No. 14-40239

few weeks ago several boys started ‘T-bagging everybody.’”2 By this he meant 

that the boys—B.H. and another child, T.B.—hung their crotches in students’

faces and humped them. There is no evidence that B.H. and T.B. removed their 

clothing, or that there was any contact between their genitals and other 

students’ bodies. C.K. also reported that B.H. had teased C.K. on many 

occasions, taunting him by saying things like “I love you” and “are you my 

boyfriend” and by taking his things. Puster promised to take action.

Puster and Principal Becky Kennedy investigated the allegations: they 

immediately placed B.H. and T.B. in In-School Suspension (ISS) pending the 

results of the investigation; they took reports from over fifty students; and on 

December 13 they recommended placing B.H. and T.B. in the Dillard Center 

DAEP. Curtis Middle School teachers and administrators also took steps to 

help C.K. make friends at school, including inviting him to join the Fellowship 

for Christian Athletes and the Social Skills Group. 

The student reports corroborated C.K.’s allegation that B.H. and T.B. 

hung their crotches in students’ faces. They revealed that these incidents took 

place while the students were changing for gym class or waiting for the teacher 

to call roll, and they uniformly suggested that B.H. and T.B. only engaged in tbagging while Curtis Middle School teachers were not looking.

Just days before the December t-bagging incident, the committee in 

charge of monitoring B.H.’s special-education needs reported that B.H. was 

2 The students appear to use the word “t-bagging” in reference to a lewd act that 

involves contact between a man’s scrotum and another person’s face. As Assistant Principal 

Puster’s testimony suggests, it does not appear that any unclothed sexual touching took 

place: “When I sought clarification of what the term meant, C.K. explained that B.H. and 

T.B. ‘would hang their crotch in people’s faces or hump them.’ However, C.K. did not report 

and I found no evidence that there had been any removal of clothing by either B.H. or T.B. 

when they ‘T-bagged’ him. Based upon information provided to me by C.K., I understood that 

the ‘T-bagging’ acts were mimicry of sexual acts, but did not involve sexual touching.” 

3

 

 Case: 14-40239 Document: 00512940326 Page: 3 Date Filed: 02/19/2015
No. 14-40239

having trouble with his grades and attention. The committee did not make any 

report or findings as to potential sexual misconduct.

C.K. reported two additional bullying incidents not related to B.H. First, 

on October 8, 2010, C.K. submitted a Bullying Incident Report Form stating 

that E.C., another student, raised a middle finger at him. Assistant Principal 

Joe Gray investigated the incident and determined it was not bullying, though 

he spoke with both boys to avoid another incident in the future. 

Second, on December 13, Mrs. Kelly emailed Kennedy, C.K.’s teachers, 

and guidance counselor Jolene Johnson to report that while C.K. was waiting 

for her to pick him up from school, K.M., a girl who was friends with B.H. or 

T.B., pulled on the back of C.K.’s jacket and asked why C.K. was causing 

trouble for her friend. Puster investigated the incident: he immediately 

assigned K.M. to ISS, where she remained for the rest of the semester. He also 

recommended a DAEP placement.

Throughout the school year, the Kellys vociferously registered their 

disagreement with how Curtis Middle School students treated C.K. and with 

how Allen ISD officials responded to the Kellys’ complaints. On March 4, 2011, 

the Kellys withdrew C.K. from Allen ISD and transferred him to McKinney 

ISD. At that time, B.H., T.B., and K.M. were still in DAEP placement. 

On December 5, 2012, the Kellys filed this suit in federal district court

on behalf of their son. Allen ISD successfully moved for summary judgment in 

October 2013. This appeal follows.

II. DISCUSSION

This Court has jurisdiction to review a district court’s final judgment 

pursuant to 28 U.S.C. § 1291. The district court had federal-question 

jurisdiction over this Title IX action under 28 U.S.C. § 1331.

We review de novo a district court’s grant of summary judgment, viewing 

“all facts and evidence in the light most favorable to the non-moving party.” 

4

 Case: 14-40239 Document: 00512940326 Page: 4 Date Filed: 02/19/2015
No. 14-40239

Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013). 

We apply the same standard as the district court in the first instance. Turner 

v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). 

Summary judgment is appropriate if “the movant shows that 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). A genuine dispute of material fact 

exists when the “evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 

396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986)). The court must “draw all reasonable inferences in favor of the 

nonmoving party” and “refrain from making credibility determinations or 

weighing the evidence.” Turner, 476 F.3d at 343 (internal quotation marks 

omitted). 

A. Elements of a Title IX Action

Title IX provides: “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). The Supreme Court has 

construed Title IX to provide a private right of action for individuals to sue 

educational institutions that receive federal funds. Franklin v. Gwinnett Cnty. 

Pub. Sch., 503 U.S. 60, 65, 76 (1992).

A plaintiff suing a school district for student-on-student harassment 

under Title IX 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.

5

 Case: 14-40239 Document: 00512940326 Page: 5 Date Filed: 02/19/2015
No. 14-40239

Sanches v. Carrollton–Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 

(5th Cir. 2011) (alteration omitted) (quoting Davis ex rel. LaShonda D. v. 

Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999)).

The district court adopted the magistrate judge’s findings that (1) Allen 

ISD had no knowledge of the harassment; (2) C.K.’s harassers were under 

Allen ISD’s control; (3) C.K.’s harassment was not based on his sex; (4) the 

question of the severity of the harassment was properly left for a jury; and

(5) Allen ISD was not deliberately indifferent to the harassment. Because the 

Kellys could not show genuine disputes of material fact as to three key 

elements of their Title IX claim, the district court granted summary judgment

for Allen ISD. The Kellys appeal the court’s first, third, and fifth 

determinations. Because we agree with the district court that Allen ISD lacked 

actual knowledge of the alleged harassment as a matter of law, we need not 

reach the remaining issues.

B. Actual Knowledge

For a school district to face Title IX liability, it must have had actual 

knowledge of harassment; constructive notice will not suffice. Davis, 526 U.S. 

at 640–43 (construing the statute and rejecting an agency theory of liability 

because “the recipient itself must exclude persons from participation in, . . . 

deny persons the benefit of, or . . . subject persons to discrimination under its 

programs or activities in order to be liable under Title IX” (alterations and 

internal quotation marks omitted)). In other words, for liability to attach, “the 

official must both be aware of facts from which the inference could be drawn 

that a substantial risk of serious harm exists, and he must also draw that 

inference, Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 658 (5th Cir. 

6

 Case: 14-40239 Document: 00512940326 Page: 6 Date Filed: 02/19/2015
No. 14-40239

1997) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)) (internal 

quotation marks omitted).3

The undisputed facts in the record lead to the conclusion that Allen ISD 

had no knowledge of facts that would permit the inference that C.K. faced a 

substantial risk of serious harassment, and that no Allen ISD official in fact 

drew such an inference. 

First, as regards B.H.: The t-bagging incident was first reported on 

December 9, 2010. C.K. and others told Allen ISD faculty that the incident took 

place in physical-education class, and student statements uniformly confirm 

that everything happened “whenever the teachers weren’t looking.” Indeed, 

Appellants themselves confirm that the incidents typically took place when the 

children were unsupervised. Nothing in the record indicates that any Curtis 

Middle School official was aware of the problem prior to C.K.’s December 9 

incident report—after which Allen ISD officials took prompt investigative and 

remedial action. Both Kennedy and Puster investigated C.K.’s allegations, and

Curtis Middle School officials placed B.H. and T.B. in ISS, then recommended 

they be transferred to the Dillard Center DAEP. Both students remained at 

the Dillard Center until after C.K. left Curtis Middle School. Allen ISD 

3 The Kellys argue that since Allen ISD had substantial control over B.H. when the 

incident happened, the district must also have had actual knowledge of the harassment. But 

this argument is based on a misunderstanding of the law: these two elements of a Title IX 

action are distinct. The law imposes a relatively low threshold for proving a school exercised 

substantial control over a student. Liability can attach when, as here “the misconduct occurs 

during school hours and on school grounds.” Davis, 526 U.S. at 646. In such cases, “the 

misconduct is taking place ‘under’ an ‘operation’ of the funding recipient.” Id. By contrast, 

plaintiffs seeking to prove actual knowledge must clear a high bar. “[T]he district can escape 

liability if it can show ‘that it did not know of the underlying facts indicating a sufficiently 

substantial danger and that it was therefore unaware of a danger, or that it knew the 

underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was 

substantial or nonexistent.’” Rosa H., 106 F.3d at 659 (alterations omitted) (quoting Farmer 

511 U.S. at 843–44 (1994)).

7

 

 Case: 14-40239 Document: 00512940326 Page: 7 Date Filed: 02/19/2015
No. 14-40239

responded with similar speed and determination to C.K.’s complaint regarding 

K.M.

It is true that B.H. had previously assaulted a female minor, and that 

Mr. Kelly emailed the Curtis Middle School Board of Trustees to indicate his 

concern with B.H.’s presence in C.K.’s school. At B.H.’s final review before the 

t-bagging incident, which took place on December 6, Curtis Middle School

administrators noted that B.H. was having trouble with his grades and 

attention. There was no indication that B.H. was acting out sexually or 

bullying his classmates. This falls far short of Title IX’s stringent actualknowledge standard.

Second, as regards the remaining students: C.K.’s only prior bullying 

report was against E.C., the student who raised his middle finger at C.K. There 

is no allegation that E.C. bullied C.K. at all before or after that first incident. 

The same is true of K.M., the student who pulled on the back of C.K.’s jacket; 

she and C.K. had no further interaction. Taken together in the light most 

favorable to the Kellys, these reported incidents do not permit the inference 

that the district knew that C.K. was at risk of harassment. Therefore, we 

conclude that Allen ISD did not have “actual knowledge of the harassment,” 

Sanches, 647 F.3d at 165.

Because actual knowledge is a necessary element of a prima facie Title 

IX claim, we AFFIRM the district court’s grant of summary judgment in favor 

of Allen ISD.

8

 Case: 14-40239 Document: 00512940326 Page: 8 Date Filed: 02/19/2015