Sofie Karasek v. University of California

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOFIE KARASEK; NICOLETTA No. 18-15841
COMMINS; ARYLE BUTLER,
Plaintiffs-Appellants, D.C. No.
3:15-cv-03717-
v. WHO
REGENTS OF THE UNIVERSITY OF ORDER AND
CALIFORNIA, AMENDED
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted October 21, 2019
San Francisco, California
Filed January 30, 2020
Amended April 20, 2020
Before: Jay S. Bybee and N. Randy Smith, Circuit Judges,
and Salvador Mendoza, Jr.,* District Judge.
*
The Honorable Salvador Mendoza, Jr., United States District Judge
for the Eastern District of Washington, sitting by designation.
2 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
Order;
Opinion by Judge Bybee
SUMMARY**
Title IX
The panel filed (1) an order amending its opinion,
denying a petition for panel rehearing, and denying on behalf
of the court a petition for rehearing en banc; and (2) an
amended opinion affirming in part and vacating in part the
district court’s judgment in favor of defendant Regents of the
University of California on claims brought under Title IX of
the Education Amendments of 1972 by three plaintiffs who
were sexually assaulted while undergraduates at the
University of California, Berkeley.
Plaintiffs alleged that UC violated Title IX by failing to
adequately respond to their individual assaults and by
maintaining a general policy of deliberate indifference to
reports of sexual misconduct.
The panel affirmed the district court’s dismissal of two
plaintiffs’ individual claims and grant of summary judgment
on a third plaintiff’s individual claim. To state a Title IX
claim arising from student-on-student or faculty-on-student
sexual harassment or assault, a plaintiff suing a school must
allege that (1) the school exercised substantial control over
the harasser and the context in which the harassment
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 3
occurred; (2) the harassment was so severe that it deprived
the plaintiff of educational opportunities; (3) a school official
with authority to address the alleged discrimination had
actual knowledge of it; (4) the school acted with deliberate
indifference to the harassment, such that the school’s
response was clearly unreasonable in light of the known
circumstances; and (5) the school’s deliberate indifference
subjected the student to harassment. The panel affirmed the
district court’s holding that two plaintiffs failed adequately to
allege deliberate indifference in UC’s investigation delays,
policy violations, failure to take steps to prevent continued
harassment, inequitable response, or failure to permit a
plaintiff to participate in an investigation. The panel affirmed
the district court’s holding that the third plaintiff failed to
establish a triable issue as to whether UC acted with
deliberate indifference by failing to investigate her complaint,
failing to take steps to prevent the harasser from harassing her
again, or committing policy violations.
The panel vacated the district court’s dismissal of the pre-
assault claim regarding an alleged policy of deliberate
indifference to reports of sexual misconduct that created a
sexually hostile environment for plaintiffs and heightened the
risk that they would be sexually assaulted. The panel held
that such a claim is a cognizable theory of Title IX liability.
Finding persuasive a decision of the Tenth Circuit, the panel
held that a pre-assault claim survives a motion to dismiss if
the plaintiff plausibly alleges that (1) a school maintained a
policy of deliberate indifference to reports of sexual
misconduct, (2) which created a heightened risk of sexual
harassment that was known or obvious (3) in a context
subject to the school’s control, and (4) as a result, the plaintiff
suffered harassment that was so severe, pervasive, and
objectively offensive that it can be said to have deprived the
4 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
plaintiff of access to the educational opportunities or benefits
provided by the school. The panel remanded the case for
further proceedings.
COUNSEL
Alexander S. Zalkin (argued), The Zalkin Law Firm P.C., San
Diego, California, for Plaintiffs-Appellants.
Hailyn J. Chen (argued) and Bradley S. Phillips, Munger
Tolles & Olson LLP, Los Angeles, California; Susan M.
Pelletier, Munger Tolles & Olson LLP, Washington, D.C.; for
Defendant-Appellee.
ORDER
The court’s opinion filed January 30, 2020, and appearing
at 948 F.3d 1150 (9th Cir. 2020), is hereby amended in the
following ways:
1. At slip. op. 32–33; 948 F.3d at 1169, change
<(2) which created a heightened risk of sexual harassment>
to <(2) which created a heightened risk of sexual harassment
that was known or obvious>
2. At slip op. 33, 948 F.3d at 1169, change <(4) the
plaintiff was harassed as a result> to <(4) as a result, the
plaintiff suffered harassment that was “so severe, pervasive,
and objectively offensive that it can be said to [have]
deprive[d] the [plaintiff] of access to the educational
opportunities or benefits provided by the school.” Davis,
526 U.S. at 650.>
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 5
An amended opinion is filed herewith.
With this amended opinion, the panel has voted to deny
the petition for panel rehearing. Judge Bybee, Judge N.R.
Smith, and Judge Mendoza recommended denying the
petition for rehearing en banc.
The full court has been advised of the petition for
rehearing en banc, and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing
en banc, filed March 13, 2020, are DENIED. No subsequent
petitions for rehearing or rehearing en banc may be filed.
OPINION
BYBEE, Circuit Judge:
Appellants Sofie Karasek, Nicoletta Commins, and Aryle
Butler were sexually assaulted while undergraduates at the
University of California, Berkeley (UC). They sued UC
under Title IX of the Education Amendments of 1972 (Title
IX), asserting two theories of liability. First, Appellants
allege that UC violated Title IX by failing to adequately
respond to their individual assaults. Second, Appellants
allege that UC violated Title IX by maintaining a general
policy of deliberate indifference to reports of sexual
misconduct, which heightened the risk that Appellants would
be assaulted. This latter theory is known as the “pre-assault
claim” because it relies on events that occurred before
Appellants’ assaults. The district court dismissed Karasek’s
6 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
individual claim, Commins’s individual claim, and the pre-
assault claim, and it granted summary judgment to UC on
Butler’s individual claim. We affirm the dismissal of
Karasek’s and Commins’s individual claims and the grant of
summary judgment on Butler’s individual claim. However,
we vacate the dismissal of the pre-assault claim and remand
for further proceedings.
I. BACKGROUND
For purposes of this appeal, we must accept as true the
factual allegations in Appellants’ Fourth Amended Complaint
(FAC) and in documents of which the district court took
judicial notice. See United States ex rel. Lee v. Corinthian
Colls., 655 F.3d 984, 991 (9th Cir. 2011). We remind the
parties and other interested persons that the facts have not
been established. See Lacey v. Maricopa Cty., 693 F.3d 896,
907 (9th Cir. 2012) (en banc).
A. Karasek’s Individual Claim
In February 2012, Karasek attended an overnight trip with
the Cal Berkeley Democrats Club (Club). While sleeping in
a bed with three other students, Karasek awoke because TH,
one of the other students in the bed, was “massaging her legs,
back and buttocks.” This continued for thirty minutes.
Karasek reported the assault to the Club president.
On February 14, 2012, the Club president informed a UC
official that TH had assaulted three Club members: Karasek
and two other women who had reported being assaulted to the
Club president. The UC official “discouraged” the Club
president from removing TH from the Club, instead
suggesting she “use more informal, transformative justice
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 7
models to deal with TH.” After TH admitted to the Club
president that he had assaulted Karasek, she asked TH to
resign from his board position, but allowed him to continue
attending Club events. Several months later, TH assaulted
another Club member. The Club president notified UC that
more women had reported that TH sexually assaulted them.
The president then removed TH from the Club altogether.
On April 20, 2012, Karasek and three other women met
with Denise Oldham, UC’s Title IX Officer, and Hallie Hunt,
the Director of the Center for Student Conduct (CSC), to
formally report their assaults. Contrary to UC’s Sexual
Harassment Policy, Karasek was not told of the options for
resolving her claim, the range of possible outcomes, the
availability of interim protective measures, or that UC would
not actually investigate unless Karasek submitted a written
statement. One month later, Karasek learned that one of TH’s
other victims had submitted a written statement. She
“thought it was a good idea,” so she also submitted a written
report to Hunt on May 15, 2012.
On May 14, 2012, Glenn DeGuzman, the Assistant
Director of CSC, met with TH. TH admitted that he had
“acted foolishly.” No formal consequences resulted from that
meeting. Instead, DeGuzman merely emailed TH the next
day, asking him to “please stay away from alcohol” and
cautioning:
If you do drink, do so responsibly. Make the
decision now to not put yourself in situations
to be alone with other women specifically if
you are drinking. Until you can better
understand what you are experiencing, it is in
8 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
your best interest to not put yourself in that
situation.
TH was then allowed to participate in UC’s “Cal in the
Capitol” program during the summer of 2012 with no
restrictions.
Oldham met with TH for the first time on September 17,
2012. Several weeks later, Oldham emailed CSC, stating that
she “determined that this situation could be resolved without
a formal investigation by [the Title IX] office,” and that
“from her perspective, she considered the sexual harassment
issue with TH to be resolved.”
CSC then began an informal process with TH. On
October 10, 2012, DeGuzman sent TH an Administrative
Disposition Letter stating that TH had violated UC’s Student
Code of Conduct. TH could choose either to discuss this
finding with DeGuzman further or to accept responsibility
and submit to a number of sanctions. TH chose the former
option and met with DeGuzman. Following this meeting,
DeGuzman sent a second Administrative Disposition Letter.
This letter, however, omitted one of the sanctions that had
been included in the first letter—namely, that TH meet with
a UC Health Educator to discuss “gender issues and sexual
misconduct.” TH accepted responsibility on October 26,
2012. As a result, the following sanctions applied:
(1) disciplinary probation until TH graduated, (2) one
consultation with a mental health practitioner of TH’s choice,
and (3) one meeting with an Alcohol and Other Drugs
Counselor in UC’s Social Services department.
Meanwhile, Karasek had received no communications
from UC since filing her written statement in May 2012. She
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 9
was not informed that Oldham opted not to formally
investigate. Nor was Karasek told that her complaint against
TH had been resolved informally or that TH was sanctioned.
Karasek alleges that UC’s failure to apprise her of the
investigation or allow her to participate violated UC’s Sexual
Misconduct Policy and a 2011 Dear Colleague Letter issued
by the Department of Education (DOE). See Dear Colleague
Letter: Sexual Violence, Russlynn Ali, Office for Civil
Rights, U.S. Dep’t of Educ. (Apr. 4, 2011) [hereinafter 2011
Dear Colleague Letter or DCL].
Eventually, Karasek learned that TH would graduate from
UC in December 2012. Frustrated that UC was not timely
handling her complaint, Karasek met with Christine
Ambrosio, the Director of Women’s Resources at UC’s
Gender Equity Resource Center, on November 2, 2012, to
voice her concerns. A couple of days later, Ambrosio
emailed Karasek, saying that she had contacted CSC and was
waiting for an update on the TH investigation. After Karasek
sent several more emails, someone in UC’s Title IX office
finally responded on December 12, 2012. That email simply
said that “this matter had been explored and resolved using an
early resolution process outlined in our campus procedures
for responding to sexual harassment complaints,” and that the
Title IX officer had “communicated the outcome of the
resolution process to the Center for Student Conduct.” The
email did not describe the investigation’s outcome. TH then
graduated from UC. A few days later, an individual in CSC
emailed Karasek, saying that TH had violated the Code of
Student Conduct. Again, this email did not inform Karasek
of any of the sanctions imposed. Karasek did not learn the
nature of the sanctions until September 20, 2013.
10 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
B. Commins’s Individual Claim
In January 2012, Commins invited an acquaintance from
the Tae Kwan Doe team, John Doe 2 (Doe 2), to her
apartment. While there and without Commins’s consent, Doe
2 performed oral sex on Commins, digitally penetrated her,
rubbed his genitals on her face, and attempted to physically
coerce her to perform oral sex on him. Commins reported the
assault to UC’s Tang Student Health Center the next day and
to UC’s Police Department on January 20, 2012. The
Alameda District Attorney’s Office charged Doe 2 with
felony sexual assault.
On January 31, 2012, UC placed Doe 2 on interim
suspension, prohibiting him from entering campus. After a
hearing, UC modified the interim suspension to allow Doe 2
on campus solely to attend his classes. UC did not inform
Commins of the suspension or the hearing.
Commins submitted an Incident Report Form to CSC on
February 22, 2012. Several weeks later, Julio Oyola, a CSC
representative, met with Commins to discuss her allegations.
At this meeting, Oyola intimated that UC would not
investigate until after the Berkeley Police Department
finished its criminal investigation. Commins told Oyola that
she was not comfortable with a delay, to no avail. UC’s Dean
of Students sent a letter to Doe 2 on May 11, 2012, informing
him that he was again placed on interim suspension to
“accommodate [his] request to postpone [UC’s] hearing upon
[his] charges until such time as criminal charges pending
against [him] have been resolved.”
Doe 2 was convicted of felony assault on October 5,
2012. UC’s officials then began communicating with Doe 2
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 11
and his attorney about UC’s investigation. At some point
during these exchanges, a UC official told Commins that a
formal hearing would be held where Commins could present
evidence. No hearing was ever held. Instead, on January 21,
2013, Oldham told Commins that she had completed her
investigation of Doe 2, found that he had violated UC’s
Policy on Sexual Harassment, and forwarded that finding to
CSC.
CSC then began an informal investigation. Hunt met with
Doe 2 and his attorney on February 4, 2013. Following that
meeting, Hunt asked Commins if she would be comfortable
with Doe 2 being suspended until she graduated. Commins
said that she preferred that Doe 2 be permanently expelled,
but Hunt responded that this was not possible. Commins
reluctantly agreed that a suspension of her assailant was the
best available option.
As a result, CSC sent Doe 2 an Administrative
Disposition Letter, informing him that he had violated the
Code of Student Conduct. The letter imposed the following
sanctions: (1) suspension until August 31, 2015;
(2) exclusion from campus and UC activities until that same
date; (3) permanent disciplinary probation; (4) prohibition on
contacting Commins; and (5) a reflective writing assignment.
Doe 2 accepted these sanctions on March 5, 2013.
In March, Hunt emailed Commins to inform her of the
outcome of CSC’s investigation. This email was sent to an
address that Commins had never used to communicate with
UC, so Commins did not see the email. Four months later,
Commins emailed Hunt, seeking an update on the
investigation. Hunt promptly responded and described Doe
12 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
2’s sanctions. Commins was not given an opportunity to
appeal or contest these sanctions.
Nearly one year later, Commins informed Hunt that she
had been accepted to UC’s graduate School of Public Health
and expressed concern that Doe 2 would return to campus
while Commins pursued her graduate studies. Hunt
confirmed that Doe 2 planned to return to UC once his
suspension ended. Commins asked UC to preclude Doe 2
from returning to campus until she graduated. UC denied that
request. Doe 2 recommenced his education in August 2015.
While he attended UC, he remained subject to UC’s no-
contact order. Commins does not allege that she saw Doe 2
again.
C. Butler’s Individual Claim
During the summer of 2012, Butler worked as a research
assistant to Margot Higgins, a graduate student. Higgins paid
Butler directly, and Butler did not receive academic credit for
her work. The research occurred in Alaska. While in Alaska,
Butler lived at the Wrangell Mountains Center (WMC), a
nonprofit entity unaffiliated with UC. WMC also hosted
programming for the Alaska Wildlands Studies Program,
where Butler’s assailant, John Doe (Doe), was a part-time
instructor.
Doe had a reputation for giving hugs, some of which were
“longer than what felt comfortable.” According to Butler,
one night, while Butler was alone in WMC’s common area,
Doe came up behind her, trapped her against a table, put his
hands down her pants, touched her inappropriately, and then
left. Shortly after this incident, Butler told Higgins that
“someone had done something inappropriate, had touched her
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 13
inappropriately, but that she handled it.” Higgins asked if it
was Doe, and Butler confirmed that it was. Higgins said that
she would not do anything if Butler felt like she had dealt
with the situation.
Several days later, Doe approached Butler from behind,
ran his fingers through her hair, and rubbed her shoulders.
Doe said, “It’s so nice to have such a beautiful woman
around,” and then left. Butler again called Higgins, told her
what Doe did, and informed Higgins that the encounter made
her “uncomfortable” and that she “didn’t like it.” Higgins
told Butler that she would do whatever Butler wanted.
Apparently, nothing came of this call.
A few days after that, Butler was singing while preparing
dinner in WMC’s kitchen. Doe came up behind her, put his
hands under her shirt, and touched her breasts. As he left,
Doe said, “You have such a beautiful voice.” Immediately
after that incident, Butler called Higgins and told her what
happened. Higgins allowed Butler to stay in Higgins’s cabin,
which was outside of WMC’s property, until Doe left. Butler
did not interact with Doe again.
Butler first reported her assaults to UC on November 20,
2012, in a meeting with Ambrosio. Butler cannot recall what
details they discussed, but she does know that she did not
identify Doe as her assailant at that meeting. On February 28,
2013, Butler met with Oldham and Ambrosio. Butler
expressed her desire to remain anonymous, fearing retaliation
if she reported the assault. Ultimately, Butler told Oldham
where the assaults had occurred, but did not disclose Doe’s
identity.
14 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
Several months later, Butler emailed Ambrosio and
explained that Butler believed UC was violating federal law,
state law, and UC’s policies in the manner in which it was
handling Butler’s report. Butler and one of her friends met
with Ambrosio and Oldham on April 26, 2013. At this
meeting, Oldham noted that UC’s policies would not apply
unless Butler’s assailant was UC’s employee. Butler then
revealed the names of the Alaska Wildlands Studies Program,
WMC, Higgins, and Lynn Huntsinger, who was Higgins’s
faculty advisor. According to Oldham’s notes, Butler asked
Oldham to research the program to determine whether UC’s
policies would apply.
Oldham emailed Huntsinger on May 21, 2013, asking
about the Wildlands Studies Program. Huntsinger said she
was not aware of that program, but after searching on the
internet, she discovered that it was a California State
University, Monterey Bay program. The next day, Oldham
emailed Butler to ask for more details about her participation
in the Wildlands Studies Program and for a copy of the
contract she signed with Higgins. Before Butler responded,
Oldham received an email from Leslie Arutunian, an
employee with the Wildlands Studies Program. Arutunian
told Oldham that the program had no connection to UC.
On May 30, 2013, Oldham emailed Butler again,
notifying her that Oldham had received new information.
Because of various scheduling conflicts, Butler did not meet
with Oldham until August 7, 2013. Butler contends that at
this meeting she identified Doe as her assailant and told
Oldham that Doe was a guest lecturer at UC. Oldham
showed Butler the documents Arutunian had sent and said
that Arutunian was willing to speak with Butler about her
assaults. Butler preferred that Oldham follow up with
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 15
Arutunian instead. This was the last time Butler met with
Oldham, and Oldham did not take any further steps to
investigate Butler’s claims.
At his deposition, Doe confirmed that he visits UC’s
campus “once or twice a year,” and that he sporadically
serves as a guest speaker. Doe estimated that he gives a guest
lecture once “every year or two,” and that he had been on
UC’s campus five or six times since the summer of 2012.
D. Pre-Assault Claim
To support Appellants’ pre-assault claim, the FAC
includes allegations relating to UC’s history of responding to
reports of sexual misconduct. The FAC describes a 2014
report prepared by the California State Auditor detailing
several deficiencies in UC’s handling of sexual-harassment
cases between 2009 and 2013. The FAC also highlights an
administrative Title IX claim filed in 2014 by thirty-one
women, alleging that UC has not adequately responded to
complaints of sexual assault since 1979. Appellants allege
that UC resolved a majority of sexual-assault complaints with
informal processes, even though Oldham publicly stated that
only formal processes should be used in cases of sexual
assault. And finally, the FAC alleges that UC “consciously
and intentionally” chose to resolve sexual-assault reports
informally to avoid its statutory duty to report cases of sexual
violence to DOE. Based on these allegations, the FAC
concludes that UC maintained “a policy of deliberate
indifference to sexual misconduct against female students”
that created a “sexually hostile environment” and heightened
the risk that Appellants would be assaulted.
16 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
E. Proceedings Below
After multiple rounds of motions to dismiss, the district
court dismissed all but Butler’s Title IX claim. Following
discovery on Butler’s claim, the district court granted
summary judgment to UC. The court then entered judgment
in favor of UC on all claims.
Appellants timely appealed from that judgment,
challenging the district court’s summary-judgment order and
its orders granting UC’s motions to dismiss. On appeal,
Appellants argue that Karasek and Commins adequately
pleaded a Title IX violation based on UC’s response to their
reports of sexual assault, Butler established a genuine issue of
material fact as to whether UC violated Title IX in its
response to her report, and Appellants adequately alleged that
UC’s policy of indifference to sexual misconduct violated
Title IX.
II. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction under 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the grant of a motion to dismiss under
Rule 12(b)(6) and may affirm on any ground supported by the
record. Metzler Inv. GMBH v. Corinthian Colls., Inc.,
540 F.3d 1049, 1061 (9th Cir. 2008). This “[r]eview is
limited to the complaint, materials incorporated into the
complaint by reference, and matters of which the court may
take judicial notice.” Id. When considering a motion to
dismiss, we accept “as true all well-pleaded allegations of
fact in the complaint” and construe them in the light most
favorable to the non-moving party. Corinthian Colls.,
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 17
655 F.3d at 991. A complaint will not survive a motion to
dismiss unless it “contain[s] sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted).
We also review a grant of summary judgment de novo.
Tauscher v. Phx. Bd. of Realtors, Inc., 931 F.3d 959, 962 (9th
Cir. 2019). A party is entitled to summary judgment “only if,
taking the evidence and all reasonable inferences in the light
most favorable to the non-moving party, there are no genuine
issues of material fact, and the movant is entitled to judgment
as a matter of law.” Id. (citing Fed. R. Civ. P. 56(a)). “An
issue of material fact is genuine if there is sufficient evidence
for a reasonable jury to return a verdict for the non-moving
party.” Id. (internal quotation marks omitted). Factual
determinations underlying a grant of summary judgment will
not be reversed unless they are clearly erroneous. Pyramid
Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 813 (9th
Cir. 2014).
III. DISCUSSION
Title IX provides, “No 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). Victims of sex
discrimination have a private right of action against recipients
of federal education funding for alleged Title IX violations,
see Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979), and
may seek damages for those violations, see Franklin v.
Gwinnett Cty. Pub. Schs., 503 U.S. 60, 75–76 (1992).
Damages are available if the “official policy” of the funding
18 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
recipient discriminates on the basis of sex. Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). In the
absence of an official policy, damages are not recoverable
unless “an official who at a minimum has authority to address
the alleged discrimination and to institute corrective measures
on the recipient’s behalf has actual knowledge of
discrimination in the recipient’s programs and fails
adequately to respond.” Id. In other words, there must be
“an official decision by the recipient not to remedy the
violation.” Id.As already noted, Appellants assert two types of
claims—individual claims and a pre-assault claim. We
address the individual claims first.
A. Individual Claims
To ensure that a funding recipient is liable “only for its
own misconduct,” Davis v. Monroe Cty. Bd. of Educ.,
526 U.S. 629, 640 (1999), a plaintiff alleging a Title IX claim
against a school that arises from student-on-student or
faculty-on-student sexual harassment or assault must
establish five elements.1 First, the school must have
“exercise[d] substantial control over both the harasser and the
context in which the known harassment occur[red].” Id.
at 645. Second, the plaintiff must have suffered harassment
“that is so severe, pervasive, and objectively offensive that it
1
These five elements are in addition to the threshold requirements
that the defendant be a recipient of “[f]ederal financial assistance” and that
the plaintiff experienced sex discrimination. See 20 U.S.C. § 1681(a).
Here, there is no dispute that UC receives federal funding and that
Appellants’ sexual assaults constituted sex discrimination. See Davis,
526 U.S. at 649–50 (“[S]exual harassment is a form of discrimination for
Title IX purposes . . . .”).
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 19
can be said to deprive the [plaintiff] of access to the
educational opportunities or benefits provided by the school.”
Id. at 650. Third, a school official with “authority to address
the alleged discrimination and to institute corrective measures
on the [school’s] behalf” must have had “actual knowledge”
of the harassment. Reese v. Jefferson Sch. Dist. No. 14J, 208
F.3d 736, 739 (9th Cir. 2000); see Davis, 526 U.S. at 650.
Fourth, the school must have acted with “deliberate
indifference” to the harassment, such that the school’s
“response to the harassment or lack thereof [was] clearly
unreasonable in light of the known circumstances.” Davis,
526 U.S. at 648. This is a fairly high standard—a “negligent,
lazy, or careless” response will not suffice. Oden v. N.
Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 2006).
Instead, the plaintiff must demonstrate that the school’s
actions amounted to “‘an official decision . . . not to remedy’”
the discrimination. Id. (quoting Gebser, 524 U.S. at 290)
(alteration in original). And fifth, the school’s deliberate
indifference must have “subject[ed the plaintiff] to
harassment.” Davis, 526 U.S. at 644. Put differently, the
school must have “cause[d the plaintiff] to undergo
harassment or ma[d]e [the plaintiff] liable or vulnerable to it.”
Id. at 645 (internal quotation marks omitted).
The Supreme Court has emphasized that Title IX “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.”
Id. at 648. Rather, “the recipient must merely respond . . . in
a manner that is not clearly unreasonable.” Id. at 649.
Absent an unreasonable response, we cannot “second-guess[]
the disciplinary decisions made by school administrators.”
Id. at 648. And the reasonableness of the response depends
on the educational setting involved—what would be
20 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
unreasonable in the context of an elementary school might
not be unreasonable in the context of a university. Id. at 649.
The district court dismissed Karasek’s and Commins’s
claims for failing to adequately allege the fourth
element—deliberate indifference. On Butler’s claim, the
district court found that she failed to demonstrate the first,
fourth, and fifth elements—that UC controlled Butler’s
assailant, acted with deliberate indifference, and caused
Butler to undergo harassment. We affirm the district court’s
orders with respect to each of the individual claims.2
1. Karasek’s individual claim
Karasek argues that the FAC adequately alleges that UC
was deliberately indifferent in four respects: (a) UC
unjustifiably delayed its investigation, (b) UC violated its
own policies and the DCL when responding to Karasek’s
report, (c) UC took no steps to prevent TH from continuing
to harass Karasek, and (d) the substance of UC’s response
was inequitable.
a. UC’s alleged delay
A school’s delayed response constitutes deliberate
indifference if it prejudices the plaintiff or if the delay was a
“deliberate attempt to sabotage [the p]laintiff’s complaint or
its orderly resolution.” Oden, 440 F.3d at 1089. In Oden, the
plaintiff argued that a nine-month delay between the
2
Because we address only the fourth element, we express no opinion
on the circuit split regarding the fifth element. Compare Kollaritsch v.
Mich. State Univ. Bd. of Trs., 944 F.3d 613 (6th Cir. 2019), with Farmer
v. Kan. State Univ., 918 F.3d 1094 (10th Cir. 2019).
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 21
plaintiff’s report of sexual assault and a formal hearing held
by her college established deliberate indifference. Id. We
rejected that argument. We noted that the college acted
shortly after the plaintiff’s report by providing counseling,
helping her file a formal complaint, and ordering her assailant
not to contact her. See id. Although the nine-month delay
was “negligent, lazy, or careless,” it did not amount to
deliberate indifference, given the school’s actions in the
meantime. Id.Here, eight and one-half months elapsed between the date
when UC had actual notice of Karasek’s assault and when TH
accepted the sanctions UC proposed. But like the college in
Oden, UC was not idle during those months. When the Club
president told UC that TH sexually assaulted a student, UC
communicated with the president to determine the best course
of action. Less than one month after Karasek reported her
assault to CSC, DeGuzman met with TH to discuss the
charges. Oldham met with him again at the beginning of the
ensuing fall semester, eventually leading to the issuance of
several Administrative Disposition Letters. To be sure, the
actions UC took after learning of Karasek’s assault may have
been less helpful than the college’s actions in Oden.
Nevertheless, UC’s actions and attendant delay did not
constitute a “deliberate attempt to sabotage [Karasek’s]
complaint or its orderly resolution.” Id.Karasek relies on Williams v. Board of Regents of
University System of Georgia, 477 F.3d 1282 (11th Cir.
2007). But that case involved a level of indifference far more
extreme than anything present here. In Williams, the
University of Georgia did not hold a disciplinary hearing until
eleven months after the plaintiff informed the university that
she had been gang-raped by members of the basketball team.
22 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
Id. at 1296–97. The university’s police department had
performed a “thorough investigation” and produced a
comprehensive report within a few months of the assault that
largely corroborated the plaintiff’s account, but the university
still took no action. Id. at 1296–97. By the time the
disciplinary hearing was held, several of the plaintiff’s
assailants no longer attended the university. Id. at 1296. The
Eleventh Circuit concluded that, in those circumstances, the
university’s delay was deliberately indifferent. Id.Unlike the university in Williams, UC met with and
ultimately sanctioned Karasek’s assailant while he still
attended school. Any delay did not prejudice Karasek. Even
though UC could have acted more quickly, UC’s delay did
not constitute deliberate indifference.
b. UC’s alleged policy violations
Ordinarily, a school’s “failure to comply with [DOE]
regulations . . . does not establish . . . deliberate indifference.”
Gebser, 524 U.S. at 291–92. The same is true of a school’s
violations of its own policies. See Oden, 440 F.3d at 1089(finding no deliberate indifference even though the school’s
nine-month delay “contravene[d] College policy”); see also
Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist.,
647 F.3d 156, 169–70 (5th Cir. 2011) (“[J]ust because [the
school official] allegedly failed to follow district policy does
not mean that her actions were clearly unreasonable.”).
UC’s alleged conduct was inconsistent with both the DCL
and its own policies. The DCL advises a school to “take
immediate steps to protect” the complainant, afford the
parties “an equal opportunity to present relevant witnesses
and other evidence,” give “periodic status updates” to both
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 23
parties, and promptly notify the parties “in writing[] about the
outcome of both the complaint and any appeal.” 2011 Dear
Colleague Letter, at 10–13.3 Many of these provisions are
reflected in UC’s own policies. Further, both the DCL and
UC’s policies provide that a sexual-assault complaint should
be resolved within sixty days. Id. at 12. Finally, UC’s
Interim Sexual Misconduct Policy requires CSC to “consult
with the Complainant” before resolving a sexual-assault
complaint informally via an Administrative Disposition
Letter. UC followed none of these provisions.
Yet, this does not constitute deliberate indifference per se.
The DCL itself states that it is applying a standard that is less
exacting than the deliberate-indifference test used in “private
lawsuits for monetary damages.” Id. at 4 n.12. In other
words, in DOE’s view, a school could fail to abide by the
DCL’s provisions and yet not violate the deliberate-
indifference standard. We cannot say that UC was
3
The DCL is a “good practices” or “significant guidance document,”
as defined by the Office of Management and Budget (OMB). See id. at 1
n.1. According to OMB, guidance documents may set forth an agency’s
“policy on . . . or interpretation of a statutory or regulatory issue,” but they
may not “impose a legally binding requirement” that adds to existing law.
Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432,
3434 (Jan. 25, 2007). DOE acknowledges that the DCL informs DOE’s
judgment of whether a school is “complying with [its] legal obligations,”
but cautions that the DCL applies the “standard for administrative
enforcement of Title IX and in court cases where plaintiffs are seeking
injunctive relief,” and not the deliberate-indifference standard. 2011 Dear
Colleague Letter, at 1 n.1, 4 n.12.
Further, we note that DOE has rescinded the DCL, albeit long after
the events alleged in the FAC transpired. See Dear Colleague Letter,
Candice Jackson, Office for Civil Rights, U.S. Dep’t of Educ., at 1 (Sept.
22, 2017).
24 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
deliberately indifferent solely by disregarding the DCL and
its own policies.
To avoid this conclusion, Karasek, citing Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57 (1986), argues that the
DCL is DOE’s interpretation of Title IX, so we must defer to
that interpretation. But Meritor involved a question of
statutory interpretation: whether the phrase “discriminate
against any individual . . . because of such individual’s . . .
sex” in Title VII encompassed a sexually hostile work
environment. See id. at 63–67 (quoting 42 U.S.C. § 2000e-
2(a)(1)). We do not face a statutory interpretation issue. A
damages remedy for Title IX violations is judicially implied,
not statutorily created. The Supreme Court has crafted “a
sensible remedial scheme” with “a measure of latitude . . .
that best comports with the statute.” Gebser, 524 U.S. at 284.
Because the DCL does not address that remedial scheme, the
DCL is merely advisory and not an interpretation of Title IX
that need be afforded deference in this context under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). The Supreme Court in Davis, not
Congress, articulated the deliberate-indifference standard.
All we must decide is whether UC’s conduct qualifies as
deliberate indifference under that standard. Meritor is
inapposite, and the DCL does not control our inquiry here.
See Gebser, 524 U.S. at 291–92.
That is not to say that the DCL is entirely irrelevant to the
deliberate-indifference inquiry. Although we are aware of no
federal court of appeals that has addressed the impact of DOE
guidance documents when analyzing deliberate indifference,
many district courts have concluded that those documents
may guide the analysis. See, e.g., Doe 1 v. Baylor Univ.,
240 F. Supp. 3d 646, 659 (W.D. Tex. 2017) (“While the
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 25
Court agrees that a school’s failure to comply with certain
DOE guidelines generally cannot, alone, demonstrate a
school’s deliberate indifference, . . . it also agrees with
numerous courts that DOE regulations may still be consulted
when assessing the appropriateness of a school’s response to
reports of sexual assault.”); Butters v. James Madison Univ.,
208 F. Supp. 3d 745, 757–58 (W.D. Va. 2016) (noting that “a
school’s compliance or non-compliance with the DCL can be
a factor that the court considers,” but a violation of the DCL
“would not be dispositive on the issue of deliberate
indifference”); Doe v. Forest Hills Sch. Dist., No. 1:13-cv-
428, 2015 WL 9906260, at *10 (W.D. Mich. Mar. 31, 2015)
(“Although failure to comply with Title IX guidance does not,
on its own, constitute deliberate indifference, it is one
consideration.” (emphasis omitted)).
We agree that the DCL is useful as a persuasive document
that sets forth DOE’s considered views. Yet, given DOE’s
decision to rescind the DCL in 2017, see supra note 3, the
DCL’s persuasive force is somewhat limited. Regardless, a
school’s failure to follow the DCL’s provisions, standing
alone, will not constitute deliberate indifference. But that
failing may be relevant, particularly when it reflects “an
official decision . . . not to remedy the [Title IX] violation.”
Gebser, 524 U.S. at 290.
Ultimately, we conclude that UC’s noncompliance with
the DCL and its own policies was, at most, “negligent, lazy,
[and] careless.” Oden, 440 F.3d at 1089. Nevertheless,
because UC investigated Karasek’s complaint, met with her
assailant shortly after she submitted her written report, and
eventually imposed appropriate sanctions, UC’s
noncompliance did not constitute deliberate indifference to
Karasek’s complaint.
26 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
c. UC’s alleged failure to preclude further
harassment
Karasek argues that UC was deliberately indifferent by
failing to preclude the possibility that TH could harass
Karasek again after she reported the assault. UC could have
immediately imposed interim sanctions on TH, such as
barring him from campus during UC’s investigation or
issuing a no-contact order, particularly given that UC was
aware that multiple women reported being sexually assaulted
by him. Indeed, in hindsight, UC’s decision to initially
discourage the Club president from expelling TH from the
Club is troubling. UC instead attempted to resolve the
complaints against TH informally through “an early
resolution process.” We might have handled the situation
differently, but the Supreme Court has instructed us to
“refrain from second guessing the disciplinary decisions
made by school administrators” unless those decisions were
“clearly unreasonable.” Davis, 526 U.S. at 648.
UC’s decisions were not clearly unreasonable. Karasek
never interacted with TH again after the assault, aside from
seeing him from afar on one occasion. And there is no
indication that Karasek told Oldham and Hunt that she
regularly saw TH when meeting with them on April 20, 2012.
As a result, UC had no reason to know that preventative
measures were necessary to protect Karasek from future
harassment, especially in light of the context and nature of
her assault (though, as we note below, UC’s lack of
communication with Karasek likely prevented UC from fully
understanding what preventative steps may have been
necessary). UC’s failure to implement protective measures
did not exhibit deliberate indifference.
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 27
d. The substance of UC’s response
Karasek argues that “UC’s response was wholly
inequitable” because UC allowed TH to participate in the
“Cal in the Capitol” event and communicated with TH while
ignoring Karasek. Choosing not to prohibit TH from
attending “Cal in the Capitol” does not establish deliberate
indifference, for “[a]n aggrieved party is not entitled to the
precise remedy that he or she would prefer.” Oden, 440 F.3d
at 1089. Indeed, Karasek does not allege that she would have
attended “Cal in the Capitol” but for TH’s presence, so it is
unclear that UC’s decision not to forbid TH from attending
while UC’s investigation continued was clearly unreasonable.
As for UC’s lack of communication, this is an inexcusable
omission by UC’s officials. Keeping a victim of sexual
assault largely in the dark about the investigation of her
assailant and the ultimate sanctions imposed is not only
inappropriate, but also deprives the school of information that
might be crucial to its investigation. Nevertheless, despite its
lack of communication, UC acted on Karasek’s complaint
and imposed arguably appropriate sanctions on TH. Thus,
UC was not deliberately indifferent to Karasek’s assault.
Because the allegations in the FAC fail to show that UC
made “an official decision . . . not to remedy the [Title IX]
violation,” Gebser, 524 U.S. at 290, we affirm the district
court’s dismissal of Karasek’s individual Title IX claim.
2. Commins’s individual claim
Like Karasek, Commins argues that the FAC adequately
alleges deliberate indifference for several reasons: (a) UC
unjustifiably delayed its investigation, (b) UC violated the
DCL and its own policies, (c) UC failed to take steps to
28 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
prevent Doe 2 from further harassing Commins, and (d) UC
unreasonably failed to permit Commins to participate in the
investigation of Doe 2.
a. UC’s alleged delay
Commins argues that UC unjustifiably delayed its
resolution of Commins’s complaint. Thirteen months elapsed
after Commins reported her assault before UC imposed final
sanctions on Doe 2. This delay was partially engendered by
UC’s decision to stay its investigation until Doe 2’s criminal
charges were resolved. But UC did not sit on its hands during
those months. To the contrary, within two weeks of
Commins’s report, UC placed Doe 2 on interim suspension,
barring him from campus. Doe 2 remained on that
suspension, with a slight modification allowing him to attend
classes, throughout the investigation. This is unlike the
University of Georgia in Williams, which failed to act against
the assailants for eleven months. Commins’s allegations thus
fail to show that the thirteen-month delay prejudiced her or
was a “deliberate attempt to sabotage [her] complaint.”
Oden, 440 F.3d at 1089. UC’s actions were not clearly
unreasonable.
b. UC’s alleged policy violations
Like Karasek, Commins argues that UC’s investigation
ran afoul of the DCL and UC’s policies. While investigating
Commins’s complaint, UC acted inconsistently with all the
provisions of the DCL and its own policies that we have
already identified. Indeed, given the violent nature of
Commins’s assault, Commins likely should have been
afforded the opportunity to present testimony and other
evidence at a formal hearing, as the DCL recommends and
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 29
UC’s policies require. UC also violated its Interim Sexual
Misconduct Policy’s prohibition on suspending an
investigation merely because of pending criminal charges
against the assailant, which the DCL advises against as well.
See 2011 Dear Colleague Letter, at 10. But for the reasons
expressed above, this does not establish deliberate
indifference, particularly in light of the interim suspension
immediately placed on Doe 2 to protect Commins while UC’s
investigation was stayed.
c. UC’s alleged failure to prevent further harassment
Commins asserts that UC was deliberately indifferent
because “Doe 2 was not placed on interim suspension until
three months” after Commins’s report, and because UC
“never issued a no-contact order.” Both assertions are
incorrect. As demonstrated by the FAC’s allegations, UC
placed Doe 2 on interim suspension within two weeks of
Commins’s report, not three months. And UC did issue a no-
contact order to Doe 2 as part of the final sanctions imposed.
Commins does not allege that these protective measures were
ineffective. Indeed, Commins identifies no instance when she
ever saw Doe 2 again after reporting her sexual assault.
Thus, Commins’s argument here fails to demonstrate UC’s
deliberate indifference.
d. UC’s alleged failure to allow Commins to
participate in the investigation
Finally, Commins argues that UC responded inequitably
by constantly communicating with Doe 2 while failing to
update Commins or provide her with an opportunity to
participate in the investigation. Although UC contacted
Commins several times during the investigation and
30 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
discussed potential sanctions with her, we agree that UC’s
general lack of communication was likely a significant
failing. And as noted above, the decision to resolve
Commins’s complaint informally without allowing Commins
to testify or present evidence is troubling, given the context
and nature of her assault. If she had been given that
opportunity, perhaps UC would have dealt even harsher
sanctions. The wisdom of UC’s decision not to expel a
convicted felon, or at least extend his suspension while
Commins pursued graduate studies at UC, can be questioned.
Despite these shortcomings, however, UC’s response did not
exhibit deliberate indifference. After Commins reported her
assault, UC moved quickly to suspend her assailant, and UC
imposed fairly stringent sanctions upon resolution of
Commins’s complaint. We may disagree with UC’s handling
of Commins’s complaint, but that does not suffice for Title
IX liability. See Oden, 440 F.3d at 1089. We affirm the
district court’s dismissal of Commins’s individual claim.
3. Butler’s individual claim
In granting summary judgment to UC, the district court
held that Butler’s Title IX claim failed because UC’s
response was not deliberately indifferent.4 On appeal, Butler
argues that UC was deliberately indifferent in three respects:
(a) UC failed to investigate her complaint at all, (b) UC failed
to take steps to prevent Doe from harassing Butler again, and
(c) UC violated the DCL and its own policies.
4
The district court rejected Butler’s claim for two additional,
independent reasons: UC lacked control over Butler’s assailant and UC
did not cause Butler to experience severe and pervasive harassment.
Because we affirm the district court’s finding that UC was not deliberately
indifferent, we do not address the district court’s additional findings.
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 31
a. UC’s investigation
Butler’s argument that UC failed to investigate her
complaint is demonstrably false. Indeed, the district court
found that this argument “misrepresents the record.” After
Butler reported her assault and asked Oldham to investigate,
Oldham discussed the nature of the Wildlands Studies
Program with a UC faculty member to determine if UC’s
policies would apply. That conversation led Oldham to
discover that the program was affiliated with California State
University, Monterey Bay, and not with UC. Oldham also
emailed Leslie Arutunian, an employee with the Wildlands
Studies Program, who confirmed that the program had no
connection to UC. At that point, Oldham concluded that
UC’s policies did not apply to Butler’s assault and stopped
investigating. Thus, UC did in fact investigate Butler’s
complaint, and the extent of its investigation was not “clearly
unreasonable.” See Davis, 526 U.S. at 648.
b. UC’s alleged failure to prevent further harassment
Butler argues that UC was deliberately indifferent by
failing to preclude the possibility that Doe could harass Butler
again. But it is unclear what interim protective measures UC
should have imposed. As the district court found, Doe “was
an independent third-party with no official relationship to
UC.” Accordingly, UC could not directly sanction Doe, as it
could if Butler’s assailant had been a UC student or faculty
member. And Butler never told Oldham that she feared
meeting Doe on campus or that she wanted UC to issue a no-
contact order. Indeed, when Butler asked for help obtaining
academic accommodations, UC did so, demonstrating UC’s
sensitivity to Butler’s requests. Finally, Butler never claims
to have seen Doe again after her assault. Given the
32 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
information UC knew at the time, UC’s failure to
immediately implement protective measures does not
constitute deliberate indifference.
c. UC’s alleged policy violations
Butler contends that UC violated the DCL and UC’s own
policies by failing to (1) “respond to Butler’s complaint,”
(2) “act when [Butler] wanted to remain anonymous,” or
(3) “implement any interim measures to remediate her hostile
environment on campus.” We have already concluded that
UC did respond to Butler’s complaint and that the lack of
protective measures was not clearly unreasonable.
Regardless, as we explained above, UC’s failure to follow the
DCL’s guidance or abide by the school’s own policies does
not establish deliberate indifference. See supra Section
III.A.1.b. Accordingly, we affirm the grant of summary
judgment to UC on Butler’s individual claim.
B. Appellants’ Pre-Assault Claim
In addition to their individual Title IX claims, Appellants
allege that UC maintained a “policy of deliberate indifference
to sexual misconduct” that “created a sexually hostile
environment for [Appellants]” and heightened the risk that
Appellants would be sexually assaulted. UC argues that this
pre-assault theory of Title IX liability “fails as a matter of
law” because it is “contrary to . . . Supreme Court precedent.”
The district court dismissed this claim because it found
Appellants’ argument that UC’s “level of awareness or
deficiency of response with respect to the general problem of
sexual violence is enough to establish either actual knowledge
or deliberate indifference for the purposes of a Title IX
claim” without sufficient basis in our case law. To the
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 33
district court’s credit, we have never directly addressed pre-
assault Title IX claims. We hold that such a claim is a
cognizable theory of Title IX liability. Because we clarify the
standard applicable to such claims, we vacate the district
court’s dismissal of Appellants’ pre-assault claim and remand
for further proceedings.
As explained above, a plaintiff asserting a Title IX claim
based on sexual harassment committed by a faculty member
or peer must demonstrate that the school had “actual
knowledge” of the harassment and responded with “deliberate
indifference.” See Davis, 526 U.S. at 650. This ensures that
a school is “liable in damages under Title IX only for its own
misconduct,” and not that of third parties. Id. at 640.
But the calculus shifts when a plaintiff alleges that a
school’s “official policy” violates Title IX. See Gebser,
524 U.S. at 290. In that context, the school has “intentionally
violate[d] the statute.” Davis, 526 U.S. at 642. A school
need not have had actual knowledge of a specific instance of
sexual misconduct or responded with deliberate indifference
to that misconduct before damages liability may attach. See
Gebser, 524 U.S. at 290; see also Mansourian v. Regents of
Univ. of Cal., 602 F.3d 957, 967 (9th Cir. 2010) (“[W]here
the official policy is one of deliberate indifference to a known
overall risk of sexual harassment, notice of a particular
harassment situation and an opportunity to cure it are not
predicates for liability.”). Thus, a pre-assault claim should
survive a motion to dismiss if the plaintiff plausibly alleges
that (1) a school maintained a policy of deliberate
34 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
indifference to reports of sexual misconduct,5 (2) which
created a heightened risk of sexual harassment that was
known or obvious (3) in a context subject to the school’s
control, and (4) as a result, the plaintiff suffered harassment
that was “so severe, pervasive, and objectively offensive that
it can be said to [have] deprive[d] the [plaintiff] of access to
the educational opportunities or benefits provided by the
school.” Davis, 526 U.S. at 650.
We find persuasive the Tenth Circuit’s decision in
Simpson v. University of Colorado Boulder, 500 F.3d 1170(10th Cir. 2007). There, the University of Colorado hosted
talented high school football players on campus each fall.
The recruits were to be shown “a good time” and “were
paired with female ‘Ambassadors.’” Id. at 1173. Some
recruits were “promised an opportunity to have sex,” and
there was evidence that the coaching staff not only knew of
this conduct, but encouraged it. Id. at 1173–74. The
university was aware of prior complaints of sexual
misconduct by recruits and had been warned by the district
attorney that the university needed to supervise the recruits
and implement sexual assault prevention training. Id. at
1173–74, 1179–84. The plaintiffs were two women who
were sexually assaulted by football recruits. Asserting a pre-
assault claim, the plaintiffs argued that the university had a
history of responding with deliberate indifference to reports
of sexual assaults occurring in its football recruiting program.
5
We do not hold that deliberate indifference to reports of past sexual
misconduct is the only form of pre-assault conduct that could result in an
institution’s Title IX liability. Rather, we focus on the sufficiency of such
allegations because they are what the FAC articulates. We do not have
occasion to consider whether other forms of pre-assault conduct could
amount to an official policy of deliberate indifference that is actionable
under Title IX.
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 35
Id. at 1174–75, 1177. The district court granted summary
judgment to the university, finding that the plaintiffs failed to
establish “actual notice” and “deliberate[] indifferen[ce].” Id.
at 1174. The Tenth Circuit reversed. It held that “when [a
Title IX] violation is caused by [an] official policy,” the
“notice standards established . . . in Gebser and Davis” do not
apply because, in that case, “the institution itself, rather than
its employees (or students), [is] the wrongdoer.” Id. at
1177–78. Because the “risk of . . . [sexual] assault” in the
football recruiting program was “obvious,” the failure to
remedy that risk constituted an official policy of deliberate
indifference that violated Title IX. Id. at 1178, 1180.
UC reads Simpson to require that the risk of sexual
harassment be a “specific problem in a specific program.”
Based on that understanding, UC argues that Appellants’
allegations of a heightened risk of sexual harassment
throughout UC’s programs cannot survive.
We disagree. To be sure, Simpson involved a particular
program. But Simpson’s reasoning, and the reasoning of
Gebser and Davis, supports imposing Title IX liability when
a school’s official policy is one of deliberate indifference to
sexual harassment in any context subject to the school’s
control. Of course, it may be easier to establish a causal link
between a school’s policy of deliberate indifference and the
plaintiff’s harassment when the heightened risk of harassment
exists in a specific program. But we will not foreclose the
possibility that a plaintiff could adequately allege causation
even when a school’s policy of deliberate indifference
extends to sexual misconduct occurring across campus.
Applying the framework we have set forth, we vacate the
district court’s dismissal of the pre-assault claim. Allegations
36 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
that UC had actual knowledge or acted with deliberate
indifference to a particular incident of harassment are
unnecessary to sustain this theory of liability. Instead, all
Appellants need allege are facts demonstrating the four
elements we have articulated above.
What the FAC does allege is troubling. The FAC
describes a report issued in 2014 by the California State
Auditor that details deficiencies in UC’s approach to sexual-
misconduct complaints. See CALIFORNIA STATE AUDITOR,
REP. NO. 2013-124, SEXUAL HARASSMENT AND SEXUAL
VIOLENCE (2014). The Auditor found that, over a five-year
period, UC “resolved 76 percent of Title IX complaints from
students using the early resolution process” in a generally
inadequate manner. Id. at 53. For example, UC could not
“demonstrate that [it] consistently informed students of what
to expect as the university investigated their complaints.” Id.
at 55. UC also failed to “provide regular updates on the
status of [its] investigations to students.” Id. at 57. It did not
“consistently complete investigations in a timely manner.”
Id. at 61. And it “did not notify all student complainants of
the outcome of an investigation and the subsequent
disciplinary action against the accused.” Id. at 59. Further,
the Auditor found that UC did not sufficiently educate its
employees and students about preventing sexual harassment,
which led to the “mishandl[ing]” of sexual-misconduct
complaints and “put[] the safety of [its] students at risk.” Id.
at 15, 30.
The FAC also highlights an incongruity between UC’s
public statements and its handling of sexual-misconduct
complaints. In February 2014, Denise Oldham—UC’s Title
IX Officer—stated in an interview with the Los Angeles
Times that she “could not imagine a situation where” using an
KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 37
early resolution process for cases involving sexual assault
“would be appropriate.” If Oldham’s premise is correct—that
early resolution is not an appropriate mechanism for
resolving sexual-assault claims—UC’s conduct during the
period in question appears inexplicable. According to the
FAC, of the five hundred cases of sexual misconduct reported
to UC’s Office for the Prevention of Harassment and
Discrimination in 2012, only two were resolved through a
“formal process.” Similarly, of the fourteen sexual-
misconduct complaints reported to UC’s Center for Student
Conduct in 2013, all “were resolved through the . . . informal
resolution process.”
Finally, the FAC alleges that UC had a powerful incentive
to resolve cases through an informal process. The Jeanne
Clery Disclosure of Campus Security Policy and Campus
Crime Statistics Act requires UC to annually publish the
number of “criminal . . . sex offenses, forcible or
nonforcible,” that were “reported to campus security
authorities or local police agencies” and that occurred on or
around campus during the prior two years. 20 U.S.C.
§ 1092(f)(1)(F)(i). According to the FAC, UC “takes the
position” that “it is not required to report the offense”
pursuant to the Clery Act “if the matter is resolved
informally.” Assuming that is true (as we must, at this stage),
it is plausible that choosing to resolve sexual-misconduct
complaints through an early resolution process enables UC to
escape these statutory disclosure requirements.
UC argues that Appellants’ allegations are less probative
of an official policy than the evidence mustered by the
plaintiffs in Simpson. We agree that the allegations here are
much broader than the specific problem of sexual assault in
the University of Colorado’s football recruiting program. But
38 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA
UC’s argument misses the mark. We are here on a motion to
dismiss. Simpson involved a motion for summary judgment,
after the parties had conducted discovery. Thus, the question
is not whether Appellants’ allegations are comparable to the
evidence produced in Simpson. Rather, the question is
whether Appellants plausibly allege that UC had a policy of
deliberate indifference that heightened the risk of sexual
harassment on campus, resulting in the assaults Appellants
experienced.
Ultimately, we leave to the district court to decide, in the
first instance, whether Appellants’ allegations are sufficient
to survive a motion to dismiss under the principles we have
set forth. We reiterate that Title IX does not require UC to
purge its campus of sexual misconduct to avoid liability. See
Davis, 526 U.S. at 648. A university is not responsible for
guaranteeing the good behavior of its students. The element
of causation ensures that Title IX liability remains within
proper bounds. To that end, adequately alleging a causal link
between a plaintiff’s harassment and a school’s deliberate
indifference to sexual misconduct across campus is difficult.
Whether the FAC plausibly alleges such a link—or any of the
four elements—is an issue for the district court to decide
upon remand. And the district court retains the discretion to
allow Appellants to amend their complaint if “justice so
requires.” Fed. R. Civ. P. 15(a)(2). In short, we vacate that
portion of the district court’s dismissal order addressing
Appellants’ pre-assault claim and remand for further
proceedings.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED. Each party shall bear its own costs on appeal.