NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 17-3560

                                  ______________

M.J.G. by and through her parent and natural guardian, Princess J.; PRINCESS J., in her
                                 individual capacity,
                                                   Appellants

                                          v.

    SCHOOL DISTRICT OF PHILADELPHIA, COLLETTE LANGSTON, JODI
     ROSEMAN, LISA LYNCH, AND CARSON VALLEY CHILDREN’S AID
                          ______________

                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                              (D.C. No. 2-17-cv-00318)
                        District Judge: Hon. Mark A. Kearney
                                   ______________

                                Argued May 21, 2019
                                  ______________

            Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges.

                                (Filed: May 30, 2019)



Zachary A. Meinen, Esq.
Joseph W. Montgomery, II, Esq. [ARGUED]
Montgomery Law
1420 Locust Street, Suite 420
Philadelphia, PA 19102

      Counsel for Appellants
Alison Morrissey, Esq.
Jeffery M. Scott, Esq. [ARGUED]
Archer & Greiner
Three Logan Square
1717 Arch Street, Suite 3500
Philadelphia, PA 19103

Ryan Mulderrig, Esq.
School District of Philadelphia
Office of General Counsel
440 North Broad Street, Suite 313
Philadelphia, PA 19130

       Counsel for Appellees Philadelphia School District, Colette Langston, Jodi
       Roseman, Lisa Lynch, and Carson Valley Children’s Aid

William Oleckna, Esq.
Gary M. Samms, Esq. [ARGUED]
Obermayer Rebmann Maxwell & Hippel
1500 Market Street
Centre Square West, Suite 3400
Philadelphia, PA 19102

       Counsel for Appellee Carson Valley Children’s Aid


                                     ______________

                                        OPINION
                                     ______________


SHWARTZ, Circuit Judge.




       
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
                                             2
       Plaintiffs MJG1 and her mother Princess J. appeal the District Court’s order

granting summary judgment in favor of Defendant Carson Valley Children’s Aid

(“Carson Valley”) and Defendants School District of Philadelphia, Collette Langston,

Jodi Roseman, and Lisa Lynch (“School Defendants”). Because the Court properly

entered summary judgment for Defendants on Plaintiffs’ claims, we will affirm.

                                              I

                                             A

       MJG was a student at Swenson Arts and Technology High School in Philadelphia,

Pennsylvania. She has Autism Spectrum Disorder and intellectual, social, and language

disabilities. MJG was in one of the two life skills classes at Swenson, divided based on

the students’ ages. In addition to being a student in the life skills class, MJG received

additional therapeutic services. Princess sought additional therapy to support MJG

through private providers. These providers include a behavioral specialist consultant

(“BSC”), who develops a behavior support plan, supervises other support providers, and

“collaborate[s] with school personnel to ensure continuity in care,” App. 334; and

therapeutic staff support (“TSS”), who provide one-to-one behavioral health intervention

to promote age-appropriate behavior. The private organizations submit recommendations

to Community Behavioral Health (“CBH”), a non-profit contractor for the Pennsylvania

Department of Behavioral Health and Intellectual Disability Services. This entity is



       1
        Although the pleadings refer to Plaintiff as both MJG and MGJ, the operative
complaint and its caption refers to Plaintiff as MJG. Accordingly, we use those initials in
this Opinion. The appellate docket will also refer to the Plaintiff as MJG.
                                              3
“responsible for providing behavioral health coverage for the City’s . . . Medicaid

recipients.” App. 696. CBH authorizes all TSS hours, locations, and service delivery

and addresses any complaints about services. The School District has neither a contract

with nor control over these providers. For the 2014-2015 school year, Green Tree School

& Services (“Green Tree”) provided MJG’s therapy services, and CBH authorized fifteen

hours of TSS per week for MJG.

                                             1

       In March 2015, MJG told Princess that while in the school library, an

intellectually disabled student in MJG’s life skills class, RD, had taken her hand and

placed it on his penis.2 Princess contacted her Green Tree BSC, who emailed MJG’s

teacher Lisa Lynch. Princess, the BSC, Lynch, and MJG met to discuss the incident.

Lynch stated that she was watching the students and that MJG’s account was “completely

false.” App. 342. Rather, according to Lynch, MJG tried to get RD to put his arms

around her and Lynch reprimanded MJG.3 Lynch suggested MJG’s original account

might have been attention-seeking behavior. Even so, Lynch agreed that the school

would: (1) increase supervision, (2) change MJG and RD’s seats, and (3) relay this plan

to other teachers, per Princess’s request. Following the 2015 incident, no statements

were taken from either MJG or RD and the police were not called, but Lynch prepared a



       2
          Princess also maintains that in December 2015, MJG relayed that she saw, but
was not involved in, students touching each other inappropriately in the library.
        3
          MJG confirmed Lynch’s account, but Princess told the Green Tree BSC that she
believed that MJG accepted Lynch’s narrative because she feared the teacher’s
retaliation.
                                             4
written summary about the meeting for Principal Collette Langston, and Langston

directed Lynch to document any additional issues.4

       In March 2015, Green Tree gave CBH an updated service recommendation for

MJG. Green Tree recommended fifteen TSS hours per week for the following school

year to, among other things, “increase [MJG’s] social skills.” App. 109. CBH approved

this request. In June 2015, CBH assigned Carson Valley to take over for Green Tree and

provide MJG the same fifteen TSS hours per week.

                                             2

       In February 2016, MJG came home from school and told Princess and her siblings

that she, RD, and a third student went outside at lunch to play tag, RD told her to pull her

pants down, and RD blew on her stomach and put his penis on her pelvic area.5 Princess

called the police and MJG’s TSS,6 who immediately called Lynch. Princess then met

with a Carson Valley BSC and the police, who both wrote incident reports. The next

morning, Princess took MJG to school, where she met with Langston, the dean of

students, and the school police officer, all of whom reviewed the surveillance footage of

the students from the patio outside the cafeteria. The video did not depict any relevant

activity.



       4
         Langston is responsible for handling serious disciplinary issues. All teachers are
required to report any incidents of sexual harassment to the principal and school police,
but the school does not determine the veracity of the complaint.
       5
         Two aides supervise the 150 students in the cafeteria, and the doors are not
locked.
       6
         Although MJG indicated that her TSS had left for the day, Carson Valley states
that her TSS was not at the school that day.
                                             5
       In addition, at Langston’s direction, Lynch and a classroom assistant took

statements from RD and the third student. Lynch was not asked to take MJG’s statement.

According to RD, the three students went outside at lunch, MJG was trying to fix her

belt, her pants were loose and fell down, he told her to pick them up, and he helped her

with the belt. According to the third student, they went outside to play, and MJG pulled

down her pants and was standing in her underwear, prompting both RD and the third

student to tell MJG to pick up her pants. The school police officer contacted the

Philadelphia Police Department, and officers from the Special Victims Unit (“SVU”)

went to Swenson to speak to and observe RD.

       A Carson Valley psychologist discussed the incident with MJG. She described the

event as traumatic for MJG and recommended 32.5 TSS hours per week in light of the

trauma and MJG’s “safety interfering behaviors.” App. 524. CBH determined the extra

hours were not medically necessary and denied the request.

       The School Defendants composed a “Safety Plan” for MJG, providing:

(1) additional staff would be assigned to the cafeteria at lunch, (2) staff would go outside

with students at lunch, (3) MJG and RD would be separated and monitored but remain in

the same room, (4) MJG would be escorted by an adult during transition times, (5) there

would be a daily communication book and weekly emails to update Princess, and (6) an

Individual Education Plan (“IEP”) meeting would take place to discuss one-on-one




                                             6
supervision for MJG. Princess removed MJG from Swenson and stated that she was not

aware that a safety plan was put in place.7

                                              B

       Plaintiffs brought suit in the Eastern District of Pennsylvania, asserting violations

of, among other things, the Americans with Disabilities Act (“ADA”), Title IX of the

Civil Rights Act of 1964, and 42 U.S.C. § 1983. Some claims were dismissed and the

parties proceeded to discovery on their remaining claims. After discovery, Carson Valley

and the School Defendants moved for summary judgment.

       The District Court granted both motions, holding, as relevant to the instant appeal:

(1) Carson Valley, as a private behavior health service provider, did not act under the

color of state law because it did not substitute its own judgment for the School District’s,

and therefore cannot be liable under § 1983, MJG v. Sch. Dist. of Phila., Civ. No. 17-318,

, at *5 (E.D. Pa. Nov. 2, 2017); (2) MJG did not adduce evidence that

the School Defendants’ response to both incidents was clearly unreasonable such that

they acted with deliberate indifference and are liable for student-on-student harassment

under Title IX, 

(3) the School Defendants did not intentionally discriminate

against MJG or act with deliberate indifference under the ADA by failing to separate her

and RD into different classrooms, 

and (4) the School Defendants did not

act with deliberate indifference or “consciously disregard a substantial risk of serious




       7
           It is unclear whether MJG returned to school following the incident.
                                              7
harm” to establish liability under a state-created danger or municipal liability theory, 

(citation omitted).8 Plaintiffs appeal.

                                             II9

                                              A

       We first address the District Court’s holding that Carson Valley is not a state actor

and thus cannot be liable under § 1983. Plaintiffs recognize that Carson Valley is a

private entity but argue that it may be liable under § 1983 because it has a close nexus

and symbiotic relationship with the state.

       To recover under § 1983, a plaintiff “must show that the defendants (1) were state

actors who (2) violated his rights under the Constitution or federal law.” Benn v.

Universal Health Sys., Inc., 

, 169-70 (3d Cir. 2004) (footnote omitted). To



       8
          Plaintiffs did not oppose the School Defendants’ summary judgment motion on
Plaintiffs’ failure to train or supervise claim against the School District and thus have
waived those claims. United States v. Dupree, 

, 727 (3d Cir. 2010).
        9
          The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343. We have
jurisdiction under 28 U.S.C. § 1291.
        Our review of a district court’s order granting summary judgment is plenary,
Mylan Inc. v. SmithKline Beecham Corp., 

, 418 (3d Cir. 2013), and we
apply the same standard, viewing the facts and making all reasonable inferences in the
non-movant’s favor, Hugh v. Butler Cty. Family YMCA, 

, 266-67 (3d Cir.
2005). Summary judgment is appropriate where “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 dispute “is genuine only if there is a sufficient evidentiary basis on which a
reasonable jury could find for the non-moving party, and a factual dispute is material
only if it might affect the outcome of the suit under governing law.” Kaucher v. County
of Bucks, 

, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 

, 248 (1986)). The moving party is entitled to judgment as a matter of law when
the non-moving party fails to make “a sufficient showing on an essential element of her
case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 

, 323 (1986).
                                              8
make a state actor determination, we ask whether “the alleged infringement of federal

rights [is] fairly attributable to the State[.]” Rendell-Baker v. Kohn, 

, 838

(1982) (internal quotation marks and citation omitted). To this end, we consider the facts

and circumstances of the particular case, Burton v. Wilmington Parking Auth., 

, 722 (1961), and examine:

       (1) whether the private entity has exercised powers that are traditionally the
       exclusive prerogative of the state; (2) whether the private party has acted with the
       help of or in concert with state officials; and (3) whether the state has so far
       insinuated itself into a position of interdependence with the acting party that it
       must be recognized as a joint participant in the challenged activity.

Kach v. Hose, 

, 646 (3d Cir. 2009) (internal quotation marks and citation

omitted). Each consideration focuses on whether “there is such a close nexus between

the state and the challenged action that seemingly private behavior may be treated as that

of the state itself.” 

these considerations show that Carson Valley is a state actor. First, no

party contends that the provision of these therapeutic services is the exclusive

prerogative of the state.

       Second, Carson Valley and the state did not act in concert. Carson Valley

provides behavior health services for special education students that are paid for by the

state. Although Carson Valley conducts evaluations and recommends services, CBH

ultimately approves or denies requests for services and adjudicates complaints about

treatment services. For these reasons, Carson Valley has not acted “with the help of or in

concert with” the School District. 

.



                                             9
       Third, Carson Valley does not have a symbiotic relationship with either CBH or

the School District.10 Such a relationship exists “by virtue of the close involvement of

the state and interdependence of the actors in the association formed and the challenged

activity.” Crissman v. Dover Downs Entm’t, Inc., 

, 240-41 (3d Cir. 2002)

(en banc). Under this test, we “look first at the relationship and test whether the conduct

could be linked to the joint beneficial activities” between the state and private entity. 

Carson Valley assigned a BSC to MJG. The BSC collaborated with the school

and MJG’s teachers, but the school has no contract with or control over the agency. TSS

providers are present during the school day, but the BSC is their direct supervisor.

Finally, although the state pays for these services, and CBH approves them, “a state

contractor and its employees are not state actors simply because they are carrying out a

state sponsored program.” Black by Black v. Indiana Area Sch. Dist., 

, 710

(3d Cir. 1993); see 

(holding no symbiotic relationship between bus company

and school district where “the cooperation between the two was only that appropriate to

the execution of the subject matter of the contract”); see also 

       10
          Although Plaintiffs did not use the phrase “symbiotic relationship” as a basis to
deem Carson Valley a state actor, they argued to the District Court that Carson Valley
and the School District acted jointly, Carson Valley coordinated with the School District
in an institutionalized process to provide student services, Carson Valley substituted its
judgment for that of the School District, and the School District ceded its responsibility to
provide one-on-one supervision to Carson Valley. Plaintiffs’ arguments sufficiently
capture the “symbiotic relationship” consideration, and thus, Plaintiffs did not waive their
arguments based on it.

                                             10
(noting government funding and regulation do not “convert private action to state

action”).

       Because Carson Valley is not a state actor, the District Court correctly granted

summary judgment in its favor on Plaintiffs’ § 1983 claim.

                                            B11

       Plaintiffs’ Title IX and the ADA claims against the School Defendants also fail.

Under Title IX, “recipients of federal funding may be liable for ‘subjecting’ their

students to discrimination where the recipient is deliberately indifferent to known acts of

student-on-student sexual harassment and the harasser is under the school’s disciplinary

authority.” Davis ex rel. LaShonda v. Monroe Cty. Bd. of Educ., 

, 646-47

(1999). When faced with allegations of student-on-student sexual harassment, a school

and its officials will be deemed deliberately indifferent where they “cause [students] to

undergo harassment or make them liable or vulnerable to it,” 

(alteration in

original) (internal quotation marks and citation omitted), and the “response to the

harassment or lack thereof is clearly unreasonable in light of known circumstances,” 

Whether the response was clearly unreasonable may be determined as a matter

of law. 

       11
           The District Court noted that MJG did not present arguments opposing summary
judgment on the Title IX claim, but it nonetheless analyzed the claim. MJG, 

, at *8 n.85. Because the Court ruled on the merits of this claim, we will address
it too.
        12
           The exact nature of the conduct and alleged harassment is disputed here, but we
assume that it satisfies the predicate for a Title IX claim. See 

(stating Title IX provides a basis for student-on-student harassment “only where the
                                            11
       To prevail on an ADA claim, the plaintiff must demonstrate that she: “(1) has a

disability; (2) was otherwise qualified to participate in a school program; and (3) was

denied the benefits of the program or was otherwise subject to discrimination because of

her disability.” S.H. ex rel. Durell v. Lower Merion Sch. Dist., 

, 260 (3d

Cir. 2013) (citation omitted). To receive compensatory damages, a plaintiff must prove

intentional discrimination, which, like a Title IX violation, may be satisfied by showing

deliberate indifference. 

see Blunt v. Lower Merion Sch. Dist., 

, 273 (3d Cir. 2014) (applying deliberate indifference standard to Title IX and ADA

claims). Deliberate indifference requires both knowledge that a right is likely to be

violated and a “failure to act despite that knowledge.” 

. Thus, to

succeed on both their Title IX and ADA claims, Plaintiffs must show that the School

Defendants were deliberately indifferent to MJG’s circumstances.

       Here, no reasonable jury could find that the School Defendants caused either the

March 2015 or February 2016 incidents with RD to occur and that their responses after

each were clearly unreasonable. After the March 2015 event, Lynch, the Green Tree

BSC, MJG, and Princess met. Even though Lynch believed there was no misconduct, she

indicated that MJG and RD would be physically separated and monitored, per District

policy. In addition, in accordance with the District Policy, Lynch provided Langston

with a written summary documenting the meeting with the Carson Valley BSC, Princess,




behavior is so severe, pervasive, and objectively offensive that it denies its victims the
equal access to education that Title IX is designed to protect”).
                                             12
and MJG.13 Eleven months passed before the second incident involving MJG and RD,

and nothing was reported in the interim. While MJG and Princess insist more should

have been done, such as create a new life skills class or send the students to different

schools, the School Defendants’ response to the incident cannot be said to have been

unreasonable in light of the allegations, as it included physically separating and

monitoring the students while in class.

       Following the 2016 incident, Langston, Princess, the dean, and the school police

officer met. Thereafter, Lynch and a classroom assistant took statements from RD and

the third student. In addition, the school police officer contacted the Philadelphia Police

Department, prompting an investigation by the SVU, which apparently resulted in no

charges. Finally, the School Defendants prepared a “Safety Plan” that provided for

regular communication with Princess, an escort for MJG during transition times at

school, separation and monitoring of RD and MJG, additional lunch supervision, and

new bus routes if they took the same school bus.14 Even if other steps could have been


       13
           Plaintiffs assert that the document describing Lynch’s separation and monitoring
plan, emailed to Langston, “does not prove whether students were actually separated,
how long they were separated, or to what extent they were separated.” Appellants’ Br. at
41-42. Plaintiffs further argue, “[i]f the separation and supervision had occurred as
stated, [Princess] would have no reason to keep MJG out of school on April 22, 2015 or
mistrust Lynch . . . . [R]D and MJG may have only been separated for 10 minutes during
that single day in the computer lab.” Appellants’ Br. at 42 (citation omitted). Plaintiffs
present no evidence to support this assertion, beyond the fact that MJG was not in school
one day, nearly a month after the 2015 incident and following Princess’s complaints
about Lynch. Plaintiffs also rely on the report of Dr. John H. Regan, composed after the
2016 incident, concluding that despite the 2015 incident, RD remained in MJG’s
classroom. App. 247. This fact is not disputed.
        14
           The “Safety Plan” also provided that an IEP meeting would be held to discuss
providing MJG with a one-on-one assistant. App. 777.
                                             13
taken, no reasonable juror could conclude that the School Defendants were deliberately

indifferent to the incidents given the detailed safety plan they were prepared to

implement. See Ings-Ray v. Sch. Dist. of Phila, No. Civ.A 02-CV-3615, 

, at *4 (E.D. Pa. Apr. 30, 2003) (holding no deliberate indifference where

school responded to harassing behavior by immediately investigating the incident,

meeting with the harasser’s parents, obtaining a confession from and suspending the

harasser, providing individual counseling and group sexual education, and increasing

supervision); see also Gant ex rel. Gant v. Wallingford Bd. of Educ., 

, 144

(2d Cir. 1999) (holding teacher did not act clearly unreasonably by deciding to “keep an

open eye” on things after one incident of racial name-calling); cf. DiStiso v. Cook, 

, 245 (2d Cir. 2012) (holding a jury could find a principal acted clearly

unreasonably when he did nothing other than speak to a teacher following kindergarten

racial-name calling). Furthermore, the Supreme Court directs us to give some deference

to how schools handle events on school grounds and to take care not to dictate that

school officials may “avoid liability only by purging their schools of actionable peer

harassment or that administrators must engage in particular disciplinary action.” 

.

      Because no reasonable juror could find that the School Defendants were

deliberately indifferent to MJG’s circumstances or that their responses were clearly




                                            14
unreasonable, the District Court properly granted summary judgment for the School

Defendants on MJG’s Title IX and ADA claims.15

                                             C

       The School Defendants are also not liable to MJG for a substantive due process

violation under § 1983. While schools generally do not have an obligation to protect

students, they may be liable for a student’s harm if “the state acts to create or enhance a

danger that deprives the plaintiff of his” due process rights. Sanford v. Stiles, 

, 304 (3d Cir. 2006) (per curiam) (emphasis omitted). This type of due process claim,

known as the state-created danger theory, requires proof of four elements, including that

“a state actor acted with a degree of culpability that shocks the conscience.” 

05.

       While “the state actor’s behavior must always shock the conscience,” 

(emphasis omitted), the specific “level of culpability required to shock the conscience

increases as the time to deliberate decreases,” 

Where state actors have an

opportunity to deliberate and make “‘unhurried judgments,’ deliberate indifference is




       15
         Moreover, the record does not show that the School Defendants discriminated
against MJG as compared to non-disabled students. Swenson had two life skills classes,
divided based on the students’ ages. Because MJG and RD were in the same age group
and had similar educational needs, and there was no other class to accommodate them, a
plan was put in place to keep them separated and constantly monitored. Plaintiffs have
not adduced evidence that the failure to offer multiple classrooms constitutes
discrimination, or that non-disabled students under similar circumstances would be
separated into different classrooms. For this additional reason, the District Court
correctly granted summary judgment for the School Defendants on Plaintiffs’ ADA
claim.
                                             15
sufficient.”16 

School District Defendants were able to make unhurried

judgments.

       For substantially the same reasons provided with respect to Plaintiffs’ Title IX and

ADA claims, Plaintiffs have not produced evidence showing that the School Defendants

were deliberately indifferent or that their actions were conscience-shocking. After the

first incident, MJG and RD were separated during classroom time, but free to sit together

at lunch and during other unstructured times. Eleven months passed without incident, so

we cannot conclude that the risk of sexual assault was so obvious. After the second

incident, the School Defendants immediately responded with an internal investigation,

contacted the school police, and established a safety plan.17


       16
        The level of culpability required to shock the conscience varies depending on
the amount of time the state actors had to respond to a given situation:

       [A]lthough intent to cause harm must be found in a “hyperpressurized
       environment,” where officials are afforded the luxury of a greater degree of
       deliberation and have time to make “unhurried judgments,” deliberate
       indifference is sufficient to support an allegation of culpability. . . . [W]here
       the circumstances require a state actor to make something less exigent than
       a “split-second” decision but more urgent than an “unhurried judgment,”
       i.e., a state actor is required to act “in a matter of hours or minutes,” a court
       must consider whether a defendant disregarded a “great risk of serious harm
       rather than a substantial risk.”

Phillips v. County of Allegheny, 

, 241 (3d Cir. 2008) (quoting 

) (internal citations omitted).
       17
          To establish a state-created danger, a plaintiff must also prove that “a state actor
affirmatively used his or her authority in a way that created a danger to the citizen or that
rendered the citizen more vulnerable to danger than had the state not acted at all.”

, 311. Although the line between action and inaction is not
clear, Morrow v. Balaski, 

, 177 (3d Cir. 2013), the mere failure to protect,
couched as an affirmative action, is not enough to satisfy this element. 

; see 

(holding failure to enforce a disciplinary policy
                                              16
       Because no reasonable juror could find that the School Defendants were

deliberately indifferent or engaged in conduct that shocked the conscience, Plaintiffs are

not entitled to § 1983 relief.18

                                             III

       For the foregoing reasons, we will affirm.




and suspend a bully student with no-touch orders for the plaintiffs was not an affirmative
act). Here, Plaintiffs argue that the School Defendants failed to separate MJG and RD
into different classrooms, allowed them to leave at lunch, and failed to provide one-on-
one supervision. These “failures,” however, are not affirmative conduct that exposed
MJG to greater harm. See L.R. v. Sch. Dist. of Phila., 

, 242-43 (3d Cir.
2016) (holding defendants’ efforts to describe the defendant’s conduct as mere failures to
act was “unavailing”). Thus, no reasonable juror could find that the School Defendants
affirmatively created a danger that exposed MJG to sexual assault.
        18
           Because Plaintiffs have failed to establish a predicate constitutional violation,
their claim for municipal liability also fails. See Startzell v. City of Philadelphia, 

, 204 (3d Cir. 2008).
                                             17