IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40093

K. S.; NEONDA NECOLE THOMAS, as next friend of K.S., 

 Plaintiffs - Appellants 

v. 

NORTHWEST INDEPENDENT SCHOOL DISTRICT, 

 Defendant - Appellee 

Appeal from the United States District Court 

for the Eastern District of Texas 

USDC No. 4:13-CV-188

Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.*

PER CURIAM:**

K.S., a sixth grader at the time of these events, claims he was subjected 

to student-on-student sexual harassment in violation of Title IX. The district 

court, adopting the magistrate judge’s report and recommendation, held that 

K.S. failed to create a fact issue on two essential elements of his Title IX claim

and granted summary judgment. We AFFIRM. 

 

* Judge James E. Graves, Circuit Judge, concurs in the judgment only.

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 2, 2017

Lyle W. Cayce

Clerk

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FACTUAL AND PROCEDURAL BACKGROUND 

K.S.1 was a sixth-grade student at Tidwell Middle School in Northwest 

Independent School District (the “District”) for one semester, from September 

2010 through January 2011. He alleges that, while at Tidwell, he was 

harassed because of his sex by a number of other students. 

According to K.S., the harassment began shortly after he started at 

Tidwell. Many separate events make up his claim. Most center in some way 

on the fact that at that time he had large breasts. On the school bus, in the 

school hallways, in the PE locker room, and elsewhere, he was called names

such as “titty boy” and “Teddy titty baby.” In addition to name calling, students 

would touch and even twist his breasts in the PE locker room, the school

hallway, and elsewhere.2 

The school’s principal, Mr. Conklin, and vice principal, Ms. McCormick, 

were made aware of incidents that occurred early on in the semester. Conklin 

told the PE coaches to be sure they were monitoring the locker room when 

students were changing, noting that the locker room “is a prime opportunity 

for students to misbehave or bully other students.” K.S. was told he could go 

see the school counselor “Ms. Allred whenever [he] want[ed] to and that she 

would start helping [him] with the problems.” Allred maintained this opendoor policy throughout the year, and K.S. utilized it. 

K.S.’s difficulties persisted throughout the semester. The perpetrators 

were at times disciplined, but not always. Sometimes K.S. was thought to be 

 

1 K.S.’s mother, Neonda Necole Thomas, brought this suit on his behalf. This opinion 

refers to them collectively as “K.S.,” using the pronouns “he” and “him” rather than “they” 

and “them.” 

2 In his declaration, K.S. says that students would laugh at him when he undressed, 

calling him “the blob,” “jiggle puss,” “gay,” “faggot,” “girl,” “titty boy,” or “jiggly puss.” They 

would also tell him that he had “women’s titties,” among other things. When doing so, he 

says they would also pinch his breasts. 

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at fault, and he was disciplined. Sometimes both K.S. and others were 

disciplined for the same altercation. There were a few fairly intensive 

investigations in which multiple student statements were taken, which led to 

different variations of discipline. 

On October 19, 2010, the District received a letter from K.S.’s attorney 

stating that K.S. “ha[d] been subjected to bullying on school grounds and on 

the school bus.” The letter contained no suggestion that the harassment was 

sexual in nature or was based on K.S.’s sex. 

The problems may have escalated in November 2010. In early 

November, three students verbally harassed and pushed K.S. as he walked to 

class. K.S. pushed back. Before the situation could escalate further, a teacher 

stepped in to stop it. Both K.S. and the student who pushed him were 

suspended. Finally, on December 15, K.S. was involved in a fight. A boy who

had previously slapped K.S. on the bus ridiculed the way K.S. walked.3 The 

boy told K.S. that “he could beat [him] up.” Despite K.S.’s warning not to touch 

him, the boy grabbed his chest. K.S. then hit him. This fight, recorded on 

campus video, was the last incident of the semester. K.S. was suspended. The 

record is unclear whether and to what extent the other student was disciplined. 

The next day, the school received letters from K.S.’s counselor and doctor 

describing his depression and its relation to “bullying at school” and the 

“harassment, teasing, and physical aggression from peers.” His doctor further 

noted that his “depressive order [was] severe enough that it [was] impacting 

his level of functioning at school.” Neither letter mentioned sex-based 

harassment. 

 

3 In late October and early November, K.S. told this boy, on multiple occasions, that 

he hoped the boy’s father died. The boy’s father had cancer. 

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K.S. identifies evidence that he says supports that his semester was 

affected by his depression and his difficulties with other students. K.S. says

he changed in the bathroom to avoid the locker-room harassment and that he 

took alternate routes to class to avoid being harassed in the halls. He was 

absent or suspended for 17 full days of class, and he was partially absent for 

at least 15 other days. Some of the absences were suspensions and doctor’s 

appointments; others were unexcused. The record does not contain evidence 

explaining many of these absences much less linking them to the bullying. In 

November, K.S. attempted suicide by taking five pills of Melatonin. Overall, 

his grades were not significantly affected. A grade in one class decreased 

somewhat significantly after the first grading period, but his grades in his 

other classes were essentially unchanged or improved slightly. 

On January 4, 2011, the first day of the spring semester, the school 

decided to proceed with a psychological evaluation of K.S., told teachers to 

monitor K.S. both in the class and hallways, provided counselors to escort K.S. 

to and from the restroom, and required K.S. to sit behind the bus driver to 

avoid altercations on the bus. That same day, though, K.S. and his mother 

decided he would not return to Tidwell. On January 14, K.S. withdrew from 

Tidwell and moved to Louisiana.4 

K.S. filed this suit in April 2013. In August 2014, he amended the 

complaint to allege only Title IX sex-based, student-on-student discrimination. 

Shortly thereafter, the District moved for summary judgment. On December 1, 

2015, the magistrate judge recommended that summary judgment be granted 

because K.S. failed to raise a fact issue as to two elements of his Title IX claim: 

 

4 After withdrawing in 2011, K.S. filed three levels of grievances with the District, all 

of which were denied. Thereafter, K.S. also received a due-process hearing with a Texas 

Education Agency Hearing Officer. The Hearing Officer denied relief, finding, among other 

things, that the District investigated each incident of bullying reported by K.S. 

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(1) that K.S. was effectively barred access to an educational opportunity or 

benefit and (2) that the District was deliberately indifferent to known 

harassment. K.S. did not file any objections. On December 23, 2015, the 

district court adopted the magistrate judge’s report and recommendation and 

entered judgment denying relief. K.S. timely appealed. 

DISCUSSION 

Our standard of review is controlled by the fact that there was no 

objection by K.S. to the magistrate judge’s report and recommendation. 

Usually, the district court “shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to 

which objection is made.” 28 U.S.C. § 636(b)(1). When a district court adopts 

the report and recommendation after no objection was made, we review only 

for plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428–29 

(5th Cir. 1996) (en banc).5 When we established that review standard, we 

added a caveat that the party claiming error on appeal after not objecting in 

the district court must have been “served with notice that such consequences 

will result from a failure to object.” Id. at 1429. Here, the magistrate judge 

cited Douglass in his report and explained the effect of not objecting. K.S. did 

not object. We therefore review only for plain error. 

To establish plain error, K.S. must show: (1) the magistrate judge erred, 

(2) the error was clear or obvious, (3) the error affected K.S.’s substantial 

rights, and (4) this court should exercise its discretion to correct such error 

because it seriously affects the fairness, integrity, or public reputation of 

 

5 Section 636(b)(1) was revised after Douglass. We agree with the analysis of an 

unpublished opinion holding that the revision did not affect Douglass’s holding. Lampkin v. 

Bank of America, N.A., 644 F. App’x 366, 366–67 (5th Cir. 2016). 

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judicial proceedings. See Lerner v. Freeh (In re: Deepwater Horizon), 824 F.3d 

571, 583 (5th Cir. 2016). 

We start with an overview of the legal regime under which this suit was 

brought. Title IX states: “No 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). “[S]tudent-on-student sexual 

harassment, if sufficiently severe, can . . . rise to the level of discrimination 

actionable under” Title IX. Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of 

Educ., 526 U.S. 629, 650 (1999). For the District to be liable for student-onstudent harassment under Title IX, K.S. must show: (1) the school had actual 

knowledge of the harassment; (2) the harasser was under its control; (3) the 

harassment was based on his sex; (4) the harassment was “so severe, pervasive, 

and objectively offensive that it effectively bar[red] [his] access to an 

educational opportunity or benefit”; and (5) the school was “deliberately 

indifferent” to the harassment. Id. at 633, 646–47. 

The error K.S. identifies on appeal is stated quite generally: the district 

court erred in granting summary judgment on the Title IX claim. Though not 

stated as separate issues, K.S.’s brief has a section setting out the evidence to 

support that the bullying and harassment were “severe and pervasive.” There 

is a separate section of the brief making arguments that the District was 

deliberately indifferent. We consider those two as the specific issues raised on 

appeal. Unless K.S. shows plain error on both issues, we must affirm. Our 

review of the record convinces us that the district court did not plainly err at 

least in holding there was no genuine issue of material fact as to deliberate 

indifference. As a result, we will set out only our analysis of that issue. 

To prevail on a student-on-student Title IX claim, a plaintiff must show 

that a school which received federal funds was “deliberately indifferent” to 

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sexual harassment “of which [it] ha[d] actual knowledge.” Id. at 650. 

Deliberate indifference “is a high bar, and neither negligence nor mere 

unreasonableness is enough.” Sanches v. Carrollton-Farmers Branch Indep. 

Sch. Dist., 647 F.3d 156, 167 (5th Cir. 2011). Rather, a school’s response must 

be “clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. 

at 648. Under this standard, a school’s response need not be effective in 

remedying the harassment, and no particular remedial action is required. 

Sanches, 647 F.3d at 168. We are to “refrain from second-guessing the 

disciplinary decisions made by school administrators,” who “must merely 

respond to known peer harassment in a manner that is not clearly 

unreasonable.” Davis, 526 U.S. at 648, 649. On summary judgment, it is 

appropriate for a court to characterize “a response as not ‘clearly unreasonable’ 

as a matter of law.” Id. at 649. 

K.S. makes two main arguments concerning deliberate indifference. He 

first argues that the District’s responses to the harassment were so ineffective 

as to be clearly unreasonable. He also argues that the District’s failure to 

follow its own policies and the federal Office for Civil Rights guidelines 

constitutes deliberate indifference. 

We examine two of our precedents on these points. First, we have held 

that a school district was not deliberately indifferent to severe and pervasive 

racial harassment when it “took some action in response to almost all of the 

incidents noted by Plaintiffs.” Fennell v. Marion Indep. Sch. Dist., 804 F.3d 

398, 410 (5th Cir. 2015). The district there took some “relatively strong action 

to address the most egregious incidents.” Id. For example, the district allowed 

a plaintiff to park in the teacher’s lot and work in the counselor’s office after a 

noose was found near her car in the school parking lot; it provided another 

plaintiff with an aide to walk her to school. Id. We also described students 

being suspended for calling a plaintiff “stupid n---er” a “strong action.” Id. 

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Other responses, though, were “relatively weak,” such as when the district 

merely reprimanded students after they put a shoelace noose in a plaintiff’s 

gym locker. Id. at 411. Still, we held the district’s weaker responses, even if

“concerning,” were “not tantamount to [the district] intentionally ‘subjecting 

its students to harassment.’” Id. (quoting Davis, 526 U.S. at 644) (alterations 

omitted). “Because some action was taken in an attempt to address each of 

these issues, these incidents [did] not create a genuine issue of material fact as 

to deliberate indifference.” Id. 

Like in Fennell, the District here took some action in response to the 

specific incidents alleged by K.S. and to the overall situation. See id. at 410. 

Throughout the semester, the District investigated and took action when K.S. 

or his mother complained or when K.S. was involved in an altercation. Often, 

after investigation, it reprimanded or talked to the students involved, and it 

sometimes suspended them. In Fennell, we called suspending students for 

misconduct a “relatively strong action.” Id. Here, school officials also 

attempted to talk with K.S. and the other students involved in an effort to help 

them get along. 

It is true that K.S. was sometimes one of the students suspended as a 

result of the District’s investigations. Yet the record does not contain evidence 

that all or even most of K.S.’s suspensions were linked to sex-based 

harassment, which is the only type of harassment relevant to our inquiry. 

Instead, the magistrate judge found that most of K.S.’s suspensions were a 

consequence of his own misconduct. K.S. did not object to that finding, and it 

is not plainly erroneous. Similarly, the record does not indicate that K.S. was 

suspended simply for defending himself from sex-based harassment. The 

magistrate judge found that he was suspended due either to his 

insubordination or to his own contribution to the altercations with his peers. 

K.S. did not object to this finding either, and it is not plainly erroneous. In 

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summary, the record does not show that the District was aware of numerous 

incidents of sex-based harassment but failed to respond. 

Moreover, although its response was preempted by K.S.’s decision to 

withdraw from Tidwell, the District took relatively strong action to deal with 

the overall situation. That is, before the start of the spring semester, after 

receiving letters from K.S.’s doctor and counselor, the District decided to move 

forward with a psychological evaluation of K.S., told teachers to monitor him 

at school, provided counselors to escort him to and from the restroom, and 

required him to sit behind the bus driver to avoid altercations on the bus. 

K.S. argues that the declaration he offered as evidence on summary 

judgment supports that he complained far more often than the District 

responded. The declaration states that he went to Principal Conklin’s office 

“one to two times a week” to report various types of harassment, but the 

principal and others did not respond to many of those complaints. We agree 

with the district court that the claim constitutes a generalized and 

unsupported statement of fact. Similar to what we held in Fennell, these 

generalized statements do not create a genuine dispute of material fact that 

school officials were deliberately indifferent. See id. at 411. Without knowing 

the specific incidents, what was told to Principal Conklin or other school 

administrators, and exactly what the response was, K.S.’s argument fails for 

lack of supporting facts.6 See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889

(1990); see also Fennell, 804 F.3d at 411. 

 

6 Likewise, K.S.’s statements that he was harassed “repeatedly,” “constantly,” and 

“almost every day,” cannot serve to avoid summary judgment. For his part, the magistrate 

judge denied the defense motion to strike the declarations of K.S. and his mother. Insofar as 

the generalizations conflicted with the deposition testimony, however, he “agree[d] that a 

party generally cannot defeat summary judgment by offering an affidavit that conflicts with 

prior deposition testimony.” As to the “alleged vague, conclusory, self-serving language such 

as ‘repeatedly,’ ‘often,’ [and] ‘several occasions,’” he found that the summary-judgment 

evidence “speaks for itself.” 

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There were also inconsistencies between some of the general and the 

more specific claims. For example, K.S. includes chest-grabbing in his 

declaration as a type of harassment he reported to Conklin “one to two times a 

week.” Yet his deposition makes clear that he did not report chest-grabbing 

incidents on a weekly basis: 

Q. Okay. So you’ve described three different incidents of you being 

touched on the breast. 

A. Yes. 

Q. And you can’t recall any other ones; right? 

A. No, sir. 

Q. Okay. One we know about because that’s the one that was 

investigated about the bus; right? 

A. Yes, sir. 

Q. And that girl who touched you on the — on the breast was 

disciplined; correct? 

A. Sort of, yeah. 

Q. And then these other two incidents that you just told me about, 

have you ever told anybody about those incidents before? 

A. My mom. 

Q. Okay. Did you tell anyone at school about those incidents? 

A. No, sir. 

Generalizations that are contradicted by deposition testimony will not 

prevent summary judgment. “It is [also] well settled that this court does not 

allow a party to defeat a motion for summary judgment using an affidavit that 

impeaches, without explanation, sworn testimony.” S.W.S. Erectors, Inc. v. 

Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996); see also Turner v. Baylor 

Richardson Med. Ctr., 476 F.3d 337, 346 (5th Cir. 2007). Aside from these 

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supposedly constant, yet unspecified, incidents and reports, K.S. does not point 

to any specific incidents of harassment that were not investigated.7

It is clear, then, that the substance of K.S.’s argument is not that the 

District did not respond, but that its response was ineffective. Indeed, K.S. 

acknowledges that “[t]here is no doubt that [the District] investigated a 

number of incidents,” and that when it “did investigate, [it] often responded 

appropriately.” “School officials are given broad latitude to resolve peer 

harassment,” and thus a district is liable only when its responses to such 

harassment are clearly unreasonable in light of known circumstances. Fennell, 

804 F.3d at 411 (quoting Doe v. Galster, 768 F.3d 611, 617 (7th Cir. 2014)). The 

District cannot be liable because its disciplinary choices were not effective. Nor 

will “[m]ere negligence . . . suffice.” Id. at 410. 

Nothing here suggests the responses were so unreasonable so as to

satisfy the “high bar” this standard imposes. See Sanches, 647 F.3d at 167. 

The District disciplined students and responded to every instance of 

harassment specifically identified in the record. It investigated K.S. and his 

mother’s complaints, often intensively. Even if the District was incorrect in 

some of its findings that K.S. was the instigator, and we do not know that it 

was, such would reflect only the difficulties of fact-finding — not indifference. 

“Title IX does not require flawless investigations or perfect solutions.” Id. at 

170. Even when a school’s efforts are ineffective, the responses need to have 

 

7 In his deposition but not in his briefing, K.S. says the District did nothing after two 

additional incidents: the mushroom-throwing fight and the incident after which the coach 

told him not to run home to his mother. It is clear, though, that something happened 

following these incidents. See Fennell, 804 F.3d at 410–11. Initially, the record does not 

support that the mushroom-throwing fight was related to K.S.’s sex. Even if it were, the 

school talked to both boys about how to avoid conflict in the future but punished neither. 

Likewise, the coach who made K.S. do sit-ups and told him not to cry home to his mother was 

admonished for his unprofessionalism. At his mother’s request, K.S. was also taken out of 

PE until she could meet with the school. 

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been clearly unreasonable in light of the allegations. Doe ex rel. Doe v. Dallas 

Indep. Sch. Dist., 220 F.3d 380, 384, 388–89 (5th Cir. 2000). Perhaps, as K.S. 

argues, the District should have taken swift and decisive action to remedy 

what K.S. now claims is sex-based harassment,8 “but such an allegation would 

sound in negligence, not deliberate indifference.” See Sanches, 647 F.3d at 170 

(quotation marks omitted). We agree there is no genuine dispute of material 

fact that the District’s responses, even if ineffective, were not clearly 

unreasonable. 

K.S. also argues that the District failed to follow its own procedures and 

the federal Office for Civil Rights guidelines regarding sexual harassment. We

rejected a substantially similar argument in Sanches. See id. at 169–70. 

There, the plaintiff “claim[ed] the district was deliberately indifferent because 

it failed to follow its own procedures regarding sexual-harassment complaints.” 

Id. at 169. The harassment policy, she claimed, required the principal to 

contact the Title IX coordinator or superintendent following allegations of 

harassment, “and [the school’s] failure to do so [was] evidence of deliberate 

indifference.” Id. We disagreed, noting the Supreme Court had already 

rejected this argument. Id. (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 

U.S. 274, 291–92 (1998)). Indeed, in Gebser, the Court said that “failure to 

comply with [federal] regulations . . . does not establish the 

requisite . . . deliberate indifference.” See Gebser, 524 U.S. at 291–92. The 

Court has never held “that the implied private right of action under Title IX 

allows recovery in damages for violation of those sorts of administrative 

requirements.” Id. at 292. 

 

8 K.S. now claims he reported chest-grabbing and name-calling constantly, but neither 

he, his mother, his lawyer, his doctor, nor his counselor referenced anything that should have 

alerted the District to anything more than middle-school bullying. The District’s disciplining 

and talking to students for bullying — and for getting into fights — was not a clearly 

unreasonable response to the conduct it knew about. 

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Even if the District failed to follow guidelines from the Office for Civil 

Rights or even its own policies, deliberate indifference is not thereby shown. 

The district court did not plainly err when it determined that K.S. failed 

to raise a genuine issue of material fact as to whether the District was 

deliberately indifferent to known harassment. 

AFFIRMED. 

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