John Doe v. Board of Education of PG County , 605 F. App'x 159 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2537
JOHN DOE, Individually and as parent and next friend of
J.D., a minor child; JANE DOE, Individually and as parent
and next friend of J.D., a minor child,
Plaintiffs – Appellants,
v.
THE BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY; KATHLEEN
SCHWAB,
Defendants – Appellees.
-------------------------------
COUNCIL OF PARENT ATTORNEYS AND ADVOCATES,
Amicus Supporting Appellants,
NATIONAL SCHOOL BOARDS ASSOCIATION; MARYLAND ASSOCIATION OF
BOARDS OF EDUCATION,
Amici Supporting Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:11-cv-03229-AW)
Argued: December 10, 2014 Decided: April 7, 2015
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Laura Ginsberg Abelson, BROWN, GOLDSTEIN & LEVY, LLP,
Baltimore, Maryland, for Appellants. Abbey G. Hairston,
THATCHER LAW FIRM, LLC, Greenbelt, Maryland, for Appellees. ON
BRIEF: Sharon Krevor-Weisbaum, Andrew D. Freeman, BROWN,
GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellants.
Shana R. Ginsburg, THATCHER LAW FIRM, LLC, Greenbelt, Maryland,
for Appellees. Selene A. Almazan-Altobelli, Director, Advocacy
Services, MARYLAND COALITION FOR INCLUSIVE EDUCATION, Hanover,
Maryland; Mark B. Martin, LAW OFFICES OF MARK B. MARTIN, P.A.,
Baltimore, Maryland, for Amicus Council of Parent Attorneys and
Advocates. Francisco M. Negrón, Jr., General Counsel, NATIONAL
SCHOOL BOARDS ASSOCIATION, Alexandria, Virginia, for Amici
National School Boards Association and Maryland Association of
Boards of Education.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In November 2011, plaintiffs John and Jane Doe,
individually and on behalf of their minor son J.D., filed suit
in the District of Maryland against the Board of Education of
Prince George’s County and J.D.’s former school principal,
Kathleen Schwab. The three-count complaint alleged, inter alia,
that the defendants had failed to protect J.D. from sexual
harassment by M.O., one of J.D.’s classmates. 1 In November 2013,
the district court awarded summary judgment to the Board on the
complaint’s sex discrimination claim — pursued under Title IX of
the Education Amendments of 1972 — and also granted summary
judgment to the Board and Schwab on state law claims of
negligence and gross negligence. See Doe v. Bd. of Educ. of
Prince George’s Cnty., 982 F. Supp. 2d 641 (D. Md. 2013). As
explained below, we affirm the judgment.
I.
A.
In 2008, the Does enrolled J.D. in the fourth grade of a
public Montessori school in Prince George’s County (the
1
A substantial part of the record in this case is sealed to
protect the confidentiality of students and employees of the
school where the sexual harassment occurred. We do not use the
real names of J.D., his parents, or M.O.
3
“school”). 2 Suzanne Johnson was then the school’s principal, and
Schwab served as vice principal. J.D., who was approximately
nine years old, was assigned to the classroom of teacher Lisa
Jellison. Also in Jellison’s fourth- through sixth-grade
classroom was fifth-grader M.O., who was older and physically
larger than J.D.
1.
During the fall of 2008, J.D. was subjected to bullying and
teasing by M.O. and other students. For example, students
initiated “Don’t Talk to [J.D.] Day” and labeled him a “snitch.”
At least once that fall, M.O. called J.D. “gay.” J.D. also
reported to then-Vice Principal Schwab that “someone had said
something to him in the bathroom that was of a sexual nature.”
See J.A. 645. 3 J.D. did not report that incident to Schwab until
several days after it occurred. In response, Schwab told J.D.
that he was entitled to respect and kindness and urged him to
2
Because the Does, as plaintiffs, were the nonmoving
parties in the summary judgment proceedings, we recite the facts
in the light most favorable to them. See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
3
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
4
immediately report any further such incidents. She also spoke
to Jane Doe about that discussion. 4
In early December 2008, M.O. exposed his genitals to J.D.
in the classroom library (the “library incident”). J.D. did not
report that event to Schwab until more than a month later, in
January 2009. As a result of the library incident, Jane Doe
phoned the school and the Board’s superintendent to discuss the
Does’ concerns regarding the harassment of their son. Neither
Principal Johnson nor the superintendent was available at that
time, and the superintendent did not promptly return the phone
call. Jane Doe spoke with Johnson later that day, however, and
Johnson thereafter contacted M.O.’s parents. Schwab, who has
acknowledged that an episode such as the library incident “could
be serious and disturbing,” also interviewed J.D. regarding his
allegations about M.O. See J.A. 664. Following that interview,
Schwab instructed Jellison to rearrange her classroom so that
4
The Does assert in their appellate briefs that it was M.O.
who said something to J.D. in the bathroom that was of a sexual
nature, and that M.O. on other occasions called J.D. by names
including “pussy” and “bitch.” According to the Does, the
district court erred by failing to consider such conduct in its
summary judgment analysis. That it was M.O. who made the sexual
remark in the bathroom, however, is not supported by the summary
judgment record. Additionally, the name-calling is evidenced
only by notations in the Does’ expert report. In any event,
even if we accepted as true that M.O. engaged in the foregoing
conduct, it would not alter our disposition of this appeal.
5
J.D. and M.O. were seated as far from each other as possible and
so that Jellison could readily see both students.
In February 2009, J.D. reported to Schwab that M.O.
“accosted” him in the hallway. See J.A. 371. Schwab relayed
that information to Johnson, but there is no indication that
further action was taken. In March 2009, there were two reports
of M.O. sexually harassing J.D. First, by an after-school phone
call, John Doe advised Jellison that M.O. “keeps making sexual
remarks and gestures” to J.D. See id. at 577. That same week
in March, while Jellison’s back was turned from M.O. and J.D.
during a classroom dancing activity, M.O. grabbed J.D.’s body
and made humping gestures toward him (the “classroom incident”).
Jellison did not witness the classroom incident, and it was not
immediately reported to her. After receiving notice of the
classroom incident, however, Jellison interviewed three female
students who confirmed they had seen it. All three advised
Jellison that M.O. had also made sexual remarks to them. In
response, Jellison issued a Pupil Discipline Referral to M.O.
for “disrespect” and “sexual harassment,” and spoke to Schwab
about the issues. See id. at 383. 5 Jellison sent the three
student witnesses, along with J.D. and M.O., to Schwab’s office.
5
A Pupil Discipline Referral is a disciplinary form
utilized by teachers to document improper conduct and refer an
offending student to an administrator for appropriate action.
6
M.O. then received a five-day in-school suspension for improper
behavior, which he served in Johnson’s office.
There were no additional reports of M.O. harassing J.D.
during the 2008-09 school year. Nevertheless, Schwab consulted
J.D. several times about whether he was “doing okay.” See J.A.
338. According to J.D., he would tell Schwab he “was having a
good day” even if it was untrue. Id.
In April 2009, Johnson took leave from her principal
position at the school and soon passed away. Schwab was then
named the school’s principal.
2.
At the beginning of the 2009-10 school year, J.D. and M.O.
were again assigned to Jellison’s classroom, which surprised
Jellison “because of problems that were happening” during the
2008-09 school year. See J.A. 586. During the fall of 2009 —
when J.D. was in fifth grade and M.O. in the sixth — Jellison
and Principal Schwab were thrice advised that M.O. had harassed
J.D. First, in November 2009, J.D. reported that M.O. “had made
a harassing remark to [him] at the water fountain during
dismissal the previous afternoon.” Id. at 324. In response,
Schwab reviewed the pertinent video surveillance footage of the
hallway and water fountain area at the school, which “showed
that [J.D.] never left the classroom during 45 minutes before
and during dismissal on the previous day.” Id. Nonetheless,
7
Schwab met with both J.D. and M.O. and talked to them about the
importance of mutual respect. In a second report to Schwab that
month, J.D. explained that M.O. said something that made J.D.
“uncomfortable,” but he did not further elaborate. Id. at 674.
Schwab talked to M.O., but M.O. denied knowing what made J.D.
uncomfortable. Schwab then warned M.O. that further complaints
would be grounds for suspension.
The final report to the school of M.O.’s harassment of J.D.
occurred on December 4, 2009. J.D. was in a school bathroom
when M.O. arrived and tried to climb into J.D.’s bathroom stall
(the “bathroom incident”). M.O. was partially nude during the
bathroom incident, with his pants down around his ankles. After
school that day, J.D. informed his parents of that incident, and
the Does reported it to the school three days later, on December
7, 2009. At a school administrator’s request, J.D. then wrote a
statement documenting his account of the bathroom incident. In
response to J.D.’s allegation, Schwab interviewed three other
male students who had been in the bathroom at the pertinent
time, but each denied that the bathroom incident had occurred.
A school security officer and J.D.’s father also reviewed the
December 4, 2009 video surveillance footage of the bathroom’s
entrance, but the video failed to corroborate the bathroom
incident. Even so, the school established procedures to ensure
that J.D. would avoid M.O. in the bathroom. One of those
8
procedures — having all students use sign-in/sign-out sheets
when going to the bathroom — quickly proved unworkable and was
abandoned within a week of its implementation. Another
procedure — providing J.D. with a student escort to the bathroom
— was soon rejected by J.D. because other students “made
horrible jokes” about his use of the escort. See J.A. 550.
Thereafter, J.D. avoided the school bathroom and sought
attention from the school’s nurse for his resultant stomach
pains. J.D. did not advise the nurse that he was afraid to go
to the bathroom, but instead told her that the bathroom “wasn’t
clean.” See id. at 524. The nurse then offered J.D. the use of
her bathroom.
B.
The defendants were not notified of other incidents
involving J.D. and M.O. In the spring of 2009, the Does
discovered that the boys had been texting each other. One text
from J.D. to M.O. stated, “Can u keep a secret[?]” See J.A.
365. Another text from J.D. to M.O. read, “Keep dis a secrt
ok[?]” Id. at 366. After discovering the text communications
between M.O. and J.D., Jane Doe promptly confiscated J.D.’s cell
phone, deleted M.O.’s phone number from J.D.’s contact list, and
returned the phone to her son. Jane Doe continued to monitor
J.D.’s cell phone, however, and, in June 2010, discovered that
M.O. had sent explicit photos to J.D. depicting homosexual sex.
9
J.D. did not see the photos, and the Does did not report the
text messages to the school.
In the summer of 2010, the Does contacted the Prince
George’s County Police Department to report that J.D. had been
sexually assaulted by M.O. On July 1, 2010, J.D. provided a
written statement to a county detective that, during the 2008-09
school year, M.O. forced him to engage in sexual activity in the
school’s library. J.D. further asserted that, during the 2009-
10 school year, M.O. twice forced sexual acts on him in the
school’s bathroom. Prior to the summer of 2010, however, J.D.
had not informed either his parents or the school that M.O. had
sexually assaulted him.
On July 30, 2010, the county police detective interviewed
M.O. regarding J.D.’s sexual assault allegations. M.O. said
that he and J.D. had engaged in consensual sexual encounters on
three occasions in the school’s library and bathroom. The
detective re-interviewed J.D. that same day and challenged J.D.
on inconsistencies between his and M.O.’s versions of the
events. According to the detective, J.D. then admitted that he
and M.O. had engaged in consensual sexual acts. The police
investigation was thereafter closed, in that “no elements of a
sexual assault [had] been articulated.” See J.A. 332. In
August 2010, the Does withdrew J.D. from the school. J.D. now
maintains that he altered his story to the police because he was
10
“nervous” and thought the detective would believe M.O.’s story
over his own. See id. at 535. J.D. also “thought that
[changing my story] would just be the end of it.” Id. at 535-
36. 6
C.
In 2000, several years prior to the foregoing events, the
Board promulgated its Administrative Procedure No. 4170 (“AP
4170”), which created “grievance procedures for student and
employee complaints of all forms of discrimination, harassment,
bias, or extremism.” See J.A. 112. Pursuant to AP 4170,
students are encouraged to promptly report student-on-student
sexual harassment. Upon receiving such a report, a principal is
to complete an incident report form (an “AP 4170 form”), contact
the relevant students’ parents by phone and letter, and submit
the AP 4170 form and a copy of the letter to the director of the
Board’s Equity Assurance Office. 7 AP 4170 “recommend[s] that all
6
The Does allege that J.D. suffered damages from M.O.’s
harassment, including a recurrence of encopresis (fecal
staining), which had been in remission for two years; post-
traumatic stress disorder; and an adjustment disorder with mixed
anxiety and depressed mood.
7
The AP 4170 form seeks details with respect to alleged
harassment, including: (1) the name of the complainant; (2) the
name of the target of the harassment; (3) the location of the
harassment; (4) a description of the harassment; and (5) the
school official’s response to the harassment. The form also
inquires about witnesses and any previous incidents of
harassment.
11
persons reporting a complaint of . . . harassment use [its]
reporting procedures,” but provides that “any individual has the
right to bypass [its] procedures by reporting directly to the
appropriate supervisor or designee.” Id. at 115-16. Neither
the school nor the Does completed or submitted any AP 4170 forms
regarding M.O.’s harassment of J.D.
II.
In November 2011, the Does filed their three-count
complaint against the defendants in the District of Maryland,
seeking compensatory and punitive damages. Count Three named
the Board only, alleging under Title IX that the Board had
discriminated against J.D. on the basis of sex. The complaint
also alleged in Counts One and Two that the Board and Principal
Schwab were liable for negligence and gross negligence. After
discovery was completed, the defendants moved for and secured
summary judgment on all three claims.
By its decision of November 18, 2013, the district court
first awarded summary judgment to the Board on the Title IX
claim. The court observed that a Title IX claim requires proof
of four elements: (1) that a student was enrolled at an
educational institution receiving federal funds; (2) that the
student was subjected to harassment based on sex; (3) that the
harassment was sufficiently severe or pervasive to create a
12
hostile environment in an educational program or activity; and
(4) that there is a basis for imputing the harasser’s liability
to the institution. See Doe, 982 F. Supp. 2d at 651 (citing
Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007)).
There has been no dispute as to proof of the first prong of the
Title IX analysis, and the court determined that “a reasonable
juror could infer that the harassment stemmed from sexual
desire,” satisfying the second prong. Id. Further, with
respect to the third prong, the court explained that it was
“unprepared to conclude” that M.O.’s harassment of J.D. had not
deprived J.D. of an educational program or activity, in that the
harassment had compelled the Does to withdraw J.D. from the
school. Id. at 653.
According to the district court, however, the Title IX
claim failed to survive summary judgment because the Does could
not satisfy the fourth prong of the analysis by establishing a
basis for imputing liability to the Board. See Doe, 982 F.
Supp. 2d at 653. In that regard, the court recognized that the
Board must have had actual knowledge of the student-on-student
harassment and then acted with deliberate indifference to such
harassment. Id. at 653-54 (observing that “[a] funding
recipient is deliberately indifferent to known acts of sexual
harassment ‘only where the recipient’s response . . . is clearly
unreasonable’” (alteration in original) (quoting Davis ex rel.
13
LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648
(1999))).
After consulting the summary judgment record, the district
court concluded that the defendants were not shown to be
deliberately indifferent. See Doe, 982 F. Supp. 2d at 654-56.8
In support of that ruling, the court primarily focused on the
defendants’ responses to the library, classroom, and bathroom
incidents. Because of the library incident, the court related,
Schwab had Jellison rearrange her classroom so that J.D. and
M.O. were seated as far apart as possible and Jellison had
better visibility of both students. Id. at 654. Thereafter, as
a result of the classroom incident, M.O. served a five-day in-
school suspension. Id. Finally, notwithstanding that a
thorough investigation failed to corroborate the bathroom
incident, the school implemented procedures to protect J.D. when
he used the bathroom, including providing him with a student
8
Although the district court did not consistently
distinguish between the Board and Schwab in assessing the Title
IX claim, that claim was properly pursued against the Board
only. See Hartley v. Parnell, 193 F.3d 1263, 1270 (11th Cir.
1999) (“Individual school officials . . . may not be held liable
under Title IX.”). In any event, liability may be imputed to an
educational entity (such as the Board) premised on the actual
knowledge of a school official (like Schwab) who has “authority
to address the alleged discrimination and to institute
corrective measures on the [educational entity’s] behalf.” See
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290
(1998).
14
escort. Id. at 654-55. The court observed, for example, that
if the defendants’ response to the classroom incident was
clearly unreasonable, “then ‘nothing short of expulsion of every
student accused of misconduct involving sexual overtones would
protect school systems from liability or damages.’” Id. at 654
(quoting Davis, 526 U.S. at 648). As the court then explained,
such an “outcome would deprive school administrators of the
flexibility to employ tailored responses to sexual harassment
and run counter to the strong national policy in favor of
educating children.” Id. 9
Turning to J.D.’s July 2010 complaint to the county police
that he had been sexually assaulted by M.O., the district court
observed that the defendants “could not have acted in a clearly
unreasonable manner as to [those] allegations.” Doe, 982 F.
9In addition to the library, classroom, and bathroom
incidents, the district court considered inappropriate remarks
made to J.D., including M.O.’s “gay” comment. The court
recognized, inter alia, that such remarks are “just an example
of the ‘dizzying array of immature behaviors by students,’” and
that, “[t]o the extent a response was in order, the remedial
measures [taken by the defendants], including Schwab’s
instructing [J.D.] to tell his teacher of any further such
incidents, sufficed.” Doe, 982 F. Supp. 2d at 655-56 (quoting
Davis, 526 U.S. at 651). Addressing the Does’ theory that J.D.
and M.O. should have been placed in separate classrooms for the
2009-10 school year, the court emphasized not only its
obligation to refrain from “micromanag[ing]” the school’s
operations, but also the lack of evidence that such a response
would have impeded M.O.’s harassment of J.D., much of which
occurred outside the classroom. Id. at 656-57.
15
Supp. 2d at 655. Put succinctly, the defendants were never
advised of the sexual assault allegations, and could not respond
because they “lacked actual notice of [them].” Id. The court
further rejected any notion that the defendants’ “failure to
follow the procedures set forth in AP 4170 displays deliberate
indifference,” as “the Supreme Court has held that the failure
to follow sexual harassment grievance procedures does not prove
deliberate indifference under Title IX.” Id. at 657 (citing
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291-92
(1998)).
The district court also awarded summary judgment to the
Board and Schwab on the Does’ negligence and gross negligence
claims. In disposing of the gross negligence claim, the court
recognized that, under Maryland law, a defendant acts with the
requisite “wanton and reckless disregard for others only when he
inflicts injury intentionally or is so utterly indifferent to
the rights of others that he acts as if such rights did not
exist.” Doe, 982 F. Supp. 2d at 658 (internal quotation marks
omitted). The court then ruled that a reasonable jury could not
conclude that the defendants “intentionally inflicted [J.D.’s]
injury or acted as if [J.D.’s] rights did not exist.” Id.
Regarding the negligence claim, the district court observed
that Maryland requires proof of four elements: (1) a duty owed
to the plaintiff; (2) a breach of that duty; (3) a legally
16
cognizable causal relationship between the breach of duty and
the harm suffered; and (4) damages. See Doe, 982 F. Supp. 2d at
659. The court concluded that the defendants owed J.D. “a duty
to exercise reasonable care to protect him from student-on-
student sexual harassment.” Id. (citing Lunsford v. Bd. of
Educ. of Prince George’s Cnty., 374 A.2d 1162, 1168 (Md. 1977)).
Additionally, the court allowed that “a reasonable juror could
conclude that [J.D.] suffered injuries on account of the alleged
harassment.” Id.The district court explained at length, however, that the
defendants had not, as a matter of law, breached their duty to
J.D. See Doe, 982 F. Supp. 2d at 659-61. More specifically, as
the court stated, the defendants’ responses to the library and
classroom incidents were “swift and substantial,” and the
defendants took “significant steps” to address the bathroom
incident. See id. at 659. According to the court, “it is
unclear what else . . . could have [been] done, or that any more
measures would not have proved overly burdensome.” Id.
Although it acknowledged that a failure to adhere to
administrative procedures might be probative of negligence, the
court determined that the other circumstances of this case
weighed heavily against the conclusion that the defendants
breached the duty owed J.D. Id. at 660 (citing Volkswagen of
Am., Inc. v. Young, 321 A.2d 737, 746 (Md. 1974), for the
17
proposition that “statutory or regulatory requirements are
deemed to furnish standards by which courts or juries determine,
along with other circumstances, whether or not conduct is
negligent”). 10
As an alternative to rejecting the negligence claim for
lack of a breach of duty, the district court ruled that such a
breach by the defendants was not the cause of J.D.’s injuries,
see Doe, 982 F. Supp. 2d at 661-63, and that the Does were
barred from recovering on a negligence theory because J.D. was
contributorily negligent and assumed the risk, id. at 663-64.
The Does timely noted this appeal, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.
III.
We review de novo a district court’s award of summary
judgment. See Laber v. Harvey, 438 F.3d 404, 415 (4th Cir.
10
In the course of analyzing the negligence claim, the
district court ruled that the report of the Does’ proposed
expert, Susan Strauss, failed to create a triable issue of
breach of duty. First, the expert report was unsworn and not
signed under penalty of perjury. See Doe, 982 F. Supp. 2d at
660. Second, the evidence either failed to support or
contradicted “many of the factual contentions on which Strauss
bases her conclusions.” Id. at 660-61. And third, Strauss’s
core conclusion — that the defendants failed to adhere to
applicable administrative procedures — was premised on
inapplicable rules and procedures, and “overstates [the
defendants’] failure to follow AP 4170.” Id. at 661.
18
2006) (en banc). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
IV.
On appeal, the Does maintain that the district court
erroneously determined, with respect to their Title IX claim,
that liability for the sexual harassment of J.D. cannot be
imputed to the Board. The Does also assert that the court erred
in concluding, on their negligence claim, that they failed to
establish the defendants’ breach of duty. We address — and
reject — those contentions in turn. 11
A.
Under Title IX, an imputation of liability to an
educational institution has two pertinent aspects: (1) whether
the institution had actual knowledge of the student-on-student
sexual harassment; and (2) whether the institution was
deliberately indifferent to that harassment. See Davis ex rel.
11
Because we agree with the district court that the Does
failed to prove a breach of duty, we need not reach their
additional contention that the district court erred in ruling
that J.D. was contributorily negligent and assumed the risk.
Meanwhile, we do not review the court’s summary judgment award
on the Does’ gross negligence claim, as they do not contest that
ruling.
19
LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646-47
(1999). An educational institution can be liable on a
deliberate indifference theory only when its response to known
harassment is “clearly unreasonable.” Id. at 648. To avoid
liability, the institution is not required “to remedy peer
harassment” or “to ensure that students conform their conduct to
certain rules.” Id. at 648-49 (alteration and internal
quotation marks omitted). On summary judgment, a court is
entitled to decide that the educational entity’s response was
“not ‘clearly unreasonable’ as a matter of law.” Id. at 649.
Applying the deliberate indifference standard recognized by
the Supreme Court in its Davis decision, the district court
concluded here, as a matter of law, that the Board’s responses
to M.O.’s harassment of J.D. were not clearly unreasonable. In
challenging that ruling in this appeal, the Does fault the Board
for failing both to discern an escalating pattern of harassment
and to take effective corrective actions. That is, the Does
argue that the district court erred in accepting the Board’s
“argument that each instance of sexual harassment was an
isolated incident rather than part of an escalating pattern.”
See Br. of Appellants 47. The Does also invoke a Sixth Circuit
decision and guidance from the Department of Education’s Office
for Civil Rights for the proposition “that a response is
‘clearly unreasonable’ when it is not calculated to be
20
effective, or when repeated harassment demonstrates that it has
not been effective.” Id. at 47-48 (citing Vance v. Spencer
Cnty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000); Office for
Civil Rights, Sexual Harassment Guidance: Harassment of
Students by School Employees, Other Students, or Third Parties,
62 Fed. Reg. 12034 (Mar. 13, 1997) (the “OCR Guidelines”)).
The Does urge us to speculate what the Board might have
known had school employees more thoroughly investigated J.D.’s
allegations, and they would have us hold the Board liable under
Title IX for failing to discover “the full extent of the pattern
of sexual harassment.” See Br. of Appellants 49. We cannot
accept the Does’ theory, however, because we would have to
substitute a negligence standard for the deliberate indifference
standard. See Doe v. Galster, 768 F.3d 611, 619-20 (7th Cir.
2014) (rejecting the plaintiff’s argument that, based on a
pattern of non-severe harassment, “the school should have done
more to investigate and to prevent the violent acts that were
committed [later]”).
We also cannot accord the Does relief from the district
court’s summary judgment award under the Sixth Circuit’s Vance
decision and the OCR Guidelines. In describing how a school
should respond to known sexual harassment, the OCR Guidelines
recommend that the school “take steps reasonably calculated to
end any harassment, eliminate a hostile environment if one has
21
been created, and prevent harassment from occurring again.” See
OCR Guidelines, 62 Fed. Reg. at 12042. Relying on the OCR
Guidelines, the Vance court determined that, “where a school
district has knowledge that its remedial action is inadequate
and ineffective, it is required to take reasonable action in
light of those circumstances to eliminate the behavior.” See
231 F.3d at 261. Adopting the rationale of Vance and the OCR
Guidelines would not help the Does, however, because this is not
a case where the Board had “actual knowledge that its efforts to
remediate [were] ineffective, and it continue[d] to use those
same methods to no avail.” See id. (emphasis added).
In a final attempt to revive their Title IX claim, the Does
have reiterated their argument that the Board’s failure to
adhere to its sexual harassment policies, including AP 4170, is
evidence of deliberate indifference. The district court
properly rejected that contention, however, on the ground that
“the failure to follow sexual harassment grievance procedures
does not prove deliberate indifference under Title IX.” Doe,
982 F. Supp. 2d at 657 (citing Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 291-92 (1998)); see also Sanches v.
Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 169
(5th Cir. 2011) (explaining that, under Gebser, principal’s
failure to contact school district’s Title IX coordinator
22
pursuant to school policy “does not mean [principal’s] actions
were clearly unreasonable”).
In sum, we agree with the district court that the Board’s
failure to strictly adhere to its sexual harassment policies,
including AP 4170, is not determinative. Indeed, such
“procedural shortcomings do not diminish the substantive impact
of all the steps [the defendants] took in response to” J.D.’s
allegations. See Doe, 982 F. Supp. 2d at 657. Those steps, as
fully explained by the district court’s decision, were not
clearly unreasonable. See id. at 654-58. Thus, we affirm the
district court’s award of summary judgment on the Does’ Title IX
claim.
B.
Turning to the negligence theory, it must be shown that
there was a breach of the duty under Lunsford v. Board of
Education of Prince George’s County, 374 A.2d 1162, 1168 (Md.
1977), “to exercise reasonable care to protect a pupil from
harm.” The Does maintain that the defendants breached their
duty to J.D. by failing to recognize an escalating pattern of
harassment and conduct a reasonable investigation, by failing to
follow the Board’s sexual harassment policies, and by failing to
respond appropriately to known instances of harassment.
We reject the Does’ contention that had the defendants’
viewed M.O.’s behavior as forming a pattern of harassment, they
23
would have conducted a “proper investigation,” and “would likely
have uncovered the repeated sexual assaults” of J.D., which the
defendants “then would have taken further steps to prevent.”
See Br. of Appellants 29. That argument is speculative, and
cannot form a basis for denying summary judgment. See Othentec
Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (“The
nonmoving party cannot create a genuine issue of material fact
through mere speculation or the building of one inference upon
another.” (internal quotation marks omitted)). Moreover,
although the Does assert otherwise, the decision of the Court of
Appeals of Maryland in Eisel v. Board of Education of Montgomery
County did not establish a school’s duty to investigate, such
that a breach of that duty would sound in negligence. See 597
A.2d 447, 456 (Md. 1991) (ruling that “school counselors have a
duty to use reasonable means to attempt to prevent a [student’s]
suicide when they are on notice of [the] student’s suicidal
intent”).
We also disagree with the Does’ theory that the defendants
breached their duty to J.D. by failing to follow the Board’s
sexual harassment policies, including AP 4170. Indeed, the
summary judgment record demonstrates that many of the
defendants’ responses tracked AP 4170’s recommendations or
otherwise constituted a reasonable investigation of J.D.’s
allegations. For example, following the bathroom incident, the
24
defendants adhered to the recommendations in the AP 4170 form by
obtaining, in a documented statement written by J.D., the names
of the parties involved, the location of the incident, and a
description of the incident. In further investigation of the
bathroom incident, the school’s security officer reviewed video
footage of the bathroom’s entrance, and Schwab interviewed
potential witnesses in compliance with AP 4170. Similarly,
Jellison interviewed three students who had witnessed the
classroom incident. In procuring statements from those
students, Jellison discovered that M.O. had also displayed
inappropriate behavior toward them. Thus, in compliance with AP
4170, Jellison located witnesses to the classroom incident,
uncovered previous incidents of M.O.’s harassment, and
identified three students who had “experienced the same problem”
with M.O. See J.A. 128. Furthermore, in response to the
library incident, Principal Johnson spoke to both J.D.’s parents
and M.O.’s parents, and Schwab took a statement directly from
J.D. regarding the nature of the harassment, in compliance with
AP 4170. Accordingly, there is no triable issue that the
defendants breached their duty on that ground. 12
12
We acknowledge that the Does’ expert report by Susan
Strauss purported to establish a genuine dispute as to breach of
duty. See supra note 10. The district court discounted the
report on several grounds, however, including that it was
premised on inapplicable rules and procedures, and “overstates
(Continued)
25
Finally, there can be no genuine dispute that, each time
J.D. made a complaint about M.O., the defendants exercised
reasonable care to protect J.D. from harm. For example,
following the library incident, which occurred in Jellison’s
classroom, Schwab instructed Jellison to rearrange her classroom
so that J.D. and M.O. sat as far apart as possible. Next, after
the classroom incident, M.O. was removed from Jellison’s
classroom for five days to serve an in-school suspension in
Principal Johnson’s office. And, although Schwab had reason to
doubt the validity of the bathroom incident, she took steps to
ensure that J.D. and M.O. would not be alone together in the
bathroom, including the offer of a student escort for J.D.
In these circumstances, we are constrained to agree with
the thoughtful decision of the district court that the
defendants’ responses to the known incidents of harassment were
“swift,” “substantial,” and “significant.” See Doe, 982 F.
Supp. 2d at 659. Accordingly, we likewise conclude that there
has been no showing that the defendants breached their duty to
[the defendants’] failure to follow AP 4170.” See Doe, 982 F.
Supp. 2d at 661. We agree with the district court and thus do
not consider Strauss’s report.
26
J.D., and we affirm the court’s summary judgment award on the
Does’ negligence claim.
V.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
27