Of the District of Rhode Island, sitting by designation. * 

# UnitedStates C ourt of App eals

For the First Circuit

Nos. 06-1994, 06-2139

ANN MARIE PORTO, Individually and on behalf of SC, a minor person with a disability; NICHOLAS PORTO, Individually and on behalf of SC,

a minor person with a disability, Plaintiffs, Appellees,

v . TOWN OF TEWKSBURY, Defendant, Appellant, TOWN OF TEWKSBURY PUBLIC SCHOOLS; TOWN OF TEWKSBURY SCHOOL COMMITTEE; CHRISTINE L. MCGRATH; JAMES MCGUIRE; KEVIN P. MCARDLE; PAULINE KING; LOREEN R. BRADLEY; MICHELINA DEANGELIS; CHERYL D. PORCARO; CAROLE A. GALLO; JENNIFER A. FIORE; JULIE E. BOSSDORF-PARAS; ELEANOR EDELSTEIN; ROBERT WARE; SHARON J. MOSER; WILLIAM X. TRAVEIS;

KARA M. BUCKLEY; ALLISON DIXON,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]

Before Torruella and Lynch, Circuit Judges, and Lisi, District Judge.

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Samue l J. Perkins, with whom Leonard H. Kesten, Deborah I. Ecker, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief, for appellant Town of Tewksbury. Lynn A. Leonard, for appellees.

May 30, 2007-3- TORRUELLA, Circuit Judge. This case asks us to determine when a school system may be liable under Title IX of the EducationAmendments of 1972, 20 U.S.C. § 1681 et seq., for student-onstudent sexual harassment. In Davis v. Monroe County Board of Education, the Supreme Court stated that a school system may not be held liable for student-on-student sexual harassment unless the system has been "deliberately indifferent," which, in the Title IX context, requires that the school system's response to harassment be "clearly unreasonable in light of the circumstances." 526 U.S. 629, 648 (1999). Ann Marie Porto and Nicholas Porto sued the Town of Tewksbury ("Tewksbury") in their individ u a l capacities and on b e h a l f of a minor child, SC, alleging that the school system had been deliberately indifferent to the sexual harassment of SC by a peer. The case proceeded to trial, and the jury found in favor of the Portos, awarding compensatory damages of $250,000 and punitive damages of $1. The district court also awarded attorneys' fees to the Portos. Tewksbury now appeals the j u ry verdict, various evidentiary rulings, the jury instructions, the damages award, and the amount of attorneys' fees awarded. After careful consideration, we find that the evidence presented at trial is insuffi c i e nt to sustain the jury's conclusion that Tewksbury was deliberately indifferent to the student-on-student sexual harassment, and as s u c h , w e vacate the judgment in favor of the Portos and direct that judgment be granted in favor of Tewksbury.The district court ruled that for the purposes of the Porto's 1 Title IX claim, the jury c o uld only consider harassment that occurred between October 2000 and January 2001. Neither party appeals this ruling, and we do not disturb it on appeal. However, the c o urt ruled that the Portos could present evidence of harassment prior to October 2000 for the purpose of proving that Tewksbury had knowledge that harassment was likely to occur between RC and SC. -4- I. Background SC was born in March 1987. Shortly after his birth, SC was placed in foster care. In 1989, SC's aunt, Ann Marie Porto, and her husband , N icholas Porto, took in SC as a foster child. After SC came to live with the Portos, they noticed that SC was experiencing developmental problems, and they took him to various hospitals, where he was diagnosed as suffering from fetal alcohol syndrome and "generalized developmental delays."

SC entered the Tewksbury public schools when he was eight
ye a r s o l d
. A l t h o u g ht h e M a s s a c h u s e t t s D e p a r t me n t o fE du c a tion identified SC as being developmentally and mentally disabled, and thus eligible for special education services, he init i a l ly was placed in a standard first grade class. But after a month, SC's teacher thought he needed more specialized at t e n t i on, and he was placed in special education cla s s es, where he stayed for the remainder of his tenure in the Tewksbury schools.

SC met another boy, R C, in his first grade special education class. Between first and fifth grade, SC reported to Ann Marie Porto various sexually-charged incidents with RC. Porto 1-5-

testified that she reported these incidents to Tewksbury teachers and administrators. In 1999, when SC was in the fifth grade, the Portos took him to see a psychologist, Dr. Bradford Smith, for counseling related to inappropriate sexual behavior at home. After his consultation with SC, Dr. Smith informed the Portos that SC had told him that he and RC had been engaging in oral sex on the school bus since October 1998. The Portos reported this to Tewksbury public school administrators and to the Massachusetts Department of Social Services. In response, the s chool put SC and RC on different buses and instructed teachers and school aides to keep SC and RC separated and to monitor their interaction.

During the sixth grade, there was only one additional reported i n cident involving SC and RC, in which RC allegedly touched SC on the buttocks and SC elbowed him in response. The school separated SC and RC and gave SC detention. Apart from this incident, Ann Marie Porto testified that she perceived that SC enjoyed school during his sixth grade year.

In the fall of 2000, SC entered the seventh grade at Wynn Middle School. SC spent a large part of the day in a life skills class with six other children, one of whom was RC. The life skills class was team taught, with one teacher covering language arts and math in the mor n i ng, and a different teacher covering social studies and science in the afternoon. Although there were three different classroom aides who at various times helped with the-6-

class, all three were not typically assig n e dto the class at a given time, and one often accompanied a child who was in a wheelchair.

According to school officials, there were three incidents in October 2000 that involved inappropriate touching between RC and SC. Two of the incidents occurred in the life skills class room. Both incidents involved RC touching SC's leg w h ile they were sitting next to each other. In one instance, an aide ordered SC and RC to separate, and they complied. In another, an aide sat down between SC and RC to keep them apart. There was also a third incident, during gym class, when SC and RC were touching each other while sitting in the bleachers. Eleanor Edelstein, RC and SC's language arts and math teacher, testified that she heard a verbal description of one of the classroom incidents in v o l v ing inappropriate touching under a workstation table.

Aft e r t h e third incident, the boys were sent to the school guidance counselor, William Traveis. Traveis instructed the boys that this type of behavior was inappropriate. According to Traveis, the boys apologized and told him that they would not do it again. Traveis testified that he thought the boys understood the discussion, and that he told teachers and aides to monitor them and keep them separated. No additional incidents were reported to the school until January.-7- On the morning of January 11, 2001, RC a s k e dEdelstein for permission to go to the bathroom, and Edelstein excused him.
A short time later, SC asked Edelstein if he could get a book from his locker. No aide was present at the time to accompany either RC or SC. There is no evidence that either boy had previously misled Edelstein with respect to similar requests. Edelstein allowed SC to leave the classroom. After two or three minutes, Edelstein noticed t h a t n e i ther of the boys had returned. She stepped out into the hall to look for them, but did not see them. While in the hall, Edelstein spotted Rob e r t W are, the Behavior Management Facilitator at Wynn M i d d l e S chool, and asked him to go into the bathroom to investigate. Ware entered the bathroom and discovered SC and RC in a stall, pulling their pants up. Ware took the students to his office and asked them what they had been doing. SC told Ware that he had engaged in sexual intercourse w i t h RC, and that he and RC had been touching each other on a weekly basis for some time. Ware informed James McGuire, t h e p r i n c i pal of Wynn Middle School, about the incident. McGuire called SC's p a r e nts, told them what had happened, and asked them to pick up SC from school. SC did not return to school after the incident with RC. Between January a n d October 2001, SC remained at home, receiving
ten hours of tutoring per week. In October 2001, SC was hospitalized for a month for behavioral problems, during which timeThe Portos also alleged that Tewksbury discriminated against SC 2 on the basis of his disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. The jury found in favor of Tewksbury on this claim, and the Portos do not appeal that aspect of the verdict. In addition, the Portos brought various Massac h u s e t t s l a wc l a i m s a g a i n s t T e w k s b u r y , wh i c hw e r e l a t er dismissed, and the Portos do not appeal this decision. Finally, the Portos initially brought claims under 42 U.S.C. § 1983 against var i o u s i n d i v i du a l s wh o w o r k e df o rt h e T e w k s b u r yp u b l i cs c h ool system, but later voluntarily dismissed them. -8- SC attempted to commit suicide. From November 2001 until February 2002, SC participated in a daytime academic and counseling program at the Bournewood Hospital. Finally, in February 2002, SC was sent to a residential treatment program outside of the Tewksbury school district. The Portos filed suit against Tewksbury on January 5, 2004, alleging that, because it was deliberately indifferent to RC's sexual harassment of SC, Tewksbury had violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. The 2 case proceeded to a jury trial, which lasted from October 3 until October 21, 2005. A f t e r t h e Portos presented their case to the jury, Tewksbury moved for a directed verdict pursuant to Fed. R. Civ. P . 50(a), arguing that the Portos had failed to prove any element of their case. The court denied Tewksbury's motion, and after one day of deliberations, the jury returned a verdict in favor of the Portos, awarding $250,000 in compensatory damages and $1 in punitive damages. Tewksbury then filed a motion for judgment notwithstanding the verdict pursuant to Fed. R. Civ. P. 50(b),Tewksbury also filed a motion for a new trial, arguing that the 3 court improperly admitted certain testimony and misinstructed the jury. Because we find that Tewksbury's motion for a directed verdict should have been granted based on the evidence that was deemed admissible by the district court, we need not decide the correctness of the evidentiary rulings or instructions. -9- again arguing that the Portos had failed to satisfy their burden on any element of the case. The court denied the motion by written 3 order on April 28, 2006. Tewksbury now appeals.

II. Motion for Directed Judgment We review the denial of a Rule 50 motion de novo. Walton v. Nalco C h e m . C o . , 272 F.3d 13, 23 (1st Cir. 2001). "We must affirm unless the evidence was 'so strongly and overwhelmingly' inconsistent with the verdicts that no reasonable jury could have returned them." Id. (quoting Negrón v. Caleb Brett U.S.A., Inc., 212 F.3d 666, 668 (1st Cir. 2000)). Thus, to reverse, we must find that there was "a total failure of evidence to prove plaintiff's case." Mayo v. Schooner Capital Corp., 825 F.2d 566, 568 (1st Cir. 1987) (quoting Fact Concerts, Inc. v. City of Newport, 626 F.2d 1060, 1064 (1st Cir. 1980)) (internal quotation marks omitted). We draw "all reasonable inferences" from the evidence presented at trial in favor of the prevailing party. Negrón, 212 F.3d at 668.

Un d e r Title IX of the Education Amendments of 1972, a recipient of funding from the United States Department of Education may be liable for damag e s i f"its deliberate indifference [to peer-on-peer sexual harassment] 'subjects' its students to-10-

h a r a s sment." Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 644 (1999). A funding recipient is deliberate l yindifferent to student-on-student harassment when "the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Id. at 648. "[T]he deliberate indifference must, at a minimum, ' c ause [students] to undergo' harassment or 'make them liable or vulnerable' to it." Id. at 645 (alteration in original) (quoting Random House Dictionary of the English Language 1415 (1966)). In addition, the acts of sexual harassment must be "known" to the funding reci p i ent. Id. at 647. Finally, the harassment must be "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Id. at 650. Thus, a fun d i n g recipient is not liable under Title IX for all student-on-student sexual harassment. First, the plaintiff must show (1) that he or she was subject to "severe, pervasive, and objectively offensive" sexual harassment by a school peer, and (2) that the harassment caused th e p l a intiff to be deprived of educational opportunities or benefits. Even then, Davis restricts a funding recipient's liability under Title I Xfor student-onstudent sexual harassment to situations where (3) it knew of the harassment, (4) in its programs or activities and (5) it was deliberately indifferent to the harassment such that its responseThus, we exp l i c i t ly do not decide whether a minor student's 4 "consent" to sexual conduct is a factor in determining whether that student was subject to sexual harassment. -11- (or lack thereof) is clearly unreasonable in light of the known circumstances.

For the purposes of this appeal, we assume (without deciding) that SC was subject to severe, pervasive, and objectively offensive harassment by RC, that Tewksbury is a funding recipient and had actual knowledge in 2001 of at least some prior incidents of inappropriate sexual behavior, and that the harassment deprived SC of educational opportuni t i es or benefits. Even making these 4 assumptions, we do not think that the Portos presented sufficient evidence such that a ration a l jury could have concluded that Tewksbury was deliberately indifferent to the harassment of SC. The Portos argue that Tewksbury was told on multiple occasions that
RC wa s h arassing SC, but that the school did nothing more than temporarily separate the boys. The Portos also note that in spite of Tewksbury's knowledge of the prior sexual harassment, RC and SC were allowed to have unsupervised access to each other at times. The Portos contend that, given the history o fsexual harassment between RC and SC that culminated in the school-bus incident in fifth grade, Tewksbury should have not allowed SC t o go to his locker alone while RC was in the bathroom. The Portos point to evidence of a prior directive from Tewksbury to teachers and aides-12-

that RC and SC not be allowed to travel alone together in or outside the school building.

The problem with the Portos' argument is that it suggests only that Tewksbury perhaps should have done more to prevent RC from sexually harassing SC. However, a claim that the school system could or should have done more is insufficient to establish deliberate indifference; in the Title IX context, "funding recipients are deemed deliberately indifferent to acts of studenton-student harassment only where the recipient's r e s ponse to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Davis, 526 U.S. at 648. The Supreme Court has described deliberate indifference as "a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his act i o n " or inaction. Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 410 (1997) (emphasis added). Thus, before holding a municipality liable for a police officer's excessive force, we have required plaintiffs to prove that the municipality knew that the excessive force would be a "plainly obvious consequence" of hiring the officer. Crete v. City of Lowell, 418 F.3d 54, 66 (1st Cir. 2005); see also Young v. City of Providence, 404 F.3d 4, 28 (1st Cir. 2005) (holding that a reasonable jury could find deliberate indifference where excessive force was a "highly predictable consequence" of the municipality's failure to train its police officers (quoting Brown, 520 U.S. at-13-

409). Likewise, in Bisbal-Ramos v. City of Mayagüez, we found that the evidence was sufficient to support a finding of deliberate indifference by a supervisor where a municipal employee turned city hall into the campaign headquart e r s f or a candidate, with the obvious consequence that employees who were supporters of the rival candidate would feel that they had been discrim i n a t e d against in viola t i o nof their First Amendment rights. 467 F.3d 16, 25 (1st Cir. 2006). In the educational setting, we have suggested that a school might be d e l i berately indifferent to a teacher's sexual harassment of a student where it had notice of the sexual harassment, and eit h e r did nothing or failed to take additional reasonable measures after it learned that its initial remedies were ineffe c t i v e . Wills v. Brown Univ., 184 F.3d 20, 26 (1st Cir. 1999). The Portos do not claim that Tewksbur y did nothing to address RC's sexual harassment of SC. They acknowl e d ge that Tewksbu r y s e parated SC and RC after each episode of sexual harassment and later had the school guidance counselor intervene. Compare with Doe ex rel. A.N. v. E. Haven Bd. of E d u c . , 2 0 0 F. App'x 46, 49 (2d Cir. 2006) (unpublished) (finding deliberate indifference where "alleged victim of a rape complained of verbal harassment based on her sex and related to the rape for five weeks before authorities took concrete action to get the perpetrators of the harassment to stop"). Rather, the Portos claim that these-14-

measures were ineffective. There is no doubt that the bathroom incident is evidence th a t RC's inappropriate sexual behavior was not abated. However, the fact that measures designed to stop har a s s m e nt prove later to be ineffective does not establish that the steps taken were clearly u nreasonable in light of the circumstances known by Tewksbury at the time. The test for whether

a school should be liable under Title IX for s t udent-on-student harassment is not one of effectiveness by hindsight.

The Portos' proof is inadequa t e o n several different levels. First, there was no evidence presented at trial to suggest that Tewksbury knew or even suspected that when SC asked to go to his locker, he was really going to go to the bathroom to meet RC. The Portos suggest that because SC was mentally disabled, it would have been prudent to have had a teacher's aide accompany him to his locker. However, this suggests only that Tewksbury may have been negligent; to prove deliberate indifference, the Portos had to show at least that Tewksbury knew that t h e failure to accompany SC to his locker would lead to SC following RC to the bathroom and that there was a high degree of risk that SC would be subject there to inappropriat e s e xual behavior by RC. Edelstein offered uncontradicted testimony that the boys had never given a " r e a s on for [her] to ever question that they couldn't be trusted going to the bathroom or going to a locker," and that she "trusted that they would follow the rules." Thus, there was no evidence that anyoneNor were the Portos aware of any sexual harassment during this 5 period. In fact, Ann Marie Port o m et with school officials in November 2000, but did not report any additional inst a n c e s of sexual harassment between SC and RC. There was, however, evidence that the harassment did continue unbeknownst to Tewksbury. -15- had a reason to suspect that SC intended to deceive Edelstein when he asked for permission to visit his locker.

Furthermore, there was no evidence that the school knew or that it was obvious that RC would continue to sexually harass SC after October 2000. To put the Portos' claim in context, it is important to note that between March 1999 and October 2000, there was only one alleged minor incident of sexual harassment. Apart from this, according to Ann Marie Porto, SC was generally happy at school and had no problems, and there was no evidence that Tewksbu r y w a s aware of any additional problems during this time. It was not until October 2000 that RC's inappropriate touching resumed. The first two times this occurred, the school separated the boys. After the third instance of inappropriate touching, school officials sent the boys to talk to Traveis, the school counselor. RC and SC spoke with Traveis, who testified that it was his understanding that the boys knew that what they were doing was wrong, and that they promised not to do it again. It was reasonable for Tewksbury to conclude that this intervention worked: there was no evidence presented that Tewksbury was aware of any further sexual harassment by RC between Traveis's intervention in October 2000 and the January 11, 2001 incident. Even the Portos' 5Likewise, the fact that Tewks b u r y did not have a sexual 6 harass me n t p o l i c yt h a t c o mp l i e dw i t hD e p a r t me n t o fE du c a t i on regulations is insufficient to establish deliberate indifference; the Portos have not offered any evidence that would permit the inference that RC's harassment was a known consequence of such noncompliance. -16- expert, Dr. Dragan, testified only that Tewksbury could have done more. Thus, there was no evidence from which it could be inferred that Tewksbury had reason to believe that RC was continuing to sexually harass SC. In other wor d s , further sexual harassment, much less sexual intercourse , was not a "known or obvious consequence" of Tewksbury's failure to accompany SC to his locker on January 11, 2001. 6

Therefore, this is not a case, as the Portos contend, where a school "continued to use the same ineffective methods to no acknowledged avail." Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253, 262 (6th Cir. 2000). By all indications, Tewksbury's methods were working: until January 11, 2001 , Tewksbury was not aware that RC had been engaging in any further sexual harassment after October 2000. Nor is this c a s e analogous to Williams v. Board of Regents, 477 F.3d 1282 (11th Cir. 2007), where the Eleventh Ci r c u it found that the plaintiff had adequately alleged that University of Georgia was deliberately indifferent when it failed to properly instruct or supervise a student athlete who had recently been accused of sexual harassment while attending another institution. In Williams, prior to attending the Unive r s ity of-17-

Georgia, a student athlete had been disciplined by two colleges for sexual assault and sexual harassment. Id. at 1290. Thus, recent history suggested that the interventions by t h e student's former schools -- dismissal of the student from one school and dismissal from the other's basketball team -- had not been successful in curbing the student's inappropriate sexual behavior. Based on her claims that the defendants failed to properly instruct or supervise the student to make sure that he did not sexually assault persons affiliated with the university, the plaintiff ade q u a tely alleged that the defendants exhibited "deli b erate indifference" to an obv i o u s c o n s e qu e n c e o ft h e i ri n a c t i o n , i
. e . , a n o t h e rs e x u al assault. Id. at 1296. In the present case, the evidence clearly shows that after Traveis's intervention, Tewksbury reasonably believed that it had been successful in stopping RC's inappropriate behavior. Because continued sexual harassment was not a "known or obvious consequence" of the school's i n a c t i on as in Vance and Williams, Tewksbury cannot have b e e ndeliberately indifferent to SC's plight.

More analogous to the situation in this case is Gabrielle M. v. Park Forest-Chicago Heights, I l l inois School District 163, 315 F.3d 817 (7th Cir. 2003). In Gabrielle M., school of f i c i als initially suspe n d e d a boy who had been sexually harassing female classmates. Id. at 819. After the boy returned to school, administrators eventually allowed the boy to return to lunc h t i me-18-

and recess with the classmates, but asked aides to keep an eye on him. Id. at 819-20. The Seventh Circuit held that this was not an unreasonable response to the known risk that the boy might harass his classmates again:

Davis [v. Monroe County Board of Education, 526 U.S. 629 (1999)] does not require funding recipients to remedy peer harassment. Davis disapproved of a standard that would force funding recipients to suspend or expel every student accused of misconduct. All that Davis requires is that the scho ol not act clearly unreasonably in response to known instances of harassment. Here, in light of each of the immediate disciplinary and preventative steps the school district had already taken in response to Jason's conduct, including most prominently the decisions to move him to another class entirely and eventually to grant Gabrielle's request for a school transfer, it w a s n o t c l e a r l yu n r e a s o n a b l e a s am a t t e rof law initially to assign an instructor to oversee a communal recess and lunch period instead of immediately rescheduling the lunch and recess period for a whole kindergarten class. Id. at 825 (internal citations omitted). Likewise, Tewksbury acted reasonably in responding to RC's inappropriate touching by separating RC and SC and sending them to the guidance counselor. Thus, drawing all inferences favorable to the Portos, the evidence in this case overwhelmingly fails, as a matter of law, to demonstrate that Tewksbury acted with deliberate indiffer e n c e in failing to address RC's sexual harassment of SC. Therefore, theBecause we find that t h e e v i d e nce presented at trial was 7 insufficient, we see no reason to reach Tewksbury's claims as to damages. Likewise, as we noted before, we need not address Tewksbury's claims regarding evidentiary rulings or jury inst r u c t i o n s . F i n a l l y , b e c a u s e w e h a v e v a c a t e dt h e j u d gme nt against Tewksbury, we also vacate the judgment awarding attorneys' fees to the Portos. See 42 U.S.C. § 1988(b) (authorizing, in the discretion of the district judge, the award of attorneys' fees to the prevailing party). -19- Portos cannot prevail on their claim, and the district judge should have granted Tewksbury's motion for a directed verdict. 7 III. Conclusion For the foregoing reasons, we reverse the judgment of the district court, and remand with instructions to the district court to enter judgment in favor of Tewksbury. No costs to either party.

Reversed.