United States Court of Appeals
                     For the First Circuit


No. 23-1463

                       ADRIANNA WADSWORTH,

                      Plaintiff, Appellant,

                               v.

       CHUCK NGUYEN, MSAD 40/RSU 40, and ANDREW CAVANAUGH,

                     Defendants, Appellees,

                   MEDOMAK VALLEY HIGH SCHOOL,

                           Defendant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                             Before

        Montecalvo, Lynch, and Rikelman, Circuit Judges.


     John J. Wall, III, with whom Monaghan Leahy, LLP, was on
brief, for appellant.
     Eric R. LeBlanc, with whom Zachary H. Hammond and Bennett &
Belfort, P.C., were on brief, for appellee.
     Sean Ouellette, Mollie Berkowitz, Adele P. Kimmel, and Public
Justice were on brief for amicus curiae Public Justice.


                        February 19, 2025
          MONTECALVO, Circuit Judge. Plaintiff-appellant Adrianna

Wadsworth,    who   was   a     student   at    Medomak   Valley   High   School

("Medomak")    during     the    relevant      time   period,   initiated   this

lawsuit against Andrew Cavanaugh, the principal at the time in

question; Chuck Nguyen, a school social worker; and the school

district, MSAD 40/RSU 40 ("MSAD").              In her operative complaint,

Wadsworth alleged various constitutional claims against Cavanaugh,

Nguyen, and MSAD, as well as a Title IX claim against MSAD.1 Before

us now are several decisions from the district court: one on a

motion to dismiss and three on motions for summary judgment.2                 In

those decisions, the district court determined that Wadsworth's

constitutional claims and Title IX claim could not survive, and

Wadsworth now appeals.        For the reasons that follow, we affirm the

district court decision on the motion to dismiss, affirm in part

and reverse in part the summary judgment decision in favor of

Cavanaugh, affirm the summary judgment decision in favor of Nguyen,

and affirm in part and reverse in part the summary judgment

decision in favor of MSAD.




     1 Wadsworth also alleged a variety of tort claims against the
three defendants. Those claims are not at issue in this appeal.
     2 This appeal was initiated as a cross-appeal to case number
23-1400. The cases were briefed and argued together; however, an
opinion in that case issued separately. See Wadsworth v. Nguyen,
No. 23-1400, 

 (1st Cir. Nov. 13, 2024) (dismissing
for failure to establish appellate jurisdiction) (per curiam).


                                     - 2 -
                                  I. Background

                                    A. Facts

            We begin by setting forth the relevant facts.                  Because

this case arises mainly from the district court's entry of summary

judgment in favor of various defendants, "we take the facts in the

light   most     favorable   to   [Wadsworth]     and    draw   all   reasonable

inferences therefrom in [her] favor."             Universal Trading & Inv.

Co. v. Bureau for Representing Ukrainian Ints. in Int'l & Foreign

Cts., 

 (1st Cir. 2023).

            Medomak is a school within MSAD, which Stephen Nolan has

led   as   superintendent     since   2014.       As    superintendent,     Nolan

directly supervises the Medomak principal and has the "power to

initiate    an   investigation      into   a   principal's      conduct,   impose

discipline short of dismissal, and recommend that the School Board

dismiss a principal."        Cavanaugh was the principal of Medomak from

2015 until his resignation in December of 2017.                   As principal,

Cavanaugh directly supervised the school's assistant principals,

positions held, during the relevant time, by Linda Pease and Tamra

Philbrook.       Also during the relevant time, Nguyen was a social

worker at Medomak.

            Wadsworth started as a student at Medomak in 2014, just

before Cavanaugh was promoted to principal. In the spring of 2016,

when Wadsworth was a sixteen-year-old sophomore, she was caught

drinking alcohol at a party and, as a result, had to meet with


                                      - 3 -
Principal       Cavanaugh.         Prior   to   that    meeting,      Cavanaugh's

interactions with Wadsworth had been limited to giving her awards

for "being a good student."             During that meeting or thereabouts,

Wadsworth informed Cavanaugh about issues she was having at home.

Specifically,        Wadsworth     reported     "numerous   issues     with   her

mother."3

              Concerned that Wadsworth was at risk of leaving her home,

Principal Cavanaugh referred her to Nguyen. As a result, Wadsworth

met with Nguyen several times that year and, as the school year

came to a close, Wadsworth met with Cavanaugh a few times a week.

At some point, Principal "Cavanaugh asked [Wadsworth] if there was

some way that he could help [her] escape from the house, try to

get away from the house," he then told Wadsworth that "he had a

few jobs . . . that would get [her] away from the house . . . and

that's when [he and Wadsworth] exchanged [cellphone] numbers."

That       summer,   with    her   mother's     approval,    Wadsworth     helped

Principal Cavanaugh with odd jobs, including cleaning his rental

properties and babysitting his nephew.                While spending this time

together, their relationship became less formal, and Principal

Cavanaugh's      involvement       in   Wadsworth's    school   and    home   life

steadily increased.



       Wadsworth's childhood was marked by a "very challenging"
       3

home life due to her parents' turbulent relationship. Her parents
fought often, and domestic violence incidents resulted in child
protective services' involvement with the family.


                                        - 4 -
            At the start of her junior year, Wadsworth decided to

move out of her mother's house.        She wanted to do so, at least in

part, because her parents frequently fought and because she wanted

to be more actively involved in MSAD student life, something her

mother discouraged. Wadsworth then moved in with a friend's family

(the "Kenniston family").      Cavanaugh and Nguyen were both informed

of Wadsworth's new living arrangement and met with the Kenniston

parents, Theresa and Darren.

            Shortly after Wadsworth moved, she was no longer able to

use her mother's car and told her father that she needed a

replacement.    Wadsworth also told Principal Cavanaugh about this,

and he purchased a car for her, paying the $ 3,000 price with the

expectation that Wadsworth would work for him to pay off half of

the cost.   Wadsworth's father was aware of this situation and gave

Cavanaugh permission to purchase the car.          The car was registered

in Cavanaugh's name, and Cavanaugh maintained car insurance.

            During her junior year, Wadsworth wanted to participate

in cheerleading and needed a physical examination in order to do

so.   Principal Cavanaugh offered to, and did, take Wadsworth to

the doctor to complete the physical.          Principal Cavanaugh also

suggested   multiple   times    that   Wadsworth    consider   asking   for

prescription birth control.     Although Wadsworth had explained that

she was not interested, Principal Cavanaugh continued to suggest

birth control, explaining that it could be a potential solution


                                  - 5 -
for the menstruation issues Wadsworth had previously mentioned to

him.       He also raised Wadsworth's "menstruation issues" with her

doctor.

              At some point, Wadsworth got a prescription for birth

control,      but   the    parties   dispute   whether   Cavanaugh   had   any

involvement in the process to get the prescription.                  However,

throughout      their     relationship,   Principal    Cavanaugh   repeatedly

suggested that Wadsworth get a prescription for birth control and

asked detailed questions about her menstrual cycle and whether she

was using the birth control prescription.

              During this time, Principal Cavanaugh gave Wadsworth

money for various personal essentials (i.e., shampoo, conditioner,

soap, a toothbrush, toothpaste, various feminine hygiene products,

and a winter coat) and for school lunch.              He also gave her money

for nonessentials such as getting her hair and nails done for prom.

He paid for Wadsworth's school pictures and prom tickets and

offered to cover the cost of her SAT test.            It was not unusual for

Medomak teachers and administrators to provide some aid to students

in need.

              Principal Cavanaugh also encouraged Wadsworth to move in

with him and his wife,4 bringing up the possibility multiple times.




       In his briefing, Cavanaugh consistently uses the term "wife"
       4

but on at least one occasion specifies "common-law wife." He also
testified that his first and only marriage ended prior to the


                                      - 6 -
Over the course of May and June 2017, Cavanaugh sent Wadsworth

text messages on at least eight occasions encouraging her to come

stay with him -- once remarking "[I] am going to have to order you

to live at my house" -- but Wadsworth either did not directly

respond or provided a vague answer, deferring the decision to some

point in the future.         However, Cavanaugh eventually informed

Wadsworth that it was not a possibility, texting her: "I spoke

with work about you staying with me[,] and [I] can[']t."

            In Wadsworth's junior year, during which she turned

seventeen, and into the start of her senior year,                    Principal

Cavanaugh   met    with   Wadsworth    frequently    --   multiple    times   a

week -- sometimes during Wadsworth's classes and during her free

periods.    When Principal Cavanaugh pulled Wadsworth from classes,

those   meetings      were   recorded      because    Cavanaugh       had     to

affirmatively excuse Wadsworth from class, and during her junior

year, Wadsworth met with Cavanaugh during class hours at least

eight times.      But in October 2017, Cavanaugh asked the attendance

secretary "to stop entering his name in the comments if he excused

or dismissed [Wadsworth] as . . . teachers didn't like it and he

was getting grief for it."            Further, one of Wadsworth's peers

testified that "[a]lmost every day" Cavanaugh would come into

Wadsworth's study hall and talk to her, sometimes pulling her out


events in question. Despite this discrepancy, we follow his lead
and use the term "wife."


                                  - 7 -
of study hall to meet.             That student went on to explain that

Wadsworth "complained that she was missing out on study hall time"

as a result.

             Principal    Cavanaugh       and    Wadsworth    also    communicated

extensively via text message.                From    April to November 2017,

Cavanaugh    and    Wadsworth      exchanged      numerous,     near-daily      text

messages.    During that eight-month period, the two exchanged more

than 4,800 text messages, communicating at all hours of the day

and night.

             Cavanaugh     regularly       initiated       these     text    message

conversations and often, if Wadsworth did not respond quickly,

would send additional questions until she responded.                  He regularly

cited   a    "three[-]minute       response       rule,"     which    he    expected

Wadsworth to follow when he sent her a message and once explained

that she should "feel guilty" for not responding to his messages.

At   times   when     Wadsworth    did    not    respond    promptly,       Principal

Cavanaugh     would     threaten    physical        violence.        For    example,

Cavanaugh wrote: "Are you looking to get knocked?"; "You must be";

and "Don't challenge me woman.            I would hit you so hard, you would

starve to death before you quit rolling."                  He also wrote, "I bet

if I slapped you a couple times you would be mine forever." Another

time, after approximately three hours had passed with no response

from Wadsworth, Cavanaugh sent another series of messages: "Way

past the three[-]minute response rule!"; "Did you die?"; and "If


                                         - 8 -
it didn't sound creepy [I] might threaten you with a spanking."

On   another   occasion,   he   wrote   "I   might      have    to    give    you   a

spanking."

           Many of these text messages revolved around Wadsworth's

school work, college applications, and home life.                       Wadsworth

confided in Principal Cavanaugh about her struggles with her

parents, her health, her confidence, and a sexual assault she had

experienced.      Cavanaugh     often   played    the    role    of    confidant,

providing sympathy and words of advice in these messages. However,

he also initiated conversations about sex and made comments about

Wadsworth's appearance.

           Specifically,      Principal    Cavanaugh      regularly      inquired

into Wadsworth's dating and sex life.            On at least two occasions,

he asked her if she had experienced "the 'O' yet," likely referring

to whether Wadsworth had ever experienced an orgasm, and proceeded

to provide a vague explanation as to how she could, including that

she "just need[ed] some practice" and "should try [her]self and

then it w[ould] be easier for [her]."             He also asked if she had

"ever been with a girl."         And, on several occasions, Cavanaugh

asked Wadsworth to tell him her "scandalous" "secrets."                      And, in

addition to inquiring into Wadsworth's romantic life, Principal

Cavanaugh alluded to his own romantic prowess, writing things like

"Can you see now how I am so irresistible?" and "Girl, you know I

got game!"


                                   - 9 -
          Principal Cavanaugh also sent messages containing sexual

innuendos.   For example, he implied he wanted to see Wadsworth

perform a "topless cheerleading routine."      On another occasion,

Cavanaugh wrote: "You are like a daughter to me. . . . a scandalous

stepdaughter.   Hah hah."   He also suggested that Wadsworth could

be an erotic dancer, writing "10-4 princess" and explaining that

"10-4" was "the height of the pole [she] ha[d] to dance on."

          Principal   Cavanaugh     also   inquired    about   whether

Wadsworth might send him pictures of herself in a swimsuit and

remarked on times he had seen her in a swimsuit.      He once asked to

see what Wadsworth described as "scandalous" photos, telling her

to "[o]nly send [him] the scandolous [sic] ones!"         In the same

conversation, he referred to Wadsworth as "the sports illustrated

swimsuit model."   On another occasion, Cavanaugh asked Wadsworth

if she had ever sent "nude" pictures to anyone, later explaining

that "some of our boys" have "pictures of some of our girls," and

that "both the boys and girls are people in [Wadsworth's] circle."

          In the text messages, Cavanaugh often made remarks about

Wadsworth's appearance, particularly her attractiveness.          For

example, Principal Cavanaugh wrote: "Of course you have a pretty

big rack but that's because of the [birth control] pill" and then

"[w]ell[] you[r breasts] make me a little dizzy!"      In another set

of text messages he stated, "I know you are super hot and that

probably does influence me . . ."    He also remarked: "You are just


                              - 10 -
too hot for your own good!"      And, in response to Wadsworth writing

"I just flirt with you and get what I want," Cavanaugh wrote,

"Pretty much[,] I was always a sucker for a smokin['] chick[.]"

He also explained that "it would be hatd [sic] for [Wadsworth] to

not look sexy" and once referred to her as "a snappy little vixen."

And, on many occasions, Cavanaugh sent her admonitions to not "get

fat."

            In the text messages, Principal Cavanaugh referred to

Wadsworth as "princess," "cupcake," and "lady time" (the latter

also being a reference to Wadsworth's menstrual cycle).                    He also

referred to her as a "ho," which is generally understood as slang

for "whore."      On another occasion he referred to her as a "bitch."

Once, Cavanaugh referred to Wadsworth as a "skank," colloquially

understood to mean a woman of low moral character.                  At no point

did the relationship ever become physical.

            During    this   time,     Assistant     Principals         Pease   and

Philbrook   had    some   understanding       of   the    nature   of    Principal

Cavanaugh's relationship with Wadsworth.5                Both were aware of the

frequent meetings between Cavanaugh and Wadsworth and the fact

that several teachers had expressed concern with how often the two



     5 Wadsworth also alleges that Nguyen was well aware of
Principal Cavanaugh's conduct and that he told Wadsworth that
Cavanaugh was acting in her best interests. Additional details of
Wadsworth's allegations against Nguyen are set forth in Part
III.B.1 infra.


                                     - 11 -
met as it caused Wadsworth to miss class.                   Although it was not

unusual   for   the   principal     to    meet    regularly         with    students,

Assistant   Principal       Philbrook     had    concerns     about        when   those

meetings were happening and told him that "she had some concerns

about the number of times [he was] taking . . . Wadsworth out of

class."     Cavanaugh's      explanation        for   the    meetings       was    that

"Wadsworth was dealing with a difficult family situation and needed

support."   The assistant principals were also aware that Cavanaugh

referred to Wadsworth as "cupcake," that she was working for him,

that he wanted to invite her to live with him, and that they

communicated by text message (there is nothing in the record,

however, to suggest that they were aware of the content and extent

of the text messages).       At no point did either assistant principal

bring anything to the attention of the superintendent.

            The fall of 2017 saw the beginning of the end of the

relationship    between     Principal      Cavanaugh        and   Wadsworth.         On

September 19, 2017, during Wadsworth's senior year, Police Officer

Christopher Spear, assigned as a Medomak school resource officer,

pulled her over for speeding.           Wadsworth was driving the car that

Principal Cavanaugh had purchased for her.             Officer Spear inquired

as to why the registration was in Cavanaugh's name and later met

with Cavanaugh about the incident.          Officer Spear then reached out

to Assistant Principal Philbrook to express his concerns about

Wadsworth   driving     a    car   that    Cavanaugh        owned    and     insured.


                                    - 12 -
Philbrook told Officer Spear that she was aware that Wadsworth had

worked for Cavanaugh over the summer, and so when she learned

Wadsworth was purchasing the car from Cavanaugh it did not concern

her. She then explained that she and Pease had received complaints

about the amount of time Principal Cavanaugh spent with Wadsworth

and about him frequently excusing her from class.             She also

explained that both she and Pease "had tried to have professional

conversations"   with   Cavanaugh    about     his   relationship   with

Wadsworth.   Assistant Principal Philbrook also explained that

Principal Cavanaugh had asked Wadsworth to live with him.       Officer

Spear reported this to the police chief, who advised him to

"closely monitor the situation," as it did not appear that a

criminal act had been committed, only that Cavanaugh was exercising

poor judgment.

          Throughout this period, Theresa Kenniston, with whom

Wadsworth lived, had grown steadily more concerned about Principal

Cavanaugh's conduct toward Wadsworth.         In October 2017, Theresa

became aware that he had asked Wadsworth if she had ever sent nude

photos.   After learning this, she called the police.          When the

police arrived, Theresa gave the police Wadsworth's cell phone,

which the Kenniston family paid for.          Accordingly, the police

accessed the text messages between Cavanaugh and Wadsworth.

          Shortly   thereafter,     Theresa    Kenniston   submitted   a

statement to police detailing her concerns about the relationship


                              - 13 -
between Principal Cavanaugh and Wadsworth.              She explained that

Wadsworth had told her that Cavanaugh "call[ed] her cupcake,

pull[ed her out o[f c]lass to give her gifts or ask her how she is

doing[,] and text[ed] her frequently."          She also explained that

she understood Principal Cavanaugh to have arranged for Wadsworth

to have a doctor's appointment to get birth control.            Further, she

understood that Principal Cavanaugh had "got[ten] a hold of" a

naked picture of another student and that he had "gawked" at the

photo.

            Following Theresa Kenniston's report, on November 2, the

police    chief   contacted   Superintendent    Nolan    and    conveyed    the

concerns regarding the text messages.       The chief asked that Nolan

not take any action for twenty-four hours so as to not compromise

law    enforcement's   investigation.      On   November       5,   Nolan   put

Cavanaugh on leave and instructed him not to report to Medomak the

next     day.     Thereafter,   Superintendent     Nolan       initiated     an

investigation into Cavanaugh's conduct.         While the investigation

was ongoing and after Cavanaugh was instructed to not go onto

school property, Cavanaugh's attorney approached Wadsworth on

school property and asked her to sign an affidavit in support of

Cavanaugh. Nguyen later encouraged Wadsworth to sign the affidavit

and told her that she should apologize to Principal Cavanaugh's

family because they "had a right to be angry" at her.




                                  - 14 -
              After investigating the situation, Superintendent Nolan

prepared      a    memorandum        to    the   school      board   recommending     that

Cavanaugh be dismissed. However, before the board met, in December

2017, Cavanaugh resigned as principal.                       The police never charged

him    with       any   crime   in        connection    to    his    relationship     with

Wadsworth.

                                B. Procedural History

              In December 2019, Wadsworth initiated this lawsuit in

district court against Cavanaugh, Nguyen, and MSAD.6 Specifically,

her    complaint        alleges      that    Principal       Cavanaugh     harassed    and

discriminated against her and was therefore liable for depriving

Wadsworth of her constitutional rights in violation of 

.       The complaint does not articulate the specific rights

Wadsworth alleges Cavanaugh violated, but the litigation below

establishes that Wadsworth sought to advance two separate theories

of    liability:        (1)   that    Principal        Cavanaugh     had   violated    her

substantive due process rights by depriving Wadsworth of her right

to be free from invasions of her bodily integrity and (2) that




       Wadsworth initially also alleged claims against Medomak
       6

Valley High School. However, after MSAD filed a motion to dismiss
explaining that Maine law did not recognize high schools as legal
entities, Wadsworth filed an amended complaint removing Medomak
Valley High School as a defendant.


                                             - 15 -
Principal Cavanaugh had violated her equal protection rights by

sexually harassing her.

             Wadsworth     alleged    that     Nguyen   was   also    liable    for

depriving her of her constitutional rights in violation of § 1983

"by, among other acts and omissions, his failure to protect [her]

when   she    complained      about      [Principal      Cavanaugh's]       sexual

harassment and discrimination."              Again, her complaint does not

list the specific rights that she alleges Nguyen violated, but the

ensuing   litigation       establishes    that      Wadsworth's    § 1983      claim

encompasses three distinct bases for liability: (1) supervisor

liability, (2) violation of Wadsworth's equal protection rights,

and (3) violation of Wadsworth's substantive due process rights on

a state-created-danger theory.

             Finally, Wadsworth alleged that MSAD was liable for

depriving her of her constitutional rights in violation of § 1983

by failing to follow, apply, or enforce laws preventing harassment

and discrimination and by failing to adequately train and supervise

employees regarding their obligations to address sexual harassment

at Medomak.      She also alleged that MSAD had been deliberately

indifferent to the harassment in violation of Title IX.

             Early   on,    Nguyen    filed     a    motion   to     dismiss    the

constitutional claims against him, asserting that Wadsworth had

"fail[ed] to state an actionable claim because her state-created

danger theory does not apply, she did not allege the necessary


                                      - 16 -
facts for a direct equal protection claim, . . . the § 1983 claims

cannot be premised upon [supervisory] liability," and, regardless,

that qualified immunity protects him from suit. The district court

"conclude[d] that [Wadsworth] alleged a viable substantive due

process claim under § 1983 but not a viable" supervisor-liability

claim and that "qualified immunity d[id] not require dismissal."

Wadsworth    v.    Me.     Sch.   Admin.   Dist.    40/Reg.   Sch.    Unit   40,

19-cv-00577-JAW, 

, at *1, *17 (D. Me. Oct. 2, 2020).

More specifically, the district court held that there could be no

supervisory liability because "Wadsworth made no allegation that

. . . Nguyen had control over . . . Cavanaugh's actions."

            All    three    defendants     moved    separately    for    summary

judgment, and the district court issued three separate decisions

on those motions.        Cavanaugh sought summary judgment on both the

substantive due process claim and the equal protection claim.                 As

to the substantive due process claim, the district court determined

that   Wadsworth    could     not   establish      that   Principal     Cavanaugh

violated her right to bodily autonomy given that there was no

physical aspect to Cavanaugh's conduct and that, in any event,

Cavanaugh was entitled to qualified immunity.                    On the equal

protection claim, the district court determined that Wadsworth had

established the elements of the claim but that Cavanaugh was

nevertheless protected by qualified immunity because no First

Circuit case had determined that such conduct could be the basis


                                     - 17 -
of an equal protection violation. Thus, the district court granted

Cavanaugh    summary        judgment      on     the   constitutional      claims.

Wadsworth    v.     Me.    Sch.    Admin.      Dist.   40/Reg.   Sch.    Unit   40,

19-cv-00577-JAW, 

, at *1 (D. Me. Mar. 30, 2023).

            Nguyen        sought   summary       judgment   on     the   remaining

constitutional claim against him -- the substantive due process

claim.    In granting the motion, the district court concluded that

Wadsworth had failed to establish that Nguyen's behavior "shocked

the      conscience,"        as     was        required     to     establish      a

state-created-danger substantive due process claim.                  The district

court also determined that, regardless, Nguyen was entitled to

qualified immunity.          Wadsworth v. Me. Sch. Admin. Dist. 40/Reg.

Sch. Unit 40, 19-cv-00577-JAW, 

, at *1 (D. Mar. 30,

2023).

            Finally, MSAD moved for summary judgment on the § 1983

municipal liability claim and the Title IX claim.                As to municipal

liability, the district court determined that Wadsworth could not

establish liability under § 1983 on either of her theories.                     With

respect to Title IX, the court determined that Wadsworth could not

establish    that    "an    official      with   the   authority    to   implement

corrective measures had actual knowledge of the alleged harassment

and acted with deliberate indifference toward" Wadsworth.                   Thus,

the district court granted summary judgment to MSAD.                 Wadsworth v.




                                       - 18 -
Me. Sch. Admin. Dist. 40/Reg. Sch. Unit 40, 

, 89

(D. Me. 2023).

            Wadsworth       now    appeals    the   three      grants   of    summary

judgment     as      well     as      the     earlier       dismissal        of     the

supervisor-liability claim against Nguyen.

                            II. Standard of Review

            This case requires review of both a decision on a motion

to dismiss and decisions on motions for summary judgment.                     Because

the   appeal's     primary        challenge   is    to   the    summary      judgment

decisions, however, we recite that standard here:

            We review a district court's grant of a motion
            for summary judgment de novo.         We must
            construe the evidence "in the light most
            congenial to the nonmovant," and will affirm
            the grant of summary judgment where the record
            "presents no genuine issue as to any material
            fact and reflects the movant's entitlement to
            judgment as a matter of law."

Mullane v. U.S. Dep't of Just., 

, 130 (1st Cir. 2024)

(footnote    and    internal       citation   omitted)      (quoting    McKenny      v.

Mangino, 

 (1st Cir. 2024)).                 We apply this standard

unless otherwise indicated.

                                  III. Discussion

            As an initial matter, because many of Wadsworth's claims

are made pursuant to § 1983, we set forth the elements of such a

claim.      "To    succeed,    [a    plaintiff]     must    show:   (1)      that   the

complained-of conduct was committed under the color of state law,



                                       - 19 -
and (2) that such conduct violated [their] constitutional or

federal statutory rights."     Miller v. Town of Wenham, 

 (1st Cir. 2016) (citing Chongris v. Bd. of Appeals, 

 (1st Cir. 1987)).       Relevant to all of Wadsworth's § 1983

claims, the parties dispute only whether she established the second

element.

           Next,   because   both    Cavanaugh   and    Nguyen   argue   that

qualified immunity protects them, we set forth in part the relevant

structure of that review:     "We often follow 'a two-step approach'

to decide whether a defendant is entitled to summary judgment based

on qualified immunity."      Perry v. Spencer, 

 (1st

Cir. 2024) (quoting Stamps v. Town of Framingham, 

(1st Cir. 2016)).    First, we look to "whether there is a genuine

issue of disputed fact that would allow a reasonable finder of

fact to determine that the defendant violated the plaintiff's

federal constitutional rights."        

   Second, if there is such a

dispute, we determine "whether the right that the plaintiff can

supportably show was violated was clearly established at the time

of the defendant's alleged violation."        

      We need not take the

steps in "strict sequence" and can resolve the issue at either

step.   Estrada v. Rhode Island, 

 (1st Cir. 2010)

(quoting Bergeron v. Cabral, 

 (1st Cir. 2009),

abrogated on other grounds by Maldonado v. Fontanes, 

 (1st Cir. 2009)).


                                    - 20 -
              With these general principles set forth, we turn to the

specifics of the claims before us.

                    A. Claims Against Principal Cavanaugh

              We begin with the district court's grant of summary

judgment in favor of Cavanaugh, which we affirm with respect to

the substantive due process claim but reverse with respect to the

equal protection claim.

 1. Substantive Due Process: Right to be Free From Invasions of
                        Bodily Integrity7

              The district court determined that Wadsworth could not

establish a substantive due process violation and, even if she

could, Cavanaugh was entitled to qualified immunity because the

constitutional right that he allegedly violated was not clearly

established      at   the   relevant    time.        We    affirm   but   do   so   on

alternative grounds.

              The   Due   Process   Clause      of   the    Fourteenth    Amendment

prohibits a state from depriving a person of "life, liberty, or

property, without due process of law."                    U.S. Const. amend. XIV,

§ 1.       In this context, when the substantive due process claim is

focused on the individual actions of one government official,


       7To the extent Wadsworth seeks to frame this as a
state-created-danger claim, we agree with Cavanaugh and the
district court that the theory is inapt. Wadsworth's arguments
only establish that she is pursuing a substantive due process claim
based on a violation of her fundamental rights. Further, she does
not challenge the district court's treatment of the claim as a
straightforward substantive due process claim.


                                       - 21 -
untethered    to    any   government      policy,   "[t]he       substantive    due

process    guarantee      functions        to    protect     individuals       from

particularly       offensive     actions    on    the     part    of   government

officials."    Pagán v. Calderón, 

 (1st Cir. 2006)

(citation omitted).        "Where, as here, a plaintiff's substantive

due process claim challenges the specific acts of a state officer,

the plaintiff must show both that the acts were so egregious as to

shock the conscience and that they deprived him of a protected

interest in life, liberty, or property."                

 (citing Rivera v.

Rhode Island, 

 (1st Cir. 2005)).

            Wadsworth     bases    her     substantive     due    process     claim

against Cavanaugh on her right to be free from invasions of her

bodily    integrity.       The    right     to   bodily    integrity     is    well

established, see, e.g., Vacco v. Quill, 

 (1997)

(noting "well-established, traditional rights to bodily integrity

and freedom from unwanted touching"); however, identifying a right

is but the first step.           Wadsworth must also establish that the

alleged conduct at issue deprived her of that protected right.

See Pagán, 

.        Cavanaugh argues that Wadsworth cannot

do so because the case law defining the right to bodily integrity

requires a physical invasion and Wadsworth has neither alleged nor

established a physical component to the harassment.

            The district court concluded that Wadsworth could not

satisfy either prong of the due process analysis -- i.e., that she


                                    - 22 -
could not show that Principal Cavanaugh's conduct violated her

rights or that his conduct shocked the conscience.       Specifically,

the district court determined that Wadsworth could not, as a matter

of law, make out a violation of her right to bodily integrity

because there was no "authority supporting the proposition that

non-physical harassment alone can violate the right to bodily

integrity." The district court explained that the case law finding

that sexual harassment is a violation of the right to bodily

integrity is, to date, limited to instances where the harassment

had a physical component.

            The district court also held it could not conclude that

Principal   Cavanaugh's    conduct   was   conscience   shocking.   It

explained that because no First Circuit case had unequivocally

determined that non-physical harassment rose to the level of

conscience shocking it could not find that Cavanaugh's conduct

shocked the conscience.8


     8 To the extent the district court believed that a lack of
on-point First Circuit case law could be an independent basis for
denying summary judgment, we note that whether conduct shocks the
conscience is a fact-intensive inquiry, see Pagán, 

,
and this court has made clear that, although we have yet to
encounter non-physical conduct that rises to that level, in the
right circumstances (if sufficiently egregious), exclusively
verbal harassment could rise to the level of conscience shocking.
See Brown v. Hot, Sexy and Safer Prods., Inc., 

(1st Cir. 1995) ("Although we have not foreclosed the possibility
that words or verbal harassment may constitute conscious [sic]
shocking behavior in violation of substantive due process rights,
our review of the case[ ]law indicates that the threshold for
alleging such claims is high and that the facts alleged here do


                                - 23 -
            On appeal, Wadsworth argues that the district court

erred in concluding that non-physical harassment could not shock

the conscience and, in turn, erred in concluding that Wadsworth's

substantive due process claim was not viable.              Wadsworth does not,

however, address the question of whether non-physical harassment

can violate the right to bodily integrity; she merely argues that

a jury could conclude that Principal Cavanaugh's conduct was

"shocking    or   violative    of   universal      standards     of   decency."9

(Quoting Amsden v. Moran, 

 (1st Cir. 1990)).                As

we have explained, Wadsworth must establish both that Cavanaugh's

conduct     was   conscience   shocking      and    that    it   violated   her

fundamental right to bodily integrity.          See Pagán, 

.

Because she does not challenge the district court's conclusion as

to the latter or present any argument as to why we must conclude

that non-physical harassment violated her rights, her appellate



not rise to that level." (internal quotation marks and citations
omitted)); Souza v. Pina, 

 (1st Cir. 1995) (same);
Pittsley v. Warish, 

, 7 n.3 (1st Cir. 1991) (same),
abrogated on other grounds by Martinez v. Cui, 

(1st Cir. 2010).
     9 In another section of her brief, Wadsworth argues that

"[t]here are innumerable cases stating th[e] proposition" that
sexual harassment violates the right to bodily integrity. While
this is technically correct, Wadsworth has not connected those
cases to the type of harassment alleged here -- that which does
not involve physical abuse. Wadsworth relies exclusively on cases
that hold that physical sexual harassment violates the right to
bodily integrity and, as we have already explained, she has mounted
no argument as to why the right must be expanded to include
non-physical harassment.


                                    - 24 -
claim must fail.10   Cf. Morgan v. Town of Lexington, 

,

742–44 (1st Cir. 2016) (deciding bodily integrity case alleging

bullying on shocks-the-conscience step).    Accordingly, we affirm

the district court's grant of summary judgment to Cavanaugh with

respect to Wadsworth's substantive due process claim, without

considering whether the second prong of qualified immunity would

also protect Cavanaugh -- the district court's second basis for

granting summary judgment.




     10Wadsworth cited no case where a court concluded that sexual
harassment with no physical component amounted to a violation of
a person's fundamental right to be free from invasions of their
bodily integrity. Nonetheless, as the district court explained:
     This area of law may be ripe for reexamination as to
     whether pervasive, non-physical sexual harassment may be
     as harmful to the victim's constitutional right to
     bodily integrity as some forms of physical abuse. . . .
     Here, a high school principal engaged in prolonged,
     pervasive, and persistent sexual harassment of a teenage
     girl under his authority, who was struggling with a
     difficult family situation, and his actions were bound
     to cause confusion, emotional distress, worry, and other
     significant psychological harms. If Mr. Cavanaugh had
     even momentary sexual contact with Ms. Wadsworth, the
     [c]ourt could apply an entirely different analysis to
     this case . . . it strikes the [c]ourt that the current
     state of the law artificially diminishes the impact of
     psychological sexual harassment.
However, this case does not present the opportunity to reexamine
the confines of the right, so we leave for another day the question
of whether non-physical harassment violates the right to bodily
integrity.


                               - 25 -
                2. Equal Protection: Sex Discrimination

          The    district   court   also    granted   Cavanaugh   summary

judgment on Wadsworth's equal protection claim, determining that

although Wadsworth had established a constitutional violation,

Cavanaugh was nevertheless entitled to qualified immunity.             In

pertinent part, the district court concluded that Wadsworth could

not show that the      constitutional      right at issue   was clearly

established at the time it was allegedly violated because she had

not pointed to any First Circuit case law on point.

          On appeal, Wadsworth argues, as she did below, that

out-of-circuit precedent renders the constitutional right well

established.    Cavanaugh responds that (1) the district court erred

in concluding that Wadsworth could establish an equal protection

violation in the first place, (2) Wadsworth waived review of any

argument that the district court's qualified immunity analysis was

erroneous for lack of development, and (3), in any event, he is

entitled to qualified immunity because the right was not clearly

established.     For the reasons explained below, we conclude that

the district court correctly determined that Wadsworth's equal

protection claim was valid, despite applying the incorrect test,

that Wadsworth did not waive her qualified immunity argument, and

that the district court      erred in      deciding that Cavanaugh is

entitled to qualified immunity at the summary judgment stage.          We




                                - 26 -
therefore reverse the district court's grant of summary judgment

to Cavanaugh on Wadsworth's equal protection claim.

                            a. Applicable Framework

             To make out an equal protection claim, the district court

stated that Wadsworth was required to, and did, establish both

that she was "selectively treated compared with others similarly

situated     and   that    such    treatment      was   based   on   impermissible

considerations."          The district court determined that "when the

claim is brought against the alleged perpetrator directly, the

question is not whether [they] treated this victim differently

from another victim of harassment; instead, it is whether [they]

harassed     the   victim    due    to    an   impermissible     consideration."

Because Wadsworth alleged that Principal Cavanaugh harassed her

and treated her differently because of her sex, the "similarly

situated comparators would thus be male students at [Medomak Valley

High School.]"         On appeal, Cavanaugh challenges this portion of

the district court's analysis, arguing that "all male students"

cannot be a "factually similar comparator."

             Although the parties and district court all seem to agree

that the applicable test requires Wadsworth to establish the

existence     of   a    similarly    situated       comparator,      that   is   not

correct.11    The Equal Protection Clause provides that "[n]o State


     11We do not consider Wadsworth's request for the application
of an incorrect legal test to be a waiver because parties may not


                                         - 27 -
shall . . . deny to any person within its jurisdiction the equal

protection of the laws," U.S. Const. amend. XIV, § 1, and requires

that "all persons similarly situated be treated alike."       Rocket

Learning, Inc. v. Rivera-Sánchez, 

 (1st Cir. 2013)

(cleaned up) (quoting City of Cleburne v. Cleburne Living Ctr.,

 (1985)).      It is well established that sex

discrimination violates the Equal Protection Clause.     See Lipsett

v. Univ. of P.R., 

, 896–97 (1st Cir. 1988).       Sexual

harassment is a type of sex discrimination.       See 

.

Though an equal protection claim often requires a plaintiff to

establish "that '(1) the person, compared with others similarly

situated, was selectively treated; and (2) that such selective

treatment was based on impermissible considerations such as race,

religion,   intent   to   inhibit   or   punish   the   exercise   of

constitutional rights, or malicious or bad faith intent to injure

a person,'" Davis v. Coakley, 

 (1st Cir. 2015)

(quoting Rubinovitz v. Rogato, 

 (1st Cir. 1995)),


waive or stipulate to the use of an inappropriate legal test. See
TI Fed. Credit Union v. DelBonis, 

 (1st Cir. 1995)
("Issues of law are the province of courts, not of parties to a
lawsuit, individuals whose legal conclusions may be tainted by
self-interest. Courts, accordingly, 'are not bound to accept as
controlling, stipulations as to questions of law.'" (quoting
Sanford's Est. v. Comm'r, 

 (1939))); see also Kamen
v. Kemper Fin. Servs., Inc., 

 (1991) ("When an issue
or claim is properly before the court, the court is not limited to
the particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper
construction of governing law.").


                               - 28 -
as    the   concurrence   explains,      a   relevant   comparator   is   not

necessarily a requirement under the Equal Protection Clause.              This

is one such situation; an equal protection sexual harassment claim

requires a different form of analysis.

             In Lipsett, the court adopted the framework applicable

to Title VII and Title IX sexual harassment claims against a

teacher or supervisor to an equal protection claim alleging sexual

harassment.      

; see also Hayut v. State Univ. of

N.Y., 

, 738-39, 743 (2d Cir. 2003) (employing Title

VII   standard    to   assess   equal    protection     hostile   educational

environment claim); Roy v. Correct Care Sols., LLC, 

 (1st Cir. 2019) (same for claim brought under both Title VII

and Equal Protection Clause).           Following that precedent, we also

look to Title VII and Title IX to set forth the applicable

framework.

             Where a plaintiff alleges that the perpetrator created

a hostile environment by "forc[ing] a [student] [to] run a gauntlet

of sexual abuse in return for the privilege of being allowed to

[go to school]," Lipsett, 

 (second alteration in

original) (citation omitted), the plaintiff must show that they

were (1) subjected to unwelcome harassment (2) on the basis of sex

and (3) that the harassment was sufficiently severe or pervasive

to create an abusive educational environment.             See id.; Grace v.

Bd. of Trs., Brooke E. Boston, 

, 11 (1st Cir. 2023)


                                   - 29 -
(quoting Frazier v. Fairhaven Sch. Comm., 

 (1st

Cir. 2002)); Nieves-Borges v. El Conquistador P'ship, L.P., S.E.,

 (1st Cir. 2019).

             Additionally, "[t]he 'plaintiff must show that [they]

subjectively perceived the environment to be hostile or abusive

and that the environment objectively was hostile or abusive, that

is,   that    it     was   permeated   with     discriminatory    intimidation,

ridicule, and insult sufficiently severe or pervasive to alter the

conditions of [their] educational environment.'" Roe v. St. John's

Univ., 

 (2d Cir. 2024) (quoting Papelino v. Albany

Coll. of Pharmacy of Union Univ., 

 (2d Cir. 2011));

see Nieves-Borges, 

 (in Title VII hostile environment

claim plaintiff must show that "sexually objectionable conduct was

both objectively and subjectively offensive" (quoting Roy, 

)). Whether a plaintiff makes this showing is determined

"'in light of the record as a whole' and the 'totality of the

circumstances.'" Lipsett, 

 (quoting Meritor Savings

Bank,   FSB     v.    Vinson,   

   (1986));    see   also

Nieves-Borges, 

.

             Here,     Wadsworth   alleged      that    Principal      Cavanaugh's

conduct created a hostile educational environment for her at

Medomak.      Thus, she need not have established the existence of a

similarly situated comparator in order to make out her claim

against Cavanaugh.         See Lipsett, 

.         We now turn to


                                       - 30 -
whether, applying the proper test, Wadsworth's equal protection

claim against Cavanaugh is viable.               We conclude that it is.

                    b. Application of the Framework

           Viewing      the   record    as   a    whole   and   considering   the

totality of the circumstances, as we must, we conclude that a

reasonable jury could find that Wadsworth made out each of the

necessary elements of her claim that Principal Cavanaugh violated

the Equal Protection Clause by creating and subjecting Wadsworth

to a hostile educational environment at Medomak.                See Lipsett, 

.

           To begin, we consider whether a jury could find that

Principal Cavanaugh's conduct amounted to sexual harassment, which

is necessarily harassment based on sex.                See Nieves-Borges, 

.     We have expounded on various types of behavior that

amount to sexual harassment:            In Lipsett, we explained that such

conduct   could    be   comprised      of,   among     other    things,   "verbal

expressions."     

.       We have also stated that "behavior

like . . . come-ons[] and lewd remarks is often the stuff of"

sexual harassment.       Gerald v. Univ. of P.R., 

 (1st

Cir. 2013) (quoting Billings v. Town of Grafton, 

(1st Cir. 2008)).       We have also pointed to "[e]vidence of sexual

remarks, innuendos, ridicule, and intimidation" as sufficient to

support a jury verdict on sexual harassment.              Franchina v. City of

Providence, 

 (1st Cir. 2018) (quoting O'Rourke v.


                                       - 31 -
City of Providence, 

 (1st Cir. 2001)).                       Further,

"a    'raft   of    case    law    establishes   that    the   use       of   sexually

degrading, gender-specific epithets, such as slut, . . . whore,

and bitch has been consistently held to constitute harassment based

upon sex.'"         

 (cleaned up) (quoting Forrest v. Brinker Int'l

Payroll Co., 

 (1st Cir. 2007)); see also Lipsett,

    (noting    "sexually    charged       nicknames"       as

contributing        to   sexual     harassment).        Finally,     a    harasser's

motivation      need       not    include   "evidence     of   explicit         sexual

propositions," Nieves-Borges, 

, rather it may be

inferred from "implicit proposals," 

 at 9-10 (quoting Oncale v.

Sundowner Offshore Servs., Inc., 

 (1998)).

              Wadsworth has presented a plethora of evidence from

which a jury could find that Principal Cavanaugh sexually harassed

her.    For one, Cavanaugh often sent messages containing sexual

innuendos, which could be read as implying an interest in having

a sexual relationship with Wadsworth.               He asked for pictures of

her in a swimsuit and whether she had taken nude pictures of

herself;      regularly discussed her appearance, describing her as

attractive and as having "a pretty big rack" and breasts that made

him "a little dizzy!"; asked her about her sex life; and used

sexually charged, "gender-specific epithets" to refer to Wadsworth

such as "ho," "skank," "bitch," and "lady time."                See Jennings v.

Univ. of N.C., 

, 695 (4th Cir. 2007) (jury could find


                                       - 32 -
"crude questions and comments" about student's sexual activities,

comments about student's body, and discussions of sexual fantasies

about student amounted to sexual harassment).                The sexual nature

of    these    interactions    is   facially       apparent,    and,    although

Cavanaugh contends that everything was said in jest, a reasonable

jury could reject that explanation.            See id. at 695 (harasser's

contention that "sex-focused comments were 'of a joking and teasing

nature'" rejected where jury could conclude the comments "were

degrading and humiliating").

              We next consider whether a jury could conclude that

Principal Cavanaugh's conduct was unwelcome.                   In Lipsett, we

explained      that   unwelcomeness    must     be     considered      from    the

perspective of all involved parties and, as relevant here, that

"consistent failure to respond to suggestive comments or gestures

may   be   sufficient     to   communicate     that    the . . . conduct        is

unwelcome."      

.     The record reflects that on many

occasions when Principal Cavanaugh sent suggestive text messages,

Wadsworth would not respond for          an extended         period of        time.

Although      Wadsworth   described   many    of     their   conversations      as

"joking" and explained that talking to Cavanaugh was like talking

to "a teenage friend," she also testified that because of her

difficult home life Principal Cavanaugh "was one of the only people

. . . [she] could rely on" and that she "didn't want to mess that

up by saying that [she was] uncomfortable" discussing certain


                                    - 33 -
topics. Wadsworth went on to explain that "she remembered thinking

that there [were] certain times where [she] should say [she didn't]

want to talk about this or [she] should not engage in this and

probably shouldn't be talking about this, and felt that it [went]

a little too far."     She explained that she considered "several

options [to stop the conversations]" such as telling Principal

Cavanaugh "it made [her] feel uncomfortable" but worried that doing

so "would change [their] dynamics a lot" and that "if [she] made

it a big deal" it could "affect school and [make it] awkward to go

to school" and "how can [one] ignore the principal in the school

and how is it going to make school awkward."       She went on to

explain that, "instead of telling [Principal Cavanaugh] that he

was making [her] feel uncomfortable, [Wadsworth] would just find

other ways to do it and just not answer and say that [she] was at

practice or doing homework or [she] was busy and just ho[ped] that

the conversation would change from there."

          Additional record evidence that supports a jury finding

of unwelcomeness includes Wadsworth's young age (she was sixteen,

later seventeen, during the relevant period); her vulnerability

given her home life; and the power imbalance between Wadsworth, a

teenage high school student, and Cavanaugh, the fifty-something

school principal.    Based on this substantial record evidence, in

addition to Wadsworth's sworn deposition testimony, a jury could




                               - 34 -
reject    Cavanaugh's       contention   that     Wadsworth     was    a   willing

participant and find that his conduct was unwelcome.

            The conduct must also have been sufficiently severe or

pervasive.   We conclude that a reasonable jury could find that the

record supports that Principal Cavanaugh's conduct was severe

and/or pervasive.      Here, we look to "numerous factors (to which we

assign no particular determinative weight)" including "severity of

the discriminatory conduct, its frequency, the extent to which the

behavior is physically threatening or humiliating as opposed to a

mere offensive utterance, and the extent to which it unreasonably

interferes with an employee's work performance."                Franchina, 

 (citing Gerald, 

).

            The record reveals near daily messages from Principal

Cavanaugh sent at all hours, including during the school day and

late at night, and weekly (if not daily) meetings. While Principal

Cavanaugh sent many unremarkable messages, the sheer volume and

the consistent discussion of topics related to sex, Wadsworth's

romantic life, and her appearance could lead a jury to conclude

that Cavanaugh's harassment was pervasive.             See Hayut, 352 F.3d at

746   (noting   that    a    "reasonable       trier   of    fact"    could   find

pervasiveness where professor used sexualized nickname to refer to

student   "during   many      periods    of    instruction").         Further,   a

reasonable jury could find that some of Principal Cavanaugh's text

messages,    especially       given   Wadsworth's      age    and     Cavanaugh's


                                      - 35 -
position of power, were severe.          In addition to sexually charged

messages relating to her appearance, the comments and implications

of violence Principal Cavanaugh sent when Wadsworth did not reply

quickly to his inquiries are particularly illustrative of the

"threatening [and] humiliating" nature of Cavanaugh's conduct.

Franchina, 

. Principal Cavanaugh's use of sexualized

nicknames and inquiries into Wadsworth's sex life could also allow

a reasonable jury to find that his actions "were severe enough to

transcend the bounds of propriety and decency, let alone harmless

humor, and become actionable harassment[.]"               Hayut, 352 F.3d at

747 (concluding that a jury could find comments with "powerful

sexual connotations and overtones" to be severe).

           Next, a reasonable jury could conclude that Principal

Cavanaugh's      conduct   was    both     subjectively     and   objectively

offensive. To begin, a jury could reasonably find that Cavanaugh's

conduct was objectively offensive given the nature and context of

Principal Cavanaugh’s comments, particularly the sexual overtones

and the power imbalance between a principal and student.                    Cf.

Jennings, 482 F.3d at 696-97 (assessing harasser's "tremendous

power and influence" as part of the "constellation of surrounding

circumstances, expectations, and relationships").             In addition, a

jury   could   conclude    that   Wadsworth    found     Cavanaugh's   conduct

offensive because, although she sometimes considered Cavanaugh to

be   "joking,"    she   also   testified    that   the    messages   made   her


                                   - 36 -
"uncomfortable" and that she sought out ways to make Principal

Cavanaugh stop without negatively impacting her school life.

           Finally, a reasonable jury could conclude that Principal

Cavanaugh's conduct impacted Wadsworth's learning environment.

See Lipsett, 

.          Support for this finding includes

the messages Principal Cavanaugh sent throughout the school day,

his frequent meetings with Wadsworth during both her class time

and study hall (coupled with evidence that this caused her stress),

the content of his messages to her, her concern that her responses

to his messages could impact her experience at school, and the

fact that his treatment of Wadsworth was a frequent source of

gossip   for    other   students   and    teachers.       On   this   record,   a

reasonable jury could conclude that Cavanaugh's conduct created

"an abusive [educational] environment."            

           Accordingly, we reject Cavanaugh's contention that we

may   affirm    on   the   alternate     grounds   that    Wadsworth's    equal

protection claim is not viable.

           We    turn   now   to   Cavanaugh's     argument    that,   even     if

Wadsworth's equal protection claim is viable, qualified immunity

bars her claim against him.

                  c. Entitlement to Qualified Immunity

           Qualified immunity "is available to public officials

whose 'conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have


                                    - 37 -
known.'"    Bergeron, 

 (quoting Harlow v. Fitzgerald,

 (1982)).       "Clearly established means that, at

the time of the [official's] conduct, the law was sufficiently

clear that every reasonable official would understand that what

they are doing is unlawful."       Heredia v. Roscoe, 

 (1st Cir. 2025) (quoting Segrain v. Duffy, 

(1st Cir. 2024)); see also Penate v. Sullivan, 

(1st Cir. 2023) (explaining that we consider "the clarity of the

law" and whether, "on the facts of the particular case," "a

reasonable defendant would have understood that [their] conduct

violated the plaintiff['s] constitutional rights." (cleaned up)

(quoting Maldonado, 

)). "Indeed, '[i]t is important

to emphasize that this inquiry must be undertaken in light of the

specific context of the case, not as a broad general proposition.'"

Maldonado, 

 (quoting Brosseau v. Haugen, 

 (2004)). "Cognizant of both the contours of the allegedly

infringed right and the particular facts of the case, '[t]he

relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable

[school    administrator   or   teacher]   that   [their]   conduct   was

unlawful . . . .'"    

 (quoting Brosseau, 

).         In

other words, we ask "whether the state of the law at the time of

the alleged violation gave [Cavanaugh] fair warning that his




                                 - 38 -
particular conduct was unconstitutional."                       

 (citing Hope v.

Pelzer, 

 (2002)).

            The district court decided the issue on narrow grounds,

concluding that Wadsworth had not established the right was clearly

established because she failed to cite any First Circuit authority

holding that a teacher's non-physical sexual harassment of a

student violates the student's equal protection rights where the

harassment is devoid of hostility and "direct sexual advances."

On appeal, Wadsworth argues this was error, pointing us to several

out-of-circuit cases that she argues make clear that the equal

protection right to be free from non-physical sexual harassment

was    clearly    established       at    the     time    the     conduct   occurred.

Cavanaugh argues Wadsworth waived this issue by insufficiently

addressing it in her principal brief and, secondly, that Wadsworth

cannot    succeed    without        citing      binding     precedent.        Neither

contention is availing.         As we will lay out below, we conclude

that the district court erred as a matter of law when it determined

that   Wadsworth    could     not    demonstrate         that    the   constitutional

violation   was     clearly    established        and     that,    given    our   equal

protection analysis, Cavanaugh is not entitled to summary judgment

on qualified immunity.

            First, we reject Cavanaugh's contention that Wadsworth

waived the issue for lack of development. See Mazariegos v. Lynch,

, 285 n.5 (1st Cir. 2015) (claim "unaccompanied by any


                                         - 39 -
developed argument or legal support" may be waived).         Wadsworth

sufficiently developed her position by citing five cases to support

her argument.   Because these cases speak for themselves, there was

no need for Wadsworth to explain at length how they support her

position.   The issue is not waived.

            Next, we reject Cavanaugh's assertion that a litigant

must point to in-circuit law in order to show that a right is

clearly   established.    It    is   well   recognized   "that   clearly

established law can be dictated by controlling authority or a

robust consensus of persuasive authority."       Irish v. Fowler, 

 (1st Cir. 2020) (citing Dist. of Columbia v. Wesby,

, 63 (2018)).       And, we have made clear that we may

"look[] to the case law of sister circuits in determining whether

a right was clearly established."        McCue v. City of Bangor, 

 (1st Cir. 2016).     Thus, we turn to the relevant case

law.

            On review, we agree with Wadsworth that at the time in

question her equal protection right to be free from non-physical

harassment was clearly established -- under both out-of-circuit

case law and First Circuit case law.        Given our analysis of the

claim as to what a reasonable jury could find on this record, it

is clear that, at this juncture, qualified immunity does not

protect Principal Cavanaugh.




                                - 40 -
              To begin, as discussed earlier in this decision, in

Lipsett, this court made clear that sexual harassment in the form

of "pointed threats," "sexual advances," and "sexually charged

nicknames," along with other forms of sex-based comments, is enough

to    establish     a   prima    facie     case      of    sexual    harassment        in   an

educational        context.       

    (addressing        sexual

harassment in the context of a medical residency program, covered

by both Title IX and Title VII); 

 ("If such a state

official      directly       engaged     in        sexual    harassment         or    sexual

discrimination, [they] would, of course, be subject to [§] 1983

liability" on an equal protection violation theory).                                 Lipsett,

standing alone, provides clear guidance that a teacher's conduct

that includes threats, sexualized comments, and sexually charged

nicknames can rise to the level of sexual harassment.12

              Further, Wadsworth has pointed our attention to four

other circuits that have held that conduct similar to what is

alleged here -- perpetrated by an educator against a student --

violates the student's equal protection rights.                         See Maldonado,

      (noting,      in    the     context    of   a    different


        We note that Wadsworth has not cited Lipsett to support her
       12

position. Instead, she relies on out-of-circuit case law. This
is of no matter, however, as, "[i]n conducting a qualified immunity
analysis, a court should 'use its full knowledge of its own [and
other relevant] precedents.'" Barton v. Clancy, 

(1st Cir. 2011) (quoting Elder v. Holloway, 

(1994)). Furthermore, the out-of-circuit cases on their own are
sufficient to support our conclusion.


                                         - 41 -
constitutional right, that "[t]hree other circuits had announced

[the right] well before the violations alleged here" and concluding

that officials were not entitled to qualified immunity).

          In    Hayut,    the   Second      Circuit    addressed    a   sexual

harassment equal protection claim against a college professor who

persistently referred to his student as "Monica," a reference to

her resemblance to Monica Lewinsky, and made other pointed remarks

referencing the then-recent Lewinsky-Clinton sex scandal both

privately and in class.     352 F.3d at 738-39, 743.        On those facts,

the court determined that the plaintiff had alleged an equal

protection     claim   sufficient    to      survive     summary    judgment,

concluding that the sexually-charged "comments were severe enough

to transcend the bounds of propriety and decency, let alone

harmless humor, and become actionable harassment based on [the

plaintiff's] sex."       Id. at 744-45, 747.      A jury could find that

Principal Cavanaugh engaged in a similar course of conduct.              While

his behavior was far less public, he used sex-based epithets and

infused conversations with Wadsworth with sexual commentary and

remarks regarding Wadsworth's attractiveness.

          In    Jennings,    the   Fourth    Circuit     reviewed   a   sexual

harassment equal protection claim brought by a university student

against her soccer coach.       482 F.3d at 691.       The coach "engaged in

sexually charged talk in team settings," "bombarded players with

crude questions and comments about their sexual activities[,] made


                                   - 42 -
comments about players' bodies that portrayed them as sexual

objects," and "expressed . . . his sexual fantasies about certain

players."     Id. at 691.       The court determined that a jury could

reasonably    find   that     the   coach's    conduct   amounted    to   sexual

harassment in violation of the student's equal protection rights.

Id. at 695-96, 701.         Here, Principal Cavanaugh engaged in similar

conduct that a reasonable jury could find involved "sexually

charged talk," "crude question[ing]," and sexual objectification.

            In Delgado v. Stegall, at the motion to dismiss stage,

the Seventh Circuit explained that a university teacher violated

a student's equal protection rights by "repeatedly asking her 'Do

you love me?' and 'Would you ever marry a man like me?'" and by

"ask[ing] her for hugs, rub[bing] her shoulders, and tickl[ing]

her."   

 (7th Cir. 2004), abrogated on other

grounds by Fitzgerald v. Barnstable Sch. Comm., 

(2009).     Although Principal Cavanaugh did not engage in similar

physical conduct, a reasonable jury could find his remarks hit a

similar tone of obsessive sexual interest.

            Finally, in Doe v. Hutchinson, an unpublished case, the

Tenth Circuit remarked that "[i]t is well[-]established in [the

Tenth   Circuit]     that    sexual   harassment    by   a   state   actor   can

constitute a violation of the [E]qual [P]rotection [C]lause" and

went on to explain that where a high school teacher was alleged to

have spoken about students in sexualized terms, inquired into and


                                      - 43 -
made jokes about the student-plaintiff's sex life, and discussed

his   own      sex   life,   the   student    had    alleged    a   viable    hostile

environment equal protection claim.                

, 830-31, 832

(10th Cir. 2018) (quoting Murrell v. Sch. Dist. No. 1, 

 (10th Cir. 1999)).              Again, Principal Cavanaugh engaged

in    a     similar     course      of     conduct     in    his     treatment       of

Wadsworth -- using sexualized nicknames, asking about her sex life,

her physical appearance, and invoking sexual innuendos.

               Although these cases do not present factual scenarios

identical to the one at hand, identicality is not required.                        As we

have explained, "[i]n arguing for clearly established law, a

plaintiff is not required to identify cases that address the

particular factual scenario that characterizes                      [their]    case."

Alfano v. Lynch, 

 (1st Cir. 2017).                            Instead,

"'[g]eneral statements of the law are not inherently incapable of

giving fair and clear warning to public officials,' rather, the

existence of fair and clear warning depends on whether[] 'in the

light     of    pre-existing       law'     the    unconstitutionality        of    the

challenged conduct is 'apparent.'"                

 (citations omitted) (first

quoting United States v. Lanier, 

 (1997), then

quoting Anderson v. Creighton, 

 (1987)). In fact,

the cases described do not present a general statement of law but

rather      describe    situations        quite    similar     to   what   Wadsworth

experienced here.            Moreover, the students in those cases were


                                          - 44 -
arguably far less vulnerable than Wadsworth was and the power

differential between the victims and their perpetrators was, in

comparison,   arguably   much   smaller   than   the   student-principal

dynamic at play here.    Each of the cases discussed above, with the

exception of Hutchison, involved university students, and, given

that students in higher education are generally older and less

vulnerable than high school students, it is particularly apparent

that the legal principles established in these cases apply equally,

if not with more force, to teachers and administrators in the high

school setting.     Given the facts and holdings in these cases and

the record in the present case, a reasonable jury could conclude

that Principal Cavanaugh sexually harassed Wadsworth in violation

of her equal protection rights, and we have no doubt that, assuming

Cavanaugh did so, a reasonable high school teacher or administrator

would understand that the described conduct would violate the

student's constitutional rights.13

                       B. Claims Against Nguyen

          Now, we turn to whether the district court erred in

dismissing    the   supervisor-liability,    equal     protection,   and

substantive due process claims against Nguyen.         We first address


     13To the extent the district court and Cavanaugh believe that
in order for case law to be clearly established it must not involve
hostility or direct sexual advances, we note that none of the cases
relied on here depended on hostility or direct sexual advances to
conclude that sexual harassment had occurred, and thus we reject
this position.


                                 - 45 -
the district court's decision on Nguyen's motion to dismiss --

which   concluded        that     Wadsworth       did     not    have    a      viable

supervisor-liability or equal protection claim -- and then address

the substantive due process claim, which the court dismissed at

the summary judgment stage. For the reasons that follow, we affirm

both decisions.

                            1. Motion to Dismiss

            As   noted,    the     district       court   rejected      Wadsworth's

supervisor-liability and equal protection claims at the motion to

dismiss stage.     Accordingly, "[w]e review [the] district court's

grant of [the] motion to dismiss de novo."                      Torres-Estrada v.

Cases, 

 (1st Cir. 2023).                     "To assess whether a

complaint can withstand a Rule 12(b)(6) motion, we 'must accept as

true all well-pleaded facts indulging all reasonable inferences in

[Appellant's] favor.'"          Rae v. Woburn Pub. Schs., 

(1st Cir. 2024) (alteration in original) (quoting Fantini v. Salem

State Coll., 

 (1st Cir. 2009)).

            We   first    lay     out    the     relevant    facts,     taken    from

Wadsworth's amended complaint.              She alleged that Nguyen was a

social worker at Medomak, supervised by the Director of Student

Services.     She also alleged that Nguyen, like other school staff,

was required to report "possible incidents of discrimination or

harassment" and that a student may also report instances of sexual

harassment.      Relevant to Nguyen's particular conduct, Wadsworth


                                        - 46 -
alleged that she asked Nguyen about the propriety of certain things

Principal   Cavanaugh    did    --     namely,        giving    Wadsworth    personal

hygiene   products,    taking       her    to    a   doctor's    appointment,      and

advising her that she should take birth control pills -- and he

responded   that    nothing     was       inappropriate        and   that   Principal

Cavanaugh was "just trying to be a 'father figure.'"                     She alleged

that Nguyen witnessed Cavanaugh comment on Wadsworth's "looks and

clothing choices."      Following Cavanaugh's suspension, she alleged

that Nguyen called her into his office to tell her that "Cavanaugh

had a drinking problem."

            Accordingly,      she     alleged        that   "Nguyen    became    aware

of . . . [Principal]     Cavanaugh's            inappropriate        behavior   toward

[Wadsworth] in 2016" and, despite this knowledge and "duty to

report," he failed to "institute corrective measures to protect

[Wadsworth]" although he had the "authority" to do so.                      Finally,

she alleged that once the relationship between Principal Cavanaugh

and Wadsworth was reported, Cavanaugh was put on leave and the

abuse ended.       Finally, Wadsworth alleged that Nguyen "deprived

[her] of her rights by, among other acts and omissions, his failure

to protect [Wadsworth] when she complained about sexual harassment

and discrimination by . . . Cavanaugh."




                                      - 47 -
                       a. Supervisor Liability

           Here, Wadsworth appeals the district court's dismissal

of her supervisor-liability claim against Nguyen.14       The district

court based its decision on narrow grounds, determining that as an

initial   matter   Wadsworth's   supervisor-liability     claim   failed

because she had presented "no facts [to] establish that Mr. Nguyen

had any control over [Principal] Cavanaugh."          Wadsworth argues

that the district court applied the incorrect test to determine if

Nguyen had control over Cavanaugh.        Specifically, she argues that

the district court erroneously required Nguyen to be Cavanaugh's

"formal supervisor" to be liable under this theory.           She then

argues that, under the correct test, the alleged facts show that

Nguyen had the necessary control over Principal Cavanaugh.         While

we agree that a defendant need not be a "formal supervisor" to be

liable, we disagree with Wadsworth that the district court applied




     14 To hold a supervisory defendant liable under § 1983, a
plaintiff must show "that (1) 'the conduct complained of was
committed by a person acting under color of state law; and (2)
[that] this conduct deprived a person of rights, privileges, or
immunities secured by the Constitution or laws of the United
States.'" Lipsett v. Univ. of P.R., 

 (1st Cir.
1988) (alteration in original) (quoting Voutour v. Vitale, 

 (1st Cir. 1985)).     Here, the connection to equal
protection is that Wadsworth alleges that Cavanaugh's conduct
violated her equal protection rights.     The supervisor-liability
claim is then premised on the argument that Nguyen should be liable
for that violation.


                                 - 48 -
the incorrect test and came to the incorrect outcome. Accordingly,

we affirm the dismissal.

               "Generally, a supervisor cannot be held liable under

§ 1983 on a respondeat superior theory -- a 'supervisor's liability

must be premised on [their] own acts or omissions' and does not

attach automatically even if a subordinate is found liable."

Justiniano v. Walker, 

 (1st Cir. 2021) (quoting

Guadalupe-Báez v. Pesquera, 

 (1st Cir. 2016)).

"Under such a theory, a supervisor may be brought to book even

though       [their]   actions     have   not     directly   abridged   someone's

rights; it is enough that [they have] created or overlooked a clear

risk of future unlawful action by a lower-echelon actor over whom

[they] had some degree of control."                     Camilo-Robles v. Zapata

(Zapata), 

 (1st Cir. 1999).                    Liability attaches

where    "(1)    the    behavior    of    [the]      subordinates   results   in   a

constitutional violation, and (2) the [supervisor]'s action or

inaction was affirmative[ly] link[ed] to that behavior in the sense

that    it    could    be   characterized       as   supervisory    encouragement,

condonation or acquiescence[,] or gross negligence amounting to

deliberate indifference."           Pineda v. Toomey, 

 (1st

Cir. 2008) (first and fourth alterations added) (quoting Lipsett,

).

               Thus, we focus on whether Nguyen can be considered a

"supervisor."         As we have explained, we do not define "supervisor"


                                         - 49 -
rigidly, rather "supervisor" is "defined loosely to encompass a

wide range of officials who are themselves removed from the

perpetration of the rights-violating behavior."            Camilo-Robles v.

Hoyos (Hoyos), 

 (1st Cir. 1998).             Again, in order

to qualify as a "supervisor," Nguyen must have had "some degree of

control" over Principal Cavanaugh.           Zapata, 

.

            Wadsworth argues that our decision in Hoyos is directly

applicable.   In Hoyos, this court affirmed a decision denying two

psychiatrists summary judgment on a § 1983 supervisor-liability

claim.   

.        The psychiatrists had found a suspended

police officer "free from mental illness and fit for active duty

(with no restrictions)," 

, despite their knowledge of the

officer's "stunning history of violence," 

, which included

a shootout with "two unarmed, law-abiding neighborhood residents,"

wherein "he shot both of them, wounding one and killing the other,"

and threatening to kill a fellow officer, 

.                  Following

this   finding,   the    police    department    "promptly       rearmed   [the

suspended   officer],"    who     ultimately   arrested    and    assaulted    a

security guard who advised the officer that he could not park in

a parking area reserved for a judge.         

.    The security guard

then accused the psychiatrists of "deliberate indifference in

carrying out their supervisory responsibilities."            

.      On

appeal, the psychiatrists contended that they were entitled to

qualified immunity; in assessing that claim, we considered whether


                                    - 50 -
the psychiatrists "functioned merely as advisors," ultimately

rejecting that argument.     

.    In so doing, we explained

that the record established that once the psychiatric reviewers

gave the go-ahead, the officer under review would be rearmed and

returned to service.   

          Wadsworth says the same is true here: Nguyen "could have

easily stopped the harassment."         Specifically, she says that

because Nguyen was required to report the harassment he witnessed

and because once the behavior was reported Cavanaugh was suspended,

"a court may reasonably infer that a report by Mr. Nguyen would

have quickly stopped Principal Cavanaugh."     We are not persuaded.

          The allegations merely establish that Nguyen had options

to try to stop Cavanaugh, but this is not enough to conclude that

Nguyen had any control over Principal Cavanaugh.      In Hoyos, the

record made clear that both the psychiatrists themselves and those

within the police department understood that "once the examining

psychiatrist 'certifies in writing that [an officer] is authorized

to bear arms [the police department would] proceed to give back

the weapon.'"    

 (quoting police superintendent's

testimony).     Here, Wadsworth has not alleged that Nguyen had

similar control over Cavanaugh; it is not enough here to say that

just because Cavanaugh's behavior stopped after it was finally

reported, Nguyen also could have stopped the conduct by reporting

it and therefore he had control over Principal Cavanaugh.        Our


                               - 51 -
conclusion is further bolstered by the allegation that other staff

were mandated reporters. Under Wadsworth's logic, any staff member

who was required to report harassment was Principal Cavanaugh's

"supervisor."     That cannot be the case.   Thus, Wadsworth has not

established that the requirement to report misconduct necessarily

results in control over the alleged bad actor.15

                         b. Equal Protection

          Next,     Wadsworth   challenges   the   district   court's

dismissal of her equal protection claim against Nguyen.        As we

have already explained, a standard equal protection claim such as

this requires a plaintiff to establish "that '(1) the person,

compared with others similarly situated, was selectively treated;

and (2) that such selective treatment was based on impermissible

considerations such as race, religion, intent to inhibit or punish

the exercise of constitutional rights, or malicious or bad faith

intent to injure a person.'"     Davis, 

-33 (quoting

Rubinovitz, 

).

          Below, the district court determined that Wadsworth had

failed to allege a viable claim because she had not shown that



     15To the extent Wadsworth argues that Nguyen had control over
Cavanaugh because Nguyen stopped Principal Cavanaugh from taking
Wadsworth to a doctor's appointment and advised him against having
Wadsworth come live with him, we cannot consider these arguments
as this claim arises from a motion to dismiss and the asserted
facts are contained in the summary judgment record and not the
operative complaint.


                                - 52 -
"Nguyen selectively treated [her] based on her sex, that [she] had

putative comparators," or that "Nguyen acted with the purpose of

discriminating on the basis of sex."                The court explained that the

complaint       did   not    allege      that   Nguyen   treated    Wadsworth   any

differently from other students and did not even mention any other

students that Nguyen had interacted with.                Wadsworth now contends

that because she is female and Medomak is a public school, a court

can infer that Nguyen worked with male students and can further

infer, considering the sex-based allegations at issue, that Nguyen

would    have    treated      a   male    student    differently.     Wadsworth's

arguments are not persuasive.

            In essence, Wadsworth is asking us to hold that an equal

protection claim needs no supporting allegations.                    There are no

allegations that would permit a court or jury to infer that Nguyen

was motivated by an intent to discriminate against Wadsworth based

on her sex or that he treated her any differently than he would

another student.            In fact, there are no allegations whatsoever

relevant to Nguyen's motivation or to his interactions with any

other students.             Accordingly, we affirm the district court's

dismissal of this claim.

         2. Motion for Summary Judgment: State-Created Danger

            Wadsworth next challenges the district court's grant of

summary judgment in favor of Nguyen on her state-created-danger

claim.    A state-created-danger claim has four basic elements; a


                                          - 53 -
plaintiff       must       establish         that      (1)         "a        state

actor . . . affirmatively acted to create or enhance a danger to

the plaintiff;" (2) "the act or acts created or enhanced a danger

specific to the plaintiff and distinct from the danger to the

general public;" (3) "the act or acts caused the plaintiff's harm;"

and (4) "the state actor's conduct, when viewed in total, shocks

the conscience."       Irish, 

.

            Nguyen's motion for summary judgment challenged only the

first and fourth elements, so the district court confined its

analysis to those two aspects of the claim.                The district court

determined that "[a] reasonable juror could conclude that by

normalizing [Principal] Cavanaugh's behavior Mr. Nguyen plausibly

increased   [Principal]     Cavanaugh's      access   to     Ms.   Wadsworth    to

continue sexually harassing her, and [thus] she has successfully

established    the      affirmative    action       [requirement]       of     her

state-created[-]danger theory."           (Internal quotation marks and

citation    omitted).      However,    the   court    then    determined      that

Wadsworth could not "clear the high bar of establishing that Mr.

Nguyen's behavior shocked the conscience."            In so concluding, the

district court emphasized the lack of any allegation that "Nguyen

had knowledge of the frequency or sexually explicit content of the

text messages."        The court went on to conclude that even if

Wadsworth had established a constitutional violation, qualified

immunity protected Nguyen.


                                  - 54 -
           Now,   Wadsworth   contends   that   the   record    contains

evidence that would allow a juror to conclude that Nguyen had

knowledge of the extent of Principal Cavanaugh's harassment and

that qualified immunity could not protect Nguyen.      Nguyen responds

that Wadsworth has waived review.    We agree.

           First, Wadsworth has failed to address the crux of the

district court's decision: Nguyen's knowledge (or lack thereof) of

the extent and sexual nature of the text messages              Principal

Cavanaugh sent Wadsworth.     Further, she provided no case law to

support her position that Nguyen's conduct exceeds the high bar

set by the "shocks the conscience" requirement.             Moreover, in

addressing qualified immunity, Wadsworth merely refers us to the

section of her brief addressing the doctrine with respect to

Cavanaugh.   As Nguyen points out, the authorities cited therein

are applicable to the alleged perpetrators of sexual harassment,

not to encouraging bystanders, and as such do not address the

question -- as framed by the district court -- of whether "Nguyen

had fair notice that his particular conduct was unconstitutional."

Accordingly, Wadsworth has waived review of the district court's

decision     granting    Nguyen     summary      judgment      on    her

state-created-danger claim.     See Segrain, 

 ("[I]t

is not enough merely to mention a possible argument in the most

skeletal way, leaving the court to do counsel's work, create the

ossature for the argument, and put flesh on its bones." (quoting


                                - 55 -
United States v. Zannino, 

 (1st Cir. 1990))); Montany

v. Univ. of New England, 

 (1st Cir. 2017) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived." (quoting Zannino,

)). Accordingly, we must affirm the district court's

grant     of     summary   judgment       in   favor   of    Nguyen   on   the

state-created-danger claim.

                           C. Claims Against MSAD

               Finally, we address Wadsworth's appeal of the district

court's grant of summary judgment in favor of MSAD on her § 1983

and Title IX claims.        For the reasons that follow, we affirm the

court's grant of summary judgment with respect to the § 1983

municipal liability claim but reverse the decision with respect to

the Title IX claim.

                           1. Municipal Liability

               Wadsworth's § 1983 claim against MSAD was premised on

two different theories: (1) that MSAD failed to "follow, apply, or

enforce        laws    preventing     harassment       and    discrimination"

("insufficient policy claim") and (2) that MSAD failed to "train

and   supervise       employees   about    their   obligation    to   properly

investigate and address incidents of sexual harassment in public




                                    - 56 -
schools"   ("failure     to   train    claim").16      The    district   court

determined that neither could proceed, and Wadsworth now appeals.

           Before addressing the individual theories, we set forth

the generally applicable principles.           "A municipality or other

local government may be liable under [§ 1983] if the governmental

body itself 'subjects' a person to a deprivation of rights or

'causes' a person 'to be subjected' to such deprivation."             Connick

v. Thompson, 

 (2011) (citing Monell v. N.Y. City

Dep't of Soc. Servs., 

 (1978)).              Monell liability

cannot be premised on vicarious liability but must be based on the

governmental body's "own illegal acts."             

 (emphasis omitted).

"[I]t is only when the governmental employees' 'execution of a

government's policy or custom . . . inflicts the injury' and is

the 'moving force' behind the constitutional violation that a

municipality can be liable."          Young v. City of Providence ex rel.

Napolitano, 

 (1st Cir. 2005) (omission in original)

(quoting Monell, 

).           The two basic elements are

whether    Wadsworth's    "harm   was      caused    by   a    constitutional



     16 As with the supervisor-liability claim, the connection to
equal protection is that Wadsworth alleges that Cavanaugh's
conduct    violated   her   equal   protection   rights.      The
municipal-liability claim is then premised on the argument that
MSAD should be liable for that violation. See Abdisamad v. City
of Lewiston, 

 (1st Cir. 2020) (explaining that
municipal liability is method by which governmental entities are
held responsible for policies or customs responsible for
constitutional violations or injuries).


                                  - 57 -
violation" and whether the governmental entity, here MSAD, can be

held "responsible for that violation."              Id. at 25-26.

            A governmental entity cannot be held responsible unless

"[an] action pursuant to official municipal policy caused their

injury," Cosenza v. City of Worcester, 

 (1st Cir.

2024)     (quoting    Connick,   

),      and    "municipal

decisionmakers either knew or should have known that training was

inadequate but nonetheless exhibited deliberate indifference to

the unconstitutional effects of those inadequacies," 

 (quoting

Haley v. City of Bos., 

 (1st Cir. 2011)).

            And,     of    course,   there     must        be   an       "underlying,

identifiable constitutional violation[]."                  Bannon v. Godin, 

 (1st Cir. 2024) (quoting Lachance v. Town of Charlton,

 (1st Cir. 2021)).             Wadsworth advances the theory

that the policies and training were unclear or lacking when it

came to reporting instances of sexual harassment, particularly

where the alleged harasser was the principal, thus causing the

harassment to continue unchecked. See Plamp v. Mitchell Sch. Dist.

No. 17-2, 

 (8th Cir. 2009) ("A school district

can be liable for civil-rights violations under § 1983 either for

failing    to   receive,    investigate,      and    act    upon     complaints   of

[unconstitutional conduct] or for failing to train its employees

to prevent or terminate [unconstitutional conduct]." (alterations

in original) (quoting P.H. v. Sch. Dist. of Kansas City, 265 F.3d


                                     - 58 -
653, 658 (8th Cir. 2001))).        For the purposes of our review, we

assume without deciding that this is a viable theory of liability.

                         a. Insufficient Policy

           Here, Wadsworth's theory is that MSAD deprived her of

her rights by failing to follow, apply, or enforce                    policies

preventing harassment and discrimination.               In particular, she

focuses on MSAD's policy on reporting sexual harassment, which she

argues "contained a 'glaring hole' because," in her case, it led

to a situation where "sexual harassment complaints could only be

made to the harasser."        We agree with the district court that the

record does not reveal the existence of any gaps in the policy.

           We   begin   by    setting   forth    some   additional    relevant

facts.    While Wadsworth was a student at Medomak, MSAD had a

written sexual harassment policy that included a procedure for

reporting sexual harassment.       Medomak employees were provided with

copies of the policy.         Among other things, the policy provides:

"[a]ny   individual     who     believes    that    a    student     has   been

discriminated against or harassed should report their concern

promptly to the building principal and utilize [the] complaint

procedure." The policy further provided that "[s]chool staff shall

report   possible   incidents     of    discrimination    or   harassment    of

students to the building principal."            The policy then directs the

"building principal" to "promptly inform the Superintendent" and

the subject of the complaint that a complaint exists.              The policy


                                   - 59 -
then outlines the possible next steps for the superintendent, or

their "designee," to take.                The policy itself does not define

"building principal."

              Superintendent         Nolan    testified     at     deposition      that

"building     principal"      referred       to    both   the   principal    and   the

assistant principals.             He further explained that if an assistant

principal received a report, they would hand the report to the

principal but "if there was a conflict" they would send the report

directly      to    the    superintendent.           Assistant     Principal    Pease

testified that, if the principal was the alleged harasser, she

understood that she should report the harassment to either the

superintendent        or    the    superintendent's        designee.        Philbrook

testified that, if the principal were the harasser, she would go

to either the superintendent or the police.

              In its motion for summary judgment, MSAD argued that

there was no "hole" in the policy because "the record establishes

that school employees were expected to and believed they were

required to report" sexual harassment committed by the principal

directly to the superintendent and that no employee made such a

report about Principal Cavanaugh because "the conduct at issue did

not appear . . . to be sexual harassment."                      It also argued that

there   was    no    causal       link   between    the   harassment    policy      and

Wadsworth's alleged injuries.




                                         - 60 -
             The district court agreed with MSAD's assessment and

determined that the record established that, "[i]n a case where

the head principal was the perpetrator of the harassment, the

policy d[id] not prevent reporting; instead students or staff could

report harassment to an assistant principal" who could in turn

"elevate reports of harassment to the [s]uperintendent."                 It also

agreed that there was no indication in the record that any staff

member or student believed that Principal Cavanaugh was sexually

harassing Wadsworth.

             On appeal, Wadsworth mounts no specific attack on the

district court's reasoning or conclusion.                  And, after careful

review of the record, we agree with the district court.                   First,

the testimony establishes that although the policy was facially

vague as to who the "building principal" was, it was understood

that    it   referred   to   the   principal   as   well    as   the   assistant

principals.     Further, nothing in the record suggests that reports

of Principal Cavanaugh's conduct did not reach the superintendent

because staff assumed they could only pass the message to the

abuser himself.17       Nor does Wadsworth make any argument that if


        Nguyen testified that he understood that he could report
       17

sexual harassment either to "an affirmative action officer" within
the superintendent's office (at the time, Cavanaugh) or to the
Human Rights Commission. This testimony merely establishes that
he understood that he had multiple options when it came to
reporting harassment, undercutting Wadsworth's theory that staff
understood they could only report Cavanaugh's abuse to Principal
Cavanaugh himself.


                                     - 61 -
such an assumption existed it was caused by a lack of training.

Accordingly, we affirm the district court's grant of summary

judgment on Wadsworth's insufficient policy claim.

                               b. Failure to Train

               We next turn to Wadsworth's theory that MSAD failed to

provide any training on sexual harassment and how to report it.

Wadsworth focuses on an alleged lack of training on how to report

sexual harassment -- she does not contend that MSAD failed to

provide training on how to identify sexual harassment. For reasons

explained below, we conclude that her claim cannot survive.

               Although the district court concluded that the record

established      that   some    training   was    provided   and    was   not    so

inadequate as to show deliberate indifference, because there is

some dispute between the parties as to whether MSAD provided any

training or guidance,18 we assume without deciding, in Wadsworth's

favor, that the school provided no training on how to report sexual

harassment.      See Young, 

 (noting there were genuine

issues    of    material   fact   regarding      existence   of    training     and

assuming there was no training for the purposes of review).                      We



     18MSAD contends that it "provided sexual harassment training
to administrators and staff on a yearly basis."      However, as
Wadsworth points out, Nolan explained that Principal Cavanaugh
provided this "training," while Cavanaugh testified that he was
not qualified to provide any training on sexual harassment and
merely presented a PowerPoint slideshow on the topic. Further, a
copy of the presentation slides is not a part of the record.


                                     - 62 -
then conclude that Wadsworth cannot establish that MSAD acted with

deliberate indifference and, accordingly, affirm the district

court.   See Caruso v. Delta Air Lines, Inc., 

 (1st

Cir. 2024) (at summary judgment, we "may affirm 'on any ground

supported by the record'" (quoting Burt v. Bd. of Tr. of Univ. of

R.I., 

 (1st Cir. 2023))).

           "Triggering municipal liability on a claim of failure to

train requires a showing that municipal decisionmakers either knew

or should have known that training was inadequate but nonetheless

exhibited deliberate indifference to the unconstitutional effect

of those inadequacies."    Cosenza, 

 (quoting Haley,

).     Deliberate indifference requires a showing that

MSAD disregarded a known or obvious risk of serious harm following

from its failure to develop an adequate training program.           See

Young, 

.         "Such knowledge can be imputed to a

municipality    through    a    pattern   of   prior    constitutional

violations."   

   Alternatively, in very rare cases, a pattern of

violations may not be needed so long as the "'violation of [a]

federal right[]' is 'a highly predictable consequence of a failure

to equip [governmental actors] with specific tools to handle

recurring situations.'"     

 (first and second alterations

in original) (quoting Brown, 

)).        Wadsworth cannot

show deliberate indifference under either avenue.




                                 - 63 -
             The record contains no information regarding any pattern

wherein MSAD school principals, or any other staff member, harassed

a student and the harassment did not stop because staff did not

know how to report the harassment. Wadsworth nevertheless suggests

that no such pattern is needed in her case because this is the

type of situation where the consequences of not training staff

would have been obvious to MSAD.        We disagree.

             To begin, Wadsworth has failed to explain how these

circumstances fit within the rare category where a plaintiff need

not point to a pattern of prior violations.           See Cosenza, 

   ("Typically,   '[a]   pattern   of   similar      constitutional

violations by untrained employees' is necessary to demonstrate

deliberate indifference." (quoting Connick, 

)).

Further, we are not aware of any case that supports Wadsworth's

position.       Indeed, there is nothing about this highly unusual

situation that would suggest that failing to train school staff on

how to report sexual harassment when the harasser is the principal

would mean that no staff would report sexual harassment that they

were    aware   of.   Especially   in   light    of    the   existing   sexual

harassment policy and reporting procedure, which were provided to

staff, we cannot see how a failure to train employees "is so likely

to result in a violation of constitutional rights that the need

for training is patently obvious." Plamp, 

 (quoting

Thelma D. v. Bd. of Educ. of City of St. Louis, 

, 934


                                   - 64 -
(8th Cir. 1991)) (concluding that in light of school policies on

sexual harassment and reporting, failure to train merely "raise[d]

a   question      about     whether         the   program      was    negligently

administered").        We   do,   however,        echo   the   district     court's

admonition     that   whether     MSAD's      training    program    --    or   lack

thereof -- is a "best practice" is not currently before us.                     Thus,

we also affirm the district court's grant of summary judgment to

MSAD on Wadsworth's failure to train claim.

                                  2. Title IX

            Finally, we turn to the Title IX claim against MSAD and

conclude that the court erred in granting MSAD summary judgment as

to that claim.

            "Title IX creates an implied private right of action

against federal funding recipients for money damages caused by a

recipient's violation of its obligations under the Title."                   Doe v.

Pawtucket Sch. Dep't, 

 (1st Cir. 2020) (citations

omitted).    A Title IX "violation can occur when a Title IX funding

recipient is deliberately indifferent to known acts of sexual

harassment   of   a   student     by    a   teacher."       

      Liability     is

"predicated upon notice to an 'appropriate person.'"                      Gebser v.

Lago Vista Indep. Sch. Dist., 

 (1998) (citing 

).       As the Eleventh Circuit explained, the Gebser

framework involves three inquiries: (1) did the plaintiff identify

an "appropriate person" ("i.e., a school district official with


                                       - 65 -
the authority to take corrective measures in response to actual

notice of sexual harassment"), (2) was the substance of the actual

notice "sufficient to alert the school official of the possibility

of . . . harassment,"        and    (3)     did     that   official      "exhibit

deliberate indifference to the harassment."                Doe v. Sch. Bd. of

Broward Cnty., 

 (11th Cir. 2010); see Grace, 85

F.4th at 6, 11.

             Below, the district court determined that                   Assistant

Principals Pease and Philbrook were both appropriate persons to

notify under Title IX.           The district court went on, however, to

determine that neither had notice of the harassment.                  Accordingly,

the court granted MSAD summary judgment on the Title IX claim.                  On

appeal, Wadsworth argues that the two assistant principals had

notice.      MSAD responds that the assistant principals were not

appropriate persons and that, in any event, neither assistant

principal had notice.       We reject MSAD's arguments and agree with

Wadsworth insofar as we conclude that a reasonable jury could find

that   the   assistant    principals      had     notice   of   the   harassment.

Accordingly, the district court erred in granting MSAD summary

judgment on the Title IX claim.

             As   an   initial    matter,   we    reject   MSAD's     alternative

grounds of affirmance that the assistant principals were not

appropriate persons under Title IX.               An appropriate person is an

"official . . . with authority to take corrective action to end


                                     - 66 -
the discrimination."     Gebser, 

.               Whether an

official has such authority is a factual inquiry that depends on

the duties the school delegates to them.          See Santiago v. Puerto

Rico, 

 (1st Cir. 2011).

            In   determining   that    the    assistant    principals        were

appropriate persons under Title IX, the district court focused on

their high rank as officials within the school and their authority

to respond under the school's sexual harassment policy.                      MSAD

cursorily argues that this was error, contending that because the

assistant principals did not have disciplinary authority over

Cavanaugh and because they merely had a duty to pass complaints on

to the superintendent, they could not be appropriate persons.

However,   the   district   court     expressly   acknowledged        that   the

assistant principals had no disciplinary power over Cavanaugh in

reaching its conclusion.       Furthermore, the assistant principals'

roles under the sexual harassment policy were not confined to

merely    reporting   complaints;     their   receipt     of   the    complaint

initiated the "complaint handling" procedure as they would alert

both the superintendent and the person accused that a complaint

had been received.      Thus, we are not convinced that the court's

decision was in error.19


     19Wadsworth also argues that Nguyen was an appropriate person
and had sufficient knowledge under Title IX. However, given our
decision with respect to the assistant principals' knowledge, we
need not consider this argument.


                                 - 67 -
          We   next   consider   whether    a   reasonable   jury   could

conclude that the assistant principals had notice.           In deciding

the issue, the district court applied a strict standard, explaining

that "'actual knowledge' generally requires highly reliable and

similar reports of inappropriate teacher behavior, meaning that

'rumors, investigations, and student statements' do not qualify."

(Quoting Doe v. Bradshaw, 

, 185 (D. Mass.

2016)).   We reject the district court's conclusion that "[w]hile

the school perhaps ought to have known that Mr. Cavanaugh was

behaving inappropriately . . . it cannot be said that the school

actually knew of his harassment."          As we explain below, it is

enough if a reasonable jury could conclude that a school "ought

to" know that harassment is occurring -- if MSAD had information

that conveyed a substantial risk of ongoing harassment, that is

enough regardless of whether the relevant school officials excused

the conduct.

          The inquiry as to whether Assistant Principals Pease and

Philbrook had notice is an objective one.        See Grace, 85 F.4th at

6, 11 (concluding that jury could find notice despite dean's view

that conduct was not bullying); see also Doe v. Fairfax Cnty. Sch.

Bd., 

 (4th Cir. 2021) (notice test is

objective).    Further, Pease and Philbrook only needed notice that

there was a substantial risk or "possibility" that harassment was

occurring; in other words, the school did not need to have detailed


                                 - 68 -
proof of harassment.           See Gebser, 

; see also Escue

v. N. Okla. Coll., 

 (10th Cir. 2006) (school

needed "actual knowledge of a substantial risk of abuse to students

based on prior complaints by other students" (quoting Doe A. v.

Green, 

 (D. Nev. 2004))).                  Finally, there

does   not   need    to   be    a   singular     report   exposing      the   alleged

harassment;     rather,        notice    is     based     on   the    totality    of

circumstances.       See Forth v. Laramie Cnty. Sch. Dist. No. 1, 

, 1055 (10th Cir. 2023).

             Thus, construing the record in the light most favorable

to Wadsworth, a reasonable jury could find that MSAD had actual

knowledge at some point before Superintendent Nolan was alerted to

the problem.        As the district court explained, and as MSAD now

acknowledges, the assistant principals were aware of Cavanaugh's

habit of pulling Wadsworth out of class, that he referred to her

as "cupcake," that she was working for him to pay off the car he

gave her, that he wanted to invite her to live with him, and that

they communicated by text message (again, there is nothing in the

record to suggest that they were aware of the content and extent

of any of the messages).

             Specifically,          Wadsworth     testified      that     Assistant

Principal Philbrook was present for and participated in at least

one conversation with Cavanaugh about how Wadsworth was "top shelf"

and a pretty girl.             She also testified that Philbrook heard


                                        - 69 -
Cavanaugh refer to Wadsworth as "cupcake" on at least one occasion

and   witnessed   Cavanaugh      hand   Wadsworth    an   envelope   of     cash

(presumably the money he gave her for prom). She further testified

that Philbrook was present for at least part of a meeting Wadsworth

had with Nguyen where she explained that Cavanaugh's various

nicknames for her embarrassed her.

           School     Resource     Officer   Spear    testified      that     on

September 19, after pulling over Wadsworth, he discussed the

situation with Assistant Principal Philbrook who explained that

Cavanaugh "had asked [Wadsworth] if she was interested in moving

in" with him.       Philbrook explained that Cavanaugh had told her

that when Cavanaugh asked his wife about Wadsworth moving in, his

wife said "let me go get a 21-year[-]old boy to help me out if

[Wadsworth's] going to be living in our house," further noting

that "he's going to be jacked."         Officer Spear also explained that

Philbrook told him "I don't think anything sexual in nature has

happened" but that "it certainly doesn't look good on the surface."

According to Officer Spear, Philbrook explained that she thought

Cavanaugh was "just being blinded by [Wadsworth's] good looks" and

was "trying to look out for her" but was "crossing boundaries."

Finally, Superintendent Nolan testified that Cavanaugh's conduct

related to meeting Wadsworth during school hours and his providing

her with a car, independently, created a cause for concern.




                                   - 70 -
           Taking everything together, a reasonable jury could

conclude     Assistant     Principals     Pease     and/or   Philbrook    had

information such that there was a substantial risk that Cavanaugh

was sexually harassing Wadsworth.         Thus, the district court erred

in granting MSAD summary judgment on this basis, and we reverse

the district court's decision as to the Title IX claim and remand

for further proceedings consistent with this opinion.

                               IV. Conclusion

           For the forgoing reasons, we affirm in part and reverse

in part the district court's grant of summary judgment in favor of

Cavanaugh,    affirm     the   district   court's    order   dismissing   the

supervisor-liability claim against Nguyen,             affirm the court's

grant of summary judgment in favor of Nguyen, affirm in part and

reverse in part the district court's grant of summary judgment in

favor of MSAD, and remand for further proceedings consistent with

this opinion.    Costs are awarded to Wadsworth.

                       -Concurring Opinion Follows-




                                   - 71 -
            RIKELMAN, Circuit Judge, concurring.         I join the court's

thorough opinion today.     I write separately to explain my view of

the correct framework for analyzing a federal equal protection

claim based on sexual harassment.

            First, as I understand current jurisprudence, comparator

evidence is not always required to bring an equal protection claim,

regardless of whether the claim involves sexual harassment or a

different type of illegal discrimination. Decades ago, the Supreme

Court held that to succeed on an equal protection claim under the

Fourteenth Amendment, a plaintiff must convince a court that the

government acted with discriminatory animus or purpose.                 See

Washington v. Davis, 

 (1976) (holding disparate

impact "[s]tanding alone" is not constitutionally actionable in

context of race discrimination claim); Personnel Adm'r of Mass. v.

Feeney, 

 (1979) (same for sex discrimination).

But   the     Supreme   Court   has     never     held    that    comparator

evidence -- proof that the government treated similarly situated

individuals    differently -- is      always    necessary   to   demonstrate

discriminatory purpose.    Instead, evidence that similarly situated

individuals received preferential treatment as compared to the

plaintiff is just one way to prove intentional discrimination.

See, e.g., Davis, 

 (discriminatory purpose should

be "inferred from the totality of the relevant facts"); Vill. of

Arlington Heights v. Metro. Hous. Dev. Corp., 

, 266


                                 - 72 -
(1977) ("Determining whether invidious discriminatory purpose was

a   motivating   factor      demands      a    sensitive         inquiry     into      such

circumstantial      and     direct      evidence         of     intent     as    may    be

available."); cf. Fincher v. Town of Brookline, 

(1st Cir. 2022) (comparator evidence is relevant "at least in the

absence of direct proof" of discriminatory animus).

            Indeed, the Supreme Court has repeatedly recognized, in

a variety of legal contexts, that a plaintiff can prove intentional

discrimination      with    various      forms      of   evidence.         See,      e.g.,

Arlington   Heights,       

         (explaining,      in   equal

protection case challenging government policy, that "historical

background of the decision," "specific sequence of events leading

up to the challenged decision," "[d]epartures from the normal

procedural sequence," and "legislative or administrative history"

may all be evidence of discriminatory purpose); Reeves v. Sanderson

Plumbing Prods., Inc., 

 (2000) (holding, in Age

Discrimination   in       Employment     Act       context,      that    "one   form     of

circumstantial      evidence      that        is    probative       of     intentional

discrimination, and . . . may be quite persuasive" is evidence

that   employer's    proffered       explanation         for     adverse     employment

action is false); Int'l Bhd. of Teamsters v. United States, 

 (1977) (explaining, in Title VII case, that "[w]e

have repeatedly approved the use of statistical proof . . . to

establish a prima facie case of racial discrimination"); cf. EEOC


                                        - 73 -
v. Abercrombie & Fitch Stores, Inc., 

 (2015)

(employee could bring Title VII religious discrimination claim

without comparator evidence by showing that employer knew employee

wore a headscarf for religious purposes and refused to hire her

because of the headscarf).       We have followed suit.          See, e.g.,

Ripoli v. Dep't of Hum. Servs., Off. of Veterans Servs., 

 (1st Cir. 2024) (concluding, in Title VII case, that

plaintiff    had   created   genuine   issue   of   material    fact   about

discriminatory purpose, even before looking to her comparator

evidence).

            Our sister circuits agree that comparator evidence is

not necessary for all equal protection claims.20               As the Ninth


     20 That said, appellate courts, including our court, have
consistently required comparator evidence for two types of equal
protection claims: selective enforcement and class-of-one claims.
See, e.g., Rubinovitz v. Rogato, 

 (1st Cir.
1995) (selective enforcement/class-of-one case concerning local
zoning and building code regulations); Frederick Douglass Found.,
Inc. v. District of Columbia, 

 (D.C. Cir. 2023)
(selective enforcement case). Given that government officials may
legally exercise discretion in deciding when to bring enforcement
actions, "[s]elective enforcement claims must clear a high
hurdle." Frederick Douglass Found., 

. Further,
in such cases, the government's conduct toward the plaintiff may
not evince any potentially discriminatory motive. See Rubinovitz,

. Thus, the plaintiff must rely on evidence
that, "compared with others similarly situated," they were
targeted for enforcement based on impermissible considerations.

. So too, in class-of-one cases where the plaintiff
alleges that they were singled out for unfavorable treatment based
on their own unique -- and unprotected -- characteristic, "proof
of a similarly situated, but differently treated, comparator is
essential." Snyder v. Gaudet, 

 (1st. Cir. 2014);
see also, e.g., Vill. of Willowbrook v. Olech, 

, 564


                                 - 74 -
Circuit has explained, "a relevant comparator is not an element of

a disparate treatment claim" under the Equal Protection Clause (or

anti-discrimination statutes); rather, it is merely one type of

evidence that can be used to prove discriminatory purpose.    Ballou

v. McElvain, 

 (9th Cir. 2022) (rejecting need for

comparator evidence in non-sexual-harassment gender discrimination

case concerning failure to promote).     Were there such a "relevant

comparator" requirement, the Ninth Circuit reasoned, even direct

evidence of discrimination (e.g., an employer's statement that he

would never promote a woman) "would not support a disparate

treatment claim unless [the employer] promoted an identical male

comparator."   

.   The court concluded that this result

would be "contrary to the [Fourteenth] [A]mendment's fundamental

guarantee of 'equal protection of the laws.'"    

 at 425 (quoting

U.S. Const. amend. XIV, § 1).

          The Second Circuit has likewise held that a plaintiff

bringing a race discrimination claim under the Equal Protection

Clause "need not plead or show the disparate treatment of other

similarly situated individuals."    Pyke v. Cuomo, 

(2d Cir. 2001).   Pyke involved a claim that police had withheld


(2000) (per curiam) (plaintiffs stated class-of-one claim by
alleging different treatment from similarly situated property
owners); Buchanan v. Maine, 

, 177-78 (1st Cir. 2006)
(requiring evidence of similarly situated comparator where
plaintiff alleged that, unlike other "high-risk patients," he did
not receive an individualized support plan).


                                - 75 -
protection from the plaintiffs because they were Native American.

Id. at 108.       The district court granted summary judgment to the

police on the ground that the plaintiffs had failed to come forward

with   comparator     evidence,   but    the   Second   Circuit   reversed,

explaining that such evidence was not required. See id. at 108-09.

It noted that "[i]t would be difficult, if not impossible, to find

other individuals whose situation is similar to Native Americans

living on a reservation," and that impossibility should not doom

the plaintiffs' case.     Id. at 109; see also Lewis v. City of Union

City, 

 (11th Cir. 2019) (collapsing analysis

for Title VII and equal protection claims, then concluding it was

"perfectly logical" not to require comparator evidence in race and

gender discrimination cases, because "[a]mong other things, a

proper comparator simply may not exist").               The Second Circuit

cautioned that a contrary rule would allow the police to escape

liability even if they had denied protection to the plaintiffs

based on discriminatory animus against Native Americans, which was

"clearly not the law."     Pyke, 

.       The court concluded

by reiterating that "a plaintiff seeking to establish a violation

of equal protection . . . may proceed in 'several ways'" to prove

intentional discrimination.       

.

            In my view, we should clarify that comparator evidence

is not required for every equal protection claim.             To the extent

some   of   our   precedent   suggests   otherwise,     it   appears   to   be


                                  - 76 -
inconsistent with Supreme Court case law and relies on analysis

designed for a narrow subset of equal protection claims: selective

enforcement and class-of-one claims.21

          Second, regardless of whether comparator evidence is

necessary for other equal protection claims, I agree with the

court's holding that comparator evidence should not be required

for equal protection claims based on sexual harassment. As today's

opinion lays out and other courts have cogently explained, a

government   official   like   Cavanaugh   who   engages   in   sexual

harassment has necessarily committed intentional discrimination.

Such intentional, discriminatory conduct is actionable under the

Equal Protection Clause.

          For example, the Tenth Circuit has expressly disavowed

the need for comparator evidence to support an equal protection



     21For instance, in a case in which a gay man brought a claim
that he was "singled out for transfer because of his sexual
orientation," we cited both Rubinovitz and Buchanan in requiring
him to provide evidence that "heterosexual employees with similar
rank and qualifications" were treated differently, even though his
claim was not a selective enforcement or class-of-one claim.
Ayala-Sepúlveda v. Municipality of San Germán, 

(1st Cir. 2012). And when a Black firefighter sued various local
entities and officials for race discrimination, we again relied on
Rubinovitz to impose a comparator evidence requirement; we also
cited an older case for the same proposition. Alston v. Town of
Brookline, 

 (1st Cir. 2021)(citing Dartmouth Rev.
v. Dartmouth Coll., 

 (1st Cir. 1989)).          But
Dartmouth reiterates that "treatment toward others similarly
situated can be used to demonstrate intent" -- not that such
evidence is always necessary.    

 (emphasis added)
(citing Arlington Heights, 

).


                               - 77 -
claim based on sexual harassment, holding that a plaintiff who

brings such a claim "ha[s] no requirement to show she was treated

differently from a similarly situated individual."           Eisenhour v.

Weber Cnty., 

 (10th Cir. 2014).           In Eisenhour,

a county court administrator presented evidence that her direct

supervisor, a judge, "wrote an inappropriate poem about her, told

her that he had a dream about her in which she was naked, and

rubbed his groin against her," which the court concluded was

sufficient for a jury to "infer that she had been discriminated

against because of her sex," even in the absence of evidence about

how the judge treated other employees.         

.

             Likewise, the Seventh Circuit determined that a police

officer could be liable under the Equal Protection Clause for his

sexual harassment of a high school student during a "ride-along,"

regardless of the existence of comparator evidence.                Hess v.

Garcia, 

 (7th Cir. 2023).         The court concluded

that   the    student    needed   to   show    only   that   the   officer

"discriminated against her based on her membership in a definable

class."   

 (cleaned up).         And the student's evidence of

the officer's overtly sexual comments and conduct, which "clearly

suggest[ed] harassment by [a] public official[] that ha[d] no

conceivable legitimate purpose," was sufficient to state an equal

protection claim.       

 (quoting Geinosky v. City of Chicago, 

 (7th Cir. 2012)).


                                  - 78 -
            Similarly,    the   Ninth   Circuit,   without    reference    to

comparator    evidence,    has    broadly   concluded     that    "[s]exual

harassment    violates    the   Equal   Protection   Clause   because,     by

definition, it is 'motivated by gender.'"            Sampson v. Cnty. of

L.A. ex rel. L.A. Cnty. Dep't of Child. & Fam. Servs., 

 (9th Cir. 2020) (citation omitted).          Sampson concerned

allegations of sexual harassment against a state social worker

assigned to evaluate the plaintiff as a potential legal guardian

for her niece.    See 

.       In its analysis, the Ninth

Circuit focused on the nature of the discriminatory act. It wrote:

"Simply put, if she were a man, Sampson would not have experienced

this harassment . . . and that discrepancy fundamentally offends

the   equality   and   fairness   principles   embodied      in   the   Equal

Protection Clause."      

.

            Third, I see no basis in equal protection jurisprudence

for applying a "severe, pervasive, and objectively offensive"

standard to allegations of sexual harassment by a government

official.    I appreciate and agree that it is often helpful to look

to Title IX (and Title VII) case law in evaluating claims under

the Equal Protection Clause, but the statutory and constitutional

claims are different in important respects that impact the legal

analysis.

            To point out just a few distinctions, the relevant text

of Title IX differs substantially from the text of the Equal


                                  - 79 -
Protection Clause.      Compare Title IX, 

(a) ("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 . . . .") with U.S. Const.

amend. XIV, § 1 ("No state shall . . . deny to any person within

its jurisdiction the equal protection of the laws.").                  Further,

Congress enacted Title IX in 1972, when modern equal protection

jurisprudence did not yet exist, to address discrimination in

educational programs in particular.           See Craig v. Boren, 

 (1976) (establishing, for the first time, that sex-based

classifications are subject to intermediate scrutiny).

            Analyzing some of these differences, the Supreme Court

has noted that, as compared to the Equal Protection Clause, "Title

IX's protections are narrower in some respects and broader in

others."     Fitzgerald v. Barnstable Sch. Comm., 

(2009).     Title IX covers both private and public educational

institutions     that   receive     federal    funds    whereas     the   Equal

Protection Clause applies only to government actors.                See 

.     At the same time, a plaintiff can bring a damages claims

under    Title   IX   only    against   institutions      or     programs,   not

individuals. See 

         By contrast, a plaintiff who brings an equal

protection claim can directly sue the public official who engaged

in the discriminatory conduct.          See 

                                    - 80 -
          Further,     "the     standards   for   establishing    liability

[under Title IX and the Equal Protection Clause] may not be wholly

congruent."    

    Given that the implied private right of action

under Title IX does not permit suits against individuals for

damages, see 

, a plaintiff bringing a Title IX sexual

harassment claim must show that the institution or program itself,

as   opposed    to    someone     affiliated      with    it,   engaged   in

discrimination.      Thus, an educational institution is liable under

Title IX for sexual harassment if the plaintiff can establish that

an official with the authority to take corrective action was

"deliberate[ly] indifferen[t]" to such harassment.              

;

cf. Gebser v. Lago Vista Indep. Sch. Dist., 

(1998) ("[A]n individual may have [a claim] against . . . the

teacher in his individual capacity . . . under 

"

even if the school district is not subject to Title IX liability

for that teacher's conduct.).

          The Supreme Court discussed many of the unique aspects

of proving sexual harassment claims under Title IX in Davis ex

rel. LaShonda D. v. Monroe County Board of Education, a case that

concerned allegations of student-on-student harassment.            

 (1999).        As the Court explained, sexual harassment

qualifies as discrimination under Title IX.              See 

.

But "a recipient of federal funds may be liable in damages under

Title IX only for its own misconduct."              

 (emphasis


                                   - 81 -
added).   Further, because Title IX was "enacted pursuant to

Congress'[s] authority under the Spending Clause, . . . private

damages actions are available only where recipients of federal

funding had adequate notice that they could be liable for the

conduct at issue."   

   And, the text of Title IX "cabins the

range of misconduct that the statute proscribes.     The statute's

plain language confines the scope of prohibited conduct based on

the recipient's degree of control over the harasser and the

environment in which the harassment occurs."        

(focusing on term "subjected" to discrimination and phrase "under

any education program or activity" in Title IX's text).      Because

the discrimination must "occur 'under any education program or

activity,'" the "behavior [should] be serious enough to have the

systemic effect of denying the victim equal access to [that]

educational program or activity."   

.   Putting all these

key aspects of establishing liability under Title IX together "in

the context of student-on-student harassment," 

 the Court held

that:

          [F]unding recipients are properly held liable
          in damages only where they are deliberately
          indifferent to sexual harassment, of which
          they have actual knowledge, that is so severe,
          pervasive, and objectively offensive that it
          can be said to deprive the victims of access
          to the educational opportunities or benefits
          provided by the school.

.



                             - 82 -
            As this examination of Davis makes clear, the "severe,

pervasive, and objectively offensive" standard set out in that

case was premised on the requirements of establishing liability

for student-on-student sexual harassment in the unique context of

Title IX.22    Davis itself recognizes that less severe conduct may

be actionable where the alleged harasser is a teacher or principal

(i.e., a government official), like Cavanaugh, who is in a position

of authority over the plaintiff.               See 

 ("The

relationship    between      the    harasser   and   the    victim   necessarily

affects the extent to which the misconduct can be said to breach

Title IX's guarantee of equal access to educational benefits and

to have a systemic effect on a program or activity."); see also

Doe v. Pawtucket Sch. Dep't, 

 (1st Cir. 2020)

("Conduct     that   might    not    be   actionable       under   Title   IX   if

perpetrated by a student might be deemed more likely to exclude,

or discriminate against, the potential targets of the conduct if




     22 Similarly, to be actionable under Title VII, sexual
harassment must be severe enough to demonstrably affect the
plaintiff's employment. See Faragher v. City of Boca Raton, 

 (1998) ("[T]o ensure that Title VII does not become
a 'general civility code' . . . . [w]e have made it clear that
conduct must be extreme to amount to a change in the terms and
conditions   of   employment. . . .").      That   is   because   a
discrimination claim under Section 703 of Title VII must be related
"to [the plaintiff's] compensation, terms, conditions, or
privileges of employment." 42 U.S.C. § 2000e-2(a)(1). The Supreme
Court adopted the "severe or pervasive" standard under Title VII
to evaluate whether alleged sexual harassment has such an impact.
Meritor Sav. Bank, FSB v. Vinson, 

 (1986).


                                      - 83 -
perpetrated by a person in authority.").23     As the Supreme Court

stated in another Title IX case, "[n]o one questions that a student

suffers extraordinary harm when subjected to sexual harassment and

abuse by a teacher."   Gebser, 

.

          Even putting aside the specific facts in Davis, there is

no obvious reason to import all the requirements for Title IX

liability, which are tied to the statute's text and its enactment

under Congress's spending power, into the test for establishing

sex discrimination under the Equal Protection Clause.    Title IX's

unique features, including the unavailability of damages against

individuals and the requirement that an educational institution or

program have sufficient notice of its potential liability for

Spending Clause purposes, do not exist for claims against a

government official under the Equal Protection Clause.

          Just   as    importantly,    Equal    Protection   Clause

jurisprudence does not demand that a plaintiff establish that



     23 In fact, some of our sister circuits have expressly
interpreted Davis to apply the "severe, pervasive, and objectively
offensive" standard only in Title IX cases of student-on-student
harassment, but not teacher-on-student harassment.      See, e.g.,
Wamer v. Univ. of Toledo, 

 (6th Cir. 2022);
Sauls v. Pierce Cnty. Sch. Dist., 

 (11th Cir.
2005). As the Sixth Circuit explained, applying a lower standard
to teacher-on-student harassment comports with the text and
purpose of Title IX: "When a teacher sexually harasses a student,
it can more easily be presumed that the harassment would 'undermine
and detract from the student's educational experience' because
teachers are at the core of a student's access to and experience
of education." Wamer, 

 (cleaned up).


                              - 84 -
discrimination was "severe, pervasive, and objectively offensive"

to be actionable.   The Equal Protection Clause requires only proof

of actual harm and intentional discrimination for a claim to

proceed. See, e.g., Arlington Heights, 

; Heckler

v. Mathews, 

 (1984).

            Intentional   discrimination -- which       includes       sex

discrimination by a government official -- violates the Equal

Protection Clause if it "does not 'serve important governmental

objectives.'"    Lipsett v. Univ. of P.R., 

 (1st

Cir. 1988) (quoting Davis v. Passman, 

 (1979));

see Catherine A. MacKinnon, Sexual Harassment of Working Women 102

(1979) (explaining that unlike Title VII claim, equal protection

claim requires interrogating the "state's purpose in using, and

its use of, sex as a criterion").         As the Seventh Circuit has

persuasively    explained,    sexual    harassment   never    serves   an

important governmental objective.       See Hess, 

.      It

follows that the relevant question for equal protection analysis

is whether the government official's conduct rises to the level of

sexual    harassment -- not   whether   that   harassment    is   "severe,

pervasive, and objectively offensive."24


     24 These inquiries are related but distinct, as decisions
applying the analogous Title VII standard demonstrate. See, e.g.,
Lipsett, 

 ("[N]ot all conduct that may be
characterized as 'harassment' . . . [is] 'sufficiently severe or
pervasive to create an abusive working environment.'"(cleaned
up)); Gallagher v. C.H. Robinson Worldwide, Inc., 

,


                                - 85 -
          Thus, although there is no question that a jury could

find that Wadsworth was subjected to harassment that was severe,

pervasive, and objectively offensive, the Equal Protection Clause

does not require her to prove that level of harm.




271 (6th Cir. 2009) (explaining conduct was harassment "based on
sex" where it was "explicitly sexual and patently degrading of
women," and "[t]he natural effect of exposure to such offensive
conduct is embarrassment, humiliation and degradation"); Howley v.
Town of Stratford, 

 (2d Cir. 2000) (analyzing
separately whether employer's use of degrading and sexualized
language affected workplace from whether same conduct constituted
sexual harassment).


                             - 86 -