Appeals from the United States District Court for the
District of Kansas (D.C. Nos. 2:16-CV-02255-JAR-GEB and
2:16-CV-02256-JAR-GEB)
Derek
T. Teeter (Allan V. Hallquist and Michael T. Raupp, with him
on the briefs), Husch Blackwell LLP, Kansas City, Missouri,
for Defendant-Appellant.
Jonathon D. Fazzola (Dustin L. Van Dyk, Gary D. White, Jr.,
and Meaghan M. Girard, Palmer, Leatherman, White, Girard
& Van Dyk, LLP, Topeka, Kansas, and Douglas E. Fierberg,
The Fierberg National Law Group, PLLC, Traverse City,
Michigan, with him on the brief), The Fierberg National Law
Group, PLLC, Traverse City, Michigan, for
Plaintiffs-Appellees.
Emily
Martin and Neena Chaudhry, National Women's Law Center,
Washington, D.C.; Sunu Chandy and Alexandra Brodsky, of
counsel; and Seanna R. Brown, Maximillian S. Shifrin and
Tiffany A. Miao, Baker & Hostetler, LLP, New York, New
York, on the brief for Amici Curiae.
Before
MATHESON, EBEL, and EID, Circuit Judges.
EBEL,
CIRCUIT JUDGE.
Congress,
through Title IX, bans discrimination on the basis of sex in
education programs receiving federal funding. Plaintiffs, two
students at Kansas State University ("KSU"), allege
that KSU, a recipient of federal educational funds, violated
Title IX by being deliberately indifferent to reports it
received of student-on-student sexual harassment which, in
this case, involved rape. Often Title IX plaintiffs allege
that a funding recipient's deliberate indifference to
prior reports of rape caused the plaintiff
subsequently to be raped or assaulted. But that is not the
claim Plaintiffs assert here. Instead, they allege that KSU
violated Title IX's ban against sex discrimination by
being deliberately indifferent after Plaintiffs
reported to KSU that other students had raped them, and that
deliberate indifference caused Plaintiffs subsequently to be
deprived of educational benefits that were available to other
students. At the procedural posture presented by these
interlocutory appeals, which address the denial of KSU's
motions to dismiss, we accept as true Plaintiffs' factual
allegations indicating that KSU was deliberately indifferent
to their rape reports. That is not being challenged in these
appeals. Accepting, then, that KSU was deliberately
indifferent, the narrow legal question presented here
involves the element of causation: what harm must
Plaintiffs allege that KSU's deliberate indifference
caused them?
KSU
contends that, in order to state a Title IX claim, Plaintiffs
must allege that the university's deliberate indifference
caused each of them to undergo further incidents of
actual harassment by other students. Plaintiffs assert,
instead, that they state a viable Title IX claim by alleging
that KSU's deliberate indifference to their reports of
rape caused them to be vulnerable to further harassment,
which in turn deprived them of the educational opportunities
that KSU offers its students.
The
Supreme Court has already answered the legal question
presented here, ruling, as Plaintiffs allege, that a funding
recipient's "deliberate indifference must, at a
minimum, cause students to undergo harassment or make
them liable or vulnerable to it." Davis ex rel.
LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629,
644-45 (1999) (alterations, internal quotation marks omitted)
(emphasis added).
We
conclude that, in this case, Plaintiffs have sufficiently
alleged that KSU's deliberate indifference made each of
them "vulnerable to" sexual harassment by allowing
their student-assailants-unchecked and without the school
investigating- to continue attending KSU along with
Plaintiffs. This, as Plaintiffs adequately allege, caused
them to withdraw from participating in the educational
opportunities offered by KSU. Having jurisdiction under 28
U.S.C. § 1292(b), therefore, we AFFIRM the district
court's decision to deny KSU's Fed.R.Civ.P. 12(b)(6)
motions to dismiss Plaintiffs' Title IX claims. Our
ruling, of course, does not address the merits of the issues
in this case which must await further factual development.
I.
OVERVIEW OF TITLE IX
We
begin with a quick overview of Title IX, 20 U.S.C.
§§ 1681-88. With exceptions not relevant here,
Title IX provides that
[n]o person in the United States shall, on the basis of sex,
be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any education program
or activity receiving Federal financial assistance . . . .
Id. § 1681(a). Congress enacted Title IX under
its spending power, "conditioning an offer of federal
funding on a promise by the recipient not to discriminate, in
what amounts essentially to a contract between the Government
and the recipient of funds." Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274, 286 (1998). In enacting
Title IX, Congress sought both "to avoid the use of
federal resources to support discriminatory practices"
and "to provide individual citizens effective protection
against those practices." Cannon v. Univ. of
Chicago, 441 U.S. 677, 704 (1979).
Title
IX is enforceable, not only by federal administrative
agencies, but also through private causes of action, like the
cases at issue here, brought by victims of prohibited sex
discrimination against the federal funding recipient. See
Jackson v. Birmingham Bd. of Educ., 544 U.S.
167, 173 (2005). A funding recipient, however, "may be
liable in damages under Title IX only for its own
misconduct." Davis, 526 U.S. at 640. "The
recipient itself must 'exclud[e] [persons] from
participation in, . . . den[y] [persons] the benefits of, or
. . . subjec[t] [persons] to discrimination under 'its
'program[s] or activit[ies]' in order to be liable
under Title IX." Id. at 640-41 (quoting 20
U.S.C. § 1681(a)) (alterations added in Davis);
see also id. at 640-43.
That
point is critical in this case because, although the sex
discrimination that Title IX prohibits can include sexual
harassment, see id. at 649-53, the sexual
harassment-rapes-alleged here were committed, not by the
recipient KSU, but by KSU students. In such a situation, the
funding recipient can only be liable for its own
deliberately indifferent response to known sexual
harassment by students against other students. See
Gebser, 524 U.S. at 291; Davis, 526 U.S. at
640-43. Critically, "a recipient's deliberate
indifference to one student's sexual harassment of
another . . . constitute[s] intentional discrimination on the
basis of sex" prohibited by Title IX. Jackson,
544 U.S. at 182 (citing Davis, 526 U.S. at 650).
Here,
Plaintiffs base their Title IX claims on KSU's deliberate
indifference after Plaintiffs reported to KSU that
other students had raped them. We accept as true the
allegation that KSU responded with deliberate indifference to
Plaintiffs' reports of rape. Plaintiffs then allege that
KSU's deliberate indifference caused them to have to
continue attending KSU with the student-rapists potentially
emboldened by the indifference expressed by KSU which, in
turn, caused Plaintiffs to withdraw from participating in
educational opportunities that KSU offers and prevented them
from using available KSU resources for fear of encountering
the unchecked student-rapists and other students who knew of
the rapes. It is in this way that Plaintiffs allege that
KSU has excluded them "from participation in,
den[ied] [them] the benefits of, or subject[ed] [them] to
discrimination under its programs or activities."
Davis, 526 U.S. at 640-41 (internal quotation marks,
alterations omitted) (quoting 20 U.S.C. § 1681(a)).
Although
Plaintiffs allege that KSU's response to their reports of
rape was so deficient as to amount to deliberate
indifference, we note that Title IX does not require a
funding recipient to acquiesce in the particular remedial
action a victim seeks. Nor does Title IX prescribe any
particular mandatory remedial action. Davis
stress[ed] that [the Court's] conclusion . . . -that
recipients may be liable for their deliberate indifference to
known acts of peer sexual harassment-does not mean that
recipients can avoid liability only by purging their schools
of actionable peer harassment or that administrators must
engage in particular disciplinary action. . . .
. . . [T]he recipient must merely respond to known peer
harassment in a manner that is not clearly unreasonable.
Id. at 648-49 (citations omitted).
II.
BACKGROUND
With
these general Title IX principles in mind, we consider
Plaintiffs' specific factual allegations against KSU,
accepted as true and viewed in the light most favorable to
Plaintiffs. See Straub v. BNSF Ry. Co., 909 F.3d
1280, 1287 (10th Cir. 2018).
A.
Plaintiff Tessa Farmer
Plaintiff
Farmer alleged the following: In March 2015, she went to a
fraternity party and became very drunk. A designated driver
took Farmer back to her dorm room. At 2:00 a.m., Farmer
received a Facebook message from T.R., another KSU student
who Farmer knew from high school. T.R. invited Farmer to the
fraternity house where the party was continuing, offering to
pick up Farmer and drive her there. Farmer agreed. T.R. drove
to Farmer's dorm, picked her up and took her to his room
at the fraternity house, where the two had sex. T.R. then
left the room, telling Farmer he was going to start his car,
presumably to take her back to her dorm room. After T.R.
left, C.M., another KSU student who was a stranger to Farmer
and who had been hiding in the closet while T.R. and Farmer
had sex, emerged from the closet and raped Farmer. When T.R.
returned to the room, he was not surprised by C.M.'s
presence or by Farmer's being upset and sobbing.
Farmer
reported to the Riley County Police Department that C.M. had
raped her. She also reported the rape to the director of the
KSU Center for Advocacy, Response and Education
("CARE"). The CARE director told Farmer that,
although she could report the rape to the KSU Interfraternity
Council ("IFC"), the IFC would not investigate the
rape but would only investigate the fraternity chapter more
generally. Farmer, nevertheless, filed a complaint with the
IFC; three months later the IFC responded to Farmer that the
fraternity chapter as a whole had not violated any IFC
policies.
Farmer
later learned that, contrary to what KSU's CARE director
had told her, there might be other avenues through which
Farmer could complain to KSU about the rape. In August 2015,
Farmer filed a complaint with KSU's Office of
Institutional Equity, alleging C.M. had violated KSU's
sexual ...