Doe v. Bd. of Edu. Prince George Cty.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:11-cv-03229-AW Copies to all parties and the district court/agency. [999560300]. Mailed to: Selene Almazan-Altobelli. [13-2537]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.

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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Unpublished opinions are not binding precedent in this circuit.

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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

Kathleen Schwab.
that

the

County

and

J.D.’s

former

school

principal,

The three-count complaint alleged, inter alia,

defendants

had

failed

to

protect

harassment by M.O., one of J.D.’s classmates. 1

J.D.

from

sexual

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

negligence and gross negligence.

on

state

law

claims

of

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

1

George’s

County

(the

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.

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“school”). 2

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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.

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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.

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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

“accosted” him in the hallway.

to

Schwab

See J.A. 371.

that

M.O.

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.

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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.”
338.

See J.A.

According to J.D., he would tell Schwab he “was having a

good day” even if it was untrue.
In

April

2009,

Johnson

Id.
took

leave

from

position at the school and soon passed away.

her

principal

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.
a

First, in November 2009, J.D. reported that M.O. “had made

harassing

remark

to

[him]

at

dismissal the previous afternoon.”

the

water

fountain

Id. at 324.

during

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.”

7

Id.

Nonetheless,

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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

would

J.D.

avoid

M.O.

in

8

the

bathroom.

One

of

those

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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

horrible jokes” about his use of the escort.
Thereafter,
attention
pains.

J.D.

from

avoided

the

the

school’s

school

nurse

for

students

“made

See J.A. 550.

bathroom

sought

resultant

his

and

stomach

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

involving

J.D.

and

were
M.O.

not
In

notified
the

spring

of
of

other
2009,

incidents
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.
ok[?]”

Another text from J.D. to M.O. read, “Keep dis a secrt
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.

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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

events.

between

his

and

M.O.’s

versions

of

the

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.

August 2010, the Does withdrew J.D. from the school.

332.

In

J.D. now

maintains that he altered his story to the police because he was

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“nervous” and thought the detective would believe M.O.’s story
over

his

own.

See

id.

at

535.

J.D.

also

“thought

[changing my story] would just be the end of it.”

that

Id. at 535-

36. 6
C.
In 2000, several years prior to the foregoing events, the
Board

promulgated

4170”),

which

its

Administrative

created

“grievance

Procedure

procedures

No.

for

4170

(“AP

student

and

employee complaints of all forms of discrimination, harassment,
bias,

or

extremism.”

students are

encouraged

sexual harassment.

See
to

J.A.

112.

promptly

Pursuant

report

to

AP

4170,

student-on-student

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; posttraumatic 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.

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persons

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reporting

a

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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.
the

Board

only,

alleging

under

Title

IX

Count Three named
that

the

discriminated against J.D. on the basis of sex.

Board

had

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.
of

four

The court observed that a Title IX claim requires proof
elements:

educational

(1) that

institution

a

receiving

student
federal

was

enrolled

funds;

at

(2) that

an
the

student was subjected to harassment based on sex; (3) that the
harassment

was

sufficiently

severe

12

or

pervasive

to

create

a

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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

desire,”

infer

that

satisfying

the

the

harassment

second

prong.

stemmed
Id.

from

sexual

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
school.

had

compelled

the

Does

to

withdraw

J.D.

from

the

Title

the

Id. at 653.

According

to

the

district

court,

however,

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.
Supp. 2d at 653.

See Doe, 982 F.

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.

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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

See Doe, 982 F. Supp. 2d at 654-56.8

deliberately indifferent.

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

better visibility of both students.

possible

and

Id. at 654.

Jellison

had

Thereafter, as

a result of the classroom incident, M.O. served a five-day inschool
thorough

suspension.
investigation

Id.

Finally,

failed

to

notwithstanding

corroborate

the

that

a

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

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escort.
if

the

Filed: 04/07/2015

Id. at 654-55.
defendants’

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The court observed, for example, that

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.’”
(quoting Davis, 526 U.S. at 648).
such

an

“outcome

would

deprive

Id. at 654

As the court then explained,
school

administrators

of

the

flexibility to employ tailored responses to sexual harassment
and

run

counter

to

educating children.”

the

strong

national

policy

in

favor

of

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.”

9

Doe, 982 F.

In 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.

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Supp. 2d at 655.

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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:
to

the

plaintiff;

(2) a

breach

16

of

that

duty;

(1) a duty owed
(3) a

legally

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cognizable causal relationship between the breach of duty and
the harm suffered; and (4) damages.
659.
to

See Doe, 982 F. Supp. 2d at

The court concluded that the defendants owed J.D. “a duty

exercise

student

reasonable

sexual

care

to

harassment.”

protect

Id.

him

(citing

from

Lunsford

student-onv.

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

defendants

took

“significant

incident.

See id. at 659.

and

steps”

substantial,”

to

address

and

the

the

bathroom

According to the court, “it is

unclear what else . . . could have [been] done, or that any more
measures

would

Although

it

not

have

proved

acknowledged

that

overly
a

burdensome.”

failure

to

adhere

Id.
to

administrative procedures might be probative of negligence, the
court

determined

weighed

heavily

that

the

against

other

the

breached the duty owed J.D.
Am.,

Inc.

v.

Young,

321

circumstances

conclusion

that

of
the

this

case

defendants

Id. at 660 (citing Volkswagen of

A.2d

737,

17

746

(Md.

1974),

for

the

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proposition

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that

“statutory

or

Pg: 18 of 27

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

judgment.

de

novo

a

district

court’s

award

of

summary

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.

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2006) (en banc).

Pg: 19 of 27

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

imputed to the Board.

sexual

harassment

of

J.D.

cannot

be

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

educational institution has two pertinent aspects:

to

an

(1) whether

the institution had actual knowledge of the student-on-student
sexual

harassment;

and

(2) whether

the

deliberately indifferent to that harassment.
11

institution

was

See Davis ex rel.

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.

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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.”
liability,

the

institution

is

not

Id. at 648.

required

“to

To avoid

remedy

peer

harassment” or “to ensure that students conform their conduct to
certain

rules.”

quotation

marks

Id.

at

648-49

omitted).

On

(alteration

summary

and

judgment,

a

internal
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

‘clearly

Rights

for

unreasonable’

the
when

proposition
it

20

is

“that

not

a

response

calculated

to

is
be

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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.”
accept

the

Does’

See Br. of Appellants 49.

theory,

however,

because

we

We cannot

would

have

to

substitute a negligence standard for the deliberate indifference
standard.
2014)

See Doe v. Galster, 768 F.3d 611, 619-20 (7th Cir.

(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

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been created, and prevent harassment from occurring again.”
OCR Guidelines, 62 Fed. Reg. at 12042.

See

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.”
231 F.3d at 261.

See

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.

failure

to

2011)

(explaining

contact

school

that,

under

district’s

22

Gebser,

Title

IX

principal’s
coordinator

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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.
fully

See Doe, 982 F. Supp. 2d at 657.

explained

by

clearly unreasonable.

the

district

court’s

See id. at 654-58.

Those steps, as

decision,

were

not

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),
harm.”

“to

exercise

reasonable

care

to

protect

a

pupil

from

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

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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.

2008)

v.

Phelan,

526

F.3d

135,

140

(4th

Cir.

(“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

summary

judgment

defendants’
otherwise

policies,
record

responses
constituted

allegations.

including

demonstrates

tracked
a

AP

AP

reasonable

4170’s

4170.
that

Indeed,
many

of

recommendations

investigation

of

the
the
or

J.D.’s

For example, following the bathroom incident, the

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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

potential

witnesses

in

Jellison

interviewed

classroom

incident.

students,

Jellison

entrance,

compliance

three
In

with

students
procuring

discovered

that

inappropriate behavior toward them.
4170,

Jellison

uncovered

located

previous

witnesses

incidents

and

Schwab
4170.

AP

who

interviewed
Similarly,

had

witnessed

statements
M.O.

had

from

also

the
those

displayed

Thus, in compliance with AP
to

of

the

classroom

M.O.’s

incident,

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)
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Finally, there can be no genuine dispute that, each time
J.D.

made

reasonable
following

a

complaint

care
the

to

about

protect

library

M.O.,
J.D.

incident,

the

from

which

defendants
harm.

exercised

For

occurred

in

example,
Jellison’s

classroom, Schwab instructed Jellison to rearrange her classroom
so that J.D. and M.O. sat as far apart as possible.
the

classroom

classroom

for

incident,
five

days

M.O.
to

Principal Johnson’s office.

was

serve

removed

an

Next, after

from

in-school

Jellison’s

suspension

in

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,”

Supp. 2d at 659.

and

“significant.”

See

Doe,

982

F.

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.

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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