HAWKER, et al. v. FROSCHAUER, et al.

Filing 67

Order on Summary Judgment Motion - Plaintiffs Sarah Johnson and Rebekah Johnson sue Defendants Northeast School Corporation and its North Central High School in Sullivan County, Indiana, alleging they subjected Plaintiffs to discrimination on the basis of sex in violation of Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681(a). While sexual harassment should not be tolerated in any environment and any sexual assault is to be condemned, NCHS is not a proper defendant in this action. Plaintiffs have come forward with insufficient evidence to hold the School Corporation liable under Title IX for any alleged sexual harassment of Sarah or Rebekah. Defendants' Motion for Summary Judgment (ECF No. 47 ) is granted. Final judgment will be entered separately. (See Order.) Signed by Judge James R. Sweeney II on 9/4/2019. (DMW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
SARAH JOHNSON, et al.
Plaintiffs,
v.
NORTHEAST SCHOOL CORPORATION,
et al.
Defendants.

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No. 2:18-cv-00068-JRS-MJD

Order on Summary Judgment Motion
Plaintiffs Sarah Johnson and Rebekah Johnson sue Defendants Northeast School
Corporation and its North Central High School in Sullivan County, Indiana, alleging
they subjected Plaintiffs to discrimination on the basis of sex in violation of Title IX
of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681(a). Plaintiffs
allege Defendants failed to respond appropriately when Sarah reported she had been
sexually assaulted by another student and then when Rebekah was subjected to harassment and bullying because she was Sarah’s sister. Plaintiffs also bring a statelaw claim alleging that Defendants failed to have an anti-bullying policy. Defendants
have moved for summary judgment on all claims.
While sexual harassment should not be tolerated in any environment and any
sexual assault is to be condemned, NCHS is not a proper defendant in this action.
Plaintiffs have come forward with insufficient evidence to hold the School

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Corporation liable under Title IX for any alleged sexual harassment of Sarah or Rebekah. Therefore, Defendants’ Motion for Summary Judgment will be granted.
I. Background
Sarah Johnson claims that while she was a student at North Central High School
(“NCHS”) in Sullivan County, Indiana, she was sexually assaulted off campus on December 17, 2014, by another student, Garrett Froshauer, and his friend, Romeo Risley. Sarah did not report the alleged sexual assault until November 5, 2015. She
alleges that Garrett bullied her in school and that she withdrew from NCHS because
of that bullying. Rebekah is Sarah’s younger sister and was also a student at NCHS.
Rebekah alleges that she too was bullied by Garrett and his friends.
Northeast School Corporation (the “School Corporation”) is an Indiana public
school corporation within the Southern District of Indiana. At all relevant times,
Monty Kirk was the high school principal. During the 2014-15 academic year, Sarah
was a high school sophomore. Garrett Froshauer was a sophomore that year too; he
and Sarah had three classes together. Ms. Hawker is Sarah’s and Rebekah’s grandmother.
The NCHS School-Family Handbook, which is provided to students each year, sets
forth a “Code of Conduct” and prohibits harassment and bullying by students. (ECF
No. 47-11, 37–38.) Harassment/bullying is defined to include “any speech or action
that creates a hostile, intimidating, or offensive learning environment.” (ECF No. 4711, 37.)

Students who believe they are victims of harassment or bullying are

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instructed to report the matter to school staff. (ECF No. 47-11, 38.) Students may
make such a report in writing, over the phone, or in person.
Sarah’s alleged sexual assault by Garrett was first reported to school authorities
on November 5, 2015, when her grandmother, Ms. Hawker, reported it to Principal
Kirk. Ms. Hawker advised Kirk that she and Sarah were going to report the incident
to the authorities. They reported the incident to the Sullivan County Sheriff’s Department and were told that Deputy Carl Melchert would be handling the case. Deputy Melchert and Child Protective Services went to Ms. Hawker’s house the next day,
and Ms. Hawker reported that Sarah had been raped by Garrett.
The next day, November 6, 2015, Principal Kirk confirmed with Ms. Hawker that
the authorities had been notified. (ECF No. 47-2 ¶ 29.) Ms. Hawker advised Kirk
that she wanted Garrett immediately removed from school. Principal Kirk explained
to her that there needed to be an investigation before a decision about potential disciplinary action could be made. (ECF No. 47-2 ¶ 30.) Ms. Hawker also advised Principal Kirk that Sarah was going to be interviewed by a trained child interviewer at
Susie’s Place and informed him that she did not want school officials to interview
Sarah. (ECF No. 47-2 ¶ 30.) The principal confirmed with Deputy Melchert that the
matter was being investigated and that Sarah was to be interviewed at Susie’s Place.
Also on November 6, Principal Kirk issued a No Contact Order between Sarah and
Garrett to remain in effect for the remainder of the school year. (ECF No. 47-2, ¶¶
26–28.) The No Contact Order was explained to both Garrett and Sarah (ECF No.
47-23, ¶¶ 2-3; ECF No. 47-3, 109) and the order was distributed to their teachers to

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make them aware of it and to have the teachers assist in enforcing it (ECF No. 47-2,
¶ 27). Although Sarah testified that she never saw the No Contact Order, she admitted she was informed of it and understood that Garrett was to have no contact with
her. (ECF No. 47-33, 91.) Principal Kirk discussed the No Contact Order with Ms.
Hawker and Garrett’s parents that day to make sure they knew that Sarah and Garrett were not to have contact with each other at school. (ECF No. 47-2, ¶ 28; 47-24,
33.) 1
During the month of November, Principal Kirk contacted Deputy Melchert on several occasions—“at least a dozen times”—requesting to be kept informed of the investigation into the allegations against Garrett. (ECF No. 47-24, 35.) The deputy did
not share the details of the investigation with Principal Kirk, other than to advise
that the complaining student was going to give a forensic interview. On November
24, 2015, Sarah was interviewed at Susie’s Place about the alleged rape. Deputy
Melchert observed the interview from another room. As a result of the investigation,
the interviewer, the Child Protective Services case worker assigned to the case, and
the deputy concluded that no criminal charges needed to be filed with the Prosecutor’s
Office. After the decision was made, Principal Kirk learned that no charges would be
filed against Garrett. (ECF No. 47-2, ¶ 68.)
In late January 2016, Principal Kirk sent a letter to Ms. Hawker to attempt to
give her the opportunity to allow the school to interview Sarah as part of its Title IX

Plaintiffs’ brief asserts that Ms. Hawker testified that she was unaware of a “no contact” order having been issued, but the cited deposition (Hawker Dep. 13) does not support that assertion. As a result, Plaintiffs have not raised a genuine issue of fact. Similarly, other factual assertions in Plaintiffs’ brief that are not actually supported by the cited evidence are likewise disregarded.

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investigation. (ECF No. 47-2, ¶ 69.) Ms. Hawker would not allow Sarah to be interviewed by school officials, however. (ECF No. 47-29, 87–89.)
After Sarah’s allegation against Garrett was reported on November 5, the first
harassment incident that Ms. Hawker brought to the school’s attention did not involve Garrett. (ECF No. 47-2, ¶¶ 46–47.) On January 8, 2016, she emailed Mr. Kirk
to advise that on January 6, Sarah had received a report from someone that a girl
(C.D.) had told “others” that she was going to “kick Sarah’s ass.” Principal Kirk ensured that Sarah could eat lunch in the office and otherwise sit in the office if she
wanted a break from class. He spoke with C.D., and even though C.D. denied making
the threat, he instructed her not to have any contact or communication with Sarah
that could be perceived as negative or hostile. (ECF No. 47-2, ¶ 47.)
On February 28, 2016, Ms. Hawker emailed Principal Kirk to advise that one of
Sarah’s fellow female cheerleaders (M.S.) sent an unkind tweet. (ECF No. 47-2 ¶ 75.)
The next day, Ms. Hawker and Sarah met with Mr. Kirk to discuss the matter. (ECF
No. 47-2 ¶ 75.) During their meeting, Principal Kirk asked Sarah and Ms. Hawker if
anyone was harassing her—whether in person or on social media. They responded
that nothing else had been happening at school. (ECF No. 47-2 ¶ 75.) Mr. Kirk reminded them that if something else happened, to report it immediately.
From November 6, 2015, through February 28, 2016, neither Sarah nor Ms.
Hawker made any complaint that Garrett was harassing Sarah at school or off campus. It was not until February 29, 2016, that Sarah and Ms. Hawker made a complaint about Garrett. (ECF 47-2, ¶¶ 46, 49.) Ms. Hawker called Principal Kirk that

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day to report that Sarah was upset because she had been confronted by auto shop
students and harassed by Garrett and another boy in the hallway. (ECF 47-2, ¶ 57.)
However, video of the incident shows that Garrett was not involved. (ECF 47-2, ¶¶
58-59, 63-64.) When a videotape of the alleged incident contradicts the plaintiff’s
version of the incident, the court may properly find that no reasonable trier of fact
could believe plaintiff’s version of the incident. See Scott v. Harris, 550 U.S. 372, 380–
81 (2007) (“When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary
judgment” and the court should have relied on the videotape). Sarah’s own testimony
is that Garrett was not involved. She testified that while returning from using the
restroom during choir class, she heard students knocking on an entry door close to
the choir room. (ECF 47-33, 67.) When Sarah opened the door, she did not see any
students she recognized and did not see Garrett among the students. (ECF 47-33,
72.) After opening the door, Sarah turned her back to the students and heard some
whispering and laughing. (ECF 47-33, 68.) She thought the students were laughing
at her simply “[b]ecause they were laughing.” (ECF 47-33, 73.) Sarah admits they
could have been laughing about anything and that she was not “chased,” but it “kind
of” felt that way because there were a lot of people around her. (ECF 47-33, 73, 76.)
This was one of the few incidents that Sarah characterized as harassment and bullying at school. (ECF 47-33, 78.)

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On March 15, 2016, Ms. Hawker and Sarah claimed that Garrett had violated the
protective order by glaring at her, getting “real close,” and brushing by her as he
passed her in the hallway near the principal’s office. (ECF 47-29, 47; ECF No. 47-33,
93, 98.) Deputy David Holmes responded to NCHS where he met with Ms. Hawker
and Mr. Kirk in the principal’s office. (ECF 47-19, ¶ 4.) The deputy found Mr. Kirk
cooperative and willing to provide information, including video footage from a hallway surveillance camera of the area where Sarah described that she encountered
Garrett. (ECF 47-19, ¶ 6.) Deputy Holmes reviewed the video and observed Sarah
walking down the middle of the hallway and observed a male in a gray sweatshirt
(identified as Garrett) walking in the opposite direction. (ECF 47-19, ¶ 7.) Garrett
was close to the wall and did not get closer to Sarah or appear to turn his head, look
in Sarah’s direction, or glare at her. (ECF 47-19, ¶ 7; ECF 47-2, ¶ 61.) Deputy Holmes
concluded that Garrett passed by Sarah in a manner that was more consistent with
him trying to avoid her than trying to be close to her or intimidate her. (ECF 47-19,
¶ 8.)
At her deposition, Sarah initially could not identify any other incidents in which
she thought a student bullied or harassed her at school. (ECF No. 47-33, 98–99.)
However, she later recalled that at a basketball game on an unknown date, Garrett
came and sat about two rows behind where she was sitting with her mother and
grandmother. (ECF No. 47-33, 115–118.) Sarah did not recall Garrett saying anything to her at the game. (ECF No. 47-33, 118.) Eventually, Sarah withdrew from
the school. (ECF No. 47-24 at 43.)

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II. Evidentiary Objections
Defendants have raised several objections to evidence on which Plaintiffs rely.
The objections to the declaration of Esther Warkov are well-taken: she was not timely
disclosed as an expert witness under Rule 26(a)(2) as required by the Case Management Plan. (See ECF No. 30, § III(F).) Nor was Warkov disclosed on Plaintiffs’ Final
Witness List. (ECF No. 46.) Further, her declaration would not assist the trier of fact
in deciding any fact at issue.
The objections to the Office of Civil Rights (“OCR”) report are also well-taken: the
report is not properly authenticated; and it is immaterial because the standards to
establish non-compliance with Department of Education regulations are different
than the standard for Title IX liability in a private right of action. Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274, 291–92 (1998) (the school’s “alleged failure to
comply with the [Department of Education] regulations, however, does not establish
the requisite actual notice and deliberate indifference. And in any event, the failure
to promulgate a grievance procedure does not itself constitute ‘discrimination’ under
Title IX.”). Whether the school followed its policies is also beside the point unless
there is also evidence that the mere noncompliance amounted to deliberate indifference to sexual harassment, and in this case there is no such evidence.
III.

Discussion

Plaintiffs allege sex discrimination because Garrett was allowed to remain in
school and take his regular classes, whereas Sarah allegedly was denied that educational opportunity. Plaintiffs assert that Garrett was a star football player, football

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is a very important activity for the School Corporation, and male students like Garrett, who were on the football team, received preferential treatment. In addition,
Plaintiffs allege that Garrett and other students harassed Sarah after she reported
the alleged sexual assault.
Defendants move for summary judgment on the grounds that: (1) North Central
High School is not a proper defendant; (2) Plaintiffs were not victims of harassment
based on their sex; (3) Plaintiffs did not suffer actionable harassment under Title IX;
(4) the School Corporation had no actual knowledge of various alleged acts of harassment; (5) the School Corporation was not deliberately indifferent to the alleged complaints of harassment and did not respond to the complaints in a clearly unreasonable
manner or subject Plaintiffs to harassment; and (6) Plaintiffs have not stated a claim
under Indiana law. Plaintiffs have not opposed the motion with respect to the statelaw bullying claim, and summary judgment will be granted on that claim without
further discussion.
A. Summary Judgment
“A district court properly grants summary judgment where there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a
matter of law.” Giles v. Godinez, 914 F.3d 1040, 1048 (7th Cir. 2019), petition for cert.
filed, (U.S. June 3, 2019) (No. 18-1504). A court must draw all reasonable inferences
in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The non-movant must “make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden

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of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the non-movant
fails to establish an essential element of his case, there is a complete failure of proof,
and the movant is entitled to judgment as a matter of law. Id. at 323. The nonmovant “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986); see also Giles, 914 F.3d at 1048 (stating that the non-movant must
“present specific facts establishing a material issue for trial, and any inferences must
rely on more than mere speculation or conjecture”). Where the “evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50 (citations omitted).
B. Whether NCHS is a Proper Defendant
Plaintiffs have failed to respond directly to Defendants’ argument that NCHS is
not a proper defendant; they merely argue that the school receives federal funds and
is therefore required to comply with Title IX. But, as Defendants assert, NCHS is
not a legal entity with the capacity to be sued. See, e.g., Turpin v. Good, 1:07-cv-1205LJM-JMS, 2008 WL 268817, at *1 (S.D. Ind. Jan. 25, 2008); Brownsburg Cmty. Sch.
Corp. v. Natuare, 824 N.E.2d 335 (Ind. 2005). NCHS is entitled to dismissal from
this action.
C. Title IX
Title IX provides that “no 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

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assistance.” 20 U.S.C. § 1681(a). Schools districts that receive federal funding may
be held liable for damages for student-on-student sexual harassment “only where
they are deliberately indifferent to sexual harassment, of which they have actual
knowledge, that is so severe, pervasive, and objectively offensive that it can be said
to deprive the victims of access to the educational opportunities or benefits provided
by the school.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629,
650 (1999); see also Doe v. Galster, 768 F.3d 611, 617 (7th Cir. 2014) (“A peer-harassment plaintiff must demonstrate that the harassment was discriminatory, the school
officials had ‘actual knowledge’” of the harassment, the harassment was ‘so severe,
pervasive, and objectively offensive that it. . . deprive[s] the victims of access to educational opportunities,’ and officials were ‘deliberately indifferent’ to the harassment.”). Title IX, as interpreted by the Supreme Court, “impose[s] a demanding
standard” for holding school districts liable for student-on-student harassment.
Galster, 768 F.3d at 613.
Plaintiffs argue that Garrett should have been expelled based on the September
2015 allegations of sexual assault by another high school student, Harley Gilliam,
against Garrett, and that his mere presence at school caused Plaintiffs to file this
action. Plaintiffs further argue that if Gilliam’s allegations did not justify expelling
Garrett, then after Sarah reported on November 5, 2015, her sexual assault the previous December, Garrett should have been suspended or expelled from school, or at
least removed from Sarah’s classes. This all amounts to Plaintiffs arguing for a particular remedy. But a Title IX plaintiff is not entitled to any particular remedy, see

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Davis, 526 U.S. at 648 (“Title IX imposes no . . . requirement[ ] to remedy peer harassment”); rather, she is only entitled to a response to “known peer harassment . . .
that is not clearly unreasonable.” Id. at 649.
Plaintiffs assert that Garrett was a star football player, football is a very important activity for the school, and male students like Garrett, who were on the football team, received preferential treatment. The evidence Plaintiffs cite in support of
this assertion, however, fails to substantiate their assertion. Plaintiffs’ belief that
football players are treated more favorably is based on mere speculation. And the
evidence of record establishes that the fact that Garrett was a football player had
nothing to do with the decision respecting whether disciplinary action should be
taken against him as a result of the Plaintiffs’ allegations against him. (ECF No. 4713 , ¶¶ 19-20.) This unsupported assertion therefore will be disregarded.
Plaintiffs allege sex discrimination because Garrett was allowed to remain in
school and take regular classes. But, as noted, Title IX “impose[s] a demanding standard” for holding school districts liable for peer harassment, Galster, 768 F.3d at 613,
and Plaintiff’s contention that the school should have suspended or expelled Garrett
immediately upon a report of sexual assault ignores the demanding standard of Title
IX. The evidence does not establish that before Sarah’s alleged off campus sexual
assault in December 2014, the School Corporation had any notice or opportunity to
prevent that assault. Other courts have concluded that “an occasional glimpse” of an
alleged perpetrator on school grounds and “knowledge of [his] presence” at school did
not amount to a Title IX violation. See, e.g., Yoona Ha v. Nw. Univ., No. 14 C 895,

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2014 WL 5893292, at *2 (N.D. Ill. Nov. 13, 2014). The Court finds that Garrett’s
presence at school is not enough to hold the School Corporation liable.
1.

Harassment Based on Sex

To prevail on a student-on-student harassment claim under Title IX, a plaintiff
must prove that she was subjected to discriminatory behavior, that is, harassment
based on her sex. Davis, 526 U.S. at 643 (noting funding recipients may be held liable
for the discriminatory acts of certain nonagents); Galster, 768 F.3d at 617 (Title IX
protects students from harassment only if the harassment is based on sex). Three
reports to the school about student harassment of Sarah had nothing to do with Sarah’s sex. One female student, C.D., had threatened to “kick Sarah’s ass.” (ECF 472, ¶ 47.) Another female student, M.S. authored an unkind tweet about Sarah that
mentioned a false accusation of rape. (ECF 47-2, ¶ 75.) In another alleged incidence
of harassment, unidentified auto shop students encountered Sarah in the hallway.
(ECF 47-33, 84:2-10.) No evidence suggests any of these incidents were based on
Sarah’s sex. In addition, the other two alleged incidents of harassment by Garrett—
his passing her in the hallway near the principal’s office and sitting a few rows behind
her at the basketball game—appear to have nothing to do with her sex either, much
less could they be construed to be harassment. Sarah’s Title IX claim fails to create
a genuine issue of material fact for trial as to this element. Therefore, Defendants
should be granted summary judgment on her claim for this reason alone.
2. Actual Knowledge
Yet, Sarah has also failed to prove the second element of her Title IX sexual harassment claim. The second element of a Title IX sexual harassment claim that a
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plaintiff must prove is that the school had actual knowledge of the alleged sexual
harassment. See Davis, 526 U.S. at 650. Constructive knowledge is insufficient. See
id. at 641–43 (district cannot be held liable for harassment of which it should have
known). “To have actual knowledge of an incident, school officials must have witnessed it or received a report of it.” Doe, 768 F.3d at 614.
The initial report of Sarah’s sexual assault was made to the school on November
5, 2015. That report came long after the assault. Yet, Plaintiffs attempt to hold the
school liable based on the allegation that another female student had been sexually
assaulted by Garrett. Even when the school was made aware of the alleged sexual
assault of that other student, and the evidence is that the school first became aware
of the sexual assault in September 2015 (Kirk Dep. 6, ECF No. 59-1 at 2), it is not
enough to serve as a basis for the school’s liability with respect to Sarah or Rebekah.
In effect, Plaintiffs attempt to hold the school liable because it should have known
that other female students were Garrett’s potential victims. That effort fails as a
matter of law. A school’s Title IX obligations only commence once an event is observed
by school officials or an event is reported to the school. See Gabrielle M. v. Park ForestChi. Heights, IL. Sch. Dist. 163, 315 F.3d 817, 824 (7th Cir. 2003) (school’s obligations
begin when they observe harassment or harassment is reported to school). The School
Corporation cannot be held liable to Sarah or Rebekah for any incidents that occurred
before the November 5, 2015 initial report of the alleged sexual assault. And there’s
another problem with Plaintiffs’ position: the evidence does not raise a reasonable
inference that Sarah was subject to any harassment before November 5, 2015.

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The School Corporation can only be held liable for alleged acts of harassment of
which it had actual knowledge. Plaintiffs’ brief recounts a few situations that made
Sarah uncomfortable. They assert that after Garrett told everyone about their encounter, her classmates started “reacting differently to her.” (ECF No. 58 at 7–8.)
They note that Sarah had to “deal with” M.S. who was close to Garrett, a cheerleader
like Sarah, and who never liked Sarah in any event. (Id. at 8.) Specifically, they
assert that M.S. was “disrespectful to” and “whispered about” Sarah. (Id.) Then,
Plaintiffs argue that “quieted down for a while,” but after the assault was reported to
Mr. Kirk, “all the gossip, rumors, and talk started again.” (Id.) To the extent that
Plaintiffs allege that these incidents amount to sexual harassment, the record lacks
any evidence to raise a reasonable inference that the school had actual knowledge of
them. Therefore, the school should also be granted summary judgment based on the
lack of any evidence to raise a genuine issue of fact on this element of Sarah’s Title
IX claim.
3. Severe, Pervasive and Objectively Offensive
But Sarah’s claim under Title IX is further flawed. To prevail on a student-onstudent harassment claim under Title IX, a plaintiff must also prove that she was
subjected to behavior “that is so severe, pervasive and objectively offensive that it
denies its victims the equal access to education that Title IX is designed to protect.”
Davis, 526 U.S. at 652; Galster, 768 F.3d at 617 (Title IX protects students from harassment only if it is based on sex). Simple teasing and name-calling, even when the
comments target gender differences, are not enough. Davis, 526 U.S. at 652. That

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the plaintiff and/or her guardian “was unhappy with the school’s treatment of [the
plaintiff] (and unrelated bullying) and chose to withdraw [her] as a result does not
establish that [the plaintiff] was deprived of access to [her] education because of the
alleged sexual harassment.” Doe by Doe v. Chi. Bd. of Educ., No. 15 CV 5018, 2019
WL 3554207, at *4 (N.D. Ill. Aug. 2, 2019).
Even when the evidence is viewed in the light most favorable to Plaintiffs, no reasonable jury could find that either of them was subjected to actionable sexual harassment. As noted, after November 5, 2015, Sarah and Ms. Hawker complained of only
two incidents involving Garrett: he allegedly glared at her while passing her in the
hallway and he sat behind her at a basketball game. (ECF No. 47-33, 111, 137.)
Three other complaints were made to the school—that C.D. threatened to “kick Sarah’s ass,” M.S. wrote an unkind tweet, and Sarah encountered unidentified auto
shop students laughing and whispering behind Sarah in the hallway. 2 None of these
incidents, whether considered alone or together, is sufficiently severe, pervasive, or
objectively offensive as to deny Sarah the equal access to education that Title IX is
designed to protect. Three of the incidents involved students other than Garrett.
That Sarah and Ms. Hawker perceived the incidents as harassment is not determinative; the alleged harassment must be objectively unreasonable. See Davis, 526 U.S.
at 650; Doe v. Galster, 768 F.3d at 617; see also Sanches v. Carrollton-Farmers Branch

Furthermore, Sarah merely speculates that the students were laughing and whispering
about her. She testified she did not know what they were laughing and whispering about.
(ECF No. 47-33, 90.) Sheer speculation is insufficient to raise a genuine issue of fact for
purposes of summary judgment. Consolino, 872 F.3d at 830.
2

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Indep. Sch. Dist., 647 F.3d 156, 167 (5th Cir. 2011) (“It makes no difference to our
analysis that [plaintiff] was sincerely upset, and we assume that she was. The standard is not subjective; instead it is whether the harassment was severe, pervasive,
and objectively unreasonable”).
None of the alleged incidents of sexual harassment, even when considered together, was sufficiently severe, pervasive or objectively offensive so as to deny Sarah
equal access to education. This is yet another reason the School Corporation should
be granted summary judgment on Sarah’s Title IX claim.
4. Deliberate Indifference
The final element that a plaintiff must prove to succeed on a student-on-student
harassment claim under Title IX is that the school district was “deliberately indifferent to” the alleged acts of harassment. See Davis, 526 U.S. at 643. “[A]s long as the
school’s response is not ‘clearly unreasonable,’ it cannot have acted with the requisite
deliberate indifference to incur Title IX liability.” Gabrielle M., 315 F.3d at 824 (quoting Davis, 526 U.S. at 648–49). The school district’s response “must, at a minimum,
cause students to undergo harassment or make them liable to or vulnerable to it.”
Davis, 526 U.S. at 645 (internal quotation and alteration omitted). Courts should
afford “sufficient deference to the decisions of school disciplinarians.” Zeno v. Pine
Plains Cent. Sch. Dist., 792 F.3d 655, 666 (2d Cir. 2012) (citing Davis, 526 U.S. at
648)). “[V]ictims do not have a right to specific remedial measures.” Id. (citing Davis,
526 U.S. at 648)).

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Here, the evidence is that within a day of the report of sexual assault by Garrett,
the school entered a no-contact order, consulted with law enforcement and legal counsel, and attempted to investigate the allegation. The school did not act unreasonably
by attempting to interview Sarah and Garrett or by deferring to law enforcement’s
own investigation. See Rost ex rel K.C. v. Steamboat Springs RE-2 Sch. Dist., 511
F.3d 1114, 1121 (10th Cir. 2008) (holding school was not deliberately indifferent to
report of off-campus sexual assaults where school immediately contacted law enforcement officials, allowed law enforcement to investigate, and cooperated fully in and
kept informed of the investigation). The involvement of the school with parents or
guardians has also been viewed as evidence that a school district is reasonably responding to harassment. See Galster, 768 F.3d at 620; Estate of Lance v. Louisville
Indep. Sch. Dist., 743 F.3d 982, 1000–01 (5th Cir. 2014) (finding no deliberate indifference where district engaged in a “pattern of active responses” that included communicating with parents). During the relevant period, the school continually responded to Sarah’s and Ms. Hawker’s complaints.
The record evidence does not raise a reasonable inference, and in fact contradicts
the assertion, that the School Corporation was deliberately indifferent to the alleged
acts of harassment against Sarah. For this reason, too, the school should be granted
summary judgment on Sarah’s Title IX claim.
D. Rebekah’s Title IX Claim
The Amended Complaint alleges that Rebekah, Sarah’s younger sister, was bullied by Garrett and his friends. However, the record contains no evidence that would

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even begin to approach a reasonable basis to infer that Rebekah was subjected to any
harassment, and there is no evidence that any complaint of harassment of Rebekah
or concern about bullying of her was ever made to the school. Ms. Hawker’s “fear of
reprisal” against Rebekah and fear that Rebekah was vulnerable to discrimination
because of “the past history of Garrett still attending the school” is based on sheer
speculation, which is insufficient to raise a genuine issue of fact for purposes of summary judgment. Consolino v. Towne, 872 F.3d 825, 830 (7th Cir. 2017). In fact, Rebekah testified that she never felt like she was being bullied at the school, she never
experienced a situation where she felt like someone was trying to threaten or intimidate her, and she agreed that she was never harassed or bullied by anyone at the
school, including Garrett. (Dep. 48–49 and 51, ECF No. 47-34.) On this record, the
School Corporation cannot be held liable on Rebekah’s Title IX claim; the School Corporation is entitled to summary judgment on her claim as well.
Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment (ECF No.
47) is granted. Final judgment will be entered separately.
SO ORDERED.

Date: 9/4/2019

Distribution by CM/ECF to all registered counsel of record

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