Doe v. Hamilton Cnty. Bd. of Educ. (329 F. Supp. 3d 543, 2018)

HARRY S. MATTICE, JR., UNITED STATES DISTRICT JUDGE

This matter is before the Court on the Parties' cross-motions for summary judgment. [Docs. 172, 176, 177, & 178]. These consolidated cases were brought on behalf of two teenagers, the victims of hazing and sexual assault at their former high school. While on a school basketball trip, John Doe and Richard Roe, Jr.'s teammates held them down and sexually attacked them with a pool cue. Doe's attack was particularly gruesome because it resulted in him being anally penetrated with the narrow end of a pool cue, leaving him seriously injured. Doe's and Roe's parents, on behalf of their sons, brought claims against the Hamilton County Department of Education, some of its school administrators, and one of its teachers asserting Title IX, 42 U.S.C. § 1983, and state law tort claims. Plaintiffs allege, in sum, that Defendants were deliberately indifferent to Doe's and Roe's harassment in violation of their statutory and constitutional rights, and further that the school system and its agents were negligent.

Because the Court finds factual questions permeate Doe's and Roe's sexual assault, the Plaintiffs' Motion for Partial Summary Judgment [Doc. 178] is DENIED . Although those questions create a triable issue as to pre-assault deliberate indifference, after the assaults the Hamilton County Department of Education acted reasonably in its response by promptly punishing Doe and Roe's attackers and investigating the incidents. Further, the Court finds there are genuine issues of fact regarding whether the Department was constitutionally deficient in its relevant staff training. Accordingly, Hamilton County Department of Education's Motion for Summary Judgment [Doc. 177] will be GRANTED in part and DENIED in part . Likewise, there is insufficient evidence demonstrating the individual defendants in this action violated constitutional rights, and all are otherwise protected by qualified immunity. As such, Andre Montgomery, James Jarvis, and Jesse Nayadley's Motions for Summary Judgment [Docs. 172, & 176] are hereby GRANTED .

I. BACKGROUND

In 2015, John Doe ("Doe") and Richard Roe, Jr. ("Roe"), were freshmen at Ooltewah High School ("OHS"), a school administered by the Hamilton County Department of Education (the "Department"). There Doe and Roe participated in the school's basketball program. Most freshmen that aspired to play basketball at OHS were resigned to play on the school's freshman squad, but Doe's and Roe's skill earned them a spot on the varsity team. [Doc. 185 at 1]. What at first appeared to be an honor soon turned out to be a source of torment.

The OHS varsity team was allegedly rife with bullying and hazing. [Doc. 185 at 4, &

186 at 5]. One favored form of hazing was what the players referred to as "racking-in" or the "rackings." [Doc. 179 at 2-3] Rackings consisted of upperclassmen beating freshman players in the team locker room with the lights out. [Doc. 185 at 3]. Three upperclassmen in particular were prominent "rackers," Students A, B, and C. [Doc. 185 at 2]. The three actually started the rackings once they joined the basketball team later that year, in November. [Id. ]. All four of the team's freshman players-Doe, Roe, and Students F and H-fell victim to the rack. [Doc. 185 at 3]. The frequency of rackings would vary per player; Doe says he was racked-in only once, but Roe claims he was put through the freshman rack multiple times per week. [Doc. 179 at 2]. Neither Doe nor Roe ever reported the rackings to school officials. [Doc. 173 at 5].

The varsity team's coach was Andre Montgomery ("Montgomery"), a defendant in this action. [Doc. 177-1 at 2]. Montgomery was also a teacher at OHS, and he had coached basketball at the school in some capacity since 2009. [Doc. 185 at 2]. Montgomery's office was next door to the team's locker room, and on more than one occasion he entered the locker room to find the players inside with the lights off. [Id. at 4-5]. His typical response consisted of him turning on the lights and yelling "knock off the horseplay." [Id. at 5]. Montgomery also occasionally punished players for hazing or horseplay. [Id. ]. Plaintiffs assert this is evidence Montgomery knew of the rackings. [Id. at 4]. Montgomery denies he had any such knowledge. [Doc. 173 at 4].

A. The Gatlinburg Trip

On December 19, 2015, the varsity team and Coach Montgomery traveled to the Gatlinburg, Tennessee area to participate in the "Smokey Mountains Christmas Classic" basketball tournament. [Id. at 3]. The trip was scheduled to last five days, with at least four overnight stays in Gatlinburg. [Id. ]. The team's fourteen players, Montgomery, his wife, his daughter, and an Assistant Coach, Karl Williams, would all stay in a single cabin, "JJ's Hideaway." [Id. ]. The cabin had two floors. [Doc. 185 at 5]. The boys were divided into three rooms in a downstairs area, and the adults and Montgomery's daughter stayed in two rooms upstairs. [Id. ]. When downstairs, the players were secluded from the adults, which effectively left them unsupervised. [See e.g. id. at 6]. Montgomery and Williams ventured down "only once or twice" during the entire trip. [Id. ] However, Montgomery claimed he could hear the players downstairs, including their conversations. [Doc. 185 at 7]. The downstairs area had a den that featured a billiards table. [Id. at 6]. Prior to and early on in the trip, Student B hinted to the freshmen that "something" was going to happen during the trip, and the upperclassmen would talk and joke about using pool cues on the freshmen, although at first Doe believed it was their intention to merely beat the freshman with the cues. [See Docs. 177-1 at 3, & 179 at 4]. Doe actually attempted to hide the pool cues to prevent their use. [Doc. 179 at 4]. Doe's efforts ultimately failed, however, and before the trip's end Students A, B, and C would use those pool cues to sexually assault the team's four freshmen.

Montgomery and Williams' laissez-faire approach to supervision is evidenced by their actions upon arriving at the cabin on December 19th. The two decided to go grocery shopping, leaving the players unsupervised for almost two hours. [Doc. 185 at 6]. The scene quickly devolved into a proverbial Lord of the Flies situation. [Doc. 179]. Once the adults left, upperclassmen shut off the cabin lights. [Doc. 185 at 6]. The freshmen scattered. Doe, Roe, and another freshman sought shelter in a locked bathroom, where upperclassmen soon broke in, beat up the screaming freshmen, and drug them out. [Doc. 177-1 at 5]. Bands of upperclassmen then rounded up and threw fully clothed freshmen into the cabin's outdoor hot tub, on that cold December night. [Doc. 185 at 7]. Doe and Roe were among the victims. [Id. ].

The next night, December 20, 2015, the trip took an even darker turn. Upperclassmen found the hidden pool cues. Students A and C soon grabbed one of the team's freshman, Student F, and pinned him to the ground [Doc. 185 at 7]. While the two held him down, Student B took a pool cue and used it to prod Student F's anus, over his clothes. [Id. ]. Throughout the attack, Student F screamed. [Id. ]. Soon thereafter, Student A hunted down and grabbed Roe, wrestled him to the ground, and sat on his back to prevent his escape. [Id. ]. Then Student B, like he had done with Student F, placed a pool cue over Roe's clothes, between his buttocks, and "attempted to penetrate ... Roe's rectum" with the cue. [Doc. 177-1 at 6]. While Student B was doing this he was yelling "don't be a pussy," and "take it like a man." [Doc. 185 at 7].

The sexual assaults continued the next night, on December 21st. [Doc. 177-1 at 6]. After playing a game of pool, Doe heard Students A and C yell, "Get 'em" as they grabbed another freshman, Student H. [Id. ]. Doe fled the room and hid at the top of the cabin stairs. [Docs. 177-1 at 6, & 185 at 8]. From there Doe could hear Student H's screams as the upperclassmen used a pool cue to simulate sodomy on him as they had before. [Doc. 185 at 8].

The attacks came to a horrifying crescendo the night of December 22, 2015. That night, after dinner, Doe went downstairs to grab his cell phone. [Doc. 185 at 8]. There Students A, B, and C ambushed him. [Id. ]. They followed him into his room while holding a pool cue, and closed and locked the door. [Id. ]. Roe witnessed this while standing at the top of the stairs talking to Williams, and he reported what he was seeing. [Id. ]. Williams's response was "they better not be doing anything to him." [Id. ]. In the room, Students A and C held Doe down. [Doc. 177-1 at 7]. Student B then took the pool cue and forcefully rammed it into Doe's anus. [Id. ]. This was done over his clothes, as it had been done in prior attacks, but this time the ramming was so forceful that the cue ripped through two layers of Doe's clothing and actually penetrated him. [Doc. 185 at 8]. His attackers then ran away. [Id. ] Roe could hear Doe's screams from where he was standing. [Id. ]. Roe and Williams then ran into the room to find Doe lying on the floor, bleeding from his anus. [Id. ]. Coach Montgomery and his wife were called down to the room shortly thereafter. [Id. ]. Although he was in pain and bleeding, Doe was able to get up and clean himself off. [Id. ]. Montgomery then pulled Roe, Doe, and Student F the side and told them, "Keep this on the low," and "Don't let this get out," referring to the incident. [Id. ]. Apparently, this encouraged Doe to continue on the trip as if nothing had happened. Montgomery then began questioning the upperclassmen, and Student B admitted to Montgomery that he "had poked ... Doe 'on the bottom with a pool cue.' " [Doc. 177-1 at 7].

Sometime later that night, Doe began urinating blood. [Id. at 9]. Montgomery took him to the local emergency room. [Id. ]. During this, a Detective and two police officers from the Gatlinburg Police Department arrived at the cabin and began investigating the incident. [Doc. 177-1 at 7]. After their investigation, Montgomery called Students A's, B's, and C's parents, suspended them from the team, and had them transported back to OHS. [Id. ]. The Department would eventually suspend and "zero tolerance[ ]" Students A, B, and C from school some time thereafter. [Id. at 8]. The next day, the remainder of the team, including Roe, competed in the last game of the tournament before going back to Ooltewah. [Id. ].

Back at the hospital, doctors had diagnosed Doe with a "full-thickness bladder injury," meaning the attack had perforated both his rectum and bladder. [Id. ]. Without surgery, Doe's injuries were life threatening. [Id. ]. Doe was transported by ambulance to another hospital, the University of Tennessee Medical Center in Knoxville. [Doc. 185 at 9]. There surgeons performed emergency surgery on Doe, repairing damage caused by the rape. [Id. ]. Doe remained hospitalized for six days, and after his release, he was bed bound. [Id. ]. He was unable to eat or use the bathroom, and had to re-learn to walk. [Id. ]. He did not fully recover until over nine months after his attack. [Id. at 10].

After the Gatlinburg incident, Doe never returned to OHS, choosing instead to transfer to another school. [Id. ]. Roe tried to continue attending OHS, but he claims the friends of his assaulters' harassed and threatened him at school. [Doc. 178-1 at 206]. Shortly after returning from Christmas break, he too decided to attend a different school. [Doc. 185 at 10].

B. Procedural Posture

On August 9, 2016, Doe's mother, Jane Doe (collectively the "Does" or "Doe Plaintiffs"), brought a lawsuit on behalf of her son. She asserted claims against the Department, and in their official and personal capacity: Montgomery, OHS Principal James Jarvis, and OHS Athletic Director Jesse Nayadley (collectively the "Individual Defendants"). [Doc. 1]. Likewise, on December 16, 2016, Roe's parents, Richard Roe, Sr., and Jane Roe (collectively the "Roes" or "Roe Plaintiffs"), brought claims against the Individual Defendants, the Department, and the Department's Title IX coordinator, Marsha Drake. [1:16-cv-497 ECF Doc. 1]. On August 3, 2017, District Judge Travis R. McDonough consolidated the Does' and Roes' cases. [Doc. 65]. On March 12, 2018, the Individual Defendants moved for summary judgment as to the Does' claims [Doc. 172] and Roes' claims [Doc. 176]. The Does and Roes both responded to the Individual Defendants' respective Motions for Summary Judgment on April 2, 2018. [Docs. 184 & 186]. On April 16, 2018, the Individual Defendants replied to the Doe Plaintiffs' response [Doc. 194] and Roe Plaintiffs' response [Doc. 195]. The Department and Marsha Drake also filed a Motion for Summary Judgment on March 12, 2018. [Doc. 177]. Plaintiffs responded separately. The Roes responded to the Department and Drake's motion on April 2, 2018. [Doc. 183]. The Does likewise responded to the motion on the same day. [Doc. 185]. All Plaintiffs filed a Joint Motion for Partial Summary Judgment against the Department on March 12, 2018. [Doc. 178]. The Department and Marsha Drake responded to the Plaintiffs' motion on April 2, 2018. [Doc. 182], and Plaintiffs replied in turn on April 9, 2018 [Doc. 192]. The Court finds that the issues in this matter have been fully briefed and are ready for disposition.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 instructs the Court to grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material fact must support its position either by "citing to particular parts of materials in the record," including depositions, documents, affidavits or declarations, stipulations, or other materials, or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). When ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Nat'l Satellite Sports, Inc. v. Eliadis Inc. , 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply "by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. Where the movant has satisfied this burden, the nonmoving party cannot "rest upon its ... pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial." Moldowan v. City of Warren , 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita , 475 U.S. at 586, 106 S.Ct. 1348 ; Fed. R. Civ. P. 56 ). The nonmoving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson , 477 U.S. at 248-49, 106 S.Ct. 2505 (citing First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) ); see also White v. Wyndham Vacation Ownership, Inc. , 617 F.3d 472, 475-76 (6th Cir. 2010). A mere scintilla of evidence is not enough; there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson , 477 U.S. at 252, 106 S.Ct. 2505 ; Moldowan , 578 F.3d at 374. If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex , 477 U.S. at 323, 106 S.Ct. 2548.

III. ANALYSIS

A. Title IX Claims

Title IX of the Education Amendments Act of 1972 ("Title IX") states, in relevant part:

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). There is no explicit reference to private suits for money damages in Title IX's text. See id. Instead, the United States Supreme Court has found such actions are implicit in the statute and its legislative history. Cannon v. Univ. of Chicago , 441 U.S. 677, 709, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Title IX supports lawsuits brought for certain injuries caused by entities that receive federal educational funds. Id. Because Congress passed the law pursuant to its spending power, Title IX is contractual in nature and its extension of liability is appropriately viewed as a condition to the receipt of federal support, and in effect, schools consent to permit themselves to be subject to Title IX liability when accepting federal funds. Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 286-87, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998).

These precedents have stood for over a generation, and education departments and schools have long since been put on notice that opting to receive financial assistance from the federal government comes at a price: increased risk for liability. As is relevant here, this includes, "in certain limited circumstances," suits "for discrimination in the form of student-on-student sexual harassment. " Davis Next of Friend LaShonda D. v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 639-644, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (emphasis added). It is not the case, however, that the basis of such a claim derives from imputing a harasser-student's behavior to the fund recipient school. Id. at 645, 119 S.Ct. 1661. And when they accept federal funds, schools do not agree to be their students' insurers against any harassment they may face. See e.g. id. Rather, a school may be liable for its students' injuries under Title IX when it has "actual knowledge" of, and is deliberately indifferent to, "severe, pervasive, and objectively offensive" student-on-student sexual harassment that occurs " 'under' an 'operation' of the [school]." Id. at 646, 119 S.Ct. 1661. Doe and Roe assert this avenue of liability is applicable to their injuries.

Although they base their claims chiefly under Title IX, Doe and Roe's case is far from a prototypical Davis suit for deliberate indifference toward student-on-student harassment. Davis , for instance, involved a claim brought on behalf of a female student who was repeatedly sexually harassed over a period of "many months" by a male classmate. Id. at 633-34, 119 S.Ct. 1661. The Davis harasser's conduct occurred exclusively on school grounds, during school hours, and the victim and her mother notified school administrators of the ongoing harassment. Id. Despite her frequent reports, the school failed to effectively stop the victim's harassment, and her harasser eventually sexually assaulted her. Id. at 634, 119 S.Ct. 1661. By contrast, this claim involves conduct among students who are of the same sex. The most egregious conduct occurred far from school property, in a Gatlinburg cabin over one hundred miles away. Neither Doe nor Roe had reported harassment to anyone prior to their assault or rape, and if there were any actual, pre-assault knowledge of sexual harassment on the part of school officials, it was limited to two coaches, not a principal or other school administrator. Whether those facts support relief under Title IX requires careful attention to the Davis elements.

Title IX supports a suit for private money damages for student-on-student sexual harassment when:

(1) [there is] sexual harassment [that is] so severe, pervasive, and objectively unreasonable that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school, (2) the funding recipient had actual knowledge of the sexual harassment, and (3) the funding recipient was deliberately indifferent to the harassment.

Stiles ex rel. D.S. v. Grainger Cty, Tenn. , 819 F.3d 834, 848 (6th Cir. 2016) (citing Davis , 526 U.S. at 650, 119 S.Ct. 1661 ). The Department has not disputed its status as a federal fund recipient. Before the claim elements are further explored, however, it must be determined whether Roe and Doe's sexual assault and rape occurred " 'under' an 'operation' of" OHS, which was administered by the Department. Davis , 526 U.S. at 646, 119 S.Ct. 1661. School liability for student-on-student sexual harassment only extends to harassment that occurs when the school has the authority to correct and/or prevent the offending behavior. See e.g. Gordon v. Traverse City Area Pub. Sch. , 686 F. App'x 315, 324 (6th Cir. 2017) (holding the defendant school could not be held liable for being deliberately indifferent toward students who "liked" a harassing Facebook post when there was no evidence those "likes" occurred during school hours). In other words, liability under Davis only attaches when alleged harassment happens "where the school 'exercises substantial control over both the harasser and the context in which the known harassment occurs.' " Id. (emphasis added) (quoting Davis , 526 U.S. at 645, 119 S.Ct. 1661 ).

It is an inescapable fact that the incidents alleged in this case occurred "under" a school "operation." Although Doe and Roe were sexually attacked far from campus and after the Department had ceased a majority of its operations for Christmas break, the boys were on a trip organized and sponsored by the Department. The trip's purpose was to promote the school's varsity basketball team and facilitate its competition in a holiday tournament. In order to ensure the team's well-being, including providing meals and transportation, the Department entrusted its agent, Montgomery, to care for the players. Further, it is without question that Montgomery and Williams had the authority to "control" the actions of Doe and Roe's harassers, and as the trip's chaperones, they had the ability to control the "context" of the harassment-e.g. they had the ability to control the players' conduct in the cabin. Davis , 526 U.S. at 645, 119 S.Ct. 1661 ; but see Pahssen v. Merrill Cmty. Sch. Dist. , 668 F.3d 356, 364 (6th Cir. 2012) ("When conduct occurs ... off school grounds entirely, the school district has control over neither the harasser, nor the context." (quoting the district court) ). Accordingly, the Gatlinburg trip and cabin stay are well within the school "operation[s]" that Davis contemplated. Id. at 646, 119 S.Ct. 1661.

1. Sexual Harassment So Severe, Pervasive, and Objectively Unreasonable that it Deprived Plaintiffs of Educational Opportunities

Turning to the first Davis element, the Court must determine whether the case facts support a finding of: (1) sexual harassment (2) that was so severe, pervasive, and objectively unreasonable (3) that it deprived Doe and Roe of educational opportunities at the Department's school system. See Stiles , 819 F.3d at 848. Although this test stands as single factor, the first Davis element touches on multiple issues. It should be no surprise, then, that many courts have found it helpful in their analysis to separate the element's considerations. Tumminello v. Father Ryan High Sch., Inc. , No. 3:15-cv-00684, 2015 WL 13215456, at *2 (M.D. Tenn. Dec. 7, 2015) (splitting sexual harassment element from the severity element), aff'd 678 F. App'x 281 (6th Cir. 2017) ; Roe ex rel. Callahan v. Gustine Unified Sch. Dist. , 678 F.Supp.2d 1008, 1025-29 (E.D. Cal. 2009) (analyzing severity and sexual harassment elements separately from the denial of benefits element). This Court will do the same here. First, it will be determined whether the alleged conduct constitutes sexual harassment, and next the Court will consider whether the facts support finding the harassment was "so severe, pervasive, and objectively unreasonable" as to constitute a denial of educational opportunities.

a. Sexual Harassment

Title IX does not cover every instance of student-on-student harassment that likely occurs on a regular basis in most schools. For instance, generalized bullying-motivated by personal animus, opportunism, or social status-is not the sort of conduct proscribed by Title IX. Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist. , 647 F.3d 156, 165 (5th Cir. 2011). Congress has not turned everyday schoolhouse teasing into a potential federal suit in which every childish slight lays bare the school coffers. A Davis claim is only available to students who have been "harassed on the basis of his or her sex. " Tumminello v. Father Ryan High School, Inc. , 678 F. App'x 281, 284 (6th Cir. 2017) (emphasis added). As such, the Court must determine whether Doe and Roe experienced harassment "on the basis of" their sex. Id.

In the typical case, harassment can be "indisputably" identified as "sexual harassment" because it often "involve[s] male students harassing female students, ostensibly because of sexual desire." Hoffman v. Saginaw Pub. Sch. , No. 12-10354, 2012 WL 2450805, at *8 (E.D. Mich. June 27, 2012) ; see also Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) ("Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual." (Scalia, J., writing) ). Issues are not as straightforward when harassment involves harassers and victims that are the same sex and/or involves conduct that was not apparently motivated by sexual attraction, as is the case here. See id. To be sure, however, it has long been "settled law that 'same-sex sexual harassment is actionable under [T]itle IX.' " Carmichael v. Galbraith , 574 F. App'x 286, 290 (5th Cir. 2014) (quoting Sanches , 647 F.3d at 165 ); see also e.g. Mathis v. Wayne Cty. Bd. of Educ. , 496 F. App'x 513 (6th Cir. 2012) (finding as cognizable a Davis claim for same-sex sexual harassment). Further, "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." Oncale , 523 U.S. at 80, 118 S.Ct. 998.

Doe and Roe experienced same-sex harassment that was not apparently "motivated by sexual desire." Id. Such harassment could be "on the basis of sex" in a myriad of circumstances. Id. An obvious example is when classmates tease a student because he or she does not "conform to traditional gender stereotypes in an observable way." See Tumminello , 678 F. App'x at 285. Also, same-sex harassment is "on the basis of sex" if the harasser is motivated by an animus toward the presence of others that are the same gender. See Oncale , 523 U.S. at 80, 118 S.Ct. 998 ("for example, [harassment is actionable under Title VII,] if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace"). In other contexts, however, courts have had a harder time determining whether same-sex harassment occurs "on the basis of" the victim's sex. For instance, courts have faced difficulty when confronted with cases in which a student was harassed due to their sexual orientation. Tumminello , 678 F. App'x at 286. The Sixth Circuit has held-albeit in an unpublished opinion-that such harassment is not "on the basis of sex" and thus not covered by Title IX. Id.

Courts have likewise struggled with cases similar to the present one, where hazing occurs in a sports or team setting. In such situations, it is not always obvious whether alleged hazing was motivated by the victim's sex. See e.g. Seamons v. Snow , 84 F.3d 1226 (10th Cir. 1996) (holding incidents of hazing provided no evidence "sex was used to contribute to a hostile [educational] environment"). Typically when presented with the issue, there is little objective evidence from which to infer the hazers' conduct was carried out "on the basis of sex." For example, there is often no "direct comparative evidence about how the alleged harasser treated members of both sexes" in a similar context (e.g. locker-room horseplay). Oncale , 523 U.S. at 81, 118 S.Ct. 998. Additionally, hazing, by its nature, is primarily motivated by team hierarchy, seniority, or class position (e.g. seniors hazing freshmen), not necessarily sex. To further complicate matters, the Supreme Court has cautioned courts and juries to not overreact and confuse "ordinary socializing," such as "male-on-male horseplay," for sexual discrimination. See id. These concerns and evidentiary issues have made it difficult to parse out the type of hazing that Title IX covers.

Here, Doe and Roe point to comments made by some of their hazers as evidence that their harassment occurred because of their sex-or to be more specific, presumably due to a perceived failure to live up to their harassers' ideal view of masculinity. For example, when the team's upperclassmen would beat up the freshman players in the team locker room, they would yell: "don't be a pussy," "take it like a man," and "this is going to make you a man." [Doc. 179 at 3]. However, those comments are hardly dispositive. Sanches , 647 F.3d at 165 ("The offensive behavior ... must still be based on sex, per the words of [T]itle IX, and 'not merely tinged with offensive sexual connotations.' " (quoting Frazier v. Fairhaven Sch. Comm. , 276 F.3d 52, 66 (1st Cir. 2002) ); see also Davis , 526 U.S. at 651-52, 119 S.Ct. 1661 (holding "damages" are not available for "name-calling ... even where these comments target differences in gender."); Diebold v. Hartford Pub. Sch. , No. 1:15-cv-529, 2017 WL 4512575, at *5 (W.D. Mich. May 25, 2017) (holding that harassment mixed with a gendered comment "fails to support the proposition that the harassment at issue in this case is 'on the basis of sex,' as required for liability under Title IX."); J.H. v. Sch. Town of Munster , 160 F.Supp.3d 1079, 1092-93 (N.D. Ind. 2016) (holding evidence that a victim was called derogatory, gendered names was not sufficient evidence to support Title IX claim); Roe ex rel. Callahan v. Gustine Unified Sch. Dist. , 678 F.Supp.2d 1008, 1027 (E.D. Cal. 2009) ("The use of gender-based or sexually loaded insults such as 'fag' or 'homo' can certainly be indicative of animus on the basis of gender, but the use of such terms without more is not necessarily sufficient to establish gender discrimination."). Further, statements such as "take it like a man" and "this is going to make you a man" could reasonably be understood as regarding the victims' age, not merely their gender. Nonetheless, the comments, although not direct evidence that Doe and Roe's harassers were motivated by gender, are appropriately considered in the "constellation of surrounding circumstances" of alleged conduct. Davis , 526 U.S. at 631, 119 S.Ct. 1661 (quoting Oncale , 523 U.S. at 82, 118 S.Ct. 998 ). This is particularly true when the comments were made in context of the sexual assaults. [See Doc. 185-7 at 121].

Here, when determining whether the team's hazing can be construed as the type of harassment proscribed by Title IX, one does not have to look further than the sexual assaults sitting at the core of these lawsuits. Those assaults, which involved upperclassmen using pool cues to sodomize or simulate sodomy on freshman players, occurred near nightly at the Gatlinburg cabin during the trip. The Court finds these assaults create a factual inference that the team's hazing amounted to sexual harassment contemplated by Title IX, meaning it was carried out "on the basis of" Doe's, Roe's, and the other freshmen's sex. See e.g. Doe v. Rutherford Cty., Tenn. Bd. of Educ. , No. 3:13-cv-328, 2014 WL 4080163, at *10 (M.D. Tenn. Aug. 18, 2014). There has been some confusion in the Sixth Circuit regarding whether a Title IX plaintiff's alleged sexual assault factors into the analysis under the first Davis element. See Pahssen , 668 F.3d at 364 (explaining "whether [the court] should consider ... sexual assault ... under the first Davis element" presents an "ambiguity," but did not resolve the issue because the claim failed on other grounds). Other decisions have not been so uncertain. For example, shortly after Davis , the Sixth Circuit found "rape and sexual abuse[ ]" motivated by the attackers' sexual desire "obviously qualifies as .... sexual harassment." Soper v. Hoben , 195 F.3d 845, 855 (6th Cir. 1999) (emphasis added). Likewise, in an unpublished decision, issued shortly before the Pahssen court perceived an ambiguity in this context, a Sixth Circuit panel found that a locker room incident in which eighth grade boys forced their male basketball teammate "to the ground, pulled his pants down and anally penetrated him with a marker" could reasonably be considered by a jury as a "serious incident" of sexual harassment, and "not just horseplay gone awry." Mathis , 496 F. App'x at 516.

Considering sexual assaults under the first Davis element, as the Mathis court did, is a logical approach-although it is understandable why one could detect an ambiguity on this issue. Sexual assaults are by their definition "sexual," but it does not follow that those who carry out such attacks are always motivated by their victim's gender. That adds a wrinkle into the analysis, because Title IX is concerned with "discrimination in the form of ... sexual harassment," not necessarily harassment that is "sexual" in nature. Davis , 526 U.S. at 639, 119 S.Ct. 1661 (emphasis added); see also Oncale , 523 U.S. at 81, 118 S.Ct. 998 (holding the Title VII plaintiff alleging harassment "must always prove the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'discrimina[tion] ... because of ... sex.' " (emphasis in original) ). To be sure, it is sensible to assume in the overwhelming majority of sexual assault cases, the victim's gender is a motivating factor for the attacker; this is indisputably the case when the attacker is driven by sexual desire. Likely because of this, the Office of Civil Rights (OCR), the executive agency tasked with enforcing Title IX, has taken this reasonable assumption one step further and held, as a per se rule, that all acts of "sexual violence" against students-which the OCR defined as a nonconsensual "sexual acts," including "rape, sexual assault, sexual battery"-"are forms of sexual harassment covered by Title IX." See Dear Colleague Letter from Russlynn Ali, Assistant Secretary of Education for Civil Rights (Apr. 4, 2011) available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html. OCR's determination, although not controlling here, does have some persuasive value. See Christensen v. Harris Cty. , 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). However, while the Court agrees that most sexual assaults are motivated by the victim's gender, a Title IX legal conclusion in this context would only be beneficial if all sexual assaults are necessarily motivated by the victim's sex, and this does not appear to be true. This case provides evidence for that proposition, and its facts are hardly unique. It is an unfortunate reality that athletic hazing, despite not being typically motivated by sexual desire, can become sexually exploitive. See Susan P. Stuart, Warriors, Machismo, and Jockstraps: Sexually Exploitive Athletic Hazing and Title IX in the Public School Locker Room , 35 W. New Eng. L. Rev. 377, 384-87 (2013) (describing multiple incidents of team hazing that involved sodomizing victims with foreign objects). It is difficult to find with certainty that such sexual assaults in hazing are carried out "on the basis of sex." For instance, as is relevant here, although the upperclassmen sexually assaulted freshmen players, there is little direct evidence their actions were motivated by their victims' gender. It could be the case that, given the right circumstances, the attackers would have hazed female freshman players in a similar fashion. However, contemplating a harasser's motive inserts a difficult factual determination that must be grounded in common sense and social experience, and as a result the issue is not easily or helpfully reduced to formulaic legal conclusions. Instead, if a reasonable inference of discrimination can be drawn from the evidence, a fact finder should resolve the question. Id. In the context of sexual assaults in hazing, a jury could reasonably infer the attack was motivated by an undercurrent of social dynamics that has a basis in the victim's gender.

Sexually exploitative hazing in male athletics is based on the victim's gender if the acts have the intended goal of "diminish[ing]" the victim's "masculinity" or male identity. Stuart, supra , at 387. For instance, sexual assaults in hazing can have "the purpose of feminizing and homosexualizing recruits to establish and reaffirm their position at the bottom of the team's heteromasculine hierarchy." Id. (quoting Eric Anderson et al., Male Team Sport Hazing Initiations in a Culture of Decreasing Homohysteria , J. Adolescent Res., July 4, 2011, at 5, available at http://www.ericandersonphd.com/journal-articles.php). Indeed, when Doe was asked why he believed he was raped, it appeared that this was his understanding when he said: "[the attacker] ... tried to make me feel like less than a man, less than him." [Doc. 141 at 5]. As such, when faced with an incident of sexual assault in the context of hazing, it is not unreasonable for a jury to infer that the purpose of the attack has a basis in the victim's sex. See Gustine , 678 F.Supp.2d at 1027 (involving a hazing incident in which a Title IX plaintiff was sodomized with an air pump) (holding "a reasonable jury could find the alleged" acts "were based upon [the victim's] sex").

Here, after considering the "constellation of surrounding circumstances" of the team hazing-including the sexual assaults, Doe's rape, and the gendered comments accompanying the freshman beatings-a reasonable jury could conclude Doe and Roe were indeed harassed, and further justifiably infer that their harassment occurred on the basis of their sex. Davis , 526 U.S. at 633, 119 S.Ct. 1661. Ultimately, the issue involves a material question of fact. As such, summary judgment-in either direction-would not be appropriate. Accordingly, on this issue, the Department's [Doc. 177] and Plaintiffs' [Doc. 178] Motions for Summary Judgment are DENIED .

b. Deprivation of Educational Benefits

Under Davis , damages are not available for all instances of sexual harassment. An aggrieved Davis plaintiff, instead, has an additional hurdle and must establish he or she suffered sexual harassment that was "so severe, pervasive, and objectively unreasonable ... that [it] undermine[d] and detract[ed] from the victims' educational experience, that the [student was] effectively denied equal access to an institution's resources and opportunities." Davis , 526 U.S. at 651, 119 S.Ct. 1661. The Court imposed this requirement to guard against the imposition of "sweeping liability." Id. at 652, 119 S.Ct. 1661. Students "may regularly interact in a manner that would be unacceptable among adults," but "damages are not available for simple acts." Id. at 651-52, 119 S.Ct. 1661 Rather, sexual harassment must be "sufficiently severe" to be actionable under Title IX. Id. at 650, 119 S.Ct. 1661. Further, circuit precedent limits evidence under this element to instances of the plaintiff's own personal harassment, meaning Davis plaintiffs cannot meet their burden by relying on the harassment of other students. Pahssen , 668 F.3d at 363.

In Doe's case, this element is undoubtedly met. After his rape, Doe needed lifesaving, emergency surgery to repair his perforated bladder and rectal wall. Thereafter, he was hospitalized for six days, including Christmas. [Doc. 178-2 at 131]. After his discharge, Doe was bed bound for one month; he faced a lengthy recovery, which included him not being able to eat or use the bathroom, and he had to re-learn how to walk. [Doc. 185 at 9]. Doe asserts he did not fully physically recover from his injuries until September 2016, and to this day still feels physical pains related to the rape. [Id. at 10]. Further, Doe never returned to OHS after his rape, likely due to embarrassment. [See Doc. 185-4 at 14 (Doe: "[I]f I would've returned back to Ooltewah, a lot of people already knew who I was, they would've wanted to know, you know, exactly want happened (in reference to the rape). So I [made the choice] to [go to] a different school."].

Doe's choice to transfer schools following his rape necessarily inserts a factual question regarding whether the deprivation was causally related to his harassment. See Gustine , 678 F.Supp.2d at 1028. However, even with that factual issue aside, it can be legally presumed when a plaintiff is hospitalized resulting from harassment arising out of a school operation, the student's harassers "undermine[d] and detract[ed]" from his or her "educational experience." Davis , 526 U.S. at 651, 119 S.Ct. 1661 ; see also Gustine , 678 F.Supp.2d at 1028 (holding hospitalization is demonstrable evidence of educational deprivation (citing Murrell v. School Dist. No. 1, Denver, Colo. , 186 F.3d 1238, 1248-49 (10th Cir. 1999) ) ). Further, "severe" physical injuries that require hospitalization necessarily result in a student's exclusion from continued participation in an ongoing school operation. Id. For instance, Doe's rape injuries prevented access to OHS "resources and opportunities" in an objective, physical way. Id. Due to his hospitalization, he was unable to participate in the remainder of the holiday basketball tournament-or participate in basketball in any capacity for some time afterward, for that matter. It is beyond reasonable dispute that Doe's rape was a but-for cause of this deprivation. His attackers, therefore, empirically deprived him of the full benefit of extracurricular educational opportunities. As such, it can be concluded as a matter of law that Doe's rape was "severe" and "objectively offensive" harassment that deprived him of "institutional resources and opportunities" at OHS and "undermine[d] and detract[ed] from [his] educational experience." Davis , 526 U.S. at 651, 119 S.Ct. 1661 ; see also Vance v. Spencer Cty. Pub. Sch. Dist. , 231 F.3d 253, 259 (6th Cir. 2000) (holding in some instances a single incident of harassment "can satisfy a [Title IX claim"); Soper , 195 F.3d at 855 (holding rape "obviously qualified as severe, pervasive, and objectively offensive sexual harassment that could deprive [a student] of access to the educational opportunities provided by [a] school.").

Unlike Doe, Roe was never hospitalized as a result of his sexual assault. Similar to Doe, however, Roe transferred to another school following the Gatlinburg incident. [Doc. 185-6 at 11]. After his assault, Roe tried to attend OHS for a short time, and he even continued to compete on the school's varsity basketball team until the season was canceled as a result of the Gatlinburg incident. However, during this time the friends of Roe's attackers harassed Roe at school by "calling [him] names," telling him his sexual assault "wasn't that big of a deal," and at times threatening him. [Doc. 178-1 at 206]. Roe claimed this harassment made it difficult for him to continue attending OHS, so he decided to transfer to another school. [Id. ]. Roe's harassment by his attacker's friends was a form of secondary harassment that is hardly unique to this case. For example, in Doe v. East Haven Bd. of Educ. , a fourteen-year-old female student was allegedly raped, outside of school operations, by two male classmates. 200 F. App'x 46, 48 (2d Cir. 2006). After the allegations became public and the plaintiff returned to school, she was harassed for weeks by "other, primarily female, students," which included "verbal abuse" such as being called: " '[a] slut, a liar, a bitch, [and] a whore.' " Id. Further, she would often "see her rapists at school." Id. Because of the name calling and the presence of her rapists, the plaintiff would skip classes and otherwise spend time at school in a private, secluded room, which the school had provided her. Id. The Second Circuit found based on those facts "a reasonable fact-finder could conclude that [the plaintiff] was subjected to a disparately hostile educational environment that deprived her of educational benefits and opportunities." Id. (emphasis added). The Court finds the East Haven court's analysis persuasive here. Based on these facts, a reasonable fact finder could conclude Roe's post-assault harassment was: causally related to his sexual assault, deprived him of educational opportunities and resources at OHS, and caused him to transfer to another school. As such, the Department's Motion for Summary Judgment [Doc. 177] on this issue is DENIED . Further, because genuine issues of material fact surround Roe's alleged deprivation, the Court finds the Plaintiffs' Motion for Partial Summary Judgment [Doc. 178] on this issue should also be DENIED .

2. Actual Knowledge

To prove a claim under Davis , a plaintiff must establish the defendant school system had actual knowledge of the plaintiff's sexual harassment. This actual knowledge requirement is an essential element of a Davis claim. With Davis , it was not the Supreme Court's intent to broadly construe Title IX to hold schools vicariously liable for their students' actions, or create a federal educational negligence claim by making schools liable when it failed to act to prevent student harassment it "should have known " about. Davis , 526 U.S. at 642, 119 S.Ct. 1661 (emphasis in original); Winzer v. Sch. Dist. for City of Pontiac , 105 F. App'x 679, 682 (6th Cir. 2004) (holding the Sixth Circuit has declined to adopt a "constructive-knowledge standard" under Title IX). Rather, liability under Davis derives from a school's own conduct, particularly a decision to not act in fulfilling Title IX duties to prevent severe forms of student-on-student sexual harassment, and that duty is triggered upon actual notice of such harassment. Id.

Applying the actual notice standard under Davis is ultimately a matter of who knew what and when. This presents even further questions, however. Starting with the who, obviously school systems are not natural persons capable of personal knowledge. As such, if a school district can be said to have "actual knowledge" of harassment, it follows that it is imputed from one of its agent's knowledge. But what sort of agent is capable of imputing notice to the Department in this context? Is the knowledge of a school administrator required? Or is a teacher's knowledge sufficient? Is the knowledge of a non-teaching staff member, such as a nurse, janitor, or cafeteria worker enough? The dissenters in Davis criticized the Court for not addressing this question. Id. ("The majority's ... [actual knowledge] standard begs the question: known to whom?" (Kennedy, J., dissenting) ).

For reasons that will be discussed infra , the Court finds the knowledge of Coach Montgomery is essential to the viability of Doe and Roe's claims. At a minimum, a person capable of imputing knowledge to a school system-what the Gebser court referred to as an "appropriate person," 524 U.S. at 290, 118 S.Ct. 1989 -must have been entrusted with the school's "disciplinary authority" over students. See Davis , 526 U.S. at 647, 119 S.Ct. 1661. The crux of the actual knowledge element in this case, then, depends on whether Coach Montgomery was an "appropriate person." In Gebser suits, which involve Title IX claims for teacher-on-student sexual harassment, an "appropriate person" capable of imputing knowledge is defined as "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures." 524 U.S. at 290, 118 S.Ct. 1989. It appears the same reasoning applies in a Davis case. See Tumminello , 678 F. App'x at 286 (applying Gebser 's appropriate person standard in a Davis case); but see Stiles , 819 F.3d at 848 ("Actual knowledge requires only that a single school administrator with authority to take corrective action had actual knowledge of the sexual harassment." (emphasis added) (citing Gebser ) ). Extending Gebser 's rule here, a school agent with the authority to discipline students and prevent and correct known harassment is an "appropriate person" whose knowledge can be imputed to the Department. However, some courts do not agree with that straightforward rationale. For example, the Eleventh Circuit has added an additional condition to this test and held that an "appropriate person" must also be one that is "high enough up the chain-of-command that his acts constitute an official decision by the school district itself not to remedy the misconduct." Floyd v. Waiters , 171 F.3d 1264, 1264 (11th Cir. 1999) (involving Gebser claim). When applying that test in the Davis context, the Eleventh Circuit has found a teacher's aide is not an appropriate person capable of imputing knowledge to a school. Hill v. Cundiff , 797 F.3d 948, 971 (11th Cir. 2015). As to "whether notice to a teacher constitutes actual knowledge on part of a school board," the Eleventh Circuit has found it to be an "open question." Hawkins v. Sarasota Cty. Sch. Bd. , 322 F.3d 1279, 1286 (11th Cir. 2003). By contrast, the OCR has applied a more liberal standard, and has held an appropriate person includes not only school agents with the authority to discipline students but also any employee that "has the duty to report" harassment to an "appropriate school official." Request for Comment, 65 Fed. Reg. 66092-01, 66102 (Nov. 2, 2000). As examples, the OCR listed "campus security, bus driver ... or staff in the office of student affairs." Id.

Here, Coach Montgomery was not only the basketball team's head coach, he was also a teacher at OHS. [Doc. 185-11 at 10]. However, even then, his role on the school trip went beyond his regular duties. The Department, acting outside of its regular scope, committed itself to the supervision of students on a multiple day trip, including an over two-and-a-half hour journey and overnight stays. In this undertaking to see to the welfare of the players on a days-long trip, the Department vested the responsibility chiefly in one man, Montgomery, although Assistant Coach Williams helped him supervise the team. [Doc. 185 at 5]. There Montgomery was not simply acting as an educator or basketball coach, but as a caretaker and guardian entrusted with the players' well-being, including providing meals, shelter, transportation, and even washing their clothes [see Doc. 185 at 7]. Far from school campus and outside of normal school operating hours, Montgomery was not merely a cog in a larger educational bureaucracy, expected to push harassment problems up the chain of command. Instead, the Department had at least implicitly commissioned him with its full authority to take appropriate disciplinary actions during the trip. Further, in Gatlinburg, he had near autocratic power to dictate the conduct in the cabin, including, for instance, the ability to assign where players slept and what time they went to bed. While acting in this role, Montgomery unquestionably had the authority to address, correct, and prevent student-on-student sexual harassment. As such, the Court finds Montgomery was an "appropriate person" while in his capacity as a supervisor and his knowledge can be imputed to the Department.

Because Montgomery was an "appropriate person" under the facts, it must next be determined what he knew prior to Doe and Roe's sexual attacks, and whether it constitutes actual knowledge. "It is difficult to define what kind of notice is sufficient"

under Title IX. Gustine , 678 F.Supp.2d at 1029 (quoting Tesoriero v. Syosset Cent. Sch. Dist. , 382 F.Supp.2d 387, 397 (E.D.N.Y. 2005) ). Plaintiffs point to two sources of information that should have provided Montgomery with actual notice of "severe, pervasive, and objectively unreasonable" sexual harassment occurring on the basketball team. [Doc. 192 at 6]. First, Plaintiffs claim Montgomery knew of the freshman rackings (the generalized, presumably non-sexual hazing that occurred prior to the Gatlinburg trip), and that the knowledge provided him actual notice of the later severe sexual harassment. [Id. ]. Secondly, Plaintiffs point to Doe and Roe's attackers' disciplinary history and claim it sufficiently provided actual notice of their propensity to engage in sexual harassment. [Id. ]. The Court finds neither argument is persuasive. Each will be discussed in turn.

Plaintiffs present multiple examples of Montgomery's knowledge of the rackings, all of which were conclusions reached in an independent report commissioned by the school. [Docs. 183 at 9, 185 at 4, & 192 at 8 (citing the independent report) ]. First, Montgomery's office was adjacent to the boys' locker room, where the rackings often occurred. Plaintiffs claim "it [is] 'unlikely that he would not hear the players banging around' " next door. [Doc. 185 at 4 (quoting the independent report) ]. Two months prior to the Gatlinburg incidents, a player's mother complained that her son had been hazed. [Id. at 2]. Further, Montgomery encountered physical evidence of roughhousing, such as a broken television that Plaintiffs allege was collateral damage in a racking skirmish. [Id. at 4]. It is also asserted that Montgomery, on several occasions, walked into the locker room to find the players inside with the lights turned off (supposedly the lights were off in relation to freshman beatings), and Montgomery would often say "stop the horseplay" and turn on the lights. [Id. at 4-5]. Finally, Plaintiffs proffer the basketball players discussed the rackings in front of Montgomery, and he would occasionally punish upperclassmen for known hazing. [Id. ]. For example, he made one player run "suicides," supposedly as punishment for participating in rackings. [Id. ]. It is not apparent how this scatter shot of speculative and seemingly unrelated evidence amounts to an "inevitabl[e] ... conclusion" that Montgomery had pre-assault, actual knowledge of "severe" sexual harassment. [Doc. 183 at 9]. But even if he were aware, Plaintiffs face another obstacle.

The crux of Plaintiffs' argument depends on whether lesser forms of non-sexual hazing can provide notice for serious forms of sexual harassment. To support the proposition, Plaintiffs point to Mathis v. Wayne Cty. Bd. of Educ. , 782 F.Supp.2d 542 (M.D. Tenn. 2011). [Doc. 192 at 7]. The Mathis case, discussed supra , involved an attack similar to this case in which players on an eighth grade boys' basketball team held down a teammate and anally penetrated him with a magic marker. Mathis , 782 F.Supp.2d at 546. On the issue of actual knowledge prior to the marker incident, Judge Trauger held an "institution" can be held "liable" when it "possessed enough knowledge of the harassment that it reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiff's legal claim is based." Id. at 550 (emphasis added) (quoting Staehling v. Metro. Gov't of Nashville and Davidson Cty. , No. 3:07-0797, 2008 WL 4279839, at *10 (M.D. Tenn. Sept. 12, 2008) ). The prior "kind of harassment" the court was referring to was a separate sexual assault nearly identical to the marker incident underlying that case, with a major difference being the instrumentality of penetration in the first assault was a pencil rather than a marker. Id. There was evidence the coach had been aware of the pencil incident prior to the marker incident. Id. When determining whether the knowledge of the pencil incident, combined with another event sexual in nature and other "horseplay," was sufficient to trigger duties under Title IX, the Mathis court held a reasonable jury could conclude the coach had "enough" knowledge to spur him into action to prevent further sexual harassment. Id. at 551. Relying on this case, Plaintiffs claim Montgomery's alleged knowledge of the rackings supports a legal conclusion that the Department had actual knowledge of sexual harassment on the varsity boys basketball program prior to Doe and Roe's assaults. [Doc. 192 at 6-8]. However, this assertion is wrong for two reasons. First, there is no evidence from which a reasonable jury must conclude Montgomery was fully aware of the rackings or their alleged severity. And secondly, even if he were aware, knowledge of the non-sexual hazing does not constitute actual knowledge of the "kind of harassment" underlying this case: the sexual assaults.

Prior to their sexual attacks, Students A, B, and C had past disciplinary problems, which Plaintiffs claim put the Department on notice of their potential for sexual harassment. Under Davis , actual knowledge can be derived from a harasser's past harassment. These past acts may provide a school notice if the conduct demonstrates a pattern of and propensity for sexual harassment, even if prior harassing was not directed toward the plaintiff specifically. See Gustine , 678 F.Supp.2d at 1030 (collecting cases); see also Delgado v. Stegall , 367 F.3d 668, 672 (7th Cir. 2004) ("[I]n Davis the Court required knowledge only of 'acts of sexual harassment ' by the [harasser]" (emphasis added) ); Lopez v. Metro. Gov't , 646 F.Supp.2d 891, 916 (M.D. Tenn. 2009) (collecting cases) (" '[T]he Davis court did not limit Title IX liability to a federal education funding recipient's knowledge of, and deliberate indifference to, the alleged harassment of a particular individual , but instead contemplated that Title IX claims could be based on the recipient's knowledge of, and deliberate indifference to, a particular harasser's conduct in general.' " (quoting J.K. v. Arizona Bd. of Regents , No. CV06-916-PHX-MHM, 2008 WL 4446712, at *14 (D. Ariz. 2008) ). Plaintiffs point to a whole host of student behavior it claims put the Department on notice for the potential of sexual harassment at OHS. For instance, Plaintiffs broadly focus on school wide, generalized bullying that often occurred at OHS, what they claim was a "bullying epidemic." [Doc. 179 at 7]. However, knowledge of general bullying among various students-which has likely occurred to some degree in every school since there were schools-falls far short of providing actual notice of on-going student-on-student sexual harassment or its potential. Outside of generalized bullying, Plaintiffs do point to a few prior acts specific to Doe and Roe's attackers. For example, it is asserted Student A had previously been disciplined for bullying and "rough housing." [Doc. 185 at 6]. Likewise, Student B "had been officially reprimanded for engaging in sexually inappropriate behavior, 'horseplay,' and misconduct that warranted suspending him for three OHS basketball games." [Id. ] And Student C "was formally disciplined by the school system for fighting