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Doe v. Howard University

United States District Court, District of Columbia

July 11, 2019

JANE DOE 1, et al., Plaintiffs,
v.
HOWARD UNIVERISTY, Defendant.

          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, ...


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