Madeleine Barlow v. State of Washington

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MADELEINE BARLOW, No. 21-35397

Plaintiff-Appellant, D.C. No. 3:20-cv-05186-BHS

v. MEMORANDUM* STATE OF WASHINGTON, DBA Washington State University,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Argued and Submitted April 12, 2022 Seattle, Washington

Before: BOGGS,** HURWITZ, and SUNG, Circuit Judges.

Madeleine Barlow appeals the district court’s grant of summary judgment to

defendant University of Washington (University) on her Title IX and state-law

negligence claims. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

COA de novo a district court’s grant of summary judgment. Karasek v. Regents of Univ.

of Cal., 956 F.3d 1093, 1104 (9th Cir. 2020). We affirm the summary judgment

dismissing Barlow’s Title IX claim. In a companion published order, we certify to

the Washington State Supreme Court the remaining dispositive question of state

law before us, namely whether the University owed Barlow a duty in negligence.

We summarize the facts underlying this case in that order.

Barlow asserts what we have referred to as a “pre-assault” claim under Title

IX. Id. at 1111–12 (recognizing pre-assault claim as a cognizable theory of Title IX

liability). To prevail on a pre-assault claim, Barlow must show that (1) the

University maintained a policy of deliberate indifference to reports of sexual

misconduct1 (2) that created a heightened risk of sexual harassment that was

known or obvious (3) in a context subject to the University’s control, and (4) as a

result, Barlow suffered severe, pervasive, and objectively offensive harassment

that deprived her of access to the educational opportunities or benefits provided by

the University. Id. at 1112. Deliberate indifference requires more than mere

negligence, laziness, or carelessness. Oden v. N. Marianas Coll., 440 F.3d 1085,

1 In Karasek we noted that a defendant’s policy of deliberate indifference to reports of sexual misconduct was not necessarily the only type of policy that could give rise to Title IX liability but declined to speculate as to what other policies might be actionable. 956 F.3d at 1112 n.5. Because Barlow only takes issue with the adequacy or inadequacy of the University’s policy for responding to reports of Culhane’s past sexual misconduct, we also decline to so speculate.

COA 2 1089 (9th Cir. 2006).

Under Title IX, both a pre-assault claim and an “individual claim” include

an element that involves “deliberate indifference,” but the required showings are

somewhat different. For an individual claim, the focus is on whether the university

responded with deliberate indifference to an instance of harassment of which the

university had actual knowledge. See Karasek, 956 F.3d at 1105. For a pre-assault

claim, however, the focus is on whether the university maintained an official or de

facto policy of deliberate indifference to reports of sexual misconduct or an

obvious risk of sexual misconduct. Id. at 1112–13. Because a pre-assault claim

requires a showing that the university intentionally violated Title IX by its own

policy, there is no requirement that the university have actual knowledge of a

specific instance of sexual misconduct. Id. at 1112.

Here, although Barlow brought a pre-assault claim, her evidence and

arguments focus primarily on the University’s investigation and discipline of

Culhane. Viewed in the best light, Barlow’s evidence at most shows that the

University policies that permitted Culhane to transfer campuses were deficient; the

evidence does not show that the University maintained those policies despite a

known or obvious risk of sexual misconduct. On this record, no reasonable jury

could conclude that the University was, as a matter of policy, deliberately

indifferent to reports of sexual misconduct. Cf. Simpson v. Univ. of Colo. Boulder,

COA 3 500 F.3d 1170, 1184 (10th Cir. 2007) (denying summary judgment for university

where evidence could support findings that university refused to modify football-

recruiting program despite obvious risk of sexual misconduct); Karasek v. Regents

of Univ. of Cal., 500 F. Supp. 3d 967, 985 (N.D. Cal. 2020) (allegations regarding

university’s use of informal process in high percentage of sexual misconduct cases

and motive for doing so were, if true, sufficient to establish a de facto policy of

deliberate indifference toward sexual misconduct on campus).

We therefore affirm the district court’s grant of summary judgment on

Barlow’s Title IX claim.

AFFIRMED in part.

COA 4