Jennings v. University of North Carolina

Related Cases

MICHAEL, Circuit Judge,

dissenting:

Melissa Jennings’s account must be taken as true: when she was seventeen and a member of the women’s soccer team at the University of North Carolina at Chapel Hill (UNC or University), her forty-five-year-old male coach, Anson Dorrance, persistently and openly discussed and pried into the sex lives of his players, using what he learned to degrade and humiliate them. The University, according to Jennings’s evidence, knew about Dorrance’s conduct and failed to take prompt action to stop it. These facts, as amplified in the summary judgment record, entitle Jennings to a trial on her Title IX hostile environment claim against UNC and her § 1983 claim against Dorrance and Susan Ehringhaus, an official at UNC. See Title IX of the Educational Amendments of 1972, 20 U.S.C. §§ 1681-1688; 42 U.S.C. § 1983. The majority affirms the district court’s grant of summary judgment to the defendants on the ground that Dorrance’s conduct was not sufficiently severe or pervasive to create an environment hostile to women. But a thorough examination of the facts, viewed in the light most favorable to Jennings, reveals that the majority has failed to appreciate the force of her case. Because Jennings has proffered facts showing that the soccer team environment was persistently degrading and humiliating to her and to other young women, she is entitled to a trial. I therefore respectfully dissent.

I.

A.

Jennings was a goalkeeper for the UNC women’s soccer team from the beginning of her freshman year, August 1996, until she was cut from the team at the end of her sophomore year, May 1998. As a recruited walk-on, she had been personally recruited by head coach Dorrance but had not been recommended for a scholarship. By all accounts, UNC has long had the best women’s soccer program in the country. Dorrance is the most successful women’s soccer coach in college history, having won eighteen of the twenty-three national championship games held through 2003. He has also coached the U.S. Women’s National Team. According to Jennings, many girls would “cut off their right arm to be at [UNC]” and play for Dorrance. J.A. 1227.

Jennings reports that Dorrance made sexual comments and inquiries “on a regular basis” while she was a member of the team, from the fall of 1996 through the spring of 1998. J.A. 1585. According to Debbie Keller, Jennings’s teammate, Dorrance would make inappropriate sexual comments to players “anytime the team was together,” whether “on a plane, in a car, or on a bus, in a hotel, at practice, out of town, at events.” J.A. 1066. Amy Steelman, another teammate, said that a “typical Monday afternoon” included Dorrance “prying into our sex lives” and sexual “exploits.” J.A. 1452.

While Jennings was a team member, most of Dorrance’s sexual talk occurred during “team time,” when the players stretched and warmed up before practice. Dorrance joined “team time” once or twice a week and frequently participated in and encouraged the players’ discussions about their sexual activities. Often using the word “fuck,” he asked lewd questions and made crude comments. Nearly every day or every other day, he inquired of one player in front of the entire team, “Who [her] fuck of the minute is, fuck of the hour is, fuck of the week [is],” whether there was a “guy [she] ha[dn’t] fucked yet,” and whether she “got the guys’ names as they came to the door or whether she just took a number.” J.A. 1236-38, *2841261-62. He asked another player if she was “going to have sex with the entire lacrosse team,” and he advised another, “[Y]ou just have to keep your knees together ... you can’t make it so easy for them.” J.A. 1127. Of another player, Dorrance inquired whether she was going to have a “shag fest” when her boyfriend visited and whether she “was going to fuck him and leave him.” J.A. 1238, 1248. To still another, he asked about the size of her boyfriend’s genitalia.

Dorrance told one player, Keller, that he would “die to be a fly on the wall” the first time that her roommate, a fellow player and born-again Christian, had sex. J.A. 1068. (Keller relayed this comment to some players, including Jennings, to indicate how stunned and appalled she was by it.) Once during a water break at practice, within earshot of Jennings, Dorrance told a trainer that he fantasized about having “an Asian threesome” with his Asian players. J.A. 1229,1271,1284-85.

During practice Dorrance regularly commented on players’ “nice legs” and “nice racks” and about their “breasts bouncing.” J.A. 393, 1229,1233, 1236. He described how their “asses [looked] in spandex” and how unbalanced or “top heavy” some players were. J.A. 1073, 1229, 1236. He regularly remarked on one player’s “dimples and ... cuteness,” J.A. 1271, called one player “fat ass,” J.A. 1276, and called another “Chuck” because he suspected that she was a lesbian (her name was Charlotte), J.A. 1228, 1281-82.

Dorrance showed overt affection for one player, Keller, in front of the entire team. He frequently brushed her forehead, hugged her, rubbed her back, whispered in her ear, and touched her stomach. According to Jennings, during one weightlifting session when the players were lightly clad, Dorrance called Keller over and walked her outside “towards the stadium, putting his arms around her.” J.A. 1432. Steelman likewise observed Dorrance paying “inordinate attention” to Keller, “putting his arm around her shoulder,” “dangling his hand in front of her chest,” and touching her hair. J.A. 1452. Keller was plainly troubled by Dorrance’s affection. Steelman observed Keller’s “body language indicating strong discomfort ... giving a grimaced look.” J.A. 1452-53. Keller herself confirmed that Dorrance’s constant touching “made [her] skin crawl” and made her “fe[el] dirty.” J.A. 1145. She did not protest, however, because she feared that Dorrance would retaliate by reducing or even eliminating her playing time.1

With his persistent comments and conduct, Dorrance created a “sexually charged environment” that made Jennings feel “uncomfortable, filthy and humiliated.” J.A. 1242, 1250, 1452. Dorrance’s comments “all tie[d] together” from girl to girl to girl, putting Jennings in constant fear that she would be his next target. J.A. 1250. As much as she tried to stay out of Dorrance’s “radar,” J.A. 1242, Jennings *285could not escape the anxiety and discomfort that she felt and observed in others. She witnessed other players become angry, disgusted, and humiliated by Dorrance’s sexual questions and remarks during warm-up or at team gatherings. A few players reacted tearfully, saying, “I can’t believe him. Why would he say that?”, or “I can’t believe he would say that. I never do that.” J.A. 1239-41, 1269-71. One player often left practice in tears. Nonetheless, many players feared complaining directly to Dorrance because, as their coach, he controlled positions, playing time, and scholarship eligibility. As Jennings explained, many players feared that “if they gave any sort of opposition ... [their] playing time [would be] gone, [their] career [would be] gone.” J.A. 1227. By this, she meant not just any soccer career, but a career with the nation’s top collegiate team.

Jennings “dodged [Dorrance’s] bullet a couple times.” J.A. 1251-52. But not every time. Dorrance twice targeted Jennings with sexual questions and innuendos. At a tournament in California in fall 1996, at the end of Jennings’s freshman season, Dorrance held one-on-one meetings with players in his hotel room to assess their season performance (conditioning, skills, contribution to team chemistry, and academic status). Dorrance told Jennings that she was in danger of losing her eligibility to play soccer if her grades did not improve. In the midst of this discussion, Dorrance asked Jennings, “Who are you fucking?” J.A. 1326, 1330. Jennings replied that it was ‘[n]one of his God damn business’ what she did off field. J.A. 1325. As Jennings described the scene, ‘I was 17 when he asked me[Who are you fucking?’ ’] in a dark hotel room, knee-to-knee, bed not made, sitting at one of those tiny tables.” J.A. 1230. She felt acutely uncomfortable.

Dorrance’s second sexual comment to Jennings came during a warm-up session in her sophomore year (1997-98). Certain players and Dorrance were inquiring about and discussing one player’s recent weekend (called a “shag fest” by Dorrance, J.A. 1248), which ended with a young man crawling out of her window. Jennings had spent that same weekend visiting her boyfriend off campus. Inevitably, as the crude discussion progressed, one player piped up (using Jennings’s nickname), “Well, what about Trim’n?” J.A. 1246. Dorrance immediately “chimed in,” saying ‘Yes, what about Trim’n?” J.A. 1248, 1252. Dorrance thereby encouraged the interrogation about personal sexual activity to “slide over” to Jennings. J.A. 1249. She felt humiliated and did not respond.

B.

In the fall of 1996, during her freshman year, Jennings notified the University about the sexually hostile environment that Dorrance had created inside the women’s soccer program. Sometime between September and November of that year, Jennings met with Susan Ehringhaus, the University’s General Counsel and Assistant to the Chancellor, to discuss her complaints about Dorrance. Jennings chose to meet with Ehringhaus because Ehringhaus was a woman and “had presented herself as being okay and [having] open doors to talk.” J.A. 1338. Jennings “gave [Ehringhaus] a [complete] run-down” of Dorrance’s sexual comments at practice. J.A. 1343. She reported that his conduct rendered the women’s soccer environment “humiliating [and] uncomfortable” for her. J.A. 1342. Ehringhaus dismissed these concerns, suggesting that Jennings simply “work it out” with Dorrance. J.A. 1341, 1343. As Jennings puts it, “[Ehringhaus] basically just gave me the sugar coating, [saying] ‘[Dorrance] is a great guy. I’ve *286known him for a long time,’ [and with that, she] shoved me out the door.” J.A. 1342.

Doi'rance cut Jennings from the team during exams at the end of her sophomore year (May 1998), citing her inadequate fitness. Over the next several days, Jennings’s parents telephoned and wrote the Chancellor’s office to complain about Dorrance’s questions and comments about players’ sexual activities. In due course, Richard Baddour, the Director of Athletics, conducted an administrative review pursuant to UNC’s sexual harassment policy. Ehringhaus, Baddour, and another University official met with Jennings, her father, and Dorrance around May 26, 1998, when the Jenningses reiterated their complaints about Dorrance’s participation in and encouragement of the players’ conversations about sex. Dorrance admitted participating in group discussions about players’ sexual activities, but claimed that his comments were only “of a jesting or teasing nature.” J.A. 1404, 1531. He later admitted in deposition that it would be “entirely inappropriate” for him as a male coach to discuss with any woman player her sexual activity unless she herself raised the topic to seek his advice and “she was doing something that was hurting her.” J.A. 838-39.

The administrative review ended with athletic director Baddour sending a letter of apology to Mr. Jennings and a brief, mild letter of reprimand to Dorrance. On June 9, 1998, Baddour wrote to Mr. Jennings apologizing for Dorrance’s “inappropriate ... involvement in [sexual] discussions” with his team members. J.A. 1531. Baddour assured Mr. Jennings that “[appropriate interventions ha[d] occurred with Coach Dorrance to address these unacceptable conversations.” Id. Dorrance indicated his own apology by counter-signing the letter. One day later, Baddour wrote to Dorrance declaring it “inappropriate for [Dorrance] to have conversations with members of [the] team (individually or in any size group) regarding their sexual activity.” J.A. 1533.

C.

In August 1998, at the start of Jennings’s third year at UNC, Jennings and Keller brought a single action against the University and several individual defendants, including Dorrance and Ehringhaus, asserting (among others) claims under Title IX and § 1983. After the lawsuit was filed, Jennings was threatened and harassed on the UNC campus. One former teammate cursed at and physically threatened her with a lacrosse stick, an incident that she reported to the UNC Public Safety Office. Every night she received harassing and threatening phone calls until the “wee hours” from anonymous university numbers. J.A. 1267. University officials warned Jennings that they could not guarantee her safety on campus and encouraged her to take comparable classes at another university, promising that her credits could be transferred to UNC. Jennings completed her third year at UNC but transferred to Northern Illinois University for her final year. Keller settled her claims and took a dismissal with prejudice. Jennings’s case proceeded to the entry of summary judgment in favor of the defendants. That judgment should be vacated to allow Jennings’s Title IX and § 1983 claims to proceed.

II.

I will first explain why Jennings is entitled to a jury trial on her Title IX claim against UNC. Title IX prohibits sex-based discrimination by educational institutions that receive federal funds. The statute provides that “[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject*287ed to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Title IX, which is patterned on Title VII of the Civil Rights Act of 1964, prohibits sexual harassment that creates a hostile educational environment. Hayut v. State Univ. of New York, 352 F.3d 733, 750 (2d Cir.2003). To establish such a claim, the plaintiff must prove that (1) she was a student at an educational institution receiving federal funds, (2) who was subjected to harassment (3) based on her sex; (4) the harassment was sufficiently severe or pervasive to create a hostile (or abusive) educational environment; and (5) there is a basis for imputing liability to the institution. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir.2002).

A.

The majority concentrates on the hostile environment element and erroneously concludes that Jennings has not proffered adequate facts to raise a triable issue as to whether Dorrance’s discussions (in team settings) about the sexual activities of the young women on his soccer team were sufficiently severe or pervasive to create a hostile environment. I recognize, of course, that the “severe or pervasive” element has an objective component: the environment must be regarded as hostile to a reasonable person in the victim’s position. See Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333 (4th Cir.2003) (en banc). In addition, Title IX, like Title VII, is not a general civility code. See ante at 269. Nevertheless, Title IX protects a student from an educational environment that is permeated with sex-based degradation, insult, ridicule, and intimidation. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Ocheltree, 335 F.3d at 333.

The majority dutifully catalogs a number of Title VII and Title IX cases analyzing whether conduct is sufficiently severe or pervasive to create an objectively hostile environment. See ante at 267-273. The conduct analyzed in these cases runs the gamut from merely unpleasant comments to physical touching and threats of rape. Compare Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 768-73 (4th Cir.1997) (affirming summary judgment in employer’s favor on ground that employer’s statements to plaintiff, including that “[wje’ve made every female in this office cry like a baby” and that she should “go home and fetch [her] husband’s slippers like a good little wife,” constituted “mere unpleasantness” not actionable under Title VII), with Anderson v. G.D.C., Inc., 281 F.3d 452, 456-59 (4th Cir.2002) (reversing summary judgment on ground that plaintiffs allegations that supervisor “barraged” her with daily comments about her breasts and buttocks, threatened to rape her, and pressed his penis against her buttocks were “unquestionably sufficient” to submit to a jury). These cases simply confirm that hostile environment analysis “is not, and cannot be [amenable to] a mathematically precise test.” Harris, 510 U.S. at 22, 114 S.Ct. 367. Rather, what differentiates mere unpleasantness from actionable (severe or pervasive) harassment depends largely on factual context, that is, the “constellation of surrounding circumstances, expectations, and relationships ... including, but not limited to, the ages of the harasser and the victim.” Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 651, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). The “severe or pervasive” inquiry thus examines the “totality of the circumstances,” including the frequency and severity of the conduct, its *288impact in terms of humiliation or threat, and its degree of interference with the victim’s educational pursuits. See Harris, 510 U.S. at 23, 114 S.Ct. 367.

B.

The facts proffered by Jennings, when viewed in the light most favorable to her, raise a genuine issue of material fact as to whether Dorrance’s conduct was sufficiently severe or pervasive to create a sexually hostile environment. The majority, in concluding otherwise, fails to heed the basic rule for reviewing a summary judgment: “The evidence of the non-movant [here, Jennings] is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, the majority attempts to brush aside what happened as mere unpleasantness and vulgarity. Jennings, according to the majority, was simply a bystander to her fellow teammates’ sexual and social banter, and Dorrance’s participation — even if it constituted harassment — was only “second-hand harassment ... [that is] less objectionable.” Ante at 272. But see Jackson v. Quanex Corp., 191 F.3d 647, 660 (6th Cir.1999) (“[Offensive comments need not be directed at a plaintiff in order to constitute conduct violating Title VII.”). The majority fails to confront the gravity of the facts advanced by Jennings. She was not a mere bystander who was unaffected by Dorrance’s comments. Rather, she was caught in a hostile environment that was demeaning to young women. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir.2001) (noting that it is important to consider evidence of general atmosphere when evaluating hostile environment claim); Walker v. Ford Motor Co., 684 F.2d 1355, 1359 n. 2 (11th Cir.1982) (“The fact that many of the epithets were not directed at [plaintiff] is not determinative. The offensive language often was used in [his] presence” and created an environment “heavily charged” with discrimination.) (internal quotation marks and citation omitted). Dorrance’s sex-based verbal abuse permeated the atmosphere and at times homed in on Jennings. See Harris, 510 U.S. at 21-22, 114 S.Ct. 367 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).

Dorrance let Jennings know at the beginning of her freshman year that she was within his sights. He singled her out in front of the entire team, labeling her as “rich” and ordering her to withdraw $400 from her bank account to pay for a team supply of Gatorade. J.A. 1301-02. She was in perpetual fear that Dorrance would inevitably direct his “filthy comments” at her, as he shifted his focus from one girl to the next to the next. J.A. 1242-43, 1250. His comments and questions “all tie[d] together,” J.A. 1250, as he pried into players’ sexual activities and exploits and made graphic remarks about their “racks” and “asses in spandex,” J.A. 1229. It was as if his comments were a soccer ball, passed from one player to the next, with Jennings the goalkeeper constantly bracing to block a shot that would surely come at her.

Jennings tried hard to “stay out of [Dorrance’s] radar” and thereby avoid his probing and indecent comments. J.A. 1242. She avoided the young women who were Dorrance’s “main targets” and refused to respond when he inquired about her weekend with her boyfriend while he (Dorrance) was discussing another player’s weekend “shag fest.” J.A. 1250. But she could not avoid this environment altogether without skipping warm-up, practice, and other team gatherings. She could not dictate which players Dorrance targeted and when. Jennings was always within Dor*289ranee’s range and reasonably feared being his next target, a fear that materialized when he asked “Who are you fucking?,” J.A. 1330, and “What about Trim’n?,” J.A. 1252.

Moreover, Dorrance’s remarks were not made any less offensive because they related to consensual sexual activities. The majority concludes that the remarks “hardly painted women in a sexually subservient, negative, or demeaning light.” Ante at 273. Comments can be sexually hostile and abusive regardless of whether they portray women as sexual prey or as sexual predators, as sexually subservient or as sexually dominant. Asking a player who her “fuck-of-the-hour” is, or whether she knows the names of her many conquests or just takes numbers, is disrespectful, degrading, and abusive — especially coming from a much older and more powerful male coach. J.A. 1223. These questions, although focused on consensual sex, nonetheless humiliated some of the women because it portrayed them as being sexually promiscuous. Indeed, on some (albeit rare) occasions, Dorrance would go so far as to call a player a “slut” in front of the team. J.A. 1251. While not always portraying women in a “sexually subservient ... light,” ante at 272, Dorrance’s remarks were no less degrading because of that. See generally Annmarie Pinarski, When Coaches “Cross the Line”: Hostile Athletic Environment Sexual Harassment, 52 Rutgers L.Rev. 911, 926-31 (2000) (surveying sociological and theoretical research). A reasonable jury could find that Dorrance’s constant comments and questions about consensual sex contributed to a hostile environment.

Jennings was not alone in finding Dorrance’s remarks offensive, although the majority contends otherwise. While some teammates were “wide open” about their personal lives and sexual activities, others were less vocal and more reserved, preferring total privacy in these areas. J.A. 1053-54. Steelman was “shocked” that Dorrance encouraged and instigated the discussions about sex; she felt “very uncomfortable with his sexually charged environment,” and she “would frequently [go] home crying as a result.” J.A. 1452. Dorrance’s comments visibly upset and angered other players as well. One, who was constantly portrayed by Dorrance as sexually promiscuous, would say through tears, “What the hell is [Dorrance] doing saying that?” and “I can’t believe he would say that. I never do that.” J.A. 1239. Still another cried because Dorrance focused on her breasts (her “rack,” as he put it), saying that she “[could]n’t believe him.” J.A. 1270.2 Evidence that other players shared Jennings’s humiliation and discomfort indicates that she was objectively reasonable in finding Dorrance’s comments offensive and humiliating. Cf. Hayut, 352 F.3d at 747 (characterizing reactions of plaintiffs peers to conduct directed at plaintiff as “significant to the mandated objective analysis” of whether conduct was sufficiently severe to be actionable under Title IX).

*290Moreover, just because some of the young women willingly and openly discussed their sexual activities among themselves does not mean they were comfortable having those discussions with Dorrance. Contrary to the majority’s suggestion, there is nothing “telling” about the fact that Jennings “does not appear to object to some of her teammates talking about their sex lives.” Ante at 272. What is telling is that she objects to Dorrance’s constant and open discussion about the players’ sex lives. Dorrance was not simply one man outnumbered by twenty-six women. He was a forty-five year-old man probing into the sexual activities of young women, some of whom, like Jennings, were as young as seventeen. As the coach, he controlled everything: team membership, scholarship eligibility, playing position, and playing time. He was in fact more than a regular college coach; he was and still is the most successful women’s soccer coach in U.S. history and a former national team coach. As such, he exercised tremendous power over his players’ soccer careers at UNO and beyond.

The players were acutely aware of Dorrance’s power and feared his punishment should they complain. Even though some players felt discomfort, humiliation, or disgust because of Dorrance’s conduct, they were afraid to object. As Jennings put it, “[H]ow do you say anything [to stop him].” J.A. 1290. “If you are submissive, you are fine,” J.A. 1227, but if you are not, “[y]our career goes — -you ... lose your playing time. You are stuck between a rock and a hard place.” J.A. 1290. According to Keller, Dorrance’s affectionate touching and questioning about sex “made [her] skin crawl” and made her “fe[el] dirty,” J.A. 1145, yet she “didn’t want to tick him off to a point ... where he would take it out on [her] by not playing [her].” J.A. 1120. Keller thus “felt the pressure” to give in to some degree and answer some of Dorrance’s vulgar questions. J.A. 1120.

The unequal power relationship between Dorrance and his players, and his ability to punish players who were not submissive, serve to make his comments about sex all the more severe and hostile. See Davis, 526 U.S. at 653, 119 S.Ct. 1661 (noting that relationship between harasser and victim necessarily affects whether conduct creates a hostile environment in violation of Title IX); Crandell v. New York Coll. of Med., 87 F.Supp.2d 304, 319 (S.D.N.Y.2000) (denying summary judgment motion in part because “unequal power relationship” between harasser and victim could support a jury finding of sexually hostile environment). The majority discounts this power differential by suggesting that the more encompassing, “more informal [or] casual” relationship between a college coach and his athletes may serve to prevent the coach’s profanity, touching, and personal questions from “cross[ing] the line separating ‘the merely vulgar and mildly offensive’ [and] ‘the deeply offensive and sexually harassing.’ ” Ante at 274, 275; see also ante at 274 (stating that “[w]e are not examining the atmosphere in a typical university classroom with a typical university instructor or even the atmosphere in a typical workplace”).

It is true that college coaches spend long hours (even time on the road and in hotels) with their athletes, become involved in matters personal to the athletes from diet to restrictions on social life, engage in “hands-on” demonstrations in practice, massage stiff or injured muscles, and celebrate by exchanging high-fives and hugs. See ante at 274. Indeed, coaches and athletes can spend over a third of their waking hours together, including one-on-one contact and hours of unstructured “downtime” that fosters familiarity and close relationships. Nancy Hogshead-Makar & *291Sheldon Elliot Steinbach, Intercollegiate Athletics’ Unique Environments for Sexual Harassment Claims: Balancing the Realities of Athletics with Preventing Potential Claims, 13 Marq. Sports L.Rev. 173, 176-77 (2003). This more informal atmosphere can, as the majority suggests, serve to normalize conduct, such as cursing or touching, that would be inappropriate in the more formal setting of the classroom or office. On the other hand, the same informal sports setting, coupled with the coach’s intensely personal yet authoritative relationship with his athletes, may enhance the potential for sexual harassment. See, e.g., id. (noting that a coach’s “special authority” over athletes and frequent one-on-one contact “amplify the potential for-harassment”).

Jennings proffers facts that, if believed, show that Dorrance took advantage of the informal atmosphere as well as his position of power to cross over from routine teasing into real sexual harassment. Dorrance developed an intensely close and controlling relationship with many of his athletes. Part of this control was knowing the intimate and even humiliating details of his players’ lives. According to Jennings, Dorrance knew about his players’ sexual relationships and “kn[ew] who does drugs ... who has the drinking problems ... who has the eating disorder. And if you don’t support him, then he holds it over your head. [He] is very manipulative.” J.A. 1223. He held himself out as a “father figure,” encouraging his players to confide in him fully. J.A. 1325. Yet in return he asked questions of the sort that fathers do not typically ask: “Who are you fucking?” or “Who is your fuck of the hour?” J.A. 1223, 1330. As Keller put it, “It’s just kind of sick [that] ... someone that you think is more of a father figure to you [is] telling you they want to watch your friend have sex.” J.A. 1069. Dorrance would gain his players’ trust only to exploit or betray it later, humiliating them one-on-one or in front of teammates.

In this sexually charged atmosphere, Dorrance’s comment to a trainer that he wanted to have an “Asian threesome” with two Asian players was particularly troubling to Jennings. It revealed that Dorrance had more on his mind than simply teasing or jesting with his players. It confirmed that he saw at least some of them as sexual objects. The comment exacerbated Jennings’s otherwise reasonable anxiety over whether and when she would be Dorrance’s next target for a degrading question or comment.

Jennings’s turn came during a fall 1996 tournament, when Dorrance met with her one-on-one in his dim hotel room, bed unmade, and asked her, ‘Who are you fucking?” As her coach, Dorrance was certainly free to inquire into Jennings’s general social life and how she managed her time, especially because he was concerned about her grades. But this question had no legitimate place in the inquiry. Its aggressive tone, combined with the setting (alone in confined quarters) and the overall circumstances (Dorrance’s pattern of sexually aggressive questioning and his power over his players) served to intensify an already hostile environment regarding matters of sex.

The majority suggests that Jennings’s forceful reply relegated Dorrance’s question to the benign “inappropriate” category. It concludes that Jennings’s response, “None of [your] God damn business,” J.A. 1331, “undercuts the notion that [Dorrance’s] age and power (as her coach)” put the question in the sexual harassment category. Ante at 273. Jennings’s response did not equalize the power imbalance, however. Dorrance was still her older male coach, the one who controlled her team membership and playing time; Jennings *292was still his subordinate, “taken [a]back” by his intrusive question and feeling “very uncomfortable” and eager to end the inquiry. J.A. 1331. Her response indicated her indignation and discomfort. It did not neutralize Dorrance’s offense or immunize his conduct. A rational jury could find that Dorrance’s question constituted sexual harassment, particularly in light of his pattern of asking many of his players the same sort of question.

In sum, Jennings has proffered sufficient facts for a jury to find that Dorrance’s conduct was sufficiently severe or pervasive to create a sexually hostile environment. First, at least once or twice a week when the soccer team was together, Dorrance would get involved in — and encourage — discussions about his players’ sex lives. Second, Dorrance himself regularly made indecent and inappropriate comments. In front of the team he constantly asked certain players questions, such as: Who is your “fuck of the minute”? J.A. 1237. “[Are you] going to have sex with the entire lacrosse team?” J.A. 1127. Are you going to have a “shag fest” when your boyfriend visits? J.A. 1248. Are you “going to fuck him and leave him”? Id. Dorrance’s constant and vulgar prying into his players’ sexual activities made several of them uncomfortable, on occasion driving them to tears. Nonetheless, these players often felt pressured to answer his questions and endure his comments without protest, fearing that any other course would provoke some form of retaliation from him. Third, Dorrance displayed overt affection for one player and told her that he would like to be a “fly on the wall” the first time her roommate (and teammate) had sex. J.A. 1069. He told a trainer (in a conversation overheard by Jennings) that he would like to have group sex with his two Asian players. Fourth, Dorrance manipulated his players’ trust. He portrayed himself as a father figure, encouraging them to confide in him about all aspects of their lives. Yet he often misused personal information to degrade and humiliate a player in front of the entire team. Fifth, in light of this atmosphere Jennings had every reason to believe that she would become the target of Dorrance’s inappropriate attention. When Jennings did get the question, “Who are you fucking?”, it was still another piece of Dorrance’s pattern of harassment. In short, there is easily a jury question here.

C.

Jennings either presents facts sufficient to establish or to raise a jury question on the other elements or sub-elements of her Title IX claim. First, it is undisputed that she was a student at UNC, an institution receiving federal funds. Second, Jennings proffers evidence that Dorrance’s persistent subjection of the young women to talk about sexual matters (the discrimination or harassment) was based on their sex (done because they were women). Dorrance claimed to be the young women’s “father away from home,” J.A. 1329, yet exploited their trust by prying into their sex lives in team settings and using what he learned to demean them because of their sex. See Ocheltree, 335 F.3d at 331-33 (concluding that it was reasonable for jury to find that harassment was “because of sex” because conduct was “intended to provoke [plaintiffs] reaction as a woman,” that is, to make her uncomfortable and self-conscious because of her sex). Third, Jennings testifies that Dorrance’s conduct caused her severe discomfort and emotional distress that in turn caused her grades to suffer and had a negative impact on her participation in the women’s soccer program. This testimony, when combined with the evidence of her substandard grade point average, creates a triable issue of fact as to whether Dorrance’s conduct unreason*293ably interfered with her educational progress and soccer participation. See, e.g., Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 76 (2d Cir.2001) (finding that plaintiffs testimony that “it [was] almost impossible for [her] to do [her] work without getting upset” created triable issue of fact regarding unreasonable interference).

Fourth, Jennings provides a basis for imputing liability to UNC for Dorrance’s conduct. She proffers evidence that the school had actual notice of the discrimination and made an inadequate response. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). In particular, Jennings’s facts show that University officials with authority to address the discrimination and to institute corrective measures had actual knowledge of Dorrance’s misconduct and acted with deliberate indifference toward it, effectively causing the discrimination. See Baynard v. Malone, 268 F.3d 228, 237 (4th Cir.2001) (citing Gebser, 524 U.S. at 290, 118 S.Ct. 1989). A reasonable jury could conclude that Ehringhaus, the University’s highest-ranking lawyer and an official responsible for fielding sexual harassment complaints, received actual notice of Dorrance’s misconduct during her fall 1996 meeting with Jennings. Further, a jury could find that Ehringhaus acted with deliberate indifference by insisting that Dorrance was a “great guy” and then “shovfing] [Jennings] out the door.” J.A. 1342. Ehringhaus’s only response — suggesting that Jennings “work it out” with Dorrance — was patently inadequate. J.A. 1341. Jennings chose to meet with Ehringhaus precisely because she did not feel comfortable talking with Dorrance about his harassment. Indeed, the University’s sexual harassment policy encourages a student to “resolve the matter with the administrative official most directly concerned, excluding the person accused of sexual harassment.” J.A. 924 (emphasis added). Pushing Jennings back toward Dorrance thus appears “clearly unreasonable in light of the known circumstances,” which amounts to deliberate indifference. Hayut, 352 F.3d at 751 (citing Davis, 526 U.S. at 648, 119 S.Ct. 1661) (internal quotation marks and additional citation omitted). The University’s ultimate reprimand of Dorrance, which came roughly a year and one-half later, would also allow a rational jury to find deliberate indifference because the reprimand “only followfed] after a lengthy and unjustified delay.” Id. (internal quotation marks and citation omitted).

Jennings has proffered sufficient facts to meet each element of her Title IX claim against the University. This claim should therefore survive summary judgment.

III.

Jennings has triable § 1983 claims against Dorrance and Ehringhaus premised on her Fourteenth Amendment equal protection right to be free from sexual harassment in educational settings. See Hayut, 352 F.3d at 743-44. Here, as to Dorrance, Jennings must show that his harassment was “because of sex” and was sufficiently severe or pervasive to interfere unreasonably with her educational progress or activities. See, e.g., Beardsley v. Webb, 30 F.3d 524, 527-29 (4th Cir.1994); Hayut, 352 F.3d at 743-49. Jennings satisfies these requirements for the reasons mentioned in my discussion of her Title IX claim. To make out her § 1983 claim, Jennings must also show that Dorrance was acting “under color of law” at the time that he harassed his women soccer players. Holland v. Rimmer, 25 F.3d 1251, 1256 (4th Cir.1994). “ ‘State employment is generally sufficient to render the defendant a state actor,’ ” and a defendant in a § 1983 suit necessarily “acts under color of *294state law when he abuses the position given to him by the State.” West v. Atkins, 487 U.S. 42, 49-50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 n. 18, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). As a coach employed at a state university, Dorrance enjoyed great authority over his student athletes with respect to team membership, scholarship eligibility, and playing time. If he misused this authority, he necessarily acted under color of law for purposes of § 1983. See, e.g., Hayut, 352 F.3d at 744 (citing cases). For these reasons, Jennings’s 1983 claim against Dorrance for sexual harassment should survive summary judgment.

Jennings’s related § 1983 claim against Ehringhaus should likewise go forward because Jennings proffers evidence that Ehringhaus, as an administrative official with authority to take action against Dorrance, failed to act and thereby tacitly authorized Dorrance’s sexual harassment. See Baynard, 268 F.3d at 235. More specifically, Jennings’s evidence would allow a jury to find that Ehringhaus had actual knowledge of Dorrance’s misconduct; that her response was “so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices”; and that there exists “an affirmative causal link” between Ehringhaus’s inaction and Jennings’s constitutional injury. Id. (citing Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.1994)). Ehringhaus is therefore not entitled to summary judgment on Jennings’s § 1983 claim against her for supervisory liability.

Dorrance and Ehringhaus argue that they are entitled to qualified immunity on the § 1983 claim. Because the district court did not address this issue in its summary judgment ruling, I would decline to consider it on appeal and would instead allow the district court to decide it in the first instance on remand. See Brown v. United States, 851 F.2d 615, 620 (3d Cir.1988) (“[Ajlthough it is within our power to do so, it would be inappropriate for us to decide this [qualified immunity] question on appeal, even if the record provided a sufficient basis for its resolution,” because the district court had not yet addressed or ruled upon it.).

IV.

Jennings’s case opposing summary judgment is made much easier because Dorrance does not deny all wrongdoing. Dorrance and the University admit that he participated in group discussions with women’s soccer team members about their sexual activities. While Dorrance claims that he was only teasing or jesting, both he and the University admit that his actions were “altogether inappropriate” and “unacceptable.” J.A. 1531. Dorrance and the University apologized to Jennings, and the University warned Dorrance that it was “inappropriate for [him] to have conversations with members of [his] team (individually or in any size group) regarding their sexual activity.” J.A. 1533. To these damning admissions, Jennings adds evidence that Dorrance frequently participated in discussions with his team about sex, that his comments and questions were graphic, indecent, and probing, and that she and several of her teammates felt humiliated and degraded. The University knew what Dorrance was doing and failed to take prompt action to stop it. Jennings has therefore proffered sufficient facts to demonstrate that there is a genuine need for a trial on her Title IX case against the University and her § 1983 claim against *295Dorrance and Ehringhaus.3 I respectfully dissent for these reasons.

. The majority points out that Jennings and Keller were teammates for only one year, ante at 277, and that Steelman joined the team a year before Jennings did, id. at 277. These timing circumstances, the majority argues, render irrelevant any parts of Keller's and Steelman's testimony that recount Dorrance’s sexual harassment during the period leading up to August 1996, when Jennings joined the team. This testimony, however, is relevant proof of the (sex-based) hostile environment into which Jennings was introduced. See Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir.1993) (staling that the factfinder may consider "the lexicon of obscenity that pervaded the environment of the workplace both before and after the plaintiff’s introduction into its environs”). In any event, much of Jennings's evidence concerns harassment that occurred in her presence during her two years on the team.

. The majority argues that Jennings is simply offering "opinion testimony” when she discusses the preceding two players, identified . by the majority as A.F. and S.D., who were upset by Dorrance's comments. Ante at 277 - 278. Jennings's testimony, however, includes accounts of these players' physical reactions. One "didn’t look happy” and cried when she discussed Dorrance's repeated claims that she was promiscuous. J.A. 1241-42. The other had a "disgusted look ... an upset look on her face” when she expressed incredulity at Dorrance's remarks about the size of her breasts. J.A. 1271. Although these two players have since signed affidavits saying that Dorrance never made unwelcome or offensive comments to them, there is nevertheless a material factual issue about their reactions at the time in question.

. I agree with the majority's decision to affirm the grant of summary judgment in favor of the remaining defendants and in favor of Dorrance on Jennings’s common law claim for invasion of privacy.