Grace v. Board of Trustees, Brooke
U.S. Court of Appeals for the First Circuit
Grace v. Board of Trustees, Brooke
Opinion
United States Court of Appeals
For the First Circuit
No. 22-1742
NATASHA GRACE; MINOR CHILD MG; MINOR CHILD MG2; MINOR CHILD MG3;
MINOR CHILD AG; MINOR CHILD MP,
Plaintiffs, Appellants,
v.
BOARD OF TRUSTEES, BROOKE EAST BOSTON; BROOKE SCHOOL FOUNDATION,
INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Gelpí, Lynch, and Howard,
Circuit Judges.
Esthena Barlow, with whom Romanus C. Maduabuchi, Matthew
Calabrese, Elliott O'Brien, Nathan Winshall, Brian Wolfman,
Madeline Meth, Keypoint Law Group, LLC, and Georgetown Law
Appellate Courts Immersion Clinic were on brief, for appellants.
John J. Cloherty III, with whom Pierce Davis & Perritano LLP
was on brief, for appellees.
October 19, 2023
GELPÍ, Circuit Judge. Minor Child MG ("MG") alleges
that he was harassed by his classmates over a three−year period
while he was a student at Brooke Charter School East Boston
("Brooke East Boston" or the "school"). Appellant Natasha Grace
("Grace"), MG's mother, on behalf of herself, MG, and his four
minor siblings, brought suit against appellees Brooke East Boston,
its Board of Trustees, and Brooke School Foundation, Inc.
(collectively, "Brooke"), asserting claims under Title IX of the
Education Amendments of 1972, the Equal Protection Clause of the
Fourteenth Amendment, and Massachusetts state law. The United
States District Court for the District of Massachusetts granted
Brooke's motion for summary judgment on all claims. Grace appeals
only the district court's dismissal of her Title IX claim. We
reverse the grant of summary judgment on Grace's Title IX claim
and remand for further proceedings consistent with this opinion.
I. Background
We begin by outlining the school's Code of Conduct and
Bullying and Prevention Policy, as well as the school officials
responsible for their enforcement. We then turn to the events
that led to this case. For purposes of summary judgment, we
describe the facts in the light most favorable to the nonmovant,
Grace, drawing all reasonable inferences in her favor. See, e.g.,
López-Hernández v. Terumo P.R. LLC, 64 F.4th 22, 28 (1st Cir.
2023).
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A. Brooke Charter Schools
Brooke East Boston is a K−8 school that is part of Brooke
Charter Schools (the "Schools"), a network of three K-8 public
charter schools and one high school, each located in Boston,
Massachusetts. The Schools are governed by a Board of Trustees
and receive financial support from Brooke School Foundation, Inc.,
a 26 U.S.C. § 501(c)(3) nonprofit fundraising entity.
1. Code of Conduct
The Schools' Code of Conduct ("Code") provides a set of
offenses for which a student will be subject to disciplinary
consequences. Under the Code, a student will receive a "Community
Violation," a sheet that the student's parents must sign and return
to the relevant school, if they commit a "serious infraction to
[the Schools'] core values." Serious infractions include name-
calling or insulting a fellow student, engaging in "unsafe
behaviors," such as hitting a fellow student, and using
inappropriate language. These infractions may occur on school
grounds, while a student is off school grounds if the offense
results in a substantial disruption to the learning environment,
or on the school bus.
2. Bullying and Prevention Policy
The Schools also have a Bullying and Prevention Policy
("Policy"). The Policy defines bullying, in relevant part, as the
repeated use by one or more students of a written or verbal
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expression, or a physical act or gesture, directed at a target
that causes physical or emotional harm to the target or creates a
hostile environment at school for the target. Under the Policy,
acts of bullying may include teasing, name−calling, spreading
rumors, physical altercations, and other consistent aggressive
behaviors. The Policy recognizes that "certain students may be
more vulnerable to become targets of bullying, harassment, or
teasing based on actual or perceived characteristics" such as sex,
sexual orientation, and gender identity. According to the Policy,
the school will "identify specific steps it will take to create a
safe, supporting environment for [these] vulnerable populations in
the school community."
The Policy further outlines the procedures for reporting
and responding to bullying. School officials are required to
transmit any bullying incident directly and immediately to the
relevant school's Dean of Students ("Dean"). The Dean will
promptly investigate the reported incident, considering all known
and available information, and make a written record of the
investigation. After the investigation, the Dean will determine
whether, in light of the facts and circumstances, the allegations
of bullying are substantiated. If so, the Dean will then ensure
that "[t]he target[] is made to feel safe" and that the aggressor
faces disciplinary action. Within a reasonable time following the
incident, the Dean will contact the target to assess whether there
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has been a recurrence of the prohibited conduct and whether
additional supportive measures are needed.
3. School Officials
During MG's time at Brooke East Boston, Jon Clark
("Co−Director Clark" or "Clark") served as the Schools' Network
Co−Director and was responsible for the successful operation of
the Schools. Clark reported directly to the Board of Trustees.
At Brooke East Boston, Molly Cole ("Principal Cole" or "Cole")
served as the Principal and was responsible for the supervision of
the school. Cole reported directly to Clark and delegated some of
her responsibilities to the Assistant Principals, Katherine Kirby
and Heidi Deck. Cole and the Assistant Principals were responsible
for investigating reported incidents between a teacher and a
student ("teacher−related incidents").
Brooke East Boston's Dean of Students was Yasenia Dudley
("Dean Dudley" or "Dudley"), whose primary responsibility was to
enforce the Code. In her role as Dean, Dudley was also responsible
for enforcing the Policy by investigating allegations of bullying
and harassment and for taking disciplinary action against
aggressors. Dudley submitted the written reports of her
investigations to either Principal Cole or the Assistant
Principals. Dudley was also responsible for supervising student
detentions and the school's bus monitors.
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B. Alleged Incidents of Harassment
We now turn to the events giving rise to this action,
which occurred from 2015 to 2018, during MG's fourth, fifth, and
sixth grades at Brooke East Boston.
1. Fourth Grade
Around August 2015, at the beginning of MG's fourth grade
at Brooke East Boston, MG's classmate MV pushed MG on two separate
occasions. At the request of Grace, Dean Dudley spoke with MV,
who admitted to intentionally pushing MG and received two Community
Violations for his conduct. On August 28, 2015, Grace emailed
Co−Director Clark and informed him of the incidents. In her email,
Grace expressed frustration over how the school handled the
situation, since it was not until after MV had twice pushed MG
that Dean Dudley intervened. Grace also informed Clark of a
different incident "in which [MV] ha[d] tripped [MG] and pushed
him again and [MV said that] he didn't." After expressing concern
over the ongoing situation, Grace requested that Clark follow up
with her.
Upon receiving Grace's email, Clark contacted Principal
Cole, who informed him that the incidents had been addressed "in
a satisfactory way." After talking to Cole, Clark concluded that
there were "[no] grounds for further involvement" from him. The
parties dispute whether the incidents were appropriately
characterized and addressed by the school. While Cole concluded
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that the incidents did not constitute bullying but rather
"peer−to−peer conflict," Grace argues that they amounted to
bullying under the Policy.
As we recount below, this was not the last time that
school officials would characterize an incident between MG and MV
as peer-to-peer conflict. The record reflects that "peer-to-peer
conflict" is not a school-defined term, nor is it defined by the
Code or the Policy. Rather, when asked how he defined "peer-to-
peer conflict" as opposed to bullying, Co-Director Clark answered
that he was "just using common sense."
According to MG, MV also called him names such as
"bitch," "girl," and "gay" throughout the fourth grade. The
record, however, contains no evidence that these instances of name-
calling were reported to school officials during the fourth grade.
2. Fifth Grade
MG began fifth grade at Brooke East Boston in the fall
of 2016. On December 7, 2016, there was an incident (hereinafter
the "bus incident") between Bus Monitor Anitra Reed ("Bus Monitor
Reed" or "Reed") and MG. While on the school bus and within MG’s
earshot, Reed asked a student whether she liked MG. The student
replied that she did not like MG because "the whole school thought
[he] was loud and gay." MG heard the student's response. What
happened next is disputed. During her deposition, Grace stated
that Reed then turned to MG and told him to "watch his flamboyant
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hands -- the way he move[s] his hands and the way he talks."1
However, when Dean Dudley was asked about the incident, she
recalled that Reed had merely relayed to MG what the student said.
From the record, it appears that, during MG's deposition, he was
not specifically asked what Reed told him on the bus.
Dean Dudley recalled learning about the bus incident
through a verbal report from either MG or Reed. Dudley
investigated the incident by speaking to "all of the parties
involved to figure out what happened." While she could not
remember the exact outcome of her investigation during her
deposition, Dudley stated that there was a "conversation that was
had" with Reed. Dudley, along with either Principal Cole or an
Assistant Principal, concluded that the student would face no
disciplinary action for her comment because, in their view, her
remarks were directed at Reed, not MG. Despite Dudley's statement
1 Brooke argues that Grace improperly relies on this hearsay
testimony. This argument, however, fails for two reasons. First,
Grace's testimony could "be presented in a form that would be
admissible in evidence." Martínez v. Novo Nordisk Inc., 992 F.3d
12, 18(1st Cir. 2021). As Grace contends, when a party objects that material cited to support a fact cannot be presented in a form that would be admissible in evidence, the burden is on the proponent to explain the admissible form that is anticipated. See Fed. R. Civ. P. 56(c)(2) advisory committee's note to 2010 amendment. Here, Grace has met that burden by explaining that MG could present Reed's statement in a form that would be admissible in evidence through his own testimony at trial. See Martínez,992 F.3d at 18
. Second, even excluding Reed's alleged statement, the
record demonstrates that Dudley was aware that, at a minimum, Reed
told MG that a student did not like him because the student thought
he was gay.
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that there was a "conversation that was had" with Reed, the school
admitted that no corrective action was taken against Reed.
The next day, on December 8, 2016, MG met with Dean
Dudley and reported that students were calling him "gay" and
"transgender." After meeting with Dudley, MG went to Nissan’s
classroom, where he also reported to Nissan that students were
calling him "gay" and "transgender" but that he was not gay nor
did he want to be transgender. When MG returned to the classroom
with his classmates after recess, he found a book on his desk with
a note from Nissan (hereinafter the "Gracefully Grayson
incident"). The note read, "If you want to read about this, just
for interest! (If not, you can give it back to me)."
The book was "Gracefully Grayson," a novel by Ami
Polonsky that provides a fictional account of a transgender child.
The book was not assigned as class reading nor was the book part
of the Health Education curriculum. Students were familiar with
the book because it was a "very popular book[] in [Nissan's]
classroom." Whether other students saw the book on MG’s desk is
unclear. During his deposition, MG stated that he did not know if
other students saw the book on his desk before he put it away.
However, MG also stated that, after the incident, students called
him "names or gay[] because they [saw] that a teacher had gotten
in the mix[] so they believed it was true."
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MG reported the Gracefully Grayson incident to Dean
Dudley. Dudley classified the incident as teacher−related,
relayed the information to either Principal Cole or an Assistant
Principal, and "they took it over from there." There is no
evidence of an investigation into this incident.
On December 9, 2016, Grace emailed Co-Director Clark.
She wrote that a "student at the school (last year) started sending
a rumor around that [MG] was gay or wanted to be[] transgender."
Grace then informed Clark of the Gracefully Grayson incident,
telling him that MG felt offended by the situation and that Nissan
could have "caused [MG] to harm himself or others if he had a
different mindset." Grace expressed frustration over the fact
that she met with Principal Cole and Cole's only response was that
she "[did not] feel [that Nissan's actions] came from a bad place."
Upon receiving Grace's email, Clark called Cole, who told him that
she had already heard Grace's concerns. Clark then felt that
"there was no action[] that was warranted for [him] to take."
Clark did not consider it inappropriate that Nissan
recommended the book to MG; instead, he stated that it was a
"reasonable thing to do." It is undisputed that the school took
no corrective action against Nissan. Nothing more was done to
address this incident.
After the Gracefully Grayson incident, MG's mental
health quickly deteriorated, and he began therapy. MG was
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diagnosed with major depressive disorder, anxiety disorder, and
post−traumatic stress disorder.
Around January 2017, both MG and MV reported that they
were shoved by each other in the school's hallway. After talking
to the students, Dean Dudley issued each of them Community
Violations. The parties again dispute whether the incident was
properly characterized and addressed by the school. While the
school again characterized the incident as peer-to-peer conflict,
Grace contends that it was MV who shoved MG and that the incident
again amounted to bullying under the Policy.
On January 17, 2017, there was yet another physical
altercation between MG and MV. During recess, MV hit MG's head,
and MG hit MV back. Both students were disciplined as a result of
this incident. The school again characterized the incident as
peer-to-peer conflict, and Grace again counters that the incident
qualified as bullying under the Policy. On January 19, 2017, after
Dean Dudley informed Grace of the altercation, Grace filed an
Incident Report with the Boston Police Department.
3. Sixth Grade
The final incidents giving rise to this action occurred
around and during MG's sixth grade at Brooke East Boston. During
the summer of 2017, while at a summer camp, a girl referred to MG
as "gay" without his knowledge (hereinafter the "summer
incident"). While the summer camp was not affiliated with Brooke
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East Boston, the girl was also a sixth−grade student at the school.
In September of that year, MG learned of the summer incident from
another student at the school. On September 13, 2017, Grace
informed Dean Dudley of the incident. Dudley then interviewed
"the students that were involved" and concluded that there were no
grounds to take disciplinary action against any student because
the incident had occurred at a summer camp, not at the school.
Dudley informed Co-Director Clark of the incident and her
conclusion.
During sixth grade, as MG grew anxious and defensive,
his disciplinary offenses significantly increased. His
relationship with his sixth-grade teacher, Katrina Freund
("Freund"), quickly deteriorated. While MG received no more than
ten Community Violations between the fourth and fifth grade, MG
recalled receiving approximately one hundred Community Violations
during the sixth grade, most of which were issued by Freund.
According to Freund, MG initiated confrontations with her, arrived
late to class, refused to obey her directions, refused to stop
talking during class, and generally exhibited defiant classroom
behavior.
Around November 2017, Grace requested a meeting with
Freund, Assistant Principal Kirby, and MG's therapist, Paulette
Sewell, to formulate a plan that would improve the relationship
between MG and Freund. At the meeting, it was agreed that MG and
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Freund would use a notebook to better communicate with each other
whereby MG would write how he felt at any given moment and Freund
would respond. Freund, however, never responded to what MG wrote
in the notebook. The notebook plan was thus ineffective in
improving the relationship between MG and Freund.
Around January 2018, Grace contacted Dean Dudley and
requested a meeting to discuss transferring MG to another
classroom, as she was no longer comfortable with MG being in
Freund's classroom. Dudley then emailed Assistant Principal Kirby
to schedule the meeting between Kirby and Grace, informing Kirby
that the relationship between MG and Freund had become strained.
There is no evidence that Kirby responded to the email or met with
Grace. Around February 2018, Grace again contacted Dudley to
discuss moving MG to a different classroom. Dudley again emailed
Kirby. Whether Kirby and Grace ever met is unclear. But despite
Grace's repeated requests to transfer MG out of Freund's classroom,
and despite the school having three sixth-grade classrooms that
academic year, it is undisputed that the school declined to move
MG out of Freund’s classroom.
Around February 2018, Reed overheard two upper-grade
students refer to MG as "skittles," meant as a derogatory term for
a gay person. Reed then took the students to Dean Dudley’s office
and informed Co-Director Clark of the incident. After talking to
the students, Dudley issued them detentions. Dudley determined
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that this incident was not bullying or harassment but rather
teasing and name-calling.
Around March 2018, Grace informed Dudley of an
interaction between MG and Alyssa Mackey ("Mackey"), a
seventh−grade teacher at the school. According to Grace, Mackey
told MG, "You may be a problem for other teachers, but you won't
be a problem for me." Since Mackey was an upper-grade teacher who
had no prior interactions with MG, Grace was concerned that other
teachers at the school were spreading rumors about MG's behavior
and "labeling" him. Because this was a teacher-related incident,
Dudley informed Assistant Principal Kirby. There is no evidence
that Kirby, or any other school official, investigated this
incident. It is undisputed that the school took no corrective
action against Mackey.
The last alleged incident involving MG and MV occurred
on May 17, 2018. While at a playground near the school, MV was
involved in a fight with other students. MG did not participate
in that fight. However, as teacher Sarah Geary ("Geary") walked
MV back to the school, they ran into MG. What happened after that
is disputed. According to Co−Director Clark, MV "flail[ed] his
arms at MG" attempting to "get[] at him," but Geary stood between
them, preventing anything further from happening. According to
Dean Dudley, however, MV "put his hands on [MG]." MV was
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suspended. Clark investigated the incident and concluded that it
was not bullying but rather an "attempt at a physical altercation."
The final alleged incident giving rise to this action
occurred on May 18, 2018, involving MG and Freund (hereinafter the
"Post−it notes incident"). The facts of this incident are
disputed. According to Freund, she was passing out Post-it notes
for students to take notes while they read during class. After MG
told Freund that he did not want any Post-it notes, she "tossed a
few onto his desk, as [she] had done with the previous ten or so
students." Freund recalled that MG then "held up his hand to block
the [Post-it notes] and they hit his hand." MG, however, contends
that Freund "threw a stack of post-it notes" at his face.
Immediately after the Post-it notes incident, MG left
the classroom and contacted Grace, who then drove to the school.
What happened after that is also disputed. Freund contends that
Grace entered her classroom while class instruction was ongoing
and yelled statements at her such as "this will be your last day"
and "you’re a liar." Grace, however, counters that when she
arrived at the school, Dean Dudley gave her permission to go to
Freund’s classroom, where she calmly but unproductively discussed
the incident with Freund.
That same day, Grace asked Dudley to investigate the
Post-it notes incident. Dudley talked to a student who had been
in the classroom with MG and Freund during the incident. The
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student told Dudley that Freund had, in fact, thrown Post-it notes
at MG which hit him. Dudley relayed this information to Co-
Director Clark and Assistant Principal Kirby. On May 21, 2018,
however, Clark investigated the incident himself and concluded
that Freund did not throw the Post−it notes at MG and that MG was
"actively working to engineer the firing of [Freund] without
cause." It is undisputed that the school took no corrective action
against Freund. After the incident, Grace retained counsel.
On May 22, 2018, through her attorney, Grace delivered
a Demand Letter to Co-Director Clark, Principal Cole, Assistant
Principal Kirby, and Dean Dudley, demanding that the school create
"an action plan [to protect MG] from all the targeting, bullying,
[and] retaliation." The letter described incidents where MG had
allegedly been the victim of bullying and harassment through
repeated name-calling, hate speech, and discriminatory remarks
from both students and school officials. The letter further stated
that Grace was available to meet on May 23, 2018, to discuss her
demands before MG returned to the school.
The next day, on May 23, 2018, instead of meeting with
Grace, Co-Director Clark issued Grace a No Trespass order. The
order stated that Grace’s actions on May 18, 2018, "constituted a
major disruption to the school" and that she was thus prohibited
from entering school grounds absent an emergency or Clark’s
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permission. After receiving the No Trespass order, Grace withdrew
MG from Brooke East Boston.
C. Procedural History
Grace, on behalf of herself, MG, and his four minor
siblings, brought suit against Brooke in Massachusetts state
court, alleging claims under Title IX of the Education Amendments
of 1972, 20 U.S.C. § 1681(a); the Equal Protection Clause of the
Fourteenth Amendment; and Massachusetts state law. Brooke removed
the action to the United States District Court for the District of
Massachusetts2 and moved for summary judgment on all claims.
In a Report and Recommendation ("R&R"), a magistrate
judge recommended the dismissal of all claims except for Grace's
Title IX claim. After thoughtfully analyzing three years of facts,
the magistrate judge concluded that, while the question of summary
judgment was a close one, the Title IX claim would be better
resolved by a jury at trial. First, the magistrate judge
determined that a jury could find that the claimed harassment was
on the basis of sex. Second, the magistrate judge concluded that
a jury could also find that the school exhibited deliberate
indifference to the claimed harassment.
2 Removal was pursuant to the district court's federal
question jurisdiction. See 28 U.S.C. §§ 1331, 1441.
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The district court, however, upon considering Brooke's
objections to the R&R,3 granted summary judgment in favor of Brooke
on all claims, including the Title IX claim. In the district
court's view, Brooke had taken "timely and plausibly reasonable
measures to investigate and end the claimed harassment" by
frequently communicating with Grace and conducting "a variety of
investigations in response to reported incidents adverse to [MG]."
Thus, according to the district court, Grace had failed to
demonstrate a triable issue of fact as to whether the school
exhibited deliberate indifference to the claimed harassment.
This appeal followed.
II. Discussion
On appeal, Grace challenges only the district court's
dismissal of her Title IX claim. The parties dispute whether the
incidents alleged constituted harassment, and if so, whether it
was on the basis of sex, and whether the school exhibited
deliberate indifference to it. The district court, however,
disposed of Grace's Title IX claim solely on the ground of
deliberate indifference. Thus, we write narrowly and focus our
attention on whether a reasonable jury could find that Brooke acted
3After the magistrate judge issued the R&R, Brooke objected
to the R&R's recommendation that Grace's Title IX claim should not
be dismissed. The district court then made a de novo determination
and dismissed the Title IX claim. See 28 U.S.C. § 636(b)(1)(C)
("A judge of the court shall make a de novo determination of those
portions of the . . . [R&R] to which objection is made.").
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with deliberate indifference in responding to the alleged
harassment.
A. Standard of Review
We review the district court's grant of summary judgment
de novo, construing the record in the light most favorable to the
nonmovant, Grace, and drawing all reasonable inferences in her
favor. López-Hernández, 64 F.4th at 28; Camar Corp. v. Preston Trucking Co.,221 F.3d 271, 274
(1st Cir. 2000). Summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248
(1986). A genuine dispute as to a material fact exists if a rational factfinder, viewing the evidence "in the light most flattering to the party opposing" summary judgment, could resolve the dispute in that party's favor. See Nat’l Amusements, Inc. v. Town of Dedham,43 F.3d 731, 735
(1st Cir. 1995). "When determining if a genuine dispute of material fact exists, 'we look to all of the record materials on file, including the pleadings, depositions, and affidavits' without evaluating 'the credibility of witnesses []or weigh[ing] the evidence.'" Taite v. Bridgewater State Univ., Bd. of Trs.,999 F.3d 86, 93
(1st Cir. 2021) (alterations in original) (quoting Ahmed v. Johnson,752 F.3d 490, 495
(1st Cir. 2014)).
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B. Student-on-Student Harassment Under Title IX
Title IX provides, in relevant part, that "[n]o person
in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance." 20 U.S.C. § 1681(a). The Supreme Court has recognized an implied private right of action under Title IX through which an aggrieved party may seek money damages against an educational institution. See Cannon v. Univ. of Chi.,441 U.S. 677, 717
(1979); Frazier v. Fairhaven Sch. Comm.,276 F.3d 52, 65
(1st Cir. 2002).
Here, Grace asserts a theory of hostile environment
harassment under Title IX. Under that theory, Brooke, as a federal
funding recipient, can be liable for a claim of student−on−student
and teacher−to−student harassment. See Porto v. Town of Tewksbury,
488 F.3d 67, 72(1st Cir. 2007). To prevail on such claim, a student must show that they were (1) "subjected to harassment" (2) on the basis of sex; (3) "that the harassment was sufficiently severe and pervasive to create an abusive educational environment;" and (4) "that a school official authorized to take corrective action . . . exhibited deliberate indifference to" the harassment. Frazier,276 F.3d at 66
; see also Porto,488 F.3d at 72-73
.
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The deliberate indifference standard can be
characterized as a two-pronged test. First, the funding recipient
must have had actual knowledge of the harassment. See Santiago v.
Puerto Rico, 655 F.3d 61, 73(1st Cir. 2011). This actual knowledge requirement demands that the official who is informed of the harassment be an "appropriate person" -- an official of the recipient entity with authority to take corrective action to end the harassment. Seeid. at 74
.
Second, the official's "response [to the harassment]
must amount to deliberate indifference to discrimination." Gebser
v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290(1998). School officials are deliberately indifferent to student-on-student harassment "only where [their] response to the harassment, or lack thereof, is clearly unreasonable in light of the known circumstances." Davis v. Monroe Cnty. Bd. of Educ.,526 U.S. 629, 648
(1999). The response must, at a minimum, cause the student to undergo harassment or make the student vulnerable to it. Seeid. at 645
. A school might be deliberately indifferent to harassment where it had notice of the harassment and "either did nothing or failed to take additional reasonable measures after it learned that its initial remedies were ineffective." See Porto,488 F.3d at 73-74
; see also Wills v. Brown Univ.,184 F.3d 20, 26
(1st Cir.
1999). Thus, deliberate indifference "will often be a fact-based
question, for which bright line rules are ill-suited." Doe ex
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rel. Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438, 447 (D. Conn.
2006).
C. The District Court Should Not Have Granted Summary Judgment in
Favor of Brooke on the Title IX Claim
1. Actual Knowledge
A reasonable jury could find that MG was subjected to
harassment. We turn to the actual knowledge requirement of the
deliberate indifference standard under Title IX. Brooke does not
dispute that Dean Dudley and Co-Director Clark, in their respective
roles as school officials, had the authority to take corrective
action to end the discrimination against MG and thus were
"appropriate person[s]" under the statute. See Santiago, 655 F.3d
at 74. Brooke, however, contends that Grace "vainly attempt[s] to
attach liability by pointing to alleged incidents of harassment of
which the School had no actual knowledge." We are unconvinced.
Construing the record in the light most favorable to
Grace, a jury could find that the school had actual knowledge as
of December 7, 2016 (the date of the bus incident), but not before
then. The record shows that, on December 7, 2016, Dean Dudley
became aware, from the bus incident, that there were students who
were discriminating against MG because they thought he was gay.
Dudley was also on notice that, at a minimum, Reed relayed that
information to MG. On December 8, 2016, MG personally reported to
Dudley that students were calling him "gay" and "transgender."
Both Dudley and Clark had actual knowledge that after MG reported
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the same to Nissan, she left a book on his desk about a transgender
child. Clark, in particular, knew that the Gracefully Grayson
incident offended MG and that Grace was unsatisfied with Principal
Cole's response to Nissan's actions. Grace even informed Clark
that, prior to the incident, a student had started a rumor that MG
was gay.
The record further reveals that, throughout MG's sixth
grade, Dudley and Clark remained on notice of students' treatment
of MG. They both had actual knowledge that, during the summer of
2017, a Brooke student referred to MG as "gay" and MG learned of
the incident from another student at the school. Around February
2018, Dudley and Clark both learned that two upper-grade students
referred to MG as "skittles." Throughout the sixth grade, Dudley
also remained on notice of MV's treatment of MG. In light of these
facts from MG's fifth and sixth grades at Brooke East Boston, a
reasonable jury could infer that the school had actual knowledge
as of December 7, 2016, but not before then. See id. at 73-74.
2. Deliberate Indifference
Having determined that Grace presented sufficient
evidence on the actual knowledge requirement to survive summary
judgment on that point, we now turn to the school's response to
the claimed harassment. The district court found that "[n]o
reasonable jury could find on the factual record[] that [the
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school's] response to reported incidents of sex-based harassment
was clearly unreasonable." We again disagree.
When construed in the light most favorable to Grace, the
record supports the inference that the school's response to the
claimed harassment was "clearly unreasonable in light of the known
circumstances." Davis, 526 U.S. at 648. For more than a year,
from December 2016 to February 2018, school officials at Brooke
East Boston took no corrective or remedial action against students
who repeatedly used homophobic epithets against MG. On December
8, 2016, after the bus incident, MG himself reported to Dudley
that students were calling him "gay" and "transgender." Yet, even
though Dudley had prior notice of students' treatment of MG from
the bus incident, there is no evidence that she investigated the
name−calling, nor is there evidence that she took steps to protect
MG from it.
The record further supports the inference that, during
the sixth grade, the school's responses to the claimed harassment
were still not reasonably calculated to stop students' treatment
of MG. Only once did the school discipline students for using
homophobic epithets against MG: when two upper-grade students
called him "skittles" in February 2018.
Grace has also produced sufficient evidence for a
reasonable jury to find that the school exhibited deliberate
indifference by repeatedly characterizing MV's treatment of MG as
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"peer-to-peer conflict" as opposed to bullying in light of MV's
constant aggressive behavior towards MG. See Gebser, 524 U.S. at
290; Davis,526 U.S. at 645
. Under the Policy, acts of bullying
include teasing, taunting, physical or verbal altercations, and
other consistent aggressive behaviors. Yet, when MV twice pushed
MG, the school characterized the incident as peer−to−peer
conflict. In January 2017, when MV hit MG's head, the school again
characterized the incident as peer-to-peer conflict. In May 2018,
when MV either "flai[ed] his arms at MG" or "put his hands on [MG]"
after being involved in a fight with other students, the school
again refused to characterize the incident as bullying,
notwithstanding MV's consistent aggressive behavior towards MG.
A reasonable trier of fact could also find that the
school's responses to the individual actions and events
perpetrated by different school officials were unreasonable in
light of the known circumstances. See Davis, 526 U.S. at 645,
648. We begin with the bus incident, in which Reed initiated a
conversation, knowingly within MG's earshot, and a student
responded that she did not like MG because "the whole school
thought [he] was loud and gay." While the parties dispute whether
Reed then told MG to "watch his flamboyant hands," Dean Dudley had
actual knowledge that, at a minimum, Reed relayed the student's
comment to MG. A rational factfinder, resolving this point in
favor of Grace, could conclude that Reed inappropriately advised
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MG to "watch his flamboyant hands." While Dudley stated that there
was a "conversation that was had" with Reed, it is undisputed that
no corrective action was taken against Reed, as per the school's
admission. Viewing this evidence in the light most favorable to
Grace and in the context of students' treatment of MG, a reasonable
jury could infer that Reed's actions, together with the lack of
response from the school, exacerbated the hostile educational
environment to which MG was already subject.
The Gracefully Grayson incident, and the inferences that
a rational factfinder can derive therefrom, support a similar
conclusion. After MG personally reported to Dudley and Nissan
that students were calling him "gay" and "transgender," but that
he was not gay nor transgender, Nissan left a book about a
transgender child, well-known by other students in Nissan's
classroom, on MG's desk. In view of MG's statement that, after
the incident, students called him gay because "they [saw] that a
teacher had gotten in the mix[] so they believed it was true," a
reasonable jury could infer that the Gracefully Grayson incident
reinforced students' perception of MG. School officials, however,
directed their attention to Nissan's motivations for her actions
rather than to the impact of her actions on MG. Considering that
Nissan, before placing the book on MG's desk, knew that students
were calling him "gay" and "transgender" without his consent, a
reasonable jury could find that both Nissan's actions and the
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school's lack of response to them were "unreasonable in light of
the known circumstances." See id.
In view of MG's relationship with Freund and the factual
disputes surrounding the Post-it notes incident, a reasonable jury
could also conclude that school officials acted with deliberate
indifference in refusing to transfer MG out of Freund's classroom,
subjecting MG to a hostile educational environment. It is
undisputed that both Dean Dudley and Assistant Principal Kirby
were on notice that, by the sixth grade, MG and Freund had
developed a hostile relationship, to the extent that Grace had
twice requested MG be transferred out of Freund's classroom.
However, despite knowing that the notebook was ineffective in
improving MG's relationship with Freund, and despite having three
sixth-grade classrooms during that academic year, the school
repeatedly declined Grace's requests.
The factual disputes surrounding the Post−it notes
incident also support Grace's allegations. A rational factfinder,
resolving this conflict in favor of Grace, could find that Freund
did throw the Post-it notes at MG, particularly since Dudley and
Clark were both on notice that a student had corroborated MG's
version of the incident.
Brooke's attempt to equate this case to Porto v. Town of
Tewksbury is unavailing. Porto involved repeated instances of
harassment whereby the student, RC, sexually harassed another
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student, SC, on multiple occasions. See Porto, 488 F.3d at 73. School officials separated the students after each instance of sexual harassment.Id. at 74
. They also had the students talk to the school guidance counselor, to whom they promised not to engage in sexual conduct again.Id.
RC, however, continued to sexually harass SC.Id.
There, we found that school officials were not deliberately indifferent to the harassment because it was reasonable for them to conclude that the counselor’s intervention had worked since they did not become aware of further harassment after that. Seeid.
In that context, we held that the "fact that measures designed to stop harassment prove later to be ineffective does not establish that the steps taken were clearly unreasonable in light of the circumstances known[] . . . at the time" and that "a claim that the school system could or should have done more is insufficient to establish deliberate indifference."Id.
at 73−74.
This Court's decision in Porto is easily distinguishable
on the facts and the law. Unlike Porto, school officials at Brooke
East Boston were repeatedly made aware, throughout two academic
years, of students' treatment of MG. Here, Grace claims not that
the school's measures designed to stop the alleged harassment
proved to be ineffective, or that more could have been done in
responding to the alleged harassment, but that school officials
took no substantive steps to protect MG from the hostile
environment he was subject to.
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Brooke's reliance on Fitzgerald v. Barnstable School
Committee is similarly misplaced. In Fitzgerald, we held that
"Title IX does not require educational institutions to take heroic
measures, to perform flawless investigations, to craft perfect
solutions, or to adopt strategies advocated by parents." 504 F.3d
165, 174(1st Cir. 2007), rev’d on other grounds,555 U.S. 236
(2009). There, we found that school officials' actions did not
amount to deliberate indifference where they promptly reacted to
harassment complaints, commenced full-scale investigations, paid
close attention to new information and to the parents’ concerns,
offered suitable remedial measures, and responded reasonably each
time there was a new development. Id. at 174-175. However, as
discussed above, the record here reasonably supports opposite
inferences: that school officials did not offer suitable remedial
measures in light of the claimed harassment and that school
officials did not pay close attention to Grace's repeated concerns
about students' treatment of MG.
Thus, we find that the record before the district court,
the factual disputes therein, and the inferences that a jury could
reasonably draw therefrom preclude summary judgment on Grace's
Title IX claim. Whether Grace can sustain such a claim is a
question for the factfinder at trial.
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III. Conclusion
For the foregoing reasons, we reverse the district
court's grant of summary judgment on the Title IX claim and remand
for further proceedings consistent with this opinion.
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Reference
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