Grace v. Board of Trustees, Brooke

• Court: Court of Appeals for the First Circuit
• Decided: October 19, 2023
• Docket: 22-1742
• Status: Published

Opinion

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 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).

- 2 - 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 name-

calling 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

- 3 - 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

- 4 - 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.

- 5 - 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

- 6 - 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-to-

peer 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 name-

calling 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

- 7 - 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.

- 8 - 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."

- 9 - 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

- 10 - 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

- 11 - 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

- 12 - 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

- 13 - 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

- 14 - 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

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

at MG which hit him. Dudley relayed this information to Co-

Director 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

- 16 - 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.

- 17 - 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

3After 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.").

- 18 - 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)).

- 19 - 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.

- 20 - 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

- 21 - 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

- 22 - 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

- 23 - 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

- 24 - "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

- 25 - 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

- 26 - 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

- 27 - 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.

- 28 - 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.

- 29 - 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.

- 30 -