S.W. v. Kansas State University - Statement of Interest

 

 

 

 

INTRODUCTION

 

Plaintiff Sara Weckhorst (“S.W.”) is a student at Kansas State University (“K-State”). In May of 2014, S.W. reported to K-State that she had been raped multiple times “by two K-State students during a fraternity event and again later at the fraternity house.” Compl. ¶ 1.[1] She further reported living in constant fear of the accused students, being harassed by other students about the alleged rapes, and struggling academically. Id. ¶¶ 1, 27, 36, 43, 79. K-State informed S.W. that it would do nothing about rapes that occurred “off-campus.” Id. ¶ 22. Despite months of pleas from S.W. and her family, K-State repeatedly refused to investigate the alleged rapes or take action to address their negative effects on her education or her safety. Id. ¶¶ 22, 33, 38, 46. 

S.W. alleges that this refusal constitutes deliberate indifference to a hostile environment that denies her the benefits of K-State’s education programs and activities in violation of Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq. Title IX prohibits sex discrimination by recipients of federal funds in all education programs and activities, including extracurricular activities such as university-recognized fraternities. K-State has moved to dismiss S.W.’s Title IX claims, arguing that it need not respond to reports of student-on-student rape at “off campus” fraternity houses or events, and that S.W. must, yet fails to, allege that K-State’s deliberate indifference caused her alleged assailants to harass her again. K-State is incorrect, and its motion should be denied.

INTERESTS OF THE UNITED STATES[2]

 

The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C § 517, to provide the correct legal standards governing private sexual harassment claims for both monetary and equitable relief under Title IX. The United States Departments of Justice (“DOJ”) and Education (“ED”) share responsibility for enforcing Title IX in the education context. ED has four open Title IX investigations of K-State involving sexual harassment. 

In addition to its own enforcement interest, the United States has an interest in ensuring effective private enforcement of Title IX in court. Students who experience sexual assault and others injured by Title IX violations may seek both equitable relief, including injunctive relief compelling their schools to investigate their allegations and address their hostile environments, and monetary damages to compensate for injuries caused by the schools’ deliberate indifference. As explained below, the legal standards for evaluating damages and equitable claims under Title IX are similar but distinct, and the United States has a strong interest in their proper application. 

STATEMENT OF FACTS

 

S.W.’s allegations are as follows. As a freshman at K-State, S.W. attended a fraternity event at Pillsbury Crossing, a frequent K-State party spot. Compl. ¶ 13. After becoming intoxicated, S.W. blacked out. Id. Her last memory was meeting J.K, a K-State student and the fraternity’s designated driver. Id. J.K. allegedly sexually assaulted the incapacitated S.W. three times: once in his car while 15 other K-State students watched and recorded the assault with videos and photos; once as he drove her to the University-recognized fraternity house; and once in the public, multi-bed sleeping room of the fraternity house. Id. ¶¶ 13-15. Then J.K. abandoned S.W., naked and passed out. Id. ¶ 15. Hours later, she awoke to another K-State student and fraternity member allegedly raping her. Id. ¶ 16. When she tried to escape him, he followed her onto the fraternity balcony and allegedly raped her again. Id.

Soon thereafter, S.W. learned that videos and photos of the first alleged rape were being shared among students on social media. Id. ¶ 18. She also received harassing messages about her alleged rapes. Id. ¶43. She became fearful on campus, worried she would run into the accused. Id. ¶¶ 27, 29, 36, 77. S.W. reported the rapes and related harassment to K-State’s Affirmative Action Office (“AAO”) in charge of enforcing its sexual misconduct policy. Id. ¶¶ 22, 43. There she learned that, despite the fact that 21 percent of K-State students participate in fraternities and sororities, id. ¶ 59, “K-State would do nothing about the rapes or the two-student assailants because the rapes occurred off-campus,” id. ¶ 22. Undeterred, S.W. reported the rapes to deans from the Office of Student Life, but they also told her they would not investigate what they viewed as off-campus rape. Id. ¶ 38. In June 2014, S.W. and her family met with two deans of Student Life and the Interim Director of the AAO. Id. ¶ 46. Despite notice of the continuing effects the alleged rapes had on S.W.’s education and mental health, the officials told her K-State would not respond to reports of off-campus rape. Id. Yet, K-State suspended the fraternity for serving alcohol in violation of K-State rules at the event where she was allegedly raped. Id. ¶¶ 39, 41, 62. 

As a result of her alleged rapes and K-State’s refusal to investigate them, S.W. has spent the last two years of college in constant fear. Id. ¶¶ 29, 36. She exhibits symptoms of Post-Traumatic Stress Disorder. Id. ¶¶ 78. She stopped going to classes and hid in her dorm room. Id. ¶ 36. She refused to access campus resources unless friends could accompany her. Id. ¶ 77. She turned down academic opportunities. Id. ¶ 80. Her grades fell and she lost her scholarship. Id. ¶ 79.

QUESTIONS PRESENTED

 

1. Whether S.W. sufficiently pleads facts alleging severe, pervasive, and objectively offensive harassment that created a hostile environment in a K-State education program or activity, where she alleges being raped multiple times by two K-State students in a fraternity recognized by K-State, and experiencing continuing effects of the rapes on campus?

 

2. Whether K-State had a duty to respond once it had actual knowledge of reports of rape perpetrated by K-State students over which it exercises disciplinary authority, and again upon notice of S.W.’s ongoing experience of a hostile environment on campus created by those alleged rapes?

 

3. Whether S.W. sufficiently pleads that K-State acted with deliberate indifference by refusing to respond to her reports of student-on-student rape and by maintaining an official policy of not investigating reports of “off-campus” rapes in its fraternities, which are a university-recognized extracurricular activity?

 

4. Whether S.W. sufficiently pleads plausible claims for equitable relief under Title IX?

 

ARGUMENT

 

Title IX covers all education programs and activities of a federally funded school, including the house and events of a school-recognized fraternity. The continuing effects of student-on-student rape, including the constant fear of exposure to one’s assailant, can render a student’s educational environment hostile. Thus, a school must respond to allegations of sexual assault in fraternity activities to determine if a hostile environment exists there or in any other education program or activity. Even if an alleged student-on-student assault occurs outside of such a program or activity, a school has a duty to respond to the allegations to determine if a hostile environment related to the assault exists in one of its programs or activities. If a school responds in a manner that is deliberately indifferent to the alleged assault or attendant hostile environment, it may be held liable for damages. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999). Contrary to K-State’s suggestion, a student who has notified her school of a hostile educational environment created by rape at a fraternity need not wait to be raped or otherwise harassed again by her student assailant to trigger her school’s Title IX duty to respond or seek relief in court.

In this case, S.W. alleges sufficient facts to establish a plausible Title IX claim for damages under Davis. First, S.W. alleges that she experienced severe, pervasive, and objectively offensive harassment by other K-State students in the context of an education activity over which K-State exercises substantial disciplinary and regulatory control: at the event and house of a K-State-recognized fraternity. S.W. alleges that K-State had actual knowledge of her reported rapes, the related peer harassment, and the hostile educational environment thereby created, and that it was deliberately indifferent in refusing to investigate or otherwise address the alleged rapes and attendant hostile environment. In addition, the Complaint alleges sufficient facts showing that K-State created and maintained an “official policy … of deliberate indifference” by interpreting its sexual misconduct policy to exempt rapes at fraternities and fraternity events— its own extracurricular activities—and by refusing to investigate reports of such rapes. See Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1178 (10th Cir. 2007). 

Because S.W.’s allegations are sufficient to establish all elements of a Title IX damages claim, they are more than sufficient to state a Title IX claim for equitable relief.

I.S.W. has pled a plausible Title IX claim for damages under the Davis standards

 

Title IX prohibits recipients of federal funds from discriminating on the basis of sex in all of their education programs and activities. 20 U.S.C. § 1681(a). In Davis, the Supreme Court considered whether a recipient could be held liable for damages for peer sexual harassment and “conclude[d] that recipients … may be liable for ‘subject[ing]’ their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority.” 526 U.S. at 646-47. The Court limited damages liability to circumstances wherein the recipient “exercises substantial control over both the harasser and the context” in which the harassment occurred, id. at 645, and defined “deliberate indifference” to mean “only where the recipient’s response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances,” id. at 648. 

In reversing the lower court’s dismissal of Davis’s complaint under Rule 12(b)(6), the Court determined that the alleged verbal and physical harassment over a five-month period was “severe, pervasive, and objectively offensive” and “had a concrete, negative effect on [Davis’s] daughter's ability to receive an education.” Id. at 653-54. With respect to the other elements of a Title IX damages claim, the Court stated that the “complaint also suggests that [Davis] may be able to show both actual knowledge and deliberate indifference on the part of the Board, which made no effort whatsoever either to investigate or to put an end to the harassment.” Id. at 654.    The allegations in S.W.’s Complaint likewise suffice under Davis’s Rule 12(b)(6) analysis.

Consistent with Davis, the Tenth Circuit has held that a school may be liable for damages under Title IX where it “(1) has actual knowledge of, and (2) is deliberately indifferent to, (3) [sexual] harassment that is so severe, pervasive[,] and objectively offensive as to (4) deprive access to the educational benefits or opportunities provided by the school.” Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1119 (10th Cir. 2008). The allegations in S.W.’s Complaint also state a plausible Title IX claim for damages under binding Tenth Circuit case law, which explicitly recognizes that sexual assault occurring off school grounds can create liability under Title IX provided there is “some nexus between the out-of-school conduct and the school.” Id. at 1121 n.1 (citing Davis, 526 U.S. at 645).

A.S.W. has sufficiently pled that K-State knew of severe, pervasive, and objectively offensive sexual harassment that created a hostile educational environment

 

To establish a claim for damages based on peer sexual harassment, a student must show a school had actual knowledge of sufficiently severe, pervasive, and objectively offensive sexual harassment that created a hostile environment in an education program or activity. Rape constitutes a severe form of sexual harassment that can create a hostile educational environment under Davis. See, e.g., Soper v. Hoben, 195 F.3d 845, 854-55 (6th Cir. 1999). Student-on-student rape can have continuing effects that create a hostile educational environment for the victim. Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282, 1297-98 (11th Cir. 2007); see also Wills v. Brown Univ., 184 F.3d 20, 37 (1st Cir. 1999) (“The effect of such abusive conduct on a victim does not necessarily end with a cessation of the abusive conduct, particularly if the victim and the abuser retain the same or similar roles in an educational institution.”).

S.W. sufficiently alleges that she gave K-State actual notice of severe, pervasive, and objectively offensive sexual harassment in an education activity covered by Title IX when she reported being repeatedly raped by K-State students at the house and event of a university-recognized fraternity. Compl. ¶¶ 13-16, 22. Even if the alleged rapes had not occurred in an extracurricular activity covered by Title IX, S.W.’s repeated reports to K-State made clear that the continuing effects of the alleged rapes created a hostile environment on campus that denied her educational benefits and opportunities. Id. ¶ 27, 79, 80. She reported her constant fear and risk of encountering the accused, harassing posts about the alleged rapes by peers on social media, and how both conditions deprived of her of access to K-State programs and activities. Id. ¶¶ 29, 30, 43, 46. 

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

 

Title IX’s text, case law, regulations, and guidance clearly instruct that a university-recognized fraternity is an education activity, and that S.W. may state a Title IX claim based on K-State’s refusal to respond to a report of rape at such a fraternity’s house or event. Title IX defines “program or activity” as “all of the operations of … a college [or] university.” 20 U.S.C. § 1687(2)(A). Thus, as K-State acknowledges, sex discrimination that occurs under any of its programs or activities is covered by Title IX. MTD at 7. K-State contends, however, that rape at a fraternity house or event located “off campus” is not covered. MTD at 7-12. This contention is incorrect. As S.W.’s allegations illustrate, a K-State-recognized fraternity is a covered education activity, and K-State may be held liable for its failure to respond to rapes that occur at such a fraternity’s house or event. Compl. at ¶¶ 23, 39-41, 43, 57-59, 62-63, 67, 69-72.

Title IX is broad remedial legislation whose text “should be accorded ‘a sweep as broad as its language.’” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 296 (1998) (quoting N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982)). The all-encompassing language of §§1681 and 1687—“any education program or activity,” and “all of the operations”—is qualified only by the statute’s express exemptions. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005) (“Title IX is a broadly written general prohibition on discrimination, followed by specific, narrow exceptions to that broad prohibition.”). The explicit exceptions to Title IX mandates in § 1681(a)(1)-(9) do not exempt extracurricular activities that extend off campus, such as fraternities.[3] Nor does the statute’s text provide any geographic limitations on Title IX’s application to these activities. To the contrary, the Tenth Circuit and other courts have recognized that off-campus conduct occurring under a school’s activity or program is covered by Title IX. See, e.g., Simpson, 500 F.3d at 1178-80, 1184 (finding football recruiting activities taking place off campus are part of university’s program and finding Title IX liability may lie for response to student-on-student sexual assaults by recruits at a private apartment); King v. Bd. of Control of E. Mich. Univ., 221 F. Supp. 2d 783 (E.D. Mich. 2002) (finding study abroad program was covered under Title IX).

Consistent with this case law, ED has long interpreted Title IX and its regulations to protect students while they participate in extracurricular activities that extend outside the geographic confines of campus. ED’s regulations clarify that Title IX’s broad sweep includes any “extracurricular” activity or program of a university, 34 C.F.R. § 106.31(a), and its guidance explains that this means “whether [those programs] take place in the facilities of the school, on a school bus, at a class or training program sponsored by the school at another location, or elsewhere,” 2001 Revised Sexual Harassment Guidance at 2-3.[4]

Additional Title IX guidance from ED made clear that schools “must determine whether … alleged off-campus sexual violence occurred in the context of an education program or activity of the school,” and if it did, “the fact that the alleged misconduct took place off campus does not relieve the school of its obligation to investigate the complaint as it would investigate a complaint of sexual violence that occurred on campus.” 2014 Questions and Answer on Title IX and Sexual Violence at 29 (“2014 Q&A”).[5] This guidance spoke directly to whether university-recognized fraternities are “extracurricular” programs or activities and, thus, whether Title IX extends to misconduct at university-recognized fraternity houses and events:  

Off-campus education programs and activities are clearly covered and include, but are not limited to:  activities that take place at houses of fraternities or sororities recognized by the school; school-sponsored field trips, including athletic team travel; and events for school clubs that occur off campus (e.g., a debate team trip to another school or to a weekend competition).

 

Id. (emphasis added). ED’s regulations and guidance on this issue are consistent with Title IX’s broad text and remedial purpose, are supported by case law, and should be afforded Chevron and Auer deference, respectively. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984); Auer v. Robbins, 519 U.S. 452, 461 (1997).[6]

The facts alleged in S.W.’s Complaint underscore the reasonableness of ED’s guidance, and demonstrate that K-State itself considers the fraternities to be its extracurricular activities.  First, S.W. states that at the time of her alleged rapes, K-State endorsed the fraternity and its house with official University recognition. Compl. ¶ 23. Official recognition brings with it a host of benefits, including financial benefits, personnel, and other resources. Id. ¶¶ 23, 59, 67, 69. S.W. also alleges that “Fraternities are student organizations, boasted by K-State as an integral part of its campus experience and highlighted as part of its self-promotion.” Id. ¶ 63. K-State hosts a Greek Affairs website, where it provides information about university-recognized fraternities and houses, and discusses the value of “Our Greek Community” consisting of 17 sororities, 28 fraternities, and nearly 4,000 undergraduate students, approximately 21 percent of K-State’s student population. Id. ¶ 57, 59. Indeed, K-State markets itself and the educational experience it offers by promoting fraternity life to prospective students and their parents. Id. ¶ 58. The Complaint alleges that K-State’s website states: “The Greek experience at K-State provides a safe and fun way to maximize the college experience.” Id. (emphasis added).

To conclude, as K-State does, that the off-campus activities of its recognized fraternities are not covered by Title IX would leave students who are participating in the school’s extracurricular activities without any recourse from the school should a sexual assault occur. See King, 221 F. Supp. 2d at 791. Surely, when K-State boasts of the value of its Greek life and promotes that life to students, it does not mean to exclude the bulk of activities at the houses and events of its university-recognized fraternities. Those houses and activities are hallmarks of Greek life at universities nationwide, and K-State is no exception. 

 

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

 

Even if S.W.’s alleged rapes at the fraternity house and event had not been within a K-State extracurricular activity, S.W. adequately pleads that she notified K-State that the alleged rapes created a hostile environment that she continued to experience in other education programs and activities on campus. Id. ¶ 22, 38, 46. For example, S.W. reported to K-State that: she felt “at risk and in constant fear of encountering [her] student-assailants on campus”; she hid in her dorm, stopped going to classes, and even withdrew from a math class; and her grades fell and she lost her scholarship. Id.¶¶ 29, 36, 79. These allegations show K-State knew that the reported rapes and the hostile environment they created in education programs and activities on campus had a “concrete, negative effect on [her] ability to receive an education” to which it had a duty to respond. Davis, 526 U.S. at 654.

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

 

S.W.’s report to K-State that she was raped by students at a K-State fraternity house and event triggered its Title IX duty to investigate or otherwise determine if the effects of the alleged rapes rendered her educational environment hostile. Though K-State ignored this duty, S.W. repeatedly put K-State on notice that the alleged rapes, subsequent peer harassment about them, and constant fear of encountering the accused created a hostile environment on campus. Id. ¶¶ 21-22, 29, 30, 38, 43-46. K-State’s duty to evaluate whether the alleged rapes occurred and created a hostile educational environment was thus triggered again. Yet, again, K-State refused to fulfill its Title IX duty to investigate or otherwise determine what occurred.  

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

 

Davis predicates a school’s liability for monetary damages on whether a school has actual knowledge of the harassment and substantial control over the harasser and the context of the harassment. 526 U.S. at 645. Courts have interpreted this to allow for sexual harassment claims under Title IX even where some or all of the alleged misconduct occurred in a location outside the control of the school, as long as there is “some nexus between the out-of-school conduct and the school.” Rost, 511 F.3d at 1121 n.1. A hostile environment in the education setting caused by the off-campus harassment creates such a nexus. See Crandell v. N.Y. Coll., Osteopathic Med., 87 F. Supp.2d 304, 315-16 (S.D.N.Y. 2000) (student alleged nexus between off-campus sexual harassment by faculty member and hostile environment on campus because incident “made her feel frightened and uncomfortable and consequently caused her to miss her anatomy class”).

When assessing whether off-campus rape creates a hostile environment on campus, courts have recognized that the pernicious effects of rape by another student are not limited to the event itself and can permeate the educational environment. See, e.g., Williams, 477 F.3d at 1297-98; Spencer v. Univ. of N.M. Bd. of Regents, 15-cv-00141-MCA-SCY (D.N.M. Jan. 11, 2016) (finding in a case involving off-campus rape that “[a] single act of severe sexual harassment—particularly rape … can support a Title IX claim where the claim is premised upon the school’s response to the report of the incident of sexual harassment.”) (Exhibit A); see also Jennings v. Univ. of N.C., 444 F.3d 255, 268, 274 n.12 (4th Cir. 2006) (acknowledging that a single incident of sexual assault or rape could be sufficient to raise a jury question about whether a hostile environment exists, and noting that courts look to Title VII cases for guidance in analyzing Title IX sexual harassment claims); Ferris v. Delta Air Lines Inc., 277 F.3d 128, 136-37 (2d. Cir. 2001) (holding that an employer had duty under Title VII to take steps to respond to employee-on-employee rape that occurred outside of work, explaining that although employer’s “ability to investigate was curtailed by the fact that the . . . rapes occurred off-duty,” that did not absolve employer “of all responsibility to take reasonable care to protect co-workers, much less justif[y] a supervisor’s affirmative steps to prevent a victim from filing a written complaint.”).

This is due to the daily potential of the victim student encountering her assailant as they both live and learn at the college. Williams, 477 F.3d at 1297-98; Wills, 184 F.3d at 36-37; see also Doe ex rel.  v. Derby Bd. of Educ., 451 F. Supp. 2d 438, 445 (D. Conn. 2006) (noting “that an interaction with [her assailant] would be sufficiently distressing or threatening such that the fact of their continued mutual presence in the same building and concomitant possibility of potential interaction impacted” her academic decisions); Kelly v. Yale Univ., No. 3:01-CV-1591, 2003 WL 1563424, at *3 (D. Conn. Mar. 26, 2003) (“[A] reasonable jury could conclude that further encounters, of any sort, between a rape victim and her attacker could create an environment sufficiently hostile to deprive the victim of access to educational opportunities provided by a university.”).

Further, as the Court recognized in Davis, “the deliberate indifference by [a school] to the unwelcome sexual advances of a student” can itself create “an intimidating, hostile, offensive and abus[ive] school environment in violation of Title IX.” 526 U.S. at 636. The Eleventh Circuit in Williams came to the same conclusion. There, the University of Georgia (UGA) delayed its investigation of a student-on-student gang rape for eight months and its corrective process for another three. Williams, 477 F.3d at 1296-97. The court found that UGA’s failure “to take any precautions that would prevent future attacks...either by, for example, removing from student housing or suspending the alleged assailants, or implementing a more protective sexual harassment policy to deal with future incidents” created a hostile environment that prevented the plaintiff’s return to school. Id. at 1297. Davis and Williams recognize that severe peer sexual harassment can create a hostile educational environment, and that a school’s failure to respond to the known harassment for months can create such an environment and worsen an existing one. 

Consistent with the case law and Title IX’s general prohibition on subjecting a student to discrimination, ED issued guidance explaining a school’s duty to respond to reports of off-campus sexual violence through the grievance procedures required in the Title IX regulations, and the duty to consider the effects of off-campus sexual violence when evaluating if there is a hostile environment on campus. See 2011 DCL at 4;[7] 2014 Q&A at 29-30 (“The mere presence on campus or in an off-campus education program or activity of the alleged perpetrator of off-campus sexual violence can have continuing effects that create a hostile environment.”). K-State urges this Court to reject ED’s guidance, arguing that it is inconsistent with Title IX. MTD at 11-12.

ED’s interpretation that a school cannot ignore reports of off-campus student-on-student rape is reasonable, consistent with Title IX and Davis, and should be afforded deference. See supra note 6. This interpretation recognizes, as so many courts have, that the hostile effects of a rape can permeate the academic environment and deprive the student of educational benefits. See discussion supra at 12-13. S.W.’s Complaint starkly illustrates this reality, alleging numerous details about “the continuing effects of the rapes in the educational setting, including fear of encountering the student-assailants on campus,” and the effects of having the videos of her assaults shared on social media. Id. ¶¶ 27, 29, 30, 36, 43, 46, 77-80.

Despite S.W.’s repeated reports of these continuing effects, for over two years K-State allegedly refused to take any “precautions that would prevent future attacks,” Williams, F.3d at 1297, or otherwise fulfill its Title IX duty to respond to the hostile educational environment that the alleged rapes created. Id. ¶¶ 76, 77.

 

 

2.K-State’s claim that it had no duty to respond due to a lack of substantial control ignores the allegations in the Complaint and the relevant case law

 

K-State seeks to dismiss S.W.’s Title IX claims for damages, arguing that it had no duty to investigate the reported rapes or otherwise determine what occurred because they occurred “off university property and at a private event,” and were out of K-State’s “contemporaneous control.” MTD at 6-12. In making this argument, K-State ignores binding precedent and the well-pled facts, and relies principally on two inapposite cases from the Eighth Circuit. 

First, “contemporaneous control” is not the standard articulated in Davis. Rather, Davis limited damages liability “to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.” 526 U.S. at 645. As the Court explained, control over the context of the harassment, but “[m]ore importantly … over the harasser,” allows the school to respond to the hostile educational environment, and exposes the school to monetary liability when its response is clearly unreasonable. Id. at 646, 648. A school’s “substantial control” and potential liability under Title IX is therefore not defined solely by a school’s ability to prevent the harassment at the moment it happens, as K-State suggests, but also by its ability to respond to the harassment once on notice of a hostile environment in any of its programs or activities. Id. at 648 (liability will lie “where the recipient’s response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances”).

Second, contrary to K-State’s insistence that it has no Title IX duty to respond to reports of “off-campus” rape at fraternities, Tenth Circuit precedent recognizes that neither a school’s duty to respond under Title IX, nor potential liability under Davis, ends simply because a sexual assault originated off campus, see Simpson, 500 F.3d at 1177, or even wholly outside of one of its programs or activities, see Rost, 511 F.3d at 1124; see also C.R.K. v. U.S.D. 260, 176 F. Supp. 2d 1145 (D. Kan. 2001). The Tenth Circuit thus recognizes Title IX’s broad sweep by correctly examining whether a rape created a hostile environment in an education program or activity even if the rape occurred off campus. K-State’s limited focus on the location of a student’s rape thus ignores the pertinent issue, namely, whether the rape gave rise to a hostile environment in a program or activity over which the school has substantial control (e.g., the authority to issue a no-contact order, change a class or dormitory, or revise its policies to better respond to rape). See Williams, 477 F.3d at 1297. K-State’s interpretation of its duty under Title IX artificially confines the negative effects of a student-on-student sexual assault to the geographical location where the assault occurred. To accept this interpretation, this Court would have to believe that the effects of a student-on-student rape in a campus dorm could create a hostile educational environment, but the effects of the exact same rape occurring across the street in a university-recognized fraternity would not. Such an interpretation defies common sense.

In this case, S.W.’s allegations demonstrate the myriad ways in which K-State exercised substantial control over the alleged harassers and the context of the harassment. First, S.W states that the accused are K-State students subject to K-State’s conduct policies and disciplinary authority. Compl. ¶¶ 13, 16, 23. Further, as detailed above, see supra at 10, S.W. alleges that K-State granted recognition to the fraternity, which subjects it to regulatory and disciplinary control. Id. ¶¶ 23, 39-41. Specifically, K-State imposes rules for student conduct at fraternity events and houses, and imposes sanctions for violating those rules, including withdrawal of university recognition. Id. ¶¶ 39-41, 43, 44, 62-64, 109. S.W. alleges that K-State exercised its substantial control by investigating and sanctioning the fraternity for alcohol use at the events where the rapes occurred, but not for the rapes themselves. Id. ¶ 41. That K-State chose not to exercise this substantial control to investigate the rapes in S.W.’s case and discipline the accused students does not mean that such control did not exist. See id. ¶ 31; Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1247-48 (10th Cir. 1999) (finding substantial control existed where principal had authority to, and in fact did, discipline students for conduct stemming from the context at issue, regardless of her decision not to exercise that authority to address the alleged harassment).

K-State ignores these facts, relying instead on two inapposite cases from the Eighth Circuit to argue that it had insufficient control over the alleged rapes to incur any liability for the hostile environment they created in its programs and activities. First, both Roe v. St. Louis Univ., 746 F.3d 874 (8th Cir. 2014), and Ostrander v. Duggan, 341 F.3d 745 (8th Cir. 2003), involved assaults that occurred at private parties in private residences, not at a university-recognized fraternity house or event. Moreover, the Eighth Circuit found that, in both cases, the summary judgment record lacked evidence sufficient to show that the defendant-schools exercised any regulatory or disciplinary authority over the private places and events where the assaults took place. See Roe, 746 F.3d at 878, 884 (finding that “on the facts of this case there was no evidence that the University had control over the student conduct at the off campus party” and noting that the private apartment party was “not an official fraternity event”); Ostrander, 341 F.3d at 745, 748, 750-51 (noting several times that the sexual assault occurred at a private residence that was not the fraternity’s official “chapter house”).

Similarly, the courts in the other cases cited by K-State found the records devoid of facts indicating that the schools exercised substantial control over the private residences and events in question. See Clifford v. Regents of Univ. of Cal., No. 2:11-CV-02935-JAM, 2012 WL 1565702, at *7 (E.D. Cal. Apr. 30, 2010) (finding “no facts alleged” to show university had any control over conduct at a private home in Lake Tahoe); Samuelson v. Or. State Univ., No. 6:15-CV-01648-MC, 2016 WL 727162, at *6 (D. Or. Feb. 22, 2106) (finding that plaintiff did not allege facts to demonstrate university had any control over a rape by a non-student at a private apartment).

These cases are therefore unlike this one. S.W.’s Complaint is replete with allegations sufficient to show that K-State exercises substantial control over both the accused students and the fraternity house and event at issue.  See supra at 16-17. 

K-State’s reliance on the Tenth Circuit’s decision in Rost and the district court’s decision in C.R.K. is similarly misplaced. Those cases do not support its argument that it has no duty to respond to off-campus student-on-student rape at a university-recognized fraternity’s house and event. Rather, in both Rost and C.R.K., the courts evaluated the reasonableness of the schools’ responses to reports of off-campus harassment under the Davis deliberate indifference standard, even though the initial harassment occurred outside of any school program or activity. Unlike K-State, the school in Rost contacted and cooperated with law enforcement to take the lead on an investigation of harassment that occurred outside of any school program or activity before either student was even enrolled, and the school took steps to prevent further harassment by finding safe educational alternatives. Rost, 511 F.3d at 1124. The court’s decision thus turned on insufficient evidence of deliberate indifference, not a lack of substantial control. Id.; see also C.R.K., 176 F. Supp. 2d at 1167 (finding the evidence of deliberate indifference insufficient where school did not ignore the student’s reports of off-campus harassment over the summer, but rather, took numerous steps to address it).

Similarly, in Roe, the Eighth Circuit found insufficient evidence of deliberate indifference where the victim did not initially give the school enough information to investigate, and yet the school still informed the victim of her rights and where to seek support, and then opened an investigation promptly when the victim did file a formal request. 746 F.3d at 881-84; see also Ostrander, 341 F.3d at 751 (finding insufficient evidence of deliberate indifference where, after receiving complaints, the college met with local fraternity chapter about conducting a thorough investigation of the rape allegations and in-house educational programming on sexual assault).

Put simply, the main cases that K-State relies upon in it motion to dismiss—Roe, Ostrander, Rost, and C.R.K.—are not like S.W.’s, where K-State refused to take any action to protect her or investigate her reports of rape by two students, even though it has disciplinary authority over them, their fraternity house, and its events. These cases also were all decided at the summary judgment stage, at which point the court was evaluating not whether it was possible, as a matter of law, for a school to be held liable for its response to an off-campus rape, but whether the evidentiary record was sufficient to show the school’s response was clearly unreasonable.

In short, none of the cases cited by K-State construes what Title IX liability a university may have when it refuses to investigate a report of student-on-student rape at the house or event of one of its recognized fraternities over which it has disciplinary control. Moreover, the Tenth Circuit recognizes that Title IX, as interpreted by Davis, prohibits a school from “sitting idle” or sticking its head in the sand, professing it lacks authority to respond to reports of harassment that deny a student’s access to education. Rather, Title IX requires a school to examine whether harassment that originated on or off campus creates a hostile environment in an education program or activity, and to respond to such harassment in a manner that is not “clearly unreasonable.” See, e.g., Rost, 511 F.3d at 1121.

Applying Davis’s standards correctly at the motion to dismiss stage, S.W. sufficiently pleads that K-State knew she was allegedly raped while participating in a “program or activity” of K-State; that she continues to experience a hostile environment on campus in other K-State programs and activities as a result of those alleged rapes; and that K-State exercises substantial control over both her alleged harassers and the context of the alleged harassment. See Davis, 526 U.S. at 644-48 (holding that liability may lie where the recipient has the “authority to take remedial action” and “the harasser is under the school’s disciplinary authority”). S.W. has thus sufficiently alleged that K-State had and continues to have a duty under Title IX to respond to her reports of rape in a manner that is not clearly unreasonable.  

C.S.W. has sufficiently pled that K-State was deliberately indifferent to the hostile educational environment that existed in the fraternity and on campus

 

S.W. sufficiently alleges facts showing that K-State acted with deliberate indifference by refusing to investigate and otherwise respond to her reports of student-on-student rape, and by maintaining an official policy of not investigating reports of “off-campus” rapes at fraternities and fraternity events even though they are a university-recognized extracurricular activity.

A school evinces deliberate indifference when its “response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648. Once on notice of student-on-student sexual assault that created a hostile environment, a school may not “remain idle.” Id. at 641; see also Escue v. N. Okla. Coll., 450 F.3d 1146, 1155 (10th Cir. 2006) ((“[A] minimalist response is not within the contemplation of a reasonable response.”) (quoting Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 260 (6th Cir. 2000)).

In Davis, a fifth-grade student alleged a prolonged pattern of sexual harassment by a classmate and reported each incident to the school. 526 U.S. at 633-34. The Supreme Court reversed the trial court’s grant of a motion to dismiss, holding that “petitioner may be able to show that the Board ‘subjected’ [her] to discrimination by failing to respond in any way over a period of five months.” Id. at 649; see also Williams, 477 F.3d at 1296-97 (finding UGA deliberately indifferent where it waited almost 11 months to take action after notice of a student gang rape despite a campus police report filled with evidence corroborating the plaintiff’s account).

Here, S.W. sufficiently alleges facts that K-State evinced deliberate indifference to both the alleged rapes and the hostile on-campus environment they created, as it has “remained idle” for over two years despite her repeated reports. See Davis, 526 U.S. at 649. Similar to the schools in Davis and Williams, K-State failed to conduct any type of investigation, telling S.W. that “K-State would not investigate or take action to hold the student-assailants responsible, remove them from campus, sanction them, or protect [S.W.] and the rest of the student population from their presence on campus in any way.” Compl. ¶22. This refusal to respond in any way was clearly unreasonable in light of the known circumstances, especially as S.W.’s reports to K-State put the school on notice of allegedly predatory behavior by the accused students,[8] and continuing threats to S.W. and others. K-State’s refusal to investigate these reports makes S.W., and others, “more vulnerable” to rape. See Davis, 526 U.S. at 645; Compl. ¶ 83.  

S.W. also pleads sufficient facts to show that K-State was deliberately indifferent to the known hostile educational environment the alleged rapes created. S.W. reached out to K-State administrators to inform them of “the continuing effects of the rapes in the educational setting, including fear of encountering the student assailants on campus,” but “K-State did not take those effects into account in evaluating the hostile environment she suffered and refused to investigate.” Compl. ¶ 27. The unreasonableness of K-State’s refusal contributed to the hostile environment, causing S.W. to lose her sense of security on campus, “living in constant hypervigilance and dread,” id. ¶ 36, 77, and deprived her of educational benefits, id. ¶¶ 36, 47, 78-80.

S.W. also alleges that K-State’s own affirmative acts made her vulnerable to further harassment and contributed to the hostile environment. A K-State investigator called the accused students to tell them that S.W. had filed a report which “egregiously exposed [her] to potential retaliation, compromised her safety, placed her in fear, and undermined the police investigation by tipping off the student-assailants and giving them an opportunity to coordinate their stories.” Compl. ¶ 33. An Assistant Dean revealed S.W.’s name and other private information in her reports to fellow K-State students. Id. ¶ 48. These disclosures, which “shattered any remaining sense of privacy” for S.W., were clearly unreasonable since K-State had decided not to investigate the alleged rapes. Id.

K-State tries to justify its refusal to investigate the reported rapes on the grounds that it lacked control over the accused students and their fraternity. This argument is discredited not only by the allegations discussed above in Section I.B.2, but also by the following: (1) K-State decided it could investigate “the harassing and retaliatory posts [regarding an off-campus assault] on social media,” (2) “has in other circumstances investigated off-campus reports of sexual assault, including a sexual assault by a K-State basketball player,” and (3) informed S.W. that they would suspend the chapter for off-campus alcohol use, but not the alleged rapes. Id. ¶¶ 30, 31, 39, 41. Though K-State tries to analogize its situation to that of other schools which courts found were not deliberately indifferent, its efforts ignore the pled facts and strain credulity. See MTD at 8-11, 17-19 (discussing several cases). 

First, none of the schools in Rost, C.R.K., Roe, or Ostrander involved a situation where, as here, “a school [] learned of a problem and did nothing.” Rost, 511 F.3d at 1121-22. Unlike the schools in Rost and C.R.K, K-State did not defer to an already open law enforcement investigation with which it stayed intimately involved and assisted. Instead, K-State impeded S.W.’s law enforcement investigation by calling her alleged assailants and putting them on notice that she had filed charges against them. Compl. ¶ 33. Unlike the plaintiff in Roe, the pled facts reveal that K-State’s refusal to respond was not stymied by lack of cooperation by S.W., who requested an investigation multiple times. Id. ¶¶ 22, 33, 38, 46; see also discussion of Ostrander supra at 18-19. Rather, like the schools in Davis and Williams, K-State remained idle for months despite having sufficient evidence to proceed, including witnesses to S.W.’s alleged rape who K-State could have interviewed or from whom video-recordings or photos might have been obtained. Id. ¶¶ 1, 13, 22, 33, 38, 46.

Second, all of these cases reinforce that the location of the assault is not the end of the liability analysis under Davis. Each of the courts proceeded through the Davis standards to determine if the school’s response to the alleged harassment evinced deliberate indifference to a hostile environment created within a school program or activity. See discussion supra at 15-19. 

Third, Escue, Rost and Rouse do not stand for the proposition that a plaintiff must affirmatively assert additional acts of sexual harassment after a school’s refusal to respond to establish liability. MTD at 17-19. The specific facts of those cases showed that the schools did not cause further harassment because their responses were not clearly unreasonable. Escue, 450 F.3d at 1155-56 (finding no deliberate indifference where school’s “response was not minimal,” or “ineffective such that she was further harassed.”); Rost, 511 F.3d at 1124 (finding the school “district took steps to prevent further harassment of [the victim] by working with [her mother] to find safe educational alternatives ….”); Rouse v. Duke Univ., 914 F. Supp. 2d 717, 725-26 (M.D.N.C. 2012) (finding no deliberate indifference where there was no evidence that the school’s failure to investigate either caused further harassment or influenced the plaintiff’s decision to leave school). 

This Court should thus reject K-State’s contention that Title IX requires a student, who reports being raped by another student under the school’s disciplinary authority, to undergo additional harassment before her school has to respond to her report. As courts recognize, requiring “that a student must be harassed or assaulted a second time before the school’s clearly unreasonable response to the initial incident becomes actionable … runs counter to the goals of Title IX.” Karasek v. Regents of Univ. of Cal., No. 15-cv-03717-WHO, 2015 U.S. Dist. LEXIS 166524, at *38-39 (N.D.CA. Dec. 11, 2015); Spencer, 15-cv-00141-MCA-SCY (D.N.M. Jan. 11, 2016) (“A victim does not have to be raped twice before the school is required to respond appropriately.”); Takla v. Regents of Univ. of Cal., No. 2:15-cv-04418-CAS(SHx), 2015 U.S. Dist. Lexis 150587, at *16 (C.D. Cal. Nov. 2, 2015) (“[P]lacing undue emphasis on whether further harassment actually occurred to gauge the responsiveness of an educational institution would penalize a sexual harassment victim who takes steps to avoid the offending environment in which she may again encounter the harasser.”).

As Davis instructs, K-State’s motion to dismiss should be denied because the pled facts state that the university made “no effort whatsoever either to investigate or to put an end to the harassment.” 526 U.S. at 654. Indeed, courts have correctly concluded that a plaintiff may survive a motion to dismiss when alleging constant fear and anxiety about encountering an assailant on campus, and the school fails to address this hostile aspect of her daily environment. See, e.g., Williams, 477 F.3d at 1297 (UGA’s “inexplicable” failure to “take any precautions that would  prevent future attacks” constituted further discrimination); Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172 (1st Cir. 2007) (“Though removed from the vicinity of her harassers, the victim … could still be subject to the university’s discrimination, which in that case took the form of a failure to take any precautions that would prevent future attacks.”); Doe v Bibb Co. Sch. Dist., 126 F. Supp. 3d 1366, 1380 (N.D.GA. 2015) (“‘[F]urther discrimination’ can be a response on the part of the funding recipient that is so ineffective it bars the victim’s access to educational opportunities.”); Derby, 451 F. Supp. 2d at 444 (“[E]ven absent actual post-assault harassment by [the assailant], the fact that he and plaintiff attended school together could be found to constitute pervasive, severe, and objectively offensive harassment.”); Kelly, 2003 WL 1563424, at *3 (same).

In addition, S.W. adequately pleads that K-State was deliberately indifferent by maintaining an official policy of not investigating reports of off-campus rape at fraternities. “A funding recipient can be said to have ‘intentionally acted in clear violation of Title IX,’ when the violation is caused by official policy …” Simpson, 500 F.3d at 1178 (quoting Davis, 526 U.S. at 642). The Tenth Circuit recognized that “implementation of an official policy can certainly be a circumstance in which the recipient exercises significant ‘control over the harasser and the environment in which the harassment occurs.’” Id. at 1178.[9]

S.W. alleges sufficient facts under Simpson to show that K-State had an official policy not to investigate rapes at the houses and events of university recognized fraternities. Compl. ¶¶ 2, 5, 24, 25, 27-28, 34, 49, 72-74, 83, 88-90. S.W. alleges that this refusal effectively “tolerated” such misconduct within one of its own extracurricular activities. Id. ¶ 87; see also id. ¶¶ 49, 56, 71-74, 83; Simpson, 500 F.3d at 1172, 1175, 1178, 1184-85.

II.        S.W.’s Complaint States a Plausible Claim for Equitable Relief under Title IX

 

S.W. seeks not only damages for K-State’s violations of Title IX, but also equitable relief. Specifically, she requests injunctive relief ordering K-State “to conduct an investigation and disciplinary proceedings into [S.W.]’s report of sexual assault,” and to revise its policies, procedures, and practices so that it is in compliance with Title IX.  Compl. at Prayer for Relief. 

Congress authorized ED, and other federal departments, to issue rules, regulations, and orders to effectuate Title IX, and to enforce compliance, when recipients refuse to comply voluntarily, by administrative hearings to terminate federal funding or by “any means authorized by law.” 20 U.S.C. § 1682. The latter option includes DOJ seeking equitable relief in court to secure the recipient’s compliance. See 34 C.F.R. 100.8(a).[10] In 1979, the Court recognized a private litigant’s right of action to equitable relief under Title IX. Cannon v. Univ. of Chicago, 441 U.S. 677, 705 & n.38, 710 n.44, 711–712 (1979); Gebser, 118 S.Ct. at 1997–98 (citing same).

Both before and since Gebser, the United States has provided clear notice to recipients that the Title IX liability standards for agencies’ administrative enforcement and authorized court enforcement to effect compliance through equitable relief, 20 U.S.C. § 1682, do not require actual knowledge of or deliberate indifference to a hostile education environment. Rather, for close to two decades, recipients received repeated notice of their Title IX liability to equitable claims or agency enforcement proceedings if (1) the recipient knows or reasonably should know of sexual harassment that (2) creates a hostile environment in an education program or activity, and (3) the recipient fails to take immediate and appropriate corrective action. See Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12,034, 12,039 (1997) (“1997 Guidance”) (“[Un]der these circumstances, a school’s failure to respond to the existence of a hostile environment within its own programs or activities permits an atmosphere of sexual discrimination to permeate the educational program and results in discrimination prohibited by Title IX”); see also 2001 Guidance at 12 (describing these circumstances as those under which a school will be deemed in violation of Title IX); 2011 DCL (same); 2014 Q&A (same). 

As the United States explained in its amicus brief to the Supreme Court in Davis, equitable relief should be available without the heightened showing of actual knowledge and deliberate indifference required by Davis because, unlike money damages, equitable relief does not raise the Court’s “central concern” under the Spending Clause that a federal fund recipient be on notice of its exposure to liability for a monetary award. See Brief of the United States as Amicus Curiae in Davis, No. 97-843, U.S. S. Ct. Briefs LEXIS 776, at *31 (1998) (see Exhibit B); Gebser, 118 S. Ct. at 1998 (discussing central concern underlying Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981), and Guardians Assn v. Civil Serv. Comm'n, 463 U.S. 582 (1983)); Davis, 526 U.S. at 641 (“the scope of liability in private damages actions under Title IX is circumscribed by Pennhurst’s requirement that funding recipients have notice of their potential liability”). The more exacting actual knowledge and deliberate indifference standards announced in Gebser and Davis reflect issues of notice relevant to damages claims, and thus are inapplicable to actions seeking equitable relief or administrative enforcement of Title IX.

Indeed, the Court in Davis repeatedly and carefully differentiated the scope of liability in a private damages action from “the scope of behavior that Title IX proscribes.” See 526 U.S. at 639 (“Here, however, we are asked to do more than define the scope of the behavior that Title IX proscribes. We must determine whether a district’s failure to respond to student-on-student harassment in its schools can support a private suit for money damages”). Davis also carefully distinguished the scope of liability in a private damages action from the broader scope of the Government’s authority to enforce the requirements of Title IX. See 526 U.S. at 641-645 (citing cases for the proposition that the Government’s enforcement authority is broader than the scope of liability for a private right of action, and discussing relevant distinctions between the two).  Following Davis, ED sought public notice and comment on its proposed Title IX guidance that the damages standards in Gebser and Davis were limited to private actions for damages, and that the administrative enforcement standards reflected in ED’s 1997 Guidance remained valid in agency enforcement actions. See 2001 Guidance at iv. The public comments supported ED’s interpretation, see id. at iv, which was set forth in its final 2001 Guidance (and subsequent guidance and enforcement). See, e.g., 2011 DCL at 4 n.12; 2014 Q&A at 1 n.9.

The 2001 Guidance also notified recipients of the United States’ view that “the standards set out in ED’s guidance for finding a violation and seeking voluntary corrective action also would apply to private actions for injunctive and other equitable relief.” Id. at iv n.2 (citing Brief of U.S. as Amicus Curiae in Davis). Because the statute and the regulation authorize ED to refer unresolved findings of noncompliance made under the administrative enforcement standards to DOJ for litigation, the United States’ longstanding view that the standards for equitable relief in court should be the same as the administrative enforcement standards is also reasonable. See 20 U.S.C. § 1682; 34 C.F.R. 100.8(a). It would not make sense for Congress to authorize agencies to explain how they will evaluate recipients’ compliance with Title IX and to effectuate such compliance through “any other means authorized by law,” 20 U.S.C. § 1682, and then require a higher evidentiary showing to obtain equitable relief compelling the recipient’s compliance. As the United States explained in its Amicus Brief in Davis, “A plaintiff in a private enforcement action should likewise be entitled to equitable relief without a showing of deliberate indifference.” U.S. Amicus Brief in Davis at *36.

Thus, should this Court reach the question of whether S.W. alleges facts sufficient to state a plausible claim for equitable relief under Title IX, it should find in the affirmative. Not only has she alleged facts sufficient to meet the well-established liability standards for equitable relief, she also alleges facts showing the urgent need for injunctive relief. S.W. is still enrolled at K-State where she remains in constant fear and at constant risk of encountering the accused. Compl. ¶¶ 36, 77.  Moreover, K-State unwaveringly asserts that Title IX does not impose a duty to respond to her alleged rapes, and has signaled no intent to voluntarily comply with any request that it investigate the accused. In this case, an award of individual equitable relief to a private litigant is fully consistent with and necessary to the orderly enforcement of the statute. See Cannon, 441 U.S. at 705–06. Even if S.W. had not pled facts demonstrating K-State’s actual knowledge and deliberate indifference as required for a damages claim under Davis, K-State’s motion to dismiss should still be denied with regard to S.W.’s claims for equitable relief.

CONCLUSION

 

S.W.’s Complaint is replete with allegations showing K-State had actual knowledge of the hostile education environment created by alleged student-on-student rapes, and that its failure to respond or protect her amounts to deliberate indifference that created “an intimidating, hostile, offensive and abus[ive] school environment in violation of Title IX.” Davis, 526 U.S. at 636. That is all that is required at the motion to dismiss stage, and this Court should allow her Title IX claims for damages and equitable relief to go forward. See Davis, 526 U.S. at 654 (“On this complaint, we cannot say beyond doubt that [petitioner] can prove no set of facts in support of [her] claim which would entitle her to relief … the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”) (internal citations omitted).

                                                            Respectfully submitted,

 

TOM BEALL                                                  VANITA GUPTA

Acting United State Attorney                        Principal Deputy Assistant Attorney General    

District of Kansas                                          

 

/s/ Jason Oller                                                 /s/ Colleen Phillips                            

JASON OLLER                                              BECKY MONROE (CA Bar # 224409)        

Assistant United States Attorney                   SHAHEENA SIMONS (CA Bar # 225520)

500 State Avenue, Suite 360                          EMILY MCCARTHY (DC Bar # 1251737)

Kansas City, Kansas 66101                            VERONICA PERCIA (DC Bar # 1011838)

Tel: 913-551-6560                                          COLLEEN PHILLIPS (CA Bar # 298146)

Fax: 913-551-6560                                         Civil Rights Division

KS Bar # 24341                                              United State Department of Justice

Jason.Oller@usdoj.gov                          950 Pennsylvania Avenue, N.W.

                                                                        Patrick Henry Building, Suite 4300

                                                                        Washington, D.C. 20530

OF COUNSEL                                                Tel: (202) 514-4092

JAMES COLE, JR.                                         Fax: (202) 514-8337

General Counsel                                                 Colleen.Phillips@usdoj.gov

MARCUS HEDRICK

VANESSA J. SANTOS

MICHELLE TUCKER

Attorneys                                                                   

Office of General Counsel

United States Department of Education

 

                                                                       

Date: July 1, 2016