Here is how the complaint describes the pinnacle of Jon's abuse:
A day or so before Jon's death, he was once again placed into a trash can. This time the acts of the bullies—all members of the middle school football team—escalated beyond just their regular assaults of Jon and now into a degrading sexual assault. Before they placed him in the trash can, they stripped him nude and tied him up. Then, they proceeded to parade a group of boys before him while calling him “fag”, “queer”, “homo[”], and “douche.” A number of students in the locker room observed this deplorable behavior. Jon was, of course, devastated by this assault that placed his emerging sense of manhood under direct public attack.According to this court, "this single incident, amid numerous ones that contain no hint of gender-based animus, is not enough to state a facially plausible student-on-student harassment claim." The court makes much of the fact that plaintiffs do not allege that Jon was targeted because he was perceived by his harassers to be gay. Thus, the words the bullies used during the trash can incident did not, to the court, mean anything related to Jon's gender or gender conformity. This represents an overly-narrow view of sex discrimination as applied in the context of bullying. Especially with the added detail about football players perpetrating, and getting away with, the most severe incident, it is easy to see that bullying is being used a tool to police the dominant version of masculinity, which Jon Carmichael did not meet, and that makes it discrimination "on the basis of sex" protected under Title IX.
Even more shocking than the incident itself is the fact that Jon's fellow student, J.R., videotaped the attack and uploaded it to YouTube. Sometime later, a teacher who had learned of the incident and video directed J.R. to remove it from the website and destroy it. The teacher did not report the incident. It is highly unlikely that if a female student had been the object of such an attack, whether at the hands of male or female students, the incident would have been investigated and reported and the bullies would have been punished. Also, this was another instance where the coaches at Loftin, including Defendant Strickland, employed different customs, practices, and procedures when members of the football team were the perpetrators of an assault.
The court also disregards as speculation the plaintiff's claims that a female victim in the same circumstance would have been treated differently, which, in addition to the gender nonconformity theory, is another way of demonstrating that a bullying case involves discrimination on the basis of sex. This seems unduly harsh. I think the plaintiffs should have had the opportunity to convince a jury that this was, indeed true. It seems reasonable, especially in light of the alleged statement by school officials that "boys will be boys," that a gender double-standard was at play.
The court did not give the plaintiffs yet another chance to amend their complaint. Instead, the next available step for the Carmichael family is to appeal the lower court's decision and seek to have an appellate court reinstate their case. That's the outcome I'm rooting for.
Decision: Estate of Carmichael v. Galbraith, 2012 WL 442413 (N.D. Tex. Sept. 26, 2012).