Stafford v. George Washington University

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JABARI STAFFORD,
Plaintiff,
v. Case No. 18-cv-2789 (CRC)
THE GEORGE WASHINGTON
UNIVERSITY,
Defendant.
MEMORANDUM OPINION
Plaintiff Jabari Stafford alleges that he was a victim of racial abuse by coaches and
teammates during his three-and-a-half years as a varsity tennis player at George Washington
University (“GWU” or “the University”). Stafford also claims that the University was
deliberately indifferent to the racial hostility he experienced, in violation of Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d. Before the Court is GWU’s motion for summary
judgment. As explained below, the Court concludes that GWU is entitled to summary judgment
because Stafford’s Title VI claim is entirely barred by the applicable statute of limitations—the
one-year limitations period in the District of Columbia Human Rights Act. The Court
acknowledges, however, that its statute of limitations holding is a novel one; courts in this
district have up to now applied the three-year limitations period from D.C.’s general personal
injury law to Title VI claims. In recognition of that fact, and for the benefit of the parties and
any reviewing court, the Court also indicates, at the conclusion of its Opinion, how it would view
the summary judgment record under a three-year statute of limitations.
1
I. Background
A. Factual background
Plaintiff Jabari Stafford, who is African American, joined the GWU men’s tennis team in
the fall of 2014. Def. SMF ¶¶ 1, 13–15.1 According to Stafford, shortly after the start of his
freshman season, several of his teammates began using what he refers to as “racial rhetoric”:
calling him the n-word or using it in his presence, referring to him as a “monkey,” asking about
whether his ancestors had been enslaved, and posting memes using the n-word to social media.
See Pl. SMF ¶¶ 17–18; Def. Mot. Summ. J., Ex. 2 at 46:1–5 (Jabari Stafford Dep.). Stafford’s
statement of disputed fact does not pinpoint the timing of such incidents, and evidence in the
record likewise does not always provide a clear timeline. See Pl. SMF ¶ 17 (placing incidents
generally in Stafford’s freshman and sophomore years); Def. Ex. 2 at 51:20–22 (explaining only
that teammates made such comments “throughout [his] tenure at GW”). Stafford emphasized in
deposition testimony, however, that this kind of “[r]acial rhetoric” began in “the very beginning
of his freshman year,” and that he quicky complained about it to the head coach at the time, Greg
Munoz. Def. Ex. 2 at 48:19–50:21. Stafford claims that Munoz did nothing in response—and
instead participated in and encouraged the mistreatment Stafford faced. See Pl. SMF ¶¶ 32–40.
1
The Court draws these facts from the defendant’s Statements of Material Facts Not in
Dispute (“Def. SMF”), ECF No. 78-1, and the plaintiff’s competing Statement of Genuine Issues
(“Pl. SMF”), ECF No. 82, as well as other evidentiary exhibits filed by the parties as necessary.
The Court notes that the plaintiff’s Statement of Material Facts does not generally satisfy the
requirements of Local Rule 7(h)(1), which requires the non-moving party to directly
“controvert[]” the facts identified by the moving party. See LCvR 7(h)(1); see also Cauthen v.
District of Columbia, 459 F. Supp. 3d 134, 137 n.1 (D.D.C. 2020). That deficiency has made it
more difficult for the Court to assess the summary judgment record. Nevertheless, exercising the
discretion granted to it by the local rules, the Court chooses not to treat any of the assertions in
GWU’s Statement of Material Facts as conceded. See Arrington v. United States, 473 F.3d 329,
335 (D.C. Cir. 2006) (noting that rule “permits, but does not require,” district court to treat facts
as conceded).
2
In Stafford’s telling, Munoz and other coaching staff singled out him and other players of color
because of their race and American nationality in several separate incidents that year. Id. ¶¶ 4–
16.
Things first came to a head in January 2015—the middle of Stafford’s freshman year—
when he was suspended from the tennis team following an altercation with a teammate. See Def.
SMF ¶ 32; Pl. SMF ¶ 26. In his statement of facts, Stafford claims that, at the time, his “only
confrontations with teammates consisted of him voicing his objections to their racist remarks.”
Pl. SMF ¶ 26. But the cited portions of the record do not substantiate that allegation. See Def.
Ex. 2 at 45:15–46:14 (recounting complaint of racism to Coach Munoz and altercation with
teammate, but never claiming that fights with teammates had been limited to objections to racist
remarks). And a January 18, 2015, email from Munoz to Stafford lists several other reasons for
the suspension, including his “anger control” and “profanity issues,” his lack of “pride” in the
University, a failure to “support teammates,” and an incident in which Stafford “disrespect[ed]”
an assistant coach and failed to apologize. Def. SMF ¶ 33; Def. Mot. Summ. J., Ex. 16.
After the suspension, Stafford and his father, Tom, met with Coach Munoz and Nicole
Early, the administrator for the tennis team in GWU’s Athletics Department. See Def. SMF
¶¶ 34–36; Pl. SMF ¶ 43. The parties’ accounts of this meeting differ substantially. Stafford and
his father both testified that, during this conversation, they told Early and Munoz about “the
racial rhetoric that was going on,” including “the names, the harassment, [and] the hostility.”
See Pl. SMF ¶ 44; Def. Ex. 2 at 120:13–121:19; Def. Mot. Summ. J., Ex. 6 at 41:10–42:11 (Tom
Stafford Dep.) (recounting discussions of “unlevel playing field” and “race in America”). In
Jabari’s view, the two “ignored” his report. Def. Ex. 2 at 120:21–22. GWU, by contrast, insists
that the meeting focused solely on “the non-discriminatory reasons” for Stafford’s suspension.
3
See Def. SMF ¶ 36; Def. Mot. Summ. J., Ex. 20 at 15 (GWU interrogatory responses). Notably,
Early did not recall any discussion of racism. Rather, she remembered Stafford’s father alleging
his son was treated differently than other players who engaged in similarly disruptive and
disrespectful behavior, but did not remember him tying this treatment to Jabari’s “race.” Def.
Mot. Summ. J., Ex. 7 at 49:3–11 (Early Dep.). The parties have pointed to no evidence in the
record that either Early or Munoz took steps to address any racial harassment on the tennis team
after this meeting. A month later, Stafford was reinstated to the team. Def. SMF ¶¶ 40–41.
Stafford’s teammates’ use of racial slurs purportedly continued through the end of his
freshman year and into his sophomore season. For example, Stafford testified in his deposition
that shortly after his reinstatement, one player yelled the n-word “so loud that pretty much
everybody could hear it” while the two were in a hotel room for a tournament. Def. Ex. 2 at
52:20–53:11. At some point that spring, another player loudly called an opposing player a “f—
porch monkey,” while another referred to Stafford as “an ape.” Id. at 54:6–11, 55:9–22; see also
Pl. SMF ¶¶ 17, 20. Stafford recalled that, after one such incident, Munoz claimed that the
teammate didn’t “really mean it” and instructed Stafford to “shut up” and not “worry about it.”
Def. Ex. 2 at 54:11–15; see also Pl. SMF ¶¶ 34–35. It is undisputed that Stafford did not again
report any harassment on account of his race by his teammates or Munoz to others at the
University during his freshman year. See Def. SMF ¶ 53; Pl. SMF ¶ 46.
But the parties do dispute whether Stafford put the University on notice about any
mistreatment during his sophomore year—a period when, he says, the racist language by his
teammates and coaches continued. See, e.g., Def. Ex. 2 at 63:2–64:12 (noting altercation with
teammate during spring of sophomore year); id. at 199:17–200:9 (recalling statement by Coach
4
Munoz). Stafford recalls at least three reports to GWU officials, as well as evidence in the
record that, he says, demonstrates that the University had heard his complaints.
First, Stafford testified that he complained to Coach Munoz about “racial discrimination”
by his teammates in the fall of 2015. Def. SMF ¶ 60; Def. Ex. 2 at 59:9–15.
Second, Stafford’s father recalled speaking about racial harassment on the team with
Michael Tapscott, the Director of GWU’s Multicultural Student Services Center, at some point
that same year. See Pl. SMF ¶¶ 47–48; Def. Ex. 6 at 55:13–56:12 (recounting discussions of the
experience of a “kid of color” on a largely white team); see also Def. SMF ¶¶ 61, 66; Def. Mot.
Summ. J., Ex. 34 at 14:24–15:2, 20:13–19, 33:4–16 (Tapscott Dep.). Tapscott’s memories of his
interactions with the Staffords differ sharply. Tapscott testified that the elder Stafford’s
complaints focused entirely on how much playing time Jabari had received—not race. Def. SMF
¶¶ 66–67. Tapscott likewise reported that he separately spoke with Jabari, and in that
conversation Jabari mentioned “derogatory comments” by fellow tennis players, but did not
“specifically” tie them to issues of race. Id. ¶ 62. At the end of their conversations, Tapscott
encouraged both Jabari and his father to reach out to Nicole Early, the administrator in the
Athletics Department with whom the two had met the previous school year. Id. ¶¶ 63, 68.
According to Tapscott, Jabari did not respond to any follow-up messages. Def. Ex. 34 at 29:10–
30:4.
Third, Stafford points to a January 2016 email exchange between two Athletics
Department administrators—Early and Ed Scott, a Senior Associate Athletics Director—that, in
his view, suggests the University was aware of ongoing discrimination. See Pl. Opp’n to Def.
Mot. Summ J. (“Pl. Opp’n”) at 7, 17–18. In that email, Early advised Scott of a “disciplinary
issue with Jabari Stafford,” and warned that Stafford’s father would “likely get involved” and
5
“suggest that Jabari is being discriminated against.” Pl. Opp’n, Ex. L. Stafford construes this
email as a response to his father’s complaints about racism the previous semester, including to
Tapscott. Pl. Opp’n at 7. The University rejoins that the email cannot be read to show Early
knew about any actual claims of racial discrimination. Def. Reply at 12.
Finally, Stafford testified to another discussion with Athletics Department administrators
in March 2016, during his sophomore year, shortly after Coach Munoz left GWU and Torrie
Browning took over as interim head coach. Def. SMF ¶ 69; Def. Ex. 2 at 196:5–18. That month,
Stafford requested a meeting with Early to discuss why Browning had left him out of a
tournament lineup. Def. SMF ¶¶ 70–71; Def. Ex. 2 at 203:5–206:4. At that meeting, Stafford
recalled, he informed Early about the “racial rhetoric and . . . racial discrimination” he had been
“forced to endure” under both Munoz and Browning. Def. Ex. 2 at 211:19–212:13; see also Def.
SMF ¶ 71. Again, the University’s account of this conversation differs. According to Early,
Stafford’s complaints centered entirely on his desire for more playing time—not any racial
discrimination he’d experienced. Def. Ex. 7 at 152:23–154:16. Given these divergent retellings
of the March 2016 meeting, it is unsurprising that the parties also disagree about the import of
what happened next. In Stafford’s telling, Early responded inadequately to reports of ongoing
racial harassment: Rather than take any concrete action to address racism on the team, she only
encouraged Stafford to wait for the arrival of a new coach the next fall. See Def. Ex. 2 at
196:13–18; Pl. Opp’n at 19. In the University’s telling, however, Early’s next steps were
entirely appropriate: To address his complaints about playing time, Early set up a meeting with
Stafford, his father, and Browning to discuss her lineup decisions and his playing style. Def.
SMF ¶¶ 76–80; Def. Ex. 7 at 153:9–154:3; Def. Ex. 2 at 206:19–207:10. The University
emphasizes that, in his deposition, Stafford conceded he had been “satisfied” with Early’s
6
response. See Def. SMF ¶ 72; Def. Ex. 2 at 196:19–197:2. Stafford likewise recalled that, after
these meetings, he believed that “the racial culture was going to change,” and that he had been
given the go ahead to sit out team events and “focus on [his] academics” for the rest of the
semester. Def. Ex. 2 at 196:21–22, 226:15–18.
At the start of his junior year, in September 2016, Stafford instead learned that he was no
longer on the team’s roster. Def. SMF ¶¶ 84, 96. Frustrated by the coaching staff’s
explanation—that they thought he had quit the team the previous spring—Stafford and his father
contacted several GWU employees: Early, the tennis team administrator; Tapscott, the
Multicultural Student Services Center director; Helen Cannaday Saulny, the Associate Provost
for Diversity, Equity, and Community Engagement; and Patrick Nero, the University Director of
Athletics and Recreation. See id. ¶¶ 8, 83–90, 110; Def. Ex. 6 at 239:4–241:15. That October,
the Staffords met with Saulny and Scott, a Senior Associate Athletics Director. Def. SMF ¶¶ 95,
106–07. At that meeting, Stafford and his father reported widespread use of “racial epithets” by
tennis team members, who, they said, were “trying to get [Jabari] kicked of[f] the team.” Id.
¶ 106. During this meeting and in email exchanges beforehand, several administrators provided
the Staffords with information on how Jabari could make an official report via GWU’s student
grievance procedures—the mechanism in the University’s handbook for addressing incidents of
racial bias. See id. ¶¶ 97, 103–04, 106; Def. Mot. Summ. J., Ex. 43 at 3 (email from Ed Scott);
Def. Mot. Summ. J., Ex. 5 at 114:3–11 (Saulny Dep.) (discussing conversation with Tom
Stafford about complaint process). Stafford has conceded that he never lodged any official
grievance report during his time at GWU. Def. SMF ¶ 108; Pl. SMF ¶ 46; Def. Ex. 2 at 123:9–
19.
7
As a result of these meetings, the new tennis coach, David Macpherson, agreed to admit
Stafford back onto the team roster following a “skills assessment.” Def. SMF ¶¶ 111–12.
Stafford rejoined the team that December. Id. ¶ 112.
Yet, Stafford says the pattern of harassment continued. At two points the following
spring, Stafford recalls, he told Macpherson that he still faced mistreatment by his teammates on
account of his race. Def. SMF ¶ 123; Def. Ex. 2 at 262:19–264:3. The details of the complaints
remain unclear. Indeed, Stafford at one point testified that he did not directly “link” his
complaints to his “race.” Def. SMF ¶ 123; Def. Ex. 2 at 262:22–263:1. But he elsewhere
remembered telling Macpherson that his teammates were “plotting against” him, “taunting” him,
and “racially discriminating against” him. Def. SMF ¶ 123; Def. Ex. 2 at 271:3–7. According to
Stafford, Macpherson reassured him that everything would be “dealt with,” but never acted to
rein in other players’ use of racial epithets. Def. Ex. 2 at 271:11–15. This conversation—in the
spring of 2017—is the latest point in the record that Stafford reports speaking directly with any
coach or Athletics Department administrator about racial harassment.
Stafford’s interactions with his teammates during his senior year—beginning in the fall of
2017—do not feature heavily in his briefing. See Pl. Opp’n at 10–11 (identifying incidents after
his return to the team in 2016, but never specifically tying any to his senior year). But at the
summary judgment hearing, Stafford drew the Court’s attention to deposition testimony that he
contends would support a finding that the harassment continued into his senior year and that
GWU coaches knew about it. See Mot. Hr’g Rough Tr. at 30:9–32:6. In that excerpt, Stafford
testified that “during [his] junior year, but also during [his] senior year,” one teammate “was
always yelling out” racial epithets in the team van while an assistant couch was “present.” Def.
Ex. 2 at 274:8–14.
8
By the middle of that year, Stafford’s position at GWU was precarious. His grades,
though never high, had fallen over the course of the previous year. See Def. Mot. Summ. J., Ex.
28. Stafford attributes this academic decline to the racism he allegedly experienced on the tennis
team: Because “everything had intensified so much,” he “couldn’t focus and . . . wanted to
spend time thinking about” how “to cope with the things that were happening.” Def. Ex. 2 at
283:1–8; see also id. at 289:2–6. GWU points instead to Stafford’s longstanding challenges
succeeding in school, dating back to high school and continuing in his very first semester at the
University. See, e.g., Def. SMF ¶¶ 2–7, 19–26. Stafford’s academic struggles—including two
consecutive semesters with a term GPA below 2.0—soon triggered action on the part of the
University. See Def. Mot. Summ. J., Exs. 28, 62. In January 2018, GWU informed Stafford that
he would be suspended under standard University regulations governing academic performance.
Def. SMF ¶ 128; Def. Ex. 62.
Soon thereafter, Stafford met with one of his academic advisors, Ellen Woodbridge, to
discuss his anticipated appeal of GWU’s suspension decision. Def. SMF ¶ 135. In that meeting,
Stafford claims to have again reported experiencing racism at the hands of his teammates. Id.
He remembered telling Woodbridge that this harassment had contributed to his academic
struggles, but testified that she instructed him “not to talk about those issues.” Id.; Def. Ex. 2 at
291:16–293:21. Instead, Stafford’s appeal letter mentioned “issues relati[ng] to . . . focus and
attention span,” his “poor[] . . . handl[ing]” of his role as a student-athlete, and “marital problems
between [his] parents.” Def. SMF ¶ 133; Def. Mot. Summ. J., Ex. 66 at 4–5. The University
denied Stafford’s appeal. Def. SMF ¶ 137. Although Stafford could have later applied for
readmission, Def. Ex. 62, he did not attempt to return to finish his degree at GWU, Def. SMF
¶ 138.
9
B. Procedural history
Stafford filed suit on November 26, 2018, bringing a variety of federal and D.C.-law
discrimination claims against GWU; two coaches, Munoz and Macpherson; two Athletics
Department administrators, Early and Nero; and several unnamed former tennis teammates. See
Compl. ¶¶ 1, 5–10. After GWU and Early moved to dismiss the complaint, this Court narrowed
the scope of Stafford’s claims considerably. See Stafford v. George Washington Univ., No. 18-
cv-2789, 2019 WL 2373332 (D.D.C. June 5, 2019). A single federal claim against GWU
remains: that the University’s deliberate indifference to racial harassment by teammates and
coaches contributed to a hostile educational environment, in violation of Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d.2 See id. at *11–17. The Court gave Stafford leave to
amend his complaint to more specifically plead this hostile-environment claim, and scheduled
discovery. See id. at *22; Scheduling Order of July 31, 2019; Second Am. Compl. ¶¶ 120–24,
ECF No. 41. At the close of discovery, GWU moved for summary judgment on the remaining
Title VI claim.3 That motion is now ripe.
2
In its opinion on GWU’s motion to dismiss, the Court suggested that the heart of
Stafford’s remaining Title VI claim was peer harassment, since much of what he had
“document[ed] concern[ed] racial abuse and antagonism by his teammates rather than the
University and its employees.” See Stafford, 2019 WL 2373332, at *11. The Court now reads
the allegations in Stafford’s Second Amended Complaint to encompass both student-on-student
harassment and coach-on-student harassment, most notably by Coach Munoz. See, e.g., Second
Am. Compl. ¶ 28 (alleging “bullying . . . of the non-white tennis players” by Munoz). The Court
notes that the standards for liability may generally differ for the two sources of harassment. Cf.
Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 653 (1999) (explaining that “[p]eer
harassment . . . is less likely to” “breach Title IX’s guarantee of equal access to educational
benefits” than is “teacher-student harassment”). Whatever differences exist, the Court does not
find them relevant to its resolution of the claims at this stage.
3
In its motion, GWU describes a discovery dispute over allegations that Stafford “had
bribed and intimidated several witnesses.” Def. Mem. in Supp. of Mot. Summ. J. at 15. The
Court has already appropriately sanctioned the plaintiff for any misconduct, including by
10
II. Legal Standards
The Court must grant summary judgment where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). As the moving party, GWU bears the initial burden of
demonstrating the “absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); Fed. R. Civ. P. 56(c)(1). In determining the existence of a genuine dispute
of material fact, the Court must “view the facts and draw reasonable inferences in the light most
favorable to the party opposing the summary judgment motion.” Scott v. Harris, 550 U.S. 372,
378 (2007) (internal quotation marks and alteration omitted). The non-moving party may not,
however, rely on “mere allegations” or conclusory statements to defeat a motion for summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Greene v. Dalton, 164
F.3d 671, 675 (D.C. Cir. 1999).
Title VI provides that “[n]o person in the United States shall, on the ground of race . . . be
excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Under Title
VI, as under other federal antidiscrimination statutes, federally funded institutions may be liable
for intentional discrimination if they have been “deliberately indifferent” to known acts of
harassment that give rise to a hostile educational environment. See Davis v. Monroe Cnty. Bd.
of Educ., 526 U.S. 629, 643 (1999) (Title IX sexual harassment claim); see also Fennell v.
Marion Indep. Sch. Dist., 804 F.3d 398, 408 (5th Cir. 2015) (Title VI racial harassment claim).
The D.C. Circuit has yet to consider the appropriate framework for evaluating a Title VI racially
excluding any potentially tainted evidence from use at summary judgment. See Status Hr’g Tr.
at 8:23–9:5, ECF No. 77.
11
hostile environment claim arising from either peer or teacher harassment. But several other
federal circuits have applied the Supreme Court’s approach from the Title IX context, as laid out
in Davis, to claims of deliberate indifference to racial discrimination. See, e.g., Fennell, 804
F.3d at 408–09; Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 272–73 (3d Cir. 2014); Bryant
v. Indep. Sch. Dist. No. I-38 of Garvin Cnty., Okl., 334 F.3d 928, 934 (10th Cir. 2003).
Although the exact elements of such a hostile environment claim differ across circuits,
courts tend to require that an educational institution: “(1) had actual knowledge of, and (2) was
deliberately indifferent to (3) harassment that was so severe, pervasive and objectively offensive
that it (4) deprived the victim of access to the educational benefits or opportunities provided by
the school.” Bryant, 334 F.3d at 934. As in the Title IX context, plaintiffs must also show that
the institution had sufficient “control over the harasser and environment” to be able to take
remedial action. See Fennell, 894 F.3d at 408. To satisfy the actual knowledge element, a
plaintiff must establish that an “appropriate person”—one who “at a minimum has authority to
address the alleged discrimination and to institute corrective measures on the [institution’s]
behalf”—had actual notice of the alleged misconduct. Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 290 (1998) (setting out standard in Title IX context); see also Zeno v. Pine Plains
Cent. Sch. Dist., 702 F.3d 655, 665–66 (2d Cir. 2012) (applying Gebser to Title VI context).
Courts have likewise clarified that the deliberate indifference prong of this test sets a
“high bar for plaintiffs to recover.” Prasad v. George Washington Univ., 390 F. Supp. 3d 1, 25
(D.D.C. 2019) (quoting Stiles ex rel. D.S. v. Grainger Cnty., Tenn., 819 F.3d 834, 848 (6th Cir.
2016)). As the Supreme Court has explained, institutions “are deemed ‘deliberately indifferent’
to acts of . . . harassment only where [their] response to the harassment or lack thereof is clearly
unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648. “This means that
12
‘courts should refrain from second-guessing the disciplinary decisions made by school
administrators,’ and . . . that a court can, ‘[i]n an appropriate case, . . . identify a response as not
clearly unreasonable as a matter of law’ and, on that basis, enter summary judgment in favor of
the school.” Cavalier v. Cath. Univ. of Am., 513 F. Supp. 3d 30, 50 (D.D.C. 2021) (“Cavalier
II”) (quoting Davis, 426 U.S. at 648, 649) (internal citation omitted).
III. Analysis
The operative complaint recounts Stafford’s experiences at GWU and seeks recovery
under Title VI for events dating back to his freshman year, in the fall of 2014. See Second Am.
Compl. ¶¶ 24, 118. In its motion for summary judgment, GWU contends that much of this claim
is barred by a one-year statute of limitations. See Def. Mem. in Supp. of Mot. Summ. J. (“Def.
MSJ”) at 18–20. It further argues that any remaining discrimination claim within the limitations
period must fail, as no reasonable jury could find GWU liable on the summary judgment record.
Id. Stafford opposes, urging the court to adopt a longer statute of limitations and find that, under
that limitations period, his claim survives summary judgment. See Pl. Opp’n at 13–19.
GWU has the better of this argument. Although the Court has not located any precedent
so holding, the appropriate statute of limitations for Title VI claims brought in this district—
borrowed from the most analogous state law—comes from the District of Columbia’s
antidiscrimination statute, the D.C. Human Rights Act (“DCHRA”). Under that shorter
limitations period, Stafford’s claim fails at summary judgment because he has not established
that he notified an appropriate person of any ongoing discrimination during the statutory period.
The Court recognizes that its statute-of-limitations holding differs from the conclusion reached
by other courts in this district and several federal circuits, which have applied the limitations
rules from states’ general personal injury law to Title VI claims. But, as the Court will explain,
13
recent case law in this district and the District of Columbia Court of Appeals, addressing the
analogous remedial regime in the federal Rehabilitation Act, warrants a reevaluation of that
conclusion here.
Still, given the novelty of its holding and for the ease of any further review of this
decision, the Court also indicates how it would rule at summary judgment, should D.C.’s three-
year statute of limitations for personal injury claims apply. Under that longer limitations period,
the Court would find GWU has satisfied its burden at summary judgment as to only a portion of
Stafford’s claim. As to his junior and senior years, GWU has demonstrated that its response to
any complaints of racial harassment was not “clearly unreasonable” as a matter of law. But
genuine disputes of material fact exist as to whether Stafford adequately put the University on
notice about the harassment he claims to have faced in his freshman and sophomore years. The
legal sufficiency of GWU’s response—or lack thereof—thus cannot be evaluated at this juncture.
Accordingly, under a longer statute of limitations, the Court would only grant GWU partial
summary judgment, and would allow this truncated claim to reach a jury.
A. Application of a one-year statute of limitations
1. Relevant time limitation
Because Title VI contains no express statute of limitations, the Supreme Court has
instructed courts to “borrow” one from “the most closely analogous . . . state law.” DelCostello
v. Int’l Bhd. of Teamsters, 462 U.S. 151, 158 (1983); Proctor v. District of Columbia, 74 F.
Supp. 3d 436, 457 (D.D.C. 2014). In this district, courts have typically borrowed D.C.’s three-
year statute of limitations for general personal injury claims for Title VI cases. See, e.g.,
Richards v. Duke Univ., 480 F. Supp. 2d 222, 237–38 (D.D.C. 2007). But at the motion to
dismiss stage here, the Court opined that the one-year limitations period from the DCHRA may
14
be more appropriate, citing case law from the D.C. Court of Appeals and this Court addressing
the same question for claims under the federal Rehabilitation Act. See Stafford, 2019 WL
2373332, at *7–8 (citing Jaiyeola v. District of Columbia, 40 A.3d 356, 365–67 (D.C. 2012) and
Congress v. District of Columbia, 324 F. Supp. 3d 164, 171–73 (D.D.C. 2018)). Still, the Court
noted that the statute of limitations is an affirmative defense, and that GWU had, at that point,
only asked for application of a three-year limitations period. Id. at *8. The Court therefore
declined to apply the DCHRA’s shorter limitations period at that juncture. Id.
In its answer and summary judgment briefing, GWU now asserts a one-year statute of
limitations as an affirmative defense. See Answer at Affirmative Defense ¶ 15, ECF No. 34;
Def. MSJ at 18–20. Stafford’s opposition brief does not engage with the merits of applying the
shorter limitations period, arguing only that the “Court has already held that a three-year statute
of limitations applies.” Pl. Opp’n at 13. And at oral argument, Stafford’s counsel refused to
“conced[e]” the statute of limitations issue, but likewise offered little affirmative argument as to
why the Court should use a three-year limitations period. See Mot. Hr’g Rough Tr. at 26:23–
27:10. Because GWU has now raised the defense, the Court will fully consider which statute of
limitations is most appropriate: the one-year period in the DCHRA, or the three-year period for
general personal injury claims in the District of Columbia.
At the outset, the Court finds it has the authority to take up this question once again,
notwithstanding any litigation at the motion-to-dismiss stage. In its prior opinion, the Court did
not, as Stafford suggests, hold that a three-year limitations period applied. Rather, the Court
used the three-year limitations period because GWU asked it to do so—even while suggesting
that it was “probably incorrect.” Stafford, 2019 WL 2373332, at *8.
15
Nor does GWU’s past advocacy for a three-year limitations period preclude it—or the
Court—from revisiting the analysis laid out in the prior opinion. As GWU correctly notes, the
statute of limitations is not a defense that can be waived by failure to raise it in a pre-answer
motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure. See Nattah v. Bush,
770 F. Supp. 2d 193, 208 (D.D.C. 2011) (explaining that, because they are based on failure to
state a claim, limitations defenses need only be raised in a responsive pleading); Perry v.
Sullivan, 207 F.3d 379, 383 (7th Cir. 2000) (holding party “did not waive his statute of
limitations defense by waiting to file it until after the 12(b)(6) motions had run their course”).
Of course, GWU did more than just fail to raise the one-year statute of limitations in its
motion to dismiss; it affirmatively argued that a three-year limit applied. See Def. Mem. in
Supp. of Mot. Dismiss at 10–11, ECF No. 4-1. That type of change in position is governed not
by waiver, but by the doctrine of judicial estoppel, which precludes a party who “assumes a
certain position in a legal proceeding, and succeeds in maintaining that position,” from later
assuming “a contrary position.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001). Although
the Supreme Court has set out no “exhaustive formula for determining the applicability of
judicial estoppel,” id. at 751, it has identified “three key factors”:
(1) whether the party’s later position is ‘clearly inconsistent’ with its earlier
position; (2) ‘whether the party has succeeded in persuading a court to accept that
party’s earlier position, so that judicial acceptance of an inconsistent position in a
later proceeding would create the perception that either the first or the second
court was misled’; and (3) ‘whether the party seeking to assert an inconsistent
position would derive an unfair advantage or impose an unfair detriment on the
opposing party if not estopped.’
Temple Univ. Hosp., Inc. v. NLRB, 929 F.3d 729, 733 (D.C. Cir. 2019) (quoting New
Hampshire v. Maine, 532 U.S. at 750–51). While GWU’s position on the statute of limitations
has changed, its two arguments do not cut directly against each other in the way the doctrine of
16
judicial estoppel is meant to discourage. Nor did GWU ever convince the Court to accept, or
Stafford to rely on, its past position. To the contrary, the court made a conscious choice to apply
the longer limitations period in its prior opinion. That decision, if anything, benefited the
plaintiff and forced GWU to continue to litigate a potentially stale claim. Because GWU’s past
failure to raise a shorter limitations period appears to result at most from an “unthinking . . .
blunder,” not any “cold manipulation,” Davis v. District of Columbia, 925 F.3d 1240, 1256 (D.C.
Cir. 2019), the Court sees no reason to hold GWU to its past position here.
Turning to the merits of the limitations question, the Court agrees with GWU, as well as
the analysis in its prior opinion, that the one-year statute of limitations in the DCHRA is the most
appropriate choice for Title VI claims in the District of Columbia. The Court recognizes that, in
the past, courts in this and other districts have applied the limitations period for general personal
injury suits—which in D.C. is three years—to claims arising under Title VI and many other
federal antidiscrimination laws. See, e.g., Richards, 480 F. Supp. 2d at 237–38 (Title VI and
Title IX); Doe v. Se. Univ., 732 F. Supp. 7, 8–9 (D.D.C. 1990) (Rehabilitation Act); see also,
e.g., Monroe v. Columbia Coll. Chi., 990 F.3d 1098, 1100 (7th Cir. 2021); Sewell v. Monroe
City Sch. Bd., 974 F.3d 577, 583 (5th Cir. 2020); Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615,
618 (8th Cir. 1995); Baker v. Bd. of Regents of State of Kan., 991 F.2d 628, 630–32 (10th Cir.
1993).
But courts in this district have started to rethink this approach, at least for disability
discrimination laws such as the Rehabilitation Act and the Americans with Disabilities Act
(“ADA”). The turning point was the District of Columbia Court of Appeals’ 2012 opinion in
Jaiyeola v. District of Columbia, which reasoned persuasively that the Rehabilitation Act was
much more analogous to the DCHRA than it was to D.C.’s generic personal injury law. See 40
17
A.3d at 366–67. In that opinion, the D.C. Court of Appeals recognized that the DCHRA was
broader in scope than the Rehabilitation Act—tackling discrimination on bases such as race and
gender, too. Id. at 366. But it nevertheless concluded that the Rehabilitation Act was still more
closely akin to this “state anti-discrimination statute” than it was to generic personal injury
claims, which “need not—and, indeed, typically do not—seek to remedy discrimination at all[.]”
Id. at 365, 367. Because the characterization of a federal claim is a matter of federal law, Wilson
v. Garcia, 471 U.S. 261, 269–70 (1985), this Court is not bound by the holding or reasoning of
Jaiyeola. But federal courts in this Circuit generally defer to the D.C. Court of Appeals on
matters of District law—such as interpreting the DCHRA and personal injury law. See Williams
v. Martinez, 586 F.3d 995, 1001 (D.C. Cir. 2009). Giving such deference, and recognizing the
persuasiveness of the Jaiyeola opinion, several courts in this district, including this one, have
held that the DCHRA’s one-year limitations period applies to claims brought under the
Rehabilitation Act and other federal disability-discrimination laws. See, e.g., Congress, 324 F.
Supp. 3d at 171–73; Pappas v. District of Columbia, 513 F. Supp. 3d 64, 82 (D.D.C. 2021)
(gathering cases applying DCHRA limitations period to Rehabilitation Act claims); Arthur v.
D.C. Hous. Auth., No. 18-cv-2037, 2020 WL 1821111, at *6 (D.D.C. Apr. 11, 2020) (applying
same to ADA).
Until now, no court has extended this reasoning to Title VI or any other federal
antidiscrimination statute outside the disability context. But the Court sees good reason to do so,
as Jaiyeola’s reasoning holds no less force in the case of laws prohibiting racial discrimination.
As with the Rehabilitation Act, Title VI and the DCHRA have a “shared purpose and ambitious
aims,” Jaiyeola, 40 A.3d at 367: Title VI seeks to ensure that “[n]o person shall, on the ground
of race, color, or national origin, be excluded from participation in, be denied the benefits of, or
18
be subjected to discrimination” in federally funded programs. 42 U.S.C. § 2000d; see also
Barnes v. Gorman, 536 U.S. 181, 185–86 (2002) (noting that “Title VI invokes Congress’s
power under the Spending Clause . . . to place conditions on the grant of federal funds”). The
DCHRA likewise seeks to secure an end “to discrimination for any reason other than that of
individual merit, including, but not limited to, discrimination by reason of race[.]” D.C. Code
§ 2-1401.01. Both are enforceable via private rights of action and provide for similar remedies.
See Alexander v. Sandoval, 532 U.S. 275, 279 (2001) (noting availability of injunctive relief and
damages under Title VI); D.C. Code § 2-1403.16 (providing for injunctive relief and damages,
among other remedies). Thus, although the DCHRA is in some ways broader than Title VI—
covering more bases for discrimination and extending beyond recipients of federal funding—
“these differences pale in comparison to the similarities.” Jaiyeola, 40 A.3d at 366.
For several reasons, the Court is not convinced by contrary case law applying the general
personal injury limitations period to Title VI claims. First, no binding D.C. Circuit or Supreme
Court case law precludes the Court from rethinking the appropriate state-law analogue to Title
VI. Second, in most of the cases noted above, courts never considered the possibility that a
narrower state antidiscrimination statute might be a closer fit to Title VI than the state’s general
personal injury law. See, e.g., Monroe, 990 F.3d at 1099 (comparing with catchall limitations
period for civil claims); Baker, 991 F.2d at 631 (discussing only 42 U.S.C. §§ 1983 and 1981).
But see Egerdahl, 72 F.3d at 617–18 (rejecting application of limitations period in Minnesota
Human Rights Act). Third, the Court is not persuaded by the reasoning in many of those cases,
which only conclude that a Title VI claim is analogous to a generic personal injury claim by first
analogizing to federal civil rights claims under 42 U.S.C. § 1983. See, e.g., Egerdahl, 72 F.3d at
618. To be sure, the Supreme Court has instructed that § 1983 claims are subject to the
19
limitations period in each state’s general personal injury statute. Wilson, 471 U.S. at 276. But
whether claims under Title VI and claims under § 1983 are analogous is not the right question;
the Supreme Court has instructed courts engaging in this borrowing analysis to generally look to
similar state law, not federal law. Cf. DelCostello, 462 U.S. at 171–72 (outlining limited
circumstances where analogy to federal law may be appropriate).
In addition, as the D.C. Court of Appeals explained in Jaiyeola, the different structures
and histories of § 1983 and later federal antidiscrimination laws suggest that they may not have
the same state-law analogue. See 40 A.3d at 365. Congress enacted § 1983 shortly after the
Civil War, “in response to the widespread deprivations of civil rights in the Southern States and
the inability or unwillingness of authorities in those States to protect those rights or punish
wrongdoers.” Felder v. Casey, 487 U.S. 131, 147 (1988). The resulting statute provides a broad
cause of action to recover against “the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” committed by those acting under color of state law. 42
U.S.C. § 1983 (emphasis added). With its “broad . . . language,” “high purposes,” and power to
“override certain kinds of state laws,” § 1983 “can have no precise counterpoint in state law.”
Wilson, 471 U.S. at 272 (internal citations omitted). It is a “uniquely federal remedy.” Jaiyeola,
40 A.3d at 365. The same is not true for Title VI. Enacted a century later as part of the Civil
Rights Act of 1964, Title VI was intended “to provide the Federal Government with the means of
assuring that its funds were not used to subsidize racial discrimination inconsistent with the
standards imposed by the Fourteenth and Fifth Amendments upon state and federal action.”
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 330 (1978) (Brennan, J., concurring in part)
(describing introduction of bill in House of Representatives). That statute is thus targeted more
narrowly at discrimination “on the ground of race, color, or national origin” in federally funded
20
programs. 42 U.S.C. § 2000d. As outlined above, D.C.’s antidiscrimination statute comes with
an analogous set of ambitions, tools, and remedies.
That leaves the final reason courts have cited for applying the statute of limitations for
general personal injury claims to Title VI: the preference for consistent treatment of federal civil
rights statutes. See Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir. 1996). But if the trend in this
district holds, uniformity is no longer an option; Title VI will either be subject to the same statute
of limitations as § 1983 (three years) or the Rehabilitation Act (one year). Given that choice, the
Court sees good reason to harmonize its treatment of Title VI with the growing consensus in this
district with respect to the Rehabilitation Act. Congress modeled the remedial provisions in the
Rehabilitation Act directly on those in Title VI and presumed they would be interpreted
consistently. See Barnes, 536 U.S. at 185 (explaining that Congress directly tied the “remedies,
procedures, and rights” available under the Rehabilitation Act to those available in Title VI);
Nat’l Ass’n of the Deaf v. Trump, 486 F. Supp. 3d 45, 54 (D.D.C. 2020) (noting that Congress
modeled the Rehabilitation Act’s remedial section “on the language of section 601 of Title VI”).
Accordingly, the Court concludes that the DCHRA’s one-year statute of limitations applies to the
remaining Title VI claim in this case.4
2. Application
Because Stafford filed suit on November 26, 2018, the one-year limitations period covers
events on or after November 26, 2017—near the middle of his senior year. Applying that time
4
To be clear, this conclusion says nothing about the wisdom of the D.C. Council’s
decision to place a one-year limitations period on DCHRA claims or Congress’s decision not to
incorporate an express statute of limitations in Title VI. Those legislative choices work to the
disadvantage of the plaintiff in this case. However, adoption of the Court’s holding in other
jurisdictions might well result in a longer limitations period on Title VI claims depending on the
analogous state law at issue.
21
limit, GWU argues it is now entitled to summary judgment on Stafford’s Title VI claim because
he has not created a sufficient factual dispute about any acts of alleged deliberate indifference
from the fall of 2017 onwards. See Def. Reply at 3–8. The Court agrees.
As outlined above, for an institution receiving federal funding to be liable for deliberate
indifference to racial harassment, a plaintiff must establish, among other things, that an
“appropriate person” at the institution had actual notice of the alleged misconduct. Gebser, 524
U.S. at 290. To be an “appropriate person,” an individual must “at a minimum ha[ve] authority
to address the alleged discrimination and to institute corrective measures on the [fund]
recipient’s behalf.” Id. As the Supreme Court has explained, this rule ensures that institutions
will only be held liable for “official decision[s] . . . not to remedy the violation,” and not “for its
employees’ independent actions.” Id. at 290–91.
In the factual record at summary judgment, there are only two potential incidents after
late November 2017 that could arguably give rise to deliberate indifference liability for GWU.
The first is Stafford’s efforts to appeal his academic suspension in January 2018.5 Shortly after
GWU notified Stafford of the suspension, he met with Ellen Woodbridge, his assigned academic
advisor from the Athletics Department. See Def. SMF ¶¶ 128, 135. According to Stafford,
during that conversation, he confided in Woodbridge about the “racial discrimination” and
5
Much of Stafford’s discussion of the appeal comes in a proposed surreply, which he has
asked the Court for leave to file. See Pl.’s Proposed Surreply at 3, ECF No. 88-2. The materials
included in this proposed filing—and in particular any effort to “correct the record” as to the
events of January 2018, see Pl.’s Mot. Leave to File at 1, ECF No. 88—do not satisfy the
standard for when such a supplemental response is warranted. See United States ex rel. Pogue v.
Diabetes Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d 270, 276–77 (D.D.C. 2002) (noting
surreplies appropriate only to address “truly new” matters presented in reply briefs, not mere
“mischaracterization[s]”). Nevertheless, the Court has considered the evidence Stafford points to
and the arguments he makes, none of which alter the conclusions the Court reaches as to the
legal significance of this incident, as explained below.
22
“racial rhetoric” he had experienced on the tennis team, and asked whether he could include that
information in his appeal to the University. Id. ¶ 135; see also Def. Ex. 2 at 296:3–297:12.
GWU challenges the credibility of Stafford’s account of his conversation with
Woodbridge, who apparently was not deposed. See, e.g., Def. Reply at 2 (questioning whether
conversation happened). But even assuming that Stafford made these statements, and that they
were sufficient to put Woodbridge on notice of the harassment Stafford says he faced, they did
not put GWU on notice because Woodbridge was not an appropriate person for the purposes of
Title VI. Stafford does not contest that Woodbridge’s only relevant role at the University was as
his assigned academic advisor. As such, she had no supervisory position within the Athletics
Department, and nothing suggests that she had the authority to institute corrective measures on
the tennis team, specifically. See Doe v. Edgewood Indep. Sch. Dist., 964 F.3d 351, 360 (5th
Cir. 2020) (“[T]o be an appropriate person . . . , the official must have authority to both repudiate
the conduct and eliminate the hostile environment.’” (internal quotation marks and alteration
omitted)); cf. Blue v. District of Columbia, 850 F. Supp. 2d 16, 34 (D.D.C. 2012) (deciding, in
context of teacher-student harassment under Title IX, that appropriate person is one in chain of
command who could “fire or discipline” offender). Nor can Stafford establish liability on
GWU’s part just because Woodbridge did not alert anyone with the power to take corrective
action about his complaints. As at least one federal circuit has observed, imposing liability for
an employee’s “fail[ure] to convey a report” of discrimination “would turn the deliberate-
indifference standard into vicarious liability”—something the Supreme Court explicitly “sought
to avoid.” Ross v. Univ. of Tulsa, 859 F.3d 1280, 1290 (10th Cir. 2017); see also Kesterson v.
Kent State Univ., 967 F.3d 519, 528 (6th Cir. 2020) (rejecting liability based only on
“employee’s ability to mitigate hardship or refer complaints”).
23
The Court also rejects the only other potentially timely incident that Stafford points to as
a source of liability. At the summary judgment hearing, Stafford for the first time identified
testimony in his deposition that, sometime during his senior year, a teammate used racial epithets
while in the team van and in the presence of an assistant coach. See Mot. Hr’g Rough Tr. at
30:9–32:6 (discussing Def. Ex. 2. at 274:8–14). This argument comes too late. The summary
judgment process does not obligate courts to “sift through hundreds of pages of deposition” to
discover disputes of material fact. Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner,
101 F.3d 145, 151 (D.C. Cir. 1996). Rather, the local rules require parties opposing summary
judgment “to crystallize . . . the material facts and relevant portions of the record” in their
opposition filing—not at a later hearing. Id. (discussing predecessor to Local Civil Rule 7(h)).
Because Stafford failed to raise this argument at any time prior to the motion hearing, the Court
will not consider it now. See Physicians for Social Resp. v. Wheeler, 956 F.3d 634, 647 (D.C.
Cir. 2020) (“[G]enerally, arguments raised for the first time at oral argument are forfeited.”).
The incomplete nature of the record on this issue only bolsters this waiver finding.
Because Stafford’s counsel did not raise the purported van incident in his competing Statement
of Material Facts or summary judgment briefing, the record is not sufficiently developed for the
Court to easily assess whether enough evidence exists for his Title VI claim to survive summary
judgment. Many key questions, both factual and legal, remain unaddressed by the parties,
including: what evidence would support a finding that this incident occurred; if it did occur,
whether it happened (or even could have happened) on or after November 26, 2017;6 what words
6
While the operative complaint generally alleges the harassment continued into the fall
of 2017, it also places this supposed van incident in Stafford’s junior year—not the fall of his
senior year. Compare Second Am. Compl. ¶ 107 (alleging continuing harassment in fall 2017)
with id. ¶¶ 102–03 (describing van incident as an example of effort to “undermine Plaintiff’s
24
were said and in what context; whether the assistant coach overheard the incident, and whether
doing so put him on notice of “severe and pervasive” abuse; and whether this particular assistant
coach was an “appropriate person” for the purposes of Title VI, such that he had authority to take
corrective action once he was put on notice. Had Stafford drawn the Court’s attention to this
testimony in a timely fashion, GWU would have had the opportunity to locate other evidence in
the record—or submit new evidence—that might have definitively resolved any one of these
dispositive issues in its favor. Cf. Robertson v. Am. Airlines, Inc., 239 F. Supp. 2d 5, 9 (D.D.C.
2002) (observing that an inadequate Rule 7(h) statement leaves the other side without “an
opportunity fairly to contest the . . . case” against it (quoting Burke v. Gould, 286 F.3d 513, 519
(D.C. Cir. 2002))). Because none of this appropriate back and forth occurred, the Court is left
only to speculate whether Stafford’s brief testimony suffices to create a dispute of material fact.7
That is not how summary judgment is supposed to work.
Stafford nevertheless contends that his claim is saved by the “continuing violation”
doctrine, which allows recovery even for untimely acts giving rise to liability if they are part of
an “ongoing pattern of harassment.” Cavalier v. Cath. Univ. of Am., 306 F. Supp. 3d 9, 43–44
(D.D.C. 2018) (“Cavalier I”) (applying doctrine to Title IX deliberate indifference claim); see
also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115–18 (2002). The Court agrees that
the continuing violation doctrine can apply to claims arising out of a pattern of deliberate
reinstatement during the Spring 2017 semester”). The allegations in the operative complaint that
are tagged to his senior year—none of which were mentioned at summary judgment—do not
support a claim that any responsible University official was aware of and indifferent to racial
harassment after November 26, 2017. See id. ¶¶ 108–10.
7
Stafford’s limited testimony on this point is also particularly weak evidence that any
van incident occurred within the statutory period. There, he stated only that another player was
“always yelling out” racial epithets “during [his] junior year, but also during [his] senior year” in
the presence of various coaching staff. See Def. Ex. 2 at 274:8–12.
25
indifference to ongoing harassment, as such hostile environment claims by “[t]heir very nature
involve[] repeated conduct.” Morgan, 536 U.S. at 115. But the Supreme Court has clarified that,
for the doctrine to apply, a plaintiff still must identify an “act that is part of the hostile . . .
environment” within the limitations period. Id. at 118.
As the Court has just concluded, Stafford has not identified any such act within the
statutory period. His meeting with Ellen Woodbridge is the sole occasion he has cited within the
statutory period where he notified anyone at GWU about any harassment he faced. It is therefore
the only incident where the University could have acted with deliberate indifference in the face
of such knowledge. But, as just explained, Woodbridge’s knowledge cannot be imputed to
GWU. Because no act that is part of the hostile environment occurred within the one-year
limitations period, Stafford’s Title VI claim is entirely barred by the statute of limitations.8
B. Application of three-year statute of limitations
In the remaining sections of this Memorandum Opinion, the Court signals what
conclusion it would reach on GWU’s summary judgment motion, were it to use the three-year
statute of limitations typically applied to Title VI claims. The Court does so because the D.C.
Circuit has not yet weighed in on the developing statute-of-limitations jurisprudence in this
district, and because no other court has yet extended this rationale to Title VI claims. The
following analysis is therefore offered only to provide guidance to the parties and any reviewing
8
Stafford has not argued his deliberate indifference claim would remain viable so long
as, within the statute of limitations, the University failed to take action on his older complaints.
Nor has he claimed that ongoing harassment during the statutory period would suffice. But such
arguments would not save his stale deliberate indifference claim in any case. As the Ninth
Circuit has observed, a contrary approach would allow a plaintiff to recover so long as he
continued to not receive a “desired remedy” within the statutory period—an approach that would
“render[] the statute of limitations a virtual nullity.” Stanley v. Trustees of Cal. State Univ., 433
F.3d 1129, 1137 (9th Cir. 2006).
26
court as to the underlying merits of the claim, should a longer limitations period ever be applied.9
Under that longer limitations period, the decision would be a close one. But the Court would
ultimately hold that GWU has not fully met its burden, and that a portion of Stafford’s hostile
environment claim would survive summary judgment. As explained below, genuine issues of
material fact exist as to the University’s responses to Stafford’s stated reports of racial
harassment during his freshman and sophomore years.
1. Relevant time limitation
The Court again starts by considering the impact of the statute of limitations. Because
Stafford filed suit on November 26, 2018, a three-year statute of limitations would run back to
November 26, 2015—the middle of Stafford’s sophomore year. But once again, the continuing
violation doctrine may allow Stafford to recover even for older acts, so long as they are part of
the same pattern of misconduct giving rise to a hostile environment. See Morgan, 536 U.S. at116–18. As the Court has already explained, the continuing violation doctrine applies to a Title
VI deliberate indifference claim. See supra Part III.A.2; Stafford, 2019 WL 2373332, at *15.
The Court therefore must decide two ancillary questions about the application of this doctrine:
Does the continuing violation apply to any of Stafford’s Title VI claim, in particular? And if it
does, how much out-of-time conduct can the Court consider?
As to the first question, the Court reiterates that, for the continuing violation doctrine to
apply, there must be an act giving rise to liability within the limitations period. See Morgan, 536
U.S. at 118. To establish deliberate indifference, Stafford must demonstrate that, within the
9
GWU’s statute of limitations defense is not jurisdictional. See Day v. McDonough, 547
U.S. 198, 205 (2006). Thus, the Court’s conclusion in Part III.A.1 does not preclude it from
weighing in on these claims or issues.
27
statutory period, the university “(1) had actual knowledge of, and (2) was deliberately indifferent
to (3) harassment that was so severe, pervasive and objectively offensive that it (4) deprived
[him] of access to the educational benefits or opportunities provided by the school.” Bryant, 334
F.3d at 934. The relevant question, then, is whether Stafford has satisfied each of these elements
as to at least one incident after November 2015, thus justifying application of the continuing
violation doctrine. As the Court will explain in more detail below, see Part III.B.2, he has. To
take just the latter part of his sophomore year as an example, Stafford (1) testified to specific
incidents of harassment, see, e.g., Def. Ex. 2 at 63:2–64:12; (2) insisted that he informed an
Athletics Department official, Nicole Early, of the harassment he faced, see id. at 211:15–
212:13; (3) contended that Early did nothing in response—only encouraging him to wait for
turnover in coach leadership, see id. at 196:13–18; and (4) suggested that the stress he faced on
account of the unaddressed harassment caused his academic struggles, ultimately leading to his
departure from the University, see id. at 283:1–8, 289:2–6. Of course, many of these elements
remain hotly contested. And there is little, if any, evidence in the record to corroborate
Stafford’s unilateral version of events. As detailed below, however, the Court would hold that
GWU has not met its summary judgment burden for at least some claim within the longer
statutory period.
As to the second question, the Court concludes that the continuing violation doctrine
allows it to look back to the entire pattern of alleged deliberate indifference by the University,
which forms part of the same hostile environment claim. GWU contests this approach. In its
view, the continuing violation doctrine only allows the Court to consider discrete acts of racial
harassment from before the limitations period, and would not let it impose liability for older
actions (or inaction) by GWU that constitute deliberate indifference. See Def. Reply at 5–6.
28
The Court disagrees. GWU’s proposed limitation ignores the function of the continuing
violation doctrine. As the Supreme Court explained in Morgan, when evaluating a hostile work
environment claim, because “the incidents constituting a hostile . . . environment are part of one
unlawful . . . practice,” the continuing violation doctrine allows a court to hold a defendant
“liable for all acts that are part of this single claim.” 536 U.S. at 118 (emphasis added). Morgan
treats all elements of that underlying claim (there, severe or pervasive harassment and a basis for
employer liability) together, see Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119, 1122–23 (D.C.
Cir. 2002) (listing elements of Title VII hostile environment claim); it does not support the sort
of parsing of elements GWU proposes. At least one federal circuit has specifically applied this
reasoning to a Title VI hostile environment claim. In Sewell v. Monroe City School Board, the
Fifth Circuit held that a Title VI harassment claim survived a motion to dismiss, despite a
potential statute of limitations problem, because “some acts contributing to a hostile environment
allegedly took place within the prescription period.” 974 F.3d at 584. The court did not hold
that only some of the claim’s elements could be satisfied by events before the limitations period.
To the contrary, it found an unheeded report to a school superintendent months before the
limitations period began helped satisfy the “actual knowledge” and “deliberate indifference”
elements. See id. at 581, 585.
The Court also, unlike GWU, reads Judge Moss’s 2018 opinion in Cavalier v. Catholic
University of America to support this formulation of the continuing violation doctrine. See 306
F. Supp. 3d at 43–44. There, another court in this district held that the continuing violation
doctrine applied to a Title IX deliberate indifference claim. Id. In so doing, that court
specifically noted that, at least at the motion to dismiss stage, “the alleged series of actions, and
inactions, ‘exhibit[ed] the relationship necessary to be considered part of the same actionable
29
hostile environment claim.’” Id. (quoting Baird v. Gotbaum, 662 F.3d 1246, 1251–52 (D.C. Cir.
2011)). In the context of a Title IX claim, a court’s mention of “inaction” necessarily refers to
allegations of deliberate indifference on the part of the university. Cavalier I did not suggest that
such allegations were limited to events within the limitations period.10
The sole case offered by GWU does not support its contrary approach to the continuing
violation doctrine. The University cites Kollaritsch v. Michigan State University Board of
Trustees, 944 F.3d 613, 623 (6th Cir. 2019), for the proposition that a private cause of action
against a school for deliberate indifference to student-on-student harassment has two
components—“actionable” harassment and “a deliberate-indifference intentional tort by the
school.” See Def. Reply at 5–6. That proposition, though true, says nothing about which of
these elements courts can consider when defining a federally funded institution’s continuing
violation of Title VI. As Sewell and Cavalier I indicate, courts make no distinction.
Thus, if the Court were to apply a longer statute of limitations, it would also consider the
entirety of Stafford’s claim that the University was repeatedly indifferent to his reports of
ongoing racial harassment from his earliest time at GWU. In particular, the Court would
examine all of the University’s allegedly inadequate responses and non-responses to Stafford’s
complaints, starting in his freshman year.
10
GWU tries to distinguish Cavalier I by asserting that the claimed indifference here,
unlike the acts of the defendant there, were discrete events, not “part of the same unlawful []
practice.” Def. Reply at 6–7 n.3. The Court does not find the allegations in the two cases to be
particularly distinguishable. In each, the plaintiff claimed that a “[u]niversity engaged in an
ongoing violation of” their federal civil rights obligations via a pattern of “actions” or
“inactions” sufficiently related “to be considered part of the same actionable hostile environment
claim.” Cavalier I, 306 F. Supp. 3d at 42, 43–44 (internal quotation marks omitted).
30
2. Application
On the present record, the Court would conclude that, under a longer, three-year statute
of limitations, GWU has satisfied its burden at summary judgment as to a portion of Stafford’s
claim, focusing on any reports of harassment and the school’s response in the fall of his junior
year going forward. By contrast, the Court would conclude that some claim arising out of the
University’s conduct before then—particularly in the winter of Stafford’s freshman year and
throughout his sophomore year—could reach a jury, as genuine disputes of material fact exist as
to key elements of the University’s liability. As a result, were the Court to apply this longer
statute of limitations, it would deny in part GWU’s motion for summary judgment.
The Court begins by addressing several elements of a Title VI claim that appear
undisputed here. First, GWU does not contest that the University had sufficient “control” over
any harassers and the “environment” on the tennis team to be able to take remedial action. See
Fennell, 894 F.3d at 408. Second, GWU seems to have dropped its contention, since the motion
to dismiss, that Stafford’s allegations and evidence would not support a jury finding that the
harassment he faced was severe, pervasive, and objectively offensive. This was a wise choice.
Stafford has now substantiated his allegations, through his own testimony and that of at least one
fellow teammate, that the use of racial epithets, directed at or used around him, was prevalent
throughout periods of his tenure at GWU. See, e.g., Pl. SMF ¶¶ 17, 25 (describing testimony of
Stafford and teammate Blake Morton); see also Def. Ex. 2 at 50:19–58:20; Pl. Opp’n, Ex. E
(depicting Facebook meme using the n-word). As this Court previously observed, “repeatedly
being referred to by one’s peers by the most noxious racial epithet in the contemporary American
lexicon, and being shamed and humiliated on the basis of one’s race is harassment far beyond
normal schoolyard teasing and bullying,” and satisfies the harassment element of a Title VI
31
hostile environment claim. See Stafford, 2019 WL 2373332, at *16 (quoting Fennell, 804 F.3d
at 409) (internal quotation marks and alterations omitted).
The Court next concludes that Stafford would be able to reach a jury on the causation
element of Title VI: that any unchecked severe and pervasive harassment he faced had a
“concrete, negative effect” on his “ability to receive an education.”11 Davis, 526 U.S. at 654.
GWU argues that no reasonable jury could find that the ongoing harassment Stafford faced
caused his poor academic performance and ultimate suspension from the University. To that
end, it has introduced numerous records related to Stafford’s academic history, both in high
school and at GWU, demonstrating that he had long been academically challenged and
unmotivated. See Def. MSJ at 30–32; see also, e.g., Def. SMF ¶¶ 2–7, 19–26, 44–50, 55–58,
124–29. Stafford, for his part, has repeatedly attributed his academic difficulties, in some way,
to the distraction of his ongoing harassment. See, e.g., Pl. SMF ¶ 51; Def. Ex. 2 at 103:13–
104:6, 217:8–218:18, 283:1–8.
The Court does not find it impossible, on the current record, for a rational jury to
conclude that unchecked racial harassment deprived Stafford of access to the educational
11
Some courts have added a second causation element, which ties the institution’s
indifference to future harassment. The exact formulations of the element differ. Some courts
require a showing of actual “further actionable harassment,” while others ask only that the
indifference made the plaintiffs “vulnerable to future harassment.” Compare Kollaritsch, 944
F.3d at 622–23 (applying former) with Cavalier II, 513 F. Supp. 3d 30, 52 (D.D.C. 2021)
(applying latter); Zeno, 702 F.3d at 666 (applying latter). The Court sees no need to wade into
this debate, as it would reach the same outcome no matter what—if any—future harm standard
applies. As explained below, Stafford’s only viable deliberate indifference claim would center
on the University’s inaction during his freshman and sophomore years. Because Stafford has
also introduced evidence that the harassment allegedly continued at least through his junior year,
see Pl. Opp’n at 10, he would satisfy any element concerning future harm.
32
benefits offered at GWU.12 Though Stafford struggled academically in high school, Def. Mot.
Summ. J., Ex. 4 (noting overall 2.81 GPA in high school), high-school GPAs do not necessarily
reflect a student’s ability to succeed academically in college. And presumably, GWU would not
have admitted Stafford if it thought he were destined to fail. Still, Stafford’s grades did suffer
during his time at GWU. See Def. Ex. 28 (noting overall 2.28 GPA at GWU). While there could
be any number of explanations for that decline in academic performance, Stafford has testified
that one reason was the racial harassment he faced from his teammates, starting from his very
first weeks on campus. And, at least for his first two years at the University, Stafford’s grades
appeared to be lowest during a semester in which, as explained below, he testified to first
reporting racial harassment and receiving an inadequate response. See id. (noting significant
drop between Fall 2014 and Spring 2015 GPAs); Pl. SMF ¶¶ 43–44 (describing early 2015
discussion with Athletics Department administrator). While “a mere decline in grades” is not
enough to establish a claim under Title VI, such a change may “provide[] necessary evidence of
a potential link between [the plaintiff’s] education and [the] misconduct,” when considered in
light of the “persistence and severity” of the harassment. Davis, 526 U.S. at 652.
12
In his opposition brief, Stafford explains that he could conduct “expert discovery” to
further bolster his claim that the “hostile educational environment” impacted his “grade[s] and
mental health.” Pl. Opp’n at 16–17. GWU asks the Court to treat this offer as an effective
concession of the weakness of the current record. See Def. Reply at 21 n.8. The Court will not
do so, as expert testimony would not be necessary for Stafford to satisfy this element for
summary judgment purposes. Still, the Court rejects Stafford’s suggestion that the scheduling
order in this case—which deferred expert discovery until after summary judgment, see Minute
Order of Apr. 23, 2021—would offer an excuse for any failure of proof on this element. If
Stafford felt, after reading GWU’s brief, that expert discovery was, indeed, necessary to survive
summary judgment, he could have requested under Rule 56(d) that the Court defer ruling on the
motion or allow this additional discovery.
33
And unlike the plaintiffs in several cases cited by GWU, Stafford has alleged—and
testified—that his “dropping grades” and “increased absenteeism” in class, C.S. v. Couch, 843 F.
Supp. 2d 894, 908–09 (N.D. Ind. 2011), were a product of the stress caused by his teammates’
abuse. Compare Def. Ex. 2 at 283:1–8 (“I really couldn’t focus in class anymore, because at that
point . . . everything had intensified so much.”) with Hawkins v. Sarasota Cnty. Sch. Bd., 322
F.3d 1279, 1289 (11th Cir. 2003) (holding that mere testimony that students were “upset” or
faked sick “falls short of demonstrating a systemic effect of denying equal access”); Gabrielle M.
v. Park Forest-Chicago Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 823 (7th Cir. 2003) (finding no
evidence that student was denied access to education where “her grades remained steady” and
“her absenteeism . . . did not increase”); Simonetta v. Allegheny Coll., No. 20-cv-32, 2021 WL
927534, at *4 (W.D. Pa. Mar. 11, 2021) (noting that any decline in grades was temporary).
The Court recognizes the significant evidence GWU puts forward highlighting the
potential weakness of Stafford’s causal claim. That evidence demonstrates Stafford has long
struggled academically, failed to take advantage of the academic-support resources the
University offered, and may have engaged in acts of academic dishonesty—including
plagiarism—from his earliest time at GWU. See, e.g., Def. SMF ¶¶ 3–7 (describing high school
difficulties); id. ¶¶ 19–26 (discussing freshman academic performance and plagiarism report).13
13
For several of the unfavorable facts GWU presents, the record also includes alternative
explanations that could strengthen the link between any harassment and Stafford’s academic
performance. For instance, GWU points out that Stafford has admitted that his participation in a
fraternity took a “toll” on his academics. Def. MSJ at 31 (citing Def. SMF ¶ 45). But Stafford
testified that he only joined this fraternity at the behest of then-Coach Munoz, who faulted him
for socially “distancing” himself from the teammates who were harassing him. See Pl. SMF
¶ 38; Def. Ex. 2 at 101:19–104:6. GWU also notes that Stafford did not mention “alleged racial
discrimination or harassment” in his academic appeal of his suspension in January 2018. See
Def. MSJ at 31–32. But again, the record contains an explanation for this omission. As even
34
The Court agrees that, were this evidence to be presented to a jury, it very well might conclude
that the University’s deliberate indifference did not deprive Stafford of educational access. But
GWU has not established that no reasonable jury, looking at this evidence, could find that the
behavior on the tennis team “so undermine[d] and detract[ed] from the victim’s educational
experience” that Stafford had “effectively been denied access to [the] . . . resources and
opportunities” offered at GWU. Hawkins, 322 F.3d at 1289.
The Court therefore turns to the two remaining elements: whether the University had
actual knowledge of any harassment, and whether its response, or lack thereof, was deliberately
indifferent. See id. at 1287 (“The deliberate indifference issue is intertwined with the question of
notice since whether the Board’s actions were clearly unreasonable must be measured by what
was known.”). On these elements, the strength of Stafford’s claim varies over time. Thus, under
a three-year statute of limitations, the Court would grant GWU only partial summary judgment.
a. Freshman Year
Stafford recalled making two reports of racial harassment to GWU employees in his first
year as a student. First, Stafford testified that, shortly after the start of his freshman year, he told
then-Coach Greg Munoz about “racism by his teammate[s],” and that “Munoz immediately
retaliated against” him for that report. Pl. SMF ¶ 32. Second, Stafford recounted a discussion of
racism and harassment during a winter 2015 meeting with Munoz and Athletics Department
administrator Nicole Early. Id. ¶ 44. There is no evidence in the record that either Munoz or
Early responded to these complaints. The Court would conclude that Stafford’s reports to
GWU acknowledges, Stafford testified that an academic advisor discouraged him from including
any allegation of racism in his appeal. See Def. SMF ¶ 135.
35
Munoz could not support any finding of liability, but that a sufficient factual issue would
preclude it from granting summary judgment to GWU as to the potential report to Early.
Stafford cannot premise any Title VI claim on a report of harassment to Munoz because
he has consistently described Munoz as a ringleader in the mistreatment he faced. Title VI does
not permit a damages recovery for deliberate indifference “based on principles of respondeat
superior or constructive notice.” Gebser, 524 U.S. at 285. Because a defendant’s “liability rests
on actual notice principles, . . . the knowledge of the wrongdoer himself is not pertinent to the
analysis.” Id. at 291. In both his summary judgment submissions and throughout the record,
Stafford has framed Munoz as a source of harassment. In his statement of genuine issues, for
instance, Stafford stated that Munoz directed “threats and harsh treatment” only at “non-White
and American tennis players” and consistently minimized incidents of racism by other players.
See Pl. SMF ¶¶ 9, 32–37. At one point in his deposition, Stafford also described the “racial
rhetoric” and “racial discrimination” he faced as part of an “environment that Munoz created.”
Def. Ex. 2 at 212:4–10. Because Munoz was an alleged wrongdoer, his knowledge of
discrimination was insufficient to constitute actual notice to GWU.
The Court would reach a different conclusion with respect to Stafford’s report to Nicole
Early. GWU has not contested that Early is an “appropriate person” to whom Stafford could
raise complaints of harassment. The Court would hold that Early is such an appropriate person
because, as the team administrator, she had “authority to address the alleged discrimination and
to institute corrective measures on [GWU’s] behalf.” Gebser, 524 U.S. at 290; see Def. Ex. 7 at
23:7–12 (stating that team administrator had supervisory authority over coaches).
The University quibbles instead with the sufficiency of the knowledge Early had. In
GWU’s view, Stafford’s report of “the racial rhetoric that was going on,” including “the names,
36
the harassment, the hostility” was not specific enough to give Early, and thus the University,
actual notice of any racially hostile environment. See Def. Reply at 9 (citing Def. Ex. 2 at
120:16–121:7). The Court does not share that view. In his deposition, Stafford testified that,
while meeting with Early in January 2015, he described to her, at a minimum, the racist name-
calling that his teammates had engaged in over the prior semester. See Def. Ex. 2 at 120:13–
121:19. Standing alone, that statement already includes more detail than the complaints other
courts have deemed insufficient. In several of the cases GWU cites, for instance, courts refused
to impose liability when a school failed to infer specific misconduct from general reports that a
claimant “wasn’t feeling comfortable” or was “bother[ed]” by a peer. See, e.g., Gabrielle M.,
315 F.3d at 823–24 (finding report that another student “began bothering” plaintiff insufficient to
put school on notice that behavior was sexual in nature); I.L. v. Hous. Indep. Sch. Dist., 776 F.
App’x 839, 844 (5th Cir. 2019) (holding “vague” testimony that family notified school district
that student “wasn’t feeling comfortable” not enough to support finding of actual knowledge).
Here, Stafford reported the nature and source of the harassment.
Moreover, when read in context, Stafford’s testimony about his discussion with Early
suggests that he may, in fact, have provided more details about specific misconduct during that
conversation. At that point in his deposition, Stafford had just extensively described the
treatment he claims to have faced at GWU from a select number of students—the other dozen or
so members of the tennis team. His stated report—of “the names, the harassment, the
hostility”—is thus readily distinguishable from the claimed notice given in the main case GWU
relies on, Stiles ex rel. D.S. v. Grainger County, Tenn., 819 F.3d at 834. There, the Sixth Circuit
refused to credit a statement in a student’s affidavit that, at some unspecified point in his eighth-
grade year, he told teachers about bullying he had experienced from a variety of students over
37
the entire course of middle school. See id. at 843 n.5. Stafford’s testimony here, by contrast,
refers to a particular report of specific conduct by the small number of players on the tennis
team. Under these circumstances, the Court would not grant summary judgment to GWU on the
sole ground that Stafford’s retelling of his years-old conversation with Early involved too much
cross-referencing to and summarization of his other deposition testimony.
As a result, the Court would conclude that Stafford’s testimony is sufficient to create a
genuine issue of material fact about whether, in January 2015, he gave Early actual notice of the
racially hostile environment he says he faced. Given this holding, the Court would likewise find
that there is a genuine issue of material fact as to the sufficiency of the University’s response.
After that meeting, there is no evidence in the record that Early took any steps to work with
Stafford, his coaches, or members of the tennis team to acknowledge or address any racial
harassment. If the factfinder were to accept Early’s account of the meeting and agree with GWU
that Stafford never made clear to Early the harassment he suffered, then this inaction would be
entirely understandable and have no legal significance. But if the finder of fact were to resolve
the disputed notice question in Stafford’s favor, the current record could support a finding of
deliberate indifference. A reasonable jury could conclude that doing nothing in the face of such
a report is clearly unreasonable. See Doe v. Pawtucket Sch. Dep’t, 969 F.3d 1, 9–10 (1st Cir.
2020) (finding allegation that school district “fail[ed] to take any action to stem the tide of”
misconduct plausibly satisfied deliberate indifference element at motion to dismiss stage);
Prasad, 390 F. Supp. 3d at 31 (describing cases where schools “ignored [the] plight” of a victim
or “made no effort whatsoever” to remedy violation).
38
b. Sophomore Year
The Court reaches a similar set of conclusions with respect to the events of Stafford’s
sophomore year. There are three potential reports of racial harassment that school year.
Stafford first claims he and his father complained to Coach Munoz about both harassment
by members of the tennis team and unequal treatment by coaching staff, including Munoz. See
Pl. Opp’n at 6; Def. SMF ¶ 60. But, as the Court has already explained, any report to Munoz—a
key wrongdoer in Stafford’s narrative—would not give the University actual knowledge of the
mistreatment for the purposes of Title VI. See Gebser, 524 U.S. at 291.
Stafford next points to discussions he and his father had with Michael Tapscott, the
director of GWU’s Multicultural Student Services Center, in early fall of 2015. See Pl. Opp’n at
6–7. Considering the evidence in the record about these conversations, the Court would
conclude they cannot be a source of Title VI liability for GWU. As the University notes, there is
no evidence to contest Tapscott’s testimony that, in any one-on-one meeting with Jabari Stafford,
the issue of racism never came up. See Def. SMF ¶ 62. This conversation thus could not have
given GWU actual notice of a racially hostile environment. Nor could Tapscott’s actions during
and following his September 2015 conversation with Tom Stafford give rise to Title VI liability.
As has often been the case in this suit, the participants disagree about what was discussed. See
id. ¶ 67; Pl. SMF ¶ 47. But even if the Court accepts Tom Stafford’s version of events, GWU’s
response to this conversation could not amount to deliberate indifference. As the Supreme Court
has explained, an institution only engages in deliberate indifference when its actions are “clearly
unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648 (emphasis added).
Here, the elder Stafford only recalled telling Tapscott “a little bit about what was going on” with
his son, and then discussing generally the experience of “being a kid of color” on a mostly white
39
team. See Def. Ex. 6 at 56:3–12. After these conversations, Tapscott encouraged Jabari to meet
with Athletics Department administrator Early to discuss his concerns; reached out to Early
himself to discuss bullying on the team; and attempted to check in with Jabari several times.
Def. SMF ¶¶ 63–65, 68. In light of the at-best-vague report Stafford’s father made about the
nature of the problems Jabari faced, the Court would conclude that Tapscott’s response was not
unreasonable as a matter of law. See Hawkins, 322 F.3d at 1287 (explaining that whether
remedial actions “were clearly unreasonable must be measured by what was known”).
Finally, Stafford asserts that his conversation with Nicole Early in the spring of 2016,
recounting the racially hostile environment under coaches Munoz and Browning, was sufficient
to trigger the University’s obligation to act. Here, as with the similar report in Stafford’s
freshman year, the Court agrees that a claim arising out of this conversation could survive
summary judgment. To begin, the parties again dispute whether this conversation focused on
racism. See Def. SMF ¶¶ 72–73. The Court would have to resolve this disagreement in
Stafford’s favor at this juncture. Scott, 550 U.S. at 378. Moreover, a jury could indeed find that
Stafford told Early about the “racial rhetoric and . . . racial discrimination” he had been “forced
to endure” under both Munoz and Browning. Def. Ex. 2 at 212:4–13. As it would for the similar
report a year earlier, the Court would reject GWU’s suggestion that any reasonable jury would
have to find this report too vague to impart actual knowledge. Once again, Stafford has
recounted a specific conversation where he described a longstanding pattern of harassment by a
particular group of students—fellow members of the tennis team. That is not the kind of
“extremely vague” report courts have rejected.14 See I.L., 776 F. App’x at 844.
14
In his briefing, Stafford also emphasizes an email Early sent to fellow Athletics
Department administrator Ed Scott in January 2016, warning that Stafford’s father might
40
And if a jury found that Stafford adequately put Early on notice, it could likewise find
that her response on GWU’s behalf was deliberately indifferent. To be sure, deliberate
indifference is a high bar. Because the standard protects schools’ “flexibility” in administrative
matters, the Court must “refrain from second-guessing the . . . decisions made by school
administrators.” Davis, 526 U.S. at 648. Still, once put on notice, an official with authority to
remedy a violation cannot “refuse[] to take action.” Gebser, 524 U.S. at 290. And though the
test for liability “is not one of effectiveness by hindsight,” a school may also be liable where it
has continued to use a “known ‘ineffective practice.’” Prasad, 390 F. Supp. 3d at 27 (first
quoting Porto v. Town of Tewksbury, 488 F.3d 67, 74 (1st Cir. 2007) then quoting Stiles, 819
F.3d at 849–50). Here, Stafford has testified that, following his report of racial harassment, the
only steps Early took were to (1) set up a meeting with Coach Browning, where they discussed
only his position in the lineup; and (2) reassure him he’d have a fresh start with a new coach in
the fall. Def. SMF ¶¶ 72, 76–77. Were a jury to credit Stafford’s version of events—including
two separate reports, more than a year apart, of ongoing racial abuse on the tennis team—it could
conclude her response was clearly unreasonable. As a result, were the Court to reach the
question, it would conclude that the events arising out of Stafford’s claimed report to Early in his
sophomore year, too, cannot be resolved at summary judgment.
“suggest that Jabari is being discriminated against.” Pl. Ex. L. In Stafford’s telling, this email
separately creates a dispute of material fact about whether Early had actual knowledge of
ongoing discrimination. See Pl. Opp’n at 17–18. GWU disagrees. In its alternate reading, the
email indicates only that Early thought a complaint about some kind of discrimination—not
necessarily on the basis of race—might be forthcoming. See Def. Reply at 12. The Court agrees
with GWU that this email is not, by itself, proof that a clear report of discrimination had in fact
been made. But a reasonable jury could find it to be circumstantial evidence of Early’s
knowledge of a racial discrimination complaint—particularly when read in context with
Stafford’s allegation that he had complained to her about such discrimination the previous year.
41
c. Junior Year
For a variety of reasons, however, the Court would reach the opposite conclusion as to
any potential Title VI claim arising out of the remainder of Stafford’s time at GWU. For each
remaining incident, either Stafford failed to put an appropriate person on notice or the
University’s response does not constitute deliberate indifference as a matter of law.
First, no reasonable jury could find that the University was deliberately indifferent to
Stafford’s reports of racial harassment in the fall of 2016. That semester, in a series of phone
calls, emails, and a meeting with GWU administrators, several University officials encouraged
Stafford to use the University’s student grievance procedures to report incidents of racial bias
and discrimination, and provided him with information about how to do so. See Def. SMF ¶¶ 96,
104, 106. Yet, Stafford chose not to pursue any official report. See id. ¶ 108; Pl. SMF ¶ 46.
Other courts have specifically rejected deliberate indifference claims where a school has
“encourag[ed]” complainants “to secure protections available,” but the complainant has declined
to do so. Prasad, 390 F. Supp. 3d at 31; see also Roe v. St. Louis Univ., 746 F.3d 874, 883 (8th
Cir. 2014) (holding university not deliberately indifferent under Title IX where administrator
informed student of how to make a complaint and respected her decision not to report). Here,
crucially, it was Stafford who chose not to pursue a claim of racial bias further.
Stafford may be right that the officials he spoke with had the “power to initiate an
investigation independent” of any formal grievance. See Pl. Opp’n at 19. But Title VI does not
give a claimant the “right to make particular remedial demands.” Davis, 526 U.S. at 648. Title
VI therefore imposed on GWU no obligation to pursue such an independent investigation once
Stafford dropped his complaint. See Fennell, 804 F.3d at 410–11 (explaining that “[o]fficials
may avoid liability under a deliberate indifference standard by responding reasonably to a risk of
42
harm,” and even “relatively weak responses to harassment” are not tantamount to intentional
discrimination).
The University likewise could not be liable for any inaction surrounding the sole
remaining potential reports during Stafford’s junior year: two conversations, at some point
during the Spring 2017 semester, with Coach David Macpherson about “the racist acts of [his]
teammates.” See Pl. Opp’n at 10–11 & 11 n.2; Def. Ex. 2 at 262:22–263:17, 271:3–15. The
parties debate whether Macpherson, as head tennis coach at a large university program, is an
“appropriate person” whose actual knowledge of discrimination and failure to act could render
the University liable. See Def. MSJ at 28–30; Pl. Opp’n at 18. The Court need not resolve that
disagreement.
Even if Macpherson were an appropriate person, Stafford’s accounts of these
conversations do not indicate that he put the new head coach on actual notice of any specific acts
of discrimination by his players. In particular, the Court finds Stafford’s recollection of his
conversations with Macpherson less specific than his retelling of his earlier meetings with
administrator Nicole Early. For instance, Stafford recounted one conversation with Macpherson
and another teammate where he apparently told Macpherson that he “thought racism was at play”
in his interactions with his teammates. Def. Ex. 2 at 263:6–22. But he did not offer any other
details, and at one point even conceded that he “didn’t link the conspiracy to [his] race” because,
in his view, the “whole context” of his allegations were “about race.” Id. at 262:22–263:7. The
same is true for a phone conversation Stafford and Macpherson apparently had in the spring of
2017. As to that call, Stafford only testified that he told his new coach his teammates were
“plotting,” “taunting” and “racially discriminating against” him. Id. at 271:6–10. Although the
Court has rejected GWU’s vagueness argument at other points, this description falls on the other
43
side of the line. No reasonable jury could find that such general allegations, which don’t even
gesture at specific incidents of name-calling or misconduct, gave Macpherson, and thus GWU,
actual notice of the nature of the problems Stafford faced on the tennis team.
d. Senior Year
The Court finally reaches Stafford’s final year at GWU, starting in the fall of 2017. The
only potential event giving rise to liability here that the Court would consider is one already
discussed: Stafford’s academic suspension and subsequent appeal in January 2018. As the
Court has already explained, under any statute of limitations, the University cannot be liable for
deliberate indifference arising out of this incident because, even on Stafford’s telling, no
“appropriate person” was given actual knowledge of racial abuse. See Gebser, 524 U.S. at 290;
supra Part III.A.2.
IV. Conclusion
For the foregoing reasons, the Court will grant the Defendant’s Motion for Summary
Judgment. A separate Order shall accompany this memorandum opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: January 4, 2022
44