Tiffany Williams v. Board of Regents

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 9, 2007
No. 04-13800
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 03-02531-CV-CAP-1

TIFFANY WILLIAMS,

Plaintiff-Appellant,

versus

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF
GEORGIA, THE UNIVERSITY OF GEORGIA,
MICHAEL F. ADAMS, and in his official capacities
as President of the University of Georgia and
President of the University of Georgia Athletic Association,
Inc., VINCENT J. DOOLEY, Individually, and in his
official capacity as Athletic Director of the University of Georgia
Athletic Association, Inc., UNIVERSITY OF GEORGIA ATHLETIC
ASSOCIATION INC., et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(February 9, 2007)
 ON PETITION FOR REHEARING

Before TJOFLAT and KRAVITCH, Circuit Judges, and JORDAN,* District Judge.

KRAVITCH, Circuit Judge:

We sua sponte grant rehearing in this case, vacating our prior opinion filed

on March 9, 2006, published at 441 F.3d 1287 (11th Cir. 2006), in its entirety and

substitute the following opinion in its place.1 While the Court reaches the same

result, we address certain claims more fully.

The primary question in this appeal is whether petitioner, a student at the

University of Georgia, alleged facts sufficient to withstand defendants’ motion to

dismiss her Title IX claim based on student-on-student sexual harassment.

Background

Here, as alleged in her complaint,2 at approximately 9:00 p.m. on January

14, 2002, Tiffany Williams (“Williams”), then a student at the University of

Georgia (“UGA”), received a telephone call from UGA basketball player Tony

*
Honorable Adalberto J. Jordan, United States District Judge for the Southern District of
Florida, sitting by designation.
1
The Court also vacates its prior order of April 28, 2006 denying the petition for
rehearing en banc.
2
Because the district court disposed of Williams’s claims on a motion to dismiss, the
facts we state are Williams’s allegations, which we must accept as true. Covad Commc’n Co. v.
BellSouth Corp., 299 F.3d 1272, 1276 n.2 (11th Cir. 2002).

2
Cole. Cole invited Williams to his room in McWhorter Hall, the main dormitory

for student-athletes on the university campus. Shortly after Williams arrived at

Cole’s room, the two engaged in consensual sex. Unbeknownst to Williams,

Brandon Williams, a UGA football player, whom Williams did not know, was

hiding in Cole’s closet. Cole and Brandon had previously agreed that Brandon

would hide in the closet while Cole had sex with Williams. When Cole went to

the bathroom and slammed the door behind him, Brandon emerged from the closet

naked, sexually assaulted Williams, and attempted to rape her.

As Brandon was sexually assaulting Williams, Cole was on the telephone

with Steven Thomas, Cole’s teammate, and Charles Grant, Brandon Williams’s

teammate. Cole told Thomas and Grant that they were “running a train” on

Williams.3 Thomas came to Cole’s room, and Cole allowed Thomas to enter the

room. With Cole’s encouragement, Thomas sexually assaulted and raped

Williams.

Williams returned to her dormitory at approximately 11:00 p.m., called

Jennifer Shaughnessy, and asked Shaughnessy to come to her room. When

Shaughnessy arrived, Williams was visibly upset and crying. Williams explained

what had happened in Cole’s room, and Shaughnessy told Williams that she had

3
“Running a train” is a slang expression for a gang rape.

3
been raped and should call the police. Williams told Shaughnessy that she did not

want to call the police because she was afraid. While Shaughnessy was with

Williams, the telephone rang. The caller identified himself as Steven Thomas, and

Williams immediately hung up. Thomas had never called Williams before that

night. Minutes later, Thomas called again. Williams said that she was afraid to

answer the telephone, therefore, Shaughnessy answered. Thomas immediately

asked, “Why did you hang up on me?” When Shaughnessy said “Hello,” Thomas

asked, “Is Tiffany there?” Shaughnessy told Thomas that he had the wrong

number, and she hung up.

Williams then called her mother, who notified UGA Police of the incident

that occurred in Cole’s room. UGA Police arrived at Williams’s room shortly

after 1:00 a.m. on January 15 and arranged for Williams to have a sexual assault

exam performed. Later that same day, Williams requested that UGA Police

process the charges against Cole, Brandon Williams, and Thomas. After filing her

complaint with UGA Police, Williams permanently withdrew from UGA.

UGA Police conducted an investigation, as part of which, the police

obtained Cole’s telephone records. The records show that Cole called Williams’s

dorm room several times in the days immediately following the incident and

Williams’s withdrawal. Within forty-eight hours of the incident, UGA’s Chief of

4
Police notified UGA’s Director of Judicial Programs of the incident and provided

her with a written explanation. On April 17, 2002, a lieutenant from UGA Police

provided the Director of Judicial Programs with additional information about the

investigation. Several of the individuals who spoke with UGA Police supported

Williams’s allegations.

The actions of Cole, Brandon Williams, and Thomas constitute sexual

harassment under the Sexual Harassment Policy of the University of Georgia. The

policy applicable in January 2002, however, provided that “[s]exual harassment

between students, neither of whom is employed by the University should be

treated as a disciplinary matter and should be reported to the Office of Student

Affairs” and not dealt with under the Sexual Harassment Policy. Cole, Brandon

Williams, and Thomas were charged with disorderly conduct under UGA’s Code

of Conduct. Additionally, their coaches suspended them from their sports teams

after an Athens-Clarke County grand jury indicted them in early April 2002.4 A

UGA judiciary panel, consisting of one staff member and two university students,

held hearings almost a year after the January 2002 incident and decided not to

4
Williams alleges that Cole and Thomas did not suffer any negative consequences as a
result of the suspension because the basketball season had already ended when they were indicted
and that Brandon Williams suffered little or no adversity as the spring football season ended a
few days after the indictment.

5
sanction Cole, Brandon Williams, or Thomas. By the time of the hearing, Cole

and Brandon Williams no longer attended UGA. Thomas left UGA in September

2003. The three also faced criminal charges, but a jury acquitted Brandon

Williams, and the prosecutor dismissed the charges against Cole and Thomas.

Williams’s complaint also alleges that defendants James Harrick, former

head coach of UGA’s men’s basketball team, Vincent Dooley, Athletic Director of

the University of Georgia Athletic Association (“UGAA”), and Michael Adams,

President of UGA and UGAA, were personally involved in recruiting and

admitting Cole even though they knew he previously had disciplinary and criminal

problems, particularly those involving harassment of women, at other colleges.

While coaching the men’s basketball team at the University of Rhode Island

(“URI”), Harrick recruited Cole to attend URI. When Cole could not gain

admission to URI, Harrick helped Cole gain admission to the Community College

of Rhode Island (“CCRI”). Cole was eventually dismissed from CCRI after

allegations that in December 1999 and February 2000 he sexually assaulted two

part-time employees of the college’s athletic department by groping the women,

putting his hands down their pants, and threatening them when they rejected his

advances. Cole pleaded no contest to criminal charges of misdemeanor trespass in

6
connection with the two sexual assaults.5

Furthermore, while attending Wabash Valley College (“WVC”) in Mount

Carmel, Illinois, Cole was dismissed from the basketball team because of

disciplinary problems, including an incident in which he whistled at and made

lewd suggestions to a female store clerk. Adams, Harrick, and Dooley knew of the

incident when they recruited and admitted Cole. By the time Cole was dismissed

from WVC, Harrick was at UGA and again recruited Cole. Because Cole did not

meet UGA’s standards for admission, Harrick requested that Adams admit Cole

through UGA’s special admissions policy. Adams is the sole decision maker

when admitting an applicant under the special admissions policy. Cole was

admitted to attend UGA on a full scholarship.

Finally, Williams alleges that UGA officials received suggestions from

student-athletes that coaches needed to inform the student-athletes about UGA’s

sexual harassment policy. Despite Adams’s and Dooley’s duties to ensure

student-athletes’ compliance with UGA’s policy, UGA and UGAA failed to ensure

that the student-athletes received adequate information concerning UGA’s sexual

5
Additionally, Adams, Harrick, and Dooley knew about several other violent incidents
involving Cole, such as Cole’s May 2001 arrest for violating a protective order that his foster
mother requested after he assaulted one of her friends and an incident in prep school when Cole
punched another player in the face during a game.

7
harassment policy applicable to student-athletes and failed to enforce the policy

against football and basketball players.

Williams brought suit against: (1) UGA, the Board of Regents of the

University System of Georgia (“Board of Regents”), and UGAA for violation of

Title IX; (2) Adams, Harrick, and Dooley as individuals and in their official

capacities as UGA and UGAA President, former head basketball coach, and

Athletic Director of UGAA for violation of 42 U.S.C. § 1983; (3) UGA and the

Board of Regents for violation of 42 U.S.C. § 1983; and (4) Cole, Brandon

Williams, and Thomas for state law torts. She also sought “injunctive relief

ordering the defendants to implement policies, and procedures to protect students

like Plaintiff from student-on-student sexual harassment prohibited by Title IX.”

UGA, UGAA, the Board of Regents, Adams, Harrick, and Dooley all filed

motions to dismiss Williams’s claims. Williams then moved to amend her

complaint, adding additional factual allegations to support her claims, providing a

more specific request for injunctive relief, and requesting declaratory relief against

UGA, UGAA, and the Board of Regents. For various reasons we discuss later, the

district court dismissed Williams’s Title IX and § 1983 claims, denied her requests

for declaratory and injunctive relief, and denied in part and granted in part

Williams’s motion to amend her complaint. The district court also declined to

8
exercise supplemental jurisdiction over Williams’s state law claims. In sum, the

district court dismissed all the claims.

Williams now appeals. After a thorough review of the record and the

benefit of oral argument, we reverse the district court’s decisions to dismiss

Williams’s Title IX claims against UGA and UGAA and to deny Williams’s

motion to amend her complaint. In all other respects, we affirm the district court.

Standard of Review

We review de novo the district court’s order granting the defendants’

motion to dismiss, McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718, 722

(11th Cir. 2002), taking the facts alleged in the complaint as true and construing

them in the light most favorable to the plaintiff. Covad Commc’n Co., 299 F.3d at

1276 n.2. “A motion to dismiss is only granted when the movant demonstrates

‘beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Harper v. Blockbuster Entm’t Corp., 139 F.3d

1385, 1387 (11th Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46

(1957)).

We generally review the denial of a motion to amend a complaint for an

abuse of discretion, Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341

F.3d 1292, 1300 (11th Cir. 2003), but we review questions of law de novo. United

9
States v. Alaboud, 347 F.3d 1293, 1296 (11th Cir. 2003).

Discussion

Williams raises four issues on appeal – whether the district court erred in:

(1) denying Williams’s motion to amend her complaint; (2) dismissing her Title IX

claims; (3) dismissing her § 1983 claims; and (4) dismissing her claim for

injunctive relief.

I. Whether the District Court Erred in Denying Williams’s Motion to Amend Her

Complaint

Williams argues that the district court erred in denying her motion to amend

her complaint to file claims for a declaratory judgment against UGA, the Board of

Regents, and UGAA. In her first amended complaint, Williams sought declaratory

judgments “that defendants [sic] application of its sexual harassment policy to

Tiffany Williams was unconstitutional as it denied her equal protection of the

laws” and “that defendants [sic] application of its sexual harassment policy to

other similarly situated female students who are sexually harassed by other

students denies equal protection of the laws.” Williams’s first amended complaint

also contained additional factual allegations. At the time Williams filed her first

amended complaint, the Board of Regents, UGA, Adams, and Dooley had filed a

motion to dismiss; only Thomas had filed an answer.

10
 Federal Rule of Civil Procedure 15(a) states that “[a] party may amend the

party’s pleading once as a matter of course at any time before a responsive

pleading is served.” Fed. R. Civ. P. 15(a). For purposes of this Rule, a motion to

dismiss is not a responsive pleading. Chilivis v. SEC, 673 F.2d 1205, 1209 (11th

Cir. 1982). If the case has more than one defendant, and not all have filed

responsive pleadings, the plaintiff may amend the complaint as a matter of course

with regard to those defendants that have yet to answer. Brewer-Giorgio v.

Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir. 2000).

Here, the clerk of the district court refused to file Williams’s first amended

complaint until Williams obtained the consent of the opposing parties or leave of

court. Williams then filed a motion seeking permission from the court to file her

first amended complaint. Apparently believing that Williams could not amend her

complaint as a matter of course, the district court analyzed her first amended

complaint under another provision of Rule 15(a). The district court permitted

Williams to amend her complaint to include additional factual allegations but

rejected as futile her claims for declaratory judgments.

The district court erred in failing to allow Williams to file her first amended

complaint as a matter of course. When Williams attempted to file her first

amended complaint, Thomas was the only defendant who had filed a responsive

11
pleading. Williams’s first amended complaint included additional claims against

UGA, the Board of Regents, and UGAA, none of whom had filed a responsive

pleading. Therefore, Williams had the right to amend her complaint as a matter of

course.6

UGAA argues that we should affirm the district court’s holding as it applies

to UGAA because the sexual harassment policy was not its policy and it lacks the

authority to change the policy should the plaintiff prevail. We also reject this

argument because it mimics the argument we just rejected. UGAA’s argument is

simply that Williams’s amended complaint is futile, but as we stated, the district

court lacked the discretion to make that determination at that time.

II. Whether the District Court Erred in Dismissing Williams’s Title IX Claims

Williams argues that the district court erred in dismissing her Title IX

claims against UGA, the Board of Regents, and UGAA. The district court

6
Rule 15(a) also provides that, except in the two circumstances in which the plaintiff may
amend as a matter of course, “a party may amend the party’s pleading only by leave of court or
by written consent of the adverse party.” Fed. R. Civ. P. 15(a). This court has held that,
consistent with Rule 15(a)’s mandate that “leave shall be freely given when justice so requires,”
district courts should generously allow amendments even when the plaintiff does not have the
right to amend the complaint. Rosen v. TRW, Inc., 979 F.2d 191, 194 (11th Cir. 1992) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)). But we have also held that “a district court may
properly deny leave to amend the complaint under Rule 15(a) when such amendment would be
futile.” Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262-63 (11th Cir. 2004) (citing Foman,
371 U.S. at 182). When the plaintiff has the right to file an amended complaint as a matter of
course, however, the plain language of Rule 15(a) shows that the court lacks the discretion to
reject the amended complaint based on its alleged futility.

12
concluded that Williams’s claims failed because she was unable to meet the

deliberate indifference requirement of the Title IX cause of action.

This case presents a factually distinct scenario from our and the Supreme

Court’s precedents. In each of those cases, the defendant did not learn about the

alleged harasser’s proclivities until the alleged harasser became a teacher or a

student at the defendant’s school. Davis v. Monroe County Bd. of Educ., 526 U.S.

629 (1999) (student); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)

(teacher); Hawkins v. Sarasota County Sch. Bd., 322 F.3d 1279 (11th Cir. 2003)

(student). Here, however, Williams has alleged that Adams, Dooley, and Harrick

knew about Cole’s past sexual misconduct when they recruited him and gained his

admission to UGA. Furthermore, UGA and UGAA knew about student-athletes’

suggestions that the athletic coaches should inform student-athletes about the

applicable sexual harassment policy. Although, a Title IX recipient cannot be held

liable for misconduct that occurred before the alleged harasser was affiliated with

the recipient, as we explain later, Adams, Dooley, and Harrick’s preexisting

knowledge of Cole’s past sexual misconduct and the student-athletes’ suggestions

are relevant when determining whether Williams alleged facts sufficient to survive

the defendants’ motion to dismiss her Title IX complaint.

Title IX states, in pertinent part: “No person . . . shall, on the basis of sex, be

13
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). Although Title IX does not expressly permit

private enforcement suits, the Supreme Court has found an implied private right of

action for individuals to enforce the mandates of Title IX. Cannon v. Univ. of

Chi., 441 U.S. 677, 717 (1979). The Court also has held that private individuals

can obtain monetary damages. Franklin v. Gwinnett County Pub. Sch., 503 U.S.

60, 76 (1992).

“‘[S]exual harassment’ is ‘discrimination’ in the school context under Title

IX” and in certain narrow circumstances, a plaintiff may be able to recover for

student-on-student harassment. Davis v. Monroe County Bd. of Educ., 526 U.S.

629, 650 (1999). A plaintiff seeking recovery for a violation of Title IX based on

student-on-student harassment must prove four elements. First, the defendant

must be a Title IX funding recipient. Floyd v. Waiters, 133 F.3d 786, 789 (11th

Cir.), vacated on other grounds, 525 U.S. 802 (1998), reinstated, 171 F.3d 1264

(11th Cir. 1999). Second, an “appropriate person” must have actual knowledge of

the discrimination or harassment the plaintiff alleges occurred. Gebser v. Lago

Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). “[A]n ‘appropriate person’ . . .

is, at a minimum, an official of the recipient entity with authority to take corrective

14
action to end the discrimination.” Id. Third, a funding recipient is liable for

student-on-student harassment only if “the funding recipient acts with deliberate

indifference to known acts of harassment in its programs or activities.” Davis, 526

U.S. at 633. In considering this element, we analyze the conduct of the funding

recipient, not the alleged harasser; we do this to ensure that we hold the funding

recipient liable only if the funding recipient’s deliberate indifference “subjected”

the plaintiff to discrimination. Id. at 640-41. Therefore, we will not hold a

funding recipient liable solely because a person affiliated with the funding

recipient discriminated against or harassed the plaintiff. Hawkins v. Sarasota

County Sch. Bd., 322 F.3d 1279, 1284 (11th Cir. 2003). Fourth, the discrimination

must be “so severe, pervasive, and objectively offensive that it effectively bars the

victim’s access to an educational opportunity or benefit.” Davis, 526 U.S. at 633.

A. Title IX Claims Against the Board of Regents

As an initial matter, we hold that the district court properly dismissed

Williams’s Title IX claim against the Board of Regents. Even if we construe

Williams’s initial complaint and first amended complaint broadly and construe all

the allegations in her favor, we cannot find any allegations that an “appropriate

person” with the Board of Regents had “actual knowledge of discrimination in the

recipient’s programs and fail[ed] adequately to respond.” Gebser, 524 U.S. at 290.

15
Williams alleged that the Board of Regents appointed Adams and ceded

substantial control over UGA to him. Adams, however, is not a member of the

Board of Regents, and Williams failed to allege that Adams has authority to take

action to change the policies of the Board of Regents. In the absence of any

allegations that an appropriate person with the Board of Regents had actual

knowledge of the acts that Williams alleges constitute discrimination, Williams’s

Title IX claim against the Board of Regents cannot survive a 12(b)(6) motion to

dismiss. United States v. $121,100 in U.S. Currency, 999 F.2d 1503, 1507 (11th

Cir. 1993) (holding that an appeals court can affirm for any reason supported by

the record, even if not relied upon by the district court).

B. Title IX Claims Against UGA and UGAA

Turning to the Title IX claims against UGA and UGAA, for the reasons that

follow, we hold that the district court erred in dismissing those claims.

1. Are UGA and UGAA Title IX Funding Recipients?

As to the first element, the parties agree that UGA is a funding recipient

properly subject to Title IX liability. Although UGAA disputes that it is a funding

recipient, we believe that Williams has presented sufficient facts at this stage to

show that we should treat UGAA as a funding recipient. Here, Williams has

alleged that UGA, a funding recipient, has ceded control over one of its programs,

16
the athletic department, to UGAA and provided extensive funding to UGAA.

Notably, the Court has not resolved whether this is sufficient to make an entity a

funding recipient subject to Title IX liability. NCAA v. Smith, 525 U.S. 459, 470-

71 (1999); see also Alston v. Va. High Sch. League, Inc., 144 F. Supp. 2d 526, 531

(W.D. Va. 1999). We are persuaded, however, by the analysis of the Western

District of Michigan, noting that if we allowed funding recipients to cede control

over their programs to indirect funding recipients but did not hold indirect funding

recipients liable for Title IX violations, we would allow funding recipients to

receive federal funds but avoid Title IX liability. Cmtys. for Equity v. Mich. High

Sch. Athletic Ass’n, 80 F. Supp. 2d 729, 733-34 (W.D. Mich. 2000). We hold that

Williams’s complaint sufficiently alleges this element, and we leave for the

discovery process and the district court to determine whether to treat UGAA like a

funding recipient.

2. Did an Appropriate Person Have Actual Knowledge of the Alleged

Harassment or Discrimination?

As to the second element, we agree with Williams that an “appropriate

person” at both UGA and UGAA had actual knowledge of the harassment.

According to Williams, Adams, the President of UGA and UGAA, and Dooley,

the Athletic Director of UGAA, had actual knowledge of the three forms of

17
discrimination or harassment that Williams allegedly faced: (1) Cole’s recruitment

and admission despite his past misconduct at several other schools; (2) the January

14, 2002 incident involving Cole, Brandon Williams, and Thomas; and (3) the

discrimination that Williams faced as a result of UGA’s failure to respond

adequately to her allegations against Cole, Brandon Williams, and Thomas.

Additionally, Williams has sufficiently alleged – and Adams and Dooley do not

dispute – that Adams and Dooley had authority to take corrective measures for

UGA and UGAA to end the alleged discrimination. Thus, we must turn to the

final two elements of a Title IX cause of action.

3. Were UGA and UGAA Deliberately Indifferent to the Alleged

Discrimination?

The Davis Court held that funding recipients are deliberately indifferent

“only where the recipient’s response to the harassment or lack thereof is clearly

unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648. As

the defendants note, the Court also stated that district courts can identify a funding

recipient’s “response as not ‘clearly unreasonable’ as a matter of law” and dispose

of the claim on a motion to dismiss. Id. at 649. Nevertheless, we believe that

Williams has alleged sufficient facts in her complaint to demonstrate that UGA

and UGAA were deliberately indifferent to the alleged discrimination and that the

18
district court erred in concluding that the response was “not ‘clearly unreasonable’

as a matter of law.”

The factual distinctiveness of this case is most relevant when determining

whether UGA and UGAA were deliberately indifferent to the alleged

discrimination. In Gebser, the Supreme Court adopted the deliberate indifference

standard for determining when a Title IX recipient would be liable for teacher-on-

student harassment, Gebser, 524 U.S. at 290-91, and in Davis, adopted the same

standard for determining liability for student-on-student harassment. Davis, 526

U.S. at 633. Prior to Gebser, the Court adopted the deliberate indifference

standard when determining a municipality’s liability “for claims under § 1983

alleging that a municipality’s actions in failing to prevent a deprivation of federal

rights was the cause of the violation.” Gebser, 524 U.S. at 291 (citing Board of

Comm’rs of Bryan County. v. Brown, 520 U.S. 397 (1997); Canton v. Harris, 489

U.S. 378 (1989)). In adopting the deliberate indifference standard in Title IX

cases that do not involve allegations of discrimination resulting from the Title IX

recipient’s official policy, the Gebser Court noted that “comparable

considerations” – namely, to impose liability only for official decisions by the

defendant not to remedy the violation and not for the independent actions of

employees – supported the use of the deliberate indifference standard in both Title

19
IX and § 1983 municipality liability cases. Id. at 290-91.

In the municipality liability context, this circuit has held that a plaintiff can

show deliberate indifference by proving that “the municipality knew of a need to .

. . supervise in a particular area and the municipality made a deliberate choice not

to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350-51 (11th Cir.

1998). This precedent guides our decision here to the extent that we deal with a

scenario that is factually distinct from Gebser, Davis, and Hawkins, but we stress

that Title IX has important requirements for establishing deliberate indifference

that cannot be scuttled simply because the plaintiff can meet the standard

applicable to municipality liability cases.

First, Title IX requires that the plaintiff prove that the deliberate

indifference occurred in response to discrimination she faced. Davis, 526 U.S. at

633. Second, as Davis requires, a Title IX recipient “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. Id. at 644-45

(citing 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

20
Dictionary 2275 (1961) (defining “subject” as “to cause to undergo or submit to:

make submit to a particular action or effect: EXPOSE”). Based on the Davis

Court’s language, we hold that a Title IX plaintiff at the motion to dismiss stage

must allege that the Title IX recipient’s deliberate indifference to the initial

discrimination subjected the plaintiff to further discrimination.

As stated earlier, Adams, Dooley, and Harrick’s decision to recruit Cole and

admit him through UGA’s special admission process was a form of discrimination

that Williams suffered. According to Williams, Adams, Dooley, and Harrick knew

at that point of the need to supervise Cole for two reasons. First, UGA and UGAA

officials had received suggestions from student-athletes that UGA and UGAA

ensure that athletic coaches inform their athletes about the sexual harassment

policy applicable to student-athletes. Second, and more importantly, Williams

alleges that Adams, Harrick, and Dooley knew about Cole’s past sexual

misconduct. Nevertheless, even with its knowledge of the need to inform its

student-athletes about the applicable sexual harassment policy and of Cole’s past

sexual misconduct, UGA and UGAA failed to adequately supervise Cole.

Williams’s allegations of UGA and UGAA’s failures are sufficient at this stage to

establish deliberate indifference under our municipality liability precedent. But to

satisfy our Title IX precedent, Williams must go further and sufficiently allege that

21
the deliberate indifference subjected her to further discrimination.

Williams meets the Title IX standard through her allegations regarding the

January 14 incident. UGA and UGAA’s failure to inform its student-athletes

about the applicable sexual harassment policy and failure to supervise its student-

athletes subjected Williams to this further harassment and caused Williams to be

the victim of a conspiracy between Cole, Brandon Williams, and Thomas to

sexually assault and rape her. By placing Cole in a student dormitory and failing

to supervise him in any way or to inform him of their expectations of him under

the applicable sexual harassment policy, UGA and UGAA substantially increased

the risk faced by female students at UGA.

Furthermore, viewing the evidence in the light most favorable to Williams,

UGA acted with deliberate indifference again when it responded to the January 14

incident.7 Although UGA Police seem to have performed a thorough

investigation, UGA failed to provide an adequate response. Within forty-eight

hours of the incident, UGA had a preliminary report providing details about the

incident, and by April 2002, had a full report, including information about

7
Although the complaint appears not to adequately allege that UGAA had any role in the
discrimination Williams suffered because of the lax response to the January 14 incident, we leave
for the district court to determine what role UGAA played in this form of discrimination and
what role UGAA could have played in responding to the incident more effectively.

22
interviews with suspects and witnesses, from UGA Police. Nevertheless, UGA

waited another eight months before conducting a disciplinary hearing to determine

whether to sanction the alleged assailants. By that point, two of the alleged

assailants no longer attended UGA. The fact that the disciplinary panel ultimately

decided not to sanction the alleged assailants is immaterial because it fails to

explain why UGA waited almost eleven months to take corrective action,

especially considering the fact that UGA Police’s report provided substantial

evidence corroborating Williams’s version of the January 14 incident. To the

extent that UGA argues that it waited so long because of the pending criminal

trials against the assailants, this argument also fails because: (1) the pending

criminal charges did not affect UGA’s ability to institute its own procedures; (2)

the criminal charges were an ineffectual means to prevent future attacks at UGA

while the charges were pending; and (3) the disciplinary proceedings were not

instituted for another four months after Brandon Williams’s acquittal and the

dismissal of charges against Cole and Thomas.

Once again, UGA’s deliberate indifference was followed by further

discrimination, this time in the form of effectively denying Williams an

opportunity to continue to attend UGA. Although Williams withdrew from UGA

the day after the January 14 incident, we do not believe that at this stage her

23
withdrawal should foreclose her argument that UGA continued to subject her to

discrimination. In light of the harrowing ordeal that Williams faced on January

14, her decision to withdraw from UGA was reasonable and expected. Viewing

the evidence in the light most favorable to Williams, UGA failed to take any

precautions that would prevent future attacks from Cole, Thomas, Brandon

Williams, or like-minded hooligans should Williams have decided to return to

UGA, either by, for example, removing from student housing or suspending the

alleged assailants, or implementing a more protective sexual harassment policy to

deal with future incidents.8 Considering what had already occurred, UGA’s failure

was inexplicable and discriminatory.

Even though “[a] university might not . . . be expected to exercise the same

degree of control over its students that a grade school would enjoy,” Davis, 526

U.S. at 649, UGA and UGAA exercised almost no control over Cole, even though

they knew about his past sexual misconduct. Moreover, UGA and UGAA failed

to inform student-athletes about the applicable sexual harassment policy. Placed

together, Williams’s allegations that she faced several forms of harassment and

that UGA and UGAA repeatedly responded with deliberate indifference are

8
Our holding does not affect the Supreme Court’s precedent that “the failure to
promulgate a grievance procedure does not itself constitute ‘discrimination’ under Title IX.”
Gebser, 524 U.S. at 292.

24
sufficient to meet Williams’s burden on a motion to dismiss.

4a. Was the Discrimination Severe, Pervasive, and Objectively Offensive?

As for the first part of the final element, we conclude that the discrimination

was “severe, pervasive, and objectively offensive.” Id. at 633. “Whether gender-

oriented conduct rises to the level of actionable ‘harassment’ thus ‘depends on a

constellation of surrounding circumstances, expectation, and relationships,’

including, but not limited to, the ages of the harasser and the victim and the

number of individuals involved.” Id. at 651 (citations omitted). “[T]o have a

‘systemic effect’ of denying the victim equal access to an educational program or

activity . . . gender discrimination must be more widespread than a single instance

of one-on-one peer harassment . . . .” Hawkins, 322 F.3d at 1289 (citing Davis,

526 U.S. at 652-53).

According to Williams’s allegations, a conspiracy between at least two of

the alleged perpetrators began before she entered Cole’s room because Brandon

Williams was already in Cole’s closet, with Cole’s permission and without her

knowledge, when she entered the room. Viewing the allegations in the light most

favorable to Williams, Cole and Brandon agreed before Williams arrived that

Brandon would emerge from the closet and attempt to have sex with Williams

once she and Cole finished having sex. Then, during Brandon’s sexual assault of

25
Williams, Cole called Thomas and Charles Grant and invited them to continue

“running a train” on Williams. Even though Williams successfully fended off

Brandon’s attempted rape, the situation worsened further when Thomas arrived

and raped her. Moreover, Thomas later telephoned her twice.

The January 14 events differ markedly from the rarely actionable,

theoretical single incident mentioned in Davis and Hawkins. The incident

involved a ringleader who lured the victim to his territory and then conspired with

two friends to commit two separate acts of sexual assault and so constitutes a

continuous series of events. Although occurring in one room over two hours, the

acts are sufficient to meet the requirements of severity and objective

offensiveness. Based upon these facts, together with the discrimination that

occurred before and after the incident, we conclude that Williams has alleged

sufficient facts at this stage to show that the discrimination was pervasive.

4b. Did the Alleged Discrimination Effectively Bar Williams’s Access to an

Educational Opportunity or Benefit?

This leaves us to resolve whether the discrimination “effectively bar[red]

the victim’s access to an educational opportunity or benefit.” Davis, 526 U.S. at

633. As we noted, this case involves a cycle of discrimination and deliberate

indifference that lasted for more than one year, ultimately resulting in Williams’s

26
withdrawal from and decision not to return to UGA. Williams alleges that she

may return to the university if UGA implements more effective procedures to deal

with student-on-student harassment. Although UGA and UGAA neither formally

forced Williams to leave nor banned her from returning, the discrimination in

which they engaged or they allowed to occur on campus caused Williams to

withdraw and not return. When Williams was faced with decisions to leave or to

return to UGA, she knew the following: (1) UGA and UGAA recruited and

admitted a student-athlete despite knowledge of his past sexual misconduct; (2)

UGA and UGAA failed to supervise dangerous students or properly instruct

student-athletes on the applicable sexual harassment policy; (3) she was sexually

assaulted and raped by three student-athletes, including one whose past sexual

misconduct was known to UGA and UGAA officials; and (4) the response to her

complaints did nothing to assuage her concerns of a future attack should she return

to UGA. Considering these circumstances, we conclude that Williams has alleged

sufficient facts at this stage to show that the alleged discrimination “effectively

bar[red] [her] access to an educational opportunity or benefit,” namely pursuing an

education at UGA.

It is important to emphasize the extent and limits of our analysis. A court’s

holding can reach no further than the facts of the case before it. See Watts v.

27
BellSouth Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir. 2003) (“[J]udicial

decisions cannot make law beyond the facts of the cases in which those decisions

are announced.”); United States v. Aguillard, 217 F.3e 1319, 1321 (11th Cir.

2000) (per curiam) (“The holdings of a prior decision can reach only as far as the

facts and circumstances presented to the Court in the case which produced that

decision.” (citation and internal marks omitted).

The facts alleged in this case are extreme. According to the amended

complaint, which we take as true for present purposes, UGA and UGAA officials

actively recruited and admitted Cole despite his past serious sexual misconduct.

Once Cole was a student-athlete at UGA and placed in a dormitory, the

defendants’ did not supervise or even counsel him against sexual harassment or

other sexual misconduct. Even after the rape and assault, which Cole orchestrated,

the defendants failed for months to remove Cole and the other attackers from the

university. It is likely that this failure prevented Williams from returning to the

university to continue her education.

We hold that these extreme facts are sufficient to state a claim under Title

IX. We do not decide, nor could we decide, whether a valid Title IX claim would

have been stated if the facts alleged had been less severe.

III. Whether the District Court Erred in Dismissing Williams’s § 1983 Claims

28
 Next we consider Williams’s § 1983 claims against Adams, Harrick, and

Dooley, as individuals and in their official capacities, and against the Board of

Regents and UGA. The district court dismissed the claims against Adams,

Harrick, and Dooley as individuals based on Williams’s failure to state a claim and

the defendants’ qualified immunity. The district court dismissed all other claims

based on Eleventh Amendment immunity.

Title 42 U.S.C. § 1983 provides every person with the right to sue those

acting under color of state law for violations of federal constitutional and statutory

provisions. 42 U.S.C. § 1983. Section 1983 is merely a vehicle by which to bring

these suits; it does not create any substantive federal rights. Whiting v. Traylor, 85

F.3d 581, 583 (11th Cir. 1996). Therefore, the plaintiff must point to a specific

federal right that the defendant violated. Id.

Here, Williams asserts that Adams, Harrick, and Dooley, while acting under

color of state law – a finding that the defendants do not dispute – deprived her of

her federal rights: (1) under Title IX by failing to implement policies and

procedures to ensure compliance with the statute and (2) under the Equal

Protection Clause for discrimination based on sex. Williams also asserts a § 1983

claim against the three defendants because they exhibited deliberate indifference

by recruiting and admitting Cole despite his troubled past. Williams fails to

29
explain what statutory or constitutional right the defendants violated through their

deliberate indifference, so we consider those allegations as relevant to both the

Title IX and equal protection claims. Additionally, Williams asserts that UGA and

the Board of Regents violated the Equal Protection Clause by implementing a

sexual harassment policy that treats student-on-student harassment differently

from harassment involving other members of the university community.

A. Section 1983 Claims Against Adams, Harrick, and Dooley for Violating

Title IX

The district court dismissed Williams’s first § 1983 claim against Adams,

Harrick, and Dooley as individuals because a plaintiff cannot assert a § 1983

action based on a violation of Title IX. We agree. Title IX does not allow claims

against individual school officials; only funding recipients can be held liable for

Title IX violations. Hartley v. Parnell, 193 F.3d 1263, 1270 (11th Cir. 1999).9

Although this court has never considered whether a plaintiff can use § 1983 to

assert a Title IX claim against an individual school official, we conclude that to

allow plaintiffs to use § 1983 in this manner would permit an end run around Title

IX’s explicit language limiting liability to funding recipients.

9
Williams cites Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1999), to support her claim,
but as the district court noted, Seamons actually stands for the contrary proposition. Id. at 1234
n.8.

30
 B. Section 1983 Claims Against Adams, Harrick, and Dooley for Violating

the Equal Protection Clause

The district court dismissed Williams’s second § 1983 claim against Adams,

Harrick, and Dooley as individuals, holding that the defendants have qualified

immunity and that Williams failed to state a claim. We need not address whether

Williams failed to state a claim because we affirm the district court’s holding on

qualified immunity grounds.

“Qualified immunity shields governmental officials executing discretionary

responsibilities from civil damages ‘insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Courson v. McMillian, 939 F.2d 1479, 1486 (11th Cir.

1991) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). If a defendant

asserts a qualified immunity defense in a Rule 12(b)(6) motion to dismiss, the

court should grant qualified immunity if the plaintiff’s complaint fails to allege a

violation of a clearly established constitutional or statutory right. Williams v. Ala.

State Univ., 102 F.3d 1179, 1182 (11th Cir. 1997) (per curiam).

To establish a defense of qualified immunity, the defendant must show that

he acted within the scope of discretionary authority when performing the

challenged conduct. Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988). If the

31
defendant meets this burden, the burden shifts to the plaintiff to establish that the

defendant’s conduct violated clearly established law. Id. at 1564. The parties

agree that the defendants met their burden; therefore, we turn to the dispositive

inquiry.

Under the second step, the plaintiff must establish that the state of the law

when the challenged events occurred was such that the defendant had fair warning

that his alleged treatment of the plaintiff was unconstitutional. Willingham v.

Loughnan, 321 F.3d 1299, 1301 (11th Cir. 2003). The plaintiff does not have to

show that the precise conduct in question has been held unlawful. Id.

Nevertheless, for a federal right to be clearly established, its parameters “must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

The Equal Protection Clause confers a federal constitutional right to be free

from sex discrimination. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273

(1979). Here, Williams has alleged a harrowing incident, similar to other

allegations that unfortunately have become increasingly common on today’s

university campuses.10 Williams presents a compelling case that Adams, Harrick,

10
See, e.g., Diane Carman, Finally, A Debacle CU’s Barnett Can’t Survive, Denver Post,
Dec. 8, 2005, at B05; Six UTC Players Charged with Rape, Mobile Register, Nov. 9, 2005, at
C7; Simone Weichselbaum, Athletes: Campus Life Raunchy, Raucous Partygoers, Others at La

32
and Dooley knew about the criminal and disciplinary problems that plagued Cole’s

past, but that they considered his basketball skills a greater benefit than his

questionable mores were a burden. Furthermore, Williams has presented evidence

to show that the defendants’ action, coupled with others’ actions, may amount to

discrimination actionable under Title IX. At a minimum, Adams, Harrick, and

Dooley acted recklessly, and their apparent “win at all costs” attitude resulted in

enormous costs and fewer wins than expected. Nevertheless, Williams has failed

to present any cases that show the three defendants violated her clearly established

equal protection rights by recruiting and admitting an individual like Cole.

Therefore, Williams cannot meet her burden under the second step of the qualified

immunity analysis, and we hold that Adams, Harrick, and Dooley are entitled to

qualified immunity.

Williams also brings § 1983 claims against Adams, Harrick, and Dooley, in

their official capacities. The district court dismissed these claims based on

Eleventh Amendment immunity. Without addressing the district court’s

reasoning, we hold instead that the claims were properly dismissed for the same

reasons we dismissed the claims against those defendants in their individual

capacities. $121,100 in U.S. Currency, 999 F.2d at 1507 (holding that an appeals

Salle Talk of Alleged Sexual Assaults, Phila. Daily News, July 1, 2004, at 10.

33
court can affirm for any reason supported by the record, even if not relied upon by

the district court).

C. Section 1983 Claims Against UGA and the Board of Regents

As for the § 1983 claims against UGA and the Board of Regents, we hold

that the Eleventh Amendment bars suit against those defendants. Under most

circumstances, the Eleventh Amendment bars suits against states and state entities

by their citizens. Hans v. Louisiana, 134 U.S. 1, 20-21 (1890). Williams does not

dispute that UGA and the Board of Regents are state entities for Eleventh

Amendment purposes. But even in those situations in which the Eleventh

Amendment bars suits, a party may sue the state if the state has waived its

immunity or if Congress has validly abrogated the state’s immunity. Coll. Sav.

Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999)

(abrogation); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40 (1985)

(waiver).

Williams correctly notes that Congress validly abrogated the states’

immunity from Title IX suits. Gebser, 524 U.S. at 284. This is why the Eleventh

Amendment did not bar the direct Title IX action against UGA, UGAA, and the

Board of Regents. Here, however, Williams is trying to use § 1983 to bring a Title

IX claim. Congress has not abrogated states’ immunity from § 1983 suits. Miller

34
v. King, 384 F.3d 1248, 1259-60 (11th Cir. 2004). Nor has UGA or the Board of

Regents waived its Eleventh Amendment immunity. Therefore, the Eleventh

Amendment bars Williams’s § 1983 claims against UGA and the Board of

Regents.11

IV. Whether the District Court Erred in Dismissing Williams’s Claim for

Injunctive Relief

Finally, Williams asserts that the district court erred in dismissing her claim

for injunctive relief that she requested in her initial complaint and expanded upon

in her first amended complaint. In her initial complaint, Williams sought an

injunction “ordering the defendants to implement policies, and procedures to

protect students like Plaintiff from student-on-student sexual harassment

prohibited by Title IX.” Although not entirely clear, this request for injunctive

relief likely applies to UGA, the Board of Regents, Adams, Dooley, and UGAA.

In her first amended complaint, Williams sought an injunction ordering UGA and

the Board of Regents to implement sexual harassment policies providing for:

(1) notice to students, parents of elementary and
secondary students, and employees of the procedure,

11
Although Williams’s complaint does not set forth a § 1983 claim against UGAA,
Williams asserts that we “must read the allegations of the complaint to include any theory on
which the plaintiff may recover.” Linder v. Portocarrero, 963 F.2d 332, 336 (11th Cir. 1992)
(citation omitted). Even if we were to accede to Williams’s request, we would hold that the
Eleventh Amendment bars a § 1983 claim against UGAA.

35
 including where the complaints may be filed; (2)
application of the procedure to complaints alleging
harassment carried out by employees, other students, or
third parties; (3) adequate, reliable, and impartial
investigation of complaints, including the opportunity to
present witnesses and other evidence; (4) designated and
reasonably prompt timeframes for the major stages of the
complaint process; (5) notice to the parties of the
outcome of the complaint; and (6) an assurance that the
school will take steps to prevent recurrence of any
harassment and to correct its discriminatory effects on
the complainant and others, if appropriate – – as required
by and in accordance with 62 Fed. Reg. 12044.

The district court rejected Williams’s claims because she lacked standing.

As an irreducible minimum, Article III requires a plaintiff to meet three

standing requirements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992); Kelly v. Harris, 331 F.3d 817, 819-20 (11th Cir. 2003). First, the plaintiff

must show that she has suffered an injury-in-fact. Lujan, 504 U.S. at 560. The

plaintiff must show that the alleged injury arises from the invasion of a legally

protected interest that is sufficiently concrete and particularized, and not abstract

and indefinite. Id. Second, the plaintiff must establish a causal connection

between the asserted injury-in-fact and the challenged action of the defendant. Id.

Third, the plaintiff must show that it is likely, rather than speculative, that a

favorable decision will redress her injury. Id. at 561. Additionally, “[b]ecause

injunctions regulate future conduct, a party has standing to seek injunctive relief

36
only if the party alleges, and ultimately proves, a real and immediate – as opposed

to a merely conjectural or hypothetical – threat of future injury.” Wooden v. Bd. of

Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001) (citation

omitted).

We agree with the district court’s reasoning and hold that Williams lacked

standing to pursue injunctive relief because the threat of future harm to Williams

and other students is merely conjectural.12 First, the alleged assailants no longer

attend UGA. Therefore, as for harm that may come from them, granting injunctive

relief would not prevent future harm to Williams or other students or remedy the

past harm Williams suffered.

Second, Williams no longer attends UGA. Williams alleges that if UGA

adopts an equal and more protective sexual harassment policy – presumably the

one she asks this court to order – she may pursue undergraduate or graduate

studies at UGA. Furthermore, she alleges that in the absence of such a policy, the

current students at UGA who are the victims of student-on-student harassment

suffer from prohibited inequality. Williams’s claim that an equal and more

12
To the extent that Williams’s claim for injunctive relief is part of her first amended
complaint, we hold that the district court properly dismissed the claim even though Williams
could amend her complaint as a matter of course. The district court’s decision was on a
threshold matter solely for a court to decide as a matter of law; therefore, it was different from
the district court’s decision to deny the motion to amend because the claims for declaratory relief
were futile.

37
protective sexual harassment policy would prevent future harm is too conjectural

to warrant injunctive relief. Consequently, we affirm the district court’s decision

that Williams lacks standing to obtain the injunctive relief she seeks.

V. State Law Claims Against Cole, Brandon Williams, and Thomas

The district court also dismissed Williams’s state law claims against Cole,

Brandon Williams, and Thomas, holding that because it dismissed the federal

claims against the other defendants, it would exercise its discretion pursuant to 28

U.S.C. § 1367 not to assume supplemental jurisdiction over the state law claims.

In her notice of appeal, Williams stated that she was appealing “the order granting

the defendants’ motion to dismiss and the final judgment.” Additionally, she

included Cole, Brandon Williams, and Thomas on the certificate of interested

persons in her appellate brief, and she included Thomas’s attorney on the

certificates of service attached to the notice of appeal and the appellate briefs.

These facts show that Williams probably intended to appeal the district court’s

ruling on the state law claims. Williams, however, failed to raise any arguments in

her initial or reply brief addressing the district court’s ruling on this issue.

Therefore, even though we remand some federal claims, we will not remand to the

district court to consider whether it should exercise supplemental jurisdiction over

the state law claims because we conclude that Williams waived that argument by

38
failing to raise it properly on appeal. Greenbriar, Ltd. v. City of Alabaster, 881

F.2d 1570, 1573 n.6 (11th Cir. 1989).

Conclusion

In conclusion, we REVERSE the district court’s dismissal of Williams’s

Title IX claims against UGA and UGAA and denial of permission to amend her

complaint and REMAND to the district court for further proceedings consistent

with this decision. We AFFIRM the district court on all other rulings.

39
JORDAN, District Judge, specially concurring:

I concur in the judgment as to the Title IX claims against the UGA and the

UGAA, and concur in the panel’s opinion in all other respects. I write separately to

explain why I believe Ms. Williams’ Title IX claims against the UGA and the UGAA

survive a motion to dismiss.

In the typical Title IX case, deliberate indifference is shown by evidence that

the funding recipient, having been placed on actual notice of an act or acts of

discrimination or harassment, subsequently does nothing (or virtually nothing) to stop

or prevent the offending conduct. Causation is shown by evidence that, as a result of

the funding recipient’s deliberate indifference, the plaintiff was subjected to further

acts of discrimination or harassment. See Davis v. Monroe County Bd. of Educ., 526

U.S. 629, 633, 640-41, 650 (1999); Gebser v. Lago Vista Indep. School Dist., 524

U.S. 274, 290 (1998). In my view, Ms. Williams’ case is not the typical Title IX case.

Gebser and Davis each involved what I would call alleged “after-the-fact”

deliberate indifference. The funding recipients in Gebser and Davis had no

knowledge prior to the first acts of discrimination or harassment by, respectively, the

teacher and the student. There was no allegation in Gebser that the school district

hired the offending teacher knowing that he had sexually harassed or abused students

in the past. Likewise, there was no allegation in Davis that the school district knew,

40
prior to admitting the offending student, or placing him in a classroom with the

plaintiff, that the student had a proclivity for sexual harassment. In both cases,

therefore, it made sense to require the plaintiff to show that, after receiving actual

notice of the discrimination or harassment, the funding recipient did nothing (or close

to nothing) to correct the problem, and that this failure led to further discrimination

or harassment against the plaintiff. Otherwise, a funding recipient would essentially

be facing respondeat superior liability (or maybe even strict liability) for acts of

discrimination or harassment committed by others without the recipient’s prior or

contemporaneous knowledge.

A rule established in a prior case should not be “woodenly applied” in a later

case “without any regard to . . significant differences” in the two cases. See Codispoti

v. Pennsylvania, 418 U.S. 506, 535(1974 (Rehnquist, J., dissenting). This case is

different, and significantly different, than the typical Gebser/Davis paradigm in

which the funding recipient is oblivious to the threat of discrimination or harassment

until some misconduct is committed. Ms. Williams has alleged that the UGA and the

UGAA knew, before recruiting and admitting Mr. Cole, (1) that he had sexually

attacked two female school employees at his community college’s athletic department

by groping them and putting his hands down their pants, and (2) that he had made

lewd suggestions to a store clerk while attending another college. Ms. Williams has

41
also alleged that the UGA and the UGAA, with knowledge of these facts,

nevertheless admitted Mr. Cole, with a full scholarship, under a special admissions

program, because it was believed that he could help the basketball program. Reading

the complaint in the light most favorable to Ms. Williams, the UGA and the UGAA

allegedly did nothing to monitor or counsel Mr. Cole after his admission. In short,

Ms. Williams has claimed that the deliberate indifference in this case preceded, and

proximately caused, her sexual assault and rape. In other words, Ms. Williams has

alleged “before-the-fact” deliberate indifference.

I see no reason why a funding recipient should avoid Title IX liability if, with

prior knowledge of a prospective student’s or teacher’s documented prior acts of

serious sexual misconduct, it admits the student or hires the teacher and then fails to

conduct any monitoring or counseling, thereby placing other students in serious

danger. In such a scenario, there should not and need not be any requirement that the

victim be subjected to a second act of discrimination or harassment before there can

be Title IX liability.

Assume that a university, desperate to upgrade its losing women’s volleyball

team, decides to hire as its new coach a man who had publicly been forced to leave

his two most recent college coaching positions because of allegations that he had

sexually harassed some of his female student-athletes. The university checks into the

42
coach’s past – i.e., it does due diligence – and determines that the allegations against

the coach were well-founded, despite his vehement denials. The university confirms,

for example, that two years earlier the coach had put his hands down the shorts of two

of his female players, and that this incident led to the coach’s firing. Yet because of

pressure from boosters, including one alumnus who says that he will withhold a

substantial donation until the women’s volleyball team starts winning, the university

hires the coach, who has won numerous championships and has a history of turning

losing programs around. The university does nothing to monitor the coach’s conduct,

however, and fails to provide him with any counseling. Less than a year after being

hired by the university, the coach sexually assaults one of his players. In such a case,

the university’s calculated decision to hire the coach after looking into and verifying

his checkered past, combined with its subsequent failure to conduct any monitoring

or provide any counseling, would be deliberately indifferent under Title IX. See

generally Farmer v. Brennan, 511 U.S. 825, 837 (1994) (explaining, in Eighth

Amendment context, that deliberate indifference exists when an official knows of,

and disregards, an excessive risk of harm: “the official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists,

and he must also draw that inference”).

Insofar as they concern the funding recipient’s knowledge and behavior, Ms.

43
Williams’ allegations are not too far removed from the hypothetical described above.

Ms. Williams should have the opportunity to prove her allegations against the UGA

and the UGAA through discovery, and if the evidence is sufficient to survive

summary judgment, to present them to a jury.

Allowing Ms. Williams’ Title IX claims against the UGA and the UGAA to

defeat a Rule 12(b)(6) motion, moreover, would not lead to implicit adoption of a

watered-down liability standard. For example, if it turns out that the UGA and the

UGAA did not know about Mr. Cole’s past sexual misconduct, there will be no Title

IX liability, as actual notice will be lacking, and there can not be deliberate

indifference without knowledge. Similarly, if it turns out that the UGA and the

UGAA learned about the allegations against Mr. Cole, but investigated and found

them unsubstantiated, or found them substantiated but monitored and/or counseled

Mr. Cole in an attempt to prevent any similar conduct, there will be no Title IX

liability, for the UGA and the UGAA will not have acted with deliberate indifference

under Eleventh Circuit precedent. See, e.g., Sauls v. Pierce County School Dist., 399

F.3d 1279, 1285-87 (11th Cir. 2005); Davis v. DeKalb County School Dist., 233 F.3d

1367, 1372-75 (11th Cir. 2000).

44