The Honorable D. Brook Bartlett, Chief Judge, United States District Court for 1

the Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1709

___________

Jennifer Bosley, By and through *

her Mother and Next Friend, and *

individually, * Appeal from the United States

Plaintiff - Appellant, * Western District of Missouri.

 v. *

Kearney R-1 School District, *

Defendant - Appellee.

* District Court for the

*

*

*

___________

Submitted: December 8, 1997

 Filed: April 3, 1998

___________

Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.

___________

HANSEN, Circuit Judge.

Jennifer Bosley (Jennifer) appeals the district court’s grant of

1

judgment as a matter of law to the Kearney R-1 School District (the school

district) following a jury verdict in favor of Jennifer on her Title IX

student-on-student sexual harassment claim. Jennifer also appeals the

district court’s prior order granting summary judgment to the school

district on her § 1983 claim. We affirm.
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I

 The present lawsuit stems from events that occurred while Jennifer

was a student at Kearney Elementary School and Kearney Intermediate School,

schools in the Kearney R-1 School District. Viewing the facts in the light

most favorable to the jury verdict, the following transpired. In the fall

of 1991, when Jennifer was in the third grade, a boy riding on her school

bus, Michael, was drawing pictures of naked girls. Jennifer’s mother (Mrs.

Bosley) complained to school officials about these drawings and talked to

Joy Torgerson, Michael’s principal. Mrs. Bosley testified that Torgerson

told her that “boys will be boys,” but that she would talk to Michael.

(Trial Tr. at 309.) Also in the fall of 1991, a boy in Jennifer’s class

touched Jennifer on her bottom while the two were at recess. Jennifer told

her third grade teacher, Cheryl Herndon, about this touching. Herndon

immediately disciplined the boy, and the boy never again touched Jennifer

inappropriately.

On March 4, 1992, while Jennifer was riding on the school bus,

Michael took a hand drawn picture of a boy and a girl out of Jennifer’s

backpack and drew genitalia on the picture. He then passed the picture

around the bus. The bus driver, Sandy Sproat, questioned Jennifer about

the picture. Jennifer testified that she told Sproat that she had drawn

only the outline of the bodies. Sproat testified that Jennifer told her

the picture belonged to her and that she had drawn the entire picture.

According to Sproat, Jennifer did not say that another student had drawn

on any part of the picture. Sproat issued bus misconduct notices to both

Jennifer and Michael for violating the school district’s rules for riding

the bus. This was Jennifer’s third and Michael’s fourth bus misconduct

notices of the school year.

Jennifer’s bus misconduct notice was sent to her elementary school

principal, Richard Whitford. Jennifer testified that she told Whitford

that she had not drawn the genitalia on the picture. Whitford claimed that

Jennifer admitted drawing the entire picture. As punishment, Whitford made

Jennifer miss recesses for three days. 
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When Jennifer brought the bus misconduct notice home for her mother’s

signature, her mother sent a message to Principal Whitford that Jennifer

had not drawn the entire picture and that Michael had added the genitalia.

Whitford then contacted Torgerson, the principal of the intermediate school

Michael attended, and informed her of Mrs. Bosley’s contentions. Torgerson

then spoke with Sproat and Michael about the picture incident. Torgerson

testified that Michael admitted he passed the picture around, but denied

having drawn any part of it. Torgerson punished Michael by requiring him

to miss one week of recess and serve one week on lunch duty. She also

contacted his parents. Torgerson stated that this punishment was more

appropriate than suspending Michael from riding the school bus, a possible

punishment for a fourth bus misconduct notice, for two reasons. First, she

believed a bus suspension was not an effective punishment for children

Michael’s age. Second, because Michael’s parents worked, she was concerned

that Michael may not attend school during any suspension period.

In September 1992, when she was in the fourth grade, Jennifer

overheard boys on the school bus talking about sex and people having

babies. Mrs. Bosley complained to Torgerson about this behavior. After

an investigation, Torgerson determined that the boys had been making

inappropriate remarks on the bus. She disciplined the boys by requiring

them to ride in the front of the bus and by informing their parents of the

inappropriate behavior. Torgerson then explained the situation to Mrs.

Bosley. She also asked Mrs. Bosley to notify her if she had any further

concerns or complaints. Mrs. Bosley did not inform Torgerson of any

further concerns or complaints.

 

Torgerson also determined that additional adult riders should

periodically ride the school bus to monitor the students’ behavior.

Adults, including Torgerson, rode the bus on numerous occasions. The

school district met with bus drivers to discuss steps to take to improve

student conduct on the bus. The school district also developed a system to

give positive reinforcement to students who conducted themselves properly

while riding on the bus.
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In the early part of the 1992 school year, a boy riding with Jennifer

on the school bus made inappropriate sexual remarks about Freddy Kruger, a

fictional character in the horror movie “Friday the Thirteenth.” Another

student informed the bus driver about the remarks and the driver told the

boy to stop and the boy then stopped making the inappropriate remarks. On

another day during the 1992 school year, a boy on the bus directed

inappropriate remarks about sex to a girl sitting next to Jennifer. On

another occasion, a boy on Jennifer’s bus told Jennifer and her brother,

who was also riding the bus, that they were homosexuals. Jennifer

testified that she “vaguely” remembered the bus driver telling the boy to

stop and that the boy eventually stopped calling her a homosexual. (Trial

Tr. at 34.)

Jennifer testified that early in the 1993-94 school year, when she was

in the fifth grade, Justin, a fellow student, directed offensive remarks

toward her about AIDS and sex while she was at recess. Jennifer told the

principal about Justin’s remarks. The principal talked to both Jennifer

and Justin about the incident. Justin denied that he had made the

offensive comments, but the principal believed Jennifer’s account of the

incident and disciplined Justin by giving him an in-school suspension, a

punishment Jennifer admitted was severe.

Mrs. Bosley testified that, with the exception of the picture incident

on March 4, 1992, all of the complaints that she had made to the school

regarding alleged sexual harassment of her daughter were being taken care

of by the school district. In October 1993, Mrs. Bosley removed Jennifer

and her brother from the Kearney School District. Jennifer testified that

she was often afraid and intimidated when she attended school in the

Kearney district, but that she was much happier at the school she now

attends. 

Jennifer, by and through her mother, sued the school district

asserting various causes of action, including claims under Title IX, 20

U.S.C. § 1681 (1994), and 42 U.S.C. § 1983 for violations of her federal

statutory and constitutional rights arising from the school district’s

alleged discrimination against her for its failure to remedy and
The circuits that have addressed this issue are not in agreement. Compare Davis 2

v. Monroe County Bd. of Educ., 120 F.2d 1390, 1406 (11th Cir. 1997) (en banc)

(holding a school district may not be held liable for student-on-student sexual

harassment under Title IX), petition for cert. filed, 66 U.S.L.W. 3387 (U.S. Nov. 19,

1997) (No. 97-843), with Doe v. University of Ill., Nos. 96-3511, 96-4148, 1998 WL

88341, at *8 (7th Cir. Mar. 3, 1998) (holding a public high school may be held liable

for student-on-student sexual harassment under Title IX), Brzonkala v. Virginia

Polytechnic Inst., 132 F.3d 949, 961 (4th Cir. 1997) (holding a public university may

be held liable under Title IX for a student-on-student sexual assault), rehearing en banc

granted, opinion vacated (4th Cir. Feb. 5, 1998), and Rowinsky v. Bryan Indep. Sch.

Dist., 80 F.3d 1006, 1016 (5th Cir.) (holding a school district may be held liable under

Title IX for student-on-student sexual harassment if the student demonstrates the school

responded to claims differently based on sex), cert. denied, 117 S. Ct. 165 (1996). 

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prevent the sexual harassment of her by other students. The school district

moved for summary judgment on all claims. The district court, in a

published opinion, granted the school district summary judgment on

Jennifer’s § 1983 claim and other state law causes of action, but denied

relief on Jennifer’s Title IX claim, concluding that she had created a

genuine issue of material fact regarding whether the school district

reasonably and adequately responded to the sexual harassment complaints.

Bosley v. Kearney R-1 Sch. Dist., 904 F. Supp. 1006, 1029 (W.D. Mo. 1995).

Jennifer’s Title IX claim was then tried before a jury. The school

district moved for judgment as a matter of law at the close of Jennifer’s

case, and the district court denied the motion. The school district again

moved for judgment as a matter of law at the close of all evidence. The

district court reserved ruling on this motion and submitted the case to the

jury. The jury returned a verdict in favor of Jennifer for $5,000. The

district court then granted the school district’s motion for judgment as a

matter of law, ruling that a jury could not reasonably conclude that the

school district intentionally discriminated against Jennifer on the basis

of her sex. 

II

We initially stress what issues we do not resolve in this case. We

need not and do not determine whether public school districts or public

school officials may be held liable pursuant to Title IX for their failure

to prevent or remedy student-on-student sexual harassment. We assume

without deciding, for the purposes of this case only, that a school

district may be held liable under Title IX for such harassment. We 2
We note that we have held that the “knew or should have known” standard,

3

used in Title VII sexual harassment cases to determine if an employer is liable for the

sexual harassment of an employee, is also the standard used to determine whether a

school district is liable for teacher-on-student sexual harassment. See Kinman v.

Omaha Pub. Sch. Dist., 94 F.3d 463, 469 (8th Cir. 1996). The courts that recognize

Title IX student-on-student sexual harassment claims have formulated various standards

for determining if the educational institution should be held liable. At least one court

requires that a plaintiff need only prove that the school “knew or should have known”

of the student-on-student sexual harassment and failed to take prompt and appropriate

remedial action. See Brzonkala, 132 F.3d at 960. Another court requires that the

plaintiff prove that the school had actual knowledge of the harassment and that the

school failed to take prompt, appropriate remedial action. See Doe, 1998 WL 88341,

at *8. Other courts require the plaintiff to prove that the school knew of the harassment

and intentionally failed to take corrective action because of the plaintiff’s sex. See,

e.g., Burrow v. Postville Comm. Sch. Dist., 929 F. Supp. 1193, 1205-06 (N.D. Iowa

1996). Still another court requires the plaintiff to prove that the school itself directly

discriminated on the basis of sex—i.e., responded differently to complaints of

harassment made by girls than to those made by boys. Rowinsky, 80 F.3d at 1016. 

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therefore need not and do not determine what elements a plaintiff must

prove in order to hold a school district liable in a Title IX student-onstudent sexual harassment claim. We assume without deciding that the

elements a plaintiff must prove for such a claim are those set forth in the

jury instructions used in this case, which are not challenged on appeal.3

We now address the parties’ contentions on appeal.
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A. 

Jennifer argues that the district court erred in granting judgment as

a matter of law in favor of the school district on her Title IX student-onstudent sexual harassment claim after the jury returned a verdict in her

favor. “We review de novo the district court’s grant of judgment as a

matter of law, viewing the facts and resolving any conflicts in the light

most favorable to the jury verdict.” Deneen v. Northwest Airlines, Inc.,

132 F.3d 431, 439 (8th Cir. 1998).

Title IX provides that “[n]o person in the United States shall, on the

basis of sex, be excluded from participation in, be denied the benefits of,

or be subjected to discrimination under any educational program or activity

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

(1994). In Cannon v. University of Chicago, 441 U.S. 677, 709 (1979), the

Supreme Court held that Title IX creates an implied private cause of action

against a recipient of federal funds for discrimination on the basis of

sex. In Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76 (1992), a

case involving the sexual harassment and assault of a high school student

by a teacher, the Court held that a remedy of money damages is available in

a Title IX action.

Jennifer sought money damages for the school district’s alleged

discrimination against her in violation of Title IX for the school

district’s failure to remedy and prevent the sexual harassment of her by

other students. The jury was instructed that in order to find for Jennifer

on her Title IX student-on-student sexual harassment claim, it had to find

the following. First, that Jennifer was subjected to conduct that “was

directed at [Jennifer] because she is a female or affected [Jennifer’s]

educational environment because she is a female.” (Appellant’s App. at 15,

Jury Instruction No. 12.) Second, that this conduct was unwelcome to

Jennifer and was “sufficiently severe or persistent that a reasonable

student in [Jennifer’s] circumstances would believe that her educational

environment was hostile or abusive.” (Id. at 15-16.) Third, that as a

result of this conduct Jennifer viewed the educational environment to be

hostile or abusive.
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(Id. at 16.) Fourth, that the school district knew that Jennifer was being

subjected to this conduct and “intentionally failed to take appropriate

action to end the conduct.” (Id.) The jury was also instructed that the

verdict must be for the school district unless the school district

“intentionally treated [Jennifer] differently than other students because

of her sex by intentionally allowing her to be subjected to a sexually

hostile environment.” (Id. at 17, Jury Instruction No. 13.) Jennifer does

not claim that these instructions are erroneous and, as mentioned above, we

assume, only for purposes of deciding this appeal, that they are proper.

Jennifer claims that there was sufficient evidence for the jury to

reasonably find she had proven each of the elements listed above.

Specifically, she contends that there is sufficient evidence for the jury

to draw a reasonable inference that the school district intentionally

treated her differently than other students because of her sex by

intentionally allowing her to be subjected to a sexually hostile

environment. After carefully studying the record, we reject this

contention.

Our review of the record convinces us that there is insufficient

evidence to support the jury’s verdict. Jennifer simply failed to present

any evidence from which a jury could reasonably conclude that “because of

[Jennifer’s] sex” the school district “intentionally allow[ed] her to be

subjected to a sexually hostile environment” as required by the jury

instructions. (Appellant’s App. at 17, Jury Instruction No. 13.) The only

evidence in the record even remotely showing that the school district

treated Jennifer’s complaints differently because she is female is

Principal Torgerson’s statement to Mrs. Bosley that “boys will be boys.”

This statement, made in response to Mrs. Bosley’s complaint about a boy

drawing inappropriate pictures while on the school bus, was immediately

followed by Torgerson’s statement that she would talk to the boy who drew

the inappropriate pictures. In the circumstances of this case, Torgerson’s

“boys will be boys” statement cannot support a reasonable inference that

the school district’s actions in response to the complaints regarding the

harassment of Jennifer were impermissibly motivated by Jennifer’s sex. See

Seamons v. Snow, 84
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F.3d 1226, 1233 (10th Cir. 1996) (holding “boys will be boys” statement by

football coach was insufficient to show sex discrimination by school

officials). The district court properly granted the school district’s

motion for judgment as a matter of law.

B.

Jennifer next argues that the district court erred in granting

summary judgment to the school district on her § 1983 claim. The school

district asserts that Jennifer’s failure to designate the district court’s

summary judgment order in her notice of appeal requires this court to

dismiss this claim for lack of jurisdiction, citing Federal Rule of

Appellate Procedure 3(c). Jennifer made no response to the school

district’s jurisdictional argument in her reply brief. We agree with the

school district and therefore do not reach this claim for lack of

jurisdiction.

Jennifer’s notice of appeal states, in its entirety, the following:

Notice is hereby given that all plaintiffs hereby appeal

to the United States Court of Appeals for the Eighth Circuit

from the final Judgment entered on January 27, 1997 and the

Order filed on January 24, 1997 (attached hereto respectively

as exhibits “A” and “B”).

(Appellant’s App. at 80.) The January 27, 1997, judgment was the district

court’s judgment as a matter of law for the school district and the order

of January 24, 1997, was the order granting the school district’s motion

for judgment as a matter of law. 

Federal Rule of Appellate Procedure 3(c) provides that a notice of

appeal “must designate the judgment, order, or part thereof appealed from.”

We have stated that this requirement “is more than a mere technicality, and

that deficiencies therein may create a jurisdictional bar to an appeal.”

ELCA Enters., Inc. v. Sisco Equip. Rental & Sales, Inc., 53 F.3d 186, 189

(8th Cir. 1995) (citing Klaudt v. United States Dep’t of Interior, 990 F.2d

409, 411 (8th Cir. 1993)). In Klaudt, the plaintiffs filed an eight-count
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complaint. The district court dismissed five of the counts for failure to

state a claim upon which relief could be granted. One year later, the

district court dismissed the remaining claims for failure to exhaust

administrative remedies. The plaintiffs specifically appealed this second

order, but their notice of appeal failed to specifically state that they

were appealing from the district court’s first order. We held that

although the rules of appellate procedure should be liberally construed,

the omission from the notice of appeal of any reference to the first order

was “more than a mere technical deficiency.” Klaudt, 990 F.2d at 411. The

omission created a “jurisdictional bar” to our consideration of the

appellants’ arguments regarding the first order. Id.

The present case is indistinguishable from Klaudt. Like the

plaintiffs in Klaudt, Jennifer failed to provide any reference in her

notice of appeal to the district court’s order granting the school district

summary judgment on Jennifer’s § 1983 claim. This order, like the first

order in Klaudt, is separate and distinct from the district court’s

subsequent post-trial order granting the school district judgment as a

matter of law on Jennifer’s Title IX claim. Therefore, we do not have

jurisdiction to review the district court’s order granting summary judgment

to the school district on Jennifer’s § 1983 claim.

III

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.