Appeal from the United States District Court for the Western District of Arkansas.
The opinion of the court was delivered by: Bye, Circuit Judge.
Before BYE and MELLOY, Circuit Judges, and ERICKSEN,*fn1
William Wolfe filed suit against the Fayetteville, Arkansas School
District alleging he was a victim of sexual harassment in violation of
Title IX, 20 U.S.C. § 1681. After the district court*fn2
denied the school district's motion for summary judgment, the
case proceeded to trial. A twelve-member jury issued a verdict in
favor of the school district. Wolfe moved for a new trial, but the
district court denied the motion. Wolfe appeals alleging the district court erroneously
instructed the jury and further erred in empaneling a twelve-member
jury as opposed to a six-member jury. Finding no error, we affirm the
William Wolfe was a student in the Fayetteville, Arkansas School District ("FSD") until tenth grade. Between his sixth-grade and tenth-grade years, from 2003 to 2008, Wolfe was ridiculed at the hands of his fellow students on numerous occasions. Beginning in sixth grade, Wolfe was harassed several times per week including pushing, shoving, name-calling, and being falsely labeled as homosexual. The name-calling included gender-based epithets such as "faggot," "queer bait," and "homo," among others. Over the years, the harassment escalated. In seventh grade, Wolfe was punched and had his head slammed into a window while riding the school bus. In ninth grade, his classmates created a Facebook page called "Every One [sic] That Hates Billy Wolfe." The picture for the Facebook group showed Wolfe's face photo-shopped onto a figure in a green fairy costume with the word "HOMOSEXUAL" written across it. Additionally, Wolfe's classmates graffitied highly offensive, homosexual accusations about Wolfe on bathroom walls and in classroom textbooks. During Wolfe's last year with FSD, his tenth grade year, Wolfe got in a fight with a classmate, and two days later the classmate jumped out of a car and punched Wolfe while he was walking home from school.
While it does not deny these incidents of harassment, FSD insisted the motive underscoring the misconduct was not sex-based. Wolfe's fellow students and teachers explained they did not perceive Wolfe as homosexual and they believed he conformed to typical male gender stereotypes. Wolfe's classmates explained their use of the homosexual name-calling was not intended to attack Wolfe's sexuality, but rather was an angered response to Wolfe's mistreatment of other students. Several classmates suggested they accosted Wolfe because he had previously bullied a friend of theirs suffering from cerebral palsy. FSD also indicated most of the classmates who engaged in altercations with Wolfe lacked any prior disciplinary history other than their confrontations with Wolfe.
Although Wolfe reported each of these incidents and others to the school, they were never reported to the school district's Title IX Coordinator or the Equity Compliance Officer because the school felt the incidents fell into the category of bullying and not sexual harassment. FSD felt it took appropriate steps in response to each of Wolfe's claims despite not reporting the incidents to the Title IX Coordinator or Equity Compliance Officer because it explored and documented every reported incident, removed graffiti, and reviewed bullying policies with students and teachers. However, Wolfe was not satisfied with the school's responsiveness, and after the tenth-grade incident in which Wolfe was violently punched walking home from school, he filed suit against the classmates who accosted him. The suit, coupled with a video of the incident available on the internet, led to considerable media attention. Wolfe was interviewed by The New York Times, The Today Show, 20/20, and Dateline in the spring of 2008. Following this media attention, Wolfe was assigned a coach to follow him during school, but he still felt unsafe and decided instead to pursue a GED from home.
Wolfe filed the present suit against FSD*fn3 following his departure from school in the spring of 2008. He alleged he was the victim of sex discrimination in the form of sexual harassment in violation of Title IX, 20 U.S.C. § 1681. Wolfe also raised various other federal and state law claims not relevant to this appeal. FSD moved for summary judgment, but the district court denied the motion. FSD then requested the district court empanel a twelve-person jury because "the nature of the case and the attention it had received" created "a significant possibility that passion or prejudice could improperly influence a smaller jury." Although Wolfe opposed the request, the district court empaneled a twelve-person jury and the case proceeded to trial. At the conclusion of trial, Wolfe and FSD each offered jury instructions on the Title IX claim. The district court declined to adopt either parties' instruction and instead chose another set of instructions which it concluded more closely paralleled the language of Title IX. Thereafter, the jury returned a verdict in favor of FSD on all claims. Following the verdict, Wolfe brought a motion for a new trial alleging the district court improperly instructed the jury and also erred in empaneling a twelve-person jury. After the district court denied the motion for a new trial, Wolfe appealed on each of these issues.
Wolfe first raises a two-fold jury instruction challenge. He contends the district court improperly instructed the jury and thereby added an element not legally required in Title IX claims to his burden of proof, and the district court improperly denied Wolfe an instruction on his theory of the case. We begin with the former contention.
"[T]he purpose of giving instructions is to inform the jury of the essential issues before them and of the various permissible ways of resolving those issues." Fed. Enters., Inc. v. Greyhound Leasing & Fin. Corp., 786 F.2d 817, 820 (8th Cir. 1986). We recognize the district court has broad discretion in choosing the form and language of the jury instructions, and we review instructions for an abuse of discretion. Cook v. City of Bella Villa, 582 F.3d 840, 857 (8th Cir. 2009); Boesing v. Spiess, 540 F.3d 886, 890 (8th Cir. 2008). The focus of our review is "whether the instructions, viewed on the whole, fairly and adequately represent the evidence and applicable law in light of the issues presented to the jury in a particular case." Weitz Co. v. MH Wash., 631 F.3d 510, 533 (8th Cir. 2011); see also Wheeling Pittsburgh Steel Corp. V. Beelman River Terminals, Inc., 254 F.3d 706, 711 (8th Cir. 2001) ("The standard for reviewing alleged errors in jury instructions is whether the instructions, taken as a whole and viewed in the light of the evidence and applicable law, fairly and adequately submitted the issues in the case to the jury.") (internal quotation marks and citations omitted). It is therefore error for the district court to provide the jury with instructions misstating the law. Ryther v. KARE 11, 108 F.3d 832, 850 (8th Cir. 1997) (en banc).
A review of the applicable law is thus in order. Wolfe's claim is premised on a violation of Title IX, which states, "[n]o person in the United States shall, on the basis of sex, . . . be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). As a recipient of federal funds, FSD is subject to liability for violations of Title IX, but only for damages arising from its own misconduct. Ostrander v. Duggan, 341 F.3d 745, 750 (8th Cir. 2003). Consequently, the school district can only be liable for student-on-student harassment if it was "(1) deliberately indifferent (2) to known acts of discrimination (3) which occur under its control." Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 782 (8th Cir. 2001) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-91 (1998); Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 642 (1999)). Per the language of Title IX, these "acts of discrimination" must be "on the basis of sex." Harassment can constitute discrimination ...