MEMORANDUM OPINION
TANYA
S. CHUTKAN UNITED STATES DISTRICT JUDGE
Plaintiffs
are six women, all current or former Howard University
students, who allege that Howard discriminated and retaliated
against them in violation of Title IX of the Education
Amendments of 1972 when they reported sexual assaults from
members of the school community. Howard has moved to dismiss
under Federal Rule of Civil Procedure 12(b)(6). For the
reasons explained below, Howard's motion will be denied
as to Counts I, II, III, IV, VI, VIII, and IX and granted as
to Counts V and VII.
I.
BACKGROUND
Howard
University is a higher education institution that received
federal financial assistance within the meaning of Title IX,
20 U.S.C. § 1681 et seq., during all times
relevant to this case. Amended Complaint (“Am.
Compl.”) ¶ 20, ECF No. 22. Plaintiffs, proceeding
under pseudonyms Jane Does 1 through 6, reported to
Howard's Title IX Coordinator and other members of the
administration that they had been sexually assaulted by male
students and a Howard employee in 2014, 2015, and 2016. Each
Plaintiff alleges that Howard's responses to their
reports violate Title IX (Counts I, III, V, VI, VII, and IX),
and Jane Does 1, 2, and 5 also claim Howard retaliated
against them because they reported their sexual assaults
(Counts II, IV, and VIII).
II.
LEGAL STANDARD
A
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a
complaint.” Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). When assessing the complaint, the court
“must first ‘tak[e] note of the elements a
plaintiff must plead to state [the] claim' to relief, and
then determine whether the plaintiff has pleaded those
elements with adequate factual support to ‘state a
claim to relief that is plausible on its face.'”
Blue v. District of Columbia, 811 F.3d 14, 20 (D.C.
Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
675, 678 (2009)) (alterations in original) (citation
omitted). The court also must accept the alleged facts as
true and “construe the complaint in favor of the
plaintiff, who must be granted the benefit of all inferences
that can be derived from the facts alleged.”
Hettinga v. United States, 677 F.3d 471, 476 (D.C.
Cir. 2012) (quotation marks omitted). Although a plaintiff
can survive a Rule 12(b)(6) motion if “recovery is very
remote and unlikely, ” the complaint's factual
assertions “must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (quotation marks omitted).
III.
ANALYSIS
Under
Title IX, “[n]o person . . . shall, on the basis of
sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). Title IX
prohibits “both sexual harassment and retaliation
against a person because that person has complained of sexual
harassment.” Wells v. Hense, 235 F.Supp.3d 1,
7 (D.D.C. 2017) (citing Jackson v. Birmingham Bd. of
Educ., 544 U.S. 167, 174 (2005)). Educational
institutions that accept Title IX funds must comply with its
requirements. Farmer v. Kan. State Univ., 918 F.3d
1094, 1098 (10th Cir. 2019) (“Congress enacted Title IX
under its spending power, ‘conditioning an offer of
federal funding on a promise by the recipient not to
discriminate, in what amounts essentially to a contract
between the Government and the recipient of
funds.'”) (quoting Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 286 (1998)).
Although
Title IX's “only express enforcement mechanism . .
. is an administrative procedure resulting in the withdrawal
of federal funding from noncompliant institutions, ”
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,
247 (2009), plaintiffs may enforce the statute's
prohibitions on sex discrimination through an implied private
right of action, Gebser, 524 U.S. at 281, and
collect damages for “claims based on a funding
recipient's ‘deliberate indifference' to the
sexual harassment of a student by another student, and for
retaliation.” Wells, 235 F.Supp.3d at 7
(citations omitted); see also Jackson, 544 U.S. at
173 (“Retaliation against a person because that person
has complained of sex discrimination is another form of
intentional sex discrimination encompassed by Title IX's
private cause of action.”).
A.
Title IX “Deliberate Indifference”
Discrimination
1.
Legal Standard
A
school is liable under Title IX only “for its own
misconduct, ” which can include “discrimination
in the form of student-on-student sexual harassment.”
Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629,
639-40 (1999). In other words, a school is liable only when
it “subjects its students to harassment.”
Id. at 644 (quotation marks and alteration omitted).
Plaintiffs
alleging Title IX discrimination claims arising from
student-on-student sexual harassment must show first that the
school “exercise[d] substantial control over both the
harasser and the context in which the known harassment
occurs.” Id. at 645. Second, plaintiffs must
have suffered harassment “that is so severe, pervasive,
and objectively offensive that it can be said to deprive
[them] of access to the educational opportunities or benefits
provided by the school.” Id. at 650. Third,
the school must have had “actual knowledge” of
the harassment. Id. Fourth, the school must have
acted with “deliberate indifference” to the
harassment. Id. at 643. And fifth, a school's
deliberate indifference must “cause[] students to
undergo harassment or make[] them liable or vulnerable to
it.” Id. at 645.
With
respect to the fourth element, the Supreme Court has stressed
that the “deliberate indifference” standard is a
“high” one, fashioned to provide schools
“the flexibility they require” and to restrain
courts “from second-guessing the disciplinary decisions
made by school administrators.” Id. at 643,
648. Victims of peer harassment do not have the right
“to make particular remedial demands.”
Id. at 648. Therefore, “deliberate
indifference” can be found “only where the
recipient's response to the harassment or lack thereof is
clearly unreasonable in light of the known
circumstances.” Id. at 648. This standard
considers “the level of disciplinary authority
available to the school and . . . the potential liability
arising from certain forms of disciplinary action.”
Id. at 649.
Determining
whether “a plaintiff alleging student-on-student
harassment has met these requirements is ‘a
fact[-]intensive inquiry that often must be resolved by the
trier of fact.'” Cavalier v. Catholic Univ. of
Am., 306 F.Supp.3d 9, 26 (D.D.C. 2018) (quoting
Karasek v. Regents of the Univ. of Cal., 2016 WL
4036104, at *11 (N.D. Cal. July 28, 2016)) (alteration in
original). Nonetheless, “[i]n an appropriate case,
there is no reason why courts, on a motion to dismiss, for
summary judgment, or for a directed verdict, could not
identify a response as not ‘clearly unreasonable'
as a matter of law.” Davis, 526 U.S. at 649.
Here,
it is the meaning of the fifth element, requiring a
school's deliberate indifference to cause a student to
suffer harassment or make the student vulnerable to
harassment, where most of the debate between the parties
exists.
2.
Whether Plaintiffs Can State A Claim By Alleging That A
School's Deliberate Indifference Made Them Vulnerable To
Sexual Harassment
Defendant
argues that, to sustain a Title IX discrimination claim, a
plaintiff must show that a school's deliberate
indifference caused subsequent harassment.
Conversely, Plaintiffs contend that a Title IX violation
occurs when a school's deliberate indifference causes a
student to suffer subsequent harassment or makes her
liable or vulnerable to it. The D.C. Circuit has not weighed
in on this issue, and there is a split among circuits and
district courts.
Recently,
the Tenth Circuit considered the certified question of
“whether Plaintiff was required to allege, as a
distinct element of her Title IX claim, that [the
school's] deliberate indifference caused her to suffer
actual further harassment, rather than alleging that
Defendant's post-assault deliberate indifference made her
‘liable or vulnerable to' harassment.”
Farmer, 918 F.3d at 1102 (citation omitted). The
Tenth Circuit held that “Plaintiffs can state a viable
Title IX claim for student-on-student harassment by alleging
that the funding recipient's deliberate indifference
caused them to be ‘vulnerable to' further
harassment without requiring an allegation of subsequent
actual sexual harassment.” Id. at 1104. The
First and Eleventh Circuits have ruled similarly. See
Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172
(1st Cir. 2007) (“[T]he [Davis] Court stated
that funding recipients may run afoul of Title IX not merely
by ‘caus[ing]' students to undergo harassment but
also by ‘mak[ing] them liable or vulnerable' to
it.”) (quoting Davis, 526 U.S. at 645)
(alterations in original), rev'd and remanded on
other grounds, 555 U.S. 246 (2009); Williams v. Bd.
of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1297
(11th Cir. 2007) (finding that a school may be liable where
the complaint showed that the plaintiff withdrew from the
school the day after the assault and therefore did not
experience any further harassment).
In this
district, one court has held that “Title IX does not
require that a defendant[']s deliberate indifference lead
to subsequent actionable harassment.” Wells,
235 F.Supp.3d at 8. Numerous judges in other districts have
reached the same conclusion. See, e.g., Doe v. Baylor
Univ., 240 F.Supp.3d 646, 660 (W.D. Tex. 2017)
(“[T]he discriminatory harm can include the harm faced
by student-victims who are rendered vulnerable to future
harassment and either leave school or remain at school and
endure an educational environment that constantly exposes
them to a potential encounter with their harasser or
assailant.”); Spencer v. Univ. of N.M. Bd. of
Regents, 2016 WL 10592223, at *6 (D.N.M. Jan. 11, 2016)
(“In the context of Title IX, there is no ‘one
free rape' rule; and a victim does not have to be raped
twice before the school is required to respond
appropriately.”) (citation and quotation marks
omitted); Karasek, 2015 WL 8527338, at *12
(“[I]t is possible for a plaintiff to bring a Title IX
claim against an educational institution even in the absence
of any further affirmative acts of harassment by the alleged
harasser or other students or faculty.”); Takla v.
Regents of the Univ. of Cal., 2015 WL 6755190, at *6
(C.D. Cal. Nov. 2, 2015) (“The Court agrees with
plaintiffs that placing 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.”).
The
Eighth and Ninth Circuits appear to require a showing of
subsequent harassment. In K.T. v. Culver-Stockton
College, the Eighth Circuit found:
[T]he complaint identified no causal nexus between [the
school's] inaction and K.T.'s experiencing sexual
harassment . . . . The complaint does not . . . allege that
[the school's] purported indifference subject[ed] [K.T.]
to harassment. Thus, while K.T. was dissatisfied with [the
school's] response, based on the allegations in the
complaint the response cannot be characterized as deliberate
indifference that caused the assault. We therefore
agree with the district court that K.T. failed to adequately
plead deliberate indifference.
865 F.3d, 1054, 1058 (8th Cir. 2017) (citation and quotation
marks omitted) (emphasis in original). 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.”).[1]
Several
district courts, including one in this district, have also
found that subsequent harassment is required for an
actionable Title IX claim. See, e.g., Moore v. Murray
State Univ., 2013 WL 960320, at *4-5 (W.D. Ky. Mar. 12,
2013) (“[T]he complaint contains no allegations that
any further harassment occurred after the assault. . . . The
critical piece missing from [the student's] complaint is
any allegation that she was ‘subjected' to or
experienced sexual harassment after notifying
[school personnel] about the [initial] assault.”)
(emphasis in original); Blue v. District of
Columbia, 850 F.Supp.2d 16, 35 (D.D.C. 2012)
(“Finally but significantly, Plaintiff does not allege
that further sexual harassment occurred as a result of [the
school's] deliberate indifference.”) (quotation
marks omitted).
This
court agrees with the Tenth Circuit's conclusion that
Davis “clearly indicates that Plaintiffs can
state a viable Title IX claim by alleging alternatively
either that [a school's] deliberate indifference
to their reports of rape caused Plaintiffs ‘to
undergo' harassment or ‘ma[d]e them liable
or vulnerable' to it.” Farmer, 918 F.3d at
1103 (emphasis and alteration in original) (quoting
Davis, 526 U.S. at 645). Moreover, finding Title IX
liability based on vulnerability to harassment is consistent
with the statute's objectives, “which include
protecting individual students against discriminatory
practices.” Id. at 1104 (citing Cannon v.
Univ. of Chi., 441 U.S. 677, 704).
The alternative offered by the University-i.e., that a
student must be harassed or assaulted a second time before
the school's clearly unreasonable response to the initial
incident becomes actionable, irrespective of the deficiency
of the school's response, the impact on the student, and
the other circumstances of the case-runs counter to the goals
of Title IX and is not convincing.
Karasek, 2015 WL 8527338, at *12.
This
holding is consistent with Davis's admonition
that schools are not required to “remedy peer
harassment.” 526 U.S. at 648 (quotation marks omitted).
Title IX liability derives from the school's deliberate
indifference to known student-on-student sexual harassment,
which leaves victims vulnerable to additional harassment, not
from a failure to remedy any past harassment. Id.
Thus, a school's inadequate response creates a hostile
environment that deprives victims of the school's
educational opportunities and benefits. Id. at
650. “The statute makes clear that, whatever
else it prohibits, students must not be denied access to
educational benefits and opportunities on the basis of
gender.” Id.
3.
Deliberate Indifference And Vulnerability To Harm
Howard
does not dispute that all six Plaintiffs sufficiently allege
facts demonstrating the first, second, and third elements of
a claim under Davis: 1) that Howard exercised
substantial control over both the harasser and the context in
which the harassment occurred; 2) that the harassment was so
severe, pervasive, and objectively offensive that it
plausibly deprived Plaintiffs of access to educational
opportunities or benefits provided by the
school;[2] and 3) that Howard actually knew of the
harassment. Instead, Howard argues that Plaintiffs did not
plead that Howard was deliberately indifferent to their
reports of sexual assault or that Howard's actions
caused them to suffer subsequent harassment after
Howard received the initial reports. Because the court
disagrees with Howard's legal contention regarding the
future harm requirement, the remaining issues for the court
to decide are 1) whether Plaintiffs adequately pleaded that
Howard was deliberately indifferent, and, if so, 2) whether
that deliberate indifference made Plaintiffs vulnerable to
future harassment.
Howard's
responses to the reports of sexual harassment were
“deliberately indifferent” if “clearly
unreasonable in light of the known circumstances.”
Davis, 526 U.S. at 648. At the motion to dismiss
stage, “the Court need not, and should not, separately
assess each of the alleged actions or failures to act
identified in [Plaintiffs'] complaint to determine
whether each discrete episode might, standing alone, support
a claim of deliberate indifference to student-on-student
harassment.” Cavalier 306 F.Supp.3d at 27;
see also Takla, 2015 WL 6755190, at *6 (“The
[complaint] contains a number of allegations that, taken
together, makes a plausible claim that [the school's]
response to [the student's] report of sexual harassment
was deficient and not reasonably expected to remedy the
violation” even though “taken individually, may
not constitute deliberate indifference.”). At this
stage of the litigation, the court's responsibility
“is limited to deciding whether the complaint contains
any factual allegations sufficient to support ‘the
reasonable inference that the [University] is liable for the
misconduct alleged.'” Cavalier, 306
F.Supp.3d at 27 (quoting Iqbal, 556 U.S. at 678).
i.
Jane Doe 1
Jane
Doe 1 alleges that on February 7, 2016 she was raped in her
dormitory by another Howard student, “Assailant
1.” Am. Compl. ¶ 51. Both she and Assailant 1 were
dormitory Resident Assistants (“RAs”).
Id. ¶¶ 49, 51. On February 28, 2016, Jane
Doe 1 reported the rape to Howard's Title IX Coordinator
Candi Smiley and campus police. Id. ¶ 53. Jane
Doe 1 told Smiley that she and Assailant 1 lived in the same
dormitory, served as RAs together, and were in two classes
together. Id. ¶ 54. Jane Doe 1 also
reported that she did not feel safe seeing Assailant 1 in her
living space and classes. Id. Although Jane Doe 1
provided “specific detail” about the rape,
id., Smiley's written account of Jane Doe
1's rape stated only, “My name is [Jane Doe 1]. On
February 7, 2016, [Assailant 1] raped me in my dorm
room.” Id. ¶ 56.
In
response to Jane Doe 1's report, Howard transferred
Assailant 1 to another dormitory, but said it could not
remove him from Jane Doe 1's classes. Id.
¶¶ 57-58. While the rape investigation was pending,
Jane Doe 1 sought to take the classes she shared with
Assailant 1 remotely. Id. ¶ 58.
Around
March 1, 2016, Smiley contacted Jane Doe 1 and asked if she
had been discussing her rape in a group text message chain.
Id. ¶ 59. Jane Doe 1 said she had not and asked
who made this allegation to Smiley. Id. Smiley did
not respond. Id. Jane Doe 1 claims that Smiley's
inquiry made her feel “unsafe and targeted as a result
of her report of sexual assault.” Id. Between
March 1 and March 21, 2016, ...