A Houston area mother is suing the Fort Bend Independent School District, claiming educators failed to protect her daughter from another student.
The lawsuit reads that the woman’s daughter was sexually assaulted twice by the same classmate, even though safeguards were in place to ensure neither student was unsupervised.
KPRC 2 Investigates is not identifying the woman since it would reveal her daughter’s identity.
“She is an amazing little girl who was adopted from China, and she had a hard start to life. She was left on the side of the road in China and put into an orphanage,” the mother said.
The mother said she adopted her daughter when she was six-and-a-half years old after she had been placed in an orphanage and then a foster home with 14 other children. She said her daughter has the intellectual capacity of a three-to-four-year-old and suffers from epilepsy, Attention Deficit/Hyperactivity Disorder, and Brugada Syndrome.
Both students had an IEP
Once in the United States, this mom enrolled her daughter in special education classes in the Fort Bend Independent School District. She said her daughter loved school and was “thriving.”
When she enrolled her daughter in FBISD, an Individualized Education Program (IEP) was created. According to the Texas Education Agency, an IEP is “a written document created by the Admission, Review, and Dismissal (ARD) committee for every public school child ages 3-21 receiving special education in Texas.”
The IEP comes from federal legislation and is designed to ensure children with disabilities have an educational plan that is tailored to their specific needs to “prepare them for further education, employment and independent living.”
This mother says her daughter’s IEP required her to be supervised any time she left the classroom.
“She was not able to go by herself anywhere. She had a one-on-one aid that was to go with her at all times if she was out of the classroom,” the mom said.
Court documents read that on at least two occasions, the girl was able to leave the classroom and go to the bathroom unsupervised while a student at James Bowie Middle School. The mom said during these times, her daughter was sexually assaulted by a boy in her class. The mom said her daughter’s claims were dismissed after the first incident.
“(School officials) said that she had made an accusation that a boy had touched her in the bathroom and that they found that not to be true,” the mom told KPRC 2. “They said she couldn’t identify who the boy was or what shirt he was wearing. So, they pretty much dismissed it.”
The mom said after the second incident her daughter told her what happened.
“She was sitting on the toilet using the restroom, and a boy crawled under the stall and raped her,” the mom said.
“And this was the same boy as the first incident?” asked KPRC 2 Investigator Robert Arnold.
“The same boy,” the mom answered.
State Created Danger
Court documents filed as part of the lawsuit allege that the boy accused of sexually assaulting her daughter also had an IEP requiring him to be supervised at all times because he has a “history of committing acts of violence against other students.” The lawsuit further states the male student on prior occasions “touched and groped a female student, pulled his pants down to his ankles to expose his genitals and buttocks, and urinated on a door and wall.”
“He had a very violent history of both aggressiveness and sexually related violence and was, at one point, quoted as saying that he would like to be a rapist when he grows up,” said attorney Joe Alexander.
Alexander filed the lawsuit against FBISD on behalf of the mother and her daughter. The lawsuit reads a subsequent investigation by FBISD Human Resources confirmed the sexual assault in the girl’s restroom. Alexander said he also learned the Texas Education Agency conducted its own investigation.
“They found that the school failed to comply with the IEP,” Alexander said in regards to the girl’s IEP.
Alexander claims this case constitutes “state-created danger,” and argues this trumps the school district’s claims of qualified immunity.
“State-created danger would be an instance where the state affirmatively does something to create the dangerous act, or omission, that results in an injury or harm to somebody,” Alexander said.
Alexander further explains the district knew the other student was a danger and did not follow the IEP, therefore creating a dangerous situation for the female student. Attorneys for the school district asked for partial dismissal, claiming qualified immunity and that “state-created danger” is not a clearly established right granted by the U.S. Constitution.
“Thus, generally, “a state’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause,” attorneys for the district wrote in a motion for partial dismissal. Attorneys for FBISD further argue governmental entities only have a constitutional duty to protect a citizen if they are incarcerated, involuntarily committed to an institution or placed in foster care.
“A public school does not have a special relationship with a student that would require the school to protect the student from harm at the hands of a private actor,” FBISD’s motion for partial dismissal reads.
Asking the US Supreme Court to decide
A district court denied the motion, so FBISD appealed to the US 5th Circuit Court of Appeals, which oversees Texas, Louisiana and Mississippi. The higher court sided with FBISD and ordered the case dismissed, writing “this circuit has never adopted a state-created danger exception” and “a never-established right cannot be a clearly established one.” However, Justices on the 5th Circuit acknowledge other circuits have recognized “state-created danger.”
“The school’s protected, they’re in a protective bubble. I think that they at least need to go to trial and be held accountable and let somebody else decide if they did something wrong or not,” the mother said.
Alexander said they are asking the US Supreme Court to hear the matter since there are different rulings regarding state-created danger in different parts of the county. In a writ of certiorari filed with the US Supreme Court, attorneys for the mother argue this case presents a “clear and important conflict among the circuits.” Attorneys for the mother and daughter write the 5th Circuit is the only circuit that has not recognized the “state-created danger” doctrine.
“Our objective is to get the Fifth Circuit in line with every other circuit that’s had the opportunity to address this issue,” said Alexander.
The Supreme Court has not yet decided whether it will take up the issue. Another writ of certiorari was filed in the 9th Circuit Court of Appeals also asking the Supreme Court to hear this issue. However, in that case, attorneys are asking the Supreme Court to reverse an earlier decision that recognizes the “state-created danger” doctrine.