Keegan Gordon v. Traverse City Area Public Sch. , 686 F. App'x 315 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0216n.06
Case No. 16-1613
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 12, 2017
KEEGAN GORDON, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
TRAVERSE CITY AREA PUBLIC ) MICHIGAN
SCHOOLS, )
)
Defendant-Appellee. )
BEFORE: MERRITT, COOK, and McKEAGUE, Circuit Judges.
COOK, Circuit Judge. As a sophomore at Traverse City West Senior High (TC West),
Keegan Gordon was sexually assaulted by his teacher, Lisa Placek. In the months following,
Keegan struggled socially and academically. He felt shunned by his friends and athletic coaches;
his grades plummeted; he contemplated suicide. And in 2015, he filed this lawsuit blaming his
school district, Traverse City Area Public Schools (TCAPS), for much of his decline. Relying on
the Fourteenth Amendment’s Equal Protection Clause, Title IX, and Michigan state law, he
charged school officials with retaliation and remaining deliberately indifferent to his claims of
peer harassment. The district court granted summary judgment to TCAPS. Because no
reasonable jury could find that TCAPS retaliated against Keegan or responded with deliberate
indifference to his complaints of peer harassment, we affirm.
Case No. 16-1613, Gordon v. Traverse City Area Public Schools
I.
(A) Factual Background
Lisa Placek, one of TC West’s most popular teachers, began grooming Keegan for sexual
contact at the end of his freshman year. The two exchanged cell-phone numbers and texted each
other increasingly explicit messages and photos over the next several months. On December 31,
2011, Placek picked Keegan up in her car and performed oral sex on him.
Keegan did not report Placek’s sexual assault to police. Instead, TCAPS began
investigating after naked photos of Placek wound up on the internet. On January 20, 2012, the
day after it discovered the photos, TCAPS questioned Placek, suspended her, and reported the
incident to police. Placek resigned a few days later. In March, she pleaded guilty to assault with
intent to commit sexual penetration and was sentenced to a minimum of 23 months in prison.
Keegan cooperated with the police investigation.
Following Placek’s assault, Keegan claims he was harassed by peers, shunned by athletic
coaches, and retaliated against by TC West administrators, all because Placek lost her job and
ended up in jail. We detail the school’s response to the Placek incident below in the light most
favorable to Keegan, highlighting factual disputes where they arise.
(1) Suspensions and Bullying
TCAPS encouraged Keegan to stay home for a few days following Placek’s suspension.
Keegan and his mother, Kathryn Gordon, voiced no objection, and Keegan returned to classes
several days later. Shortly after Placek’s removal, TC West Principal Joseph Tibaldi met with
his three assistant principals to discuss the school’s response. He instructed them to “make sure
Keegan’s teachers protected him,” to watch for “verbal or physical harassment,” and to report
any bullying.
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Around the same time, Kathryn reported to Tibaldi and Assistant Principal Stephanie
Long that three of Keegan’s peers had posted hurtful comments on his Facebook page. She
supplied Tibaldi with their names and a list of students who “liked” the post. School officials
verbally reprimanded the three posting students, and none bothered Keegan again. There’s no
record of the school speaking to the students who “liked” the post.
In early February, TC West suspended Keegan and his friend for allegedly chewing
tobacco in a school bathroom. This was their second offense: in early January, before the school
learned of Placek’s assault, it caught the pair chewing together and suspended both. The parties
dispute what happened the second time around.
According to Keegan’s baseball coach, he received a tip that Keegan and his friend were
chewing tobacco in adjacent bathroom stalls. The coach knocked on the stalls and waited
45 seconds before the boys exited. Suspicious, he asked the boys to smile, revealing tobacco bits
in their teeth. He then reported them to Assistant Principal Charles Kolbusz, to whom Keegan’s
friend admitted chewing. According to Kolbusz, Keegan denied chewing but confessed to
possessing tobacco. Both boys received five-day suspensions.
Although Keegan denies possessing or chewing tobacco, he admits telling Kolbusz he
intended to chew. The school later granted Keegan’s appeal after it found that Kolbusz failed to
collect a written statement from Keegan, in violation of school procedure.
Convinced that TC West had found her son guilty by association, Kathryn met with
Principal Tibaldi to voice her frustration. Tibaldi, a seasoned school principal, believed it
“common for many high school students to lie in an attempt to avoid discipline,” and said so to
Kathryn. Not convinced, Kathryn requested that Tibaldi “ask [Assistant Principal] Stephanie
Long . . . [m]y son has always been honest with her.” In fact, Long’s impression of Keegan “was
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the opposite” because she “recalled Keegan lying on several occasions when accused of
misconduct.” With the intention of speaking to Kathryn further, Tibaldi asked Long to document
Keegan’s disciplinary history, resulting in what the parties refer to as the “Long Memo # 1.”
Keegan perceives a more nefarious motive. He believes Long packed the list with “false
accusations” and “unconfirmed claim[s]” to impugn his credibility in the event Placek stood
trial.1 He also thinks TCAPS furnished the list to the prosecutors investigating Placek’s assault,
relying on his own testimony that he’s “pretty sure it was brought up” in his conversations with
them.
Keegan’s scholastic rap sheet continued to grow after his tobacco suspensions. In
February, TC West suspended him for allegedly sharing a fellow student’s naked picture with his
friends. The school investigated after the student’s friend hurled a chair at Keegan in the
cafeteria. TC West interviewed multiple witnesses, and at least one implicated Keegan. In
addition to Keegan, the school suspended the chair-thrower and the students who viewed the
photo. Keegan denies sharing the picture.
Sometime later, Keegan allegedly made sexually charged comments to a classmate and
shined his phone’s flashlight in her eyes during class, prompting his teacher to move his desk
and confiscate his phone. Keegan admits that he “had [his] phone on the desk or something,” but
denies the rest.
Besides the chair-throwing incident, Keegan reported two other incidents of on-campus
harassment. First, he reported a football captain for making a rude comment to him. His football
coach reprimanded the player and asked the other captains to be friendlier to Keegan. Second, a
1
Notably, the Long Memo #1 describes the basis for each entry and acknowledges where
an incident could not be confirmed or is based on second-hand reports.
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Case No. 16-1613, Gordon v. Traverse City Area Public Schools
TC West alumnus insulted Keegan while using TC West’s weight room. Principal Tibaldi
threatened to bar the alumnus from campus if such behavior recurred.
(2) Shunning
Keegan’s social life suffered following the Placek incident. The “entire school” turned
on him, “everybody hated him for it,” and “even his close friends shunned him.” Parents sent e-
mails to TCAPS defending Placek and blaming Keegan. Needless to say, the community’s
response took its toll on him. He developed severe anxiety and contemplated suicide.
Keegan also recalls feeling “neglected” by TC West’s athletic coaches and “not as
important as [he] used to be.” Keegan’s friend testified that coaches considered him a “cancer.”
Teachers “did not pay as much attention to [Keegan]” or “act [as] light-hearted with [him]” as
they had in the past.
Keegan declined to try out for his sophomore baseball team because he “hadn’t been
contacted” by coaches. He concedes, however, that TC West does not extend individual try-out
invitations. Keegan also claims that coaches “excluded” him from a trip to the University of
Michigan that “other members of the team were allowed to attend.” But he offers no evidence
that coaches sent invitations to other student-athletes.
TCAPS denies Keegan’s shunning allegations.
(3) Educational Decisions Following Placek’s Assault
TC West offered Keegan numerous accommodations following Placek’s assault.
It allowed him to drop theater class because he felt uncomfortable performing for classmates.
It permitted him to work in a “focus room” if he felt anxious. Teachers offered him extra time
on assignments. Assistant Principal Long tutored him in English.
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Despite these accommodations, Kathryn Gordon pulled her son out of TC West in March
2012, two weeks into the final trimester of his sophomore year, and enrolled him in online
courses. Unhappy, Keegan re-enrolled at TC West 10 days later. When he met with his
guidance counselor to schedule classes, the counselor could not replicate his online course load.
Moreover, Placek’s daughter, also a TC West student, was already enrolled in a creative-writing
class Keegan wanted to take. The counselor felt that placing Keegan with Placek’s daughter
might be uncomfortable for them both. And because Placek’s daughter had already attended the
class for nearly two weeks by the time Keegan decided to re-enroll, the counselor placed Keegan
in a different class.
TC West divides its student body into three learning groups known as “neighborhoods.”
Hoping to provide Keegan a “fresh start,” his counselor also assigned him to a new
neighborhood. Kathryn complained to school administrators about the decision because she
worried it would isolate her son from his remaining friends.
Unfortunately, the neighborhood switch backfired, making Keegan “dislike[] life . . .
even more.” Afraid he might commit suicide, Kathryn sent him to live with an uncle in Arizona
for his junior year. Unhappy there, Keegan returned two months into the school year and
enrolled in a different Traverse City school, TC Central. Although eligibility rules generally
require recent transfers to sit out temporarily, school officials petitioned the Michigan High
School Athletic Association for a waiver, which it granted. Nonetheless, Keegan declined to try
out for TC Central’s baseball team.
In December 2012, Kathryn met with Superintendent Steve Cousins and Principal Tibaldi
to voice her frustration with TCAPS’s response to the Placek incident. She complained that
TC West had done little to help Keegan and also took issue with the actions TC West did take.
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Cousins and Tibaldi both offered to help Keegan, but believed that because of his age—16 at the
time—he should be part of the conversation moving forward. Kathryn never followed up on
TCAPS’s offer.
(B) Proceedings Below
In 2015, Keegan brought a three-count complaint against TCAPS in the Western District
of Michigan. He alleged that TCAPS punished him for Placek’s arrest and failed to protect him
from peer harassment, in violation of the Fourteenth Amendment’s Equal Protection Clause,
Title IX, and Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Law.
§§ 37.2101–37.2804.
The district court granted TCAPS’s motion for summary judgment on each of Keegan’s
claims. Keegan appeals only the dismissal of his Title IX and ELCRA claims.
II.
We review the district court’s grant of summary judgment de novo and will affirm if,
viewing the evidence and drawing all reasonable inferences in Keegan’s favor, “there is no
genuine issue of material fact and [TCAPS] is entitled to judgment as a matter of law.” Stiles ex
rel. D.S. v. Grainger Cty., Tenn., 819 F.3d 834, 847 (6th Cir. 2016). A factual dispute is genuine
if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III.
Title IX provides that “[n]o person in the United States shall, on the basis of sex, 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.” 20 U.S.C. § 1681(a).
Title IX implies a cause-of-action against recipients of federal funds. See Cannon v. Univ. of
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Chicago, 441 U.S. 677, 689 (1979). Keegan’s claims sound in retaliation and harassment, and
we address each in turn.
(A) Retaliation
In Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the Supreme Court
held that “[r]etaliation against individuals because they complain of sex discrimination is
‘intentional conduct that violates the clear terms of [Title IX].’” Id. at 183 (quoting Davis ex rel.
LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 642 (1999)). The McDonnell Douglas
burden-shifting framework applies to Title IX and ELCRA retaliation claims that rely on indirect
evidence of retaliation. Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013)
(alteration omitted), abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.
Ct. 2517 (2013); Fuller v. Mich. Dep’t of Transp., 580 F. App’x 416, 423 (6th Cir. 2014).
To establish a prima facie case of retaliation, Keegan must show that (1) he engaged in
protected activity, (2) TCAPS knew of the protected activity, (3) he suffered an adverse school-
related action, and (4) a causal connection exists between the protected activity and the adverse
action. Fuhr, 710 F.3d at 674. If Keegan succeeds, TCAPS may rebut that presumption by
“articulating some legitimate, nondiscriminatory reason for its action.” Id. at 674 (quoting
Spengler v. Worthington Cylinders, 615 F.3d 481, 492 (6th Cir. 2010)). Should TCAPS do so,
the burden shifts back to Keegan to undermine its proffered reason as pretextual. Id.In granting summary judgment to TCAPS, the district court held first that Keegan
engaged in no protected activity because he did not complain of Placek’s harassment on his own
initiative; instead, TCAPS discovered the assault once naked photos of Placek circulated on the
internet, prompting an investigation. In the alternative, the district court concluded that TCAPS
had a “good faith belief”—which Keegan failed to undermine—for taking any of its arguably
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adverse actions. Because we agree that Keegan fails to undermine TCAPS’s reasons for taking
any adverse actions, we assume without deciding that Keegan engaged in protected activity. But
before addressing Keegan’s pretext arguments, we must identify which actions qualify as
adverse.
(1) Adverse Educational Actions
To qualify as “adverse,” an educational action must be sufficiently severe to dissuade a
“reasonable person” from engaging in the protected activity. See Burlington North. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006); Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 728–
29 (7th Cir. 2009) (applying Burlington Northern’s “adverse action” standard to a Title IX
retaliation claim). TCAPS maintains that, with the exception of Keegan’s two suspensions and a
single incident of in-class discipline, Keegan shows no adverse school-related actions.
Keegan, on the other hand, takes issue with almost everything TCAPS did following the
Placek incident, including: (1) his coaches’ alleged shunning; (2) Assistant Principal Long’s
creation of the Long Memo # 1; (3) the decision to assign Long as his tutor; (4) Tibaldi’s
suggestion that he stay home from school for a few days after Placek’s removal; (5) his
counselor’s assigning him to a new neighborhood; and (6) his counselor’s denying him the
opportunity to take creative writing because Placek’s daughter was already enrolled. TCAPS
disputes the adversity of each.
Keegan’s shunning allegations fail to bolster his prima facie case because they lack
evidentiary support. He relies on his own feelings of “neglect[],” his friend’s belief that coaches
considered him a “cancer,” and the fact that coaches didn’t invite him to try-out or attend a team
trip. But the friend admits he never actually heard coaches call Keegan a cancer, and instead
drew “assumptions” about the labeling from unspecified comments by teammates. And the
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friend—who apparently wasn’t the most popular player, either—further admits that his
teammates “might have been just referring to me.” Moreover, Keegan’s claims that coaches
didn’t personally invite him to try-out and “excluded” him from a team trip fail because he offers
no evidence that coaches invited other students or prevented him from trying out or attending the
trip.
The record supports Keegan’s remaining grievances, but most fall short of meeting
Burlington Northern’s adversity test. Start with the Long Memo # 1 detailing Keegan’s
disciplinary history at TC West. Merely having one’s disciplinary history summarized in an
internal school memo, without the memo affecting the subject in some way, would not dissuade
a reasonable person from engaging in protected activity. And although Keegan posits that
TCAPS furnished the memo to prosecutors to trash his credibility, he supports this claim with
only a deposition statement that he’s “pretty sure” a prosecutor mentioned the memo during an
interview. The district court properly rejected the prosecutor’s statement as inadmissible
hearsay.2
Assistant Principal Long’s tutorship of Keegan also fails to qualify as adverse. Following
the Placek incident, TC West took steps to help Keegan with his school work, including
assigning Long as his tutor. Keegan discerns a retaliatory motive in the choice of Long because
he views her as his “chief antagonist.” But even assuming Long disliked Keegan, no reasonable
jury could conclude that providing extra help to Keegan rises to the level of an adverse
educational action.
2
Keegan also takes issue with TCAPS’s creation of a “Long Memo # 2,” a more detailed
exposition of Keegan’s disciplinary history drafted by Assistant Principals Kolbusz, Long, and
Esper on October 25, 2012. By that time, Placek had already been sentenced and Keegan was
attending TC Central. Again, Keegan fails to explain how the school’s creation of an internal
memo is adverse.
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We also agree with the district court that “TCAPS’s recommendation[] to [Keegan] that
he stay home until the atmosphere calmed down . . . do[es] not constitute [an] adverse action[].”
The undisputed evidence shows that Keegan raised no objection to this recommendation.
Offering a student the option of staying home following a sexual assault does not constitute an
adverse educational action.
In contrast, Keegan proffers sufficient evidence to support the adversity of TCAPS’s
decision to place him in a different neighborhood. Kathryn Gordon claims she fought the
decision, and regarding adversity, Keegan asserts that changing neighborhoods separated him
from his friends. A reasonable jury could find the threat of social alienation sufficiently severe
to qualify as adverse.
The same is true of TCAPS’s decision to deny Keegan enrollment in a creative-writing
class. Keegan testified that the school barred him from the class because Placek’s daughter was
already enrolled. A student might think twice about reporting harassment if he knew that his
school would then prevent him from taking desired courses.
In sum, Keegan supports his prima facie case with five adverse educational actions: his
two suspensions, his in-class punishment, his placement in another neighborhood, and TCAPS’s
denial of the opportunity to take creative writing.
(2) TCAPS’s Nondiscriminatory Justification and Keegan’s Evidence of Pretext
The burden shifts to TCAPS to offer legitimate, non-discriminatory reasons for its five
adverse actions. TCAPS satisfies its burden. It points to evidence that TC West administrators
suspended Keegan because they believed he chewed tobacco and shared naked pictures of a
classmate. Similarly, it backs Keegan’s in-class punishment with evidence that he made sexually
inappropriate comments to a female student and shined his phone’s flashlight in her eye. Finally,
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Keegan’s counselor recommended he avoid classes with Placek’s daughter to prevent discomfort
for them both, and decided to place him in a new neighborhood to “help him feel more
comfortable.”
Keegan must therefore identify sufficient evidence that would permit a jury to disbelieve
TCAPS’s proffered explanations. He may do so by showing that those explanations “(1) have no
basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the
action.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012) (citing Dews v.
A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)).
To undermine the school’s disciplinary decisions, Keegan relies solely on the first
method, arguing that he was actually innocent of each infraction.
Because Keegan attempts to show that TCAPS “did not actually have cause” to discipline
him, TCAPS benefits from the “honest-belief rule.” Joostberns v. United Parcel Servs., 166 F.
App’x 783, 791 (6th Cir. 2006). Under this rule, as long as TCAPS “made a reasonably
informed decision” before disciplining Keegan, he cannot show pretext even if those decisions
are “mistaken, foolish, trivial, or baseless.” Smith v. Chrysler Corp., 155 F.3d 799, 806–07 (6th
Cir. 1998).
Although Keegan maintains his innocence, the undisputed facts show that TCAPS “made
a reasonably informed decision” before punishing Keegan in each instance. Smith, 155 F.3d at
807.
Tobacco-Chewing Incident. Keegan’s baseball coach received a tip that Keegan and his
friend were chewing in restroom stalls on campus. After knocking on the stalls, the coach waited
45 seconds before the boys exited. He asked the boys to smile and recalls seeing bits of tobacco
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in their teeth. He then sent Keegan and his friend to Assistant Principal Kolbusz’s office, where
the friend admitted chewing and Keegan allegedly said he possessed tobacco.
Keegan denies incriminating himself or chewing tobacco. But even if he did neither,
Kolbusz still reached a “reasonably informed decision” based on the information provided by the
coach. Smith, 155 F.3d at 807. Moreover, less than a month earlier, TC West caught the same
two students chewing tobacco in a school restroom—a fact Klobusz could reasonably consider
when evaluating Keegan’s claimed innocence. Although the school rescinded the second
suspension because Kolbusz failed to gather a written statement from Keegan—in violation of
school procedure—that retraction does not discredit Kolbusz’s good-faith belief that Keegan
chewed or possessed tobacco on school grounds.
Photo Incident. Two witnesses confirmed that Keegan and several other students viewed
an explicit photo of a classmate during class. The student depicted in the picture recalled seeing
her photo pulled up on Keegan’s laptop. Another student reported Keegan’s involvement to
Assistant Principals Long and Kolbusz. Although Keegan marshals evidence supporting his
innocence, none undermine TCAPS’s reasonable belief—formed through witness interviews—
that Keegan was involved. Moreover, the school suspended Keegan along with four other
students, which supports TCAPS’s honest belief that an infraction had occurred and undercuts
Keegan’s charge of retaliatory motive.
In-Class Punishment. Keegan’s female classmate submitted an affidavit recounting how
Keegan made a sexually inappropriate comment and shined his phone’s flashlight in her eyes
during class, prompting the teacher to confiscate the phone and move Keegan’s desk. Although
Keegan faults the teacher for taking the student’s side without performing a thorough
investigation, an “optimal investigation . . . is not a prerequisite to application of the honest
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belief rule.” Seeger, 681 F.3d at 286 (citation and quotation marks omitted). Keegan offers no
evidence to undermine the teacher’s good-faith belief that he disrupted class.
Class & Neighborhood Placement. Keegan raises no argument to undermine TC West’s
explanation for its class- and neighborhood-placement decisions. Keegan’s counselor averred
that he separated Keegan from Placek’s daughter to “avoid an uncomfortable situation for him.”
Similarly, he placed Keegan in a new neighborhood because he “thought moving him . . . would
help him feel more comfortable and provide a fresh start.” Keegan offers no evidence to
discredit his counselor’s belief that these decisions were in his best interest. To the contrary, in
his deposition, he describes his counselor as “[t]he only person that was nice to [him] in the
school” and the “only person [his mom] wanted to trust.”
Because Keegan can show, at most, that TCAPS’s decisions were “mistaken, foolish,
trivial, or baseless,” he falls short of meeting his summary-judgment burden. Seeger, 681 F.3d at285–86 (internal quotation marks and citation omitted).
B) Title IX Sexual Harassment Claim
In Davis ex rel. LaShonda D. v. Monroe County Board of Education, the Supreme Court
held that “[i]n certain limited circumstances,” peer-on-peer sexual harassment supports a Title IX
claim against a federal funding recipient.3 Davis, 526 U.S. at 643. To hold TCAPS liable for
such harassment, Keegan must establish (1) sexual harassment so severe and offensive that it
deprives him of access to TCAPS’s educational opportunities, (2) TCAPS’s actual knowledge of
the harassment, and (3) TCAPS’s “deliberate indifference” to the harassment. Id. at 650.
The district court held that Keegan failed to establish that he was “harassed because of
his sex.” TCAPS presents no argument defending the district court’s no-sexual-harassment
3
Unlike Keegan’s retaliation claim—which he brings under both Title IX and the
ELCRA—he asserts his sexual-harassment claim under Title IX only.
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holding, contending instead that Keegan fails to show deliberate indifference. For purposes of
this appeal, we assume that Keegan endured actionable harassment and proceed to address
deliberate indifference. We conclude that Keegan fails to create a genuine dispute on this issue.
(1) Deliberate Indifference Framework
Recognizing that “courts should refrain from second-guessing the disciplinary decisions
made by school administrators,” Davis, 526 U.S. at 648 (citation omitted), the Supreme Court set
a “high bar for plaintiffs to recover under Title IX,” Stiles, 819 F.3d at 848. A federal funding
recipient is liable for damages only if it “intentionally acted in clear violation of Title IX by
remaining deliberately indifferent to known acts of harassment.” Vance v. Spencer Cty. Pub.
Sch. Dist., 231 F.3d 253, 260 (6th Cir. 2000). To avoid liability, it need not “remedy” peer
harassment, “purg[e]” itself of offending students, or take “particular disciplinary action.”
Davis, 526 U.S. at 648. Instead, “the recipient must merely respond to known peer harassment
in a manner that is not clearly unreasonable.” Id. at 649.
(2) Keegan’s Evidence of Deliberate Indifference
Tellingly, Keegan declines to grapple with his burden, arguing instead that deliberate
indifference is “a conclusion to be drawn by the jury.” But the Supreme Court made clear in
Davis that the deliberate indifference standard “is not a mere reasonableness standard that
transforms every school disciplinary decision into a jury question.” Vance, 231 F.3d at 260(quotation marks and citation omitted). Following Davis, this court regularly grants summary
judgment when a plaintiff fails to establish a genuine dispute over deliberate indifference. See,
e.g., Stiles, 819 F.3d at 851; Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 365 (6th Cir.
2012).
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Here, the parties agree that Keegan or his mother reported one incident of online
harassment and three incidents of on-campus harassment. In each case, the school responded in
a manner that was “not clearly unreasonable.” Davis, 526 U.S. at 649.
Regarding the online harassment, Kathryn informed Principal Tibaldi that three students
posted hurtful comments on his Facebook page, with many others “liking” the post. TC West
reprimanded the three posters, and none bothered Keegan again. Although Keegan would have
preferred harsher punishment—and for TC West to have disciplined those who “liked” the
post—Title IX does not permit Keegan to “make particular remedial demands.” Davis, 526 U.S.
at 648. Moreover, the deliberate indifference standard holds a school liable for harassment only
where the school “exercises substantial control over both the harasser and the context in which
the known harassment occurs.” Id. at 645. Keegan offers no evidence that students “liked” the
offending Facebook posts during school hours, and he fails to explain how TCAPS retained
control over its students’ off-campus internet use.
Keegan reported three incidents of on-campus harassment. First, a student threw a chair
at Keegan in the school cafeteria. TCAPS suspended that student. Second, a football captain
made a rude comment to Keegan. TC West’s football coach reprimanded the captain and
informed his co-captains that TC West would not tolerate such behavior. Third, a school
alumnus spoke negatively to Keegan while using the weight room. Principal Tibaldi threatened
to bar the alumnus from campus. None of these students bothered Keegan again.
Moreover, TC West’s handling of Keegan’s harassment compares favorably to cases
where this court has found a school’s response “not clearly unreasonable.” Davis, 526 U.S. at
649. For example, the plaintiff in Stiles suffered recurring verbal and physical harassment for
over a year and a half, including having his head rammed into a wall and being repeatedly called
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“faggot” and “queer.” Stiles, 819 F.3d at 841–45. The school’s response ranged from doing
nothing to suspending the offending students, id., depending on the “perceived seriousness of
each incident,” id. at 851. We held that the plaintiff fell short of showing deliberate indifference
because the “school’s disciplinary and remedial responses were reasonably tailored to the
findings of each investigation.” Id. at 851. The same is true here: TCAPS investigated Keegan’s
complaints and meted out punishment commensurate with its findings. Id.
In their depositions, Keegan and Kathryn both claim they reported other incidents of
harassment. Kathryn estimates that she brought up bullying “at least 10 times” to Keegan’s
counselor, and “believe[d]” she had “a couple of interactions with [Principal] Tibaldi.” Keegan
testified that he “believe[d]” he reported additional harassment, but couldn’t remember to whom.
Keegan’s claims of additional reported harassment implicate this court’s decision in
Vance v. Spencer County Public School District. Vance held that “[w]here a school district has
actual knowledge that its efforts to remediate are ineffective, and it continues to use those same
methods to no avail,” a jury may find deliberate indifference. 231 F.3d at 261. TCAPS responds
that even if Keegan and Kathryn reported additional harassment, Keegan’s evidence regarding
the school’s response is too vague to support a finding of deliberate indifference under Vance.
We agree with TCAPS. Keegan and Kathryn offer no details on the nature of this
additional harassment, when it occurred, or how TCAPS responded. Because the deliberate-
indifference inquiry turns on the “nature of the harassment,” its length, and the school’s “overall
response,” Stiles, 819 F.3d at 850–51, these missing pieces doom his case. On this record, no
reasonable jury could find TCAPS’s (unknown) response to (unspecified) harassment “clearly
unreasonable.” Cf. id. at 843 n.5 (plaintiffs’ vague statements that he reported harassment could
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Case No. 16-1613, Gordon v. Traverse City Area Public Schools
not establish deliberate indifference because they “fail[ed] to establish that [plaintiff] reported
. . . to Defendants within a time frame that reasonably enabled Defendants to respond”).
IV.
For these reasons, we AFFIRM the district court’s judgment granting summary judgment
to TCAPS on Keegan’s Title IX and ELCRA claims.
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