                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 08 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JANE DOE, a minor; KRISTEN D.,                   No. 10-16786
Guardian ad Litem,
                                                 D.C. No. 3:09-cv-03655-JSW
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

WILLITS UNIFIED SCHOOL
DISTRICT; WILLITS CHARTER
SCHOOL; SALLY RULISON; CLINT
SMITH,

              Defendants - Appellees.



JANE DOE, a minor; KRISTEN D.,                   No. 10-17880
Guardian ad Litem,
                                                 D.C. No. 3:09-cv-03655-JSW
              Plaintiffs - Appellants,

  v.

WILLITS CHARTER SCHOOL; SALLY
RULISON,

              Defendants - Appellees,

  and

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
CLINT SMITH; WILLITS UNIFIED
SCHOOL DISTRICT,

               Defendants.


                   Appeal from the United States District Court
                      for the Northern District of California
                    Jeffrey S. White, District Judge, Presiding

                             Submitted May 16, 2012**
                              San Francisco, California

Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

      Jane Doe, through her guardian ad litem, Kristen D., appeals the district

court’s summary judgment in favor of Willits Unified School District, Willits

Charter School, and Sally Rulison, the Director of the school (collectively

“Willits”). Doe’s action stems from a sexual relationship between Doe and her

high school math and science teacher. After the relationship was made public, Doe

filed suit alleging claims under 42 U.S.C. § 1983 and Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681(a), as well as under state law for negligent

hiring and supervision. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.



          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                        -2-
      Although Doe advances multiple grounds for relief, her appeal fails because

she is unable to meet a key threshold requirement: that the school’s response to the

alleged injuries was deliberately indifferent. Damages under Title IX are available

only if an official with authority to address the alleged discrimination and institute

corrective measures has actual knowledge of the discrimination and fails to

adequately respond—i.e., acts with deliberate indifference. Gebser v. Lago Vista

Indep. Sch. Dist., 524 U.S. 274, 290 (1998). The test for deliberate indifference is

“whether a reasonable fact-finder could conclude that the [school]’s response was

clearly unreasonable in light of the known circumstances.” Oden v. N. Marianas

Coll., 440 F.3d 1085, 1089 (9th Cir. 2006) (internal quotation marks and citation

omitted). To meet this high standard there must, in essence, be an official decision

not to remedy the violation and this decision must be clearly unreasonable. Davis

v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 649 (1999). Summary judgment is

proper when a school’s response to the harassment was not clearly unreasonable as

a matter of law. Even a showing of heightened negligence is insufficient to prove

deliberate indifference. See Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397,

411-12 (1997) (discussing deliberate indifference as it applies to § 1983 cases).

      Doe argues that during the summer and fall of 2008, the school should have

noticed warning signs of an inappropriate relationship. Those warning signs,


                                          -3-
however, do not amount to actual notice and, as the district court stated, “[t]here

is . . . no admissible evidence that anyone, including Plaintiff’s mother, informed

the school administration” of some of those warning signs. Construing all the

admissible evidence in Doe’s favor, she fails to establish either actual knowledge

prior to January 8, 2009, or deliberate indifference. Rumors of the teacher favoring

Doe in his classes did not reach Rulison until December 2008. In response,

Rulison called the teacher and Doe, separately, into her office to make inquiries but

both vehemently denied any favoritism or inappropriate relationship.

      As soon as Rulison was told of the sexual relationship, on January 8, 2009,

she took immediate and appropriate action. She reported the relationship to Child

Protective Services and followed up when she did not hear back promptly,

contacted the Sheriff, turned the case over to the Willits Police Department, and

placed the teacher on mandatory administrative leave. Rulison’s response cannot

be characterized as deliberately indifferent, and Doe fails to establish that Rulison

or the school had actual knowledge of the sexual relationship prior to January 8,

2009. The district court did not err in granting summary judgment.

      AFFIRMED.




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