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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0899%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

Supreme Court, U

S.
9 (\) FILED
| 09-143 JUL 30 2009

No. _ OFFICE OF CLERK

S

In The

HUDSON AREA SCHOOLS,

Petitioner,

ae

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

i

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.

re

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

1V

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

Vv

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

é

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

3

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

4

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,

5
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

6

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.

7

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

8

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

9

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

10

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

1]

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.

12

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.

13

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.

14

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:

15

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,

16

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

17

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

18

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

19

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

20

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”

21

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

22

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.

23

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.

24

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

25

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

26

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.

27

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

28

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.

29

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

30

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

31

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

32

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.

33

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).

34

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!

35

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

la

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

2a

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.

3a

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.

4a

‘ 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.”

5a

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.

c.

6a

[The Pattersons] met with Principal
Rozeveld to discuss the pushing, shoving
and name calling of [DP].

2. Seventh Grade:

a.

[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.

7a

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

8a

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

9a

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.

10a

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

2a

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0899%3A1. Public record. Not legal advice.