Must a Title IX plaintiff allege further post-incident harassment to plead a plausible claim?

March 19, 2019

Higher Education Alert

Author(s): Steven M. Richard

Federal courts have differed on whether a plaintiff alleging a Title IX deliberate indifference claim must plead that further harassment occurred after the reporting.

Federal courts have divided on the legal question of whether a Title IX plaintiff, who reported alleged student-on-student sexual misconduct to an authorized school official, may pursue a private lawsuit in the absence of any allegations of post-reporting harassment. Some courts have found that a plaintiff left “vulnerable” to further sexual harassment has pled a plausible Title IX claim. Other courts have held that the plaintiff bears the burden of factually pleading post-reporting harassment.

In an opinion issued on March 18, 2019, in two consolidated appeals, the United States Court of Appeals for the Tenth Circuit ruled that plaintiffs meeting the “vulnerability” pleading standard can state a plausible Title IX claim.[2] The Tenth Circuit’s ruling is not the last judicial word on this important evolving issue in our federal courts, as a similar question is on appeal before the Sixth Circuit and the issue often arises before district courts where Title IX pleadings are first challenged.

The appeals before the Tenth Circuit concerned alleged student-on-student sexual assaults that occurred in off-campus fraternity settings. Two plaintiffs contended that the university was deliberately indifferent in responding to the alleged assaults, which allegations were accepted as true for purposes of adjudicating the university’s motions to dismiss the lawsuits (but will certainly be contested by the university as the litigation moves forward). The plaintiffs asserted that their vulnerability to further sexual harassment caused them to withdraw from participating in and enjoying educational opportunities. Accepting the alleged deliberate indifference as true, the legal question before the Tenth Circuit involved the element of causation: What harm must plaintiffs allege that the deliberate indifference caused them?

Title IX’s statutory language was the starting point for the Tenth Circuit’s analysis, which provides at 20 U.S.C. § 1681(a):

[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 . . . . (emphasis added).

Turning next to United States Supreme Court precedent, the Tenth Circuit cited to Davis ex. Rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 644-45 (1999), which addressed the legal standards to impose Title IX institutional liability in cases of student-on-student harassment:

If a funding recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference “subject[s]” its students to harassment. That is, the deliberate indifference must at a minimum, “cause [students] to undergo” harassment or “make them liable or vulnerable” to it. (emphasis added).

“To underscore that a Title IX plaintiff is not required to allege that she suffered actual additional incidents of sexual harassment, the Supreme Court in Davis referred to the Random House Dictionary definition of ‘subject’ to include, ‘to make liable . . . .; lay open; expose.’” (citing Davis, 526 U.S. at 645).

The Tenth Circuit held that Davis clearly indicates that Title IX plaintiffs can state a viable claim by alleging either that a school’s deliberate indifference to reports of sexual harassment caused the plaintiffs to undergo harassment or made them vulnerable to it. Regarding claims based upon “vulnerability,” the Tenth Circuit offered guidance on the pleading boundaries, noting that a Title IX plaintiff’s alleged fear of encountering the assailant must be objectively reasonable. “Future cases will undoubtedly be asked to draw lines on when a victim’s fear of further sexual harassment is sufficient to deprive that student of educational opportunities that the educational institution offers to others, . . . .”

The Tenth Circuit’s ruling is not an adjudication of the ultimate merits of the underlying lawsuits, and the university will present its defenses to rebut the plaintiffs’ allegations of deliberate indifference. Also, in light of the specific appellate issue before it, the Tenth Circuit did not address the university’s contention that the alleged sexual harassment occurred outside of a program or activity, and thus, the university is not responsible for student-on-student harassment in an off-campus fraternity setting.


Courts that have not adopted the Tenth Circuit’s pleadings analysis have taken a stricter view, holding that allegations of actual “further harassment” after an initial report of harassment is a required element of a Title IX claim, separate from the “deliberate indifference” and “deprivation of access” elements. Those courts have held that “further harassment” must be specifically alleged to avoid dismissal of the Title IX claim. Significantly, if the Sixth Circuit adopts this analysis in the appeal pending before it, a circuit split could prompt Supreme Court review.

The standards for sufficient pleading in a Title IX “deliberate indifference” lawsuit are not only important to determine whether a claim can avoid dismissal and proceed to discovery that can be both intrusive and expensive, but also to provide guidance to schools in their implementation of strategic planning and measures to avoid Title IX liability. For example, if a school’s measures to end harassment have knowingly proved inadequate, the school may be required to take further remedial steps to avoid claims that a student was left “vulnerable” to further harassment.

  1. Tessa Farmer v. Kansas St. Univ., No. 17-3207, and Sara Weckhorst v. Kansas St. Univ., No. 17-3208 (10th Cir. Mar. 18, 2019).
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