Appeals court reinstates Joshua bullying suit

The parents of a Joshua teen who killed himself in 2010 — after teachers and officials of Loflin Middle School ignored months of bullying, the parents say — are back in court after a federal appeals court reinstated their lawsuit.

Jon Carmichael, 13, reached the breaking point, the lawsuit says, when members of the football team stripped off his clothes, tied him up, tossed him into a garbage can and taunted him with calls of “fag,” “homo” and similar slurs. The locker room attack was recorded on video and uploaded to YouTube, according to the lawsuit.

Several days later, Carmichael hanged himself in a barn behind his home in Joshua. His parents later sued the school district and school officials, alleging that teachers knew about the bullying but did nothing to protect him from abuse that escalated into sexual assault.

U.S. District Judge Sidney Fitzwater threw out the lawsuit in 2012, ruling that there was no proof that the youth was the victim of “pervasive” sexual harassment, an essential element to sue under federal law.

Concerned that Fitzwater’s ruling left children in school with less protection from sexual harassment than adults in the workplace, the Justice Department supported Jon’s parents when they turned to the 5th U.S. Circuit Court of Appeals.

The appellate court not only revived their lawsuit, but also delivered an opinion last month that clarified the duty of school districts to protect children, particularly when reports of bullying cross the line to sexual assault.

The boy’s parents, Jon and Tami Carmichael, sued the Joshua school district under Title IX, a federal civil-rights law that prohibits sex discrimination in education.

According to the lawsuit, their son was subjected to “incessant” bullying in the 2009-10 school year when he was hit or bumped on his way to classes almost daily, thrown into trash cans several times a week and occasionally turned upside down so his head could be forced into a toilet. Fellow members of the school’s football team accosted him in the locker room “on numerous occasions,” often removing his underwear, the lawsuit alleged.

Much of the bullying was witnessed by teachers and coaches, the lawsuit said, quoting students who supplied the Carmichaels with written statements.

The lawsuit, which sought an unspecified amount of money, argued that the youth was the victim of “gender stereotyping” – sexual harassment based on the victim’s failure to conform to common notions of masculinity.

“Jon wasn’t gay; he wasn’t effeminate. He was a little middle school kid,” said Martin Cirkiel, a Round Rock lawyer representing the Carmichaels.

“What the social universe has taught us, and what the law is catching up on, is we can’t let kids be bullied because they are different. We have a duty to keep kids safe, and Title IX protects that.”

The school district moved to dismiss the lawsuit, arguing that the alleged bullying was not sexual.

“Assuming that the harassment [the Carmichaels] allege occurred, it was ugly and tragic; however, it was not based on sex,” the district argued in legal briefs. “The conduct at issue must constitute offensive behavior based on sex, not merely offensive sexual connotations.”

Fitzwater agreed, tossing out the Title IX claims because the one assault in which the teen was stripped, tied up and taunted with homosexual slurs did not constitute continuous or pervasive sexual harassment, and the other instances of alleged bullying were not sexual, the judge said.

In briefs to the appeals court, the Carmichaels and the Justice Department argued that the youth was bullied because he did not conform to other students’ expectations of masculinity, which is impermissible gender stereotyping under Title IX.

Federal civil rights law has long protected adults from gender stereotyping, the Justice Department argued, pointing to a 1989 U.S. Supreme Court decision that found an accounting firm discriminated against a female executive who was bypassed for promotion because she was considered too masculine and aggressive.

Youths like Jon deserve the same protection in school, the agency argued.

In siding with the Carmichaels and the Justice Department, the three-judge appeals court panel said Fitzwater failed to take note of other allegations that met the definition of sexual harassment – particularly reports that his underwear was forcibly removed on numerous occasions in the locker room.

“Such acts plausibly fall outside the list of simple insults, banter, teasing, shoving, pushing and gender-specific conduct which are understandable in the school setting and not [prohibited] under Title IX,” the court determined.

One of the judges on the panel, James Dennis, wrote a concurring opinion to explain that he agreed that the alleged bullying also constituted impermissible gender stereotyping because Jon was seen as not sufficiently masculine.

“I see no rational reason why severe harassment motivated by a failure to satisfy gender stereotypes should be unlawful when carried out against adult workers but permitted when targeted against children,” Dennis wrote.

Cirkiel believes the opinion, when coupled with Dennis’ forceful concurrence, will put Texas schools on notice about the need to protect students who face bullying and sexual harassment because they are seen as different – particularly lesbian, gay, bisexual and transgender students.

“The concept of picking on other kids, making fun of other kids, while nobody thinks it’s wonderful, that’s what kids do. The issue is when it steps over the line and really becomes more like an assault,” Cirkiel said.

The ruling put the Carmichaels’ lawsuit back on track. Last week, Fitzwater ordered lawyers on both sides to submit proposed schedules for moving the case forward.