                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2816
                        ___________________________

  Jane Doe, (originally named as John Doe individually and as a parent and next
                           friend to Jane Doe, a minor)

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                            Dardanelle School District

                       lllllllllllllllllllllDefendant - Appellee
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                             Submitted: April 18, 2019
                               Filed: June 27, 2019
                                  ____________

Before COLLOTON, GRUENDER, and ERICKSON, Circuit Judges.
                        ____________

GRUENDER, Circuit Judge.

       Jane Doe appeals the district court’s1 grant of Dardanelle School District’s
(“Dardanelle”) motion for summary judgment and its partial denial of her motion for
leave to amend her complaint. We affirm.


      1
        The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.
       While Doe was a student at Dardanelle, she claims that another student, R.C.,
sexually assaulted her at least twice. The first incident took place in October 2014
during a kickball game. While running the bases, R.C. ran into Doe, who was
standing on second base. Doe testified that R.C.’s upper arm “bump[ed]” her breast
and that he called her a bitch. Doe said she did not know why R.C. called her a bitch
but that she may have been “blocking his way” and that the comment may have been
“out of frustration.”

        The second incident took place in October 2015. Doe and R.C. were seated
next to each other while watching a movie with the lights off in a home economics
class. Doe testified that R.C. reached up her shorts and touched the outside of her
“private parts.” After Doe pushed him away, R.C. attempted to force Doe to touch his
groin. Doe pulled her arm away, and R.C. “grabbed” Doe’s breast over her shirt. Doe
testified that nobody else at the table at which she and R.C. sat saw or heard what
happened.

       Doe reported both incidents to Dardanelle administrators, who discussed them
with R.C. Alleging that Dardanelle was deliberately indifferent, Doe filed a complaint
under 20 U.S.C. § 1681 et seq. (“Title IX”) and 42 U.S.C. § 1983 in May 2017. Doe
later moved to amend the complaint, and the district court denied her motion in part.
Dardanelle moved for summary judgment, and the district court granted its motion.
Doe appeals both orders.

       We review a grant of summary judgment de novo, considering the facts “in the
light most favorable to the nonmoving party.” Hiland Partners GP Holdings, LLC v.
Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 847 F.3d 594, 597 (8th Cir. 2017). A
motion for summary judgment will be granted where “the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect



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the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

       The district court explained that Title IX and § 1983 have the same deliberate
indifference standard and concluded that Dardanelle was not deliberately indifferent.2
It reasoned that the first incident did not put Dardanelle on notice that R.C. might
sexually assault Doe and that though Dardanelle might have taken more “prudent”
steps after the second incident, it is not liable for “failing to take the most reasonable
course of action or even for responding negligently.” Doe v. Dardanelle School
District, No. 4:17cv00359, 2018 WL 3795235, at *4 (E.D. Ark. Aug. 9, 2018). It
additionally observed that even if Dardanelle were deliberately indifferent, the
harassment was not “so severe, pervasive, and objectively offensive” that it deprived
Doe “of access to the educational opportunities or benefits provided by the school.”
Id. (quoting Davis, 526 U.S. at 650). The district court therefore granted Dardanelle’s
motion for summary judgment.

      “Deliberate indifference is a stringent standard of fault that cannot be predicated
upon mere negligence.” Doe v. Flaherty, 623 F.3d 577, 584 (8th Cir. 2010) (internal
quotation marks and citation omitted). Under Title IX, Dardanelle is liable only if its


      2
        Doe does not argue that the district court erroneously applied the same
deliberate indifference standard to her Title IX and § 1983 claims. Thus, we do not
address whether the district court should have separately considered whether
Dardanelle was deliberately indifferent to unconstitutional conduct and the rights of
students under Doe’s § 1983 claim and to student-on-student harassment under her
Title IX claim. Compare Plamp v. Mitchell School Dist. No. 17-2, 565 F.3d 450, 459,
461 (8th Cir. 2009) (requiring deliberate indifference to or tacit authorization of
unconstitutional misconduct for § 1983 failure-to-act claims and deliberate
indifference to the rights of students for § 1983 failure-to-train claims), with Davis
Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999)
(requiring “deliberate indifference to known acts of harassment in . . . programs or
activities” for Title IX student-on-student harassment claims).

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“deliberate indifference effectively ‘cause[d]’ the discrimination.” Davis, 526 U.S.
at 642-43 (alteration in original). We “should refrain from second-guessing the
disciplinary decisions made by school administrators.” Id. at 648. Summary
judgment is proper unless Dardanelle was “clearly unreasonable in light of the known
circumstances.” Id. at 648-49.

       First, Doe claims that Dardanelle was deliberately indifferent because it had
“received at least one other report from a second student, T.R., complaining that R.C.
had attempted to touch her inappropriately.” R.C. said that he sometimes hit T.R. on
the arm. Vice Principal Lynn Balloun discussed T.R.’s complaint with R.C., who
promised that he would stop. The record does not indicate when T.R. made the
complaint. Even if we assume the complaint came before the first incident with Doe
as she claims, we cannot say that Dardanelle’s response to the complaint “effectively
caused” the first incident with Doe. See Davis, 526 U.S. at 642.

      Doe next argues that Dardanelle’s “inaction in the face of” the first incident
involving Doe “led to the second, more severe assault.” But Dardanelle did take
action after the first incident. Doe reported the first incident to a teacher and to
Principal Marcia Lawrence. In response, Balloun and Counselor Cynthia Hutchins
discussed the incident with R.C. Both Balloun and Hutchins “sternly” talked to R.C.
“about proper behavior.”

       While Balloun’s notes from his discussion with R.C. after the first incident
indicate that he believed R.C. had touched Doe several times, Doe testified in
deposition and without reservation that R.C. had never touched her before the kickball
incident. She also testified that, according to her memory of the 2014 school year,
there was only one incident when R.C. touched her. Accepting Doe’s statement is not
a “failure to apply the proper summary judgment standard,” as Doe contends. Rather,
the unambiguous testimony of the only witness with firsthand knowledge
demonstrates that there is no genuine dispute of fact. Cf. Prosser v. Ross, 70 F.3d

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1005, 1008 (8th Cir. 1995) (“We have held that a party cannot avoid summary
judgment by contradicting his own earlier testimony.”)

      Dardanelle’s response to the allegation that R.C. ran into Doe during a kickball
game, hitting her breast with his upper arm and calling her a bitch, is not “clearly
unreasonable in light of the known circumstances.” See Davis, 526 U.S. at 648-49.
Indeed, the “clearly unreasonable standard is intended to afford flexibility to school
administrators.” Estate of Barnwell by and through Barnwell v. Watson, 880 F.3d
998, 1007 (8th Cir. 2018) (internal quotation marks omitted). Thus, Dardanelle’s
alleged deliberate indifference did not effectively cause the second incident.

       Doe additionally argues that Dardanelle’s response to the second incident
“exacerbated [her] injuries.” Dardanelle again took steps to address R.C.’s
misconduct. Immediately after the incident, Doe went to the school office to speak
with Lawrence. According to Lawrence, Doe did not tell her at that time that R.C. had
tried to touch her vagina, but Doe testified that she had told Lawrence.3 During the
conversation, Lawrence asked Doe whether she was “feeling more upset about this
than [she was] showing” and called a school counselor to talk with Doe.

       Lawrence referred the incident to Balloun, who met with R.C. and the school
resource officer, the school’s police officer. Balloun testified that he and the resource
officer questioned R.C. “extensively,” and R.C. denied the incident. Lawrence and
Balloun also talked with the home economics teacher “about keeping a light on”
during movies and informed her that some “inappropriate touching” had been alleged.
They told the teacher to separate Doe and R.C. in her class. R.C. was eventually
moved to a different class in April 2016. Balloun testified that after the second


      3
         We view the facts “in the light most favorable to” Doe, giving her “the benefit
of all reasonable inferences that can be drawn from the record.” Pedersen v. Bio-Med.
Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015).

                                          -5-
incident, he “tried to pay particular attention, as it was warranted,” to R.C. and that
Lawrence likewise “was trying to keep an eye on” Doe. In light of the fact that R.C.
denied the second incident and nobody else in the home economics class witnessed
it, Dardanelle’s response was not “clearly unreasonable in light of the known
circumstances.” See Davis, 526 U.S. at 648-49.

       Doe claims that Dardanelle’s response to the incidents led to depression, self-
harm, and isolation, as evidenced by her counselor’s notes. Doe told her counselor
that she was afraid that R.C. would “harm her again” and that R.C. “calls her names.”
But Doe testified that after the October 2015 incident she only interacted with R.C.
once and sometimes saw him at Walmart. Further, we agree with the district court
that, even if Dardanelle were deliberately indifferent, it was not “deliberately
indifferent to sexual harassment . . . that is so severe, pervasive, and objectively
offensive that it can be said to [have deprived Doe] of access to the educational
opportunities or benefits provided by the school.” Davis, 526 U.S. at 650. Doe’s
grade point average increased in both her junior and senior years, and she graduated
on time. See also id. at 652 (“Damages are not available for simple acts of teasing and
name-calling among school children, however, even where these comments target
differences in gender.”). In sum, the district court properly granted Dardanelle’s
motion for summary judgment.

      Finally, Doe argues that the district court should have granted her motion to
amend her complaint in full. Doe sought to add a negligence claim against Dardanelle
through a direct action against its insurance provider and a claim that Arkansas Code
Annotated section 21-9-301 violates the Arkansas constitution.4 The district court




      4
       Section 21-9-301 provides that school districts “shall be immune from liability
and from suit for damages except to the extent that they may be covered by liability
insurance.”

                                         -6-
denied her motion as futile.5 “We review the denial of leave to amend for abuse of
discretion and questions of futility de novo.” United States ex rel. Roop v. Hypoguard
USA, Inc., 559 F.3d 818, 822 (8th Cir. 2009). “Denial of a motion for leave to amend
on the basis of futility means the district court has reached the legal conclusion that
the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6)
of the Federal Rules of Civil Procedure.” Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir.
2010) (internal quotation marks omitted). “[I]n reviewing a denial of leave to amend
we ask whether the proposed amended complaint states a cause of action under the
[Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),] pleading standard . . . .” Id.
at 850-51. Under the Twombly standard, a complaint will survive a motion to dismiss
if it contains “sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted).

       We agree with the district court that Doe’s negligence claim is futile. As the
district court correctly noted, Dardanelle’s insurance policy includes an exclusion for
claims or suits “alleging Sexual Abuse and Molestation,” and Doe does not contest
that the policy contains an exclusion against such lawsuits. The court therefore
concluded that the plaintiff’s proposed amendment to add a direct claim against the
insurer is futile.

      Doe argues that the district court “erred by drawing inferences in [Dardanelle’s]
favor.” This argument is not persuasive. Though the district court must take her
factual allegations as true and draw all inferences in her favor, see Braden v. Wal-
Mart Stores, Inc., 588 F.3d 585, 594-95 (8th Cir. 2009), Doe offered no factual basis




       5
       Doe’s motion to amend also included a request to substitute the “parental claim
on behalf of Jane Doe with Jane Doe herself.” The district court granted that portion
of her motion.

                                            -7-
to support the possibility that the policy exclusion does not exist or does not apply.
Thus, we agree with the district court that Doe’s negligence claim is futile.

        Likewise, the district court correctly determined that Doe’s Arkansas
constitutional claim is futile. It relied on an Arkansas Supreme Court decision holding
that Ark. Code Ann. section 21-9-301 is consistent with the same Arkansas
constitutional provisions to which Doe points. See White v. City of Newport, 326 Ark.
667, 672 (1996). Doe nevertheless claims that the Arkansas Supreme Court “signaled
a sea change” in Bd. of Trs. of Univ. of Arkansas v. Andrews, 2018 Ark. 12 (2018).
She contends that Andrews “singled out [the court’s] 1996-era caselaw,” which
includes White, “for failing to strictly construe and enforce constitutional provisions.”
But Andrews involved sovereign immunity, and we see no reason why its dicta affects
the holding in White. Thus, we agree with the district court that this claim is likewise
futile.

      For the foregoing reasons, we affirm.
                      ______________________________




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