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Farmer v. Kansas State University

United States Court of Appeals, Tenth Circuit

March 18, 2019

TESSA FARMER, Plaintiff - Appellee,
KANSAS STATE UNIVERSITY, Defendant-Appellant. SARA WECKHORST, Plaintiff - Appellee,

          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.


         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.


         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).


         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 ...

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