Vance ex rel. Vance v. Spencer County Public School District

GILMAN, Circuit Judge,

concurring.

I concur in the result reached by the court, as well as in its conclusions regarding the harassment of Ama McGowen and the knowledge of the Spencer County Public School District. Nevertheless, I write separately because the court does not directly address what I perceive to be Spencer’s main complaint with respect to the jury instructions.

According to Spencer, the jury instructions regarding the Board’s liability under Title IX did not conform to the law as set forth in Davis v. Monroe County Bd. Of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). Spencer argues that the jury was led to believe that the Board is strictly liable for student-on-student sexual harassment, regardless of Spencer’s remedial actions, if the harassment did not in fact stop. I disagree.

To be fair to the district court, the standard of liability for student-on-student sexual harassment was not articulated by the Supreme Court in Davis until after judgment had been entered in the instant case. Nevertheless, the district court’s jury instructions anticipated Davis by adopting the proper standard for liability as described in Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 292-93, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (requiring that a student who is sexually harassed by a teacher prove both actual notice to and deliberate indifference by a school district for such an entity to be held liable for damages under Title IX).

*265 The instructions required a finding that (1) McGowan was being subjected to a hostile sexual environment, (2) timely notification was given to a Spencer official of this hostile environment, and (3) Spencer exhibited deliberate indifference toward remedying the hostile sexual environment despite its actual knowledge. These are in fact the proper elements to establish liability according to Davis. See Davis, 526 U.S. at 650, 119 S.Ct. 1661. The only difference between the language in Davis and the jury instructions at issue was in the definition of the term “deliberate indifference.”

Deliberate indifference was essentially defined by the district court as an awareness on the part of the Board that its action or inaction based on its knowledge of the harassment would, with substantial certainty, subject the student to more harm. Thus, the instructions correctly concentrated on the actions of Spencer and not on the actions of the harassing student. Indeed, these instructions would have permitted a finding of no liability even if the harassment had continued, so long as Spencer did not act with deliberate indifference. This is not substantially different from the Davis formulation that a finding of deliberate indifference is justified “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, 119 S.Ct. 1661.

The district court’s summation of the standard of liability, therefore, was at least substantially accurate. See Clarksvitte-Montgomery County Sch. Sys. v. United States Gypsum Co., 925 F.2d 993, 1003 (6th Cir.1991) (“A jury instruction which states the law with substantial accuracy and fairly submits the issues to the jury will not provide grounds for reversal.”). Because the instructions showed “no tendency to confuse or mislead the jury with respect to the applicable principles of law,” id., I conclude that any error in the district court’s definition of deliberate indifference was harmless. I thus concur in the opinion of my colleagues.