     Case: 16-40093        Document: 00513975323        Page: 1    Date Filed: 05/02/2017




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

                                       No. 16-40093                                 FILED
                                                                                 May 2, 2017
                                                                                 Lyle W. Cayce
K. S.; NEONDA NECOLE THOMAS, as next friend of K.S.,                                  Clerk

                 Plaintiffs - Appellants

v.

NORTHWEST INDEPENDENT SCHOOL DISTRICT,

                 Defendant - Appellee




                     Appeal from the United States District Court
                          for the Eastern District of Texas
                               USDC No. 4:13-CV-188


Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges. *
PER CURIAM: **
       K.S., a sixth grader at the time of these events, claims he was subjected
to student-on-student sexual harassment in violation of Title IX. The district
court, adopting the magistrate judge’s report and recommendation, held that
K.S. failed to create a fact issue on two essential elements of his Title IX claim
and granted summary judgment. We AFFIRM.



       *   Judge James E. Graves, Circuit Judge, concurs in the judgment only.
       **Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                         No. 16-40093
                 FACTUAL AND PROCEDURAL BACKGROUND
       K.S. 1 was a sixth-grade student at Tidwell Middle School in Northwest
Independent School District (the “District”) for one semester, from September
2010 through January 2011.               He alleges that, while at Tidwell, he was
harassed because of his sex by a number of other students.
       According to K.S., the harassment began shortly after he started at
Tidwell. Many separate events make up his claim. Most center in some way
on the fact that at that time he had large breasts. On the school bus, in the
school hallways, in the PE locker room, and elsewhere, he was called names
such as “titty boy” and “Teddy titty baby.” In addition to name calling, students
would touch and even twist his breasts in the PE locker room, the school
hallway, and elsewhere. 2
       The school’s principal, Mr. Conklin, and vice principal, Ms. McCormick,
were made aware of incidents that occurred early on in the semester. Conklin
told the PE coaches to be sure they were monitoring the locker room when
students were changing, noting that the locker room “is a prime opportunity
for students to misbehave or bully other students.” K.S. was told he could go
see the school counselor “Ms. Allred whenever [he] want[ed] to and that she
would start helping [him] with the problems.” Allred maintained this open-
door policy throughout the year, and K.S. utilized it.
       K.S.’s difficulties persisted throughout the semester. The perpetrators
were at times disciplined, but not always. Sometimes K.S. was thought to be



       1 K.S.’s mother, Neonda Necole Thomas, brought this suit on his behalf. This opinion
refers to them collectively as “K.S.,” using the pronouns “he” and “him” rather than “they”
and “them.”
       2 In his declaration, K.S. says that students would laugh at him when he undressed,
calling him “the blob,” “jiggle puss,” “gay,” “faggot,” “girl,” “titty boy,” or “jiggly puss.” They
would also tell him that he had “women’s titties,” among other things. When doing so, he
says they would also pinch his breasts.
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                                     No. 16-40093
at fault, and he was disciplined.          Sometimes both K.S. and others were
disciplined for the same altercation.            There were a few fairly intensive
investigations in which multiple student statements were taken, which led to
different variations of discipline.
       On October 19, 2010, the District received a letter from K.S.’s attorney
stating that K.S. “ha[d] been subjected to bullying on school grounds and on
the school bus.” The letter contained no suggestion that the harassment was
sexual in nature or was based on K.S.’s sex.
       The problems may have escalated in November 2010.                        In early
November, three students verbally harassed and pushed K.S. as he walked to
class. K.S. pushed back. Before the situation could escalate further, a teacher
stepped in to stop it.       Both K.S. and the student who pushed him were
suspended. Finally, on December 15, K.S. was involved in a fight. A boy who
had previously slapped K.S. on the bus ridiculed the way K.S. walked. 3 The
boy told K.S. that “he could beat [him] up.” Despite K.S.’s warning not to touch
him, the boy grabbed his chest. K.S. then hit him. This fight, recorded on
campus video, was the last incident of the semester. K.S. was suspended. The
record is unclear whether and to what extent the other student was disciplined.
       The next day, the school received letters from K.S.’s counselor and doctor
describing his depression and its relation to “bullying at school” and the
“harassment, teasing, and physical aggression from peers.” His doctor further
noted that his “depressive order [was] severe enough that it [was] impacting
his level of functioning at school.”            Neither letter mentioned sex-based
harassment.




       3In late October and early November, K.S. told this boy, on multiple occasions, that
he hoped the boy’s father died. The boy’s father had cancer.
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       K.S. identifies evidence that he says supports that his semester was
affected by his depression and his difficulties with other students. K.S. says
he changed in the bathroom to avoid the locker-room harassment and that he
took alternate routes to class to avoid being harassed in the halls. He was
absent or suspended for 17 full days of class, and he was partially absent for
at least 15 other days. Some of the absences were suspensions and doctor’s
appointments; others were unexcused. The record does not contain evidence
explaining many of these absences much less linking them to the bullying. In
November, K.S. attempted suicide by taking five pills of Melatonin. Overall,
his grades were not significantly affected. A grade in one class decreased
somewhat significantly after the first grading period, but his grades in his
other classes were essentially unchanged or improved slightly.
       On January 4, 2011, the first day of the spring semester, the school
decided to proceed with a psychological evaluation of K.S., told teachers to
monitor K.S. both in the class and hallways, provided counselors to escort K.S.
to and from the restroom, and required K.S. to sit behind the bus driver to
avoid altercations on the bus. That same day, though, K.S. and his mother
decided he would not return to Tidwell. On January 14, K.S. withdrew from
Tidwell and moved to Louisiana. 4
       K.S. filed this suit in April 2013. In August 2014, he amended the
complaint to allege only Title IX sex-based, student-on-student discrimination.
Shortly thereafter, the District moved for summary judgment. On December 1,
2015, the magistrate judge recommended that summary judgment be granted
because K.S. failed to raise a fact issue as to two elements of his Title IX claim:


       4 After withdrawing in 2011, K.S. filed three levels of grievances with the District, all
of which were denied. Thereafter, K.S. also received a due-process hearing with a Texas
Education Agency Hearing Officer. The Hearing Officer denied relief, finding, among other
things, that the District investigated each incident of bullying reported by K.S.
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(1) that K.S. was effectively barred access to an educational opportunity or
benefit and (2) that the District was deliberately indifferent to known
harassment. K.S. did not file any objections. On December 23, 2015, the
district court adopted the magistrate judge’s report and recommendation and
entered judgment denying relief. K.S. timely appealed.


                                     DISCUSSION
      Our standard of review is controlled by the fact that there was no
objection by K.S. to the magistrate judge’s report and recommendation.
Usually, the district court “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1). When a district court adopts
the report and recommendation after no objection was made, we review only
for plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428–29
(5th Cir. 1996) (en banc). 5 When we established that review standard, we
added a caveat that the party claiming error on appeal after not objecting in
the district court must have been “served with notice that such consequences
will result from a failure to object.” Id. at 1429. Here, the magistrate judge
cited Douglass in his report and explained the effect of not objecting. K.S. did
not object. We therefore review only for plain error.
      To establish plain error, K.S. must show: (1) the magistrate judge erred,
(2) the error was clear or obvious, (3) the error affected K.S.’s substantial
rights, and (4) this court should exercise its discretion to correct such error
because it seriously affects the fairness, integrity, or public reputation of




      5 Section 636(b)(1) was revised after Douglass. We agree with the analysis of an
unpublished opinion holding that the revision did not affect Douglass’s holding. Lampkin v.
Bank of America, N.A., 644 F. App’x 366, 366–67 (5th Cir. 2016).
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judicial proceedings. See Lerner v. Freeh (In re: Deepwater Horizon), 824 F.3d
571, 583 (5th Cir. 2016).
      We start with an overview of the legal regime under which this suit was
brought. Title IX states: “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 . . . .” 20 U.S.C. § 1681(a). “[S]tudent-on-student sexual
harassment, if sufficiently severe, can . . . rise to the level of discrimination
actionable under” Title IX. Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of
Educ., 526 U.S. 629, 650 (1999). For the District to be liable for student-on-
student harassment under Title IX, K.S. must show: (1) the school had actual
knowledge of the harassment; (2) the harasser was under its control; (3) the
harassment was based on his sex; (4) the harassment was “so severe, pervasive,
and objectively offensive that it effectively bar[red] [his] access to an
educational opportunity or benefit”; and (5) the school was “deliberately
indifferent” to the harassment. Id. at 633, 646–47.
      The error K.S. identifies on appeal is stated quite generally: the district
court erred in granting summary judgment on the Title IX claim. Though not
stated as separate issues, K.S.’s brief has a section setting out the evidence to
support that the bullying and harassment were “severe and pervasive.” There
is a separate section of the brief making arguments that the District was
deliberately indifferent. We consider those two as the specific issues raised on
appeal. Unless K.S. shows plain error on both issues, we must affirm. Our
review of the record convinces us that the district court did not plainly err at
least in holding there was no genuine issue of material fact as to deliberate
indifference. As a result, we will set out only our analysis of that issue.
      To prevail on a student-on-student Title IX claim, a plaintiff must show
that a school which received federal funds was “deliberately indifferent” to
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                                   No. 16-40093
sexual harassment “of which [it] ha[d] actual knowledge.”             Id. at 650.
Deliberate indifference “is a high bar, and neither negligence nor mere
unreasonableness is enough.” Sanches v. Carrollton-Farmers Branch Indep.
Sch. Dist., 647 F.3d 156, 167 (5th Cir. 2011). Rather, a school’s response must
be “clearly unreasonable in light of the known circumstances.” Davis, 526 U.S.
at 648. Under this standard, a school’s response need not be effective in
remedying the harassment, and no particular remedial action is required.
Sanches, 647 F.3d at 168.       We are to “refrain from second-guessing the
disciplinary decisions made by school administrators,” who “must merely
respond to known peer harassment in a manner that is not clearly
unreasonable.” Davis, 526 U.S. at 648, 649. On summary judgment, it is
appropriate for a court to characterize “a response as not ‘clearly unreasonable’
as a matter of law.” Id. at 649.
      K.S. makes two main arguments concerning deliberate indifference. He
first argues that the District’s responses to the harassment were so ineffective
as to be clearly unreasonable. He also argues that the District’s failure to
follow its own policies and the federal Office for Civil Rights guidelines
constitutes deliberate indifference.
      We examine two of our precedents on these points. First, we have held
that a school district was not deliberately indifferent to severe and pervasive
racial harassment when it “took some action in response to almost all of the
incidents noted by Plaintiffs.” Fennell v. Marion Indep. Sch. Dist., 804 F.3d
398, 410 (5th Cir. 2015). The district there took some “relatively strong action
to address the most egregious incidents.” Id. For example, the district allowed
a plaintiff to park in the teacher’s lot and work in the counselor’s office after a
noose was found near her car in the school parking lot; it provided another
plaintiff with an aide to walk her to school. Id. We also described students
being suspended for calling a plaintiff “stupid n---er” a “strong action.” Id.
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Other responses, though, were “relatively weak,” such as when the district
merely reprimanded students after they put a shoelace noose in a plaintiff’s
gym locker. Id. at 411. Still, we held the district’s weaker responses, even if
“concerning,” were “not tantamount to [the district] intentionally ‘subjecting
its students to harassment.’” Id. (quoting Davis, 526 U.S. at 644) (alterations
omitted). “Because some action was taken in an attempt to address each of
these issues, these incidents [did] not create a genuine issue of material fact as
to deliberate indifference.” Id.
      Like in Fennell, the District here took some action in response to the
specific incidents alleged by K.S. and to the overall situation. See id. at 410.
Throughout the semester, the District investigated and took action when K.S.
or his mother complained or when K.S. was involved in an altercation. Often,
after investigation, it reprimanded or talked to the students involved, and it
sometimes suspended them. In Fennell, we called suspending students for
misconduct a “relatively strong action.”       Id.   Here, school officials also
attempted to talk with K.S. and the other students involved in an effort to help
them get along.
      It is true that K.S. was sometimes one of the students suspended as a
result of the District’s investigations. Yet the record does not contain evidence
that all or even most of K.S.’s suspensions were linked to sex-based
harassment, which is the only type of harassment relevant to our inquiry.
Instead, the magistrate judge found that most of K.S.’s suspensions were a
consequence of his own misconduct. K.S. did not object to that finding, and it
is not plainly erroneous. Similarly, the record does not indicate that K.S. was
suspended simply for defending himself from sex-based harassment.             The
magistrate judge found that he was suspended due either to his
insubordination or to his own contribution to the altercations with his peers.
K.S. did not object to this finding either, and it is not plainly erroneous. In
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summary, the record does not show that the District was aware of numerous
incidents of sex-based harassment but failed to respond.
       Moreover, although its response was preempted by K.S.’s decision to
withdraw from Tidwell, the District took relatively strong action to deal with
the overall situation. That is, before the start of the spring semester, after
receiving letters from K.S.’s doctor and counselor, the District decided to move
forward with a psychological evaluation of K.S., told teachers to monitor him
at school, provided counselors to escort him to and from the restroom, and
required him to sit behind the bus driver to avoid altercations on the bus.
       K.S. argues that the declaration he offered as evidence on summary
judgment supports that he complained far more often than the District
responded. The declaration states that he went to Principal Conklin’s office
“one to two times a week” to report various types of harassment, but the
principal and others did not respond to many of those complaints. We agree
with the district court that the claim constitutes a generalized and
unsupported statement of fact. Similar to what we held in Fennell, these
generalized statements do not create a genuine dispute of material fact that
school officials were deliberately indifferent. See id. at 411. Without knowing
the specific incidents, what was told to Principal Conklin or other school
administrators, and exactly what the response was, K.S.’s argument fails for
lack of supporting facts. 6 See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889
(1990); see also Fennell, 804 F.3d at 411.



       6 Likewise, K.S.’s statements that he was harassed “repeatedly,” “constantly,” and
“almost every day,” cannot serve to avoid summary judgment. For his part, the magistrate
judge denied the defense motion to strike the declarations of K.S. and his mother. Insofar as
the generalizations conflicted with the deposition testimony, however, he “agree[d] that a
party generally cannot defeat summary judgment by offering an affidavit that conflicts with
prior deposition testimony.” As to the “alleged vague, conclusory, self-serving language such
as ‘repeatedly,’ ‘often,’ [and] ‘several occasions,’” he found that the summary-judgment
evidence “speaks for itself.”
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      There were also inconsistencies between some of the general and the
more specific claims.     For example, K.S. includes chest-grabbing in his
declaration as a type of harassment he reported to Conklin “one to two times a
week.” Yet his deposition makes clear that he did not report chest-grabbing
incidents on a weekly basis:
      Q. Okay. So you’ve described three different incidents of you being
      touched on the breast.
      A. Yes.
      Q. And you can’t recall any other ones; right?
      A. No, sir.
      Q. Okay. One we know about because that’s the one that was
      investigated about the bus; right?
      A. Yes, sir.
      Q. And that girl who touched you on the — on the breast was
      disciplined; correct?
      A. Sort of, yeah.
      Q. And then these other two incidents that you just told me about,
      have you ever told anybody about those incidents before?
      A. My mom.
      Q. Okay. Did you tell anyone at school about those incidents?
      A. No, sir.
      Generalizations that are contradicted by deposition testimony will not
prevent summary judgment. “It is [also] well settled that this court does not
allow a party to defeat a motion for summary judgment using an affidavit that
impeaches, without explanation, sworn testimony.” S.W.S. Erectors, Inc. v.
Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996); see also Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 346 (5th Cir. 2007). Aside from these




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supposedly constant, yet unspecified, incidents and reports, K.S. does not point
to any specific incidents of harassment that were not investigated. 7
       It is clear, then, that the substance of K.S.’s argument is not that the
District did not respond, but that its response was ineffective. Indeed, K.S.
acknowledges that “[t]here is no doubt that [the District] investigated a
number of incidents,” and that when it “did investigate, [it] often responded
appropriately.”      “School officials are given broad latitude to resolve peer
harassment,” and thus a district is liable only when its responses to such
harassment are clearly unreasonable in light of known circumstances. Fennell,
804 F.3d at 411 (quoting Doe v. Galster, 768 F.3d 611, 617 (7th Cir. 2014)). The
District cannot be liable because its disciplinary choices were not effective. Nor
will “[m]ere negligence . . . suffice.” Id. at 410.
       Nothing here suggests the responses were so unreasonable so as to
satisfy the “high bar” this standard imposes. See Sanches, 647 F.3d at 167.
The District disciplined students and responded to every instance of
harassment specifically identified in the record. It investigated K.S. and his
mother’s complaints, often intensively. Even if the District was incorrect in
some of its findings that K.S. was the instigator, and we do not know that it
was, such would reflect only the difficulties of fact-finding — not indifference.
“Title IX does not require flawless investigations or perfect solutions.” Id. at
170. Even when a school’s efforts are ineffective, the responses need to have


       7 In his deposition but not in his briefing, K.S. says the District did nothing after two
additional incidents: the mushroom-throwing fight and the incident after which the coach
told him not to run home to his mother. It is clear, though, that something happened
following these incidents. See Fennell, 804 F.3d at 410–11. Initially, the record does not
support that the mushroom-throwing fight was related to K.S.’s sex. Even if it were, the
school talked to both boys about how to avoid conflict in the future but punished neither.
Likewise, the coach who made K.S. do sit-ups and told him not to cry home to his mother was
admonished for his unprofessionalism. At his mother’s request, K.S. was also taken out of
PE until she could meet with the school.

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been clearly unreasonable in light of the allegations. Doe ex rel. Doe v. Dallas
Indep. Sch. Dist., 220 F.3d 380, 384, 388–89 (5th Cir. 2000). Perhaps, as K.S.
argues, the District should have taken swift and decisive action to remedy
what K.S. now claims is sex-based harassment, 8 “but such an allegation would
sound in negligence, not deliberate indifference.” See Sanches, 647 F.3d at 170
(quotation marks omitted). We agree there is no genuine dispute of material
fact that the District’s responses, even if ineffective, were not clearly
unreasonable.
       K.S. also argues that the District failed to follow its own procedures and
the federal Office for Civil Rights guidelines regarding sexual harassment. We
rejected a substantially similar argument in Sanches.                    See id. at 169–70.
There, the plaintiff “claim[ed] the district was deliberately indifferent because
it failed to follow its own procedures regarding sexual-harassment complaints.”
Id. at 169. The harassment policy, she claimed, required the principal to
contact the Title IX coordinator or superintendent following allegations of
harassment, “and [the school’s] failure to do so [was] evidence of deliberate
indifference.”      Id.    We disagreed, noting the Supreme Court had already
rejected this argument. Id. (citing Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. 274, 291–92 (1998)). Indeed, in Gebser, the Court said that “failure to
comply       with         [federal]   regulations . . . does       not     establish      the
requisite . . . deliberate indifference.” See Gebser, 524 U.S. at 291–92. The
Court has never held “that the implied private right of action under Title IX
allows recovery in damages for violation of those sorts of administrative
requirements.” Id. at 292.


       8 K.S. now claims he reported chest-grabbing and name-calling constantly, but neither
he, his mother, his lawyer, his doctor, nor his counselor referenced anything that should have
alerted the District to anything more than middle-school bullying. The District’s disciplining
and talking to students for bullying — and for getting into fights — was not a clearly
unreasonable response to the conduct it knew about.
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      Even if the District failed to follow guidelines from the Office for Civil
Rights or even its own policies, deliberate indifference is not thereby shown.
      The district court did not plainly err when it determined that K.S. failed
to raise a genuine issue of material fact as to whether the District was
deliberately indifferent to known harassment.
      AFFIRMED.




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