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Doe v. Howard University

United States District Court, District of Columbia

October 1, 2019

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

          MEMORANDUM OPINION

          TANYA S. CHUTKAN, United States District Judge.

         Six current and former Howard University students, proceeding under pseudonyms Jane Does 1 through 6, claim that the school violated Title IX after they reported being sexually assaulted. Their Amended Complaint contained two causes of action: 1) Title IX deliberate indifference discrimination claims (brought by all six Jane Does); and 2) Title IX retaliation claims (brought by Jane Does 1, 2, and 5). On July 11, 2019 this court granted in part and denied in part Howard's Motion to Dismiss Plaintiffs' Amended Complaint. See Mem. Op. & Order, ECF Nos. 34 & 35, Doe 1, et al. v. Howard Univ., 2019 WL 3037605 (D.D.C. July 11, 2019).

         The court ruled that under Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999), a plaintiff adequately pleads deliberate indifference discrimination by alleging that her school's deliberate indifference made her vulnerable to further harassment-i.e., that a plaintiff need not plead that her school's deliberate indifference caused her to suffer subsequent harassment. Consequently, the court denied Howard's motion to dismiss the deliberate indifference claims as to Jane Does 1, 2, 4, and 6, but granted it, with leave to amend, as to Jane Does 3 and 5. The court also denied Howard's motion to dismiss the retaliation claims.

         Soon after, Howard filed a motion for reconsideration or, in the alternative, for interlocutory appeal. ECF No. 40. Plaintiffs filed a Second Amended Complaint, ECF No. 38, and Howard moved to dismiss it, ECF No. 44.

         For the reasons set forth below, the court will GRANT in part and DENY in part Howard's motion to dismiss, DENY Howard's motion for alternative relief insofar as it seeks reconsideration, and GRANT the motion insofar as it seeks certification for interlocutory appeal.

         I. MOTION FOR RECONSIDERATION

         The crux of Howard's motion for reconsideration is that this court failed to consider Blue v. District of Columbia, 811 F.3d 14 (D.C. Cir. 2015) (Blue II), [1] which Howard now describes as binding authority on the question of whether pleading vulnerability to subsequent harassment is enough to establish a claim of Title IX deliberate indifference discrimination.

         Howard's initial motion to dismiss included a lengthy section concerning whether pleading vulnerability to further harassment is sufficient to make out a deliberate indifference claim. See ECF No. 23-2 at 19-24. Yet Howard did not discuss Blue II and referred to the opinion only in its subsequent history citation to the District Court's opinion.

         Nonetheless, Howard now argues that “the D.C. Circuit addressed the question of whether further harassment is required to state a Title IX claim in Blue [II], holding that a school can be liable only where the alleged harassment came ‘to the school officials' attention while the harassment was ongoing.'” ECF No. 40 at iv (quoting Blue II, 811 F.3d at 21). This argument rests solely on the proposition that because the District Court in Blue I concluded that a showing of further harassment was required, the D.C. Circuit's affirmance in Blue II signified its agreement that a showing of further harassment was a necessary pleading requirement. Not so. The Circuit affirmed the District Court's Title IX ruling solely on the ground that the plaintiff failed to plead actual notice. See Blue II, 811 F.3d at 21 (“Although Blue insists that she has established all three elements, we need address only the second, actual notice.”) (emphasis added); cf. Farmer v. Kan. State Univ., 918 F.3d 1954, 1107-1109 (10th Cir. 2019) (omitting Blue II from a discussion of out-of-Circuit cases indicating that a showing of further harassment is a necessary component of the pleading requirement).[2] Nothing in Blue II indicates that the Circuit even considered the question of whether a plaintiff must show subsequent harassment.

         This court already considered and rejected Howard's other arguments for reconsideration in its earlier opinion and will therefore deny the motion for reconsideration.

         II. MOTION TO DISMISS

         Plaintiffs' Second Amended Complaint adds factual allegations to Jane Doe 3 and Jane Doe 5's deliberate indifference discrimination claims (Counts V and VIII) and a new retaliation claim by Jane Doe 3 (Count VI). The court has already stated the applicable legal standard for a motion to dismiss, the legal standards for Title IX deliberate indifference discrimination and retaliation claims, and much of the pertinent background for Jane Does 3 and 5's deliberate indifference claims.

         1. Jane Doe 3's Discrimination Claim (Count V)

         In its July 2019 Opinion, the court dismissed Jane Doe 3's Title IX discrimination claim because she did not allege when she learned that her assailant had been fired; the court was therefore unable to determine whether Howard's alleged ...


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