THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SNYDER-HILL, et al., ) Case No. 2:18-cv-00736

)

 Plaintiffs, ) Judge Michael H. Watson

)

v. ) Chief Magistrate Judge Elizabeth P. 

) Deavers

THE OHIO STATE UNIVERSITY, )

)

Defendant. )

________________________________________ )

DEFENDANT THE OHIO STATE UNIVERSITY’S RESPONSE TO 

PLAINTIFFS’ FOURTH NOTICE OF SUPPLEMENTAL AUTHORITY

Plaintiffs’ fourth notice of supplemental authority cites Karasek v. Regents of the 

University of California, No. 3:15-CV-03717-WHO, 2020 WL 6684869 (N.D. Cal. Nov. 12, 

2020). 

The statute of limitations accrual analysis in Karasek relied entirely upon the Ninth 

Circuit’s conclusion that a “heightened risk” or “pre-assault” claim is cognizable under Title IX. 

As explained in Ohio State’s motion to dismiss briefing and Ohio State’s response to plaintiffs’ 

second notice of supplemental authority, however, neither the text of Title IX itself nor the 

Supreme Court, the Sixth Circuit, or the Southern District of Ohio have ever recognized a Title 

IX “heightened risk” or “pre-assault” claim. See OSU MTD (Doc. 128) at 5 n.2; OSU Reply ISO 

MTD (Doc. 135) at 15 n.6; OSU Response to Notice of Supp. Auth. (Doc. 140); see also

Poloceno v. Dallas Indep. Sch. Dist., No. 20-10098, 2020 WL 5494511, at *3 (5th Cir. Sept. 10, 

2020) (“We have never recognized or adopted a Title IX theory of liability based on a general 

‘heightened risk’ of sex discrimination, and we decline to do so.”). 

In addition, courts which have recognized “heightened risk” or “pre-assault” Title IX 

claims “limit this theory of liability to contexts in which students committed sexual assaults on 

Case: 2:18-cv-00736-MHW-EPD Doc #: 146 Filed: 12/08/20 Page: 1 of 3 PAGEID #: 2680
2

other students[.]” Poloceno, 2020 WL 5494511, at *3. Karasek is no exception. It involved 

sexual assault by students and a “guest” of the university. Karasek, 2020 WL 6684869, at *2, 

*10. Given that Strauss was neither a student nor guest of Ohio State, Karasek’s Title IX statute 

of limitations accrual analysis does not apply to plaintiffs’ claims here. 

In further supplementation of authority, since Ohio State filed its motion to dismiss, the 

following courts have dismissed or recommended dismissals of Title IX claims based on the 

statute of limitations and lack of standing: 

1. Celece v. Dunn School, No. CV2010139GWPVCX, 2020 WL 6802027, at *6 (C.D. 

Cal. Nov. 19, 2020) (finding that Title IX claim accrued at the time of the alleged 

abuse and recommending dismissal of Title IX claim that because it was “untimely by 

over twenty years”).

2. Borkowski v. Baltimore Cty., Maryland, No. CV DKC 18-2809, 2020 WL 5816369, 

at *22-23 (D. Md. Sept. 30, 2020) (dismissing for lack of standing Title IX claims 

brought by former students of the University of Maryland Baltimore County 

(“UMBC”) against UMBC arising from sexual assaults by members of UMBC’s 

basketball team because plaintiffs were students at Towson University, not students 

of UMBC, at the time of the assaults).

Respectfully submitted, 

DAVID A. YOST

ATTORNEY GENERAL OF OHIO

By: /s/ Michael H. Carpenter

Michael H. Carpenter (0015733) (Trial Attorney)

Timothy R. Bricker (0061872)

David J. Barthel (0079307)

CARPENTER LIPPS AND LELAND LLP

280 Plaza, Suite 1300

280 North High Street

Columbus, OH 43215

E-mail:carpenter@carpenterlipps.com

bricker@carpenterlipps.com

barthel@carpenterlipps.com

Special Counsel for Defendant 

The Ohio State University

Case: 2:18-cv-00736-MHW-EPD Doc #: 146 Filed: 12/08/20 Page: 2 of 3 PAGEID #: 2681
3

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was filed electronically on December 8, 

2020. Notice was sent by operation of the Court’s electronic filing system to all other counsel 

who have entered an appearance and any parties who have entered an appearance through 

counsel. The parties may access this filing through the Court’s ECF system. 

/s/ Michael H. Carpenter

Trial Attorney for 

Defendant The Ohio State University

Case: 2:18-cv-00736-MHW-EPD Doc #: 146 Filed: 12/08/20 Page: 3 of 3 PAGEID #: 2682