Doe v. School District Number 1

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 17, 2020

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

JANE DOE,

Plaintiff - Appellant,

v.
No. 19-1293
SCHOOL DISTRICT NUMBER 1,
DENVER, COLORADO, a/k/a Denver
Public Schools (“DPS”); TOM
BOASBERG, individually and in his
official capacity as superintendent of DPS;
JANN PETERSON, individually and in her
official capacity as an assistant principal
with DPS; JEANETTE SCULLEY,
individually and in her official capacity as
a dean with DPS; ERIC SINCLAIR,
individually and in his official capacity as a
dean with DPS; ANITA CURTISS,
individually and in her official capacity as
a school psychologist with DPS,

Defendants - Appellees,

ANDY MENDELSBERG, individually
and in his official capacity as a principal
with DPS,

Defendant.
_________________________________

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:18-CV-03170-RM-STV)
_________________________________
Igor Raykin, Kishinevsky & Raykin, Aurora, Colorado (Michael Nolt, Kishinevsky &
Raykin, Aurora, Colorado on the briefs) for Plaintiff-Appellant.

Holly Ortiz, Semple, Farrington, Everall & Case, P.C., Denver, Colorado (M. Brent Case
and Brian S. Condon, Farrington, Everall & Case, P.C., Denver, Colorado on the briefs)
for Defendants-Appellees.
_________________________________

Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges.
_________________________________

HARTZ, Circuit Judge.
_________________________________

Jane Doe appeals the dismissal of her Title IX claim against School District No. 1,

Denver, Colorado (the District or DPS) for failure to state a claim. According to the

complaint, a group of students began sexually harassing Ms. Doe after she was sexually

assaulted by another student in March of her freshman year at East High School (EHS).

She alleges that despite her numerous reports of the harassment to school personnel, as

well as reports from teachers and a counselor, the school administration never

investigated her complaints and little if anything was done to prevent the harassment

from continuing. She stopped attending regularly scheduled classes about 14 months

after the assault, and she transferred to a different school after completing her sophomore

year. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.1

1
The original complaint alleged claims against a number of other defendants and
raised several other claims. But only the Title IX claim against the school district is
pursued on appeal.

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 I. THE COMPLAINT

Because this appeal is taken from an order granting the District’s motion to

dismiss, we “accept as true all well-pleaded factual allegations in the complaint and view

them in the light most favorable to [Ms. Doe].” S.E.C. v. Shields, 744 F.3d 633, 640

(10th Cir. 2014) (internal quotation marks omitted). We ignore factual assertions by the

District unless they are based on allegations in the complaint or on other sources proper

to consider on a motion to dismiss. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.

2010) (on motion to dismiss complaint, court may consider complaint and

“(1) documents that the complaint incorporates by reference, (2) documents referred to in

the complaint if the documents are central to the plaintiff’s claim and the parties do not

dispute the documents’ authenticity, and (3) matters of which a court may take judicial

notice” (internal citations and quotation marks omitted)). The complaint alleges the

following events:

Jane Doe was a 14-year-old student in her first year at EHS when she was sexually

assaulted by a male classmate, referred to as “Student 1,” at his parents’ home on a

Saturday evening. The following Monday, March 14, 2016, Ms. Doe reported the assault

to Jeanette Scully, an EHS dean with disciplinary authority. Dean Scully sent Ms. Doe to

see a school psychologist, Anita Curtiss. Ms. Doe’s parents were contacted and came to

EHS to meet with Dean Scully and Ms. Curtiss. They were told “that the charges would

be difficult to prove and doing so would be difficult on the family,” Aplt. App. at 17, and

were discouraged from filing charges. Although they declined to press charges at the

time, citing their concern for Student 1, they did request that the assault be formally

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documented in school files. After Ms. Doe’s report, the school warned her brother (also a

student at EHS) not to retaliate against Student 1. Neither Ms. Curtiss nor Dean Scully

reported the assault to the Denver Police Department school-resource officer assigned to

EHS.

The next day Ms. Doe told Dean Scully that she was facing “backlash from her

peers, who[] had heard about the assault,” and Dean Scully advised her to forget about

the assault and not tell anyone. Id. Ms. Doe met with Ms. Curtiss again on March 17

because of “retaliation at school based on her rape report.” Id. at 18. She was

experiencing “fallout of her friendships,” id., “anxiety about being at school,” “fears for

the future,” “nightmares,” and “lack of sleep,” id. at 19. Ms. Curtiss reviewed limitations

(not described in the complaint) on interactions with Student 1. (The District’s brief on

appeal asserts that EHS imposed a “no-contact” order between Ms. Doe and Student 1

immediately after the assault was reported, but the complaint does not allege that and the

District provides no citation to the record supporting the assertion or any explanation of

why we can consider the assertion.) Throughout the week, Ms. Curtiss “counseled” Ms.

Doe, telling her that “some things are just more traumatizing for others,” that she should

“find new friends,” and that she would be disciplined for harassment if she contacted

Student 1. Id.

The next week, on March 23, one of Ms. Doe’s friends told Ms. Curtiss that Ms.

Doe had started to cut herself. Ms. Curtiss asked Ms. Doe to complete a safety-plan form

and assured her that they would have weekly check-ins about her safety, though Ms. Doe

alleges that these weekly check-ins never occurred.

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 On April 6, Ms. Doe met again with Ms. Curtiss and told her that she was still

experiencing conflicts with her peers. Ms. Curtiss gave her advice about how to manage

the conflicts. Also on April 6, one of Ms. Doe’s teachers emailed Ms. Curtiss to say that

Ms. Doe “had a rough week with the gossip around her.” Id. at 20. Two days later, Ms.

Curtiss emailed Dean Scully about Ms. Doe’s ongoing problems with Student 1 and to

tell her that Ms. Doe was having problems with harassment by Student 1’s friends, which

included the friends telling Ms. Doe that “[w]e took a vote and we all agree you’ll lose

your virginity first.” Id. Ms. Curtiss asked Dean Scully to “meet with Student 1 to

reiterate that this issue is between Ms. Doe and himself,” and that “his friends defending

him cannot . . . verbally harass Ms. Doe.” Id. (brackets omitted). Dean Scully indicated

that she would talk with Student 1. No investigation was conducted or disciplinary action

taken by the school against Student 1 or the harassers during the school year ending in

June, although the complaint does not identify any additional reports to school officials

by Ms. Doe before school ended. Ms. Doe does allege one incident of harassment during

the summer, when one of Student 1’s close friends (Student 3) contacted her over

Facetime and asked if she wanted to “sexually experiment with him.” Id. at 23.

When school was back in session, “there were additional reports [in early

September] that Ms. Doe was being bullied as a result of the rape,” and “reports [in late

November] indicating that Ms. Doe had ongoing conflicts with other students.” Id. at 21.

And in December she told Ms. Curtiss that “things at EHS had only gotten worse for her,

and that she was considering switching schools.” Id. at 22. Ms. Curtiss told her that “if

she switched schools, then she would only be running away from her problems.” Id.

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 On January 19, 2017, Ms. Doe reported through an anonymous system called

“Safe2Tell” that she was being bullied. Every such report was supposed to be copied to

the EHS principal. The report, which is included in the record on appeal, stated that

“[c]aller received information about sophomore [Student 3] that has nude photographs of

female students on a phone app . . . . [Student 3] has used the photos to blackmail these

students.” Id. at 127. (The report did not include any information about how Student 3

got the nude photographs). In response to the report, Eric Sinclair, another dean with

disciplinary authority at EHS, and Janet Peterson, an assistant principal, met with Ms.

Doe on January 20. She told them her experience from the time of the sexual assault.

She reported that she had been subjected to “constant bullying and harassment . . . from

the boys in the sophomore class at EHS.” Id. at 22. She said there was a group of

students who would “make drawings of [her] telling her to kill herself, call her names,

start rumors about her and make rape jokes about Student 1 to [her].” Id. (capitalization

and original brackets omitted). One of the students would “constantly stare at Ms. Doe

[and] smirk at her,” id., and Student 3 “shoved her down at lunch” off campus and

“called her a dirty slut,” id. at 23 (internal quotation marks omitted). Ms. Doe identified

a group of five boys who “pulled on her backpack all the time and would draw pictures of

her killing herself.” Id. Dean Sinclair and Ms. Peterson again called Ms. Doe’s parents,

who came to campus to discuss their concerns about bullying. No disciplinary action was

taken against any of the boys and the harassment continued.

A week later Ms. Doe met with Dean Sinclair and Elisa Spratt, a school

psychologist, about “safety concerns.” Id. at 24. The Dean said that there was no “hard

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evidence” of any of the bullying Ms. Doe had alleged. Id. (internal quotation marks

omitted). In response, Ms. Doe gave him “copies of numerous pictures and social media

exchanges,” and the names and phone numbers of the students who were harassing her.

Id. Dean Sinclair “briefly glanced” at what Ms. Doe gave him before filing it away. Id.

There was no investigation of the harassment or disciplinary action against the offending

students.

The school completed a suicide-risk report on Ms. Doe on January 25. It noted the

alleged rape and incorrectly stated that it had been reported to the police. It also

documented that “Ms. Doe felt everyone got mad at her for reporting Student 1,” that

“she wasn’t sleeping well and thought about overdosing on sleeping pills,” that “she

wrote a goodbye letter to her older sister,” that “she was having nightmares thinking

about Student 1 in her room,” and that she “had lost interest in self-preservation.” Id.

(brackets, capitalization, and internal quotation marks omitted). The report indicated that

“Ms. Doe could have been suffering from an emotional disability.” Id. Following the

report, a school counselor, Lindsay Vesceri, spoke with Ms. Doe and her father about

“concerns,” and on January 31, Ms. Vesceri emailed Dean Sinclair about “harassment

against Ms. Doe.” Id. at 25. Dean Sinclair replied that he would “speak with the

students.” Id.

Ms. Doe and Dean Sinclair met several more times in late January and early

February to discuss ongoing bullying and harassment. She told him that she was being

physically threatened, including being told that “she should watch her back if she ‘does

not want to die,’” and that she “would be ‘beat up.’” Id. One of her friends was also

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being threatened by Student 3, who told her not to have lunch with Ms. Doe again or “it

would be ‘bad for her.’” Id. Dean Sinclair discussed these incidents with Ms. Doe and

her parents and said that he “could not do anything about it and that ‘being an asshole

isn’t a crime.’” Id. At this point Ms. Doe was eating lunch by herself in teachers’ rooms

or the counselors’ office and was leaving school through the back entrance because she

was afraid of the students who were threatening her.

On April 7 one of Ms. Doe’s teachers, Sarah Rasay, emailed Dean Sinclair to tell

him that Ms. Doe had been harassed by a group of students since an incident the prior

year, that she had received a Snapchat message on her phone from the harassing students

that said “Consent is a myth,” that “someone from the group had threatened to beat her

up,” and that she did not feel safe or protected at school and did not “go outside at lunch

to avoid these students.” Id. at 26. Later that month Ms. Doe “was the recipient of a very

harsh and embarrassing Instagram post,” which caused her to have a “full breakdown,”

including hitting her head against the wall so hard that she suffered a concussion. Id.

She did not go to school the next day.

A few weeks later Ms. Rasay forwarded to an EHS assistant principal, Joe Glover,

her April 7 email about her concerns for Ms. Doe’s safety. Ms. Doe then met with Ms.

Rasay and Ms. Vesceri, both of whom were concerned that Dean Sinclair was not “taking

proper action to stop the harassment.” Id. at 26–27. The three of them met with Vince

Valdez, another disciplinary dean at EHS, and Ms. Doe’s mother. They discussed a

safety plan for Ms. Doe but did not address stopping harassment by Student 1 or the other

boys. At the meeting it appeared that EHS had not documented in Ms. Doe’s official file

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the sexual assault or any of the bullying and retaliation. Ms. Doe’s mother told Ms.

Vesceri that her daughter would not be returning to EHS. The day after the meeting Ms.

Doe went to the emergency room because of a panic attack.

Several days later Ms. Doe’s parents asked Ms. Vesceri why her file contained no

information regarding the assault and bullying. Ms. Vesceri responded that “she and

other faculty members were instructed by EHS officials not to be detailed in file reports

in case one of them ever has to appear in court.” Id. at 27.

Although Ms. Vesceri had told Ms. Doe’s mother that if Ms. Doe left the high

school her teachers would probably just freeze her grades “and award her full credit

because she was such a good student,” EHS principal Andy Mendelsberg later told Ms.

Vesceri that he was opposed to Ms. Doe’s leaving EHS and that he “would not allow her

to get full credit for her grades.” Id. At a meeting on May 4 between Ms. Doe’s parents

and Mr. Mendelsberg, he told them that he was unaware of the reported sexual assault or

any of the subsequent bullying and harassment. He said that if the assault and harassment

“was that bad, she wouldn’t have been able to maintain those grades.” Id. at 28. The

parties agreed that for the remaining six weeks of the school year, Ms. Doe would

complete her classwork by coming to campus before and after regularly scheduled classes

at least three times per week. Under this arrangement Ms. Doe came in as early as 5:30

a.m. to complete her work before classes started, or came in at 5 p.m. and stayed as late

as 7:00 p.m. Nonetheless, she would still “on occasion run into her harassers, including

Student 1.” Id. at 29 (brackets and capitalization omitted). And she was required to take

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most of her final exams in classrooms in which her harassers were present. Ms. Doe

finished the school year with a 4.0 GPA, and then transferred to a different high school.

During the summer of 2017, following an unrelated incident at EHS, a parent of

another EHS student encouraged the DPS superintendent to reach out to Ms. Doe’s

parents because she had heard that EHS had mishandled Ms. Doe’s reports that she was

being harassed. That same day, the general counsel for DPS left Ms. Doe’s father a

voicemail “regarding the problematic culture at EHS with respect to responding to claims

of sexual assault and bullying.” Id. at 30–31. On November 1, DPS assigned to Ms.

Doe’s matter an attorney who told Ms. Doe’s father that “multiple parents had come

forward regarding the cultural problem created by [former principal] Mendelsberg and

the EHS administration,” and that there was a new principal at EHS. Id. at 31.

Ms. Doe filed a police report about the assault by Student 1 on November 14,

2017. The next month the detective assigned to her case met with Ms. Peterson, who said

that there were no computer records showing that Student 1 had been accused of sexual

assault or other misbehavior. In 2018, Student 1 pleaded guilty to felony sexual assault

with force.

II. DISCUSSION

Title IX of the Education Amendments of 1972 mandates that “[n]o person in the

United States shall, on the basis of sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any education program or activity

receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a). A school that receives

federal funding may be held liable for damages that are caused by its deliberate

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indifference to student-on-student sexual harassment that is “so severe, pervasive, and

objectively offensive” that it deprives the victims of equal access to educational

resources, opportunities, or benefits. Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of

Educ., 526 U.S. 629, 650 (1999); see id. at 649– 50 (“sexual harassment is a form of

discrimination for Title IX purposes”). To establish a Title IX claim of deliberate

indifference to student-on-student sexual harassment, the plaintiff must prove that the

school “(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.”

Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1246 (10th Cir. 1999).

The district court granted the defendants’ Fed. R. Civ. P. 12(b)(6) motion to

dismiss the action for failure to state a claim because it determined that Ms. Doe had

failed to plausibly allege that she was harassed on the basis of sex, that the harassment

was severe or pervasive, or that DPS was deliberately indifferent to the alleged sexual

harassment. Ms. Doe challenges each ruling in her opening brief. In its answer brief,

DPS argues that we can also affirm on the alternative ground that Ms. Doe failed to

plausibly allege that the harassment deprived her of educational benefits or opportunities.

We now turn to the issues raised by the parties.

A. Standard of Review

We review de novo the district court’s ruling on a Rule 12(b)(6) motion to

dismiss, “accepting as true all well pled facts and viewing those facts in the light most

favorable to Plaintiffs.” Farmer v. Kan. State Univ., 918 F.3d 1094, 1102 (10th Cir.

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2019). A complaint cannot survive a motion to dismiss unless it “contain[s] sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A

complaint is “plausible on its face” if its factual allegations allow the court to “draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. We have interpreted this standard to be “a middle ground

between heightened fact pleading . . . and allowing complaints that are no more than

labels and conclusions or a formulaic recitation of the elements of a cause of action[.]”

Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotation

marks omitted). “[S]pecific facts are not necessary,” but “some facts are.” Id. at 1193

(brackets and internal quotation marks omitted).

B. Harassment on the Basis of Sex

The district court decided that Ms. Doe failed to allege that the harassment she

suffered was on the basis of sex. It reasoned that the facts alleged in the complaint

“suggest that other students harassed her because they learned she had accused Student 1

of sexually assaulting her” and there was no allegation that “DPS responded differently

when a male student made a similar accusation against another student at EHS nor any

indication that it would have done so.” Doe v. Sch. Dist. No. 1, Denver, Colo., Civil

Action No. 1:18-cv-03170-RM-STV, 2019 WL 3425236, at *4 (D. Colo. July 30, 2019).

On appeal Ms. Doe argues that the harassment was “on the basis of sex” because

the harassment was linked to the sexual assault by Student 1 and much of the harassment

12
involved sexually charged comments. For legal support she relies on an unpublished

Second Circuit opinion which held that “‘[a] reasonable factfinder could conclude that

when a fourteen-year-old girl reports a rape and then is persistently subjected by other

students to verbal abuse that reflects sex-based stereotypes and questions the veracity of

her account, the harassment would not have occurred but for the girl’s sex.’” Aplt. Br. at

14 (quoting Doe v. East Haven Bd. of Educ., 200 F. App’x. 46, 48 (2d Cir. 2006)).

For the factual predicate of her argument, Ms. Doe points to her complaint’s

specific allegations that Student 1 had raped her and that his associates harassed her by

calling her a “dirty slut,” making rape jokes about her assailant, telling her that she would

be the first to lose her virginity, and sending her a group Snapchat message that

“[c]onsent is a myth.” There are also allegations that Student 1’s associates engaged in

sex-neutral but hostile conduct toward her, such as pulling on her backpack, drawing

pictures of her killing herself, telling her she should kill herself, and threatening her with

physical violence.

DPS responds that “[h]arassment for reporting misconduct is not the same as

harassment because of gender,” Aplee. Br. at 12, and that Ms. Doe was not harassed “on

the basis of sex” because her complaint alleges that the harassment was motivated by

retaliatory animus toward Ms. Doe for reporting Student 1 to school authorities for

assaulting her. This argument relies on our opinion in Seamons v. Snow, 84 F.3d 1226

(10th Cir. 1996). The plaintiff in that case had been sexually assaulted by his football

teammates as part of a hazing ritual in which he was taped naked to a towel rack in the

locker room and a female student was brought into the locker room to view him while his

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teammates looked on. See id. at 1230. After he reported the incident, the school district

responded by cancelling the football team’s last game of the season, which caused him to

be “branded as the cause of the football team’s demise,” “threatened[,] and harassed.” Id.

He claimed that school administrators discriminated against him by “fail[ing] properly to

investigate the taping incident and to take disciplinary action against the students

involved, creating a hostile environment.” Id. at 1232. We held that his claim failed

because the discriminatory actions against him were not on the basis of sex: “[T]he facts

as alleged tend to show only that [the plaintiff] was treated as he was because others felt

he ‘betrayed’ the team by reporting the incident to the relevant authorities and by failing

to apologize.” Id. at 1233. DPS says that just like the harassment of the plaintiff in

Seamons, the harassment of Ms. Doe in this case was motivated by her reporting the

sexual assault to school authorities and not her sex.

In our view, Ms. Doe has adequately alleged discrimination on the basis of sex.

First, we believe that it is a factual question whether the harassment of Ms. Doe was

exclusively motivated by a desire to retaliate for her reporting that she had been sexually

assaulted. In particular, a factfinder could decide that the comments that were sexual in

nature—such as those relating to consent and the loss of her virginity—were harassment

based on sex that went beyond gender-neutral harassment motivated only by a desire to

retaliate against one who reports misconduct.

Second, Seamons is readily distinguishable. It was a narrow holding under

unique, peculiar facts. The case presented a limited claim that did not challenge the

initial taping incident nor did it allege any sexual content in the School District’s

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response other than a general nonspecific conclusion that the School District

hypothetically might have handled a female athlete’s complaint differently.

Third, and dispositively, after Seamons was decided, the Supreme Court held,

directly contrary to what the District reads into Seamons, that retaliation for reporting sex

discrimination comes within the meaning of the statutory language prohibiting

discrimination “on the basis of sex.” See Jackson v. Birmingham Bd. of Educ., 544 U.S.

167 (2005). The factual question described above—whether the harassment was

motivated solely by the report of the sexual assault—is therefore irrelevant to the dispute

between the parties. As Jackson explained:

Retaliation against a person because that person has complained of sex
discrimination is another form of intentional sex discrimination
encompassed by Title IX’s private cause of action. Retaliation is, by
definition, an intentional act. It is a form of ‘discrimination’ because the
complainant is being subjected to differential treatment. Moreover,
retaliation is discrimination ‘on the basis of sex’ because it is an intentional
response to the nature of the complaint: an allegation of sex discrimination.

Id. at 173-74 (citations omitted). An allegation that the plaintiff was harassed for

reporting misconduct can therefore suffice to state a claim for discrimination on the basis

of sex if the misconduct reported is itself sex discrimination.

Applying Jackson to the case before us, the sexual assault that Ms. Doe

complained about was an act of sex discrimination. See Rene v. MGM Grand Hotel, Inc.,

305 F.3d 1061, 1065 (9th Cir. 2002) (“Physical sexual assault has routinely been

prohibited as sexual harassment under Title VII.”); see also id. at 1065–66 (collecting

cases holding that physical sexual assault is sexual harassment). Hence, any harassment

of her that was motivated by retaliatory animus for her complaint was “an intentional

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response to the nature of [her] complaint” and was therefore “discrimination ‘on the basis

of sex.’” Jackson, 544 U.S. at 173–74; see Feminist Majority Found. v. Hurley, 911 F.3d

674, 695 (4th Cir. 2018) (“[W]e are satisfied that an educational institution can be liable

for acting with deliberate indifference toward known instances of student-on-student

retaliatory harassment.”); cf. Fuller v. Idaho Dep’t of Corr., 865 F.3d 1154, 1166–67 (9th

Cir. 2017) (“[W]hen an employer acts in a way that effectively condones or ratifies a rape

or sexual assault and its effects, a jury may reasonably infer that the employer itself is

discriminating because of sex.” (internal quotation marks omitted)).

Thus, in light of Jackson, we can only conclude that Ms. Doe’s complaint

adequately alleges that her harassment by other students was on the basis of sex.

C. Severe, Pervasive, and Objectively Offensive

In Davis the Supreme Court declared that to be actionable under Title IX, the sex-

based harassment by fellow students must be “so severe, pervasive, and objectively

offensive, and . . . [must] so undermine[] and detract[] from the victims’ educational

experience, that the victim-students are effectively denied equal access to an institution’s

resources and opportunities.” 526 U.S. at 651. A reviewing court may consider “a

constellation of surrounding circumstances, expectations, and relationships including, but

not limited to, the ages of the harasser and the victim and the number of individuals

involved[.]” Id. (citation and internal quotation marks omitted).

Ms. Doe’s complaint alleges that she was subjected to harassment by her peers

more or less continuously from the time she reported Student 1 until she stopped

attending regularly scheduled classes more than a year later. She says that she was called

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a “dirty slut,” Aplt. App. at 23; blackmailed with nude photographs; told that “[c]onsent

is a myth,” id. at 26, and that she would be the first to lose her virginity; and threatened

with physical violence. She also alleges that a group of boys would start rumors about

her, make rape jokes about her assailant to her, pull on her backpack, tell her to kill

herself, and draw pictures of her killing herself.

The district court ruled that it was “not persuaded that the few specific instances

described in the complaint are adequate to show harassment that was pervasive and

severe.” Doe, 2019 WL 3425236, at *5. It said that the allegations relating to the nature

of the harassment were, for the most part, too conclusory to support a reasonable

inference that DPS was liable for misconduct. We respectfully disagree.

“A plaintiff should have—and must plead—at least some relevant information to

make the claims plausible on their face.” Bekkem v. Wilkie, 915 F.3d 1258, 1275 (10th

Cir. 2019) (brackets and internal quotation marks omitted). But the plaintiff is not

required to prove her case at the motion-to-dismiss stage. See id. at 1274 (“A complaint

raising a claim of discrimination does not need to conclusively establish a prima facie

case of discrimination.”). Further, matters of degree—such as severity and

pervasiveness—are often best left to the jury. Thus, we have observed that “the severity

and pervasiveness evaluation is particularly unsuited for summary judgment because it is

quintessentially a question of fact,” O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093,

1098 (10th Cir. 1999); and it is even less suited for dismissal on the pleadings.

These considerations are particularly potent here. Ms. Doe alleges that she was

continuously harassed for a number of months. The complaint need not provide details

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of the time, place, offender, and precise statement for every incident. Describing more

than half a dozen of the types of things said to her, apparently repeatedly, can suffice,

particularly when combined with her allegations that she reported ongoing and

continuous harassment to school personnel almost monthly from the time of the sexual

assault to the time she left the school.

Adding to the evidence that the harassment was severe and pervasive are the

allegations regarding the impact of the harassment on Ms. Doe and the evaluations of

third parties. In particular, she alleges that by the spring semester of 2017 she was going

to great lengths to structure her time at EHS to avoid contact with the students who were

harassing her (eating lunch in the counselor’s office or teachers’ classrooms, using the

back doors instead of the main entrance). And she alleges that two teachers and one

counselor were sufficiently concerned to contact school administrators for their help. Cf.

Asebedo v. Kan. State Univ., 559 F. App’x 668, 671 (10th Cir. 2014) (allegation that

employer’s own internal investigations determined that the plaintiff had been subjected to

a hostile environment supported a reasonable inference that he was, in fact, subjected to a

hostile work environment). Such reactions would be uncommon responses to minor

teasing or banter.

Further, the specifics that Ms. Doe provides (being called a dirty slut, being told to

kill herself, etc.) support an inference that the harassment was objectively offensive. In

our view, Ms. Doe has adequately alleged that her harassment was severe, pervasive, and

objectively offensive.

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 D. Denial of Educational Benefits

To state a claim for relief under Title IX, the plaintiff must allege that she was

“effectively denied equal access to an institution’s resources and opportunities.” Davis,

526 U.S. at 651. Even though the district court did not rule on this issue, DPS argues that

the court’s judgment can be affirmed on the alternative ground that Ms. Doe’s complaint

fails to adequately allege denial of such access. We disagree.

The District relies on the Seventh Circuit’s decision in Gabrielle M. v. Park Forest

Chicago Heights, Illinois School District, 315 F.3d 817, 823 (7th Cir. 2003), which

upheld the denial of relief when “there [was] no evidence that [the plaintiff] was denied

access to an education” since “she was diagnosed with some psychological problems,

[but] the record shows that her grades remained steady and her absenteeism from school

did not increase.” But that is not our case. The complaint alleges that the harassment

became so intolerable that Ms. Doe could not attend classes at the school. She worked at

home, coming to school only to perform assignments before regular classes began and

after classes had ended. We are somewhat surprised that the District so devalues

classroom instruction and experience that it argues that their denial is not a denial of

access to education. Yes, Ms. Doe maintained a 4.0 average. Apparently, she is quite

bright. Does that mean that she would have derived no benefit from the instruction

provided by her teachers? And there is certainly a body of thought that the socialization

from attending school with peers is an important, perhaps essential, advantage of the

school experience. The District’s argument on this issue is unpersuasive. See Jennings v.

Univ. of N.C., 482 F.3d 686, 699–700 (4th Cir. 2007) (en banc) (plaintiff student may

19
have been deprived of access to educational opportunities or benefits even though her

grades slightly improved); but see id. at 717–19 (Niemeyer, J., dissenting).

E. Deliberate Indifference

The above analysis establishes that Ms. Doe has adequately alleged that

harassment on the basis of sex by fellow students (including harassment that was

retaliation for her reporting the sexual assault by Student 1) was sufficiently severe and

pervasive to deprive her of educational benefits. The remaining issue on appeal is

whether the complaint adequately alleges facts establishing that the District is liable for

responding improperly to the student harassment.2

“[R]ecipients of federal funding may be liable for ‘subjecting’ their students to

discrimination where the recipient is deliberately indifferent to known acts of student-on-

student sexual harassment and the harasser is under the school’s disciplinary authority.”

Davis, 526 U.S. at 646–47 (original brackets omitted); see Feminist Majority Found. v.

Hurley, 911 F.3d 674, 695 (4th Cir. 2018) (“[W]e are satisfied that an educational

institution can be liable for acting with deliberate indifference toward known instances of

student-on-student retaliatory harassment.”). The school is deliberately indifferent if its

“response to the harassment or lack thereof is clearly unreasonable in light of the known

circumstances.” Davis, 526 U.S. at 648. This “does not mean that recipients can avoid

liability only by purging their schools of actionable peer harassment or that

administrators must engage in particular disciplinary action.” Id. Indeed, “courts should

2
We note that there is no claim that the District was retaliating against Ms. Doe for
her reports of the sexual assault or the student harassment.
20
refrain from second-guessing the disciplinary decisions made by school administrators.”

Id.; see Stiles v. Grainger Cty., Tenn., 819 F.3d 834, 849 (6th Cir. 2016) (although

continuing harassment by fellow students required plaintiff student to transfer to another

school, school was not liable because its prompt, tailored, and repeated responses to the

harassment—including interviewing the victim, other students, and teachers, and

disciplining students with verbal warnings and suspensions—established that it was not

deliberately indifferent); see also Porto v. Town of Tewksbury, 488 F.3d 67, 75 (1st Cir.

2007) (school was not deliberately indifferent since it “reasonably believed that it had

been successful in stopping” the inappropriate behavior).

The district court held that the response of EHS personnel was not clearly

unreasonable because Ms. Doe was provided counseling services; the offending students

were referred to EHS deans “on multiple occasions”; and although harassment continued

after Ms. Doe’s reports, EHS was not required to eliminate harassment. Doe, 2019 WL

3425236, at *5. Again, we respectfully disagree.

The District commendably provided counseling for Ms. Doe. But it is not enough

to try to help a student cope with the misbehavior of other students. See Hurley, 911 F.3d

at 690 (“[U]niversity administrators listening to students’ reports of harassment and

threats is an important step in seeking to rectify a sexually hostile environment. But the

mere act of listening to students is not a remedy in and of itself.”). Deliberate

indifference may be shown by a failure to act to halt the misbehavior. See Davis, 526

U.S. at 654. According to Doe’s complaint, the school’s only response in that regard was

that administrators said they would speak with the students who were harassing her in the

21
spring of 2016 when she first reported that she was being harassed and again in early

2017 after she filed her Safe2Tell report. The complaint does not say whether the

administrators followed up on their promises and, if so, what they said. Discovery may

be necessary for Ms. Doe to find out. But even without that information, her complaint

contains sufficient allegations to support an inference of deliberate indifference.

First, she alleges continual harassment despite her repeated reports to school

authorities. Thus, the authorities knew that what they had been doing (if anything) had

not sufficed. Failure of authorities to try something else can show deliberate

indifference. See Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253, 262 (6th Cir.

2000) (“Although talking to the offenders produced no results, [the school] continued to

employ this ineffective method. . . . [O]nce [the school] had knowledge that its response

was inadequate, it was required to take further reasonable action in light of the

circumstances to avoid new liability.”); Wills v. Brown Univ., 184 F.3d 20, 26 (1st Cir.

1999) (“[I]f [the educational institution] learns that its measures [to halt harassment] have

proved inadequate, it may be required to take further steps to avoid new liability.”); cf.

Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 668–71 (2nd Cir. 2012) (in Title VI

claim for discrimination in education on the basis of race, even immediate disciplinary

actions against students engaged in harassment, if known to be ineffective, can be clearly

unreasonable under the circumstances).

Second, Ms. Doe alleges that school authorities conducted no investigation. See

Davis, 526 U.S. at 654 (“[P]etitioner may be able to show both actual knowledge and

deliberate indifference on the part of the Board, which made no effort whatsoever either

22
to investigate or to put an end to the harassment.”); Murrell, 186 F.3d at 1248

(“[C]omplete refusal to investigate known claims of the nature advanced by [the victim],

if true, amounts to deliberate indifference.”). It would be a different story if the District

had referred the matter to another institution, such as the police, to investigate, as in Rost

ex rel. K.C. v. Steamboat Springs RE-2 School Disrict, 511 F.3d 1114, 1121 (10th Cir.

2008). But it did no such thing. On the contrary, according to the complaint, school

authorities even forcefully encouraged Ms. Doe and her parents not to report to the police

the rape by Student 1, who later pleaded guilty to sexual assault with force.

Third, the administrators’ refusal to take Ms. Doe’s complaints seriously is

reflected in their failure to document them. Nothing regarding the harassment was

recorded in Ms. Doe’s school file nor did Student 1’s file have any reports of

misbehavior, not even the sexual assault.

Fourth, this circumstantial evidence of deliberate indifference is supported by

direct evidence alleged in the complaint: when Ms. Doe and her parents complained to

Dean Sinclair in late January or early February of 2017 that “nothing was being done to

address the bullying and harassment,” he responded that “he could not do anything about

it and that ‘being an asshole isn’t a crime.’” Aplt. App. at 25. QED.

In our view, Ms. Doe has adequately pleaded the deliberate-indifference element

of her claim. She should be given the opportunity to show that she has evidence

supporting her allegations.

23
 III. CONCLUSION

We REVERSE the district court’s order dismissing Ms. Doe’s Title IX claim

against DPS and REMAND for further proceedings.

24
19-1293, Doe v. School District Number 1, et al.

TYMKOVICH, Chief Judge, concurring.

While I agree with the majority that the district court erred in granting DPS’s

motion to dismiss for failure to state a claim, I write separately to express my

disagreement with the majority’s conclusion that defendants could be found liable under

Title IX for failing to police student-on-student retaliatory conduct. But because Doe’s

second amended complaint plausibly alleges a Title IX claim for sexual harassment under

Davis, I concur. See Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S.

629, 633 (1999).

Title IX prohibits educational institutions receiving federal funds from

discriminating on the basis of sex. 20 U.S.C. § 1681. In Franklin, the Supreme Court

concluded Title IX is enforceable through an implied private right of action for damages

if the Title IX violation is intentional. Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60,

74–75 (1992). Franklin also held that “sexual harassment” is a form of sex-based

discrimination within the meaning of Title IX. Id. at 75. Davis went further, holding that

a funding recipient could be liable under Title IX for student-on-student sexual

harassment under a “direct liability theory” where a school’s “deliberate indifference”

effectively “subjects its students to harassment.” See Davis at 630 (internal quotation

marks omitted). Although Title IX, unlike Title VII, does not include express language

prohibiting retaliation, in Jackson, the Court concluded “Title IX prohibits a funding

recipient from retaliating against a person who speaks out against sex discrimination,
because such retaliation is intentional discrimination on the basis of sex.” Jackson v.

Birmingham Bd. of Educ., 544 U.S. 167, 175–78 (2005). (internal quotation marks

omitted).

This court regularly borrows from Title VII in resolving Title IX claims. Indeed,

we have explicitly held “Title VII . . . is the most appropriate analogue when defining

Title IX’s substantive standards . . . .” Roberts v. Colo. State Bd. of Agric., 998 F.2d 824,

832 (10th Cir. 1993) (quoting Mabry v. State Bd. of Cmty. Colls. and Occupational Educ.,

813 F.2d 311, 314 (10th Cir. 1987)). And in the wake of Jackson, various courts have

applied the Title VII retaliation framework to Title IX retaliation claims. See, e.g.,

Milligan v. Bd. of Trs., 686 F.3d 378, 388 (7th Cir. 2012), Emeldi v. Univ. of Or., 698

F.3d 715, 724 (9th Cir. 2012), Papelino v. Albany Coll. of Pharm. of Union Univ., 633

F.3d 81, 91–92 (2d Cir. 2011), Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st

Cir. 2002).

Thus, while we have not addressed student-on-student retaliation in the Title IX

context, our cases dealing with co-worker retaliatory conduct in the Title VII context are

instructive. In Gunnell, we held that “an employer can only be liable for co-workers’

retaliatory harassment [under Title VII] where its supervisory or management personnel

either (1) orchestrate the harassment or (2) know about the harassment and acquiesce in it

in such a manner as to condone and encourage the co-workers’ actions.” Gunnell v. Utah

Valley State Coll., 152 F.3d 1253, 1265 (10th Cir. 1998). We emphasized that such a test

2
was appropriate because it is the employer’s intentional conduct or acquiescence, not that

of a third-party, that exposes an employer to Title VII liability for sex-based

discrimination. Id. at 1263, 1265. Title IX likewise provides a cause of action for the

“intentional conduct” of a funding recipient.

Davis begins from the premise that “a recipient of federal funds may be liable in

damages under Title IX only for its own misconduct.” Davis at 640. When the

misconduct at issue is not that of the recipient itself, but of a peer student, liability only

attaches to the recipient when a school’s “own deliberate indifference effectively caused

the discrimination.” Id. at 642–43 (internal quotation marks omitted). This “deliberate

indifference to known acts of [student] harassment—amounts to an intentional violation

of Title IX, capable of supporting a private damages action[.]” Id at 643. In Jackson, the

Court determined that Title IX’s anti-discrimination provisions encompassed an implicit

anti-retaliation component, noting that “retaliation presents an even easier case than

deliberate indifference [because i]t is easily attributable to the funding recipient and it is

always—by definition—intentional.” 544 U.S. at 183. In other words, I disagree with the

majority’s decision to bootstrap the Davis “deliberate indifference” into the realm of Title

IX retaliation through a reading of Jackson, which involved direct retaliation by the

funding recipient. See Jackson, 544 U.S. at 183.

Instead, I would borrow from the Gunnell test and ask whether school officials

acted with the intent to either orchestrate, or condone and encourage, student-on-student

3
retaliation. If they did, the retaliation at issue would be “attributable to the funding

recipient” and would expose the school to private liability under Title IX. See Jackson at

183. Doe has not alleged any such facts.

Finally, the distinction between harassment and retaliation claims is relevant

because proof of actionable harassment requires evidence that the sexual harassment was

sufficiently severe or pervasive as to interfere with a student’s access to educational

programs, Davis at 650, whereas proof of actionable retaliation would likely require

evidence the harassment was

“materially adverse” in that it would deter a reasonable student from opposing unlawful

sex discrimination. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006), see also Hiatt v. Colorado Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017)

(applying Burlington’s “material adversity” test to a Title IX retaliation claim), Feminist

Majority Found. v. Hurley, 911 F.3d 674, 695 (4th Cir. 2018) (same), Ollier v.

Sweetwater Union High Sch. Dist., 768 F.3d 843, 868–69 (9th Cir. 2014) (same), Bowers

v. Bd. of Regents of Univ. Sys. of Ga., 509 F. App’x 906, 911–12 (11th Cir. 2013) (same).

In summary, Doe has plausibly alleged DPS acted with deliberate indifference to

known acts of direct sex-based harassment by her student peers. The motivation of Doe’s

peers is not relevant to the inquiry of whether DPS’s response to the harassment was

“clearly unreasonable in light of known circumstances.” See Davis at 648.

4