United States Court of Appeals

For the First Circuit

No. 22-1742

NATASHA GRACE; MINOR CHILD MG; MINOR CHILD MG2; MINOR CHILD MG3; 

MINOR CHILD AG; MINOR CHILD MP,

Plaintiffs, Appellants,

v.

BOARD OF TRUSTEES, BROOKE EAST BOSTON; BROOKE SCHOOL FOUNDATION, 

INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Gelpí, Lynch, and Howard,

Circuit Judges.

Esthena Barlow, with whom Romanus C. Maduabuchi, Matthew 

Calabrese, Elliott O'Brien, Nathan Winshall, Brian Wolfman, 

Madeline Meth, Keypoint Law Group, LLC, and Georgetown Law 

Appellate Courts Immersion Clinic were on brief, for appellants. 

John J. Cloherty III, with whom Pierce Davis & Perritano LLP 

was on brief, for appellees. 

October 19, 2023
- 2 -

GELPÍ, Circuit Judge. Minor Child MG ("MG") alleges 

that he was harassed by his classmates over a three−year period

while he was a student at Brooke Charter School East Boston 

("Brooke East Boston" or the "school"). Appellant Natasha Grace 

("Grace"), MG's mother, on behalf of herself, MG, and his four 

minor siblings, brought suit against appellees Brooke East Boston, 

its Board of Trustees, and Brooke School Foundation, Inc. 

(collectively, "Brooke"), asserting claims under Title IX of the 

Education Amendments of 1972, the Equal Protection Clause of the 

Fourteenth Amendment, and Massachusetts state law. The United 

States District Court for the District of Massachusetts granted 

Brooke's motion for summary judgment on all claims. Grace appeals 

only the district court's dismissal of her Title IX claim. We 

reverse the grant of summary judgment on Grace's Title IX claim 

and remand for further proceedings consistent with this opinion. 

I. Background

We begin by outlining the school's Code of Conduct and 

Bullying and Prevention Policy, as well as the school officials 

responsible for their enforcement. We then turn to the events 

that led to this case. For purposes of summary judgment, we 

describe the facts in the light most favorable to the nonmovant,

Grace, drawing all reasonable inferences in her favor. See, e.g., 

López-Hernández v. Terumo P.R. LLC, 64 F.4th 22, 28 (1st Cir. 

2023). 
- 3 -

A. Brooke Charter Schools

Brooke East Boston is a K−8 school that is part of Brooke 

Charter Schools (the "Schools"), a network of three K-8 public 

charter schools and one high school, each located in Boston, 

Massachusetts. The Schools are governed by a Board of Trustees 

and receive financial support from Brooke School Foundation, Inc., 

a 26 U.S.C. § 501(c)(3) nonprofit fundraising entity. 

1. Code of Conduct 

The Schools' Code of Conduct ("Code") provides a set of 

offenses for which a student will be subject to disciplinary 

consequences. Under the Code, a student will receive a "Community 

Violation," a sheet that the student's parents must sign and return 

to the relevant school, if they commit a "serious infraction to 

[the Schools'] core values." Serious infractions include namecalling or insulting a fellow student, engaging in "unsafe 

behaviors," such as hitting a fellow student, and using 

inappropriate language. These infractions may occur on school 

grounds, while a student is off school grounds if the offense 

results in a substantial disruption to the learning environment, 

or on the school bus. 

2. Bullying and Prevention Policy

The Schools also have a Bullying and Prevention Policy 

("Policy"). The Policy defines bullying, in relevant part, as the 

repeated use by one or more students of a written or verbal 
- 4 -

expression, or a physical act or gesture, directed at a target 

that causes physical or emotional harm to the target or creates a 

hostile environment at school for the target. Under the Policy, 

acts of bullying may include teasing, name−calling, spreading 

rumors, physical altercations, and other consistent aggressive 

behaviors. The Policy recognizes that "certain students may be 

more vulnerable to become targets of bullying, harassment, or 

teasing based on actual or perceived characteristics" such as sex, 

sexual orientation, and gender identity. According to the Policy, 

the school will "identify specific steps it will take to create a 

safe, supporting environment for [these] vulnerable populations in 

the school community." 

The Policy further outlines the procedures for reporting 

and responding to bullying. School officials are required to 

transmit any bullying incident directly and immediately to the 

relevant school's Dean of Students ("Dean"). The Dean will 

promptly investigate the reported incident, considering all known 

and available information, and make a written record of the 

investigation. After the investigation, the Dean will determine 

whether, in light of the facts and circumstances, the allegations 

of bullying are substantiated. If so, the Dean will then ensure 

that "[t]he target[] is made to feel safe" and that the aggressor 

faces disciplinary action. Within a reasonable time following the 

incident, the Dean will contact the target to assess whether there 
- 5 -

has been a recurrence of the prohibited conduct and whether 

additional supportive measures are needed. 

3. School Officials

During MG's time at Brooke East Boston, Jon Clark 

("Co−Director Clark" or "Clark") served as the Schools' Network 

Co−Director and was responsible for the successful operation of 

the Schools. Clark reported directly to the Board of Trustees. 

At Brooke East Boston, Molly Cole ("Principal Cole" or "Cole") 

served as the Principal and was responsible for the supervision of 

the school. Cole reported directly to Clark and delegated some of 

her responsibilities to the Assistant Principals, Katherine Kirby 

and Heidi Deck. Cole and the Assistant Principals were responsible

for investigating reported incidents between a teacher and a 

student ("teacher−related incidents"). 

Brooke East Boston's Dean of Students was Yasenia Dudley 

("Dean Dudley" or "Dudley"), whose primary responsibility was to 

enforce the Code. In her role as Dean, Dudley was also responsible 

for enforcing the Policy by investigating allegations of bullying 

and harassment and for taking disciplinary action against 

aggressors. Dudley submitted the written reports of her 

investigations to either Principal Cole or the Assistant 

Principals. Dudley was also responsible for supervising student 

detentions and the school's bus monitors. 
- 6 -

B. Alleged Incidents of Harassment

We now turn to the events giving rise to this action, 

which occurred from 2015 to 2018, during MG's fourth, fifth, and 

sixth grades at Brooke East Boston. 

1. Fourth Grade

Around August 2015, at the beginning of MG's fourth grade 

at Brooke East Boston, MG's classmate MV pushed MG on two separate 

occasions. At the request of Grace, Dean Dudley spoke with MV, 

who admitted to intentionally pushing MG and received two Community 

Violations for his conduct. On August 28, 2015, Grace emailed 

Co−Director Clark and informed him of the incidents. In her email, 

Grace expressed frustration over how the school handled the 

situation, since it was not until after MV had twice pushed MG 

that Dean Dudley intervened. Grace also informed Clark of a 

different incident "in which [MV] ha[d] tripped [MG] and pushed 

him again and [MV said that] he didn't." After expressing concern 

over the ongoing situation, Grace requested that Clark follow up 

with her. 

Upon receiving Grace's email, Clark contacted Principal 

Cole, who informed him that the incidents had been addressed "in 

a satisfactory way." After talking to Cole, Clark concluded that 

there were "[no] grounds for further involvement" from him. The 

parties dispute whether the incidents were appropriately 

characterized and addressed by the school. While Cole concluded 
- 7 -

that the incidents did not constitute bullying but rather 

"peer−to−peer conflict," Grace argues that they amounted to 

bullying under the Policy. 

As we recount below, this was not the last time that 

school officials would characterize an incident between MG and MV 

as peer-to-peer conflict. The record reflects that "peer-to-peer 

conflict" is not a school-defined term, nor is it defined by the 

Code or the Policy. Rather, when asked how he defined "peer-topeer conflict" as opposed to bullying, Co-Director Clark answered 

that he was "just using common sense." 

According to MG, MV also called him names such as 

"bitch," "girl," and "gay" throughout the fourth grade. The 

record, however, contains no evidence that these instances of namecalling were reported to school officials during the fourth grade. 

2. Fifth Grade 

MG began fifth grade at Brooke East Boston in the fall 

of 2016. On December 7, 2016, there was an incident (hereinafter 

the "bus incident") between Bus Monitor Anitra Reed ("Bus Monitor 

Reed" or "Reed") and MG. While on the school bus and within MG’s 

earshot, Reed asked a student whether she liked MG. The student 

replied that she did not like MG because "the whole school thought 

[he] was loud and gay." MG heard the student's response. What 

happened next is disputed. During her deposition, Grace stated 

that Reed then turned to MG and told him to "watch his flamboyant 
- 8 -

hands -- the way he move[s] his hands and the way he talks."1 

However, when Dean Dudley was asked about the incident, she 

recalled that Reed had merely relayed to MG what the student said. 

From the record, it appears that, during MG's deposition, he was 

not specifically asked what Reed told him on the bus. 

Dean Dudley recalled learning about the bus incident 

through a verbal report from either MG or Reed. Dudley 

investigated the incident by speaking to "all of the parties 

involved to figure out what happened." While she could not 

remember the exact outcome of her investigation during her 

deposition, Dudley stated that there was a "conversation that was 

had" with Reed. Dudley, along with either Principal Cole or an 

Assistant Principal, concluded that the student would face no 

disciplinary action for her comment because, in their view, her 

remarks were directed at Reed, not MG. Despite Dudley's statement 

1 Brooke argues that Grace improperly relies on this hearsay 

testimony. This argument, however, fails for two reasons. First, 

Grace's testimony could "be presented in a form that would be 

admissible in evidence." Martínez v. Novo Nordisk Inc., 992 F.3d 

12, 18 (1st Cir. 2021). As Grace contends, when a party objects 

that material cited to support a fact cannot be presented in a 

form that would be admissible in evidence, the burden is on the 

proponent to explain the admissible form that is anticipated. See

Fed. R. Civ. P. 56(c)(2) advisory committee's note to 2010 

amendment. Here, Grace has met that burden by explaining that MG 

could present Reed's statement in a form that would be admissible 

in evidence through his own testimony at trial. See Martínez, 992 

F.3d at 18. Second, even excluding Reed's alleged statement, the 

record demonstrates that Dudley was aware that, at a minimum, Reed 

told MG that a student did not like him because the student thought 

he was gay.
- 9 -

that there was a "conversation that was had" with Reed, the school 

admitted that no corrective action was taken against Reed. 

The next day, on December 8, 2016, MG met with Dean 

Dudley and reported that students were calling him "gay" and 

"transgender." After meeting with Dudley, MG went to Nissan’s 

classroom, where he also reported to Nissan that students were 

calling him "gay" and "transgender" but that he was not gay nor 

did he want to be transgender. When MG returned to the classroom 

with his classmates after recess, he found a book on his desk with 

a note from Nissan (hereinafter the "Gracefully Grayson 

incident"). The note read, "If you want to read about this, just 

for interest! (If not, you can give it back to me)." 

The book was "Gracefully Grayson," a novel by Ami 

Polonsky that provides a fictional account of a transgender child. 

The book was not assigned as class reading nor was the book part 

of the Health Education curriculum. Students were familiar with 

the book because it was a "very popular book[] in [Nissan's] 

classroom." Whether other students saw the book on MG’s desk is 

unclear. During his deposition, MG stated that he did not know if 

other students saw the book on his desk before he put it away. 

However, MG also stated that, after the incident, students called 

him "names or gay[] because they [saw] that a teacher had gotten 

in the mix[] so they believed it was true." 
- 10 -

MG reported the Gracefully Grayson incident to Dean 

Dudley. Dudley classified the incident as teacher−related, 

relayed the information to either Principal Cole or an Assistant 

Principal, and "they took it over from there." There is no 

evidence of an investigation into this incident. 

On December 9, 2016, Grace emailed Co-Director Clark. 

She wrote that a "student at the school (last year) started sending 

a rumor around that [MG] was gay or wanted to be[] transgender." 

Grace then informed Clark of the Gracefully Grayson incident, 

telling him that MG felt offended by the situation and that Nissan 

could have "caused [MG] to harm himself or others if he had a 

different mindset." Grace expressed frustration over the fact 

that she met with Principal Cole and Cole's only response was that 

she "[did not] feel [that Nissan's actions] came from a bad place." 

Upon receiving Grace's email, Clark called Cole, who told him that 

she had already heard Grace's concerns. Clark then felt that 

"there was no action[] that was warranted for [him] to take." 

Clark did not consider it inappropriate that Nissan 

recommended the book to MG; instead, he stated that it was a

"reasonable thing to do." It is undisputed that the school took 

no corrective action against Nissan. Nothing more was done to 

address this incident. 

After the Gracefully Grayson incident, MG's mental 

health quickly deteriorated, and he began therapy. MG was 
- 11 -

diagnosed with major depressive disorder, anxiety disorder, and 

post−traumatic stress disorder. 

Around January 2017, both MG and MV reported that they 

were shoved by each other in the school's hallway. After talking 

to the students, Dean Dudley issued each of them Community 

Violations. The parties again dispute whether the incident was 

properly characterized and addressed by the school. While the 

school again characterized the incident as peer-to-peer conflict, 

Grace contends that it was MV who shoved MG and that the incident 

again amounted to bullying under the Policy. 

On January 17, 2017, there was yet another physical 

altercation between MG and MV. During recess, MV hit MG's head, 

and MG hit MV back. Both students were disciplined as a result of 

this incident. The school again characterized the incident as 

peer-to-peer conflict, and Grace again counters that the incident 

qualified as bullying under the Policy. On January 19, 2017, after 

Dean Dudley informed Grace of the altercation, Grace filed an 

Incident Report with the Boston Police Department. 

3. Sixth Grade 

The final incidents giving rise to this action occurred 

around and during MG's sixth grade at Brooke East Boston. During 

the summer of 2017, while at a summer camp, a girl referred to MG 

as "gay" without his knowledge (hereinafter the "summer 

incident"). While the summer camp was not affiliated with Brooke 
- 12 -

East Boston, the girl was also a sixth−grade student at the school. 

In September of that year, MG learned of the summer incident from 

another student at the school. On September 13, 2017, Grace 

informed Dean Dudley of the incident. Dudley then interviewed 

"the students that were involved" and concluded that there were no 

grounds to take disciplinary action against any student because 

the incident had occurred at a summer camp, not at the school. 

Dudley informed Co-Director Clark of the incident and her 

conclusion. 

During sixth grade, as MG grew anxious and defensive, 

his disciplinary offenses significantly increased. His 

relationship with his sixth-grade teacher, Katrina Freund 

("Freund"), quickly deteriorated. While MG received no more than 

ten Community Violations between the fourth and fifth grade, MG 

recalled receiving approximately one hundred Community Violations 

during the sixth grade, most of which were issued by Freund. 

According to Freund, MG initiated confrontations with her, arrived 

late to class, refused to obey her directions, refused to stop 

talking during class, and generally exhibited defiant classroom 

behavior. 

Around November 2017, Grace requested a meeting with 

Freund, Assistant Principal Kirby, and MG's therapist, Paulette 

Sewell, to formulate a plan that would improve the relationship 

between MG and Freund. At the meeting, it was agreed that MG and 
- 13 -

Freund would use a notebook to better communicate with each other 

whereby MG would write how he felt at any given moment and Freund 

would respond. Freund, however, never responded to what MG wrote 

in the notebook. The notebook plan was thus ineffective in 

improving the relationship between MG and Freund. 

Around January 2018, Grace contacted Dean Dudley and 

requested a meeting to discuss transferring MG to another 

classroom, as she was no longer comfortable with MG being in 

Freund's classroom. Dudley then emailed Assistant Principal Kirby 

to schedule the meeting between Kirby and Grace, informing Kirby 

that the relationship between MG and Freund had become strained. 

There is no evidence that Kirby responded to the email or met with 

Grace. Around February 2018, Grace again contacted Dudley to 

discuss moving MG to a different classroom. Dudley again emailed 

Kirby. Whether Kirby and Grace ever met is unclear. But despite 

Grace's repeated requests to transfer MG out of Freund's classroom, 

and despite the school having three sixth-grade classrooms that 

academic year, it is undisputed that the school declined to move 

MG out of Freund’s classroom. 

Around February 2018, Reed overheard two upper-grade 

students refer to MG as "skittles," meant as a derogatory term for 

a gay person. Reed then took the students to Dean Dudley’s office 

and informed Co-Director Clark of the incident. After talking to 

the students, Dudley issued them detentions. Dudley determined 
- 14 -

that this incident was not bullying or harassment but rather 

teasing and name-calling. 

Around March 2018, Grace informed Dudley of an 

interaction between MG and Alyssa Mackey ("Mackey"), a 

seventh−grade teacher at the school. According to Grace, Mackey 

told MG, "You may be a problem for other teachers, but you won't 

be a problem for me." Since Mackey was an upper-grade teacher who 

had no prior interactions with MG, Grace was concerned that other 

teachers at the school were spreading rumors about MG's behavior 

and "labeling" him. Because this was a teacher-related incident, 

Dudley informed Assistant Principal Kirby. There is no evidence 

that Kirby, or any other school official, investigated this 

incident. It is undisputed that the school took no corrective 

action against Mackey. 

The last alleged incident involving MG and MV occurred 

on May 17, 2018. While at a playground near the school, MV was 

involved in a fight with other students. MG did not participate 

in that fight. However, as teacher Sarah Geary ("Geary") walked 

MV back to the school, they ran into MG. What happened after that 

is disputed. According to Co−Director Clark, MV "flail[ed] his 

arms at MG" attempting to "get[] at him," but Geary stood between 

them, preventing anything further from happening. According to 

Dean Dudley, however, MV "put his hands on [MG]." MV was 
- 15 -

suspended. Clark investigated the incident and concluded that it 

was not bullying but rather an "attempt at a physical altercation." 

The final alleged incident giving rise to this action 

occurred on May 18, 2018, involving MG and Freund (hereinafter the 

"Post−it notes incident"). The facts of this incident are 

disputed. According to Freund, she was passing out Post-it notes 

for students to take notes while they read during class. After MG 

told Freund that he did not want any Post-it notes, she "tossed a 

few onto his desk, as [she] had done with the previous ten or so 

students." Freund recalled that MG then "held up his hand to block 

the [Post-it notes] and they hit his hand." MG, however, contends 

that Freund "threw a stack of post-it notes" at his face. 

Immediately after the Post-it notes incident, MG left 

the classroom and contacted Grace, who then drove to the school. 

What happened after that is also disputed. Freund contends that 

Grace entered her classroom while class instruction was ongoing 

and yelled statements at her such as "this will be your last day" 

and "you’re a liar." Grace, however, counters that when she 

arrived at the school, Dean Dudley gave her permission to go to 

Freund’s classroom, where she calmly but unproductively discussed 

the incident with Freund. 

That same day, Grace asked Dudley to investigate the 

Post-it notes incident. Dudley talked to a student who had been 

in the classroom with MG and Freund during the incident. The 
- 16 -

student told Dudley that Freund had, in fact, thrown Post-it notes 

at MG which hit him. Dudley relayed this information to CoDirector Clark and Assistant Principal Kirby. On May 21, 2018, 

however, Clark investigated the incident himself and concluded 

that Freund did not throw the Post−it notes at MG and that MG was 

"actively working to engineer the firing of [Freund] without 

cause." It is undisputed that the school took no corrective action 

against Freund. After the incident, Grace retained counsel. 

On May 22, 2018, through her attorney, Grace delivered 

a Demand Letter to Co-Director Clark, Principal Cole, Assistant 

Principal Kirby, and Dean Dudley, demanding that the school create 

"an action plan [to protect MG] from all the targeting, bullying, 

[and] retaliation." The letter described incidents where MG had 

allegedly been the victim of bullying and harassment through 

repeated name-calling, hate speech, and discriminatory remarks 

from both students and school officials. The letter further stated 

that Grace was available to meet on May 23, 2018, to discuss her 

demands before MG returned to the school. 

The next day, on May 23, 2018, instead of meeting with 

Grace, Co-Director Clark issued Grace a No Trespass order. The 

order stated that Grace’s actions on May 18, 2018, "constituted a 

major disruption to the school" and that she was thus prohibited 

from entering school grounds absent an emergency or Clark’s 
- 17 -

permission. After receiving the No Trespass order, Grace withdrew 

MG from Brooke East Boston. 

C. Procedural History

Grace, on behalf of herself, MG, and his four minor 

siblings, brought suit against Brooke in Massachusetts state 

court, alleging claims under Title IX of the Education Amendments 

of 1972, 20 U.S.C. § 1681(a); the Equal Protection Clause of the 

Fourteenth Amendment; and Massachusetts state law. Brooke removed 

the action to the United States District Court for the District of 

Massachusetts2 and moved for summary judgment on all claims. 

In a Report and Recommendation ("R&R"), a magistrate 

judge recommended the dismissal of all claims except for Grace's 

Title IX claim. After thoughtfully analyzing three years of facts, 

the magistrate judge concluded that, while the question of summary 

judgment was a close one, the Title IX claim would be better 

resolved by a jury at trial. First, the magistrate judge 

determined that a jury could find that the claimed harassment was 

on the basis of sex. Second, the magistrate judge concluded that 

a jury could also find that the school exhibited deliberate 

indifference to the claimed harassment. 

2 Removal was pursuant to the district court's federal 

question jurisdiction. See 28 U.S.C. §§ 1331, 1441.
- 18 -

The district court, however, upon considering Brooke's 

objections to the R&R,3 granted summary judgment in favor of Brooke 

on all claims, including the Title IX claim. In the district 

court's view, Brooke had taken "timely and plausibly reasonable 

measures to investigate and end the claimed harassment" by 

frequently communicating with Grace and conducting "a variety of 

investigations in response to reported incidents adverse to [MG]." 

Thus, according to the district court, Grace had failed to 

demonstrate a triable issue of fact as to whether the school 

exhibited deliberate indifference to the claimed harassment. 

This appeal followed. 

II. Discussion

On appeal, Grace challenges only the district court's 

dismissal of her Title IX claim. The parties dispute whether the 

incidents alleged constituted harassment, and if so, whether it 

was on the basis of sex, and whether the school exhibited 

deliberate indifference to it. The district court, however, 

disposed of Grace's Title IX claim solely on the ground of 

deliberate indifference. Thus, we write narrowly and focus our 

attention on whether a reasonable jury could find that Brooke acted 

3 After the magistrate judge issued the R&R, Brooke objected 

to the R&R's recommendation that Grace's Title IX claim should not 

be dismissed. The district court then made a de novo determination 

and dismissed the Title IX claim. See 28 U.S.C. § 636(b)(1)(C) 

("A judge of the court shall make a de novo determination of those 

portions of the . . . [R&R] to which objection is made.").
- 19 -

with deliberate indifference in responding to the alleged

harassment.

A. Standard of Review 

We review the district court's grant of summary judgment 

de novo, construing the record in the light most favorable to the 

nonmovant, Grace, and drawing all reasonable inferences in her

favor. López-Hernández, 64 F.4th at 28; Camar Corp. v. Preston 

Trucking Co., 221 F.3d 271, 274 (1st Cir. 2000). Summary judgment 

is proper when "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). A fact is material if 

it "might affect the outcome of the suit under the governing law." 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 

genuine dispute as to a material fact exists if a rational 

factfinder, viewing the evidence "in the light most flattering to 

the party opposing" summary judgment, could resolve the dispute in 

that party's favor. See Nat’l Amusements, Inc. v. Town of Dedham, 

43 F.3d 731, 735 (1st Cir. 1995). "When determining if a genuine 

dispute of material fact exists, 'we look to all of the record 

materials on file, including the pleadings, depositions, and 

affidavits' without evaluating 'the credibility of witnesses []or 

weigh[ing] the evidence.'" Taite v. Bridgewater State Univ., Bd. 

of Trs., 999 F.3d 86, 93 (1st Cir. 2021) (alterations in original)

(quoting Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014)). 
- 20 -

B. Student-on-Student Harassment Under Title IX

Title IX provides, in relevant part, 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 education program or activity receiving 

Federal financial assistance." 20 U.S.C. § 1681(a). The Supreme 

Court has recognized an implied private right of action under Title 

IX through which an aggrieved party may seek money damages against 

an educational institution. See Cannon v. Univ. of Chi., 441 U.S. 

677, 717 (1979); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 65 

(1st Cir. 2002).

Here, Grace asserts a theory of hostile environment 

harassment under Title IX. Under that theory, Brooke, as a federal 

funding recipient, can be liable for a claim of student−on−student

and teacher−to−student harassment. See Porto v. Town of Tewksbury, 

488 F.3d 67, 72 (1st Cir. 2007). To prevail on such claim, a 

student must show that they were (1) "subjected to harassment"

(2) on the basis of sex; (3) "that the harassment was sufficiently 

severe and pervasive to create an abusive educational 

environment;" and (4) "that a school official authorized to take 

corrective action . . . exhibited deliberate indifference to" the 

harassment. Frazier, 276 F.3d at 66; see also Porto, 488 F.3d at 

72-73. 
- 21 -

The deliberate indifference standard can be 

characterized as a two-pronged test. First, the funding recipient 

must have had actual knowledge of the harassment. See Santiago v. 

Puerto Rico, 655 F.3d 61, 73 (1st Cir. 2011). This actual 

knowledge requirement demands that the official who is informed of 

the harassment be an "appropriate person" -- an official of the 

recipient entity with authority to take corrective action to end 

the harassment. See id. at 74. 

Second, the official's "response [to the harassment]

must amount to deliberate indifference to discrimination." Gebser 

v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). School 

officials are deliberately indifferent to student-on-student 

harassment "only where [their] response to the harassment, or lack 

thereof, is clearly unreasonable in light of the known 

circumstances." Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 

648 (1999). The response must, at a minimum, cause the student to 

undergo harassment or make the student vulnerable to it. See id.

at 645. A school might be deliberately indifferent to harassment 

where it had notice of the harassment and "either did nothing or 

failed to take additional reasonable measures after it learned 

that its initial remedies were ineffective." See Porto, 488 F.3d 

at 73-74; see also Wills v. Brown Univ., 184 F.3d 20, 26 (1st Cir. 

1999). Thus, deliberate indifference "will often be a fact-based 

question, for which bright line rules are ill-suited." Doe ex 
- 22 -

rel. Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438, 447 (D. Conn. 

2006). 

C. The District Court Should Not Have Granted Summary Judgment in 

Favor of Brooke on the Title IX Claim

1. Actual Knowledge

A reasonable jury could find that MG was subjected to 

harassment. We turn to the actual knowledge requirement of the 

deliberate indifference standard under Title IX. Brooke does not 

dispute that Dean Dudley and Co-Director Clark, in their respective 

roles as school officials, had the authority to take corrective 

action to end the discrimination against MG and thus were 

"appropriate person[s]" under the statute. See Santiago, 655 F.3d 

at 74. Brooke, however, contends that Grace "vainly attempt[s] to 

attach liability by pointing to alleged incidents of harassment of 

which the School had no actual knowledge." We are unconvinced. 

Construing the record in the light most favorable to 

Grace, a jury could find that the school had actual knowledge as 

of December 7, 2016 (the date of the bus incident), but not before 

then. The record shows that, on December 7, 2016, Dean Dudley 

became aware, from the bus incident, that there were students who 

were discriminating against MG because they thought he was gay. 

Dudley was also on notice that, at a minimum, Reed relayed that 

information to MG. On December 8, 2016, MG personally reported to 

Dudley that students were calling him "gay" and "transgender." 

Both Dudley and Clark had actual knowledge that after MG reported 
- 23 -

the same to Nissan, she left a book on his desk about a transgender 

child. Clark, in particular, knew that the Gracefully Grayson 

incident offended MG and that Grace was unsatisfied with Principal 

Cole's response to Nissan's actions. Grace even informed Clark 

that, prior to the incident, a student had started a rumor that MG 

was gay. 

The record further reveals that, throughout MG's sixth 

grade, Dudley and Clark remained on notice of students' treatment 

of MG. They both had actual knowledge that, during the summer of 

2017, a Brooke student referred to MG as "gay" and MG learned of 

the incident from another student at the school. Around February 

2018, Dudley and Clark both learned that two upper-grade students 

referred to MG as "skittles." Throughout the sixth grade, Dudley 

also remained on notice of MV's treatment of MG. In light of these 

facts from MG's fifth and sixth grades at Brooke East Boston, a 

reasonable jury could infer that the school had actual knowledge 

as of December 7, 2016, but not before then. See id. at 73-74. 

2. Deliberate Indifference

Having determined that Grace presented sufficient 

evidence on the actual knowledge requirement to survive summary 

judgment on that point, we now turn to the school's response to 

the claimed harassment. The district court found that "[n]o 

reasonable jury could find on the factual record[] that [the 
- 24 -

school's] response to reported incidents of sex-based harassment 

was clearly unreasonable." We again disagree. 

When construed in the light most favorable to Grace, the 

record supports the inference that the school's response to the 

claimed harassment was "clearly unreasonable in light of the known 

circumstances." Davis, 526 U.S. at 648. For more than a year, 

from December 2016 to February 2018, school officials at Brooke 

East Boston took no corrective or remedial action against students 

who repeatedly used homophobic epithets against MG. On December 

8, 2016, after the bus incident, MG himself reported to Dudley 

that students were calling him "gay" and "transgender." Yet, even 

though Dudley had prior notice of students' treatment of MG from 

the bus incident, there is no evidence that she investigated the 

name−calling, nor is there evidence that she took steps to protect 

MG from it. 

The record further supports the inference that, during 

the sixth grade, the school's responses to the claimed harassment 

were still not reasonably calculated to stop students' treatment 

of MG. Only once did the school discipline students for using 

homophobic epithets against MG: when two upper-grade students 

called him "skittles" in February 2018. 

Grace has also produced sufficient evidence for a 

reasonable jury to find that the school exhibited deliberate 

indifference by repeatedly characterizing MV's treatment of MG as 
- 25 -

"peer-to-peer conflict" as opposed to bullying in light of MV's 

constant aggressive behavior towards MG. See Gebser, 524 U.S. at 

290; Davis, 526 U.S. at 645. Under the Policy, acts of bullying 

include teasing, taunting, physical or verbal altercations, and 

other consistent aggressive behaviors. Yet, when MV twice pushed 

MG, the school characterized the incident as peer−to−peer 

conflict. In January 2017, when MV hit MG's head, the school again 

characterized the incident as peer-to-peer conflict. In May 2018, 

when MV either "flai[ed] his arms at MG" or "put his hands on [MG]" 

after being involved in a fight with other students, the school 

again refused to characterize the incident as bullying, 

notwithstanding MV's consistent aggressive behavior towards MG. 

A reasonable trier of fact could also find that the 

school's responses to the individual actions and events 

perpetrated by different school officials were unreasonable in 

light of the known circumstances. See Davis, 526 U.S. at 645, 

648. We begin with the bus incident, in which Reed initiated a 

conversation, knowingly within MG's earshot, and a student 

responded that she did not like MG because "the whole school 

thought [he] was loud and gay." While the parties dispute whether 

Reed then told MG to "watch his flamboyant hands," Dean Dudley had 

actual knowledge that, at a minimum, Reed relayed the student's 

comment to MG. A rational factfinder, resolving this point in 

favor of Grace, could conclude that Reed inappropriately advised 
- 26 -

MG to "watch his flamboyant hands." While Dudley stated that there 

was a "conversation that was had" with Reed, it is undisputed that 

no corrective action was taken against Reed, as per the school's 

admission. Viewing this evidence in the light most favorable to 

Grace and in the context of students' treatment of MG, a reasonable 

jury could infer that Reed's actions, together with the lack of 

response from the school, exacerbated the hostile educational 

environment to which MG was already subject.

The Gracefully Grayson incident, and the inferences that 

a rational factfinder can derive therefrom, support a similar 

conclusion. After MG personally reported to Dudley and Nissan 

that students were calling him "gay" and "transgender," but that 

he was not gay nor transgender, Nissan left a book about a 

transgender child, well-known by other students in Nissan's 

classroom, on MG's desk. In view of MG's statement that, after 

the incident, students called him gay because "they [saw] that a 

teacher had gotten in the mix[] so they believed it was true," a 

reasonable jury could infer that the Gracefully Grayson incident 

reinforced students' perception of MG. School officials, however, 

directed their attention to Nissan's motivations for her actions 

rather than to the impact of her actions on MG. Considering that 

Nissan, before placing the book on MG's desk, knew that students 

were calling him "gay" and "transgender" without his consent, a 

reasonable jury could find that both Nissan's actions and the 
- 27 -

school's lack of response to them were "unreasonable in light of 

the known circumstances." See id. 

In view of MG's relationship with Freund and the factual 

disputes surrounding the Post-it notes incident, a reasonable jury 

could also conclude that school officials acted with deliberate 

indifference in refusing to transfer MG out of Freund's classroom, 

subjecting MG to a hostile educational environment. It is 

undisputed that both Dean Dudley and Assistant Principal Kirby 

were on notice that, by the sixth grade, MG and Freund had 

developed a hostile relationship, to the extent that Grace had 

twice requested MG be transferred out of Freund's classroom. 

However, despite knowing that the notebook was ineffective in 

improving MG's relationship with Freund, and despite having three 

sixth-grade classrooms during that academic year, the school 

repeatedly declined Grace's requests. 

The factual disputes surrounding the Post−it notes 

incident also support Grace's allegations. A rational factfinder, 

resolving this conflict in favor of Grace, could find that Freund 

did throw the Post-it notes at MG, particularly since Dudley and 

Clark were both on notice that a student had corroborated MG's 

version of the incident. 

Brooke's attempt to equate this case to Porto v. Town of 

Tewksbury is unavailing. Porto involved repeated instances of 

harassment whereby the student, RC, sexually harassed another
- 28 -

student, SC, on multiple occasions. See Porto, 488 F.3d at 73. 

School officials separated the students after each instance of 

sexual harassment. Id. at 74. They also had the students talk to 

the school guidance counselor, to whom they promised not to engage 

in sexual conduct again. Id. RC, however, continued to sexually 

harass SC. Id. There, we found that school officials were not 

deliberately indifferent to the harassment because it was 

reasonable for them to conclude that the counselor’s intervention 

had worked since they did not become aware of further harassment 

after that. See id. In that context, we held that the "fact that 

measures designed to stop harassment prove later to be ineffective 

does not establish that the steps taken were clearly unreasonable 

in light of the circumstances known[] . . . at the time" and that 

"a claim that the school system could or should have done more is 

insufficient to establish deliberate indifference." Id. at 73−74. 

This Court's decision in Porto is easily distinguishable 

on the facts and the law. Unlike Porto, school officials at Brooke 

East Boston were repeatedly made aware, throughout two academic 

years, of students' treatment of MG. Here, Grace claims not that 

the school's measures designed to stop the alleged harassment 

proved to be ineffective, or that more could have been done in 

responding to the alleged harassment, but that school officials

took no substantive steps to protect MG from the hostile 

environment he was subject to.
- 29 -

Brooke's reliance on Fitzgerald v. Barnstable School

Committee is similarly misplaced. In Fitzgerald, we held that 

"Title IX does not require educational institutions to take heroic 

measures, to perform flawless investigations, to craft perfect 

solutions, or to adopt strategies advocated by parents." 504 F.3d 

165, 174 (1st Cir. 2007), rev’d on other grounds, 555 U.S. 236 

(2009). There, we found that school officials' actions did not 

amount to deliberate indifference where they promptly reacted to 

harassment complaints, commenced full-scale investigations, paid 

close attention to new information and to the parents’ concerns, 

offered suitable remedial measures, and responded reasonably each 

time there was a new development. Id. at 174-175. However, as 

discussed above, the record here reasonably supports opposite 

inferences: that school officials did not offer suitable remedial 

measures in light of the claimed harassment and that school 

officials did not pay close attention to Grace's repeated concerns 

about students' treatment of MG. 

Thus, we find that the record before the district court, 

the factual disputes therein, and the inferences that a jury could 

reasonably draw therefrom preclude summary judgment on Grace's 

Title IX claim. Whether Grace can sustain such a claim is a 

question for the factfinder at trial. 
- 30 -

III. Conclusion

For the foregoing reasons, we reverse the district 

court's grant of summary judgment on the Title IX claim and remand

for further proceedings consistent with this opinion.