Harden v. Rosie

CONCURRING OPINION BY

Judge BROBSON.

Upon review of the record in this matter, I am compelled to agree with the majority that the School District was entitled to a judgment in its favor notwithstanding the jury verdict, or JNOV. Although I believe the issue of whether the School District had sufficient notice to trigger Title IX liability is a close question, there is no record evidence upon which a jury could conclude that the School District acted with deliberate indifference in the face of the incidents involving Donald James Rosie (Rosie) and students outlined by the majority in its opinion. Perhaps the responses to each of those incidents, separately and collectively, fell short of what, in hindsight, would have been more appropriate or even would have prevented Rosie from later harming Rebecca Harden (Harden). But under prevailing law, like the majority, I cannot conclude that there is evidence in the record of deliberate indifference, such that Harden can prevail on her Title IX claim.

Rosie and those like him have taken so much more from us than can be compensated by jury verdicts. The days of allowing our children to roam their neighborhoods, to walk to school, or to play on a playground are gone, replaced with concern that a stranger’s single kind word to a child may be the opening salvo to a heinous act. “Grooming” is a word that we no longer think of as involving personal hygiene. Although we are all importantly *965more aware than we used to be of the dangers that our children, our most precious assets, face, we and they are also less innocent as a result and, sadly, less free.

Judge LEADBETTER joins in this concurring opinion.