Case 1:17-cv-00870-TSC Document 13 Filed 07/03/17 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANE DOE 1, et al.
Plaintiffs,
v.
HOWARD UNIVERSITY,
Defendant.

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Civil Action No. 1:17-cv-00870-TSC

[PROPOSED] ORDER
AND NOW, on this ____ day of _____________, 2017, after consideration of
Defendant Howard University’s Motion to Dismiss Plaintiffs’ Complaint, and any Response(s)
thereto, IT IS HEREBY ORDERED that the Motion is GRANTED. Plaintiffs’ Complaint is
dismissed with prejudice.

BY THE COURT:

TANYA S. CHUTKAN
United States District Judge
Attorneys entitled to be notified of this Order’s entry:
Linda M. Correia (D.C. Bar No. 435027)
Lauren A. Khouri (D.C Bar No. 10282288)
1775 K Street NW, Suite 600
Washington, DC 20006
(202) 602-6500
lcorreia@correiaputh.com
lkhouri@correiaputh.com
Counsel for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANE DOE 1, et al.
Plaintiffs,
v.
HOWARD UNIVERSITY,
Defendant.

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Civil Action No. 1:17-cv-00870-TSC
ORAL ARGUMENT REQUESTED

DEFENDANT HOWARD UNIVERSITY’S MOTION TO DISMISS
PLAINTIFFS’ COMPLAINT
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Howard
University (the “University”) hereby moves the Court to dismiss Plaintiffs’ Complaint for the
reasons set forth in the accompanying Memorandum of Law.

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The University requests oral argument on this Motion pursuant to Local Rule
LCvR 7(f).
Date: July 3, 2017

Respectfully submitted,
/s/ Matthew D. Foster____
Matthew D. Foster
(D.C. Bar No. 503057)
PEPPER HAMILTON LLP
Hamilton Square
600 Fourteenth Street, N.W.
Washington, D.C. 20005-2004
fosterm@pepperlaw.com
Telephone: 202.220.1235
Facsimile: 202.220.1665
Michael E. Baughman, Esq. (pro hac vice)
(PA Bar No. 78690)
baughmam@pepperlaw.com
Hedya Aryani, Esq. (pro hac vice)
(PA Bar No. 306616)
aryanih@pepperlaw.com
PEPPER HAMILTON LLP
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103-2799
(215) 981-4000
Ariana Wright Arnold, Esq.
Senior Associate General Counsel
Howard University
2400 6th Street, N.W.
Johnson Administration Building, Suite 321
Washington, DC 20059
(202) 806-2657
ariana.arnold@Howard.edu
Attorneys for Defendant
Howard University

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANE DOE 1, et al.
Plaintiffs,
v.
HOWARD UNIVERSITY,
Defendant.

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Civil Action No. 1:17-cv-00870-TSC

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT HOWARD UNIVERSITY’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT

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TABLE OF CONTENTS
Page
I.

INTRODUCTION .............................................................................................................. 1

II.

FACTUAL ALLEGATIONS PLEADED IN THE COMPLAINT .................................... 3
A.
B.
C.
D.
E.

Jane Doe 1 ............................................................................................................... 3
Jane Doe 2 ............................................................................................................... 6
Jane Doe 3 ............................................................................................................... 7
Jane Doe 4 ............................................................................................................... 9
Jane Doe 5 ............................................................................................................. 11

III.

LEGAL STANDARDS FOR A MOTION TO DISMISS................................................ 12

IV.

ARGUMENT .................................................................................................................... 13
A.

The Court Should Dismiss Counts I, III, V, VI, and VII Because Plaintiffs
Do Not State a Title IX Claim For Gender Discrimination .................................. 13
1.

Title IX Provides a Damages Claim Only for Intentional Gender
Discrimination: An Institutional Decision Not to Address Known,
Ongoing Harassment. ................................................................................ 13
a.
b.

2.

Plaintiffs Must Plead and Prove that the Defendant was
Deliberately Indifferent................................................................. 15
Plaintiffs Must Plead and Prove that the School’s
Deliberate Indifference Caused the Plaintiffs to Suffer
Additional Severe and Pervasive Harassment .............................. 17

Plaintiffs Plead No Facts Showing that Howard’s Response to
Their Claims Amounts to Deliberate Indifference or Caused Them
to Suffer Additional Harassment. ............................................................. 21
a.

Jane Doe 1 Fails to State a Discrimination Claim ....................... 23
(1)
(2)

b.
c.
d.
e.

Howard is Not Liable for Causing Plaintiff’s
Assault............................................................................... 23
Howard Was Not Deliberately Indifferent to Jane
Doe 1’s Report of Sexual Assault ..................................... 26

Jane Doe 2 Fails to State a Discrimination Claim ....................... 27
Jane Doe 3 Fails to State a Discrimination Claim ....................... 29
Jane Doe 4 Fails to State a Discrimination Claim ....................... 31
Jane Doe 5 Fails to State a Discrimination Claim ....................... 32

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B.

The Court Should Dismiss Counts II (Jane Doe 1), IV (Jane Doe 2), and
VIII (Jane Doe 5) Because Plaintiffs Do Not State a Title IX Claim For
Retaliation ............................................................................................................. 35
1.
2.
3.

V.

Jane Doe 1 Fails to State a Retaliation Claim ........................................... 37
Jane Doe 2 Fails to State a Retaliation Claim ........................................... 38
Jane Doe 5 Fails to State a Retaliation Claim ........................................... 39

RELIEF ............................................................................................................................. 40

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TABLE OF AUTHORITIES
Page(s)
CASES
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ......................................................................................12
Baldwin v. New York State, No. 15-3910,
2017 U.S. App. LEXIS 8261 (2d Cir. May 10, 2017) .............................................................36
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ..........................................................................12
*Bello v. Howard Univ., 898 F. Supp. 2d 213 (D.D.C. 2012) .................................................17, 18
*Blue v. Dist. of Columbia, 850 F. Supp. 2d 16 (D.D.C. 2012) ....................................................18
Brodsky v. Trumbull Bd. of Educ., No. 3:06cv1947 (PCD),
2009 U.S. Dist. LEXIS 8799 (D. Conn. Jan. 30, 2009) ...........................................................21
*Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999) .................................................... passim
*Delbert v. Duncan, 923 F. Supp. 2d 256 (D.D.C. Feb. 14, 2013) .........................................22, 35
Doe v. Bd. of Educ. of Prince George’s County, 982 F. Supp. 2d 641 (D. Md. 2013)............16, 26
Doe v. Blackburn Coll., No. 06-3205,
2012 U.S. Dist. LEXIS 24797 (C.D. Ill. Feb. 27, 2012)....................................................24, 25
Doe v. Claiborne County, Tenn., 103 F.3d 495 (6th Cir. 1996) ....................................................16
* Doe v. Ohio State Univ. Bd. of Regents, No. 2:04-CV-0307,
2006 U.S. Dist. LEXIS 70444 (S.D. Ohio Sept. 28, 2006) ...................................23, 24, 25, 32
Doe v. Willits Unified Sch. Dist., 473 F. App’x 775 (9th Cir. 2012) .............................................15
Escue v. Northern OK College, 450 F.3d 1146 (10th Cir. 2006) ..................................................18
Facchetti v. Bridgewater Coll., 175 F. Supp. 3d 627 (W.D. Va. 2016) ............................16, 17, 27
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712 (2d Cir. 2010) ..............................39
Frazier v. Fairgaven Sch. Comm., 276 F.3d 52 (1st Cir. 2002) ....................................................36
*Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) ............................................. passim
Gillen v. Borough of Manhattan Community College, No. 97 Civ. 3431 (DAB),
1999 U.S. Dist. LEXIS 4862 (S.D.N.Y. Apr. 12, 1999)..........................................................36

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Goring v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. College, 9
32 F. Supp. 2d 642 (M.D. La. 2010) ........................................................................................35
*Ha v. Northwestern Univ., No. 14-cv-00895,
2014 U.S. Dist. LEXIS 160046 (N.D. Ill. Nov. 13, 2014)...........................................20, 26, 28
Hansen v. Bd. of Trs. of Hamilton Southeastern Sch. Corp., 551 F.3d 599 (7th Cir. 2008) .........24
Hazley v. Monroe County Bd. of Ed., No. 08-0142-WS-B,
2008 U.S. Dist. LEXIS 102283 (S.D. Ala. Dec. 17, 2008) .....................................................29
*Holloway v. Howard Univ., 206 F. Supp. 3d 446 (D.D.C. 2016) ................................................22
*Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) ........................................................35
Karasek v. Regents of the Univ. of Cal., No. 15-cv-03717-WHO,
2016 U.S. Dist. LEXIS 98949 (N.D. Cal. July 28, 2016) ........................................................16
Karasek v. Regents of the Univ. of California, No. 15-cv-03717-WHO,
2015 U.S. Dist. LEXIS 166524 (N.D. Cal. Dec. 11, 2015) ...............................................19, 28
KF v. Monroe Woodbury Central Sch. Dist., No. 12-CV-2200 (ER),
2012 U.S. Dist. LEXIS 60341 (S.D.N.Y. Apr. 30, 2012)........................................................18
Lopez v. Regents of the Univ. of Cal., No. C-13-2811 EMC,
2013 U.S. Dist. LEXIS 173228 (N.D. Cal. Dec. 10, 2013) .....................................................19
M.D. v. Bowling Green Indep. Sch. Dist., No. 1:15-CV-00014-GNS-HBB,
2017 U.S. Dist. LEXIS 11504 (W.D. Ky. Jan. 27, 2017) ........................................................20
McCoy v. Bd. of Educ., 515 F. App’x 387 (6th Cir. 2013) ............................................................24
Miles v. Washington, No. CIV-08-166-JHP,
2009 U.S. Dist. LEXIS 7300 (E.D. Okla. Feb. 2, 2009)..........................................................37
Montoya v. N.M. Inst. of Mining & Tech. Bd. of Regents, No. 2:16-cv-00386-MCA-SMV,
2017 U.S. Dist. LEXIS 40641 (D.N.M. Mar. 21, 2017) ....................................................19, 21
Moore v. Murray State Univ., No. 5:12-CV-00178,
2013 U.S. Dist. LEXIS 33768 (W.D. Ky. Mar. 12, 2013) ................................................18, 19
Moore v. Regents of the Univ. of Cal., No. 15-cv-05779-RS,
2016 U.S. Dist. LEXIS 67548 (N.D. Cal. May 23, 2016) .......................................................32
*Noble v. Branch Intermediate Sch. Dist., No. 4:01cv 58,
2002 U.S. Dist. LEXIS 19600 (W.D. Mich. Oct. 9, 2002) ................................................20, 27
O’Hara v. Colonial Sch. Dist., No. 99 CV 399,
2002 U.S. Dist. LEXIS 12153 (E.D. Pa. Mar. 25, 2002) .........................................................20
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*Oden v. Northern Marianas Coll., 440 F.3d 1085 (9th Cir. 2006) ............................15, 16, 32, 33
Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843 (9th Cir. 2014) ..................................36
Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356 (6th Cir. 2012) ...............................................24
Preusser v. Taconic Hills Cent. Sch. Dist., No. 1:10-CV-1347 (MAD/CFH),
2013 U.S. Dist. LEXIS 7057 (N.D.N.Y. Jan. 17, 2013) ..........................................................26
Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000) .............................................19
Romero v. City of New York, 839 F. Supp. 2d 588 (E.D.N.Y. 2012) ............................................29
Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648 (5th Cir. 1997) ................................15, 18
*Ross v. Corp. of Mercer Univ., 506 F. Supp. 2d 1325 (M.D. Ga. 2007) ...................24, 36, 37, 39
Ross v. Univ. of Tulsa, 180 F. Supp. 3d 951 (N.D. Okla. Apr. 15, 2016)......................................27
Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156 (5th Cir. 2011) .......16, 27
Schaefer v. Las Cruces Public Sch. Dist., 716 F. Supp. 2d 1052 (D.N.M. 2010) ...................15, 24
School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987)...............................................30
Staehling v. Metro. Gov’t, No. 3:07-0797,
2008 U.S. Dist. LEXIS 91519 (M.D. Tenn. Sept. 12, 2008) ...................................................16
Tackett v. Univ. of Kan., No. 16-2266-JTM,
2017 U.S. Dist. LEXIS 19536 (D. Kan. Feb. 10, 2017) ..........................................................38
Takla v. Regents of the Univ. of Cal., 2:15-cv-04418-CAS(SHx),
2015 U.S. Dist. LEXIS 150587 (C.D. Cal. Nov. 2, 2015) .......................................................19
Thomas v. Meharry Med. Coll., 1 F. Supp. 3d 816 (M.D. Tenn. 2014) ........................................19
*Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000) ........................17, 21, 32
Wells v. Hense, No. 1:16-cv-0901-ESH,
2017 U.S. Dist. LEXIS 9332 (D.D.C. Jan. 24, 2017) ............................................19, 36, 38, 39
Williams v. Columbia Univ., No. 11 Civ. 8621 (WHP),
2012 U.S. Dist. LEXIS 130358 (S.D.N.Y. Aug. 28, 2012) .....................................................39
Witherspoon v. Philip Morris, Inc., 964 F. Supp. 455 (D.D.C. 1997) .............................................5
Wynne v. Tufts University School of Medicine, 976 F.2d 791 (1st Cir. 1992) ...............................30

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STATUTES
20 U.S.C. § 1681(a) ......................................................................................................................13

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CONCISE STATEMENT OF REASONS SUPPORTING POSITION
Plaintiffs’ Complaint should be dismissed for failure to state a claim for relief
under Fed. R. Civ. P. 12(b)(6). The Complaint asserts claims under Title IX of the Educational
Amendments of 1972 for (1) intentional gender discrimination, and (2) retaliation. Plaintiffs fail
to state a claim for gender discrimination because their allegations do not demonstrate that
Defendant’s alleged conduct was based on their gender, or that any deliberate indifference by
Defendant to their reports of sexual assault caused them to suffer gender discrimination, as
required by Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) and Davis v. Monroe
Cty. Bd. of Educ., 526 U.S. 629 (1999). Plaintiffs also fail to state a claim for retaliation because
they plead no facts demonstrating a causal connection between their reports of sexual assault and
any alleged conduct by Defendant.

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I.

INTRODUCTION
Plaintiffs are five current and former students who claim they were assaulted

while attending Howard University (“Howard” or “the University”). Plaintiffs agree that the
University investigated each of their claims, and the assailant in each of their cases was
disciplined or removed from Howard’s campus. They do not claim that their alleged assailants
further harassed them after Howard was put on notice of their claims. Nevertheless, Plaintiffs
claim that Howard violated Title IX of the Educational Amendments of 1972 (“Title IX”), by
failing to provide them with the particular processes and remedies they desired. They claim that
Howard took too long to resolve the complaints, failed to provide them with appropriate
academic accommodations, failed to provide them with appropriate counseling, and made
insensitive comments during the course of their interactions with the University. These
allegations are untrue. But even accepting their truth for the purposes of this Motion as Howard
must, Title IX does not provide a remedy for negligently handing a student disciplinary claim or
for failing to “remedy” sexual harassment committed by others. Schools can be liable under
Title IX only for their own intentional gender discrimination, which Plaintiffs do not and cannot
allege.
In two seminal decisions, Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274
(1998) and Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999), the Supreme Court held that
a Title IX claim for damages is available only upon a showing of intentional gender
discrimination, meaning deliberate indifference to known acts of sexual harassment. Schools are
not liable simply because sexual harassment occurs on their campuses, nor is a school required to
provide any particular remedy or response when it learns of past acts of harassment by members
of its community. Rather, Title IX permits liability only where a school official knows that there
is ongoing harassment in its programs, and then makes an affirmative decision to ignore it.

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None of the Plaintiffs here pleads facts sufficient to meet this high bar. Once
Howard learned of their reports of sexual assault, it took action. None of the Plaintiffs pleads
facts sufficient to show that she was subjected to harassment after Howard learned of her assault,
let alone any harassment caused by Howard. While Plaintiffs may disagree with the particulars
of Howard’s response, Howard did not subject Plaintiffs to intentional gender discrimination.
Therefore, Counts I, III, V, VI and VII should be dismissed with prejudice.
Several of the Plaintiffs also claim that Howard “retaliated” against them in
violation of Title IX. These claims fail because Plaintiffs fail to plead any facts plausibly
suggesting that any of Howard’s alleged conduct toward them was based on their gender. Nor
do they allege any facts demonstrating a causal connection between their reports of sexual
assault and any subsequent action by Howard. Indeed, most of the retaliation claims simply
duplicate the “deliberate indifference” claims. As Howard did not retaliate against Plaintiffs
based on their gender, the Court should also dismiss Counts II, IV and VIII with prejudice.
Contrary to the allegations in the Complaint, Howard takes seriously every claim
of sexual assault, and it did so with respect to the Plaintiffs here. It offers its students resources
and accommodations to help them deal with the horrible effects of sexual assault. But putting
the merits of the allegations in the Complaint aside, the legal theory upon which the Complaint
is premised is fundamentally flawed. The Supreme Court allowed a limited cause of action
under Title IX in situations where a school knowingly allows a community member to harass a
student in its academic programs, taking no action to stop it. This Court should decline
Plaintiffs’ invitation to create a new cause of action premised not on a school’s deliberate
indifference to known harassment actively occurring in its programs, but on the adequacy of a
school’s response to an incident of sexual assault that has already occurred.

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Claims of student-on-student sexual assault are difficult cases for the criminal
justice system, never mind institutions of higher learning. No case will ever be handled perfectly
in the minds of all participants, and in every case one side will be dissatisfied with the outcome.
Allowing claims like Plaintiffs’ to proceed will expose institutions of higher learning to liability
that neither the Supreme Court nor Congress ever intended. As Howard did not discriminate
against Plaintiffs based on their gender, the Court should dismiss the Complaint.
II.

FACTUAL ALLEGATIONS PLEADED IN THE COMPLAINT
While the Complaint spends well over 300 paragraphs alleging facts as to each of

the five Plaintiffs, the facts essential to the claims and this Motion to Dismiss are considerably
more straightforward. Each Plaintiff alleges that she was sexually assaulted by a member of the
Howard University community while attending Howard. While Plaintiffs take issue with the
details of Howard’s response, and criticize Howard administrators for allegedly making
insensitive comments along the way, the Complaint itself pleads that Howard took action as soon
as it learned of each of the alleged assaults and offered accommodations – even if it did not offer
the specific accommodations that were desired. And although the Complaint takes issue with
how long it took, each of the alleged assailants was eventually removed from the campus
community. None of the Plaintiffs alleges that she suffered additional harassment at the hands of
her alleged perpetrator after the assault was reported to Howard.
A.

Jane Doe 1
Jane Doe 1 was a student and Resident Assistant (“RA”) at Howard. Compl. ¶¶

45-46. Doe 1 alleges she was raped in her dormitory on February 7, 2016, by another student
(“Assailant 1”), who was also an RA. Id. ¶ 48. Three weeks later, on February 28, 2016, she
reported the incident to Howard’s Title IX Coordinator and campus police. Id. ¶ 50. The Title
IX Coordinator helped draft a statement for Doe 1 to make a complaint against Assailant 1. Id. ¶
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52. Howard’s campus police connected Doe 1 to the Metropolitan Police Department of the
District of Columbia (“D.C. Police”). In response to Doe 1’s safety concerns, the Title IX
Coordinator had Assailant 1 transferred to another dormitory (id. ¶¶ 51, 55), but (in consideration
of Assailant 1’s rights) explained that he could not be pulled out of all her classes while the
investigation was pending. Id. ¶ 54. Howard permitted Doe 1 to take classes remotely while the
investigation was pending. Id. at ¶ 55.
Doe 1 does not allege that she ever again encountered Assailant 1, but rather
alleges that she feared running into him on campus (id. ¶¶ 83-84), and that, on one undated
occasion, she saw video footage of him walking into her dormitory building (id. ¶ 86). Doe 1
alleges that by March 31, 2016 – about a month after she reported her alleged assault – she
learned that Assailant 1 was expelled from Howard. Id. ¶ 85. Nevertheless, Doe 1 takes issue
with the University’s alleged lack of responsiveness during her investigation, and the fact that
she was allegedly not informed by Howard that Doe 1 had been expelled or suspended. Id. ¶¶
58, 74. Doe 1 also complains (and Howard disputes) that certain administrators made insensitive
comments to her after she reported her assault. Id. at ¶¶ 56, 68, 70.
Doe 1 claims that Howard retaliated against her based on her report of sexual
misconduct. On March 8, 2016, Howard allegedly removed Doe 1 from her position as an RA
after receiving a report that she violated a University policy. Id. ¶ 60. Doe 1 alleges that
Assailant 1 reported her “in retaliation for reporting her rape,” though she does not allege that the
accusation was unfounded or that she did not, in fact, violate University policy. Id. ¶¶ 60-61,
364. While Doe 1 alleges that Howard’s actions constituted gender discrimination, Doe 1 had a
male friend who was also removed as an RA as a result of his involvement in the same reported
policy violation as Doe 1. Id. ¶ 101.

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On May 4, 2016, Doe 1 spoke with Howard’s Dean of Residence Life about
whether she could reapply to be an RA and was told that the matter had been referred to campus
police for a full investigation. Id. ¶ 93. On May 16, “a representative of Howard” told Doe 1’s
attorney that Residence Life was treating the matter strictly as a Human Resources issue “not
related to Plaintiff’s complaint of sexual assault.” Id. ¶ 95. Less than a month later, on June 7,
2016, Howard gave Doe 1 permission to apply for an RA position for the 2016-2017 academic
year. Id. ¶ 97. Howard approved her application, Doe 1 completed RA training, and she
resumed as an RA in the fall semester. Id. ¶¶ 105, 106, 109.1
Doe 1 also claims that Howard is responsible for her February 2016 assault. Doe
1 posted her frustrations about Howard’s handling of her report on Twitter. Id. ¶ 61. According
to Doe 1, another Howard student, Doe 2, responded to her Tweet and said she reported the same
student for assault and harassment in October 2015. Id. ¶¶ 64-65. In April 2016, the Title IX
Coordinator completed her investigation into Doe 2’s report of sexual assault involving Assailant
1, found him responsible for non-consensual sexual contact with Doe 2, and suspended him from
campus for two years. Id. ¶ 72. Doe 1 suggests that Howard should have expelled or otherwise
restricted Assailant 1 before February 7, 2016, when he assaulted her. Id. at ¶¶ 67, 82.

1

In setting out Doe 1’s claims – as well as the claims of the other Plaintiffs – the Complaint includes detail
after detail, laying out every single interaction with Howard’s administration, sometimes providing a day by day
chronology. The purpose of including this level of detail is unclear – Plaintiffs cannot plead deliberate indifference
based on girth alone. Moreover, pleading this type of minutia is not appropriate under Federal Rule of Civil
Procedure 8. See Witherspoon v. Philip Morris, Inc., 964 F. Supp. 455, 467-68 (D.D.C. 1997) (striking portions of
the complaint on the ground that they violated Rule 8 because, although most of those portions did “contribute to
pleading the causes of action,” they were “unnecessarily voluminous” and contained “unnecessary evidentiary
information,” making the complaint “neither short nor plain”). Thus, if the Court should deny Howard’s motion on
the merits, it should dismiss the Complaint with leave to re-plead consistent with Rule 8. In any event, as set out
above, Doe 1’s concerns about her RA position were resolved before the completion of the summer break, and she
was able to resume her RA duties immediately upon her return.

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B.

Jane Doe 2
Jane Doe 2 alleges that, on May 1, 2015, she was raped by another Howard

student whom she was dating, Assailant 1. Compl. ¶ 111. She did not immediately report the
assault, believing (incorrectly) that Assailant 1 was set to graduate in the Spring of 2015. Id. ¶¶
112-13. She claims that when she returned in the Fall of 2015, her assailant continued to harass
her on a regular basis, causing her to report the assault. Id. ¶¶ 113-14.
On October 17, 2015, Doe 2 reported her assault to the D.C. Police, who then
reported it to Howard. Id. ¶ 114. On October 22 and 27, 2015, Doe 2 met with Howard’s Title
IX Coordinator to discuss her report. Id. ¶ 115. Doe 2 alleges that she asked Howard to move
her alleged assailant to another dormitory, but the Title IX Coordinator explained that he could
not be removed until the investigation was complete. Id. ¶ 116. Instead, Doe 2 decided to move
to a different dormitory and Howard told her that she would not be charged for the move. Id. ¶
118. She alleges that Howard later did charge her for the move. Id. ¶ 124.
While the Complaint alleges that Assailant 1 continued to harass Doe 2 prior to
her reporting the assault, she does not allege that she suffered any harassment after Howard was
put on notice of the assault.2 In fact, Doe 2 does not allege that she ever saw Assailant 1 after
making her report. Nevertheless, Doe 2 alleges that she chose to leave Howard at the end of that
fall 2015 semester “because she was afraid to leave her dorm room and run into her assailant on
campus.” Id. ¶ 123.
In March 2016, Doe 2 alleges that she saw Jane Doe 1’s Twitter post identifying
the student who assaulted her as the same student that Doe 2 reported. Id. ¶ 129. In April 2016,

2

In fact, after Howard was put on notice of the claims involving Assailant 1, a no contact order was
issued and he was suspended from his RA position.

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Doe 2 received the investigatory report from the Title IX Coordinator, which found Assailant 1
responsible for non-consensual sexual contact with Doe 2 and suspended him from campus for
two years. Id. ¶ 132. Nevertheless, Doe 2 officially withdrew from Howard in May 2016 and
enrolled in another program. Id. ¶¶ 126-27. Doe 2 also alleges that Howard’s financial aid
office (which is not alleged to have known of her Title IX case) placed holds on her account after
removing her grant and scholarship information from her account, which allegedly led to
frustrations with getting her academic transcript for transfer applications, but that Howard
removed those holds and she was able to enroll in an online program. Id. ¶¶ 124-25.
C.

Jane Doe 3
Jane Doe 3 is a student at Howard on a scholarship from the Reserve Officers’

Training Corps (“ROTC”). Compl. ¶ 139. In April 2014, Doe 3 began a consensual romantic
relationship with a Howard University campus police officer who eventually became abusive and
assaulted her. Id. ¶¶ 141-142. In November 2014, Doe 3 reported her abuse to a close confidant
who reported it to Howard’s campus police. Id. ¶ 144. Plaintiff does not allege that Howard had
any advance knowledge of her relationship with the campus police officer, or that he was abusive
towards her.
Upon receiving her report, a Howard campus police investigator took Doe 3 to the
D.C. Police to report her assault. Id. ¶ 145. Howard’s Title IX Coordinator and the Director of
Howard’s Interpersonal Violence Prevention Center (“IVPC”) also accompanied Doe 3 while
she made her report to the police. Id. ¶¶ 145-146. Doe 3 heard at some point from campus
police that the officer involved was terminated from Howard. Id. ¶ 212. She does not allege
that, following her report to Howard, she ever saw her alleged assailant again.
The Title IX Coordinator immediately offered Doe 3 academic accommodations
and counseling. Id. ¶ 147. Doe 3 declined academic accommodations, but said she was
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interested in counseling. Id. ¶ 147. Doe 3 alleges that for six weeks or so, from January 2015 to
mid-February 2015, she contacted several administrators within Howard’s IVPC and Counseling
Center to set up individual counseling services and told them that she was depressed and
suicidal, but they either did not immediately get back to her or only offered her group counseling
at times that conflicted with her work schedules. Id. ¶¶ 150-55, 159-61, 186.
In April 2015, Doe 3 requested academic accommodations from the Dean of
Special Student Services. In response, the Dean gave her a letter to give to her professors. Id. ¶¶
167-69. All but two of her professors granted her extensions of time after receiving the letter.
Id. ¶ 170. Despite alleging that two of her professors “refused to provide or engage in a
conversation regarding an academic accommodation” (id. ¶ 173), Doe 3 alleges that each of
those professors explained it was too late in the semester for her to take any steps to improve her
grade and advised that she withdraw from their classes. Id. ¶ 171. The Dean of Special Student
Services also explained to Doe 3 that the professors had the final say regarding whether they
would provide academic accommodations to a student. Id. ¶¶ 173-74. Doe 3 alleges that she
failed her classes with those two professors. Id. ¶ 176.
On March 30, 2016, Doe 3, her attorney, and her ROTC advisor (who was
associated with a different University) met with the Title IX Coordinator about whether she
could retake her failed classes. Id. ¶ 184. The Title IX Coordinator again explained to Doe 3
that she failed the two classes because she asked for help too late in the semester, and affirmed
that the University could not “force” professors to provide accommodations. Id. Doe 3
requested that the professors change her failing grades to “Incompletes” and give her make-up
work. Id. On April 26, 2016, Howard’s counsel explained that Doe 3 did not qualify for an

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“Incomplete” under Howard’s academic policy because she did not complete the required 6080% of the classwork in the two classes she failed. Id. ¶ 191.
In June 2016, while attempting to register for summer classes, Doe 3 says she saw
that her financial aid had been reduced and eventually dropped to a $0 balance. Id. ¶¶ 201-202.
The financial aid office (which is not alleged to have known about her Title IX claim) explained
that Doe 3 used her maximum aid eligibility during the fall and spring semesters, and had no
financial aid left to use for summer classes. Id. ¶ 204. Doe 3 continued as a student at Howard
and did not lose her ROTC scholarship. Id. ¶ 211.
D.

Jane Doe 4
Jane Doe 4 was a Howard student in the ROTC program. Compl. ¶ 221. Doe 4

alleges she was raped on March 9, 2016 by another Howard student. Id. ¶ 223. On March 10,
2016, Doe 4 reported the rape to Howard’s Title IX Coordinator. Id. ¶ 225. The Title IX
Coordinator advised Doe 4 about available counseling services and the option to change her
assigned dormitory, and gave Doe 4 a set of written materials. Id. Doe 4 asked to change
dormitories and for a campus protective order against the respondent. Id. ¶¶ 226, 228. A week
later (and after the completion of a week-long spring break), Howard had moved Doe 4 to a new
dormitory. Id. ¶ 232. A protective order was also issued against the respondent. Id. ¶ 251.
On March 21, 2016, Doe 4 asked the Dean for Special Student Services for
academic accommodations in four courses. Id. ¶ 234. On March 23, 2016, the dean met with
Doe 4 and her attorney, and provided Doe 4 with an academic accommodation letter. Id. ¶¶ 23637. Doe 4’s biology professor granted Doe 4 a two-day extension of time to take her exam. Id. ¶
238. Unhappy with that extension, Doe 4’s attorney emailed the professor and the Dean for
Special Student Services requesting a week-long extension, until March 30. Id. ¶ 239. Doe 4
alleges that the dean agreed to contact the professor about taking the exam on March 30, but
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never did so. Id. ¶¶ 240-43. In any event, the professor allowed Doe 4 to take the exam the next
day, on March 31 (id. ¶¶ 242-43), which was even longer than the extension of time she
requested.
Doe 4 does not allege that the respondent harassed her or attempted to interact
with her after she reported him. In April 2016, Doe 4 complained that the respondent was not
following the protective order because she had seen him “[o]n at least four occasions in less than
three weeks” in the cafeteria or walking around campus between classes. Id. ¶ 244. Doe 4 asked
Howard to develop a coordinated schedule to ensure that she never saw the respondent at the
cafeteria, fitness center, and other common facilities on campus. Id. ¶¶ 245, 248, 250. On April
14, 2016, the Title IX Coordinator explained that the respondent was not required to leave an
area or change his direction solely because Doe 4 was there, and that the protective order only
restricted his ability to speak directly to Doe 4 or indirectly to her through others. Id. ¶ 252. The
Title IX Coordinator also provided Doe 4 with information for counseling services. Id.
In August 2016, Doe 4 says she learned through mutual friends that she and the
respondent were assigned to the same dormitory for the upcoming semester. Id. ¶ 277. On
August 8, Doe 4’s attorney notified Howard’s counsel of the issue, who began working on a
resolution the next day. Id. ¶¶ 279-80. Nine days later, on August 17, 2016, before Doe 4
moved back to campus, Howard confirmed that the respondent had been assigned to different
housing. Id. ¶ 285.
On August 23, 2016, prior to the start of the Fall semester, Howard notified Doe 4
that the respondent had been found responsible for sexual violence and suspended for one
semester. Id. ¶ 287. In October 2016, Doe 4 alleges that she saw the respondent at a pep rally on
campus. Id. ¶ 288. When Doe 4 notified campus police and showed them a copy of the finding

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letter, they removed him from the stadium within the hour. Id. ¶ 289. Doe 4 does not allege that
he approached her or attempted to interact with her. Doe 4 remained a student at Howard and
did not lose her ROTC scholarship. Id. ¶ 299.
E.

Jane Doe 5
Jane Doe 5 alleges that she was raped by another Howard student at a graduation

party at the end of the spring semester, on April 25, 2015. Compl. ¶ 301. On April 26, 2015,
Doe 5 reported the incident to the D.C. Police. Id. ¶ 302. A D.C. Police detective told her to
return home to Michigan to avoid any chance of retaliation from the assailant. Id. ¶ 303.
A few days later, on April 29, 2015, Doe 5 reported her sexual assault to
Howard’s Title IX Coordinator. Id. ¶ 304. On the same day, she received notice that she could
not graduate that semester because she was six credits short of the graduation requirement. Id. ¶
305. Doe 5 does not allege that this notification had any connection to her reported assault, and
it did not.
That same day, on April 29, Doe 5 met with Howard’s Provost and requested an
accommodation to take any remaining credits she needed at a different school closer to home in
Michigan. Id. ¶ 307. Doe 5 then went home to Michigan. Id. ¶ 309. On June 2, Howard’s
counsel advised Doe 5 and her attorney that the University typically requires students to take
their last 30 academic credits at the University, but the Provost was looking into waiving that
requirement for Doe 5. Id. ¶ 416. The Provost gave Doe 5 permission to take summer courses in
Michigan, which she completed. Id. ¶¶ 317, 324. At that point, there was no need for Doe 5 to
take any further classes or to return to Howard’s campus for academic reasons.
On July 1, 2015, Doe 5 sent her written statement of claims to the Title IX
Coordinator. Id. ¶ 320. On July 9, the Title IX Coordinator responded that she had been
unsuccessful in contacting the respondent, but could reach out to other witnesses. Id. ¶ 321. Doe
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5 claims that in response to her concerns that the respondent would transfer to another school to
avoid disciplinary action, Howard granted her request to place a hold on his account. Id. ¶¶ 32223. On October 1, 2015, Howard notified Doe 5 that the respondent had returned to campus and
that her investigation was moving forward. Id. ¶ 327. On December 9, 2015, the Title IX
Coordinator informed Doe 5 that the investigation found the respondent responsible for sexual
violence and suspended him from campus for two years. Id. ¶ 334.
On September 14, 2015, Doe 5 sent the Provost her summer course transcript. Id.
¶ 325. On April 25, 2016, Howard notified Doe 5 that her summer courses were accepted and
that she was eligible to graduate. Id. ¶ 346.
III.

LEGAL STANDARDS FOR A MOTION TO DISMISS
In deciding a Rule 12(b)(6) motion, the court need not accept, without more, legal

conclusions masquerading as facts. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The allegations in a complaint “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 129 S. Ct. at 1947 (citing Twombly, 550 U.S. at 555).
“[W]here 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 ‘show[n]’ – ‘that the pleader is entitled to
relief.’” Iqbal, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). Plaintiffs must “provide the
‘grounds’ of his ‘entitle[ment] to relief’ [which] requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555
(citation omitted).

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IV.

ARGUMENT
A.

The Court Should Dismiss Counts I, III, V, VI, and VII Because Plaintiffs Do
Not State a Title IX Claim For Gender Discrimination
1.

Title IX Provides a Damages Claim Only for Intentional Gender
Discrimination: An Institutional Decision Not to Address Known,
Ongoing Harassment.

Given the Plaintiffs’ attempt to drastically expand Title IX, it is important to
begin with first principles. Title IX provides: “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(a). While the statute does not provide for a civil remedy, the Supreme Court
implied a narrow right of action for damages in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.
274 (1998) and Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999). According to this
Supreme Court precedent, in the context of sexual harassment between members of the school’s
community, a cause of action for damages is available only where the school itself has engaged
in intentional gender discrimination, by making an affirmative decision not to address known,
ongoing harassment in its educational programs, thus allowing the harassment to continue. Title
IX does not require a school to provide a particular remedy in response to one student’s sexual
assault of another student.
In Gebser, the Supreme Court considered a Title IX claim premised on a school
teacher’s sexual relationship with an eighth grade student. In finding that the school district
could not be liable for the teacher’s conduct, the Supreme Court held that “a damages remedy
will not lie under Title IX unless 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 fails adequately to respond.”
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Gebser, 524 U.S. at 290. “[T]he response must amount to deliberate indifference to
discrimination. . . .The premise, in other words, is an official decision by the recipient not to
remedy the violation.” Id. (emphasis added). The Supreme Court declined to impose liability
based on principles of respondeat superior or constructive notice of the ongoing sexual
relationship, id. at 285, explaining that any standard lower than deliberate indifference (such as
negligence), would create “a risk that the recipient would be liable in damages not for its own
official decision but instead for its employee’s independent actions.” Id. at 290-91. Although
the school district in Gebser had knowledge of other inappropriate comments by the teacher
involved, because it did not have actual knowledge of the sexual relationship while it was
occurring, it could not be liable under Title IX. Id. at 292.
The next year, in Davis, the Supreme Court considered whether a school district
could be liable for a fifth grader’s continual sexual harassment of another student. Guided by the
principle from Gebser, Davis affirmed that a private right of action under Title IX is available
only “where the funding recipient engages in intentional conduct that violates the clear terms of
the statute.” 526 U.S. at 641-42 (emphasis added). Emphasizing the narrowness of the cause of
action, the Davis Court held that schools can be liable only for their own actions that amount to
intentional gender discrimination – meaning (1) “the funding recipient acts with deliberate
indifference to known acts of harassment in its programs or activities,” id. at 632; (2) the
deliberate indifference of the school “‘cause[s] [students to undergo’ harassment or ‘make[s]
them liable or vulnerable’ to it[,]’” id. at 645; and (3) the harassment caused by the school is “so
severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an
educational opportunity or benefit” provided by the school. Id. at 633.

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Davis thus makes clear that schools are not required to remedy past harassment,
they are only required to address known, ongoing harassment in a way that is not clearly
unreasonable:
The dissent consistently mischaracterizes [the “clearly
unreasonable”] standard to require funding recipients to “remedy”
peer harassment. . . . Title IX imposes no such requirements. On
the contrary, the recipient must merely respond to known peer
harassment in a manner that is not clearly unreasonable.
Davis, 526 U.S. at 648-49; see also Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 661
(5th Cir. 1997) (“[T]he school district can be liable, if at all, only for the damages caused by its
intentional acts of discrimination. If the conduct has ceased by the time a supervisory employee .
. . learns of it, there is no liability in a private suit for the conduct based on some personal failure
to take ‘proper remedial action’ thereafter.”); Schaefer v. Las Cruces Public Sch. Dist., 716 F.
Supp. 2d 1052, 1081 (D.N.M. 2010) (plaintiff must show school “was deliberately indifferent to
the ongoing wrongful conduct”).
a.

Plaintiffs Must Plead and Prove that the Defendant was
Deliberately Indifferent

Deliberate indifference occurs “only where the [school’s] response to the
harassment or lack thereof is clearly unreasonable in light of the known circumstances.” Davis,
526 U.S. at 648 (emphasis added). In other words, the school’s response must be so
unreasonable that one can infer there was “an official decision by the recipient not to remedy”
the harassment. Gebser, 524 U.S. at 290; see Doe v. Willits Unified Sch. Dist., 473 F. App’x
775, 776 (9th Cir. 2012) (“To meet this high standard there must, in essence, be an official
decision not to remedy the violation and this decision must be clearly unreasonable.”); Oden v.
Northern Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 2006) (equating “clearly unreasonable”
determination to whether school made “an official decision . . . not to remedy the violation”).
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“‘Deliberate indifference’ in this context does not mean a collection of sloppy, or even reckless,
oversights; it means evidence showing an obvious, deliberate indifference to sexual abuse.” Doe
v. Claiborne County, Tenn., 103 F.3d 495, 508 (6th Cir. 1996).
As such, a school’s alleged failure to follow its internal policies and procedures
does not rise to the level of deliberate indifference. See Gebser, 524 U.S. at 291 (holding that a
school’s failure to adopt grievance procedures for resolving sexual harassment claims does not
itself constitute discrimination under Title IX); Sanches v. Carrollton-Farmers Branch Indep.
Sch. Dist., 647 F.3d 156, 169 (5th Cir. 2011) (“A district’s ‘failure to comply with [its]
regulations . . . does not establish the requisite . . . deliberate indifference.’”); Facchetti v.
Bridgewater Coll., 175 F. Supp. 3d 627, 638 (W.D. Va. 2016) (“[A] Title IX defendant’s failure
to comply with its own policy does not prove deliberate indifference, under clear Supreme Court
precedent.”); Doe v. Bd. of Educ. of Prince George’s County, 982 F. Supp. 2d 641, 657 (D. Md.
2013) (“[T]he Supreme Court has held that the failure to follow sexual harassment grievance
procedures does not prove deliberate indifference under Title IX.”).
Similarly, mere delays in a school’s disciplinary process do not constitute
deliberate indifference. Oden, 440 F.3d at 1089 (holding that college’s nine-month delay in
proceedings was not deliberately indifferent, even if it may have been negligent and in violation
of school’s own policy); Karasek v. Regents of the Univ. of Cal., No. 15-cv-03717-WHO, 2016
U.S. Dist. LEXIS 98949, at *45-46 (N.D. Cal. July 28, 2016) (finding allegations that the
university failed to update plaintiff during its investigation and disciplinary process were, at
most, “nonactionable negligence, laziness, or carelessness,” and not deliberate indifference);
Staehling v. Metro. Gov’t, No. 3:07-0797, 2008 U.S. Dist. LEXIS 91519, at *35 (M.D. Tenn.
Sept. 12, 2008) (“While the alleged failure of the school in its follow-up to the . . . incident may

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suggest negligence, this is not sufficient to me[e]t the deliberate indifference standard under Title
IX.”).
Finally, the Davis Court made clear that Title IX does not entitle complainants to
make particular remedial demands. The Court admonished the lower courts against secondguessing decisions of school administrators, and stressed that its holding does not require
institutions to “purg[e] their schools of actionable peer harassment or that administrators must
engage in particular disciplinary action,” nor does it require schools to expel every student
accused of sexual misconduct. 526 U.S. at 648; see Vance v. Spencer County Pub. Sch. Dist.,
231 F.3d 253, 260 (6th Cir. 2000) (stating “[v]ictims do not have a right to particular remedial
demands” under Title IX); Facchetti, 175 F. Supp. 3d at 638 (recognizing “ample authority
holding that neither a school’s negligence in addressing a sexual assault, nor its failure to provide
the remedy wanted by the victim, constitutes deliberate indifference”) (citing cases).
“In an appropriate case, there is no reason why courts, on a motion to dismiss . . .
could not identify a response as not ‘clearly unreasonable’ as a matter of law.” Davis, 526 U.S.
at 649; see Bello v. Howard Univ., 898 F. Supp. 2d 213, 224 (D.D.C. 2012) (dismissing Title IX
claim in part for failure to plead facts showing deliberate indifference by university).
b.

Plaintiffs Must Plead and Prove that the School’s Deliberate
Indifference Caused the Plaintiffs to Suffer Additional Severe
and Pervasive Harassment

A school is only liable where it “subjects” a student to harassment, meaning that
the school’s deliberate indifference “effectively ‘cause[s]’ the discrimination” for which plaintiff
seeks damages. Davis, 526 U.S. at 642-43, 644. Thus, at a minimum, the deliberate indifference
must “cause [students] to undergo” harassment or “make them liable or vulnerable to it.” Id. at
645. As one district court has noted, “[t]he relationship between causation and deliberate
indifference is vitally important in a student-on-student harassment case . . . . [because] plaintiffs
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do not seek to recover against the perpetrator of the harassment[;] [r]ather they bring suit against
the entity receiving federal funds for its own decision to remain idle . . . .” Moore v. Murray
State Univ., No. 5:12-CV-00178, 2013 U.S. Dist. LEXIS 33768, at *10 (W.D. Ky. Mar. 12,
2013).
Because schools are liable under Title IX only for damages caused by their own
discrimination, a school is liable only for harm that flows from harassment after it is on notice of
the harassment, and which is caused by the school’s deliberate indifference in failing to stop it.
Rosa H., 106 F.3d at 661. A damages claim under Title IX does not exist for failing to remedy
the effects of past harassment. See KF v. Monroe Woodbury Central Sch. Dist., No. 12-CV-2200
(ER), 2012 U.S. Dist. LEXIS 60341, at *30 (S.D.N.Y. Apr. 30, 2012) (denying preliminary
injunction under Title IX and finding school’s response was not clearly unreasonable, because
plaintiff faced no further harassment after making her report and school had no duty to remedy
“the psychological effects of the alleged behavior to which she was previously subjected”).
Thus, most courts – including within this district – have held that plaintiffs must
allege that the institution’s acts of deliberate indifference caused them to suffer additional
harassment after the school learns of the incident in question. See, e.g., Blue v. Dist. of
Columbia, 850 F. Supp. 2d 16, 35-36 (D.D.C. 2012) (dismissing Title IX claim where “[f]inally
but significantly, Plaintiff ‘does not allege that further sexual harassment occurred as a result of
[the school’s] deliberate indifference’”) (quoting Escue v. Northern OK College, 450 F.3d 1146,
1155 (10th Cir. 2006)), aff’d No. 10-1504 (JEB), 2015 U.S. App. LEXIS 22737 (D.C. Cir., Dec.
29, 2015); Bello v. Howard Univ., 898 F. Supp. 2d 213, 224 (D.D.C. 2012) (“[T]here exists no
basis on which this Court could reasonably infer that once Defendant was on notice, it . . . failed
to take remedial measures or that such failure resulted in harm to any of the Plaintiffs”)

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(emphasis added); see also Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir.
2000) (“There is no evidence that any harassment occurred after the school district learned of the
plaintiffs’ allegations. Thus, under Davis, the school district cannot be deemed to have
‘subjected’ the plaintiffs to the harassment.”); Montoya v. N.M. Inst. of Mining & Tech. Bd. of
Regents, No. 2:16-cv-00386-MCA-SMV, 2017 U.S. Dist. LEXIS 40641, at *17 (D.N.M. Mar.
21, 2017) (finding no deliberate indifference where “perhaps most significantly, the Institute’s
response did not lead to further incidents of harassment”); Thomas v. Meharry Med. Coll., 1 F.
Supp. 3d 816, 827 (M.D. Tenn. 2014) (“[B]ecause plaintiff did not continue to experience sexual
harassment once he put defendant on notice of [his harasser’s] conduct, there is no basis to find
defendant’s response to plaintiff’s sexual harassment report amounted to deliberate
indifference.”); Lopez v. Regents of the Univ. of Cal., No. C-13-2811 EMC, 2013 U.S. Dist.
LEXIS 173228, at *49-50 (N.D. Cal. Dec. 10, 2013) (dismissing Title IX claim for failure to
allege that deliberate indifference subjected plaintiff to further discrimination); Moore, 2013 U.S.
Dist. LEXIS 33768, at *13-14 (finding Title IX failed as a matter of law where, “even if MSU
was deliberately indifferent to [plaintiff], there are no allegations that the indifference caused her
to experience further or additional harassment”).3

3

It is true that some cases, including one from this district, have found that mere “vulnerability” to further
harassment is sufficient. See Wells v. Hense, No. 1:16-cv-0901-ESH, 2017 U.S. Dist. LEXIS 9332, at *12 (D.D.C.
Jan. 24, 2017); Karasek v. Regents of the Univ. of California, No. 15-cv-03717-WHO, 2015 U.S. Dist. LEXIS
166524, at *42-43 (N.D. Cal. Dec. 11, 2015) (discussing cases); Takla v. Regents of the Univ. of Cal., 2:15-cv04418-CAS(SHx), 2015 U.S. Dist. LEXIS 150587, at *10, 17 (C.D. Cal. Nov. 2, 2015). Wells, however, is
distinguishable. Unlike Plaintiffs here, the plaintiffs in Wells alleged that they stopped going to class due to further
harassment after reporting their assaults, including that they were “ostracized, called names and otherwise bullied by
their peers.” 2017 U.S. Dist. LEXIS 9332, at *6, 14. Moreover, Wells involved students in high school, who were
more “vulnerable” to further harassment in small classrooms with their harassers while at school. By contrast,
Plaintiffs here attend a university with thousands of students on a 250-acre campus. See Davis, 526 U.S. at 649
(noting “[a] university might not, for example, be expected to exercise the same degree of control over its students
that a grade school would enjoy”).
Further, Wells and the other cases that do not require further harassment are inconsistent with the Supreme
Court’s admonishment that schools can be held liable only for harm relating to gender discrimination caused by
(continued...)

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And, the harassment caused by the University 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.” Davis, 526 U.S. at 650. Thus, particularly on
a campus of some 10,000 students, the occasional sightings or encounters with an alleged
harasser around campus cannot alone be harassment sufficiently “severe, pervasive, and
objectively offensive” for Title IX liability to attach. See M.D. v. Bowling Green Indep. Sch.
Dist., No. 1:15-CV-00014-GNS-HBB, 2017 U.S. Dist. LEXIS 11504, at *21-22 (W.D. Ky. Jan.
27, 2017) (granting summary judgment against Title IX claim that school was liable for its “lack
of remedial measures” in response to plaintiff’s report that she was suffering from
“psychological harm” due to the respondent’s “mere presence” on campus); Ha v. Northwestern
Univ., No. 14-cv-00895, 2014 U.S. Dist. LEXIS 160046, at *7-8 (N.D. Ill. Nov. 13, 2014)
(“[O]ccasional glimpse of [harasser] on the campus” and “claims that knowledge of [harasser’s]
presence on the campus caused [plaintiff] considerable grief” are not actionable under Title IX);
O’Hara v. Colonial Sch. Dist., No. 99 CV 399, 2002 U.S. Dist. LEXIS 12153, at *18 (E.D. Pa.
Mar. 25, 2002) (“Plaintiffs allege nothing more than that John Doe could occasionally be found
in the same vicinity as [assaulted student] and that he would stare at her. These are not claims of
________________________
(continued...)
their own deliberate indifference, and are not responsible for remedying past harassment. As one federal court has
held, allowing a victim to sue simply because she feels more vulnerable to harassment would be fundamentally
inconsistent with Davis: “Davis holds to the contrary. There must [be] a direct causal connection between
harassment and a school district’s deliberate indifference, such that the school district can be said to ‘expose’ its
students to harassment or ‘cause’ them to undergo it ‘under’ the recipient’s programs. . . . The Supreme Court has
never endorsed a theory that allows recovery of damages because of a fear of future harassment or a feeling of
vulnerability. Plaintiffs tear out of context the Supreme Court’s use of the word ‘vulnerable’ in explaining how a
school district’s deliberate indifference might ‘subject’ students to harassment. . . . The Court was merely
explaining that a school district violates Title IX when its deliberate indifference exposes students to sexual
harassment that could have been prevented by reasonable measures. The Court did not hold, or even intimate, that a
school district must pay damages for a student’s apprehension of future sexual assault that never materializes.”
Noble v. Branch Intermediate Sch. Dist., No. 4:01cv 58, 2002 U.S. Dist. LEXIS 19600, at *67 (W.D. Mich. Oct. 9,
2002) (internal citations and quotation marks omitted).

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sexual harassment actionable under Title IX.”). To hold otherwise would essentially require
schools to immediately expel anyone accused of sexual misconduct, lest the school run the risk
that the two students may encounter each other while charges are pending. But see Davis, 526
U.S. at 648 (holding that there is no obligation to expel students accused of sexual assault).
2.

Plaintiffs Plead No Facts Showing that Howard’s Response to Their
Claims Amounts to Deliberate Indifference or Caused Them to Suffer
Additional Harassment.

None of the Plaintiffs pleads facts sufficient to establish that Howard engaged in
intentional gender discrimination. Indeed, as described more fully below, each of the Plaintiffs
admits that Howard took action in response to her claim of assault, each of the alleged assailants
was removed from the Howard community, and none of the Plaintiffs claims that she suffered
any further harassment once Howard was put on notice of her specific claims. Instead, Plaintiffs
take issue – in paragraph after paragraph after paragraph – with Howard’s failure to provide
them with the particular remedies they requested, be it counseling, academic accommodations, or
a hearing within a specified time period.
But as explained above, for purposes of civil liability, Title IX does not require
schools to take any particular action to remedy past harassment; rather, a school’s obligation is to
respond to ongoing harassment in its programs and take appropriate measures to stop it or
prevent it from continuing. See Vance, 231 F.3d at 260 (“[Schools are] not required to ‘remedy’
sexual harassment nor ensure that students conform their conduct to certain rules[.]”); Brodsky v.
Trumbull Bd. of Educ., No. 3:06cv1947 (PCD), 2009 U.S. Dist. LEXIS 8799, at *24 (D. Conn.
Jan. 30, 2009) (“The Supreme Court has explained that it is a mischaracterization of the standard
to suggest that funding recipients are required to ‘remedy’ peer harassment in order to avoid
liability under Title IX.”); accord Montoya, 2017 U.S. Dist. LEXIS 40641, at *17-18 (rejecting
arguments that school could have conducted a more elaborate investigation and imposed harsher
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discipline because “neither the Court nor [Plaintiff] is entitled to dictate the Institute’s response
to [the respondent’s] act of sexual harassment”). Thus, even if Howard failed to do all the things
Plaintiffs say it failed to do, that would not violate Title IX.
At the end of the day, none of the Plaintiffs pleads any facts plausibly suggesting
that Howard’s actions were motivated by gender bias. Plaintiffs allege only that they are female
students (Compl. ¶¶ 13-17); that Howard’s response to their reports of sexual assault endangered
and deprived all female students on campus of access to educational opportunities (id. ¶¶ 12,
337); and that Howard’s “unlawful acts” caused each of them to be “denied or limited in her
ability to participate in or benefit from the school’s educational programs or activities on the
basis of sex” (id. ¶¶ 359, 378, 387, 388, 401, 413, 425, 434). These conclusory statements are
not enough. They identify no comments made or actions taken by Howard because Plaintiffs are
female.4
Courts in this district have dismissed Title IX claims absent allegations tying the
alleged discriminatory conduct to a plaintiff’s gender. In Holloway v. Howard Univ., 206 F.
Supp. 3d 446 (D.D.C. 2016), the court dismissed the plaintiff’s Title IX claim after finding “no
factual allegations to link the University’s decision to deny her readmission to her gender.” Id. at
452. The court further noted, “it is not incumbent upon the University on a Rule 12(b)(6) motion
to explain or defend its reasons for denying plaintiff readmission . . . . Rather, it is plaintiff’s
burden to state a plausible claim under Title IX. Here, absent allegations that the University’s
decision was based on plaintiff’s gender, the claim fails.” Id.; see Delbert v. Duncan, 923 F.
4

The Complaint references a handful of alleged comments by Howard administrators and staff, none of
which relates to Plaintiffs’ gender. Compl. ¶ 56 (alleging Title IX Coordinator asked Doe 1 if she had discussed her
alleged rape in a group text message with her friends); ¶ 71 (alleging a dean told Doe 1 “you embarrassed your
family by doing that” in reference to her Twitter post); ¶ 164 (alleging counseling center receptionist told Doe 3 to
be careful with her records because people would “judge her” for her file).

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Supp. 2d 256, 261 (D.D.C. Feb. 14, 2013) (dismissing Title IX claim where the “plaintiff[]
mere[ly] mention[s] his sex” without “factual allegations set forth in the complaint to suggest
discrimination on this basis”).
None of the Plaintiffs alleges sufficient facts to overcome a motion to dismiss:
a.

Jane Doe 1 Fails to State a Discrimination Claim

Jane Doe 1 claims that Howard is liable for both (a) causing her alleged sexual
assault, and (b) responding with deliberate indifference to her report of sexual assault. Neither
claim is plausible.
(1)

Howard is Not Liable for Causing Plaintiff’s Assault

First, Doe 1 alleges that Howard effectively caused her sexual assault in February
2016 because it received a report in October 2015 that the same student had previously assaulted
another student, Jane Doe 2. Compl. ¶¶ 64, 66-67, 82, 353. There is no authority for the
proposition, however, that a college or university of 10,000 students can be liable for the actions
of one of its students, simply because it is on notice of a single allegation that the student had
engaged in prior misconduct on one other occasion.5 To the contrary, in Doe v. Ohio State Univ.
Bd. of Regents, No. 2:04-CV-0307, 2006 U.S. Dist. LEXIS 70444 (S.D. Ohio Sept. 28, 2006),
the court found that the university was not responsible under Title IX for the plaintiff’s sexual
assault despite receiving a report that the same respondent attempted to sexually assault another
student. The court reasoned that, “at the time of the sexual assault on Plaintiff, there were no
definite findings against [the respondent]. Rather, there were just allegations against him. [The

5

Doe 1 also alleges that the respondent had transferred to Howard from another university after he was
accused of similar sexual misconduct. Compl. ¶ 73. But the Complaint does not allege that Howard had actual
knowledge of that prior accusation, and any suggestion that Howard “should have known” is (1) not supported by
any facts and, anyway, (2) is not enough under Title IX. Davis, 526 U.S. at 642.

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University] therefore acted reasonably under the circumstances, that there were only pending
allegations against [the respondent] at the time.” Id., at *33.
Similarly, other courts have rejected attempts to hold schools liable based on the
fact that a respondent had a prior history of misconduct, noting that “the question [] is whether
[the institution’s] knowledge of these prior incidents constitutes ‘actual knowledge’ of
misconduct that would create a risk that Plaintiff would be sexually assaulted that was ‘so great
that they [were] almost certain to materialize if nothing [were] done.’” Doe v. Blackburn Coll.,
No. 06-3205, 2012 U.S. Dist. LEXIS 24797, at *24 (C.D. Ill. Feb. 27, 2012) (citing Hansen v.
Bd. of Trs. of Hamilton Southeastern Sch. Corp., 551 F.3d 599, 605-06 (7th Cir. 2008)); see
McCoy v. Bd. of Educ., 515 F. App’x 387, 392 (6th Cir. 2013) (“[T]he propriety of the [school’s]
response is measured by the known circumstances—i.e., there is a connection between what
school officials know and whether their response is clearly unreasonable.”); Pahssen v. Merrill
Cmty. Sch. Dist., 668 F.3d 356, 363 (6th Cir. 2012) (finding in Title IX claim the fact student had
assaulted another student did not show deliberate indifference as to the plaintiff, since
“[i]ncidents involving third-party victims lack relevance unless the plaintiff can show that the
incidents deprived her of such access”); Schaefer, 716 F. Supp. 2d at 1081 (finding school not
liable for student’s sexual assault under Title IX where it was merely “put on notice that [the
assault] was a possibility” and that “[n]either the Supreme Court nor the Tenth Circuit have said
that a school district would be liable if it was aware that sexual harassment could, might, or
would likely occur in the future”); Ross v. Corp. of Mercer Univ., 506 F. Supp. 2d 1325, 1356
(M.D. Ga. 2007) (“The mere fact that students at [the university] have been victims of sexual
assault in the past is, unfortunately, not uncommon for a University setting. Past incidents of

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assault alone—without any evidence of deliberate indifference on [the university’s] part—are not
enough to trigger Title IX liability[.]).”
Doe 1 does not plead any facts that would make it plausible to believe that
Howard knew that Doe 2’s alleged assailant would engage in the same conduct again, such that
Doe 1’s alleged assault was “almost certain to materialize if nothing [were] done.’” Doe v.
Blackburn Coll., 2012 U.S. Dist. LEXIS 24797, at *24. Assailant 1 allegedly assaulted Doe 2 in
the course of a consensual romantic relationship, and no facts are pleaded suggesting that the
facts of the claim involving Doe 2 showed that Assailant 1 was a risk to other students. To the
extent that Doe 1 suggests that Howard should have prevented her alleged assault by removing
the respondent from campus, the Supreme Court in Davis made clear that schools are not
required to expel every student accused of sexual misconduct, or comply with a complainant’s
demand that a respondent be expelled. Davis, 526 U.S. at 648. Moreover, the University had
not yet completed its investigation into Doe 2’s report at the time of Doe 1’s alleged assault in
February 2016. See Compl. ¶ 130 (alleging Title IX Coordinator was still investigating
information provided by Doe 2 in March 2016). Thus, (while Howard did take interim action
against Assailant 1), expelling Assailant 1 before he was found responsible would have been
premature and may well have resulted in a claim from Assailant 1 that Howard violated his due
process rights.6

6

Further, as in Doe v. Ohio State, Doe 1 here does not plead facts sufficient to show that the assault
occurred in a program that was reasonably within the University’s control, such that it could have had a duty to
prevent it. See Ohio State, 2006 U.S. Dist. LEXIS 70444 at *34 (“OSU cannot possibly be expected to control the
social activities of each of its more than 50,000 students. In this case, the assault did not take place in a classroom,
during a school-sponsored event, or even while Plaintiff and [respondent] were engaged in educational pursuits.
Instead, the assault took place in the early hours of the morning after Plaintiff returned from a night out drinking.
She contacted [the respondent] and they agreed to meet. While the contact between Plaintiff and [the respondent]
began as consensual that night, unfortunately things changed. This, however, is not the type of context that is subject
to OSU’s control, nor should it be expected to be.”).

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(2)

Howard Was Not Deliberately Indifferent to Jane Doe 1’s
Report of Sexual Assault

Doe 1 does not plead any facts suggesting that Howard was deliberately
indifferent to her reported assault. To the contrary, the Complaint itself shows that Howard
promptly responded to her report. Campus police connected Doe 1 to the D.C. Police, the Title
IX Coordinator helped draft Doe 1’s written statement to start the investigation process, and the
University transferred the respondent to a different dormitory. Compl. ¶¶ 51, 52, 55. That
Howard did not also remove the respondent from Doe 1’s classes does not constitute deliberate
indifference. Id. ¶ 54. See Doe v. Bd. of Educ., 982 F. Supp. 2d at 657 (“The argument that
Defendants displayed deliberate indifference by failing to transfer [student’s] harasser to a
different class also fails inasmuch as it calls on this Court to micromanage Defendants.”).
Doe 1 does not allege that she had any further contact with Assailant 1, much less
that she experienced additional harassment, after making her report. She alleges only that she
feared she would see him on campus (Compl. ¶¶ 83, 84), and that on one undated occasion she
saw video footage of him walking into her dormitory building, without any contact with her (id.
¶ 86). This is insufficient. Ha, 2014 U.S. Dist. LEXIS 160046, at *7-8 (“[O]ccasional glimpse
of [harasser] on the campus” and “claims that knowledge of [harasser’s] presence on the campus
caused [plaintiff] considerable grief” are not actionable under Title IX).
Doe 1 alleges that she never received a formal resolution of her complaint.
Compl. ¶¶ 74-75. Yet, by April 2006 – two months after her report – Howard found Assailant 1
responsible for sexual misconduct against Doe 2 and suspended him for two years. Id. ¶ 132.
While Doe 1 may have wanted a separate finding in her own case, she was not legally entitled to
one given that Assailant 1 had already been disciplined and removed from campus. See Preusser
v. Taconic Hills Cent. Sch. Dist., No. 1:10-CV-1347 (MAD/CFH), 2013 U.S. Dist. LEXIS 7057
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(N.D.N.Y. Jan. 17, 2013) (“Upon receipt of a Title IX grievance, a school district is not required
to proceed in a particular manner, even if there are policies in place that would appear to require
the initiation of a formal investigation.”); Noble v. Branch Intermediate Sch. Dist., No. 4:01cv
58, 2002 U.S. Dist. LEXIS 19600, at *56-57 (W.D. Mich. Oct. 9, 2002) (finding that, where
complainant found out the respondent was suspended but never returned to campus, “[f]ormal
expulsion proceedings were unnecessary and futile. Title IX does not require school
administrators to pursue unnecessary and fruitless remedies.”).
Finally, as with the other Plaintiffs, Doe 1 alleges a litany of purported delays and
other supposed procedural missteps in Howard’s handling of her claim. See, e.g., Compl. ¶¶ 54,
56, 58-59, 70-72, 74-75, 92, 98-100, 102, 104, 108. Such allegations sound in negligence, not
deliberate indifference. “Title IX does not require flawless investigations or perfect solutions.”
Sanches, 647 F.3d at 170; see Facchetti, 175 F. Supp. 3d at 637 (stating that whether a college’s
response was “reasonable or proper . . . is not the correct standard” under Title IX, it must have
been “clearly unreasonable” to trigger liability); see also Ross v. Univ. of Tulsa, 180 F. Supp. 3d
951, 973 (N.D. Okla. Apr. 15, 2016) (granting summary judgment despite evidence of potential
missteps in the process because “[t]he inquiry is not whether [the university] could have done
better; it is whether [the university] acted with deliberate indifference to its Title IX obligations
when [plaintiff] reported rape.”).
b.

Jane Doe 2 Fails to State a Discrimination Claim

In October 2015, Jane Doe 2 reported that she had been sexually assaulted and
harassed by her ex-boyfriend, another Howard student. Compl. ¶ 114-15. Howard began
investigating her report and moved Doe 2 to a different dormitory. Id. ¶ 118. In April 2016,
Howard notified Doe 2 that it completed its investigation, found the respondent responsible, and
suspended him from campus for two years. Id. ¶ 132. While Doe 2 alleged that she was
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continuously harassed by her alleged assailant prior to reporting it to Howard, she does not
allege that any harassment occurred after Howard was put on notice of her complaint.
As shown above, Doe 2’s claim that Howard took too long to (favorably) resolve
her complaint (id. ¶ 133) is not actionable under Title IX. In addition, while Doe 2 chose to
leave campus while Howard’s investigation was ongoing, she makes no allegation that her
alleged assailant continued to harass her, or even that she encountered him on campus, after she
made her report, only that “she was afraid . . . [to] run into her assailant on campus . . . .” Id. ¶
123. Her decision to leave does not mean that Howard was deliberately indifferent. Otherwise,
schools would have no choice but to immediately expel a student accused of sexual assault to
eliminate any possibility that a complainant might see them about campus – a result raising
significant due process concerns.7 See Karasek, 2015 U.S. Dist. LEXIS 166524, at *48
(“[P]laintiff[’]s contentions that the University acted with deliberate indifference by allowing
John Doe 2 to remain on campus unrestricted for some period of time during the course of its
investigation . . . run counter to the basic Title IX precept that ‘victims of peer harassment [do
not] have a Title IX right to make particular remedial demands.’” (quoting Davis, 526 U.S. at
648)); Ha, 2014 U.S. Dist. LEXIS 160046, at *7-8 (plaintiff’s claim that “knowledge of [her
alleged harasser’s] presence on the campus caused her considerable grief” was “not actionable
under Title IX”).

7

The Davis decision was a 5-4 decision of the Court, and accompanied by a vigorous dissent by Justice
Kennedy. The majority opinion repeatedly took pains to push back against the “parade of horribles” offered by the
majority. Among other things, the dissent pointed out that: “A school faced with a peer sexual harassment
complaint in the wake of the majority’s decision may well be beset with litigation from every side. One student’s
demand for a quick response to her harassment complaint will conflict with the alleged harasser’s demand for due
process.” 526 U.S. at 682 (Kennedy, J., dissenting). The majority pushed back: “We trust the dissent’s
characterization of our opinion will not mislead courts to impose more sweeping liability than we read Title IX to
require.” Id. at 652.

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c.

Jane Doe 3 Fails to State a Discrimination Claim

The Complaint demonstrates that Howard appropriately responded to Jane Doe
3’s report of sexual assault – it was not deliberately indifferent and it did not discriminate against
her. In November 2014, Howard received a report that Doe 3 had been sexually assaulted and
harassed by a campus police officer she had been dating for several months. Compl. ¶¶ 141,
144. Howard’s Title IX Coordinator, Howard’s Director of the IVPC, and a Howard campus
police officer, all accompanied Doe 3 to make her report to the D.C. Police. Id. ¶¶ 145-46. In
April 2015, when Doe 3 sought academic accommodations, the Dean of Special Student Services
provided her with letters to give to her professors. Id. ¶¶ 169-69. All but two of her professors
granted her extensions of time. Id. ¶ 170. At some (unidentified) point in time, Doe 3 learned
that Howard had terminated her alleged assailant from campus police. Id. ¶ 212. She does not
allege that she faced any further harassment after making her report.
Doe 3’s “most significant cause of . . . concern” about Howard’s response was
that she never received the individual counseling she requested, despite telling Howard that she
was depressed and suicidal. Id. ¶ 186. The Complaint shows that Howard did not simply ignore
Doe 3’s request – it offered her group counseling, which she rejected. But even if Howard had
refused to provide Doe 3 with any counseling, schools have limited resources to devote to a wide
variety of student concerns on campus, and failure to provide counseling is not actionable under
Title IX. See Hazley v. Monroe County Bd. of Ed., No. 08-0142-WS-B, 2008 U.S. Dist. LEXIS
102283 at *9 (S.D. Ala. Dec. 17, 2008) (“[T]he plaintiffs have offered, and the Court has
discovered, no authority for the proposition that a defendant has any duty under Title IX to offer
counseling to a student victim of teacher sexual harassment.”); see also Romero v. City of New
York, 839 F. Supp. 2d 588, 613 (E.D.N.Y. 2012) (finding that, even if the parent of a minor
student asserting a Title IX claim had requested counseling services, “the failure to provide
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services, by itself, is not sufficient to constitute ‘an official decision by the recipient not to
remedy the violation’”) (citing Gebser, 524 U.S. at 290)).
Doe 3 also blames Howard for her failing grades in two classes, because the
University did not force her professors to give her the extensions she requested. Compl. ¶¶ 170,
176. Howard had no obligation to ensure that Doe 3 received the particular academic
accommodations she wanted.8 Moreover, despite alleging that her professors “refused to provide
or engage in a conversation regarding an academic accommodation” (id. ¶ 173), Doe 3 admits
that Howard faculty and administrators had multiple conversations with her. Doe 3 did not
request accommodations until April 2015, close to the end of the spring semester. Id. ¶ 167.
Both of her professors explained to Doe 3 that they could not grant the extensions she wanted
because she sought them too late in the semester, and advised that she withdraw from their
classes to avoid a failing grade (which she did not do). Id. ¶¶ 171-72. Later, Howard’s Title IX
Coordinator and a Howard dean separately explained to Doe 3 that professors had final say in
granting accommodations in their classes and the University could not force them to do so. Id.
¶¶ 173-74, 184. When Doe 3 later wanted Howard to change her failed grades to incompletes,
Howard’s counsel explained to Doe 3 and her attorney that she had not completed enough work
to qualify for incompletes in those classes under the University’s academic policies. Id. ¶ 191.
Thus, the Complaint itself shows that, at every turn, Howard made reasonable efforts to evaluate

8

Even in the ADA context, a school need not make any accommodation that alters the fundamental
educational requirements of its courses. See School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 288 n. 17
(1987) (stating that “an [a]ccommodation is not reasonable if it . . . requires a fundamental alteration in the nature of
the program”); accord Wynne v. Tufts University School of Medicine, 976 F.2d 791, 793 (1st Cir. 1992) (affirming
summary judgment for university in ADA case where “accommodating plaintiff would lower academic standards or
otherwise unduly affect its program”). Here, the University engaged in a reasonable, interactive process with
Plaintiff to address her concerns, and was not deliberately indifferent.

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Doe 3’s requests and explain to her when and why they were not feasible. That Doe 3 did not
like those answers does not mean that Howard was deliberately indifferent to her report.
d.

Jane Doe 4 Fails to State a Discrimination Claim

Howard did not make an affirmative decision to ignore Jane Doe 4’s report of
sexual assault; rather, Howard granted her request to change dormitories a week after her report
(during which Howard was on Spring Break),9 issued a protective order against the respondent,
provided academic accommodation letters for her professors, and on August 23, 2016, issued a
finding of responsibility against the respondent and suspended him for a semester. Compl. ¶¶
226, 228, 232, 236, 251, 287. The process, therefore, took only about five months, part of which
was the summer break.
In addition, Doe 4 does not allege that she experienced any further harassment
after her report. She alleges that she saw the respondent around campus while the investigation
was pending “[o]n at least four occasions in less than three weeks” (id. ¶ 244), but without any
interaction with him. She also saw him on campus once at a homecoming pep rally after his
suspension (id. ¶ 288), but campus police removed him within an hour of her report after
confirming that he had been suspended and barred from campus. Again, she does not allege that
he harassed or even attempted to contact her on that occasion. These sightings alone do not
sufficiently plead actionable harassment “so severe, pervasive, and objectively offensive that it
effectively bars the victim’s access to an educational opportunity or benefit” provided by the
school. Davis, 526 U.S. at 633.

9

At no point did Doe 4 share a dormitory with her alleged assailant. He lived in the dormitory next to her
building before she changed dorms. Compl. ¶ 227.

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Doe 4’s remaining allegations relate to particular remedial demands that she did
not receive, including that Howard did not (1) coordinate her schedule with the respondent to
ensure she would not see him in the cafeteria, fitness center, or other “main locations on campus”
(Compl. ¶¶ 245, 250); and (2) force her professor to give her the extension of time she requested
(id. ¶¶ 237-242). But she was never entitled to those demands and cannot sue Howard for
damages because it did not provide a particular “remedy” to harassment committed not by the
school, but by someone else. See Vance, 231 F.3d at 260 (stating “[v]ictims do not have a right
to particular remedial demands” under Title IX); Oden, 440 F.3d at 1089 (“An aggrieved party is
not entitled to the precise remedy that he or she would prefer.”); accord Moore v. Regents of the
Univ. of Cal., No. 15-cv-05779-RS, 2016 U.S. Dist. LEXIS 67548, at *21 (N.D. Cal. May 23,
2016) (dismissing Title IX claim involving university’s alleged failure to provide plaintiff with
the coursework accommodations she requested following her alleged assault).
Similarly, Doe 4 was unhappy with the respondent’s one-semester suspension,
and preferred “a longer suspension that would allow her to complete her education without fear
of seeing him on campus.” Compl. ¶ 291. Yet, Title IX does not require that she agree or
approve of the sanction imposed. See Ohio State, 2006 U.S. Dist. LEXIS 70444, at *43
(“Simply because Plaintiff believes that [her alleged attacker] should have been expelled after
the attack on Ms. Lee, does not mean that OSU was required to do so.”). Doe 4’s discrimination
claim therefore should be dismissed.
e.

Jane Doe 5 Fails to State a Discrimination Claim

The Complaint shows that Howard investigated Jane Doe 5’s claim, resolved it in
her favor, sanctioned the respondent, and granted the single accommodation she requested. The
allegations demonstrate that Howard did not make an affirmative decision to ignore her
complaint, nor did she suffer any additional harassment that was caused by any action or inaction
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by Howard. To the contrary, after her reported sexual assault, Doe 5 never saw the respondent
again.
Doe 5 reported her alleged assault to Howard on April 29, 2015. Compl. ¶ 304.
On the same day – in a completely unrelated development – she discovered she was several
credits short to graduate in the spring 2015 semester as she had planned. Id. ¶ 305.10 Doe 5
“requested accommodations to take those credits at a different school closer to her home in
Michigan” because she was allegedly afraid to remain on campus. Id. ¶ 307. Howard approved
her request to take summer courses in Michigan in time for her enrollment deadline and later
accepted her credits so that she was able to graduate, even waiving the University requirement
that students complete their last 30 academic credits at the University. Id. ¶¶ 316, 346. On
December 9, 2015, Howard found the respondent in Doe 5’s case responsible for sexual
misconduct and suspended him for two years. Id. ¶ 334.
Despite getting the outcomes she desired, Doe 5 takes issue with purported delays
in the process, claiming that Howard took over seven months to resolve her claim. Id. ¶¶ 304,
334-335.11 Allegations of delay alone, however, are not enough to show deliberate indifference.
See, e.g., Oden, 440 F.3d at 1089 (nine-month delay in proceedings was not deliberately
indifferent). Moreover, the delays in the investigation were not unreasonable, never mind
deliberate indifference. Doe 5 admits that she did not send her final statement of claims to the
10

Doe 5 does not allege that the notice she received from Howard regarding her ineligibility to graduate
had anything to do with her sexual assault report. (It did not).
11

Although Doe 5 also suggests that Howard’s delay in approving her credits caused her seven months of
distress at the possibility of having to return to Howard while the respondent was on campus (see Compl. ¶ 346), the
facts she pleads undermine that inference. Doe 5 submitted her summer grades to Howard for approval on
September 14, 2015. Id. ¶ 325. While Howard did not confirm its approval until April 25, 2016, she learned
months before – on December 9, 2015 – that the respondent would be suspended for two years. Id. ¶ 334. Thus,
even if Doe 5 remained unsure about whether she would need to return to campus, she knew during most of that
seven-month period that the respondent would no longer be on campus.

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Title IX Coordinator until July 1, 2015 (Compl. ¶ 320), which was already more than 60 days
after her report on April 29. In addition, because she reported her assault at the end of the spring
semester, the investigation spanned into the summer break when student witnesses are away
from campus and not easily reachable. See id. ¶ 321 (alleging Title IX informed Doe 5 on July 9,
2015 that she had not yet been able to contact the respondent).
Nor does Doe 5 allege that any “deliberate indifference” by Howard caused her to
suffer further harassment. While Doe 5 alleges that she left campus out of fear after her assault
(id. ¶ 346), she does not allege facts suggesting that she left due to any further harassment or
because Howard responded inadequately to her safety concerns. In fact, she does not even allege
that she discussed her safety concerns with anyone at Howard or asked for any accommodations
before she had already decided to leave. Instead, Doe 5 left Howard’s campus just days after
reporting her alleged assault because (a) it was the very end of the spring semester in which she
had expected to graduate and depart from campus anyway, and (b) she decided to heed the
advice of a D.C. Police detective – not the University – who told her to return home to Michigan
to avoid any chance of retaliation by the respondent. See id. ¶ 301 (alleging assault at a
graduation party on April 25), ¶¶ 302-303 (alleging her report to the police on April 26); ¶ 304
(alleging her report to Howard on April 29); ¶ 309 (alleging she returned home to Michigan).
Thus, any suggestion that Doe 5 left campus because of Howard’s response (or lack thereof) to
her report is unsupported by the pleaded facts and implausible.
Finally, Doe 5 alleges that Howard allowed the respondent in her case to continue
attending classes “[d]uring that fall semester, despite being found guilty of sexual assault.” Id. ¶
336. Even if true, “during” here would mean, at most, just a few days. There was no finding of
responsibility against the respondent until December 9 (id. ¶ 334), which was shortly before the

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end of the fall semester. In any event, his presence had no effect on Doe 5 because she had
already left campus long before that semester and had completed all her coursework. Id. ¶ 309.
B.

The Court Should Dismiss Counts II (Jane Doe 1), IV (Jane Doe 2), and VIII
(Jane Doe 5) Because Plaintiffs Do Not State a Title IX Claim For Retaliation
In addition to their sex discrimination claims, Jane Does 1, 2 and 5 bring

retaliation claims under Title IX. The United States Supreme Court has recognized a claim for
retaliation under Title IX “when a funding recipient retaliates against a person because he
complains of sex discrimination . . . .” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174
(2005).
However, “[t]he threshold issue for any Title IX claim” – including retaliation
claims – “is whether there has been discrimination based on sex.” Delbert v. Duncan, 923 F.
Supp. 2d 256, 261 (D.D.C. Feb. 14, 2013). Like their discrimination claims, Plaintiffs’
retaliation claims fail to meet this threshold absent any allegations that Howard acted based on
their gender. Accordingly, their retaliation claims should be dismissed. See id. (“Aside from
plaintiff’s mere mention of his sex . . . there are no factual allegations set forth in the complaint
to suggest discrimination on this basis and, therefore, he is not able to sustain a claim of
retaliation under Title IX.”); see also Goring v. Bd. of Supervisors of La. State Univ. & Agric. &
Mech. College, 932 F. Supp. 2d 642, 656 (M.D. La. 2010) (granting summary judgment against
plaintiff’s Title IX retaliation claim after finding “no evidence in the record of any retaliatory
actions based on gender”).
In addition, Plaintiffs fail to plead facts showing causation, an essential element of
a retaliation claim. To state a prima facie claim for retaliation under Title IX, a plaintiff must
allege facts to support a plausible claim “(a) that he or she was engaged in protected activity, (b)
that he or she suffered an adverse action, and (c) that there was a causal link between the two.”
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Wells v. Hense, 2017 U.S. Dist. LEXIS 9332, at *16 (D.D.C. Jan. 24, 2017) (quoting Ollier v.
Sweetwater Union High Sch. Dist., 768 F.3d 843, 867 (9th Cir. 2014)). With respect to
causation, a plaintiff must allege that “a retaliatory motive played a substantial part in prompting
the adverse action.” Id. (quoting Frazier v. Fairgaven Sch. Comm., 276 F.3d 52, 67 (1st Cir.
2002)). “[C]lose temporal proximity . . . is insufficient, standing alone, to satisfy [plaintiff’s]
burden to bring forward some evidence of pretext.” Baldwin v. New York State, No. 15-3910,
2017 U.S. App. LEXIS 8261, at *7 (2d Cir. May 10, 2017) (internal quotation marks and
citations omitted).
In Wells, the plaintiffs alleged that school officials retaliated against them for
reporting sexual misconduct by (1) failing to properly investigate and otherwise ignoring their
mandated Title IX responsibilities, and (2) declining to intervene to stop the harassment and
bullying by other students. 2017 U.S. Dist. LEXIS 9332, at *15. The court dismissed plaintiffs’
retaliation claims after finding no causal connection between their acts of reporting the sexual
harassment and the school’s alleged failure to respond appropriately. Id., at *16; see Gillen v.
Borough of Manhattan Community College, No. 97 Civ. 3431 (DAB), 1999 U.S. Dist. LEXIS
4862, at *22 (S.D.N.Y. Apr. 12, 1999) (dismissing Title IX retaliation claim where “there is no
allegation of a causal connection between Plaintiff’s complaints to [the university] and an
adverse employment action taken by [the university]”); see also Ross, 506 F. Supp. 2d at 1361
(granting summary judgment on Title IX retaliation claim because “[Plaintiff] has offered no
evidence of any kind that would show that [the university’s] inaction was motivated by
retaliation.”). Here, as in Wells, Jane Does 1, 2, and 5 fail to allege any facts showing a causal
connection between their reports of sexual assault and any alleged deficiencies in Howard’s
response.

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1.

Jane Doe 1 Fails to State a Retaliation Claim

Doe 1 alleges that Howard retaliated against her when it “fired her from her
position as a Resident Assistant because of her assailant’s allegations” that Doe 1 violated a
University policy. Compl. ¶¶ 364-65. Her own pleading negates a causal connection: she was
removed as an RA in response to a report that she violated University policy, not in response to
her report of sexual assault. The University made clear to Doe 1’s attorney that her removal was
a Human Resources issue “not related to Plaintiff’s complaint of sexual assault.” Id. ¶ 95. In
addition, that Howard also removed Doe 1’s male friend from his RA position based on his
involvement in the same reported policy violation belies any claim that Doe 1 was targeted
because she is female or reported a sexual assault. See id. ¶ 101. And Howard ultimately
reinstated Doe 1 as an RA for the next academic year. Id. ¶¶ 105-06.
To the extent Doe 1 alleges Howard “enforced” her alleged assailant’s retaliation
by acting on his report (id. ¶ 88), this claim is baseless. Critically, Doe 1 does not deny that she
violated University policy or allege that his report against her was false. See id. ¶¶ 60-61, 364365. Even if his motive in reporting her was retaliatory, she cannot impute his motive or his
actions to Howard. See Miles v. Washington, No. CIV-08-166-JHP, 2009 U.S. Dist. LEXIS
7300, at *11 (E.D. Okla. Feb. 2, 2009) (finding “[t]he actions of the students who threatened
Plaintiff after she reported the rape are insufficient to establish that [the college] took some form
of adverse action toward Plaintiff,” because “[t]he students are not agents of the school and their
actions can not be considered the actions of the school.”); Ross, 506 F.Supp.2d at 1361 (holding
that evidence of threats and other intimidating actions by university students was insufficient to
establish that the university retaliated against a student who reported sex discrimination).
Indeed, Doe 1 admits that, as an RA, she was responsible for serving as a “role model to fellow
college students” (Compl. ¶ 46) and, therefore, upholding University policies. Doe 1 was not
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entitled to a free pass for violating those policies just because the report came from her alleged
assailant, and the University was not prohibited from enforcing its conduct policies with regard
to Doe 1 simply because she had previously filed a Title IX complaint.
2.

Jane Doe 2 Fails to State a Retaliation Claim

Jane Doe 2 alleges that Howard retaliated against her “when it charged her for
moving dormitories” and “continued to place inaccurate charges and holds on her account.”
Compl. ¶ 137. Even if true, she pleads no facts suggesting that any of these events occurred in
retaliation to her report of sexual assault.
Doe 2 alleges that she disputed these charges with “Howard” (without identifying
any individuals or departments) when she attempted to withdraw at the end of the Fall 2015
semester, and again when she attempted to transfer to another school in July 2016. Id. ¶¶ 123124, 127. She does not allege, however, that those to whom she spoke even knew that she had
reported a sexual assault in October 2015 (they did not), or whether they would have reason to
know that the charges on her account were incorrect or had the authority to remove them. Doe
2’s allegations describe, at best, accounting mistakes or misunderstandings, and are insufficient
to plausibly allege that Howard had “a retaliatory motive [that] played a substantial part in
prompting” the financial errors on her account. Wells, 2017 U.S. Dist. LEXIS 9332, at *16; see
Tackett v. Univ. of Kan., No. 16-2266-JTM, 2017 U.S. Dist. LEXIS 19536, at *18 (D. Kan. Feb.
10, 2017) (finding that “demanding payment for tuition . . . or placing a hold on transcript are
standard practices when a student withdraws from school. The court finds no basis to infer that
[the university] did any of these acts to plaintiff with retaliatory animus.”).
Jane Doe 2’s remaining allegations of retaliation fail because, like Doe 1’s
retaliation claim, they merely duplicate the same allegations underlying her discrimination claim.
Compare Compl. ¶¶ 373-377 with ¶¶ 383-84, 386-387. In this district, the Wells court doubted
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“whether it is even possible for deliberately harmful inaction in response to a report of sexual
harassment is equal to an adverse action for purposes of retaliation[.]” 2017 U.S. Dist. LEXIS
9332, at *16 n.4.
Other courts have held that a plaintiff may not rely on allegations that the same
conduct constituted both deliberate indifference and retaliation under Title IX. See Williams v.
Columbia Univ., No. 11 Civ. 8621 (WHP), 2012 U.S. Dist. LEXIS 130358, at *8 (S.D.N.Y. Aug.
28, 2012) (dismissing Title IX retaliation claim because a “‘failure to investigate a complaint
cannot be considered an adverse . . . action taken in retaliation for the filing of that same
complaint’ because it ‘will not ordinarily constitute a threat of further harm[.]’”) (quoting
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 722 n.8 (2d Cir. 2010)); Ross, 506
F. Supp. 2d at 1361 (“[T]he Court does not believe the Supreme Court, when it announced its
holding in Jackson, intended the same set of facts to give rise to both a discrimination and a
retaliation claim.”).
3.

Jane Doe 5 Fails to State a Retaliation Claim

Like Jane Doe 2, Jane Doe 5’s retaliation claim merely duplicates her
discrimination claim – e.g., that Howard retaliated against her for reporting her sexual assault by
purportedly failing to complete a timely investigation or to provide her with accommodations.
Compare Compl. ¶¶ 420-424 with ¶¶ 430-433. Because Doe 5’s retaliation claim simply repeats
her discrimination claim, which too fails, her retaliation claim should be dismissed.

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V.

RELIEF
For the foregoing reasons, Defendant Howard University respectfully requests

that the Court dismiss Plaintiffs’ Complaint for failure to state a claim upon which relief can be
granted.
The University requests oral argument on this Motion pursuant to Local Rule
LCvR 7(f).

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Date: July 3, 2017

Respectfully submitted,
/s/ Matthew D. Foster____
Matthew D. Foster
(D.C. Bar No. 503057)
PEPPER HAMILTON LLP
Hamilton Square
600 Fourteenth Street, N.W.
Washington, D.C. 20005-2004
fosterm@pepperlaw.com
Telephone: 202.220.1235
Facsimile: 202.220.1665
Michael E. Baughman, Esq. (pro hac vice)
(PA Bar No. 78690)
baughmam@pepperlaw.com
Hedya Aryani, Esq. (pro hac vice)
(PA Bar No. 306616)
aryanih@pepperlaw.com
PEPPER HAMILTON LLP
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103-2799
(215) 981-4000
Ariana Wright Arnold, Esq.
Senior Associate General Counsel
Howard University
2400 6th Street, N.W.
Johnson Administration Building, Suite 321
Washington, DC 20059
(202) 806-2657
ariana.arnold@Howard.edu
Attorneys for Defendant Howard University

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CERTIFICATE OF SERVICE
I certify that on the 3rd day of July, 2017, a copy of the foregoing Defendant
Howard University’s Motion to Dismiss Plaintiffs’ Complaint was served electronically via the
Court’s Electronic Case Filing system on the following:
Linda M. Correia (D.C. Bar No. 435027)
Lauren A. Khouri (D.C Bar No. 10282288)
1775 K Street NW, Suite 600
Washington, DC 20006
(202) 602-6500
lcorreia@correiaputh.com
lkhouri@correiaputh.com
Counsel for Plaintiffs

/s/ Matthew D. Foster
Matthew D. Foster, DC Bar #503057
PEPPER HAMILTON, LLP
Hamilton Square
600 Fourteenth Street, N.W.
Washington, DC 20005-2004
fosterm@pepperlaw.com
Telephone: 202.220.1235
Facsimile: 202.220.1665
Attorney for Defendant
Howard University