                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 05a0118p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                         X
                                                          -
 CASEY WILLIAMS, by and through his mother and

                                   Plaintiff-Appellant/ -
 next friend, Sara Hart,
                                                          -
                                      Cross-Appellee, -
                                                              Nos. 03-4106/4485

                                                          ,
                                                           >
             v.                                           -
                                                          -
                                                          -
                                Defendants-Appellees/ -
 PAINT VALLEY LOCAL SCHOOL DISTRICT, et al.,

                                    Cross-Appellants. -
                                                          -
                                                         N
                          Appeal from the United States District Court
                         for the Southern District of Ohio at Columbus.
                     No. 01-00004—Edmund A. Sargus, Jr., District Judge.
                                        Argued: December 2, 2004
                                   Decided and Filed: March 9, 2005
            Before: SILER and CLAY, Circuit Judges; BERTELSMAN, District Judge.*


                                            _________________
                                                 COUNSEL
ARGUED: Emily J. Lewis, Dublin, Ohio, for Appellant. John C. Albert, CRABBE, BROWN &
JAMES, Columbus, Ohio, for Appellee. ON BRIEF: Emily J. Lewis, Dublin, Ohio, for Appellant.
John C. Albert, CRABBE, BROWN & JAMES, Columbus, Ohio, for Appellee.
                                            _________________
                                                OPINION
                                            _________________
                              TYPE OF ACTION AND JURISDICTION
       BERTELSMAN, District Judge. This appeal involves claims arising from the alleged
inappropriate touching of a student by a teacher in the Paint Valley Local School District (“Paint
Valley”). Casey Williams (“Williams”) alleged the following claims: 1) violation of Title IX, 20

        *
           The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky,
sitting by designation.


                                                        1
Nos. 03-4106/4485 Williams v. Paint Valley Local School District, et al.                                            Page 2


U.S.C. § 1681,et seq.; 2) violation of 42 U.S.C. §§ 1983 and 1985(3); 3) negligent retention; 4)
assault and battery; 5) negligence by defendant Arnold (not a party to this appeal); 6) negligent
and/or intentional infliction of emotional distress; 7) invasion of privacy; and 8) loss of consortium.
        The district court had subject matter jurisdiction over this matter because the complaint
alleged violations of the Constitution and/or laws of the United States, 28 U.S.C. § 1331. This court
has jurisdiction to hear appeals from the final judgments of district courts, 28 U.S.C. § 1291.
        This court also has jurisdiction to hear Paint Valley’s cross-appeal of the district court’s
denial of Paint Valley’s motion for reconsideration as to a specific doctrine of case law, as
articulated in Middlesex Co. Sewerage Auth. v. National Sea Clammers Assoc., 453 U.S. 1 (1981).
                                                         FACTS
        This matter arises from the alleged inappropriate touching of Casey Williams by Harry E.
Arnold, Jr., while Arnold was employed as a teacher by the Paint Valley Local School District. The
facts underlying the case were developed during a jury trial.
        Williams’ claims arose out of numerous incidents of sexual molestation of him by his fourth-
grade teacher, Harry E. Arnold, Jr., in September 1999. At least five other grade school boys and
their parents had made complaints to school officials and school board members about Arnold’s
sexual molestation of the boys, including fondling their genitals in the classroom. Complaints were
made by four boys in 1976 and another in 1990.
        Plaintiff alleged that Paint Valley violated Title IX and his constitutional right to bodily
integrity by repeatedly failing to take remedial action to prevent Arnold’s sexual molestation of
young male students. Plaintiff alleged that Paint Valley knew that Arnold presented a risk to student
safety but, by its action or inaction, Paint Valley was deliberately indifferent to this risk.
        Paint Valley filed a motion for summary judgment as to all of Williams’ claims. The district
court granted in part and denied in part Paint Valley’s motion for summary judgment. The district
court found that issues of fact remained with regard to Williams’ § 1983 and Title IX claims and
dismissed all other claims alleged in the complaint. Paint Valley filed a motion for reconsideration,
urging the  court to limit Williams to a Title IX claim, pursuant to the National Sea Clammers
doctrine.1
        Following the district court’s denial of Paint Valley’s motion for reconsideration, the
remainder of Williams’ claims went to a jury trial. The parties contested one another’s proposed
jury instructions, with the court finally reaching a resolution and issuing its own jury instructions.
The jury returned a verdict in favor of Paint Valley as to all of Williams’ claims, and the district
court entered judgment consistent with the jury’s verdict.
        Williams then filed a motion for judgment as a matter of law or, alternatively, for new trial,
which the district court2denied. Williams timely filed a notice of appeal. Paint Valley then filed its
notice of cross-appeal. The primary issue on appeal is the correctness of the jury instructions.


         1
           The National Sea Clammers doctrine states that where the express remedial provisions of a federal statute are
sufficiently comprehensive, then it was Congress’ intent to bar alternative suits to enforce those same rights. Middlesex
Co. Sewerage Authority v. National Sea Clammers Assoc., 453 U.S. 1, 20-21 (1981).
         2
          The district court rejected Paint Valley’s argument that it could raise an issue for the first time in a motion for
reconsideration regarding a doctrine of case law articulated in Middlesex Co. Sewerage Auth. v. National Sea Clammers
Assoc., 453 U.S. 1 (1981). We find no error and accept that ruling.
Nos. 03-4106/4485 Williams v. Paint Valley Local School District, et al.                          Page 3


       The trial court gave the following instructions on the Title IX claim. The disputed language
is emphasized.
                                             TITLE IX
               One of Plaintiff’s claims arises under a federal law known as Title IX. As
       relevant here, Title IX provides that “No person . . . 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.” It is agreed by the parties that the Defendant received federal assistance.
              Under Title [IX], the School District may be liable for the sexual abuse of a
       student if the Plaintiff demonstrates by a preponderance of the evidence each of the
       following elements:
              (1.) Plaintiff Casey Williams was subjected to sexual abuse by the
              intentional conduct of Harold Arnold;
              (2.) A school district official with authority to institute corrective measures
              had actual notice that Harold Arnold posed a substantial risk of sexual abuse
              to children in the school district; and
              (3.) The school district was deliberately indifferent to a substantial risk of
              sexual abuse posed to the children of the school district.
                                DELIBERATE INDIFFERENCE
               In order for the School District to be liable for acting with deliberate
       indifference, Plaintiff must demonstrate by a preponderance of the evidence that the
       School District had actual knowledge of prior facts to which it responded
       unreasonably. Plaintiff must prove by a preponderance of the evidence that its
       response to the abuse, or lack thereof is clearly unreasonable in light of known
       circumstances. No one particular response is required. A school district’s duty to
       respond may be sparked once it is alerted to the possibility of a sexual abuse. If the
       school district takes timely measures to end a substantial risk of abuse, it is not
       deliberately indifferent [if] such measures are not clearly unreasonable.
              Where a school district has knowledge that its remedial action is inadequate
       and ineffective, it is required to take reasonable action in light of those
       circumstances to eliminate the behavior. Where a school district has actual
       knowledge that its efforts to remediate are ineffective, and it continues to use those
       same methods to no avail, such district has failed to act reasonably in light of the
       known circumstances.
       (emphasis added).
       The trial court gave the following instructions on the § 1983 claim. Again, the disputed
language is emphasized.
                                         42 U.S.C. § 1983
              Plaintiff also asserts a claim under the federal civil rights statute, 42 U.S.C.
       § 1983. That statute provides:
              Every person who, under color of statute, ordinance, regulation, custom, or
       usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
Nos. 03-4106/4485 Williams v. Paint Valley Local School District, et al.                            Page 4


       States . . . to the deprivation of any rights, privileges, or immunities secured by the
       Constitution and laws, shall be liable to the party injured. . . .
               This federal civil rights act was enacted by Congress to enforce the
       Fourteenth Amendment to the United States Constitution. In order to proceed on a
       Section 1983 claim, the Plaintiff must show by a preponderance of the evidence that
       he has been deprived of a constitutional right by a person acting under color of state
       law. The parties agree that Harold Arnold, as a public school teacher, was acting
       under color of state law, as that term is used in Section 1983. The Due Process
       clause of the Constitution protects individuals against state intrusions on bodily
       security. A public student’s right to personal security and to bodily integrity is
       protected by the Constitution. That right embraces the right to be free from sexual
       abuse at the hands of a public school employee. In other words, you must first find
       by a preponderance of the evidence that Harold Arnold violated Casey Williams’
       constitutional rights by sexually abusing or harassing Casey Williams.
               If you find that Plaintiff has failed to prove by a preponderance of the
       evidence that Harold Arnold deprived Casey Williams of his constitutional right,
       Plaintiff has not proved his claim under Section 1983.
                                 42 U.S.C. § 1983 - CONTINUED
               If you determine that Plaintiff has proved that Harold Arnold violated his
       constitutional rights, you must next determine whether the School District itself was
       responsible for that violation. The School District is not liable simply because
       Harold Arnold sexually abused the Plaintiff. In order to prevail on a Section 1983
       claim, the Plaintiff must demonstrate: (1) that there has been a deprivation of a
       constitutional right; and (2) that the School Board is responsible for that violation.
       The Plaintiff must show that the School District itself is the wrongdoer.
               A school district may be liable under Section 1983 if it had an officially
       executed policy, or the toleration of a custom within the school district leads to,
       causes, or results in the deprivation of a constitutional right. A custom must reflect
       a course of action deliberately chosen from among various alternatives. In short, a
       “custom” is a practice or policy not memorialized by written law.
               In this case, Plaintiff Casey Williams seeks to hold the Paint Valley Local
       School District liable for the acts, failure to act, or decisions of school officials. You
       may find the School District liable for the acts or decisions of its officials only if the
       Plaintiff has proven that the officials or official had the authority to establish policy
       for the school and that decisions, actions or failure to act caused injury to the
       Plaintiff. In other words, the School District can only be held liable if the officials’
       acts or omissions can be fairly said to represent official policy of the school.
               In the present case, Plaintiff does not claim that the Paint Valley School
       District affirmatively approved of or condoned sexual abuse, but rather claims that
       the School District failed to act properly with respect to the allegations against
       Harold Arnold. In order to prevail on his Section 1983 claim, Plaintiff must establish
       by a preponderance of the evidence each of the following:
       (1.) The existence of a clear and persistent pattern of sexual abuse or a substantial
       risk of sexual abuse by a school employee;
Nos. 03-4106/4485 Williams v. Paint Valley Local School District, et al.                                           Page 5


         (2.) Notice of such pattern, or substantial risk, of sexual abuse on the part of the
         School District;
         (3.) The School District was deliberately indifferent to known facts which
         demonstrated an unreasonable risk to the safety of student; and
         (4.) That the School District’s deliberate indifference was a moving force or was a
         direct causal link in the constitutional deprivation. In such case, the School
         District’s failure to act can be said to amount to an official policy of inaction.
         (emphasis added).
                                                     ANALYSIS
                                Standard of Review as to Jury Instructions
         In the Sixth Circuit, it is well established that jury instructions are reviewed as a whole and
that an issue as to instructions is a question of law that is reviewed de novo. Fisher v. Ford Motor
Co., 224 F.3d 570, 576 (6th Cir. 2000). On appeal, the task of the court is not to read the
instructions word for word to find an erroneous word or phrase, but rather to “review the instructions
‘as a whole in order to determine whether they adequately inform the jury of the relevant
considerations and provide a basis in law for aiding the jury in reaching its decision.’” O-So Detroit,
Inc. v. Home Insurance Co., 973 F.2d 498, 502 (6th Cir. 1992)(quoting Kitchen v. Chippewa Valley
Schools, 825 F.2d 1004, 1010-1011 (6th Cir. 1987)).
        Appeals as to specific jury instructions, however, that were not given by the district court
are reviewed for abuse of discretion. Id. As succinctly stated in Fisher:
         The standard on appeal for a court’s charge to the jury is whether the charge, taken
         as a whole, fairly and adequately submits the issues and applicable law to the
         jury. . . . Because the correctness of jury instructions is a question of law, we review
         de novo a court’s jury instructions. . . . A district court’s refusal to give a specific
         requested jury instruction, however, is reviewed for abuse of discretion.
Fisher, 224 F.3d at 575-76 (emphasis added; internal citations omitted). See also Jones v. Federated
Financial Reserve Corp., 144 F.3d 961, 966 (6th Cir. 1998); United States v. Frost, 914 F.2d 756,
764 (6th Cir. 1990); United States v. Martin, 740 F.2d 1352, 1361 (6th Cir. 1984).
        In the present case, Williams is seeking review of specific legal standards of liability. The
appeal is as to questions of law embodied in the instruction. Therefore, because it is a question of
law, the instructions are reviewed de novo. Since the instructions are reviewed as a whole to3
determine if the instructions adequately informed the jury, we have quoted them at length above.
                                                    Title IX Claim
        Title IX provides that “No person . . . shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). This includes the
duty not to discriminate on the basis of sex, which encompasses a teacher’s sexual harassment of



         3
            Paint Valley contends that Williams failed to preserve his objections to the instructions. F. R. Civ. P. 51. The
trial court held that the objections were preserved, however, and we accept that ruling.
Nos. 03-4106/4485 Williams v. Paint Valley Local School District, et al.                          Page 6


a student. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 282 (1998)(citing
Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 74-75 (1992)).
        Title IX may be enforced through federal administrative agencies “through any means
authorized by law” including termination of federal funding. Gebser, 524 U.S. at 280-81. Title IX
is also enforceable through an implied right of action where monetary damages are available. Id.
        The parties agree that the leading cases addressing this claim are Davis v. Monroe County
Board of Education, 526 U.S. 629 (1999), and Gebser v. Lago Vista Independent School District,
524 U.S. 274 (1998). In Gebser, which involved the harassment of a student by a teacher, it was
established by the Supreme Court that a school district can be held liable in damages for the sexual
harassment if it is proven that the school district had actual notice and exhibited deliberate
indifference to the alleged harassment. Id. at 292. Gebser explained that deliberate indifference of
a school district is shown where there is an official or other person with authority to take corrective
action, who has “actual knowledge of [the abuse], and fails adequately to respond.” Id. at 290.
Further, the response must “amount to deliberate indifference.” Id.
        A year after Gebser, the Court addressed the liability of a school district under Title IX for
student-on-student sexual harassment. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999).
Expanding on Gebser, the Court held that a similar right to sue arose under appropriate
circumstances. The court eschewed any negligence or respondeat superior liability. Davis, 526
U.S. at 645. Relying on its analysis in Gebser, the Court observed: “As noted above, the theory of
Gebser was that the recipient was directly liable for its deliberate indifference to discrimination.”
Id. (emphasis in original).
       The Court further noted:
       School administrators will continue to enjoy the flexibility they require so long as
       funding recipients are deemed “deliberately indifferent” to acts of student-on-student
       harassment only where the recipient’s response to the harassment or lack thereof is
       clearly unreasonable in light of the known circumstances. The dissent consistently
       mischaracterizes this standard to require funding recipients to “remedy” peer
       harassment, . . . and to “ensur[e] that . . . students conform their conduct to” certain
       rules, . . . . Title IX imposes no such requirements. On the contrary, the recipient
       must merely respond to known peer harassment in a manner that is not clearly
       unreasonable. This is not a mere “reasonableness” standard, as the dissent assumes.
       See post, at 1688. In an appropriate case, there is no reason why courts, on a motion
       to dismiss, for summary judgment, or for a directed verdict, could not identify a
       response as not “clearly unreasonable” as a matter of law.
Id. at 648. (emphasis added).
        It is clear from a reading of Gebser and Davis, that the Court is discussing only one standard
for “deliberate indifference” in Title IX pupil harassment cases and not, as Williams contends, one
standard for student-on-student harassment and a less stringent standard for teacher-on-student
harassment. The rule advocated by Williams, a “reasonableness” standard for teacher-on-student
cases, would make the district liable for mere negligence, an approach expressly rejected by the
Court.
        The post-Davis decisions of this court have applied but one standard. Thus, in a student-on-
student case we commented that under the facts: “[t]he prompt and thorough response by school
officials to the . . . complaint [of harassment] was not ‘clearly unreasonable in light of the known
circumstances.’” Soper v Hoben, 195 F.3d 845, 855 (6th Cir. 1999)(emphasis added).
Nos. 03-4106/4485 Williams v. Paint Valley Local School District, et al.                         Page 7


        Even more persuasive is this court’s discussion in another student-on-student case, Vance
v. Spencer County Public School Dist., 231 F.3d 253 (6th Cir. 2000). There, we discussed Gebser,
Davis, and an Eighth Amendment prison case as instructive in interpreting applicable deliberate
indifference standards:
       The pivotal issue before us is what is required of federal assistance recipients under
       the “deliberate indifference standard.” The recipient is liable for damages only
       where the recipient itself intentionally acted in clear violation of Title IX by
       remaining deliberately indifferent to known acts of harassment. See Davis, 526 U.S.
       at 642, 119 S.Ct. 1661 (discussing Gebser v. Lago Vista School Dist., stating liability
       arose from recipient’s official decision not to remedy the violation). “[T]he
       deliberate indifference must, at a minimum, ‘cause [students] to undergo harassment
       or make them liable or vulnerable’ to it.” Davis, 526 U.S. at 645, 119 S.Ct. 1661.
       In describing the proof necessary to satisfy the standard, the Supreme Court stated
       that a plaintiff may demonstrate defendant’s deliberate indifference to discrimination
       “only where the recipient’s response to the harassment or lack thereof is clearly
       unreasonable in light of the known circumstances.” Id. at 648, 119 S.Ct. 1661 Cf.
       Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811
       (1994)(holding that a prison official may be liable under the Eighth Amendment
       based on deliberate indifference to the safety of prisoners if he knows of, and
       responds unreasonably to, “a substantial risk of serious harm”); Gant v. Wallingford
       Bd. of Educ., 195 F.3d 134 (2d Cir. 1999)(stating that, under § 1981, a student-on-
       student racial discrimination claim does not require proof that “the defendant fully
       appreciated the harmful consequences of that discrimination, because deliberate
       indifference is not the same as action (or inaction) taken `maliciously or sadistically
       for the very purpose of causing harm’”)(quoting Farmer, 511 U.S. at 835, 114 S.Ct.
       1970 (internal quotation marks omitted)).
                                              *****
       “The Supreme Court has pointedly reminded us, however, that this is `not a mere
       “reasonableness” standard’ that transforms every school disciplinary decision into
       a jury question.” Gant, 195 F.3d at 141 (quoting Davis, 526 U.S. at 649, 119 S.Ct.
       1661). In an appropriate case, there is no reason why courts on motion for a directed
       verdict could not identify a response as not “clearly reasonable” as a matter of law.
       See Gant, 195 F.3d at 141.
Vance, 231 F.3d at 259-260.
       Williams argues that the Title IX instruction of the trial court, which closely followed the
quoted language of Vance, was confusing to the jury in that it imposed the obligation on the
appellant to show that the defendant acted “clearly unreasonably” when the standard is one of mere
reasonableness.
       He further argues that the “clearly unreasonable” standard is to be employed only in peer
harassment, and that the less stringent reasonableness standard applies in teacher harassment cases.
       As we have stated, the trial judge disagreed and so do we. The Court in Davis was
explaining the standard laid down in Gebser. There is no indication that a different standard was
intended by the Court in peer harassment cases and teacher harassment cases.
         Williams also objects to the use of the “substantial risk” gloss in the instructions given by
the trial court. Such language, however, was employed in Vance in the above quotation, where we
Nos. 03-4106/4485 Williams v. Paint Valley Local School District, et al.                        Page 8


held that the Supreme Court’s discussion of “deliberate indifference” in an Eighth Amendment case
was applicable to the school context.
        A reading of the Eighth Amendment case of Farmer discloses that the Court used the
“substantial risk” language as equivalent to “significant risk.” See Farmer v. Brennan, 511 U.S. 825,
839 (1994). The idea was to make clear that “deliberate indifference” liability could not rest on
actual or constructive knowledge of an inconsequential risk.
        In our view, the jurors would have read the instruction in this way, and the instruction is a
correct statement of the law.
                                       Section 1983 Claim
      We find no fault in the trial court’s § 1983 instruction. It was based on Doe v. Claiborne
County Bd. of Educ., 103 F.3d 495, 507 (6th Cir. 1996), a teacher harassment case.
        There, after noting that § 1983 municipal liability requires proof of an unconstitutional
policy, the court said:
       In addition to showing that the School Board as an entity “caused” the constitutional
       violation, plaintiff must also show a direct causal link between the custom and the
       constitutional deprivation; that is, she must “‘show that the particular injury was
       incurred because of the execution of that policy.’” Garner v. Memphis Police Dep’t,
       8 F.3d 358, 364 (6th Cir. 1993)(emphasis added) (citation omitted), cert. denied, 510
       U.S. 1177, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). This requirement is necessary
       to avoid de facto respondeat superior liability explicitly prohibited by Monell.
       The analytical difficulty in this case stems from the type of “custom” that the
       plaintiff claims directly caused Davis to sexually abuse her. Doe does not claim that
       the School Board had a custom of affirmatively condoning sexual abuse. Clearly,
       no municipality could have such a policy. Rather, Doe claims that the custom was
       to fail to act to prevent the sexual abuse.
       To state a municipal liability claim under an “inaction” theory, Doe must establish:
               (1) the existence of a clear and persistent pattern of sexual abuse by
               school employees;
               (2) notice or constructive notice on the part of the School Board;
               (3) the School Board’s tacit approval of the unconstitutional conduct,
               such that their deliberate indifference in their failure to act can be
               said to amount to an official policy of inaction; and
               (4) that the School Board’s custom was the “moving force” or direct
               causal link in the constitutional deprivation.
       See City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197, 1204-05, 103
       L.Ed.2d 412 (1989); see also Thelma D. v. Board of Educ. of City of St. Louis, 934
       F.2d 929, 932-33 (8th Cir. 1991). The Monell custom requirement is an essential
       element of this claim. The evidence must show that the need to act is so obvious that
       the School Board’s “conscious” decision not to act can be said to amount to a
       “policy” of deliberate indifference to Doe’s constitutional rights. City of Canton,
       489 U.S. at 389, 109 S.Ct. at 1205. “Deliberate indifference” in this context does not
       mean a collection of sloppy, or even reckless, oversights; it means evidence showing
       an obvious, deliberate indifference to sexual abuse.
Nos. 03-4106/4485 Williams v. Paint Valley Local School District, et al.                        Page 9


103 F.3d at 508 (emphasis added). (See also Doe v. City of Roseville, 296 F.3d 431 (6th Cir.
2002)(approving analysis articulated in Claiborne).
        The trial court’s § 1983 instruction paraphrases our language in Claiborne and is a correct
statement of the law. Appellant finds fault with the fact that the trial court did not employ a separate
definition for “deliberate indifference” in the § 1983 count. Williams recognized that the jury would
use the instruction on the Title IX count in the § 1983 count, but claims the instructions for the two
claims should have been different.
        As we stated above, however, “deliberate indifference” has substantially the same meaning
in both claims, as well as Eighth Amendment claims. See Flores v. Morgan Hill Unified School
Dist., 324 F.3d 1130, 1135 (9th Cir. 2003)(citing Davis v. Monroe County Bd. Of Educ., 526 U.S.
629 (1999)), for the standard for deliberate indifference in Section 1983 cases); Gant v. Wallingford
Bd. of Educ., 195 F.3d 134, 141 (2d Cir. 1999)(discussing Gebser, Davis and Farmer, and 42 U.S.C.
§ 1981 as embodying the same “deliberate indifference” standard).
       Accordingly, finding no error in the trial court’s instructions, nor in the trial court’s denial
of Paint Valley’s Motion to Reconsider, we AFFIRM the rulings of the district court in full.
