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

                                                                            FILED
                                                                         January 27, 2009

                                     No. 08-40557                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


CELESTE WATKINS, As Next of Friend for AMW; ANTHONY WATKINS,
Next of Friend for AMW

                                                  Plaintiffs - Appellants
v.

LA MARQUE INDEPENDENT SCHOOL DISTRICT

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 3:06-CV-546


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiffs-appellants Celeste and Anthony Watkins filed this Title IX suit
on behalf of A.M.W., their minor daughter, against defendant-appellee La
Marque Independent School District claiming student-on-student sexual
harassment.      The district court granted defendant’s motion for summary




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                      No. 08-40557

judgment. For the reasons stated below, we affirm the district court’s final
judgment.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       A.M.W. was a student at La Marque Middle School, which is part of the
La Marque Independent School District (the “District”). The District qualified
her to receive special education services as a child with mental retardation and
speech impairment. According to the District’s records, despite being in seventh
grade and sixteen years of age, A.M.W. functioned at a second-grade level.
       On April 6, 2005, A.M.W. was left unattended for approximately fifteen to
twenty minutes in a classroom with J.S., a male special education student. J.S.
exposed himself to A.M.W., grabbed her, kissed her, and raised her dress. Later
that same day, A.M.W. reported to a special education aide that J.S. had
“touched her.” The aide separated the students but took no action until the next
day when she reported the incident to her supervisor. In turn, the supervisor
reported it to the principal, who called a meeting on April 8, 2005, two days after
the incident.1 The principal later contacted La Marque Independent School
District police, who sent two officers to question A.M.W., J.S., and the teacher
assigned to the classroom where the incident took place. No further police action
was taken.
       Rather than immediately remove J.S. from the school, the principal
ordered that the two students be separated on different floors of the building and
assigned A.M.W. an escort to be with her between all class periods.
Subsequently, while A.M.W. was being escorted to her bus at the end of the day,
J.S. shouted intimidating profanities at her. After this second incident, the
District reassigned J.S. to a different campus.


       1
         At some point prior to this meeting, A.M.W.’s godfather, who happens to work at the
school, was made aware of the incident and was the first district employee to contact the
parents informing them of A.M.W.’s report.

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      On August 14, 2006, Celeste and Anthony Watkins (collectively, the
“Watkins”) filed this suit on behalf of A.M.W. against the District alleging
student-on-student sexual harassment under Title IX. On February 15, 2008,
the District filed a motion for summary judgment. The Watkins filed a response
in opposition. On April 22, 2008, the district court entered its Order Granting
Defendant’s Motion for Summary Judgment and Final Judgment dismissing the
claim with prejudice.
      The district court held that: (1) the harassment was not sufficiently severe
to have the effect of denying A.M.W. access to education because it was a single
incident, not a pattern of behavior, and did not reach the degree of offensiveness
in the case law cited by the Watkins; and (2) the District was not deliberately
indifferent to the harassment because the principal promptly contacted the
police, made every attempt to separate the students, and removed J.S. after the
verbal altercation.
      The Watkins filed a timely notice of appeal of the district court’s order and
final judgment on May 21, 2008.
                               II. DISCUSSION
      We review a grant of summary judgment de novo, applying the same
standards as the district court. Kirschbaum v. Reliant Energy, Inc., 526 F.3d
243, 248 (5th Cir. 2008). “Summary judgment is proper when the movant can
demonstrate that there is no genuine issue of material fact and that he is
entitled to judgment as a matter of law.” Id.; see also FED. R. CIV. P. 56(c). We
view all evidence in the light most favorable to the party opposing the motion
and draw all reasonable inferences in that party’s favor. Kirschbaum, 536 F.3d
at 248.
      Title IX provides, in pertinent part, that “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

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activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). A school’s
failure to respond appropriately to student-on-student sexual harassment may
serve as the basis for a Title IX claim. See Davis v. Monroe County Bd. of Educ.,
526 U.S. 629 (1999). The school district, as the recipient of federal funds, is
liable for its own lack of corrective action rather than the actions of the offending
student. Id. at 641. In order to establish such a claim, the plaintiff must show
that: (1) the sexual harassment was “so severe, pervasive, and objectively
offensive that it can be said to deprive the victims of access to the educational
opportunities or benefits provided by the school”; (2) the district had actual
knowledge of the sexual harassment; and (3) it acted with deliberate indifference
to the harassment. Id. at 650. Here, the district court concluded that the
District had actual knowledge of the harassment but also that the Watkins had
not satisfied the first and third requirements.2
       Simply because an act could be characterized as sexual harassment does
not mean that it automatically rises to a level of severity that deprives a student
of access to educational opportunities. See Gabrielle M. v. Park Forest-Chicago
Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 822 (7th Cir. 2003). “Whether gender-
oriented conduct rises to the level of actionable harassment thus depends on a
constellation of surrounding circumstances, expectations, and relationships.”
Davis, 526 U.S. at 651 (internal quotation marks and citation omitted). Such
circumstances include, but are not limited to, the ages of the parties involved.
Id. Courts should also take into account the fact “that children may regularly
interact in a manner that would be unacceptable among adults.” Id.




       2
         The district court held that the actual knowledge requirement was satisfied based on
the school’s awareness of J.S.’s previous disciplinary record, which included violent acts and
the display of pornographic material. On appeal, the District argues that this finding was in
error. We do not need to reach this issue because the Watkins failed to satisfy the other two
Davis requirements.

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      The Watkins argue that, in considering this element, the district court
failed to fully account for A.M.W.’s mental retardation and that the misconduct
in this case was actionable because “she is more in need of protection than most.”
This argument has some merit in light of the fact that Davis suggests that the
relative ages of the harasser and victim are relevant in considering the severity
of the harassment. Although A.M.W. was sixteen years of age, she had a mental
capacity closer to that of an eight-year-old. Thus, it is appropriate to consider
the factual scenario here as if it had happened to an eight-year old rather than
a sixteen-year-old victim. However, even assuming that this incident happened
to an unimpaired second-grade student, the alleged facts would still not reach
the level of severity required by Davis.
      Both the district court and the appellee cited numerous cases involving
more egregious facts that were found to fall short of the sufficient level of
severity to establish a Title IX claim. See, e.g., Gabrielle M., 315 F.3d at 822
(involving a male kindergarten student openly fondling himself and placing his
hand in the pants of several students); Wilson v. Beaumont Indep. Sch. Dist., 144
F. Supp. 2d 690, 694–96 (E.D. Tex. 2001) (involving a single incident of forced
sodomy). However, the Watkins are unable to provide an example of a case with
equivalent or less serious facts that a court held to be actionable under Title IX.
For example, in one case cited by the Watkins, a teacher, not another student,
was the harasser. See Hart v. Paint Valley Local Sch. Dist., No. C2-01-004, 2002
WL 31951264, at *1 (S.D. Ohio Nov. 15, 2002); see also Davis, 526 U.S. at 653
(noting that the teacher–student relationship is relevant to the severity of the
abuse). The other case cited by the Watkins was more severe in that it involved
vaginal penetration and a subsequent incident of physical contact. See Doe v.
Dallas Indep. Sch. Dist., No. 3:01-CV-1092-R, 2002 WL 1592694, at *1 (N.D. Tex.
July 16, 2002). The district court correctly noted that Davis suggests that a
single incident could hypothetically be sufficiently severe to be a deprivation of

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access to education. 526 U.S. at 631. This case, however, is simply not so
severe. While J.S.’s actions—exposing himself, kissing A.M.W., and lifting her
skirt—are unquestionably inappropriate, this single event was not “so severe,
pervasive and objectively offensive” to effectively deprive A.M.W. of access to
education.
      Turning to third Davis requirement, a defendant acts with deliberate
indifference “only where [its] response to the harassment or lack thereof is
clearly unreasonable in light of the known circumstances.” Id. at 648. The
deliberate indifference must “subject” the student to harassment, “[t]hat is, the
deliberate indifference must, at a minimum, ‘cause [students] to undergo’
harassment or ‘make them liable or vulnerable’ to it.” Id. at 644–45. Thus,
merely negligent action is insufficient to state a claim. Id. at 642. The Watkins
argue that the District was deliberately indifferent both before the incident—by
not removing J.S. from the school based on his prior disciplinary record—and
after the incident—by waiting until the verbal altercation to remove him.
      Prior to the incident, J.S.’s record reads like that of a troubled student, but
it was not so serious that it was unreasonable for the District not to have
transferred him. After the incident, the District, in addition to requesting the
District police to investigate, took several remedial actions clearly designed to
prevent future incidents, including separating the students and providing
A.M.W. with an escort at all times. By comparison, the school in Davis forced
the harasser to continue to sit directly next to the victim in class for three
months while the harassment of the victim and other students continued. Id.
at 635. Moreover, the fact that the verbal altercation occurred, and that the
remedial measures were not completely effective, does not mean that the District
was deliberately indifferent. See Fitzgerald v. Barnstable Sch. Comm., 504 F.3d
165, 175 (1st Cir. 2007) (noting that reasonable actions designed to prevent
future harassment are not always successful); see also Rost v. Steamboat Springs

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RE-2 Sch. Dist., 511 F.3d 1114, 1123 (10th Cir. 2008) (noting that it is not
clearly unreasonable for a school to not expel a student accused of sexual
harassment). Under the high standard of deliberate indifference, a reasonable
jury could not conclude that the district’s decision to separate the students and
provide A.M.W. with an escort rather than immediately expel J.S. was clearly
unreasonable light of the circumstances.
      Thus, the Watkins have failed to establish two of the Davis requirements
for a student-on-student sexual harassment claim under Title IX.
                             III. CONCLUSION
      For the reasons stated above, we AFFIRM the district court’s final
judgment dismissing the claim with prejudice.




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