                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-4-2004

Doe v. Bellefonte Area Sch
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4210




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"Doe v. Bellefonte Area Sch" (2004). 2004 Decisions. Paper 417.
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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 03-4210
                                      ____________

                        JOHN DOE, a minor, by and through his
                  parents and natural guardians, Mary and Robert Doe,

                                             Appellant

                                             v.

                      BELLEFONTE AREA SCHOOL DISTRICT
                                ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                  (D.C. No. 02-cv-01463)
                        District Judge: Honorable Malcolm Muir
                                      ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    July 13, 2004

               Before: RENDELL, BARRY and FISHER, Circuit Judges.

                                 (Filed: August 4, 2004)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Because the parties are familiar with the factual and procedural background of this

case, we comment only regarding those facts that are pertinent to our disposition of this
appeal. John Doe (“Doe”) and his parents filed suit against the Bellefonte Area School

District (“the School District”) asserting a claim under Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681. Doe appeals the grant of summary judgment in

favor of the School District asserting that the district court erred in concluding that no

reasonable fact-finder could find that the School District was deliberately indifferent to

the three (3) years of peer sexual harassment Doe encountered on account of his

effeminate characteristics. Because we agree with the District Court that Doe failed to

adduce evidence to create a germane issue as to whether the actions taken by the School

District in response to the allegations were clearly unreasonable and therefore that the

School District could not have been found deliberately indifferent, we will affirm.

       Doe contends that contrary to the district court’s holding, the School District’s

method of dealing with specific, identified perpetrators was not 100% effective in

stemming the harassment. He suggests that the School District should have treated the

pattern of harassment as a systemic problem, and that its failure to do so met the

deliberate indifference standard. He concludes that the School District’s response was

clearly unreasonable in light of the known circumstance that the harassment continued –

namely, each subsequent incident involved a student other than the student that had been

disciplined in any of the prior incidents of harassment directed at Doe.

       Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999)

established a private right of action for student-on-student sexual harassment against



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school districts under Title IX of the Education Amendments of 1972, as amended, 20

U.S.C. § 1681. But the private right of action only lies where the school district is

deliberately indifferent to known acts of sexual harassment and the harasser is under the

school’s disciplinary authority. Id. at 633. Where a school district does not engage in

sexual harassment directly, it may not be liable for damages unless its deliberate

indifference makes a student vulnerable to or causes them to undergo harassment. Id. at

644-45.1 Deliberate indifference to acts of peer sexual harassment arises only where the

school district’s response or lack of response to the harassment is clearly unreasonable in

light of the known circumstances. Id. at 648.

       The relevant inquiry for purposes of evaluating whether the School District here

was deliberately indifferent to known circumstances of harassment is to review its

response to reported incidents of harassment. Each and every time Doe complained, the

School District responded with reasonable actions which eliminated further harassment

between Doe and the student(s) involved in each incident. Students were suspended and

others were given warnings and counseled regarding the seriousness of harassment. In

addition, the School District circulated memoranda to faculty and staff putting them on

notice of the reported harassment of Doe and requesting assistance to prevent further


   1
    The sexual harassment complained of also must be so severe, pervasive, and
objectively offensive that it effectively bars the victim access to an educational
opportunity or benefit. Id. at 651. The district court’s holding that the harassment alleged
by Doe met this standard need not be addressed given our affirmance of the holding that
the School District was not deliberately indifferent.

                                              3
incidents. Doe was provided with a special means of reporting any additional harassment

through the school psychologist, whom he knew personally. The School District also

held assemblies and enacted policies addressing peer-to-peer harassment. Such actions

are not clearly unreasonable.

       Nor was the School District deliberately indifferent because it did not undertake

the specific remedial action that Doe desired given what he perceived to be the “systemic

nature of the harassment.” Davis does not require school districts to purge their schools

of actionable peer harassment or to engage in particular disciplinary action. Id. at 648.

We will refrain from second-guessing the disciplinary decisions made by the School

District which effectively eliminated each reported source of harassment. We do not

minimize the unfortunate verbal abuse that Doe was subjected to during his high school

years, but the School District was not deliberately indifferent because additional

harassment occurred under new and different circumstances. We will affirm the

judgment of the district court.




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