UNPUBLISHED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Affirmed by unpublished per curiam opinion.
2

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Unpublished opinions are not binding precedent in this circuit.
3

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.
4

“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.
5

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.
6

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.
7

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, 
8

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 
9

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. 
10

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 
11

“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; posttraumatic 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.
12

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 
13

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. 
14

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 inschool 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).
15

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.
16

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 
17

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-onstudent 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 
18

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.
19

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.
20

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 
21

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 
22

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 
23

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 
24

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 
25

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)
26

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.
27

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