Rost Ex Rel. K.C. v. Steamboat Springs RE-2 School District

*1117PAUL KELLY, JR., Circuit Judge.

Plaintiff-Appellant Kristine Rost, as next friend of her minor daughter, K.C., appeals the district court’s grant of summary judgment in favor of Defendant-Ap-pellee Steamboat Springs School District RE-2 (“school district” or “district”) on her claims under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, and 42 U.S.C. § 1983 for allegedly violating KC.’s rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background,

K.C. was enrolled in Steamboat Springs Middle School as a seventh-grader in August 2000. She received special education and related services pursuant to the Individuals with Disabilities Education Act, due to an early-childhood brain injury.

Beginning in seventh grade and continuing to eighth grade, K.C. was coerced into performing various sexual acts with a number of boys including Steven Thomas, Nick Mangione, Alex Church, and Thomas Barnes (“the boys”) who were all named as individual defendants in the complaint. The boys persistently and continuously pestered her for oral sex, calling her “retard” and stupid, threatened to spread rumors to her peers that she frequently engaged in sexual conduct with others, and threatened to distribute naked photographs of her. A police report indicates that the incidents occurred in a variety of private locations and social settings, and a few of the incidents appeared to be “consensual.”

Ms. Rost did not know of the sexual harassment until K.C. told school officials on January 16, 2003. However, Ms. Rost urged school officials to talk to K.C. during the spring and fall of 2002 because she suspected that something was wrong with K.C. In the spring of 2002, Ms. Rost first became concerned about K.C. because K.C. did not want to attend school anymore. Her mother repeatedly pleaded with school counselor Margie Briggs-Cas-son to find out what was bothering K.C. She also spoke with Tim Bishop, principal of the middle school, regarding her concerns about K.C. and what she perceived as Ms. Briggs-Cassoris lack of responsiveness. She also told Principal Bishop that the boys had tried to break into her home looking for pain medication. At some point, Ms. Briggs-Casson spoke with K.C., and K.C. told her about the harassment saying that “these boys were bothering me,” but at that time, K.C. did not know to use the word assault and did not describe the incidents in more specific terms.

In the fall of 2002, K.C. began her freshman year at the Steamboat Springs High School and the harassment continued. Ms. Rost told David Schmidt, principal of the high school, that K.C. said the boys were bothering her and calling her retarded, she hated school and was afraid to go to school, she was afraid to go to a math class in which Steven Thomas was enrolled, and having an aide with her in class caused the boys to tease her. After a series of meetings, Ms. Rost and Principal Schmidt determined that the aide would sit in the back of the math class instead of beside K.C. Neither Ms. Rost nor school officials knew at that time of any sexual harassment of K.C.

On January 16, 2003, K.C. disclosed to Ann Boler, a counselor at the high school, that Steven Thomas was repeatedly calling her to ask for oral sex. She also disclosed that Steven Thomas and Nick Mangione previously coerced her into sexual conduct by threatening to show others naked pictures of her and spread rumors about her. Ms. Boler could not locate the principal or *1118vice-principal, so she immediately contacted Officer Jason Patrick, the school resource officer. Officer Patrick questioned K.C. in Ms. Boler’s office for approximately one to two hours. Ms. Boler later informed Principal Schmidt, and together with Officer Patrick, then informed Ms. Rost of K.C.’s disclosures.

Principal Schmidt decided that because none of the incidents occurred on school grounds and the incidents occurred before any of the students were enrolled in high school, Officer Patrick would investigate the sexual assaults. As a result, Principal Schmidt and the school district did not otherwise investigate the assaults. However, Principal Schmidt did maintain daily contact with Officer Patrick regarding the investigation, and the district assisted him in arranging interviews with the students during the investigation.

The investigation was hampered by Ms. Rost’s refusal to communicate (or allow K.C. to communicate) further with the school or law enforcement regarding the incident on the advice of counsel. Based on Officer Patrick’s report, the district attorney declined to prosecute the case on the rationale that it would be difficult to prove that the activity was not consensual and the trial would expose K.C. to tremendous trauma.

A couple weeks after reporting the abuse to Ms. Boler, K.C. suffered an acute psychotic episode that required hospitalization. Following KC.’s discharge from the hospital in February 2003, Ms. Rost met with school officials to discuss educational alternatives for K.C. Ms. Rost accepted an offer for a private tutor but declined any option that required K.C. to return to the high school. The following year, as part of a mediation between Ms. Rost and the district regarding educational alternatives for K.C., an independent educational evaluation was conducted which suggested that K.C. attend a different school from Steamboat Springs High School. In the summer of 2004, K.C. suffered two additional acute psychotic episodes, probably as a result of the assaults; one in Chicago during a visit to her sister, and another in Steamboat Springs just before moving to Carbondale, Illinois.

Ms. Rost, as K.C.’s next friend, filed suit against the school district alleging violations under Title IX and under 42 U.S.C. § 1983 for violations of the Due Process and Equal Protection clauses of the Fourteenth Amendment that the district has a custom of acquiescing to student-on-student sexual harassment and created a dangerous educational environment. Ms. Rost also sued the four boys alleging various state law tort claims. The district court granted summary judgment for the district on the federal claims, and dismissed the pendent state law claims without prejudice.

On appeal, Ms. Rost argues that the district court improperly granted summary judgment on whether the school district had actual knowledge of the sexual harassment and was deliberately indifferent to reports of sexual harassment. She maintains that material issues of fact exist regarding whether the district had an established policy or custom of acquiescing to student-on-student sexual harassment, thereby exposing it to liability under the Fourteenth Amendment, and that the district created a dangerous educational environment for K.C. in violation of 42 U.S.C. § 1983.

Discussion

We review a district court’s grant of summary judgment de novo, applying the same standards as the district court. Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1112-13 (10th Cir.2007). Summary judgment is appropriate only “if the plead*1119ings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We view the facts in the light most favorable to the nonmoving party. Scott v. Harris, — U.S. -, 127 S.Ct. 1769, 1774, 167 L.Ed.2d 686 (2007).

I. Title IX claim

Ms. Rost alleges that a genuine issue of fact remains regarding Title IX liability for student-on-student sexual harassment endured by K.C. because the district had actual knowledge of the sexual harassment and was deliberately indifferent to those reports. The district argues that there is no evidence that the district had actual knowledge of the sexual harassment before January 16, 2003. And once the district received the notice, it thoroughly investigated the allegations and worked with Ms. Rost to provide K.C. educational alternatives.

Title IX provides, that “[n]o person ... 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). 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).

A. Actual knowledge

We recognize that district 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. See Escue v. N. Okla. College, 450 F.3d 1146, 1153 (10th Cir.2006). In Escue, we found that the plaintiff had not met the more permissive standard (notice of prior complaints) and did not resolve the issue. See id. We need not resolve this issue in this case because Ms. Rost only argues that, under her Title IX claim, the district had actual notice of the specific harassment of K.C.

Ms. Rost claims that the district received actual notice of the sexual harassment of K.C. on two separate occasions— in the spring of 2002 and in the fall of 2002. The district court held that K.C.’s complaints that boys were “bothering her” as relayed to the district were insufficient to constitute actual notice of sexual harassment, and that, in the absence of anyone knowing that the sexual harassment was occurring, a negligent failure to investigate Ms. Rost’s generalized complaints did not result in Title IX liability. We agree.

K.C. testified in a deposition that she told Margie Briggs-Casson in the spring of 2002 about the assaults, but at that time, she did not know to use the word assault. When asked what she told Ms. Briggs-Casson, K.C. stated, “That these boys were bothering me and no one understood me in town.” K.C.’s statement that the boys were bothering her was insufficient to give the district notice that she was being sexually harassed. Although Ms. Rost suggests that the district court miseharacterized the deposition testimony and failed to consider ambiguities in the light most favorable to her, Aplt. Br. at 15, *1120Aplt. Reply Br. at 1-3, no fair reading of the deposition testimony would establish that the school district had actual notice of the harassment based on K.C.’s generalized complaints.

Ms. Rost testified that she repeatedly pleaded with the counselor, Ms. Briggs-Casson, to find out what was bothering K.C. All Ms. Rost knew was that K.C. hated school and did not want to attend anymore, but K.C. would not tell her why. Ms. Rost also spoke with Principal Bishop regarding her concerns for K.C. and regarding Ms. Briggs-Casson’s lack of responsiveness. However, Ms. Rost was unable to provide the school officials with any specifics because she did not know why K.C. was withdrawing as K.C. refused to speak to her mother about the harassment. Ms. Rost’s concern for K.C. and complaints about Ms. Briggs-Casson did not give the district actual notice of the sexual harassment.

Ms. Rost also points to Mr. Reynolds’ testimony as evidence that K.C. told Ms. Briggs-Casson that the boys were sexually harassing her. Mr. Reynolds was K.C.’s therapist during the spring of 2004, and he testified in a deposition that K.C. told him that she told Ms. Briggs-Casson “about the coerced sexual activity with the boys.” Mr. Reynolds “questioned that somewhat” because had that disclosure occurred “it would be beyond [his] comprehension” that Ms. Briggs-Casson would not have reported it to law enforcement or social services. Mr. Reynolds fully admitted that he “wasn’t privy to the conversation” between K.C. and Ms. Briggs-Casson, that he “didn’t know any of the details,” and “never discussed it with [Ms. Briggs-Casson].” We need not resolve the difficult question of whether this oblique testimony is admissible under a hearsay exception. Mr. Reynolds’ testimony does not create a genuine issue of material fact because K.C. testified as to what she told Ms. Briggs-Casson. Her deposition testimony clarifies that she told Ms. Briggs-Casson about the sexual harassment using the words “these boys were bothering me” without further elaboration. Mr. Reynolds’ testimony adds nothing because it simply does not address the manner in which KC. conveyed her predicament to Ms. Briggs-Casson. Although Ms. Rost suggests that we read more into the testimony of K.C. and Mr. Reynolds, we may not disregard the plain tenor of what K.C. said when directly asked about this issue. Thus, while it is tragic that K.C. did not clearly communicate that she was being sexually harassed in the spring of 2002, K.C.’s statement to Ms. Briggs-Casson that “these boys [are] bothering me” was insufficient to give actual notice of the sexual harassment.

The second time frame in which Ms. Rost alleges the district received actual knowledge of the sexual harassment was in the fall of 2002. Ms. Rost points to her testimony that she met with Principal Schmidt early in the fall of 2002 and expressed these concerns: K.C. was afraid to attend her math class; K.C. did not want an aide in the math class anymore; and K.C. said that the boys were bothering her. Ms. Rost was unable to communicate more specifically to Principal Schmidt K.C.’s concerns because she had no additional information from K.C. As a result of these meetings, Ms. Rost and school officials decided to have the aide sit in the back of the class. Neither the school district nor Ms. Rost knew at that time that K.C. was being sexually harassed. As a result, the district did not receive actual notice of any sexual harassment during those meetings in the fall of 2002.

B. Deliberate indifference

It is undisputed that K.C. disclosed the sexual harassment to Ms. Boler on *1121January 16, 2003, and that this disclosure gave the district actual notice of the harassment. The next question we must answer is whether the school district was “deliberately indifferent to acts of harassment of which it ha[d] actual knowledge.” Murrell, 186 F.3d at 1246; Davis, 526 U.S. at 644-45, 119 S.Ct. 1661. We need not respond to Ms. Rost’s argument that the district was deliberately indifferent in its response to the harassment prior to KC.’s January 2003 disclosure as we have concluded that the district had no knowledge of the harassment until January 2003. Ms. Rost also argues that the district’s response to the notice of the harassment in January 2003 was clearly unreasonable because the district failed to investigate the allegations, interview the alleged perpetrators and the victim, and appropriately discipline the boys involved. She contends that this deliberate indifference deprived her of an equal educational opportunity after January 2003, as her medical providers advised her not to return to Steamboat Springs High School. Aplt. Reply Br. at 14. Ms. Rost’s arguments are without merit.

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.” Davis, 526 U.S. at 648, 119 S.Ct. 1661. Here, once K.C. disclosed the sexual harassment to Ms. Boler, Ms. Boler immediately contacted Officer Patrick, the school resource officer, who questioned K.C. about the harassment. Principal Schmidt determined that because he believed none of the incidents occurred on school grounds and the incidents occurred before any of the students were enrolled at the high school, Officer Patrick should investigate the sexual assaults. Officer Patrick continually interacted with the school to arrange for the interviews of the students. Principal Schmidt had approximately fifty conversations with Officer Patrick regarding the investigation and received a copy of Officer Patrick’s report. Though Officer Patrick testified that he might have been initially vague with the school district and not kept it totally involved because he viewed his investigation as separate, he also testified to his interaction with the district. We do not think that the district can be faulted for letting Officer Patrick take the lead in this very serious situation. Officer Patrick and the school reasonably believed that the harassment occurred away from school, and criminal charges were a possibility. The district’s response was not clearly unreasonable as school officials immediately contacted law enforcement officials, cooperated fully in the investigation, and kept informed of the investigation. The district reasonably could believe it did not have responsibility or control over the incidents, and merely because the principal thought that the school could discipline students for conduct occurring outside the school grounds says nothing about whether it was appropriate given what occurred here. See Davis, 526 U.S. at 645, 119 S.Ct. 1661 (noting harassment creating liability under Title IX “must occur ‘under’ ‘the operations of a funding recipient, ... [meaning that] the harassment must take place in a context subject to the school district’s control”) (quoting 20 U.S.C. § 1681(a); § 1687).1 This is not a situation where a *1122school district learned of a problem and did nothing. See Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253, 262 (6th Cir.2000) (school district only spoke to the supposed perpetrators after a female student was intentionally and repeatedly sexually harassed); Murrell, 186 F.3d at 1243-44 (teachers did not inform the plaintiffs parent of sexual assaults on plaintiff at school and did not inform law enforcement, investigate, or discipline the offending student). Rather, given a complicated situation involving the rights of many parties including the alleged perpetrators, the school district deferred to law enforcement.

We agree with the concurring and dissenting opinion that school districts should not solely rely on a prosecutor’s discretion not to prosecute a sexual harassment case when responding to claims of sexual harassment. However, here the district relied on more, namely, that there were problems of proof in determining which conduct was not consensual and the fact that the police report described other admittedly consensual conduct. Such reliance was not clearly unreasonable. Of course the district would not need to prove malfeasance beyond a reasonable doubt, but a school district would not be deliberately indifferent making a judgment that it would be daunting to sort out the wrongdoing on such conflicting facts, especially when the victim is unwilling to provide clarifying details to school officials.

Ms. Rost argues that the district violated its sexual harassment policy by not interviewing the boys involved. The policy does state that an administrator should interview the alleged offender and victim te determine whether harassment occurred; then if harassment did occur, the administrator will determine the appropriate discipline, including reporting the incident to law enforcement. Here, the district presumed that harassment occurred based on K.C.’s report and immediately contacted law enforcement. Perhaps the district should have independently interviewed the boys involved instead of relying on Officer Patrick’s investigation and periodic reports, but such an allegation would sound in negligence, not deliberate indifference. See Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 174 (1st Cir.2007) (noting “[i]n hindsight, there may be other and better avenues that the [district] could have explored ... [b]ut Title IX does not require ... flawless investigations [or] perfect solutions”); see also Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (noting “[a] showing of simple or even heightened negligence will not suffice” under the deliberate indifference standard).

Regarding the failure to interview K.C., both the district and Officer Patrick were unable to further interview K.C. regarding the harassment because Ms. Rost was advised by counsel to not allow anyone, neither the police department nor the school, to talk to K.C. about the harassment and assaults even when Officer Patrick explained that criminal charges were unlikely if he could not further interview K.C. Since Ms. Rost prevented any additional interviews, she cannot now claim that the district’s failure to further interview K.C. constitutes deliberate indifference.

*1123Finally, it was not clearly unreasonable that the district did not discipline the boys involved. Ms. Rost seems to argue that the district should have expelled the four boys so that K.C. could return to school. However, the Supreme Court has noted that schools need not expel every student accused of sexual harassment to protect themselves from liability, and “victims of peer harassment [do not] have a Title IX right to make particular remedial demands.” Davis, 526 U.S. at 648, 119 S.Ct. 1661. The standard is not that schools must “remedy” peer harassment, but that they “must merely respond to known peer harassment in a manner that is not clearly unreasonable.” Id. at 648-49, 119 S.Ct. 1661.

Many factors in the record counseled caution in determining whether discipline was appropriate in this case, and the district’s judgment call not to pursue discipline was not clearly unreasonable and deliberately indifferent. Principal Schmidt determined that discipline was not appropriate in this case since most of the incidents did not occur on school grounds, and the district reasonably could believe it did not have responsibility or control over the incidents. See id. at 645, 119 S.Ct. 1661. Officer Patrick’s investigation and the district attorney’s assessment concluded that it would be difficult to prove that the conduct was not consensual. Officer Patrick and Principal Schmidt were unable to further investigate the harassment because Ms. Rost and K.C. refused to communicate with them on the advice of counsel. It would be difficult to discipline students where it was unclear which, if any, conduct was consensual and where the victim refuses to clarify details of the incidents. Cf. Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 610 (8th Cir.1999) (holding a district not liable under Title IX where the district investigated allegations of sexual misconduct and initiated discipline only once the district obtained conclusive proof of the relationship). The Supreme Court has noted that administrators need not “engage in particular disciplinary action” under Title IX, but only respond in a manner that is not clearly unreasonable. Davis, 526 U.S. at 648-49, 119 S.Ct. 1661. In addition, we are discouraged from second-guessing school disciplinary decisions. Id. at 648, 119 S.Ct. 1661.

Further, Ms. Rost does not contend that further sexual harassment occurred as a result of the district’s deliberate indifference after K.C.’s disclosure in January 2003. See Escue, 450 F.3d at 1155-56. The Supreme Court has stated that in the case where a district does not engage in the harassment directly, as here, “it may not be liable for damages unless its deliberate indifference subjects its students to harassment. That is, the deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it.” Davis, 526 U.S. at 644-45, 119 S.Ct. 1661 (quotations and alterations omitted). We acknowledge that our sister circuits have rejected a strict causation analysis which would absolve a district of Title IX liability if no discrimination occurs after a school district receives notice of discrimination. See, e.g., Fitzgerald, 504 F.3d at 172 (citing cases that conclude that a single incident of pre-notice harassment may be enough for Title IX liability). Similarly, the Eleventh Circuit has held that Title IX discrimination can occur even after a student withdraws from school where the university fails to timely respond or take precautions to prevent further attacks. Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282, 1297 (11th Cir.2007).

Here the district’s response did not cause K.C. to undergo harassment or make her hable or vulnerable to it. See *1124Davis, 526 U.S. at 645, 119 S.Ct. 1661. Unlike the situation in Williams, the district took steps to prevent further harassment of K.C. by working with Ms. Rost to find safe educational alternatives for K.C. The district here reacted similarly to the school district in Fitzgerald, which promptly commenced an extensive investigation and offered to provide the victim remedial measures. See 504 F.3d at 173-75. The fact that Ms. Rost rejected the alternatives the district provided and did not allow K.C. to return to school does not reflect on the appropriateness of the district’s response and Ms. Rost does not allege any deficiency in the district’s efforts in this regard.

The concurring and dissenting opinion argues that the district’s failure to expel the boys kept K.C. from returning to school. The record does not support this assertion. The record suggests that Ms. Rost would not have allowed K.C. to return to any school in the district under any circumstances. In meetings with school officials, Ms. Rost would only consider private tutoring, which the district provided, or out-of-state boarding schools. She applied to at least two out-of-state private schools and was accepted to one but K.C. did not attend because of lack of funding. The family then moved to another state. There is no evidence in the record that Ms. Rost was willing to work with school officials and allow K.C. to return to the school under some accommodation. Ms. Rost considered all other options offered by the district as inappropriate and refused them. If K.C. had expressed interest in returning to the school and school officials had not provided a safe educational environment, then she would likely have a Title IX claim. But that is not this case.

Though the facts in this case are tragic, we think the response of the district must be evaluated against a backdrop of the possible. The district’s response was not clearly unreasonable so as to be deliberately indifferent to the harassment. Accordingly, we conclude that summary judgment was appropriate on the Title IX claim.

II. Equal Protection Claim

Ms. Rost also argues that the district had an established custom of acquiescing to student-on-student sexual harassment by not enforcing its sexual harassment policy which makes it liable under 42 U.S.C. § 1983, depriving K.C. of her constitutional right to equal protection of the laws under the Fourteenth Amendment. The district court granted summary judgment for the district on this claim, concluding that the two specific incidents of sexual harassment do not create an issue of material fact. We agree.

The Fourteenth Amendment provides that “[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. A denial of the equal protection of the laws under color of state law is actionable under 42 U.S.C. § 1983. Sexual harassment by a state actor may violate the equal protection clause. Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir.1989).

A school district’s liability for sexual harassment under the Equal Protection clause is analyzed under a municipal liability framework. See, e.g., Murrell, 186 F.3d at 1249-50. A claim of municipal liability for sexual harassment requires that the state employee’s discriminatory conduct be representative of an official policy or custom of the institution, Monell v. Dep’t of Soc. Servs., of the City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), or are taken by an official with final policymaking authority, Pembaur v. City of Cincinnati, 475 U.S. *1125469, 484-85, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion). In the absence of an official policy, a municipality may still be liable for the widespread and persistent practice of sexual harassment which constitutes a custom. Starrett, 876 F.2d at 820.

Ms. Rost does not contend that the district had an official policy or that a decision was made by an official with final policymaking authority. She only contends that the district had a custom of acquiescing to student sexual harassment. Ms. Rost’s argument appears to fit within the caselaw analyzing the custom of failure to receive, investigate, or act on complaints of constitutional violations. Under this precedent, a plaintiff must prove (1) a continuing, widespread, and persistent pattern of misconduct by the state; (2) deliberate indifference to or tacit authorization of the conduct by policy-making officials after notice of the conduct; and (3) a resulting injury to the plaintiff. See Gates v. Unified Sch. Dist No. 499 of Leavenworth County, Kan., 996 F.2d 1035, 1041 (10th Cir.1993); see also P.H. v. Sch. Dist. of Kan. City, Mo., 265 F.3d 653, 658-59 (8th Cir.2001).

Ms. Rost points to admissions by Principal Schmidt and Principal Bishop that there have been complaints of sexual harassment in the past. She also points to the discipline of one of the co-defendants, Nick Mangione, for sexual harassment. But the evidence that Ms. Rost identifies actually shows that the district is not acquiescing to the sexual harassment. As Ms. Rost notes, the district involved the police department in some of the harassment complaints and disciplined Nick Mangione. In addition, the high school conducted a survey to determine the scope of the sexual harassment problem. The evidence does not show that there was a widespread and persistent practice of failing to respond to student sexual harassment. At best, the evidence shows that the district was aware of several discrete problems and was working to remedy them&emdash;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. See Gates, 996 F.2d at 1041-42.

Ms. Rost also argues that the district consistently failed to follow its sexual harassment policy but does not provide evidence of occurrences where the district failed in this regard. Generalized allegations are insufficient to create an issue of material fact at the summary judgment stage. Fed.R.Civ.P. 56(e). Therefore the evidence is insufficient to show that the district had a custom of acquiescing to student sexual harassment, and the district court’s grant of summary judgment on Ms. Rost’s equal protection claim is affirmed.

III. Due Process claim

Ms. Rost also urges that the district created a dangerous educational environment for K.C. and that a state may be liable for the acts of third parties where the state created the danger that caused the harm. Normally, state actors are liable only for their own acts, and not the violent acts of third parties. Liebson v. N.M. Corr. Dep’t, 73 F.3d 274, 276 (10th Cir.1996). “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.” DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Although “[the Due Process Clause] forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ ... its language cannot fairly be extended to impose an affirmative obli*1126gation on the State to ensure that those interests do not come to harm through other means.” Id. at 195, 109 S.Ct. 998.

There are two exceptions to this general rule. First, the special relationship doctrine “exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual.” Christiansen v. City of Tulsa, 332 F.3d 1270, 1280 (10th Cir.2003) (quotations omitted). 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.” Id. (quotations omitted). Ms. Rost only alleges that the district created the danger that harmed K.C. under the second exception.

A danger creation claim must meet a six-part test: (1) the state entity and individual actors created the danger or increased the plaintiffs vulnerability to the danger; (2) plaintiff was a member of a limited and specifically definable group; (3) defendant’s conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; (4) the risk was obvious and known; (5) defendants acted recklessly in conscious disregard of that risk; and (6) such conduct, when viewed in total, shocks the conscience. Christiansen, 332 F.3d at 1281. Regarding the necessary culpability, the Due Process clause only protects against “deliberately wrongful government decisions rather than merely negligent government conduct.” Uhlrig v. Harder, 64 F.3d 567, 573 (10th Cir.1995).

Ms. Rost argues that the district’s failure to address K.C.’s disabilities and its failure to follow or enforce its sexual harassment policy created a dangerous environment for K.C. Specifically, Ms. Rost claims that the school’s failure to remove K.C. from a remedial math class that one of the co-defendants, Steven Thomas, also attended created a dangerous environment for K.C. Even viewing this evidence in the light most favorable to Ms. Rost, there is no genuine issue of fact that the district created the danger that caused the harm.

The record is clear that when Ms. Rost met with Principal Schmidt to discuss K.C. and her math class, Ms. Rost told Principal Schmidt that K.C. did not want to attend the class anymore because the boys were bothering her and she did not like having an aide with her. Ms. Rost’s concerns were that K.C. said she did not want to attend school because she hated it and was afraid of attending. However, neither Ms. Rost nor any district employee knew that K.C.’s concerns were due to sexual harassment. At most, the facts allege that the district may have been negligent in not more appropriately addressing K.C.’s disabilities and in allowing her to remain in the class. However, negligent government conduct is insufficient to prove liability under § 1983. Christiansen, 332 F.3d at 1281; Seamons v. Snow, 84 F.3d 1226, 1236 (10th Cir.1996); Uhlrig, 64 F.3d at 573. Similarly, Ms. Rost’s allegation that the district failed to appropriately follow and enforce its sexual harassment policy sounds in negligence, not deliberate misconduct. Because the district lacked knowledge of any risk of danger to K.C., Ms. Rost has not shown the district has the necessary culpability to survive summary judgment on her due process claim. We therefore affirm the district court’s grant of summary judgment on this claim as well.

AFFIRMED.

. We do not suggest that harassment occurring off school grounds cannot as a matter of law create liability under Title IX. Davis suggests that there must be some nexus between the out-of-school conduct and the school. See 526 U.S. at 645, 119 S.Ct. 1661. We do not find a sufficient nexus here, where the only link to the school was an oblique and general reference to harassment or teasing on the school bus or in the halls at school. More*1122over, the fact that the boys threatened to post pictures of K.C. at school does not cause the harassment to "take place in a context subject to the school district's control" either. See id. The district’s decision to refer the investigation of the harassment to law enforcement officials where the harassment occurred off school grounds and often while the students were not enrolled in school was not clearly unreasonable under the facts of this case.