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Case 7:16-cv-00127-O

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION

ROXANNE JONES, INDIVIDUALLY AND

§

AS REPRESENTATIVE OF THE ESTATE

§

OF T.G., DECEASED,

§

PLAINTIFF,

§

§

V.

§

Case No. 7:16-cv-127

§

IOWA PARK CONSOLIDATED

§

INDEPENDENT SCHOOL DISTRICT, §

§

DEFENDANT.

ORIGINAL COMPLAINT

NOW COMES Roxanne Jones, individually and on behalf of the estate of T.G.

Garcia, deceased, collectively termed Plaintiffs herein, by and through their attorney Martin

J. Cirkiel from the law firm of Cirkiel & Associates, P.C., bring this their Complaint

alleging

that

the

Iowa Park Consolidated Independent

School District

("Iowa Park”)

violated the various rights of T.G., as more specifically pled herein. Plaintiffs reserve the

right to re-plead if new claims and issues arise upon further development of the facts, and as

permitted by law. In support thereof, Plaintiffs respectfully show the following:

I. INTRODUCTION AND BRIEF REVIEW OF THE CASE

1. T.G. was a student of Hispanic, Italian, Native American and White descent.

Further,

T.G. was extremely slender and had a very exuberant personality that many perceived as

being “feminine” or “girly”.

2. While a student at the Iowa Park Independent School District, T.G. was harassed and

bullied on a regular basis, not only because of his race, but also because he exhibited a

girlish persona which made him an object of scorn based upon his gender and gender

stereotypes.

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3. He was called a “faggot” and “wetback” on a near-daily basis.

4. T.G., his mother, Roxanne Jones, and even fellow students, reported multiple incidents of

harassment to Vice Principal Tim Jetton, but neither he, nor anyone else with the School

District took any action to stop the bullying or provide a safe environment for T.G.

5. As a result of the constant bullying and harassment by other students, along with the

complete failure of school officials to do anything about it, T.G. became more and more

depressed. Ultimately he committed suicide on October 26, 2014.

6. His mother. Roxanne Jones, bring forth this lawsuit with one primary objective in this

action; that no other student have to suffer through the daily agony of being subjected to

what her son suffered through. To that end, she asks that the Defendant be required to act

as they previously should have done of their own accord; to satisfy the standards of care

set forth by case law developed in regard to bullying and harassment; follow the

directives by federal agencies like the “Office of Civil Rights” Department of Education

(who addressed such matters in their "Dear Colleague" letter of 2000 and in subsequent

directives) as well the School Board’s own policies and procedures.

7. Additionally,

discrimination

because

of

the

acts

T.G. experienced

and

omissions

of

Iowa

Park

ISD

and

the

based upon his appearance, gender and several

stereotypes and characteristics, and race, Plaintiffs bring this lawsuit pursuant to Title

VI of the Civil Rights Act of 1964, Title IX, Education Amendments of 1972, 20

U.S.C. §1681-1688, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794a

("Rehabilitation Act"), the Americans with Disabilities Act, 42 U.S.C. §12131, et seq

(“ADA”) and the Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution.

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II.

JURISDICTION

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8. Jurisdiction is conferred upon this Court pursuant to 28 U.S.C.A. §§ 1331 and 1343

because the matters in controversy arise under the laws and rules of the United States as

noted above.

III.

VENUE

9. Pursuant to 28 U.S.C. § 1391, venue is proper before this Court because the events and

omissions giving rise to the Plaintiff s claims occurred in the Northern District of Texas

and in the Wichita Falls Division.

IV.

PARTIES

10. T.G. was a citizen of the State of Texas and lived with his parent Roxanne Jones at 1507

Johnson Road, Iowa Park, TX 76367.

At all pertinent times relevant to this lawsuit, T.G.

was a pupil in the Iowa Park Independent School District.

11. Moreover, Roxanne Jones was at all pertinent times a citizen of the State of Texas and

resident of Wichita Falls County. She brings forward this complaint individually, and

also as representative of T.G.’s estate.

12. Defendant Iowa Park Independent School District is a school district organized under the

laws of the State of Texas and at all times is required to follow the laws contemplated by

the United States Constitution and the statutory laws and rules promulgated thereunder.

District personnel are thus responsible for the care, management and control of all public

school business within its jurisdiction as to Plaintiff T.G., the training of teachers at the

school as to safety, supervision of students within the district, and for the course of study.

They may be served by and through the Iowa Parks Independents School District’s

Superintendent, Mr. Steve Moody at 328 East Hwy, Iowa Park, Texas, 76367.

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V. ADMINISTRATIVE EXHAUSTION

13.

T.G. has alleged, among other things, that he was a student with a disability, whether it

be pursuant to Section 504 of the Rehabilitation Act of 1973, the Americans With

Disabilities Act or the Individuals With Disabilities Education Act, 20 U.S.C. §1401 et

seq. (“IDEA”). As such, save for the fact he is deceased he would otherwise be required

to satisfy the Administrative Exhaustion requirements of IDEA; see 20 U.S.C. §1415(1)

and 19 T.A.C. §89.1185(p).

14.

The Courts have recognized an exception to the is exhaustion requirement, it is when

there is relief that could be obtained through this administrative process. It is known as

the futility exception. It is now well-settled that a student who is deceased cannot receive

any remedy that a Hearing Officer could provide and as such satisfies this futility

exception.

15.

As such, T.G. is not required to go through Administrative Exhaustion in this case.

VI. HISTORICAL, CULTURAL AND FACTUAL BACKGROUND

A.

THE HISTORY OF BULLYING AND HARASSMENT IN THE UNITED STATES

16.

The infamous Columbine High School massacre occurred on Tuesday, April 20, 1999.

Eric Harris and Dylan Klebold, both known to have serious emotional disturbances and

also known by school officials to be victims of bullying and harassment themselves,

embarked on a horrid massacre, killing twelve (12) students and one teacher. They also

injured twenty-one (21) other students directly, and three people were injured while

attempting to escape. Not surprisingly, the pair then committed suicide. Importantly, the

issue of bullying and harassment in schools was already a major concern even before

Columbine.

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17. In 1998, Jared High, a special education student at the Pasco School District, also a

victim of incessant bullying, committed suicide.

From the inception of Title IX the

United States Department of Education in their Office for Civil Rights (OCR) issued

policy guidance on discriminatory harassment.

They did so on discrimination based

upon race (see 59 Fed. Reg. 11448 (Mar. 10, 1994) and later regarding harassment based

upon sex [“Title IX”] (see 62 Fed. Reg. 12034 [Mar. 13, 1997]) and also regarding

disability. These policies make clear that school personnel must understand their legal

obligations to address harassment based upon race, nationality, religion, sex, gender and

gender stereotypes and further, that they were in the best position to recognize and

prevent the harassment, and to lessen the harm to students if, despite their best efforts,

harassment continued to occur.

18. During this period and in 1995 the U.S. Congress authorized the Safe Schools Act. 20

U.S.C. §5961 so that students can be educated in an environment that was safe and free

from violence.

At and around that same time Congress promulgated the Youth Suicide

And Early Intervention And Prevention Act, 42 U.S.C. §290bb-36.

Over the past years,

both have received strong public support and have been re-authorized many times.

19. In January of 1999, the U.S. Department of Education (“DOE”) produced a document,

Protecting Students From Harassment And Hate Crime, which essentially provided for

schools a Checklist of items, that if they followed, would help to develop a culture that

make the schools safer for all students and help to prevent bullying and harassment.

These items included but were not limited to the mandate that Board members,

administrators and the superintendent should:

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a) recognize the urgency of the problem and identify people/agencies that can

help develop effective prevention and response strategies,

b) compile a library of useful materials;

c) work on creating an effective anti-harassment program in consultation with

parents, students, and community groups;

d) appoint a Compliance Coordinator to train School personnel;

e) assess the school climate to determine the prevalence of harassment that exists

and the potential for hate-motivated violence;

f) adopt a written anti-harassment policy and assure the policy is clearly

communicated to all members of the school community; and school personnel

and students are held accountable for their actions;

g) develop a formal grievance procedure and takes steps to make sure it is

working properly;

h) have instructional personnel use or supplement a district's curriculum and

pedagogical strategies to foster respect and appreciation for diversity;

i) institute, improve, or expand age appropriate student activities to prevent or

reduce prejudice and conflict;

j) institute specific measures to respond immediately and effectively when

harassment occurs to stop the harassment and prevent recurrence;

k) flexibly apply response mechanisms to both the victim and the perpetrator,

taking into account the parties' ages and the context of the behavior;

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l) continually monitor the school climate and promptly address problems that

could lead to harassment or violence or that indicate harassment could be

occurring;

m) appoint appropriate school officials to become familiar with pertinent civil

and criminal laws at the state, local, and federal levels, so that they are able to

recognize possible civil rights violations, hate crimes and other criminal acts;

n) develop guidelines and procedures for collaboration with law enforcement

officials, make appropriate referrals to outside agencies and designate liaison

personnel;

o) assure Crisis Intervention Plans are in place to minimize the possibility of

violence or disruption of the educational process;

p) have District-level personnel and individual school sites form continuing

partnerships with parents and the community to prevent hate crimes and

harassing behaviors;

q) provide Staff training and professional development programs to support the

district's anti-harassment efforts;

r) assure that all harassment incidents are carefully documented and incidents

are reported to outside authorities as required; and

s) regularly assess the effectiveness of its anti-harassment efforts.

20. Over the course of time the Office Of Civil Rights within the United States Department

Of Education issued numerous opinions on the issues of bullying and harassment, further

giving school boards direction as to how to deal with this ongoing threat to not only the

safety of children but to assure they were received an education that was not hostile.

The

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OCR noted that a failure to do any of the following various items could create a hostile

educational environment for a student:

a) provide school assemblies and instruction on bullying;

b) address bullying in classroom intervention settings;

c) conduct a school bullying assessment;

d) form a bullying prevention coordination team at school;

e) include language specifically identifying bullying in the school rules;

f) develop strategies to prevent bullying in hot spots;

g) post signs in classrooms prohibiting bullying & listing its consequences; and

h) encourage students to help classmates who are being bullied & to report

bullying.

21. In regard to handling an incident once reported, the OCR also noted a school district

should:

a) train staff on how to investigate a claim of bullying and harassment;

b) fully investigate allegations of bullying and harassment;

c) respond to each allegation promptly;

d) interview the student and the perpetrator;

e) keep a written record of the investigation;

f) taken prompt action against the perpetrators;

g) remove the perpetrator from the class;

h) take action to prevent future incidents;

i) offer to transfer the student or to a different class;

j) offer counseling for the student victim;

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k) offer counseling to the perpetrator;

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l) notify parents of their rights to file grievances;

m) offer the student a 1:1 aide or “shadow” for protection;

n) offer social skills training to the student;

o) offer social skills training to the perpetrator;

p) offer social skills training to the student’s class;

q) convene a meeting of the parents, and educators to discuss the issues of

bullying and harassment;

r) use a program to monitor and oversee the resolution of incidents;

s) hire a temporary paraprofessional to monitor the perpetrator after the incident;

t) perform a psychological evaluation of the student victim after the incident;

and among other things; and

u) most important, use any incident of bullying as a “teaching moment” for the

perpetrator and even the entire student body.

22. These directives from the Office of Civil Rights have been updated and refined, whether

it be related to race, religion and nationality pursuant to Title VI, or gender or gender

stereotypes pursuant to Title IX, or to disability under Section 504 or the ADA.

23. The Texas Department of Health & Human Services reports that between 2004 and 2008

about 548 teens in Texas committed suicide.

24. The U.S. Center for Disease Control reports that from 1999 to 2006 more than 1,600

teenagers between 10-14, like T.G., committed suicide.

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B.

THE RESPONSE TO BULLYING IN TEXAS

25.

The U.S. Department of Health & Human Services, United States Health Resources and

Services Administration put together a training program called Bullying Among Children

& Youth. It set forth definitions for bullying and harassment to include hitting, shoving,

taunting, racial slurs and obscene gestures.

It noted that teachers should be particularly

observant in hot spots, like the playground, lunchroom, halls and the bathroom and even

outside the school, as well.

Importantly, that high absenteeism is an indicator that

something is wrong, especially when linked to depression, as were physical complaints

like headaches and abdominal problems.

Teachers were asked to be particularly

cognizant of the student who complains of being harassed and assaulted and who fights

back when provoked. This training specifically let staff know the obvious, that unchecked

harassment will lead to suicidal ideation and attempts.

This federal program also

provided school districts with information as to what programs work and which do not.

Not surprisingly, the least effective is punishment.

26.

These federal guidelines and directives noted above, over the course of time became

integrated into, and became part of, Texas law as well.

First, there were increased

penalties in the Juvenile Justice system for students who assaulted, bullied and harassed

other students.

27.

In addition, the Texas Education Agency (“TEA”) and their various local service centers

working under TEA’s purview developed and disseminated a significant amount of

support material for school boards as to how to best prevent bullying and harassment in

general, and bullying and harassment based upon disability in particular.

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28. In addition, school boards were provided information on how to best respond to bullying

and harassment, when it occurred.

29. For instance, on May 3, 2005, the Texas House of representatives promulgated H.B. 283

which modified and added sections to the Texas Education Code regarding bullying and

harassment, significantly relying upon the federal Safe School Act.

It added §25.0341

giving students who were bullied the right to seek a transfer another classroom or

campus. It amended Section 37.001 by adding Subsection(a)(7) and (8) requiring a

School Board to adopt a “Student Code Of Conduct” which considered, among other

things, bullying and harassment, and the duty to have methods (emphasis added) to

prevent and intervene in bullying problems.

30. It also amended §37.083(a) by requiring the school district to adopt and implement a

“discipline management program to be included in the (school) district improvement

plan.” The program must (emphasis added) provide for prevention and education about

unwanted verbal aggression and bullying. It took effect no later than September 1, 2005.

It too included strategies to deal with suicide prevention.

31. Importantly, the school district has a special duty to address the needs of students who

were at risk of suicide per Texas Education Code §33.006(b)(1)(A).

32.

Further,

School

Boards

were

provided

significant

information

from

the

Texas

Association of School Boards (“TASB”) on how to best respond to assaults, bullying and

harassment, when it occurred.

In fact, in September of 2008, TASB disseminated a

memorandum entitled Harassment and Bullying Policies in Public Schools. It noted the

requirement that school’s must have an active policy and practice regarding “student-to-

student harassment.” It noted, and among other things that a school district could be

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liable

when

there

is

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student-to-student

harassment

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and

the

district’s

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“deliberately

indifference cause students to undergo harassment or makes them vulnerable to it, and the

harassment takes place in a context subject to the school district’s control,” citing Davis

v. Monroe County Board Of Education. 526 U.S. 629 (1999).

In regard to addressing

issues of assault, bullying and harassment it referred school districts in Texas to look to

the Office of Civil Rights, Protecting Students from Harassment and Hate Crimes: A

Guide For Schools (as noted above).

33.

In addition TASB also helped the Iowa Park

ISD to develop a number of very specific

policies, procedures and practices related to bullying, harassment and sexual assault but

not one teacher, coach, counselor or administrator ever used any one of these policies,

procedures or practices to help T.G.

34.

In 2011 the Texas Legislature again addressed bullying and harassment in the public

schools by passing comprehensive and far-reaching legislation on the topic. Put into the

Texas Education Code, staff was required to have specialized training (Section 21.451);

rather than having victims transfer from their home campus, now the bully had to transfer

(Section 25.0342) and other related issues were addressed, Sections 37.001[Code of

Conduct], 37.083 [Discipline Management], 37.0832 [Prevention]. Importantly, a School

District in Texas was required to have specific training for staff in early mental health

intervention and suicide prevention. Texas Health & Safety Code, Section 161.325.

C.

THE IOWA PARK ISD NON-RESPONSE TO BULLYING AND HARASSMENT

 

35.

Also pursuant to state law, the Iowa Park ISD completed a “District Improvement Plan”

and one for each campus as well, to deal with “Safe Schools.” These plans addressed

harassment and bullying. It re-authorized policies and procedures related to Student

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Welfare and keeping students free from Discrimination, Harassment & Retaliation

including

student-student

sexual

harassment

citing,

among

other

cases,

the

Davis

decision. It set definitions of harassment whether it be based upon race, religion,

nationality or gender or gender stereotypes or disability and very specific investigatory

procedures.

36. It required allegations of bullying and harassment to be directed to the School District’s

Title VI or Title IX or Section 504 Coordinator, and the family be given that person’s

contact information.

The investigation need be completed in a timely manner, usually

less than 10 days, that a written report should be developed and interim action taken, as

appropriate.

The report must address whether or not prohibited contact occurred and

must be filed with the relevant School District Official. If a student is not satisfied with

the outcome of the investigation, they have the right to appeal the decision through the

District’s grievance procedure or even with the Office of Civil Rights with the U.S.

Department of Education.

37. The School Board Policies noted a non-exhaustive list of potential corrective actions.

They included a training program for the victim and perpetrators, a comprehensive

education

program

for

the

school

community,

counseling

to

the

victim

and

perpetrators(s).

Importantly, there needed to be a system in place to follow-up and

determine if new incidents had occurred and the effectiveness of those provided. There is

also discussion of increasing staff monitoring of problem areas.

38. Many school boards across the country and across our own great state heard this clarion

call and made anti-bullying campaigns an integral part of that school district’s practices

and

customs.

As

will

be

more

described

below,

unfortunately,

the

Iowa

Park

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Independent School District, Board President and Superintendent obviously failed to do

so. While they did have written policies and procedures they obviously failed to train and

supervise staff correctly.

They failed to put these policies into practice, and only gave

these concerns “lip service,” and turned a “blind eye” to the problem.

These failures of

the School District Defendants to assure students were kept safe and educated in a non-

hostile environment not only permitted the bullying of T.G. to continue, but created a

culture that permitted other students to suffer from bullying and harassment, as well.

VII. STATEMENT OF FACTS

A.

ABOUT T.G.

39.

T.G. was in middle school and attended the Iowa Park ISD during all relevant times

contemplated in this lawsuit.

40.

He was a student of Hispanic, Italian, Native American and Anglo descent.

41.

At and around the time of his decease T.G was extremely slender and had a very

exuberant personality that many perceived as being “feminine” or “girly”.

He had an

extremely dark complexion from spending time outside and experienced outbreaks of

acne.

42.

Prior to attending school in Iowa Park, T.G. had been sexually assaulted by two boys in

his neighborhood.

43.

While a student at the Iowa Park Independent School District, he was literally bullied

and harassed on a n almost-daily

basis. T . G . suffered from anxiety and often sucked

his thumb to self-soothe. He also had a disorder termed Trichotillomania which is a

disorder that causes an individual to have an uncontrollable urge to pull one’s own hair

out. He was also built very slender and had effeminate mannerisms.

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44. T.G.’s nuclear family and his stepfather made sure the school knew about the bullying

and were advised by the Vice Principal that “boys will be boys”. As a result, no actions

or resolutions were taken by the school to address the bullying.

45. The bullying and harassment wasn’t limited to verbal assaults. On one occasion T.G. was

physically assaulted while walking in hallway at school. T.G. was hit with a “cowbell”

causing him to suffer a cracked rib. The injury was severe enough to require a trip to the

emergency room. Following the incident, both T.G. and his mother went to Vice

Principal Jetton and reported the incident. Jetton informed them that, “boys will be boys”.

46. The Vice Principal never investigated the incident and Plaintiff never received an

investigation report.

47. T.G. was so inconsequential to the school staff that even following all of these occasions

the Vice Principal could not be bothered to learn or remember T.G.’s name, referring to

him more than once as “the little Mexican boy”.

48. One student in particular, J.T., bullied and harassed T.G. on a near-daily basis, often

calling him “faggot” and “wetback”.

49. On Thursday, October 23, 2014, another incident of bullying occurred. While riding the

ROTC bus, J.T. called T.G. a “faggot” and a “wetback” but then he added that T.G.

should go home and kill himself and that everybody would know Monday why he called

him a fag (referring to the fact that T.G. was previously sexually assaulted). Two of

T.G.’s classmates heard the bullying conversation. T.G. and both of his classmates went

to Vice Principal Jetton and reported the incident. Jetton assured the boys that he would

look into allegation. However, as usual, Jetton never investigated the incident and T.G.

became more and more distressed.

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50. On Sunday, October 26, 2014, T.G.’s asked his stepfather where the key to the gun case

was because he wanted to clean his gun before the trip. His stepfather told him that he

would help him find the key after he got out of the shower. T.G. then went into his room

and locked the door. T.G.’s mother reports that she was putting up clothes when she

heard a loud noise; she at first thought he had dropped his weights. She began calling for

him but there was no answer. Upon entering his bedroom and seeing a gun she realized

he had shot himself; she told her husband to call 911. T.G. was dead.

51. Approximately a month after T.G.’s death a close friend, R.K. told Roxanne and her

husband that T.G. had come to her Friday, October 24 th , two days before he killed

himself and told her that he was going to kill himself because J.T. was still bullying him

and that he was going to tell everyone on Monday why he called him a fag. R.K. further

advised Roxanne and her husband that after T.G. confided his plans of suicide to her that

she went to Vice Principal Jetton and told him of T.G.’s plan to commit suicide. Jetton

informed J.K. that he was going to call T.G. into his office and that he was going to call

T.G.’s parents and inform them of this information. He did neither of these things.

52. Roxanne reports that she never received a call from Jetton. Further she reports that Jetton

never called T.G. into his office and that she knows he didn’t because Jetton personally

informed her that he didn’t.

53. The School District failed to provide T.G. with counseling services even though they

were aware that he had contemplated suicide.

54. The School District failed to provide T.G., a student identified with a disability and

receiving special education services, a safe, non- hostile educational environment.

55. The School District failed to properly investigate reports of bullying.

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56. School District officials failed to investigate reports that T.G. planned to kill himself

based upon racial animus, gender and gender stereotypes.

B. THE IOWA PARK ISD FAILED TO SATISFY THEIR DUTIES UNDER THE LAW

57. At any given time during the preceding semesters, the School District failed to address

T.G.’s unique and individualized needs.

First, he was never provided a psychological

assessment, school-based counseling services, an aide or shadow to observe him at the

school, social skills, training or any information about his rights as a student with a

disability or his rights to file a complaint about the bullying, harassment and sexual

assaults he experienced.

58. Moreover, the School District failed to

implement

appropriate

safety measures

to

prevent

future

bullying and otherwise provide

a safe environment for T.G.

This

discrimination based on his gender stands in direct contrast to his constitutional rights

and statutory rights.

59. The school failed to address the impact of the harassment on T.G

and never provided

him any services related to bullying, harassment or sexual assault he experienced.

60. Nor was his mother, Roxanne Jones, ever given notice of T.G.’s rights under Title VI,

Title IX, Section 504 and the ADA. They failed to investigate any complaints under any

of these standards.

61. The District failed to provide an ongoing analysis as to the effectiveness of any

interventions they may have provided.

62. They never provided the family information about who the Title VI, Title IX or Section

504 Coordinator was for the District.

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63.

They never provided information about their right to file a formal grievance with the

School District.

 

64.

They never provided the family information about their right to file a formal complaint

with the Office of Civil Rights in a timely manner.

 

65.

Due to

the ongoing failure of the

School

District

to

control

the

harassment

he

experienced, and the failure to investigate the issues correctly, not surprisingly, T.G.

suffered further indignities, harm and verbal abuse while at school.

 

66.

T.G. continued to become more and more depressed.

 

67.

On October 26, 2014, T.G. killed himself.

 
 

IX. STATE ACTION

 

68.

Plaintiff incorporates by reference all the above-related paragraphs with the same force

 

and effect as if herein set forth.

 

69.

The Defendant School District was at all times and in all matters acting under color of

 

federal and state law in regard to the acts and omissions alleged by Plaintiffs.

70.

The Defendant School District was at all times and in all matters receiving federal funds

during the period in question and thus have a duty to satisfy the requisites of Title VI, IX,

Section 504, the ADA and Section 1983.

 

71.

Each such omission violates the Civil Rights Act of 1964 pursuant to 42 USC 1983 and

 

as such the School District is liable to T.G. accordingly.

 

X.

CLAIMS FOR RELIEF PURSUANT TO TITLE VI OF THE CIVIL RIGHTS ACTS OF 1964

72.

Plaintiffs incorporate by reference all the above-related paragraphs with the same force

and effect as if herein set forth.

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73.

Plaintiffs assert that because the Iowa Park ISD knew that T.G. was being bullied,

harassed and physically assaulted based upon his race and failed to keep him safe from

harm, and failed to investigate incidents of race-based animus and failed to ensure he

was educated in an environment that was not hostile, such failures as noted above,

have, together and separately, contributed to violating his rights civil rights.

XI. CLAIMS PURSUANT TO 20 U.S.C. §§ 1681-1688 AND TITLE IX OF THE EDUCATION AMENDMENTS ACT OF 1972

74.

Plaintiff incorporates by reference all the above related paragraphs above with the same

force and effect as if herein set forth.

75.

In addition and in the alternative to Plaintiff’s above claims, Plaintiff contends the School

District, acting under color of law and acting pursuant to customs and policies of the

district, deprived T.G. of rights and privileges secured to him by Title IX of the

Education Amendments Act of 1972 and by other laws of the United States by

discriminating against him on the basis of gender and gender stereotypes.

76.

The acts and omissions of the school district deprived T.G. of his right to not be excluded

from participation in, be denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial assistance, on the basis of

his sex or gender stereotypes for which the School District Defendant is liable to T.G.

pursuant to 20 U.S.C. §§ 1681-1688 for compensatory damages.

XII.

CLAIMS FOR RELIEF PURSUANT TO THE REHABILITATION ACT OF 1973

77.

Plaintiffs incorporate by reference all the above-related paragraphs with the same force

and effect as if herein set forth.

78.

Plaintiffs assert that T.G. was a student with two learning disabilities that affects a major

life function, including learning.

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79.

Plaintiffs assert that T.G. was a student with an emotional health disorder that affects a

major life function, mental health and socialization with others.

 

80.

The School District failed in their duties to identify and provide services to T.G. based

upon his disability pursuant to Section 504 of the Rehabilitation Act of 1973.

 

81.

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and its implementing

regulations require

that each state that receives disbursements, including

the

state's

political subdivisions such as local school districts, must ensure all students with

disabilities are given appropriate and necessary accommodations, pursuant to federal law

and rules. To the degree that a policy or practice hinders honest consideration of a

disabled child's unique needs, and fails to accommodate that child's disability and keep

the student safe, it violates Section 504.

 

82.

Plaintiffs assert that because the Iowa Park ISD failed to keep T.G. safe from harm, and

failed to provide him an environment that was not hostile, such failures as noted

above, have, together and separately risen to the level of discrimination based upon

disability, contributed t o

violating his rights under Section 504, federal rules and

regulations promulgated pursuant thereto.

 

83.

In

addition,

and

in the

alternative,

the

acts and

the omissions

of the School

District

Defendant

rose

to

the

level

of

a

gross

mismanagement

and

and

misjudgment of T.G.'s educational plan and is also a separate violation of Section 504

thereby.

84.

Last, and also in the alternative, the acts and the omissions of the School District

Defendant

rose to the level of a gross deviation from professional standards of

care, and is likewise a separate violation of Section 504 thereby.

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XIII. CLAIMS PURSUANT TO THE AMERICANS WITH DISABILITIES ACT

85. In addition and in the alternative to the above, the facts as previously described

demonstrate that the School District also violated T.G.’s rights as contemplated by

the Americans with Disabilities Act, 42 U.S.C. §12131, et seq (“ADA”).

86. Plaintiff is

a

“qualified

individual

with

a disability”

as

defined

in

42

U.S.C.

§12131(2) having an emotional disability that affects a major life function, including

learning, mental health and socialization with others.

87. Plaintiff is

a

“qualified

individual

with

a disability”

as

defined

in

42

U.S.C.

§12131(2) having learning disabilities that affects a major life function, including

learning, mental health and socialization with others.

88. The Iowa Park Independent School District is a “public entity” as defined in 42

U.S.C. §12131(1), and receives federal financial assistance so as to be covered by the

mandate of the ADA.

89. The Iowa Park Independent School District and its schools are facilities and their

operation constitutes a program and services for ADA purposes.

90. Specifically, and separate and apart from his Section 504 cause of action, Plaintiff

alleges that the School District failed and refused to reasonably accommodate and

modify the services needed by T.G. based upon his disability, in violation of Title II

of the ADA.

91. Such failures caused injuries to Plaintiff.

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XIV. CLAIMS PURSUANT TO THE 14 TH AMENDMENT

92.

In addition and in the alternative to the above, the facts as previously described

demonstrate violations of the T.G.’s civil rights pursuant to the due process clause of

the 14 th Amendment to the United States Constitution.

 

93.

The acts

and

omissions

of staff persons

evidence a failure of the

Iowa Park

Independent School Board to provide appropriate training and supervision to staff,

violating the rights of T.G. pursuant to the Due Process clause of the Fourteenth

Amendment, for which the School District is liable to him thereby.

 

94.

The School District singularly discriminated against T.G. as a class-of-one in failing

to keep him safe, thereby violating the Equal Protection Clause of the Fourteenth

Amendment, for which the School District is likewise liable to him pursuant to 42

U.S.C. §1983.

 
 

XV. RATIFICATION

 

95.

Plaintiffs

incorporate by reference all the above-related paragraphs with the same

force and effect as if herein set forth.

 

96.

Iowa Park ISD ratified the acts, omissions and customs of school district personnel

and staff.

97.

As a result, Iowa Park ISD is responsible for the acts and omissions of staff persons

who were otherwise responsible for the safety of T.G.

 
 

XVI. PROXIMATE CAUSE

98.

Plaintiffs incorporate by reference all the above related paragraphs with the same

force and effect as if herein set forth.

99.

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Each and every, all and singular of the foregoing acts and omissions, on the part of

the School District, taken separately and/or collectively, jointly and w5 severally,

constitute a direct and proximate cause of the injuries and damages set forth herein.

123.

124.

XVII. DAMAGES

Plaintiffs incorporate by reference all the above-related paragraphs with the same

force and effect as if herein set forth.

As a direct and proximate result of the School District's conduct, J.R. suffered injuries

and damages, for which he is entitled to recover herein within the jurisdictional limits of

this court, including but not limited to:

a. Physical pain in the past;

b. Medical expenses in the past;

c. Mental anguish in the past;

d. Mental health expenses in the past;

e. Loss of consortium;

f. Physical impairment in the past;

g. Loss of life and liberty; and

h. Various out of pocket expenses incurred by J.R.’s family but for the act and

125.

126.

omissions of the School District.

Pursuant to Section 1983 the School District is liable to J.R. for punitive damages.

XVIII. ATTORNEY FEES

Plaintiffs incorporate by reference all the above related paragraphs, as if fully set forth

herein.

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127. It was necessary for Plaintiffs to retain the undersigned attorneys to file this lawsuit.

Upon judgment, Plaintiffs are entitled to an award of attorney fees and costs pursuant to

under 42 U.S.C. §2000d et seq., Section 1983 and 1988, Title VI, Title IX, Section 504

and the ADA.

XIX. EQUITABLE RELIEF

128. Elizabeth

Reed

respectfully

requests

Independent School District to:

the

Court

considering

ordering

the

Kerens

a. Adopt an anti-bullying and harassment program that is provided by a third-party, like the Anti-Defamation League or the Southern Poverty Law Center;

b. Adopt policies, procedures, and practices commensurate with the Dear Colleague Letter, dated October 26, 2010, from the United States Department of Education Office for Civil Rights to include but not be limited to:

i. The provision of school assemblies and instruction on bullying

1. Addressing bullying and harassment based upon disability

or race or gender or common stereotypes that accompany those subjects in classroom intervention settings; and

2. Conducting an assessment at each campus;

ii.Manning a prevention coordination team at each school;

iii.Including language specifically identifying bullying and harassment based upon disability or race or gender and common stereotypes that accompany those subjects in the school rules and student handbook;

iv.Develop a strategy to prevent such bullying or harassment in hot spots;

v.Post signs in classrooms prohibiting bullying and harassment and listing its consequences; and

vi.Provide a place and manner of confidential reporting and encouraging students to help classmates who are being bullied and harassed and to report such bullying and harassment.

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c. That for the next three years the District provide for a school-safety

coordinator for each Campus, so as to assure that the program is enacted comprehensively;

d. That the District retain a neutral third party to complete a bullying

assessment for each campus and have that person or entity report back to the President of the School Board and Superintendent so the District may address any issues noted in the assessment;

e.

information about gender, race, and disability stereotypes;

That

staff

receive

"Diversity

training"

by

a

third

party

to

include

f. That the school provide a marker in the school library, where books and

other materials would be made available to students dealing with bullying harassment, and related emotional concerns and issues related to gender, race, and disability along with common stereotypes that accompany those subjects;

g. That Anti-bullying month be recognized by the Kerens ISD;

h. That the school district help facilitate the provision of counseling services

for students deemed to be at risk; and

i. That the School Board appoint a committee including interested members

of the public to address the issues noted herein, report back to the Board and act

accordingly.

XX. DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiffs demand a jury trial for all

issues in this matter.

WHEREFORE,

PREMISES

PRAYER

CONSIDERED,

Plaintiffs

pray

for

judgment

against

Respondent, that Defendant violated J.R.’s rights in the manner and particulars noted herein, that

the Court order relief accordingly and for such other relief that may be afforded in law, or in

equity or as to both.

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Respectfully submitted,

/s/ Martin J. Cirkiel Martin J. Cirkiel Fed. ID.No. 21488 SBN: 00783829

marty@cirkielaw.com [E-mail] Cirkiel & Associates, P.C.

1901 E. Palm Valley Blvd.

Round Rock, Texas 78664 (512) 244-6658 [Telephone] (512) 244-6014 [Facsimile]

PageID 26

Kenneth Carden, Esq., Local Counsel SBN: 03787300 carden.ada.law@gmail.com [Email] CARDEN LAW OFFICE

1409 S. Lamar Street, Apt. 601

Dallas, Texas 75215

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CERTIFICATE OF SERVICE

PageID 27

I hereby certify that on the 25 th day of October, 2016, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system which will send notification of such filing

to the following:

Ms. Christie Hobbs, Attorney christie@leasorcrass.com [Email] SBN: 24059961 Robert Boyd “Bobby” Padgett, Attorney bobby@leasorcrass.com [Email] SBN: 00786152 Leasor Crass, P.C. 302 W. Broad Street Mansfield, Texas 76063 (682) 488-0009 [Telephone] (682) 422-0008 [Facsimile] ATTORNEYS FOR DEFENDANT SCHOOL DISTRICT

/s/ Martin J. Cirkiel Martin J. Cirkiel