“Not the Proper Stuff of a Federal Harassment Claim”: The Fifth Circuit Re-draws the Severity Line for Student-on-Student Title IX Claims in M.K. v. Pearl River County School District

1. Introduction

This Fifth Circuit decision addresses the perennial question of how bad student misconduct must be before a federal court will allow a damages claim to proceed under Title IX of the Education Amendments of 1972. After a sixth-grade student—M.K.—endured weeks of name-calling that included being labelled “gay,” and after he himself exposed his genitals to a peer in a restroom, the school district suspended him and required attendance at an alternative school. M.K. and his father sued, alleging that the district was deliberately indifferent to sex-based harassment. The district court granted summary judgment for the defendants. On appeal, the Fifth Circuit affirmed, holding that—even assuming harassment based on perceived sexual orientation is actionable—the conduct here was not “so severe, pervasive, and objectively offensive” as Davis v. Monroe County Board of Education demands.

Crucially, the panel declined to decide whether harassment motivated by actual or perceived sexual orientation is covered by Title IX, leaving that hotly debated issue unresolved within the Circuit. Instead, it sharpened the severity requirement, signalling that ordinary schoolyard taunts—even those that reference sexual orientation—will rarely, if ever, suffice.

2. Summary of the Judgment

• Court & Panel: United States Court of Appeals for the Fifth Circuit (Jolly, Graves, Wilson, JJ.) – Per Curiam opinion (filed July 18, 2025).
• Disposition: District court’s grant of summary judgment in favour of the Pearl River County School District affirmed.
• Holding: The alleged name-calling and isolated physical incident were not sufficiently “severe, pervasive, and objectively offensive” to satisfy the third and fourth elements of a Davis Title IX deliberate-indifference claim. Therefore the court did not reach whether the conduct was “on the basis of sex” (specifically, perceived sexual orientation) or whether the district acted with deliberate indifference.
• Key Practical Result: The Fifth Circuit reinforced a high bar for severity at the summary-judgment stage, emphasising that routine teasing—even when hurtful—falls outside federal anti-discrimination liability.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

1. Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) – Foundational test for school liability for peer harassment. The Fifth Circuit leaned heavily on Davis’s admonition that ordinary child “insults, banter, teasing, shoving, [and] pushing” are insufficient. The panel quotes Davis’s warning against “more sweeping liability than Title IX requires.”
2. Sanches v. Carrollton-Farmers Branch ISD, 647 F.3d 156 (5th Cir. 2011) – The Circuit’s seminal post-Davis case. Sanches affirmed summary judgment where a cheerleader faced name-calling and pranks. The present panel calls Sanches its guidepost and repeats its phrase that such conduct is “not the proper stuff of a federal harassment claim.”
3. I.F. v. Lewisville ISD, 915 F.3d 360 (5th Cir. 2019) – Recognised actionable harassment when a rape victim experienced relentless in-person and online abuse. The panel distinguishes M.K.’s facts from the “vulgar and vicious” harassment in I.F.
4. Roe v. Cypress-Fairbanks ISD, 53 F.4th 334 (5th Cir. 2022) – Allowed a claim stemming from threats and severe online harassment tied to rape allegations. The court uses Roe to show what does meet the severity threshold.
5. Second Circuit unpublished decision in Doe v. East Haven Bd. of Educ., 200 F. App’x 46 (2d Cir. 2006) – Referenced in Sanches; involved daily taunts of a rape survivor. Again cited to contrast with the milder facts here.

3.2 Court’s Legal Reasoning

The panel applied the five-part Davis/Sanches framework, but it confined its analysis to the severity element:

• Actual knowledge & control of harassers – The court assumed these could be satisfied for argument’s sake.
• Based on sex – Whether Title IX protects against harassment for perceived sexual orientation was—deliberately—left unanswered.
• Severity, pervasiveness, objectiveness – The decisive issue.
  • Conduct lasted ~6 weeks at start of sixth grade.
  • No problems in two classes; in another, teacher separated students; reports to band director only once or twice.
  • One physical shove; no serious injury.
  • Calling someone “gay” or “dog-water,” without more, equated to ordinary teasing.
  The panel stressed Davis’s instruction that courts must recognise the child-specific environment where immature behaviour is common.
• Deliberate indifference – Not reached; noted as an “extremely high standard.”

3.3 Potential Impact of the Decision

1. Severity Threshold Clarified – Plaintiffs in the Fifth Circuit must now show harassment closer in magnitude to I.F. or Roe—often involving actual or threatened violence, sexual assault, or obsessive online campaigns—to survive summary judgment.
2. Sexual-Orientation Question Left Open – By passing on this question, the court invites future litigants to marshal stronger factual records to test whether Bostock-style reasoning extends to Title IX in this Circuit.
3. School District Policies – Districts may feel emboldened that ordinary bullying episodes, when promptly addressed, will not result in Title IX liability. However, they must still monitor situations that could escalate into Davis-level severity.
4. Strategic Litigation Considerations – Plaintiffs’ attorneys will likely plead additional facts—severe cyber-harassment, repeated physical threats, suicidal ideation—to meet Davis’s rigorous standard.
5. Administrative Guidance vs. Judicial Standard – The decision underscores the tension between expansive Department of Education guidance on bullying/harassment and the narrower judicial remedy under Title IX.

4. Complex Concepts Simplified

• Title IX – A federal statute prohibiting sex discrimination in schools receiving federal funds. It is enforced administratively (loss of funds) and by private damages suits.
• Student-on-Student (Peer) Harassment – Unlike employee harassment, the school can be liable only if it is deliberately indifferent after gaining actual knowledge, and only if the conduct is severe, pervasive, and objectively offensive.
• Deliberate Indifference – A very high bar: the school’s response must be “clearly unreasonable in light of the known circumstances.” Simply being unsuccessful is not enough.
• Severe, Pervasive, Objectively Offensive – All three adjectives must be satisfied:
  • Severe – More than hurt feelings; often involves threats, violence, or sexual assault.
  • Pervasive – Occurs frequently over time or in multiple settings.
  • Objectively Offensive – A reasonable person would find the environment hostile, not just the particular student.
• Summary Judgment – A procedural device where the court decides a case without trial because no material fact is in genuine dispute and one side is entitled to win as a matter of law (Fed. R. Civ. P. 56).

5. Conclusion

M.K. v. Pearl River County School District reinforces that Title IX is not a general anti-bullying statute. The Fifth Circuit, faithful to Davis and its own precedent, requires truly egregious conduct before exposing school districts to damages. Name-calling, even with a sexual orientation slur, and isolated shoves will not meet that bar. By side-stepping the substantive coverage of sexual-orientation-based harassment, the court preserves doctrinal suspense for future panels. For now, the message is clear: plaintiffs must allege harassment that is both extreme in intensity and broad in scope, coupled with a school response that is plainly unreasonable, before federal courts will convert childhood cruelty into actionable sex discrimination.