A Special Ed Student Went to His Teacher to Report Sexual Abuse. HISD Says That Was His Mistake.

Words to live by on the Chavez High School website.
Words to live by on the Chavez High School website. Screenshot
In a breathtaking bit of legalese, attorneys for the Houston Independent School District are arguing that because a special ed student told his teacher and not his principal that he was being sexually abused by a classmate in a school restroom, his lawsuit against the district is without merit.

Somehow, in the spring of 2018, the then-16-year-old at Chavez High School who functions at the level of a kindergartener or first grader and is described as having extremely low social skills, should have known he was telling the wrong person. He needed to speak to a person in authority and according to HISD that is a principal – not a teacher.

According to the attorneys representing HISD in the federal court case, Texas law says that to successfully file a complaint of discrimination in a Title IX case (sexual abuse claims fall under this law) the plaintiffs have to show “that an appropriate official had actual knowledge of any harassment.” A teacher under Texas law does not qualify, it asserts.

“Plaintiff must show that someone like an Assistant Principal had the required knowledge” and HISD is insisting that without that, a Title IX complaint cannot be upheld against it.

Attorney Cris Feldman of Feldman & Feldman, who represents the boy — identified only as I.M. in the lawsuit — and his family, argues that this is nonsense and that HISD is misreading the law. Former Chavez High School teacher Belinda G. Swearer was not only the 16-year-old's supervisor but she had been assigned to accompany him to and from class and certainly had the authority and duty to intervene on his behalf, he says.

As it turns out, even though Swearer reportedly was the one to say I.M. needed an escort, she didn't walk with him and instead he was left to wander the halls alone.  According to the civil lawsuit seeking damages filed in federal court, Swearer told no one else that I.M. had said he was attacked on at least three occasions by a male classmate.

As a result, Swearer is being sued under U.S. Code 1983, for allegedly depriving I.M. of his civil rights by not taking any action to remove him from harm and acted with "deliberate indifference" to his claims of being attacked.

It was only on April 13, 2018, when another teacher happened upon the two boys in the school restroom and reported what she’d found to the principal’s office, that action was taken, the parents were called in and the depth of the problem was subsequently discovered, the lawsuit says.

HISD denies that Swearer, who no longer teaches at Chavez, was aware her student had been sexually assaulted and did nothing about it. “That allegation is categorically false, and the District has evidence to present to the Court supporting this position at the appropriate time,” HISD said in a written statement.

In the case of HISD itself, by suing the district under Title IX, I.M.'s attorneys are saying that his education was affected by being a target of sexual discrimination in the assault on him. The classmate, who has admitted attacking I.M. is referred to as O in court documents. The family alleges that, among other acts, O’s assault on I.M. “included oral sex, fondling and anal penetration.”

HISD argues that it doesn’t matter that Swearer didn’t accompany I.M. whenever he left a classroom because (a) it is ridiculously impractical to think she could have done that and done her job as a teacher at the same time and (b) a teacher can’t make policy – only a school board can – so there was no policy being violated when I.M. walked the halls by himself because HISD had never formally instituted such measures.

Attorneys Paul A. Lamp and Melissa M. Goins of the Karczewski Bradshaw Spalding law firm who are representing HISD in this matter, have asked U.S. Chief District Judge Lee Rosenthal to dismiss the case arguing that “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”

Feldman says this means that HISD is saying “that as a matter of law, I.M.’s allegations of sexual assault cannot be believed because he is a special-needs student with limited capacity and social skills.” And if he cannot be believed, then HISD argues that his version of events cannot be used to establish he was denied equal access to an educational benefit.

“There is no legal authority to support HISD’s assertion that low-functioning special needs students cannot be believed as a matter of law,” Feldman writes.

HISD’s attorneys also argue that the plaintiffs haven’t demonstrated that I.M.’s education was harmed in any way by what happened to him.

They discount the other reported incidents as insufficiently vague on I.M.’s part although their response does somewhat begrudgingly acknowledge that one incident – the one the other teacher walked in on – did take place. But then they argue that this is far from establishing “a systemic or ongoing pattern of harassment.”

“In theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have an effect of denying a victim equal access to an educational program or activity; however, it is unlikely Congress would have thought such behavior sufficient to rise to the level in light of the inevitability and practical realities of student misconduct in an education setting," the HISD response states.

Next up at a still to be determined future date is Rosenthal’s ruling on the latest response filed in the case on March 8, as attorneys on each side battle each other over how or whether the case will proceed. Plaintiffs are asking for medical expenses in the past and future and damages for physical pain and suffering and mental anguish as well as attorney fees and court costs.

Feldman isn’t saying much beyond what’s already in the lawsuit. He describes his client as "an extremely good natured and friendly young man who due to his warm disposition was sadly, tragically taken advantage of by another student who turned out to be a predator. And he has now regressed as a result of it. It's very confusing for someone with an intellectual disability to navigate social situations and this certainly made it much more difficult for him.”

A voice mail and emails to Lamb and Goins from the Press went unanswered, so we couldn’t ask them anything – including one question we really wanted to ask them after reading their arguments.

Most of us grew up with the phrase – passed on to our kids — that if something goes wrong: “Tell the teacher.” That’s who would sort things out. Make sure wrongs were righted. Protect us.

Is that idea now completely outmoded, undermined by newer, more bureaucratic realities? New gotcha rules that we've developed along the way that protect systems, rather than children?

As sad as any case of alleged sexual abuse is at any time in any school, what makes this one all the more miserable of an affair is HISD's position, its own words set down in court documents in a tone-deaf, chilling series of arguments.

A teacher said she realized a handicapped kid needed to be accompanied on trips outside his classroom. It didn't happen and the district's defense is to say: Well of course a plan like that couldn't have worked and it wasn't official anyway so you can't hold us responsible. If you have a policy but it isn't an official policy then there has been no policy violation.

A kid with the IQ of a 6-year-old tells his teacher something is wrong and the district's defense is that he told the wrong school employee, didn't go up the chain of command.

And as HISD states in its legal response, if it was just the one time (the district is willing to admit) I.M. was attacked (only because another adult was there), c'mon, how much damage could really have been done anyway?

I.M.'s parents entrusted their vulnerable son to HISD for all the years of his education. Something bad happened at Chavez, something that maybe could have been stopped sooner and instead the district is going to spend taxpayer money arguing that everything it did was just fine and that it's not its fault. At all. 
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Margaret Downing is the editor-in-chief who oversees the Houston Press newsroom and its online publication. She frequently writes on a wide range of subjects.
Contact: Margaret Downing