## 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 o f 1 judgment as a matter of law to the Kearney R-1 S chool District (the school district) following a jury verdict in favor of Jennifer on her Title I X stud ent-on-student sexual harassment claim. Jennifer also appeals th e distri ct court’s prior order granting summary judgment to the schoo l district on her § 1983 claim. We affirm.

## -2- I
The pres ent 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 ligh t most favorable to the jury verdict, the followin g transpired. In the fall of 1991, when Jennife r 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, Michae l’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 tol d her third grade teacher, Cheryl Herndon, about this touching. Herndo n immediately disciplin ed the boy, and the boy never again touched Jennifer inappropriately.

On Ma rch 4, 1992, while Jennifer was riding on the school bus , Micha el 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 pictur e around the bus. The bus driver, Sandy Sproat, questioned Jennifer about the picture. Jennifer testified that she told Sproat that she had drawn onlythe 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 pi cture. 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 misconduc t notices of the school year.

Jennifer’s bus misconduct notice was sent to her elementary schoo l princi pal, Richard Whitford. Jennifer testified that she told Whitfor d that she had not drawn the genitalia on the picture. Whitford claimed tha t Jennifer admitted drawing the entire picture. As punishment, Whitford mad e Jennifer miss recesses for three days.

## -3- When Jennifer brought the bus misconduct notice home for her mo ther’s signature, her mother sent a message to Principal Whitford that Jennifer had not drawn the entire picture and that Michae l had added the genitalia. Whitford then contacted Torgerson, the principal of the intermediate schoo l Michael attended, and informed her of Mrs. Bosley’s contentions. Torgerso n then spoke with Sproa t 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 als o contacted his parents. Torgerson stated that this punishment was mor e appropriate than suspending Michael from riding the school bus, a possible punishment for a fourth bus misconduct notice, for two reasons. First, sh e believed a bus suspension was not an effective punishment for childre n Michael’s age. Second, because Michael’s parents worked, she was concerne d that Michael may not attend school during any suspension period.

In September 1992, when she was in the fourth grade, Jennife r over heard boys on the school bus talking about sex and people havin g babies. Mrs. Bosley complained to Torgerson about this behavior. After
an inv estigation, Torgerson determined that the boys had been makin g inappropriate remarks on the bus. She disciplined the boys by requiring them to ride in the front of the bus and by info rming their parents of the inappr opriate behavior. Torgerson then explained the situation to Mrs

. Bosley. She also asked Mrs. Bosley to notify her if she had any further
conc erns or complaints. Mrs. Bosley did not inform Torgerson of an y further concerns or complaints.

Torger son also determined that additional adult riders shoul d period icallyride the school bus to monitor the students’ behavior

. Adults, including Torgerson, rode the bus on numerous occasions. Th e 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 reinfor cement to students who conducted themselves properly while riding on the bus.

## -4- In the early part of the 1992 school ye ar, a boy riding with Jennifer on the school bus made i nappropriate 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 directe d inappropr iate remarks about sex to a girl sitting next to Jennifer. O n another occasion, a boy on Jennifer’s bus told Jennifer and her brother , who w as also riding the bus, that they were homosexuals. Jennife r testified that she “vaguely” remembered the bus driver telling the boy to stop and that the boy ev entually 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 remark s toward her about AIDS and sex while she was at recess. Jennifer told the principal about Justin’s remarks. The principal talked to both Jennife r and Justin about the incident. Justin denied that he had made th e off ensive comments, but the principal believed Jennifer’s account of th e 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 inci dent
on March 4, 1992, all of the complaints that she had made to the schoo l 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 wa s often afraid and intimidated when she attended school in th e Kea rneydistrict, but that she was much happier at the school she no w attends.

Jennif er, by and through her mother, sued the school distric t asserti ng various causes of action, including claims under Title IX, 2 0 U.S. C. § 1681 (1994), and 42 U.S.C. § 1983 for violations of her federa l stat utoryand 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 ) (holdi ng a school district may not be held liable for student-on-student sexua l ha rassment 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 883 41, at *8 (7th Cir. Mar. 3, 1998) (holding a public high school may be held liable fo r student-on-student sexual harassment under Title IX), Brzonkala v. Virgini a Polytec hnic 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 s exual 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.) (hol ding a school district may be held liable under Title IX for student-on-student sexual harassment if the student demonstr ates the school responded to claims differently based on sex), cert. denied , 117 S. Ct. 165 (1996).
-5- prevent the sexual harassment of her by other stude nts. The school district moved for summary judgment on all claims. The district court, in a published opinion, granted the school district summary judgment o n Jennif er’s § 1983 claim and other state law causes of action, but denie d relief on Jennifer’s Title IX claim, concluding that she had created a gen uine issue of material fact regarding whether the school distric t
reason ablyand adequately responded to the sexual harassment complaints

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

Jen nifer’s Title IX claim was then tried before a jury. The schoo l district moved for judgment as a matter of law at the close of Jennifer’s case, and the district c ourt denied the motion. The school district again moved for judgment as a matter of law at the close of all evidence. Th e district court reserved ruling on this motion and s ubmitted the case to the ju ry. The jury returned a verdict in favor of Jennifer for $5,000. Th e district court then gran ted the school district’s motion for judgment as a matter of law, ruling that a jury could not reasonably conclude that th e 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. W e ne ed not and do not determine whether public school districts or publi c school officials may be held liable pursuant to Title IX for their failure to prevent or remedy student-on-student sexual harassment. We assum e without deciding, for the purposes of this case only, that a schoo l 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 sch ool 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 d etermining 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 se xual harassment and failed to take prompt and appropriate remedia laction. See Brzonkala , 132 F.3d at 960. Another court requires that th e plaintiff prove that the school had actual knowledge of the harassment and that th e 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 k new of the harassment and i ntentionally 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 o f harassment

made by girls than to those made by boys. Rowinsky , 80 F.3d at 1016.
-6- therefo re need not and do not determine what elements a plaintiff mus t prove in order to hold a school district liable in a Title IX student-onstudent sexual harassment claim. We assume without deciding that th e elements a plaintiff must prove for such a claim ar e those set forth in the jur yinstructions used in this case, which are not challenged on appeal. 3 We now address the parties’ contentions on appeal.

## -7- 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 he r 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, onthe basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educati onal program or activity receiv ing Federal financial assistance . . . .” 20 U.S.C. § 1681(a ) (1994). In Cannon v. Un iversity of Chicago , 441 U.S. 677, 709 (1979), the Supreme Court held that Title IX creates an impliedprivate cause of action ag ainst a recipient of federal funds for discrimination on the basis o f
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.

Jen nifer sought money damages for the school district’s allege d di scrimination against her in violation of Title IX for the schoo l district ’s failure to remedy and prevent the sexual harassment of her b y other students. The jury was instructed that in or der to find for Jennifer on her Title IX student- on-student sexual harassment claim, it had to find th e following. First, that Jennifer was subjected to conduct that “wa s directe d 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 t o Jen nifer and was “sufficiently severe or persistent that a reasonabl e studen t in [Jennifer’s] circumstances would believe that her educationa l envir onment was hostile or abusive.” ( Id. at 15-16.) Third, that as a result of this conduct Jennifer viewed the educational environment to b e hostile or abusive.

## -8-

( Id. at 16.) Fourth, that the school district knew that Jennifer was being subjected to this conduct and “intentionally failed to take appropriat e action to end the conduct.” ( Id. ) The jury was also instructed that the
ve rdict must be for the school district unless the school distric t “intentionallytreated [Jennifer] differently than other students because of her sex by intentionally allowing her to be subjected to a sexuall y hostile environment.” ( Id. at 17, Jury InstructionNo. 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.

Je nnifer claims that there was sufficient evidence for the jury t o reasonabl yfind she had proven each of the elements listed above

. Specifically, she contends that there is sufficient evidence for the jury to d raw a reasonable inference that the school district intentionall y treated h er differently than other students because of her sex b y int entionallyallowing her to be subjected to a sexually hostil e env ironment. After carefully studying the record, we reject thi s contention.

Our re view of the record convinces us that there is insufficien t evidence to support the jury’s verdict. Jennifer simply failed to present anyevidence from which a jury could reasonably conclude that “because of [Je nnifer’s] sex” the school district “intentionally allow[ed] her to b e subjecte d to a sexually hostile environment” as required by the jur y instructions. (Appellant’s App. at 17, Jury Instru ction No. 13.) The only evidence in the record even remotely showing that the school distric t treated Jennifer’s complaints differently because she is female i s Principal Torgerson’s statement to Mrs. Bosley that “boys will be boys.” Th is statement, made in response to Mrs. Bosley’s complaint about a bo y dra wing inappropriate pictures while on the school bus, was immediatel y followed by Torgerson’s statement that she would talk to the boy who drew the inappropriate pictures. In the circumstances o f this case, Torgerson’s “boys will be boys” statement cannot support a reasonable inference tha t the school district’s actions in response to the complaints regarding the harassment of Jennifer were impermissibly motivatedby Jennifer’s sex. See Seamons v. Snow , 84

## -9-

F.3d 1226, 1233 (10th Cir. 1996) (holding “boys will be boys” statement by footba ll coach was insufficient to show sex discrimination by schoo l offici als). 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 grantin g summaryjudgment to the school district on her § 1983 claim. The school district asserts that Jennifer’s failure to desi gnate the district court’s summary ju dgment order in her notice of appeal requires this court t o dismiss this claim for lack of jurisdiction, citing Federal Rule o f Appellat e Procedure 3(c). Jennifer made no response to the schoo l district’s jurisdicti onal argument in her reply brief. We agree with the school d istrict and therefore do not reach this claim for lack o f jurisdiction.

Jennifer’ s notice of appeal states, in its entirety, the following:
Notice is he reby given that all plaintiffs hereby appeal to the United States Court of Appeals for the Eighth Circui t from th e final Judgment entered on January 27, 1997 and th e 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 o f appeal “must designate the judgment, order, or part thereof appealed from. ” We have stated that this requirement “is more than a mere technicality, an d 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.2 d 409, 411 (8th Cir. 1993)). In Klaudt , the plain tiffs filed an eight-count

## -10-

complaint. The district court dismissed five of the counts for failure to state a claim upon which relief could be granted. One year later, th e distri ct court dismissed the remaining claims for failure to exhaus t administrative remedies. The plaintiffs specifi cally appealed this second order, but their notice of appeal failed to specifically state that they
were appe aling from the district court’s first order. We held tha t although the rules of appellate procedure should be liberally construed, the omission from the notice of appeal of any re ference to the first order
was “more than a mere technical deficiency.” Klaudt , 990 F.2d at 411. Th e omissi on created a “jurisdictional bar” to our consideration of th e appellants’ arguments regarding the first order. Id.

The present case is indistinguishable from Klaudt . Like th e plainti ffs in Klaudt , Jennifer failed to provide any reference in he r notice of appeal to the district court’s order granting the school distric t summaryjudgment on Jennifer’s § 1983 claim. This order, like the first order in Klaudt , is separate and distinct from the district court’ s subseq uent post-trial order granting the school district judgment as a matter o f law on Jennifer’s Title IX claim. Therefore, we do not hav e jurisdiction to review the district court’s order granting summary judgmen t 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.