Farmer v. Kansas State University

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS March 18, 2019

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

TESSA FARMER,

Plaintiff - Appellee,

v. No. 17-3207

KANSAS STATE UNIVERSITY,

Defendant - Appellant.

–––––––––––––––––––––––––––––––––––

SARA WECKHORST,

Plaintiff - Appellee,

v. No. 17-3208

KANSAS STATE UNIVERSITY,

Defendant - Appellant.
_________________________________

Appeals from the United States District Court
for the District of Kansas
(D.C. Nos. 2:16-CV-02255-JAR-GEB and 2:16-CV-02256-JAR-GEB)
_________________________________

Derek T. Teeter (Allan V. Hallquist and Michael T. Raupp, with him on the briefs),
Husch Blackwell LLP, Kansas City, Missouri, for Defendant-Appellant.

Jonathon D. Fazzola (Dustin L. Van Dyk, Gary D. White, Jr., and Meaghan M. Girard,
Palmer, Leatherman, White, Girard & Van Dyk, LLP, Topeka, Kansas, and Douglas E.
Fierberg, The Fierberg National Law Group, PLLC, Traverse City, Michigan, with him
on the brief), The Fierberg National Law Group, PLLC, Traverse City, Michigan, for
Plaintiffs-Appellees.
Emily Martin and Neena Chaudhry, National Women’s Law Center, Washington, D.C.;
Sunu Chandy and Alexandra Brodsky, of counsel; and Seanna R. Brown, Maximillian S.
Shifrin and Tiffany A. Miao, Baker & Hostetler, LLP, New York, New York, on the brief
for Amici Curiae.
_________________________________

Before MATHESON, EBEL, and EID, Circuit Judges.
_________________________________

EBEL, Circuit Judge.
_________________________________

Congress, through Title IX, bans discrimination on the basis of sex in

education programs receiving federal funding. Plaintiffs, two students at Kansas

State University (“KSU”), allege that KSU, a recipient of federal educational funds,

violated Title IX by being deliberately indifferent to reports it received of student-on-

student sexual harassment which, in this case, involved rape. Often Title IX

plaintiffs allege that a funding recipient’s deliberate indifference to prior reports of

rape caused the plaintiff subsequently to be raped or assaulted. But that is not the

claim Plaintiffs assert here. Instead, they allege that KSU violated Title IX’s ban

against sex discrimination by being deliberately indifferent after Plaintiffs reported to

KSU that other students had raped them, and that deliberate indifference caused

Plaintiffs subsequently to be deprived of educational benefits that were available to

other students. At the procedural posture presented by these interlocutory appeals,

which address the denial of KSU’s motions to dismiss, we accept as true Plaintiffs’

factual allegations indicating that KSU was deliberately indifferent to their rape

reports. That is not being challenged in these appeals. Accepting, then, that KSU

2
was deliberately indifferent, the narrow legal question presented here involves the

element of causation: what harm must Plaintiffs allege that KSU’s deliberate

indifference caused them?

KSU contends that, in order to state a Title IX claim, Plaintiffs must allege

that the university’s deliberate indifference caused each of them to undergo further

incidents of actual harassment by other students. Plaintiffs assert, instead, that they

state a viable Title IX claim by alleging that KSU’s deliberate indifference to their

reports of rape caused them to be vulnerable to further harassment, which in turn

deprived them of the educational opportunities that KSU offers its students.

The Supreme Court has already answered the legal question presented here,

ruling, as Plaintiffs allege, that a funding recipient’s “deliberate indifference must, at

a minimum, cause students to undergo harassment or make them liable or vulnerable

to it.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 644-45

(1999) (alterations, internal quotation marks omitted) (emphasis added).

We conclude that, in this case, Plaintiffs have sufficiently alleged that KSU’s

deliberate indifference made each of them “vulnerable to” sexual harassment by

allowing their student-assailants—unchecked and without the school investigating—

to continue attending KSU along with Plaintiffs. This, as Plaintiffs adequately

allege, caused them to withdraw from participating in the educational opportunities

offered by KSU. Having jurisdiction under 28 U.S.C. § 1292(b), therefore, we

AFFIRM the district court’s decision to deny KSU’s Fed. R. Civ. P. 12(b)(6) motions

3
to dismiss Plaintiffs’ Title IX claims. Our ruling, of course, does not address the

merits of the issues in this case which must await further factual development.

I. OVERVIEW OF TITLE IX

We begin with a quick overview of Title IX, 20 U.S.C. §§ 1681-88. With

exceptions not relevant here, Title IX provides that

[n]o person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal
financial assistance . . . .

Id. § 1681(a). Congress enacted Title IX under its spending power, “conditioning an

offer of federal funding on a promise by the recipient not to discriminate, in what

amounts essentially to a contract between the Government and the recipient of

funds.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998). In

enacting Title IX, Congress sought both “to avoid the use of federal resources to

support discriminatory practices” and “to provide individual citizens effective

protection against those practices.” Cannon v. Univ. of Chicago, 441 U.S. 677, 704

(1979).

Title IX is enforceable, not only by federal administrative agencies, but also

through private causes of action, like the cases at issue here, brought by victims of

prohibited sex discrimination against the federal funding recipient. See Jackson v.

Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). A funding recipient, however,

“may be liable in damages under Title IX only for its own misconduct.” Davis, 526

U.S. at 640. “The recipient itself must ‘exclud[e] [persons] from participation in, . . .

4
den[y] [persons] the benefits of, or . . . subjec[t] [persons] to discrimination under ‘its

‘program[s] or activit[ies]’ in order to be liable under Title IX.” Id. at 640-41

(quoting 20 U.S.C. § 1681(a)) (alterations added in Davis); see also id. at 640-43.

That point is critical in this case because, although the sex discrimination that

Title IX prohibits can include sexual harassment, see id. at 649-53, the sexual

harassment—rapes—alleged here were committed, not by the recipient KSU, but by

KSU students. In such a situation, the funding recipient can only be liable for its

own deliberately indifferent response to known sexual harassment by students against

other students. See Gebser, 524 U.S. at 291; Davis, 526 U.S. at 640-43. Critically,

“a recipient’s deliberate indifference to one student’s sexual harassment of another

. . . constitute[s] intentional discrimination on the basis of sex” prohibited by Title

IX. Jackson, 544 U.S. at 182 (citing Davis, 526 U.S. at 650).

Here, Plaintiffs base their Title IX claims on KSU’s deliberate indifference

after Plaintiffs reported to KSU that other students had raped them. We accept as

true the allegation that KSU responded with deliberate indifference to Plaintiffs’

reports of rape. Plaintiffs then allege that KSU’s deliberate indifference caused them

to have to continue attending KSU with the student-rapists potentially emboldened by

the indifference expressed by KSU which, in turn, caused Plaintiffs to withdraw from

participating in educational opportunities that KSU offers and prevented them from

using available KSU resources for fear of encountering the unchecked student-rapists

and other students who knew of the rapes. It is in this way that Plaintiffs allege that

KSU has excluded them “from participation in, den[ied] [them] the benefits of, or

5
subject[ed] [them] to discrimination under its programs or activities.” Davis, 526

U.S. at 640-41 (internal quotation marks, alterations omitted) (quoting 20 U.S.C.

§ 1681(a)).

Although Plaintiffs allege that KSU’s response to their reports of rape was so

deficient as to amount to deliberate indifference, we note that Title IX does not

require a funding recipient to acquiesce in the particular remedial action a victim

seeks. Nor does Title IX prescribe any particular mandatory remedial action. Davis

stress[ed] that [the Court’s] conclusion . . . —that recipients may be liable
for their deliberate indifference to known acts of peer sexual
harassment—does not mean that recipients can avoid liability only by
purging their schools of actionable peer harassment or that administrators
must engage in particular disciplinary action. . . .

. . . [T]he recipient must merely respond to known peer harassment
in a manner that is not clearly unreasonable.

Id. at 648-49 (citations omitted).

II. BACKGROUND

With these general Title IX principles in mind, we consider Plaintiffs’ specific

factual allegations against KSU, accepted as true and viewed in the light most

favorable to Plaintiffs. See Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir.

2018).

A. Plaintiff Tessa Farmer

Plaintiff Farmer alleged the following: In March 2015, she went to a fraternity

party and became very drunk. A designated driver took Farmer back to her dorm

room. At 2:00 a.m., Farmer received a Facebook message from T.R., another KSU

6
student who Farmer knew from high school. T.R. invited Farmer to the fraternity

house where the party was continuing, offering to pick up Farmer and drive her there.

Farmer agreed. T.R. drove to Farmer’s dorm, picked her up and took her to his room

at the fraternity house, where the two had sex. T.R. then left the room, telling Farmer

he was going to start his car, presumably to take her back to her dorm room. After

T.R. left, C.M., another KSU student who was a stranger to Farmer and who had been

hiding in the closet while T.R. and Farmer had sex, emerged from the closet and

raped Farmer. When T.R. returned to the room, he was not surprised by C.M.’s

presence or by Farmer’s being upset and sobbing.

Farmer reported to the Riley County Police Department that C.M. had raped

her. She also reported the rape to the director of the KSU Center for Advocacy,

Response and Education (“CARE”). The CARE director told Farmer that, although

she could report the rape to the KSU Interfraternity Council (“IFC”), the IFC would

not investigate the rape but would only investigate the fraternity chapter more

generally. Farmer, nevertheless, filed a complaint with the IFC; three months later

the IFC responded to Farmer that the fraternity chapter as a whole had not violated

any IFC policies.

Farmer later learned that, contrary to what KSU’s CARE director had told her,

there might be other avenues through which Farmer could complain to KSU about the

rape. In August 2015, Farmer filed a complaint with KSU’s Office of Institutional

Equity, alleging C.M. had violated KSU’s sexual misconduct policy. Farmer was

told, however, that that policy did not cover fraternity houses.

7
 Farmer, living in fear that she would run into her attacker, missed classes,

struggled in school, secluded herself from friends, withdrew from KSU activities in

which she had previously taken a leadership role, fell into a deep depression, slept

excessively, and engaged in self-destructive behaviors such as excessive drinking and

slitting her wrist. Farmer alleges that,

[b]y refusing to investigate off-campus sexual assaults at fraternities and
fraternity events, like those [she] endured, K-State makes students like
Tessa [Farmer] more vulnerable to rape because it sends a message to
fraternity members that students can rape other students with no fear of
school disciplinary action. K-State’s practice ignores the reality that
many off-campus sexual assaults adversely impact the on-campus
educational environment for victims, just as it did Tessa’s.

(Aplt. App. 25 ¶ 73.)

B. Plaintiff Sara Weckhorst

Plaintiff Weckhorst alleged that, in April 2014, she attended a fraternity event

at Pillsbury Crossing, “a frequent K-State party location not far from campus.” (Id.

620 ¶ 13.) There, Weckhorst “consum[ed] a large amount of alcohol and blacked

out” while speaking with J.F., another KSU student who was one of the fraternity’s

designated drivers. (Id.) J.F. took the passed-out Weckhorst to his truck and raped

her in front of approximately fifteen other students, some of whom took video and

photographs of the rape which they later posted on social media. J.F. then drove

Weckhorst to the fraternity house. On the way, he again sexually assaulted her. At

the fraternity house, “J.F. took Sara to the ‘sleep room,’ lined with beds, and raped

her again. When he was finished, J.F. left her there, naked and passed out, and joined

other fraternity members in partying downstairs.” (Id. ¶ 15.) Several hours later,

8
Weckhorst awoke to find another student and fraternity member, J.G., raping her.

Weckhorst “made her way out of the bed and to a nearby patio,” but J.G. followed

and raped Weckhorst again. (Id. 621 ¶ 16.)

Weckhorst sought help at the KSU Women’s Center and the Manhattan,

Kansas, Rape Crisis Center. The director of the Women’s Center helped Weckhorst

file a complaint with the KSU Affirmative Action Office. As a result, a KSU

investigator interviewed Weckhorst but told her that KSU “would do nothing about

the rapes or the two student-assailants because the rapes occurred off-campus.” (Id.

622 ¶ 22.) Weckhorst then reported the rapes to the Riley County Police. In the

meantime, the director of the KSU Women’s Center called the two perpetrators and

told them Weckhorst had filed charges against them, which according to the

allegations tipped off “the student-assailants and g[ave] them an opportunity to

coordinate their stories,” in addition to invading Weckhorst’s privacy rights,

exposing her to potential retaliation, compromising her safety, and placing her in

fear. (Id. 624-25 ¶ 33.)

Weckhorst later met with two associate deans for student life at KSU. They

reiterated that KSU would do nothing because the rapes occurred off campus. But

the deans encouraged Weckhorst to file a complaint about the presence of alcohol at

the fraternity party. She did so anonymously and, as a result, KSU’s Interfraternity

Council (“IFC”) suspended the fraternity’s charter.

Weckhorst and her parents continued to ask KSU to investigate the rapes, but

KSU refused. Without permission, one of the associate deans took language from an

9
email received from Weckhorst and filed it as a complaint with KSU’s Office of

Greek Affairs and the IFC. This action “released Sara’s highly sensitive, private

information, including her full name and a detailed description of the multiple rapes,

to student peers on the IFC board without any chance of this action benefitting Sara”

because the Office of Greek Affairs “did not have jurisdiction to punish the student-

assailants, only the fraternity.” (Id. 629 ¶ 48.) Because of this unauthorized release

of information, Weckhorst “has since lived day-to-day not knowing who she might

encounter who knows the details about the nightmare she endured.” (Id. 630 ¶ 48.)1

Moreover, because the alleged perpetrators remained on campus, Weckhorst

alleges she

is always afraid, apprehensive, and hyper-alert, on-campus and off.
Every man who passes her on the sidewalk terrifies her. At least once a
day on-campus, Sara is overcome by panic, anxious that any passing man
could be one of the student-assailants. She is constantly on the lookout
for J.F. Recently, walking to the K-State library she passed a man who
turned toward her. She jumped, screamed, and began to cry. Sara only
uses campus resources like the library when she is joined by friends or
her Chi Omega sorority sisters, and otherwise stayed home to avoid being
alone in a campus setting.

(Id. 637 ¶ 77.) Weckhorst’s grades “plummeted” and she lost her academic

scholarship. (Id. 638 ¶ 79.) She “has exhibited symptoms of post-traumatic

stress disorder,” has nightmares, has distanced herself from family and friends,

1
Although Weckhorst alleges that KSU was deliberately indifferent because it did
very little in response to her reports of rape, she also alleges that some of KSU’s
alleged actions affirmatively caused her additional harm. For example, Weckhorst
alleged that KSU informed the student-rapists that Weckhorst had gone to the police
and KSU, without permission, and had released confidential information about
Weckhorst and the rapes to fellow students.
10
and “has decreased her involvement in her sorority and philanthropy and has

turned down leadership opportunities.” (Id. 637 ¶ 78, 638 ¶ 80.) Although she

“wants to continue her K-State education, . . . doing so means facing

emboldened student-assailants who know K-State will protect them and not the

victim of their attacks.” (Id. 637 ¶ 75.) Similar, to Plaintiff Farmer, Plaintiff

Weckhorst alleges that,

[b]y refusing to investigate off-campus sexual assaults at fraternities and
fraternity events, like those Sara [Weckhorst] endured, K-State makes
students, like Sara, more vulnerable to rape because it sends a message to
fraternity members that students can rape other students with no fear of
school disciplinary action. K-State’s practice ignores the reality that
many off-campus sexual assaults adversely impact the on-campus
educational environment for victims, just as it did Sara’s.

(Id. 638-39 ¶ 83.)

C. These cases

Each Plaintiff separately sued KSU, asserting claims under Title IX and state

law. In each case, KSU moved under Fed. R. Civ. P. 12(b)(6) to dismiss all claims.

The district court denied KSU’s motions to dismiss the Title IX claims; that is the

matter now before us on appeal.2

The district court held that each Plaintiff had sufficiently alleged an actionable

Title IX violation. In reaching that conclusion, the district court, citing Davis, 526

U.S. 629, and Rost ex rel. K.C. v. Steamboat Springs RE-2 School District, 511 F.3d

2
The district court dismissed the state-law claims. Those claims are not before us in
these interlocutory appeals.

11
1114, 1119 (10th Cir. 2008), began by noting that, to state a Title IX claim, Plaintiffs

had to allege sex discrimination that occurred within a KSU educational program or

activity; KSU had actual knowledge of, but was deliberately indifferent to, sexual

harassment that was so severe, pervasive and objectively offensive that it deprived

Plaintiffs of access to the educational benefits or opportunities provided by KSU; and

that KSU’s deliberate indifference caused each Plaintiff, at a minimum, to undergo

harassment or made her liable or vulnerable to it. In its motions to dismiss, KSU

argued, among other things, that Plaintiffs had failed to allege that any deliberate

indifference by KSU had caused harm to Plaintiffs that is actionable under Title IX.

The district court rejected that argument and declined to dismiss Plaintiffs’ Title IX

claims.

At KSU’s request, the district court invoked 28 U.S.C. § 1292(b) and

certifie[d] its . . . Memorandum and Order . . . for interlocutory appeal for
determination of the following controlling questions of law: (1) whether
Plaintiff was required to allege, as a distinct element of her Title IX claim,
that KSU’s deliberate indifference caused her to suffer actual further
harassment, rather than alleging that Defendant’s post-assault deliberate
indifference made her ‘liable or vulnerable to’ harassment; and (2) if
Plaintiff is required to plead actual further harassment, whether her
allegations of deprivation of access to educational opportunities satisfy
this pleading requirement.

(Aplt. App. 606; see also id. 1247.) The Tenth Circuit, then, permitted KSU to

pursue these interlocutory appeals presenting these certified questions, see 28 U.S.C.

§ 1292(b), and ordered these appeals consolidated.3

3
In light of the narrow issues presented by these interlocutory appeals pursued under
§ 1292(b), we have no occasion here to address KSU’s contention that the sexual
12
 III. STANDARD OF REVIEW

This court reviews de novo the district court’s rulings on KSU’s Fed. R. Civ.

P. 12(b)(6) motions to dismiss, accepting as true all well pled facts and viewing those

facts in the light most favorable to Plaintiffs. See Straub, 909 F.3d at 1287. “To

withstand a motion to dismiss, a complaint must contain enough allegations of fact

‘to state a claim that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

IV. LEGAL DISCUSSION

Accepting, for the purpose of these interlocutory appeals, that Plaintiffs’

factual allegations charge that KSU was deliberately indifferent to their reports that

they had been raped, the narrow question we consider is whether each “Plaintiff was

required to allege, as a distinct element of her Title IX claim, that KSU’s deliberate

indifference caused her to suffer actual further harassment, rather than alleging that

Defendant’s post-assault deliberate indifference made her ‘. . . vulnerable to’

harassment.” (Aplt. App. 606.) KSU asserts that each Plaintiff must allege, as an

element of her Title IX claim, that KSU’s deliberate indifference caused her to be

subjected to actual further harassment by a student. Plaintiffs, instead, contend that it

is sufficient for them to allege that KSU’s deliberate indifference made them

harassment of which Plaintiffs complain did not occur within a KSU program or
activity and, thus, KSU is not responsible for student-on-student sexual harassment
occurring off campus at fraternity parties or in fraternity houses.

13
“vulnerable to” harassment. As explained below, Plaintiffs have the more persuasive

argument and we, therefore, affirm the district court’s decision.

A. It is sufficient for Plaintiffs to allege that KSU’s deliberate indifference made
them “vulnerable to” sexual harassment. Title IX does not require a subsequent
sexual assault before a plaintiff can sue.

The Supreme Court, in Davis, has already answered the legal question

presented here. To explain, we begin with the statutory language. Title IX provides:

[n]o person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal
financial assistance . . . .

20 U.S.C. § 1681(a) (emphasis added). In applying Title IX’s language—“[n]o

person . . . shall, on the basis of sex, . . . be subjected to discrimination . . .”—to a

case involving student-on-student harassment, the Supreme Court ruled:

If a funding recipient does not engage in harassment directly, it may not be
liable for damages unless its deliberate indifference “subject[s]” its students
to harassment. That is, the deliberate indifference must, at a minimum,
“cause [students] to undergo” harassment or “make them liable or
vulnerable” to it. Random House Dictionary of the English Language 1415
(1966) (defining “subject” as “to cause to undergo the action of something
specified; expose” or “to make liable or vulnerable; lay open; expose”);
Webster's Third New International Dictionary 2275 (1961) (defining
“subject” as “to cause to undergo or submit to: make submit to a particular
action or effect: EXPOSE”).

Davis, 526 U.S. at 644–45 (emphasis added).

Davis, then, clearly indicates that Plaintiffs can state a viable Title IX claim by

alleging alternatively either that KSU’s deliberate indifference to their reports of rape

caused Plaintiffs “‘to undergo’ harassment or ‘ma[d]e them liable or vulnerable’ to it.”

526 U.S. at 645 (emphasis added); see Fitzgerald v. Barnstable Sch. Comm., 504 F.3d

14
165, 172 (1st Cir. 2007) (citing Davis and stating that “to ‘subject’ a student to

harassment, the institution’s deliberate indifference must, at a minimum, have caused the

student to undergo harassment, made her more vulnerable to it, or made her more likely

to experience it”), rev’d on other grounds, 555 U.S. 246 (2009); id. at 172 (stating that

Davis’s language, “mak[ing] them liable or vulnerable to” harassment, “sweeps” broader

than requiring further actual harassment to have occurred); Hernandez v. Baylor Univ.,

274 F. Supp. 3d 602, 613 (W.D. Tex. 2017) (citing Davis and stating that “the

Supreme Court has made clear that to ‘subject’ a student to harassment a school need

only make the student vulnerable to that harassment”; further stating that a

recipient’s actionable “discriminatory harm can include the harm faced by student-

victims who are rendered vulnerable to future harassment and either leave school or

remain at school and endure an educational environment that constantly exposes

them to a potential encounter with their harasser or assailant”; elaborating that the

required harm could include “forcing the student to change his or her study habits . . .

or lowering the student’s grades”); see also, e.g., Joyce v. Wright State Univ.,

No. 3:17-cv-387, 2018 WL 3009105, at *8 (S.D. Ohio June 15, 2018); Karasek v.

Regents of Univ. of Calif., No. 15-cv-03717-WHO, 2015 WL 8527338, at *12-*13

(N.D. Cal. Dec. 11, 2015) (unreported) (citing cases); Takla v. Regents of Univ. of

Calif., No. 2:15-cv-04418-CAS(SHx), 2015 WL 6755190, at *4-*5 (C.D. Cal. Nov.

2, 2015) (unreported); Kelly v. Yale Univ., No. Civ.A 3:01-CV-1591, 2003 WL

1563424, at *4-*5 (D. Conn. Mar. 26, 2003) (unreported). To underscore that a Title

IX plaintiff is not required to allege that she suffered actual additional incidents of

15
sexual harassment, the Supreme Court in Davis referred to the Random House

Dictionary definition of “subject” to include, “to make liable . . . ; lay open; expose.”

Davis, 526 U.S. at 645.

KSU’s contrary argument, that Plaintiffs must allege (and eventually prove) that

KSU’s deliberate indifference to their reports of rape caused each Plaintiff to endure

further actual incidents of sexual harassment simply ignores Davis’s clear alternative

language recognizing that a funding recipient’s “deliberate indifference must, at a

minimum, ‘cause students to undergo’ harassment or make them ‘liable or vulnerable

to’” sexual harassment, 526 U.S. at 645 (emphasis added). We must give effect to each

part of that sentence.

Doing so is consistent with Title IX’s objectives, which include protecting

individual students against discriminatory practices, Cannon, 441 U.S. at 704.

The alternative offered by the University—i.e., that a student must be
harassed or assaulted a second time before the school’s clearly
unreasonable response to the initial incident becomes actionable,
irrespective of the deficiency of the school’s response, the impact on the
student, and the other circumstances of the case—runs counter to the
goals of Title IX and is not convincing.

Karasek, 2015 WL 8527338, at *12.

Once a funding recipient, like KSU, has actual knowledge of sexual

harassment that is severe, pervasive and objectively offensive enough to deprive a

student of access to the educational benefits and resources the recipient offers,4 see

4
No one asserts that the sexual harassment alleged in these cases is not sufficiently
extreme.
16
Davis, 526 U.S. at 633, 650-51, the recipient cannot, acting with deliberate

indifference, turn a blind eye to that harassment. See id. at 641 (indicating that

funding recipient can be liable under Title IX for “remain[ing] idle in the face of

known student-on-student harassment”). Critically, then, KSU’s alleged liability

stems directly from its own conduct, its own deliberate indifference to known

student-on-student sexual harassment occurring in its programs and activities that is

sufficiently severe, pervasive, and objectively offensive enough to deprive a student

of access to the educational opportunities the recipient provides. See Davis, 526 U.S.

at 633. KSU is wrong to contend that, by holding it liable for its own deliberate

indifference to the serious rape charges, we are requiring the university to remediate

the harm caused by the student rapists rather than KSU itself.

We conclude, then, that Plaintiffs can state a viable Title IX claim for student-

on-student harassment by alleging that the funding recipient’s deliberate indifference

caused them to be “vulnerable to” further harassment without requiring an allegation

of subsequent actual sexual harassment.

B. Plaintiffs have adequately pled that KSU made them “vulnerable to”
harassment

Plaintiffs sufficiently pled that KSU’s deliberate indifference to their reports

of rape made them vulnerable to harassment by alleging that the fear of running into

their student-rapists caused them, among other things, to struggle in school, lose a

scholarship, withdraw from activities KSU offers its students, and avoid going

anywhere on campus without being accompanied by friends or sorority sisters. See

17
Joyce, 2018 WL 3009105, at *7-*8 (S.D. Ohio) (declining to dismiss Title IX claim

based on funding recipient university’s failure to enforce restraining order

prohibiting assailant from being on campus because “it could be said that

[university’s] alleged failure to enforce the expulsion order made [plaintiff] Joyce

‘vulnerable’ to additional incidents of sexual assault and sexual harassment by [the

perpetrator], even though she never actually encountered him on campus”); Kelly,

2003 WL 1563424, at *4-*5 (D. Conn.) (holding Title IX plaintiff sufficiently

alleged that funding recipient’s deliberate indifference to her reported rape—by

ignoring her “requested academic and residential accommodations after the assault”

and her reported “discomfort and fear that she would feel if she encountered” the

alleged assailant—made her “liable or vulnerable” to her assailant’s harassment, even

though no further actual harassment occurred because victim left her dorm and her

classes); see also Doe ex rel. Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226, 233

(D. Conn. 2009) (stating that a reasonable jury could find that funding recipient

forcing high school victim of sexual assault to attend school with her assailant

amounted to sufficiently severe harassment to deprive victim of access to educational

opportunities, based on “potential interactions” between victim and the student

harasser); Doe ex rel. Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438, 440, 444-45

(D. Conn. 2006) (holding, in case where junior high student reported that senior high

student raped her and where funding recipient housed both junior and senior high

schools in same building, funding recipient could be liable under Title IX for its post-

assault deliberate indifference which “constantly exposed” the plaintiff “to the

18
possibility of an encounter with” the perpetrator, even if there was no evidence that

the perpetrator actually harassed the victim after she reported rape).

Plaintiffs’ allegations are quite specific and reasonable under the

circumstances. Plaintiffs allege more than a general fear of running into their

assailants. They allege that their fears have forced them to take very specific actions

that deprived them of the educational opportunities offered to other students. In

addition, they have alleged a pervasive atmosphere of fear at KSU of sexual assault

caused by KSU’s inadequate action in these cases. A Title IX plaintiff’s alleged fear

of encountering her attacker must be objectively reasonable, but under the horrific

circumstances alleged here Plaintiffs have adequately alleged that KSU’s deliberate

indifference to their rape reports reasonably deprived them of educational

opportunities available to other students at KSU. See Williams v. Bd. of Regents of

Univ. Sys. of Ga., 477 F.3d 1282, 1297 (11th Cir. 2007) (stating that student rape

victim’s decision to withdraw from school was “reasonable and expected” “[i]n light

of the harrowing ordeal” she endured). Future cases will undoubtedly be asked to

draw lines on when a victim’s fear of further sexual harassment is sufficient to

deprive that student of educational opportunities that the educational institution

offers to others, but we have no hesitation in concluding that the allegations in these

complaints are sufficient to survive a motion to dismiss, where all inferences are

drawn in favor of Plaintiffs.

C. KSU’s arguments to the contrary are unavailing

19
 We now briefly address KSU’s contrary arguments. KSU latches on to a

number of cases invoking the phrases “further discrimination” or “ further sexual

harassment.”

1. Rost ex rel. K.C. v. Steamboat Springs RE-2 School District, 511 F.3d
1114 (10th Cir. 2008), and Escue v. Northern Oklahoma College, 450 F.3d
1146 (10th Cir. 2006)

The primary cases on which KSU relies are the Tenth Circuit’s decisions in

Rost ex rel. K.C. v. Steamboat Springs RE-2 School District, 511 F.3d 1114 (10th

Cir. 2008), and Escue v. Northern Oklahoma College, 450 F.3d 1146 (10th Cir.

2006). As detailed below, Rost and Escue were decided at the summary judgment

stage of litigation, rather than at the pleading stage. In each case, the Tenth Circuit

upheld the district court’s summary judgment determination that the Title IX plaintiff

had failed to present sufficient evidence for a reasonable jury to find that the funding

recipient was deliberately indifferent. In making that determination, the Tenth

Circuit pointed to evidence that the sexual harassment stopped after the funding

recipient took action. Thus, although both cases did look at whether there had been

continuing sexual harassment after the recipient took remedial action, they did so for

the purpose of illuminating whether the funding recipient had been clearly

unreasonable. Neither case had occasion to address the question at issue here, what

injury does the funding recipient’s deliberate indifference have to cause a plaintiff to

be actionable under Title IX. Neither case held that a Title IX plaintiff was required

to allege subsequent actual incidents of sexual harassment had occurred following the

school’s inadequate response to the victim’s complaint.

20
 In our cases, by contrast, because they come to us on an interlocutory appeal

on the pleadings, all parties have to accept, and do accept, that KSU was deliberately

indifferent in failing to take remedial actions. Thus, the issue presented in Rost and

Escue—whether the educational institution was deliberately indifferent—is not

before us. Instead, here KSU is seeking to add a new pleading burden to a Title IX

claimant, which is that, even accepting that KSU was deliberately indifferent, a Title

IX plaintiff must further allege as an element of her case that subsequent discrete acts

of sexual harassment directed at her followed the funding recipient’s deliberately

indifferent response to her complaints.

Plaintiffs, instead, argue—and we have agreed—that once they show that the

funding recipient was deliberately indifferent to their complaints of peer sexual

harassment, they can show the requisite harm caused by that deliberate indifference

by alleging and proving that the prior sexual assaults were so grievous and the

likelihood of continuing to encounter the sexual predators on campus so credible that

KSU’s inaction by itself deprived them of the “benefits . . . under any education

program . . . receiving Federal financial assistance.” Rost, 511 F.3d at 1119. In

short, they allege that KSU created such an adverse environment for learning for

them by its dismissive treatment of their complaints of rape that it was that

environment that reasonably prevented them from accessing the educational

opportunities available to other students. That issue was not presented in nor

resolved by either Rost or Escue.

21
 In Escue, a college student alleged that her professor sexually harassed her.

450 F.3d at 1149. Once the student reported the harassment to the school, the school

acted to prevent further contact between the student and the professor, including

immediately transferring the student out of the offending professor’s class,

confronting the professor about his behavior, and eventually non-renewing him. Id.

at 1150. This court determined that the school’s actions (which are dramatically

different from essentially no action taken here by KSU) were sufficient to rebut the

plaintiff’s allegation that the University had been deliberately indifferent. Id. at

1154-56. In reaching that conclusion on the deliberate indifference issue, the Tenth

Circuit noted that, “Ms. Escue [the student] does not allege that further sexual

harassment occurred as a result of [the school’s] deliberate indifference.” Id. at

1155. That determination was made in the context of illuminating the adequacy of

the university’s actions. Nothing in that opinion held or even suggested that a

complaining student would have to show subsequent offending conduct as a

causation element in order to prevail even after the funding recipient had been found

to have been deliberately indifferent.

In Rost, a special education student alleged that several of her male high

school classmates coerced her into performing sexual acts with them. 511 F.3d at

1117. Rost upheld summary judgment for the recipient school district because there

was no evidence that the school district’s response—“immediately contact[ing] law

enforcement officials, cooperat[ing] fully in the investigation, and ke[eping]

informed of the investigation”—was so unreasonable as to amount to deliberate

22
indifference. Id. at 1121. It was in that context that Rost noted that the student-

victim’s mother “does not contend that further sexual harassment occurred as a result

of the district’s deliberate indifference after [the student-victim’s] disclosure” of the

ongoing sexual harassment to the school district. Id. at 1123-24. In fact, there was

no opportunity for further harassment there because the victim’s mother withdrew the

victim from the school and “[t]here [wa]s no evidence in the record that Ms. Rost

was willing to work with school officials and allow K.C. to return to school under

some accommodation.” Id. at 1124. Still, we noted that, “[i]f K.C. had expressed

interest in returning to the school and school officials had not provided a safe

educational environment, then she would likely have a Title IX claim.” Id. That is,

of course, essentially the issue that is presented in our case.

Admittedly, in the course of concluding that the school district was not

deliberately indifferent, Rost mentions causation. Id. at 1123. But causation was not

listed as one of the issues in that case. Moreover, Rost certainly did not hold that a

Title IX plaintiff had to prove an actual subsequent sexual assault or harassment in

order to state a viable Title IX claim. If anything, Rost’s closing hypothetical

suggests that, had the victim returned to school and had the district had been

deliberately indifferent, causing an unsafe school environment, that would “likely” be

enough to state a Title IX claim against the district. Id. at 1124.

It is not surprising, in addressing the question of whether the educational

funding recipient had been “deliberately indifferent,” that courts might look to see

whether the offending action continued thereafter. However, consulting subsequent

23
behavior as an evidentiary aid in determining if the school’s action taken had been

deliberately indifferent is a wholly different thing than requiring a continuation of the

offending behavior as a separate element of causation before a Title IX claim may be

maintained.

2. Out-of-circuit cases

KSU also cites to a group of out-of-circuit cases that it believes supports its

position. Most relevant is the Eleventh Circuit’s decision in Williams v. Board of

Regents of University System of Georgia, 477 F.3d 1282 (11th Cir. 2007), a case

cited by both parties. In that case, Plaintiff Williams alleged that the funding

recipients at issue there—the University of Georgia and its athletic association, id. at

1294—were deliberately indifferent, id. at 1288-90.5 The Eleventh Circuit did say

“that a Title IX plaintiff at a motion to dismiss stage must allege that the Title IX

recipient’s deliberate indifference to the initial discrimination subjected the plaintiff

to further discrimination.” Id. at 1296 (emphasis added). Importantly, however,

Williams defined “further discrimination” not to require further overt acts of assault

or abuse. Instead, the Eleventh Circuit recognized that injuries similar to those

Plaintiffs allege here would satisfy its “further harassment” requirement. Williams

explained that “further discrimination” included “effectively denying Williams an

5
KSU asserts that Williams is a pre-assault deliberate indifference case. In fact, the
plaintiff in Williams asserted claims alleging the funding recipients were deliberately
indifferent both before and after she was sexually assaulted. See 477 F.3d at 1288-
90, 1296-97.

24
opportunity to continue to attend” the University of Georgia by delaying any action

against the student-rapists for months and by failing “to take any precautions that

would prevent future attacks” by the student-rapists themselves or other “like-

minded” students by, for example, removing the alleged student-rapists from student

housing or suspending them, or by “implementing a more protective sexual

harassment policy to deal with future incidents,” id. at 1296-97; see also, e.g.,

Hernandez, 274 F. Supp. 3d at 613 (W.D. Tex.) (holding that, “[w]hile allegations of

further assault or harassment are necessary for a claim under Title IX,” that

requirement can be met by allegations of “harm faced by student-victims who are

rendered vulnerable to future harassment and either leave school or remain at school

and endure an educational environment that constantly exposes them to a potential

encounter with their harasser or assailant” (emphasis added)); Kinsman v. Fla. State

Univ. Bd. of Trs., No. 4:15cv235, 2015 WL 11110848, at *4 (N.D. Fla. Aug. 12,

2015) (unreported) (applying Williams to require allegations that the funding

recipient’s deliberate indifference caused “further discrimination,” but holding such

“further discrimination” can include the hostile environment created by “the

possibility of further encounters between a rape victim and her attacker,” which can

“deprive the victim of access to educational opportunities provided by a university”

(internal quotation marks omitted)).

KSU further cites decisions from other circuits that it argues require a showing

of “further harassment” or “further discrimination.” But those cases are easily

distinguishable. See K.T. v. Culver-Stockton College, 865 F.3d 1054, 1058 (8th Cir.

25
2017) (addressing situation where there was no opportunity for further harassment

because the victim did not attend the school); Reese v. Jefferson School District No.

14J, 208 F.3d 736, 738, 740 (9th Cir. 2000) (addressing situation where there was no

opportunity for further harassment because students involved were graduating.)

In conclusion, the out-of-circuit cases that KSU cites are not only not binding

on us but are also either distinguishable or they end up ultimately supporting the

conclusion we reach here. To the extent that ambiguous dicta can be found in any of

them, they certainly cannot affect the binding guidance that we get from the Supreme

Court in Davis, 526 U.S. at 644-45.6

V. CONCLUSION

Plaintiffs alleged that they reported to KSU that other KSU students had raped

them. We must assume for purposes of these interlocutory appeals that KSU was

deliberately indifferent in responding to Plaintiffs’ rape reports by failing to take any

reasonable action to address and remedy those matters. The Supreme Court, in

Davis, held that, to be actionable, a federal education funding recipient’s deliberate

6
KSU finally asserts that Plaintiffs lack Article III standing to assert their claims.
KSU did not raise this argument below and the district court did not certify this
question for interlocutory appeal. We address the argument briefly because Article
III standing implicates our jurisdiction. However, Plaintiffs have adequately alleged
their standing under Article III, which “requires allegations—and, eventually,
proof—that the plaintiff personally suffered a concrete and particularized injury in
connection with the conduct about which [s]he complains.” Trump v. Hawaii, 138
S. Ct. 2392, 2416 (2018) (internal quotation marks, alteration omitted). Plaintiffs
have alleged that the conduct of which they complain caused them a concrete and
particularized injury by depriving them of access to the educational resources and
opportunities KSU offers its students.
26
indifference to reports of student-on-student sexual harassment—here, rape—“must,

at a minimum, cause students to undergo harassment or make them liable or

vulnerable to it.” 526 U.S. at 644-45 (internal quotation marks, alterations omitted)

(emphasis added). We conclude, therefore, that a Title IX plaintiff must allege, at a

minimum, that the funding recipient’s deliberate indifference caused her to be

vulnerable to further harassment. Plaintiffs have met that pleading requirement here

by alleging, among other things, that KSU’s deliberate indifference caused them

objectively to fear encountering their unchecked assailants on campus, which in turn

caused Plaintiffs to stop participating in the educational opportunities KSU offered

its students. We, therefore, AFFIRM the district court’s decision to deny KSU’s

motions to dismiss Plaintiffs’ Title IX claims.

27