                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-2537


JOHN DOE, Individually and as parent and next friend of
J.D., a minor child; JANE DOE, Individually and as parent
and next friend of J.D., a minor child,

                Plaintiffs – Appellants,

           v.

THE BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY; KATHLEEN
SCHWAB,

                Defendants – Appellees.

-------------------------------

COUNCIL OF PARENT ATTORNEYS AND ADVOCATES,

                Amicus Supporting Appellants,

NATIONAL SCHOOL BOARDS ASSOCIATION; MARYLAND ASSOCIATION OF
BOARDS OF EDUCATION,

                Amici Supporting Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:11-cv-03229-AW)


Argued:   December 10, 2014                   Decided:   April 7, 2015


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.
ARGUED:   Laura Ginsberg Abelson, BROWN, GOLDSTEIN & LEVY, LLP,
Baltimore, Maryland, for Appellants.        Abbey G. Hairston,
THATCHER LAW FIRM, LLC, Greenbelt, Maryland, for Appellees. ON
BRIEF:   Sharon   Krevor-Weisbaum, Andrew   D.  Freeman,  BROWN,
GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellants.
Shana R. Ginsburg, THATCHER LAW FIRM, LLC, Greenbelt, Maryland,
for Appellees.   Selene A. Almazan-Altobelli, Director, Advocacy
Services, MARYLAND COALITION FOR INCLUSIVE EDUCATION, Hanover,
Maryland; Mark B. Martin, LAW OFFICES OF MARK B. MARTIN, P.A.,
Baltimore, Maryland, for Amicus Council of Parent Attorneys and
Advocates.   Francisco M. Negrón, Jr., General Counsel, NATIONAL
SCHOOL BOARDS ASSOCIATION, Alexandria, Virginia, for Amici
National School Boards Association and Maryland Association of
Boards of Education.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:
       In        November     2011,     plaintiffs               John     and    Jane      Doe,

individually and on behalf of their minor son J.D., filed suit

in the District of Maryland against the Board of Education of

Prince       George’s       County    and    J.D.’s         former      school    principal,

Kathleen Schwab.            The three-count complaint alleged, inter alia,

that       the   defendants     had    failed          to   protect     J.D.     from    sexual

harassment by M.O., one of J.D.’s classmates. 1                         In November 2013,

the district court awarded summary judgment to the Board on the

complaint’s sex discrimination claim — pursued under Title IX of

the Education Amendments of 1972 — and also granted summary

judgment         to   the    Board    and    Schwab         on    state    law    claims     of

negligence and gross negligence.                        See Doe v. Bd. of Educ. of

Prince George’s Cnty., 982 F. Supp. 2d 641 (D. Md. 2013).                                    As

explained below, we affirm the judgment.



                                                 I.

                                                 A.

       In 2008, the Does enrolled J.D. in the fourth grade of a

public       Montessori       school        in        Prince     George’s       County     (the


       1
       A substantial part of the record in this case is sealed to
protect the confidentiality of students and employees of the
school where the sexual harassment occurred. We do not use the
real names of J.D., his parents, or M.O.




                                                 3
“school”). 2   Suzanne Johnson was then the school’s principal, and

Schwab served as vice principal.           J.D., who was approximately

nine years old, was assigned to the classroom of teacher Lisa

Jellison.      Also    in   Jellison’s    fourth-   through   sixth-grade

classroom was fifth-grader M.O., who was older and physically

larger than J.D.

                                     1.

     During the fall of 2008, J.D. was subjected to bullying and

teasing   by   M.O.   and   other   students.    For   example,    students

initiated “Don’t Talk to [J.D.] Day” and labeled him a “snitch.”

At least once that fall, M.O. called J.D. “gay.”                  J.D. also

reported to then-Vice Principal Schwab that “someone had said

something to him in the bathroom that was of a sexual nature.”

See J.A. 645. 3   J.D. did not report that incident to Schwab until

several days after it occurred.           In response, Schwab told J.D.

that he was entitled to respect and kindness and urged him to




     2
        Because the Does, as plaintiffs, were the nonmoving
parties in the summary judgment proceedings, we recite the facts
in the light most favorable to them.       See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
     3
       Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.




                                      4
immediately report any further such incidents.     She also spoke

to Jane Doe about that discussion. 4

     In early December 2008, M.O. exposed his genitals to J.D.

in the classroom library (the “library incident”).   J.D. did not

report that event to Schwab until more than a month later, in

January 2009.    As a result of the library incident, Jane Doe

phoned the school and the Board’s superintendent to discuss the

Does’ concerns regarding the harassment of their son.      Neither

Principal Johnson nor the superintendent was available at that

time, and the superintendent did not promptly return the phone

call.    Jane Doe spoke with Johnson later that day, however, and

Johnson thereafter contacted M.O.’s parents.      Schwab, who has

acknowledged that an episode such as the library incident “could

be serious and disturbing,” also interviewed J.D. regarding his

allegations about M.O.   See J.A. 664.   Following that interview,

Schwab instructed Jellison to rearrange her classroom so that




     4
       The Does assert in their appellate briefs that it was M.O.
who said something to J.D. in the bathroom that was of a sexual
nature, and that M.O. on other occasions called J.D. by names
including “pussy” and “bitch.”      According to the Does, the
district court erred by failing to consider such conduct in its
summary judgment analysis. That it was M.O. who made the sexual
remark in the bathroom, however, is not supported by the summary
judgment record.    Additionally, the name-calling is evidenced
only by notations in the Does’ expert report.      In any event,
even if we accepted as true that M.O. engaged in the foregoing
conduct, it would not alter our disposition of this appeal.




                                 5
J.D. and M.O. were seated as far from each other as possible and

so that Jellison could readily see both students.

     In   February   2009,     J.D.   reported      to   Schwab   that      M.O.

“accosted” him in the hallway.            See J.A. 371.       Schwab relayed

that information to Johnson, but there is no indication that

further action was taken.       In March 2009, there were two reports

of M.O. sexually harassing J.D.           First, by an after-school phone

call, John Doe advised Jellison that M.O. “keeps making sexual

remarks and gestures” to J.D.         See id. at 577.         That same week

in March, while Jellison’s back was turned from M.O. and J.D.

during a classroom dancing activity, M.O. grabbed J.D.’s body

and made humping gestures toward him (the “classroom incident”).

Jellison did not witness the classroom incident, and it was not

immediately   reported    to   her.       After   receiving   notice   of    the

classroom incident, however, Jellison interviewed three female

students who confirmed they had seen it.                 All three advised

Jellison that M.O. had also made sexual remarks to them.                      In

response, Jellison issued a Pupil Discipline Referral to M.O.

for “disrespect” and “sexual harassment,” and spoke to Schwab

about the issues.        See id. at 383. 5        Jellison sent the three

student witnesses, along with J.D. and M.O., to Schwab’s office.

     5
        A Pupil Discipline Referral is a disciplinary form
utilized by teachers to document improper conduct and refer an
offending student to an administrator for appropriate action.




                                      6
M.O. then received a five-day in-school suspension for improper

behavior, which he served in Johnson’s office.

       There were no additional reports of M.O. harassing J.D.

during the 2008-09 school year.                 Nevertheless, Schwab consulted

J.D. several times about whether he was “doing okay.”                           See J.A.

338.    According to J.D., he would tell Schwab he “was having a

good day” even if it was untrue.                Id.

       In   April     2009,    Johnson     took       leave   from        her   principal

position at the school and soon passed away.                          Schwab was then

named the school’s principal.

                                           2.

       At the beginning of the 2009-10 school year, J.D. and M.O.

were   again    assigned      to   Jellison’s         classroom,      which     surprised

Jellison “because of problems that were happening” during the

2008-09 school year.          See J.A. 586.            During the fall of 2009 —

when J.D. was in fifth grade and M.O. in the sixth — Jellison

and Principal Schwab were thrice advised that M.O. had harassed

J.D.    First, in November 2009, J.D. reported that M.O. “had made

a   harassing       remark    to   [him]       at     the   water    fountain      during

dismissal the previous afternoon.”                    Id. at 324.          In response,

Schwab reviewed the pertinent video surveillance footage of the

hallway and water fountain area at the school, which “showed

that [J.D.] never left the classroom during 45 minutes before

and during dismissal on the previous day.”                          Id.     Nonetheless,


                                           7
Schwab met with both J.D. and M.O. and talked to them about the

importance of mutual respect.            In a second report to Schwab that

month, J.D. explained that M.O. said something that made J.D.

“uncomfortable,” but he did not further elaborate.                 Id. at 674.

Schwab talked to M.O., but M.O. denied knowing what made J.D.

uncomfortable.         Schwab then warned M.O. that further complaints

would be grounds for suspension.

       The final report to the school of M.O.’s harassment of J.D.

occurred on December 4, 2009.                J.D. was in a school bathroom

when M.O. arrived and tried to climb into J.D.’s bathroom stall

(the “bathroom incident”).             M.O. was partially nude during the

bathroom incident, with his pants down around his ankles.                   After

school that day, J.D. informed his parents of that incident, and

the Does reported it to the school three days later, on December

7, 2009.      At a school administrator’s request, J.D. then wrote a

statement documenting his account of the bathroom incident.                   In

response to J.D.’s allegation, Schwab interviewed three other

male students who had been in the bathroom at the pertinent

time, but each denied that the bathroom incident had occurred.

A school security officer and J.D.’s father also reviewed the

December 4, 2009 video surveillance footage of the bathroom’s

entrance,     but   the   video   failed      to   corroborate   the   bathroom

incident.      Even so, the school established procedures to ensure

that   J.D.    would    avoid   M.O.    in   the   bathroom.     One   of   those


                                         8
procedures — having all students use sign-in/sign-out sheets

when going to the bathroom — quickly proved unworkable and was

abandoned      within        a    week     of        its   implementation.             Another

procedure — providing J.D. with a student escort to the bathroom

—   was      soon    rejected       by    J.D.       because     other       students     “made

horrible jokes” about his use of the escort.                                  See J.A. 550.

Thereafter,         J.D.     avoided        the       school     bathroom       and     sought

attention      from    the       school’s       nurse      for   his     resultant     stomach

pains.       J.D. did not advise the nurse that he was afraid to go

to the bathroom, but instead told her that the bathroom “wasn’t

clean.”      See id. at 524.             The nurse then offered J.D. the use of

her bathroom.

                                                B.

       The    defendants          were     not       notified       of      other   incidents

involving      J.D.    and       M.O.      In     the      spring      of   2009,   the   Does

discovered that the boys had been texting each other.                                 One text

from J.D. to M.O. stated, “Can u keep a secret[?]”                                    See J.A.

365.      Another text from J.D. to M.O. read, “Keep dis a secrt

ok[?]”       Id. at 366.          After discovering the text communications

between M.O. and J.D., Jane Doe promptly confiscated J.D.’s cell

phone, deleted M.O.’s phone number from J.D.’s contact list, and

returned the phone to her son.                        Jane Doe continued to monitor

J.D.’s cell phone, however, and, in June 2010, discovered that

M.O. had sent explicit photos to J.D. depicting homosexual sex.


                                                 9
J.D. did not see the photos, and the Does did not report the

text messages to the school.

     In    the   summer      of   2010,   the    Does     contacted      the    Prince

George’s County Police Department to report that J.D. had been

sexually assaulted by M.O.             On July 1, 2010, J.D. provided a

written statement to a county detective that, during the 2008-09

school year, M.O. forced him to engage in sexual activity in the

school’s library.          J.D. further asserted that, during the 2009-

10 school year, M.O. twice forced sexual acts on him in the

school’s bathroom.          Prior to the summer of 2010, however, J.D.

had not informed either his parents or the school that M.O. had

sexually assaulted him.

      On July 30, 2010, the county police detective interviewed

M.O. regarding J.D.’s sexual assault allegations.                         M.O. said

that he and J.D. had engaged in consensual sexual encounters on

three    occasions    in    the   school’s      library    and    bathroom.         The

detective re-interviewed J.D. that same day and challenged J.D.

on   inconsistencies        between    his     and   M.O.’s      versions      of   the

events.    According to the detective, J.D. then admitted that he

and M.O. had engaged in consensual sexual acts.                          The police

investigation was thereafter closed, in that “no elements of a

sexual    assault    [had]    been    articulated.”        See    J.A.    332.       In

August 2010, the Does withdrew J.D. from the school.                        J.D. now

maintains that he altered his story to the police because he was


                                          10
“nervous” and thought the detective would believe M.O.’s story

over        his    own.       See    id.     at   535.        J.D.   also   “thought     that

[changing my story] would just be the end of it.”                             Id. at 535-

36. 6

                                                  C.

        In 2000, several years prior to the foregoing events, the

Board       promulgated        its   Administrative           Procedure     No.   4170   (“AP

4170”),           which    created     “grievance        procedures    for    student     and

employee complaints of all forms of discrimination, harassment,

bias,       or     extremism.”         See    J.A.     112.      Pursuant    to   AP     4170,

students are              encouraged    to    promptly     report     student-on-student

sexual harassment.             Upon receiving such a report, a principal is

to complete an incident report form (an “AP 4170 form”), contact

the relevant students’ parents by phone and letter, and submit

the AP 4170 form and a copy of the letter to the director of the

Board’s Equity Assurance Office. 7                     AP 4170 “recommend[s] that all

        6
       The Does allege that J.D. suffered damages from M.O.’s
harassment,   including  a   recurrence  of   encopresis  (fecal
staining), which had been in remission for two years; post-
traumatic stress disorder; and an adjustment disorder with mixed
anxiety and depressed mood.
        7
       The AP 4170 form seeks details with respect to alleged
harassment, including: (1) the name of the complainant; (2) the
name of the target of the harassment; (3) the location of the
harassment; (4) a description of the harassment; and (5) the
school official’s response to the harassment.    The form also
inquires   about  witnesses and   any  previous   incidents  of
harassment.




                                                  11
persons      reporting    a   complaint     of . . .         harassment      use   [its]

reporting procedures,” but provides that “any individual has the

right to bypass [its] procedures by reporting directly to the

appropriate supervisor or designee.”                    Id. at 115-16.          Neither

the school nor the Does completed or submitted any AP 4170 forms

regarding M.O.’s harassment of J.D.



                                          II.

       In     November    2011,     the    Does     filed       their       three-count

complaint against the defendants in the District of Maryland,

seeking compensatory and punitive damages.                      Count Three named

the   Board    only,     alleging   under       Title   IX    that    the    Board      had

discriminated against J.D. on the basis of sex.                         The complaint

also alleged in Counts One and Two that the Board and Principal

Schwab were liable for negligence and gross negligence.                            After

discovery was completed, the defendants moved for and secured

summary judgment on all three claims.

       By its decision of November 18, 2013, the district court

first awarded summary judgment to the Board on the Title IX

claim.       The court observed that a Title IX claim requires proof

of    four    elements:       (1) that     a    student       was    enrolled      at    an

educational      institution      receiving      federal      funds;    (2) that        the

student was subjected to harassment based on sex; (3) that the

harassment      was    sufficiently   severe       or    pervasive      to    create      a


                                          12
hostile environment in an educational program or activity; and

(4) that there is a basis for imputing the harasser’s liability

to the institution.             See Doe, 982 F. Supp. 2d at 651 (citing

Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007)).

There has been no dispute as to proof of the first prong of the

Title IX analysis, and the court determined that “a reasonable

juror   could    infer      that    the     harassment      stemmed    from    sexual

desire,”   satisfying       the     second       prong.      Id.      Further,      with

respect to the third prong, the court explained that it was

“unprepared to conclude” that M.O.’s harassment of J.D. had not

deprived J.D. of an educational program or activity, in that the

harassment    had   compelled       the     Does    to    withdraw   J.D.    from    the

school.    Id. at 653.

     According      to    the    district        court,   however,    the    Title    IX

claim failed to survive summary judgment because the Does could

not satisfy the fourth prong of the analysis by establishing a

basis for imputing liability to the Board.                         See Doe, 982 F.

Supp. 2d at 653.          In that regard, the court recognized that the

Board must have had actual knowledge of the student-on-student

harassment and then acted with deliberate indifference to such

harassment.         Id.    at      653-54    (observing       that    “[a]    funding

recipient is deliberately indifferent to known acts of sexual

harassment ‘only where the recipient’s response . . . is clearly

unreasonable’” (alteration in original) (quoting Davis ex rel.


                                            13
LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648

(1999))).

        After consulting the summary judgment record, the district

court        concluded       that    the    defendants      were    not    shown    to    be

deliberately indifferent.                  See Doe, 982 F. Supp. 2d at 654-56.8

In support of that ruling, the court primarily focused on the

defendants’ responses to the library, classroom, and bathroom

incidents.           Because of the library incident, the court related,

Schwab had Jellison rearrange her classroom so that J.D. and

M.O.        were    seated    as    far    apart    as   possible   and    Jellison       had

better visibility of both students.                      Id. at 654.      Thereafter, as

a result of the classroom incident, M.O. served a five-day in-

school        suspension.           Id.       Finally,      notwithstanding        that    a

thorough           investigation      failed        to   corroborate      the   bathroom

incident, the school implemented procedures to protect J.D. when

he used the bathroom, including providing him with a student


        8
         Although the district court did not consistently
distinguish between the Board and Schwab in assessing the Title
IX claim, that claim was properly pursued against the Board
only.   See Hartley v. Parnell, 193 F.3d 1263, 1270 (11th Cir.
1999) (“Individual school officials . . . may not be held liable
under Title IX.”). In any event, liability may be imputed to an
educational entity (such as the Board) premised on the actual
knowledge of a school official (like Schwab) who has “authority
to   address   the alleged   discrimination  and   to  institute
corrective measures on the [educational entity’s] behalf.”   See
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290
(1998).




                                               14
escort.         Id. at 654-55.          The court observed, for example, that

if    the       defendants’     response      to    the     classroom   incident      was

clearly unreasonable, “then ‘nothing short of expulsion of every

student accused of misconduct involving sexual overtones would

protect school systems from liability or damages.’”                          Id. at 654

(quoting Davis, 526 U.S. at 648).                   As the court then explained,

such       an   “outcome   would        deprive    school    administrators     of    the

flexibility to employ tailored responses to sexual harassment

and    run      counter    to   the      strong    national    policy   in    favor    of

educating children.”            Id. 9

       Turning to J.D.’s July 2010 complaint to the county police

that he had been sexually assaulted by M.O., the district court

observed that the defendants “could not have acted in a clearly

unreasonable manner as to [those] allegations.”                         Doe, 982 F.


       9
        In addition to the library, classroom, and bathroom
incidents, the district court considered inappropriate remarks
made to J.D., including M.O.’s “gay” comment.         The court
recognized, inter alia, that such remarks are “just an example
of the ‘dizzying array of immature behaviors by students,’” and
that, “[t]o the extent a response was in order, the remedial
measures   [taken   by   the  defendants],  including   Schwab’s
instructing [J.D.] to tell his teacher of any further such
incidents, sufficed.”   Doe, 982 F. Supp. 2d at 655-56 (quoting
Davis, 526 U.S. at 651). Addressing the Does’ theory that J.D.
and M.O. should have been placed in separate classrooms for the
2009-10 school year, the court emphasized not only its
obligation to refrain from “micromanag[ing]” the school’s
operations, but also the lack of evidence that such a response
would have impeded M.O.’s harassment of J.D., much of which
occurred outside the classroom. Id. at 656-57.




                                             15
Supp. 2d at 655.        Put succinctly, the defendants were never

advised of the sexual assault allegations, and could not respond

because they “lacked actual notice of [them].”               Id.   The court

further rejected any notion that the defendants’ “failure to

follow the procedures set forth in AP 4170 displays deliberate

indifference,” as “the Supreme Court has held that the failure

to follow sexual harassment grievance procedures does not prove

deliberate indifference under Title IX.”             Id. at 657 (citing

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291-92

(1998)).

      The district court also awarded summary judgment to the

Board and Schwab on the Does’ negligence and gross negligence

claims.     In disposing of the gross negligence claim, the court

recognized that, under Maryland law, a defendant acts with the

requisite “wanton and reckless disregard for others only when he

inflicts injury intentionally or is so utterly indifferent to

the rights of others that he acts as if such rights did not

exist.”     Doe, 982 F. Supp. 2d at 658 (internal quotation marks

omitted).    The court then ruled that a reasonable jury could not

conclude that the defendants “intentionally inflicted [J.D.’s]

injury or acted as if [J.D.’s] rights did not exist.”              Id.

      Regarding the negligence claim, the district court observed

that Maryland requires proof of four elements:               (1) a duty owed

to   the   plaintiff;   (2) a   breach   of   that   duty;    (3) a   legally


                                    16
cognizable causal relationship between the breach of duty and

the harm suffered; and (4) damages.                         See Doe, 982 F. Supp. 2d at

659.     The court concluded that the defendants owed J.D. “a duty

to   exercise        reasonable      care       to     protect     him     from    student-on-

student    sexual      harassment.”              Id.    (citing      Lunsford      v.    Bd.   of

Educ. of Prince George’s Cnty., 374 A.2d 1162, 1168 (Md. 1977)).

Additionally, the court allowed that “a reasonable juror could

conclude that [J.D.] suffered injuries on account of the alleged

harassment.”         Id.

        The district court explained at length, however, that the

defendants had not, as a matter of law, breached their duty to

J.D.     See Doe, 982 F. Supp. 2d at 659-61.                        More specifically, as

the court stated, the defendants’ responses to the library and

classroom      incidents         were      “swift       and       substantial,”         and    the

defendants      took       “significant         steps”       to    address       the    bathroom

incident.       See id. at 659.                  According to the court, “it is

unclear what else . . . could have [been] done, or that any more

measures       would       not     have     proved       overly      burdensome.”              Id.

Although       it     acknowledged          that        a     failure       to     adhere      to

administrative procedures might be probative of negligence, the

court    determined         that    the     other       circumstances         of    this      case

weighed    heavily         against        the    conclusion         that    the    defendants

breached the duty owed J.D.                     Id. at 660 (citing Volkswagen of

Am.,    Inc.    v.    Young,       321    A.2d       737,    746    (Md.    1974),      for    the


                                                17
proposition      that     “statutory    or    regulatory     requirements      are

deemed to furnish standards by which courts or juries determine,

along     with   other    circumstances,      whether   or    not    conduct    is

negligent”). 10

     As an alternative to rejecting the negligence claim for

lack of a breach of duty, the district court ruled that such a

breach by the defendants was not the cause of J.D.’s injuries,

see Doe, 982 F. Supp. 2d at 661-63, and that the Does were

barred from recovering on a negligence theory because J.D. was

contributorily negligent and assumed the risk, id. at 663-64.

The Does timely noted this appeal, and we possess jurisdiction

pursuant to 28 U.S.C. § 1291.



                                       III.

     We    review    de    novo   a   district   court’s     award   of   summary

judgment.        See Laber v. Harvey, 438 F.3d 404, 415 (4th Cir.


     10
        In the course of analyzing the negligence claim, the
district court ruled that the report of the Does’ proposed
expert, Susan Strauss, failed to create a triable issue of
breach of duty.    First, the expert report was unsworn and not
signed under penalty of perjury.     See Doe, 982 F. Supp. 2d at
660.    Second, the evidence either failed to support or
contradicted “many of the factual contentions on which Strauss
bases her conclusions.”    Id. at 660-61.    And third, Strauss’s
core conclusion — that the defendants failed to adhere to
applicable   administrative   procedures   —   was   premised   on
inapplicable   rules   and  procedures,   and   “overstates   [the
defendants’] failure to follow AP 4170.” Id. at 661.




                                        18
2006) (en banc).       Summary judgment is appropriate “if 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).



                                           IV.

       On   appeal,    the        Does   maintain     that    the    district     court

erroneously determined, with respect to their Title IX claim,

that    liability     for    the     sexual      harassment    of    J.D.    cannot   be

imputed to the Board.             The Does also assert that the court erred

in concluding, on their negligence claim, that they failed to

establish the defendants’ breach of duty.                       We address — and

reject — those contentions in turn. 11

                                            A.

       Under   Title        IX,     an    imputation     of     liability       to    an

educational institution has two pertinent aspects:                          (1) whether

the institution had actual knowledge of the student-on-student

sexual      harassment;       and        (2) whether     the        institution       was

deliberately indifferent to that harassment.                    See Davis ex rel.

       11
        Because we agree with the district court that the Does
failed to prove a breach of duty, we need not reach their
additional contention that the district court erred in ruling
that J.D. was contributorily negligent and assumed the risk.
Meanwhile, we do not review the court’s summary judgment award
on the Does’ gross negligence claim, as they do not contest that
ruling.




                                            19
LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646-47

(1999).        An     educational      institution           can    be       liable    on      a

deliberate indifference theory only when its response to known

harassment is “clearly unreasonable.”                       Id. at 648.            To avoid

liability,      the    institution      is     not    required        “to     remedy        peer

harassment” or “to ensure that students conform their conduct to

certain     rules.”        Id.    at     648-49           (alteration        and   internal

quotation     marks    omitted).         On     summary       judgment,       a    court      is

entitled to decide that the educational entity’s response was

“not ‘clearly unreasonable’ as a matter of law.”                         Id. at 649.

      Applying the deliberate indifference standard recognized by

the   Supreme    Court    in    its    Davis      decision,        the   district       court

concluded here, as a matter of law, that the Board’s responses

to M.O.’s harassment of J.D. were not clearly unreasonable.                                   In

challenging that ruling in this appeal, the Does fault the Board

for failing both to discern an escalating pattern of harassment

and to take effective corrective actions.                          That is, the Does

argue that the district court erred in accepting the Board’s

“argument     that     each     instance       of     sexual       harassment         was     an

isolated incident rather than part of an escalating pattern.”

See Br. of Appellants 47.             The Does also invoke a Sixth Circuit

decision and guidance from the Department of Education’s Office

for   Civil     Rights    for    the     proposition          “that      a    response        is

‘clearly      unreasonable’       when       it      is     not    calculated         to      be


                                           20
effective, or when repeated harassment demonstrates that it has

not been effective.”         Id. at 47-48 (citing Vance v. Spencer

Cnty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000); Office for

Civil    Rights,   Sexual     Harassment    Guidance:        Harassment       of

Students by School Employees, Other Students, or Third Parties,

62 Fed. Reg. 12034 (Mar. 13, 1997) (the “OCR Guidelines”)).

     The Does urge us to speculate what the Board might have

known had school employees more thoroughly investigated J.D.’s

allegations, and they would have us hold the Board liable under

Title IX for failing to discover “the full extent of the pattern

of sexual harassment.”         See Br. of Appellants 49.             We cannot

accept   the   Does’   theory,   however,    because    we   would    have    to

substitute a negligence standard for the deliberate indifference

standard.      See Doe v. Galster, 768 F.3d 611, 619-20 (7th Cir.

2014)    (rejecting    the   plaintiff’s    argument    that,   based    on    a

pattern of non-severe harassment, “the school should have done

more to investigate and to prevent the violent acts that were

committed [later]”).

     We also cannot accord the Does relief from the district

court’s summary judgment award under the Sixth Circuit’s Vance

decision and the OCR Guidelines.            In describing how a school

should respond to known sexual harassment, the OCR Guidelines

recommend that the school “take steps reasonably calculated to

end any harassment, eliminate a hostile environment if one has


                                    21
been created, and prevent harassment from occurring again.”                         See

OCR Guidelines, 62 Fed. Reg. at 12042.                       Relying on the OCR

Guidelines, the Vance court determined that, “where a school

district has knowledge that its remedial action is inadequate

and ineffective, it is required to take reasonable action in

light of those circumstances to eliminate the behavior.”                             See

231 F.3d at 261.           Adopting the rationale of Vance and the OCR

Guidelines would not help the Does, however, because this is not

a case where the Board had “actual knowledge that its efforts to

remediate [were] ineffective, and it continue[d] to use those

same methods to no avail.”           See id. (emphasis added).

       In a final attempt to revive their Title IX claim, the Does

have   reiterated         their   argument      that   the   Board’s      failure    to

adhere to its sexual harassment policies, including AP 4170, is

evidence      of    deliberate      indifference.            The    district   court

properly rejected that contention, however, on the ground that

“the failure to follow sexual harassment grievance procedures

does not prove deliberate indifference under Title IX.”                             Doe,

982 F. Supp. 2d at 657 (citing Gebser v. Lago Vista Indep. Sch.

Dist.,     524     U.S.    274,   291-92     (1998));    see       also   Sanches    v.

Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 169

(5th   Cir.      2011)    (explaining      that,   under     Gebser,      principal’s

failure     to     contact    school    district’s       Title      IX    coordinator




                                           22
pursuant to school policy “does not mean [principal’s] actions

were clearly unreasonable”).

     In sum, we agree with the district court that the Board’s

failure to strictly adhere to its sexual harassment policies,

including      AP    4170,    is    not    determinative.             Indeed,     such

“procedural shortcomings do not diminish the substantive impact

of all the steps [the defendants] took in response to” J.D.’s

allegations.        See Doe, 982 F. Supp. 2d at 657.             Those steps, as

fully    explained     by    the   district      court’s     decision,     were    not

clearly unreasonable.          See id. at 654-58.            Thus, we affirm the

district court’s award of summary judgment on the Does’ Title IX

claim.

                                          B.

     Turning to the negligence theory, it must be shown that

there    was   a    breach   of    the   duty    under     Lunsford   v.   Board    of

Education of Prince George’s County, 374 A.2d 1162, 1168 (Md.

1977),   “to   exercise      reasonable        care   to   protect    a   pupil   from

harm.”      The Does maintain that the defendants breached their

duty to J.D. by failing to recognize an escalating pattern of

harassment and conduct a reasonable investigation, by failing to

follow the Board’s sexual harassment policies, and by failing to

respond appropriately to known instances of harassment.

     We reject the Does’ contention that had the defendants’

viewed M.O.’s behavior as forming a pattern of harassment, they


                                          23
would have conducted a “proper investigation,” and “would likely

have uncovered the repeated sexual assaults” of J.D., which the

defendants “then would have taken further steps to prevent.”

See Br. of Appellants 29.                 That argument is speculative, and

cannot form a basis for denying summary judgment.                          See Othentec

Ltd.   v.    Phelan,       526    F.3d    135,     140    (4th     Cir.    2008)          (“The

nonmoving party cannot create a genuine issue of material fact

through mere speculation or the building of one inference upon

another.”     (internal          quotation       marks    omitted)).             Moreover,

although the Does assert otherwise, the decision of the Court of

Appeals of Maryland in Eisel v. Board of Education of Montgomery

County did not establish a school’s duty to investigate, such

that a breach of that duty would sound in negligence.                                See 597

A.2d 447, 456 (Md. 1991) (ruling that “school counselors have a

duty to use reasonable means to attempt to prevent a [student’s]

suicide     when    they    are    on    notice    of    [the]    student’s          suicidal

intent”).

       We also disagree with the Does’ theory that the defendants

breached their duty to J.D. by failing to follow the Board’s

sexual    harassment       policies,      including       AP     4170.     Indeed,          the

summary      judgment       record       demonstrates          that      many        of     the

defendants’        responses      tracked     AP     4170’s       recommendations           or

otherwise     constituted         a     reasonable       investigation          of     J.D.’s

allegations.        For example, following the bathroom incident, the


                                            24
defendants adhered to the recommendations in the AP 4170 form by

obtaining, in a documented statement written by J.D., the names

of the parties involved, the location of the incident, and a

description of the incident.                   In further investigation of the

bathroom incident, the school’s security officer reviewed video

footage       of     the    bathroom’s     entrance,           and    Schwab    interviewed

potential      witnesses       in    compliance         with    AP    4170.         Similarly,

Jellison       interviewed         three   students           who     had    witnessed      the

classroom          incident.         In    procuring           statements       from     those

students,          Jellison    discovered      that          M.O.    had    also    displayed

inappropriate behavior toward them.                     Thus, in compliance with AP

4170,       Jellison       located   witnesses      to        the    classroom      incident,

uncovered          previous        incidents       of        M.O.’s        harassment,      and

identified three students who had “experienced the same problem”

with    M.O.         See    J.A.    128.    Furthermore,             in    response    to   the

library incident, Principal Johnson spoke to both J.D.’s parents

and M.O.’s parents, and Schwab took a statement directly from

J.D. regarding the nature of the harassment, in compliance with

AP   4170.          Accordingly,      there    is       no    triable       issue    that   the

defendants breached their duty on that ground. 12


       12
        We acknowledge that the Does’ expert report by Susan
Strauss purported to establish a genuine dispute as to breach of
duty.   See supra note 10.    The district court discounted the
report on several grounds, however, including that it was
premised on inapplicable rules and procedures, and “overstates
(Continued)

                                              25
       Finally, there can be no genuine dispute that, each time

J.D.   made    a    complaint      about    M.O.,      the    defendants       exercised

reasonable     care    to    protect       J.D.   from       harm.      For     example,

following     the   library     incident,       which    occurred       in    Jellison’s

classroom, Schwab instructed Jellison to rearrange her classroom

so that J.D. and M.O. sat as far apart as possible.                          Next, after

the    classroom      incident,      M.O.       was    removed       from     Jellison’s

classroom     for   five    days    to    serve   an    in-school       suspension     in

Principal Johnson’s office.              And, although Schwab had reason to

doubt the validity of the bathroom incident, she took steps to

ensure that J.D. and M.O. would not be alone together in the

bathroom, including the offer of a student escort for J.D.

       In these circumstances, we are constrained to agree with

the    thoughtful      decision      of     the       district       court    that     the

defendants’ responses to the known incidents of harassment were

“swift,”    “substantial,”         and    “significant.”         See     Doe,    982    F.

Supp. 2d at 659.           Accordingly, we likewise conclude that there

has been no showing that the defendants breached their duty to




[the defendants’] failure to follow AP 4170.” See Doe, 982 F.
Supp. 2d at 661. We agree with the district court and thus do
not consider Strauss’s report.




                                           26
J.D., and we affirm the court’s summary judgment award on the

Does’ negligence claim.



                             V.

     Pursuant to the foregoing, we affirm the judgment of the

district court.

                                                     AFFIRMED




                             27
