Gabrielle M. v. Park Forest-Chicago Heights, Illinois School District 163 , 315 F.3d 817 ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3933
GABRIELLE M., a minor, by and through her parents
and next friend, STANLEY and THERESA M.,
Plaintiff-Appellant,
v.
PARK FOREST-CHICAGO HEIGHTS, ILLINOIS
SCHOOL DISTRICT 163 and GEORGE MCJIMPSEY,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 7075—Joan Humphrey Lefkow, Judge.
____________
ARGUED JULY 10, 2002—DECIDED JANUARY 14, 2003
____________
Before COFFEY, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Five-year-old Gabrielle M. began
kindergarten at Beacon Hill School in the Park Forest-
Chicago Heights School District on August 31, 1998.
Gabrielle was one of roughly 20 students in Mary Mulry’s
class, which was also supervised by teacher’s aide Eliza-
beth Roselli. Mulry’s classroom was one of seven kindergar-
ten classes at the school that year.
Gabrielle stated in her deposition that Jason L., another
five year old in her class, began “bothering” her on the first
2 No. 01-3933
day of class (Gabrielle did not explain what she meant by
“bothering”). Gabrielle did not tell school officials or her
parents about Jason’s behavior. Although Gabrielle had
been eager to start school, her parents noticed in Septem-
ber that she became reluctant to go to school, crying
at the door when it was time to go. She also began wet-
ting her bed and having nightmares around this time. At
the time, Gabrielle’s parents did not know what caused
the changes in her behavior.
In October, Mulry began to notice Jason’s problematic
behavior. Early in the month, Mulry saw Jason jump on
Gabrielle’s back at recess. She separated the two, and Ja-
son was suspended from recess for the rest of the week. On
October 21, Roselli saw Jason lean against Gabrielle
with his hands on his crotch. Roselli removed Jason from
the room and took him to the principal’s office. The princi-
pal, George McJimpsey, was not in his office, so Roselli
put Jason in time out, away from other students, and de-
scribed Jason’s behavior to Mulry. Later that day, a stu-
dent told Mulry that Jason had unzipped his pants and
was showing other students his underwear while her
back was turned. Roselli again took Jason to McJimpsey’s
office and informed him of both incidents that occurred
that day. McJimpsey told Jason that his behavior was
inappropriate and warned him not to repeat it. Roselli and
Jason then returned to class and Roselli seated Jason
separately from the other students. After school, Mulry
called Jason’s mother and told her to call McJimpsey about
the incidents.
Two days later, Jason again unzipped his pants in class.
Mulry separated Jason from the rest of the class, but Ja-
son left his seat and again unzipped his pants in front of
other boys. Mulry took Jason to McJimpsey’s office, and
McJimpsey phoned Jason’s mother. Jason received a half
hour of after-school detention because of the incident.
No. 01-3933 3
On October 28, Mulry noticed that Jason and a classmate,
Ashley, had their hands down each others’ pants during
storytime. Mulry immediately told the two to come over
to her and Ashley reported that another girl, Tatiana, was
also putting her hands down other students’ pants. Mulry
asked a teacher’s aide to take Jason, Ashley, and Tatiana
to the school psychologist, Larry Anthony. Anthony sent
for Gabrielle and another girl when the children in his
office told him that the two girls were also involved. Dur-
ing Anthony’s meeting with the five children, the chil-
dren informed him that during the previous week they
had kissed and jumped on top of one another at recess.
Anthony told them that their behavior was inappropriate
and that they should tell their parents or teachers when
such things occurred. After school, Mulry went to Anthony’s
office, and Anthony described the meeting to her and
called the children’s parents. In his notes regarding the
incident, Anthony reported that it was “becoming appar-
ent that these Kindergarteners [sic] were not fully aware
of the seriousness of their actions.”
Theresa, Gabrielle’s mother, went to the school the next
day to talk with McJimpsey. Theresa then took Gabrielle
to lunch to speak with her privately, at which time Gabri-
elle told her she didn’t want to go back to school because
Jason had been doing “nasty stuff” to her since her first
day.
After returning Gabrielle to school, Theresa told Mulry
about her conversation with Gabrielle and that Gabri-
elle had recently developed problems with nightmares and
bedwetting. That day Theresa also asked McJimpsey
to move Gabrielle to a different classroom. McJimpsey
agreed and also suspended Jason from school for two days.
Theresa called McJimpsey the next day to ask that
Jason switch classrooms instead of Gabrielle. According
to Theresa, McJimpsey initially resisted, but transferred
Jason after Theresa threatened to remove Gabrielle from
4 No. 01-3933
the school. McJimpsey also agreed to assign Jason to dif-
ferent lunch and recess times.
Lunchroom supervisors separated Jason from the other
students in the lunchroom for two weeks. After that, Jason
returned from isolation and rejoined the other students
for lunch. When he returned, Jason’s and Gabrielle’s
classes were still assigned to the same lunch and recess
period. Nevertheless, they did not eat together: Jason’s
class would eat lunch at one table, while Gabrielle’s
would eat at another. And at recess, a playground super-
visor was to ensure that Jason’s class did not interact
with Gabrielle’s class. For example, one group would be
allowed to play on the swing and exercise equipment while
the other group played on the blacktop. Despite this effort,
Gabrielle told her mother that once Jason returned to
the same lunch and recess period, he talked to her and
said that he “want[ed] to play with me funny ways” at
recess. Gabrielle stated in her deposition that she also
told her teacher and principal that Jason continued to
bother her. Theresa stated that she also complained to
McJimpsey. According to McJimpsey, he promptly resched-
uled lunch for Mulry’s students so that Jason and Gabrielle
would not go to lunch or recess at the same time. But
according to a letter from Gabrielle’s attorney to the
school district, Jason continued to bother Gabrielle at lunch
and recess until March 1 despite these actions.1
1
The record reveals that Gabrielle does not dispute that Mc-
Jimpsey initially assigned an instructor to ensure that Jason’s
and Gabrielle’s classes did not interact at lunch or recess or that
he eventually assigned her class and Jason’s to different lunch
and recess periods altogether. In response to the defendants’ un-
contested statement of facts in which they cite Mulry’s and
McJimpsey’s testimony on these points, Gabrielle questions only
the effectiveness of the supervision and later separation assert-
(continued...)
No. 01-3933 5
In early November, Gabrielle’s parents took her to her
pediatrician because she was experiencing bedwetting, in-
somnia, nightmares, and loss of appetite. The doctor re-
ferred her to a counselor, who diagnosed Gabrielle with
acute stress disorder and separation anxiety due to Ja-
son’s behavior toward her. Gabrielle continued therapy
until May 1999, when her counselor determined that
she was asymptomatic.
1
(...continued)
ing that (1) “following this change,” there were approximately
thirty days of inclement weather during which time the two
classes would have lunch and recess in the same lunchroom at the
same time and that (2) Gabrielle reported as late as March 1999
that she was still being bothered by Jason at lunch and recess. (R.
27 at ¶¶ 113, 115.)
The only part of the record that denies that the school took
these actions is the March 1 letter from Gabrielle’s counsel. The
unsupported allegations of counsel cannot provide evidence
sufficient to withstand summary judgment. See, e.g., Thorn v.
IBM, Inc., 101 F.3d 70, 75 (8th Cir. 1996). Thus, to the extent this
letter differs from Gabrielle’s admissions of fact in response
to defendants’ uncontested statement of facts, it is immaterial.
Moreover, the statement of counsel therein that “it has come to
the attention of the parents that the boy is assigned to the same
‘black top’ period as Gabrielle” is itself inadmissible hearsay,
which cannot be introduced to prove the truth of the matter
asserted.
Finally, Gabrielle’s own deposition testimony is consistent with
the denials and admissions set forth in her response to the
defendants’ uncontested statement of facts: that sometime
after Jason had been switched to another class, he continued
to bother her at lunch and recess. Based on her admissions, that
testimony can refer only to the period of time that both stu-
dents were assigned to the same lunch and recess period under
supervision, or those approximately thirty days of inclement
weather where they would have been in the same lunchroom
for both periods.
6 No. 01-3933
Sometime in the spring of 1999, Gabrielle’s parents
asked the school district to transfer her to another school.
The school district agreed, and Gabrielle began first
grade at Algonquin School. It is not clear when her par-
ents made the request, though McJimpsey stated in his
deposition that the Superintendent of Schools granted
the request “immediately.”
Gabrielle sued McJimpsey for intentional infliction of
emotional distress and her school district under Title IX of
the Education Amendments of 1972 alleging that Jason’s
conduct amounted to sexual harassment. Generally, Gabri-
elle claims that Jason “bother[ed]” her and did “nasty
stuff” to her since the beginning of the school year. More-
over, Gabrielle’s father, Stanley, testified that Gabrielle
had told him that Jason had touched her inappropriately:
Q: Did Gabrielle ever tell you that she had been
touched by [Jason]?
A: Yes.
Q: Sexually?
A: Yeah, he fondled pretty much half the girls in the
classroom.
Q: Where was it that he was fondling them? Did she
tell you?
A: Private parts, chest.
(R. 24, Stanley Dep. at 24:5-13.) Specifically, Gabrielle iden-
tifies the events occurring during the week of October 21
(i.e., Jason jumping on her back; Jason pulling down his
pants in front of the class; his leaning against Gabrielle
in the computer room; and the five students climbing up-
on and kissing one another) and October 28 (i.e., the story-
time incident between Jason, Gabrielle, and other girls
in the class) as evidence of Jason’s harassing conduct.
Gabrielle also claims that after the school district had
No. 01-3933 7
learned of Jason’s conduct and had taken action to sep-
arate him from Gabrielle on her mother’s request, the
two continued to have contact for as long as four months
during lunch and recess, where Jason continued “trying
to get [her] attention when [she] was trying to eat at
lunch time, and kept on wanting to play with [her] funny
ways at recess time.”
The school district moved for summary judgment argu-
ing that the complained-of conduct did not rise to an
actionable level for purposes of Title IX and that, even if
it did, the school’s response to Jason’s conduct was not
clearly unreasonable. In awarding summary judgment,
the district court found that the school district had ac-
tual notice of Jason’s behavior as of October 21, when
Roselli saw Jason act inappropriately toward Gabrielle. The
court then evaluated the district’s response to Jason’s
behavior and found the response to be adequate. The court
found that summary judgment therefore was appropriate
on Gabrielle’s federal claim and accordingly declined to
exercise supplemental jurisdiction over the state-law tort
claim against McJimpsey.
DISCUSSION
On appeal, Gabrielle argues that the district court
improperly granted summary judgment on her Title IX
sexual harassment claim. The Supreme Court has held
that a school district receiving federal funding may be lia-
ble for damages under Title IX when one student sexu-
ally harasses another. See Davis v. Monroe County Bd. of
Educ., 526 U.S. 629, 633 (1999). The court established in
Davis that liability may exist “where [funding recipients]
are deliberately indifferent to sexual harassment, of which
they have actual knowledge, that is 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.” Id. at 650.
8 No. 01-3933
Before we evaluate whether the school district’s ac-
tions (or refusals to act) amounted to deliberate indiffer-
ence, Davis requires us to examine the student-on-student
harassing conduct itself to determine whether it is “so
severe, pervasive, and objectively offensive” that it has a
“concrete, negative effect” on the victim’s access to edu-
cation. Id. There is a threshold question, altogether rea-
sonable and rational, of whether a five or six year old kin-
dergartner can ever engage in conduct constituting “sexual
harassment” or “gender discrimination” under Title IX.
Common sense, at least, would reject any such extension
of Title IX. Nevertheless, we need not answer wheth-
er six year old Jason should carry the label of “sexual
harasser,” as we will assume arguendo that Jason’s con-
duct was “sexual harassment.”
Even assuming that Jason’s conduct amounts to “sexual
harassment,” thus bringing it within the ambit of Title
IX, an action under this statute “will lie only for [sexual]
harassment that is so severe, pervasive, and objectively
offensive that it effectively bars the victim’s access to
educational opportunity or benefit.” Id. at 633. Whether
behavior is so severe, pervasive, and offensive as to create
a cause of action under Title IX is a fact-specific inquiry.
The Court in Davis recognized the obvious fact that young
children are still in the process of learning appropriate
behavior and “may regularly interact in a manner that
would be unacceptable among adults.” Id. at 651. Acknowl-
edging that almost by definition young children engage
in this “dizzying array of immature . . . behavior,” the Davis
Court distinguished “simple acts of teasing and name
calling among children” from behavior that could consti-
tute actionable harassment. Id. at 651-52 (quotation omit-
ted).
Most of the complained-of conduct alleged by Gabrielle
is so vague and unspecific that it cannot provide a basis
to determine whether that conduct was severe, pervasive,
No. 01-3933 9
and objectively offensive harassment. It is well established
that in order to withstand summary judgment, the non-
movant must allege specific facts creating a genuine issue
for trial and may not rely on vague, conclusory allegations.
Fed. R. Civ. P. 56(e); Hadley v. County of DuPage, 715
F.2d 1238, 1243 (7th Cir. 1983) (“Rule 56 demands some-
thing more specific than the bald assertion of the general
truth of a particular matter, rather it requires affidavits
that cite specific concrete facts establishing the existence
of the truth of the matter asserted.”). Thus, Gabrielle can-
not avoid summary judgment by asserting general allega-
tions that Jason “bothered” her by doing “nasty stuff.” In
the context of peer harassment between five and six year
olds, such allegations are as indicative of nonactionable
teasing and name calling as they are of potentially action-
able harassment, and thus they provide no support for
Gabrielle’s claim. Nor can she avoid summary judgment
by her equally unspecific testimony that Jason wanted to
play with her “funny ways” at recess. Similar allegations
of unarticulated conduct have been shown to be insuffi-
cient to defeat summary judgment in hostile-work-environ-
ment cases. See, e.g., Bloomer v. Slater, 2002 WL 1949728,
at *9 (N.D. Ill. Aug. 23, 2002) (refusing to allow plain-
tiff to rely on vague, general allegations of inappropriate
comments to support hostile environment claim where
plaintiff presented no evidence of the details of the of-
fending conduct). Moreover, her father’s testimony that
Gabrielle had told him that Jason touched her inappropri-
ately is also insufficient evidence to support her claim.
First, it is hearsay and cannot be admitted to prove the
truth of the matter asserted—that Jason touched Gabri-
elle. Second, even if it was admissible it is still too vague
and general: although it is more specific than Gabrielle’s
other allegations because it identifies the areas Jason
allegedly touched—“[p]rivate parts, chest”—it still does not
present details of when, where, or how often this alleged
conduct occurred and whether it was reported. Those details
10 No. 01-3933
are necessary to evaluate the severity and pervasiveness
of the conduct, see, e.g., Manfredi v. Mount Vernon Bd. of
Educ., 94 F. Supp. 447, 454-55 (S.D.N.Y. 2000) (finding a
single incident of offensive touching between first graders
insufficient to rise to the level of severe, pervasive, and
objectively offensive conduct given the Davis Court’s cau-
tionary statement that it was “unlikely Congress would
have thought such behavior sufficient . . . in light of the
inevitability of student misconduct and the amount of
litigation that would be invited by entertaining claims of
official indifference to a single instance of one-on-one peer
harassment.” (citing Davis, 526 U.S. at 652-53)), not to
mention other requisite elements of a Title IX deliberate-
indifference claim, such as actual knowledge.
We turn, therefore, to the specific instances of inappro-
priate conduct alleged by Gabrielle and reported to
school officials, which include Jason’s jumping on Gabri-
elle’s and other students’ backs and kissing each other,
Jason pulling his pants down in front of other students,
the computer-room incident, and the story-time incident.
Leaving aside for a moment the fact that not all of these
incidents involve conduct between Jason and Gabrielle
(or Jason and other girls for that matter), the only evi-
dence in the record shows that Jason and the other chil-
dren involved were unaware of the sexual nature of their
behavior. According to the school psychologist, Anthony,
the children were “unaware of the seriousness” of their
actions. The children, then, were not engaging in know-
ingly sexual acts, a fact that (at a minimum) detracts from
the severity and offensiveness of their actions.
Moreover, an action under Title IX lies only where the
behavior at issue denies a victim equal access to education.
Id. at 652. The harassment must have a “concrete, nega-
tive effect” on the victim’s education. Id. at 654. Examples
of a negative impact on access to education may include
dropping grades, id. at 634, becoming homebound or
No. 01-3933 11
hospitalized due to harassment, see Murrell v. Sch. Dist.
No. 1, Denver, Colo., 186 F.3d 1238, 1248-49 (10th Cir.
1999), or physical violence, see Vance v. Spencer County
Public Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2000). Here,
however, there is no evidence that Gabrielle was denied
access to an education. Although she was diagnosed with
some psychological problems, the record shows that her
grades remained steady and her absenteeism from school
did not increase. Nothing in the record shows that she
was denied any educational opportunities by Jason’s ac-
tions.
But even if we were to decide Jason’s actions were se-
vere, pervasive, and objectively offensive sexual harass-
ment that had a concrete, negative effect on Gabrielle’s
access to education, we are not convinced that the school
district’s response to known harassment was clearly unrea-
sonable. Examining the school district’s response to the
complained-of conduct, we agree with the district court’s
conclusion that the school district’s actions were not so
clearly unreasonable as to amount to deliberate indiffer-
ence.
As an initial matter, the school district can only be lia-
ble for harassment about which it has actual knowledge.
Gabrielle argues that the school district had actual no-
tice of Jason’s behavior as of August 31 (the first day
of school), because Gabrielle testified that Jason began
bothering her on the first day and because the teachers
constantly supervise kindergartners and thus must have
noticed this behavior. While it is certainly true that such
young students are under near-constant supervision, Davis
established that actual—not constructive—notice is the
appropriate standard in peer-harassment cases. Davis,
526 U.S. at 646-47. Courts, therefore, have focused on re-
ports or observations in the record of inappropriate be-
havior to determine when school officials had actual notice.
See Vance, 231 F.3d at 259 (notice requirement satisfied
12 No. 01-3933
by student and parent’s reports to teachers and principal);
Soper v. Hoben, 195 F.3d 845, 855 (6th Cir. 1999) (defen-
dants had actual notice of rape and sexual assault only
after incidents were reported to them); Murrell, 186 F.3d
at 1247 (parent’s telephone call to principal about harass-
ment was evidence of actual notice). Nothing in the record
shows that Beacon Hill school officials observed or that
anyone reported sexual behavior by Jason towards Gabri-
elle (or anyone else) before October 21. Thus, there is no
evidence that the defendants had notice of any harass-
ing conduct before this date.
Once school officials have actual notice of sexual harass-
ment, Davis imposes a duty to act. But as long as the
school’s response is not “clearly unreasonable,” it cannot
have acted with the requisite deliberate indifference to
incur Title IX liability. Davis, 526 U.S. at 648-49. Accord-
ing to Davis, this is not a mere reasonableness standard,
nor does it require funding recipients to remedy peer
harassment. Id. Indeed, “[i]n an appropriate case, there
is no reason why courts, on a motion to dismiss, for sum-
mary judgment, or for a directed verdict, could not iden-
tify a response as not ‘clearly unreasonable’ as a matter
of law.” Id. at 649.
This is such an appropriate case. The record reveals that
the school district’s response to Jason’s inappropriate con-
duct was not clearly unreasonable. After each reported
or observed instance involving Jason and other students,
Jason was disciplined and steps were taken to prevent
future inappropriate conduct. When Mulry saw Jason jump
on Gabrielle’s back at recess, he was disciplined and sus-
pended from recess for the rest of the week. When Jason
leaned against Gabrielle with his hands on his zipper, he
was placed in time out. When he pulled down his pants
exposing his underwear to other students in the class,
Jason was temporarily removed from the class, disciplined
by McJimpsey, and his mother was called. When Jason
No. 01-3933 13
exposed himself to three other boys two days later, he
was again sent to McJimpsey’s office, his mother was
called, and he received detention. And when Jason and
Ashley were seen with their hands down each other’s
pants and when the students revealed that Gabrielle and
others were involved as well, all of the students were
sent to the school’s psychologist to discuss the incident
and their parents were called. After serving a two-day sus-
pension, Jason was transferred to a different kindergar-
ten class. Additionally, Jason was placed at an isolation
table for two weeks during lunch and recess period before
he was allowed to rejoin his new class.
Nevertheless, Gabrielle asserts that these actions were
insufficient to protect her from further unwanted con-
tact with Jason during lunch and recess. Notably, Gabri-
elle does not deny that McJimpsey took steps to minimize
Jason’s contact with Gabrielle during a communal lunch
and recess period: each of the students’ classes were as-
signed to different lunch tables and a recess supervisor
was instructed to ensure that the two students did not
interact at recess. Nor does she deny that McJimpsey
eventually rescheduled the two classes to different lunch
and recess periods. All that Gabrielle denies is the re-
medial effect of these steps, claiming that as late as March
1999, Jason continued to bother her. Presumably, Mc-
Jimpsey’s initial action of recess supervision was ineffec-
tive since Theresa subsequently complained that the two
students continued to come into contact. Even after the
lunch-and-recess-period switch, Gabrielle explains that
Jason and Gabrielle would still have had occasion to
interact during approximately thirty days of inclement
weather where both classes would have had lunch and
recess indoors at the same time in the same room.
But in arguing that in order not to act with deliberate
indifference, the school district must have effectively ended
all interaction between the two students to prevent con-
14 No. 01-3933
clusively any further harassment, Gabrielle misunder-
stands the law. Davis does not require funding recipients
to remedy peer harassment. Id. at 648-49. Davis disap-
proved of a standard that would force funding recipients to
suspend or expel every student accused of misconduct. Id.All that Davis requires is that the school not act clearly
unreasonably in response to known instances of harass-
ment. Id. Here, in light of each of the immediate disci-
plinary and preventative steps the school district had al-
ready taken in response to Jason’s conduct, including most
prominently the decisions to move him to another class
entirely and eventually to grant Gabrielle’s request for
a school transfer, it was not clearly unreasonable as a
matter of law initially to assign an instructor to oversee
a communal recess and lunch period instead of immedi-
ately rescheduling the lunch and recess period for a whole
kindergarten class. Nor is it clearly unreasonable that
in days of inclement weather Gabrielle and Jason may
have had occasion to interact in the one lunchroom where
all the school’s students had to take lunch. In both in-
stances, the school may take into consideration admin-
istrative burdens or the disruption of other students’ or
their teachers’ schedules in determining an appropriate
response. As Davis noted, courts should refrain second-
guessing the disciplinary decisions made by school admin-
istrators. Id. at 649; cf. Ulichny v. Merton Community
School District, 249 F.3d 686, 706 (7th Cir. 2001) (opining
that school administrators should be supported, rather
than second-guessed, in their “heroic efforts” to teach our
nation’s young people).
Therefore, under existing law, taking into account the
ages of the children involved, their apparent lack of knowl-
edge of the nature of their actions, and the lack of impact
on Gabrielle’s ability to attend and perform at school, we
find that the alleged harassment was not so severe, perva-
sive, and objectively offensive that it denied Gabrielle ac-
No. 01-3933 15
cess to educational opportunities. Even if it was, the school
district’s response was not so clearly unreasonable as to
render it liable under Title IX. The judgment of the dis-
trict court therefore is AFFIRMED.
ROVNER, Circuit Judge, concurring in part and concurring
in the judgment. I concur with my brothers insofar as they
conclude that the evidence does not permit the inference
that the school district was deliberately indifferent to the
harassment that Gabrielle M. was experiencing. Ante at 11-
14. Once apprised of the harassment, the school district
took a series of steps to separate Jason L. from Gabrielle—
suspending him, then reassigning him to a different class-
room, and ultimately reassigning his class to different
lunch and recess periods—so that the harassment would
not recur. Although there are hints in the record that
Jason may have continued harassing Gabrielle even after
the district took these steps—including in particular the
letter from Gabrielle’s attorney to the school district—there
is no admissible evidence that I have found which pro-
vides concrete support for this point. Even if we indulge
the inference that Jason may had the opportunity to har-
ass Gabrielle on occasions when inclement weather re-
sulted in shared lunch and recess periods (see ante at 4
n.1, 13-14), I agree that the evidence nonetheless fails to
suggest that the school district was indifferent to this
possibility.
However, in the course of affirming Judge Lefkow’s deci-
sion to enter summary judgment in favor of the school
district, the majority makes two additional points that are
noteworthy: first, that because Jason, Gabrielle, and the
16 No. 01-3933
other children did not appreciate the gravity of the con-
duct at issue in this case, they “were not engaging in know-
ingly sexual acts, a fact that (at a minimum) detracts
from the severity and offensiveness of their actions” (ante
at 10); and second, that because the alleged harassment
did not cause Gabrielle’s grades to suffer or her absentee-
ism from school to increase, she was not deprived of the
educational opportunities that Title IX protects (id. at 10-
11).1 I write separately to comment on these aspects of
my colleagues’ reasoning.
Although my colleagues have assumed for the sake of
argument that the acts of a kindergarten student can
amount to sexual harassment for purposes of Title IX (see
ante at 8), they have done so with evident reluctance. They
observe at the outset that “[t]here is a threshold question,
altogether reasonable and rational, of whether a five or
six year old kindergartner can ever engage in conduct con-
stituting ‘sexual harassment’ or ‘gender discrimination’
under Title IX.” Id. Our task, however, is not to “answer
whether six year old Jason should carry the label of ‘sexual
harasser.’ ” Id. It is the school district, not Jason, that
is charged with liability. Davis v. Monroe County Bd. of
Educ., 526 U.S. 629, 640-41, 119 S. Ct. 1661, 1670 (1999).
The question we must decide is whether the school, when
confronted with acts that amounted to sex-based harass-
ment, evinced deliberate indifference to that harassment.
Id. at 642-43, 644-45,119 S. Ct. 1671, 1672. Having an-
swered that question in the negative, we need go no fur-
1
My colleagues also conclude that most of Gabrielle’s allegations
as to the nature of the harassment lack sufficient clarity and
specificity to permit the court to determine whether the harass-
ment was severe, pervasive, and objectively offensive. Ante at 8-
9. This was not an argument that the school district made below
or that the district court considered, nor is it an argument that
the district makes on appeal.
No. 01-3933 17
ther; absent evidence of deliberate indifference to the
harassment that Gabrielle has alleged, the district can-
not be held liable for that alleged harassment.
My colleagues also suggest, however, that the validity of
a Title IX claim for sexual harassment depends, at least
to some degree, upon the sexual awareness of the harass-
er and harassee. When school psychologist Larry Anthony
spoke with Jason, Gabrielle, and the other students
who were kissing one another, jumping on top of one an-
other, and putting their hands down one another’s pants,
it was his observation that the children were not fully
aware of how serious their actions were. Ante at 3. This
suggests to my colleagues that neither Jason nor the other
children—including Gabrielle—were engaged in “know-
ingly” sexual acts. Ante at 10. Although my colleagues
stop short of saying that sexual awareness is a prere-
quisite to a sexual harassment claim, they suggest that
the absence of such awareness at the least renders the
harassment less severe and less offensive than it other-
wise might be. Id.Although I too think it unlikely that either Jason or
Gabrielle fully appreciated the sexual nature of his con-
duct, that factor by itself does not foreclose nor does
it undermine Gabrielle’s Title IX claim. Harassing cond-
uct need not be motivated by sexual desire, nor must it
be overtly sexual in nature, in order to support a claim
of sex discrimination. See Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 1002 (1998);
Berry v. Delta Airlines, Inc., 260 F.3d 803, 811 (7th Cir.
2001); see also U.S. Dep’t of Education, Office for Civil
Rights, Revised Sexual Harassment Guidance: Harass-
ment of Students by School Employees, Other Students,
or Third Parties, at 3 & nn. 17, 19 (collecting cases) .
The pertinent question, for purposes of Title IX, is whether
18 No. 01-3933
the harasser engaged in conduct “on the basis of sex” that
had the effect of denying the plaintiff access to educa-
tional opportunities. 20 U.S.C. § 1681(a); see Oncale, 523
U.S. at 80, 81, 118 S. Ct. at 1002. Here, the record readily
supports the inference that Jason’s acts were based on sex:
although some of Jason’s conduct involved boys as well
as girls (showing his classmates his underwear, for exam-
ple), the more intrusive and troubling aspects of his al-
leged behavior—including in particular touching Gabri-
elle’s genitals—involved only Gabrielle and perhaps other
girls in the class. And although Gabrielle, like Jason, may
not have understood the sexual significance of Jason’s
actions, the evidence nonetheless suggests that she found
them to be unwelcome and inappropriate. When first ques-
tioned about Jason’s conduct by her mother, Gabrielle
said that Jason had been touching her chest and genitals
and had done other “nasty stuff” to her since the first day
of school. She would later testify that when Jason rejoined
his classmates for lunch and recess following a period of
separation, he continued to approach Gabrielle and seek
to “play with [her] funny ways” at recess. At the same
time, one may readily infer from the evidence that Ja-
son’s conduct disturbed Gabrielle: she allegedly lost her
enthusiasm for school, had nightmares and difficulty sleep-
ing, wet her bed, and lost her appetite.
Moreover, whatever the children’s comprehension may
have been, the adults charged with their care and educa-
tion had the ability to appreciate the inappropriate and
potentially harmful nature of the conduct. In fact, school
officials, once alerted to Jason’s behavior, immediately
recognized its problematic character. It is that recognition,
rather than Jason’s knowledge, that exposes the school
district to liability. If the school knew that Jason was har-
assing one of his peers but remained idle in deliberate
indifference to that harassment—in this way “causing” the
harassment to continue and to deprive Gabrielle of ac-
No. 01-3933 19
cess to educational opportunities or benefits—it would
face liability under Title IX. See Davis, 526 U.S. at 640-41,
644-45, 119 S. Ct. at 1670, 1672.
The knowledge and intent of the school district are
therefore central to the liability determination; the knowl-
edge and intent of the student perpetrating the harass-
ment are really irrelevant. This is a point that has al-
ready been made in the employment context. Courts have
repeatedly rejected the notion that a harasser’s inno-
cent intent will defeat liability under Title VII, reasoning
that because it is the employer that is held liable for
workplace harassment, it is the employer’s response to
the harassment, and not the perpetrator’s intent, that
matters. See Newton v. Dep’t of Air Force, 85 F.3d 595, 599
(Fed. Cir. 1996); Ellison v. Brady, 924 F.2d 872, 880 (9th
Cir. 1991); Vaughn v. Pool Offshore Co., 683 F.2d 922, 925
n.3 (5th Cir. 1982); Bundy v. Jackson, 641 F.2d 934, 945
(D.C. Cir. 1981); Rogers v. EEOC, 454 F.2d 234, 239 (5th Cir.
1971) (opinion of Goldberg, J.), cert. denied, 406 U.S. 957,
92 S. Ct. 2058 (1972); see also Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 65, 67, 106 S. Ct. 2399, 2404-05,
2405-06 (1986) (describing elements of hostile environ-
ment claim without reference to harasser’s intent). The
same principle ought to hold true in the school environ-
ment. Jason likely did not realize that he was harming
his female classmate; but his ignorance says nothing
about the extent to which his actions interfered with
Gabrielle’s educational opportunities or about the school
district’s awareness of and response to his conduct. Con-
versely, Jason’s knowledge and intent, even if culpable,
would not suffice to render the school district liable—only
the district’s own deliberate indifference to the harassment
could do that. Davis, 526 U.S. at 640-41, 644-45, 119 S. Ct.
at 1670, 1672. Our focus, in sum, properly rests on what
the school district knew and intended, not on what Jason
was capable of realizing at age six.
20 No. 01-3933
I also part ways with my colleagues as to whether the
alleged harassment had a sufficiently “concrete, negative
effect” to be cognizable under Title IX. See ante at 10,
quoting Davis. Because Gabrielle’s grades did not fall as
a result of the harassment and because she was able to
continue attending school, my colleagues conclude that
there is no proof that she was denied any educational
opportunities by Jason’s actions. Id. I respectfully sug-
gest that their view of the way in which harassment can
interfere with a student’s educational opportunities is too
narrow. Davis holds that “a plaintiff must establish sex-
ual harassment of students that is so severe, pervasive,
and objectively offensive, and that so undermines and
detracts from the victims’ educational experience, that
the victim-students are effectively denied access to an
institution’s resources and opportunities.” 526 U.S. at 651,
119 S. Ct. at 1675. Construing the record favorably to
Gabrielle, one may readily infer that the alleged harass-
ment traumatized her psychologically: she lost her excite-
ment for school, she resisted going to school, she was
emotionally distraught, she had nightmares and difficulty
sleeping, she lost her appetite, and she began wetting her
bed. It is easy to imagine how such trauma might have
interfered with her access to educational opportunities. See
generally Michele Goodwin, Sex, Theory & Practice: Recon-
ciling Davis v. Monroe & The Harms Caused by Children,
51 DEPAUL L. REV. 805, 818-22 (2002); Diane M. Welsh,
Limiting Liability Through Education: Do School Districts
Have a Responsibility to Teach Students About Peer Sexual
Harassment?, 6 AM. U. J. GENDER & L. 165, 171-75 (1997).
The fact that Gabrielle’s grades did not suffer is by no
means dispositive. Certainly at the kindergarten level,
where learning social skills is at least as important as
academic instruction, grades do not tell the complete story
of how well a student is doing. At the same time, in Title
VII cases, we have repeatedly rejected the notion that
No. 01-3933 21
a victim’s ability to keep doing her job in the face of har-
assment will defeat her contention that the workplace
was hostile. Doe v. R.R. Donnelley & Sons Co., 42 F.3d
439, 444 (7th Cir. 1994); Dey v. Colt Constr. & Dev. Co., 28
F.3d 1446, 1454-55 (7th Cir. 1994); Saxton v. AT&T Co., 10
F.3d 526, 534-35 n.14 (7th Cir. 1993). As Justice Scalia has
observed, “[T]he test is not whether work has been im-
paired, but whether working conditions have been dis-
criminatorily altered.” Harris v. Forklift Sys., Inc., 510 U.S.
17, 25, 114 S. Ct. 367, 372 (1993) (Scalia, J., concurring); see
also ibid. (Ginsburg, J., concurring). I see no reason to
follow a different rule for purposes of Title IX. If any-
thing, courts ought to be more flexible in assessing the
harms that a child experiences as a result of harassment,
given that children (especially young children) are far less
able to articulate the fact and extent of their injuries and
may manifest an array of different reactions to the harass-
ment. Gabrielle may have managed to keep her grades up,
yet she nonetheless may have confronted a hostile en-
vironment that made it much more difficult for her to de-
velop and achieve as a student.
Also in the employment context, the Supreme Court has
firmly rejected any requirement that the victim of harass-
ment suffer the equivalent of a nervous breakdown before
she can recover under a hostile environment theory. Harris,
510 U.S. at 22, 114 S. Ct. at 370-71. “A discriminatorily
abusive work environment, even one that does not seri-
ously affect employees’ psychological well-being, can and
often will detract from employees’ job performance, dis-
courage employees from remaining on the job, or keep them
from advancing in their careers,” the Court explained.
Id. at 22, 114 S. Ct. at 371. Likewise, a hostile school en-
vironment should be actionable before it results in con-
sequences so dramatic as hospitalization or leaving school.
See ante at 10-11.
22 No. 01-3933
The record here readily supports the inference that
Gabrielle suffered a psychological injury as a result of
the harassment, an injury that not only made her reluc-
tant to attend school but ultimately required months of
psychotherapy to address. This is more than enough evi-
dence of a “concrete, negative effect” on Gabrielle’s edu-
cation to establish a question of fact as to the harm that
Gabrielle suffered as a result of the alleged harassment.
Neither she nor future victims of schoolplace harassment
should be penalized simply because they seem resilient.
In fact, there is no telling at this time what damage Gabri-
elle’s traumatic experiences might cause her in the years
to come.
For these reasons, I join my colleagues only insofar as
they conclude that there is insufficient proof of the school
district’s deliberate indifference to the alleged harassment
to proceed beyond summary judgment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-14-03