Doe v. Howard Univ.

• Decision Date: 11 July 2019
• Docket Number: Civil Action No. 17-cv-870 (TSC)
• Parties: Jane DOE 1, et al., Plaintiffs, v. HOWARD UNIVERSITY, Defendant.
• Court: U.S. District Court — District of Columbia

396 F.Supp.3d 126

Jane DOE 1, et al., Plaintiffs,

v.HOWARD UNIVERSITY, Defendant.

Civil Action No. 17-cv-870 (TSC)

United States District Court, District of Columbia.

Signed July 11, 2019

Lauren A. Khouri, Linda M. Correia, Roshni C. Shikari, Correia & Puth, LLC, Washington, DC, for Plaintiffs.

Ariana Wright Arnold, Howard University, Judith L. O'Grady, Matthew D. Foster, Pepper Hamilton LLP, Washington, DC, Hedya Aryani-Sabet, Pro Hac Vice, Michael E. Baughman, Pro Hac Vice, Pepper Hamilton, LLP, Philadlephia, PA, for 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 125 S.Ct. 1497, 161 L.Ed.2d 361 (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, 118 S.Ct. 1989, 141 L.Ed.2d 277 (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, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009), plaintiffs may enforce the statute's prohibitions on sex discrimination through an implied private right of action, Gebser , 524 U.S. at 281, 118 S.Ct. 1989, 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, 125 S.Ct. 1497 ("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, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). In other words, a school is liable only when it "subjects its students to harassment." Id. at 644, 119 S.Ct. 1661 (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, 119 S.Ct. 1661. 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, 119 S.Ct. 1661. 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, 119 S.Ct. 1661. And fifth, a school's deliberate indifference must "cause[ ] students to undergo harassment or make[ ] them liable or vulnerable to it." Id. at 645, 119 S.Ct. 1661.

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, 119 S.Ct. 1661. Victims of peer harassment do not have the right "to make particular remedial demands." Id. at 648, 119 S.Ct. 1661. 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, 119 S.Ct. 1661. 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, 119 S.Ct. 1661.

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, 119 S.Ct. 1661.

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, 119 S.Ct. 1661 ) (alterations in original), rev'd and remanded on other grounds , 555 U.S. 246, 129 S.Ct. 788, 172...