Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on: (i) Defendants Las Cruces Public School District, Dante Thacker, and Daniel Gomez’ Motion to Dismiss Plaintiffs’ Complaint on the Basis of Qualified Immunity and Other Grounds, filed November 25, 2009 (Doc. 4); and (ii) Defendant Sonia Diaz’ Motion to Dismiss Plaintiffs’ Complaint on the Basis of Qualified Immunity and Other Grounds, filed December 30, 2009 (Doc. 18). The Court held a hearing on April 26, 2010. The primary issues are: (i) whether Plaintiffs Tony and Annette Schaefers’ Complaint states any federal-law claims against the Defendants; and (ii) if it does not, whether the Court should remand the state-law claims to state court or maintain supplemental jurisdiction over them under 28 U.S.C. § 1367. Because the Court concludes that the Schaefers’ Complaint does not state a federal cause of action, the Court will dismiss the federal claims, and remand the remaining state claims and the case to state court from which it was removed. FACTUAL BACKGROUND This case involves a child being abused at school by other students, and a resulting suit against the school and various school officials/employees for failure to take steps to stop such harassment from occurring. Defendant Las Cruces Public School District is a governmental agency of the state of New Mexico. See Complaint for Damages ¶ 6, at 2, filed December 7, 2009 (Doc. 6) (“Complaint”). Defendant Sonia Diaz is the former Superintendent of the Las Cruces Public Schools. See Complaint ¶ 4, at 2. Defendant Dante Thacker is the former Principal of Zia Middle School. See id. ¶ 2, at 1. Defendant Daniel Gomez is the former Assistant Principal of Zia Middle School. See id. ¶ 3, at 2. The Schaefers allege that, during September of 2006, there were three attacks against sixth grade students at Zia Middle School, at least one of which involved one student “racking” another student. Complaint ¶¶ 22-33, at 5-7. According to the Schaefers, on information and belief, the Defendants made no efforts to identify or punish the bullies or to protect the victims. See id. ¶¶ 11-27, 30, at 2-6. On or about October 18, 2006, an unknown student “racked” AS while AS walked through a courtyard on his way to class at Zia Middle School. Id. ¶28, at 6. On October 20, 2006, AS sought treatment for persistent pain he was experiencing in his abdomen and testicles. See id. ¶ 32, at 7. An ultrasound revealed that AS had epididymitis with scrotal wall edema, hydrocele, and two epididymis cysts. After the incident involving AS, on or about October 30, 2006, all boys at Zia Middle School were required to attend a meeting where school faculty discussed the injuries that can result from being “racked.” Id. ¶ 34, at 7. AS was identified by name at this meeting as a student who had suffered such injuries. See id. The Schaefers admit that Zia Middle School held two separate meetings where the dangers and consequences of student-on-student bullying, harassment, fighting, gangs, and assaults were discussed. See id. ¶¶ 9, 34, at 2, 7. The first meeting was during the sixth grade orientation, in August of 2006, before any of the alleged assaults occurred. See id. ¶ 9, at 2. The other occurred on October 30, approximately two weeks after the attack on AS. See id. ¶ 34, at 7. PROCEDURAL BACKGROUND On October 16, 2009, the Schaefers brought a four-count Complaint in the Third Judicial District Court of New Mexico, County of Doña Ana, against the Las Cruces School District, Thacker, Gomez, Diaz, the unnamed Safety Officer of Zia Middle School, the unnamed School Nurse of Zia Middle School, and John and Jane Doe Defendants. See Complaint for Damages, filed November 24, 2009 (Doc. 2-2); Verified Notice of Removal ¶ 1, at 1, filed November 24, 2009 (Doc. 2). The Schaefers bring Counts I, II, and III—negligence, prima-facie tort, and intentional infliction of emotional distress—against the Defendants in their official capacities. They bring Count IV—constitutional violations—against the Defendants in their individual and official capacities. See Motion at 2. In Count I for negligence, the Plaintiffs allege the Las Cruces School District, Thacker, Gomez, Diaz, and John/Jane Does 1-5 had a duty to: (i) establish and implement appropriate policies and procedures for protecting students from student-on-student harassment, bullying, assault, and battery; (ii) train and evaluate teachers, safety officers, school nurses and others in the identification, investigation, and discipline of such potentially dangerous situations and actions; (iii) establish appropriate policies to identify risk prone areas in the school and to supervise those areas; and (iv) provide training to students regarding unacceptable behavior. The Plaintiffs further allege that, as a direct and proximate result of Las Cruces Public Schools, Thacker, Gomez, and Diaz’ breach of their duty, AS was injured and suffered damages. The Defendants move the Court, pursuant to rules 8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss all of the Schaefers’ claims. Regarding the state-law claims, the Defendants argue that the Schaefers’ claims for negligent supervision, prima-facie tort, and intentional infliction of emotional distress are not permitted under the New Mexico Tort Claims Act, NMSA 1978, § 41-4-1 through 41-4-27 (“NMTCA”), and are therefore barred by sovereign immunity. See Motion at 6-7, 10-11. They also argue that the pleadings are insufficient to establish a claim of negligent operation and maintenance of a building. See id. at 7-9. They further argue that the Defendants have no duty to protect students from assaults by other students. See id. at 9-10. Regarding the Schaefers’ constitutional claims, the Defendants argue that the Schaefers have failed to state a claim for supervisor liability against the Las Cruces School District. See Motion at 13-14. They argue that the Las Cruces School District’s conduct was, at worst, negligent, and that the Schaefers have failed to state a claim for a violation of substantive due process under either the special-relationship or danger-creation theories. See id. at 14-18. They also assert that the Schaefers have failed to state a claim for negligent failure to train and for a violation of the equal-protection clause. See Motion at 18-20. Regarding the claims against the Defendants in their individual capacities, the Defendants assert that: (i) the Schaefers fail to assert any acts taken by the Defendants in their individual capacity; and (ii) that the Defendants are entitled to qualified immunity as to the individual-capacity claims. See id. at 20-24. The Defendants also argue that Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 through 1688, does not create a private cause of action against individuals, that the Schaefers have failed to state a claim under Title IX, and that Family Educational Rights and Private Act of 1974, 20 U.S.C. § 1232g (“FERPA”), does not create a private cause of action that the Schaefers can assert against any of the Defendants. See Motion at 24-25. Regarding the state-law claims, the Schaefers respond by first arguing that their pleadings are not deficient and that they meet the pleading requirements of rule 8 of the Federal Rules of Civil Procedures. See Plaintiffs’ Response in Opposition to Defendants’ Motion to Dismiss at 2-4, filed December 9, 2009 (Doc. 7)(“Re-sponse”). They argue that their negligence claim is permitted under the NMTCA, and that there exists a genuine issue of material fact whether the Defendants were acting within the scope of their duties, making summary judgment inappropriate. See Response at 4-13. They assert that the Defendants have a special relationship with the students which, as a matter of law, creates a duty to protect the students from the criminal acts of third parties. See id. at 13-15. The Schaefers also assert that they properly state claims for violations of constitutional rights. They argue their claim adequately pled a supervisor-liability claim under Monell v. New York City Department of Social Services, 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), that they properly allege a claim for substantive-due-process violation under the danger-creation theory, that the individual Defendants are not entitled to qualified immunity on the claims against them in their individual capacity, and that they state valid Title IX and equal-protection claims. See Response at 15-32. On April 28, 2010, the Defendants filed a supplemental brief providing further argument and authority with respect to the Schaefers’ Title IX claim. In the supplemental brief, the Defendants argue more specifically that the Schaefers fail to state a Title IX claim because the conduct at issue was not sexual assault. See Defendants Las Cruces Public School District, Dante Thacker, Daniel Gomez’ Supplemental Briefing on Title IX, filed April 28, 2010 (Doc. 27)(“Supplement”). They insist the conduct was not based on the gender of the victim and was not sexual in nature. See Supplement at 3. They also assert that the Defendants were not deliberately indifferent because they held an assembly in response to the incidents, in which they informed the male students of the injuries that can result from racking and that such conduct would not be tolerated. See id. at 3-4. Finally, they argue that the conduct was not severe or pervasive. See id. at 4. The Schaefers also filed a supplemental brief on the Title IX issue. In it, the Schaefers argue that racking is a form of sexual harassment, even if inflicted by another male. See Plaintiffs’ Supplemental Briefing on Title IX at 2-5, filed April 30, 2010 (Doc. 30)(“Schaefers’ Supplement”). They then walk through the elements of a Title IX claim and argue that the facts pled satisfy the pleading requirements. See Schaefers’ Supplement at 5-9. The Schaefers’ supplement again admits that the Defendants took steps to ensure that no sixth-grade male student was racked once the Schaefers complained to the Defendants and AS missed school because of his injuries. See id. at 6. The Court also notes that at least one of the facts referenced in the supplement was not mentioned in the Complaint—that the other students made “objectively offensive statements pertaining to the consequences of the racking, including vulgar statements regarding the size of AS’ testicles after the incident, his potential impotence, and comments on his manhood.” Id. at 7. As it must, the Court will restrict its analysis to the facts properly alleged in the Complaint. LAW REGARDING MOTIONS TO DISMISS A motion to dismiss requires that the court determine, while accepting all facts pled in the complaint as true and granting all reasonable inferences from the pleadings in favor of the plaintiff, whether the complaint states a cause of action for which relief can be granted. See Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir.2006). This standard remains intact even after the Supreme Court of the United States’ recent decisions on rule 8’s pleading requirements. See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”); Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1276 (10th Cir.2009)(“Even after Twombly, the factual allegations need only contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.’ ’’Xquoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Thus, a motion to dismiss does not ask the court to analyze the plaintiffs likelihood of success on the merits; rather, the court must find only a reason to believe that the plaintiff has a “reasonable likelihood of mustering factual support for the claims,” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007), and that the plaintiffs claims are “plausible,” Christensen v. Park City Mun. Corp., 554 F.3d at 1276 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A motion to dismiss is a request to dismiss a case before discovery has taken place and thus permits only an assessment whether a complaint is sufficient on its face. In adjudicating a motion to dismiss, a court may neither grant the motion because it believes it is unlikely the plaintiff can prove the allegations, see Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir.2008), nor may it “weigh potential evidence that the parties might present at trial” in assessing the motion’s merit, Duran v. Carris, 238 F.3d 1268, 1270 (10th Cir.2001)(quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999)). LAW REGARDING 42 U.S.C. § 1983 Section 1983 of Title 42 of the United States Code provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,.... 42 U.S.C. § 1983. Section 1983 creates only the right of action; it does not create any substantive rights; substantive rights must come from the Constitution or federal statute. See Spielman v. Hildebrand, 873 F.2d 1377, 1386 (10th Cir.1989)(“Section 1983 does not provide a remedy if federal law does not create enforceable rights.”). Rather, 42 U.S.C. § 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violated the claimant’s federally protected rights. To state a claim upon which relief can be granted under § 1983, a plaintiff must allege: (i) a deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that right acted under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Broken down differently, a plaintiff must establish (1) a violation of rights protected by the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the conduct of a “person” (4) who acted under color of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District of Columbia. Martinez v. Martinez, No. CIV 09-0281 JB/KBM, 2010 WL 1608884, at *11 (D.N.M. Mar. 30, 2010)(Browning, J.)(quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). Neither the civil-rights statutes nor the Fourteenth Amendment, however, are a license to the federal judiciary to displace state law through the creation of a body of general federal tort law. See Paid v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)(Fourteenth Amendment); Griffin v. Breckenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)(civil-rights statute). The Supreme Court has made clear that there is no respondeat superior liability under § 1983. See Ashcroft v. Iqbal, 129 S.Ct. at 1948 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor. See Monell v. New York City Dept, of Soc. Sews., 436 U.S. at 689, 98 S.Ct. 2018. Further, the United States Court of Appeals for the Tenth Circuit has held that supervisors are not liable under § 1983 “unless there is an affirmative link between the constitutional deprivation and the supervisor’s exercise of control or direction, his personal participation, or his failure to supervise.” Riesling v. Trough-ton, 107 F.3d 880 (Table), 1997 WL 111256, at *2 (10th Cir. Mar. 13, 1997)(citing Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir.1988)). They can be held liable only for their own unconstitutional or illegal policies, and not for the tortious acts of their employees. Supervisory liability requires a showing that said policies were a “deliberate or conscious choice.” Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998) (citations and internal quotations omitted). See Bd. of County Comm’rs v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.”)(emphasis in original). These standards apply for allegations of liability based on failure to train and for “official de facto policies” that arise from “failing to adopt various policies to adequately protect” a class of persons. Barney v. Pulsipher, 143 F.3d at 1367, 1309 n. 8. “[WJhen the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm,” it is liable. Id. at 1307. In a “narrow range of circumstances,” however, deliberate indifference may be found absent a pattern of unconstitutional behavior if a violation of federal rights is a “highly predictable” or “plainly obvious” consequence of a municipality’s action or inaction, such as when a municipality fails to train an employee in specific skills needed to handle recurring situations, thus presenting an obvious potential for constitutional violations. Id. at 1307-08. Most cases, however, will not fall within this “narrow range of circumstances” without “a pattern of violations.” Id. at 1308. LAW REGARDING SUBSTANTIVE DUE-PROCESS CLAIMS The Due Process Clause provides that “no State shall ... deprive any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV, § 1. In general, state actors may be held liable under § 1983 only for their own acts and not for the acts of third parties. See DeShaney v. Winnebago County of Dep’t of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). “[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty and property of its citizens against invasion by private actors.” DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. at 195, 109 S.Ct. 998. The Due Process Clause is not a guarantee of a minimal level of safety and security. See DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. at 195, 109 S.Ct. 998. “As a general matter, ... a state’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” De-Shaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. at 197, 109 S.Ct. 998. See (Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1125 (10th Cir.2008)). Generally, negligence does not trigger the Due Process Clause’s protections. See Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). 1. Exceptions to the General Rule. There are, however, two exceptions to this general rule. First, the special-relationship doctrine arises when the state has a custodial relationship with the victim, which triggers an affirmative duty to provide protection to that individual. See Christiansen v. City of Tulsa, 332 F.3d 1270, 1280 (10th Cir.2003); Graham v. Indep. Sch. Dist. No. 1-89, 22 F.3d 991, 994-995 (10th Cir.1994). Second, the danger-creation theory provides that a state may also be liable for an individual’s safety if it created the danger that harmed the individual. See Christiansen v. City of Tulsa, 332 F.3d at 1280. 2. Special-Relationship Doctrine. The first exception to the general principle that a state’s negligent failure to protect an individual cannot trigger liability under the due process clause is the special-relationship doctrine. A plaintiff must show involuntary restraint by the government to establish a duty to protect under the special-relationship doctrine. See Liebson v. N.M. Corr. Dep’t, 73 F.3d 274, 276 (10th Cir.1996). “A special relationship exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual (e.g. when the individual is a prisoner or involuntarily committed mental patient).” Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir.1995). Compulsory attendance laws for public schools do not create a duty under the Due Process Clause to protect students from assaults by other students while attending school, even where the school knew or should have known of the danger presented. See Graham v. Indep. Sch. Dist. No. 1-89, 22 F.3d at 994-995; Maldonado v. Josey, 975 F.2d 727, 732 (10th Cir.1992). 3. Danger-Creation Exception. The Due Process Clause protects against “deliberately wrongful government decisions rather than merely negligent government conduct.” Uhlrig v. Harder, 64 F.3d at 573. The danger-creation exception to this rule applies only when “a state actor affirmatively acts to create, or increases a plaintiffs vulnerability to, or danger from private violence.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). Under a danger-creation theory, there will be no § 1983 liability absent “an intent to harm” or “an intent to place a person unreasonably at risk of harm.” Uhlrig v. Harder, 64 F.3d at 573. To state a prima-facie case, the plaintiff must show that his or her danger-creation claim for due-process violations meets a six-part test: (i) the state and individual actors must have created the danger or increased plaintiffs vulnerability to the danger in some way; (ii) the plaintiff must be a member of a limited and specifically definable group; (iii) the defendant’s conduct must put the plaintiff at substantial risk of serious, immediate, and proximate harm; (iv) the risk must be obvious and known; (v) the defendant must have acted recklessly in conscious disregard of that risk; and (vi) such conduct, when viewed in total, must shock the conscience. See Rost ex reí. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d at 1126. The Tenth Circuit has focused on the deliberateness of the conduct at issue. See Christiansen v. City of Tulsa, 332 F.3d 1270, 1281 (10th Cir.2003). The defendant must recognize the unreasonableness of the risk and actually intend to expose the plaintiff to such risks without regard to the consequences to the plaintiff. See id. at 573 n. 8. While “an intent to harm” follows the traditional tort law concept of intentionally, the Tenth Circuit has defined “an intent to place a person unreasonably at risk,” as when a state actor “was aware of a known or obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences.” Medina v. City & County of Denver, 960 F.2d 1493, 1496 (10th Cir.1992). 4. What Shocks the Conscience. “It is well settled that negligence is not sufficient to shock the conscience. In addition, a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power.” Camuglia v. The City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir.2006) (quoting Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir.2006)). “[T]he plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.1995). “This is a ‘high level of outrageousness.’ ” Camuglia v. the City of Albuquerque, 448 F.3d at 1223 (quoting Uhlrig v. Harder, 64 F.3d at 574). Establishing these limits advances “three basic principles highlighted by the Supreme Court in evaluating substantive due process claims: (1) the need for restraint in defining their scope; (2) the concern that § 1983 not replace state tort law; and (3) the need for deference to local policymaking bodies in making decisions impacting upon public safety.” must demonstrate that a state employee’s discriminatory actions are representative of an official policy or custom of the municipal institution, or are taken by an official with final policy making authority. To subject a governmental entity to liability, “a municipal policy must be a ‘policy statement, ordinance, regulation, or decision officially adopted and promulgated by [a municipality’s] officers.’ ” Absent such an official policy, a municipality may also be held liable if the discriminatory practice is “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Camuglia v. the City of Albuquerque, 448 F.3d at 1223 (quoting Uhlrig v. Harder, 64 F.3d at 574). LAW REGARDING EQUAL-PROTECTION CLAIM The Equal Protection Clause of the Fourteenth Amendment guarantees that “no states shall ... deny to any person within the jurisdiction to the equal protection of the laws.” U.S. Const, amend. XIV, § 1. “The Equal Protection Clause ‘keeps governmental decision makers from treating differently persons who are in all relevant respects alike.’ ” Soskin v. Reinertson, 353 F.3d 1242, 1247 (10th Cir.2004)(quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)). See Corder v. Lewis Palmer School Dist. No. 38, 566 F.3d 1219, 1233 (10th Cir.2009)(“Equal protection ‘is essentially a direction that all persons similarly situated should be treated alike.’ ’’Xquoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). Generally, to state a claim under § 1983 for violation of the equal-protection clause, the plaintiff must show that he or she is a member of a class of individuals that is being treated differently from similarly situated individuals that are not in that class. A state actor can generally be subject to liability only for its own conduct under 42 U.S.C. § 1983. See Robbins v. Oklahoma, 519 F.3d at 1251 (citing DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. at 197, 109 S.Ct. 998). At least in the Tenth Circuit, however, under some circumstances, sexual harassment by a third-party can subject a supervisor or municipality to liability for violation of the equal-protection clause—not for the harasser’s conduct, per se, but for failure to take adequate steps to stop it. See Murrell v. Sch. Dist. No. 1, 186 F.3d at 1249-51 (discussing one student’s sexual harassment of another and stating, “sexual harassment by a state actor can constitute a violation of the equal protection clause.”). To state such a claim, the plaintiff Murrell v. Sch. Dist. No. 1, 186 F.3d at 1249 (internal citations omitted). Nevertheless, the Tenth Circuit has stated that “a failure to prevent sexual harassment by a student before it occurs does not violate ... the Fourteenth Amendment absent a showing of an institutional policy of indifference. However, a refusal to remedy known sexual harassment is actionable.” Murrell v. Sch. Dist. No. 1, 186 F.3d at 1250 n. 9 (emphasis in original). Finally, [t]he party alleging discrimination has the burden of proving that the state’s conduct was motivated by a discriminatory purpose. See Witus [Whitus ] v. Georgia, 385 U.S, 545, 550 [87 S.Ct. 643, 17 L.Ed.2d 599] (1967)(explaining that “[t]he burden is, of course, on the petitioners to prove the existence of purposeful discrimination”); Sauers v. Salt Lake County, 1 F.3d 1122, 1130 (10th Cir.1993)(stating that “[a] plaintiff in an equal protection action has the burden of demonstrating discriminatory intent.”). It is “hornbook constitutional law that mere negligence or mistake resulting in uneven application of the law is not an equal protection violation.” Roe v. Ready, 329 F.3d 1188, 1191-92 (10th Cir.2003). Bell v. Bd. of Educ. of the Albuquerque Pub. Schs., No. CIV 06-1137 JB/ACT, 2008 WL 4104118, at *15 (D.N.M. May 6, 2008)(Browning, J.). On the other hand, to hold a supervisory employee liable in his or her individual capacity for sexual harassment conducted by a third party, the plaintiff must show “deliberate indifference to known sexual harassment.” Murrell v. Sch. Dist. No. 1, 186 F.3d at 1250. “Liability under § 1983 must be predicated upon a ‘deliberate’ deprivation of constitutional rights by the defendant and not upon mere negligence.” Id. (quoting Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir.1992))(alterations omitted). To show that the supervisory employee’s conduct was “deliberate” the plaintiff must “state facts sufficient to allege ‘defendants actually knew of and acquiesced in’ [the third-party’s] behavior.” Murrell v. Sch. Dist. No. 1, 186 F.3d at 1250. LAW REGARDING TITLE IX Title IX provides that “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). Although both can be predicated on the same conduct, a claim of sex discrimination under Title IX is independent of a claim for violation of the equal-protection clause under the Fourteenth Amendment. See Murrell v. Sch. Dist. No. 1, 186 F.3d at 1251 n. 8 (“A state actor’s acquiescence in sex discrimination is independently actionable under the Fourteenth Amendment regardless of the dictates of Title IX which, as noted above, provides its own private right of action.”). “Sexual harassment is a form of discrimination on the basis of sex and is actionable under Title IX.” Escue v. Northern OK College, 450 F.3d 1146, 1152 (10th Cir.2006)(discussing sexual harassment of student by teacher)(citing Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992)). “Title IX is enforceable through an implied private right of action for which money damages are available.” Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1245-46 (10th Cir.1999). The Supreme Court has stated however, that “a recipient of federal funds may be liable in damages under Title IX only for its own misconduct.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). Furthermore, Title IX does not authorize a cause of action against individuals; rather, it creates a right enforceable against educational institutions only. See Fitzgerald v. Barnstable Sch. Comm., — U.S.-, 129 S.Ct. 788, 796, 172 L.Ed.2d 582 (2009)(“Title IX reaches institutions and programs that receive federal funds ... but it has consistently been interpreted as not authorizing suit against school officials, teachers, and other individuals.”); Davis v. Monroe County Bd. of Educ., 526 U.S. at 640-41, 119 S.Ct. 1661 (“The Government’s enforcement power may only be exercised against the funding recipient ... and we have not extended damages liability under Title IX to parties outside the scope of this power.”); Sossamon v. Lone Star State of Texas, 560 F.3d 316, 328-29 (5th Cir.2009) (“Congressional enactments pursuant to the Spending Clause do not themselves impose direct liability on a non-party to the contract between the state and the federal government.”); Smith v. Allen, 502 F.3d 1255, 1272-73 (11 th Cir.2007)(“Our court, in addressing other federal statutes that emanate directly ■ from Congress’ Spending Power ... has repeatedly held that Congress cannot use its Spending Power to subject a non-recipient of federal funds, including a state official acting his or her individual capacity, to private liability for monetary damages.”); Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1st Cir.1988)(“In implying a cause of action under Title IX, the Supreme Court has considered only actions against educational institutions.”); Clay v. Board of Trustees of Neosho Community College, 905 F.Supp. 1488, 1495-96 (D.Kan.1995)(“Title IX actions may only be brought against an educational institution, not an individual acting as an administrator or employee for the institution.”); Aurelia D. v. Monroe County Bd. of Educ., 862 F.Supp. 363, 367 (M.D.Ga.1994), rev’d in part on other grounds Davis v. Monroe County Bd. of Educ., 74 F.3d 1186 (11th Cir.1996). The Tenth Circuit has held that [a] school recipient of federal funds may be liable under Title IX for its own conduct in being deliberately indifferent to student-on-student sexual harassment. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 643, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). A school district may be liable under Title IX provided it (1) has actual knowledge of, and (2) is deliberately indifferent to, (3) harassment that is so severe, pervasive and objectively offensive as to (4) deprive access to the educational benefits or opportunities provided by the school. Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1246 (10th Cir.1999). Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d at 1119. “[D]istrict courts differ as to whether notice of prior complaints as opposed to notice of the current harassment for which redress is sought triggers liability under Title IX.” Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d at 1119 (declining to resolve the issue because the defendant had actual notice of the specific harassment of the plaintiffs daughter). See Escue v. Northern OK College, 450 F.3d at 1153 (“Lower courts differ on whether notice sufficient to trigger liability may consist of prior complaints or must consist of notice regarding current harassment in the recipient’s programs.”)(eiting Johnson v. Galen Health Insts., Inc., 267 F.Supp.2d 679, 688 (W.D.Ky.2003), and Baynard, v. Malone, 268 F.3d 228, 238 (4th Cir.2001)). On the other hand, “a failure to prevent sexual harassment by a student before it occurs does not violate Title IX ... absent a showing of an institutional policy of indifference. However, a refusal to remedy known sexual harassment is actionable.” Murrell v. Sch. Dist. No. 1, 186 F.3d at 1250 n. 9 (emphasis in original). The Tenth Circuit has recently outlined the elements of a claim of supervisory liability under Title IX as well, though it was doing so in the context of a school district being held liable for sexual harassment by one of its teachers: As we have explained, this sort of supervisory liability is imposed: (1) “only if the [school] remains deliberately indifferent to acts of harassment of which it has actual knowledge,” Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d [at] 1246, (2) the harassment was reported to an “appropriate person ... with the authority to take corrective action to end the discrimination,” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), and (3) the harassment was “so severe, pervasive and objectively offensive that it ... deprived the victim of access to the educational benefits or opportunities provided by the school,” Murrell, 186 F.3d at 1246. Escue v. Northern OK College, 450 F.3d at 1152. “A district is deliberately indifferent to acts of student-on-student harassment ‘only where the [district’s] response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.’ ” Rost ex rel. KC. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d at 1119 (quoting Davis v. Monroe County Bd. of Educ., 526 U.S. at 648, 119 S.Ct. 1661). Where a Title IX or equal-protection defendant responds to reports of student-on-student sexual harassment, but simply does not do enough to stop the problem, the conduct is viewed as negligence, rather than deliberate indifference, and not actionable under Title IX. See Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d at 1125 (“[T]he evidence shows that the district was aware of several discrete problems and was working to remedy them—which only raises an issue of the district’s negligence, not its deliberate indifference. The attempted remedial measures suggest the district was not deliberately indifferent to or tacitly approving of the misconduct.”). RELEVANT LAW OF FERPA Congress enacted FERPA under its spending power to condition the receipt of federal funds on certain requirements relating to the access and disclosure of student educational records. The Act directs the Secretary of Education to withhold federal funds from any public or private “educational agency or institution” that fails to comply with these conditions. Gonzaga Univ. v. Doe, 536 U.S. 273, 278, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). The Secretary of Education is charged with “investigating, processing, reviewing, and adjudicating violations” of FERPA. Gonzaga Univ. v. Doe, 536 U.S. at 278, 122 S.Ct. 2268 (quoting 20 U.S.C. § 1232g(g)). The nondisclosure provisions of FERPA do not create a private right of action, nor do they create a right enforceable under 42 U.S.C. § 1983. See Gonzaga Univ. v. Doe, 536 U.S. at 279-80, 122 S.Ct. 2268; Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1062 (10th Cir.2002). RELEVANT LAW OF QUALIFIED IMMUNITY Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity “protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’ ” Roybal v. City of Albuquerque, No. Civ. 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009) (Browning J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009)(quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 129 S.Ct. at 815 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a “heavy two-part burden.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). The plaintiff must demonstrate on the facts alleged: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged unlawful activity. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009); Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). In assessing whether the right was clearly established, the court asks whether the right was sufficiently clear that a reasonable person in the defendant’s shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d at 1327. In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, the Supreme Court held that the court must decide whether there was a constitutional violation first, before it decides whether the law is clearly established. See 533 U.S. at 200-01, 121 S.Ct. 2151. The Supreme Court no longer requires the courts to analyze the issues in that order. See Pearson v. Callahan, 129 S.Ct. at 818. A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be “indisputable” and “unquestioned.” Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Strepka v. Miller, 2001 WL 1475058, at *5 (10th Cir.2001)(citing Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001)). See Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). “In determining whether the right was ‘clearly established,’ the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1186 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. 3034. The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified-immunity defense. In Pearson v. Callahan, the Supreme Court held that, “while the sequence set forth [in Saucier v. Katz] is often appropriate, it should no longer be regarded as mandatory.” 129 S.Ct. at 818. Rather, lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular ease at hand.” Id. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz would often be beneficial. See Pearson v. Callahan, 129 S.Ct. at 819. Once the plaintiff has established the inference that the defendant’s conduct violated a clearly established constitutional right, a qualified-immunity defense generally fails. See Cannon v. City & County of Denver, 998 F.2d 867, 870-71 (10th Cir.1993). ANALYSIS Because the Court’s jurisdiction depends upon the presence of federal claims, and because the Court might not keep the case if it dismisses all the federal claims, the Court will address the federal claims first. The Complaint is unclear upon what grounds and by what procedural vehicle the Schaefers are asserting their federal claims. The Complaint makes reference to equal-protection rights, substantive due-process rights, Title IX, and FERPA. The Complaint also frequently makes reference to the Defendants’ “conduct” and the Defendants’ “acts,” see, e.g., Complaint ¶¶ 64, 66, at 13 (“Defendants ... acted with reckless indifference and malice ... Defendants] ... affirmatively placed AS in a position of danger .... ”), but the only detailed factual allegations mention only what the Defendants failed to do, see, e.g., Complaint ¶¶ 55-72, at 10-14 (“Defendants ... were aware of the risk ... yet failed to take action.... Defendants^] ... failure to take action .... Defendants!’] failure to investigate.... By failing to develop and implement training programs.... Defendants!’] failure to counsel boys.... Defendant LCPS’s failure to train.... Defendants ... failed to adopt or implement. ... Defendants ... failed to maintain the confidentiality....”). The only detailed allegation of affirmative conduct is found in Paragraph 70, where the Schaefers allege that the Defendants “made [a] disclosure of [confidential] information ... without [AS’s] parents’ permission and thereby violated [FERPA].” Complaint ¶ 70, at 14. The Schaefers allege that this disclosure violated AS’s substantive due-process rights. See id. ¶ 71, at 14. The Court will therefore address all of the Schaefers’ claims as claims of inaction except those relating to the disclosure of the alleged confidential information. The Court notes that, upon initial review of the Schaefers’ Complaint, the Court thought this case is most appropriately characterized as an institutional negligence case. It appears that the Schaefers endeavor to bootstrap their situation into a federal case by characterizing being racked as sexual assault and by alleging that the situation as a whole “shocks the conscience.” Upon closer scrutiny, however, the Court finds that the Schaefers’ allegations, the vast majority of which are “[u]pon information and belief,” fail to state a plausible federal claim. I. THE PLAINTIFFS HAVE FAILED TO STATE A VALID CLAIM FOR VIOLATION OF CONSTITUTIONAL RIGHTS UNDER § 1983. The Schaefers do not mention 42 U.S.C. § 1983 in their Complaint. The Court notes, however, that the means by which a private individual seeks money damages for violation of his or her constitutional rights is by the mechanism of 42 U.S.C. § 1983. The Court thus assumes that it is the vehicle through which the Schaefers assert their constitutional claims. The Court will address the Title IX claim and, to the extent that one has been asserted, the FERPA claim, separately. A. THE PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR VIOLATION OF AS’ SUBSTANTIVE DUE-PROCESS RIGHTS. Because the conduct alleged against the Defendants in this case is inaction and failure to protect students from private violence, the Schaefers must establish their right to relief under their substantive-due-process claim by way of either the special-relationship doctrine or the danger-creation doctrine. See DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. at 195,109 S.Ct. 998; Davidson v. Cannon, 474 U.S. at 348, 106 S.Ct. 668; Christiansen v. City of Tulsa, 332 F.3d at 1280; Graham v. Indep. Sch. Dist. No. 1-89, 22 F.3d at 994-95. The Schaefers do not allege that the school had a duty to protect AS from assaults by other students under the special-relationship doctrine. See Transcript of Hearing at 7:19-24 (taken April 26, 2010)(“Tr.”)(“THE COURT: Let me ask you, on the special relationship exception, are you trying to come under the special relationship exception or just the creation of danger claim? MS. BANKS: Looking at this, Your Honor, just the creation of danger claim.”)(Court, Banks). In any case, the law appears to preclude such an argument. In Seamons v. Snow, the Tenth Circuit stated: [W]e [have] held that schools have no duty under the Due Process Clause to protect students from assaults by other students, even where the school knew or should have known of the danger presented.... Inaction by the state, in the face of a known danger, is not enough to trigger a constitutional duty to protect unless the state has a custodial or other “special relationship” with the victim. 84 F.3d at 1235-36. Thus, none of the Defendants can properly be found liable for violating AS’ due-process rights under such a theory. The Schaefers’ substantive-due-process claim fails under the danger-creation theory as well. To state a claim under the danger-creation theory, the Schaefers must plead facts that satisfy the following six factors: (i) the state and individual actors must have created the danger or increased plaintiffs vulnerability to the danger in some way; (ii) the plaintiff must be a member of a limited and specifically definable group; (iii) the defendant’s conduct must put the plaintiff at substantial risk of serious, immediate, and proximate harm; (iv) the risk must be obvious and known; (v) the defendant must have acted recklessly in conscious disregard of that risk; and (vi) such conduct, when viewed in total, must shock the conscience. See Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d at 1126. The Schaefers’ allegations cannot satisfy at least the first and last elements of this test. The Schaefers have failed to allege sufficient failures, omissions, or actions by the Defendants to constitute “creatfing] the danger or increas[ing] [AS’] vulnerability to the danger in some way.” The only argument that the Schaefers put forth to satisfy this element, other than the bald assertion that “[t]he identified failures by Defendants to take certain necessary and fundamental administrative steps created the danger or increased A.S.’s vulnerability,” Response at 21, is this: Defendants ... increased A.S.’s vulnerability to danger by providing the vulnerable sixth graders (and their parents) with a false sense of security during the sixth grade orientation that they would be safe and that Defendants had taken the administrative steps necessary to protect them. By providing such orientations, Defendants placed the sixth grade students in a worse and/or more vulnerable position than they might have been in if Defendants had not provided the orientation. Response at 22. The Defendants refer to this argument as “perverse,” and argue that such an orientation was to notify students of unacceptable behavior and its consequences, and direct the Court to case law that holds that “allegations of lulling and doing nothing do not give rise to a reasonable expectation of relief [for a violation of substantive due process], given DeShaney requires an affirmative act before imposing liability.” Defendants Las Cruces Public School District, Dante Thacker, and Daniel Gomez’ Reply to Plaintiffs’ Response in Opposition to Motion to Dismiss at 10-11, filed December 29, 2009 (Doc. 14)(quoting Robbins v. Oklahoma, 519 F.3d at 1252); Tr. at 15:12-22 (Hughes). Even ignoring the additional authority the Defendants provided, the Court is inclined to agree with the Defendants that there was no conduct by them that created danger or increased AS’ vulnerability to danger. The school orientation, if anything, should have put children on notice that the conduct discussed did periodically occur. The orientation informed the children that there would be repercussions if a student were to assault, bully, or harass another student—repercussions that would be unnecessary if no such conduct ever occurred. Exposure to society generally teaches one that, if there are rules prohibiting certain conduct, those rules were generally put in place after such conduct occurred. Even “vulnerable sixth graders (and their parents)” know that some people do not follow the rules, regardless what the punishment may be for violation. If the school officials performing the orientation affirmatively stated to the students that the students would not be subjected to bullying or harassment, the Court’s conclusion might be different. On the facts of this case, however, the Court cannot reasonably conclude that an orientation which might have put the more naive sixth-graders on notice that bullying occasionally occurs placed any sixth-grader in a more vulnerable position than he or she would be without the orientation. The Tenth Circuit’s decision in Robbins v. Oklahoma further reinforces this decision. In that case, the Robbinses sued the Oklahoma Department of Human Services and various individuals based on the death of their eight-month-old infant, Renee. See 519 F.3d at 1245. One of their claims was for violation of Renee’s substantive-due-proeess rights under a danger-creation theory. See id. at 1249. The conduct alleged in the complaint was that the defendants “instructed Plaintiffs to place Renee Dawn Robbins in a specific Daycare”; “informed Melissa that the McKinney Daycare was the only Daycare to which Renee could attend due to financial considerations”; “were or should have been aware of the past nature of McKinney’s personal background”; “knew that Dustin Robbins and Melissa Gillum were relying upon DHS to provide them with a safe environment for Renee”; “fail[ed] to take steps to ensure that Renee was placed in a safe environment”; “lulled the Plaintiffs into a false sense of security about Renee’s welfare”; “failed to correct the misimpressions that the DHS generated report of available Daycare facilities engendered”; and “continued to place children in [Ms. McKinney’s] custody ... instead of revoking [her] license.” Id. at 1250-51. The Tenth Circuit swept away most of the allegations by finding that “the defendants cannot be held liable for their failure to protect Renee from harm, absent some prior affirmative act that incurred a duty to protect.” Id. at 1251. With respect to “lullfing] the Plaintiffs into a false sense of security”—the only conduct that arguably occurred in the Schaefers’ ease—the Tenth Circuit concluded that “allegations of ‘lulling’ and ‘doing nothing’ do not give rise to a reasonable expectation of relief, given that DeShaney requires an affirmative act before imposing liability.” Id. at 1252. Lulling and doing nothing is all that the Schaefers allege in this case—that the Defendants held an orientation that created a false sense of security and then did not implement certain policies or take certain actions. The Court thus finds that the Schaefers have failed to state a claim for violation of AS’ substantive-due-process rights under a danger-creation theory. The Court also concludes that the conduct in this case does not “shock the conscience.” Assuming the absolute worst from the Schaefers’ alleged facts, the Defendants were aware of three instances of an unknown eighth-grade student racking various sixth-grade students within the span of a month, and failed to implement policies to improve hallway monitoring and stop this conduct from occurring in time to prevent AS from falling victim to the same fate. Further, the Defendants indicated to the sixth graders that it had policies in place to punish individuals that assaulted other students but did not, in fact, have such policies. While such behavior may be worthy of remedy under tort law, and perhaps worthy of punishment in the form of punitive damages, the Court’s conscience is not shocked. First of all, the conduct that the Schaefers assert is twofold: (i) doing nothing in the face of the first three reported instances of one student racking another, conduct which could arguably be characterized as sexual assault; and (ii) identifying AS’ as a racking victim at a school assembly in which the medical dangers of racking were discussed, resulting in AS’ embarrassment and ridicule and potentially subjecting him to a greater risk of future abuse by other students. The Tenth Circuit has stated, however, that the “shocks the conscience” standard requires “a high level of outrageousness,” Camuglia v. the City of Albuquerque, 448 F.3d at 1223, requiring something more than negligent, reckless, or even intentional conduct, See id. at 1222. “[T]he plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Uhlrig v. Harder, 64 F.3d at 574. That standard is not met in this case. Schools—in fact, almost all societies— have bullies, and sometimes bullies attack other students. The Court agrees that schools have some responsibility for ensuring the safety of the children that attend them, but children can be difficult to control. Most parents would agree that a child, if he or she so desires, can find a way to get into trouble, no matter how many safeguards are put in place. This inevitability does not, of course, excuse the school from its duty to protect its students-—a duty that the Court need not decide whether the Defendants have violated in this case—but the difficulty of controlling middle school students decreases the shocking nature of the conduct at issue. Other than their claims that the faculty and staff were not adequately trained, the Schaefers allege that the Defendants should have had more consistent adult supervision of the common areas. See Response at 29. Any number of actions by the Defendants might have remedied the problem, but the Court’s conscience is not shocked by the Defendants’ failure to consider or implement such a policy. Even if the Defendants knew that students frequently—more than three times per month—attacked other students in the halls and declined to implement safety measures to minimize that conduct, the Court is not convinced that it would rise to the level of shocking the conscience. The Court thus grants the Defendants’ motion to dismiss the Schaefers’ Fourteenth-Amendment due-process claim against the Defendants in both their individual and official capacities. B. THE PLAINTIFFS HAVE FAILED TO STATE A VALID CLAIM FOR VIOLATION OF THE EQUAL-PROTECTION CLAUSE. The Schaefers apparently attempt to allege that the discrimination was based on gender or, perhaps, on the basis of being sixth-grade boys. At the hearing, CaraLyn Banks, the Schaefers’ attorney, conveyed to the Court that the discrete and insular minority that she was alleging discrimination against was sixth-grade boys. See Tr. at 27:20-28:14 (Court, Banks). The Court can find no other arguable classification that might raise equal-protection concerns. Under either alleged classification, however, the Schaefers fail to state a claim under the equal-protection clause. In general, the Court notes that the school’s actions—or, more properly labeled, inaction—as alleged by the Schaefers, was not directed at any particular group of students. The Defendants did not treat any student or group of students differently than any other “similarly situation” group of students. Their inactions treated all students equally. The conduct of the eighth-grade boys arguably singled out the sixth-grade boys, but there is no heightened scrutiny of alleged discrimination against sixth graders, as there is alleged discrimination based on race, ethnicity, national origin, or gender. The Court thus does not believe the facts of this case give rise to any claim under the equal-protection clause. The Court also notes again that there is a strong argument to be made that a student racking another student is not the “sexual assault” as the Tenth Circuit envisioned when it found that a school district could be liable for failure to stop sexual assault about which it was aware. See Murrell v. Sch. Dist. No. 1, 186 F.3d at 1245-51. Nevertheless, the Court assumes—without deciding—that racking is a sexual assault for the purpose of this opinion, and this assumption does not change the resolution of this constitutional claim. To hold the school district—-or, presumably, the relevant administrative officials of the school district—liable “for sexual harassment under the Fourteenth Amendment, a plaintiff must demonstrate that a state employee’s discriminatory actions are representative of an official policy or custom of the municipal institution, or taken by an official with final policy making authority.” Murrell v. Sch. Dist. No. 1, 186 F.3d at 1249. When the sexual harassment is by a third-party, the plaintiff must prove that there was an “official policy of deliberate indifference to sexual harassment.” Id. at 1249. The facts in the Complaint show that this claim fails. Before any incident, the school held an orientation meeting in which school officials stated that “bullying, harassment, fighting, gangs, and physical/sexual assault” would not be tolerated. Complaint ¶ 9, at 2. Moreover, the Schaefers’ allegations include an allegation that, after four incidents of student-on-student assault, at least two of which involved racking, the school held a discussion in the gymnasium of Zia Middle School to discuss the injuries that can result from racking—the sexual-assault behavior about which the Schaefers complain. This meeting was apparently in response to those four incidents—there would be no other reason to explain the results of racking to a group of middle school boys—and therefore appears to b