Howell v. Austin Independent School District , 323 F. App'x 294 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    March 25, 2009
    No. 08-50527
    Summary Calendar                    Charles R. Fulbruge III
    Clerk
    JEREMY HOWELL,
    Plaintiff-Appellant
    v.
    AUSTIN INDEPENDENT SCHOOL DISTRICT,
    Defendant-Appellee.
    ______________________
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 1:07-CV-17
    ______________________
    Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
    PER CURIAM:*
    Plaintiff-Appellant Jeremy Howell, a former student in the Austin
    Independent School District (AISD), filed this action against Defendant-Appellee
    AISD claiming violation of Title IX of the Education Amendments of 1972, 
    20 U.S.C. § 1681
    –88, and seeking damages.1 Specifically, Howell alleged that he
    *
    Pursuant to Fifth Circuit Rule 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    not be published and is not precedent except under the limited circumstances set forth in Fifth
    Circuit Rule 47.5.4.
    1
    Howell also originally asserted state-law claims against the school contractor he
    accused of committing the abuse. After the district court granted AISD’s motion for judgment
    as a matter of law, however, Howell dismissed the claims against that defendant. Those
    No. 08-50527
    was sexually abused by a school contractor, and that the contractor’s supervisor,
    the school’s band director, had knowledge of the abuse. The case proceeded to
    a jury trial. After the parties rested, the district court granted AISD’s motion
    for judgment as a matter of law on the Title IX claim under Federal Rule of Civil
    Procedure 50. Howell appeals this ruling.
    The parties are familiar with the facts of this Title IX case. Our review of
    Rule 50 motions is de novo, and we use the same standard as the district court.
    Gomez v. St. Jude Med. Daig Div. Inc., 
    442 F.3d 919
    , 927 (5th Cir. 2006). We
    consider all evidence in the light most favorable to the non-moving party—here,
    Howell. 
    Id.
     Nevertheless, after considering the district court’s judgment, the
    record, and the parties’ briefs, we affirm. The district court did not err in finding
    that Howell could not, on this record, prove the required elements of a Title IX
    claim.
    A Title IX plaintiff seeking damages through an implied right of action
    must clear a high bar on the issue of the supervisor’s knowledge of the claimed
    discrimination. “[A] damages remedy will not lie under Title IX unless an
    official who at a minimum has authority to address the alleged discrimination
    and to institute corrective measures on the recipient’s behalf has actual
    knowledge of discrimination in the recipient’s programs and fails adequately to
    respond.” Gebser v. Lago Vista Indep. Sch. Dist., 
    524 U.S. 274
    , 290 (1998). To
    merit an award of damages under Title IX, the school’s response “must amount
    to deliberate indifference to discrimination.” 
    Id.
     Neither the evidence of AISD’s
    knowledge 2 of the conduct at issue, nor the evidence of AISD’s response, meets
    these requirements. Howell’s key evidence on this point is that the contractor
    told the band director that he believed Howell was “coming out”—divulging his
    claims have not been appealed.
    2
    The district court ruled that notice to the band director constituted notice to the school
    district.
    2
    No. 08-50527
    homosexuality—to him, and that the band director responded that the contractor
    should stay away from Howell or he would be dismissed.           This evidence
    constitutes neither the level of notice (actual knowledge of abuse) nor the
    deliberate indifference to discrimination Howell must show in order to prevail.
    Howell also claims the district court erred when, on the basis of Federal
    Rule of Civil Procedure 26(a)(2)(B) and a previous order of the court, it barred
    his treating psychologist from testifying without first submitting an expert
    witness report. We need not decide whether the court’s order excluding the
    treating psychologist’s testimony was error, because error if any was harmless.
    Exclusion of the testimony does not appear to have affected the district court’s
    Rule 50 ruling on the dispositive issue of knowledge (and Howell does not
    contend otherwise).
    Accordingly, the judgment of the district court is AFFIRMED.
    3
    

Document Info

Docket Number: 08-50527

Citation Numbers: 323 F. App'x 294

Judges: Higginbotham, Barksdale, Elrod

Filed Date: 3/25/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024