Petition for Writ of Certiorari — Hudson Area Area Schools Schools v. Patterson (No. 09-143)

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Supreme Court, U

9 (\) FILED

| 09-143 JUL 30 2009

No. _ OFFICE OF CLERK

In The

HUDSON AREA SCHOOLS,

Petitioner,

DAVID PATTERSON anp DENA PATTERSON,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

TIMOTHY J. MULLINS

Counsel of Recurd

KENNETH B. CHAPIE

GIARMARCO, MuLLINS & Horton, P.C.

101 W. Bic BEAVER Roap

10™ FLOOR

Troy, MI 48084-5280

(248) 457-7000

Counsel for Petitioner

July 30, 2009

Becker Gallagher + Crncinnau, OH + Washington, D.C. - 800.890.5001

QUESTION PRESENTED

Whether a schoo! district is deliberately indifferent

to peer on peer sexual harassment under Davis v

Monroe County Pd of Educ, 526 U.S. 629 (1999), where

the schoo! effectively responds to individual complaints

of harassment to the extent that when a report of

harassment is made, the perpetrator is disciplined and

counseled, and the perpetrator no longer harasses the

complaining student; the school provides. the

complaining student with individual counseling to help

cope with peer issues; the school enacts policies

prohibiting harassment; and the school institutes

programs teaching students the dangers of

harassment; but new students commit subsequent acts

of sexual harassment against the complaining student.

TABLE OF CONTENTS

QUESTION PRESENTED .................... i

TABLE OF CORR meee ek aes ass, il

TABLE OF AUTUstpeeeeeee 6 sees ss....... iV

OPINIONS Bipaee ee gw... 1

JURISDICTION 5 eee. ee ess. 1

STATUTORY PROVISION INVOLVED ........ 1

STATEMENT! «coe eee. sess. l

A. Facts . ...c ea ewe 4

3, Complaints and Responses ........... 4

2. Petitioner’s Programs and Policies .... 13

3. Procedural fame Goss +s.s--...... 18

REASONS FOR GRANTING WRIT ........... 21

ARGUMENT ......5 ees... 22

A. The Majority Opinion Below Is In Conflict

With Davis v. Monroe County Board Of

Education And Its Progeny ............ y

B. The Majority Opinion Below Is In Conflict

With The Third Circuit When Confronted

With the Same Fact Pattern ........... 29

111

C. The Mayjority’s Opinion Is_ Impractical

Considering The Unique Nature Of Schools,

And Could Ultimately Have A Detrimental

TTC CI TCGTD gk bs oon cee 31

D. The Appropriate Standard for Deliberate

NUR ok. kk Sse po ee oe 34

CIE PERPEIETIEE k kc oe 8S oy wee eee 35

APPENDIX

Appendix A: Sixth Circuit Opinion, January 6,

Pere ear are erm rer errs iy thy bs la

Appendix B: District Court Opinion and Order,

November 28, 2007 ..........ccnceaseus 50a

Appendix C: Sixth Circuit Order denying

rOrnOating, NERY 1; Be 6s ces ck ce wees 78a

Appendix D: Excerpts of Respondent’s

Interrogatory Response, number 17 ....... 80a

Appendix E: Respondent’s IEP = (fold-out

CURIE) Ske ian eek beware ee 8la

TABLE OF AUTHORITIES

CASES

Bd. of County Comm’rs of Bryan County, Okla. v.

Brown, 620 U.S. 397 (TBST)... ce ee 1, 26

Bd. of Education v. Rowley,

Po Be Se yo . : carae 8

Davis v. Monroe County Bd. of Educ..,

oe Qi + fg ra passim

Doe ex rel Doe v. Dallas Indep. Sch. Dist.,

220 F3d 380 (5th Cir. 2000), cert. denied, 531

US. RPO EED oe ce base ke ea teenies 23, 26

Doe v. Bellefonte Area School Dist., No. 4:CV-02-1463

2003 U.S. Dist. LEXIS 25841, 2003 WL

23718302 (M.D. Pa. Sept. 29, 2003), affd 106

Fed. Appx. 798 (3d Cir. Aug. 4, 2004) . 27, 29, 30

Edelman v. Jordan,

SEG Ui ee CUTE) sg kw cee eceeeceevctawes 33

Employees v. Department of Public Health and

Wwerrere, GEi Uae. BTM UAOTO? 6 cc cee eases 33

Farmer v. Brennan,

ae See OE ED gk ee heen cee en eweses 23

Fitzgerald v. Barnstable Sch. Comm..,

504 F.3d 165 (ist Cir. 2007) ..........-65. 26

Gebser v. Lago Vista Indep. School Dist.,

524 U.S. 274, 1188S. Ct. 1989, 141 L. Ed. 2d 277

SU es Cae ee cee kee ee 23

Guardians Ass'n. v. Civil Service Comm’n of NLY.,

Me Re CRD ik ce ce ei vee aes 33

Harris v. McRae,

RR |) a a ror BO Ar 33

Johnson v. Independent School Dist.,

194 F. Supp. 2d 939 (Dist. Minn. 2002) ..... 26

New Jersey v. T. L. O.,

Gl aes 6 oe ceed e ane pee 24

Pennhurst State Sch. & Hosp. v. Halderman,

ee ae ee eS a ks a ee eee een 33

Rost v. Steamboat Springs RE-2 Sch. Dist.,

§11 F.3d 1114 (10th Cir. 2008) ............ 25

Steward Machine Co. v. Davis,

See Rs SP LUE? 8 oc bea Oe ts eee es 33

Vance v. Spencer County Pub. School Dist.,

231 F.3d 253 (6th Cir. 2000) ........... passim

Wilson v. Beaumont Indep. School Dist.,

144 F. Supp. 2d 690 (E.D. Tex. 2001) ....... 26

STATUTES

ee fo nN 0 ee eee a eee eee 1

a Eo oh on eh ca oe ee ee 8

28 U.S.C. 1254(1)

tS ROR ee ee ee ae

Mandatory Special Education Act MCL 380.1701. 8

OTHER

http://www.hudson.k12.mi.us/board/budget.htm] . 34

]

OPINIONS BELOW

The decision of the court of appeals is reported at

551 F.3d 438 and is reproduced in the Appendix herein

at la. The decision of the U.S. District for the Eastern

District of Michigan is not officially reported but is

available at 2007 U.S. Dist. LEXIS 87309 and is

reproduced in the Appendix at 50a.

JURISDICTION

The judgment of the court of appeals was issued on

January 6, 2009. Petitioner’s timely petition for

rehearing and rehearing en banc was denied on May 1,

2009. Pet. App. 78a. This Court’s jurisdiction is

invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Title [X of the Education Amendments of 1972, as

amended, 20 U.S.C. 1681, provides:

(a) Prohibition against discrimination;

exceptions. 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 assistance.

STATEMENT

This case concerns the continuing viability of the

deliberate indifference standard set forth in Davis v.

Monroe County Bd. of Educ., 526 U.S. 629, 651, 654

119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999). In Davis,

this Court stated that a school district may only be

liable for student-on-student sexual harassment under

Title [IX when it is “deliberately indifferent” to acts of

harassment of which the school is “actually” aware.

Under Davis, the deliberate indifference standard only

required a school to “merely” respond to complaints in

a manner that is not “clearly unreasonable.” Davis

unequivocally stated that when responding to

complaints of peer sexual harassment under this

standard, school districts are not required to “remedy”

or “purge” themselves of the harassment in order to

avoid liability at the summary judgment level. See

Davis, supra, 526 U.S. at 648. Davis found that to

require such a high standard would be unreasonable,

and given the unique environment of schools, it would

also be impossible.

Despite the finding of Davis, the majority opinion

below found that effective responses to complaints of

harassment, policies prohibiting harassment, and

instituting programs teaching students the dangers of

harassment are insufficient under Davis to avoid a

finding of deliberate indifference. Rather, the majority

opinion below required the school under the deliberate

indifference standard to prevent future acts of sexual

harassment by unidentified students. In essence, the

Majority Opinion requires schools to “remedy” all

offensive behavior and be completely harassment-free,

which the Supreme Court has unequivocally held is

not required -- or even possible. See Vance v. Spencer

County Pub. School Dist., 231 F.3d 253, 260-61 (6th

ur. 2000) (citing and quoting Davis).

In the present case, Respondent Student Dane

Patterson (“Respondent”) was a high schoo} student in

Hudson Area Schools. Respondent’s parents Dena and

David Patterson filed suit on behalf of their son

alleging that during part of middle school and ninth

grade, Respondent was subjected to student-on-

student harassment which had denied him access to a

public education. The complaints of harassment almost

exclusively consisted of name-calling, most of which

was non-sexual. Petitioner Hudson Area Schools

responded to Plaintiffs complaints in three ways:

First, in each situation where Respondent made a

complaint, Petitioner’s administrators took action by

investigating the incident and, if the perpetrator was

identifiable, reprimanding the perpetrator and

imposing the punishment. In some _ instances,

punishment meant a verbal reprimand and/or

extracting an apology from the perpetrator(s). In some

instances, punishment meant a suspension. Finally, in

one case it meant expulsion. Significantly, no

identified perpetrator ever harassed or caused

problems for Respondent after being disciplined by the

school. There were no repeat offenders, so the only

reasonable conclusion from the undisputed facts in the

record is that the school’s actions, with respect to those

offenders, were 100% effective.

Second, it is undisputed that Petitioner also

provided Respondent with individual counseling to

cope with peer related issues. Petitioner provided

Respondent with a resource room for individual

assistance with school work, individual counseling

sessions with School Social Worker Tammy Cates,

seating preferences to avoid students with whom

Respondent had a problem, and group and individual

sessions with School Counselor Susie Mansfield.

Although Respondent admitted that the assistance the

School provided cured his problems before entering the

ninth grade, Petitioner offered to continue to provide

these services. However, Respondent’s refused most of

Petitioner’s assistance. In addition, Petitioner made

arrangements for Respondent to meet with middle

school resource room teacher Ted Adams, whose

counsel provided Respondent a great benefit, each

week.

Third, Petitioner had effective policies in place

regarding student discipline and conduct. Testimony

and evidence established that Petitioner’s staff and

students were well trained as to those policies.

Further, the school established more than a dozen

programs which addressed problem behavior such as

sexual harassment and bullying, as well as teaching

general acceptable student conduct, during

Respendent’s time as a student on campus.

A. Facts

Respondent Dane Patterson (“Respondent”) is a

former student at Hudson Area Schools (“Petitioner”),

who began attending Petitioner’s schools in the sixth

grade, which was the 2001-2002 school year.

Respondent sued Petitioner because he claims he was

sexually harassed by other students during parts of

middle school and ninth grade.

1. Complaints and Responses

In the second semester of his sixth grade year, and

continuing through his seventh grade year,

Respondent alleges that he began experiencing

problems with other students while at Petitioner's

School. Respondent does not recall specific instances,

but claims he was called names and pushed while

walking down the hallway. This would occur during

the bref interval between classes when all of the

students were in the hallways changing classes. A 646.

Respondent clarified that he was never beat-up,

involved in any fist fights, injured or fonaled; only that

he was allegedly called names and nudged or tripped.

A 652-656.

Although Respondent admits that teachers

regularly monitored the hallways between classes and

were available for him to make a complaint, A 617,

Respondent did not report these alleged instances to

school officials when they occurred. Respondent

conceded he only made “a couple” of reports total while

in sixth grade, one to teacher Gwen Marry and one to

middle school Principal Rozeveld. A 648. Respondent

also testified that, with the exception of a couple of

reports made early in the school year while in seventh

grade, he did not report these incidents to school

officials either. A 655. Respondent does not recall the

substance of these reports and does not recall whether

he identified any particular students with whom he

had a problem. A 650. Respondent does not dispute

that the situations were addressed by the School when

reported. A 649.

Respondent's parents claim they were in repeated

contact with Respondent’s teachers regarding his

general problems, but admit they did not identify

students with whom Respondent had problems. A 818.

They also did not identify specific incidents which

Petitioner could address. /d. School counselor Susan

Mansfield had _ several conversations with

Respondent’s mother regarding Respondent. A 463. In

most of these conversations, Respondent’s mother

expressed her concern over family health problems and

how they affected Respondent’, but she never

identified any specific instances of harassment Dane

experienced at the hands of other students. Jd at 45-

47, A 463-465.

Although Respondent was performing well tn school

and did not appear to experience the purported

problems with others, Defendant School still

vigorously responded to Respondent’s concerns.

In response to the concerns, during his seventh

grade year, Respondent’s teachers and other staff

agreed to keep a watch out for him. A 813; A 761. One

teacher offered ideas to help Respondent better cope

with his peer problems, which Respondent did not

accept. A 525; A 817. Middle school Principal Rozeveld

also offered to meet with Respondent after school each

day to provide assistance. Respondent, however,

stopped mecting with him after a few weeks because

he was afraid other students would perceive the

meetings to mean he was a troublemaker. A 821.

Petitioner offered Respondent additional assistance

that he refused. Schoo] counselor Susan Mansfield

established small group and individualized counseling

sessions for students experiencing problems with peer

relations. A 470-472. Mansfield went from class to

class promoting her services while Respondent was in

middle school. A 470. Respondent, however, never

reported any problems to Mansfield, or attended any

‘Dane’s younger brother Jarrett suffered from a life-threatening

condition. Also, Dane’s father suffered a stroke during Dane's

seventh grade year.

sessions. Id. Respondent also refused services from the

one

school social worker, Tammy Cates. A 373.

Respondent and his parents refused outside

assistance as well. Respondent refused to attend

sessions with his psychologist. Moreover, though

Respondent complained that he struggled

academically, Respondent and his parents refused to

allow Dane’solder brother, Andy, to tutor him. A 822.’

School records confirm that Respondent’sgrades

and schoo] attendance were largely unaffected by the

purported problems. A 23-29. During this time,

Respondent was also involved in_- several

extracurricular activities. Respondent ran _ cross

country, played on the basketball team, joined the

wrestling squad, participated in Science Olympiads

and was involved in a Japanese exchange program

Although Respondent had displayed emotional

outbursts at home since at least fifth grade’,

Respondent's parents refused to submit a referral for

special education services. Petitioner’s school counselor

Mansfield and school social worker Cates ultimately

Andy was in college at the time and living at home with the

Patterson family. He was extremely bright, as he was the

valedictorian of his high school class

One year pnor to attending Petitioner's School, Respondent was

sent to see a psychologist due to frequent emotional outbursts

directed at his family (which would continue for the next few

years) and increasing physical aggression towards his younger

brother. Id; A 812. During his interview with the psychologist

Dane compiained that his family seriously mistreated him. A 12

submitted an application for special education services

on Respondent's behalf at the end of his seventh grade

year, in May 2003. A 30.

Upon receipt of the referral, Petitioner sent school

social worker Cates and psychologist Brian Moeckel to

Plaintiffs’ home for an evaluation during their summer

vacations. A 570; A 374. The timing of the visit was

unusual because, since the referral was made at the

end of the school year, the interviews did not have to

occur until the following school year. Id.

Based on his meetings with Cates and Moeckel, and

prior to entering the eighth gradc, Respondent was

determined to be emotionally impaired. A. 30-38.

Because Respondent was recognized as having a

qualifying disability, Respondent was provided with

special education services through an Individualized

Education Program (“TEP”).‘

“Under Michigan and Federal law public schools are required to

provide special education services and accommodations through

an IEP to ail students with a qualifying disability. See generally

the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et

seq; Mandatory Special Education Act MCL 380.1701 et seq. Once

a year the parents and education professionals, known as the

multidisciplinary evaluation team, convene as the “JEP Team” to

determine the student’s individual needs. I*rom those findings the

[hk P Team develops an educational program for the student that

is in the best interest of the student. This program dictates what

services the school must provide the student. School employees

cannot unilaterally modify the terms of the IEP, and decide to

impose different accommodations or restrictions than those

contained therein. See generally, Bd. of Education v. Rowley, 458

U.S. 176 (1982). The parent present for the meeting must also

approve the IEP. If the parent disagrees with the IEP, the parent

must appeal the services provided under the IEP using the

Through his IEP, Petitioner placed Respondent in

a resource room, and referred him to meet with social

worker Cates for counseling. A 42. Respondent was

also given extra time to take exams and seating

preferences to avoid students with whom he had a

problem. /d.

Respondent admits that the resources Petitioner

provided worked well as he showed improvement and

his problems with other students all but ceased. A 621-

623. Respondent particularly liked working with

Petitioner’s resource room teacher, Ted Adams.

According to Respondent’s mother, “Mr. Adams is a

remarkable man” who took a special interest in

Respondent. A 825-827. During this time, however,

Respondent still refused any counseling assistance

from school counselor Mansfield and he refused to

attend his meetings with Cates. A 6438; A 380-381.

Following his eighth grade year, an IEP was

developed for Respondent which once again provided

him with personal assistance to cope with his

emotional impairment while in ninth grade. As with

his eighth grade IEP, Respondent’s ninth grade IEP

provided Respondent with a resource room, daily as

needed, and individual counseling sessions with social

worker Cates. Respondent also had access to school

counselor Mansfield’s peer groups and individual

counseling sessions. See Kespondent’s Interrogetory

Response which is reproduced in the Appendix at &0a.

administrative process set forth in R 340.1722a, 340.1724,

340.1851-1854

But as in eighth grade, throughout ninth grade,

Respondent would not meet with social worker Cates,

and he refused to attend student group sessions led by

school counselor Mansfield. In addition, despite the

apparent progress Respondent made while utilizing

the resource room in eighth grade, Respondent’s

parents refused to allow him to meet with the High

School resource room teacher. In answers to

interrogatories, Respondent’s parents reasoned: “Due

to Mr. Adams being a middle school resource room

teacher, Dane would not have Mr. Adams for ninth

grade. Therefore, we decided not to place Dane with

another resource room teacher.” See Respondent’s IEP,

which is reproduced in Appendix at 8la. To encourage

Plaintiffs to use the resource room, the school made

Mr. Adams, who was strictly a middle school resource

room teacher, available to assist Dane while in high

school. A 762-763; A 339-340; A 625.

After he refused the Petitioner’s assistance,

Respondent alleges he was once again called names

when he entered high school, during the 2004-05

school year. Respondent reported five separate

incidents of name-calling, all committed by different

individuals that year. In each situation where

Respondent made a complaint, it is undisputed that

Petitioner's administrators took action’ by

investigating the incident and, if the perpetrator was

identifiable, reprimanding the perpetrator and

imposing punishment. For a first offense, the

perpetrator was given verbal reprimand and an

apology was extracted. Respondent testified that in all

but one instance where a student was reported,

Petitioner took action and the offending student never

bothered Respondent again. A 38, 59-62, 411, 466-470,

597-598, 621-630, 657-661. In the lone instance when

a student harassed Respondent a second time,

Petitioner escalated its response and the offending

student was suspended from school. A 598.

Respondents grades and attendance were

unaffected by the purported problems. Respondent

maintained semester grades of mostly A’s and B’s and

missed only seven days of school the entire year. A 23-

29. Respondent was still involved in extracurricular

activities, such as joining the baseball team and

participating in a Japanese exchange program.

Toward the end of ninth grade, on Friday, May 13,

2005, Respondent was involved in an_ incident

occurring in the gym locker room following baseball

practice. Respondent was on the junior varsity

baseball team which was coached by his older brother,

Andy Wade. A 664. Instead of supervising the locker

room as required by School policy and as he was

instructed, Andy left after practice. A 664.

When Respondent was in the locker room gathering

his belongings to go home, some horseplay began

between Respondent and two other students, LP and

NH A bystander to the event, BH., stated he heard

laughter in the other part of the locker room. A 59-69.

When he went to see what the laughter was about, the

horseplay escalated and Lance was rubbing his

genitals on Respondent’s back and head. Id. LP

admitted that what he had done was wrong and

described it as a stupid locker room prank that went

way too far. /d., A 61-62. BH stated that after the

event, “Respondent didn’t look like he was mad. He

laughed.” Jd., A 69. BH. then confirmed that he had

never seen anything like this before in the locker room.

Id. Respondent admitted he never had a prior problem

with LP before this incident. A 634.

Respondent informed his parents of the incident

shortly afterwards. Respondent’s brother, the team’s

baseball coach, was informed later that night.

Respondent’s parents decided not to contact police and

did not immediately inform the school of the incident.

A 769. Instead, Respondent’s parents decided that he

would play baseball in the doubleheader scheduled the

next day. Id at 6, A 768. Respondent’s brother, Andy,

knowing what occurred, put LP in the starting lineup

the next day. /d., A 631. Respondent did not inform

Petitioner of the incident until during’ the

doubleheader. A 634. Respondent decided not to

contact police the entire weekend and, instead, wanted

Petitioner to handle the discipline.

On Monday, school principal Michael Osborne and

assistant principal Tom Durbin began conducting a

formal investigation into the allegations. A 612. LP

was immediately suspended for the remainder of the

school year and was expelled soon thereafter. LP was

denied in his application for reentry into the school.

Though Respondent informed the school and police

that NH was only “joking around”, he was still

punished by the school. A 60; A 612. Petitioner fully

cooperated with the Hudson Police Department in its

investigation into the matter. Petitioner shared the

results of its investigation with the police. A 610; A 63-

65. Following the expulsion hearing, LP was criminally

prosecuted. No criminal charges were ever brought

against NH Dane continued to play on the baseball

team, remained in school the rest of the year, and

completed his finals, earning mostly A’s and B’s that

semester as well. A 23-29.

Following Respondent’s ninth’ grade year,

Respondent’s parents decided Respondent was to be

home-schooled. In response, Petitioner provided

Respondent a formal individualized education. As part

of his new curriculum, Petitioner paid for Respondent

to take advanced classes at Adrian College, an

expensive private college. He also attended Jackson

Community College taking classes such as Japanese

which has helped him become fluent in the language.

A 633. Respondent has been successful in his home

school program provided by the School, earning A’s

and B’s and Respondent admits that he is very happy

in the program currently provided by the School: “Yes.

It’s good. It’s great to be successful right now, not

having any trouble.” A 751.

2. Petitioner’s Programs and Policies

Petitioner took sexual harassment and bullying

seriously before Respondent began attending

Petitioner’s schools. Beginning in 2000, a student

conduct component was added to the Health class

curriculum. This component specifically addressed

bullying and harassment, and taught students the

dangers of such. Court of Appeals Appendix (“A”) 592.

In 2002, while Respondent was in sixth grade,

Petitioner conducted student surveys to gauge the

overall school climate, including students’sview cf

sexual harassment. In response, Petitioner adopted

several policies addressing, prohibiting, and protecting

against sexual harassment, and promoting general

proper conduct among students. A 84-88, 94-101; A

302-310.

In 2002, Petitioner formally adopted a two page

policy prohibiting all forms of student harassment.

This policy provided in part:

Harassment of students is prohibited, and wil!

not be tolerated. This includes inappropriate

conduct by other students as well as any other

person in the school environment

A 96-97. This policy went on to define harassment, and

sexual harassment specifically, so that students would

know what behavior to report:

Sexual Harassment may include, but is not

limited to:

A. verbal harassment or abuse;

8B. pressure for sexual activity;

C. repeated remarks with sexual or

demeaning implications;

D. unwelcome touching;

EK. sexual jokes, posters, cartoons, etc.;

F. suggesting or demanding _— sexual

involvement accompanied by implied or

explicit threats concerning one’s grades,

safety, job, or performance of public

duties.

A 96-97. This policy also provided reporting procedures

in case of an incident of harassment. /d.

Also prior to Respondent’s complaints, Petitioner

adopted a three page policy prohibiting bullying, which

also prohibited sexual harassment. /d. This policy

provided:

The Board. of Education is committed to

providing a safe, positive, productive, and

nurturing educational environment for all of its

students. The Board encourages the promotion

of positive interpersonal relations between

members of the school community. Aggressive

behavior toward a student, whether by other

students, staff, or third parties is strictly

prohibited and will not be tolerated. This

prohibition includes physical, verbal, and

psychological abuse such as bullying and

hazing. The Board will not tolerate any

gestures, comments, threats or actions to a

student which cause or threaten to cause bodily

harm, reasonable fear for personal safety, or

personal degradation.

A 98. Like the policy prohibiting harassment, this

policy contained a reporting provision, and specifically

proscribed harassment of any form. A 100.

The student handbook, which was distributed to

students on the first day of school, also contained a

prohibition against sexual harassment. The handbook

provided:

CODE OF CONDUCT

Sexual harassment Sexual harassment is a

form of misconduct which undermines the

integrity of the student body relationship. All

H.A.H.S. students must be allowed to learn in

an environment free from unsolicited and

unwelcome sexual comments and overtures.

Sexual harassment refers to behavior, which is

not welcome, which is personally offensive,

which weakens morale, and therefore interferes

with the learning effectiveness of its victims and

their co-students.

In fulfilling its obligation to maintain a positive

and productive learning environment, H.A.H.S.

will make every attempt to halt any harassment

of which it becomes aware by calling attention

to this policy or by more direct disciplinary

action. If necessary, reprimands, detentions,

suspension or legal action will be taken. Any

complains should be notified to the

Administration. Parents will be notified.

A 304. Students were instructed on the policies, and

acceptabie conduct while attending Petitioner’s

schools. At the beginning of each school year, teachers

spent a portion of the first day of class discussing with

the students the student handbook, including the

student code of conduct. A 341-343; A 557; A 527.

Petitioner’s employees were also trained on the

above policies. During in-service training sessions held

at the beginning of the school year, school personne!

were provided with copies of the Petitioner’s policies

regarding student conduct and spent significant time

discussing appropriate student conduct, which

included bullying, sexual harassment, and assaults. A

558; A 526.

‘lo further minimize harassment or bullying in the

school, while Respondent attended Petitioner’s schools,

Petitioner had in place specific policies regarding

hallway, lunchroom, and locker room supervision

These policies required teachers and administrators to

supervise these areas at all times based on shifts

School district administrators and teachers were

advised of, and trained on, the above policies. A 593-

594.

During the 2002-05 time period, when Respondent

claims he was being harassed, Petitioner also initiated

several programs aimed at educating students, staff,

parents, and members of the community on student

conduct, including harassment and bullying. In 2002,

when Respondent was in sixth grade, Petitioner

developed a program called the “40 Developmental

Assets.” A 594. As part of the program, Petitioner had

speakers come in and help faculty and staff identify

harassment and develop positive attributes in

students. A 594. In the 2003-2004 school year,

Petitioner initiated the “Character Counts” program,

which addressed correcting problem behavior among

students. A 80-81. In 2005, when Respondent was in

ninth grade, Petitioner started the Campaign for

Kindness, which promoted student sensitivity.

Petitioner also hired Bonnie Dunn to continually

assess the School environment. A 594-595.

The School also put on performances, such as

“Bang, Bang, You’re Dead”, while Respondent was in

middle school. This performance addressed the

problems causing the Columbine tragedy, such as

bullying and teasing. A 589. Following the

performance, a community forum was held to discuss

myriad of problem behavior among students. /d.

During the 2002-05 time period, Petitioner also

brought in several speakers, such as ex-NFL players

Jacob Jacoby and Paul Dunbar, Miss Michigan, and

Miss Raisin Queen, to speak on issues of bullying and

harassment. A 584-587. Jacoby also held an evening

assembly for parents. A 587.

School Counselor Mansfield also implemented

several programs for students which addressed

harassment and peer relations when Respondent was

in middle school. Ms. Mansfield initiated: individual

and group counseling sessions specifically to address

bullying and harassment issues A 24-25; the “Flirting

and Hurting Program,” which addressed sexual

harassment and bullying A 462; the “CATS Program,”

which addressed dating, bullying, and peer pressure;

the “Peer Mediation Program,” where students were

trained to effectively mediate student problems A 80-

81; and “Positive Peers,” which was a mentoring

service aimed at addressing kindness, bullying, peer

pressure, and conflict resolution. Jd.

3. Procedural History

A year after Petitioner began paying for

Respondent to be home schooled, Respondent’s parents

filed suit against Petitioner Hudson Area School and

Superintendent Dr. Kathy Malnar in the U.S. District

Court for the Eastern District of Michigan alleging a

violation of Title LX, and pursuant to 42 U.S.C. 1983,

a violation of Respondent’s Equal Protection Rights.

Petitioner filed its motion for summary judgment,

and on November 28, 2007, the District Court granted

Petitioner’s summary judgment on the basis that it

was not deliberately indifferent to Dane’s complaints

of sexual harassment. The Court found that

administrators at Hudson Area Schools repeatedly

took adequate and effective remedial action reasonably

calculated to end harassment, eliminate the hostile

environment, and prevent harassment from occurring

again. In support of this conclusion, the Court noted

that in each reported situation, the perpetrator did not

cause Respondent any further problem. The trial court

also found that Petitioner had in place effective

policies prohibiting sexual harassment, which were

taught to students and faculty. The trial court further

determined that Petitioner had instituted myriad of

programs designed to educate students and staff on

bullying and harassment. Finally, the trial court found

that Petitioner provided Respondent with personal

assistance to cope with peer issues. The Court

concluded that, as a matter ef law, Petitioner’s

responses were not “clearly unreasonable” in light of

known circumstances. Judge Zatkoff rejected

Respondent’s arguments that the School’s punishment

of students was not severe enough, since Respondent

does not have a right to dictate the actions Petitioner

takes. Respondent appealed the district court’s

decision only as to the issue of deliberate indifference

under Title IX.

On January 6, 2009, in a split decision the Sixth

Circuit reversed. The majority found that, although

Petitioner effectively disciplined individual offending

students to the extent that disciplined students never

again posed a problem to Respondent, Petitioner had

policies in place prohibiting sexual harassment, and

Petitioner developed and instituted two programs

dealing with sexual harassment - though it

acknowledged almost a dozen additional programs

addressing student conduct, it was nonetheless a

question of fact whether the Schoo! was deliberately

indifferent. The below court found that Petitioner's

efforts were ineffective in preventing future acts of

sexual harassment by new, unidentified offenders, and

therefore, should not be shielded from liability by

summary judgment.

In coming to its conclusion, the majority ignored

the personal assistance Petitioner provided to

Respondent, and the policies instituted for hallway

and lunchroom monitoring, designed to negate the

effect of bullying and harassing behavior. The majority

also discounted fourteen different programs and

groups instituted over a four year period addressing

appropriate student conduct as a whole, which

included sexual harassment. See gencrally, A 584-595;

A 490-498, 470. For example, the Majority ignored the

full scope of the “Bang-Bang Your Dead” program

(compare Majority’s treatment of program, P. 18,n. 10,

with testimony from Principal Osborne, A 588-589),

and is highly critical of the “long term effectiveness” of

other programs. This criticism directly conflicts with

Davis and Vance, which caution Courts against second

guessing schools’ responses to reports of sexual

harassment. Davis, 526 U.S. at 648.

The majority also improperly questioned the

veracity of whether the School implemented its policies

regarding sexual harassment by relying on the

affidavit of Respondent’s brother, Andy Wade, who

was a substitute teacher for a brief period in 2004.

Wade testified he did not teach the school policy to his

students. Wade’s affidavit is defective because Wade

alleges he was hired several days into the school year.

Opinion P. 18 n. 10. However, teachers taught the

school’s policy on the first day of school. A 341-343; A

557; A 527. Therefore, Wade is not competent to testify

whether the students were ever taught the prohibition

against sexual harassment. Additionally, Wade

testified he never taught the “Flirting and Hurting”

program. Wade testified, however, he was hired as a

substitute eighth grade Health teacher in 2004.

Opinion P. 18 n. 10. However, that program was

taught during ninth grade Health class that year. A

496-497. Again, Wade was not competent to testify

whether the “Flirting and Hurting” program was

taught, and reliance on such evidence is improper. It

is worth noting that the complained of sexual assault

occurred when Respondent’s brother, Wade, failed to

supervise the locker room as instructed. A 664.

REASONS FOR GRANTING WRIT

The majority opinion below is in conflict with

Davis. While Dauts finds that school districts may be

held liable for student on student sexual harassment,

a school may only be held liable if it remains

deliberately indifferent to sexual harassment of which

it is actually aware. This standard does not require

schools to remedy or purge itself of sexual harassment

in order to avoid liability. On the contrary, Davis is

clear that under the deliberate indifference standard

schoels need only merely respond to complaints of

sexual harassment in a manner that is not clearly

unreasonable. In conflict with this standard, the

majority below held that schools’ response to

harassment may still be deliberately indifferent if its

action are 100% effective against the individual

harassers, but there is subsequent harassment by new

offenders. This Court did not intend for schools to

respond with that degree of precision when crafting

the deliberate indifference standard. The majority

opinion below also conflicts with the Third Circuit.

Under a virtually identical fact pattern as presented to

the majority below, the Third Circuit found that the

school was not deliberately indifferent because it

responded effectively to each complaint of harassment

that was reported, to the extent that each reported

student never harassed again. In contrast, the

majority below found that 100 percent effective

discipline was not enough. The majority opinion is not

practical, and wii! open schools to a flood of litigation.

The school setting is a unique place where bad

behavior among students is inevitable. The majority

opinion has held school districts to a nearly impossible

standard to satisfy in light of the setting.

ARGUMENT

A. The Majority Opinion Below Is In Conflict

With Davis v. Monroe County Board Of

Education And Its Progeny

In Davis v. Monroe County Bd. of Educ., 526 US

629 (1999), this Court determined that a school district

may be hable under Title [X for student on student

harassment, but only in limited circumstances. This

Court determined that a plaintiff may bring a cause of

action under Title IX for student on student sexual

harassment only if the plaintiff can establish the

following elements:

1) the sexual harassment was so _ severe,

pervasive, and objectively offensive that it could

be said to deprive the plaintiff of access to the

educational opportunities or benefits provided

by the school;

2) the funding recipient [the school] had actual

knowledge of the sexual] harassment; and

3) the school was deliberately indifferent to the

harassment.

Davis at 653. The issue on appeal before the Sixth

Circuit was whether the Petitioner School was

deliberately indifferent to Respondent’s complaints of

harassment.

Historically, courts have acknowledged that

dehberate indifference in a Title IX case is very

difficult to establish. Doe ex rel Doe v. Dallas Indep.

Sch. Dist., 220 F3d 380, 384 (5th Cir. 2000), cert.

denied, 531 U.S. 1073 (2001). This Court has

determined that deliberate indifference is shown only

where a school knows of and disregards an excessive

risk to the student’s health or safety. See Farmer v.

Brennan, 511 U.S. 825, 837 (1994). It must be aware of

facts from which the inference could be drawn that a

substantial risk of serious harm exists, and, further, it

must actually draw that inference. Jd. Deliberate

indifference presupposes that the school knows of a

Title IX violation, but it “refuses to take action to bring

the recipient into compliance. The premise, in other

words, is an official decision by the recipient not to

remedy the violation.” Gebser v. Lago Vista Indep.

School Dist., 524 U.S. 274, 290, 118S. Ct. 1989, 141 L.

Ed. 2d 277 (1998).

In the context of Title IX peer on peer harassment

cases, this Court has made the deliberate indifference

standard an even higher hurdle to clear. If a funding

recipient does not engage in harassment directly, it

may not be lable f»r damages unless its deliberate

indifference “subjects” its students to harassment.

Davis, supra, 526 U.S. at 644-645. This Court has

found that this occurs “only where the recipient’s

response to the harassment or lack thereof is clearly

unreasonable in light of the known circumstances.”

See Davis, supra, 526 U.S. at 648.

Davis has rejected the argument that this standard

requires schouis to “remedy” peer harassment to avoid

hability. Davis, supra, 526 U.S. at 648. The Court

elaborated that the deliberate indifference standard

“does not mean that recipients can avoid liability only

by purging schools of actionable peer harassment or

that administrators must engage in a particular

disciplinary action.” Jd. “On the contrary, the recipient

must merely respond to known peer harassment in a

manner that is not clearly unreasonable.” Jd. at 648-

649.

Under this standard, “[s]chool administrators will

continue to enjoy the flexibility they require” in the

area of school discipline. Davis at 648. Rather than

scrutinizing schools’ discipline decisions with the

benefit of hindsight, this “ourt cautioned that “courts

should refrain from second guessing the disciplinary

decisions made by school administrators.” Davis, 529

US. at 648, citing to New Jersey v T. L. O., 469 U.S.

325 (1985).

Relying on Davis, the Sixth Circuit in Vance v.

Spencer County Pub. School Dist., 231 ¥.3d 253 (6th

Cir. 2000), described the standard as follows:

The recipient is liable for damages only where

the recipient itself intentionally acted in clear

violation of Title IX by remaining deliberately

indifferent to known acts of harassment. “[T]he

deliberate indifference must, at a minimum,

‘cause [students] to undergo harassment or

make them liable or vulnerable’ to it.”

The recipient is not required to “remedy” sexual]

harassment nor ensure that students conform

their conduct to certain rules, but rather, “the

recipient must merely respond to known peer

harassment in a manner that is not clearly

unreasonable.” The deliberate indifference

standard “does not mean that recipients can

avoid liability only by purging their schools of

actionable peer harassment or that

administrators must engage in particular

disciplinary action.” The standard does not

mean that recipients must expel every student

accused of misconduct. Victims do not have a

right to particular remedial demands.

Furthermore, courts should not second guess

the disciplinary decisions that school

administrators make.

The Supreme Court has pointedly reminded us,

however, that this is 10t a mere

“reasonableness” standard’ that transforms

every school disciplinary decision into a jury

question.” In an appropriate case, there is no

reason why courts on motion for a directed

verdict could not identify a response as not

“clearly unreasonable” as a matter of law.

{internal citations omitted).

Vance, 231 F.3d at 260.

Circuits interpreting the deliberate indifference

standard have determine? that a negligent response to

a complaint of harassment does not satisfy the

deliberate indifference standard. For example, citing

Davis, and the Sixth Circuit in Vance, the Tenth

Circuit in Rost v. Steamboat Springs RE-2 Sch. Dist.,

511 F.3d 1114, 1121-24 (10th Cir. 2008), recently found

that a negligent or erroneous response to a complaint

of harassment does not amount to deliberate

indifference unaer Title LX. See also Doe v. Dallas

Indep. Sch. Dist, 220 F.3d 380 (5th Cir. 2000) (holding

that actions and decisions by officials that are merely

inept, erroneous, ineffective or negligent do not

amount to deliberate indifference under Davis);

Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165,

174 (1st Cir. 2007) (noting “liJn hindsight, there may

be other and better avenues that the [district] could

have explored .. . [bJut Title IX does not require .. .

flawiess investigations [or] perfect solutions”); Bd. of

County Comm’rs of Bryan County, Okla v. Brown, 520

U.S. 397, 407 (1997) (noting “[a] showing of simple or

even heightened negligence will not suffice” under the

deliberate indifference standard). Wilson v. Beaumont

Indep. School Dist., 144 F. Supp. 2d 690 (E.D. Tex.

2001)(“Even assuming, however, that defendants could

have taken swifter and more appropriate action, there

is no legal requirement of perfection.”); Johnson v.

Independent School Dist., 194 F. Supp. 2d 939, 948

(Dist. Minn. 2002)(perfect solutions to a complaint of

sexual harassment is not required to avoid liability).

Although neither Davis nor Vance require schools

to “remedy” or “purge” themselves of sexual

harassment to prevail at the summary judgment level,

and Davis’ progeny allows room for error when

responding to complaints of harassment, the Majority

in this case found that when “a school district takes

some action in response to known harassment, if

further harassment continues,” the school should not

be shielded by summary judgment. P. 16. Moreover,

the Majority went so far as to require schools to

“prevent” future harassment by unidentified students

from occurring before it can avoid liability. P. 17.

In coming to its conclusion, the majority relies upon

the following additional language in Vance:

[W]here 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.

Where a school district has actual knowledge

that its efforts to remediate are ineffective, and

it continues to use those same methods to no

avail, such district has failed to act reasonably

in hight of the known circumstances.

231 F.3d at 261.

The Majority seems to interpret these two

sentences to mean that even if the school district takes

disciplinary action in response to all known

harassment, and even if that action is 100% effective

against the individual harassers, it may be liable if

there is subsequent harassment by new offenders.

Such a proposition has been refuted. See Doe v.

Bellefonte posts School Dist., No. 4:CV-02-1463, 2003

U.S. Dist. LEXIS 25841, 2003 WL 23718302 (M.D. Pa.

Sept. 29, 2003), aff'd 106 Fed. Appx. 798 (3d Cir. Aug.

4, 2004). Such an interpretation also stands in stark

contrast to the long line of precedent interpreting

Davis and Vance, which find that actions and decisions

by officials that are merely inept, erroneous,

ineffective or negligent do not amount to deliberate

indifference-—findings which contemplate that future

harassment has not been prevented.

Moreover, when examining the facts of Vance, it is

apparent that Vance does not support such a

conclusion either. The harassment in Vance was far

more egregious, and the response thereto was far less

appropriate, than in this case. The student in Vance

was subjected to widespread harassment and physical

abuse. She was the victim of frequent and vulgar

name-calling (“whore” and “gay girl,” etc.), and she was

touched inappropriately in almost every class. She was

stabbed in the hand with a pen during one assault,

and, on another occasion, two students held her down

and tried to rip off her clothes while another student

took off his pants and said that he was going to rape

her.

After reports were responded to, the harassing

conduct not only continued, but it increased. In fact,

the same offenders confronted the minor plaintiff

after they had been “talked to” specifically in order to

harass her again. Even though “talking to the

offenders’ produced no results, [the school] continued

to employ this ineffective method” See Vance, 231

F.3d at 262.

lt was this factual background which led this court

to conclude that if a school district “has actual

knowledge that its efforts to remediate are ineffective,

and it continues to use those same methods to no avail,

such district has failed to act reasonably in light of the

known circumstances.” /d. at 261. Vance thus

confronted the situation where the harassing students

re-offended after they were disciplined (i.e., discipline

“produced no results”), yet the school knowingly

continued to use the same ineffective method. In this

case, it is undisputed that Petitioner effectively

responded to every complaint of harassment, to the

extent that once an complaint was addressed with an

offending student, that student never’ bother

Respondent again.

B. The Majority Opinion Below Is In Conflict

With The Third Circuit When Confronted

With the Same Fact Pattern

The Third Circuit has addressed a case with

substantially similar facts as the case before the

Court. However, the majority opinion § below

interpreted the deliberate indifference standard in

view of those facts in conflict with the Third Circuit.

In Doe v. Bellefonte Area School Dist., No. 4:CV-02-

1463, 2003 U.S. Dist. LEXIS 25841, 2003 WL

23718302 (M.D. Pa. Sept. 29, 2003), affd 106 Fed.

Appx. 798 (3d Cir. Aug. 4, 2004), the Third Circuit

addressed whether a school is deliberately indifferent

where the school took action in response to reports of

harassment that was one hundred percent effective to

eliminate a repeat offense by an offending student,

however, the school could not prevent future

harassment by new unidentified students. The Third

Circuit found, under these circumstances, the school

was not deliberately indifferent.

In Bellefonte, the student was ridiculed and

harassed by his fellow students for years. He was

called “queer,” “gay boy,” “pixie,” “faggot,” and “peter-

eater,” among other things. He was pushed at school

and physically assaulted at the bus stop. He reported

some (but not all) of the bullying and harassment, and

the school took varying degrees of disciplinary action

when the harassment was reported. Some of the

offenders were given verbal warnings and reprimands,

some were counseled about the seriousness of the

harassment, some were given detention, and others

were suspended. Notably, every time the _ school

warned or disciplined an offender, “that perpetrator

7? 4

never bothered Doe again. The School District’s

method of dealing with specific, identified perpetrators

involving Doe was one hundred percent effective.” 2003

U.S. Dist. LEXIS 25841, 2003 WL 23718302, at *9.

Based on the 100% success rate with the individual

offenders, coupled with the school agreeing to be extra

“vigilant” of the problems and having an anti-

harassment policy, the district court granted summary

judgment in favor of the school district because “no

reasonable finder of fact could conclude that the School

District was deliberately indifferent to the harassment

of Doe, or that its responses to the harassment of

which it was aware were clearly unreasonable.” 2003

U.S. Dist. LEXIS 25841, [WL] at *9-10.

The complaints in this case closely mirror those in

, the above case, and Petitioner’s response here at least

equaled that of the school in Bellefonte. It has been

acknowledged by the Majority Opinion below that

Petitioner responded to every complaint of harassment

effectively, to the extent that each reported offending

student was punished, and the student never repeated

his conduct. The Majority also acknowledged

Petitioner instituted at least two programs in the

school to teach the dangers of sexual harassment, and

had in place policies prohibiting sexual harassment. A

449.

It is also undisputed that Petitioner responded to

Respondent’s complaints in additional ways, which the

majority below ignores. For example, School counselor

Susan Mansfield invited DP to attend both group and

individual counseling sessions for students having

problems with their peer relationships; Petitioner also

took the unusual step of sending a schoo} social worker

and psychologist to DP’s home to meet and evaluate

him during his (and their) summer break; Teachers

agreed to be extra vigilant in looking out for DP;

Teachers offered suggestions on how to help DP better

cope with his peer-related problems, such as enrolling

in extracurricular social programs like band, science

olympiad, and other activities; DP was given seating

preferences to avoid students with whom he might

have problems; DP was referred to a social worker for

counseling several times each month; Petitioner

provided DP with an individualized evaluation

program; DP’s Principal offered to, and did, regularly

meet with and counsel DP until DP stopped the

sessions;) and Petitioner provided DP with a Resource

Room.

It is clear that Petitioner went beyond “merely

responding” to the complaints of harassment in a

manner that is not “clearly unreasonable” as required

by Davis. Yet, in conflict with the Third Circuit, the

majority opinion below found that it was a question of

fact whether Petitioner was deliberately indifferent to

sexual harassment. Ultimately, the only way the

majority avoided the conclusion that Petitioner

responded appropriately was to ignore crucial facts as

indicated above, substitute its own judgment for that

of Petitioner’s, and by redrawing the deliberate

indifference standard.

C. The Majority’s Opinion Is_ Impractical

Considering The Unique Nature Of Schools,

And Could Ultimately Have A Detrimental

Affect On Schools

The effect of the majority's opinion - to require that

schools prevent future harassment by unidentified

harassers - is impractical, and impossible, in hight of

the unique school environment. ‘his Court has

instructed:

Courts must bear in mind that schools are

unlike the adult work place in that children

may regularly interact in a manner that would

be unacceptable among adults. Indeed, at least

earlier on, students are still learning how to

interact appropriately with their peers. It, is,

thus, understandable that, in the school setting,

students often engage in insults, banter,

teasing, shoving, pushing and gender specific

conduct that is upsetting to the student

subjected to it.

Davis, 526 U.S. at 651-52. Bad behavior is inevitable

in schools, and even the most diligent school districts

will have students who are frequently picked on or

harassed.” By expanding the deliberate indifference

standard to require schools to prevent future

harassment by unidentified students, the Majority’s

opinion could finally result in the crushing financial

blow the Dissent in Davis feared. 526 U.S. at 672.

Such a heightened standard could also negatively

impact the student body. When a school! accepts

federal aid, it “weighs the benefits and burdens before

° In schools that are large enough, it is entirely likely that a

student could harass another student perceived to be an easy

target, without knowing that the targeted student was previously

harassed. Although the school would have no way of predicting

this incident would occur, under the majority opinion’s standard,

the school would still be liable for this unpredictable act, even if

the school effectively responded to each previously reported

incident.

accepting the funds.” Guardians Ass'n. v. Civil Service

Comm'n of N.Y ., 463 U.S. 582, 596 (1983). If one of the

burdens of accepting funds is to guarantee it will

prevent recurrences of future harassment by

unidentified students, in light of the challenges

presented by the school environment, many school

districts may simply forgo federal assistance, and the

beneficial programs the aid funds. This may be

especially true for smaller districts that receive

relatively small amounts of federal funding. For

° Congress enacted Title [IX pursuant to its spending power. When

this Court determined that a private nght of action was implied

in Title IX, it carefully crafted a high burden of proof for plaintiffs

to prove a sexual harassment claim that comports with limits on

Congress's Spending Clause Powers. These limits are rooted in

part in the concept that:

legislation enacted pursuant to the spending power is

much in the nature of a contract: in return for federal

funds, the States agree to comply with federally imposed

conditions. The legitimacy of Congress’ power to legislate

under the spending power thus rests on whether the State

voluntarily and knowingly accepts the terms of the

“contract.” See Steward Machine Co. v. Davis, 301 U.S.

548, 585-598 (1937); Harris v. McRae, 448 U.S. 297

(1980). There can, of course, be no knowing acceptance if

a State is unaware of the conditions or is unable to

ascertain what is expected of it. Accordingly, if Congress

intends to impose a condition on the grant of federal

moneys, it must do so unambiguously. 13 Cf. Employees

v. Department of Public Health and Welfare, 411 U.S.

279, 285 (1973); Edelman v. Jordan, 415 U.S. 651 (1974).

By insisting that Congress speak with a clear voice, we

enable the States to exercise their choice knowingly,

cognizant of the consequences of their participation

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17

(1981).

example, in 2009, Petitioner received $195,000 in

federal aid, which is only 2.4% of its revenuc.’ By

comparison, Respondent has demanded more than

$500,000 to settle this case. This heightened standard

provides schools with a strong disincentive to accept

federal funding. Surely Congress did not intend to

discourage schools from accepting federal aid.

D. The Appropriate Standard for Deliberate

Indifference

The pertinent inquiry should be whether the

response was appropriate under the particular

circumstances. A school responds appropriately if it

investigates what has already occurred, reasonably

tries to end any harassment still ongoing by the

offenders, and seeks to prevent the identified offenders

from engaging in such conduct again. That is exactly

what happened in this case. It is manifestly

unreasonable to hold that a school district may be

responsible for not preventing future harassment by

entirely separate and new harassers. To suggest

otherwise, as the majority does, comes extremely close

to requiring that schools be “purged” of all offensive

behavior and be completely harassment-free, which

the Supreme Court and Sixth Circuit have

unequivocally held is not required -- or possible.

Whether the defendant, from an_ objective

viewpoint, could have (or should have) done more to

stop the harassment is not the appropriate inquiry.

Lack of objective reasonableness, i.e., a failure to act as

a reasonable person would have acted, does not by

’ http://www.hudson.k12.mi.us/board/budget. htm!

itself equal deliberate indifference. Nor does liability

turn upon whether the school successfully remedied

the harassment. The only question is whether the

school “intentionally acted in clear violation of Title IX

by remaining deliberately indifferent to known acts of

harassment,” and whether its response was so “clearly

unreasonable” and inadequate that it facilitated and

subjected the student to harassment. Based on the

undisputed facts in the record in this case, any

reasonable juror would have to answer that question

“No.”

CONCLUSION

For the foregoing reasons, the Court should reverse

the Sixth Circuit’s Opinion that Petitioner was

deliberately indifferent.

Respectfully submitted,

Timothy J. Mullins

Counsel of Record

Kenneth B. Chapie

Giarmarco, Mullins & Horton, PC

101 W. Big Beaver Road, 10th Floor

Troy, MI 48084-5280

(248) 457-7000

Counsel for Petitioner

APPENDIX

APPENDIX A

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0002p.06

UNITED STATES COURT OF APPEALS

FOR THE SDITH CIRCUIT

No. 08-1008

[Filed January 6, 2009]

DAVID PATTERSON and

DENA PATTERSON,

Plaintiffs-Appellanis.

Vv.

HUDSON AREA SCHOOLS

and KATHY MALNAR,

Defendants-Appellees.

A a ee ee ee a a a

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 05-74439—Lawrence P. Zatkoff, District Judge.

Argued: October 23, 2008

Decided and Filed: January 6, 2009

Bc fore: MOORE and WHITE, Circuit Judges;

VINSON, District Judge.”

COUNSEL

ARGUED: Terry E. Heiss, LAW OFFICE OF TERRY

E. HEISS, Ada, Michigan, for Appellants. Timothy

John Mullins, GLARMARCO, MULLIN's & HORTON,

Troy, Michigan, for Appellees. ON BRIEF: Terry E.

Heiss, LAW OFFICE OF TERRY f£. HEISS, Ada,

Michigan, for Appellants. Timothy John Mullins,

GIARMARCO, MULLINS & HORTON, Troy,

Michigan, for Appellees.

MOORE, J., delivered the opinion of the court, in

which WHITE, J., joined. VINSON, D. J. (pp. 20-34),

delivered a separate dissenting opinion.

OPINION

KAREN NELSVN MOORE, Circuit Judge.

Plaintiffs-Appellants David Patterson and Dena

Patterson (collectively referred to as “the Pattersons”),

appeal the district court’s grant of summary judgment

in favor of Defendant-Appellee Hudson Area Schools

(“Hudson”) on the Pattersons’ claim that Hudson

violated Title IX by allowing their son, DP,’ to be

“The Honorable C. Roger Vinson, United States District Judge for

the Northern District of Florida, sitting by designation.

' All individuals who were minors during the events described

_herein will be referred to by initials.

harassed by other students. The Pattersons’ sole

argument is that the district court erred in finding

that, as a matter of law, Hudson was not deliberately

indifferent to the alleged sexual harassment of DP.

Because we believe that the Pattersons have

established that there is a genuine issue of material

fact as to whether Hudson was deliberately indifferent

to the student-on-student sexual harassment of DP, we

REVERSE the grant of summary judgment and

REMAND for further proceedings consistent with this

opinion.

I. FACTS AND PROCEDURE

Because this case involves a motion for summary

judgment, we will detail the facts in the light most

favorable to the nonmoving party, the Pattersons. DP

was a student of Hudson schools during all relevant

time periods. Beginning in 2002, during DP’s sixth-

grade year, various classmates of DP began teasing

DP, calling him names, and pushing and shoving him

in the hallways. DP was pushed into lockers and called

names such as “queer,” “faggot,” and “pig” by various

students on a daily basis. Joint Appendix (“J.A.”) at

668-70 (DP Dep. at 28-30). DP reported at least some

of these instances to the school and was told “kids will

be kids, it’s middle school.” J.A. at 672 (DP Dep. at 33).

DP also began receiving psychological treatment from

Dr. Gretchen Warwick, Ph.D.’ According to Dr.

* Dr. Warwick also treated DP when he was ten years old for

problems stemming from his family Sife. DP was no longer

suffering from those problems when the teasing began in sixth

grade.

‘ Warwick, this harassment caused DP to be distraught,

anxious, and angry.

The type of harassment DP faced in sixth grade

escalated during DP’s seventh-grade year, when he

was called names such as “fat,” “faggot,” “gay,” “queer,”

“pig,” and “man boobs” on a daily basis. J.A. at 672-74

(DP Dep. at 33, 36-37). DP believes he was called these

names more than 200 times during his seventh-grade

year. He also was frequently pushed in the hallways.

Additionally, DP was called “Mr. Clean” by his peers,

a derogatory term that referred to DP’s supposed lack

of pubic hair.

On one occasion, DP attempted to stop a female

classmate, BC, from tormenting another student. In

response, BC slapped DP. Though, upon learning

about the incident, band teacher Crystal Bough, told

DP she “wlould] take care of it,” the Pattersons were

never contacted by the school, nor did Ms. Bough

report the incident to the principal. J.A. at 678-79 (DP

Dep. at 44-45). The Pattersons learned from DP that

he had been assaulted at school. This incident led to

further teasing, including teasing from geography

teacher John Redding, who asked DP later that same

day in front of a full class of students: “[H]ow does it

feel to be hit by a girl[?]” J.A. at 680 (DP Dep. at 46).

The class laughed at DP.

DP wanted to quit school by the end of the first

semester of seventh grade. Principal Greg Rozeveld’*

offered to mentor DP through this hard time. However,

* The principal’s name is repeatedly misspelled in Hudson’s brief

and the depositions as “Roosevelt.”

according to Mrs. Patterson, when DP first began to

mect with Principal Rozeveld, DP was released from

class early to attend the meeting. The first visit went

smoothly, but Principal Rozeveld was not in his office

when DP arrived for the next three visits. On these

occasions, DP would return to class, which caused the

teacher to decide to stop sending DP early to meet with

Principal Rozeveld. Instead, she waited until she

released the problem students to go to the office to

have their planners signed at the end of the school

day. After only a couple of weeks, DP expressed to

Mrs. Patterson that he no longer wanted to go with the

problem students because other students were

beginning to think he was a trouble-maker. DP

stopped going to meet with Principal Rozeveld shortly

thereafter.

These incidents caused DP to withdraw to the point

that he began eating lunch in the bandroom by himself

to avoid his tormentors. His interim grades were also

low; however, DP did receive higher final grades.

The Pattersons and DP repeatedly reported several

incidents of harassment to Hudson. As the district

court accurately detailed, DP and the Pattersons

reported the following incidents:

1. Sixth Grade:

a. Dave Patterson spoke to a teacher about

teasing directed at [DP] and how [DP]

felt upset and humiliated.

b. [The Pattersons] attended parent teacher

conferences to talk about the name

calling, etc.

[The Pattersons] met with Principal

Rozeveld to discuss the pushing, shoving

and name calling of [DP].

2. Seventh Grade:

[The Pattersons] and school counselor

Susan Mansfield (“Ms. Mansfield”)

discussed the fact that [DP] was having

a hard time at school in November and/or

December, 2002.

[The Pattersons] and several teachers

met to discuss [DP]’s anxiety about being

(i) bullied and teased, (ii) the victim of

sexually offensive name calling, and (iii)

pushed into lockers.

{The Pattersons] met with Principal

Rozeveld just before Christmas 2002

about [DP] not wanting to come back to

school because of teasing, bullying, and

being called “gay”, “fag”, “queer.” [The

Pattersons] also discussed the impact of

those things on [DP]’s schooling, his

feelings of being ostracized and his

suffering grades. Names of perpetrators

allegedly were provided. They also

discussed the incident of [DP] being

slapped by [BC] and Mr. Redding teasing

[DP] about it.

During the second semester of seventh

grade, [the Pattersons] discussed

problems [DP] endured with Ms.

Mansfield and other staff.

e. [The Pattersons] communicated with

school staff throughout [DP]’s seventh

grade year over academic and social

issues. The [Pattersons] asked staff what,

if anything, [DP] was doing to cause his

peers to tease and taunt him. [The

Pattersons! claim that they were told

consistently that [DP] was doing nothing

wrong.

Patterson v. Hudson Area Schools, No. 05-74439, 2007

WL 4201137, *1-2 (E.D. Mich. Nov. 28, 2007)

(unpublished opinion and order).

During the summer between seventh grade and

eighth grade, Ms. Mansfield, along with social worker

Tammy Cates, filled out a referral form to have DP

evaluated for special education services. This

evaluation established that DP is emotionally

impaired as defined by the Individuals with

Disabilities Education Act, 20 U.S.C. § 1400 et seq. An

Individual Education Placement Team was convened

and an individual education program was developed.

Pursuant to the program, DP was assigned to attend

teacher Ted Adams’s resource room during one period

of the day for all of the eighth-grade year. Mr. Adams

was helpful in teaching DP how to cope with his peers.

All parties agree that DP had a successful eighth-

grade year; by using the resource room, DP was able to

learn effectively.

However, DP’s ninth-grade year was not successful.

DP’s individual education program was altered by

Hudson. Notably, Hudson High School Principal

Michael Osborne refused to allow DP to continue in

Mr. Adams’s resource room because Mr. Adams was a

middle-school resource-room teacher. Because DP’s

eighth-grade year was so successful, the Pattersons

begged Hudson to allow DP to continue in Mr. Adams’s

resource room, and even offered to have DP go to the

middle school to meet with Mr. Adams in Mr. Adams’s

room, but this request was to no avail.’ Principal

Osborne also “didn’t think that [the high school

resource room] was the place for [DP].” J.A. at 856

(Mrs. Patterson Dep. at 138). Thus, DP was not placed

in any resource room for his ninth-grade year.

The beginning of his ninth-grade year brought a

return of the type of harassment DP faced in sixth and

seventh grade. DP was again called names such as

“gay, “fat,” “fag,” and “queer” and was pushed and

shoved in the hallways on a near daily basis. J.A. at

729-30 (DP Dep. at 106-07). That fall, DP also was

called “Mr. Clean” by three students. Those students

were forced to meet with DP and Ms. Mansfield. The

students apologized, but DP did not think their

apology was sincere. Those three students never

bothered DP again.

DP also experienced new types of harassment

during his ninth-grade year. During oral presentations

in history class, a fellow student, SE, wrote a series of

words on the back of his note cards. These words

created the phrase: “{DP] is a fag.” J.A. at 708 (DP

“Though Mr. Adams worked for the middle school, the middle

schoo] and high school are housed in the same _ building,

segregated into separate wings. According to DP, it was possible

for him to stop by and meet with Mr. Adams in Mr. Adams's room

even after DP began high school. Mr. Adams did volunteer to

counsel DP for 25-30 minutes per week after DP began his ninth-

grade year

Dep. at 85). The entire class saw this phrase as the

student used the cards for his presentation, which

caused the students to laugh at DP. SE was reported

to Ms. Mansfield and the history teacher, both of

whom verbally reprimanded SE. SE never bothered

DP again.

Shortly after the oral presentation incident,

another student, JR, defaced DP’s planner with the

sexual phrases “I ® penis,” “I lick it in the Ass,” “I #

cock,” and “I’m a mamma’s boy/I suck on her Nipple”

and drawings of buttocks and a penis. J.A. at 311

(Planner); J.A. at 721-24 (DP Dep. at 98-101). DP

reported this incident to both the teacher and

Principal Osborne. JR was verbally reprimanded by

Ms. Mansfield and did not bother DP again after this

incident.

In March 2005, unknown students broke into DP’s

gym locker, removed his clothes and urinated on them,

and threw his tennis shoes in the toilet. The locker

was also “covered with shaving cream spelling out

sexually oriented words.” J.A. at 152 (TW Aff. 7 14).

Later that spring, two students, KM and JL, hung a

“Mr. Clean” poster on DP’s locker in the main hallway

Principal Osborne verbally reprimanded KM, and

suspended JL for one day. JL’s tougher punishment

was due to the fact that he had previously violated

school rules in a manner unrelated to the “Mr. Clean”

incident. Neither student bothered DP thereafter.

At some point after the “Mr. Clean” incident, DP’s

locker in the main hallway was vandalized by

unknown students. These students used permanent

markers and wrote words such as “gay,” “faggot,” and

“queer” up and down the locker. J.A. at 805 (Mr.

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Patterson Dep. at 55). Additionally, a picture of a penis

being inserted into a rectum was drawn on the locker.

The inside of the locker was also defaced with various

derogatory phrases, such as “suck your mother’s tits”

and “you suck dicks.” Jd. After the Pattersons reported

the incident, Hudson officials cleaned the outside of

the locker; DP had to ask Mr. Adams to help him clean

the inside of the locker. Hudson conducted an

investigation, but no individuals were ever punished.

The final incident of harassment occurred in late

May 2005. After Friday night junior-varsity baseball

practice, DP was sexually assaulted by a fellow

teammate, LP, in the locker room. LP stripped naked,

forced DP into a corner, jumped on DP’s shoulders, and

rubbed his penis and scrotum on DP’s neck and face.

While the assault was occurring, another student, NH,

blocked the exit so DP could not escape. DP informed

the Pattersons that evening about the attack. DP also

informed Andy Wade, his older brother and coach of

the junior-varsity baseball team. The Pattersons

informed Principal Osborne about the event on

Saturday, during a baseball double-header. Both DP

and LP played in the double-header, but DP claims he

participated in the game only in order to prevent the

team from having to forfeit.

LP was allowed to attend school on Monday

morning while Hudson officials began investigating

the incident. At some point on Monday, LP was

suspended for the remainder of the school year (just

over eight days). However, LP was permitted to attend

the annual spring sports banquet, one week after the

assault. Principal Osborne told Mr. Wade “to treat

[LP] like any other player, to shake his hand as [Mr.

Wade] would other players and to act like nothing

lla

happened.” J.A. at 233 (Wade Aff. 4 23). On June 10,

2005, LP was charged with assault with intent to

commit a felony and criminal sexual conduct in the

second degree. He ultimately pleaded guilty to

disorderly conduct. He was formally expelled from

Hudson in August 2005 and has not been permitted to

re-enter the Hudson school system. NH was verbally

reprimanded for his role in the assault. No criminal

charges were filed against NH.

After the sexual assault, the varsity baseball coach,

Jeremy Beal, held a team meeting with both the junior

varsity and the varsity basebail players. At the

meeting, Mr. Beal informed the players that they

should “not joke around with guys who can’t take a

man joke.” J.A. at 153 (TW Aff. 7 24 (quoting Mr.

Beal)). DP was present at the meeting.

Due to the continued harassment at Hudson,

culminating in a sexual assault, DP claims that he has

been psychologically unable to set foot into a Hudson

school building since the end of his ninth-grade year.

At the end of ninth grade, DP’s individual education

program was modified. for his tenth-grade year, “{DP]

began receiving instructional services from [Hudson]

in the Sacred Heart School building,” a preschool-

through- sixth-grade Catholic elementary school. J.A.

at 160 (Johnston Aff. 4 36). DP’s high-school teachers

would visit him occasionally to discuss his

assignments, even though “[DP] made numerous

attempts to e-mail teachers and did not get responses.”

J.A. at 157 (Johnston Aff. 9 17). This year was not

successful for DP.

For his eleventh- and twelfth-grade years, Hudson

allowed DP to take college placement courses at the

12a

local college. Originally, Hudson decided that one

semester of college coursework would .equal one

semester of high school course work. However, after

Hudson was required to pay tuition, “[t]he standard

changed to one semester college class equals one year

high school class... .” J.A. at 197 (Mrs. Patterson Aff.

{| 7). This facilitated DP’s early graduation.

The Pattersons filed suit against Hudson and

Kathy Malnar, Superintendent of Schools for Hudson,

in the United States District Court for the Eastern

District of Michigan on November 22, 2005. The

complaint alleged the following federal claims:

(1) Hudson violated Title IX of the Education

Amendments of 1972; (2) Hudson violated DP’s equal-

protection rights; and (3) Ms. Malnar “failed to

implement and enforce meaningful procedures to

ensure compliance with federal law and the policies of

[Hudson] and failed to ensure the proper education

and training of staff as to harassment issues.” J.A. at

17 (Compl. 14 28-30). The complaint also alleged

various state claims.

Hudson and Malnar moved for summary judgment

with respect to all claims, which the district court

granted. Patterson, 2007 WIL, 4201137, at *13. With

respect to the Title [X claim against Hudson,’ the

district court applied the three-part test expressed in

Davis v. Monroe County Board of Education, 526 U.S.

629 (1999), as articulated by this court in Vance v.

° The district court dismissed the Title IX claim against

Superintendent Malnar with the observation that “there is no

individual liability for a Title IX claim.” Patterson, 2007 WL

4201137, at “5 n.2. The Pattersons do not appeal this dismissal.

13a

Spencer County Public School District, 231 F.3d 253

(6th Cir. 2000). Patterson, 2007 WL 4201137, at *12.

The district court determined that the Pattersons had

met their burden with regard to the first two parts of

the test, but that the Pattersons failed to show, as a

matter of law, that Hudson’s responses to DP’s

reported attacks were “clearly unreasonable in light of

known circumstances.” /d. The district court concluded

that, absent such a showing, the Pattersons could not

prove that Hudson was “deliberately indifferent to the

alleged sexual harassment,” and thus summary

judgment was appropriate. Jd. The district court

stressed that each time DP or the Pattersons reported

an incident and Hudson knew who the perpetrators

were, Hudson reprimanded or punished _ those

individuals, who later did not bother DP. Id. at *8-9.

The district court further credited Hudson with

implementing several proactive programs to combat

harassment and bullying and with “assist{ing DP] in

dealing with the issues he faced in their schools.” Jd. at

*10. The Pattersons timely appealed, arguing only that

the district court erred in determinating that, as a

matter of law, Hudson was not deliberately indifferent.

Thus, on appeal, we consider only the Title [X claim

against Hudson.

Il. ANALYSIS

A. Summary Judgment Standard of Review

We review de novo a district court’s grant of

summary judgment. DiCarlo v. Potter, 358 F.3d 408,

414 (6th Cir. 2004). Under nule 56(c), summary

judgment is proper “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact

l4a

and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). “In deciding upon

a motion for summary judgment, we must view the

factual evidence and draw all reasonable inferences in

favor of the non-moving party.” Natl Enters., Inc. v.

Smith, 114 F.3d 561, 563 (6th Cir. 1997). “We examine

the grant of summary judgment to determine whether

the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law.”

DiCarlo, 358 F.3d at 414 (quoting C.T. Massey uv.

Exxon Corp., 942 F.2d 340, 342 (6th Cir.1991)) (second

set of internal quotation marks omitted).

B. Title TX Claim

Title IX provides that, “[nJo 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 educational

program or activity receiving Federal financial

assistance... .” 20 U.S.C. § 1681. Title [IX can support

a cause of action for a student’s claim of student-on-

student sexual harassment against a recipient of

federal funds. Davis, 526 U.S. at 633. To establish a

prima facie case of student-on-student sexual

harassment, the plaintiff must demonstrate each of

the following elements:

(1) the sexual harassment was so severe,

pervasive, and objectively offensive that

it could be said to deprive the plaintiff of

access to the educational opportunities or

benefits provided by the school,

15a

(2) the funding recipient had _ actual

knowledge of the sexual harassment, and

(3) the funding recipient was deliberately

indifferent to the harassment.

Vance, 231 F.3d at 258-59 (quoting Soper v. Hoben, 195

F.3d 845, 854 (6th Cir. 1999) (citing Davis, 526 U.S. at

633)).

The district court found that the Pattersons met

their burden with regard to parts one and two of the

test, but that, as a matter of law, the Pattersons did

not establish that Hudson was “deliberately indifferent

to the alleged sexual harassment against {DP}.”

Patterson, 2007 WL 4201137, at *12. The only issue on

appeal is whether Hudson’s actions require us to hold,

as a matter of law, that Hudson has not acted with

deliberate indifference. We conclude that, viewing the

evidence in the light most favorable to the Pattersons,”

* This is a diametrically different approach than the one taken by

the dissent. Although the dissent professes to be using the correct

legal standard, it repeatedly weighs evidence and decides

controverted issues in favor of Hudson, the moving party. See,e.g.,

Dissent at 24-25 (deciding that the resource room is nothing more

than “the equivalent of study hall” and, therefore, could not cause

a reduction of harassment); 25-26 (belittling the Pattersons’

evidence in regard to the lack of and effectiveness of proactive

programs). When we review a grant of summary judgment, we are

forbidden to weigh the evidence or to draw the inferences the

dissent insists upon drawing. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986) (“Credibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge, whether he is ruling

on a motion for summary judgment or for a directed verdict. The

evidence of the non-movant is to be believed, and all justifiable

l6a

inferences are to be drawn in his favor.” (emphasis added)). Our

job is to look at the facts and consider them in the light most

favorable to the nonmoving party, regardless of our own personal

views of hcw much credence we would give a particular piece of

evidence if we were on a jury. The dissent’s steadfast

determination to act as a juror is contrary to Supreme Court

precedent.

A clear example of the dissent’s misunderstanding and

misapplication of the governing standard is found in the assertion

that the undisputed facts support a conclusion that the resource

room itself did nothing to reduce the harassment of Di’. The

record clearly shows and both parties admit that, when the

resource room was used, DP suffered less harassment. Whether

it was the use of the room or the person who ran the room that

caused this undisputed decreased harassment is a question of

interpretation. Because we must draw all inferences in favor of

the nonmoving party, it is legally incorrect for the dissent to infer

that Mr. Adams himself, and not the use of the resource room in

general, aided DP. Thissame evidence supports the inference that

it was the use of the resource room itself that was beneficial to DP

and, because that inference favors the Pattersons, that is the

inference the Supreme Court demands we draw. The dissent’s

repeated claim, unsupported by the record, that all the inferences

it draws in Hudson’s favor are “established by the undisputed

facts,” see, e.g., Dissent at 24, does not magically give the dissent

carte blanche to view controverted issues in the light most

favorable to Hudson.

Furthermore, even assuming that the inference that the

dissent insists upon drawing was legally permissible, we believe

that a reasonable juror could still find that Hudson was

deliberately indifferent. Although Mr. Adams worked for the

middle school, the middle school and the high school were housed

in the same building, “connected by a short hall.” J.A. at 697 (DP

Dep. at 74). DP testified that, dung his ninth-grade year, it was

possible for him to meet Mr. Adams on the same basis he did

while in middle school. Additionally, Mrs. Patterson testified that

the Pattersons “begged” Hudson to allow DP to meet with Mr.

Adams and even offered to have DP meet with Mr. Adams in Mr.

Adams’s room in the middle school. J.A. at 855 (Mrs. Patterson

Dep. at 137). Given the effectiveness of the eighth-grade resource

lila

the Pattersons have demonstrated a genuine issue of

material fact regarding whether Hudson’s actions were

deliberately indifferent.

A recipient of federal funds that remains

“deliberately indifferent to known acts of harassment”

is liable for damages under Title IX. Vance, 231 F.3d

at 260. “[T]he deliberate indifference must, at a

minimum, ‘cause [students] tv undergo’ harassment or

‘make them liable or vulnerable’ to it.” Jd. (quoting

Davis, -?6 U.S. at 645) (first alteration in Vance,

second aiteration in Davis). “[{A] plaintiff may

demonstrate [a] defendant’s deliberate indifference to

discrimination ‘only where the recipient’s response to

the harassment or lack thereof is clearly unreasonable

in light of the known circumstances.” Vance, 231 F.3d

at 260 (quoting Davis, 526 U.S. at 648). A recipient

need not “[purge its] schools of actionable peer

harassment” or “engage in particular disciplinary

action” to avoid Title IX hability. Vance, 231 F.3d at

260. “Furthermore, courts should not second guess the

disciplinary decisions that school administrators

make.” Id. at 260. However:

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.

Where a school district has actual knowledge

that its efforts to remediate are ineffective, and

room and the willingness of the Pattersons to have DP go back to

the middle school to utilize Mr. Adams's services, a reasonable

juror could conclude that Hudson’s refusal to continue the

resource room program for DP constitutes deliberate indifference.

18a

it continues to use those same methods to no

avail, such district has failed to act reasonably

in light of the known circumstances.

Id. at 261 (emphasis added).

Relying on this language, one district court

determined that, where a student suffered four years

of harassment from various other students, a school

district’s “tactic of merely talking to and warning

students who harassed plaintiff,” with occasional

investigation into “some of the more significant

incidents and even eventually proactively sp[eaking] to

students and teachers in an effort to prevent further

incidents . . . raised a genuine issuc of material fact

sufficient to withstand summary judgment.” Theno v.

Tonganoxie Unified Sch. Dist. No. 464, 377 F. Supp. 2d

952, 966 (D. Kan. 2005). Theno is illustrative. In

Theno, the plaintiff was repeatedly harassed beginning

in his seventh-grade year and ending only when he left

school during his eleventh-grade year. Id. at 954-61.

The harassment consisted of name calling (“faggot,”

“queer,” “pussy,” “jack-off boy,” etc.), persistent joking

regarding plaintiff being caught masturbating in the

school bathroom (which was untrue), and some

physical altercations (pushing, shoving, tripping,

fistfights). Jd. Most student harassers were merely

given verbal warnings or reprimanded by the school;

however, a few of the more serious offenders were

more severely disciplined. Jd. Importantly, “each time

the school disciplined a known harasser, to the best of

the school’s knowledge that particular harasser ceased

harassing plaintiff (with limited exceptions).” Jd. at

965. The school also began to speak proactively with

students and teachers regarding harassment during

the plaintiffs tenth-grade year. /d. at 959-60.

19a

The school district in Theno argued that, as a

matter of law, its responses could not be deemed

clearly unreasonable. Jd. at 965. The district court

disagreed, stressing that

this is not a case that involved a few discrete

incidents of harassment. It involved severe and

pervasive harassment that lasted for years,

with other students engaging in the same form

of harassment after those who were counseled

had stopped, and the school rarely took any

disciplinary measures above and beyond merely

talking to and warning the harassers.

Id. at 966. Though the school took more aggressive

measures in the later years of the harassment, the

district court noted that

[bly that time, the harassment had been going

on for a number of years without the school

handing out any meaningful disciplinary

measures to deter other students from

perpetuating the cycle of harassment. While the

court recognizes that the school was not legally

obligated to put an end to the harassment, a

reasonable jury certainly could corclude that at

some point during the ( year period of

harassment the school district’s standard and

ineffective response to the known harassment

became clearly unreasonable.

Id.‘emphasis added). The district court cited Vance to

support this determination. Jd. It also concluded that

Vance supported a finding that “whether the school’s

belatedly stepped-up efforts were ‘too little, too late’ is

a question for the jury.” /d.

20a

Theno’s reliance on Vance is persuasive.’ In Vance,

‘ Contrary to the dissent’s assertion, we rely on Vance in making

our holding. However, one cannot escape the striking similarities

between the instant case and Theno, a case that also relied on

Vance. The dissent’s attempt to minimize the usefulness of district

court opinions does not change this fact. We therefore believe that

Theno is a helpful tool to illustrate why the holding in Vance

supports our holding today.

More important, the case the dissent cites as “very similar and

persuasive,” Dissent at 29, Doe v. Bellefonte Area School District,

106 F. App’x 798 (3d Cir. 2004), an unpublished Third Circuit

opinion, is different from this case in two material respects. First,

in Doe, the school district did more to prevent the systematic

harassment of Doe than Hudson did in instant case. Specifically,

the school district gave Doe “a special means of reporting any

additional harassment,” circulated memoranda specific to Doe’s

harassment issues to the faculty in the hopes of preventing future

harassment, and “held assemblies and enacted policies addressing

peer-to-peer harassment.” Doe, 106 F. App’x at 800. As outlined

above, when viewing the facts in the light most favorable to the

Pattersons, we observe that Hudson did not perform any of these

services during DP’s ninth-grade year. Thus, Doe is

distinguishable from the instant case by the effort the school

district devoted to preventing future harassment.

Second, and of greater weight, is the fact that the Third

Circuit is not bound by Vance, and thus Doe is of little value.

Moreover, the dissent’s contention that Doe tacitly rejected our

interpretation of Vance is unavailing, given that the actual

opinion in Doe makes no mention of Vance. Therefore, even if the

Doe panel thoroughly considered and rejected this interpretation

of Vance, Doe provides no reasoning regarding why _ it

hypothetically rejected that interpretation that we may consider

and evaluate.

Furthermore, the dissent’s assertion that “a decision of a

three-judge panel from a sister court of appeals has to be more

persuasive than a single district judge’s opinion from outside this

circuit,” Dissent at 29 n.7, is completely unfounded and

demeaning to district covrt jurists. Under such a theory, a

decision from Learned Hand while sitting on the bench in the

2la

Southern District of New York would be categorically inferior to

any differing opinion rendered by a random three-judge panel

from any circuit. Judges and cases differ, and such a bright-line

rule that imports inferiority without regard to the depth of

analysis present in an opinion or to the similarity of facts with the

case at bar is unwarranted and disrespectful to the numerous

talented district judges.

Additionally, the dissent’s reliance on S.S. v. Eastern

Kentucky University, 532 F.3d 445 (6th Cir. 2008), is misplaced.

S.S. involved a student claiming peer-on-peer harassment in

violation of the Americans with Disabilities Act and § 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794. The panel applied the

Davis test to the claim and held that the school district was not

deliberately indifferent as a matter of law. However, the school

district in S.S., like the school district in Doe, did more than

Hudson did in this case to prevent future harassment: The school

district “arrangled] for outside speakers to talk to the stucnts

about name-calling, identiflied) related topics for discussion at

school assemblies and in small groups,” “calljed) the police,” and

“call{ed] the other students’... . parents to discuss the disciplinary

problems.” S.S.,532 F.3d at 455. The dissent insists that both Doe

and S.S. are factually identical to this case, claiming that Hudson

has done everything that the school districts in those two cases

have done. Dissent at 29-33 & n.8. However, that is true only if

one views the evidence in the light most favorable to Hudson, not

when one views the evidence in the light most favorable to the

Pattersons. Because the jatter is the legally correct view, Hudson

is not on par with the school districts in Doe and S.S.

Moreover, the panel in S.S. stressed that “[elven viewing the

record in the light most favorable to S.S., proof is lacking as to

what [vse defendant] could have or should have done differently in

order to bring the peer-on-peer harassment to a stop.” Jd. As

explained below, that is not the case in the instant appeal; it is

undisputed that Hudson was fully aware that use of the resource

room in eighth grade impacted the amount of harassment that DP

suffered and discontinuing the resource room in ninth grade

correlated with a return to high levels of harassment. Hudson Br.

at 8-22. Thus, a reasonable jury could find that Hudson knew how

to combat. the harassment of DP and simply chose not to implement

that known method of success. Thus, S_S. is distinguishable

22a

when confronted with a post-trial motion for judgment

as a matter of law, the district court upheld the jury

verdict in favor of the plaintiff, a female student who

suffered harassment over many _ school years

perpetrated by various students, and we affirmed.

Vance, 231 F.3d at 256-58. The school district

responded to the plaintiffs harassment complaints by

talking to the perpetrators, to no avail. Jd. at 262. We

rejected the defendant’s argument that a_ school

district is not deliberately indifferent “as long as a

school district does something in_ response to

harassment,” id. at 260, emphasizing that “once [a

schoo] district] had knowledge that its response was

inadequate, it was required to take further reasonable

action in light of the circumstances to avoid new

liability,” id. at 262. We believe this language makes

clear that, even though a school! district takes some

action in response to known harassment, if further

harassment continues, a jury is not precluded by law

from finding that the school district’s response is

clearly unreasonable. We cannot say that, as a matter

of law, a school district is shielded from liability if that

school district knows that its methods of response to

harassment, though effective against an individual

harasser, are ineffective against persistent

harassment against a single student. Such a situation

raises a genuine issue of material fact for a jury to

decide.

Furthermore, when viewing the facts in the light

most favorable to the Pattersons, we conclude that

there are striking similarities between the instant case

and Theno. Here, as in Theno, DP was repeatedly

harassed over a number of years. Hudson responded to

this harassment largely by giving verbal reprimands

to the perpetrators. Though typically reprimands

23a

largely stopped harassment by the reprimanded

student, they did not stop other students from -

harassing DP. This pervasive harassment escalated to

criminal sexual assault. Moreover, Hudson was aware

that the verbal reprimands regarding a few students

were not stopping the overall harassment of DP; it is

undisputed that DP continued to have problems with

other students, even after some were reprimanded or

even disciplined, and DP reported those continuing

probleins to Hudson. Hudson Br. at 8-22 (detailing

DP’s reported harassment).

One key difference between Theno and this case is

that Hudson did at one point employ a system that

successfully combated the harassment of DP, i.e., the

use of the resource room during eighth grade. In the

instant case, a reasonable jury could thus conclude

that Hudson not only was aware of what did not work,

but also was aware of what had worked to insulate DP

from the harassment. However, in ninth grade,

Hudson discontinued the use of the resource room. The

cycle of harassment then intensified, and Hudson’s

only response was to employ the same type of verbal

reprimands that it had used unsuccessfully in

response to the sixth- and seventh-grade harassment.

Given that Hudson knew that its methods were

ineffective, but did not change those methods, “a

reasonable jury certainly could conclude that at some

point during the... . period of harassment|,] the school

district’s standard and ineffective response to the

known harassment became clearly unreasonable.”

Theno, 377 F. Supp. 2d at 966.

Hudson makes several arguments claiming that its

actions were not clearly unreasonable as a matter of

law, none of which are persuasive. Notably, Hudson

24a

does not attempt to distinguish Theno from the instant

case, but rather cites four different district court cases

it believes are more instructive. Each of these cases is

distinguishable from the instant case or espouses law

contrary to our precedent.®

The thrust of Hudson’s argument is that Hudson

dealt successfully with each identified perpetrator;

therefore, it asserts that it cannot be liable under Title

IX as a matter of law. This argument misses the

* Johnson v. Independent School District No. 47, 194 F. Supp. 2d

939 (D. Minn. 2002), involved an inappropriate phrase (“one time

at band camp”) placed next to a picture in the school yearbook of

plaintiff playing her flute. Jd. at 941-43. When the school became

aware of the sexual nature of the phrase, it attempted to cover the

phrase with nonremovable stickers, a technique that was

successful in the past. /d. at 942-43. Unfortunately, the stickers

proved to be easily removable. Jd. Johnson is distinguishable from

the instant case because Hudson, when confronted with

harassment of DP in ninth grade, implemented a system that it

knew from past experience did not work.

Hudson also cites Johnson and Wilson v. Beaumont

Independent School District, 144 F. Supp. 2d 690 (E.D. Tex. 2001),

for the proposition that so long as a school district takes some

action, that is enough to show that the school district was not

deliberately indifferent. Hudson Br. at 30-31. We rejected this

proposition in Vance. Vance, 231 F.3d at 260.

Finally, Hudson cites KF’s Father v. Marriott, No. CA00-0215-

C, 2007 WL 228353 (S.D. Ala. Feb. 23, 2001), and Vaird v. School

District of Philadelphia, No. CIV. A. 99-2727, 2000 WL 576441

(E.D. Pa. May 12, 2000), as examples of what does not constitute

deliberate indifference; however, these cases are both

distinguishable because both involved only one perpetrator, not

harassment by several individuals aimed at a single student. KF’s

Father, 2007 WL 228353, at *16; Vaird, 2000 WL 576441, at *1

25a

point.” As explained above, Hudson’s success with

individual students did not prevent the overall and

continuing harassment of DP, a fact of which Hudson

was fully aware, and thus Hudson’s isolated success

with individual perpetrators cannot shield Hudson

from liability as a matter of law. T'’heno, 377 F. Supp.

2d at 966. It is for a jury to decide whether Hudson’s

actions were “clearly unreasonable.” Davis, 526 U.S. at

649.

Hudson also asserts that it proactively dealt with

the issue of harassment and bullying through a sexual-

harassment policy in the student handbook, from

which teachers and students were instructed, and

school-wide programing dealing with harassment and

bullying. However, viewing the facts in the light most

favorable to the Pattersons, we cannot consider any of

Hudson’s claimed programs."”

* The dissent likewise misses this point. On four separate

occasions, the dissent claims that Hudson was “100% effective” in

dealing with the harassment of DP. Dissent at 22, 28, 29, 33.

However, one can make such a statement only if he ignores the

realities of DP’s situation. The reprimands of a few individual

harassers did not stop harassment by the many, and it is

undisputed that Hudson was aware of this fact. Hudson Br. at 8-

22 (detailing DP’s reported harassment). Vance teaches that, in

such circumstances, a jury may legally find that a school district

has “failed to act reasonably in light of the known circumstances.”

Vance, 231 F.3d at 261.

' First, the Pattersons presented evidence that the sexual-

harassment policy was not explained to every student and

teacher. See, e.g., J.A. at 145 (Kline Aff. 9 10); J.A. at 228 (Wade

Aff. 4% 9a-9.b). Second, of the programs listed by

Hudson—*“Character Counts,” “40 Developmental Assets,” “Bang,

Bang, You're Dead,” the speakers series, the individual and group

counseling sessions, “Flirting and Hurting Program,” “Concerned

26a

Although Hudson’s brief and oral argument before

us attempted to minimize the harassment suffered by

DP, Hudson does not argue that the district court

improperly found that the Pattersons had met their

burden of showing that the harassment of DP was

severe and pervasive. Thus, we do not consider this

issue. Therefore, we hold that, because Hudson had

knowledge that its methods for dealing with the

overall student-on-student sexual harassment of DP

were ineffective, but continued to employ only those

methods, the Pattersons have shown a genuine issue

of material fact as to the third part of the Davis test

that is sufficient to defeat Hudson’s motion for

summary judgment.

About Teen Sexuality (‘CATS’) Program,” “Peer Mediation

Program,” and “Positive Peers”—the only ones that actually dealt

with student-on-student sexual harassment and bullying (as

opposed to sexual relationships between males and females) and

were actually implemented were “Bang, Bang, You’re Dead” and

“Flirting and Hurting.” See J.A. at 285 (Stutzky Aff. 4 7.c. vii); J.A.

at 493-98 (Mansfieid Dep. at 27-32). Third, the Pattersons’ expert

explained that one-time events such as “Bang, Bang, You're

Dead,” “no matter how powerfully presented, have not been

demonstrated to have a significant lasting impact on a school’s

climate or culture or reducing or eliminating bullying or

harassment.” J.A. at 285 (Stutzky Aff. 9 7.c.viii). Fourth, the

Pattersons presented evidence that the “Flirting and Hurting”

program was not always taught to students. Compare J.A. at 228-

230 (Wade Aff. J] 9 and 9.e) (stating that Wade taught health

during the 2004-2005 school year and did not teach the “Flirting

and Ilurting” program), with J.A. at 495-97 (Mansfield Dep. at 29-

31) (explaining that “Flirting and Hurting” was integrated into

health classes in the 2003-2004 school year). Thus, when viewing

these programs in the light most favorable to the Pattersons, we

must assume that Hudson was not engaged in any proactive

activities

We emphasize that, at this stage of the litigation,

the Pattersons are not required to prove that Hudson

is actually liable for the continued harassment of DP

(i.e., that Hudson’s actions were clearly unreasonable),

but only that there is a genuine issue of material fact

as to whether Hudson was deliberately indifferent to

the harassment. In other words, the Pattersons must

show only that a reasonably jury could find that

Hudson violated Title IX. Viewing the facts in the hght

most favorable to the Pattersons, we bclieve the

Pattersons have met this burden.

Ill. CONCLUSION

Because we conclude that the Pattersons have

demonstrated that there is a genuine issue of material

fact as to whether Hudson’s responses to DP’s reported

student-on-student sexual harassment were clearly

unreasonable in light of the known circumstances, we

REVERSE the grant of summary judgment and

REMAND for further proceedings consistent with this

opinion.

DISSENT

VINSON, District Judge, dissenting. I disagree.

The single issue in this appeal is whether there is a

genuine issue of material fact as to whether the

defendant, Hudson Area Schools, was deliberately

indifferent to the harassment directed at DP. A school

district is not deliberately indifferent unless it knows

of and disregards an excessive risk to the student’s

health or safety. See Farmer v. Brennan, 511 U.S. 825,

28a

837,114S. Ct. 1970, 128 L. Ed. 2d 811 (1994).’ It must

be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists,

and, further, it must actually draw that inference. See

id. Deliberate indifference presupposes that the school

knows of a Title [X violation, but it “refuses to take

action to bring the recipient into compliance. The

premise, in other words, is an official decision by the

recipient not to remedy the violation.” Gebser v. Lago

Vista Indep. School Dist., 524 U.S. 274, 290, 1188S. Ct.

1989, 141 L. Ed. 2d 277 (1998); see also, e.g., Davis v.

Monroe County Bd. of Educ., 526 U.S. 629, 651, 654,

119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999) (deliberate

indifference established when school district knows of

peer harassment, but it “refus[es] to take any action”

and “malkes] no effort whatsoever” to end the

harassment); accord Horner v. Kentucky High School

Athletic Ass'n, 206 F.3d 685, 692 (6th Cir. 2000)

(noting that deliberate indifference is shown when

“school officials are aware of the misconduct but do

nothing to stop it. . .”) (emphasis added).

This standard “does not mean a collection of sloppy,

or even reckless, oversights; it means evidence

showing an obvious, deliberate indifference to [the]

abuse.” See Doe v. Claiborne County, Tenn., 103 F.3d

495, 508 (6th Cir. 1996). Ultimately, a Title IX

recipient is deliberately indifferent to peer-on-peer

harassment “only where the recipient’s response to the

harassment or lack thereof is clearly unreasonable in

light of the known circumstances.” See Davis, supra,

' Farmer is an Eighth Amendment prisoner case, but the standard

is “applicable to the school context.” Williams ex rel. Hart v. Paint

Valley Local School Dist., 400 F.3d 360, 368 (6th Cir. 2005).

29a

526 U.S. at 648. The response must be of such a degree

that it facilitated or “subjected” the victim to

harassment. See id. at 644-47. Although this is a sad

case, the plaintiffs have clearly not met the high legal

standard for deliberate indifference. See Gebser, supra,

524 U.S. at 304 (Stevens, J., dissenting) (noting that

only “few Title IX plaintiffs . . . will be able to recover

damages under this exceedingly high standard”).”

The relevant inquiry in determining whether the

schoo] district was deliberately indifferent is to

examine its responses to the known instances of

harassment. DP claims that he was harassed almost

every day, but the record reflects that he did not report

* The Supreme Court his emphasized that courts “must bear in

mind that schools are unlike the adult workplace and that

children may regularly interact in a manner that would be

unacceptable among adults. Indeed, at least early on, students are

still learning how to interact appropriately with their peers.” See

Davis, supra, 526 U.S. at 651 (citation omitted). I do not minimize

the harassment at issue for it was very serious, but it appears

that at least some of DP’s peer-related problems were caused by

his heightened sensitivity to the unfortunate reality that “in the

school setting, students often engage in insults, banter, teasing,

shoving, pushing, and gender-specific conduct that is upsetting to

the students subjected to it.” See id. at 651-52. According to his

teachers, DP was at times highly sensitive and had poor social

skills which made it difficult for him to “distinguish[} between

camaraderie and being picked on,” which, in turn, alienated him

from the other students. See Joint Appendix (“J.A.”) at 553-54;

accord id. at 102. It should be noted that these socialization and

peer-related problems existed long before he entered the Hudson

school district, apparently even dating back to daycare. See id. at

532.

30a

much of the harassment.’ When he did report the

harassment at times throughout the years, he

sometimes could not identify the harassers.*

Obviously, the school district is not responsible for

failing to stop harassment of which it was not made

aware, nor can it be held responsible for failing to

punish harassment by unknown individuals.

When DP complained and the harassers were

identified, however, the defendant responded to each

incident with action appropriate to the nature and

severity of the harassment. The students who called

DP “Mr. Clean” were taken to the school counselor’s

office for a meeting with DP, where they were

counseled and then apologized. The student who wrote

the offensive remarks on the back of his note cards was

swiftly reprimanded and he, too, apologized. The

student who defaced DP’s planner was orally

reprimanded, while a student who taped the “Mr.

Clean” poster to his locker was suspended from school]

for one day. With respect to the locker room assault

after baseball practice, NH was reprimanded and his

parents were notified (even though DP told the

authorities that NH was only “playing around”), and

* To point to one example, the majority states that DP was teased,

called names, and pushed and shoved “o:: a daily basis” while he

was in the sixth grade. Maj. Op. at 2. Despite the daily nature of

this harassment, DP admits that he made «nly “a total of a couple

reports regarding [the] incidents that took place” during that

school year: one or two reports to Principal Greg Rozeveld and

teacher Gwen Marry. See J.A. at 648.

* DP was unable to say, for example, who vandalized his hail

locker. The school conducted an investigation into the matter, as

the majority acknowledges, see Maj. Op. at 7, but it was unable to

determine who was responsible.

3la

LP was suspended for the rest of the school year,

criminally prosecuted, and formally expelled.

Significantly, as the district court observed, and as the

majority appears to recognize, no_ identified

perpetrator ever harassed or caused problems for DP

after being disciplined by the school. There were no

repeat offenders, so the only reasonable conclusion

from the undisputed facts in the record is that the

school’s actions, with respect to those offenders, were

100% effective.°

In addition to investigating all the reported claims

of harassment and punishing the offenders so that

they never once re-offended, the defendant took

additional steps to help DP. For example, his science

teacher, Ted Adams, agreed to be extra vigilant in

looking out for him. See J.A. at 825. DP’s mother

testified that this gave her “a new sense of relief”

because “Mr. Adams was always in the hall watching

for [DP], keeping an eye out for him.” Jd. Other

teachers agreed to keep watch on him as well. Jd. at

761, 813. Another of his teachers offered suggestions

on how to help DP better cope with his peer-related

problems, such as enrolling in extracurricular social

° The incident that took place in the seventh grade when DP

intervened in a dispute between two female students and, in the

process, was slapped by one of the girls, see Ma). Op. at 3, does not

give rise to an inference of deliberate indifference. He told the

teacher what occurred, but he claims that nothing was done.

Assuming that to be true, it is apparent that the slap was

unrelated to the type of harassment at issue in this case. By his

own testimony, DP was not the intended victim --- he got involved

because he was defending the other girl --- nor does it appear that

this incident was in any way related, or similar, to the

harassment which is the subject of this litigation. Indeed, he

never had any other problems with tne girl. See J.A. at 677-79.

32a

programs like band, science olympiad, and other.

activities. Id. at 525, 817. School counselor Susan

Mansfield invited DP to attend both group and

individual counseling sessions for students having

problems with their peer relationships. Jd. at 470-71.

The school district also took the unusual step of

sending a school social worker and psychologist to his

home to meet and evaluate him during his (and their)

summer break. /d. at 374, 570. He was given extra

time to take his exams, he was given seating

preferences to avoid students with whom he might

have problems, and he was referred to a social worker

for counseling several times each month. See id. at 42.

The school provided DP with an_ individualized

evaluation program following his ninth grade year. He

earned As and Bs, and, as part of his curriculum, he

took college courses (at school c ‘strict expense) which

allowed him to take advanced classes, to become fluent

in Japanese, and to graduate early from high school.

The school took additional steps that warrant closer

review and discussion. First, Principal Greg Rozeveld

offered to meet DP every day to provide assistance

while he was in middle school, but the majority seems

to fault the school district for the timing and

circumstances under which these meetings occurred.

See Maj. Op. at 3-4. When DP was in the seventh

grade, the Pattersons spoke to Principal Rozeveld and

told him that they were planning to withdraw DP from

school. The parties had a very long meeting during

which, according to Ms. Patterson, Mr. Rozeveld said

that he “really hated to lose the good ones, the good

kids,” and he asked if there was “anything he could do

to help.” He offered to meet and counsel DP every day

and “start interceding himself.” DP’s mother explained

that Principal Rozeveld offered to meet with DP for

33a

two interrelated reasons: he wanted to help him

academically, and he wanted to “build[] the trust” so

that DP would not feel like he was “all alone.” The

Pattersons were “grateful for somebody offering to

help,” so they accepted Principal Rozeveld’s offer and

kept DP in school. DP’s mother testified that the first

time DP met Principal Rozeveld it was “very nice.”

However, the next two or three times that DP went to

his office, Mr. Rozeveld was in a meeting or otherwise

unavailable. DP’s mother explained to DP that

“sometimes that ‘s going to happen, emergencies come

up.” It appears that because Principal Rozeveld (as

head of the middle school) could not always be

guaranteed to be in his office at the time DP’s teachers

sent him down during class, it was decided that DP

would be sent down at the end of the day along with

the students who were having their planners signed.

DP did this and met with Principal Rozeveld for a

number of weeks, but DP then decided he did not want

to continue going because he was concerned the other

students might start to think he was a “problem

student.” See J.A. at 844-850. That was his choice. It is

undisputed that Principal Rozeveld offered to, and did,

regularly rneet with and counsel DP until DP stopped

the sessions. It is also undisputed that Principal

Rozeveld did this to keep DP in school, to improve his

grades, to build his trust, and to prevent him from

feeling alienated. That DP might have preferred to

meet with Mr. Rozeveld at a different time and under

different circumstances does not take away from the

fact that --- rather than being deliberately indifferent

--- Mr. Rozeveld was unquestionably trying to help DP

through this difficult time.

Second, the school district placed DP in a “resource

room” for part of each day while he was in the eighth

34a

grade which, everyone agrees, worked very well for

him. The majority states that the resource room

reduced the actual amount of harassment directed at

DP, see Maj. Op. at 15-17, n.7, and it faults the school

district for discontinuing that room once DP entered

high school. See id. at 5-6, 15-17. The undisputed facts

do not support such an inference. It is true that the

resource room was available to DP for one hour each

day while he was in the eighth grade. He went there to

meet his science teacher, Mr. Adams, and “just kind of

wind my day down with him, do my homework.” See

J.A. 621-22. It was the equivalent of study hall.

Because DP claims that the harassment occurred in

his classes, in between his classes, in the hallways, at

lunch, and in the locker areas, it simply does not follow

that a study hall for an hour each day could have

reduced the harassment to an appreciable degree. In

fact, not even DP claims that it did. Rather, he

testified that eighth grade was “going good” on its own,

and he had “no clue” what caused this positive

turnaround. See id.° What is established by the

undisputed facts is that the time spent with Mr.

Adams helped DP cope with his peers which, in turn,

helped him better deal with the harassment and learn

° I emphasize that it was DP himself who testified that the

resource room was the equivalent of a study hall (“i would just

kind of wind my day down with [Mr. Adams], do my homework”),

and, furthermore, not even he claims that it reduced the actual

harassment (“Q: What happened to cause that turnaround? A: |

have no clue.”). J.A. at 621-22. DP explained that other students

in the resource room needed help with their homework, but he

“just needed Mr. Adams in there in case I needed him.” DP thus

benefitted from time in the resource room because Mr. Adams was

his “go-to person” and “one of the only staff members at the school

that I felt like I could trust.” See DP’s Depo. at 67-69.

35a

more effectively. Indeed, DP testified that even though

he was sometimes picked on and called names in the

eighth grade, the harassment did not “bother” him

during the time that he was meeting regularly with

Mr. Adams. See J.A. at 622. This distinction between

meeting with Mr. Adams and being in the resource

room is important, for there is nothing in the record to

indicate that the resource room itself reduced the

actual amount of harassment, as the majority

suggests. Rather, it appears that the resource room

was effective because of Mr. Adams. DP could not

continue getting daily assistance from Mr. Adams once

he entered high school, however, because Mr. Adams

worked exclusively for the middle school. Nevertheless,

even though he did not work for the high school, the

defendant granted Mr. Adams special authorization to

meet with DP for 20-30 minutes each week (which he

did), even after DP entered the ninth grade. See J.A.

854-57. If the defendant was deliberately indifferent to

DP and his situation, surely it would not have

authorized the middle school science teacher to meet

and counsel him every week after he started high

school. No reasonable finder of fact could find that

there was deliberate indifference with respect to Mr.

Adams and the resource room.

And lastly, the school district had various policies

and programs dealing with harassment and bullying.

All students were well aware that such conduct would

not be tolerated. The student athletic code, for

example, provided that students were expected to

“behave appropriately in the locker room. Horseplay

and vandalism will not be tolerated by the coaches or

the athletic department.” See J.A. 54. Violations of this

policy were punishable as provided for under the code.

The student handbook (which applied to all students,

36a

not just athletes) prohibited vandalism, physical

confrontation, and inappropriate language, and it also

provided for punishment to violators. See id. at 82-88.

There were two school-wide programs implemented

which dealt specifically with peer harassment and

bullying, “Bang, Bang, You’re Dead” and “Flirting and

Hurting.” The majority refuses to consider the policies

and programs because it finds evidence that they were

“not explained to every student and teacher.” See Maj.

Op. at 18 n.10. For this, the majority cites an affidavit

from a former student and classmate of DP’s who,

although she recalls the teachers reviewing the

student code of conduct with students, does not “recal|

ever receiving any serious instruction about bullying,

teasing or harassment of other students.” See J.A. at

145 (emphasis added). ‘The majority next relies on an

affidavit by a temporary substitute teacher (DP’s

brother) who taught at DP’s middle school for less than

four months and who affirms that he did not receive

instruction on the policy for bullying and harassment.

See J.A. at 228. The majority also cites to an affidavit

signed by the plaintiffs’ expert witness who has opined

that, in any event, “no matter how powerfully

presented, [one-time programs such as “Bang, Bang,

You’re Dead”] have not been demonstrated to have a

significant lasting impact on a school’s climate or

culture or reducing or eliminating bullying or

harassment.” See Maj. Op. at 18 n.10. Although this

evidence (accepted as true for purposes of the

summary judgment motion) may speak to the overall

effectiveness of the policies and programs, and may be

relevant if negligence were the standard, its relevance

to the issue of deliberate indifference is questionable.

Cf. Sanchez v. Alvarado, 101 F.3d 223, 229 (1st Cir.

1996) (defendant had an inefficient and ineffective

anti-harassment policy and “leisurely” responded to

37a

harassment complaints; whether the policy could have

been more effective and better-implemented may have

some bearing on whether defendant was negligent, but

noting that is not the standard for deliberate

indifference). The affidavits relied on by the majority

do not create a genuine issue of material fact on the

issue of deliberate indifference. The majority has not

cited any case law, and my own research has

uncovered none, holding that good faith (although

inefficient) policies and programs addressing peer

harassment and bullying may be considered in the

deliberate indifference context only if the students

subjectively perceive them to be “serious instruction,”

only if temporary substitute teachers are aware of

them; and only if they have been first shown to have

“significant lasting impact.”

In light of the above, it seems to me that the

district judge properly found that there were no

genuine disputed issues of material fact and that, as a

matter of law, the school was not deliberately

indifferent. As already noted, deliberate indifference is

a high standard to meet, and the analysis is very

deferential to schools. Relying on Davis, supra, the

Sixth Circuit has described the appropriate legal

standard as follows:

The recipient is liable for damages only where

the recipient itself intentionally acted in clear

violation of Title [IX by remaining deliberately

indifferent to known acts of harassment. See

Davis, 526 U.S. at 642, 119 S. Ct. 1661, 143 L.

Ed. 2d 839 (discussing Gebser v. Layo Vista

School Dist., stating liability arose from

recipient’s official decision not to remedy the

violation). “(T]he deliberate indifference must,

38a

at a minimum, ‘cause [students] to undergo

harassment or make them liable or vulnerable’

to it.” Davis, 526 U.S. at 645, 119 S. Ct. 1661,

143 L. Ed. 2d 839.

Vance v. Spencer County Pub. School Dist., 231 F.3d

253, 260 (6th Cir. 2000). The Sixth Circuit’s language

is particularly on point in this case:

The recipient is not required to “remedy” sexual

harassment nor ensure that students conform

their conduct to certain rules, but rather, “the

recipient must merely respond to known peer

harassment in a manner that is not clearly

unreasonabie.” Davis, 526 U.S. at 648-649. The

deliberate indifference standard “does not mean

that recipients can avoid liability only by

purging their schools of actionable peer

harassment or that administrators must engage

in particular disciplinary action.” Id. at 648.

The standard does not mean that recipients

must expel every student accused of

misconduct. See id. Victims do not have a right

to particular remedial demands. See _ id.

Furthermore, courts should not second guess

the disciplinary cCecisions that school

administrators make. See id.

“The Supreme Court has pointedly reminded us,

however, that this is ‘not a mere

“reasonableness” standard’ that transforms

every school disciplinary decision into a jury

question.” Gant, 195 F.3d at 141 (quoting Davis,

526 U.S. at 649). In an appropriate case, there

is no reason why courts on motion for a directed

verdict could not identify a response as not

39a

“clearly unreasonable” as a matter of law. See

Gant, 195 F.3d at 141.

Id. The majority glosses over this high legal standard

rather quickly, see Maj. Op. at 12-13, and it seizes

upon the following additional language in Vance:

[W]here 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.

Where a school district has actual knowledge

that its efforts to remediate are ineffective, and

it continues to use those same methods to no

avail, such district has failed to act reasonably

in light of the known circumstances.

231 F.3d at 261. The majority seems to interpret these

two sentences to mean that even if the school district

takes disciplinary action in response to all known

harassment, and even if that action is 100% effective

against the individual harassers, it may be liable if

there is subsequent harassment by new offenders.

There is no authoritative case law to support such an

interpretation. For this sweeping expansion of Vance,

the majority relies heavily on a single out-of-ciycuit

district court case, Theno v. Tonganoxie Unified

Dist. No. 464, 377 F. Supp. 2d 952 (D. Kan. 200). The

district judge in that case did, indeed, reach the same

conclusion as the majority. However, there/are two

reasons why it cannot be relied upon.

First, it is merely one district judge’s ppinion and

has no authoritative value. Indeed, thys very same

panel recently noted that intra-circuit/district court

cases are of limited value. See United/States Student

40a

Ass’n Foundation v. Land, 546 F.3d 373, 383 n.8, 385

n.10 (6th Cir. 2008). It seems to me, then, that the

opinion of a single district court judge from outside

this circuit is an even thinner reed upon which to base

an expansion of this court’s jurisprudence.

Second, and more significantly, it is not persuasive

regarding the applicable legal standard. | do not

believe the district judge’s opinion in Theno and the

majority's opinion today are justified by the Sixth

Circuit’s analysis in Vance, nor are they otherwise

consistent with any circuit’s case law. The harassment

in Vance was far more egregious, and the response

thereto was far less appropriate, than in this case. The

student in Vance was subjected to widespread

harassment and physical abuse. She was the victim of

frequent and vulgar name-calling (“whore” and “gay

girl,” etc.), and she was touched inappropriately in

almost every class. She was stabbed in the hand with

a pen during one assault, and, on another occasion,

two students held her down and tried to rip off her

clothes while another student took off his pants and

said that he was going to rape her. School officials

“talked to” the offenders, but, incredibly, did not take

any further disciplinary action against them. The

harassing conduct not only continued, but it increased.

In fact, the offenders confronted her after they had

been “talked to” specifically in order to harass her

again. Even though “talking to the offenders’ produced

no results, [the school] continued to employ this

ineffective method.” See 231 F.3d at 262. It was this

factual background which led this court to conclude

that if a school district “has actual knowledge that its

efforts to remediate are ineffective, and it continues to

use those same methods to no avail, such district has

failed to act reasonably in light of the known

4la

circumstances.” Jd. at 261. Vance thus confronted the

situation where the harassing students re-offended

after they were disciplined (t.e., the discipline

“produced no results”), yet the school knowingly

continued to use the same ineffective method. This

conclusion has no application whatsoever to the

present case where the reprimands and other forms of

discipline were extraordinarily effective as to the

known offenders. The facts of this case are plainly

distinguishable from Vance. Again, the defendant here

investigated DP’s complaints, and the offending

students were counseled, reprimanded, suspended,

and/or expelled, depending on the nature of their

specific misconduct. No student who _ received

discipline ever bothered DP again. The undisputed

facts thus establish that the school district’s actions

were 100% effective with respect to those students.

On this point, a decision out of the Third Circuit is

very similar and persuasive. See Doe vu. Bellefonte Area

School Dist., 2003 WL 23718302 (M.D. Pa. Sept. 29,

2003), affd 106 Fed. Appx. 798 (3d Cir. Aug. 4, 2004).’

The student there was ridiculed and harassed by his

fellow students for years. He was called “queer,” “gay

boy,” “pixie,” “faggot,” and “peter-eater,” among other

things. He was pushed at school and physically

assaulted at the bus stop. He reported some (but not

all) of the bullying and harassment, and the school

took varying cegrecs of disciplinary action when the

harassment was reported. Some of the offenders were

? Although this is an unpublished case and has no precedential

value in this circuit, a decision of a three-judge panel from a sister

court of appeals has to be more persuasive than a single district

judge’s opinion from outs:de this circuit.

42a

given verbal warnings and reprimands, some were

counseled about the seriousness of the harassment,

some were given detention, and others were

suspended. Notably, every time the school warned or

disciplined an offender, “that perpetrator never

bothered Doe again. The School District’s method of

dealing with specific, identified perpetrators involving

Doe was one hundred percent efiective.” 2003 WL

23718302, at *9. Based on the 100% success rate with

the individual offenders, coupled with the school

agreeing to be extra “vigilant” of the problems and

having an anti-harassment policy, the district court

granted summary judgment in favor of the school

district because “no reasonable finder of fact could

conclude that the School District was deliberately

indifferent to the harassment of Doe, or that its

responses to the harassment of which it was aware

were clearly unreasonable.” Jd. at *9-10

The plaintiff appealed, arguing, as the plaintiffs do

here, that the school “should have treated the pattern

of harassment as a systemic problem,” and its failure

to do so was deliberate indifference. 106 Fed. Appx. at

799. He argued that the school’s response was clearly

unreasonable in light of the known circumstance that

the harassment continued, even though “each

subsequent incident involved a student other than the

student that had been disciplined in any of the prior

incidents of harassment directed at Doe.” Jd. In

affirming, the Third Circuit relied upon the Supreme

Court’s guidance to lower courts in Davis, and held:

The relevant inquiry for purposes of evaluating

whether the School District here was

deliberately indifferent to known circumstances

of harassment is to review its response to

43a

reported incidents of harassment. Each and

every time Doe complained, the School District

responded with reasonable actions which

eliminated further harassment between Doe and

the student(s) involved in each incident.

Students were suspended and others were given

warnings and counseled regarding’ the

seriousness of harassment. In addition, the

School District circulated memoranda to faculty .

and staff putting them on notice of the reported

harassment of Doe and requesting assistance to

prevent further incidents. Doe was provided

with a special means of reporting any additional

harassment through the school psychologist,

whom he knew personally. The School District

also held assemblies and enacted policies

addressing peer-to-peer harassment. Such

actions are not clearly unreasonable.

Nor was. the School District deliberately

indifferent because it did not undertake the

specific remedial action that Doe desired given

what he perceived to be the “systemic nature of

the harassment.” Davis does not require school

districts to purge their schools of actionable

peer harassment or to engage in particular

disciplinary action. Id. at 648. We will refrain

from second-guessing the disciplinary decisions

made by the School District which effectively

eliminated each reported source of harassment.

We do not minimize the unfortunate verbal

abuse that Doe was subjected to during his high

school years, but the School District was not

deliberately indifferent because additional

harassment occurred under new and different

44a

circumstances. We will affirm the judgment of

the district court.

Id. at 800 (emphasis added).®

More importantly, it seems to me that the

majority’s decision today is inconsistent w ‘h a recent

decision from this court. The plaintiff in S.S. v.

Eastern Kentucky Univ., 532 F.3d 445 (6th Cir. 2008),

who had physical and mental disabilities, was

harassed by fellow students. The harassment was

systemic and it lasted for three years. Among many

other things, the students called him “gay,” “queer,”

“bastard,” and “retard;” they pushed and tackled him

in the hallway and lunchroom; they threw paper

towels at him that had been soaked with water or

urine; they threw bleach on him in science class; and

they slammed his head into a glass sneeze-guard, the

* Bellefonte, as noted, is quite similar to this case. The Third

Circuit found it significant that the offending students were given

warnings and counseled about the seriousness of their actions;

each time the school took action the harassment by thai particular

student stopped; the teachers were advised and agreed to be

vigilant about future harassment; the plaintiff was given the

means to report harassment through a faculty member whom he

knew and trusted; and the schoo] district had an anti-harassment

policy. Each of these factors is present here. I also note that in

deciding Bellefonte, the Third Circuit impiiedly rejected the

interpretation of Vance suggested by the majority today, even

though it was urged by the appellant on appeal. See generally

2004 WL 3759879, at *20-21, *25-28 (appellant’s brief)

(interpreting and citing Vance for the view that if a school district

discovers that its response to known harassment is inadequate

against “systemic harassment” (even though it may be effective

against the individual harassers), then the school must take

“additional actions” to avoid “new liability”).

45a

latter incident necessitating a trip to the hospital and

treatment for a sprained neck. On one occasion, a

student sexually assaulted the plaintiff by grabbing

plaintiffs genitals and saying “Now J’ll see if you are

a woman.” After a fight between the plaintiff and “one

of his frequent attackers,” the police were called to the

school.? When these incidents were reported, “they

were investigated, and responsive action was taken.”

See S.S. v. Eastern Kentucky Univ., «21 F. Supp. 2d

718, 728 (E.D. Ky. 2006). The school responded to the

incidents of which it was made aware by conducting

interviews to decide who was at fault and disciplining

those who were; instructing S.S.’s classmates not to

taunt him; speaking to the students about the name-

calling; adding extra monitoring; at times separating

S.S. from students with whom he had problems;

assisting the police in regards to the fight noted above;

and contacting the parents of students involved.

Despite these efforts, the harassment continued,

and S.S. filed suit against the school under the

Americans with Disabilities Act.’ He argued, in

* These facts are set forth in the district court opinion granting

summary judgment for the defendant, 431 F. Supp. 2d 718(E.D.

Ky. 2006), which the Sixth Circuit stated was “an accurate

description of the numerous incidents that underlie S.S.’s claims.”

See S.S., supra, 532 F.3d at 449. Although there was a dispute as

to whether all of the events happened as the plaintiff described,

or whether he was himself responsible for initiating many of the

confrontations, the court assumed, as it was required to do on

summary judgment, that the plaintiffs ¢,identiary assertions

were true. See, supra, 431 F. Supp. 2d at 727-28.

” Although the action was not filed under Title IX, the Sixth

Circuit evaluated the ADA claim pursuant to, and applied the

46a

relevant part, that the school did not, adequately

respond to, and end, the harassment. The district court

granted summary judgment in favor of the school, and,

on appeal, the Sixth Circuit confined its analysis to the

deliverate indifference issue. To illustrate the

distinction between when the issue should be left for

the jury to decide, and when it can be decided on

summary judgment, this court discussed two district

court cases that it believed were “instructive,” K.M. uv.

Hyde Park Cen:. School Dist., 381 F. Supp. 2d 343

(S.D.N.Y. 2005); Biggs v. Board of Educ. of Cecil

County, Maryland, 229 F. Supp. 2d 437 (D. Md.

2002).'' In K.M., the student endured peer harassment

for years. The school had notice of the harassment, but

it took no steps to help or protect him and no one was

disciplined. On those particular facts, the district court

properly denied summary judgment for the school.

Biggs, by contrast, involved similar peer-on-peer

harassment, but in that case the school took action

whenever there was a reported incident, including

counseling the victim, meeting with the offenders and

threatening them with suspension, notifying the

parents, and alerting teachers to the problem. Because

such responses established that the school district was

not deliberately indifferent, the district court properly

granted summary judgment for the school. The Sixth

Circuit observed that the facts of S.S. “closely

mirrored” Biggs and it went on to conclude that the

deliberate indifference standard under, the framework set forth

in Davis. See 532 F.3d at 453-54.

" T note that the Sixth Circuit looked to these out-of-circuit

district court cases merely for illustrative purposes and not, as the

majority apparently does with T’heno, as a significant basis for its

holding.

47a

school was not deliberately indifferent as a matter of

law, even though its efforts were unsuccessful and

even though the widespread harassment continued.

This court explained that “meeting with the students,

communicating with parents, and disciplining the

offending students” simply did not “give rise to an

inference that [the school] was deliberately indifferent

to S.S.’s situation or that it had an attitude of

permissiveness that amounted to discrimination.” See

532 F.3d at 455-56. Insofar as the defendant here took

essentially the same action (investigating, counseling,

extra monitoring by staff, seating preferences to

separate DP from problem students, meeting with and

disciplining the students found at fault, contacting

parents, and assisting the police --- the sum of which

was 100% effective against the individual harassers),

this case is a close fit to the scenarioin S.S.

That is not to say, of course, that a school may

avoid liability merely by taking some action, however

minor, in response to known harassment. See Vance,

supra, 231 F.3d at 260 (rejecting the argument that as

long as a school district “does something in response to

harassment,’ then it has not acted with deliberate

indifference) (emphasis added). The pertinent inquiry

is whether the response was appropriate under the

particular circumstances. Quoting the Title IX

guidelines, Vance described an “appropriate response”

to known harassment as follows:

[Schools] should take immediate and

appropriate steps to investigate or otherwise

determine what occurred and take steps

reasonably calculated to end any harassmer

eliminate « hostile environment if one has bee «

48a

created, and prevent harassment from occurring

again.

Id. at 261 n.5 (emphasis added). Thus, a school acts

appropriately if it investigates what has already

occurred, reasonably tries to end any harassment still

ongoing by the offenders, and seeks to prevent the

offenders from engaging in such conduct again. That is

exactly what happened in this case. It is manifestly

unreasonable to read the guidelines and Vance as

holding that a school district may be responsible for

not preventing future harassment by entirely separate

and new harassers. To suggest otherwise, as the

majority does, comes extremely close to requiring that

schools be “purged” of all offensive behavior and be

completely harassment-free, which the Supreme Court

and Sixth Circuit have unequivocally held is not

required --- or possible. See Vance, supra, 231 F.3d at

260-61 (citing and quoting Davis).

Whether the defendant, from an_ objective

viewpoint, could have (or should have) done more to

stop the harassment is not the appropriate inquiry.

“Lack of objective reasonableness, t.e., a failure to act

as a reasonable person would have acted, does not by

itself equal deliberate indifference.” See Brooks v.

Celeste, 39 F.3d 125, 129 (6th Cir. 1994). Nor does

liability turn upon whether the school successfully

remedied the harassment. The only question is

whether the school “intentionally acted in clear

violation of Title IX by remaining deliberately

indifferent to known acts of harassment,” and whether

its response was so “clearly unreasonable” and

inadequate that it facilitated and subjected DP to

harassment. Vance, supra, 231 F.3d at 260; see also

Davis, supra, 526 U.S. at 642-47. Based on the

49a

undisputed facts in the record, any reasonable juror

would have to answer that question “No.” Therefore, as

a matter of law, the district court properly held that

the defendant was not deliberately indifferent.

For these reasons, I believe the district court’s

decision should be affirmed and I respectfully dissent.

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CASE NO. 05-74439

[Filed November 28, 2007]

DAVID PATTERSON and

DENA PATTERSON,

Plaintiffs,

Vv.

HUDSON AREA SCHOOLS and

KATHY MALNAR,

Defendants.

i ee ee ee ee

HON. LAWRENCE P. ZATKOFF

OPINION AND ORDER

AT A SESSION of said Court, held in the

United States Courthouse, in the City of Detroit,

State of Michigan, on the 28th day of November, 2007.

PRESENT: THE HONORABLE LAWRENCE P.

ZATKOFF UNITED STATES DISTRICT JUDGE

5la

I, INTRODUCTION

This matter is before the Court on Defendants’

Motion for Summary Judgment. Plaintiffs have filed a

response. Defendants have since replied. The Court

finds that the facts and legal arguments pertinent to

Defendants’ Motion are adequately presented in the

parties’ papers, and the decision process will not be

aided by oral arguments. Therefore, pursuant to E.D.

Mich. Local R.7.1(e)(2), it is hereby ORDERED that

the Motion be resolved on the briefs submitted,

without this Court entertaining oral arguments. For

the reasons that follow, Defendants’ Motion for

Summary Judgment is GRANTED.

Il. BACKGROUND

When Dane Patterson (“Dane”) was 10 years old, he

received psychological treatment from Dr. Gretchen

Warwick, PhD (“Dr. Warwick”). At that time, Dr.

_ Warwick treated Dane for anger issues related to

family dynamics. According to Dr. Warwick, those

issues were resolved prior to 2002. On May 2, 2002,

Dane began seeing Dr. Warwick again, allegedly due

to issues that arose as a result of his attendance at

Hudson Middle School while he was in sixth grade.

Specifically, Dane claimed he was subject to teasing,

name calling and pushing and shoving by other

students. Dr. Warwick concluded Dane was

distraught, anxious and angry due to school related

issues.

In seventh grade at Hudson Middle School, Dane

experienced (1) daily name calling, ineluding such

things as “fag,” faggot,” “gay,” “fat pig,” “man boobs,”

and “big boobs” (allegedly more than 200 times that

52a

year); (2) being called “Mr. Clean” (allegedly a

derogatory term that referred to a lack of pubic hair)

on a regular basis; (3) being jostled and pushed in the

hallways on a frequent basis (allegedly more than 200

times that year); (4) being slapped by a seventh grade

girl named Brittany when Dane attempted to

intervene on behalf of a girl being teased and taunted

by Brittany; (5) being teased by a teacher, John

Redding (“Mr. Redding”), later that same day when

Mr. Redding asked Dane in front of the class “How

does it feel to be slapped by a girl?”; and (6) after

withdrawing from playing on the seventh grade

basketball team to focus on his fluctuating grades, at

least twice being accused of being a “quitter” by Mr.

Redding. By the end of the first semester of seventh

grade, Dane wanted to quit school. At that time,

Principal Greg Rozeveld (“Principal Rozeveld”) offered

to mentor Dane through the struggles Dane was

experiencing. The parties disagree as to the reasons

why, but Mr. Rozeveld did not perform that task for

very long.

During sixth and seventh grade at Hudson Middle

School, Plaintiffs state that they discussed with

Hudson Middle School personnel issues Dane was

experiencing, as follows:

1. Sixth Grade:

a. Dave Patterson spoke to a teacher about

teasing directed at Dane and how Dane felt

upset and humiliated.

b. Plaintiffs attended parent teacher

conferences to talk about the name calling,

etc.

Cc.

53a

Plaintiffs met with Principal Rozeveld to

discuss the pushing, shoving and name

calling of Dane.

2. Seventh Grade:

©.

Plaintiffs and school counselor Susan

Mansfield (“Ms. Mansfield”) discussed the

fact that Dane was having a hard time at

school in November and/or December, 2002.

Plaintiffs and several teachers met _ to

discuss Dane’s anxiety about being (i) bullied

and teased, (ii) the victim of sexually

offensive name calling, and (iii) pushed into

lockers.

Plaintiffs met with Principal Rozeveld just

before Christmas 2002 about Dane not

wanting to come back to school because of

teasing, bullying, and being called “gay”,

“fag”, “queer.” Plaintiffs also discussed the

impact of those things on Dane’s schooling,

his feelings of being ostracized and his

suffering grades. Names of perpetrators

allegedly were provided. They also discussed

the incident of Dane being slapped by

Brittany and Mr. Redding teasing Dane

about it.

During the second semester of seventh

grade, Plaintiffs discussed problems Dane

endured with Ms. Mansfield and other staff.

Plaintiffs communicated with school staff

throughout Dane’s seventh grade year over

54a

academic and social issues. The parents

asked staff what, if anything, Dane was

doing to cause his peers to tease and taunt

him. Plaintiffs claim that they were told

consistently that Dane was doing nothing

wrong.

School records reflect that Dane’s grades fluctuated

while he was in seventh grade. His progress reports

often reflected failing grades, but his final grades were

much higher (usually As and Bs). Plaintiffs claim that

during seventh grade, Dane was withdrawn and even

resorted to eating lunch in the band room by himself.

Near the end of the 2002-2003 school year (seventh

grade), Ms. Mansfield spoke with Lenawee

Intermediate School District Social Worker Tammy

Cates (“Ms. Cates”) about a special education review.

Ms. Mansfield and Ms. Cates filled out a referral form

and had Mrs. Patterson sign it. Ms. Cates and Brian

Moeckel (the School Psychologist) conducted an

evaluation of Dane in early summer. At the beginning

of Dane’s eighth grade year, a Multi-Disciplinavy

Evaluation Team evaluated Dane for special education

services. That team found Dane to be emotionally

impaired under the Individuals with Disabilities

Educational Act. An Individual Educational Placement

Team (“IEPT”) was then convened and a special

education program was developed for Dane. As part of

the program, Dane was assigned to teacher Ted

Adams’ (“Mr. Adams”) resource room during sixth

hour. With the aide of Mr. Adams, Dane was able to

cope with eighth grade and had a good year.

Upon entering ninth grade at Hudson High School

in the fall of 2004, Dane’s IEPT program was altered.

5da

Mr. Adams was no longer available for resource room

services because he was a middle school teacher.’

Hudson High School Principal Michael Osborne

(“Principal Osborne”) felt resource room services were

not appropriate for Dane. Dane, per the IEPT’s

decision, remained in general education. Plaintiffs

claim that the teasing and bullying Dane experienced

in seventh grade began anew, at the same level as in

seventh grade. Shortly after classes resumed, Dane

allegedly began to be called names such as “gay,” “fag,”

“faggot” and “queer” multiple times daily. The jostling,

bumping, pushing and shoving in the hallways also

resumed between classes. That fall, three students

began to tease Dane about “Mr. Clean.” The three

students involved were called into a meeting with

Dane and Ms. Mansfield. At that meeting, the three

students apologized. Dane admits that none of the

three ever bothered him again. That same fall, another

student, Joe, took Dane’s planner in a classroom and

inscribed it with (a) sexually derogatory slurs such as

“TJ love penis” and “T lick it in the ass,” and (b) sexually

explicit pictures of buttocks and penises. Joe was

verbally reprimanded by Ms. Mansfield, and Dane

never had a problem with Joe again.

In Dane’s history class, students were allowed to

use note cards during presentations. One student

wrote a series of words on the back of some of his notes

cards (the side visible to his classmates, including

Dane). The first card said “Dane,” the second “is,” the

third “a,” and the fourth “fag.” This apparently caused

intense laughter in the class, although the teacher in

‘Ultimately, Mr. Adams voluntarily served as a contact person for

Dane for 25 to 30 minutes a week while Dane was in ninth grade.

56a

the room never saw the incident. After the incident

was reported by Dane, Ms. Mansfield called the

student into her office, told the student that such

action might be sexual harassment and verbally

reprimanded the student. The history teacher also

reprimanded the offending student. In addition, that

student was reported to the administration by

Plaintiffs and Ms. Mansfield. Dane did not have any

subsequent problems with that student.

In March 2005, Dane’s gym locker was broken into,

his clothes were removed from the locker and urinated

on, and his tennis shoes were thrown into the toilet.

School officials were unable to ascertain the

perpetrators and no punishment was imposed. Later

that spring, Dane arrived at his locker in the hallway

to find a poster of “Mr. Clean” taped to it. After the

incident was reported, school officials determined that

two students were involved. Principal Osborne

verbally reprimanded one student, Kyle, because it

was his first offense. The second student, Jeff, was

suspended for a day because he had committed a prior

(unrelated) offense. Dane did not experience any

problems with Kyle or Jeff thereaiter.

At about the same time, Dane’s locker was

vandalized by students who used permanent markers

to write such things as “gay,” “fag,” “queer” and other

similar words up and down the locker. In addition, a

graphic picture was drawn of a penis being inserted

into what appeared to be a rectum. The inside of

Dane’s locker also had writing on it that stated “suck

your mother’s tits,” “you suck penis” and other similar

kinds of things. School administrators immediately

had Dane’s locker cleaned and investigated this

incident. Potential witnesses and students with lockers

57a

in the vicinity of Dane’s locker were interviewed, but

the administrators could not ascertain who committed

the acts. That same spring, Dane’s gym locker was

covered with shaving cream spelling out sexually

oriented words on at least one occasion. Again, school

administrators were unable to determine the vandals.

In late May 2005, Dane was assaulted in the locker

room after one of his junior varsity baseball team’s

practices. The perpetrator was a student named Lance.

Dane had never had any problems with Lance prior to

incident, nor had there ever been any allegations that

Lance had engaged in any misconduct of a sexual

nature. Nonctheless, after baseball practice one

Friday, Lance was naked and rubbed his penis and

scrotum against the back of Dane’s neck and side of his

face (an act called “teabagging”). Another student,

Nick, blocked Dane’s exit from the locker room. Dane

informed Plaintiffs of the incident later that day.

Dane’s brother, the junior varsity baseball team’s

coach, was informed of the incident later that night (he

was not present in the locker room when the incident

occurred). Plaintiffs did not contact schoo’

adminisirators that day, nor did they contact the

police at that time. The next day, a Saturday, Dane

played in the doubleheader with Lance, and the coach

of the team (Dane’s brother) put Lance in the starting

lineup. Plaintiffs did not inform Hudson Area Schools

administrators of the incident until some time during

that doubleheader.

On Monday (two days later and the first day of

school after the locker room incident), Principal

Osborne and Assistant Principal Tom Durbin (“AP

Durbin”) began conducting a formal investigation into

the allegations. Lance immediately was suspended for

58a

the remainder of the school year, and he was expelled

soon thereafter. Lance’s subsequent application for

re-entry into the Hudson Area Schools was denied.

Although Dane informed the school that Nick was only

‘joking around,” Nick was punished by the Hudson

Area Schools. After the Hudson Police Department

opened an investigation into the matter several days

later (when Plaintiffs filed a complaint),

administrators at the Hudson Area Schools cooperated

with the Hudson Police Department, including sharing

the results of Hudson Area Schools’ internal

investigation. Lance eventually was criminally

prosecuted. No criminal charges were brought against

Nick.

At some point following the incident, the varsity

baseball coach convened a team meeting of junior

varsity and varsity players and commented (with Dane

present) that players should only joke with men who

can take it. After the locker room incident, Dane’s

IEPT program was modified to provide for off-site

services at Sacred Heart School. After what Plaintiffs

describe as a poor tenth grade year for Dane, the IEPT

reconvened in 2006 and Dane was allowed to take

classes for eleventh grade and twelfth grade through

college placement courses.

As a result of the alleged student-on-student

harassment directed at him while attending Hudson

Area Schools, Dane claims that he has_ been

psychologically unable to step foot inside a Hudson

Area School building since the spring of 2005. Dane

apparently graduated from Hudson Area Schools a

year early and currently is attending college.

59a

II. LEGAL STANDARD

Summary judgment is appropriate only if the

answers to the _ interrogatories, depositions,

admissions, and pleadings, combined with any

affidavits in support show that no genuine issue as to

any material fact remains and that the moving party

is entitled to a judgment as a matter of law. See FED.

R. Civ. P. 56(c). A genuine issue of material fact exists

when there is “sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986)(citations omitted). In application of this

summary judgment standard, the Court must view all

materials supplied, including all pleadings, in the light

most favorable to the non-moving party. Matsushita

Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). “If the evidence is merely colorable or

is not significantly probative, summary judgment may

be granted.” Anderson, 477 U.S. at 249-50 (citations

omitted).

The moving party bears the initial responsibility of

informing the Court of the basis for its motion and

identifying those portions of the record that establish

the absence of a genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the

moving party has met its burden, the nonmoving party

must go beyond the pleadings and come forward with

specific facts to demonstrate that there is a genuine

issue for trial. See FED. R. Clv. P. 56(e); Celotex, 477

U.S. at 324. The nonmoving party must do more than

show that there is sorne metaphysical doubt as to the

material facts. It rnust present significant probative

evidence in support of its opposition to the motion for

summary judgment in order to defeat the motion for

a ee eee eae |S eae a 6S

60a

summary judgment. See Moore v. Phillip Morris

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