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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.

26

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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
27

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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,
29

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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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EXHIBIT A

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Case 1:15-cv-00141-MCA-SCY Document 22 Filed 01/11/16 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
COURTNEY SPENCER,
Plaintiff,
v.

No. 15-CV-141 MCA/SCY

University of New Mexico Board of Regents,
Defendant
MEMORANDUM OPINION AND ORER
THIS MATTER is before the Court on Defendant The University of New Mexico
Board of Regents’ Motion to Dismiss and Memorandum Brief in Support of Defendant’s
Motion to Dismiss filed April 27, 2015. [Docs. 7-8] The Court has considered the
parties’ submissions, the record, the relevant law, and has otherwise been fully advised in
the premises.
BACKGROUND
Plaintiff Courtney D. Spencer filed the present lawsuit against Defendant seeking
damages arising from Defendant’s alleged willful indifference in its response, or failure
to respond, to her report of having been the victim of a “gang rape” on and near campus
perpetrated by University of New Mexico (UNM) football players. [Doc. 3 p. 1]
Plaintiff seeks monetary relief under Title IX of the Education Amendments of 1972
(Title IX), 20 U.S.C.A. § 1681(a). [Doc. 3 p. 1, 30-31] Defendant seeks dismissal on the
ground that Plaintiff has failed to state a viable claim for a private right of action under
Title IX. [Doc. 8 p.1]
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As alleged in Plaintiff’s First Amended Complaint, the circumstances that led to
the present lawsuit are the following. [Doc. 3] During the 2013-14 school year Plaintiff
was a freshman at the University of New Mexico (UNM). [Doc 3 ¶ 2] Late in the
evening on April 12-13, 2014, two UNM football players, Crusoe Gongbay and SaQwan
Edwards, and a former UNM student, Ryan Ruff took Plaintiff, who was incapacitated
and disheveled, from an off-campus house party and put her inside Ruff’s vehicle. [Doc.
3 ¶¶ 7, 15, 64] A video taken inside the vehicle depicts the three men inside the vehicle
chanting the phrase “slutty boys.” [Doc. 3 ¶ 18] The video is overlaid with text that
reads: “SLUTTYBOY GANGBANG COMIN SOON.” [Id.] Plaintiff alleges that
“gangbang” means “gang rape.” [Doc. 3 ¶ 19] Each of the men had sex with Plaintiff
inside the vehicle. [Doc. 3 ¶ 7]
After they had sex with her Gongbay, Edwards, and Ruff dropped Plaintiff off
outside of the dorms on UNM campus. [Id.] Plaintiff immediately contacted a security
person who, in turn, called UNM police (UNMPD) and, at approximately 2:50 a.m. on
April 13, Plaintiff reported to UNMPD what had occurred in the vehicle recalling that
one of the men was named “Crusoe.” [Doc. 3 ¶¶ 7-8] Plaintiff then underwent a nurse
sexual assault examination (SANE examination) in which DNA evidence was collected
from Plaintiff’s body and her bruising and injuries were documented. [Doc. 3 ¶ 9] DNA
from each of the three men was found on Plaintiff’s body. [Doc. 3 ¶¶ 25, 30-31] The
SANE examination did not include testing for “rape drugs.” [Doc 3 ¶ 10]
Days later Plaintiff learned through social media that a video “possibly existed”
that depicted her activities prior to her encounter with Gongbay, Edwards and Ruff, and
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that the video had been seen by other students. [Doc. 3 ¶¶ 12-14] After Plaintiff
watched some of the videos (it turned out that there were several) Plaintiff realized that
she had no memory of the four hours that preceded her encounter with Gongbay,
Edwards, and Ruff. [Doc. 3 ¶¶ 12, 16-18, 70, 87] Eventually, through social media,
UNMPD’s investigative reports, and videos provided by a criminal defense attorney for
one of the alleged rapists, Plaintiff learned some of what had occurred during those four
hours. [Doc. 3 ¶¶ 12, 14-17, 20-21] During that time frame Plaintiff, along with two
unnamed UNM football players and several other students were together in a campus
dorm common room. [Doc. 3 ¶¶ 20, 36] According to witnesses, Plaintiff’s behavior
“changed very suddenly and in a manner [that] made no sense given how little alcohol
[Plaintiff] was witnessed to have consumed.” [Doc. 3 ¶ 14] Witnesses reportedly
believed that Plaintiff “acted as if she had been drugged (with a rape drug or some other
substance like ecstasy).” [Id.] Videos taken during that time frame variously depict
Plaintiff “in an apartment or dorm room somewhere, apparently having sex, and standing
around partially clothed saying bizarre things.” [Doc. 3 ¶ 20] The videos show that
Plaintiff was “incapacitated,” and that she “was acting drugged and dancing around
provocatively.” [Doc. 3 ¶ 21] One of the unnamed football players drove Plaintiff from
the campus dorm common room to an off-campus house party from where Gongbay,
Edwards, and Ruff picked her up immediately upon her arrival. [Doc. 3 ¶ 15] During the
drive to the off-campus house party the unnamed football player reportedly “engaged
Plaintiff in ‘consensual’ sexual activity.” [Doc. 3 ¶ 36] Plaintiff has no memory of the

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events depicted in the videos taken in the campus common dorm room or of the drive to
the off-campus house party. [Doc. 3 ¶¶ 17, 36]
On the morning of April 13, 2014 Gongbay met with Coach Davie, a member of
the UNM athletic Department “about the drunk girl situation last night.” [Doc. 3 ¶ 22]
In the afternoon of April 13, 2014 UNMPD interviewed Gongbay. [Doc. 3 ¶ 24] In his
April 13 interview with UNMPD Gongbay denied having been in a vehicle with Plaintiff;
he told UNMPD that he had met Plaintiff outside of a party, told her his name and that he
was a football player, and he had gone home by himself where he lived alone. [Doc. 3 ¶
25] On April 15, 2015 an assistant football coach contacted UNMPD to say that
Gongbay had an alibi for the entire time that Plaintiff claimed to have been in Ruff’s car;
a woman claimed that she was with Gongbay during the relevant time frame, and,
accordingly, the woman was an alibi witness who “would clear up all misunderstanding
about the incident with the ‘drunk girl.’” [Doc. 3 ¶ 26] UNMPD immediately
interviewed Gongbay’s alibi witness, but her testimony was “riddled with
inconsistencies” and UNMPD subsequently learned that she had been engaging in text
messages with Gongbay from different locations throughout the hours that she claimed to
be with him. [Doc. 3 ¶ 27] Further, Gongbay did not live alone, he had a roommate.
[Doc. ¶ 64]
On April 21, 2014, Gongbay and Edwards were arrested for their involvement in
the alleged “gang rape,” Ruff was arrested the following day. [Doc. 3 ¶¶ 29-31] On
April 21 and 22, 2014, Gongbay and Edwards were suspended from the football team.

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[Doc. 3 ¶ 47] The district attorney ultimately decided not to prosecute the men. [Doc. 3
¶ 55]
On April 23, 2014 Plaintiff requested that Defendant, through its Office of Equal
Opportunity (OEO), open a Title IX investigation. [Doc. 3 p. 2, ¶ 48] On May 13, 2014,
the OEO acknowledged receipt of Plaintiff’s request and indicated that it would “soon
begin an investigation.” [Doc. 3 ¶ 49] (Emphasis omitted). OEO met with Gongbay and
Edwards for the first time on July 1 and 2, 2014 to inform them of the OEO investigation.
[Doc. 3 ¶ 50] Plaintiff alleges that among other problems with OEO investigators, they
were inadequately trained in how to perform an investigation into acts of sexual violence,
and that one of them, Bryan Brock, expressed favoritism in the media for the UNM
football team. [Doc. 3 ¶¶ 57-60, 76-79]
After her encounter with Gongbay, Edwards, and Ruff, Plaintiff reported to OEO
that she “was constantly fearful of attack, had panic attacks being on campus, and moved
out of her dormitory residence hall to live off campus with her parents.” [Doc. 3 ¶ 44]
Defendant “accommodated Plaintiff somewhat with her coursework after the” incident;
however, Defendant did “not accommodate Plaintiff with safety measures and
accommodations so that she could safely pursue her studies[.]” [Doc. 3 ¶ 45, 97 (u)]
Defendant did “nothing to eliminate the sexual assault risks posed by Gongbay and
Edwards” or to prevent a recurrence of sexual assault. [Doc. 3 ¶ 97 (s)] Gongbay and
Edwards were not suspended from school and, aside from suspending them from the
football team during the off season when they were arrested, Defendant took no further
disciplinary action against them. [Doc. 3 ¶ 47]
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On July 28, 2014 Plaintiff wrote to OEO to request that it consider information
and evidence about rape drugs, including that a “nationally known expert career law
enforcement detective and trainer . . . was willing to provide . . . her opinions [to
OEO] . . . that Plaintiff was apparently given a rape drug and/or other substance, and that
the sexual acts in [Ruff’s vehicle] were thus drug-facilitated rapes.” [Doc. 3 ¶ 51]
Plaintiff’s letter also mentioned the fact that DNA from Gongbay, Edwards, and Ruff was
found on her body, that the men had inconsistent stories, and that a video existed that
depicted the men in Ruff’s vehicle with Plaintiff, the text of which video indicated that a
“gangbang” was about to occur. [Doc. 3 ¶ 51]
Alleged Deficiencies in OEO’s Investigation
Plaintiff alleges that OEO “refused to permit [her] to present evidence of any kind
that she was drugged with a rape drug or ingested a substance in addition to alcohol
which together altered her mental state, precluding her ability to consent to sexual
activity[;] . . . refused to accept testimony which would account for her total memory
loss, and conduct”; and it “refused to accept and therefore consider [that] evidence as an
explanation for the” video clips showing Plaintiff’s behavior during the four hours prior
to her encounter with Gongbay, Edwards, and Ruff. [Doc. 3 ¶ 52] OEO accepted and
considered two video clips showing Plaintiff during the four hours prior to the incident as
evidence that Plaintiff consented to sex with Ruff, Gongbay, and Edwards. [Doc. 3 ¶ 53]
OEO “ignored” the video taken inside Ruff’s vehicle that indicated that a “gangbang”
was “comin soon.” [Doc. 3 ¶ 54] OEO did not seek or obtain a copy of the SANE
examination report that indicated physical proof of forced sexual activity, and in regard to
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the UNMPD’s witness interviews, OEO relied exclusively upon the statement given by
the football player who claimed to have engaged in a consensual sex act with Plaintiff as
he drove her to the place where she was picked up by Gongbay, Edwards, and Ruff.
[Doc. 3 ¶¶ 39, 68] Additionally, during its investigation into Plaintiff’s report of the
incident, Defendant was aware of the fact that two other women in addition to Plaintiff,
and independent of one another, had reported that Gongbay had sexually assaulted them.
[Doc. 3 ¶ 41]
On August 12, 2014, the suspensions of Edwards and Gongbay from the UNM
football team were lifted. [Doc. 3 ¶ 74] Approximately two weeks later, on August 28,
2014 OEO issued a “Preliminary Letter of Determination” indicating its finding of “No
Probable Cause.” [Doc. 3 ¶ 61] The preliminary letter of determination noted that OEO
“found it significant” that Gongbay had an alibi for the time during which the rapes
occurred. [Doc. 3 ¶ 64] The letter also noted that OEO did not interview Edwards or
Gongbay and that it determined their credibility based solely upon letters written by their
respective private attorneys denying Plaintiff’s allegations. [Doc. 3 ¶ 66] OEO also
determined that the unnamed football player’s statement that Plaintiff consented to a sex
act with him on the way to the off-campus house party meant that Plaintiff also consented
to sex with Gongbay, Edwards, and Ruff. [Doc. 3 ¶ 39] A final letter of determination
was issued by OEO on September 15, 2014, and Plaintiff appealed. [Doc. 3 ¶ 81]
As grounds for her appeal of OEO’s determination Plaintiff stated, among other
things, that the determination was untimely and premature; it was the result of an
investigation which was not thorough; the sexual abuse nurse examiner was not
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interviewed; UNMPD investigators were not interviewed; the UNMPD investigation was
not yet complete; Plaintiff’s expert witness was prohibited from testifying; and, although
Plaintiff’s account of the events had never changed, Gongbay’s story, which was credited
by OEO, had “changed materially twice, with a third version being depicted on the video
of him in [Ruff’s vehicle] with Plaintiff”; and that OEO had never interviewed Edwards.
[Doc. 3 ¶ 81] The president of UNM denied Plaintiff’s appeal. [Doc. 3 ¶ 82]
As a result of the foregoing, among other facts alleged in her complaint, Plaintiff
“psychologically, emotionally[,] and out of fear for her own physical safety, could not
return to UNM” for the remainder of 2014 spring semester or for the fall 2014 semester.
[Doc. 3 ¶¶ 44-45, 89]
In her lawsuit against Defendant, Plaintiff does not allege that Defendant is liable
for failing to prevent Gongbay and Edwards from having sex with her in Ruff’s vehicle
when she was incapacitated. [Doc. 14 p. 5] Rather, in Plaintiff’s words, her Title IX
“claim involves only [Defendant’s] conduct after the [incident] was reported to it.” [Id.]
Defendant argues that Plaintiff’s First Amended Complaint fails to state a viable claim
for a private right of action under Title IX and, thus, should be dismissed with prejudice.
[Doc 8, p. 1]
Analysis
In determining whether Plaintiff’s first amended complaint can survive
Defendant’s motion to dismiss the Court considers whether Plaintiff has stated “a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
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to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. The court accepts, as true, factual allegations in a complaint, but “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id. Additionally, in determining whether the complaint states a plausible
claim for relief the Court draws “on its judicial experience and common sense”; “where
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct the complaint has alleged—but it has not shown—that the pleader is entitled
to relief.” Id. at 679 (alteration omitted).
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[.]” 20 U.S.C. § 1681(a). “Title IX is . . . enforceable through an implied
private right of action,” and “monetary damages are available in the implied private
action.” Gebser v. Largo Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998). Title IX may
be enforced only against the recipient of federal funds and the funding recipient may only
be liable in damages under Title IX for its own misconduct. Davis ex rel. Next Friend
LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 640 (1999). Thus, in order to
be liable under Title IX the funding recipient itself must have, on the basis of sex, acted
to exclude a person’s participation in, deny a person the benefits of, or subject a person to
discrimination under an education program or activity that receives federal financial
assistance. Davis, 526 U.S. at 640-41. Plaintiff alleges, and Defendant does not argue

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otherwise, that Defendant receives federal funding and is subject to Title IX. [see Doc. 3
¶ 4]
In the context of student-on-student sexual harassment, it is only “in certain
limited circumstances” that a private action for monetary damages under Title IX may be
brought against a school that receives federal financial assistance. Davis, 526 U.S. at
639, 643. A funding-recipient school may be held directly liable under Title IX where it
is “deliberately indifferent to sexual harassment, of which [it has] actual knowledge, that
is so severe, pervasive, and objectively offensive that it can be said to deprive the victims
of access to the educational opportunities or benefits provided by the school.” Davis, 526
U.S. at 650. Thus, in order to state a Title IX claim that is premised on student-onstudent sexual harassment, a plaintiff is required to allege that the school: “(1) had actual
knowledge of, and (2) was deliberately indifferent to (3) harassment that was so severe,
pervasive and objectively offensive that it . . . deprived the victim of access to the
educational benefits or opportunities provided by the school.” Murrell v. Sch. Dist. No.
1, Denver, Colorado., 186 F.3d 1238, 1246 (10th Cir. 1999). “[A] single instance of
[student-on-student] harassment theoretically might form a basis for Title IX liability if
that incident were vile enough and the institution’s response, after learning of it,
unreasonable enough to have the combined systematic effect of denying access to a
scholastic program or activity.” Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165,
172-73 (1st Cir. 2007), rev’d on other grounds, 555 U.S. 246 (2009).

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Actual Knowledge
Plaintiff alleges, and Defendant does not argue otherwise, that Defendant’s report
that Gongbay and Edwards1 had sex with Plaintiff in Ruff’s car while she was
incapacitated gave Defendant “actual knowledge” of an act of student-on-student sexual
harassment. [Doc. 3 ¶ 93; see Doc. 8 p. 14-17]
1. Deliberate Indifference
In support of its Motion to Dismiss Defendant argues that its accommodation of
Plaintiff with her course work, its act of investigating her report of sexual harassment that
led to its conclusion that the report lacked probable cause; and its suspension of Gongbay
and Edwards from the football team; demonstrate that its response to Plaintiff’s report of
the harassment was not clearly unreasonable. [Doc. 8 p. 15-16]
“A [school] is deliberately indifferent to acts of student-on-student harassment
only where the [school’s] response to the harassment or lack thereof is clearly
unreasonable in light of the known circumstances.” Rost ex rel. K.C. v. Steamboat
Springs RE-2 Sch. Dist., 511 F.3d 1114, 1121 (10th Cir. 2008) (alteration omitted). Title
IX does not require a school to “remedy peer harassment” or to “ensure that students
conform their conduct to certain rules.” Davis, 526 U.S. at 648 (alteration and ellipses
omitted). Nor does it “require flawless investigations or perfect solutions.” Rost, 511
                                                            
1

  Plaintiff acknowledges that Defendant did not have disciplinary control over Ruff such that it could be 
held liable for its response to learning that he was one of the perpetrators of the rapes.  [Doc. 14 p. 5]  See Davis, 
526 U.S. at 646‐47 (stating that a school’s liability under Title IX is limited to circumstances in which “the harasser 
is under the school’s disciplinary authority”).   

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F.3d at 1122 (alteration and ellipses omitted). Rather, the school must “merely respond
to known harassment in a manner that is not clearly unreasonable.” Davis, 526 U.S. at
649.
In considering whether a school’s response to student-on-student harassment was
clearly unreasonable, “courts should refrain from second-guessing the disciplinary
decisions made by school administrators.” Davis, 526 U.S. at 648. While hindsight
observations that suggest that there were other and better ways to investigate or remedy
student-on-student harassment may demonstrate simple or even heightened negligence in
the school’s response, such observations are insufficient to demonstrate deliberate
indifference. Rost, 511 F.3d at 1122; see Fitzgerald, 504 F.3d at 171 (stating that
“‘deliberate indifference’ requires more than a showing that the institution’s response to
harassment was less than ideal”). However, a “minimalist response is not within the
contemplation of a reasonable response[,]” Vance v. Spencer Cty. Pub. Sch. Dist., 231
F.3d 253, 260 (2000); and deliberate indifference may be indicated where the school fails
“to meaningfully and appropriately discipline the student-harasser[,]” or where “the
harasser and other students are left to believe that the harassing behavior has the ‘tacit
approval’ of the” school. S.S. v. Alexander, 177 P.3d 724, 739 (Wash. Ct. App. 2008).
On a motion to dismiss, a court may “identify a response as not clearly
unreasonable as a matter of law.” Davis, 526 U.S. at 649. The facts of this case as
alleged in Plaintiff’s complaint, however, do not permit the Court to conclude, as a matter
of law, that Defendant’s response to Plaintiff’s report was not clearly unreasonable.

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Viewed in the light most favorable to Plaintiff, a reasonable jury could find that
the circumstances known to OEO during its investigation were the following. Plaintiff,
having been possibly been drugged with a rape drug or a similar substance that left her
incapacitated and caused her to lose her memory for four hours, was transported by an
unnamed football player to an off-campus party where she was immediately picked up by
Gongbay, Edwards, and Ruff. A reasonable inference could be drawn that the unnamed
football player had arranged in advance to deliver Plaintiff, who was incapacitated, to the
three men. Gongbay, Edwards, and Ruff put Plaintiff, who was, according to a video
recording, obviously incapacitated and disheveled into Ruff’s car with the intention to
engage in a “gangbang” with her. When the three men dropped Plaintiff off at campus
she immediately found campus security and reported to UNMPD that she had been raped
by the three men, one of whom was named Crusoe. “Crusoe” was identified by UNMPD
by the next afternoon as Gongbay. Gongbay had reportedly perpetrated sexual assaults
on two women prior to his encounter with Plaintiff. After the incident Gongbay made
several statements that were later revealed to be untrue about his whereabouts during, and
involvement in, the incident. DNA from Gongbay, Edwards, and Ruff was found on
Plaintiff’s body and a SANE examination revealed that she had bruising and injuries. A
cursory investigation was performed by OEO investigators, including among them, one
investigator who publicly expressed favoritism for the football team. The investigation
did not involve interviewing Gongbay or Edwards, the investigators ignored substantial
relevant evidence that supported Plaintiff’s account of events, and they accepted the

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clearly controverted version of events offered by the football players to conclude that
Plaintiff’s report was not supported by probable cause.
Viewed in the light most favorable to Plaintiff, the fact that, under the
circumstances here, OEO found that Plaintiff’s report of sexual harassment was not
supported by probable cause; combined with the fact that Defendant took no disciplinary
action against Edwards and Gongbay except to suspend them for four months during
football’s “off season” could lead a reasonable jury to find that that Defendant’s response
to Plaintiff’s report of sexual harassment was clearly unreasonable in light of the known
circumstances. See Davis, 526 U.S. at 648 (stating that a school’s response to a report of
sexual harassment may be deemed “deliberately indifferent” where its ”response to the
harassment is . . . clearly unreasonable in light of the known circumstances”); Vance, 231
F.3d at 260 (stating that a “minimalist response is not within the contemplation of a
reasonable response” to a report of student-on-student harassment). A reasonable jury
could conclude that temporarily suspending Gongbay and Edwards from the football
team during the off season did not constitute reasonable and appropriate discipline for
having participated in a “gangbang” with Plaintiff when she was clearly incapacitated,
and (in Gongbay’s case) having lied to UNMPD during its investigation of the matter.
See S.S., 177 P.3d at 739 (stating that deliberate indifference may be indicated where the
school fails “to meaningfully and appropriately discipline the student-harasser”). A
reasonable jury could also find that Defendant’s decision to permit Gongbay, who was
reported to have sexually assaulted two women prior raping Plaintiff, and Edwards, who
was known to have participated in raping Plaintiff, to remain on campus, without being
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subjected to meaningful discipline could lead Gongbay, Edwards, and other student
athletes to believe that they could perpetrate acts of student-on-student sexual harassment
without facing serious consequences. See id. (“It constitutes a deliberately indifferent
response if the harasser and other students are left to believe that the harassing behavior
has the tacit approval” of the school.). In sum, the allegations in Plaintiff’s first
amended complaint, which the Court assumes to be true, satisfy the “deliberate
indifference” element required to state a Title IX claim. See Murrell, 186 F.3d at 1246
(enumerating the elements required to state a Title IX claim).
2. Harassment that Was so Severe, Pervasive, and Objectively Offensive
That it Deprived Plaintiff of the Educational Benefits of the School.
Defendant argues that, even assuming that its response to Plaintiff’s report of
sexual harassment demonstrated deliberate indifference, Plaintiff’s claim fails because
she has not alleged that its deliberate indifference caused her to suffer further
discrimination. [Doc. 8 p. 17-20]
A school may not be held liable for damages under Title IX “unless its deliberate
indifference subjects its students to harassment. That is, the deliberate indifference must,
at minimum, cause students to undergo harassment or make them liable or vulnerable to
it.” Davis, 526 U.S. at 644-45 (alterations omitted). To “subject” a student to
harassment means “to cause [her] to undergo” the harassment, or to “expose” or to make
her “vulnerable” to it. Id. at 645. The harassment must be “so severe, pervasive and
objectively offensive that it can be said to deprive the victims of access to the educational
opportunities or benefits provided by the school.” Id. at 650.
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A single act of severe sexual harassment—particularly a rape (Plaintiff
characterizes the incident as a gang 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.
Vance, 231 F.3d at 259 n.4; SS., 177 P.3d at 742-43. In the context of Title IX, “there is
no ‘one free rape’ rule”; and a victim does not have to be raped twice before the school is
required to respond appropriately. SS., 177 P.3d at 741. A jury may conclude that
harassment is severe, pervasive, and objectively offensive from evidence that a student
who is known to have perpetrated a sexual assault upon another student is permitted to
continue attending the same school as the victim, leaving open the potential for
interactions between the two. Doe ex rel. Doe v. Derby Bd. of Educ., 451 F.Supp.2d
438, 444 (D. Conn. 2006). Further, “a reasonable jury [may] 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.” Kelly v. Yale Univ., No. 3:01-CV-1591, 2003
WL 1563424, at *3 (D. Conn. 2003). Thus, where the victim of student-on-student
sexual harassment whose report of a rape was met with deliberate indifference by the
school voluntarily withdraws from school to avoid exposure to further harassment, the
voluntary withdrawal may yet support a finding that the school “effectively barred her
access to an educational opportunity[.]” Williams v. Bd. of Regents of Univ. Sys. of
Georgia, 477 F.3d 1282, 1296-98 (11th Cir. 2007) (alterations omitted) (reasoning that
where a student had been raped by three student athletes, including one whose past sexual
conduct was known to the university, and the university’s response did not assuage her
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concerns of a future attack, her decision to withdraw from the university was “reasonable
and expected”).
As discussed earlier a reasonable jury could conclude that Defendant’s response to
Plaintiff’s report of the incident of sexual harassment, which she characterizes as a rape,
was clearly unreasonable. Plaintiff alleges that as a result of Defendant’s deliberate
indifference, including its “deliberate decision to do nothing to eliminate the sexual
assault risks posed by Gongbay and Edwards, [or] to prevent its recurrence[,]” her safety
was at risk if she continued to attend UNM. [Doc. 3 ¶¶ 95, 97 (s)] She also alleged that
“psychologically, emotionally[,] and out of fear for her own physical safety, [she] could
not return to UNM” for the remainder of the 2014 spring semester or for the fall 2014
semester. [Doc. 3 ¶¶ 89, 92] From these facts, a reasonable jury could find that
Defendant’s deliberately indifferent response to the report of sexual harassment left
Plaintiff exposed or vulnerable to a recurrence of harassment by Gongbay and Edwards
who may have been led to believe that such behavior was “tacitly” permitted. See S.S.,
177 P.3d at 739 (stating that deliberate indifference is indicated where the school’s
response to a report of harassment leads the harasser to believe that harassment has the
school’s tacit approval). A reasonable jury could also find that Plaintiff’s decision to
withdraw from UNM rather than accede to these risks was the reasonable and expected
outcome of Defendant’s response to her report of sexual harassment, and that under these
circumstances Defendant effectively deprived Plaintiff of access to the educational
opportunities or benefits provided by UNM. See Williams, 477 F.3d 1282, 1296-98

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Defendant argues that Plaintiff’s allegations and her argument in response to the
Motion to Dismiss show that Plaintiff seeks to hold Defendant liable for its failure to
“immediately banish[] the accused harasser[s] from its campus.” [Doc. 16 p. 6]
Building on that premise, Defendant argues that Plaintiff’s claim fails because our Tenth
Circuit Court of Appeals has upheld summary judgment in favor of schools in two cases,
namely, Rost, 511 F.3d 1114; and Escue v. Northern Oklahoma College, 450 F.3d 1146
(10th Cir. 2006), in which the accused harasser was permitted to remain on campus
following the victim’s report of harassment. [Doc. 16 p. 6-7] The Court does not share
Defendant’s view that Plaintiff’s First Amended Complaint and her arguments in
response to Defendant’s Motion to Dismiss claim that Defendant’s liability under Title IX
stems from its decision not to “banish” Gongbay and Edwards from UNM. Plaintiff’s
allegations and arguments are that Defendant failed to take any meaningful disciplinary
action against the students who had sex with her while she was incapacitated thereby
exposing and making her vulnerable to further harassment that effectively deprived her of
an educational opportunity. Thus, while “banishing” (or expelling or suspending)
Gongbay and Edwards may have been one of many disciplinary tools available to
Defendant, Plaintiff’s First Amended Complaint does not claim that by failing to take that
particular action, Defendant violated Title IX. See Davis, 526 U.S. at 648 (stating that
victims of student-on-student sexual harassment do not have “the right to make particular
remedial demands”).
Nor is the Court persuaded that the Plaintiff’s claim so closely resembles the facts
in Rost and Escue that, pursuant to those cases, dismissal of Plaintiff’s First Amended
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Complaint is clearly required. Although the victims in Rost and Escue reported severe
forms of sexual harassment, the allegations in Plaintiff’s complaint set this case apart
from the circumstances described in Rost and Escue. See Rost, 511 F.3d at 1117-18
(describing incidents of student-on-student sexual harassment that occurred off school
grounds including boys coercing the victim into performing various sex acts, and phoning
the victim to pester her for oral sex); Escue, 450 F.3d at 1149-51 (describing harassing
behaviors perpetrated upon a student by her professor, including acts of touching and
sexual comments).
In her complaint Plaintiff alleges that, while she was incapacitated, possibly as the
result of having been drugged, she was transported by a football player from an oncampus gathering to an off-campus location where, immediately upon her arrival, she
was put in a car by three men, including two UNM football players. The three men
“gang raped” her inside the vehicle. The moments preceding the alleged “gang rape”
were memorialized on a video that announced an impending “gangbang,” and the video
was disseminated via social media [Doc. 3 ¶ 87] The incident left her with documented
bruises and injuries, and with DNA from each of the three men on her body. “Rape is
unquestionably among the most severe forms of sexual harassment[.]” S.S., 177 P.3d at
737 (quoting Little v. Windermere Relocation, Inc., 301 F.3d 958, 967-68 (9th Cir.
2002)); see also Doe ex rel. Doe., 451 F.Supp.2d at 444; Kelly 2003 WL 1563424, at *3
(recognizing that the possibility of on-campus encounters specifically between rapists and
their victims can deprive the victims of educational opportunities). Without minimizing
the experiences of the plaintiffs in Rost and Escue, the Court does not believe that the
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question in the present case— whether Defendant’s response to the Plaintiff’s report of
sexual harassment was “not clearly unreasonable”— may be resolved as a matter of law
by comparing it to the responses of the schools in Rost and Escue.
CONCLUSION
The Court concludes that Plaintiff’s complaint alleges facts from which a
reasonable jury could find that Defendant violated Title IX.
IT IS THEREFORE HEREBY ORDERED that Defendant The
University of New Mexico Board of Regents’ Motion to Dismiss and Memorandum Brief
in Support of Defendant’s Motion to Dismiss [Docs. 7-8] is DENIED.
IT IS SO ORDERED this 11th day of January, 2016 in Albuquerque, New
Mexico.

___________________________________
M. CHRISTINA ARMIJO
Chief United States District Judge

 

           

 
 
 
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EXHIBIT 

Case 2:16-cv-02256-JAR-GEB Document 32-2 Filed 07/01/16 Page 2 of 12
Page 1

8 of 8 DOCUMENTS
Go to Supreme Court Opinion

Go to Oral Argument Transcript

AURELIA DAVIS, AS NEXT FRIEND OF LASHONDA D., PETITIONER v.
MONROE COUNTY BOARD OF EDUCATION, ET AL.
No. 97-843
SUPREME COURT OF THE UNITED STATES
1997 U.S. Briefs 843; 1998 U.S. S. Ct. Briefs LEXIS 776
October Term, 1998
November 10, 1998
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT.
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING
PETITIONER
COUNSEL: [**1] SETH P. WAXMAN, Solicitor General, Counsel of Record
BILL LANN LEE, Acting Assistant Attorney, General
BARBARA D. UNDERWOOD, Deputy Solicitor General
BETH S. BRINKMANN, Assistant to the Solicitor, General
DENNIS J. DIMSEY
LINDA F. THOME, Attorneys
Department of Justice, Washington, D.C. 20530-0001, (202) 514-2217
[*I] QUESTION PRESENTED
Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., provides that "no 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."
The question presented is:
Whether a school board can be liable under Title IX for responding with deliberate indifference to a student's
repeated complaints about severe and pervasive sexual harassment by another student in the course of the school's
education programs and activities. [*III]
INTERESTS: INTEREST OF THE UNITED STATES

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Page 2
1997 U.S. Briefs 843, *III; 1998 U.S. S. Ct. Briefs LEXIS 776, **1

The United States Department of Education administers federal financial assistance to education programs and
activities and is authorized by Congress to effectuate Title IX in those programs and activities. 20 U.S.C. 1682. Pursuant
to that authority, the Department, through its Office for Civil Rights (OCR), has promulgated regulations effectuating
Title IX, 34 C.F.R. Pt. 106, and policy guidance on the prohibition of sexual harassment under Title IX, 62 Fed. Reg.
12,034 (1997). The Department of Justice, through its Civil Rights Division, coordinates the implementation and
enforcement of Title IX by the Department of Education and other executive agencies. Exec. Order No. 12,250, 45 Fed.
Reg. 72,995 (1980); 28 C.F.R. 0.51 (1998). The Department of Justice also may enforce Title IX in federal court in
cases referred to it by the Department of Education. At the Court's invitation, the United States filed a brief at the
petition stage of this case. The United States also participated as amicus curiae in the court of appeals before the panel
and the en banc court.
STATEMENT
1. a. Petitioner filed this action alleging, inter alia, a violation of Title IX of the Education Amendments of 1972, 20
U.S.C. 1681 et seq., and seeking damages and injunctive relief on behalf of her daughter, LaShonda D., against
respondent Monroe County Board of Education. n1 Petitioner alleges that the Board of Education, a recipient of federal
financial assistance, responded with deliberate indifference to repeated complaints made by her and her daughter (then a
fifth-grade student in a school administered by respondent) about severe sexual harassment of her daughter over a
period of more than five months by a male classmate, G.F. Petitioner alleges that respondent's deliberate indifference to
the complaints of sexual harassment perpetuated an intimidating, hostile, offensive, and abusive school environment
that limited her daughter's ability to participate in and to benefit from the education program, in violation of
respondent's obligations under Title IX. Pet. App. 93a-101a.
n1 Petitioner's Title IX claims against two individual school officials, her race discrimination claim under
42 U.S.C. 1981, and her various claims under 42 U.S.C. 1983 were rejected below and are not before this Court.
See Pet. App. 2a-3a & n.3.
[**6]
Petitioner alleges that G.F. harassed her daughter on at least eight separate occasions at school and during school
hours, between December 17, 1992, and May 19, 1993. n2 School officials were informed about each of those incidents
by petitioner, her daughter, or both. Pet. App. 95a-97a. G.F. repeatedly attempted to touch LaShonda's breasts and
vaginal area. On one occasion, G.F. rubbed his body against LaShonda in a sexually suggestive manner. Id. at 96a. On
another occasion, G.F. put a door stop in his pants and behaved in a sexually suggestive manner toward LaShonda. Ibid.
G.F. also directed vulgar comments to LaShonda, indicating a desire to have sexual contact with her. Id. at 95a-96a.
After an incident on May 19, LaShonda told petitioner that she "didn't know how much longer she could keep him off
her." Id. at 97a. As a result of that incident, G.F. was charged with and pled guilty to sexual battery. Ibid.
n2 Because petitioner's complaint was dismissed for failure to state a claim, the allegations of the complaint
must be taken as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
After each incident, LaShonda reported G.F.'s behavior to one or more of [**7] her teachers; she complained to at
least three different teachers at the school that G.F. was sexually harassing her in classes or activities under their
supervision. Pet. App. 96a-97a. Petitioner also complained to at least two of her daughter's teachers, and was assured
that the school principal had been notified about the sexual harassment. Ibid. At one point, LaShonda and other girls
who had been sexually harassed by G.F. wanted to go as a group to speak to the principal about the harassment, but
their teacher told them, "If he wants you, he'll call you." Id. at 96a. On or about May 19, petitioner and her daughter
spoke directly to the principal to see what action would be taken about the sexual harassment, but the principal merely
stated: "I guess I'll have to threaten him (G.F.) a little bit harder." Id. at 97a. During that conversation, the principal
asked LaShonda "why she was the only one complaining." Ibid.

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Page 3
1997 U.S. Briefs 843, *III; 1998 U.S. S. Ct. Briefs LEXIS 776, **7

Petitioner alleges that school officials did not discipline G.F. at any time during the period in which he was
harassing LaShonda, despite LaShonda's and petitioner's repeated complaints. Pet. App. 97a. G.F. was not suspended
for this conduct, kept away from LaShonda, [**8] or reprimanded in any other way. Ibid. Moreover, school officials
refused even to take minimal measures to keep G.F. away from LaShonda during a substantial part of that time. For
example, LaShonda's assigned classroom seat was next to G.F. and, although LaShonda asked several times to be
moved to a different seat so that she could prevent contact with G.F., she was not permitted to do so for over three
months. Ibid.
During this entire period, the Board of Education had no policy regarding sexual harassment and had not given its
employees any training or other guidance on how to respond to complaints from students about sexual harassment. Pet.
App. 98a.
As a result of respondent's inaction in response to the complaints about the continuing sexual harassment, a hostile
educational environment persisted at the school, and LaShonda's ability to attend school and to perform her studies and
activities was impeded. Pet. App. 97a. Her ability to concentrate on her school work was affected by her constant efforts
to fend off G.F.'s sexual harassment, and her grades dropped. Ibid. In April 1993, LaShonda's father discovered a
suicide note she had written. Ibid.
Petitioner alleges that respondent [**9] engaged in deliberate indifference and intentional discrimination against
LaShonda that warrants money damages and equitable relief. Petitioner specifically alleges that respondent, in its
"failure to have a policy concerning sexual harassment of students and in [its] failure to respond to the complaints of
this student, was willfully and deliberately indifferent." Pet. App. 98a. She alleges that "the deliberate indifference [of
respondent] to the unwelcome sexual advances of a student upon LaShonda created an intimidating, hostile, offensive
and abus[ive] school environment in violation of Title IX." Id. at 100a. Respondent's "failure to take action resulted in
extreme emotional damage to LaShonda." Id. at 100a-101a. Petitioner asserts that, "had [the school principal]
intervened as was necessary, the injury to LaShonda would have been mitigated and the situation would have been
ended." Id. at 100a. In addition to damages, petitioner sought an injunction requiring respondent "to institute a policy
providing guidance for employees in the event of sexual harassment of students by fellow students," and enjoining
respondent "from discriminating against female students by failing [**10] to respond to complaints of sexual
harassment." Id. at 102a.
b. The district court dismissed petitioner's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief could be granted. Pet. App. 82a-90a. The court recognized that Title IX is enforceable
through an implied cause of action, id. at 88a (citing Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60 (1992)), but
ruled that "sexually harassing behavior of a fellow fifth grader is not part of a school program or activity." Pet. App.
88a. In the court's view, petitioner had not alleged "that the Board or an employee of the Board had any role in the
harassment," and therefore "any harm to LaShonda was not proximately caused by a federally-funded educational
provider." Id. at 88a-89a.
2. a. A divided panel of the Eleventh Circuit reversed the district court's dismissal of the Title IX claim and
remanded for further proceedings. Pet. App. 62a-81a. The panel noted that, fairly construed, petitioner's complaint
alleged that harm to LaShonda was proximately caused by the school officials' "failure to take action to stop the
offensive acts of those over whom [**11] the officials exercised control." id. at 75a, thereby discriminating against
LaShonda and denying her the benefits of the education program on the basis of her sex, id. at 66a. The panel
concluded that "Title IX encompasses a claim for damages due to a sexually hostile educational environment created by
a fellow student or students when the supervising authorities knowingly fail to act to eliminate the harassment." Id. at
73a-74a (citing Franklin, 503 U.S. at 74-75). In such circumstances, "the harassed student has 'be[en] denied the
benefits of, or be[en] subjected to discrimination under' that educational program in violation of Title IX." Pet. App. 75a
(internal quotation marks and brackets in original).
One panel member dissented, arguing that Title IX did not apply because petitioner did not allege that respondent

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or any of its employees had committed an act of harassment against LaShonda. Pet. App. 80a.
b. The Eleventh Circuit granted rehearing en banc, vacated the panel's opinion, and affirmed the district court's
judgment dismissing the complaint. Pet. App. 91a-92a, 1a-45a. The en banc majority construed petitioner's [**12]
complaint to allege that LaShonda had been subjected to hostile environment sexual harassment, that one teacher knew
of at least four instances of harassment, that at least two other teachers and the principal each knew of at least two
incidents of harassment, and that respondent took no action except to threaten G.F. with disciplinary action. Id. at 6a-7a
& n.6. But it concluded that Title IX does not impose upon school officials any obligation "to take measures sufficient
to prevent a non-employee from discriminating" on the basis of sex against a student. Id. at 22a. The en banc court
characterized petitioner's claim as "seeking direct liability of the Board for the wrongdoing of a student." Id. at 10a. The
en banc court reasoned that Congress enacted Title IX under its Spending Clause power and that Title IX gave
educational institutions that receive federal funds notice that "they must prevent their employees from themselves
engaging in intentional gender discrimination," id. at 21a, but not that they could be liable for failing to prevent one
student from sexually harassing another, id. at 19a. n3
n3 The author of the opinion for the en banc court, Judge Tjoflat, included two sections that were not joined
by any other member of the court: a discussion of the due process rights of alleged harassers and possible suits
by disciplined harassers, Pet. App. 22a-29a (Part III.B), and a discussion of the possible number of lawsuits
involving harassment by fellow students, id. at 30a-32a (Part III.C). See Id. at 33a; id. at 36a & n.1 (opinion of
Carnes, J., concurring specially).
[**13]
Four members of the court dissented, Pet. App. 46a-61a, arguing that the plain language of Title IX makes it clear
that "liability hinges upon whether the grant recipient maintained an educational environment that excluded any person
from participating, denied them benefits, or subjected them to discrimination," because of sex, id. at 47a. The dissent
noted that this construction of the statute is supported by the interpretation of the Department of Education, Office for
Civil Rights (OCR), an agency charged with enforcing Title IX, which states:
[A] 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. . . . Thus, Title IX does not make a school responsible for
the actions of harassing students, but rather for its own discrimination in failing to remedy it once the
school has notice.
Id. at 48a (quoting Sexual Harassment Guidance, 62 Fed. Reg. 12,034, 12,039-12,040 (1997)). The dissent disagreed
with the majority's reliance on the absence of a discussion of student-on-student [**14] harassment in the legislative
history of Title IX because a failure to mention it in congressional debate "does not mean that it was not encompassed
within Congress's broad intent of preventing students from being 'subjected to discrimination' in federally funded
educational programs." Pet. App. 50a. The dissent pointed out that, under the majority's narrow interpretation, the cause
of action under Title IX recognized by the Court in Franklin would not be supported because it also was not mentioned
during congressional debate. Ibid. The dissent also reasoned that sufficient notice was provided to fund recipients to
satisfy the Spending Clause prerequisite for damages under Title IX, because the plain meaning of the statute
"unequivocally imposes liability on grant recipients for maintaining an educational environment in which students are
subjected to discrimination." Id. at 51a. Here, where petitioner alleges that at least three teachers and the school
principal had actual knowledge of the harassment and took no meaningful action to end it, the dissenters believed that
the district court's dismissal of the Title IX claims against the Board should have been reversed. Id. at 61a. [**15]
TITLE: BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONER
SUMMARY OF ARGUMENT

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The court of appeals' ruling completely forecloses a private right of action under Title IX of the Education
Amendments of 1972, 20 U.S.C. 1681 et seq., whether for damages or equitable relief, for a school district's failure to
respond to known sexual harassment of a student by another student. Such a categorical exclusion is inconsistent with
this Court's decision in Gebser v. Lago Vista Independent School District, 118 S. Ct. 1989 (1998), and with the plain
meaning of the statute.
The lower courts erred in dismissing petitioner's Title IX claims. In Gebser, this Court held that a school district
receiving federal financial assistance may be held liable in a private action for damages under Title IX as a result of
sexual harassment of a student by a teacher if "an official who at a minimum has authority to address the alleged
discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in
the recipient's programs" and responds with deliberate indifference. 118 S. Ct. at 1999. [**16] Under Gebser, a
recipient's liability for damages in those circumstances is imposed not for the actions of the employee, based upon
agency principles, but for the recipient's own refusal to remedy the hostile environment created by sexual harassment.
That standard is equally applicable to a recipient's refusal to remedy a hostile environment created by repeated instances
of sexual harassment of a student by another student. Because petitioner alleged that her daughter was subjected to
repeated instances of sexual harassment at school, that the school's principal and at least three teachers had actual
knowledge of the harassment, and that they responded to her complaints with deliberate indifference, she has stated a
claim for damages under Gebser.
Moreover, to the extent petitioner seeks equitable relief rather than damages, she may be entitled to relief even if
her proof fails to meet the Gebser standard. The requirement of actual knowledge and deliberate indifference responds
to concerns about subjecting a fund recipient to potential liability for money damages where the recipient is unaware of
the discrimination in its programs and would be willing to institute prompt corrective [**17] measures. Because
equitable relief does not present the same concerns, petitioner may establish a violation of Title IX and entitlement to
equitable relief if she can show that LaShonda was subjected to a hostile environment in the school's programs or
activities, respondent's officials knew or should have known of the harassment, and they failed to take prompt,
appropriate corrective action. See Department of Education, Office for Civil Rights, Sexual Harassment Guidance, 62
Fed. Reg. 12,034, 12,039 (1997). The equitable relief petitioner seeks--an injunction requiring respondent to institute a
policy providing guidance to its employees in the handling of sexual harassment complaints about fellow students, and
prohibiting respondent from continuing to discriminate by failing to respond to sexual harassment complaints--requires
nothing more of respondent than is already required by the statute and the Department of Education's longstanding Title
IX regulations. Respondent could be required by the Department of Education to take such actions to bring itself into
compliance with the statute and regulations as part of the statutorily-mandated administrative effort to obtain [**18]
compliance through voluntary means, 20 U.S.C. 1682, in order to avoid the ultimate filing of an administrative action to
terminate federal financial assistance. Petitioner should likewise be able to obtain equitable relief in the private right of
action that has been judicially implied.
ARGUMENT
PETITIONER HAS STATED A CLAIM UNDER TITLE IX FOR BOTH DAMAGES AND EQUITABLE
RELIEF
A. Title IX, As Construed By This Court In Gebser, Provides An Implied Private Right Of Action For
Damages Based On A Fund Recipient's Deliberate Indifference To Repeated Complaints About Severe And
Pervasive Sexual Harassment Of A Student By Another Student In The Recipient's Education Programs And
Activities.
1. Title IX provides that "no 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." 20 U.S.C. 1681. The "discrimination" prohibited by Title IX includes sexual harassment. Gebser,
118 S. Ct. at 1995 (citing Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998, 1002-1003 (1998)); [**19]

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Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75 (1992). An employee is "subjected to discrimination under" a
federally funded education program in violation of Title IX if she is "forced to work under more adverse conditions"
than male employees. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982); cf. Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993) ("disparate treatment of men and women in employment * * * includes requiring people to work in a
discriminatorily hostile or abusive environment"). Similarly, when a student is forced to attend school in a hostile or
intimidating environment caused by pervasive sexual harassment known to the recipient, and that hostile educational
environment adversely affects the student's ability to participate fully in or benefit from the education program in which
the student is enrolled, the student is "excluded from participation in" and "denied the benefits of" the education
program, and is "subjected to discrimination under" the program, and this is so whether the harasser is a teacher or a
fellow student.
In Gebser, this Court addressed the circumstances in which an educational [**20] institution receiving federal
funds may be held liable for damages in an implied private right of action under Title IX as a result of sexual
harassment of a student by a teacher. The Court concluded that damages could be recovered in such a case only when
"an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures
on the recipient's behalf has actual knowledge of discrimination in the recipient's programs" and responds with
deliberate indifference. 118 S. Ct. at 1999. The Court reasoned that, because Title IX's express remedial scheme for
permitting termination of the federal funds received by a school through administrative enforcement is predicated on
notice and an opportunity for the recipient to rectify a violation, Congress did not intend to subject recipients of federal
financial assistance to damages liability in a private action when the recipient "was unaware of discrimination in its
programs and is willing to institute prompt corrective measures." Ibid.
The Gebser Court's ruling about the educational institution's potential liability for damages did not depend upon the
harasser's status as an employee. [**21] In fact, the Court expressly rejected arguments that liability for damages could
be based on agency principles of respondeat superior or constructive notice that result from the employer-employee
relationship. 118 S. Ct. at 1995, 1997. Rather, the Court emphasized that the educational institution's liability for
damages rests on its own "official decision * * * not to remedy the violation," not on the independent actions of its
harassing employees. Id. at 1999.
It follows from that analysis that when school officials know that severe or pervasive sexual harassment of a
student is occurring in their education programs or activities, their decision not to exercise their authority to remedy the
harassment perpetuates a hostile educational environment and they may be held liable in damages for that violation of
Title IX, whether the student's harasser is a school employee or another student. In either case, the school officials are
ultimately responsible for providing the benefits of the education programs and activities to all students without
subjecting them to discrimination or exclusion on the basis of sex. In either case, the school officials have [**22] the
authority to institute corrective measures, whether by disciplining, reassigning, excluding, or otherwise inducing a
change in the behavior of the offender, or by offering the victim an alternative assignment. In either case, the official
decision not to remedy the hostile educational environment means that the student is required to attend school in a
discriminatorily hostile or abusive environment. This is particularly so in the case of elementary and secondary students
who are subject to compulsory attendance laws, and frequently have no choice about what school they attend. Thus,
when school officials respond with deliberate indifference to a known sexually hostile or abusive environment in an
education program or activity, they subject the harassed student to that environment in violation of Title IX, whether the
harasser is a school employee or another student.
The identity of the harasser as a student rather than a teacher is irrelevant to the theory of liability set forth in
Gebser. Indeed, the identity of the harasser may not always be known, as when a student finds an unrelenting barrage of
sexually denigrating graffiti on his or her locker or athletic equipment, [**23] or finds sexually explicit cartoons
referring to the student posted daily on the school walls. The harassed student may suffer the same impairment of
educational opportunity, and the school officials may manifest the same deliberate indifference to the student's plight,
whether the harassers are fellow students or school employees.

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The court of appeals erroneously interpreted petitioner's claim as "seeking direct liability of the Board for the
wrongdoing of a student," Pet. App. 10a, and concluded that, unlike Franklin v. Gwinnett County Public Schools, supra,
which it interpreted as holding a school district liable for the actions of its employee, id. at 9a-10a, the school district
could not be held liable in this case because the harassing student was not an employee, id. at 22a. But Title IX focuses
on the relationship between the student and the education program or activity operated by the Title IX recipient, not on
the identity of the harasser. See Gebser, 118 S. Ct. at 1999-2000; cf. Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57, 66 (1986) (citing Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972)). [**24]
The statute holds the recipient responsible not for the acts of the harassing individuals, but for its "own actions and
inaction in the face of its knowledge that the harassment was occurring." Doe v. Univ. of Illinois, 138 F.3d 653, 662 (7th
Cir. 1998), petition for cert. pending, No. 98-126. n4 Thus, the Department of Education's Title IX Sexual Harassment
Guidance makes clear that "Title IX does not make a school responsible for the actions of harassing students, but rather
for its own discrimination in failing to remedy it once the school has notice." 62 Fed. Reg. at 12,040; see also Doe, 138
F.3d at 667 (noting that Guidance reflects longstanding policy of Department of Education as demonstrated by official
Letters of Finding dating back to 1989 (copies filed in court of appeals below)).
n4 As Judge Easterbrook has observed, "failure to protect pupils from private aggression is a species of
discrimination. This is the original meaning of equal protection of the laws." Doe, 138 F.3d at 678 (statement
respecting the denial of rehearing en banc).
Differences between students and teachers may of course be relevant to determining [**25] an institution's liability
in damages for its failure to respond adequately to incidents of sexual harassment. The words or actions of a child may
not have the same meaning and impact as the words or actions of an adult teacher. Thus, the identity of the harasser and
the social context in which the incident occurs may be relevant to determining whether the harassment is sufficiently
severe, persistent, or pervasive to constitute actionable harassment. See Oncale, 118 S. Ct. at 1002-1003. n5 Similarly,
because schools' means of controlling the actions of employees differ from their means of controlling the actions of
students, the harasser's status in relation to the school may be relevant in determining whether officials' response to
harassment was deliberately indifferent. n6 Thus, although such issues will need to be resolved on a case-by-case basis,
differences between students and employees do not justify the court of appeals' rule that, as a categorical matter, an
educational institution has no obligation under Title IX to respond to complaints of sexual harassment because the
harasser is another student.
n5 As the initial panel below emphasized, "a hostile environment in an educational setting is not created by
a simple childish behavior or by an offensive utterance, comment, or vulgarity." Pet. App. 76a. The panel
recognized that a hostile educational environment is created only "'when the [educational environment] is
permeated with 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter
the conditions of the victim's [environment] and create an abusive environment.'" Id. at 76a-77a (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993), quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986)) (citation omitted).
Nor does every interaction between students occur "under [the] education program or activity receiving
Federal financial assistance." 20 U.S.C. 1681. A recipient's liability for failing to respond appropriately is
limited to student-on-student sexual harassment that "takes place while the students are involved in school
activities or otherwise under the supervision of school employees." Doe v. Univ. of Illinois, 138 F.3d 653, 661
(7th Cir. 1998), petition for cert. pending, No. 98-126.
[**26]

n6 As the Seventh Circuit explained in Doe, 138 F.3d at 667-668, school officials who learn of sexual

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harassment must choose "from a range of responses," and "it should be enough to avoid Title IX liability if
school officials investigate aggressively all complaints of sexual harassment and respond consistently and
meaningfully when those complaints are found to have merit." See 62 Fed. Reg. at 12.042.
2. The court of appeals erred in ruling that a school district cannot be held responsible under Title IX for failing to
respond to harassment of one student by another because, in the court of appeals' view, Title IX gave recipients of
federal funds notice only that "they must prevent their employees from themselves engaging in intentional gender
discrimination," Pet. App. 21a, and not that fund recipients could be liable for failing to prevent one student from
sexually harassing another, ibid. The court's rationale for distinguishing between the two situations was based on its
view that a fund recipient is directly liable as an employer for its employees' discrimination, but that a recipient cannot
be held directly liable for a student's wrongdoing. [**27] Id. at 10a. That distinction cannot, however, survive Gebser's
explanation that a fund recipient can be held responsible for harassment by teachers not because of vicarious
responsibility for the acts of employees but only because of its inaction in response to known sexual harassment of one
of its students. Thus, following Gebser, there is no support for the distinction drawn by the court of appeals.
Moreover, the antidiscrimination mandate of Title IX is clear, and it provides fund recipients with ample notice of
their obligations under the statute. In this respect, Title IX stands in sharp contrast with the merely precatory language
that was held insufficient to impose an obligation on fund recipients in Pennhurst State School and Hospital v.
Halderman, 451 U.S. 1, 17 (1981). Cf. School Bd. of Nassau County v. Arline, 480 U.S. 273, 286 n.15 (1987) (noting
that "the contrast between the congressional preference at issue in Pennhurst and the antidiscrimination mandate of §
504 [of the Rehabilitation Act of 1973, 29 U.S.C. 794] could not be more stark"). As Gebser recognized, Title IX put
fund recipients on notice that, as a [**28] condition of federal funding, they must respond appropriately to known
sexual harassment of students in their programs and activities that excludes students from participating in, or denies
them the benefits of, those education programs and activities. As this Court observed in Bennett v. Kentucky
Department of Education, 470 U.S. 656, 666, 669-670 (1985), the government's failure to "prospectively resolve every
possible ambiguity concerning particular applications" of the statutory requirements of a federal funding education
program did not undermine the adequacy of notice given to a funding recipient concerning its statutory obligations,
particularly because "grant recipients had an opportunity to seek clarification of the program requirements." And, as the
Seventh Circuit correctly ruled, prior to Gebser:
If, as alleged, school * * * officials knew about the [student-on-student] harassment and intentionally
failed, and indeed flatly refused in some instances, to take steps to address it, then the plea that the
institution was not "on notice" that such failure could subject it to Title IX liability rings hollow.
Doe, 138 F.3d at 663. [**29]
In any event, Gebser's requirement that, for purposes of recovering damages, a plaintiff must prove not only that a
recipient knew of the sexual harassment, but also was deliberately indifferent to it, ensures that a recipient is liable for
monetary damages only for its own deliberate perpetuation of discrimination prohibited by statute.
3. Petitioner's allegations meet the Gebser standard. Petitioner alleges that her daughter was subjected to repeated
incidents of sexual harassment by another student while at school, Pet. App. 95a-97a, that three teachers and the
principal of the school had actual knowledge of the harassment, id. 96a-98a, that the harassment occurred while the
students were "under the supervision of teachers," id. at 96a, that the principal "was responsible for supervising
discipline of the students in his school," id. at 98a, and that respondent responded with deliberate indifference to her
complaints, id. at 100a. Thus, the complaint fairly alleges that "official[s] of the recipient entity with authority to take
corrective action to end the discrimination" had actual knowledge of the harassment and failed to act to stop it. Gebser,
118 S. Ct. at 1999. [**30] Thus, the lower courts erred in dismissing petitioner's complaint.
B. Petitioner's Allegations Need Not Meet The Gebser Standard To Support A Claim For Equitable Relief

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Even if petitioner's proof on remand fails to meet the Gebser standard of actual knowledge and deliberate
indifference, petitioner may nonetheless be able to establish an entitlement to equitable relief for a Title IX violation
under a less demanding standard. Unlike the plaintiff in Gebser, who sought only damages, petitioner here also sought
an injunction ordering respondent "to institute a policy providing guidance for employees in the event of sexual
harassment of students by fellow students" and enjoining respondent "from discriminating against female students by
failing to respond to complaints of sexual harassment." Pet. App. 102a. Entry of the injunction would, in essence,
command respondent to comply with existing legal obligations under the federal statute and regulations; therefore, it
does not raise the same concerns as did a potential award of damages in Gebser.
Injunctive and other equitable relief has been available in a private action under Title IX, without the showing of
actual knowledge [**31] and deliberate indifference required by Gebser as a prerequisite for damages, since this Court
first recognized a private right of action in 1979. Cannon v. Univ. of Chicago, 441 U.S. 677, 705 & n.38, 710 n.44,
711-712 (1979); see Gebser, 118 S.Ct. at 1997-1998 (citing same). Unlike damages, equitable relief does not raise the
Court's "central concern" under the Spending Clause n7 that a federal fund recipient be on notice of its exposure to
liability for a monetary award. Gebser, 118 S. Ct. at 1998 (discussing central concern underlying Pennhurst, Franklin,
and Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983)). And unlike damages for past violations, equitable
relief that is a condition on future funding can be avoided by the recipient by withdrawing from the federal funding
program.
n7 Although Franklin left open the question whether Title IX was enacted exclusively pursuant to the
Spending Clause, 503 U.S. at 75 n.8, other decisions of this Court reflect the view that Title IX (like Title VI and
Section 504 of the Rehabilitation Act, which are similar federal funding statutes with nondiscrimination
conditions) was enacted pursuant to Section 5 of the Fourteenth Amendment. See Mississippi Univ. for Women
v. Hogan, 458 U.S. 718, 732 (1982) (assuming that Title IX is Section 5 legislation); Cannon v. Univ. of
Chicago, 441 U.S. 677, 686 n.7 (1979) (noting Congress's reference to its enforcement responsibilities under the
Fourteenth Amendment as justification for including Titles VI and IX in the amendment to the Civil Rights
Attorneys Fees Awards Act of 1976, 42 U.S.C. 1988); cf. Welch v. Texas Dep't of Highways & Pub. Transp.,
483 U.S. 468, 472 n.2 (1987) (Section 504); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 244 n.4 (1985)
(Section 504); United Steelworkers v. Weber, 443 U.S. 193, 206 n.6 (1979)(contrasting Title VI with Title VII,
which was "not intended to incorporate and particularize the commands of the Fifth and Fourteenth
Amendments"); United States v. Fordice, 505 U.S. 717, 732 n.7 (1992) (in context of dismantling former dual
system of higher education, protections of Title VI extend no further than the Fourteenth Amendment).
[**32]
Moreover, this distinction between the standard for damages and the standard for injunctive relief is consistent with
the analysis, set forth in Gebser, that the express statutory scheme for administrative enforcement provides guidance for
inferring congressional intent with regard to the implied private right of action. Title IX expressly creates an
enforcement mechanism that anticipates and encourages resort to equitable remedies before the recipient has manifested
the extreme intransigence that warrants resort to the ultimate administrative sanction of terminating federal funds.
The administrative enforcement scheme created by Congress begins with notice to the recipient of its violation. 20
U.S.C. 1682. n8 An agency can take further action only after it determines that "compliance cannot be secured by
voluntary means." Ibid. An agency's efforts to obtain compliance by voluntary means may include a variety of equitable
solutions. The Department of Education's longstanding regulations, promulgated pursuant to express authority delegated
by Congress to effectuate Title IX (see 20 U.S.C. 1682), n9 provide that administrative [**33] compliance efforts may
include conditioning a recipient's continued funding on its providing equitable relief to a victim of discrimination. 34
C.F.R. 106.3. The Court in Gebser expressly recognized the availability of such equitable relief under the administrative
scheme. 118 S. Ct. at 1998 (citing 34 C.F.R. 106.3, as well as North Haven, 456 U.S. at 518, where agency conditioned
continued funding on reinstatement of employee who had been subjected to sex discrimination). In fact, the Department
of Education's regulations require that each potential recipient submit to the Department, along with its application for

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federal financial assistance, an "assurance of compliance" stating that its education programs and activities will be
operated in compliance with the Department's regulations and that it will commit itself to, inter alia, "take whatever
remedial action is necessary in accordance with § 106.3(a) to eliminate existing discrimination on the basis of sex or to
eliminate the effects of past discrimination." 34 C.F.R. 106.4(a). Such equitable relief may also include, in [**34] the
case of a sexually hostile environment created by the sexual harassment of a student by a teacher, "the offending
teacher's resignation and the district's institution of a grievance procedure for sexual harassment complaints." Gebser,
118 S. Ct. at 1998 (noting that, in Franklin, 503 U.S. at 64 n.3, the Department of Education had identified a Title IX
violation but concluded that the recipient had come into compliance when the offending teacher resigned and the
recipient instituted a sexual harassment grievance procedure). n10
n8 The Department of Education's standard for establishing a violation of Title IX in a sexual harassment
case involving student-on-student harassment requires a showing that:
(i) a hostile environment exists in the school's programs or activities, (ii) the school knows or
should have known of the harassment, and (iii) the school fails to take immediate and appropriate
corrective action.
62 Fed. Reg. at 12,039; id. at 12,037 ("Constructive notice is applicable only if a school ignores or fails to
recognize overt or obvious problems of sexual harassment. Constructive notice does not require a school to
predict aberrant behavior.") When school officials know or should know that a sexually hostile environment
exists in their education programs or activities, their failure to exercise their authority to take appropriate
corrective action subjects the victim to discrimination, and may deny her the benefits of its education programs
and activities in violation of Title IX. That rationale is consistent with the Department's longstanding
investigative guidance on racial harassment. See 59 Fed. Reg. 11,448-11,454 (1994); id. at 11,449. Although,
under Gebser, a damages award would not be appropriate without proof of actual knowledge and deliberate
indifference, equitable relief may be warranted for the reasons discussed in this brief.
[**35]

n9 Pursuant to Section 431(d)(1) of the General Education Provisions Act, as added by Education
Amendments of 1974, Pub. L. No. 93-380, § 509(a)(2), 88 Stat. 567, 20 U.S.C. 1232(d)(1) (1970 & Supp. IV
1974), these regulations were submitted to Congress when they were issued on June 4, 1975, by the Department
of Health, Education, and Welfare, 40 Fed. Reg. 24,128 (1975), and did not become effective until 45 days later,
after Congress failed to exercise its authority to disapprove them during that period, see 45 C.F.R. Pt. 86 (1975);
see also North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 531-532 (1982). Because of this unique history, the
Court has accorded the Title IX regulations particular deference as an interpretation of the statute. See Grove
City College v. Bell, 465 U.S. 555, 567-568 (1984).
n10 The Department of Education's regulations require that federal fund recipients notify students, parents,
and employees of the Title IX prohibition against sex discrimination in its education programs and activities, 34
C.F.R. 106.9(a), and "adopt and publish grievance procedures providing for prompt and equitable resolution of
student and employee complaints" alleging any violation of Title IX or the regulations, 34 C.F.R. 106.8(b).
Recipients also must designate a Title IX coordinator to handle complaints and investigations and identify that
person to all students and employees as the person to whom questions about Title IX should be referred. 34
C.F.R. 106.8(a), 106.9(a). Although violation of the grievance procedure regulations "does not itself constitute
'discrimination' under Title IX," Gebser, 118 S. Ct. at 2000, and would not satisfy the requirements for a
damages award, evidence of such a violation, as alleged by petitioner in this case, Pet. App. 98a, could warrant
injunctive relief in a private action if it was shown that it contributed to the plaintiff's injury. The Department of
Education has detailed the features of an effective nondiscrimination policy and grievance process, 62 Fed. Reg.

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1997 U.S. Briefs 843, *III; 1998 U.S. S. Ct. Briefs LEXIS 776, **35

at 12,044-12,045, and has emphasized that they provide schools with not only an effective means of responding
to sexual harassment, but also "an excellent mechanism to be used in their efforts to prevent sexual harassment
before it occurs," id. at 12,038.
By contrast, evidence that a fund recipient has in place an effective and adequately publicized policy and
grievance procedure may constitute an affirmative defense in a Title IX suit if the recipient establishes that the
plaintiff suffered avoidable harm because she unreasonably failed to avail herself of the preventive and remedial
measures. See Gebser, 118 S. Ct. at 2007 (Ginsburg, J., joined by Souter, Breyer, JJ., dissenting).
[**36]
Only after such efforts at achieving compliance through voluntary and equitable solutions have failed, can an
agency commence administrative action to terminate federal funding. 20 U.S.C. 1682. In addition, before taking action
to terminate, or refuse to grant or continue, federal financial assistance, the agency must afford the recipient an
opportunity for a hearing and the agency must make an express finding on the record of the recipient's failure to comply
with the relevant statutory or implementing regulatory requirement. Ibid.
Thus, it is clear that, under the administrative enforcement scheme, a violation of Title IX may trigger an obligation
on the part of the recipient to take remedial action before the recipient has demonstrated the extreme intransigence
required to terminate funding, i.e., the showing that the Gebser Court analogized to deliberate indifference. See 118 S.
Ct. at 1999. A plaintiff in a private enforcement action should likewise be entitled to equitable relief without a showing
of deliberate indifference. As this Court recognized in Cannon, 441 U.S. at 705-706, because of the limited government
resources [**37] available for the enforcement of Title IX, "the award of individual relief to a private litigant who has
prosecuted her own suit is not only sensible but is also fully consistent with--and in some cases even necessary to--the
orderly enforcement of the statute." See also id. at 706-708 & nn. 41, 42.
CONCLUSION
The judgment of the court of appeals should be reversed and the case remanded for further proceedings.
Respectfully submitted.
SETH P. WAXMAN, Solicitor General
BILL LANN LEE, Acting Assistant Attorney, General
BARBARA D. UNDERWOOD, Deputy Solicitor General
BETH S. BRINKMANN, Assistant to the Solicitor, General
DENNIS J. DIMSEY, LINDA F. THOME, Attorneys
NOVEMBER 1998