FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 17, 2020
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
JANE DOE,
Plaintiff - Appellant,
v. No. 19-1293 SCHOOL DISTRICT NUMBER 1, DENVER, COLORADO, a/k/a Denver Public Schools (“DPS”); TOM BOASBERG, individually and in his official capacity as superintendent of DPS; JANN PETERSON, individually and in her official capacity as an assistant principal with DPS; JEANETTE SCULLEY, individually and in her official capacity as a dean with DPS; ERIC SINCLAIR, individually and in his official capacity as a dean with DPS; ANITA CURTISS, individually and in her official capacity as a school psychologist with DPS,
Defendants - Appellees,
ANDY MENDELSBERG, individually and in his official capacity as a principal with DPS,
Defendant. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CV-03170-RM-STV) _________________________________ Igor Raykin, Kishinevsky & Raykin, Aurora, Colorado (Michael Nolt, Kishinevsky & Raykin, Aurora, Colorado on the briefs) for Plaintiff-Appellant.
Holly Ortiz, Semple, Farrington, Everall & Case, P.C., Denver, Colorado (M. Brent Case and Brian S. Condon, Farrington, Everall & Case, P.C., Denver, Colorado on the briefs) for Defendants-Appellees. _________________________________
Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges. _________________________________
HARTZ, Circuit Judge. _________________________________
Jane Doe appeals the dismissal of her Title IX claim against School District No. 1,
Denver, Colorado (the District or DPS) for failure to state a claim. According to the
complaint, a group of students began sexually harassing Ms. Doe after she was sexually
assaulted by another student in March of her freshman year at East High School (EHS).
She alleges that despite her numerous reports of the harassment to school personnel, as
well as reports from teachers and a counselor, the school administration never
investigated her complaints and little if anything was done to prevent the harassment
from continuing. She stopped attending regularly scheduled classes about 14 months
after the assault, and she transferred to a different school after completing her sophomore
year. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.1
1 The original complaint alleged claims against a number of other defendants and raised several other claims. But only the Title IX claim against the school district is pursued on appeal.
2 I. THE COMPLAINT
Because this appeal is taken from an order granting the District’s motion to
dismiss, we “accept as true all well-pleaded factual allegations in the complaint and view
them in the light most favorable to [Ms. Doe].” S.E.C. v. Shields, 744 F.3d 633, 640
(10th Cir. 2014) (internal quotation marks omitted). We ignore factual assertions by the
District unless they are based on allegations in the complaint or on other sources proper
to consider on a motion to dismiss. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.
2010) (on motion to dismiss complaint, court may consider complaint and
“(1) documents that the complaint incorporates by reference, (2) documents referred to in
the complaint if the documents are central to the plaintiff’s claim and the parties do not
dispute the documents’ authenticity, and (3) matters of which a court may take judicial
notice” (internal citations and quotation marks omitted)). The complaint alleges the
following events:
Jane Doe was a 14-year-old student in her first year at EHS when she was sexually
assaulted by a male classmate, referred to as “Student 1,” at his parents’ home on a
Saturday evening. The following Monday, March 14, 2016, Ms. Doe reported the assault
to Jeanette Scully, an EHS dean with disciplinary authority. Dean Scully sent Ms. Doe to
see a school psychologist, Anita Curtiss. Ms. Doe’s parents were contacted and came to
EHS to meet with Dean Scully and Ms. Curtiss. They were told “that the charges would
be difficult to prove and doing so would be difficult on the family,” Aplt. App. at 17, and
were discouraged from filing charges. Although they declined to press charges at the
time, citing their concern for Student 1, they did request that the assault be formally
3 documented in school files. After Ms. Doe’s report, the school warned her brother (also a
student at EHS) not to retaliate against Student 1. Neither Ms. Curtiss nor Dean Scully
reported the assault to the Denver Police Department school-resource officer assigned to
EHS.
The next day Ms. Doe told Dean Scully that she was facing “backlash from her
peers, who[] had heard about the assault,” and Dean Scully advised her to forget about
the assault and not tell anyone. Id. Ms. Doe met with Ms. Curtiss again on March 17
because of “retaliation at school based on her rape report.” Id. at 18. She was
experiencing “fallout of her friendships,” id., “anxiety about being at school,” “fears for
the future,” “nightmares,” and “lack of sleep,” id. at 19. Ms. Curtiss reviewed limitations
(not described in the complaint) on interactions with Student 1. (The District’s brief on
appeal asserts that EHS imposed a “no-contact” order between Ms. Doe and Student 1
immediately after the assault was reported, but the complaint does not allege that and the
District provides no citation to the record supporting the assertion or any explanation of
why we can consider the assertion.) Throughout the week, Ms. Curtiss “counseled” Ms.
Doe, telling her that “some things are just more traumatizing for others,” that she should
“find new friends,” and that she would be disciplined for harassment if she contacted
Student 1. Id.
The next week, on March 23, one of Ms. Doe’s friends told Ms. Curtiss that Ms.
Doe had started to cut herself. Ms. Curtiss asked Ms. Doe to complete a safety-plan form
and assured her that they would have weekly check-ins about her safety, though Ms. Doe
alleges that these weekly check-ins never occurred.
4 On April 6, Ms. Doe met again with Ms. Curtiss and told her that she was still
experiencing conflicts with her peers. Ms. Curtiss gave her advice about how to manage
the conflicts. Also on April 6, one of Ms. Doe’s teachers emailed Ms. Curtiss to say that
Ms. Doe “had a rough week with the gossip around her.” Id. at 20. Two days later, Ms.
Curtiss emailed Dean Scully about Ms. Doe’s ongoing problems with Student 1 and to
tell her that Ms. Doe was having problems with harassment by Student 1’s friends, which
included the friends telling Ms. Doe that “[w]e took a vote and we all agree you’ll lose
your virginity first.” Id. Ms. Curtiss asked Dean Scully to “meet with Student 1 to
reiterate that this issue is between Ms. Doe and himself,” and that “his friends defending
him cannot . . . verbally harass Ms. Doe.” Id. (brackets omitted). Dean Scully indicated
that she would talk with Student 1. No investigation was conducted or disciplinary action
taken by the school against Student 1 or the harassers during the school year ending in
June, although the complaint does not identify any additional reports to school officials
by Ms. Doe before school ended. Ms. Doe does allege one incident of harassment during
the summer, when one of Student 1’s close friends (Student 3) contacted her over
Facetime and asked if she wanted to “sexually experiment with him.” Id. at 23.
When school was back in session, “there were additional reports [in early
September] that Ms. Doe was being bullied as a result of the rape,” and “reports [in late
November] indicating that Ms. Doe had ongoing conflicts with other students.” Id. at 21.
And in December she told Ms. Curtiss that “things at EHS had only gotten worse for her,
and that she was considering switching schools.” Id. at 22. Ms. Curtiss told her that “if
she switched schools, then she would only be running away from her problems.” Id.
5 On January 19, 2017, Ms. Doe reported through an anonymous system called
“Safe2Tell” that she was being bullied. Every such report was supposed to be copied to
the EHS principal. The report, which is included in the record on appeal, stated that
“[c]aller received information about sophomore [Student 3] that has nude photographs of
female students on a phone app . . . . [Student 3] has used the photos to blackmail these
students.” Id. at 127. (The report did not include any information about how Student 3
got the nude photographs). In response to the report, Eric Sinclair, another dean with
disciplinary authority at EHS, and Janet Peterson, an assistant principal, met with Ms.
Doe on January 20. She told them her experience from the time of the sexual assault.
She reported that she had been subjected to “constant bullying and harassment . . . from
the boys in the sophomore class at EHS.” Id. at 22. She said there was a group of
students who would “make drawings of [her] telling her to kill herself, call her names,
start rumors about her and make rape jokes about Student 1 to [her].” Id. (capitalization
and original brackets omitted). One of the students would “constantly stare at Ms. Doe
[and] smirk at her,” id., and Student 3 “shoved her down at lunch” off campus and
“called her a dirty slut,” id. at 23 (internal quotation marks omitted). Ms. Doe identified
a group of five boys who “pulled on her backpack all the time and would draw pictures of
her killing herself.” Id. Dean Sinclair and Ms. Peterson again called Ms. Doe’s parents,
who came to campus to discuss their concerns about bullying. No disciplinary action was
taken against any of the boys and the harassment continued.
A week later Ms. Doe met with Dean Sinclair and Elisa Spratt, a school
psychologist, about “safety concerns.” Id. at 24. The Dean said that there was no “hard
6 evidence” of any of the bullying Ms. Doe had alleged. Id. (internal quotation marks
omitted). In response, Ms. Doe gave him “copies of numerous pictures and social media
exchanges,” and the names and phone numbers of the students who were harassing her.
Id. Dean Sinclair “briefly glanced” at what Ms. Doe gave him before filing it away. Id.
There was no investigation of the harassment or disciplinary action against the offending
students.
The school completed a suicide-risk report on Ms. Doe on January 25. It noted the
alleged rape and incorrectly stated that it had been reported to the police. It also
documented that “Ms. Doe felt everyone got mad at her for reporting Student 1,” that
“she wasn’t sleeping well and thought about overdosing on sleeping pills,” that “she
wrote a goodbye letter to her older sister,” that “she was having nightmares thinking
about Student 1 in her room,” and that she “had lost interest in self-preservation.” Id.
(brackets, capitalization, and internal quotation marks omitted). The report indicated that
“Ms. Doe could have been suffering from an emotional disability.” Id. Following the
report, a school counselor, Lindsay Vesceri, spoke with Ms. Doe and her father about
“concerns,” and on January 31, Ms. Vesceri emailed Dean Sinclair about “harassment
against Ms. Doe.” Id. at 25. Dean Sinclair replied that he would “speak with the
students.” Id.
Ms. Doe and Dean Sinclair met several more times in late January and early
February to discuss ongoing bullying and harassment. She told him that she was being
physically threatened, including being told that “she should watch her back if she ‘does
not want to die,’” and that she “would be ‘beat up.’” Id. One of her friends was also
7 being threatened by Student 3, who told her not to have lunch with Ms. Doe again or “it
would be ‘bad for her.’” Id. Dean Sinclair discussed these incidents with Ms. Doe and
her parents and said that he “could not do anything about it and that ‘being an asshole
isn’t a crime.’” Id. At this point Ms. Doe was eating lunch by herself in teachers’ rooms
or the counselors’ office and was leaving school through the back entrance because she
was afraid of the students who were threatening her.
On April 7 one of Ms. Doe’s teachers, Sarah Rasay, emailed Dean Sinclair to tell
him that Ms. Doe had been harassed by a group of students since an incident the prior
year, that she had received a Snapchat message on her phone from the harassing students
that said “Consent is a myth,” that “someone from the group had threatened to beat her
up,” and that she did not feel safe or protected at school and did not “go outside at lunch
to avoid these students.” Id. at 26. Later that month Ms. Doe “was the recipient of a very
harsh and embarrassing Instagram post,” which caused her to have a “full breakdown,”
including hitting her head against the wall so hard that she suffered a concussion. Id.
She did not go to school the next day.
A few weeks later Ms. Rasay forwarded to an EHS assistant principal, Joe Glover,
her April 7 email about her concerns for Ms. Doe’s safety. Ms. Doe then met with Ms.
Rasay and Ms. Vesceri, both of whom were concerned that Dean Sinclair was not “taking
proper action to stop the harassment.” Id. at 26–27. The three of them met with Vince
Valdez, another disciplinary dean at EHS, and Ms. Doe’s mother. They discussed a
safety plan for Ms. Doe but did not address stopping harassment by Student 1 or the other
boys. At the meeting it appeared that EHS had not documented in Ms. Doe’s official file
8 the sexual assault or any of the bullying and retaliation. Ms. Doe’s mother told Ms.
Vesceri that her daughter would not be returning to EHS. The day after the meeting Ms.
Doe went to the emergency room because of a panic attack.
Several days later Ms. Doe’s parents asked Ms. Vesceri why her file contained no
information regarding the assault and bullying. Ms. Vesceri responded that “she and
other faculty members were instructed by EHS officials not to be detailed in file reports
in case one of them ever has to appear in court.” Id. at 27.
Although Ms. Vesceri had told Ms. Doe’s mother that if Ms. Doe left the high
school her teachers would probably just freeze her grades “and award her full credit
because she was such a good student,” EHS principal Andy Mendelsberg later told Ms.
Vesceri that he was opposed to Ms. Doe’s leaving EHS and that he “would not allow her
to get full credit for her grades.” Id. At a meeting on May 4 between Ms. Doe’s parents
and Mr. Mendelsberg, he told them that he was unaware of the reported sexual assault or
any of the subsequent bullying and harassment. He said that if the assault and harassment
“was that bad, she wouldn’t have been able to maintain those grades.” Id. at 28. The
parties agreed that for the remaining six weeks of the school year, Ms. Doe would
complete her classwork by coming to campus before and after regularly scheduled classes
at least three times per week. Under this arrangement Ms. Doe came in as early as 5:30
a.m. to complete her work before classes started, or came in at 5 p.m. and stayed as late
as 7:00 p.m. Nonetheless, she would still “on occasion run into her harassers, including
Student 1.” Id. at 29 (brackets and capitalization omitted). And she was required to take
9 most of her final exams in classrooms in which her harassers were present. Ms. Doe
finished the school year with a 4.0 GPA, and then transferred to a different high school.
During the summer of 2017, following an unrelated incident at EHS, a parent of
another EHS student encouraged the DPS superintendent to reach out to Ms. Doe’s
parents because she had heard that EHS had mishandled Ms. Doe’s reports that she was
being harassed. That same day, the general counsel for DPS left Ms. Doe’s father a
voicemail “regarding the problematic culture at EHS with respect to responding to claims
of sexual assault and bullying.” Id. at 30–31. On November 1, DPS assigned to Ms.
Doe’s matter an attorney who told Ms. Doe’s father that “multiple parents had come
forward regarding the cultural problem created by [former principal] Mendelsberg and
the EHS administration,” and that there was a new principal at EHS. Id. at 31.
Ms. Doe filed a police report about the assault by Student 1 on November 14,
2017. The next month the detective assigned to her case met with Ms. Peterson, who said
that there were no computer records showing that Student 1 had been accused of sexual
assault or other misbehavior. In 2018, Student 1 pleaded guilty to felony sexual assault
with force.
II. DISCUSSION
Title IX of the Education Amendments of 1972 mandates that “[n]o person in the
United States shall, on the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education program or activity
receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a). A school that receives
federal funding may be held liable for damages that are caused by its deliberate
10 indifference to student-on-student sexual harassment that is “so severe, pervasive, and
objectively offensive” that it deprives the victims of equal access to educational
resources, opportunities, or benefits. Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of
Educ., 526 U.S. 629, 650 (1999); see id. at 649– 50 (“sexual harassment is a form of
discrimination for Title IX purposes”). To establish a Title IX claim of deliberate
indifference to student-on-student sexual harassment, the plaintiff must prove that the
school “(1) had actual knowledge of, and (2) was deliberately indifferent to
(3) harassment that was so severe, pervasive and objectively offensive that it (4) deprived
the victim of access to the educational benefits or opportunities provided by the school.”
Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1246 (10th Cir. 1999).
The district court granted the defendants’ Fed. R. Civ. P. 12(b)(6) motion to
dismiss the action for failure to state a claim because it determined that Ms. Doe had
failed to plausibly allege that she was harassed on the basis of sex, that the harassment
was severe or pervasive, or that DPS was deliberately indifferent to the alleged sexual
harassment. Ms. Doe challenges each ruling in her opening brief. In its answer brief,
DPS argues that we can also affirm on the alternative ground that Ms. Doe failed to
plausibly allege that the harassment deprived her of educational benefits or opportunities.
We now turn to the issues raised by the parties.
A. Standard of Review
We review de novo the district court’s ruling on a Rule 12(b)(6) motion to
dismiss, “accepting as true all well pled facts and viewing those facts in the light most
favorable to Plaintiffs.” Farmer v. Kan. State Univ., 918 F.3d 1094, 1102 (10th Cir.
11 2019). A complaint cannot survive a motion to dismiss unless it “contain[s] sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A
complaint is “plausible on its face” if its factual allegations allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. We have interpreted this standard to be “a middle ground
between heightened fact pleading . . . and allowing complaints that are no more than
labels and conclusions or a formulaic recitation of the elements of a cause of action[.]”
Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotation
marks omitted). “[S]pecific facts are not necessary,” but “some facts are.” Id. at 1193
(brackets and internal quotation marks omitted).
B. Harassment on the Basis of Sex
The district court decided that Ms. Doe failed to allege that the harassment she
suffered was on the basis of sex. It reasoned that the facts alleged in the complaint
“suggest that other students harassed her because they learned she had accused Student 1
of sexually assaulting her” and there was no allegation that “DPS responded differently
when a male student made a similar accusation against another student at EHS nor any
indication that it would have done so.” Doe v. Sch. Dist. No. 1, Denver, Colo., Civil
Action No. 1:18-cv-03170-RM-STV, 2019 WL 3425236, at *4 (D. Colo. July 30, 2019).
On appeal Ms. Doe argues that the harassment was “on the basis of sex” because
the harassment was linked to the sexual assault by Student 1 and much of the harassment
12 involved sexually charged comments. For legal support she relies on an unpublished
Second Circuit opinion which held that “‘[a] reasonable factfinder could conclude that
when a fourteen-year-old girl reports a rape and then is persistently subjected by other
students to verbal abuse that reflects sex-based stereotypes and questions the veracity of
her account, the harassment would not have occurred but for the girl’s sex.’” Aplt. Br. at
14 (quoting Doe v. East Haven Bd. of Educ., 200 F. App’x. 46, 48 (2d Cir. 2006)).
For the factual predicate of her argument, Ms. Doe points to her complaint’s
specific allegations that Student 1 had raped her and that his associates harassed her by
calling her a “dirty slut,” making rape jokes about her assailant, telling her that she would
be the first to lose her virginity, and sending her a group Snapchat message that
“[c]onsent is a myth.” There are also allegations that Student 1’s associates engaged in
sex-neutral but hostile conduct toward her, such as pulling on her backpack, drawing
pictures of her killing herself, telling her she should kill herself, and threatening her with
physical violence.
DPS responds that “[h]arassment for reporting misconduct is not the same as
harassment because of gender,” Aplee. Br. at 12, and that Ms. Doe was not harassed “on
the basis of sex” because her complaint alleges that the harassment was motivated by
retaliatory animus toward Ms. Doe for reporting Student 1 to school authorities for
assaulting her. This argument relies on our opinion in Seamons v. Snow, 84 F.3d 1226
(10th Cir. 1996). The plaintiff in that case had been sexually assaulted by his football
teammates as part of a hazing ritual in which he was taped naked to a towel rack in the
locker room and a female student was brought into the locker room to view him while his
13 teammates looked on. See id. at 1230. After he reported the incident, the school district
responded by cancelling the football team’s last game of the season, which caused him to
be “branded as the cause of the football team’s demise,” “threatened[,] and harassed.” Id.
He claimed that school administrators discriminated against him by “fail[ing] properly to
investigate the taping incident and to take disciplinary action against the students
involved, creating a hostile environment.” Id. at 1232. We held that his claim failed
because the discriminatory actions against him were not on the basis of sex: “[T]he facts
as alleged tend to show only that [the plaintiff] was treated as he was because others felt
he ‘betrayed’ the team by reporting the incident to the relevant authorities and by failing
to apologize.” Id. at 1233. DPS says that just like the harassment of the plaintiff in
Seamons, the harassment of Ms. Doe in this case was motivated by her reporting the
sexual assault to school authorities and not her sex.
In our view, Ms. Doe has adequately alleged discrimination on the basis of sex.
First, we believe that it is a factual question whether the harassment of Ms. Doe was
exclusively motivated by a desire to retaliate for her reporting that she had been sexually
assaulted. In particular, a factfinder could decide that the comments that were sexual in
nature—such as those relating to consent and the loss of her virginity—were harassment
based on sex that went beyond gender-neutral harassment motivated only by a desire to
retaliate against one who reports misconduct.
Second, Seamons is readily distinguishable. It was a narrow holding under
unique, peculiar facts. The case presented a limited claim that did not challenge the
initial taping incident nor did it allege any sexual content in the School District’s
14 response other than a general nonspecific conclusion that the School District
hypothetically might have handled a female athlete’s complaint differently.
Third, and dispositively, after Seamons was decided, the Supreme Court held,
directly contrary to what the District reads into Seamons, that retaliation for reporting sex
discrimination comes within the meaning of the statutory language prohibiting
discrimination “on the basis of sex.” See Jackson v. Birmingham Bd. of Educ., 544 U.S.
167 (2005). The factual question described above—whether the harassment was
motivated solely by the report of the sexual assault—is therefore irrelevant to the dispute
between the parties. As Jackson explained:
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. Retaliation is, by definition, an intentional act. It is a form of ‘discrimination’ because the complainant is being subjected to differential treatment. Moreover, retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.
Id. at 173-74 (citations omitted). An allegation that the plaintiff was harassed for
reporting misconduct can therefore suffice to state a claim for discrimination on the basis
of sex if the misconduct reported is itself sex discrimination.
Applying Jackson to the case before us, the sexual assault that Ms. Doe
complained about was an act of sex discrimination. See Rene v. MGM Grand Hotel, Inc.,
305 F.3d 1061, 1065 (9th Cir. 2002) (“Physical sexual assault has routinely been
prohibited as sexual harassment under Title VII.”); see also id. at 1065–66 (collecting
cases holding that physical sexual assault is sexual harassment). Hence, any harassment
of her that was motivated by retaliatory animus for her complaint was “an intentional
15 response to the nature of [her] complaint” and was therefore “discrimination ‘on the basis
of sex.’” Jackson, 544 U.S. at 173–74; see Feminist Majority Found. v. Hurley, 911 F.3d
674, 695 (4th Cir. 2018) (“[W]e are satisfied that an educational institution can be liable
for acting with deliberate indifference toward known instances of student-on-student
retaliatory harassment.”); cf. Fuller v. Idaho Dep’t of Corr., 865 F.3d 1154, 1166–67 (9th
Cir. 2017) (“[W]hen an employer acts in a way that effectively condones or ratifies a rape
or sexual assault and its effects, a jury may reasonably infer that the employer itself is
discriminating because of sex.” (internal quotation marks omitted)).
Thus, in light of Jackson, we can only conclude that Ms. Doe’s complaint
adequately alleges that her harassment by other students was on the basis of sex.
C. Severe, Pervasive, and Objectively Offensive
In Davis the Supreme Court declared that to be actionable under Title IX, the sex-
based harassment by fellow students must be “so severe, pervasive, and objectively
offensive, and . . . [must] so undermine[] and detract[] from the victims’ educational
experience, that the victim-students are effectively denied equal access to an institution’s
resources and opportunities.” 526 U.S. at 651. A reviewing court may consider “a
constellation of surrounding circumstances, expectations, and relationships including, but
not limited to, the ages of the harasser and the victim and the number of individuals
involved[.]” Id. (citation and internal quotation marks omitted).
Ms. Doe’s complaint alleges that she was subjected to harassment by her peers
more or less continuously from the time she reported Student 1 until she stopped
attending regularly scheduled classes more than a year later. She says that she was called
16 a “dirty slut,” Aplt. App. at 23; blackmailed with nude photographs; told that “[c]onsent
is a myth,” id. at 26, and that she would be the first to lose her virginity; and threatened
with physical violence. She also alleges that a group of boys would start rumors about
her, make rape jokes about her assailant to her, pull on her backpack, tell her to kill
herself, and draw pictures of her killing herself.
The district court ruled that it was “not persuaded that the few specific instances
described in the complaint are adequate to show harassment that was pervasive and
severe.” Doe, 2019 WL 3425236, at *5. It said that the allegations relating to the nature
of the harassment were, for the most part, too conclusory to support a reasonable
inference that DPS was liable for misconduct. We respectfully disagree.
“A plaintiff should have—and must plead—at least some relevant information to
make the claims plausible on their face.” Bekkem v. Wilkie, 915 F.3d 1258, 1275 (10th
Cir. 2019) (brackets and internal quotation marks omitted). But the plaintiff is not
required to prove her case at the motion-to-dismiss stage. See id. at 1274 (“A complaint
raising a claim of discrimination does not need to conclusively establish a prima facie
case of discrimination.”). Further, matters of degree—such as severity and
pervasiveness—are often best left to the jury. Thus, we have observed that “the severity
and pervasiveness evaluation is particularly unsuited for summary judgment because it is
quintessentially a question of fact,” O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093,
1098 (10th Cir. 1999); and it is even less suited for dismissal on the pleadings.
These considerations are particularly potent here. Ms. Doe alleges that she was
continuously harassed for a number of months. The complaint need not provide details
17 of the time, place, offender, and precise statement for every incident. Describing more
than half a dozen of the types of things said to her, apparently repeatedly, can suffice,
particularly when combined with her allegations that she reported ongoing and
continuous harassment to school personnel almost monthly from the time of the sexual
assault to the time she left the school.
Adding to the evidence that the harassment was severe and pervasive are the
allegations regarding the impact of the harassment on Ms. Doe and the evaluations of
third parties. In particular, she alleges that by the spring semester of 2017 she was going
to great lengths to structure her time at EHS to avoid contact with the students who were
harassing her (eating lunch in the counselor’s office or teachers’ classrooms, using the
back doors instead of the main entrance). And she alleges that two teachers and one
counselor were sufficiently concerned to contact school administrators for their help. Cf.
Asebedo v. Kan. State Univ., 559 F. App’x 668, 671 (10th Cir. 2014) (allegation that
employer’s own internal investigations determined that the plaintiff had been subjected to
a hostile environment supported a reasonable inference that he was, in fact, subjected to a
hostile work environment). Such reactions would be uncommon responses to minor
teasing or banter.
Further, the specifics that Ms. Doe provides (being called a dirty slut, being told to
kill herself, etc.) support an inference that the harassment was objectively offensive. In
our view, Ms. Doe has adequately alleged that her harassment was severe, pervasive, and
objectively offensive.
18 D. Denial of Educational Benefits
To state a claim for relief under Title IX, the plaintiff must allege that she was
“effectively denied equal access to an institution’s resources and opportunities.” Davis,
526 U.S. at 651. Even though the district court did not rule on this issue, DPS argues that
the court’s judgment can be affirmed on the alternative ground that Ms. Doe’s complaint
fails to adequately allege denial of such access. We disagree.
The District relies on the Seventh Circuit’s decision in Gabrielle M. v. Park Forest
Chicago Heights, Illinois School District, 315 F.3d 817, 823 (7th Cir. 2003), which
upheld the denial of relief when “there [was] no evidence that [the plaintiff] was denied
access to an education” since “she was diagnosed with some psychological problems,
[but] the record shows that her grades remained steady and her absenteeism from school
did not increase.” But that is not our case. The complaint alleges that the harassment
became so intolerable that Ms. Doe could not attend classes at the school. She worked at
home, coming to school only to perform assignments before regular classes began and
after classes had ended. We are somewhat surprised that the District so devalues
classroom instruction and experience that it argues that their denial is not a denial of
access to education. Yes, Ms. Doe maintained a 4.0 average. Apparently, she is quite
bright. Does that mean that she would have derived no benefit from the instruction
provided by her teachers? And there is certainly a body of thought that the socialization
from attending school with peers is an important, perhaps essential, advantage of the
school experience. The District’s argument on this issue is unpersuasive. See Jennings v.
Univ. of N.C., 482 F.3d 686, 699–700 (4th Cir. 2007) (en banc) (plaintiff student may
19 have been deprived of access to educational opportunities or benefits even though her
grades slightly improved); but see id. at 717–19 (Niemeyer, J., dissenting).
E. Deliberate Indifference
The above analysis establishes that Ms. Doe has adequately alleged that
harassment on the basis of sex by fellow students (including harassment that was
retaliation for her reporting the sexual assault by Student 1) was sufficiently severe and
pervasive to deprive her of educational benefits. The remaining issue on appeal is
whether the complaint adequately alleges facts establishing that the District is liable for
responding improperly to the student harassment.2
“[R]ecipients of federal funding may be liable for ‘subjecting’ 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.”
Davis, 526 U.S. at 646–47 (original brackets omitted); see Feminist Majority Found. v.
Hurley, 911 F.3d 674, 695 (4th Cir. 2018) (“[W]e are satisfied that an educational
institution can be liable for acting with deliberate indifference toward known instances of
student-on-student retaliatory harassment.”). The school is deliberately indifferent if its
“response to the harassment or lack thereof is clearly unreasonable in light of the known
circumstances.” Davis, 526 U.S. at 648. This “does not mean that recipients can avoid
liability only by purging their schools of actionable peer harassment or that
administrators must engage in particular disciplinary action.” Id. Indeed, “courts should
2 We note that there is no claim that the District was retaliating against Ms. Doe for her reports of the sexual assault or the student harassment. 20 refrain from second-guessing the disciplinary decisions made by school administrators.”
Id.; see Stiles v. Grainger Cty., Tenn., 819 F.3d 834, 849 (6th Cir. 2016) (although
continuing harassment by fellow students required plaintiff student to transfer to another
school, school was not liable because its prompt, tailored, and repeated responses to the
harassment—including interviewing the victim, other students, and teachers, and
disciplining students with verbal warnings and suspensions—established that it was not
deliberately indifferent); see also Porto v. Town of Tewksbury, 488 F.3d 67, 75 (1st Cir.
2007) (school was not deliberately indifferent since it “reasonably believed that it had
been successful in stopping” the inappropriate behavior).
The district court held that the response of EHS personnel was not clearly
unreasonable because Ms. Doe was provided counseling services; the offending students
were referred to EHS deans “on multiple occasions”; and although harassment continued
after Ms. Doe’s reports, EHS was not required to eliminate harassment. Doe, 2019 WL
3425236, at *5. Again, we respectfully disagree.
The District commendably provided counseling for Ms. Doe. But it is not enough
to try to help a student cope with the misbehavior of other students. See Hurley, 911 F.3d
at 690 (“[U]niversity administrators listening to students’ reports of harassment and
threats is an important step in seeking to rectify a sexually hostile environment. But the
mere act of listening to students is not a remedy in and of itself.”). Deliberate
indifference may be shown by a failure to act to halt the misbehavior. See Davis, 526
U.S. at 654. According to Doe’s complaint, the school’s only response in that regard was
that administrators said they would speak with the students who were harassing her in the
21 spring of 2016 when she first reported that she was being harassed and again in early
2017 after she filed her Safe2Tell report. The complaint does not say whether the
administrators followed up on their promises and, if so, what they said. Discovery may
be necessary for Ms. Doe to find out. But even without that information, her complaint
contains sufficient allegations to support an inference of deliberate indifference.
First, she alleges continual harassment despite her repeated reports to school
authorities. Thus, the authorities knew that what they had been doing (if anything) had
not sufficed. Failure of authorities to try something else can show deliberate
indifference. See Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253, 262 (6th Cir.
2000) (“Although talking to the offenders produced no results, [the school] continued to
employ this ineffective method. . . . [O]nce [the school] had knowledge that its response
was inadequate, it was required to take further reasonable action in light of the
circumstances to avoid new liability.”); Wills v. Brown Univ., 184 F.3d 20, 26 (1st Cir.
1999) (“[I]f [the educational institution] learns that its measures [to halt harassment] have
proved inadequate, it may be required to take further steps to avoid new liability.”); cf.
Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 668–71 (2nd Cir. 2012) (in Title VI
claim for discrimination in education on the basis of race, even immediate disciplinary
actions against students engaged in harassment, if known to be ineffective, can be clearly
unreasonable under the circumstances).
Second, Ms. Doe alleges that school authorities conducted no investigation. See
Davis, 526 U.S. at 654 (“[P]etitioner may be able to show both actual knowledge and
deliberate indifference on the part of the Board, which made no effort whatsoever either
22 to investigate or to put an end to the harassment.”); Murrell, 186 F.3d at 1248
(“[C]omplete refusal to investigate known claims of the nature advanced by [the victim],
if true, amounts to deliberate indifference.”). It would be a different story if the District
had referred the matter to another institution, such as the police, to investigate, as in Rost
ex rel. K.C. v. Steamboat Springs RE-2 School Disrict, 511 F.3d 1114, 1121 (10th Cir.
2008). But it did no such thing. On the contrary, according to the complaint, school
authorities even forcefully encouraged Ms. Doe and her parents not to report to the police
the rape by Student 1, who later pleaded guilty to sexual assault with force.
Third, the administrators’ refusal to take Ms. Doe’s complaints seriously is
reflected in their failure to document them. Nothing regarding the harassment was
recorded in Ms. Doe’s school file nor did Student 1’s file have any reports of
misbehavior, not even the sexual assault.
Fourth, this circumstantial evidence of deliberate indifference is supported by
direct evidence alleged in the complaint: when Ms. Doe and her parents complained to
Dean Sinclair in late January or early February of 2017 that “nothing was being done to
address the bullying and harassment,” he responded that “he could not do anything about
it and that ‘being an asshole isn’t a crime.’” Aplt. App. at 25. QED.
In our view, Ms. Doe has adequately pleaded the deliberate-indifference element
of her claim. She should be given the opportunity to show that she has evidence
supporting her allegations.
23 III. CONCLUSION
We REVERSE the district court’s order dismissing Ms. Doe’s Title IX claim
against DPS and REMAND for further proceedings.
24 19-1293, Doe v. School District Number 1, et al.
TYMKOVICH, Chief Judge, concurring.
While I agree with the majority that the district court erred in granting DPS’s
motion to dismiss for failure to state a claim, I write separately to express my
disagreement with the majority’s conclusion that defendants could be found liable under
Title IX for failing to police student-on-student retaliatory conduct. But because Doe’s
second amended complaint plausibly alleges a Title IX claim for sexual harassment under
Davis, I concur. See Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S.
629, 633 (1999).
Title IX prohibits educational institutions receiving federal funds from
discriminating on the basis of sex. 20 U.S.C. § 1681. In Franklin, the Supreme Court
concluded Title IX is enforceable through an implied private right of action for damages
if the Title IX violation is intentional. Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60,
74–75 (1992). Franklin also held that “sexual harassment” is a form of sex-based
discrimination within the meaning of Title IX. Id. at 75. Davis went further, holding that
a funding recipient could be liable under Title IX for student-on-student sexual
harassment under a “direct liability theory” where a school’s “deliberate indifference”
effectively “subjects its students to harassment.” See Davis at 630 (internal quotation
marks omitted). Although Title IX, unlike Title VII, does not include express language
prohibiting retaliation, in Jackson, the Court concluded “Title IX prohibits a funding
recipient from retaliating against a person who speaks out against sex discrimination, because such retaliation is intentional discrimination on the basis of sex.” Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 175–78 (2005). (internal quotation marks
omitted).
This court regularly borrows from Title VII in resolving Title IX claims. Indeed,
we have explicitly held “Title VII . . . is the most appropriate analogue when defining
Title IX’s substantive standards . . . .” Roberts v. Colo. State Bd. of Agric., 998 F.2d 824,
832 (10th Cir. 1993) (quoting Mabry v. State Bd. of Cmty. Colls. and Occupational Educ.,
813 F.2d 311, 314 (10th Cir. 1987)). And in the wake of Jackson, various courts have
applied the Title VII retaliation framework to Title IX retaliation claims. See, e.g.,
Milligan v. Bd. of Trs., 686 F.3d 378, 388 (7th Cir. 2012), Emeldi v. Univ. of Or., 698
F.3d 715, 724 (9th Cir. 2012), Papelino v. Albany Coll. of Pharm. of Union Univ., 633
F.3d 81, 91–92 (2d Cir. 2011), Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st
Cir. 2002).
Thus, while we have not addressed student-on-student retaliation in the Title IX
context, our cases dealing with co-worker retaliatory conduct in the Title VII context are
instructive. In Gunnell, we held that “an employer can only be liable for co-workers’
retaliatory harassment [under Title VII] where its supervisory or management personnel
either (1) orchestrate the harassment or (2) know about the harassment and acquiesce in it
in such a manner as to condone and encourage the co-workers’ actions.” Gunnell v. Utah
Valley State Coll., 152 F.3d 1253, 1265 (10th Cir. 1998). We emphasized that such a test
2 was appropriate because it is the employer’s intentional conduct or acquiescence, not that
of a third-party, that exposes an employer to Title VII liability for sex-based
discrimination. Id. at 1263, 1265. Title IX likewise provides a cause of action for the
“intentional conduct” of a funding recipient.
Davis begins from the premise that “a recipient of federal funds may be liable in
damages under Title IX only for its own misconduct.” Davis at 640. When the
misconduct at issue is not that of the recipient itself, but of a peer student, liability only
attaches to the recipient when a school’s “own deliberate indifference effectively caused
the discrimination.” Id. at 642–43 (internal quotation marks omitted). This “deliberate
indifference to known acts of [student] harassment—amounts to an intentional violation
of Title IX, capable of supporting a private damages action[.]” Id at 643. In Jackson, the
Court determined that Title IX’s anti-discrimination provisions encompassed an implicit
anti-retaliation component, noting that “retaliation presents an even easier case than
deliberate indifference [because i]t is easily attributable to the funding recipient and it is
always—by definition—intentional.” 544 U.S. at 183. In other words, I disagree with the
majority’s decision to bootstrap the Davis “deliberate indifference” into the realm of Title
IX retaliation through a reading of Jackson, which involved direct retaliation by the
funding recipient. See Jackson, 544 U.S. at 183.
Instead, I would borrow from the Gunnell test and ask whether school officials
acted with the intent to either orchestrate, or condone and encourage, student-on-student
3 retaliation. If they did, the retaliation at issue would be “attributable to the funding
recipient” and would expose the school to private liability under Title IX. See Jackson at
183. Doe has not alleged any such facts.
Finally, the distinction between harassment and retaliation claims is relevant
because proof of actionable harassment requires evidence that the sexual harassment was
sufficiently severe or pervasive as to interfere with a student’s access to educational
programs, Davis at 650, whereas proof of actionable retaliation would likely require
evidence the harassment was
“materially adverse” in that it would deter a reasonable student from opposing unlawful
sex discrimination. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006), see also Hiatt v. Colorado Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017)
(applying Burlington’s “material adversity” test to a Title IX retaliation claim), Feminist
Majority Found. v. Hurley, 911 F.3d 674, 695 (4th Cir. 2018) (same), Ollier v.
Sweetwater Union High Sch. Dist., 768 F.3d 843, 868–69 (9th Cir. 2014) (same), Bowers
v. Bd. of Regents of Univ. Sys. of Ga., 509 F. App’x 906, 911–12 (11th Cir. 2013) (same).
In summary, Doe has plausibly alleged DPS acted with deliberate indifference to
known acts of direct sex-based harassment by her student peers. The motivation of Doe’s
peers is not relevant to the inquiry of whether DPS’s response to the harassment was
“clearly unreasonable in light of known circumstances.” See Davis at 648.