           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 25, 2009
                                     No. 08-50527
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

JEREMY HOWELL,

                                                   Plaintiff-Appellant

v.

AUSTIN INDEPENDENT SCHOOL DISTRICT,

                                                   Defendant-Appellee.

                                 ______________________

                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:07-CV-17
                             ______________________

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Jeremy Howell, a former student in the Austin
Independent School District (AISD), filed this action against Defendant-Appellee
AISD claiming violation of Title IX of the Education Amendments of 1972, 20
U.S.C. § 1681–88, and seeking damages.1 Specifically, Howell alleged that he


       *
         Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
       1
        Howell also originally asserted state-law claims against the school contractor he
accused of committing the abuse. After the district court granted AISD’s motion for judgment
as a matter of law, however, Howell dismissed the claims against that defendant. Those
                                            No. 08-50527

was sexually abused by a school contractor, and that the contractor’s supervisor,
the school’s band director, had knowledge of the abuse. The case proceeded to
a jury trial. After the parties rested, the district court granted AISD’s motion
for judgment as a matter of law on the Title IX claim under Federal Rule of Civil
Procedure 50. Howell appeals this ruling.
        The parties are familiar with the facts of this Title IX case. Our review of
Rule 50 motions is de novo, and we use the same standard as the district court.
Gomez v. St. Jude Med. Daig Div. Inc., 442 F.3d 919, 927 (5th Cir. 2006). We
consider all evidence in the light most favorable to the non-moving party—here,
Howell. Id. Nevertheless, after considering the district court’s judgment, the
record, and the parties’ briefs, we affirm. The district court did not err in finding
that Howell could not, on this record, prove the required elements of a Title IX
claim.
        A Title IX plaintiff seeking damages through an implied right of action
must clear a high bar on the issue of the supervisor’s knowledge of the claimed
discrimination. “[A] damages remedy will not lie under Title IX unless an
official who at a minimum has authority to address the alleged discrimination
and to institute corrective measures on the recipient’s behalf has actual
knowledge of discrimination in the recipient’s programs and fails adequately to
respond.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). To
merit an award of damages under Title IX, the school’s response “must amount
to deliberate indifference to discrimination.” Id. Neither the evidence of AISD’s
knowledge 2 of the conduct at issue, nor the evidence of AISD’s response, meets
these requirements. Howell’s key evidence on this point is that the contractor
told the band director that he believed Howell was “coming out”—divulging his



claims have not been appealed.
        2
            The district court ruled that notice to the band director constituted notice to the school
district.

                                                   2
                                 No. 08-50527

homosexuality—to him, and that the band director responded that the contractor
should stay away from Howell or he would be dismissed.           This evidence
constitutes neither the level of notice (actual knowledge of abuse) nor the
deliberate indifference to discrimination Howell must show in order to prevail.
      Howell also claims the district court erred when, on the basis of Federal
Rule of Civil Procedure 26(a)(2)(B) and a previous order of the court, it barred
his treating psychologist from testifying without first submitting an expert
witness report. We need not decide whether the court’s order excluding the
treating psychologist’s testimony was error, because error if any was harmless.
Exclusion of the testimony does not appear to have affected the district court’s
Rule 50 ruling on the dispositive issue of knowledge (and Howell does not
contend otherwise).
      Accordingly, the judgment of the district court is AFFIRMED.




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