               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0216n.06

                                       Case No. 16-1613

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                               Apr 12, 2017
KEEGAN GORDON,                                     )                      DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellant,                        )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE WESTERN DISTRICT OF
TRAVERSE CITY AREA PUBLIC                          )       MICHIGAN
SCHOOLS,                                           )
                                                   )
       Defendant-Appellee.                         )




       BEFORE: MERRITT, COOK, and McKEAGUE, Circuit Judges.

       COOK, Circuit Judge. As a sophomore at Traverse City West Senior High (TC West),

Keegan Gordon was sexually assaulted by his teacher, Lisa Placek. In the months following,

Keegan struggled socially and academically. He felt shunned by his friends and athletic coaches;

his grades plummeted; he contemplated suicide. And in 2015, he filed this lawsuit blaming his

school district, Traverse City Area Public Schools (TCAPS), for much of his decline. Relying on

the Fourteenth Amendment’s Equal Protection Clause, Title IX, and Michigan state law, he

charged school officials with retaliation and remaining deliberately indifferent to his claims of

peer harassment.    The district court granted summary judgment to TCAPS.           Because no

reasonable jury could find that TCAPS retaliated against Keegan or responded with deliberate

indifference to his complaints of peer harassment, we affirm.
Case No. 16-1613, Gordon v. Traverse City Area Public Schools


                                                I.

(A) Factual Background

       Lisa Placek, one of TC West’s most popular teachers, began grooming Keegan for sexual

contact at the end of his freshman year. The two exchanged cell-phone numbers and texted each

other increasingly explicit messages and photos over the next several months. On December 31,

2011, Placek picked Keegan up in her car and performed oral sex on him.

       Keegan did not report Placek’s sexual assault to police.          Instead, TCAPS began

investigating after naked photos of Placek wound up on the internet. On January 20, 2012, the

day after it discovered the photos, TCAPS questioned Placek, suspended her, and reported the

incident to police. Placek resigned a few days later. In March, she pleaded guilty to assault with

intent to commit sexual penetration and was sentenced to a minimum of 23 months in prison.

Keegan cooperated with the police investigation.

       Following Placek’s assault, Keegan claims he was harassed by peers, shunned by athletic

coaches, and retaliated against by TC West administrators, all because Placek lost her job and

ended up in jail. We detail the school’s response to the Placek incident below in the light most

favorable to Keegan, highlighting factual disputes where they arise.

       (1) Suspensions and Bullying

       TCAPS encouraged Keegan to stay home for a few days following Placek’s suspension.

Keegan and his mother, Kathryn Gordon, voiced no objection, and Keegan returned to classes

several days later. Shortly after Placek’s removal, TC West Principal Joseph Tibaldi met with

his three assistant principals to discuss the school’s response. He instructed them to “make sure

Keegan’s teachers protected him,” to watch for “verbal or physical harassment,” and to report

any bullying.


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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


       Around the same time, Kathryn reported to Tibaldi and Assistant Principal Stephanie

Long that three of Keegan’s peers had posted hurtful comments on his Facebook page. She

supplied Tibaldi with their names and a list of students who “liked” the post. School officials

verbally reprimanded the three posting students, and none bothered Keegan again. There’s no

record of the school speaking to the students who “liked” the post.

       In early February, TC West suspended Keegan and his friend for allegedly chewing

tobacco in a school bathroom. This was their second offense: in early January, before the school

learned of Placek’s assault, it caught the pair chewing together and suspended both. The parties

dispute what happened the second time around.

       According to Keegan’s baseball coach, he received a tip that Keegan and his friend were

chewing tobacco in adjacent bathroom stalls. The coach knocked on the stalls and waited

45 seconds before the boys exited. Suspicious, he asked the boys to smile, revealing tobacco bits

in their teeth. He then reported them to Assistant Principal Charles Kolbusz, to whom Keegan’s

friend admitted chewing. According to Kolbusz, Keegan denied chewing but confessed to

possessing tobacco. Both boys received five-day suspensions.

       Although Keegan denies possessing or chewing tobacco, he admits telling Kolbusz he

intended to chew. The school later granted Keegan’s appeal after it found that Kolbusz failed to

collect a written statement from Keegan, in violation of school procedure.

       Convinced that TC West had found her son guilty by association, Kathryn met with

Principal Tibaldi to voice her frustration. Tibaldi, a seasoned school principal, believed it

“common for many high school students to lie in an attempt to avoid discipline,” and said so to

Kathryn. Not convinced, Kathryn requested that Tibaldi “ask [Assistant Principal] Stephanie

Long . . . [m]y son has always been honest with her.” In fact, Long’s impression of Keegan “was


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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


the opposite” because she “recalled Keegan lying on several occasions when accused of

misconduct.” With the intention of speaking to Kathryn further, Tibaldi asked Long to document

Keegan’s disciplinary history, resulting in what the parties refer to as the “Long Memo # 1.”

        Keegan perceives a more nefarious motive. He believes Long packed the list with “false

accusations” and “unconfirmed claim[s]” to impugn his credibility in the event Placek stood

trial.1 He also thinks TCAPS furnished the list to the prosecutors investigating Placek’s assault,

relying on his own testimony that he’s “pretty sure it was brought up” in his conversations with

them.

        Keegan’s scholastic rap sheet continued to grow after his tobacco suspensions.          In

February, TC West suspended him for allegedly sharing a fellow student’s naked picture with his

friends. The school investigated after the student’s friend hurled a chair at Keegan in the

cafeteria. TC West interviewed multiple witnesses, and at least one implicated Keegan. In

addition to Keegan, the school suspended the chair-thrower and the students who viewed the

photo. Keegan denies sharing the picture.

        Sometime later, Keegan allegedly made sexually charged comments to a classmate and

shined his phone’s flashlight in her eyes during class, prompting his teacher to move his desk

and confiscate his phone. Keegan admits that he “had [his] phone on the desk or something,” but

denies the rest.

        Besides the chair-throwing incident, Keegan reported two other incidents of on-campus

harassment. First, he reported a football captain for making a rude comment to him. His football

coach reprimanded the player and asked the other captains to be friendlier to Keegan. Second, a



        1
         Notably, the Long Memo #1 describes the basis for each entry and acknowledges where
an incident could not be confirmed or is based on second-hand reports.
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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


TC West alumnus insulted Keegan while using TC West’s weight room. Principal Tibaldi

threatened to bar the alumnus from campus if such behavior recurred.

       (2) Shunning

       Keegan’s social life suffered following the Placek incident. The “entire school” turned

on him, “everybody hated him for it,” and “even his close friends shunned him.” Parents sent e-

mails to TCAPS defending Placek and blaming Keegan. Needless to say, the community’s

response took its toll on him. He developed severe anxiety and contemplated suicide.

       Keegan also recalls feeling “neglected” by TC West’s athletic coaches and “not as

important as [he] used to be.” Keegan’s friend testified that coaches considered him a “cancer.”

Teachers “did not pay as much attention to [Keegan]” or “act [as] light-hearted with [him]” as

they had in the past.

       Keegan declined to try out for his sophomore baseball team because he “hadn’t been

contacted” by coaches. He concedes, however, that TC West does not extend individual try-out

invitations. Keegan also claims that coaches “excluded” him from a trip to the University of

Michigan that “other members of the team were allowed to attend.” But he offers no evidence

that coaches sent invitations to other student-athletes.

       TCAPS denies Keegan’s shunning allegations.

       (3) Educational Decisions Following Placek’s Assault

       TC West offered Keegan numerous accommodations following Placek’s assault.

It allowed him to drop theater class because he felt uncomfortable performing for classmates.

It permitted him to work in a “focus room” if he felt anxious. Teachers offered him extra time

on assignments. Assistant Principal Long tutored him in English.




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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


        Despite these accommodations, Kathryn Gordon pulled her son out of TC West in March

2012, two weeks into the final trimester of his sophomore year, and enrolled him in online

courses. Unhappy, Keegan re-enrolled at TC West 10 days later. When he met with his

guidance counselor to schedule classes, the counselor could not replicate his online course load.

Moreover, Placek’s daughter, also a TC West student, was already enrolled in a creative-writing

class Keegan wanted to take. The counselor felt that placing Keegan with Placek’s daughter

might be uncomfortable for them both. And because Placek’s daughter had already attended the

class for nearly two weeks by the time Keegan decided to re-enroll, the counselor placed Keegan

in a different class.

        TC West divides its student body into three learning groups known as “neighborhoods.”

Hoping to provide Keegan a “fresh start,” his counselor also assigned him to a new

neighborhood. Kathryn complained to school administrators about the decision because she

worried it would isolate her son from his remaining friends.

        Unfortunately, the neighborhood switch backfired, making Keegan “dislike[] life . . .

even more.” Afraid he might commit suicide, Kathryn sent him to live with an uncle in Arizona

for his junior year. Unhappy there, Keegan returned two months into the school year and

enrolled in a different Traverse City school, TC Central. Although eligibility rules generally

require recent transfers to sit out temporarily, school officials petitioned the Michigan High

School Athletic Association for a waiver, which it granted. Nonetheless, Keegan declined to try

out for TC Central’s baseball team.

        In December 2012, Kathryn met with Superintendent Steve Cousins and Principal Tibaldi

to voice her frustration with TCAPS’s response to the Placek incident. She complained that

TC West had done little to help Keegan and also took issue with the actions TC West did take.


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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


Cousins and Tibaldi both offered to help Keegan, but believed that because of his age—16 at the

time—he should be part of the conversation moving forward. Kathryn never followed up on

TCAPS’s offer.

(B) Proceedings Below

       In 2015, Keegan brought a three-count complaint against TCAPS in the Western District

of Michigan. He alleged that TCAPS punished him for Placek’s arrest and failed to protect him

from peer harassment, in violation of the Fourteenth Amendment’s Equal Protection Clause,

Title IX, and Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Law.

§§ 37.2101–37.2804.

       The district court granted TCAPS’s motion for summary judgment on each of Keegan’s

claims. Keegan appeals only the dismissal of his Title IX and ELCRA claims.

                                               II.

       We review the district court’s grant of summary judgment de novo and will affirm if,

viewing the evidence and drawing all reasonable inferences in Keegan’s favor, “there is no

genuine issue of material fact and [TCAPS] is entitled to judgment as a matter of law.” Stiles ex

rel. D.S. v. Grainger Cty., Tenn., 819 F.3d 834, 847 (6th Cir. 2016). A factual dispute is genuine

if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

                                               III.

       Title IX provides that “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).

Title IX implies a cause-of-action against recipients of federal funds. See Cannon v. Univ. of


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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


Chicago, 441 U.S. 677, 689 (1979). Keegan’s claims sound in retaliation and harassment, and

we address each in turn.

(A) Retaliation

       In Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the Supreme Court

held that “[r]etaliation against individuals because they complain of sex discrimination is

‘intentional conduct that violates the clear terms of [Title IX].’” Id. at 183 (quoting Davis ex rel.

LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 642 (1999)). The McDonnell Douglas

burden-shifting framework applies to Title IX and ELCRA retaliation claims that rely on indirect

evidence of retaliation. Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013)

(alteration omitted), abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.

Ct. 2517 (2013); Fuller v. Mich. Dep’t of Transp., 580 F. App’x 416, 423 (6th Cir. 2014).

       To establish a prima facie case of retaliation, Keegan must show that (1) he engaged in

protected activity, (2) TCAPS knew of the protected activity, (3) he suffered an adverse school-

related action, and (4) a causal connection exists between the protected activity and the adverse

action. Fuhr, 710 F.3d at 674. If Keegan succeeds, TCAPS may rebut that presumption by

“articulating some legitimate, nondiscriminatory reason for its action.” Id. at 674 (quoting

Spengler v. Worthington Cylinders, 615 F.3d 481, 492 (6th Cir. 2010)). Should TCAPS do so,

the burden shifts back to Keegan to undermine its proffered reason as pretextual. Id.

       In granting summary judgment to TCAPS, the district court held first that Keegan

engaged in no protected activity because he did not complain of Placek’s harassment on his own

initiative; instead, TCAPS discovered the assault once naked photos of Placek circulated on the

internet, prompting an investigation. In the alternative, the district court concluded that TCAPS

had a “good faith belief”—which Keegan failed to undermine—for taking any of its arguably


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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


adverse actions. Because we agree that Keegan fails to undermine TCAPS’s reasons for taking

any adverse actions, we assume without deciding that Keegan engaged in protected activity. But

before addressing Keegan’s pretext arguments, we must identify which actions qualify as

adverse.

       (1) Adverse Educational Actions

       To qualify as “adverse,” an educational action must be sufficiently severe to dissuade a

“reasonable person” from engaging in the protected activity. See Burlington North. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68 (2006); Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 728–

29 (7th Cir. 2009) (applying Burlington Northern’s “adverse action” standard to a Title IX

retaliation claim). TCAPS maintains that, with the exception of Keegan’s two suspensions and a

single incident of in-class discipline, Keegan shows no adverse school-related actions.

       Keegan, on the other hand, takes issue with almost everything TCAPS did following the

Placek incident, including: (1) his coaches’ alleged shunning; (2) Assistant Principal Long’s

creation of the Long Memo # 1; (3) the decision to assign Long as his tutor; (4) Tibaldi’s

suggestion that he stay home from school for a few days after Placek’s removal; (5) his

counselor’s assigning him to a new neighborhood; and (6) his counselor’s denying him the

opportunity to take creative writing because Placek’s daughter was already enrolled. TCAPS

disputes the adversity of each.

       Keegan’s shunning allegations fail to bolster his prima facie case because they lack

evidentiary support. He relies on his own feelings of “neglect[],” his friend’s belief that coaches

considered him a “cancer,” and the fact that coaches didn’t invite him to try-out or attend a team

trip. But the friend admits he never actually heard coaches call Keegan a cancer, and instead

drew “assumptions” about the labeling from unspecified comments by teammates. And the


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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


friend—who apparently wasn’t the most popular player, either—further admits that his

teammates “might have been just referring to me.” Moreover, Keegan’s claims that coaches

didn’t personally invite him to try-out and “excluded” him from a team trip fail because he offers

no evidence that coaches invited other students or prevented him from trying out or attending the

trip.

        The record supports Keegan’s remaining grievances, but most fall short of meeting

Burlington Northern’s adversity test.     Start with the Long Memo # 1 detailing Keegan’s

disciplinary history at TC West. Merely having one’s disciplinary history summarized in an

internal school memo, without the memo affecting the subject in some way, would not dissuade

a reasonable person from engaging in protected activity. And although Keegan posits that

TCAPS furnished the memo to prosecutors to trash his credibility, he supports this claim with

only a deposition statement that he’s “pretty sure” a prosecutor mentioned the memo during an

interview.   The district court properly rejected the prosecutor’s statement as inadmissible

hearsay.2

        Assistant Principal Long’s tutorship of Keegan also fails to qualify as adverse. Following

the Placek incident, TC West took steps to help Keegan with his school work, including

assigning Long as his tutor. Keegan discerns a retaliatory motive in the choice of Long because

he views her as his “chief antagonist.” But even assuming Long disliked Keegan, no reasonable

jury could conclude that providing extra help to Keegan rises to the level of an adverse

educational action.


        2
         Keegan also takes issue with TCAPS’s creation of a “Long Memo # 2,” a more detailed
exposition of Keegan’s disciplinary history drafted by Assistant Principals Kolbusz, Long, and
Esper on October 25, 2012. By that time, Placek had already been sentenced and Keegan was
attending TC Central. Again, Keegan fails to explain how the school’s creation of an internal
memo is adverse.
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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


       We also agree with the district court that “TCAPS’s recommendation[] to [Keegan] that

he stay home until the atmosphere calmed down . . . do[es] not constitute [an] adverse action[].”

The undisputed evidence shows that Keegan raised no objection to this recommendation.

Offering a student the option of staying home following a sexual assault does not constitute an

adverse educational action.

       In contrast, Keegan proffers sufficient evidence to support the adversity of TCAPS’s

decision to place him in a different neighborhood. Kathryn Gordon claims she fought the

decision, and regarding adversity, Keegan asserts that changing neighborhoods separated him

from his friends. A reasonable jury could find the threat of social alienation sufficiently severe

to qualify as adverse.

       The same is true of TCAPS’s decision to deny Keegan enrollment in a creative-writing

class. Keegan testified that the school barred him from the class because Placek’s daughter was

already enrolled. A student might think twice about reporting harassment if he knew that his

school would then prevent him from taking desired courses.

       In sum, Keegan supports his prima facie case with five adverse educational actions: his

two suspensions, his in-class punishment, his placement in another neighborhood, and TCAPS’s

denial of the opportunity to take creative writing.

       (2) TCAPS’s Nondiscriminatory Justification and Keegan’s Evidence of Pretext

       The burden shifts to TCAPS to offer legitimate, non-discriminatory reasons for its five

adverse actions. TCAPS satisfies its burden. It points to evidence that TC West administrators

suspended Keegan because they believed he chewed tobacco and shared naked pictures of a

classmate. Similarly, it backs Keegan’s in-class punishment with evidence that he made sexually

inappropriate comments to a female student and shined his phone’s flashlight in her eye. Finally,


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Keegan’s counselor recommended he avoid classes with Placek’s daughter to prevent discomfort

for them both, and decided to place him in a new neighborhood to “help him feel more

comfortable.”

       Keegan must therefore identify sufficient evidence that would permit a jury to disbelieve

TCAPS’s proffered explanations. He may do so by showing that those explanations “(1) have no

basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the

action.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012) (citing Dews v.

A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)).

       To undermine the school’s disciplinary decisions, Keegan relies solely on the first

method, arguing that he was actually innocent of each infraction.

       Because Keegan attempts to show that TCAPS “did not actually have cause” to discipline

him, TCAPS benefits from the “honest-belief rule.” Joostberns v. United Parcel Servs., 166 F.

App’x 783, 791 (6th Cir. 2006). Under this rule, as long as TCAPS “made a reasonably

informed decision” before disciplining Keegan, he cannot show pretext even if those decisions

are “mistaken, foolish, trivial, or baseless.” Smith v. Chrysler Corp., 155 F.3d 799, 806–07 (6th

Cir. 1998).

       Although Keegan maintains his innocence, the undisputed facts show that TCAPS “made

a reasonably informed decision” before punishing Keegan in each instance. Smith, 155 F.3d at

807.

       Tobacco-Chewing Incident. Keegan’s baseball coach received a tip that Keegan and his

friend were chewing in restroom stalls on campus. After knocking on the stalls, the coach waited

45 seconds before the boys exited. He asked the boys to smile and recalls seeing bits of tobacco




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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


in their teeth. He then sent Keegan and his friend to Assistant Principal Kolbusz’s office, where

the friend admitted chewing and Keegan allegedly said he possessed tobacco.

       Keegan denies incriminating himself or chewing tobacco. But even if he did neither,

Kolbusz still reached a “reasonably informed decision” based on the information provided by the

coach. Smith, 155 F.3d at 807. Moreover, less than a month earlier, TC West caught the same

two students chewing tobacco in a school restroom—a fact Klobusz could reasonably consider

when evaluating Keegan’s claimed innocence.            Although the school rescinded the second

suspension because Kolbusz failed to gather a written statement from Keegan—in violation of

school procedure—that retraction does not discredit Kolbusz’s good-faith belief that Keegan

chewed or possessed tobacco on school grounds.

       Photo Incident. Two witnesses confirmed that Keegan and several other students viewed

an explicit photo of a classmate during class. The student depicted in the picture recalled seeing

her photo pulled up on Keegan’s laptop. Another student reported Keegan’s involvement to

Assistant Principals Long and Kolbusz. Although Keegan marshals evidence supporting his

innocence, none undermine TCAPS’s reasonable belief—formed through witness interviews—

that Keegan was involved. Moreover, the school suspended Keegan along with four other

students, which supports TCAPS’s honest belief that an infraction had occurred and undercuts

Keegan’s charge of retaliatory motive.

       In-Class Punishment. Keegan’s female classmate submitted an affidavit recounting how

Keegan made a sexually inappropriate comment and shined his phone’s flashlight in her eyes

during class, prompting the teacher to confiscate the phone and move Keegan’s desk. Although

Keegan faults the teacher for taking the student’s side without performing a thorough

investigation, an “optimal investigation . . . is not a prerequisite to application of the honest


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belief rule.” Seeger, 681 F.3d at 286 (citation and quotation marks omitted). Keegan offers no

evidence to undermine the teacher’s good-faith belief that he disrupted class.

       Class & Neighborhood Placement. Keegan raises no argument to undermine TC West’s

explanation for its class- and neighborhood-placement decisions. Keegan’s counselor averred

that he separated Keegan from Placek’s daughter to “avoid an uncomfortable situation for him.”

Similarly, he placed Keegan in a new neighborhood because he “thought moving him . . . would

help him feel more comfortable and provide a fresh start.” Keegan offers no evidence to

discredit his counselor’s belief that these decisions were in his best interest. To the contrary, in

his deposition, he describes his counselor as “[t]he only person that was nice to [him] in the

school” and the “only person [his mom] wanted to trust.”

       Because Keegan can show, at most, that TCAPS’s decisions were “mistaken, foolish,

trivial, or baseless,” he falls short of meeting his summary-judgment burden. Seeger, 681 F.3d at

285–86 (internal quotation marks and citation omitted).

B) Title IX Sexual Harassment Claim

       In Davis ex rel. LaShonda D. v. Monroe County Board of Education, the Supreme Court

held that “[i]n certain limited circumstances,” peer-on-peer sexual harassment supports a Title IX

claim against a federal funding recipient.3 Davis, 526 U.S. at 643. To hold TCAPS liable for

such harassment, Keegan must establish (1) sexual harassment so severe and offensive that it

deprives him of access to TCAPS’s educational opportunities, (2) TCAPS’s actual knowledge of

the harassment, and (3) TCAPS’s “deliberate indifference” to the harassment. Id. at 650.

       The district court held that Keegan failed to establish that he was “harassed because of

his sex.” TCAPS presents no argument defending the district court’s no-sexual-harassment

       3
      Unlike Keegan’s retaliation claim—which he brings under both Title IX and the
ELCRA—he asserts his sexual-harassment claim under Title IX only.
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holding, contending instead that Keegan fails to show deliberate indifference. For purposes of

this appeal, we assume that Keegan endured actionable harassment and proceed to address

deliberate indifference. We conclude that Keegan fails to create a genuine dispute on this issue.

         (1) Deliberate Indifference Framework

         Recognizing that “courts should refrain from second-guessing the disciplinary decisions

made by school administrators,” Davis, 526 U.S. at 648 (citation omitted), the Supreme Court set

a “high bar for plaintiffs to recover under Title IX,” Stiles, 819 F.3d at 848. A federal funding

recipient is liable for damages only if it “intentionally acted in clear violation of Title IX by

remaining deliberately indifferent to known acts of harassment.” Vance v. Spencer Cty. Pub.

Sch. Dist., 231 F.3d 253, 260 (6th Cir. 2000). To avoid liability, it need not “remedy” peer

harassment, “purg[e]” itself of offending students, or take “particular disciplinary action.”

Davis, 526 U.S. at 648. Instead, “the recipient must merely respond to known peer harassment

in a manner that is not clearly unreasonable.” Id. at 649.

         (2) Keegan’s Evidence of Deliberate Indifference

         Tellingly, Keegan declines to grapple with his burden, arguing instead that deliberate

indifference is “a conclusion to be drawn by the jury.” But the Supreme Court made clear in

Davis that the deliberate indifference standard “is not a mere reasonableness standard that

transforms every school disciplinary decision into a jury question.” Vance, 231 F.3d at 260

(quotation marks and citation omitted). Following Davis, this court regularly grants summary

judgment when a plaintiff fails to establish a genuine dispute over deliberate indifference. See,

e.g., Stiles, 819 F.3d at 851; Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 365 (6th Cir.

2012).




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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


       Here, the parties agree that Keegan or his mother reported one incident of online

harassment and three incidents of on-campus harassment. In each case, the school responded in

a manner that was “not clearly unreasonable.” Davis, 526 U.S. at 649.

       Regarding the online harassment, Kathryn informed Principal Tibaldi that three students

posted hurtful comments on his Facebook page, with many others “liking” the post. TC West

reprimanded the three posters, and none bothered Keegan again. Although Keegan would have

preferred harsher punishment—and for TC West to have disciplined those who “liked” the

post—Title IX does not permit Keegan to “make particular remedial demands.” Davis, 526 U.S.

at 648. Moreover, the deliberate indifference standard holds a school liable for harassment only

where the school “exercises substantial control over both the harasser and the context in which

the known harassment occurs.” Id. at 645. Keegan offers no evidence that students “liked” the

offending Facebook posts during school hours, and he fails to explain how TCAPS retained

control over its students’ off-campus internet use.

       Keegan reported three incidents of on-campus harassment. First, a student threw a chair

at Keegan in the school cafeteria. TCAPS suspended that student. Second, a football captain

made a rude comment to Keegan. TC West’s football coach reprimanded the captain and

informed his co-captains that TC West would not tolerate such behavior. Third, a school

alumnus spoke negatively to Keegan while using the weight room. Principal Tibaldi threatened

to bar the alumnus from campus. None of these students bothered Keegan again.

       Moreover, TC West’s handling of Keegan’s harassment compares favorably to cases

where this court has found a school’s response “not clearly unreasonable.” Davis, 526 U.S. at

649. For example, the plaintiff in Stiles suffered recurring verbal and physical harassment for

over a year and a half, including having his head rammed into a wall and being repeatedly called


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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


“faggot” and “queer.” Stiles, 819 F.3d at 841–45. The school’s response ranged from doing

nothing to suspending the offending students, id., depending on the “perceived seriousness of

each incident,” id. at 851. We held that the plaintiff fell short of showing deliberate indifference

because the “school’s disciplinary and remedial responses were reasonably tailored to the

findings of each investigation.” Id. at 851. The same is true here: TCAPS investigated Keegan’s

complaints and meted out punishment commensurate with its findings. Id.

       In their depositions, Keegan and Kathryn both claim they reported other incidents of

harassment. Kathryn estimates that she brought up bullying “at least 10 times” to Keegan’s

counselor, and “believe[d]” she had “a couple of interactions with [Principal] Tibaldi.” Keegan

testified that he “believe[d]” he reported additional harassment, but couldn’t remember to whom.

       Keegan’s claims of additional reported harassment implicate this court’s decision in

Vance v. Spencer County Public School District. Vance held that “[w]here a school district has

actual knowledge that its efforts to remediate are ineffective, and it continues to use those same

methods to no avail,” a jury may find deliberate indifference. 231 F.3d at 261. TCAPS responds

that even if Keegan and Kathryn reported additional harassment, Keegan’s evidence regarding

the school’s response is too vague to support a finding of deliberate indifference under Vance.

       We agree with TCAPS. Keegan and Kathryn offer no details on the nature of this

additional harassment, when it occurred, or how TCAPS responded. Because the deliberate-

indifference inquiry turns on the “nature of the harassment,” its length, and the school’s “overall

response,” Stiles, 819 F.3d at 850–51, these missing pieces doom his case. On this record, no

reasonable jury could find TCAPS’s (unknown) response to (unspecified) harassment “clearly

unreasonable.” Cf. id. at 843 n.5 (plaintiffs’ vague statements that he reported harassment could




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Case No. 16-1613, Gordon v. Traverse City Area Public Schools


not establish deliberate indifference because they “fail[ed] to establish that [plaintiff] reported

. . . to Defendants within a time frame that reasonably enabled Defendants to respond”).

                                               IV.

       For these reasons, we AFFIRM the district court’s judgment granting summary judgment

to TCAPS on Keegan’s Title IX and ELCRA claims.




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