Tenth Circuit rules that university is not liable in Title IX lawsuit alleging two distinct theories of deliberate indifference

June 27, 2017

Higher Education Alert

Author(s): Steven M. Richard

The United States Court of Appeals for the Tenth Circuit finds that a university did not act with deliberate indifference before and after a student’s reporting of an alleged sexual assault.

In a Title IX civil lawsuit, a plaintiff suing to hold a college or university liable for a sexual misconduct incident often pleads claims based upon two different time periods. The first period focuses on events before the incident, where the school allegedly had prior actual notice of a “heightened risk” of sexual misconduct. The second period focuses on the college or university’s response after its actual notice of the incident.

Regarding both time periods, a plaintiff must prove the following four factors: (1) the institution had actual notice of a substantial risk of sexual harassment (such as sexual violence) against a student; (2) the institution was deliberately indifferent to that risk; (3) the sexual harassment was severe, pervasive and objectively offensive; and (4) the sexual harassment deprived the student of access to the institution’s educational benefits or opportunities.

On June 20, the United States Court of Appeals for the Tenth Circuit affirmed the entry of a pre-trial summary judgment in favor of the University of Tulsa in a Title IX lawsuit filed by a student who alleged that she was raped by a fellow student.[1] The plaintiff, Abigail Ross (Ross), alleged distinct theories of the university’s deliberate indifference. Under Title IX, the United States Supreme Court has held that a college or university is “deemed ‘deliberately indifferent’ to the acts of student-on-student sexual misconduct only where the [institution’s] response to the harassment or lack thereof is clearly unreasonable in light of known circumstances.”[2]

First, Ross argued that before the alleged rape, the university acted with deliberate indifference by failing to adequately investigate a prior report that the same alleged perpetrator had raped another student. Second, Ross challenged the university’s response to her report, where it excluded from the disciplinary hearing prior reports of sexual misconduct by the alleged perpetrator. Viewing the evidence in a light most favorable to Ross (as is required at the summary judgment stage of review), the Tenth Circuit ruled that Ross failed to show the university’s deliberate indifference before and after the incident.[3]

Ross’ first theory — prior to the alleged sexual assault

Ross contended that the university failed to adequately investigate earlier reports that the alleged perpetrator had raped another student, “J.M.” The university’s campus security received reports of this prior incident from two football players and J.M., but the campus-security officers dropped the matter purportedly at J.M.’s behest. As the first step in its Title IX analysis, the Tenth Circuit concluded that a jury could infer that the campus-security officers had actual notice of the incident, whereby they were aware of a substantial risk to individuals on campus.

Next, the Tenth Circuit addressed whether a fact-finder could justifiably conclude that campus-security officers acted with deliberate indifference. J.M. declined to press criminal charges against the alleged perpetrator or file a student-conduct complaint. Nonetheless, a fact-finder could still reasonably conclude that campus-security officers knew that further investigation was necessary to determine the alleged perpetrator’s danger to others. The Tenth Circuit cited Office for Civil Rights guidance that a university should investigate even when an alleged victim fails to report sexual harassment or to cooperate in the investigation. Consequently, a reasonable fact-finder could find that (1) the presence of an alleged perpetrator on campus would pose a substantial risk to others and (2) campus-security officers acted in a clearly unreasonable manner in dropping the investigation.

Even so, a finding of deliberate indifference by the campus-security officers did not end the analysis of whether the university could be held liable to Ross. Under Title IX, an institution must have actual notice through an appropriate person, who, at a minimum, is an official with authority to take corrective action to end the discrimination. The reporting of the alleged rape of J.M. did not go beyond the university’s campus-security officers, requiring the Tenth Circuit to determine whether the officers were appropriate persons under the Title IX liability analysis.

The university’s policy required campus-security officers to automatically report sexual assaults to the Office of Student Affairs. Ross contended that campus security’s role in receiving and forwarding complaints means that campus-security officers “institute corrective measures.” The Tenth Circuit construed her argument to suggest that anyone who participates in the initiation of a corrective process is an “appropriate person” for purposes of an institution’s Title IX liability. The court declined to extend Title IX liability that far, noting that “merely passing on a report of sexual harassment to someone authorized to take corrective action is not itself corrective action.”

To hold otherwise would expand Title IX liability beyond Supreme Court precedent and turn the deliberate-indifference standard into wide-ranging vicarious liability, which the Supreme Court has specifically declined to impose under Title IX. Taken to a far extreme, Ross’ argument would wrongly create Title IX vicarious liability in a situation where a ministerial employee such as an assistant to the Dean of Students receives a report and makes a negligent clerical error by failing to report it to the Dean.

The Tenth Circuit also rejected Ross’ argument focusing on the campus-security officers’ investigative role. The mere fact that the investigation is necessary for the university to start its corrective process does not render investigating officers as “appropriate persons” authorized to take corrective action. Also, to the extent that Ross argued that an investigation itself may constitute a corrective action (which the Tenth Circuit acknowledged could conceivably be plausible), she did not preserve this argument in her appeal so the court declined to address it.

Finally, Ross argued that the university’s Title IX policies had the effect of designating campus-security officers as appropriate persons because they were authorized to receive sexual violence complaints. Again, the court stressed that although campus-security officers were the starting point to the university’s “corrective processes,” that fact alone would not justify treating them as authorized to institute corrective measures. Ross did not present evidence whether the campus-security officers had arrest powers, so the Tenth Circuit declined to address whether such powers could affect the appropriate person analysis.

Ross’ second theory — after the alleged sexual assault

When the university held its hearing on Ross’ complaint, the respondent had not been found responsible for any acts of sexual misconduct. The university’s policy permitted consideration of prior acts only if there had been a separate hearing, trial or similar proceeding that resulted in a finding of responsibility. Consequently, the hearing officer did not consider reports of the respondent’s alleged sexual misconduct toward other students.

The Tenth Circuit cited to Office for Civil Rights guidance indicating that it “may be helpful” for schools to consider evidence of prior acts when there has been a finding of responsibility. The guidance does not recommend use of prior reports in the absence of a finding of responsibility. Thus, the university’s evidentiary rule conforms to the guidance.

In her opening brief, Ross did not argue that the evidentiary rule itself was inherently unreasonable, but she contended that its application at the hearing was unreasonable because the university had failed to properly investigate the respondent’s past acts. Her argument failed because further investigation, standing alone, would not have permitted the hearing panel’s consideration of the respondent’s alleged prior acts. The university policy required an actual adjudication of responsibility before such evidence could be considered during the hearing on Ross’ complaint, which did not occur.

In her reply brief, Ross refined her argument to contend that the university should have adjudicated the respondent’s responsibility for other alleged prior acts before holding its hearing on Ross’ complaint. In addition to this argument’s untimeliness, it failed as a matter of law. Before Ross’ report, the only personnel who knew about the prior incident with J.M. were campus-security officers. When others at the university ultimately learned of J.M.’s report, J.M. had left the university and declined to participate in a student-conduct hearing. Two other reports about the respondent were unknown even to campus-security officers before Ross’ report. One of these alleged victims refused to file a complaint, and the other never attended the university. The court found that the university did not act clearly unreasonably in declining to adjudicate the respondent’s responsibility for these alleged prior acts.


The Tenth Circuit’s ruling demonstrates the high evidentiary hurdles that a plaintiff must clear to hold a college or university liable under Title IX for student-on-student sexual harassment. The opinion is particularly significant in its analysis of when a report of sexual harassment reaches an “appropriate person” with authority to take corrective action. Here, the Tenth Circuit did not address explicitly (because it was not properly presented as part of Ross’ appeal) whether the manner in which a campus safety investigation is conducted could constitute corrective action for purposes of the Title IX liability analysis. Under the facts of a different case, it is conceivable that an investigation could implicate factual questions of whether campus-security officers may be deemed to be “appropriate persons” from whom liability may be imputed to the college or university, requiring a trial to adjudicate the question. The cut-off lines for the analysis may not be as clear as the Tenth Circuit found in Ross.

Further, the Ross ruling evidences the challenging evidentiary issues regarding character evidence or prior bad acts that arise in sexual misconduct disciplinary hearings. Policies must be carefully drafted and implemented to delineate precisely whether such evidence may be considered, if at all and under what circumstances. The evidentiary line of demarcation between evidence relevant to the incident and inadmissible evidence concerning other acts may not be easily defined.


  1. Ross v. University of Tulsa, No. 16-5053 (10th Cir. June 20, 2017).
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  2. Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648 (1999).
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  3. The Tenth Circuit concluded that summary judgment was proper on different grounds than the lower court’s analysis. In this alert, we focus on the appellate court’s reasoning, which has a precedential effect upon the Tenth Circuit’s district courts and may be persuasive in other federal circuit appellate courts’ analysis.
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