United States Court of Appeals

For the Eighth Circuit

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No. 16-3617

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K.T.

lllllllllllllllllllll Plaintiff - Appellant

v.

Culver-Stockton College; A.B.; Lambda Chi Alpha Fraternity; Lambda Chi Alpha

Fraternity Inc.

lllllllllllllllllllll Defendants - Appellees

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Women’s and Children’s Advocacy Project at New England Law Boston

llllllll Amicus Curiae

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: April 5, 2017

 Filed: August 1, 2017

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Before SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.
K.T. brought a Title IX student-on-student harassment claim against CulverStockton College after she was allegedly sexually assaulted by a Culver-Stockton

student on campus. The district court dismissed her complaint for failure to state a

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claim under Federal Rule of Civil Procedure 12(b)(6). We affirm.

I.

Sixteen-year-old K.T., a junior in high school, wasinvited by Culver-Stockton

College to visit campus as a potential recruit to the women’s soccer team. While

there, K.T. went to a party at an on-campus fraternity house, where she says she was

served alcohol before being physically and sexually assaulted by a fraternitymember. 

The alleged assailant was a student of Culver-Stockton College. According to K.T.,

the incident was reported to College authorities the same weekend of the party, but

the College did nothing other than cancel a scheduled conference with K.T. and her

parents. 

K.T. sued the College in federal court seeking money damages under Title IX

of the Education Amendments of 1972. The claim was couched in terms of student- 2

on-student harassment (or peer harassment), a theory first articulated by the United

States Supreme Court in Davis ex rel. LaShonda D. v. Monroe County Board of

Education, 526 U.S. 629 (1999). Davis held that a federally funded institution may

be liable for damages in a private Title IX action if its deliberate indifference to

known acts of peer harassment denied the victim access to educational opportunities

provided by the institution. Id. at 650. K.T.’s complaintstated that the College acted

with deliberate indifference toward sexual harassment on its campus by failing to (1)

The Honorable Charles A. Shaw, United States District Judge for the Eastern 1

District of Missouri. 

Though Culver-Stockton College is a private Christian school, it receives

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federal financial assistance and is therefore subject to Title IX’s prohibition against

sex-based discrimination. 20 U.S.C. § 1681(a). 

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take reasonable preventative measures such as supervising K.T. during her visit, and

(2) investigate and provide treatment for K.T. once the College received reports of

the alleged incident. 

The College moved to dismiss the Title IX claim under Federal Rule of Civil

Procedure 12(b)(6), arguing that K.T. failed to state a claim because she was not a

Culver-Stockton student when the alleged assault occurred. The College averred that

the student-on-student harassment doctrine, as its name suggests, applies only in

cases where a student sues her own school over harassment by a fellow student. In

support, the College quoted language fromDavisthat a funding recipient is not liable

under Title IX “unless its deliberate indifference subject[s] its students to

harassment.” Id. at 644-45 (alteration in original) (emphasis added) (internal

quotation marks omitted). The College further asserted that no federal court has

extended Davis’s holding to claims by non-students. 

The district court agreed with Culver-Stockton. In an order dismissing the

Title IX claim, the court first concluded that as a non-student K.T. could not bring a

Title IX claim against the College. Even if K.T. could bring such a claim, the district

court continued, she failed to plausibly allege that (1) an appropriate person at the

College had actual knowledge of previous incidents of similar harassment so as to

alert it to a substantial risk of further abuse, and (2) the College’s response to K.T.’s

allegations was deliberately indifferent and caused her to undergo harassment, made

her vulnerable to it, or subjected her to further discrimination. The court determined

that K.T. therefore failed to state a plausible claim under Title IX. 

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In the district court, K.T. also brought an assault claim against the alleged

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assailant, as well as assault and negligent supervision claims against the local

fraternity chapter and the fraternity’s national organization. After dismissing the Title

IX claim against the College, the district court declined to exercise supplemental

jurisdiction over the remaining state law claims. 

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II.

The parties dispute whether K.T.’s status as a non-student precludes her from

asserting a Title IX harassment claim. Assuming arguendo that it does not, we find

no merit in K.T.’s appeal because her complaint failed to state a plausible claim to

survive dismissal under Rule 12(b)(6). Accordingly, we affirm. 

A. Standard of Review

We review the district court’s grant of a Rule 12(b)(6) motion to dismiss de

novo. Cox v. Mortg. Elec. Registration Sys., Inc., 685 F.3d 663, 668 (8th Cir. 2012). 

To prevail, K.T. must allege more than “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). The complaint must allege sufficient facts that, taken as true,

“‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim isfacially plausible when its factual

content “allows the court to draw the reasonable inference that the defendant isliable

for the misconduct alleged.” Id. “We make this determination by considering only

the materials that are necessarily embraced by the pleadings and exhibits attached to

the complaint.” Cox, 685 F.3d at 668 (internal quotation marks omitted). 

B. Title IX Student-on-Student Harassment

Title IX provides that “[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.” 20 U.S.C. § 1681(a). Where, as here, the plaintiff’s Title IX claim is

based on harassment, the school isliable in damages only where it is “(1) deliberately

indifferent (2) to known acts of discrimination (3) which occur under its control.” 

Ostrander v. Duggan, 341 F.3d 745, 750 (8th Cir. 2003) (internal quotation marks

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omitted). Additionally, the discrimination must be “so severe, pervasive, and

objectively offensive that it can be said to deprive the victim[] of access to the

educational opportunities or benefits provided by the school.” Davis, 526 U.S. at

650. 

i. Deliberate Indifference

K.T. failed to plausibly allege that Culver-Stockton acted with deliberate

indifference. A funding recipient “may not be liable for damages unlessits deliberate

indifference subject[s] its studentsto harassment. That is, the deliberate indifference

must, at a minimum, cause [students] to undergo harassment or make them liable or

vulnerable to it.” Davis, 526 U.S. at 644-45 (alterationsin original) (emphasis added)

(internal quotation marks omitted); see also Shrum ex rel. Kelly v. Kluck, 249 F.3d

773, 782 (8th Cir. 2001) (“[D]eliberate indifference must either directly cause the

abuse to occur or make students vulnerable to such abuse.”). 

In her complaint, K.T. alleged thatCulver-Stockton was deliberately indifferent

by failing to adopt practices to prevent sexual assault and also failing to investigate

and offer medical services to K.T. after it received reports of the alleged incident. 

But the complaint identified no causal nexus between Culver-Stockton’s inaction and

K.T.’s experiencing sexual harassment. Rather, the complaint alleged that “as a direct

and proximate result of . . . [Culver-Stockton’s] failure to investigate and provide

guidance, counseling and treatment, . . . Plaintiff sustained substantial mental and

emotional distress and . . . [s]he currently suffers from post-trauma syndrome and

psychiatric overlay.” At most, these allegations link the College’s inaction with

emotional trauma K.T. claims she experienced following the assault. The complaint

does not, however, allege thatCulver-Stockton’s purported indifference “subject[ed]

[K.T.] to harassment.” See Davis, 526 U.S. at 644. Thus, while K.T. was dissatisfied

with Culver-Stockton’s response, based on the allegations in the complaint the

response cannot be characterized as deliberate indifference that caused the assault. 

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See, e.g., Shrum, 249 F.3d at 782. We therefore agree with the district court that K.T.

failed to adequately plead deliberate indifference. 

ii. Actual Knowledge

We also agree with the district court that K.T. did not plausibly plead that

Culver-Stockton had actual knowledge of discrimination. Citing Williams v. Board

of Regents of the University System of Georgia, 441 F.3d 1287, 1298 (11th Cir.

2006), vacated, 477 F.3d 1282 (11th Cir. 2007), K.T. argues that a plaintiff satisfies

the actual knowledge element simply by notifying the school that she was subjected

to a sexual assault. Because K.T.’s complaint stated that her assault allegations were

reported toCulver-Stockton one to two days after the fraternity party, K.T. argues that

she sufficiently pled actual knowledge. 

Contrary to K.T.’s contention, the actual knowledge element requires schools

to have more than after-the-fact notice of a single instance in which the plaintiff

experienced sexual assault. See, e.g., Plamp v. Mitchell Sch. Dist. No. 17-2, 565 F.3d

450, 454, 457 (8th Cir. 2009) (no actual knowledge of discrimination where a high

schoolstudent’s parents “immediately reported” a teacher’s sexual harassment of the

student). Rather, a plaintiff must allege that the funding recipient had prior notice of

a substantial risk of peer harassment “in the recipient’s programs,” see Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998), based on evidence such as

previous similar incidents of assault. In Ostrander, for instance, this court intimated

that actual knowledge may be established where the recipient has prior knowledge of

(1) harassment previously committed by the same perpetrator and/or (2) previous

reports of sexual harassment occurring on the same premises. 341 F.3d at 751. 

Similarly, in Thomas v. Board of Trustees of the Nebraska State Colleges, this court

stated that a plaintiff must show that the school “had actual knowledge that [the

assailant] posed a substantial risk ofsufficiently severe harmto students based on [the

assailant’s] previous known conduct.” 667 F. App’x 560, 562 (8th Cir. 2016) (per

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curiam) (emphasis added). Even in Williams—which K.T. misreads as favoring her

case—the Eleventh Circuit on sua sponte rehearing found that school officials had

actual knowledge of discrimination in part because they recruited the studentassailant despite having “preexisting knowledge” of the student’s previous sexual

misconduct. 477 F.3d at 1293-94.

K.T.’s complaint lacks any assertion that Culver-Stockton knew—prior to the

alleged assault on K.T.—that individuals in the College’s soccer recruiting program

faced a risk of sexual harassment. As the district court acknowledged, K.T. “makes

no factual allegations that the College was aware ofinvited high-school aged recruits,

visitors or College students being assaulted in similar circumstances, or that the

College was aware of any prior allegations of sexual assault by [the same alleged

perpetrator].” We therefore agree with the district court that K.T. failed to plausibly

allege that Culver-Stockton had actual knowledge of discrimination within the

meaning of a Title IX peer harassment claim. 

iii. Severe, Pervasive, and Objectively Offensive Discrimination 

By the language of Title IX itself, liability lies only where the plaintiff is

“subjected to discrimination under any education program or activity receiving

Federal financial assistance.” 20 U.S.C. § 1681(a) (emphasis added). The Supreme

Court in Davis interpreted this provision to “suggest[] that the behavior be serious

enough to have the systemic effect of denying the victim equal access to an

educational program or activity.” 526 U.S. at 652. “[I]n theory,” the Court

explained, “a single instance ofsufficiently severe one-on-one peer harassment could

be said to have such an effect, [but] we think it unlikely that Congress would have

thought such behavior sufficient to rise to this level in light of the . . . amount of

litigation that would be invited by entertaining claims of official indifference to a

single instance of one-on-one peer harassment.” Id. at 652-53; see also Williams, 477

F.3d at 1297 (“[D]iscrimination must be more widespread than a single instance of

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one-on-one peer harassment.” (internal quotation marks omitted)). Rather, the

discrimination must be “severe, pervasive, and objectively offensive.” Davis, 526

U.S. at 651. 

K.T.’s complaint islimited to an allegation of a single sexual assault. Although

we are sympathetic to K.T.’s circumstances and agree that she has alleged

opprobrious misconduct on the part of the fraternity member, K.T.’s singular

grievance on its own does not plausibly allege pervasive discrimination as required

to state a peer harassment claim. See id. Accordingly, K.T.’s complaint lacks factual

content allowing us to conclude that either the alleged misconduct or CulverStockton’s response to K.T.’s allegations had the required “systemic effect” such that

K.T. was denied equal access to educational opportunities provided by CulverStockton. See id. at 652. The complaint therefore failed to state a claim of peer

harassment under Title IX. 

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III.

For these reasons, we affirm the order of the district court granting CulverStockton’s motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6). 

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Because K.T. failed to adequately plead the elements of deliberate

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indifference, actual knowledge, and pervasive discrimination depriving her equal

access to an educational program, we need not determine whether she sufficiently

alleged the element of Culver-Stockton’s “substantial control over both the harasser

and the context in which the known harassment occurs.” See Ostrander, 341 F.3d at

750. 

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