Rape. Public Schools. Qualified Immunity.

We can't expect those in power to behave with integrity and responsibility until we have meaningful consequences.

Last week, the 5th Circuit issued an opinion that was worth sharing. I will share my thoughts at the end. Here's a brief overview of the players:

• M.F. was a student at James Bowie Middle School (JBMS)in the Fort Bend Independent School District (FBISD).

• Denise Fisher is her mother.

• Jodi Moore and Amna Bilal were M.F.’s teachers at JBMS.

• James Shillingburg and Michael Yelvington were the principal and vice principal, respectively.

• Rebecca Kaminski was the manager of FBISD’s special-needs program.

• R.R. is another minor student at JBMS.

From Judge Don Willett's opinion in Fisher v. Moore

M.F. suffers from several mental and physical disabilities. When the relevant events occurred in the fall of 2019, M.F. was around thirteen years old but had the cognitive ability of a four- or five-year-old. Her conditions qualify her for services under the Individuals with Disabilities Education Act.1 In accordance with IDEA, M.F.’s attendance at JBMS is governed by an Individualized Education Program (IEP). An IEP is a “comprehensive plan prepared by a child’s . . . teachers, school officials, and the child’s parents” and “the means by which special education and related services are ‘tailored to the unique needs’ of a particular child.”2 M.F.’s IEP noted that she sometimes “left her classroom without the teacher’s permission” and therefore “need[ed] assistance transitioning throughout the school day.” Accordingly, the IEP provided, among other things, that, “[f]or [M.F.’s] safety, escorting her during transitions within the school building will be required.” In fact, M.F. was to be “escorted at all times in middle school.”

R.R. is another minor student at JBMS. He had a history of severe behavior problems, including violence against other students and teachers, which was known to JBMS staff. Among his many infractions were “[h]itting students in the head with rocks”; “[p]oking a student in the eye”; “[h]itting other students with a belt”; “[t]hreatening to burn a teacher to death”; and “[b]iting,” “[k]icking[,] and spitting on students.” According to the complaint, JBMS administrators knew that R.R. posed an especially serious risk to female students, whom he frequently taunted with obscene remarks. Additionally, R.R. once told school staff that he “was going to be a rapist when he grows up.” R.R.’s sexual misconduct was not limited to verbal abuse. He repeatedly entered the girls’ restroom at school and on one occasion, groped a female classmate. Another incident involved R.R. pulling his pants down to expose his genitals and then urinating on the wall. R.R. was also subject to an IEP requiring him to be escorted and supervised at all times—not for his safety, but for that of the other students.

Brace Yourself.

On September 4, 2019, notwithstanding the IEP requirements, M.F. and R.R. were “both allowed to wander . . . out of their respective classes” without supervision. R.R. and M.F. “ended up in the boys’ restroom, where R.R. forced M.F. to perform oral sex on him.” School employees learned of the incident when they found R.R. and M.F. coming out of the bathroom and questioned both students about what they were doing there. M.F. conveyed to the staff members that she had been sexually assaulted. Upon investigating her claim, FBISD confirmed from the security camera footage that both R.R. and M.F. were in the boys’ restroom at the time of the assault. As a result, the complaint alleges, FBISD and the other defendants were on notice that R.R. posed a specific threat to M.F.

Then it happened again.

On November 12, 2019, Jodi Moore and Amna Bilal once again “permitted M.F. to leave her classroom” and navigate the school hallways without supervision in violation of M.F.’s IEP. At the same time, “Moore and Bilal allowed R.R. to leave his classroom” and wander the hallways by himself in violation of his IEP. M.F. entered the girls’ bathroom, and R.R. followed her inside. R.R. climbed under the stall M.F. was using and sexually assaulted her again. After an investigation, FBISD confirmed that R.R. had sexually assaulted M.F. in the girls’ restroom. The Texas Education Agency also investigated the November 12, 2019 assault and determined that FBISD had violated both M.F.’s and R.R.’s IEPs.

In March 2021, Fisher filed suit on M.F.’s behalf in federal district court against FBISD and the individual school-official defendants, Jodi Moore, Amna Bilal, James Brian Shillingburg, Michael Yelvington, and Rebecca Kaminski. The complaint asserted (1) a claim against all defendants under 42 U.S.C. § 1983, on the theory that they had “created or increased the danger to M.F.” and “acted with deliberate indifference” in violation of the Due Process Clause of the Fourteenth Amendment; and (2) a claim against FBISD under 20 U.S.C. § 1681, better known as Title IX. Relevant to this appeal, the individual defendants moved to dismiss the § 1983 claim under Federal Rule of Civil Procedure 12(b)(6), contending they were entitled to qualified immunity. The district court denied the motion in a one-page order, stating only that “Defendants ha[d] not raised grounds sufficient to justify the partial dismissal requested.” The individual defendants then filed this interlocutory appeal.

“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”

The court, bound by precedent, went on to say that the district court erred in denying the defendant’s claim of qualified immunity and reversed the decision. Click here to read the full opinion.

It is a testament to the enduring nature of government's insulated, almost untouchable power, that even a horrific event as egregious as the one here doesn't generate public outrage. Were the events in the case to occur within a private school, there would be no protection afforded to the school district or negligent parties under the shield of qualified immunity.

Accountability would be swift and unequivocal.

Those in power and public positions should not be excused from the consequences of their actions or negligence simply because they are public employees. We can't expect those in power to behave with integrity and responsibility until we have meaningful consequences.