1

The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota, sitting by designation.

2

The Honorable Robert T. Dawson, United States District Judge for the Western

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-2570

___________

William Wolfe, *

*

Appellant, *

* Appeal from the United States 

v. * District Court for the Western

* District of Arkansas.

Fayetteville, Arkansas School District, *

*

Appellee. *

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Submitted: June 14, 2011

 Filed: August 9, 2011

___________

Before BYE and MELLOY, Circuit Judges, and ERICKSEN,1

 District Judge.

___________

BYE, Circuit Judge.

William Wolfe filed suit against the Fayetteville, Arkansas School District

alleging he was a victim of sexual harassment in violation of Title IX, 20 U.S.C.

§ 1681. After the district court2

 denied the school district’s motion for summary

judgment, the case proceeded to trial. A twelve-member jury issued a verdict in favor

of the school district. Wolfe moved for a new trial, but the district court denied the
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motion. Wolfe appeals alleging the district court erroneously instructed the jury and

further erred in empaneling a twelve-member jury as opposed to a six-member jury.

Finding no error, we affirm the district court.

I

William Wolfe was a student in the Fayetteville, Arkansas School District

(“FSD”) until tenth grade. Between his sixth-grade and tenth-grade years, from 2003

to 2008, Wolfe was ridiculed at the hands of his fellow students on numerous

occasions. Beginning in sixth grade, Wolfe was harassed several times per week

including pushing, shoving, name-calling, and being falsely labeled as homosexual.

The name-calling included gender-based epithets such as “faggot,” “queer bait,” and

“homo,” among others. Over the years, the harassment escalated. In seventh grade,

Wolfe was punched and had his head slammed into a window while riding the school

bus. In ninth grade, his classmates created a Facebook page called “Every One [sic]

That Hates Billy Wolfe.” The picture for the Facebook group showed Wolfe’s face

photo-shopped onto a figure in a green fairy costume with the word

“HOMOSEXUAL” written across it. Additionally, Wolfe’s classmates graffitied

highly offensive, homosexual accusations about Wolfe on bathroom walls and in

classroom textbooks. During Wolfe’s last year with FSD, his tenth grade year, Wolfe

got in a fight with a classmate, and two days later the classmate jumped out of a car

and punched Wolfe while he was walking home from school.

While it does not deny these incidents of harassment, FSD insisted the motive

underscoring the misconduct was not sex-based. Wolfe’s fellow students and teachers

explained they did not perceive Wolfe as homosexual and they believed he conformed

to typical male gender stereotypes. Wolfe’s classmates explained their use of the

homosexual name-calling was not intended to attack Wolfe’s sexuality, but rather was

an angered response to Wolfe’s mistreatment of other students. Several classmates

suggested they accosted Wolfe because he had previously bullied a friend of theirs
3

Byron Zeagler, Vice Principal of Woodland Junior High School during the

2005-2006 and 2006-2007 school years and then Vice Principal of Fayetteville High

School during the 2007-2008 school year, was also named as a defendant, in his

official and individual capacity, in the initial complaint. However, Wolfe dismissed

the claims against Zeagler before trial and Zeagler is not a party to this appeal.

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suffering from cerebral palsy. FSD also indicated most of the classmates who

engaged in altercations with Wolfe lacked any prior disciplinary history other than

their confrontations with Wolfe.

Although Wolfe reported each of these incidents and others to the school, they

were never reported to the school district’s Title IX Coordinator or the Equity

Compliance Officer because the school felt the incidents fell into the category of

bullying and not sexual harassment. FSD felt it took appropriate steps in response to

each of Wolfe’s claims despite not reporting the incidents to the Title IX Coordinator

or Equity Compliance Officer because it explored and documented every reported

incident, removed graffiti, and reviewed bullying policies with students and teachers.

However, Wolfe was not satisfied with the school’s responsiveness, and after the

tenth-grade incident in which Wolfe was violently punched walking home from

school, he filed suit against the classmates who accosted him. The suit, coupled with

a video of the incident available on the internet, led to considerable media attention.

Wolfe was interviewed by The New York Times, The Today Show, 20/20, and Dateline

in the spring of 2008. Following this media attention, Wolfe was assigned a coach to

follow him during school, but he still felt unsafe and decided instead to pursue a GED

from home.

Wolfe filed the present suit against FSD3

 following his departure from school

in the spring of 2008. He alleged he was the victim of sex discrimination in the form

of sexual harassment in violation of Title IX, 20 U.S.C. § 1681. Wolfe also raised

various other federal and state law claims not relevant to this appeal. FSD moved for

summary judgment, but the district court denied the motion. FSD then requested the
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district court empanel a twelve-person jury because “the nature of the case and the

attention it had received” created “a significant possibility that passion or prejudice

could improperly influence a smaller jury.” Although Wolfe opposed the request, the

district court empaneled a twelve-person jury and the case proceeded to trial. At the

conclusion of trial, Wolfe and FSD each offered jury instructions on the Title IX

claim. The district court declined to adopt either parties’ instruction and instead chose

another set of instructions which it concluded more closely paralleled the language of

Title IX. Thereafter, the jury returned a verdict in favor of FSD on all claims.

Following the verdict, Wolfe brought a motion for a new trial alleging the district

court improperly instructed the jury and also erred in empaneling a twelve-person

jury. After the district court denied the motion for a new trial, Wolfe appealed on

each of these issues.

II

Wolfe first raises a two-fold jury instruction challenge. He contends the district

court improperly instructed the jury and thereby added an element not legally required

in Title IX claims to his burden of proof, and the district court improperly denied

Wolfe an instruction on his theory of the case. We begin with the former contention.

A

“[T]he purpose of giving instructions is to inform the jury of the essential issues

before them and of the various permissible ways of resolving those issues.” Fed.

Enters., Inc. v. Greyhound Leasing & Fin. Corp., 786 F.2d 817, 820 (8th Cir. 1986).

We recognize the district court has broad discretion in choosing the form and language

of the jury instructions, and we review instructions for an abuse of discretion. Cook

v. City of Bella Villa, 582 F.3d 840, 857 (8th Cir. 2009); Boesing v. Spiess, 540 F.3d

886, 890 (8th Cir. 2008). The focus of our review is “whether the instructions, viewed

on the whole, fairly and adequately represent the evidence and applicable law in light
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of the issues presented to the jury in a particular case.” Weitz Co. v. MH Wash., 631

F.3d 510, 533 (8th Cir. 2011); see also Wheeling Pittsburgh Steel Corp. V. Beelman

River Terminals, Inc., 254 F.3d 706, 711 (8th Cir. 2001) (“The standard for reviewing

alleged errors in jury instructions is whether the instructions, taken as a whole and

viewed in the light of the evidence and applicable law, fairly and adequately submitted

the issues in the case to the jury.”) (internal quotation marks and citations omitted).

It is therefore error for the district court to provide the jury with instructions

misstating the law. Ryther v. KARE 11, 108 F.3d 832, 850 (8th Cir. 1997) (en banc).

A review of the applicable law is thus in order. Wolfe’s claim is premised on

a violation of Title IX, which states, “[n]o person in the United States shall, on the

basis of sex, . . . be subjected to discrimination under any education program or

activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). As a recipient

of federal funds, FSD is subject to liability for violations of Title IX, but only for

damages arising from its own misconduct. Ostrander v. Duggan, 341 F.3d 745, 750

(8th Cir. 2003). Consequently, the school district can only be liable for student-onstudent harassment if it was “(1) deliberately indifferent (2) to known acts of

discrimination (3) which occur under its control.” Shrum ex rel. Kelly v. Kluck, 249

F.3d 773, 782 (8th Cir. 2001) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274, 290-91 (1998); Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526

U.S. 629, 642 (1999)). Per the language of Title IX, these “acts of discrimination”

must be “on the basis of sex.” Harassment can constitute discrimination if it 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” and if

the school district has “actual knowledge” of the harassment. Davis, 526 U.S. at 650.

In accordance with this law, the district court instructed the jury that for Wolfe

to prevail, he must prove:

(1) He was harassed on the basis of sex;
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(2) The harassment was so severe, pervasive, and objectively

offensive that it effectively deprived him of access to educational

benefits or opportunities provided by the Fayetteville School District;

(3) The Fayetteville School District had actual knowledge of the

harassment; and 

(4) The Fayetteville School District acted with “deliberate

indifference” to the known acts of harassment.

Jury Instruction No. 9, Appellant’s Add. at 9 (emphasis added). The instructions then

defined “on the basis of sex” as “sex-based harassment,” and explained,

To constitute sex-based harassment under Title IX, the harasser must be

motivated by Wolfe’s gender or his failure to conform to stereotypical

male characteristics. If you find that the harassers were so motivated,

then you may conclude that the harassment was based on his gender. If

you find that the harassers were not so motivated, then you may not

conclude the harassment was based on his gender.

Jury Instruction No. 10, Appellant’s Add. at 10 (emphasis added).

The district court’s instructions parallel the language of Title IX, “on the basis

of sex,” and correctly state each of the elements of a Title IX deliberate indifference

claim as developed by case law. Consequently, Wolfe’s only alleged error in these

instructions is the definition of “sex-based harassment.” According to Wolfe,

discrimination “on the basis of sex” does not necessarily require a harasser to “be

motivated by Wolfe’s gender or his failure to conform” with gender stereotypes

because neither the language of Title IX nor case law on Title IX claims suggests

motivation is a necessary element. Instead, Wolfe suggests it would be sufficient

under Title IX to show the harassers used name-calling and spread rumors in an effort

to debase his masculinity and thus contends the district court erred in instructing the

jury it had to find gender or the failure to conform to gender stereotypes as the

harasser’s motivation to hold FSD liable.
4

Although Oncale is a Title VII case, many of the other circuits have found Title

VII cases to provide guidance in evaluating Title IX claims, and we agree. See, e.g.,

Gossett v. Okla. ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th

Cir. 2001) (“Courts have generally assessed Title IX discrimination claims under the

same legal analysis as Title VII claims.”); Weinstock v. Columbia Univ., 224 F.3d 33,

42 n.1 (2d Cir. 2000) (suggesting Title VII standards may also apply to discrimination

claims under Title IX); Oona R.-S.- v. McCaffrey, 143 F.3d 473, 476 (9th Cir. 1998)

(concluding it comports with leading Supreme Court precedent to apply Title VII

principles to Title IX claims because the Supreme Court has “likened the duties of a

school district to remedy sexual harassment under Title IX, to the Title VII duties of

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We find Wolfe’s position unpersuasive. Whether a plaintiff must prove sexbased motivation as part of a Title IX deliberate inference claim has not yet been

squarely addressed by this court or any other federal appellate court. However, guided

by the language of Title IX and persuasive authority, we hold proof of sex-based

motivation is required for a Title IX deliberate indifference claim. Specifically, Title

IX imposes liability on a school district for discrimination only if the discrimination

is “on the basis of sex.” We glean from this language of the statute a requirement of

underlying intent, and therefore motivation, on the part of the actor to discriminate

because of one’s sex or gender. See Contemporary Indus. Corp. v. Frost, 564 F.3d

981, 984 (8th Cir. 2009) (“To resolve these questions of statutory interpretation, we

begin, as always, by looking to the relevant statutory text.”); Kalich v. AT&T

Mobility, LLC, 748 F. Supp. 2d 712, 718-19 (E.D. Mich. 2010) (citing Michigan law

interpreting “on the basis of sex” to include requirement of proof of motivation in that

“the plaintiff must show that but for his sex, he would not have been the object of

harassment”) (internal quotation marks and citation omitted).

Our reading of Title IX as requiring proof of the underlying motivation for the

discrimination is consistent with the Supreme Court’s analyses in Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), and Davis v. Monroe County

Board of Education, 523 U.S. at 629. In Oncale, the Supreme Court addressed the

issue of if and when same-sex harassment can be actionable under Title VII.4

 In
an employer.”) (citing Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 75 (1992));

Torres v. Pisano, 116 F.3d 625, 630 n.3 (2d Cir. 1997) (“We have held that Title VII

principles apply in interpreting Title IX.”).

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concluding sex-based harassment can occur between two people of the same gender,

the Court provided some guidance as to what types of harassment may constitute

actionable discrimination. 523 U.S. at 80. It explained Title VII does not “prohibit

all verbal or physical harassment . . .; it is directed only at discriminat[ion] . . . because

of . . . sex.” Id. (internal quotation marks omitted). The Court was careful to

emphasize it “ha[s] never held . . . harassment . . . is automatically discrimination

because of sex merely because the words used have sexual content or connotations,”

and instead, a plaintiff must prove the conduct at issue “constituted discrimination

because of sex” and was not just “merely tinged with offensive sexual connotations.”

Id. at 80-81 (internal alterations omitted); see also King v. Super Serv., Inc., 68 F.

App’x 659, 664 (6th Cir. 2003) (holding a plaintiff might also prove “discrimination

on the basis of sex” by showing the sex-specific and derogatory terms used make clear

“the harasser was motivated by general hostility to the presence of men in the

workplace”) (citing Oncale, 523 U.S. at 80).

We recognize Oncale is a Title VII case and is premised on different language

than a Title IX case. Specifically, Title VII requires a plaintiff to prove

“discriminat[ion] . . . because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), whereas Title

IX requires proof of discrimination “on the basis of sex.” But, these two phrases are

treated interchangeably. See 42 U.S.C. § 2000e(k) (providing the same definition for

both “because of sex” and “on the basis of sex”); Wierman v. Casey’s Gen. Stores,

638 F.3d 984, 993 (8th Cir. 2011) (stating “Title VII . . . prohibits discrimination in

employment on the basis of sex” even though the language of Title VII protects from

discrimination because of sex) (emphasis added). Thus, the Supreme Court’s

interpretation of Title VII properly informs our examination of Title IX, and we are

persuaded by Oncale’s implication as to the Title VII language “discriminat[ion] . . .
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because of . . . sex” requiring a plaintiff to prove a gender-based motive for alleged

harassment is equally applicable to Title IX cases.

In fact, the Supreme Court alluded to this conclusion in the Title IX case Davis

v. Monroe County Board of Education. It was in Davis the Supreme Court first

addressed whether a school district could be liable for student-on-student harassment

where the school did not actively engage in any discrimination. The Court concluded

a school could be liable for such harassment under Title IX if the school was

deliberately indifferent to known acts of harassment despite having the authority to

take remedial measures. 526 U.S. at 642-44. In reaching this conclusion, the Court

went on to define “actionable harassment” for which a school may be liable for

damages under Title IX. In relevant part, the Court indicated that to be actionable,

harassment taking place in the school environment must be “gender-oriented conduct”

amounting to more than “simple acts of teasing and name-calling among school

children . . . even where these comments target differences in gender.” Id. at 651-52

(cautioning courts to be mindful of the fact “schools are unlike the adult workplace,”

“children may regularly interact in a manner that would be unacceptable among

adults,” and “in the school setting, students often engage in insults, banter, teasing,

shoving, pushing, and gender-specific conduct” that does not rise to the level of

discrimination). Even though the discussion surrounding this language is addressing

the requisite severity of the harassment, we read it, in conjunction with Oncale, to

imply acts of name-calling do not amount to sex-based harassment, even if the words

used are gender-specific, unless the underlying motivation for the harassment is

hostility toward the person’s gender. See Sanches v. Carrollton-Farmers Branch

Indep. Sch. Dist., — F.3d —, 2011 WL 2698975, at *6 (5th Cir. July 13, 2011)

(stating harassment is actionable under Title IX only if it is “based on sex, per the

words of Title IX, and not merely tinged with offensive sexual connotations” and

affirming summary judgment where record fails to suggest the harasser “was

motivated by anything other than personal animus”) (internal quotation marks and

citation omitted); see also Patterson v. Hudson Area Schs., 724 F. Supp. 2d 682, 691
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(E.D. Mich. 2010) (instructing the jury to find “the offending student’s actions [to be]

motivated by [the plaintiff’s] sex or gender” in order to hold the school district liable

in a Title IX deliberate indifference claim).

Ultimately, based on our reading of Oncale, Davis, and Title IX, we are

convinced to recover on his Title IX deliberate indifference claim, Wolfe had to prove

the harassment complained of amounted to more than mere name-calling; he was

legally required to show the harasser intended to discriminate against him “on the

basis of sex,” meaning the harassment was motivated by either Wolfe’s gender or

failure to conform with gender stereotypes. Thus, we conclude the district court did

not err when it instructed the jury “the harasser must be motivated by Wolfe’s gender

or his failure to conform to stereotypical male characteristics.” This instruction is

consistent with the applicable law.

B

Moving now to the second part of Wolfe’s jury instruction challenge, Wolfe

contends the district court erred in declining to offer his proposed jury instruction

encompassing his theory of the case. “‘[A] party is entitled to an instruction on its

theory of the case so long as it is legally correct and there is factual evidence to

support it.’” Rahn v. Hawkins, 464 F.3d 813, 818 (8th Cir. 2006) (quoting Thornton

v. First State Bank of Joplin, 4 F.3d 650, 652 (8th Cir. 1993)). According to Wolfe,

he proposed an instruction on his theory of the case and under Rahn, the district court

erred in rejecting it. Wolfe’s instruction provided, “Harassment may be sex-based . . .

when it includes spreading rumors or name-calling that falsely labeled [Wolfe] as a

homosexual in an effort to debase his masculinity or when [Wolfe] did not meet his

peers’ stereotyped expectations of masculinity.” Proposed Instruction, Appellant’s

Add. at 8. However, Wolfe misreads Rahn to reach the conclusion he is entitled to his

proposed instruction. Rahn entitles a party to “an instruction on its theory of the

case,” not necessarily to the party’s offered instruction. 464 F.3d at 818 (emphasis
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added); see also Fed. Enters., Inc., 786 F.2d at 820 (“[W]e accord a district judge

broad discretion in choosing the form and language of the jury instructions.”).

Moreover, Rahn only entitles a party to “an instruction on its theory of the case” if the

theory is “legally correct.” 464 F.3d at 818 (emphasis added); see also Smith v. Tenet

Healthsys. SL, Inc., 436 F.3d 879, 886 (8th Cir. 2006) (holding the district court did

not abuse its discretion in refusing to give plaintiff’s instruction because it misstated

the applicable law).

We do not find Wolfe’s proposed instruction to be consistent with the law. The

case theory presented in Wolfe’s instruction suggests a valid claim of discrimination

“on the basis of sex” exists where one student spreads harassing rumors about another

student, or engages in name-calling which attacks the student’s masculinity.

However, Wolfe’s position that mere name-calling and rumors with sexual

connotations are sufficient to meet Title IX is contrary to both Supreme Court cases

discussed above: Oncale, 523 U.S. at 80 (holding that plaintiff must show the

“conduct at issue was not merely tinged with offensive sexual connotations, but

actually constituted ‘discrimination because of sex’”) (emphasis and alterations

omitted), and Davis, 526 U.S. at 652 (concluding Title IX does not provide relief for

“simple acts of teasing and name-calling among school children . . . even where these

comments target differences in gender”).

Further, Wolfe has failed to point to any legal authority holding the mere use

of sex-based language in rumors or name-calling per se establishes sex-based

discrimination. Wolfe does cite Schmedding v. Tnemec Co., 187 F.3d 862, 865 (8th

Cir. 1999), a Title VII case, contending it holds the use of rumors falsely labeling the

plaintiff as a homosexual in an effort to debase his masculinity establishes sex-based

discrimination. However, we do not join in Wolfe’s interpretation of the case. The

issue presented in Schmedding was whether including allegations of homosexual

name-calling and the spreading of rumors about Schmedding’s “perceived sexual

preference” converted a claim of harassment based on sex—which would be
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actionable—to a claim based on sexual orientation—which may not have been

actionable. Id. We explained, “we do not think that, simply because some of the

harassment alleged by Schmedding includes taunts of being homosexual or other

epithets connoting homosexuality, the complaint is thereby transformed from one

alleging harassment based on sex to one alleging harassment based on sexual

orientation.” Id. Ultimately, because Schmedding expressed willingness to remove

the language suggesting the harassment was based on his “perceived sexual

preference,” thereby leaving only allegations the harassment was based on sex, we

remanded the case to permit Schmedding to amend his complaint and proceed with

the case. Id. The language on which Wolfe relies was not a holding of the court, but

rather the court’s paraphrasing of Schmedding’s argument on appeal:

Although Schmedding concedes that the use of the phrase ‘perceived

sexual preference’ may have been confusing, he asserts that the phrase

indicates or shows that the harassment included rumors that falsely

labeled him as homosexual in an effort to debase his masculinity, not that

he was harassed because he is homosexual or perceived as being

homosexual.

Id. (emphasis added). Thus, contrary to Wolfe’s argument, Schmedding does not

establish any rule suggesting rumors or name-calling falsely labeling someone as a

homosexual are per se indications of harassment on the basis of sex. At best,

Schmedding holds such harassment does not convert an otherwise viable claim of sexbased harassment to one of sexual-orientation-based harassment.

Because the instruction provided by the district court accurately portrayed the

law underlying Wolfe’s Title IX claim and because Wolfe was not entitled to an

instruction on his theory of the case since it does not comport with the law, we

conclude the district court did not abuse its discretion.
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III

Turning to Wolfe’s second issue on appeal, he argues the district court erred in

empaneling twelve jurors rather than six because having a higher number of jurors

increased his burden of persuasion in order to acquire a unanimous verdict. However,

as Wolfe conceded at oral argument, it is within the district court’s discretion to select

“at least 6 and no more than 12 members” for a jury. Fed. R. Civ. P. 48(a); see also

Krumwiede v. Mercer Cnty. Ambulance Serv., Inc., 116 F.3d 361, 363 (8th Cir. 1997)

(holding the district court’s decision to empanel a six-member jury is consistent with

Rule 48); Montiel v. City of Los Angeles, 2 F.3d 335, 338 (9th Cir. 1993) (holding

“[t]he rule clearly states that a district court may empanel between six and twelve

jurors. Nothing in the Committee Notes to the rule or the case law interpreting the

rule suggests that a court opting for a twelve-member jury violates the rule”). We

consequently see no merit in Wolfe’s argument and find no error in the district court’s

decision. Accordingly, we uphold the district court’s decision to empanel a twelveperson jury.

IV

For the foregoing reasons, we affirm.

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