John Hall v. Millersville University ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 19-3275
__________
JOHN J. HALL; JEANETTE A. HALL, as administrators and
personal representatives of the Estate of Karlie A. Hall,
and in their own right as decedent's heirs-at-law,
Appellants
v.
MILLERSVILLE UNIVERSITY; SARA WIBERG,
individually and as an employee of Millersville University;
ACACIA NATIONAL FRATERNITY; ACACIA
FRATERNITY CHAPTER NUMBER 84; COLIN
HERBINE, individually and as an agent of Acacia Fraternity
Chapter No. 84; JACK MILITO, individually and as an agent
of Acacia Fraternity Chapter No. 84; NICHOLAS HENCH,
individually and as an agent of Acacia Fraternity Chapter No.
84; SEAN EBERT, individually and as an agent of
Acacia Fraternity Chapter No. 84; NIGALE QUILES,
individually and as an agent of Acacia Fraternity Chapter No.
84; JOHN DOES #1-5, individually and as an agents of
Acacia Fraternity Chapter No. 84
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court Civil No. 5-17-cv-00220)
District Judge: Honorable Edward G. Smith
Argued October 14, 2021
BEFORE: SHWARTZ, NYGAARD, and FISHER,
Circuit Judges
(Filed: January 11, 2022)
Brian D. Kent
M. Stewart Ryan
Laffey Bucci & Kent
1100 Ludlow Street, Suite 301
Philadelphia, PA 19107
Counsel for Appellants
James P. Davy [Argued]
P.O. Box 15216
Philadelphia, PA 19125
Counsel for Appellant Jeanette A. Hall
Josh Shapiro, Attorney General
Claudia M. Tesoro [Argued]
Office of Attorney General of Pennsylvania
1600 Arch Street, Suite 300
Philadelphia, PA 19103
2
Kevin R. Bradford
Stephen R. Kovatis
Office of Attorney General of Pennsylvania
21 South 12th Street, 3rd Floor
Philadelphia, PA 19107
Counsel for Appellees
Margaret H. Zhang
Women's Law Project
125 South 9th Street, Suite 300
Philadelphia, PA 19107
Counsel for Amicus Appellants
__________
OPINION OF THE COURT
__________
NYGAARD, Circuit Judge.
John and Jeanette Hall (“the Halls”) sued Millersville
University (“Millersville”) under Title IX after their daughter,
Karlie Hall, was murdered in her dorm room by her boyfriend,
Gregorio Orrostieta. Despite finding genuine issues of material
fact for each element of the Halls’ Title IX claim, the District
Court granted summary judgment in Millersville’s favor,
holding that Millersville lacked notice it could face liability
3
under Title IX for the actions of a non-student guest. The Halls
appeal, and this Court must now consider whether Millersville
had adequate notice it could be liable under Title IX for its
deliberate indifference to known sexual harassment
perpetrated by a non-student guest. We hold Millersville had
such notice.
Title IX’s plain terms notify federal funding recipients
that they may face monetary liability for intentional violations
of the statute. Moreover, it is an intentional violation of Title
IX’s terms for a funding recipient to act with deliberate
indifference to known sexual harassment where the recipient
exercises substantial control over the context in which the
harassment occurs and the harasser, even if they are a third
party. Given this framework, we conclude the text of Title IX
provides Millersville and other federal funding recipients with
adequate notice. We must therefore reverse and remand.
Nevertheless, because we agree with the District Court that
genuine issues of material fact exist for each element of the
Halls’ Title IX claim, we will affirm the District Court’s order
to the extent it holds these factual disputes preclude summary
judgment in Millersville’s favor.
I. BACKGROUND
Because this case is fact-laden, we must encumber the
reader with much detail.
A. Origins of Karlie’s Relationship with Orrostieta
Karlie Hall began dating Orrostieta around March of
2014, while Karlie was a senior in high school. The two
continued dating through the summer of 2014, and by
4
summer’s end Orrostieta was visiting Karlie daily and would
often spend the night with Karlie in her room. At that time,
Karlie lived with her mother, Jeanette, and her twin sister,
Kristen, at Jeanette Halls’ home.
During this period, and while at Jeanette’s home,
Orrostieta exhibited abusive behavior towards Karlie. On one
occasion, Kristen overheard Karlie yell “you hit me” back at
Orrostieta after he had screamed at Karlie while she showered.
Joint Appendix at 11, 151, 158. Additionally, during a party
thrown at Jeanette’s home, Kristen heard banging coming from
a room Karlie and Orrostieta were locked in, though the two
eventually came out as if nothing had happened.
In August of 2014, Karlie and Kristen enrolled in
Millersville and moved from their mother’s home into their
respective dormitories, with Karlie living in Bard Hall and
Kristen in Gaige Hall. While at Millersville, Karlie maintained
her relationship with Orrostieta and often invited him into Bard
Hall as her guest. On occasion, Karlie would bring Orrostieta
into Bard Hall through a rear entrance that she and her
roommate, Tina Flexer, both found convenient.
B. October 4th-5th Incident of Dating Violence
As Karlie’s first semester at Millersville continued, so
too did Orrostieta’s visits, and his abuse.1 On October 4th,
1
Orrostieta exhibited abusive behavior towards Karlie, as well
as Karlie’s friends, prior to the October 4th incident in Karlie’s
dorm room. In September of 2014, Orrostieta destroyed one of
Karlie’s stuffed animals in an argument. Also on October 4th,
after losing track of Karlie at a party, Orrostieta grabbed Tina
5
2014, the day after Karlie and Kristin’s 18th birthday,
Orrostieta visited and stayed with Karlie in the room she shared
with Tina Flexer. That night, Karlie and Orrostieta went to a
party with Flexer, though Flexer left early and went back to
Bard Hall. When Karlie and Orrostieta returned in the early
hours of October 5th, Flexer noticed that Karlie had been
crying. Later that night, Flexer approached Karlie in the
hallway outside their dorm room and Karlie explained she had
been crying because she had been in a verbal fight with
Orrostieta. Sara Wiberg, the resident assistant for Karlie’s
floor, also noticed Karlie’s crying and questioned Flexer about
Karlie in the hallway. As Wiberg spoke with Flexer, the two
heard rustling sounds coming from inside Karlie’s room and
eventually heard Karlie scream “ow.” Joint Appendix at 12,
152, 160, 165. Wiberg then knocked on Karlie’s door, which
Orrostieta answered.
When Orrostieta opened the door, Karlie was in bed
with her back to Wiberg. Wiberg then spoke with Orrostieta
about Karlie’s yell and the rustling noises. Although Orrostieta
was not direct in his responses, he admitted things between him
and Karlie “got a little physical” when he attempted to force
himself into her bed. Joint Appendix at 12-13, 153, 160, 166.
Orrostieta then exited Karlie’s room and waited in the hallway
while Wiberg went in to check on Karlie. Once in the room,
Wiberg saw Karlie had been crying and that her face was red
and puffy. Karlie informed Wiberg that she wanted Orrostieta
to leave but did not say much else. Wiberg then left Karlie’s
room.
Flexer by her shoulders, threatened her, and forcefully shook
her while demanding to know Karlie’s location.
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Once outside, Orrostieta begged Wiberg to stay on
campus. At that time, Millersville had a policy that if a student
no longer wants their guest on campus, the guest must leave.
Wiberg thus had Orrostieta gather his things from Karlie’s
room and go with her to another resident assistant’s room,
where Wiberg and the other resident assistant reiterated
Millersville’s guest policy to Orrostieta and ultimately decided
to call Millersville University Police to assist in his removal.
After receiving a call about a subject refusing to leave
campus, Millersville police officer Brian Liddick arrived at
Bard Hall. Once there, Liddick spoke with Orrostieta, who
Wiberg recalls was “very persistent on not leaving” and “still
very upset.” Joint Appendix at 13, 153, 161, 166. Orrostieta
explained to Liddick that he had not touched or hit Karlie, and
that he did not have a ride home. Liddick then contacted
Orrostieta’s friend to arrange for a pickup and drove Orrostieta
to a nearby gas station. Despite taking notes on his interactions
with Wiberg and Orrostieta, Liddick did not create an incident
report immediately after dropping off Orrostieta. Liddick’s
incident report for this event was made on February 11, 2015,
at the direction of a supervisor in the wake of Karlie’s murder.
Following Orrostieta’s removal from campus, Wiberg
repeatedly returned to Karlie’s room to check on Karlie. At one
point in the evening, Flexer recalls Wiberg observing Karlie’s
injury and getting an ice pack for Karlie’s face. After she
finished checking on Karlie, Wiberg drafted an incident report
pursuant to her duties as a resident assistant and to fulfil her
obligations under Millersville’s Title IX policy, which required
that a report be made after observing an incident of domestic
or dating violence. Wiberg’s report included a general
description of the events that transpired between Karlie and
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Orrostieta between the evening of October 4th and early
morning hours of October 5th. Wiberg’s incident report was
received by Ron Wiafe, Millersville’s Assistant Director of
Judicial Affairs and Deputy Title IX Coordinator, as well as
Alison Sehl, the Area Coordinator at Millersville. Wiafe
looked over Wiberg’s report and then filed it away. Sehl did
not forward Wiberg’s report and did not discuss it with anyone
until after Karlie’s murder.
After Wiberg left, Flexer returned to the dorm room and
spoke with Karlie alone. Karlie initially kept her back to
Flexer, but Flexer eventually noticed that “there was something
weird with her eye” because it “was really red.” Joint Appendix
at 13-14, 154, 161. When Flexer asked her what happened,
Karlie stated Orrostieta had pressed the heel of his hand on
Karlie’s eye and had pushed her down into a pillow. Flexer
doubted this story and believed that Orrostieta had hit Karlie,
rather than merely pushed her. For that reason, the next day
Flexer called her mother, Renea Flexer, and described Karlie’s
injury and what she had observed between Karlie and
Orrostieta. Renea then called Millersville University Police,
Millersville counseling department, and Alison Sehl to report
Karlie’s domestic assault and black eye. Each time Renea
called she was told that nothing could be done without a
complaining witness.
Karlie tried to hide her injury from others in the week
following the October 4th incident. During that week, Karlie
avoided her sister Kristen, she rarely left her room, and she
missed class.
C. Karlie and Orrostieta’s Relationship post October 4th
and Karlie’s Murder
8
In the aftermath of the October 4th incident, Karlie and
Orrostieta’s relationship was “on again, off again.” Joint
Appendix at 155, 162. They were still dating as of
Thanksgiving 2014, and Orrostieta lived with Karlie at Jeanette
Hall’s house while Karlie was there during her winter break.
At some point during this winter break, Karlie and Orrostieta
returned to her dorm room in Bard Hall and were discovered
by Wiberg. Although Karlie was allowed to be at Bard Hall,
Millersville policy did not allow dorm room guests over winter
break, and so Wiberg had Orrostieta removed.
At the end of the break, Karlie returned to Millersville
to begin her second semester. Shortly thereafter, on February
7th, 2015, Karlie attended an Acacia fraternity party with
Orrostieta and a group of friends. Karlie and Orrostieta fought
during the party, though they later returned to her room in Bard
Hall together. After Karlie and Orrostieta returned, other
residents of Bard Hall heard the sounds of furniture moving in
Karlie’s room, as well as the sound of a female voice screaming
for help. In response to these sounds, Wiberg knocked on
Karlie’s door but heard nothing and did not further pursue the
matter. That night Orrostieta killed Karlie through
“strangulation and multiple traumatic injuries,” and potentially
sexually assaulted her. Joint Appendix at 16, 157, 163-64.
After police investigation, Orrostieta was arrested and later
convicted of third-degree murder.
D. Relevant Millersville Policies
Throughout Karlie’s enrollment, Millersville
maintained a Title IX Policy. This policy covered all areas of
Millersville operations, programs, and sites, and included the
conduct of employees, students, visitors/third parties, and
9
applicants. This policy defined sexual misconduct to include
dating and domestic violence, and any conduct constituting
sexual misconduct under this policy was considered a violation
of Title IX.
Pursuant to Millersville’s Title IX Policy, any Deputy
Title IX Coordinator or Area Coordinator was required to
report any instance of sexual misconduct to the Title IX
Coordinator or other designated employee and ensure that the
report was actually received. Under this policy, Wiafe and
Sehl, as Deputy Title IX Coordinator and Area Coordinator,
respectively, were thus required to forward Wiberg’s report to
Millersville’s Title IX Coordinator and ensure its receipt.
Neither did so. Millersville’s Title IX Policy also required that
victims of domestic or dating violence on campus be contacted
by someone at Millersville. Karlie was not contacted by
someone at Millersville after Wiberg’s report of the October
4th incident.
Outside of its Title IX Policy, Millersville also
maintained policies for controlling who was allowed on its
campus. For example, Millersville had a guest policy that
required overnight guests, such as Orrostieta, to check in with
a student employee at the entrance of any dormitory, sign a
logbook, and leave a form of identification during their stay.
The same guest policy also stated that no individual guest was
permitted to stay in a dormitory for more than three
consecutive days, or eight total days in one month. Millersville
also controlled who entered its residence halls by limiting
access to those with a student identification card and by
requiring that visitors and students not assigned to a designated
residence hall be escorted by a valid resident. Additionally,
Millersville had the ability to issue “No Trespass Orders,”
10
which would ban individuals from being on Millersville’s
campus.
II. JURISDICTION & STANDARD OF REVIEW
The District Court had subject-matter jurisdiction under
28 U.S.C. § 1331. We have appellate jurisdiction under 28
U.S.C. § 1291.
Our review of the District Court’s grant of summary
judgment is plenary. Dempsey v. Bucknell Univ., 834 F.3d 457,
467 (3d Cir. 2016). Moreover, our review of the District
Court’s legal rulings is de novo. Shelton v. Bledsoe, 775 F.3d
554, 559 (3d Cir. 2015). In reviewing the summary judgment
record, we apply the same standard as the District Court. Id. To
prevail on a motion for summary judgment, the moving party
must demonstrate “that 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). Because the Halls were the
nonmoving party, we must review the record in the light most
favorable to them and draw all reasonable inferences in their
favor. Shelton, 775 F.3d at 559.
III. DISCUSSION
A. Notice of Liability
The first issue we must address is whether, as a matter
of law, Millersville could not be held liable under Title IX
because it lacked notice that its deliberate indifference to
sexual harassment perpetrated by a non-student guest could
result in Title IX liability.
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The District Court determined Millersville lacked the
requisite notice because neither this Court nor the Supreme
Court had extended Title IX liability to situations in which a
federal funding recipient was deliberately indifferent to sexual
harassment committed by a student’s non-student guest. In
reaching this holding, the District Court reviewed Title IX’s
regulatory scheme, state common law, and Title IX guidance
materials published by the Office for Civil Rights. The District
Court found that, at most, these materials “put educational
institutions on notice that they face potential liability for the
misconduct of their students or other parties whom they play a
critical role in connecting with the student, e.g., a work-study
program, a student loan agency, or a school-invited athlete or
speaker.” Joint Appendix at 57. As Orrostieta was a non-
student guest invited by Karlie and not by Millersville,
however, the District Court concluded these materials did not
provide Millersville with sufficient notice to support a cause of
action under Title IX.
On appeal, Millersville maintains the District Court
correctly decided this issue because no court has extended Title
IX liability to instances of sexual harassment committed by a
student’s non-student guest, and neither Title IX nor any
administrative guidance materials contemplate Title IX
liability for the same. The Halls, on the other hand, contend the
District Court’s holding was error. They argue the Supreme
Court has already established that federal funding recipients
such as Millersville could face Title IX liability for their
deliberate indifference to harassment committed by third
parties, so long as the recipient has control over the harasser
and context of harassment. The Halls thus maintain the District
Court erred by categorically rejecting liability because of
Orrostieta’s status as a non-student guest, rather than analyzing
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Millersville’s control over both Orrostieta and the context of
Karlie’s harassment. After a careful review of the record,
precedent, and the parties’ briefing, we agree with the Halls.
Title IX provides that “[n]o person in the United States
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). To enforce this prohibition
on intentional sex-based discrimination, the Supreme Court
has recognized that Title IX implies a private right of action
and that monetary damages are available in such suits. Jackson
v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005); see
Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992).
Because Title IX is legislation enacted pursuant to Congress’s
authority under the spending clause, however, “private
damages actions are available only where recipients of federal
funding had adequate notice that they could be liable for the
conduct at issue.” Davis ex rel. v. Monroe Cnty. Bd. of Educ.,
526 U.S. 629, 640 (1999). “When Congress enacts legislation
under its spending power, that legislation is ‘in the nature of a
contract: in return for federal funds, the States agree to comply
with federally imposed conditions.’” Jackson, 544 U.S. at 181-
82 (quoting Pennhurst State Sch. and Hosp. v. Halderman, 451
U.S. 1, 17 (1981)). Where the State is unaware of the
conditions or unable to ascertain what is expected of it, there
can be no knowing acceptance. Pennhurst, 451 U.S. at 17.
Accordingly, if the federal funding recipient lacks notice it
could be held liable for certain conduct, an implied right of
action under Title IX will not lie under Pennhurst.
Pennhurst’s notice requirement “does not bar a private
damages action under Title IX where the funding recipient
13
engages in intentional conduct that violates the clear terms of
the statute.” Davis, 526 U.S. at 642. This is because Title IX’s
plain language unquestionably places a duty on funding
recipients to not discriminate based on sex, and as such, the
text of Title IX gives recipients notice that intentional
discrimination will result in liability under the statute.
Franklin, 503 U.S. at 74-75; see also Jackson, 544 U.S. at 182.
It is for this reason that the Supreme Court has, throughout its
Title IX jurisprudence, rejected arguments that Pennhurst bars
a particular plaintiff’s cause of action after finding that a
funding recipient’s conduct constituted an intentional violation
of Title IX.
Take Gebser, for example, where the Supreme Court
dealt with whether an implied right of action for monetary
damages under Title IX could lie for a teacher’s sexual
harassment of a student. Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 277 (1998). There, the appellant argued that
federal funding recipients could be subject to monetary
liability under Title IX for their employees’ sexual harassment
under theories of respondeat superior and constructive notice.
Id. at 282-83. The Supreme Court rejected these arguments
under Pennhurst, however, noting that “[i]f a school district’s
liability for a teacher’s sexual harassment rests on principles of
constructive notice or respondeat superior, it will likewise be
the case that the recipient of funds was unaware of the
discrimination.” Id. at 287. Without awareness or actual
knowledge of discrimination, the funding recipient could not
have intentionally violated the clear terms of Title IX, and thus
the terms of Title IX could not have provided adequate notice.
Id. at 288. That said, the Supreme Court determined that a
private right of action for monetary damages under Title IX
based on a teacher’s sexual harassment could lie, albeit in
14
limited circumstances where the funding recipient was aware
of the discrimination, had authority to address it, but remained
deliberately indifferent. Id. at 290-91. When these
circumstances were present, the Court found, a funding
recipient intentionally acted in violation of Title IX’s terms.
Id.; see also Davis, 526 U.S. at 642-43 (explaining the
Supreme Court’s holding in Gebser).
Next, in Davis, the Supreme Court held that Pennhurst
did not bar a plaintiff’s cause of action for a funding recipient’s
deliberate indifference to student-on-student sexual
harassment. Davis, 526 U.S. at 639-44. On appeal, the funding
recipient argued that Pennhurst barred such a cause of action
because Title IX provided no notice that funding recipients
could face monetary liability for harm arising from student-on-
student harassment. Id. at 640. The Supreme Court disagreed.
Id. at 640-649. Tracing its Title IX jurisprudence, the Supreme
Court reiterated that Pennhurst did not bar a private damages
action under Title IX where the funding recipient engages in
intentional conduct that violates the clear terms of the statute.
Id. at 642 (citing Franklin, 503 U.S. at 74-75). Thus, to
determine whether the Pennhurst notice requirement applied in
Davis, the Supreme Court had to ascertain whether the funding
recipient’s conduct—deliberate indifference to known student-
on-student harassment—constituted an intentional violation of
Title IX. Id. at 643. The Supreme Court found that it did, but
only in limited circumstances where the recipient had control
over the harasser and the context of harassment. Id. at 645. This
control was necessary because without it a funding recipient’s
deliberate indifference could not “subject” its students to
harassment in violation of Title IX’s plain terms. Id. at 643-46.
Ultimately, then, because the Supreme Court determined that
the funding recipient’s alleged deliberate indifference
15
constituted an intentional violation of Title IX’s terms, the
Court determined that Pennhurst did not apply and that the
recipient had adequate notice of liability. Id.Lastly, in Jackson the Supreme Court held that
Pennhurst did not bar a plaintiff’s Title IX claim for retaliation
because the defendant’s conduct constituted an intentional
violation of Title IX’s terms. Jackson, 544 U.S. at 183. Much
like the funding recipient in Davis, the recipient in Jackson
argued that Pennhurst precluded liability for a retaliation claim
since the recipient lacked notice it could be held liable for
retaliating against those who complain of Title IX violations.
Id. at 182. And much like in Davis, the Supreme Court
disagreed. Id. Because retaliation is “intentional conduct that
violates the clear terms of the statute,” Pennhurst did not apply
as “Title IX itself therefore supplied sufficient notice.” Id. at
183.
Against this backdrop, and for the reasons we set forth
herein, we conclude that the District Court erred in holding that
Millersville lacked adequate notice of liability that it could be
held monetarily liable under Title IX for its deliberate
indifference to a nonstudent’s conduct. The Supreme Court
made clear in Davis that a funding recipient may be liable for
acts of sexual harassment by individuals other than students.
526 U.S. at 643-46. Though Davis concerned only deliberate
indifference to known student-on-student harassment, the
Court’s holding was not based upon the classification of the
harasser as a student, guest, or other type of third party. See
also Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170(10th Cir. 2007) (nonstudent football recruits). Instead, the
Court’s focus was on whether the funding recipient had control
over the harasser and the context of the harassment since the
16
funding recipient can only “subject” students to discrimination
under Title IX if it has control over the harasser and remains
deliberately indifferent to the harasser’s actions. Davis, 526
U.S. at 644-46.
The record shows that Millersville knew, and intended,
for its Title IX policies to apply to nonstudents. Millersville’s
2014 Title IX policy, which was in place while Karlie was
enrolled, defined sexual misconduct to include sexual assault
and intimate partner/dating violence, and also required that
incidents of sexual misconduct be reported to Millersville’s
Title IX Coordinator. More importantly, as admitted by
Millersville’s corporate designee, this policy “cover[ed] all
areas of University operations, programs, sites, and include[d]
the conduct of employees, students, visitors/third parties, and
applicants.” District Court Docket No. 148-20, Deposition of
Elizabeth Swantek, 37:5-39:16. Millersville also believed that
sexual misconduct as defined in its 2014 Title IX policy
violated Title IX. Millersville’s own Title IX policy thus
contemplated Title IX liability could result from the actions of
third parties such as “visitors” like Orrostieta. Although we do
not rely on Millersville’s 2014 Title IX policy for our holding
or as an indicium of congressional notice, “we do find support
for our reading of Title IX in the fact that [Millersville itself]
rendered an analogous interpretation.” Davis, 526 U.S. at 647.
We find additional support for our holding in the same
Office for Civil Rights guidance materials considered by the
District Court. Throughout, the Office for Civil Rights explains
that sexual harassment by third parties could result in liability.
See e.g., Office for Civil Rights; Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students,
or Third Parties, 62 Fed. Reg. 12034-01 (Mar. 13, 1997) (“The
17
Office for Civil Rights has long recognized that sexual
harassment of students engaged in by school employees, other
students, or third parties, is covered by Title IX.”); id. at 12038(“Sexually harassing conduct . . . by an employee, by another
student, or by a third party. . . .”); id. at 12039 (“Title IX
protects any ‘person’ from sex discrimination; accordingly
both male and female students are protected from sexual
harassment engaged in by a school’s employees, other
students, or third parties.”).
Despite these clear references to liability resulting from
third-party harassment, the District Court focused solely on the
section that states “[s]exually harassing conduct of third
parties, who are not themselves employees or students at the
school (e.g., a visiting speaker or members of a visiting athletic
club) can also cause a sexually hostile environment in school
programs or activities.” Id. at 12040. Given this language, the
District Court concluded that, at most, funding recipients had
notice they could face liability from harassment committed by
parties that the university had invited, like a visiting athlete or
professor. We believe this reading was error. Because the
“visiting speaker or members of a visiting athletic club”
language was preceded by an “e.g.” it should be read as a list
of illustrative examples, not an exhaustive list of all third
parties whose harassment creates liability. Antonin Scalia &
Bryan A. Garner, Reading Law (2012), at 132; Andrew M. v.
Del. Cnty. Office of Mental Health & Mental Retardation, 490
F.3d 337, 347 (3d Cir. 2007) (“Clearly this list of examples is
not exclusive, hence the ‘e.g.’”). The District Court’s
interpretation of this language is also belied by other sections
of the guidance. In the section subtitled “Application of
Guidance to Harassment by Third Parties” the Office for Civil
Rights notes that “[s]everal commenters stated that it was
18
unclear whether the Guidance applies if a student alleges
harassment by a third party, i.e., by someone who is not an
employee at the school.” Office for Civil Rights; Sexual
Harassment Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties, 62 Fed. Reg. at
12036. The Office of Civil Rights addressed these comments,
explaining:
The Guidance clarifies that the principles
in the Guidance apply to situations in
which, for example, a student alleges that
harassment by a visiting professional
speaker or members of a visiting athletic
team created a sexually hostile
environment. . . . The applicable
standards have not changed, but the final
Guidance clarifies that the same standards
also apply if adults who are not employees
or agents of the school engage in
harassment of students.
Id. (emphasis added). Although our holding does not depend
on these guidance materials, taken together these materials
should have given Millersville sufficient notice that third-party
harassment fell within the scope of Title IX’s proscriptions.
Further support for our holding today can be found in
the Title IX decisions of other Circuit Courts of Appeals. While
none of our sister circuits have addressed the issue raised on
appeal here, they have consistently held that Pennhurst does
not bar suit when a funding recipient intentionally violates
Title IX’s plain terms. See e.g., Parker v. Franklin Cnty. Cmty.
Sch. Corp., 667 F.3d 910, 920-21 (7th Cir. 2012); Doe v.
19
Edgewood Indep. Sch. Dist., 964 F.3d 351, 358 (5th Cir. 2020)
(“Title IX is contractual in nature, not banning discrimination
outright but conditioning an offer of federal funding on a
promise by the recipient not to discriminate. Put simply, there
are strings attached. And if a school that receives federal
funding violates the no sex discrimination condition, it may be
held liable for money damages.”) (quotations and footnotes
omitted). As such, the Title IX decisions of our sister circuits
have often analyzed the alleged conduct of funding recipients
to determine whether their conduct constitutes an intentional
violation of Title IX’s terms. See, e.g., Doe v. Fairfax Cnty.
Sch. Bd., 10 F.4th 406, 410-412 (4th Cir. 2021) (Wynn, J.
concurring) (addressing dissent’s argument that Pennhurst
barred liability because Title IX did not provide notice of
liability for pre-notice sexual harassment, and explaining that
a funding recipient’s failure to respond after learning of a
single incident of sexual assault can “subject” a student to
discrimination in violation of Title IX’s plain terms, and thus
the text of Title IX provided sufficient notice).
As a final note, we write to address Millersville’s
argument that our holding here will open the floodgates and
subject universities to unwarranted liability under Title IX for
“anyone’s on-campus conduct resulting in the disruption or
outright destruction of a student’s pursuit of her education.”
Brief of Appellee at 36. While we recognize that this is a valid
policy concern, the Supreme Court’s holding in Davis
forecloses Millersville’s worry. To be liable under Title IX, the
university would have to have “substantial control over both
the harasser and the context in which the known harassment
occurs.” Davis, 526 U.S. at 645. Moreover, the university
would have to know of the harassment and ultimately respond
in a manner that is “clearly unreasonable.” Id. at 648-49. We
20
do not think it is likely that a university would have substantial
control over any random third party who wanders onto an open
campus and harasses students, nor it is likely that a university
would have substantial control over all aspects of a campus
which is open to the public. Id. at 649 (“A university might not,
for example, be expected to exercise the same degree of control
over its students that a grade school would enjoy.”). Even if the
university had such control, however, if the university is not
made aware of the third-party harassment or responds in a
manner that is not clearly unreasonable, it will not face
liability. Put simply, there is a high bar to establish liability for
deliberate indifference under Title IX, and our holding today
does little to lower that bar.
B. Summary Judgment Evidence
Having found that Millersville had adequate notice of
liability, we next turn our attention to the other issue raised on
appeal: whether the trial court erred in finding that genuine
issues of material fact existed for each element of the Halls’
deliberate indifference claim. The Halls contend the District
Court got this issue right, and that the summary judgment
record fully supports the District Court’s holding. Millersville
disagrees and argues that the summary judgment record
supports granting summary judgment in Millersville’s favor,
because Millersville lacked control over Orrostieta and
Karlie’s dorm room, and its actions did not constitute
deliberate indifference. Moreover, Millersville asserts the
District Court should not have even decided this issue and
should have stopped its opinion as soon as it concluded that
Millersville lacked notice of liability.
To prevail on their Title IX claim, the Halls must show:
21
1) Millersville received federal funds;
2) sexual harassment occurred;
3) Millersville exercised substantial
control over the harasser and the context
in which the harassment occurred;
4) Millersville had actual knowledge of
the harassment;
5) Millersville was deliberately
indifferent to the harassment; and
6) the harassment was so severe,
pervasive, and objectively offensive that
it deprived Karlie Hall of her access to the
educational opportunities or benefits
provided by the school.
See Davis, 526 U.S. at 645-650. Here, there is no question that
Millersville receives federal funding and that Orrostieta’s
conduct constituted sexual harassment, and neither party
claims otherwise. Brief of Appellee, 20 n. 16. Accordingly, to
defeat Millersville’s motion for summary judgment, the Halls
needed to show there were genuine issues of material fact as to
the remaining elements. We find that the Halls have done so.
i. Millersville’s Control over Orrostieta and Bard Hall
To start, we find there is sufficient evidence in the
record to raise a genuine issue of material fact as to whether
Millersville exercised substantial control over Orrostieta and
the context in which Karlie’s harassment occurred. The record
shows that Millersville maintained guest policies for its
dormitories, which put rules in place for when guests like
Orrostieta were allowed to stay overnight in Millersville’s
22
dorms.2 Moreover, the record reveals that Millersville relied on
these policies to justify exercising some control over Orrostieta
when removing him from Bard Hall on multiple occasions:
once after Karlie stated she wanted Orrostieta to leave on
October 5th, and again after he was caught on campus with
Karlie during her winter break. The record further discloses
that Millersville had the ability to issue “No Trespass Orders”
to keep third parties off of its campus, though the efficacy of
such orders is in dispute.
Nevertheless, Millersville argues that it is entitled to
summary judgment on this element because Orrostieta’s status
as a non-student meant Millersville lacked jurisdiction over
him, and thus he could not be subjected to formal disciplinary
action. This argument misses the mark. Whether Millersville
had control over Orrostieta is not a limited inquiry into
2
We recognize the record shows that Orrostieta may have
bypassed these policies on previous occasions, given that
Karlie had allowed him to enter through a rear entrance.
Nothing in the record shows that Orrostieta entered through
that rear entrance on October 4th, or the night Karlie was
murdered, however. Moreover, while this evidence may cut
against the Hall’s claim that Millersville maintained control
over Orrostieta and the context of Karlie’s harassment, it alone
does not convince us that summary judgment for Millersville
is proper. Our purview is to determine if there is a genuine
dispute of material fact on an issue, not to weigh the evidence
and act as a fact finder. Boyle v. Cnty. of Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) As there is
evidence suggesting Millersville had control, this issue is best
left for the jury.
23
Millersville’s formal disciplinary authority, but a broader
examination of the degree of control Millersville had over him
and its ability to “take remedial action.” Davis, 526 U.S. at 644.
Even assuming that formal disciplinary authority is required,
however, we cannot find in Millersville’s favor. Millersville
relied on its own policies to remove Orrostieta on two separate
occasions, and it had the authority to issue a “No Trespass
Order,” which Millersville admits “can be issued against
anyone, and is meant to prevent the individual in question from
accessing a specified location or the entire campus.” Brief of
Appellee at 45. Given these facts, we conclude there is at least
a genuine issue of material fact as to Millersville’s control over
Orrostieta.3
Millersville also asserts that it is entitled to summary
judgment on this element because it lacked control over the
context of Karlie’s harassment, since it occurred in her private
dorm room. As to this argument, we agree with the District
Court. This case does not concern Karlie’s privacy; it concerns
the control Millersville had over the context of Karlie’s
harassment. Here, the record is replete with evidence sufficient
3
In its briefing, Millersville recognizes that Title IX liability
may arise in situations involving visiting speakers, visiting
athletes, and other third parties who are “official guests of the
school or college, or otherwise on the premises for a school-
related purpose.” Brief of Appellee at 31. This admission
further cuts against Millersville’s argument that it lacked
control over Orrostieta due to a lack of formal disciplinary
authority. We fail to see how a school’s formal disciplinary
authority could extend to these parties, who are neither
employees nor students of the school, but at the same time fail
to extend to a third party guest of a student.
24
to raise a genuine issue of fact as to Millersville’s control over
its campus, which includes Karlie’s dorm room in Bard Hall.
Additionally, Millersville cites to Swanger v. Warrior
Run Sch. Dist., 346 F. Supp. 3d 689 (M.D. Pa. 2018) to support
its argument that the control needed to establish a deliberate
indifference claim under Title IX is a causation requirement
not met in this case. We disagree. The causation requirement
mentioned in Swanger is nothing more than a restatement of
the Supreme Court’s holding in Davis. Id. at 705-06.
Moreover, the holding in Swanger was not based on causation,
but was instead based on the district court’s conclusion that the
school district in Swanger had acted in a manner that was not
clearly unreasonable. Id. at 706. In short, Swanger does not
change our analysis or alter our consideration of the record,
which we must construe in the Halls’ favor, and which we find
demonstrates a genuine dispute of material fact as to
Millersville’s control over Orrostieta and the context of
Karlie’s harassment.4
4
We similarly disagree with Millersville’s claim that “it is
impossible to infer any causal connection between the October
4 events . . . and Karlie’s murder,” as well as Millersville’s tacit
attempt to shift the blame to Jeanette Hall for failing to notice
Karlie’s abuse while Orrostieta lived with Karlie. Brief of
Appellee at 46. Millersville seems to think the discussion of
causation in Swanger means that Millersville could only face
liability if its actions were the direct cause of Karlie’s murder.
This is an incorrect understanding of Title IX. Millersville may
face liability under Title IX for deliberate indifference that
results in a student being excluded from participation in, being
denied the benefits of, or being subjected to discrimination
under its programs. 20 U.S.C. § 1681(a). The question is thus
25
ii. Actual Notice
The record also leads us to conclude that there is a
genuine issue of fact as to whether Millersville had actual
notice of Karlie’s harassment. To establish liability for
deliberate indifference under Title IX, a plaintiff must show
that an “appropriate person” had actual notice of harassment.
Gebser, 524 U.S. at 290. An appropriate person is “at a
minimum, an official of the recipient entity with authority to
take corrective action to end the discrimination.” Id. Moreover,
this Court has held that an educational institution has actual
notice of harassment if the institution “knows the underlying
facts, indicating sufficiently substantial danger to students, and
was therefore aware of the danger.” Bostic v. Smyrna Sch.
Dist., 418 F.3d 355, 361 (3d Cir. 2005) (quoting 3C Fed. Jury
Prac. & Instr. § 177.36 (5th ed. 2001)). Here, based on the
record before us, we find that a jury could reasonably conclude
that appropriate persons at Millersville had actual notice of
Karlie’s harassment.
In particular, the record shows that the abuse and danger
Karlie faced from Orrostieta were reported to several persons
at Millersville who had some authority to take corrective action
not whether Millersville’s alleged deliberate indifference
caused Karlie’s murder, but whether its deliberate indifference
to her harassment resulted in her being excluded from
participation in, denied the benefits of, or subjected to
discrimination under Millersville’s education program. Given
the record, we conclude that it is, in fact, possible for a jury to
infer such a connection.
26
in this case. For starters, Karlie’s harassment was reported to,
and by, her resident assistant Sara Wiberg, who described
Karlie’s harassment in the report she drafted after the October
4th incident. This report stated that Wiberg heard Karlie
“scream and yell ‘ow’” and that when Orrostieta answered the
door, he admitted that things between him and Karlie “got a
little physical.” District Court Docket No. 147-11. Wiberg’s
report was sent to Millersville’s Deputy Title IX Coordinator,
who had the responsibility to investigate reports of sexual
misconduct, and who was required under Millersville’s Title
IX policy to ensure the report was received by Millersville’s
Title IX Coordinator. The report also was received by
Millersville’s Area Coordinator, Alison Sehl, who was
similarly required under Millersville’s Title IX policy to
forward the report to the Title IX Coordinator and ensure it was
received. In addition, after Tina Flexer informed her mother of
Karlie’s abuse, Renea Flexer called Millersville Police
Department, Millersville Counseling, and Area Coordinator
Alison Sehl about Karlie. During these calls, Renea conveyed
that Karlie had been injured in a domestic assault with
Orrostieta and that she had a visible black and blue eye.
Viewing these facts in the light most favorable to the Halls, we
cannot agree with Millersville that it is entitled to summary
judgment on this element. These facts at least establish a
genuine dispute as to whether Millersville had actual notice, if
not prove that Millersville had notice as a matter of law.
iii. Deliberate Indifference
The next element of the Halls’ deliberate indifference
claim we consider is whether Millersville University was
deliberately indifferent to Karlie’s harassment. In Davis, the
Supreme Court expounded upon the deliberate indifference
27
standard explaining that it is not a mere reasonableness
standard and that to avoid liability a funding recipient must
simply respond to known harassment in a manner “that is not
clearly unreasonable.” Davis, 526 U.S. at 649. Here, the record
leads us to conclude there is at least a genuine issue of fact as
to whether Millersville’s conduct constituted deliberate
indifference.
The record shows that after receiving Wiberg’s report,
neither Millersville’s Deputy Title IX Coordinator nor its Area
Coordinator ensured the report was received by Millersville’s
Title IX Coordinator, as they were required to do under
Millersville’s own Title IX policy. Moreover, the record
reveals Millersville did not reach out to Karlie after the October
4th incident, and that it did not take any action in response to
Renea’s calls other than to tell her nothing could be done
without a complaining witness. Certainly, Millersville’s
inaction in response to these reports raises a genuine issue of
fact best left for a jury.
Despite this, Millersville maintains there is no question
of fact on this element. First, Millersville contends that it did
not just do “nothing” in response to Karlie’s abuse because the
night of the October 4th incident Wiberg got Orrostieta out of
Karlie’s room. Brief of Appellee at 44. Second, Millersville
maintains that its actions in the wake of Wiberg’s report and
Renea Flexer’s calls were mere negligence or bureaucratic
inaction, which cannot amount to deliberate indifference.
Millersville’s arguments are unpersuasive. Though Wiberg’s
removal of Orrostieta the night of October 4th “took care of the
immediate problem,” Brief of Appellee at 44, we cannot say
this alone establishes Millersville’s response to Karlie’s abuse
was not clearly unreasonable as a matter of law. A reasonable
28
jury could still conclude Millersville acted with deliberate
indifference due to its inaction in response to Wiberg’s
subsequent incident report or Renea Flexer’s calls, as well as
its failure to generate a police report regarding Orrostieta’s
removal until after Karlie’s death.
Nor can we conclude that Millersville’s response to
Karlie’s harassment constituted mere negligence or
bureaucratic inaction. Millersville’s Deputy Title IX
Coordinator Ron Wiafe admits that after receiving Wiberg’s
report, he did not follow Millersville’s own Title IX policy and
forward the report to the Title IX coordinator. Instead, Wiafe
made the decision to not report the October 4th incident to the
Title IX Coordinator and simply filed Wiberg’s incident report
away. Similarly, Millersville’s Area Coordinator Alison Sehl
admits that after receiving Wiberg’s incident report, she neither
forwarded it to the Title IX Coordinator nor discussed the
report with anyone until after Karlie’s murder. And, as
previously explained, after Millersville Police Department,
Millersville Counseling, and Area Coordinator Alison Sehl
were separately called by Renea Flexer to discuss Karlie’s
abuse, each informed Renea that nothing could be done, and
each decided to take no further action. When viewed in the
light most favorable to the Halls, we simply cannot say this
evidence proves that Millersville’s response to Karlie’s
harassment was mere negligence. For the same reasons, we
cannot conclude that the conduct of Wiafe, Sehl, and other
Millersville personnel in response to reports of Karlie’s
harassment did not constitute an official decision to not remedy
Karlie’s harassment. Gebser, 524 U.S. at 290. At the very least,
this evidence establishes an issue of fact for the jury.
iv. Severity of Karlie’s Harassment
29
The final element of the Halls’ deliberate indifference
claim we must consider is whether Karlie’s harassment was
sufficiently severe and pervasive so as to deprive Karlie the
benefit of her education. At a minimum, the record here
establishes a genuine dispute of fact, as evidence indicates that
in the wake of the October 4th incident, Karlie rarely left her
room and missed class. Additionally, as the District Court
correctly pointed out, a jury could consider Karlie’s death
when evaluating this element. We thus agree with the District
Court that, given these facts, a jury could reasonably conclude
that Karlie’s harassment was sufficiently severe.5
***
Altogether, our review of the record convinces us that
the Halls have satisfied their burden to defeat Millersville’s
motion for summary judgment, as there are genuine disputes
of fact as to each element of the Halls’ deliberate indifference
claim. As such, we affirm the portion of the District Court’s
opinion which held that the existence of these genuine disputes
precludes summary judgment in Millersville’s favor.
Nevertheless, because we disagree with the District Court that
Millersville lacked notice, we must reverse. Accordingly, the
judgment of the District Court for the Eastern District of
5
In a footnote, Millersville asserts that Karlie must have been
in good academic standing after her first semester, and the
October 4th incident, because she returned to Millersville for
her second semester. Brief of Appellee at 10, n.12. While this
may be true, it does not establish that Millersville has
demonstrated that no issues of material fact exist as to the
severity of Karlie’s harassment. At most, it is more evidence to
be weighed by the jury.
30
Pennsylvania is reversed, and this case is remanded for further
proceedings consistent with this opinion.
31