Brodeur v. Claremont School District

ORDER

Elaine and William Brodeur, and their daughter, Nicole, have sued the Claremont School District, the principal of its high school, and a former teacher there, alleging violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), and a number of state law causes of action arising out of certain offensive comments the teacher made to Nicole, and their aftermath. The defendants have moved for summary judgment on all of the plaintiffs’ claims.

This court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction). After hearing oral argument, and for the following reasons, the defendants’ motions for summary judgment are granted in part and denied in part.

I. Applicable legal standard

Summary judgment is appropriate where the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In making this determination, the “court must scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party’s favor.” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15,19 (1st Cir.2003).

To comprise part of the record on summary judgment, however, proffered testimony “must be made on personal knowledge, set out matters that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(e)(1). The defendants, in their reply memorandum, protest that some of the testimony relied on by the plaintiffs in opposing summary judgment runs afoul of this rule, because it is hearsay. Specifically, the defendants object to the Brodeurs’ testimony relating what others, including Nicole and one of her classmates, told them; testimony by Nicole’s English teacher relating what others told him about Grumman’s behavior; and an unauthenticated record from a counselor who treated Nicole.

“It is black-letter law that hearsay evidence cannot be considered on summary judgment.” Davila v. Corporación De P.R. Para La Difusión Pública, 498 F.3d *199 9, 17 (1st Cir.2007). Much of the evidence to which the defendants object appears to be hearsay, i.e., out-of-court statements offered to prove the truth of the matters asserted, that does not readily fit within any of the recognized exceptions. And the plaintiffs have not carried their burden to show that any of those exceptions apply, see United States v. Gaines, 170 F.3d 72, 79 (1st Cir.1999), or, indeed, made any response at all to the defendants’ objections. In ruling on summary judgment, then, the court has not considered the hearsay statements proffered by the plaintiffs and specifically challenged as hearsay by the defendants. See Perez v. Volvo Car Corp., 247 F.3d 303, 314-15 (1st Cir.2001).

II. Background

A. The harassing remarks

At the start of Nicole’s sophomore year at Stevens High School in Claremont, when she was 15 years old, defendant Gene Gramman was her biology teacher. Grumman, himself 55 years old at the time, had been teaching at Stevens for the past 25 years. The biology course lasted one semester, from September 2005 until mid-January 2006. Within the first two months of the school year, Grumman made several remarks about Nicole’s buttocks. Nicole described these remarks as “weird statements” or “sick comments,” about five or six in all.

In one, Grumman was explaining the concept of the genetic code through an analogy in which Nicole was in love with a boy in the class, but had been locked in her room by her parents as punishment for seeing him. Grumman asked the class to suggest ways that Nicole could still communicate with the boy, leading one student to suggest that she climb out the window. Grumman said in response, according to Nicole’s contemporaneous account, “with that huge rubus of hers and those hips there’s no way she would fit. And then ... she would be so grounded that her parents wouldn’t feed her dinner, but maybe that would help.” 1

On another occasion, Grumman, in Nicole’s words, “talked about my — my butt and how if I was walking down the hallway that I would knock out all of the lockers because it was so big.” As a result, Nicole recalled, “everyone used to look at me when I was walking down the hallway because he pointed that out.” Grumman himself remembered a different incident where he asked a boy in the class to draw a circle on the chalkboard to represent a cell, but the boy drew the circle too small. So Grumman told him, “You have to make it bigger. Make it as big as Nicole’s butt.” 2 The boy drew a circle of “exaggerated” size in response, eliciting laughter from some of the other boys in the class.

In yet another incident, Nicole arrived for class wearing pants with one of the nicknames for the school’s athletic teams, “Big Red,” emblazoned across the bottom. 3 Pointing at the pants, Grumman said, “Oh, that’s what you call it these days,” which Nicole understood to refer to the size of *200 her buttocks. Grumman made a similar comment to another girl in the class who was wearing pants with that design, Caitlin Ouellette, telling her, “I called you many things but ‘Big Red’ is definitely a new one” (spelling corrected).

During the same time period, in fact, Grumman made other like comments about Caitlin as well, about five or six in total, according to Nicole. Once, Grumman told the class that a person kills 1,000 “butt cells” just by sitting down, but— pointing to Caitlin — “Big Red over here must kill about 2,000 every time she sits down.” Yet another time, after a boy in the class showed Grumman a sticker and asked him, “Isn’t that sexy?” Grumman pointed to Caitlin “in front of the whole class” and said, “I think that’s sexy but the sticker isn’t” (spelling and punctuation corrected). The summary judgment record contains evidence, either direct or circumstantial, that Nicole witnessed all of these incidents. 4 Grumman did not make such comments about any of the boys in the class.

B. Nicole’s complaint and the school’s response

By roughly the middle of October, Nicole told her parents about Grumman’s comments. Her parents, in turn, told her to tell her guidance counselor, Jacquelyn Hall. Nicole, accompanied by Caitlin, met with Hall on October 20, telling her that Grumman “was saying some things that made them feel uncomfortable.” 5 After Nicole began relating Grumman’s comments about her getting stuck in the window, Hall directed her and Caitlin to write the comments down, which they did, in signed statements that described all of the incidents just discussed.

Hall assured Nicole that she would give her statement to the school’s principal, who would “talk to Mr. Grumman and hopefully it will stop. And if it doesn’t stop you need to let me know.” Hall says that she also informed Nicole of the possibility that she could transfer to another biology class with a different teacher, but that the switch would have necessitated changing two other class as well, and that Nicole said “she would wait to see how it went before she did that.” Nicole, though, denies that anyone ever offered to switch her out of Grumman’s class.

Within a few days of Nicole’s meeting with Hall, the principal, defendant Leo Paul Couture, had reviewed Nicole’s statement and met with Grumman and a representative from the teachers’ union. Grumman did not deny making the comments described in the statement — which included the remarks about her getting stuck in the window and the “Big Red” nickname on her pants — but, in Couture’s words, “put it in context.” 6 Grumman explained, for example, that the window' comment was intended to convey that the DNA mol *201 ecule, because of its relatively large size, could not fit through the pores in the nucleus of the cell. Grumman also explained that the comment about the pants was an honest inquiry about the school’s nickname. Couture told Grumman that his comments “were inappropriate and the students did not find them to be humorous.” Couture did not, however, consider the comments to be sexual harassment. In any event, Grumman agreed not to “make those types of comments anymore.”

Couture arranged a meeting with Nicole, Caitlin, and the school’s vice principal roughly one week later. Couture told Nicole that, having read her statement, he found Grumman’s comments inappropriate, met with him, and directed him to stop making such remarks. Couture also conveyed that Grumman wanted to apologize. Nicole’s response to this information was “quiet,” according to Couture, or “like, okay,” according to her. At the end of the meeting, Nicole and Caitlin were directed to go back to Grumman’s class (where, it appears, they had been when summoned to the meeting), which made Nicole “really uncomfortable.” Grumman recalls that, after the girls returned, Couture arrived and, outside of the classroom, informed him “that they did not wish to speak to me, they did not wish an apology individually in front of the class or anything of that sort.” Nicole confirmed that those were her wishes because, as she put it, “I didn’t want him around me.”

Nicole perceived that Grumman “acted differently” toward her after her meeting with Couture: he put her in the back of the class, called on her less, did not take her questions, and “kind of shrugfged] [her] off.” But when Hall, the guidance counselor, called Nicole in for a meeting at the end of October to follow up on her complaint, Nicole said there had been no further issues. Nicole made similar remarks to Hall in November, when she also said that biology class was going fine, and in March, after the course had ended. In line with these reports, Nicole testified at one point in her deposition that Grumman’s offensive statements stopped “very quickly” after she complained to Hall; elsewhere in her deposition, however, she said that Grumman “made a few” comments she “felt were inappropriate” even after that point, though the plaintiffs have not endeavored to explain what those were. 7 Nicole received a grade of B + in the class, consistent with her grades in her other classes that marking period (A+, A, and B -) which, so far as the record indicates, were consistent grades in other marking periods as well.

Nicole recalls that, in October 2005 “when things were going on,” she had difficulty sleeping. Her mother remembers that Nicole “wouldn’t get up. She wouldn’t eat.” Nicole also said that she “just didn’t want to do anything” and “was afraid to hang out with people at Stevens because I was afraid they would talk about what happened” in Grumman’s class. In fact, Nicole noticed boys from the biology class laughing at her in the school hallways, even after the course had ended. In April 2006, Nicole began discussing Grumman’s comments with a counselor from Women’s Support Services, which “provides emotional support only to clients— not clinical therapeutic support.” Nicole spoke to the counselor, sometimes over the phone, roughly five times in April and May 2006, then once again in August 2006. 8

*202 Nicole attempted to avoid walking by Grumman’s classroom on her way to other classes — he made a habit- of standing in the hallway between periods — but still ended up passing him about twice each week. After the biology class ended in late January 2006, however, Grumman’s presence at the school was limited due to his own medical problems. He had foot surgery in late February that required him to miss school until the middle or end of May and then, within two weeks of returning, broke a bone in the same foot and missed the rest of the academic year. Nicole did not know the reason for Grumman’s absence; her parents, for their part, believed he had been terminated, though they did not have any discussion with school personnel about the outcome of Nicole’s complaint against Grumman until April 2006.

Around that time, Nicole’s father became engaged in a series of communications with school officials, disputing an academic requirement that had been imposed on Nicole’s sister, Amber, a senior at Stevens. Amber incurred the requirement by missing a mandatory rehearsal for an arts class while she was visiting the University of New Hampshire, which she planned to attend on a swimming scholarship, to meet with the coach. After her father’s communications produced a lengthy letter from Couture presenting his view of the circumstances surrounding the absence and a proposal for ending the dispute, Nicole’s father called a school board member, complaining that Couture “can send me a several page letter” about the dispute over Amber’s class but “on this incident with Nikki we never heard a thing.”

In response, the school board member contacted the superintendent, Jacqueline Guillette, who in turn immediately summoned Couture and Hall to ask them what they knew about Grumman’s comments to Nicole. Guillette directed Couture to contact the Brodeurs “and say very honestly it appears we’ve dropped the ball here.” Couture, in fact, had no recollection of Nicole’s complaint at all when Guillette questioned him about it.

C. The school’s sexual harassment policy

The Stevens High sexual harassment policy, as set forth in the 2005-2006 student handbook, defines sexual harassment, in relevant part, as “verbal or physical conduct or communication of a sexual nature” which “has the purpose dr effect of substantially or unreasonably interfering with an individual’s ... education, or creating an intimidating, hostile, or offensive ... education environment.” The policy designates the principal as “the person responsible for receiving oral or written reports of sexual harassment.... Upon receipt of a report, the principal must notify the Superintendent immediately without screening or investigating the report.”

The policy directs the superintendent to then “authorize an investigation,” including interviews with the complainant and the person complained against as well as “any other methods and documents deemed pertinent by the investigator.” If, as a result of this investigation, the complaint is found to be valid, the policy empowers the school district to “take such disciplinary action as it deems necessary and appropriate, including warning, suspension, or immediate discharge to end sexual harassment and .... prevent its recurrence.” In the meantime, however, the superintendent may “take immediate steps, at [her] discretion, to protect the complainant, students, and employees pending completion of an investigation.”

*203 As Couture acknowledged at his deposition, this policy does not authorize him, as principal, to decide — as he admits to doing in Nicole’s case — that an incident does not rise to the level of sexual harassment. In fact, Guillette instructed him when they met in response to Nicole’s father’s complaint to the school board member that, in the future, he should simply report claims of sexual harassment to her rather than judging them himself.

As directed by Guillette, Couture attempted to call Nicole’s father, who refused to speak to him about her complaint. Couture then sent a letter to Nicole’s father, in late April 2006, acknowledging that there had been no disciplinary action against Grumman and expressing “regret that this matter has gone unresolved for as long as it has.” Couture also offered to investigate “in accordance with our policies regarding sexual harassment,” and asked for permission to interview Nicole, with her father present, as part of that process. But the Brodeurs did not allow Nicole to be interviewed because they had already retained counsel on her behalf at that point.

The Brodeurs, in fact, had no direct contact with anyone from the school about Nicole’s complaint after her father’s call to the school board member in April. In July, the Brodeurs decided that Nicole would not return to Stevens in the fall due to what they perceived as uncertainty about Grumman’s status for the upcoming academic year. The Brodeurs eventually chose Vermont Academy, a private secondary school, instead. As it turns out, Grumman was returning to Stevens for the 2006-2007 academic year, though the Brodeurs did not know it: Guillette explained that, by the time she learned of Nicole’s complaint, the school board had already voted to renew Grumman’s contract for the upcoming school year, and that, on advice of counsel, she refrained from proceeding with an investigation without Nicole’s participation. At the end of the 2006-2007 academic year, however, Grumman retired, apparently of his own accord.

D. Prior complaints against Grumman

Before receiving Nicole’s complaint, Couture had investigated other charges of inappropriate comments by Grumman, while he was serving as head coach of the Stevens girls’ varsity soccer team. The first complaint took the form of a pseudonymous letter that Guillette’s predecessor as superintendent received early in the winter of 1999, alleging, among other things, that Grumman “made sexual comments to the girls on the field,” “pulled the shorts on one girl, because she had what they call a wedgie,” and “embarrasses the girls in his science class with comments” suggesting their promiscuity.

In response, Couture interviewed several members of the previous fall’s team, who recounted a number of instances of inappropriate behavior by Grumman. These included (1) taking a girl’s bra from her gym bag and commenting on it, (2) telling the girls to think about sex to make themselves smile for the team photo, and (3) making vaguely suggestive comments about their breasts. The girls interviewed, however, said that nobody had actually seen Grumman touch the girl’s shorts as the letter alleged — that the girl had felt someone do that to her and, when she starting accusing her teammates, some suggested that it had been Grumman. When Couture interviewed Grumman, he denied “any incidents which he would view in retrospect as sexual harassment,” but acknowledged the chance for “misinterpreted joking and kidding.”

Finding “evidence to suggest that the girls interviewed have indeed been embarrassed by what has generally been de *204 scribed as Mr. Grumman’s kidding,” Couture recommended that Grumman

meet with both the JV and varsity teams in my presence ... with the express purpose of apologizing to any/all who may have been offended. Furthermore, ... Mr. Grumman must be give an opportunity to demonstrate his agreement that these types of comments must stop. Failure on Mr. Grumman’s part to stop must logically result in further disciplinary action.

Grumman apologized as directed, and there was no further action.

In October 2002, the Stevens athletic director received another complaint about Grumman, this time from a parent of one of the girls on the team, alleging that Grumman had told the team a graphic and offensive story during a pre-game speech. Couture again interviewed several girls on the team as part of his investigation. Based on these interviews, Couture determined that the story involved a teenaged girl who, though “very tired from trying to balance work with school and athletics,” agreed to work late at her job one night. After finally leaving, with the door locked behind her, the girl approached her car, parked in an unlighted section of the lot. But “suddenly she felt [a] hand over her mouth and her head was slammed against the hood of her car. She was turned around, still with a hand over her mouth, and the molester put his other hand up under her skirt and tore her underwear. He then grabbed her crotch.”

Grumman then brought the tale “to an abrupt end” and asked the players to identify the girl in the story. Some players suggested that the girl represented their team, which Grumman confirmed, then asking, “Who’s the molester?” After the girls responded with the name of the team they were playing that day, Grumman asked what the girl should have done; the girls suggested various ways of fighting back. Grumman said that “as a team they needed to fight back against the molester in the story,” i.e., their opponent that day.

Most of the girls interviewed by Couture said that the story had upset them, and their teammates, to one degree or another. And some reported other inappropriate comments by Grumman, such as referring to one team member as a lesbian (after she claimed to be one in response to Grumman’s suggestions that she date the male team manager) and to another team member’s “thunder thighs.” One student, in response to Couture’s question whether she considered the story “uncharacteristic” for Grumman, mentioned “a time when he made two girls in class get up on a table and massage each others’ stomachs. I think they were suppose[d] to be doing the Heimlic[h] maneuver, but it made them feel very uncomfortable.” When Couture interviewed Grumman, he explained that he had conceived the sexual assault story “as an analogy to pump the players up” for their game and did not dispute the players’ account of it. But Couture did not ask Grumman, or anyone else, about the other inappropriate comments reported by the players.

Based on Couture’s report of his investigation, Guillette, who had just begun working as the superintendent at that point, dismissed Grumman from his coaching position, finding the story “highly offensive, inappropriate, unprofessional, and unacceptable.” Thus ended Grumman’s 20-year tenure as the girls’ varsity soccer coach at Stevens. Guillette also barred Grumman “from any future coaching positions within” the district and from “volunteering with any athletic teams or athletic gatherings under the auspices of’ the district, at least through the end of the academic year, when Guillette would “review the situation.” Guillette also expressed concern “as to whether or not this conduct *205 has had or will have a negative impact on your ability to be effective in the classroom for all students.”

Beyond Guillette’s warning against “any recriminations or repercussions within the classroom or school setting with or toward any students,” however, Grumman did not face any heightened scrutiny of his behavior in the classroom as a result of the 2002 investigation. As Guillette explained in her deposition, “this happened in soccer, and we took him away from soccer.” Guillette also said that she did not know whether she had learned of the 1999 incident, which occurred before she came to the school district, while handling the 2002 incident.

After completing about five hours’ worth of informal sexual harassment training, as Guillette had suggested, Grumman applied to coach the girls’ varsity field hockey team for the fall 2004 season. As part of the interview process, the Stevens athletic director met with Grumman and four upperclassmen from the field hockey team. During this meeting, according to one of the girls who attended, Grumman named a particular girl, since graduated from the school, and said he had attempted to recruit her for the soccer team by telling her she would look good in a soccer jersey. 9 At least one of the girls at the meeting later told Couture that she considered this a “red flag.” The athletic director, noting that the interviewers considered such comments “offensive and unnecessary,” informed Grumman that he would no longer be considered for the job.

III. Analysis

As mentioned at the outset, the Brodeurs, acting on Nicole’s as well as their own behalf, have brought a claim against the District for violating Title IX, as well as a number of state-law claims against the District, Grumman, and Couture. Their complaint asserts twelve numbered counts:

• violation of Title IX, against the District (count 1);

• breach of contract, against the District (count 2);

• breach of fiduciary duty, against the District (count 3);

• negligence in failing “to enforce the rules contained in the Handbook,” i.e., the school’s sexual harassment policy, against all defendants (count 4);

• negligence in failing to “adhere to all federal and state regulations established for the operation of a public educational facility receiving state and local funding,” i.e., the school’s sexual harassment policy, against the District (count 5); 10

• negligence in failing “to protect [Nicole] from abuse by the School District’s employees,” against the District (count 6);

• negligence in hiring and retaining Grumman, against the District (count 7);

• negligence in failing “to properly train its staff to identify and respond to sexual harassment in general and in particular to exercise reasonable care in the supervision of Grumman,” against the District (count 8);

• negligence in failing “to warn Plaintiff of Grumman’s propensities,” against the District (count 9);

• negligent infliction of emotional distress, against all defendants (count 10);

• intentional infliction of emotional distress, against all defendants (count 11);

*206 • “respondeat superior/vicarious liability/agency” against the District, for the “negligent acts” of its “employees, servants, or agents” and “the conduct of the individual defendants” (count 12).

The complaint seeks a variety of compensatory and other damages, including for “mental and emotional harm” on behalf of both Nicole and her parents.

The defendants have moved for summary judgment on all of the plaintiffs’ claims. First, the District argues that the plaintiffs have not come forward with evidence sufficient to establish its liability under Title IX. Second, the defendants attack the plaintiffs’ state-law claims on a number of grounds, arguing that (a) the breach of contract claim fails because the student handbook is not a contract as a matter of law; (b) the tort claims are barred by the doctrine of discretionary function immunity; and (c) the defendants’ conduct did not amount to intentional infliction of emotional distress as a matter of law. Third, the defendants argue that (a) Nicole’s parents cannot recover in negligence because they did not “contemporaneously witness a serious injury to their child” and (b) neither they nor Nicole can recover for their claimed emotional distress because they lack the requisite expert testimony that the distress had physical manifestations traceable to the defendants’ conduct. 11

A. The Title IX claim (Count 1)

Title IX provides 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,” with a number of exceptions not relevant here. 20 U.S.C. § 1681(a). The Supreme Court has “concluded that sexual harassment is a form of discrimination for Title IX purposes and that Title IX proscribes harassment with sufficient clarity to ... serve as the basis for a damages action.” Davis ex rel. LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 649-50, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). But “funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is 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, 119 S.Ct. 1661.

In moving for summary judgment, the District does not dispute that Stevens High is an “education program or activity receiving Federal financial assistance” bound to comply with Title IX. The District does, however, argue that (1) it had “no actual notice that Nicole believed that *207 Mr. Grumman was sexually harassing her,” (2) it was not deliberately indifferent to the complaints against Grumman, arising from his behavior as either Nicole’s biology teacher or as the girls’ varsity soccer coach, and (3) the harassment was not so severe, pervasive, and objectively offensive so as effectively to deprive Nicole of access to the school’s educational opportunities or benefits.

1. Actual knowledge of the harassment

The Supreme Court has rejected liability in damages under Title IX for the actions of a funding recipient’s employees on theories of respondeat superior or constructive notice. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287, 288-90, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). Instead, the Court has held, “a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.” Id. at 290, 118 S.Ct. 1989. Without disputing that Couture, as the principal of Stevens High, had the requisite authority to address alleged sexual harassment by one of its teachers and to institute corrective measures on its behalf, the District argues that Couture lacked actual knowledge of any such harassment. This is so, according to the District, because all Nicole reported to Hall, her guidance counselor, was “that Mr. Grumman was saying things in class that made her and another student feel uncomfortable.” The District’s premise is flawed.

While Nicole’s report to Hall began with the complaint that Grumman was saying things that made Nicole and Caitlin “feel uncomfortable,” the report certainly did not end there. That alone distinguishes this case from the District’s sole authority on this point, Johnson v. North Idaho College, No. 06-436, 2008 WL 4000128 (D.Idaho Aug. 28, 2008), where the court ruled that “[a] comment made by a student that her professor makes her ‘uncomfortable,’ without more detail, cannot be equated to a complaint of sexual harassment.” Id. at *9; see also Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1119 (10th Cir.2008) (finding that plaintiffs statement “that the boys were bothering her was insufficient to give the district notice that she was being sexually harassed”).

At Hall’s urging, in fact, Nicole and Caitlin proceeded to describe, in writing, Grumman’s comments, which included not only his remark about how the size of Nicole’s buttocks would prevent her from fitting through a window, but also his similar quips about the appearance of the words “Big Red” on the seats of the girls’ pants, his direction to a boy to draw a circle “as big as Caitlin’s butt,” and his aside that he thought “that”' — meaning Caitlin — -was “sexy.” 12 A jury could readily find that these accounts of Grumman’s comments, which Hall promptly passed on to Couture, amount to the “actual knowledge of discrimination” necessary to subject the District to liability under Title IX. See Hunter ex rel. Hunter v. Barnstable Sch. Comm., 456 F.Supp.2d 255, 265-67 (D.Mass.2006) (finding actual knowledge requirement “easily satisfied” based on plaintiffs’ report of harassment to school *208 principal), aff'd sub nom. Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165 (1st Cir.2007), rev’d on other grounds, — U.S. -, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009).

Furthermore, the plaintiffs argue that, regardless of what Nicole told Hall about Grumman’s comments in October 2005, both Couture and the District “had actual knowledge of Grumman’s propensity to sexually harass adolescent girls” based on the investigations into his comments to members of the girls’ soccer and field hockey teams in 1998, 2002, and 2004. Many, but not all, courts have endorsed this theory of notice under Title IX: that “actual knowledge of discrimination” can take the form of knowledge about the alleged harasser’s conduct toward others which indicates some degree of risk that the harasser would subject the plaintiff to similar treatment. See, e.g., Williams v. Bd. of Regents, 477 F.3d 1282, 1295-96 (11th Cir.2007); Delgado v. Stegall, 367 F.3d 668, 672 (7th Cir.2004); J.K. v. Ariz. Bd. of Regents, No. 06-916, 2008 WL 4446712, at *13-* 14 (D.Ariz. Sept. 30, 2008); Johnson v. Galen Health Insts., Inc., 267 F.Supp.2d 679, 687-88 (W.D.Ky. 2003); Hart v. Paint Valley Local Sch. Dist., No. 01-004, 2002 WL 31951264, at *6 (S.D.Ohio Nov. 15, 2002); Doe v. Sch. Admin. Dist. No. 19, 66 F.Supp.2d 57, 63 (D.Me.1999); but see Baynard v. Malone, 268 F.3d 228, 238 (4th Cir.2001) (“Title IX liability may be imposed only upon a showing that school district officials possessed actual knowledge of the discriminatory conduct in question”).

Though the First Circuit Court of Appeals has never explicitly considered the contours of “actual knowledge” under Title IX, it appears to have recognized the plaintiffs’ theory, at least implicitly, in Wills v. Brown University, 184 F.3d 20 (1st Cir.1999). There, at the trial of the plaintiff’s Title IX claim against her university alleging that one of her professors had touched her inappropriately, the district court allowed evidence that the university knew — before that incident — that the professor had engaged in similar conduct toward another student, but disallowed evidence that — after the incident involving the plaintiff — the university received complaints of the professor’s similar conduct toward additional students as well. Id. at 26. In upholding this ruling, the court of appeals observed that “evidence of an inadequate response is pertinent to show fault and causation where the plaintiff is claiming that she was harassed or continued to be harassed after the inadequate response.” Id. (citing Gebser, 524 U.S. at 290, 118 S.Ct. 1989).

Wills, then, like the majority of the federal case law, supports the plaintiffs’ view that a defendant’s notice of an alleged harasser’s “propensity” toward such behavior, based on his reported treatment of other students, amounts to “actual knowledge of discrimination” sufficient to trigger liability for damages under Title IX. See Morrison v. N. Essex Cmty. Coll., 56 Mass.App.Ct. 784, 780 N.E.2d 132, 144 (2002) (relying on Wills to hold that actual “knowledge could derive from having learned that an individual had previously harassed other students”). Because the District has argued only that Nicole’s complaint itself was inadequate, however, the court need not decide whether the prior allegations against Grumman were sufficient as a matter of law to create the actual knowledge essential to the District’s liability for his subsequent treatment of Nicole. 13 Based on Nicole’s complaint *209 alone, the plaintiffs have presented a trial-worthy issue as to the District’s actual knowledge.

2. Deliberate indifference to the harassment

Even after an appropriately empowered school official has actual knowledge of the discrimination, a school will not incur liability for damages under Title IX unless its response “amount[s] to deliberate indifference” — tantamount, in other words, to “an official decision by the recipient not to remedy the violation.” Gebser, 524 U.S. at 290, 118 S.Ct. 1989. To satisfy this standard, a plaintiff must show that the funding “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. 14

The District argues that neither its responses to the complaints about Grumman’s conduct as the girls’ varsity soccer coach nor its handling of Nicole’s complaint rose to the level of deliberate indifference as a matter of law. The court disagrees on both counts. It is true that, as the District points out, “[e]ach complaint” of Grumman’s inappropriate comments to members of the girls’ varsity soccer team in 1998 and 2002 was “investigated and corrective action taken.” A jury could find, however, that the investigative or the corrective aspect of the District’s response to the incidents as a whole was so lacking as to amount to deliberate indifference.

The 2002 complaint against. Grumman arose out of his subjecting the entire team to a graphic story of the sexual assault of a girl their age by an assailant in a darkened parking lot, including details that the assailant tore the girl’s underwear and grabbed her crotch. Couture’s investigation revealed that the story had upset most of the girls on the team, and that Grumman had made additional remarks, of the kind that put him in hot water in 1999— and which he had agreed, as part of the resolution of that prior complaint, to refrain from making. Nevertheless, Couture’s report of the 2002 investigation made no reference to the 1999 investigation he had personally conducted, and the superintendent could not remember whether she had learned of the prior investigation before deciding how to discipline Grumman for the 2002 incident. And while that discipline entailed Grumman’s immediate dismissal from his job as the girls’ varsity soccer coach, as well as an indefinite suspension from other coaching or volunteer athletic activities, it did not affect his classroom duties at all (aside from a warning not to retaliate against any team members in class).

*210 Though the conclusion is by no means inevitable, a jury could find that this response amounted to deliberate indifference. A “school’s investigation, though promptly commenced ... may be carried out so inartfully as to render it clearly unreasonable.” Fitzgerald, 504 F.3d at 175 (citing Sch. Admin. Dist. No. 19, 66 F.Supp.2d at 64-65). While certain aspects of the 2002 investigation, like the interviews with the players, were by all accounts carri