Farmer v. Kansas State University

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 18, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
TESSA FARMER,
Plaintiff - Appellee,
v. No. 17-3207
KANSAS STATE UNIVERSITY,
Defendant - Appellant.
–––––––––––––––––––––––––––––––––––
SARA WECKHORST,
Plaintiff - Appellee,
v. No. 17-3208
KANSAS STATE UNIVERSITY,
Defendant - Appellant.
_________________________________
Appeals from the United States District Court
for the District of Kansas
(D.C. Nos. 2:16-CV-02255-JAR-GEB and 2:16-CV-02256-JAR-GEB)
_________________________________
Derek T. Teeter (Allan V. Hallquist and Michael T. Raupp, with him on the briefs),
Husch Blackwell LLP, Kansas City, Missouri, for Defendant-Appellant.
Jonathon D. Fazzola (Dustin L. Van Dyk, Gary D. White, Jr., and Meaghan M. Girard,
Palmer, Leatherman, White, Girard & Van Dyk, LLP, Topeka, Kansas, and Douglas E.
Fierberg, The Fierberg National Law Group, PLLC, Traverse City, Michigan, with him
on the brief), The Fierberg National Law Group, PLLC, Traverse City, Michigan, for
Plaintiffs-Appellees.
Emily Martin and Neena Chaudhry, National Women’s Law Center, Washington, D.C.;
Sunu Chandy and Alexandra Brodsky, of counsel; and Seanna R. Brown, Maximillian S.
Shifrin and Tiffany A. Miao, Baker & Hostetler, LLP, New York, New York, on the brief
for Amici Curiae.
_________________________________
Before MATHESON, EBEL, and EID, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
Congress, through Title IX, bans discrimination on the basis of sex in
education programs receiving federal funding. Plaintiffs, two students at Kansas
State University (“KSU”), allege that KSU, a recipient of federal educational funds,
violated Title IX by being deliberately indifferent to reports it received of student-on-
student sexual harassment which, in this case, involved rape. Often Title IX
plaintiffs allege that a funding recipient’s deliberate indifference to prior reports of
rape caused the plaintiff subsequently to be raped or assaulted. But that is not the
claim Plaintiffs assert here. Instead, they allege that KSU violated Title IX’s ban
against sex discrimination by being deliberately indifferent after Plaintiffs reported to
KSU that other students had raped them, and that deliberate indifference caused
Plaintiffs subsequently to be deprived of educational benefits that were available to
other students. At the procedural posture presented by these interlocutory appeals,
which address the denial of KSU’s motions to dismiss, we accept as true Plaintiffs’
factual allegations indicating that KSU was deliberately indifferent to their rape
reports. That is not being challenged in these appeals. Accepting, then, that KSU
2
was deliberately indifferent, the narrow legal question presented here involves the
element of causation: what harm must Plaintiffs allege that KSU’s deliberate
indifference caused them?
KSU contends that, in order to state a Title IX claim, Plaintiffs must allege
that the university’s deliberate indifference caused each of them to undergo further
incidents of actual harassment by other students. Plaintiffs assert, instead, that they
state a viable Title IX claim by alleging that KSU’s deliberate indifference to their
reports of rape caused them to be vulnerable to further harassment, which in turn
deprived them of the educational opportunities that KSU offers its students.
The Supreme Court has already answered the legal question presented here,
ruling, as Plaintiffs allege, that a funding recipient’s “deliberate indifference must, at
a minimum, cause students to undergo harassment or make them liable or vulnerable
to it.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 644-45
(1999) (alterations, internal quotation marks omitted) (emphasis added).
We conclude that, in this case, Plaintiffs have sufficiently alleged that KSU’s
deliberate indifference made each of them “vulnerable to” sexual harassment by
allowing their student-assailants—unchecked and without the school investigating—
to continue attending KSU along with Plaintiffs. This, as Plaintiffs adequately
allege, caused them to withdraw from participating in the educational opportunities
offered by KSU. Having jurisdiction under 28 U.S.C. § 1292(b), therefore, we
AFFIRM the district court’s decision to deny KSU’s Fed. R. Civ. P. 12(b)(6) motions
3
to dismiss Plaintiffs’ Title IX claims. Our ruling, of course, does not address the
merits of the issues in this case which must await further factual development.
I. OVERVIEW OF TITLE IX
We begin with a quick overview of Title IX, 20 U.S.C. §§ 1681-88. With
exceptions not relevant here, 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 . . . .
Id. § 1681(a). Congress enacted Title IX under its spending power, “conditioning an
offer of federal funding on a promise by the recipient not to discriminate, in what
amounts essentially to a contract between the Government and the recipient of
funds.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998). In
enacting Title IX, Congress sought both “to avoid the use of federal resources to
support discriminatory practices” and “to provide individual citizens effective
protection against those practices.” Cannon v. Univ. of Chicago, 441 U.S. 677, 704
(1979).
Title IX is enforceable, not only by federal administrative agencies, but also
through private causes of action, like the cases at issue here, brought by victims of
prohibited sex discrimination against the federal funding recipient. See Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). A funding recipient, however,
“may be liable in damages under Title IX only for its own misconduct.” Davis, 526
U.S. at 640. “The recipient itself must ‘exclud[e] [persons] from participation in, . . .
4
den[y] [persons] the benefits of, or . . . subjec[t] [persons] to discrimination under ‘its
‘program[s] or activit[ies]’ in order to be liable under Title IX.” Id. at 640-41
(quoting 20 U.S.C. § 1681(a)) (alterations added in Davis); see also id. at 640-43.
That point is critical in this case because, although the sex discrimination that
Title IX prohibits can include sexual harassment, see id. at 649-53, the sexual
harassment—rapes—alleged here were committed, not by the recipient KSU, but by
KSU students. In such a situation, the funding recipient can only be liable for its
own deliberately indifferent response to known sexual harassment by students against
other students. See Gebser, 524 U.S. at 291; Davis, 526 U.S. at 640-43. Critically,
“a recipient’s deliberate indifference to one student’s sexual harassment of another
. . . constitute[s] intentional discrimination on the basis of sex” prohibited by Title
IX. Jackson, 544 U.S. at 182 (citing Davis, 526 U.S. at 650).
Here, Plaintiffs base their Title IX claims on KSU’s deliberate indifference
after Plaintiffs reported to KSU that other students had raped them. We accept as
true the allegation that KSU responded with deliberate indifference to Plaintiffs’
reports of rape. Plaintiffs then allege that KSU’s deliberate indifference caused them
to have to continue attending KSU with the student-rapists potentially emboldened by
the indifference expressed by KSU which, in turn, caused Plaintiffs to withdraw from
participating in educational opportunities that KSU offers and prevented them from
using available KSU resources for fear of encountering the unchecked student-rapists
and other students who knew of the rapes. It is in this way that Plaintiffs allege that
KSU has excluded them “from participation in, den[ied] [them] the benefits of, or
5
subject[ed] [them] to discrimination under its programs or activities.” Davis, 526
U.S. at 640-41 (internal quotation marks, alterations omitted) (quoting 20 U.S.C.
§ 1681(a)).
Although Plaintiffs allege that KSU’s response to their reports of rape was so
deficient as to amount to deliberate indifference, we note that Title IX does not
require a funding recipient to acquiesce in the particular remedial action a victim
seeks. Nor does Title IX prescribe any particular mandatory remedial action. Davis
stress[ed] that [the Court’s] conclusion . . . —that recipients may be liable
for their deliberate indifference to known acts of peer sexual
harassment—does not mean that recipients can avoid liability only by
purging their schools of actionable peer harassment or that administrators
must engage in particular disciplinary action. . . .
. . . [T]he recipient must merely respond to known peer harassment
in a manner that is not clearly unreasonable.
Id. at 648-49 (citations omitted).
II. BACKGROUND
With these general Title IX principles in mind, we consider Plaintiffs’ specific
factual allegations against KSU, accepted as true and viewed in the light most
favorable to Plaintiffs. See Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir.
2018).
A. Plaintiff Tessa Farmer
Plaintiff Farmer alleged the following: In March 2015, she went to a fraternity
party and became very drunk. A designated driver took Farmer back to her dorm
room. At 2:00 a.m., Farmer received a Facebook message from T.R., another KSU
6
student who Farmer knew from high school. T.R. invited Farmer to the fraternity
house where the party was continuing, offering to pick up Farmer and drive her there.
Farmer agreed. T.R. drove to Farmer’s dorm, picked her up and took her to his room
at the fraternity house, where the two had sex. T.R. then left the room, telling Farmer
he was going to start his car, presumably to take her back to her dorm room. After
T.R. left, C.M., another KSU student who was a stranger to Farmer and who had been
hiding in the closet while T.R. and Farmer had sex, emerged from the closet and
raped Farmer. When T.R. returned to the room, he was not surprised by C.M.’s
presence or by Farmer’s being upset and sobbing.
Farmer reported to the Riley County Police Department that C.M. had raped
her. She also reported the rape to the director of the KSU Center for Advocacy,
Response and Education (“CARE”). The CARE director told Farmer that, although
she could report the rape to the KSU Interfraternity Council (“IFC”), the IFC would
not investigate the rape but would only investigate the fraternity chapter more
generally. Farmer, nevertheless, filed a complaint with the IFC; three months later
the IFC responded to Farmer that the fraternity chapter as a whole had not violated
any IFC policies.
Farmer later learned that, contrary to what KSU’s CARE director had told her,
there might be other avenues through which Farmer could complain to KSU about the
rape. In August 2015, Farmer filed a complaint with KSU’s Office of Institutional
Equity, alleging C.M. had violated KSU’s sexual misconduct policy. Farmer was
told, however, that that policy did not cover fraternity houses.
7
Farmer, living in fear that she would run into her attacker, missed classes,
struggled in school, secluded herself from friends, withdrew from KSU activities in
which she had previously taken a leadership role, fell into a deep depression, slept
excessively, and engaged in self-destructive behaviors such as excessive drinking and
slitting her wrist. Farmer alleges that,
[b]y refusing to investigate off-campus sexual assaults at fraternities and
fraternity events, like those [she] endured, K-State makes students like
Tessa [Farmer] more vulnerable to rape because it sends a message to
fraternity members that students can rape other students with no fear of
school disciplinary action. K-State’s practice ignores the reality that
many off-campus sexual assaults adversely impact the on-campus
educational environment for victims, just as it did Tessa’s.
(Aplt. App. 25 ¶ 73.)
B. Plaintiff Sara Weckhorst
Plaintiff Weckhorst alleged that, in April 2014, she attended a fraternity event
at Pillsbury Crossing, “a frequent K-State party location not far from campus.” (Id.
620 ¶ 13.) There, Weckhorst “consum[ed] a large amount of alcohol and blacked
out” while speaking with J.F., another KSU student who was one of the fraternity’s
designated drivers. (Id.) J.F. took the passed-out Weckhorst to his truck and raped
her in front of approximately fifteen other students, some of whom took video and
photographs of the rape which they later posted on social media. J.F. then drove
Weckhorst to the fraternity house. On the way, he again sexually assaulted her. At
the fraternity house, “J.F. took Sara to the ‘sleep room,’ lined with beds, and raped
her again. When he was finished, J.F. left her there, naked and passed out, and joined
other fraternity members in partying downstairs.” (Id. ¶ 15.) Several hours later,
8
Weckhorst awoke to find another student and fraternity member, J.G., raping her.
Weckhorst “made her way out of the bed and to a nearby patio,” but J.G. followed
and raped Weckhorst again. (Id. 621 ¶ 16.)
Weckhorst sought help at the KSU Women’s Center and the Manhattan,
Kansas, Rape Crisis Center. The director of the Women’s Center helped Weckhorst
file a complaint with the KSU Affirmative Action Office. As a result, a KSU
investigator interviewed Weckhorst but told her that KSU “would do nothing about
the rapes or the two student-assailants because the rapes occurred off-campus.” (Id.
622 ¶ 22.) Weckhorst then reported the rapes to the Riley County Police. In the
meantime, the director of the KSU Women’s Center called the two perpetrators and
told them Weckhorst had filed charges against them, which according to the
allegations tipped off “the student-assailants and g[ave] them an opportunity to
coordinate their stories,” in addition to invading Weckhorst’s privacy rights,
exposing her to potential retaliation, compromising her safety, and placing her in
fear. (Id. 624-25 ¶ 33.)
Weckhorst later met with two associate deans for student life at KSU. They
reiterated that KSU would do nothing because the rapes occurred off campus. But
the deans encouraged Weckhorst to file a complaint about the presence of alcohol at
the fraternity party. She did so anonymously and, as a result, KSU’s Interfraternity
Council (“IFC”) suspended the fraternity’s charter.
Weckhorst and her parents continued to ask KSU to investigate the rapes, but
KSU refused. Without permission, one of the associate deans took language from an
9
email received from Weckhorst and filed it as a complaint with KSU’s Office of
Greek Affairs and the IFC. This action “released Sara’s highly sensitive, private
information, including her full name and a detailed description of the multiple rapes,
to student peers on the IFC board without any chance of this action benefitting Sara”
because the Office of Greek Affairs “did not have jurisdiction to punish the student-
assailants, only the fraternity.” (Id. 629 ¶ 48.) Because of this unauthorized release
of information, Weckhorst “has since lived day-to-day not knowing who she might
encounter who knows the details about the nightmare she endured.” (Id. 630 ¶ 48.)1
Moreover, because the alleged perpetrators remained on campus, Weckhorst
alleges she
is always afraid, apprehensive, and hyper-alert, on-campus and off.
Every man who passes her on the sidewalk terrifies her. At least once a
day on-campus, Sara is overcome by panic, anxious that any passing man
could be one of the student-assailants. She is constantly on the lookout
for J.F. Recently, walking to the K-State library she passed a man who
turned toward her. She jumped, screamed, and began to cry. Sara only
uses campus resources like the library when she is joined by friends or
her Chi Omega sorority sisters, and otherwise stayed home to avoid being
alone in a campus setting.
(Id. 637 ¶ 77.) Weckhorst’s grades “plummeted” and she lost her academic
scholarship. (Id. 638 ¶ 79.) She “has exhibited symptoms of post-traumatic
stress disorder,” has nightmares, has distanced herself from family and friends,
1
Although Weckhorst alleges that KSU was deliberately indifferent because it did
very little in response to her reports of rape, she also alleges that some of KSU’s
alleged actions affirmatively caused her additional harm. For example, Weckhorst
alleged that KSU informed the student-rapists that Weckhorst had gone to the police
and KSU, without permission, and had released confidential information about
Weckhorst and the rapes to fellow students.
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and “has decreased her involvement in her sorority and philanthropy and has
turned down leadership opportunities.” (Id. 637 ¶ 78, 638 ¶ 80.) Although she
“wants to continue her K-State education, . . . doing so means facing
emboldened student-assailants who know K-State will protect them and not the
victim of their attacks.” (Id. 637 ¶ 75.) Similar, to Plaintiff Farmer, Plaintiff
Weckhorst alleges that,
[b]y refusing to investigate off-campus sexual assaults at fraternities and
fraternity events, like those Sara [Weckhorst] endured, K-State makes
students, like Sara, more vulnerable to rape because it sends a message to
fraternity members that students can rape other students with no fear of
school disciplinary action. K-State’s practice ignores the reality that
many off-campus sexual assaults adversely impact the on-campus
educational environment for victims, just as it did Sara’s.
(Id. 638-39 ¶ 83.)
C. These cases
Each Plaintiff separately sued KSU, asserting claims under Title IX and state
law. In each case, KSU moved under Fed. R. Civ. P. 12(b)(6) to dismiss all claims.
The district court denied KSU’s motions to dismiss the Title IX claims; that is the
matter now before us on appeal.2
The district court held that each Plaintiff had sufficiently alleged an actionable
Title IX violation. In reaching that conclusion, the district court, citing Davis, 526
U.S. 629, and Rost ex rel. K.C. v. Steamboat Springs RE-2 School District, 511 F.3d
2
The district court dismissed the state-law claims. Those claims are not before us in
these interlocutory appeals.
11
1114, 1119 (10th Cir. 2008), began by noting that, to state a Title IX claim, Plaintiffs
had to allege sex discrimination that occurred within a KSU educational program or
activity; KSU had actual knowledge of, but was deliberately indifferent to, sexual
harassment that was so severe, pervasive and objectively offensive that it deprived
Plaintiffs of access to the educational benefits or opportunities provided by KSU; and
that KSU’s deliberate indifference caused each Plaintiff, at a minimum, to undergo
harassment or made her liable or vulnerable to it. In its motions to dismiss, KSU
argued, among other things, that Plaintiffs had failed to allege that any deliberate
indifference by KSU had caused harm to Plaintiffs that is actionable under Title IX.
The district court rejected that argument and declined to dismiss Plaintiffs’ Title IX
claims.
At KSU’s request, the district court invoked 28 U.S.C. § 1292(b) and
certifie[d] its . . . Memorandum and Order . . . for interlocutory appeal for
determination of the following controlling questions of law: (1) whether
Plaintiff was required to allege, as a distinct element of her Title IX claim,
that KSU’s deliberate indifference caused her to suffer actual further
harassment, rather than alleging that Defendant’s post-assault deliberate
indifference made her ‘liable or vulnerable to’ harassment; and (2) if
Plaintiff is required to plead actual further harassment, whether her
allegations of deprivation of access to educational opportunities satisfy
this pleading requirement.
(Aplt. App. 606; see also id. 1247.) The Tenth Circuit, then, permitted KSU to
pursue these interlocutory appeals presenting these certified questions, see 28 U.S.C.
§ 1292(b), and ordered these appeals consolidated.3
3
In light of the narrow issues presented by these interlocutory appeals pursued under
§ 1292(b), we have no occasion here to address KSU’s contention that the sexual
12
III. STANDARD OF REVIEW
This court reviews de novo the district court’s rulings on KSU’s Fed. R. Civ.
P. 12(b)(6) motions to dismiss, accepting as true all well pled facts and viewing those
facts in the light most favorable to Plaintiffs. See Straub, 909 F.3d at 1287. “To
withstand a motion to dismiss, a complaint must contain enough allegations of fact
‘to state a claim that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
IV. LEGAL DISCUSSION
Accepting, for the purpose of these interlocutory appeals, that Plaintiffs’
factual allegations charge that KSU was deliberately indifferent to their reports that
they had been raped, the narrow question we consider is whether each “Plaintiff was
required to allege, as a distinct element of her Title IX claim, that KSU’s deliberate
indifference caused her to suffer actual further harassment, rather than alleging that
Defendant’s post-assault deliberate indifference made her ‘. . . vulnerable to’
harassment.” (Aplt. App. 606.) KSU asserts that each Plaintiff must allege, as an
element of her Title IX claim, that KSU’s deliberate indifference caused her to be
subjected to actual further harassment by a student. Plaintiffs, instead, contend that it
is sufficient for them to allege that KSU’s deliberate indifference made them
harassment of which Plaintiffs complain did not occur within a KSU program or
activity and, thus, KSU is not responsible for student-on-student sexual harassment
occurring off campus at fraternity parties or in fraternity houses.
13
“vulnerable to” harassment. As explained below, Plaintiffs have the more persuasive
argument and we, therefore, affirm the district court’s decision.
A. It is sufficient for Plaintiffs to allege that KSU’s deliberate indifference made
them “vulnerable to” sexual harassment. Title IX does not require a subsequent
sexual assault before a plaintiff can sue.
The Supreme Court, in Davis, has already answered the legal question
presented here. To explain, we begin with the statutory language. Title IX provides:
[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) (emphasis added). In applying Title IX’s language—“[n]o
person . . . shall, on the basis of sex, . . . be subjected to discrimination . . .”—to a
case involving student-on-student harassment, the Supreme Court ruled:
If a funding recipient does not engage in harassment directly, it may not be
liable for damages unless its deliberate indifference “subject[s]” 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. Random House Dictionary of the English Language 1415
(1966) (defining “subject” as “to cause to undergo the action of something
specified; expose” or “to make liable or vulnerable; lay open; expose”);
Webster's Third New International Dictionary 2275 (1961) (defining
“subject” as “to cause to undergo or submit to: make submit to a particular
action or effect: EXPOSE”).
Davis, 526 U.S. at 644–45 (emphasis added).
Davis, then, clearly indicates that Plaintiffs can state a viable Title IX claim by
alleging alternatively either that KSU’s deliberate indifference to their reports of rape
caused Plaintiffs “‘to undergo’ harassment or ‘ma[d]e them liable or vulnerable’ to it.”
526 U.S. at 645 (emphasis added); see Fitzgerald v. Barnstable Sch. Comm., 504 F.3d
14
165, 172 (1st Cir. 2007) (citing Davis and stating that “to ‘subject’ a student to
harassment, the institution’s deliberate indifference must, at a minimum, have caused the
student to undergo harassment, made her more vulnerable to it, or made her more likely
to experience it”), rev’d on other grounds, 555 U.S. 246 (2009); id. at 172 (stating that
Davis’s language, “mak[ing] them liable or vulnerable to” harassment, “sweeps” broader
than requiring further actual harassment to have occurred); Hernandez v. Baylor Univ.,
274 F. Supp. 3d 602, 613 (W.D. Tex. 2017) (citing Davis and stating that “the
Supreme Court has made clear that to ‘subject’ a student to harassment a school need
only make the student vulnerable to that harassment”; further stating that a
recipient’s actionable “discriminatory harm can include the harm faced by student-
victims who are rendered vulnerable to future harassment and either leave school or
remain at school and endure an educational environment that constantly exposes
them to a potential encounter with their harasser or assailant”; elaborating that the
required harm could include “forcing the student to change his or her study habits . . .
or lowering the student’s grades”); see also, e.g., Joyce v. Wright State Univ.,
No. 3:17-cv-387, 2018 WL 3009105, at *8 (S.D. Ohio June 15, 2018); Karasek v.
Regents of Univ. of Calif., No. 15-cv-03717-WHO, 2015 WL 8527338, at *12-*13
(N.D. Cal. Dec. 11, 2015) (unreported) (citing cases); Takla v. Regents of Univ. of
Calif., No. 2:15-cv-04418-CAS(SHx), 2015 WL 6755190, at *4-*5 (C.D. Cal. Nov.
2, 2015) (unreported); Kelly v. Yale Univ., No. Civ.A 3:01-CV-1591, 2003 WL
1563424, at *4-*5 (D. Conn. Mar. 26, 2003) (unreported). To underscore that a Title
IX plaintiff is not required to allege that she suffered actual additional incidents of
15
sexual harassment, the Supreme Court in Davis referred to the Random House
Dictionary definition of “subject” to include, “to make liable . . . ; lay open; expose.”
Davis, 526 U.S. at 645.
KSU’s contrary argument, that Plaintiffs must allege (and eventually prove) that
KSU’s deliberate indifference to their reports of rape caused each Plaintiff to endure
further actual incidents of sexual harassment simply ignores Davis’s clear alternative
language recognizing that a funding recipient’s “deliberate indifference must, at a
minimum, ‘cause students to undergo’ harassment or make them ‘liable or vulnerable
to’” sexual harassment, 526 U.S. at 645 (emphasis added). We must give effect to each
part of that sentence.
Doing so is consistent with Title IX’s objectives, which include protecting
individual students against discriminatory practices, Cannon, 441 U.S. at 704.
The alternative offered by the University—i.e., that a student must be
harassed or assaulted a second time before the school’s clearly
unreasonable response to the initial incident becomes actionable,
irrespective of the deficiency of the school’s response, the impact on the
student, and the other circumstances of the case—runs counter to the
goals of Title IX and is not convincing.
Karasek, 2015 WL 8527338, at *12.
Once a funding recipient, like KSU, has actual knowledge of sexual
harassment that is severe, pervasive and objectively offensive enough to deprive a
student of access to the educational benefits and resources the recipient offers,4 see
4
No one asserts that the sexual harassment alleged in these cases is not sufficiently
extreme.
16
Davis, 526 U.S. at 633, 650-51, the recipient cannot, acting with deliberate
indifference, turn a blind eye to that harassment. See id. at 641 (indicating that
funding recipient can be liable under Title IX for “remain[ing] idle in the face of
known student-on-student harassment”). Critically, then, KSU’s alleged liability
stems directly from its own conduct, its own deliberate indifference to known
student-on-student sexual harassment occurring in its programs and activities that is
sufficiently severe, pervasive, and objectively offensive enough to deprive a student
of access to the educational opportunities the recipient provides. See Davis, 526 U.S.
at 633. KSU is wrong to contend that, by holding it liable for its own deliberate
indifference to the serious rape charges, we are requiring the university to remediate
the harm caused by the student rapists rather than KSU itself.
We conclude, then, that Plaintiffs can state a viable Title IX claim for student-
on-student harassment by alleging that the funding recipient’s deliberate indifference
caused them to be “vulnerable to” further harassment without requiring an allegation
of subsequent actual sexual harassment.
B. Plaintiffs have adequately pled that KSU made them “vulnerable to”
harassment
Plaintiffs sufficiently pled that KSU’s deliberate indifference to their reports
of rape made them vulnerable to harassment by alleging that the fear of running into
their student-rapists caused them, among other things, to struggle in school, lose a
scholarship, withdraw from activities KSU offers its students, and avoid going
anywhere on campus without being accompanied by friends or sorority sisters. See
17
Joyce, 2018 WL 3009105, at *7-*8 (S.D. Ohio) (declining to dismiss Title IX claim
based on funding recipient university’s failure to enforce restraining order
prohibiting assailant from being on campus because “it could be said that
[university’s] alleged failure to enforce the expulsion order made [plaintiff] Joyce
‘vulnerable’ to additional incidents of sexual assault and sexual harassment by [the
perpetrator], even though she never actually encountered him on campus”); Kelly,
2003 WL 1563424, at *4-*5 (D. Conn.) (holding Title IX plaintiff sufficiently
alleged that funding recipient’s deliberate indifference to her reported rape—by
ignoring her “requested academic and residential accommodations after the assault”
and her reported “discomfort and fear that she would feel if she encountered” the
alleged assailant—made her “liable or vulnerable” to her assailant’s harassment, even
though no further actual harassment occurred because victim left her dorm and her
classes); see also Doe ex rel. Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226, 233
(D. Conn. 2009) (stating that a reasonable jury could find that funding recipient
forcing high school victim of sexual assault to attend school with her assailant
amounted to sufficiently severe harassment to deprive victim of access to educational
opportunities, based on “potential interactions” between victim and the student
harasser); Doe ex rel. Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438, 440, 444-45
(D. Conn. 2006) (holding, in case where junior high student reported that senior high
student raped her and where funding recipient housed both junior and senior high
schools in same building, funding recipient could be liable under Title IX for its post-
assault deliberate indifference which “constantly exposed” the plaintiff “to the
18
possibility of an encounter with” the perpetrator, even if there was no evidence that
the perpetrator actually harassed the victim after she reported rape).
Plaintiffs’ allegations are quite specific and reasonable under the
circumstances. Plaintiffs allege more than a general fear of running into their
assailants. They allege that their fears have forced them to take very specific actions
that deprived them of the educational opportunities offered to other students. In
addition, they have alleged a pervasive atmosphere of fear at KSU of sexual assault
caused by KSU’s inadequate action in these cases. A Title IX plaintiff’s alleged fear
of encountering her attacker must be objectively reasonable, but under the horrific
circumstances alleged here Plaintiffs have adequately alleged that KSU’s deliberate
indifference to their rape reports reasonably deprived them of educational
opportunities available to other students at KSU. See Williams v. Bd. of Regents of
Univ. Sys. of Ga., 477 F.3d 1282, 1297 (11th Cir. 2007) (stating that student rape
victim’s decision to withdraw from school was “reasonable and expected” “[i]n light
of the harrowing ordeal” she endured). Future cases will undoubtedly be asked to
draw lines on when a victim’s fear of further sexual harassment is sufficient to
deprive that student of educational opportunities that the educational institution
offers to others, but we have no hesitation in concluding that the allegations in these
complaints are sufficient to survive a motion to dismiss, where all inferences are
drawn in favor of Plaintiffs.
C. KSU’s arguments to the contrary are unavailing
19
We now briefly address KSU’s contrary arguments. KSU latches on to a
number of cases invoking the phrases “further discrimination” or “ further sexual
harassment.”
1. Rost ex rel. K.C. v. Steamboat Springs RE-2 School District, 511 F.3d
1114 (10th Cir. 2008), and Escue v. Northern Oklahoma College, 450 F.3d
1146 (10th Cir. 2006)
The primary cases on which KSU relies are the Tenth Circuit’s decisions in
Rost ex rel. K.C. v. Steamboat Springs RE-2 School District, 511 F.3d 1114 (10th
Cir. 2008), and Escue v. Northern Oklahoma College, 450 F.3d 1146 (10th Cir.
2006). As detailed below, Rost and Escue were decided at the summary judgment
stage of litigation, rather than at the pleading stage. In each case, the Tenth Circuit
upheld the district court’s summary judgment determination that the Title IX plaintiff
had failed to present sufficient evidence for a reasonable jury to find that the funding
recipient was deliberately indifferent. In making that determination, the Tenth
Circuit pointed to evidence that the sexual harassment stopped after the funding
recipient took action. Thus, although both cases did look at whether there had been
continuing sexual harassment after the recipient took remedial action, they did so for
the purpose of illuminating whether the funding recipient had been clearly
unreasonable. Neither case had occasion to address the question at issue here, what
injury does the funding recipient’s deliberate indifference have to cause a plaintiff to
be actionable under Title IX. Neither case held that a Title IX plaintiff was required
to allege subsequent actual incidents of sexual harassment had occurred following the
school’s inadequate response to the victim’s complaint.
20
In our cases, by contrast, because they come to us on an interlocutory appeal
on the pleadings, all parties have to accept, and do accept, that KSU was deliberately
indifferent in failing to take remedial actions. Thus, the issue presented in Rost and
Escue—whether the educational institution was deliberately indifferent—is not
before us. Instead, here KSU is seeking to add a new pleading burden to a Title IX
claimant, which is that, even accepting that KSU was deliberately indifferent, a Title
IX plaintiff must further allege as an element of her case that subsequent discrete acts
of sexual harassment directed at her followed the funding recipient’s deliberately
indifferent response to her complaints.
Plaintiffs, instead, argue—and we have agreed—that once they show that the
funding recipient was deliberately indifferent to their complaints of peer sexual
harassment, they can show the requisite harm caused by that deliberate indifference
by alleging and proving that the prior sexual assaults were so grievous and the
likelihood of continuing to encounter the sexual predators on campus so credible that
KSU’s inaction by itself deprived them of the “benefits . . . under any education
program . . . receiving Federal financial assistance.” Rost, 511 F.3d at 1119. In
short, they allege that KSU created such an adverse environment for learning for
them by its dismissive treatment of their complaints of rape that it was that
environment that reasonably prevented them from accessing the educational
opportunities available to other students. That issue was not presented in nor
resolved by either Rost or Escue.
21
In Escue, a college student alleged that her professor sexually harassed her.
450 F.3d at 1149. Once the student reported the harassment to the school, the school
acted to prevent further contact between the student and the professor, including
immediately transferring the student out of the offending professor’s class,
confronting the professor about his behavior, and eventually non-renewing him. Id.
at 1150. This court determined that the school’s actions (which are dramatically
different from essentially no action taken here by KSU) were sufficient to rebut the
plaintiff’s allegation that the University had been deliberately indifferent. Id. at
1154-56. In reaching that conclusion on the deliberate indifference issue, the Tenth
Circuit noted that, “Ms. Escue [the student] does not allege that further sexual
harassment occurred as a result of [the school’s] deliberate indifference.” Id. at
1155. That determination was made in the context of illuminating the adequacy of
the university’s actions. Nothing in that opinion held or even suggested that a
complaining student would have to show subsequent offending conduct as a
causation element in order to prevail even after the funding recipient had been found
to have been deliberately indifferent.
In Rost, a special education student alleged that several of her male high
school classmates coerced her into performing sexual acts with them. 511 F.3d at
1117. Rost upheld summary judgment for the recipient school district because there
was no evidence that the school district’s response—“immediately contact[ing] law
enforcement officials, cooperat[ing] fully in the investigation, and ke[eping]
informed of the investigation”—was so unreasonable as to amount to deliberate
22
indifference. Id. at 1121. It was in that context that Rost noted that the student-
victim’s mother “does not contend that further sexual harassment occurred as a result
of the district’s deliberate indifference after [the student-victim’s] disclosure” of the
ongoing sexual harassment to the school district. Id. at 1123-24. In fact, there was
no opportunity for further harassment there because the victim’s mother withdrew the
victim from the school and “[t]here [wa]s no evidence in the record that Ms. Rost
was willing to work with school officials and allow K.C. to return to school under
some accommodation.” Id. at 1124. Still, we noted that, “[i]f 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.” Id. That is,
of course, essentially the issue that is presented in our case.
Admittedly, in the course of concluding that the school district was not
deliberately indifferent, Rost mentions causation. Id. at 1123. But causation was not
listed as one of the issues in that case. Moreover, Rost certainly did not hold that a
Title IX plaintiff had to prove an actual subsequent sexual assault or harassment in
order to state a viable Title IX claim. If anything, Rost’s closing hypothetical
suggests that, had the victim returned to school and had the district had been
deliberately indifferent, causing an unsafe school environment, that would “likely” be
enough to state a Title IX claim against the district. Id. at 1124.
It is not surprising, in addressing the question of whether the educational
funding recipient had been “deliberately indifferent,” that courts might look to see
whether the offending action continued thereafter. However, consulting subsequent
23
behavior as an evidentiary aid in determining if the school’s action taken had been
deliberately indifferent is a wholly different thing than requiring a continuation of the
offending behavior as a separate element of causation before a Title IX claim may be
maintained.
2. Out-of-circuit cases
KSU also cites to a group of out-of-circuit cases that it believes supports its
position. Most relevant is the Eleventh Circuit’s decision in Williams v. Board of
Regents of University System of Georgia, 477 F.3d 1282 (11th Cir. 2007), a case
cited by both parties. In that case, Plaintiff Williams alleged that the funding
recipients at issue there—the University of Georgia and its athletic association, id. at
1294—were deliberately indifferent, id. at 1288-90.5 The Eleventh Circuit did say
“that a Title IX plaintiff at a motion to dismiss stage must allege that the Title IX
recipient’s deliberate indifference to the initial discrimination subjected the plaintiff
to further discrimination.” Id. at 1296 (emphasis added). Importantly, however,
Williams defined “further discrimination” not to require further overt acts of assault
or abuse. Instead, the Eleventh Circuit recognized that injuries similar to those
Plaintiffs allege here would satisfy its “further harassment” requirement. Williams
explained that “further discrimination” included “effectively denying Williams an
5
KSU asserts that Williams is a pre-assault deliberate indifference case. In fact, the
plaintiff in Williams asserted claims alleging the funding recipients were deliberately
indifferent both before and after she was sexually assaulted. See 477 F.3d at 1288-
90, 1296-97.
24
opportunity to continue to attend” the University of Georgia by delaying any action
against the student-rapists for months and by failing “to take any precautions that
would prevent future attacks” by the student-rapists themselves or other “like-
minded” students by, for example, removing the alleged student-rapists from student
housing or suspending them, or by “implementing a more protective sexual
harassment policy to deal with future incidents,” id. at 1296-97; see also, e.g.,
Hernandez, 274 F. Supp. 3d at 613 (W.D. Tex.) (holding that, “[w]hile allegations of
further assault or harassment are necessary for a claim under Title IX,” that
requirement can be met by allegations of “harm faced by student-victims who are
rendered vulnerable to future harassment and either leave school or remain at school
and endure an educational environment that constantly exposes them to a potential
encounter with their harasser or assailant” (emphasis added)); Kinsman v. Fla. State
Univ. Bd. of Trs., No. 4:15cv235, 2015 WL 11110848, at *4 (N.D. Fla. Aug. 12,
2015) (unreported) (applying Williams to require allegations that the funding
recipient’s deliberate indifference caused “further discrimination,” but holding such
“further discrimination” can include the hostile environment created by “the
possibility of further encounters between a rape victim and her attacker,” which can
“deprive the victim of access to educational opportunities provided by a university”
(internal quotation marks omitted)).
KSU further cites decisions from other circuits that it argues require a showing
of “further harassment” or “further discrimination.” But those cases are easily
distinguishable. See K.T. v. Culver-Stockton College, 865 F.3d 1054, 1058 (8th Cir.
25
2017) (addressing situation where there was no opportunity for further harassment
because the victim did not attend the school); Reese v. Jefferson School District No.
14J, 208 F.3d 736, 738, 740 (9th Cir. 2000) (addressing situation where there was no
opportunity for further harassment because students involved were graduating.)
In conclusion, the out-of-circuit cases that KSU cites are not only not binding
on us but are also either distinguishable or they end up ultimately supporting the
conclusion we reach here. To the extent that ambiguous dicta can be found in any of
them, they certainly cannot affect the binding guidance that we get from the Supreme
Court in Davis, 526 U.S. at 644-45.6
V. CONCLUSION
Plaintiffs alleged that they reported to KSU that other KSU students had raped
them. We must assume for purposes of these interlocutory appeals that KSU was
deliberately indifferent in responding to Plaintiffs’ rape reports by failing to take any
reasonable action to address and remedy those matters. The Supreme Court, in
Davis, held that, to be actionable, a federal education funding recipient’s deliberate
6
KSU finally asserts that Plaintiffs lack Article III standing to assert their claims.
KSU did not raise this argument below and the district court did not certify this
question for interlocutory appeal. We address the argument briefly because Article
III standing implicates our jurisdiction. However, Plaintiffs have adequately alleged
their standing under Article III, which “requires allegations—and, eventually,
proof—that the plaintiff personally suffered a concrete and particularized injury in
connection with the conduct about which [s]he complains.” Trump v. Hawaii, 138
S. Ct. 2392, 2416 (2018) (internal quotation marks, alteration omitted). Plaintiffs
have alleged that the conduct of which they complain caused them a concrete and
particularized injury by depriving them of access to the educational resources and
opportunities KSU offers its students.
26
indifference to reports of student-on-student sexual harassment—here, rape—“must,
at a minimum, cause students to undergo harassment or make them liable or
vulnerable to it.” 526 U.S. at 644-45 (internal quotation marks, alterations omitted)
(emphasis added). We conclude, therefore, that a Title IX plaintiff must allege, at a
minimum, that the funding recipient’s deliberate indifference caused her to be
vulnerable to further harassment. Plaintiffs have met that pleading requirement here
by alleging, among other things, that KSU’s deliberate indifference caused them
objectively to fear encountering their unchecked assailants on campus, which in turn
caused Plaintiffs to stop participating in the educational opportunities KSU offered
its students. We, therefore, AFFIRM the district court’s decision to deny KSU’s
motions to dismiss Plaintiffs’ Title IX claims.
27