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

United States Court of Appeals

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. *
-2-

Samuel 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 Education

Amendments 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 individual capacities and on

behalf 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 jury 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

insufficient to sustain the jury's conclusion that Tewksbury was

deliberately indifferent to the student-on-student sexual

harassment, and as such, we 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 could 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 court 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, Nicholas 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

years old. Although the Massachusetts Department of Education

identified SC as being developmentally and mentally disabled, and

thus eligible for special education services, he initially was

placed in a standard first grade class. But after a month, SC's

teacher thought he needed more specialized attention, and he was

placed in special education classes, where he stayed for the

remainder of his tenure in the Tewksbury schools.

SC met another boy, RC, 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 school 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 incident 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 morning, 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 assigned to 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 while 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 involving

inappropriate touching under a workstation table.

After the 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 asked Edelstein

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 that neither 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 Robert Ware, the Behavior Management

Facilitator at Wynn Middle School, 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 with RC, and

that he and RC had been touching each other on a weekly basis for

some time. Ware informed James McGuire, the principal of Wynn

Middle School, about the incident. McGuire called SC's parents,

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 and 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 time
 The 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

Massachusetts law claims against Tewksbury, which were later

dismissed, and the Portos do not appeal this decision. Finally,

the Portos initially brought claims under 42 U.S.C. § 1983 against

various individuals who worked for the Tewksbury public school

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. After the 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 Chem. Co., 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.

Under Title IX of the Education Amendments of 1972, a

recipient of funding from the United States Department of Education

may be liable for damages if "its deliberate indifference [to

peer-on-peer sexual harassment] 'subjects' its students to
-10-

harassment." Davis v. Monroe County Bd. of Educ., 526 U.S. 629,

644 (1999). A funding recipient is deliberately indifferent 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, 'cause [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 recipient. 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 funding 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 the plaintiff to be deprived of

educational opportunities or benefits. Even then, Davis restricts

a funding recipient's liability under Title IX for 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 response
 Thus, we explicitly 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 opportunities or benefits. Even making these 4

assumptions, we do not think that the Portos presented sufficient

evidence such that a rational 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 was harassing 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 of sexual harassment

between RC and SC that culminated in the school-bus incident in

fifth grade, Tewksbury should have not allowed SC to 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 response 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 action" 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 headquarters for a candidate, with the

obvious consequence that employees who were supporters of the rival

candidate would feel that they had been discriminated against in

violation of their First Amendment rights. 467 F.3d 16, 25 (1st

Cir. 2006). In the educational setting, we have suggested that a

school might be deliberately indifferent to a teacher's sexual

harassment of a student where it had notice of the sexual

harassment, and either did nothing or failed to take additional

reasonable measures after it learned that its initial remedies were

ineffective. Wills v. Brown Univ., 184 F.3d 20, 26 (1st Cir.

1999).

The Portos do not claim that Tewksbury did nothing to

address RC's sexual harassment of SC. They acknowledge that

Tewksbury separated 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 Educ., 200 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 that RC's inappropriate sexual behavior was

not abated. However, 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 by Tewksbury at the time. The test for whether

a school should be liable under Title IX for student-on-student

harassment is not one of effectiveness by hindsight.

The Portos' proof is inadequate on 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 the 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

inappropriate sexual behavior by RC. Edelstein offered

uncontradicted testimony that the boys had never given a "reason

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 anyone
 Nor were the Portos aware of any sexual harassment during this 5

period. In fact, Ann Marie Porto met with school officials in

November 2000, but did not report any additional instances 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

Tewksbury was 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' 5
 Likewise, the fact that Tewksbury did not have a sexual 6

harassment policy that complied with Department of Education

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 words, 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 case analogous to Williams v.

Board of Regents, 477 F.3d 1282 (11th Cir. 2007), where the

Eleventh Circuit 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 University 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 the 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 adequately alleged

that the defendants exhibited "deliberate indifference" to an

obvious consequence of their inaction, i.e., another sexual

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 inaction as in Vance and

Williams, Tewksbury cannot have been deliberately indifferent to

SC's plight.

More analogous to the situation in this case is Gabrielle

M. v. Park Forest-Chicago Heights, Illinois School District 163,

315 F.3d 817 (7th Cir. 2003). In Gabrielle M., school officials

initially suspended 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 lunchtime
-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 school 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

was not clearly unreasonable as a matter of

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 indifference in

failing to address RC's sexual harassment of SC. Therefore, the
 Because we find that the evidence 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

instructions. Finally, because we have vacated the judgment

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.