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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TESSA FARMER,
Plaintiff,
v.
KANSAS STATE UNIVERSITY,
an agency of the State of Kansas,
Defendant.

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Case No. 2:16-cv-02256-JAR-GEB

STATEMENT OF INTEREST OF THE UNITED STATES

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
INDEX OF EXHIBITS .................................................................................................................. vi
INTRODUCTION .......................................................................................................................... 1
INTERESTS OF THE UNITED STATES ..................................................................................... 2
STATEMENT OF FACTS ............................................................................................................. 2
QUESTIONS PRESENTED........................................................................................................... 4
ARGUMENT .................................................................................................................................. 5
I.

T.F. has pled a plausible Title IX claim for damages under the Davis standards ................ 6
A. T.F. has sufficiently pled that K-State knew of severe, pervasive, and objectively
offensive sexual harassment that created a hostile educational environment ......................... 7
1.

K-State-recognized fraternities are education activities covered by Title IX .............. 8

2.

K-State had actual knowledge of the hostile environment on campus ....................... 11

B. Reports of student-on-student rape, whether the rape occurred on or off campus, trigger
the Title IX duty to determine if a hostile environment exists .............................................. 12
1.

Courts and ED interpret Title IX to include this duty ................................................ 12

2. K-State’s claim that it had no duty to respond due to a lack of substantial control
ignores the allegations in the Complaint and the relevant case law .................................. 16
C. T.F. has sufficiently pled that K-State was deliberately indifferent to the hostile
educational environment that existed in the fraternity and on campus ................................. 21
II. T.F.’s Complaint States a Plausible Claim for Equitable Relief under Title IX................ 26
CONCLUSION ............................................................................................................................. 29

ii

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TABLE OF AUTHORITIES
Cases
Auer v. Robbins, 519 U.S. 452 (1997) .......................................................................................... 10
C.R.K. v. U.S.D. 260, 176 F. Supp. 2d 1145 (D. Kan. 2001).................................................. 17, 19
Cannon v. Univ. of Chicago, 441 U.S. 677 (1979) ................................................................. 26, 29
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ............................. 10
Clifford v. Regents of Univ. of Cal., No. 2:11-CV-02935-JAM, 2012 WL 1565702 (E.D. Cal.
Apr. 30, 2010) ........................................................................................................................... 18
Cohen v. Brown Univ., 101 F.3d 155 (1st Cir. 1996) ................................................................... 10
Crandell v. N.Y. Coll., Osteopathic Med., 87 F. Supp. 2d 304 (S.D.N.Y. 2000) ..................... 12, 3
CT v. Liberal Sch. Dist., 562 F. Supp. 2d 1324 (D. Kan. 2008) ................................................... 25
Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) .... 5, 6, 7, 12, 14, 15, 16, 21, 22, 24, 27,
28, 29
Doe ex rel. Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438 (D. Conn. 2006) ...................... 13, 25
Doe v Bibb Co. Sch. Dist., 126 F. Supp. 3d 1366 (N.D.GA. 2015) .............................................. 25
Escue v. N. Okla. Coll., 450 F.3d 1146 (10th Cir. 2006) .................................................. 21, 22, 23
Ferris v. Delta Air Lines Inc., 277 F.3d 128 (2d. Cir. 2001) ........................................................ 13
Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165 (1st Cir. 2007)...................................... 24, 25
G.G. v. Gloucester Cnty. Sch. Bd., No. 15-2056, 2016 U.S. App. LEXIS 7026 (4th Cir. Jan. 27,
2016).......................................................................................................................................... 10
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) .................................................. 8, 26
Guardians Assn v. Civil Serv. Comm'n, 463 U.S. 582 (1983) ...................................................... 27
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) ....................................................... 8, 9
Jennings v. Univ. of N.C., 444 F.3d 255 (4th Cir. 2006) .............................................................. 13
Karasek v. Regents of Univ. of Cal., No. 15-cv-03717-WHO, 2015 U.S. Dist. LEXIS 166524
(N.D.CA. Dec. 11, 2015) .......................................................................................................... 24
iii

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Kelly v. Yale Univ., No. 3:01-CV-1591, 2003 WL 1563424 (D. Conn. Mar. 26, 2003) ........ 14, 25
King v. Bd. of Control of E. Mich. Univ., 221 F. Supp. 2d 783 (E.D. Mich. 2002).................. 9, 11
Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238 (10th Cir. 1999)................................ 18
Ostrander v. Duggan, 341 F.3d 745 (8th Cir. 2003) .............................................................. 18, 20
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) ................................................. 27
Roberts v. Colo. State Bd. of Agric., 998 F.2d 824 (10th Cir. 1993) ............................................ 10
Roe v. St. Louis Univ., 746 F.3d 874 (8th Cir. 2014).............................................................. 18, 19
Rouse v. Duke Univ., 914 F. Supp. 2d 717 (M.D.N.C. 2012)....................................................... 24
Samuelson v. Or. State Univ., No. 6:15-CV-01648-MC, 2016 WL 727162 (D. Or. Feb. 22, 2106)
............................................................................................................................................. 18, 19
Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007).............................. 6, 9, 17, 25
Soper v. Hoben, 195 F.3d 845 (6th Cir. 1999)................................................................................ 7
Spencer v. Univ. of N.M. Bd. of Regents, 15-cv-00141-MCA-SCY (D.N.M. Jan. 11, 2016) .13, 24
Takla v. Regents of Univ. of Cal., 2:15-cv-04418-CAS(SHx), 2015 U.S. Dist. Lexis 150587
(C.D. Cal. Nov. 2, 2015) ........................................................................................................... 24
Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282 (11th Cir. 2007) . 7, 13, 14, 15,
17, 21, 24
Wills v. Brown Univ., 184 F.3d 20 (1st Cir. 1999) ................................................................... 7, 13
Statutes
20 U.S.C. § 1681 ..................................................................................................................... 6, 8, 9
20 U.S.C. § 1682 ..................................................................................................................... 26, 28
28 U.S.C § 517 ................................................................................................................................ 2
Other Authorities
Office for Civil Rights (“OCR”) 2001 Revised Sexual Harassment Guidance .................. 9, 27, 28
OCR 2014 Questions & Answer on Title IX & Sexual Violence............................... 10, 14, 27, 28
iv

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OCR 2011 Dear Colleague Letter on Sexual Violence ................................................ 9, 14, 27, 28
Brief of the United States as Amicus Curiae in Davis, No. 97-843, U.S. S. Ct. Briefs LEXIS 776
(1998) .................................................................................................................................. 27, 28
Complaint.......................................................... 1, 2, 4, 8, 10, 11, 12, 15, 17, 18, 22, 23, 25, 26, 29
Motion to Dismiss ......................................................................................................... 8, 15, 16, 23
Rules
Fed. R. App. P. 29 ........................................................................................................................... 2
Regulations
34 C.F.R. § 106.31 .......................................................................................................................... 9
34 C.F.R. 100.8 ....................................................................................................................... 26, 28
34 C.F.R. 106.71 ........................................................................................................................... 26
62 Fed. Reg. 12,034 (1997) ......................................................................................................... 27

v

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INDEX OF EXHIBITS
Exhibit A
Order in Spencer v. Univ. of N.M. Bd. of Regents, 15-cv-00141-MCA-SCY (D.N.M. Jan. 11,
2016)
Exhibit B
Brief of the United States as Amicus Curiae in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.
629, 648 (1999)

vi

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INTRODUCTION
Plaintiff Tessa Farmer (“T.F.”) is a student at Kansas State University (“K-State”). 1 In
March of 2015, T.F. reported to K-State that she was raped by another student at a K-State
fraternity house party. Compl. ¶¶ 17, 13. K-State told T.F. her only options were to report the
rape to police or the K-State Interfraternity Council (“IFC”), which could investigate only the
chapter generally for misconduct. Id. ¶ 17. T.F. reported to both entities and a K-State professor.
Id. ¶¶ 16, 22, 24. Months later, T.F learned that IFC would take no action against the fraternity
and had not investigated the accused student for rape. Id. ¶¶ 22, 23. After finishing the semester
with no action by K-State to help her, T.F learned over the summer that she could file a
complaint with K-State’s Office of Institutional Equity (“OIE”) under Title IX of the Education
Amendments of 1972 (“Title IX”), 20 U.S.C. 1681 et seq. Id. ¶¶ 18, 21, 26. She reported to OIE
the alleged rape, her constant fear of encountering the accused student on campus, and the
deleterious effects both were having on her education. Id. ¶¶ 26-30, 32-34. K-State refused to
investigate the alleged rape, citing its policy of not responding to reports of rapes at its fraternity
houses because they are located “off campus.” Id. ¶¶ 28, 35.
T.F. alleges that this refusal constitutes deliberate indifference to a hostile environment
that denies her the benefits of K-State’s education programs and activities in violation of Title
IX. Title IX prohibits sex discrimination by recipients of federal funds in all education programs
and activities, including extracurricular activities such as university-recognized fraternities. KState has moved to dismiss T.F.’s Title IX claims, arguing that it need not respond to reports of
student-on-student rape at “off-campus” fraternity houses or events, and that T.F. must, yet fails

1

The United States understands that these are Plaintiff’s allegations. Because this Statement of Interest is filed at the
motion to dismiss stage, the United States accepts all the allegations in Plaintiff’s Complaint as true.

1

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to, allege that K-State’s deliberate indifference caused her alleged assailant to harass her again.
K-State is incorrect, and its motion should be denied.
INTERESTS OF THE UNITED STATES 2
The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C §
517, to provide the correct legal standards governing private sexual harassment claims for both
monetary and equitable relief under Title IX. The United States Departments of Justice (“DOJ”)
and Education (“ED”) share responsibility for enforcing Title IX in the education context. ED
has four open Title IX investigations of K-State involving sexual harassment.
In addition to its own enforcement interest, the United States has an interest in ensuring
effective private enforcement of Title IX in court. Students who experience sexual assault and
others injured by Title IX violations may seek both equitable relief, including injunctive relief
compelling their schools to investigate their allegations and address their hostile environments,
and monetary damages to compensate for injuries caused by the schools’ deliberate indifference.
As explained below, the legal standards for evaluating damages and equitable claims under Title
IX are similar but distinct, and the United States has a strong interest in their proper application.
STATEMENT OF FACTS
T.F.’s allegations are as follows. On March 6, 2015, T.F. attended a K-State fraternity
party at a K-State recognized fraternity house, where she became very intoxicated on fraternitysupplied alcohol. Compl. ¶¶ 11. After she left, T.R., a fraternity member, contacted T.F. and
insisted that she come back to the fraternity house because the party was continuing. Id. ¶12.
T.R. picked T.F. up in his car and brought her to his room, where they had sex. Id. After T.R. left

2

The Federal Rules of Civil Procedure and local rules do not set forth a procedure for filing a statement of interest
on behalf of the United States with the district courts, although it should be noted that Fed. R. App. P. 29(a) provides
that the United States may file an amicus brief without consent of the parties or leave of court. When the Clerk’s
office was consulted, it opined that this statement could be filed without additional notice or motion.

2

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the room, T.F. discovered a stranger hiding in the closet. Id. ¶¶ 12, 13. An inebriated T.F. fell
down on the bed, where the stranger raped her while she screamed into the mattress. Id. ¶ 13.
When T.R. returned, he showed no surprise at the stranger’s presence. Id. T.F. later learned that
the stranger was C.M., a K-State fraternity member and T.R’s roommate. Id. C.M. admitted that
T.R. had instructed him go into the closet while he had sex with T.F. Id. T.F. went immediately
to the hospital for a rape kit, and to the local police to report the rape. Id. ¶¶ 15, 16.
Within a few days, T.F. reported the rape to the director of K-State’s Center for
Advocacy, Response and Education (“CARE”). Id. ¶ 17. CARE informed T.F. that she had two
options: file a report with the local police or the K-State IFC, which would look at the fraternity
chapter generally, but not investigate the rape or the student-assailant. Id. T.F. filed a complaint
with IFC, which determined that the chapter did not violate any IFC policies. Id. ¶ 22. She later
learned that C.M. was sanctioned for alcohol use. Id. ¶ 23. T.F. also informed a K-State professor
about the rape, which also resulted in no action by the school. Id. ¶ 24. Because K-State took no
action on the reported rape for five months, T.F. spent the rest of the school year at risk and in
constant fear of running into her assailant on campus, which interfered with her ability to access
her education. Id. ¶¶ 25, 41. Seeing T.R. on campus caused a panic attack and hysterical crying.
Id. ¶ 72. T.F. missed classes, withdrew from academic activities, and spiraled into a deep
depression that became so toxic, she slit her wrists. Id. ¶¶ 25, 37, 71.
That summer, T.F. learned on her own about Title IX, as no one at K-State had advised
her of her right to file a complaint with its OIE or Title IX Coordinator. Id. ¶¶ 18, 26. On August
22, 2015, she filed a complaint with OIE, copying the CARE director to whom she first reported
the rape. Id. ¶ 28. The director informed her that K-State would not take action because “[t]he
current Policy Prohibiting Discrimination, Harassment[,] and Sexual Violence, K-State’s Sexual
Misconduct policy, specifies that it covers behaviors that happens on campus and at university
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sponsored events; which does not cover Fraternity Houses.” Id. OIE confirmed this policy
interpretation and later cited it when refusing to investigate the alleged rape or assailant. Id. ¶ 29.
Though OIE asked T.F. for information “to determine if the rape related to discrimination
in a University sponsored program or activity,” OIE ignored the information she provided that
showed the rape created a hostile environment in K-State-recognized fraternity activities and on
campus. Id. ¶¶ 29-35. For example, T.F. told OIE that due to her ongoing fear of encountering
her assailant on campus she had “missed classes and had some struggles with school” and
“walk[s] around campus worrying that he’ll be [in] class, approach [her] or be near [her] on the
quad, or be at a greek event with [her] like homecoming.” Id. ¶¶ 30, 32. She described how the
rape “affects [her] education everyday, because [she is] always at risk of running in to him.” Id. ¶
32. When K-State asked T.F. if she wanted educational accommodations or felt safe in her route
to campus each day, she reported not feeling safe on campus, knowing that the school was doing
nothing to protect her or others despite the notice of alleged student rapists on campus. Id. ¶ 33,
34. K-State still did not offer T.F. any safety measures, such as a no-contact order against her
assailant, and refused to investigate the rape on the basis of it being “off campus.” Id. ¶¶ 18, 35.
QUESTIONS PRESENTED
1. Whether T.F. sufficiently pleads facts alleging severe, pervasive, and objectively
offensive harassment that created a hostile environment in a K-State education program or
activity, where she alleges being raped by a K-State student in a fraternity recognized by KState, and experiencing continuing effects of the rape on campus?
2. Whether K-State had a duty to respond once it had actual knowledge of a report of
rape perpetrated by a K-State student over which it exercises disciplinary authority, and again
upon notice of T.F.’s ongoing experience of a hostile environment on campus created by that
alleged rape?
3. Whether T.F. sufficiently pleads that K-State acted with deliberate indifference by
refusing to respond to her reports of student-on-student rape and by maintaining an official
policy of not investigating reports of “off-campus” rapes in its fraternities, which are a
university-recognized extracurricular activity?

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4. Whether T.F. sufficiently pleads plausible claims for equitable relief under Title IX?
ARGUMENT
Title IX covers all education programs and activities of a federally funded school,
including the house and events of a school-recognized fraternity. The continuing effects of
student-on-student rape, including the constant fear of exposure to one’s assailant, can render a
student’s educational environment hostile. Thus, a school must respond to allegations of sexual
assault in fraternity activities to determine if a hostile environment exists there or in any other
education program or activity. Even if an alleged student-on-student assault occurs outside of
such a program or activity, a school has a duty to respond to the allegations to determine if a
hostile environment related to the assault exists in one of its programs or activities. If a school
responds in a manner that is deliberately indifferent to the alleged assault or attendant hostile
environment, it may be held liable for damages. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.
629, 648 (1999). Contrary to K-State’s suggestion, a student who has notified her school of a
hostile educational environment created by rape at a fraternity need not wait to be raped or
otherwise harassed again by her student assailant to trigger her school’s Title IX duty to respond
or seek relief in court.
In this case, T.F. alleges sufficient facts to establish a plausible Title IX claim for
damages under Davis. First, T.F. alleges that she experienced severe, pervasive, and objectively
offensive harassment by another K-State student in the context of an education activity over
which K-State exercises substantial disciplinary and regulatory control: at the house of a KState-recognized fraternity. T.F. alleges that K-State had actual knowledge of her reported rape
and the hostile educational environment thereby created, and that it was deliberately indifferent
in refusing to investigate or otherwise address the alleged rape and attendant hostile
environment. In addition, the Complaint alleges sufficient facts showing that K-State created and
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maintained an “official policy … of deliberate indifference” by interpreting its sexual
misconduct policy to exempt rapes at fraternities and fraternity events—its own extracurricular
activities—and by refusing to investigate reports of such rapes. See Simpson v. Univ. of Colo.
Boulder, 500 F.3d 1170, 1178 (10th Cir. 2007).
Because T.F.’s allegations are sufficient to establish all elements of a Title IX damages
claim, they are more than sufficient to state a Title IX claim for equitable relief.
I.

T.F. has pled a plausible Title IX claim for damages under the Davis standards
Title IX prohibits recipients of federal funds from discriminating on the basis of sex in all

of their education programs and activities. 20 U.S.C. § 1681(a). In Davis, the Supreme Court
considered whether a recipient could be held liable for damages for peer sexual harassment and
“conclude[d] that recipients … may be liable for ‘subject[ing]’ their students to discrimination
where the recipient is deliberately indifferent to known acts of student-on-student sexual
harassment and the harasser is under the school’s disciplinary authority.” 526 U.S. at 64647. The Court limited damages liability to circumstances wherein the recipient “exercises
substantial control over both the harasser and the context” in which the harassment occurred, id.
at 645, and defined “deliberate indifference” to mean “only where the recipient’s response to the
harassment or lack thereof is clearly unreasonable in light of the known circumstances,” id. at
648.
In reversing the lower court’s dismissal of Davis’s complaint under Rule 12(b)(6), the
Court determined that the alleged verbal and physical harassment over a five-month period was
“severe, pervasive, and objectively offensive” and “had a concrete, negative effect on [Davis’s]
daughter's ability to receive an education.” Id. at 653-54. With respect to the other elements of a
Title IX damages claim, the Court stated that the “complaint also suggests that [Davis] may be
able to show both actual knowledge and deliberate indifference on the part of the Board, which
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made no effort whatsoever either to investigate or to put an end to the harassment.” Id. at 654.
The allegations in T.F.’s Complaint likewise suffice under Davis’s Rule 12(b)(6) analysis.
Consistent with Davis, the Tenth Circuit has held that a school may be liable for damages
under Title IX where it “(1) has actual knowledge of, and (2) is deliberately indifferent to, (3)
[sexual] harassment that is so severe, pervasive[,] and objectively offensive as to (4) deprive
access to the educational benefits or opportunities provided by the school.” Rost ex rel. K.C. v.
Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1119 (10th Cir. 2008). The allegations in
T.F.’s Complaint also state a plausible Title IX claim for damages under binding Tenth Circuit
case law, which explicitly recognizes that sexual assault occurring off school grounds can create
liability under Title IX provided there is “some nexus between the out-of-school conduct and the
school.” Id. at 1121 n.1 (citing Davis, 526 U.S. at 645).
A. T.F. has sufficiently pled that K-State knew of severe, pervasive, and objectively
offensive sexual harassment that created a hostile educational environment
To establish a claim for damages based on peer sexual harassment, a student must show a
school had actual knowledge of sufficiently severe, pervasive, and objectively offensive sexual
harassment that created a hostile environment in an education program or activity. Rape
constitutes a severe form of sexual harassment that can create a hostile educational environment
under Davis. See, e.g., Soper v. Hoben, 195 F.3d 845, 854-55 (6th Cir. 1999). Student-on-student
rape can have continuing effects that create a hostile educational environment for the victim.
Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282, 1297-98 (11th Cir. 2007); see
also Wills v. Brown Univ., 184 F.3d 20, 37 (1st Cir. 1999) (“The effect of such abusive conduct
on a victim does not necessarily end with a cessation of the abusive conduct, particularly if the
victim and the abuser retain the same or similar roles in an educational institution.”).

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T.F. sufficiently alleges that she gave K-State actual notice of severe, pervasive, and
objectively offensive sexual harassment in an education activity covered by Title IX when she
reported being raped at the house of a university-recognized fraternity. Compl. ¶¶13, 17. Even if
the alleged rape had not occurred in an extracurricular activity covered by Title IX, T.F.’s report
to K-State made clear that the continuing effects of the alleged rape created a hostile
environment on campus that denied her educational benefits and opportunities. Id. ¶ 30, 32-34.
She reported her constant fear and risk of encountering the accused student, and how that fear
and anxiety deprived her of access to participate in K-State programs and activities. Id.
1. K-State-recognized fraternities are education activities covered by Title IX
Title IX’s text, case law, regulations, and guidance clearly instruct that a universityrecognized fraternity is an education activity, and that T.F. may state a Title IX claim based on
K-State’s refusal to respond to a report of rape at such a fraternity’s house or event. Title IX
defines “program or activity” as “all of the operations of … a college [or] university.” 20 U.S.C.
§ 1687(2)(A). Thus, as K-State acknowledges, sex discrimination that occurs under any of its
programs or activities is covered by Title IX. MTD at 7. K-State contends, however, that rape at
a fraternity house or event located “off campus” is not covered. Id. at 7-12. This contention is
incorrect. As T.F’s allegations illustrate, a K-State-recognized fraternity is a covered education
activity, and K-State may be held liable for its failure to respond to a report of rape that occurs at
such a fraternity’s house or event. Compl. at ¶¶ 5, 23, 35, 51- 53, 57, 58, 61.
Title IX is broad remedial legislation whose text “should be accorded a sweep as broad as
its language.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 296 (1998) (quoting N.
Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982)). The all-encompassing language of
§§1681 and 1687—“any education program or activity,” and “all of the operations”—is qualified
only by the statute’s express exemptions. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,
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175 (2005) (“Title IX is a broadly written general prohibition on discrimination, followed by
specific, narrow exceptions to that broad prohibition.”). The explicit exceptions to Title IX
mandates in § 1681(a)(1)-(9) do not exempt extracurricular activities that extend off campus,
such as fraternities. 3 Nor does the statute’s text provide any geographic limitations on Title IX’s
application to these activities. To the contrary, the Tenth Circuit and other courts have
recognized that off-campus conduct occurring under a school’s activity or program is covered by
Title IX. See, e.g., Simpson, 500 F.3d at 1178-80, 1184 (finding football recruiting activities
taking place off campus are part of university’s program and finding Title IX liability may lie for
response to student-on-student sexual assaults by recruits at a private apartment); King v. Bd. of
Control of E. Mich. Univ., 221 F. Supp. 2d 783 (E.D. Mich. 2002) (finding study abroad program
was covered under Title IX).
Consistent with this case law, ED has long interpreted Title IX and its regulations to
protect students while they participate in extracurricular activities that extend outside the
geographic confines of campus. ED’s regulations clarify that Title IX’s broad sweep includes
any “extracurricular” activity or program of a university, 34 C.F.R. § 106.31(a), and its guidance
explains that this means “whether [those programs] take place in the facilities of the school, on a
school bus, at a class or training program sponsored by the school at another location, or
elsewhere,” 2001 Revised Sexual Harassment Guidance at 2-3. 4
Additional Title IX guidance from ED made clear that schools “must determine whether
… alleged off-campus sexual violence occurred in the context of an education program or
activity of the school,” and if it did, “the fact that the alleged misconduct took place off campus
3

The exemption in § 1681(a)(6)(A) applies only to fraternity membership practices.
Available at http://www.ed.gov/ocr/docs/shguide.pdf; see also Office for Civil Rights (“OCR”) 2011 Dear
Colleague Letter on Sexual Violence 4 (“2011 DCL”), available at http://www.ed.gov/ocr/letters/colleague201104.pdf (“For example, Title IX protects a student who is sexually assaulted by a fellow student during a schoolsponsored field trip.”).
4

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does not relieve the school of its obligation to investigate the complaint as it would investigate a
complaint of sexual violence that occurred on campus.” 2014 Questions and Answer on Title IX
and Sexual Violence at 29 (“2014 Q&A”). 5 This guidance spoke directly to whether universityrecognized fraternities are “extracurricular” programs or activities and, thus, whether Title IX
extends to misconduct at university-recognized fraternity houses and events:
Off-campus education programs and activities are clearly covered and include, but
are not limited to: activities that take place at houses of fraternities or sororities
recognized by the school; school-sponsored field trips, including athletic team travel;
and events for school clubs that occur off campus (e.g., a debate team trip to another
school or to a weekend competition).
Id. (emphasis added). ED’s regulations and guidance on this issue are consistent with Title IX’s
broad text and remedial purpose, supported by case law, and should be afforded Chevron and
Auer deference, respectively. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844 (1984); Auer v. Robbins, 519 U.S. 452, 461 (1997). 6
The facts alleged in T.F.’s Complaint underscore the reasonableness of ED’s guidance,
and demonstrate that K-State itself considers the fraternities to be its extracurricular activities.
First, T.F. alleges that K-State endorses the fraternity and its house where the alleged rape
occurred with official University recognition. Compl. ¶ 35. Official recognition brings with it a
host of benefits, including financial benefits, personnel, and other resources. Id. ¶¶ 5, 35, 53, 61,
63. T.F. also states that K-State hosts an extensive Greek Affairs website, where it describes its
5

Available at www.ed.gov/ocr/docs/qa-201404-title-ix.pdf.
The Tenth Circuit and other courts have afforded ED this deference in interpreting Title IX. See Roberts v. Colo.
State Bd. of Agric., 998 F.2d 824, 829 (10th Cir. 1993) (“We defer substantially to [ED’s] interpretation of its own
regulations. This is especially so when, as here, they are effectively legislative, pursuant to a statutory delegation.”)
(internal citations omitted); G.G. v. Gloucester Cnty. Sch. Bd., No. 15-2056, 2016 U.S. App. LEXIS 7026, at *19,
26-28 (4th Cir. Jan. 27, 2016) (finding ED’s interpretation of an ambiguous term should be given controlling weight
if it reflects the agency’s fair and considered judgment); Cohen v. Brown Univ., 101 F.3d 155, 173 (1st Cir. 1996)
(“It is well settled that where, as here, Congress has expressly delegated to an agency the power to ‘elucidate a
specific provision of a statute by regulation,’ the resulting regulations should be accorded ‘controlling weight unless
they are arbitrary, capricious, or manifestly contrary to the statute.’ It is also well established ‘that an agency’s
construction of its own regulations is entitled to substantial deference.’”) (quoting Chevron, 467 U.S. at 844 and
Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 150 (1991)).
6

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fraternities as “Kansas State University Organizations,” and discusses the value of “Our Greek
Community” consisting of 17 sororities, 28 fraternities, and nearly 4,000 undergraduate students,
approximately 21 percent of KSU’s student population. Id. ¶ 51, 53. Indeed, K-State markets
itself and the educational experience it offers by promoting fraternity life to prospective students
and their parents. Id. ¶ 52. The Complaint alleges that its website states: “The Greek experience
at K-State provides a safe and fun way to maximize the college experience.” Id. (emphasis
added).
To conclude, as K-State does, that the off-campus activities of its recognized fraternities
are not covered by Title IX would leave students who are participating in the school’s
extracurricular activities without any recourse from the school should a sexual assault occur. See
King, 221 F. Supp. 2d at 791. Surely, when K-State boasts of the value of its Greek life and
promotes that life to students, it does not mean to exclude the bulk of activities at the houses and
events of its university-recognized fraternities. Those houses and activities are hallmarks of
Greek life at universities nationwide, and K-State is no exception.
2. K-State had actual knowledge of the hostile environment on campus
Even if T.F.’s alleged rape at the fraternity house had not been within a K-State
extracurricular activity, T.F. adequately pleads that she notified K-State that the alleged rape
created a hostile environment that she continued to experience in other education programs and
activities on campus. Compl. ¶¶ 30, 32-34. In the immediate aftermath of the alleged rape, T.F.
reported the rape to CARE, the IFC, and a K-State professor. Id. ¶ 17, 22, 24. Five months later,
she filed a complaint with OIE. Id. ¶ 28. At that time, T.F. reported that: she “walk[s] around
campus worrying that [her rapist will] be in class, approach [her] or be near [her] on the quad, or
be at a greek event with [her] like homecoming”; she has “to drive right by the building where
[she] was raped, which is scary and make[s] [her] anxious”; she “missed classes and had some
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struggles with school”; and the rape affects her education “everyday, because [she is] always at
risk of running in to [sic] him.” Id. ¶¶ 30, 32-34. These allegations show K-State knew the
reported rape and the hostile environment it created had a “concrete, negative effect on [T.F.’s]
ability to receive an education” to which it had a duty to respond. Davis, 526 U.S. at 654.
B. Reports of student-on-student rape, whether the rape occurred on or off
campus, trigger the Title IX duty to determine if a hostile environment exists
T.F.’s report to K-State that she had been raped by another student in a K-State fraternity
house triggered its Title IX duty to investigate or otherwise determine if the effects of the alleged
rape rendered her educational environment hostile. K-State ignored that duty completely for five
months. Compl. ¶¶ 17-22, 24-25. Then, in August of 2015, K-State received an additional
complaint from T.F. that provided notice of the continuing effects of the alleged rape on her
education, including how her constant fear of encountering the accused student created a hostile
environment on campus. Id. ¶¶ 28-34. K-State’s duty to evaluate whether the alleged off campus
rape caused a hostile environment on campus was thus triggered again. Yet, again, K-State
refused to fulfill its Title IX duty to investigate the report of rape or otherwise determine what
occurred. Id. ¶¶ 28-36.
1. Courts and ED interpret Title IX to include this duty
Davis predicates a school’s liability for monetary damages on whether a school has actual
knowledge of the harassment and substantial control over the harasser and the context of the
harassment. 526 U.S. at 645. Courts have interpreted this to allow for sexual harassment claims
under Title IX even where some or all of the alleged misconduct occurred in a location outside
the control of the school, as long as there is “some nexus between the out-of-school conduct and
the school.” Rost, 511 F.3d at 1121 n.1. A hostile environment in the education setting caused by
the off-campus harassment creates such a nexus. See Crandell v. N.Y. Coll., Osteopathic Med.,

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87 F. Supp. 2d 304, 315-16 (S.D.N.Y. 2000) (student alleged nexus between off-campus sexual
harassment by faculty member and hostile environment on campus because incident “made her
feel frightened and uncomfortable and consequently caused her to miss her anatomy class”).
When assessing whether off-campus rape creates a hostile environment on campus,
courts have recognized that the pernicious effects of rape by another student are not limited to
the event itself and can permeate the educational environment. See, e.g., Williams, 477 F.3d at
1297-98; Spencer v. Univ. of N.M. Bd. of Regents, 15-cv-00141-MCA-SCY (D.N.M. Jan. 11,
2016) (finding in a case involving off-campus rape that “[a] single act of severe sexual
harassment—particularly rape … can support a Title IX claim where the claim is premised upon
the school’s response to the report of the incident of sexual harassment.”) (Exhibit A); see also
Jennings v. Univ. of N.C., 444 F.3d 255, 268, 274 n.12 (4th Cir. 2006) (acknowledging that a
single incident of sexual assault or rape could be sufficient to raise a jury question about whether
a hostile environment exists, and noting that courts look to Title VII cases for guidance in
analyzing Title IX sexual harassment claims); Ferris v. Delta Air Lines Inc., 277 F.3d 128, 13637 (2d. Cir. 2001) (holding that an employer had duty under Title VII to take steps to respond to
employee-on-employee rape that occurred outside of work, explaining that although employer’s
“ability to investigate was curtailed by the fact that the . . . rapes occurred off-duty,” that did not
absolve employer “of all responsibility to take reasonable care to protect co-workers, much less
justif[y] a supervisor’s affirmative steps to prevent a victim from filing a written complaint.”).
This is due to the daily potential of the victim student encountering her assailant as they
both live and learn at the college. Williams, 477 F.3d at 1297-98; Wills, 184 F.3d at 36-37; see
Doe ex rel. Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438, 445 (D. Conn. 2006) (noting “that
an interaction with [her assailant] would be sufficiently distressing or threatening such that the
fact of their continued mutual presence in the same building and concomitant possibility of
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potential interaction impacted” her academic decisions); Kelly v. Yale Univ., No. 3:01-CV-1591,
2003 WL 1563424, at *3 (D. Conn. Mar. 26, 2003) (“[A] reasonable jury could conclude that
further encounters, of any sort, between a rape victim and her attacker could create an
environment sufficiently hostile to deprive the victim of access to educational opportunities
provided by a university.”).
Further, as the Court recognized in Davis, “the deliberate indifference by [a school] to the
unwelcome sexual advances of a student” can itself create “an intimidating, hostile, offensive
and abus[ive] school environment in violation of Title IX.” 526 U.S. at 636. The Eleventh
Circuit in Williams came to the same conclusion. There, the University of Georgia (UGA)
delayed its investigation of a student-on-student gang rape for eight months and its corrective
process for another three. Williams, 477 F.3d at 1296-97. The court found that UGA’s failure “to
take any precautions that would prevent future attacks ... 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” created a hostile environment that prevented the
plaintiff’s return to school. Id. at 1297. Davis and Williams recognize that severe peer sexual
harassment can create a hostile educational environment, and that a school’s failure to respond to
the known harassment for months can create such an environment and worsen an existing one.
Consistent with the case law and Title IX’s general prohibition on subjecting a student to
discrimination, ED issued guidance explaining a school’s duty to respond to reports of offcampus sexual violence through the grievance procedures required in the Title IX regulations,
and the duty to consider the effects of off-campus sexual violence when evaluating if there is a
hostile environment on campus. See 2011 DCL at 4; 7 2014 Q&A at 29-30 (“The mere presence

7

The 2011 DCL states: “If a student files a complaint with the school, regardless of where the conduct occurred, the
school must process the complaint in accordance with its established procedures. Because students often experience

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on campus or in an off-campus education program or activity of the alleged perpetrator of offcampus sexual violence can have continuing effects that create a hostile environment.”). K-State
urges this Court to reject ED’s guidance, arguing that it is inconsistent with Title IX. MTD at 1112.
ED’s interpretation that a school cannot ignore reports of off-campus student-on-student
rape is reasonable, consistent with Title IX and Davis, and should be afforded deference. See
supra note 6. This interpretation recognizes, as so many courts have, that the hostile effects of a
rape can permeate the academic environment and deprive the student of educational benefits. See
discussion supra at 12-14. T.F.’s Complaint starkly illustrates this reality. She describes living a
life on campus in a state of “constant hypervigilance and dread, fearing she will encounter her
attacker at any time.” Compl. ¶ 42. As a result, T.F. withdrew herself from K-State activities in
which she had previously taken campus leadership roles, decreased her participation in her
sorority, and did not participate in homecoming out of the risk of encountering her assailant. Id. ¶
71. T.F. reported missing classes and struggling with school, and experienced an increasingly
“downward spiral” of depression and seclusion that “had a concrete, negative effect on [her]
ability to receive an education.” Id.; see Davis, 526 U.S. at 653-54.
Despite K-State being on notice of both the alleged rape and the hostile educational
environment it created, K-State allegedly refused to take any “precautions that would prevent
future attacks,” Williams, F.3d at 1297, or otherwise fulfill its Title IX duty to investigate the
report of rape or take reasonable steps to determine what occurred. T.F. alleges that K-State
instead took a minimalist response that did not address the hostile environment she complained

the continuing effects of off-campus sexual harassment in the educational setting, schools should consider the
effects of the off-campus conduct when evaluating whether there is a hostile environment on campus.”). Id.

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of, ignoring completely her complaints of fear and anxiety over encountering the accused student
on campus.
2. K-State’s claim that it had no duty to respond due to a lack of substantial control
ignores the allegations in the Complaint and the relevant case law
K-State seeks to dismiss T.F.’s Title IX claims for damages, arguing that it had no duty to
investigate the rape or otherwise determine what occurred because the rape occurred “off
university property and at a private event,” and was out of K-State’s “contemporaneous control.”
MTD at 7-8. In making this argument, K-State ignores binding precedent and the well-pled facts,
and relies principally on two inapposite cases from the Eighth Circuit.
First, “contemporaneous control” is not the standard articulated in Davis. Rather, Davis
limited damages liability “to circumstances wherein the recipient exercises substantial control
over both the harasser and the context in which the known harassment occurs.” 526 U.S. at 645.
As the Court explained, control over the context of the harassment, but “[m]ore importantly …
over the harasser,” allows the school to respond to the hostile educational environment, and
exposes the school to monetary liability when its response is clearly unreasonable. Id. at 646,
648. A school’s “substantial control” and potential liability under Title IX is therefore not
defined solely by a school’s ability to prevent the harassment at the moment it happens, as KState suggests, but also by its ability to respond to the harassment once on notice of a hostile
environment in any of its programs or activities. Id. at 648 (liability will lie “where the
recipient’s response to the harassment or lack thereof is clearly unreasonable in light of the
known circumstances”).
Second, contrary to K-State’s insistence that it has no Title IX duty to respond to reports
of “off-campus” rapes at fraternities, Tenth Circuit precedent recognizes that neither a school’s
duty to respond under Title IX, nor potential liability under Davis, ends simply because a sexual

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assault originated off campus, see Simpson, 500 F.3d at 1177, or even wholly outside of one of
its programs or activities, see Rost, 511 F.3d at 1124; see also C.R.K. v. U.S.D. 260, 176 F. Supp.
2d 1145 (D. Kan. 2001). The Tenth Circuit thus recognizes Title IX’s broad sweep by correctly
examining whether a rape created a hostile environment in an education program or activity even
if the rape occurred off campus. K-State’s limited focus on the location of a student’s rape thus
ignores the pertinent issue, namely, whether the rape gave rise to a hostile environment in a
program or activity over which the school has substantial control (e.g., the authority to issue a
no-contact order, change a class or dormitory, or revise its policies to better respond to rape). See
Williams, 477 F.3d at 1297. K-State’s interpretation of its duty under Title IX artificially
confines the negative effects of a student-on-student sexual assault to the geographical location
where the assault occurred. To accept this interpretation, this Court would have to believe that
the effects of a student-on-student rape in a campus dorm could create a hostile educational
environment, but the effects of the exact same rape occurring across the street in a universityrecognized fraternity would not. Such an interpretation defies common sense.
In this case, T.F.’s allegations show the myriad ways in which K-State exercised
substantial control over the alleged harasser and the context of the harassment. First, T.F. states
that the accused is a K-State student subject to K-State’s conduct policies and disciplinary
authority. Compl. ¶¶ 13, 23, 35, 38. Further, as detailed above, see supra at 10, T.F. alleges that
K-State “granted recognition to the fraternity where [T.F.] was raped and its house,” rendering
them both, by K-State’s own definition, “Kansas State University Organizations” over which it
exercises regulatory and disciplinary control. Id. ¶¶ 35, 53. Specifically, K-State imposes rules
for student conduct at fraternity houses and events, and imposes sanctions for violating those
rules. Id. ¶¶ 22, 23, 57. T.F. alleges that K-State exercised its substantial control by investigating
the fraternity chapter for misconduct and sanctioning T.F.’s alleged assailant for alcohol use, but
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not rape. Id. ¶¶ 22-23. That K-State chose not to exercise its substantial control to investigate the
alleged rape and discipline the accused students does not mean that such control did not exist.
See id. ¶ 38; Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1247-48 (10th Cir. 1999)
(finding substantial control existed where principal had authority to, and in fact did, discipline
students for conduct stemming from the context at issue, regardless of her decision not to
exercise that authority to address the alleged harassment).
K-State ignores these facts, relying instead on two inapposite cases from the Eighth
Circuit to argue that it had insufficient control over the alleged rape to incur any liability for the
hostile environment they created in its programs and activities. First, both Roe v. St. Louis Univ.,
746 F.3d 874 (8th Cir. 2014), and Ostrander v. Duggan, 341 F.3d 745 (8th Cir. 2003), involved
assaults that occurred at private parties in private residences, not at a university-recognized
fraternity house or event. Moreover, the Eighth Circuit found that, in both cases, the summary
judgment record lacked evidence sufficient to show that the defendant-schools exercised any
regulatory or disciplinary authority over the private places and events where the assaults took
place. See Roe, 746 F.3d at 878, 884 (finding that “on the facts of this case there was no evidence
that the University had control over the student conduct at the off campus party” and noting that
the private apartment party was “not an official fraternity event”); Ostrander, 341 F.3d at 745,
748, 750-51 (noting several times that the sexual assault occurred at a private residence that was
not the fraternity’s official “chapter house”).
Similarly, the courts in the other cases cited by K-State found the records devoid of facts
indicating that the schools exercised substantial control over the private residences and events in
question. See Clifford v. Regents of Univ. of Cal., No. 2:11-CV-02935-JAM, 2012 WL 1565702,
at *7 (E.D. Cal. Apr. 30, 2010) (finding “no facts alleged” to show university had any control
over conduct at a private home in Lake Tahoe); Samuelson v. Or. State Univ., No. 6:15-CV18

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01648-MC, 2016 WL 727162, at *6 (D. Or. Feb. 22, 2106) (finding that plaintiff did not allege
facts to demonstrate university had any control over a rape by a non-student at a private
apartment).
These cases are therefore unlike this one. T.F.’s Complaint is replete with allegations
sufficient to show that K-State exercises substantial control over both the accused student and the
fraternity house and event at issue. See supra at 16-18.
K-State’s reliance on the Tenth Circuit’s decision in Rost and the district court’s decision
in C.R.K. is similarly misplaced. Those cases do not support its argument that it has no duty to
respond to off-campus, student-on-student rape at a university-recognized fraternity’s house and
event. Rather, in both Rost and C.R.K., the courts evaluated the reasonableness of the schools’
responses to reports of off-campus harassment under the Davis deliberate indifference standard,
even though the initial harassment occurred outside of any school program or activity. Unlike KState, the school in Rost contacted and cooperated with law enforcement to take the lead on an
investigation of harassment that occurred outside of any school program or activity before either
student was even enrolled, and the school took steps to prevent further harassment by finding
safe educational alternatives. Rost, 511 F.3d at 1124. The court’s decision thus turned on
insufficient evidence of deliberate indifference, not a lack of substantial control. Id.; see also
C.R.K., 176 F. Supp. 2d at 1167 (finding the evidence of deliberate indifference insufficient
where school did not ignore the student’s reports of off-campus harassment over the summer, but
rather, took numerous steps to address it).
Similarly, in Roe, the Eighth Circuit found insufficient evidence of deliberate
indifference where the victim did not initially give the school enough information to investigate,
and yet the school still informed the victim of her rights and where to seek support, and then
opened an investigation promptly when the victim did file a formal request. 746 F.3d at 881-84;
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see also Ostrander, 341 F.3d at 751 (finding insufficient evidence of deliberate indifference
where, after receiving complaints, the college met with local fraternity chapter about conducting
a thorough investigation of the rape allegations and in-house educational programming on sexual
assault).
Put simply, the main cases that K-State relies upon in its motion to dismiss—Roe,
Ostrander, Rost, and C.R.K.—are not like T.F’s, where K-State refused to take any action to
protect her or investigate her report of rape by another student, even though it has disciplinary
authority over him, the fraternity house, and its events. These cases also were all decided at the
summary judgment stage, at which point the court was evaluating not whether it was possible, as
a matter of law, for a school to be held liable for its response to an off-campus rape, but whether
the evidentiary record was sufficient to show the school’s response was clearly unreasonable.
In short, none of the cases cited by K-State construes what Title IX liability a university
may have when it refuses to investigate a report of student-on-student rape at the house or event
of one of its recognized fraternities over which it has disciplinary control. Moreover, the Tenth
Circuit recognizes that Title IX, as interpreted by Davis, prohibits a school from “sitting idle” or
sticking its head in the sand, professing it lacks authority to respond to reports of harassment that
deny a student’s access to education. Rather, Title IX requires a school to examine whether
harassment that originated on or off campus creates a hostile environment in an education
program or activity, and to respond to such harassment in a manner that is not “clearly
unreasonable.” See, e.g., Rost, 511 F.3d at 1121.
Applying Davis’s standards correctly at the motion to dismiss stage, T.F. sufficiently
pleads that K-State knew she was allegedly raped while participating in a “program or activity”
of K-State; that she continues to experience a hostile environment on campus in other K-State
programs and activities as a result of the alleged rape; and that K-State exercises substantial
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control over both her alleged harasser and the context of the alleged harassment. See Davis, 526
U.S. at 644-48 (holding that liability may lie where the recipient has the “authority to take
remedial action” and “the harasser is under the school’s disciplinary authority”). T.F. has thus
sufficiently alleged that K-State had and continues to have a duty under Title IX to respond to
her report of rape in a manner that is not clearly unreasonable.
C. T.F. has sufficiently pled that K-State was deliberately indifferent to the hostile
educational environment that existed in the fraternity and on campus
T.F. sufficiently alleges facts showing that K-State acted with deliberate indifference by
refusing to investigate and otherwise respond to her reports of student-on-student rape, and by
maintaining an official policy of not investigating reports of “off-campus” rapes at fraternities
and fraternity events, even though they are a university-recognized extracurricular activity.
A school evinces deliberate indifference when its “response to the harassment or lack
thereof is clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648.
Once on notice of student-on-student sexual assault that created a hostile environment, a school
may not “remain idle.” Id. at 641; see also Escue v. N. Okla. Coll., 450 F.3d 1146, 1155 (10th
Cir. 2006) ((“[A] minimalist response is not within the contemplation of a reasonable response.”)
(quoting Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 260 (6th Cir. 2000)).
In Davis, a fifth-grade student alleged a prolonged pattern of sexual harassment by a
classmate and reported each incident to the school. 526 U.S. at 633-34. The Supreme Court
reversed the trial court’s grant of a motion to dismiss, holding that “petitioner may be able to
show that the Board ‘subjected’ [her] to discrimination by failing to respond in any way over a
period of five months.” Id. at 649; see also Williams, 477 F.3d at 1296-97 (finding UGA
deliberately indifferent where it waited almost 11 months to take action after notice of a student

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gang rape despite a campus police report filled with evidence corroborating the plaintiff’s
account).
Here, T.F. adequately alleges facts to show that K-State evinced deliberate indifference to
both her alleged rape and the hostile environment it created in fraternity activities and on
campus. First, similar to the schools in Davis and Williams, K-State acted clearly unreasonably
by “remain[ing] idle” for five months after receiving T.F.’s initial reports of rape. Davis, 546
U.S. at 649. Failing to advise T.F. of her right to file a complaint with OIE and directing her to
the IFC, which did not have the power to address the alleged rape, was “clearly unreasonable in
light of the known circumstances,” and subjected T.K. to an unaddressed, hostile educational
environment. Davis, 526 U.S. at 649; Comp. ¶ 22.
T.F. further alleges that K-State was also deliberately indifferent in providing a
“minimalist response” to her report of the rape to OIE. Escue, 450 F.3d at 1155. Though T.F.’s
answers to OIE’s questions revealed that she felt unsafe on campus and at Greek events, missed
classes, and was struggling academically, Compl. ¶¶ 30-34, OIE ignored that these obvious
effects of the rape had created a hostile environment in fraternity activities and on campus, id. ¶
35. K-State unreasonably refused to investigate the rape, take other action to address it, or do
anything more than suggest T.F. call police or other students to walk or drive her around campus.
Id. ¶ 43. The unreasonableness of K-State’s refusal contributed to the hostile environment, id. ¶
42, deprived her of educational benefits, id. ¶¶ 32-34, 42, 71, 72, and made T.F. and others
“more vulnerable” to rape. Davis, 526 U.S. at 645; Compl. ¶ 34, 73.
K-State tries to justify its refusal to investigate the rape on the grounds that it lacked
control over the accused student and his fraternity. This argument is discredited by the
allegations discussed above in Section I.B.2, including the alleged discipline of the accused
student for alcohol use, but not for sexual assault, and the allegation that K-State has in other
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circumstances investigated off-campus reports of sexual assault, including a sexual assault by a
K-State basketball player. Compl. ¶ 38. Though K-State tries to analogize its situation to that of
other schools which courts found were not deliberately indifferent, its efforts ignore the pled
facts and strain credulity. See MTD at 8-11, 17-19 (discussing several cases).
First, none of the schools in Rost, C.R.K., Roe, or Ostrander involved a situation where
“a school [] learned of a problem and did nothing.” Rost, 511 F.3d at 1121-22. Unlike the
schools in Rost and C.R.K, K-State did not defer to an already open law enforcement
investigation with which it stayed intimately involved and assisted. And unlike in Roe, T.F.’s
pled facts reveal that K-State’s refusal to respond was not stymied by lack of cooperation by
T.F., who requested an investigation multiple times. Compl. ¶¶ 17, 22, 28-34; see also discussion
of Ostrander supra at 19. Rather, like the school in Davis, K-State remained idle for months
despite having sufficient evidence to proceed, and the Court there correctly rejected the motion
to dismiss.
Second, all of these cases reinforce that the location of the assault is not the end of the
liability analysis under Davis. Each of those courts proceeded through the Davis standards to
determine if the school’s response to the alleged harassment evinced deliberate indifference to a
hostile environment created within a school program or activity. See discussion supra at 16-19.
Third, Escue, Rost and Rouse do not stand for the proposition that a plaintiff must
affirmatively assert additional acts of sexual harassment after a school’s refusal to respond to
establish liability. MTD at 17-19. The specific facts of those cases showed that the schools did
not cause further harassment because their responses were not clearly unreasonable. Escue, 450
F.3d at 1155-56 (finding no deliberate indifference where school’s “response was not minimal,”
or “ineffective such that she was further harassed.”); Rost, 511 F.3d at 1124 (finding the school
“district took steps to prevent further harassment of [the victim] by working with [her mother] to
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find safe educational alternatives ….”); Rouse v. Duke Univ., 914 F. Supp. 2d 717, 725-26
(M.D.N.C. 2012) (finding no deliberate indifference where there was no evidence that the
school’s failure to investigate either caused further harassment or influenced the plaintiff’s
decision to leave school).
This Court should thus reject K-State’s contention that Title IX requires a student, who
reports being raped by another student under the school’s disciplinary authority, to undergo
additional harassment before her school has to respond to her report. As courts recognize,
requiring “that a student must be harassed or assaulted a second time before the school’s clearly
unreasonable response to the initial incident becomes actionable … runs counter to the goals of
Title IX.” Karasek v. Regents of Univ. of Cal., No. 15-cv-03717-WHO, 2015 U.S. Dist. LEXIS
166524, at *38-39 (N.D.CA. Dec. 11, 2015); Spencer, 15-cv-00141-MCA-SCY (D.N.M. Jan. 11,
2016) (“A victim does not have to be raped twice before the school is required to respond
appropriately.”); Takla v. Regents of Univ. of Cal., 2:15-cv-04418-CAS(SHx), 2015 U.S. Dist.
Lexis 150587, at *16 (C.D. Cal. Nov. 2, 2015) (“[P]lacing undue emphasis on whether further
harassment actually occurred to gauge the responsiveness of an educational institution would
penalize a sexual harassment victim who takes steps to avoid the offending environment in
which she may again encounter the harasser.”).
As Davis instructs, K-State’s motion to dismiss should be denied because the pled facts
state that the university made “no effort whatsoever either to investigate or to put an end to the
harassment.” 526 U.S. at 654. Indeed, courts have correctly concluded that a plaintiff may
survive a motion to dismiss when alleging constant fear and anxiety about encountering an
assailant on campus, and the school fails to address this hostile aspect of her daily environment.
See, e.g., Williams, 477 F.3d at 1297 (UGA’s “inexplicable” failure to “take any precautions that
would prevent future attacks” constituted further discrimination); Fitzgerald v. Barnstable Sch.
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Comm., 504 F.3d 165, 172 (1st Cir. 2007) (“Though removed from the vicinity of her harassers,
the victim … could still be subject to the university’s discrimination, which in that case took the
form of a failure to take any precautions that would prevent future attacks.”); Doe v Bibb Co.
Sch. Dist., 126 F. Supp. 3d 1366, 1380 (N.D.GA. 2015) (“‘[F]urther discrimination’ can be a
response on the part of the funding recipient that is so ineffective it bars the victim’s access to
educational opportunities.”); Derby, 451 F. Supp. 2d at 444 (“[E]ven absent actual post-assault
harassment by [the assailant], the fact that he and plaintiff attended school together could be
found to constitute pervasive, severe, and objectively offensive harassment.”); Kelly, 2003 WL
1563424, at *3 (same).
In addition, T.F. adequately pleads that K-State was deliberately indifferent by
maintaining an official policy of not investigating reports of off-campus rape at fraternities. “A
funding recipient can be said to have ‘intentionally acted in clear violation of Title IX,’ when the
violation is caused by official policy …” Simpson, 500 F.3d at 1179 (quoting Davis, 526 U.S. at
642). The Tenth Circuit recognized that “implementation of an official policy can certainly be a
circumstance in which the recipient exercises significant ‘control over the harasser and the
environment in which the harassment occurs.’” Id. at 1178. 8
T.F. alleges sufficient facts under Simpson to show that K-State had an official policy not
to investigate rapes at the houses and events of university recognized fraternities. Compl. ¶¶ 1, 3,
28-36, 39, 44, 65-68, 73, 77-79. T.F. alleges that this refusal effectively “tolerated” such
misconduct within one of its own extracurricular activities. Id. ¶ 76; see also id. ¶¶ 44, 65-68, 73;
Simpson, 500 F.3d at 1172, 1175, 1178, 1184-85.

8

See also CT v. Liberal Sch. Dist., 562 F. Supp. 2d 1324, 1339-40 (D. Kan. 2008) (recognizing that Simpson
standard applies where the very operation of the school-sanctioned program created a risk of sexual abuse such that
need for training would be obvious).

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II.

T.F.’s Complaint States a Plausible Claim for Equitable Relief under Title IX
T.F. seeks not only damages for K-State’s violations of Title IX, but also equitable relief.

Specifically, she requests injunctive relief ordering K-State “to conduct an investigation and
disciplinary proceedings into [T.F.]’s report of sexual assault,” and to revise its policies,
procedures, and practices so that it is in compliance with Title IX. Compl. at Prayer for Relief.
Congress authorized ED, and other federal departments, to issue rules, regulations, and
orders to effectuate Title IX, and to enforce compliance, when recipients refuse to comply
voluntarily, by administrative hearings to terminate federal funding or by “any means authorized
by law.” 20 U.S.C. § 1682. The latter option includes DOJ seeking equitable relief in court to
secure the recipient’s compliance. See 34 C.F.R. 100.8(a). 9 In 1979, the Court recognized a
private litigant’s right of action to equitable relief under Title IX. Cannon v. Univ. of Chicago,
441 U.S. 677, 705 & n.38, 710 n.44, 711–12 (1979); Gebser, 118 S.Ct. at 1997–98 (citing same).
Both before and since Gebser, the United States has provided clear notice to recipients
that the Title IX liability standards for agencies’ administrative enforcement and authorized court
enforcement to effect compliance through equitable relief, 20 U.S.C. § 1682, do not require
actual knowledge of or deliberate indifference to a hostile education environment. Rather, for
close to two decades, recipients received repeated notice of their Title IX liability to equitable
claims or agency enforcement proceedings if (1) the recipient knows or reasonably should know
of sexual harassment that (2) creates a hostile environment in an education program or activity,
and (3) the recipient fails to take immediate and appropriate corrective action. See Sexual
Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third
Parties, 62 Fed. Reg. 12,034, 12, 039 (1997) (“1997 Guidance”) (“[Un]der these circumstances, a

9

ED’s Title IX regulations adopted the enforcement procedures in the regulations implementing Title VI of the 1964
Civil Rights Act. See 34 C.F.R. 106.71 adopting 34 CFR 100.6–100.11.

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school’s failure to respond to the existence of a hostile environment within its own programs or
activities permits an atmosphere of sexual discrimination to permeate the educational program
and results in discrimination prohibited by Title IX”); see also 2001 Guidance at 12 (describing
these circumstances as those under which a school will be deemed in violation of Title IX); 2011
DCL (same); 2014 Q&A (same).
As the United States explained in its amicus brief to the Supreme Court in Davis,
equitable relief should be available without the heightened showing of actual knowledge and
deliberate indifference required by Davis because, unlike money damages, equitable relief does
not raise the Court’s “central concern” under the Spending Clause that a federal fund recipient be
on notice of its exposure to liability for a monetary award. See Brief of the United States as
Amicus Curiae in Davis, No. 97-843, 1998 U.S. S. Ct. Briefs LEXIS 776, at *31 (1998) (see
Exhibit B); Gebser, 118 S. Ct. at 1998 (discussing central concern underlying Pennhurst State
Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981), and Guardians Assn v. Civil Serv. Comm'n, 463
U.S. 582 (1983)); Davis, 526 U.S. at 641 (“the scope of liability in private damages actions
under Title IX is circumscribed by Pennhurst’s requirement that funding recipients have notice
of their potential liability”). The more exacting actual knowledge and deliberate indifference
standards announced in Gebser and Davis reflect issues of notice relevant to damages claims,
and thus are inapplicable to actions seeking equitable relief or administrative enforcement of
Title IX.
Indeed, the Court in Davis repeatedly and carefully differentiated the scope of liability in
a private damages action from “the scope of behavior that Title IX proscribes.” See 526 U.S. at
639 (“Here, however, we are asked to do more than define the scope of the behavior that Title IX
proscribes. We must determine whether a district’s failure to respond to student-on-student
harassment in its schools can support a private suit for money damages”). Davis also carefully
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distinguished the scope of liability in a private damages action from the broader scope of the
Government’s authority to enforce the requirements of Title IX. See 526 U.S. at 641-645 (citing
cases for the proposition that the Government’s enforcement authority is broader than the scope
of liability for a private right of action, and discussing relevant distinctions between the two).
Following Davis, ED sought public notice and comment on its proposed Title IX guidance that
the damages standards in Gebser and Davis were limited to private actions for damages, and that
the administrative enforcement standards reflected in ED’s 1997 Guidance remained valid in
agency enforcement actions. See 2001 Guidance at iv. The public comments supported ED’s
interpretation, see id. at iv, which was set forth in its final 2001 Guidance (and subsequent
guidance and enforcement). See, e.g., 2011 DCL at 4 n.12; 2014 Q&A at 1 n.9.
The 2001 Guidance also notified recipients of the United States’ view that “the standards
set out in ED’s guidance for finding a violation and seeking voluntary corrective action also
would apply to private actions for injunctive and other equitable relief.” 2001 Guidance at iv n.2
(citing Brief of U.S. as Amicus Curiae in Davis). Because the statute and the regulation authorize
ED to refer unresolved findings of noncompliance made under the administrative enforcement
standards to DOJ for litigation, the United States’ longstanding view that the standards for
equitable relief in court should be the same as the administrative enforcement standards is also
reasonable. See 20 U.S.C. § 1682; 34 C.F.R. 100.8(a). It would not make sense for Congress to
authorize agencies to explain how they will evaluate recipients’ compliance with Title IX and to
effectuate such compliance through “any other means authorized by law,” 20 U.S.C. § 1682, and
then require a higher evidentiary showing to obtain equitable relief compelling the recipient’s
compliance. As the United States explained in its Amicus Brief in Davis, “A plaintiff in a private
enforcement action should likewise be entitled to equitable relief without a showing of deliberate
indifference.” U.S. Amicus Brief in Davis at *36.
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Thus, should this Court reach the question of whether T.F. alleges facts sufficient to state
a plausible claim for equitable relief under Title IX, it should find in the affirmative. Not only
has she alleged facts sufficient to meet the well-established liability standards for equitable relief,
she also alleges facts showing the urgent need for injunctive relief. T.F. is still enrolled at KState where she remains in a state of “constant hypervigilance and dread” of encountering the
accused. Compl. ¶ 42. Moreover, K-State unwaveringly asserts that Title IX does not impose a
duty to respond to her rape, and has signaled no intent to voluntarily comply with any request
that it investigate them. In this case, an award of individual equitable relief to a private litigant is
fully consistent with and necessary to the orderly enforcement of the statute. See Cannon, 441
U.S. at 705–06. Even if T.F. had not pled facts demonstrating K-State’s actual knowledge and
deliberate indifference as required for a damages claim under Davis, K-State’s motion to dismiss
should still be denied with regard to T.F.’s claims for equitable relief.
CONCLUSION
T.F.’s Complaint is replete with allegations showing K-State had actual knowledge of the
hostile education environment created by alleged student-on-student rape, and that its failure to
respond or protect her amounts to deliberate indifference that created “an intimidating, hostile,
offensive and abus[ive] school environment in violation of Title IX.” Davis, 526 U.S. at 636.
That is all that is required at the motion to dismiss stage, and this Court should allow her Title IX
claims for damages and equitable relief to go forward. See Davis, 526 U.S. at 654 (“On this
complaint, we cannot say beyond doubt that [petitioner] can prove no set of facts in support of
[her] claim which would entitle her to relief … the issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support the claims.”) (internal
citations omitted).
Respectfully submitted,
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TOM BEALL
Acting United State Attorney
District of Kansas

VANITA GUPTA
Principal Deputy Assistant Attorney General

/s/ Jason Oller
JASON OLLER
Assistant United States Attorney
500 State Avenue, Suite 360
Kansas City, Kansas 66101
Tel: 913-551-6560
Fax: 913-551-6560
KS Bar # 24341
Jason.Oller@usdoj.gov

/s/ Colleen Phillips
BECKY MONROE (CA Bar # 224409)
SHAHEENA SIMONS (CA Bar # 225520)
EMILY MCCARTHY (DC Bar # 1251737)
VERONICA PERCIA (DC Bar # 1011838)
COLLEEN PHILLIPS (CA Bar # 298146)
Civil Rights Division
United State Department of Justice
950 Pennsylvania Avenue, N.W.
Patrick Henry Building, Suite 4300
Washington, D.C. 20530
Tel: (202) 514-4092
Fax: (202) 514-8337
Colleen.Phillips@usdoj.gov

OF COUNSEL
JAMES COLE, JR.
General Counsel
MARCUS HEDRICK
VANESSA J. SANTOS
MICHELLE TUCKER
Attorneys
Office of General Counsel
United States Department of Education

Date: July 1, 2016

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