ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MELISSA JENNINGS, 

Plaintiff-Appellant,

and

DEBBIE KELLER,

Plaintiff,

v.

UNIVERSITY OF NORTH CAROLINA, at

Chapel Hill; ANSON DORRANCE,

individually and as women’s soccer

coach at UNC; WILLIAM PALLADINO,

individually and as assistant women’s

soccer coach at UNC; CHRIS DUCAR,

individually and as assistant women’s  No. 04-2447 soccer coach at UNC; BILL PRENTICE,

individually and as athletic trainer at

UNC; MICHAEL K. HOOKER,

individually and as Chancellor at

UNC; SUSAN EHRINGHAUS, individually

and as assistant to the Chancellor at

UNC; RICHARD A. BADDOUR,

individually and as Director of

Athletics for UNC; BETH MILLER,

individually and as Senior Associate

Director of Athletics at UNC; JOHN

SWOFFORD, individually and as former

Director of Athletics for UNC; ALL

DEFENDANTS,

Defendants-Appellees. 
Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley, Jr., Chief District Judge.

(CA-99-400-1)

Argued: October 25, 2006

Decided: April 9, 2007

Before WILKINS, Chief Judge, and NIEMEYER, WILLIAMS,

MICHAEL, MOTZ, TRAXLER, KING, GREGORY, SHEDD, and

DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion.

Judge Michael wrote the opinion, in which Chief Judge Wilkins,

Judge Motz, Judge Traxler, Judge King, Judge Gregory, Judge Shedd,

and Judge Duncan joined. Judge Gregory wrote a separate concurring

opinion, in which Judge Motz joined. Judge Niemeyer wrote a dissenting opinion, in which Judge Williams joined.

Judge Widener and Judge Wilkinson, being disqualified, did not participate in this case. 

COUNSEL

ARGUED: Daniel Francis Konicek, KONICEK & DILLON, P.C.,

Geneva, Illinois, for Appellant. Thomas J. Ziko, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for

Appellees. ON BRIEF: Jeffrey T. Mitchell, KONICEK & DILLON,

P.C., Geneva, Illinois, for Appellant. Joyce S. Rutledge, Assistant

Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees; Douglas E. Kingsbery,

THARRINGTON SMITH, L.L.P., Raleigh, North Carolina, for

Appellee Anson Dorrance, individually and as women’s soccer coach

at UNC.

2 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
OPINION

MICHAEL, Circuit Judge: 

Melissa Jennings, a former student and soccer player at the University of North Carolina at Chapel Hill (UNC or the University), claims

that her coach, Anson Dorrance, persistently and openly pried into

and discussed the sex lives of his players and made sexually charged

comments, thereby creating a hostile environment in the women’s

soccer program. Jennings sued UNC, Dorrance, Susan Ehringhaus

(Assistant to the Chancellor and legal counsel to UNC), and several

other individuals associated with the University, alleging violations of

Title IX of the Educational Amendments of 1972 (20 U.S.C. § 1681

et seq.), 42 U.S.C. § 1983, and the common law. The district court

awarded summary judgment to the defendants. After considering Jennings’s appeal en banc, we vacate the summary judgment on her Title

IX claim, her § 1983 claim against Dorrance for sexual harassment,

and her § 1983 claim against Ehringhaus for sexual harassment based

on supervisory liability. The summary judgment on the remaining

claims and minor procedural rulings are affirmed. 

I.

Because Jennings was the non-movant in the summary judgment

proceedings, we recite the facts, with reasonable inferences drawn, in

her favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). UNC has the country’s most successful women’s soccer program at the college level. The UNC team, with Dorrance as head

coach, has won the most national championships in the history of the

sport. In light of this record, young women soccer players with exceptional talent covet the opportunity to play on Dorrance’s team. Dorrance personally recruited Jennings while she was in high school, and

she joined the UNC team at the start of her freshman year in August

1996. Jennings was one of four goalkeepers until Dorrance cut her

from the team in May 1998, at the end of her sophomore year. Jennings was seventeen when she started playing for Dorrance, and he

was forty-five. 

Once Jennings became a member of the UNC team, she was distressed to learn that Dorrance engaged in sexually charged talk in

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 3
team settings. Dorrance bombarded players with crude questions and

comments about their sexual activities and made comments about

players’ bodies that portrayed them as sexual objects. In addition,

Dorrance expressed (once within earshot of Jennings) his sexual fantasies about certain players, and he made, in plain view, inappropriate

advances to another. This behavior on Dorrance’s part occurred on a

regular basis, particularly during team warm-up time at the beginning

of practice. The sex-focused talk that Dorrance initiated or encouraged occurred at other times as well, or, as one player put it, "anytime

the team was together," whether "on a plane, in a car, or on a bus, in

a hotel, at practice, out of town, at events." J.A. 1066. Dorrance subjected Jennings or her teammates to sexually charged inquiries and

comments in the following particulars. 

In front of the entire team, Dorrance asked one player nearly every

day "who [her] fuck of the minute is, fuck of the hour is, fuck of the

week [is]," whether there was a "guy [she] ha[dn’t] fucked yet," or

whether she "got the guys’ names as they came to the door or . . . just

took a number." J.A. 1237-38, 1261-62. He asked a second player if

she was "going to have sex with the entire lacrosse team," and advised

a third, "[Y]ou just have to keep your knees together . . . you can’t

make it so easy for them." J.A. 1127. Dorrance frequently focused on

a fourth player’s sex life with questions such as whether she was

going to have a "shag fest" when her boyfriend visited and whether

she was "going to fuck him and leave him." J.A. 1238, 1248. The

coach "direct[ed] inquir[ies]" to a fifth player about the size of her

boyfriend’s genitalia. J.A. 1452. 

During practice Dorrance regularly commented on certain players’

bodies, referring to their "nice legs," "nice rack[s]," breasts "bouncing," "asses in spandex," and "top heav[iness]." J.A. 393, 1073, 1229,

1236. Dorrance also called a player "Chuck" (her name was Charlotte) because he believed that she was a lesbian. J.A. 1228. He

inquired pointedly in her presence about her sexual orientation, asking

"[D]oes she not like the guys?" J.A. 1283. 

Dorrance disclosed his sexual fantasies about several players. He

told one player, Debbie Keller, that he would "die to be a fly on the

wall" the first time her roommate, another team member, had sex.

J.A. 1068. Dorrance admitted to Keller the reason for his fascination

4 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
about how her roommate might react during sex: he believed the

young woman "was a very sexual person by nature," yet she was a

virgin who was "fighting her inner self" because she was "so religious" (a born-again Christian). J.A. 1070. Another incident in this

category occurred during a water break at practice, when Jennings

overheard Dorrance tell a trainer that he fantasized about having "an

Asian threesome" (group sex) with his Asian players. J.A. 1284-85.

Dorrance did not limit himself to inappropriate speech. He showed

overt affection — affection of the sort that was not welcomed — for

one player, Keller, in front of the entire team. He paid inordinate

attention to Keller, frequently brushing her forehead, hugging her,

rubbing her back, whispering in her ear, dangling a hand in front of

her chest, or touching her stomach. Dorrance took other undue liberties with respect to Keller. For example, during one weight-lifting session when the players were lightly clad, Dorrance called Keller over

to him and walked her outside "towards the stadium, putting his arms

around her." J.A. 1432. Also, one evening Dorrance telephoned for

Keller at home, and one of her roommates (not a soccer player) told

him that Keller was out with her boyfriend. Dorrance retorted, "What

is she doing, out having sex all over Franklin Street?" J.A. 1073. Dorrance told Keller that he "couldn’t hide his affection for [her]" and

said that "in a lifetime you should be as intimate with as many people

as you can." J.A. 1011. 

Jennings listened as Dorrance focused on the sex life of one player

after another.1 Jennings sought desperately to avoid Dorrance’s ques1

Jennings herself heard most of the comments recounted above that

Dorrance made in front of the team. See J.A. 1229, 1236-38, 1248, 1261-

62, 1283. The statements that Dorrance asked a particular player whether

she was "going to have sex with the entire lacrosse team," J.A. 1127, and

that he advised another player "to keep [her] knees together," id., come

from Debbie Keller’s deposition, as the dissent notes, see post at 30 n.1.

Nevertheless, Jennings’s account of what was occurring is virtually the

same. See e.g., J.A. 1238 (Jennings testifying that Dorrance asked a

player, "How many guys in the [lacrosse] team did [you] fuck?"). Amy

Steelman, who played with Jennings, reported hearing, in a team setting,

Dorrance’s question to a player about the size of her boyfriend’s genitalia. Jennings did not testify about that incident, but it is nevertheless

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 5
tions and ridicule about her personal life. She therefore tried to "stay

out of [his] radar" by not participating in the discussions. J.A. 1242.

She was targeted nevertheless. During a fall tournament in California

at the end of Jennings’s freshman season, Dorrance held one-on-one

meetings with players in his hotel room to assess their performance

for the season. Dorrance told Jennings that she was in danger of losing her eligibility to play soccer if her grades did not improve. In the

midst of this discussion, Dorrance asked Jennings, "Who are you

fucking?" J.A. 1330. She replied that it was "[n]one of his God damn

business" what she did off field. J.A. 1325. As Jennings described the

scene, "I was 17 when he asked me that in a dark hotel room, kneeto-knee, bed not made, sitting at one of those tiny tables." J.A. 1230.

She felt acutely uncomfortable. 

Jennings again found herself the target of Dorrance’s sexual inquiries in a warm-up session during her sophomore year. Some of the

players and Dorrance were discussing one player’s weekend, called

a "shag fest" by Dorrance, which ended with a young man crawling

out of her window. Attention turned to Jennings, who had spent the

same weekend with her boyfriend at another school. One player

asked, using Jennings’s nickname, "[W]ell, what about Trim’n?", J.A.

1246, and Dorrance immediately "chimed in," saying "[Y]es, what

about Trim’n?" J.A. 1252. The coach wanted to know whether Jennings had "the same good weekend" as the player whose weekend he

had just described as a shag fest. J.A. 1248. Dorrance thus encouraged

the interrogation about personal sexual activity to "slide over" to Jennings for several minutes. J.A. 1249, 1254-55. She felt humiliated and

refused to respond. 

indicative of Dorrance’s pattern of asking abusive questions to a number

of different players. With respect to Keller, Jennings heard her say that

"she was uncomfortable and didn’t like the touching, the affection — the

over-affection she was receiving" from Dorrance. J.A. 1291. Jennings

witnessed some of Dorrance’s displays of affection toward Keller,

observing him "putting his arms around her." J.A. 1432-33. Finally,

although Dorrance made the "fly on the wall" comment to Keller before

Jennings joined the team, Jennings learned about it because players were

still discussing it after she arrived. J.A. 1237. 

6 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
Jennings felt "uncomfortable, filthy and humiliated" by Dorrance’s

persistent focus on sex and the sexual activities of his players. J.A.

1242. Dorrance’s questions and comments moved from girl to girl to

girl, putting Jennings in constant fear that she would be his target at

some point, as she was. Jennings could not escape the anxiety that she

felt and witnessed in others. She saw two players who were specifically targeted by Dorrance react with tears and facial expressions that

portrayed feelings of disgust or unhappiness. The player Dorrance

called "Chuck" was offended by his open focus on her sexual orientation. J.A. 1282-83. Amy Steelman, a player who was not specifically

targeted, was "very uncomfortable with [the] sexually charged environment" that Dorrance had "created and encouraged." J.A. 1452. The

environment "was so damaging that it affected [Steelman’s] emotional well-being, and [she] would frequently come home crying"

from practice. Id. Keller’s intense discomfort at Dorrance’s constant

touching and affection was plainly evident from her body language

and facial expression. Keller confirmed that Dorrance’s touching and

caressing "made [her] skin crawl" and made her "fe[el] dirty." J.A.

1145. 

During the fall of her freshman year Jennings notified UNC about

the hostile sexual environment that Dorrance had created within the

women’s soccer program. She lodged a complaint in a meeting with

Susan Ehringhaus, legal counsel to the University and Assistant to the

Chancellor. Jennings "gave [Ehringhaus] a [complete] run-down"

about Dorrance’s persistence in talking about players’ sex lives when

the team was assembled for practice or other activities. J.A. 1343. She

reported her feelings of humiliation and discomfort. Ehringhaus dismissed these concerns and suggested that Jennings simply "work it

out" with Dorrance. J.A. 1341. Jennings’s complaint thus remained

unaddressed by the UNC administration. 

Jennings stayed on the team until she was cut by Dorrance during

exams at the end of her sophomore year. He cited inadequate fitness

as the reason. Over the next several days, Jennings’s parents submitted several complaints to the Chancellor’s office about Dorrance’s

regular involvement in discussions about the sexual activities of his

players. Thereafter, the Director of Athletics, Richard Baddour, conducted an administrative review pursuant to UNC’s sexual harassment

policy. Dorrance admitted that he participated in group discussions

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 7
with players about their sex lives, but claimed that his comments were

only "of a jesting or teasing nature." J.A. 1531. The review ended

with Athletic Director Baddour sending a letter of apology to Jennings’s father and a brief, mild letter of reprimand to Dorrance. Baddour wrote to Mr. Jennings on June 9, 1998, apologizing for

Dorrance’s "inappropriate . . . involvement in [sexual] discussions"

with his team members. J.A. 1531. Dorrance indicated his own apology by counter-signing the letter. One day later, Baddour wrote to

Dorrance declaring it "inappropriate for [Dorrance] to have conversations with members of [the] team (individually or in any size group)

regarding their sexual activity." J.A. 1533. 

In August 1998, at the start of Jennings’s junior year, she and Keller brought this action against UNC and several individuals associated

with the University, including Dorrance and Ehringhaus, asserting

(among others) claims under Title IX and § 1983. After the lawsuit

was filed, Jennings was threatened and harassed to the extent that

UNC officials warned her that they could not guarantee her safety on

campus. At UNC’s urging, she spent her senior year at another school

and was then awarded a UNC degree. Keller settled her claims and

took a dismissal with prejudice. Jennings’s case proceeded to the

entry of summary judgment in favor of the defendants. She appealed

and a divided panel of this court affirmed the judgment. Jennings v.

Univ. of N.C., at Chapel Hill, 444 F.3d 255 (4th Cir. 2006). We

vacated the panel decision and reheard the case en banc. Our review

of the district court’s grant of summary judgment is de novo. Hill v.

Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir.

2004) (en banc). 

II.

Jennings claims that UNC discriminated against her in violation of

Title IX by allowing Dorrance, the women’s soccer coach, to subject

her to severe and pervasive sexual harassment in the women’s soccer

program. Title IX provides that "[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).

Discrimination under Title IX includes coach-on-student sexual

harassment that creates a hostile environment in a school sports pro8 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
gram. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75

(1992) (stating that teacher’s sexual harassment of student is covered

by Title IX). A private right of action against the institution is implied

under Title IX, Cannon v. Univ. of Chicago, 441 U.S. 677, 709

(1979), and money damages are available as a remedy, Franklin, 503

U.S. at 76. 

To establish a Title IX claim on the basis of sexual harassment, a

plaintiff must show that (1) she was a student at an educational institution receiving federal funds, (2) she was subjected to harassment

based on her sex, (3) the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational

program or activity, and (4) there is a basis for imputing liability to

the institution. See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66

(1st Cir. 2002). We look to case law interpreting Title VII of the Civil

Rights Act of 1964 for guidance in evaluating a claim brought under

Title IX. See, e.g., Davis v. Monroe County Bd. of Educ., 526 U.S.

629, 651 (1999); Franklin, 503 U.S. at 75. 

A.

Jennings can establish the first element of her Title IX claim without dispute: she was a student at UNC, an institution receiving federal

funds. On the second element of her claim, Jennings must proffer

facts showing that Dorrance subjected her to harassment (verbal in

this case) based on her sex. See 20 U.S.C. § 1681(a). Sexual harassment occurs when the victim is subjected to sex-specific language that

is aimed to humiliate, ridicule, or intimidate. See Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986); Ocheltree v. Scollon

Prods., Inc., 335 F.3d 325, 331-32 (4th Cir. 2003). A coach’s sexually

charged comments in a team setting, even if not directed specifically

to the plaintiff, are relevant to determining whether the plaintiff was

subjected to sex-based harassment. See Spriggs v. Diamond Auto

Glass, 242 F.3d 179, 184 (4th Cir. 2001) (considering, in Title VII

case, hostile comments concerning African Americans in general as

well as similar comments directed specifically toward plaintiff). 

UNC argues that Dorrance’s sex-focused comments were "of a joking and teasing nature" that did not amount to sexual harassment.

Appellees’ Br. at 22; see Faragher v. City of Boca Raton, 524 U.S.

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 9
775, 788 (1998) (noting that "simple teasing [and] offhand comments" do not amount to sexual harassment) (internal quotation marks

and citation omitted). The facts, when viewed in the light most favorable to Jennings, show that Dorrance’s persistent, sex-oriented discussions, both in team settings and in private, were degrading and

humiliating to his players because they were women. His conduct

went far beyond simple teasing and qualified as sexual harassment.

See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82

(1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993);

Ocheltree, 335 F.3d at 332. 

Dorrance, in front of the entire team, frequently singled out individual players to find out whether, with whom, and how often they

were having sex. He put the questions crudely and bluntly, asking, for

example, "[Who is your] fuck of the week[?]", J.A. 1237, "[Are you]

going to fuck [your boyfriend] and leave him[?]", J.A. 1248, and

"How many guys in the [lacrosse] team did [you] fuck?", J.A. 1238.

As Jennings expected, Dorrance ultimately asked her (albeit in private) a similar question, "Who are you fucking?" J.A. 1330. Dorrance

even asked one player about the size of her boyfriend’s genitalia and

suggested to another that she "just had to keep [her] knees together."

J.A. 1127. Dorrance fixated on one player’s large breasts, pronouncing that they made her top-heavy and gave her poor balance. These

sorts of questions and comments, which frequently carried the strong

suggestion of promiscuity, provoked in several players acute feelings

of humiliation and degradation that were directly linked to their gender. The nature of Dorrance’s language, in other words, establishes

that he was targeting the young women because of their sex. See

Ocheltree, 335 F.3d at 332. Finally, Dorrance’s reckless comments

about his sexual fantasies — to a trainer that he would like to have

group sex with his Asian players and to Debbie Keller that he would

like to be a fly on the wall the first time one player had sex — assist

in demonstrating that his pronounced interest in discussing his players’ sex lives transcended simple teasing or joking. In short, Jennings

proffers sufficient facts for a jury to find that Dorrance subjected her

to sexual harassment. 

B.

We next consider whether Jennings proffers facts to permit a finding that Dorrance’s sex-based harassment was sufficiently severe or

10 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
pervasive to create a hostile or abusive environment in the women’s

soccer program. Harassment reaches the sufficiently severe or pervasive level when it creates "an environment that a reasonable person

would find hostile or abusive" and that the victim herself "subjectively perceive[s] . . . to be abusive." Harris, 510 U.S. at 21. Whether

gender-oriented harassment amounts to actionable (severe or pervasive) discrimination "depends on a constellation of surrounding circumstances, expectations, and relationships." Davis, 526 U.S. at 651

(quoting Oncale, 523 U.S. at 82). All the circumstances are examined,

including the positions and ages of the harasser and victim, whether

the harassment was frequent, severe, humiliating, or physically threatening, and whether it effectively deprived the victim of educational

opportunities or benefits. See Davis, 526 U.S. at 650-51; Harris, 510

U.S. at 23. Evidence of a general atmosphere of hostility toward those

of the plaintiff’s gender is considered in the examination of all the circumstances. See Harris, 510 U.S. at 19 (considering harassment

directed at both plaintiff and her female co-workers); see also

Spriggs, 242 F.3d at 184 (stating that, "We are, after all, concerned

with the ‘environment’ of . . . hostility, and whatever the contours of

one’s environment, they surely may exceed the individual dynamic

between the complainant and [her harasser]."). These standards for

judging hostility ensure that Title IX does not become a "general

civility code." See Oncale, 523 U.S. at 80. "[S]imple teasing, offhand

comments, and isolated incidents (unless extremely serious) will not

amount to discriminat[ion]." Faragher, 524 U.S. at 788 (internal quotation marks omitted). "Common sense, and an appropriate sensitivity

to social context, will enable courts and juries" to identify objectively

hostile or abusive conduct. Oncale, 523 U.S. at 81-82. Here, a jury

could reasonably find that Dorrance’s persistent sexual harassment

was sufficiently degrading to young women to create a hostile or abusive environment. 

Dorrance was not just any college coach. He was and still is the

most successful women’s soccer coach in U.S. college history, and he

has coached the national team. Dorrance thus had tremendous power

and influence over a player’s opportunity for achievement in the soccer world, both at UNC and beyond. As Jennings put it, "[g]irls would

cut off their right arm to be [at UNC]" and play for Dorrance. J.A.

1227. Dorrance encouraged his players to confide in him about all

aspects of their personal lives, including the details of their sexual

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 11
activities. He professed to them that he wanted to be a father figure.

In reality, Dorrance abused his power as coach to ask his players

questions a father would not ask; he pried into and talked openly

about his players’ sex lives in a way that was disrespectful and

degrading. The disparity in power between Dorrance and his players

trapped players into responding to his questions and enduring the

environment. See Crandall v. N.Y. College of Osteopathic Med., 87

F. Supp. 2d 304, 319 (S.D.N.Y. 2000) (denying summary judgment

in part because "unequal power relationship" between harasser and

victim could support a jury finding of a sexually hostile environment).

As the coach, Dorrance controlled everything: team membership,

position, playing time, and scholarship eligibility. Even Debbie Keller, the team captain and a star player, was acutely mindful of Dorrance’s enormous power and influence, and she took care not to

provoke him. Keller was troubled by Dorrance’s persistent focus on

sex. "[A]ll [of his] comments about his affection" for her, together

with the inappropriate touching, "made [her] skin crawl" and made

her "fe[el] dirty." J.A. 1145. Dorrance’s conduct put constant pressure

on Keller because she "didn’t want to tick him off to a point . . .

where he would take it out on [her] by not playing [her]." J.A. 1120.

Jennings similarly described the pressure on players to submit to Dorrance’s excessive intrusion into their sex lives: "[H]ow do you say

anything [to stop him?] . . . You are stuck between a rock and a hard

place." J.A. 1290. 

Any age disparity between the harasser and his victim is also relevant to gauging whether there was a hostile or abusive sexual environment. Davis, 521 U.S. at 651. Here, Dorrance was a forty-fiveyear-old man probing into and commenting about the sexual activities

of young women, some of whom, like Jennings, were as young as

seventeen. Indeed, Jennings felt the extra pressure of age difference

when Dorrance called her to his California hotel room to assess her

performance as a freshman player. Jennings describes the scene: "I

was 17 when he asked me [‘Who are you fucking?’] in a dark hotel

room, knee-to-knee, bed not made, sitting at one of those tiny tables."

J.A. 1230. 

Jennings had good reason to fear that she too would be targeted by

Dorrance, for he had subjected her to a general environment of sexual

harassment. She had witnessed his degrading and persistent focus on

12 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
the sex lives of other players. She observed Dorrance’s sex-based

humiliation of several of her teammates, and she heard his demeaning

comments. Dorrance openly accused at least three players of being

promiscuous, asking them degrading questions such as, "Is there a

guy you haven’t fucked yet?". J.A. 1261-62. Dorrance turned news

about visits by boyfriends into speculation about rampant sex. Thus,

he asked one player whether she was going to have a "shag fest" when

her boyfriend visited, and whether she was "going to fuck him and

leave him." J.A. 1248. 

No aspect of his players’ sex lives appeared off limits for Dorrance.

He asked one player about the size of her boyfriend’s genitalia. He

mocked a lesbian player by calling her "Chuck" and asking in front

of the team why "she [did] not like the guys." J.A. 1283. He expressed

his fantasies to a trainer about wanting to have group sex with his

Asian players (this Jennings overheard) and to Keller about his voyeuristic interest in watching the first time one player, whom Dorrance

believed was a virgin with repressed sexual desire, had intercourse.

These two private incidents together with overt displays of affection

toward Keller and his graphic comments about the "nice rack[s]" or

"nice legs" of certain players, J.A. 1229, 1236, indicate that Dorrance

viewed at least some of his players as sexual objects. 

Dorrance’s sex-based verbal abuse permeated team settings. It is

described by players as occurring frequently, often during team

warm-up time, on a typical Monday afternoon (the first practice date

after the weekend), or any time the team was together, whether at

home or traveling. According to Jennings, two players in particular

were targeted with humiliating comments or questions about their sex

lives almost every day or every other day. 

Dorrance’s persistent talk about his players’ sex lives caused Jennings to live in constant fear that he would at some point direct his

"filthy comments" at her, as he shifted his focus from player to player.

J.A. 1243. Jennings tried to stay off of Dorrance’s "radar" when he

was on the topic of sex, J.A. 1242, but she was nevertheless targeted

in the team setting. Thus, in a team warm-up session during Jennings’s sophomore year, Dorrance asked whether Jennings had had

"the same good weekend" with her boyfriend as a player whose weekend he had just described as a "shag fest." J.A. 1248. Jennings was

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 13
humiliated by this question and did not respond. A jury could reasonably find that Dorrance’s two incidents (the hotel room encounter

being the first) of direct harassment of Jennings were more abusive

in light of the general, sexually charged environment. In other words,

the incidents were not isolated events, but were part of an abusive pattern that instilled fear and dread. 

The sexually charged atmosphere perpetuated by Dorrance left

other players besides Jennings with feelings of humiliation and discomfort. Keller was repulsed by Dorrance’s inappropriate touching,

and she regarded it as "kind of sick" when he told her he "want[ed]

to watch [her] friend have sex." J.A. 1069. Amy Steelman "was

shocked by the pervasive and frequent [sexual] discussions" that Dorrance "frequently provoked" and "always encouraged;" she felt "very

uncomfortable with his sexually charged environment," and she

"would frequently [go] home crying" as a result. J.A. 1452. Both Jennings and Steelman observed that Dorrance’s comments visibly upset

other players as well. One, who was constantly portrayed by Dorrance

as sexually promiscuous, was reduced to tears as a result of his accusations. Still another got an upset or disgusted look on her face after

Dorrance focused on her breasts (her "rack," as he put it) and called

her top heavy. J.A. 1270-71. A lesbian player, whose sexual orientation was highlighted by Dorrance, was noticeably bothered by this

attention. Evidence that other players shared Jennings’s humiliation

and discomfort assists in showing that she was objectively reasonable

in finding the environment hostile and abusive. Cf. Hayut v. State

Univ. of N.Y., 352 F.3d 733, 747 (2d Cir. 2003) (characterizing reactions of plaintiff’s peers to conduct directed at plaintiff as "significant

to the mandated objective analysis" of whether conduct was sufficiently severe to be actionable under Title IX). 

In sum, Jennings has proffered sufficient facts for a jury to find that

Dorrance’s degrading and humiliating conduct was sufficiently severe

or pervasive to create a sexually hostile environment. This conclusion

takes into account the informal, sometimes jocular, college sports

team atmosphere that fosters familiarity and close relationships

between coaches and players. A male coach might use sexual slang

in front of his women players, and the players might do the same in

front of the coach. Title IX is not a civility code for the male coach

who coaches women, and it is not meant to punish such a coach for

14 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
off-color language that is not aimed to degrade or intimidate. What

happened in this case, if Jennings’s version of the facts is believed,

is that Dorrance took advantage of the informal team setting to cross

the line and engage in real sexual harassment that created a hostile or

abusive environment. 

A Title IX plaintiff completes her hostile environment showing at

the summary judgment stage if, based on her proffered evidence, the

sexual harassment "can be said to deprive [her] of access to . . . educational opportunities or benefits." Davis, 526 U.S. at 650 (emphasis

added). Davis explains that a sexual harassment victim "can be said"

to have been deprived of access to educational opportunities or benefits in several circumstances, including when the harassment (1)

results in the physical exclusion of the victim from an educational

program or activity; (2) "so undermines and detracts from the victim[’s] educational experience" as to "effectively den[y her] equal

access to an institution’s resources and opportunities"; or (3) has "a

concrete, negative effect on [the victim’s] ability" to participate in an

educational program or activity. Id. at 650-51, 654.2 These alternative

ways of showing deprivation or harm are rooted in the statute. Specifically, Title IX states that a covered institution cannot, on the basis

of sex, (1) "exclude[ ] [a person] from participation in," (2) "den[y]

[a person] the benefits of," or (3) subject[ ] [a person] to discrimination under any education program or activity." 20 U.S.C. § 1681(a).

Davis hews to the statute in pointing out that sexual harassment

reaches the level of actionable discrimination when it has "a concrete,

negative effect on [the victim’s] ability" to participate in a program

or activity. See Davis, 526 U.S. at 654. Thus, in relying on Davis’s

2Davis’s deprivation standard was formulated in the context of studenton-student harassment. The Supreme Court thus recognized "the practical realities [faced by a school in] responding to student behavior," noting that "children may regularly interact in a manner that would be

unacceptable among adults." Davis, 526 U.S. at 651, 653. The Court

expressly acknowledged that "[t]he relationship between the harasser and

the victim necessarily affects the extent to which the misconduct can be

said to breach Title IX’s guarantee . . . and to have a systemic effect on

a program or activity." Id. at 653. Student-on-student "harassment, in

particular, is less likely to satisfy these requirements than is teacherstudent harassment" or coach-student harassment. Id.

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 15
"concrete, negative effect" language in the discussion that follows, we

have neither gutted that case’s deprivation standard nor contravened

the text of the statute, as the dissent suggests. See post at 45. In all

events, the burden of showing a concrete, negative effect is sufficiently rigorous. It is, in simple terms, an effect that is concrete (or

real), negative, and substantial. 

Jennings has met the burden here with evidence showing that Dorrance’s severe and pervasive sexual harassment concretely and negatively affected her ability to participate in the soccer program. She

testified that the hostile atmosphere created by Dorrance made her

feel humiliated, anxious, and uncomfortable; these effects, in turn,

had a negative impact on her participation and performance in soccer

and on her academic performance. Jennings’s testimony is supported

by a psychiatrist’s opinion that Dorrance’s destructive practice of verbal sexual abuse caused her to suffer severe emotional distress. 

The dissent suggests that the slight improvements in Jennings’s

grades, her belief that she was improving as a player, and her surprise

and disappointment at being cut do not depict a player who has been

effectively "denied the educational opportunity of playing on the

team." Post at 52. This evidence does not prevent Jennings from

establishing that she has a triable issue on the last part of the hostile

environment element of her Title IX claim. If anything, it shows how

hard Jennings was trying, and what she believed she was achieving,

in spite of the hostile environment. When Dorrance cut Jennings from

the team in the middle of exams in May 1998, her cumulative GPA

was 1.964, below passing. When she finished exams, and the grades

were recorded, her GPA was 2.022, barely above passing. This subpar academic performance gives substance to Jennings’s testimony

that her GPA was so low because the hostile soccer environment

made it difficult for her to focus on her studies. 

Likewise, Jennings’s acknowledgment that she was disappointed at

being cut does not, at the summary judgment stage, defeat her evidence that she was harmed by the hostile environment, both emotionally and in her performance as a player. Jennings was understandably

disappointed because she had lost the opportunity to play on the country’s premier women’s college soccer team. Her disappointment,

however, does not detract from the fact that she had to endure sexual

16 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
harassment in order to play. A jury could reasonably find that the

harassment interfered substantially with Jennings’s ability to participate in the soccer program, notwithstanding her desire to stay on the

team. At practice, for example, Jennings was in constant fear that

Dorrance would direct his questions about sexual activities to her.

This prompted her to concentrate on "stay[ing] out of [Dorrance’s]

radar" when he was on the subject of sex. J.A. 1242. This surely had

a negative effect on her ability to concentrate on soccer. Moreover,

the general, sex-charged environment that Dorrance perpetuated

caused Jennings to feel humiliated, anxious, and uncomfortable. A

jury could reasonably agree with her that the burden of these feelings

had a "negative[ ] impact[ ]" on her "performance on the soccer field."

J.A. 1585. In sum, a jury could find that the total impact of Dorrance’s severe and pervasive harassment, including the severe emotional distress it caused Jennings to suffer, had a concrete, negative

effect on her ability to participate in the soccer program. 

C.

Finally, Jennings must provide a basis for imputing liability to

UNC for Dorrance’s conduct. An institution can be held liable for a

Title IX violation only if "an official who . . . has authority to address

the alleged discrimination and to institute corrective measures . . . has

actual knowledge of discrimination in the [institution’s] programs and

fails adequately to respond" or displays "deliberate indifference" to

discrimination. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,

290 (1998). 

Jennings’s facts show that in the fall of 1996 Jennings met with

Susan Ehringhaus, Assistant to the Chancellor and counsel to the University. Ehringhaus was UNC’s highest ranking lawyer and an official

responsible for fielding sexual harassment complaints. Jennings

informed Ehringhaus that Dorrance had created an abusive environment in the women’s soccer program. Ehringhaus was given vivid

details of Dorrance’s sexual comments about his players when the

team was together. Jennings also reported that the situation was causing her intense feelings of discomfort and humiliation. Ehringhaus

dismissed this complaint by telling Jennings that Dorrance was a

"great guy" and that she should work out her problems directly with

him. J.A. 1341-42. Ehringhaus took no action on the complaint, and

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 17
Dorrance’s harassment continued. These facts are sufficient to establish that Jennings gave Ehringhaus, and by extension UNC, actual

notice of the hostile environment created by Dorrance. This notice

and the University’s failure to take any action to remedy the situation

would allow a rational jury to find deliberate indifference to ongoing

discrimination. 

* * *

For the foregoing reasons, Jennings has presented sufficient evidence to raise triable questions of fact on all disputed elements of her

Title IX claim against UNC, and the district court erred in granting

the University’s motion for summary judgment. 

III.

Jennings asserts § 1983 claims for sexual harassment against Dorrance, Ehringhaus, and several other individuals who were employed

by UNC. These defendants, according to Jennings, acted "under color

of" state law to deprive her of "rights, privileges or immunities

secured by the Constitution and laws" of the United States, 42 U.S.C.

§ 1983, specifically her Fourteenth Amendment equal protection right

to be free from sexual harassment in an educational setting, see

Hayut, 352 F.3d at 743-44. The district court granted summary judgment to all of the individual defendants on these claims, but we conclude that Jennings has triable claims against Dorrance and

Ehringhaus. 

To survive Dorrance’s motion for summary judgment on her

§ 1983 sexual harassment claim against him, Jennings must show that

he was a state actor, he harassed her because of sex, and the harassment was sufficiently severe or pervasive to interfere unreasonably

with her educational activities. See id. at 744 (explaining that § 1983

sexual harassment claims based on a hostile environment theory "are

governed by traditional Title VII . . . jurisprudence"). First, "‘[s]tate

employment is generally sufficient to render the defendant a state

actor,’" and a defendant necessarily "acts under color of state law

when he abuses the position given to him by the State." West v.

Atkins, 487 U.S. 42, 49-50 (1988) (quoting Lugar v. Edmondson Oil

Co., 457 U.S. 922, 936 n.18 (1982)). As we spell out in detail in part

18 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
II, supra, Jennings has proffered evidence (1) that Dorrance was a

state actor, functioning in his capacity as a coach, when he engaged

in sexual harassment and (2) that the harassment was sufficiently

severe or pervasive to interfere with her educational activities. The

district court therefore erred in granting summary judgment to Dorrance on the § 1983 claim for sexual harassment. 

The district court correctly granted summary judgment on identical

§ 1983 claims against three of Dorrance’s subordinates, assistant

coaches William Palladino and Chris Ducar, and the athletic trainer,

Bill Prentice. Jennings has not offered evidence that the three subordinates participated in sexual harassment. 

Jennings’s § 1983 claim against Ehringhaus is based on the theory

of supervisory liability. See Baynard v. Malone, 268 F.3d 228, 235

(4th Cir. 2001) ("It is well settled that ‘supervisory officials may be

held liable in certain circumstances for the constitutional injuries

inflicted by their subordinates.’" (quoting Shaw v. Stroud, 13 F.3d

791, 798 (4th Cir. 1994)). Jennings proffers evidence that Ehringhaus,

as an administrative official with authority to take action against Dorrance, failed to act and thereby allowed Dorrance’s sexual harassment

to continue unchecked. More specifically, Jennings’s evidence would

allow a jury to find that Ehringhaus had actual knowledge of Dorrance’s misconduct; that her response was "so inadequate as to show

deliberate indifference to or tacit authorization of the alleged offensive practices"; and that there exists "an affirmative causal link"

between Ehringhaus’s inaction and Jennings’s constitutional injury.

See Baynard, 268 F.3d at 235 (quoting Shaw, 13 F.3d at 799). Ehringhaus is therefore not entitled to summary judgment on Jennings’s

§ 1983 claim against her for supervisory liability. 

Summary judgment on this claim was properly awarded to the

estate of Michael Hooker (former UNC Chancellor) and to other current or past UNC officials, Richard Baddour, Beth Miller, and John

Swofford. There is no evidence that any of these officials learned of

Dorrance’s behavior until Jennings was cut from the team. Nor does

Jennings suggest that these individuals supported any official policy

that enabled the harassment. 

Dorrance and Ehringhaus have preserved the issue of qualified

immunity. In their summary judgment papers the individual defenJENNINGS v. UNIVERSITY OF NORTH CAROLINA 19
dants raised qualified immunity as a defense on the § 1983 claims, but

gave the issue secondary attention. The district court did not address

the question. On appeal the defendants assert qualified immunity as

an alternative argument, again giving the matter limited treatment.

These circumstances prompt us to decline to consider the question,

and thus allow the district court to address it in the first instance on

remand. See Brown v. United States, 851 F.2d 615, 620 (3d Cir. 1988)

(declining to exercise the power to consider qualified immunity in the

first instance on appeal). 

IV.

The remaining issues raised by Jennings may be dealt with in short

fashion. She argues that the district court erred in awarding summary

judgment to the individual defendants on her constitutional right to

privacy claim brought under § 1983 and to Dorrance on her common

law privacy claim. Here, we affirm the district court because none of

the defendants either required Jennings to disclose personal information or invaded her records to discover such information. Cf. Thorne

v. City of El Segundo, 726 F.2d 459, 468-69 (9th Cir. 1983) (finding

a constitutional violation where a public job applicant was required

to answer questions about her sexual activity as a condition of

employment); Toomer v. Garrett, 574 S.E. 2d 76, 90 (N.C. Ct. App.

2002) (stating that the privacy invasion tort includes intrusions such

as trespassing, eavesdropping, and peeping into windows). Finally,

Jennings argues that the district court erred in denying two of her

motions: (1) the motion to strike the defendants’ answer on the

ground that their denial of one allegation in the complaint was inconsistent with Dorrance’s deposition testimony, and (2) the motion to

strike, as not properly authenticated, certain exhibits (team records)

accompanying Dorrance’s affidavit. After considering the arguments

and materials relating to these motions, we conclude that the district

court did not abuse its discretion in denying them. 

V.

For the reasons stated above, we vacate the district court’s grant of

summary judgment on Jennings’s Title IX claim against UNC, her

§ 1983 claim against Dorrance for sexual harassment, and her § 1983

claim against Ehringhaus for sexual harassment based on supervisory

20 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
liability. We affirm the grant of summary judgment on Jennings’s

remaining claims against the individual defendants, and we affirm the

procedural rulings. The case is remanded for further proceedings on

the open Title IX and § 1983 claims. 

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED

GREGORY, Circuit Judge, concurring: 

This appeal presents the difficult issue of whether an admittedly

inappropriate environment created by a women’s collegiate soccer

coach was sufficiently hostile to deprive a player of the benefits of or

participation in the team or her education. Because I believe that

Melissa Jennings has presented enough evidence, when viewed in the

light most favorable to her, to create a triable issue of fact on her Title

IX claim, I vote to reverse the district court’s grant of summary judgment. I write separately from the thoughtful majority opinion to

express additional thoughts and to respond to specific arguments

raised in the well-written dissent. 

I.

I agree with the majority that Anson Dorrance’s sexually explicit,

inappropriate, and harassing comments directed to other players on

the team, but overheard by Jennings, are relevant to determining

whether Jennings was subjected to a hostile environment.* See ante

*I agree with the majority that we may consider comments: (1) made

in Jennings’s presence; (2) made outside her presence, but consistent

with her account; and (3) made before her tenure on the team, but discussed in her presence. Cf. Schwapp v. Town of Avon, 118 F.3d 106, 110-

12 (2d Cir. 1997) ("[I]ncidents . . . occurring before [plaintiff’s] tenure

may be of limited probative value, but cannot be ignored on summary

judgment."); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668,

674 (7th Cir. 1993) (stating that in reviewing hostile environment claim

courts may consider "the lexicon of obscenity that pervaded the environment of the workplace both before and after the plaintiff’s introduction

to its environs"). 

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 21
at 11. Although the majority of hostile environment cases involve

conduct directed at the plaintiff, unlike the dissent, I do not find evidence that "the Supreme Court itself has assumed throughout its Title

VII and Title IX cases that only harassment directed and targeted at

the victim was capable of creating a hostile environment." Post at 48.

Meritor Savings Bank, FSB v. Vinson held that hostile environment

claims were cognizable under Title VII because the Act "affords

employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." 477 U.S. 57, 65 (1986)

(emphasis added). Meritor cited Rogers v. EEOC, 454 F.2d 234 (5th

Cir. 1971), a case recognizing a hostile environment as potentially

violative of Title VII where the employer provided discriminatory

service to its Hispanic clientele rather than any direct action against

its Hispanic employees. Further, the Circuit Court opinion in Meritor

explicitly recognized that "[e]ven a woman who was never herself the

object of harassment might have a Title VII claim if she were forced

to work in an atmosphere in which such harassment was pervasive."

Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985), aff’d in relevant part, rev’d in part, Meritor, 477 U.S. 57. 

This view fully accords with this Circuit’s decision in Spriggs v.

Diamond Auto Glass, a hostile environment case where we noted that

"[w]e are, after all, concerned with the ‘environment’ of workplace

hostility, and whatever the contours of one’s environment, they surely

may exceed the individual dynamic between the complainant and his

supervisor." 242 F.3d 179, 184 (4th Cir. 2001) (citing Monteiro v.

Tempe Union High Sch. Dist., 158 F.3d 1022, 1033 (9th Cir. 1998)

("[R]acist attacks need not be directed at the complainant in order to

create a hostile educational environment."); Vinson, 753 F.2d at 146;

Walker v. Ford Motor Co., 684 F.3d 1355, 1359 n.2 (11th Cir. 1982)

("The fact that many of the epithets were not directed at [the plaintiff]

is not determinative. The offensive language often was used in [his]

presence after he had voiced objections to [his employer].")); accord

Jackson v. Quanex Corp., 191 F.3d 647, 660-61 (6th Cir. 1999) (noting that the court may consider employer conduct directed towards

entire minority group, even in individual Title VII action, and that

such conduct was relevant to question of whether environment was

subjectively and objectively hostile); Schwapp, 118 F.3d at 111 ("Just

as a racial epithet need not be directed at a plaintiff in order to contribute to a hostile work environment, the fact that a plaintiff learns

22 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
second-hand of a racially derogatory comment or joke by a fellow

employee or supervisor also can impact the work environment." (citation omitted)); Edwards v. Wallace Community College, 49 F.3d

1517, 1522 (11th Cir. 1995) ("A plaintiff may have a viable hostile

environment claim even if the racial remarks were not directed at

her."). 

As the majority explains, Dorrance’s comments may have singled

out individual players at any given practice, but his actions created a

"general environment of sexual harassment," ante at 12, where young

women under his control were the subject of humiliating and degrading comments, frequently on the basis of their alleged promiscuity,

see ante at 10. I believe that a rational jury could find that this environment, which included the two specific incidents directed toward

Jennings, constituted a pervasive hostile environment. Drawing inferences in Jennings’s favor, a rational jury could find that Jennings

"live[d] in constant fear" that Dorrance would turn his attention to

her. Ante at 13. Indeed, this fear became a reality during the encounter

between Jennings and Dorrance in a hotel room at the end of her

freshman year. 

II.

I agree with the dissent that Dorrance’s hotel-room inquiry to Jennings was plainly vulgar. The dissent concludes, however, that the

question was "obviously an inquiry about what was occupying Jennings’ time." Post at 50. While I agree that a coach would inquire as

to whether a player was having personal problems, on this record, taking inferences in Jennings’s favor, I do not think we can conclude as

a matter of law that the question was "not made in an attempt to

humiliate, degrade, and demean." Post at 50. 

First, as the majority notes, Dorrance’s remarks to his players "frequently carried the strong suggestion of promiscuity," ante at 10,

often employing the same vulgar construction he used with Jennings.

He asked players who their "fuck of the week" was, J.A. 1237, if a

certain player was "going to fuck [her boyfriend] and leave him," J.A.

1248, and another player, "[h]ow many guys in the [lacrosse] team

did [she] fuck," J.A. 1238. Because Jennings had heard those remarks

and practiced her sport in the abusive environment engendered by

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 23
them, a rational jury could conclude that Dorrance’s hotel-room

inquiry was an attempt to humiliate, degrade, and demean her on the

basis of sex. Furthermore, Dorrance’s question assumed that Jennings

was engaged in a sexual relationship, unlike a question that would

have simply asked whether she was having "boy" or "relationship"

problems. To Jennings, the assumption that she was engaged in sexual

relations at all offended. See J.A. 1332 ("[Dorrance] asking me if I’m

fucking anybody would be the assumption of . . . . I don’t think anybody would ask that question, unless you are assuming they already

had sexual relationships."). In all candor, it is a close issue whether

Jennings’s subjective view meets the objective standard. In this case,

however, I believe that a rational jury could find the remark objectively offensive because of the age difference between Dorrance and

Jennings, Dorrance’s position of power and trust, and, most importantly, the link between Dorrance’s knowledge of whether a player

engaged in sexual activity and his harassment implying that player’s

promiscuity. 

Finally, omitted from both the majority and dissent’s version of the

hotel-room conversation, is the fact that Dorrance, directly after asking Jennings with whom she was having sex, commented that Jennings should feel comfortable sharing things with him—even things

she could not share with her father—because he was like a father figure. J.A. 1325. Given this comment and Jennings’s knowledge that

Dorrance showed open affection for a fellow team member (Debbie

Keller), I do not believe that as a matter of law Dorrance’s question

was not "focus[ed] on sex" and not posed because of Jennings’s gender. Post at 50; see Wills v. Brown Univ., 184 F.3d 20, 39 (1st Cir.

1999) (Lipez, J., dissenting) (recounting facts of case involving college professor telling student "I want to be close to you like fatherdaughter," during study sessions that included professor fondling student). 

In sum, while the hotel-room remark can be viewed as a mere

poorly phrased inquiry from a coach to a player about whether relationship problems were interfering with her athletic performance,

such a conclusion would require us to draw inferences in favor of

Dorrance, contrary to our standard of review. Taking into account the

factors discussed above, a rational jury could conclude that Dor24 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
rance’s vulgar inquiry was sexual harassment and "part of an abusive

pattern that instilled fear and dread." Ante at 14. 

III.

As noted by the majority, a Title IX plaintiff must proffer evidence

that the hostile or abusive nature of the environment "ha[d] ‘a concrete, negative effect on [the victim’s] ability’ to participate in an educational program or activity." Ante at 15-16 (quoting Davis v. Monroe

County Bd. of Educ., 526 U.S. 629, 650-51, 654 (1999)). In this case,

the proper inquiry is whether the record contains enough evidence to

allow a rational jury to conclude that the hostile environment created

by Dorrance effectively denied Jennings the benefits of membership

on the women’s soccer team and enrollment at the University of

North Carolina at Chapel Hill ("UNC") by making it much more difficult for her to develop and achieve as a student-athlete. See Gabrielle

M. v. Park Forest-Chicago Heights, Il. Sch. Dist. 163, 315 F.3d 817,

828 (7th Cir. 2003) (Rovner, J., concurring in part and concurring in

the judgment); cf. Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)

(Ginsburg, J., concurring) ("‘[T]he plaintiff need not prove that his or

her tangible productivity has declined as a result of the harassment.’

It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so

altered working conditions as to ‘ma[k]e it more difficult to do the

job.’" (alteration in original) (citation omitted) (quoting Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988))). 

A.

While I believe that a plaintiff’s grades are relevant to the question

of the concrete and negative effect of harassment, an increase or

decrease in grades is not dispositive. See, e.g., Gabrielle M., 315 F.3d

at 828 (Rovner, J., concurring in part and concurring in the judgment)

(noting, in case concerning elementary school student, the fact "that

[the plaintiff’s] grades did not suffer is by no means dispositive");

Montgomery v. Ind. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1094

(D. Minn. 2000) ("[G]rades are not the sole benefit to be derived by

a student from an educational experience."). In this case, Jennings’s

grade point average increased from 1.538 at the end of her first

semester in the Fall of 1996 to a cumulative average of 2.022 at the

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 25
end of her sophomore year, when she was dismissed from the soccer

team. J.A. 1449. I disagree with the dissent’s conclusion that an

improvement in grades is evidence of the lack of discriminatory

impact. See post at 52. Discriminatory impact would be shown if Jennings’s grades, though improved, had risen less than they would have

had she not been subjected to a hostile environment. In this case, I

believe that Jennings has proffered sufficient evidence to allow a jury

to conclude that the hostile environment created by Dorrance affected

her academic performance to such an extent that she was deprived of

equal access to the benefits of an education at UNC. 

During her deposition, Jennings testified that her grade point average was low during her time on the team because she was unhappy

and uncomfortable due to the hostile environment created by Dorrance. J.A. 1320. Jennings specifically stated that she "found it hard

to focus by just the constant—by the environment that was created—

it was very hard to focus." J.A. 1321. When pressed, Jennings stated

that it was the hostile environment created by Dorrance that affected

her academic performance, rather than her teammates, her shortcomings as a soccer player, or her coaches’ criticism of her soccer ability.

See J.A. 1322-23 ("Q. Was the fact that other girls on the team were

critical of your performance as a soccer player part of what was

affecting your performance at school? A. No. Like I said before, it

was the drinking comments, the comments made about all the girls,

and their sexual stuff that just made me uncomfortable."). As noted

by the majority, this testimony is supported by a psychiatrist’s opinion that stress caused by the hostile environment contributed to Jennings’s poor academic performance. J.A. 1583. Despite the

subsequent increase in Jennings’s grade point average, a rational jury

could find, on the basis of her testimony and her expert witness, that

her poor academic performance was a result of her lack of focus due

to the hostile environment created by Dorrance or that her grades

would have increased even more but for the hostile environment. See

Hayut v. State Univ. of N.Y., 352 F.3d 733, 748 (2d Cir. 2003) (noting

that despite student’s steady academic performance during the period

of harassment, her testimony that she was unable to sleep and did not

want to attend classes and thus could not concentrate on her studies

due to harassment was enough evidence to render the issue one for

the jury); Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d 219,

227-28 (D. Conn. 2006)(finding daily verbal and some physical

26 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
harassment undermined educational experience despite plaintiff’s

ability to maintain her good grades). 

B.

The dissent implies that Dorrance’s harassment could not have

interfered with or denied Jennings the full educational opportunity of

playing on the UNC women’s soccer team because she attempted to

improve her play and was dismayed at being cut from the team. See

post at 52. In essence, the dissent concludes that because Jennings did

her best to avoid Dorrance and his abuse, but still made the most of

her time on the team and as a student at UNC, she has forfeited her

cause of action. This implication turns Title IX on its head. Cf. Gabrielle M., 315 F.3d at 829 (Rovner, J., concurring in part and concurring in the judgment) ("Neither [the plaintiff] nor future victims of

schoolplace harassment should be penalized simply because they

seem resilient."); Hayut, 352 F.3d at 749 ("[W]hat students put up

with, without objection or protest, does not mark the bounds of permissible classroom conduct."); Henson v. Dundee, 682 F.2d 897, 902

(11th Cir. 1982) ("[A] requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work

and make a living can be as demeaning and disconcerting as the harshest of racial epithets."). 

The evidence reflects that Jennings’s attempts to make the most of

her team experience did not involve increasing her interaction with

Dorrance, but rather with her teammates. For example, in the Spring

of 1998, prior to being cut from the team, Jennings hosted a team

party at her home and participated in hazing events. J.A. 1365-66.

Jennings described her relationship with Dorrance during that time

period as not "friendly" or "cozy": "It was just he was a coach and I

was a player, and I did my thing. It wasn’t that ‘Hey, how are you

doing,’ . . . . I would get a nod; that is about it." J.A. 1374. Indeed,

Jennings characterized herself as "continuing to pull away from" Dorrance during that time period. J.A. 1374. Thus, while Jennings was

attempting to improve her play, her interactions with Dorrance grew

more limited and her increased participation in the team took the form

of increased socializing with her teammates. 

A rational jury could view Jennings as having been denied the full

opportunity to achieve her potential as a member of the UNC

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 27
women’s soccer team, despite her "growing desire to remain with the

team." Post at 52. For example, a jury could view Dorrance to have,

in effect, conditioned the receipt of his coaching and advice on acceptance of his sexual banter, a practice which denied Jennings equal

access to the benefits of team membership. Cf. Wills 184 F.3d at 30

(noting that it is an open question whether the denial of informal

tutoring from a professor is an educational benefit that could form the

basis of a Title IX suit). 

The dissent ignores the special context of Title IX. Unlike an

employee-plaintiff in a Title VII action, if Jennings wished to remain

a student at UNC and a member of a varsity soccer team, she had to

remain a member of Dorrance’s soccer team. Jennings was, of course,

free to transfer, and had she done so as a result of Dorrance’s harassment, she would have been even further deprived of the educational

opportunities of UNC. See, e.g., Hayut, 352 F.3d at 750 (viewing student’s withdrawal from a university because of sexual harassment as

depriving the student of educational opportunities of university). In

sum, a rational jury could find that Jennings, who had played competitive soccer since the age of six, including stints on boys teams, was

deprived of the educational advantage of UNC’s soccer program,

despite her attempts to improve and her disappointment when she was

cut from the team, because of Dorrance’s harassment. 

IV.

This is a difficult case, but I ultimately believe that Jennings has

presented enough evidence for her Title IX claims to move forward.

Drawing inferences in Jennings’s favor, a jury could conclude that the

pervasive, hostile environment, resulting from Dorrance’s conduct,

amounted to sexual harassment and effectively deprived her of the

educational benefits of being a student-athlete at the University. For

the reasons stated above, the district court’s grant of summary judgment should be reversed. Accordingly, I concur in the majority’s

opinion. 

Judge Motz has requested that she is shown as joining this opinion.

NIEMEYER, Circuit Judge, dissenting: 

This case raises the question of whether Melissa Jennings, a member of the University of North Carolina ("UNC") women’s soccer

28 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
team for the 1996 and 1997 seasons was, by reason of sexual discrimination, "deprive[d] . . . of access to the educational opportunities or

benefits provided by the school," in violation of Title IX, 20 U.S.C.

§ 1681(a). Davis v. Monroe Co. Bd. of Educ., 526 U.S. 629, 650

(1999). 

After being warned repeatedly about both her academic and athletic performance, Jennings was cut from the soccer team in May

1998, before the beginning of the 1998 season. By her own account,

Jennings did not want to leave the team, and she was not expecting

to get cut but rather expected to hear that she had improved. At the

time, Jennings’ cumulative grade point average was 1.964 on a 4.0

scale, up from the previous year’s 1.538. But she was still at or near

the bottom of the team’s training performance levels and was a thirdor fourth-string goalkeeper. She had played in only one regular season

game during her first year and in one or two during her second year.

Only after Jennings was cut did her father write a letter to the general counsel of UNC, complaining about sexual harassment of his

daughter during the previous two years. A few months later, Jennings

commenced this action. The district court granted UNC’s motion for

summary judgment, and I would affirm.

During the two-year period of which Jennings complains, she

alleged no deprivation of an educational opportunity by reason of sexual discrimination. She does allege (1) much sexual talk during practices by teammates and her coach, Anson Dorrance; (2) two

innocuous comments directed at her by teammates and Coach Dorrance; and (3) a conversation during her annual evaluation meeting

during which Coach Dorrance was trying to understand the reasons

for Jennings’ poor academic performance. He asked, "What is going

on in [your] social life? Is that affecting [your] grades? Is that affecting [you] as a player? Who are you f**king? Is that affecting your

grades?" 

Jennings does not allege that she was cut from the soccer team

because of sexual discrimination or that she played any less because

of sexual discrimination. She also does not allege any touching,

advances, or offers of sex. Her claim amounts to a complaint about

the vulgarity of the pervasive locker room-style talk by teammates

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 29
and her coach that attended team practices. In these circumstances,

the district court was correct in concluding that the facts do not create

a triable issue as to a violation of Title IX, and therefore, I respectfully dissent. 

I

To give Jennings the full benefit of the facts in the summary judgment record, it is necessary to set them forth carefully and in some

detail. This is especially important because Jennings (as well as the

majority) has tended to rely on completely irrelevant incidents that

occurred even before she entered UNC as a freshman; that she never

knew about; and that she learned only from the testimony given in

this case.1

A

Melissa Jennings began playing goalkeeper on soccer teams when

she was 12 years old. She performed so well that within a few years

1For instance, the majority repeatedly relies on Dorrance’s "fly on the

wall" comment without mentioning that Dorrance allegedly made this

comment to Debbie Keller, the team captain, in the spring of 1994 —

more than two years before Jennings enrolled at UNC. (J.A. 1068.) The

majority also relies on numerous instances about which Jennings never

had any knowledge — nothing in the record imputes them to Jennings’

knowledge, and Jennings herself never referred to them, even though she

testified to every incident of which she had any awareness. (J.A. 1430-

31.) Thus, the majority relies on the fact that Dorrance told a player "to

keep your knees together . . . you can’t make it so easy for them" or

asked another whether she was "going to have sex with the entire

lacrosse team." (J.A. 1127.) But Jennings never heard those comments.

Jennings also never testified knowing that Dorrance asked a player about

the size of her boyfriend’s genitalia. (J.A. 1452.) Similarly, the majority

relies on the fact that Dorrance showed overt affection for Keller. But

Jennings’ only testimony in this regard is in relation to the weight room

incident, which she described as follows: "[W]e are in the weight room,

[Debbie Keller] goes off and talks with [Dorrance] in the bleachers."

(J.A. 1290.) Finally, neither Jennings nor Keller ever testified that Dorrance "dangl[ed] his hand in front of [Keller’s] chest," (J.A. 1452-53), as

relied on by the majority. 

30 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
she was the first-string goalie on an elite youth soccer club. (J.A.

1199, 1200.) After graduating from high school, Jennings went on a

recruiting trip to the University of Kansas and verbally committed to

play for its women’s soccer team. (J.A. 1217.) Despite her verbal

commitment to Kansas, Jennings wished to play soccer at UNC at

Chapel Hill because she "knew it was the number one school. It ha[d]

all the national titles." (J.A. 1216.) 

The UNC women’s soccer team, which Anson Dorrance has

coached since its inception in 1979, has long been the dominant program in the sport, winning 19 of 26 national titles, including the

national title in 2006. Because of the program’s dominance, Jennings

called Dorrance and expressed her interest. (J.A. 1216.) 

Dorrance was familiar with Jennings because of a UNC soccer

camp that she had attended, and he asked her if she had already committed elsewhere. After finding out about her Kansas commitment, he

told her to speak with Kansas’ head coach to see if Jennings could

visit Chapel Hill. (J.A. 1217-18, 1221.) Jennings did visit UNC and

ultimately joined its soccer team as a walk-on recruit. Dorrance did

not recommend her for a scholarship. (J.A. 181.) 

During Jennings’ freshman season, in the fall of 1996, she was the

third- or fourth-string goalkeeper and played in one preseason game

and one regular season game. (J.A. 1334.) The team held practice

every weekday afternoon during the fall and on Saturday mornings,

except on game days. (J.A. 1042-43.) During the first 10-15 minutes

of practice, before the formal drills began, the players had what they

called "team time," during which they would warm up, run a lap, and

stretch as a group. (J.A. 1046-47.) Debbie Keller, the team captain in

1996, described these warm-ups as a time "at the beginning of practice to talk about our day and then get serious for practice," to "talk

about . . . anything that would interfere with your concentrating on

practice." (J.A. 1044-45.) 

The environment during team time was casual and informal, and

the women joked and conversed about a range of topics, invariably

talking about their social activities and their personal lives, including

their sex lives. They talked about the "parties they had been to,"

whom they were dating, and "who they hooked up with." (J.A. 1047-

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 31
51.) Some girls discussed "intimate sexual details," (J.A. 1052), giving "in full detail, start to finish," an account of "the night they spent

with some guy," including the "different sexual acts they performed."

(J.A. 1054.) According to Keller, these players openly shared "too

much info." (J.A. 1055.) Others discussed the numerous sexual

exploits they had undertaken within a short period of time. (J.A. 1055,

1058.) While most of the sex talk among the women during team time

was more general than descriptive, like whether they "had sex" or

whom they had "hooked up with," (J.A. 1041, 1056), Keller testified

that "anywhere between five to ten times" per season, the women

gave "graphic," "full detail," "start to finish" descriptions of their sexual experiences. (J.A. 1054-55.) 

Not all of the women discussed their sex lives so openly and in

such detail during team time. Keller described degrees of openness

among the players, with some women being "very wide open about"

their personal and sex lives, others being intermediately so, and still

others keeping their personal lives completely private. (J.A. 1053-56.)

Jennings fell into the last group, testifying in deposition that she did

not participate in her teammates’ sex-themed conversations. (J.A.

1242, 1244.) 

Once or twice a week, Coach Dorrance mingled with his players

during team time, walking among them as they stretched and warmed

up. (J.A. 1061.) The players’ team-time conversations were freeflowing, and Dorrance did not regulate their content. To the contrary,

Dorrance regularly stopped and participated in these informal conversations, "joking around with different girls about their evenings

before or just who they’re dating." (J.A. 1057.) At times, Dorrance

asked whether the players had been out drinking, and if so, how

much. (J.A. 1067.) He also asked about team members’ families. (J.A.

1067.) 

Because some of the women openly discussed their sex lives, Dorrance overheard some of their more frank discussions as he walked

among them. According to Keller, "occasionally" and certainly not

"every time that he walked through," Dorrance would pause and

engage in these discussions, commenting on his players’ "personal

dating [and] sex lives." (J.A. 1066.) Keller testified that Dorrance did

not confine his comments and inquiries to team time, but talked to his

32 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
players at other times when "the team was together," whether "after

a game" or when waiting "for rides." (J.A. 1128.) Amy Steelman, who

played with Jennings during the 1996 season, remembers the frequency of Dorrance’s interventions differently, averring that "[w]hen

Anson Dorrance was around, he would encourage and participate in

sexual discussions, sexual jokes, sexual talk, sexual banter, and sexual

innuendos. A typical Monday afternoon included queries and discussions with Dorrance into the team members’ sexual and social

exploits, particularly prying into our sex lives." (J.A. 1452.) Jennings

commented that "Dorrance’s sexual comments and inquiries took

place on a regular basis."2 (J.A. 1585.) 

Jennings testified that she never participated in any of the sexual

banter engaged in mutually by her teammates and Dorrance. (J.A.

1242-43.) Jennings also testified that Dorrance never directed any of

his "team-time" comments at her. (J.A. 1242-43.) Although she did

not participate and although she was not targeted, Jennings paid attention to the banter, and she labeled much of what she overheard as

inappropriate and humiliating. She testified to only two specific incidents about which she heard, however, to provide content to her general descriptions. First, one player informed the team, in Dorrance’s

presence, that over the course of an evening, she had sex with a man,

crawled out of his window, crawled into another man’s window, and

had sex with him too. (J.A. 1055, 1058.) Dorrance asked the player

whether she knew the names of these men, and whether "she took

tickets." (J.A. 1236.) Dorrance also asked this player, who was very

open about her promiscuity, who her "f**k of the minute," "f**k of

the hour," and "f**k of the week" was, and how "many guys on the

[lacrosse] team did she f**k?"3 (J.A. 1237-38.) Second, another

2Dorrance has a much different recollection of the facts. In his affidavit, he stated: "I never initiated comments on those topics, only infrequently heard players’ comments on those subjects and even less

frequently said anything to any player at those times about those subjects." (J.A. 186.) Several former soccer players who were Jennings’

teammates at UNC submitted affidavits consistent with Dorrance’s version of the facts. (J.A. 320, 324, 330, 332). At this summary judgment

stage, of course, these allegations must be ignored, and the truth of the

testimony of Jennings, Keller, and Steelman must be accepted. 

3Keller testified that Dorrance "would use words more like ‘promiscuous,’" asking "how many people are you going to sleep with." (J.A.

1127.) 

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 33
player spoke of a previous weekend with her boyfriend, and Dorrance

asked her if she was "going to have a shag fest . . . when he comes

to town," and whether she was "going to f**k him and leave him?"

(J.A. 1284.) 

Beyond these two incidents, Jennings testified about one other particular comment that Dorrance made at practice, although it was neither directed at her nor made in the presence of any player. During

a water break, Dorrance was talking to a male athletic trainer, and

Jennings overheard them both use the phrase, "Asian threesome."

(J.A. 1285.) Jennings heard Dorrance "kind of chuckle" and say, "Oh,

yeah," after hearing the phrase. (J.A. 1285.) Jennings interpreted the

phrase to be a description of a fantasy involving two of her Asian

teammates and one of the men. (J.A. 1284-86.) Jennings also complained of Dorrance’s use of profanity, including the words and

phrases "f**k," "unf**kingbelievable," "what the f**k," "f**king

brilliant," and "f**king stupid." (J.A. 1231-33, 1264-65.) Jennings

testified that Dorrance would use such phrases when his players made

mistakes, such as when he believed a player made a poor pass. (J.A.

1231.) 

Jennings testified that Dorrance would occasionally comment on

players’ physical attributes, complimenting one player for having

"nice legs," (J.A. 1233), and another for having "cute dimples," (J.A.

1229), commenting on "asses in spandex," (J.A. 1229), scorning one

as a "fat ass," (J.A. 1228), and referring to one woman’s chest as her

"rack." (J.A. 1236.) Jennings testified, however, that Dorrance never

commented on any of her physical attributes, respectfully or disrespectfully. (J.A. 1243.) Jennings also admitted that Dorrance never

threatened her, never touched her, never ogled her, never propositioned her, and never made any form of sexual advance. 

In fact, from her two years on the team, Jennings could testify of

only two instances when her personal life was mentioned at all during

soccer practice while Dorrance was present. The first occurred before

practice when Jennings and some teammates were sitting on bleachers

lining the soccer practice field with Dorrance nearby. (J.A. 1252-54.)

One of the players spoke about her weekend with her boyfriend, and

Dorrance asked if it had been a "shag fest." (J.A. 1249.) The teammate, seeking to involve Jennings in the conversation and knowing

34 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
that Jennings, whose nickname was "Trim’n" (which, Jennings stated,

had no sexual connotation), had visited her boyfriend at a different

school the previous weekend, asked, "What about Trim’n?" (J.A.

1246-48, 1252.) Dorrance "chimed in," saying, "yes, what about

Trim’n?" (J.A. 1246, 1252.) Jennings ignored the questions asked by

her teammate and Dorrance, and left for the practice field to do "goalkeeper stuff." (J.A. 1255.) The second instance occurred during team

time when a teammate asked Jennings whether a boy she had seen

Jennings hug after the previous day’s game was a boyfriend or just

a friend. (J.A. 1257-59.) Jennings responded that the boy was just a

friend. (J.A. 1258.) As for Dorrance’s involvement in the exchange,

he was present, but Jennings could not remember whether he said

anything. (J.A. 1258.) 

As the season progressed, Jennings became concerned about the

sexual banter and other issues, and she approached Susan Ehringhaus,

then Assistant to the Chancellor and Senior University Counsel,

sometime between September and November 1996 to express her

concerns. (J.A. 1337-39, 1341.) Jennings trusted Ehringhaus because

she was a woman; she was UNC’s top legal officer; and Jennings generally felt comfortable with her. (J.A. 1338.) Jennings told Ehringhaus

(1) that Dorrance contributed to a "humiliating" and "uncomfortable"

environment, giving Ehringhaus "a run-down of what I thought would

encompass everything" regarding Dorrance’s inappropriate comments, including the specifics of Dorrance asking a team member

"who the f**k of the week is." (J.A. 1342-43); (2) that Dorrance

failed to visit her in the hospital when she had become sick earlier

that semester (J.A. 1335) and failed to mention to the team that her

hospital stay was the reason she had missed a game (J.A. 1340); (3)

that Dorrance requested that Jennings buy $400 worth of Gatorade for

the team and the team’s opponent during the water supply disruptions

caused by Hurricane Fran and subsequently failed to reimburse her

(J.A. 197, 1344-45); and (4) that Dorrance encouraged Jennings to

attend parties with her teammates, even though Jennings had told

Dorrance that she was underage and alcohol was present at the parties

(J.A. 198, 1338-40, 1347-48). Jennings did not relate that any of Dorrance’s sexual comments had been directed at her. (J.A. 1346-47.)

Ehringhaus stated that Jennings made no complaints about the sexual

banter at this meeting or any other meeting until after Jennings had

been cut from the team. (J.A. 198.) But according to Jennings, EhrJENNINGS v. UNIVERSITY OF NORTH CAROLINA 35
inghaus responded to Jennings’ complaints by encouraging her to

"work it out with" Dorrance and asking whether she was "taking those

comments into context." (J.A. 1342.) Ehringhaus characterized Dorrance as "a great guy" and related that she had "known him for a long

time." (J.A. 1342.) To Jennings, Ehringhaus "didn’t seem that concerned." (J.A. 1342.) 

A short time later, again during the fall of 1996, Jennings

approached Ehringhaus for a second time. At this meeting, Jennings

focused solely on Dorrance’s failure to reimburse her $400 for buying

the Gatorade. (J.A. 1346.) Jennings did not mention anything about

the sexual banter at practice. (J.A. 1345-46.) Following this meeting,

Jennings’ father, Craig Jennings, also wrote a letter to the University,

complaining of Dorrance’s failure to reimburse his daughter the $400.

(J.A. 1352-53, 1411, 1543.) His letter did not mention any sexual

comments at practice. (J.A. 1543, 1551.) The reimbursement issue

was thereafter resolved, and Jennings had no further meetings with

Ehringhaus until after she had been cut from the team. (J.A. 1350-51.)

Dorrance had a custom of meeting with each of his players individually at the end of the soccer season for a personal assessment of their

performance during the season in the areas of conditioning, skills, and

on-field performance; contributions to team chemistry; and academic

status. (J.A. 182-83.) For the 1996 season, Dorrance held these endof-year meetings in his hotel room while the team was in California

during December to play in the national championship tournament.

(J.A. 1305.) After the player before Jennings had finished her personal progress meeting with Dorrance, Jennings went in, and both she

and Dorrance sat down at a table located by the window in his hotel

room. (J.A. 1308.) 

Dorrance began the conversation with "small talk," asking Jennings

such questions as "[H]ow are you doing?" and "[W]hat is going on?"

(J.A. 1309.) Dorrance began the substantive portion of the meeting by

addressing Jennings’ grade point average, which was a 1.538 on a 4.0

scale. (J.A. 1449.) Jennings knew that she was in danger of losing her

athletic eligibility due to her poor grades. Dorrance told her that her

grades "needed to improve" and that they were "not acceptable." (J.A.

1315, 1316.) He explained how important her grades were, telling her

she "ha[d] to study" and "do better in school." (J.A. 1316.) 

36 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
Seeking to find the reasons for Jennings’ poor academic performance, Dorrance asked Jennings if she needed help, inquiring

whether she had been visiting the team’s academic tutor (which she

had been). (J.A. 1318.) According to Jennings, Dorrance then

inquired whether Jennings’ social life was affecting her grades, asking, "What is going on in [your] social life? Is that affecting [your]

grades, is that affecting [you] as a player?" (J.A. 1329-30.) "Who are

you f**king?" "Is that affecting your grades?" "[Is that] causing a

problem with your grades, with your performance?" (J.A. 1326,

1330.) Jennings was taken aback by the question, and immediately

replied that her personal social life was "[n]one of his god damn business." (J.A. 1325, 1331.) Dorrance ceased his inquiry into the possible

causes of Jennings’ poor academic performance and "started talking

about [Jennings’] performance as a player." (J.A. 1327.) 

Because Jennings had played in only one game during the year, as

well as one preseason game, (J.A. 1334), Dorrance focused his comments on Jennings’ conditioning, telling her that her statistics for

weightlifting, sprinting, and the like were below team standards and

therefore needed to improve. (J.A. 1327.) Dorrance ended the meeting

by telling Jennings to "[i]mprove [her] grades, first and foremost, and

then . . . improve [her] performance, . . . [and to] fight for that first

string, second string position." (J.A. 1333.) 

Jennings returned to the soccer team as a sophomore for the fall

1997 season, during which she again had minimal playing time,

appearing in one or two games. (J.A. 1356.) Again at the end of the

1997 season in December, Dorrance met individually with each

player for a personal progress assessment. At Jennings’ meeting, Dorrance discussed her academics, fitness, and contributions to team

chemistry. (J.A. 1361.) He commented that Jennings’ cumulative

GPA had improved to a 1.964 from the previous year’s 1.538. (J.A.

1449.) In Jennings’ words, Dorrance tried "to push me to continue in

a positive manner with my grades. He was acknowledging the fact

that I had made the effort." (J.A. 1362.) But he told Jennings that she

was still falling short of the team’s academic standards. (J.A. 1361.)

He also told Jennings that she needed to focus on her fitness and

training, commenting that she was not meeting the team’s standards

in those areas either. (J.A. 1362.) Finally, he encouraged Jennings "to

be a positive life source" for the team by cheering for the players from

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 37
the sidelines, being "a comforting figure, and [a] positive person,

being supportive of teammates, and everything else." (J.A. 1362,

1363.) Dorrance told Jennings that he would have to remove her from

the team if she did not improve in each area. (J.A. 1363.) Nothing else

was discussed. (J.A. 1365.) 

During spring 1998 (the off-season), Jennings made efforts to be

more involved in the team’s social activities, including hosting

recruits, working at the team’s concession stand, and even hazing the

team’s new members. (J.A. 1365-1372.) 

On May 5, 1998, after Dorrance had asked each player to complete

a self-evaluation and an evaluation of her teammates (J.A. 1391),

Dorrance again conducted one-on-one meetings with his players. At

Jennings’ meeting, Dorrance told her that her training and fitness

levels were still below the team’s minimum standards (J.A. 1387),

that her performance was sub-par (J.A. 1395), and that she therefore

"was no longer to be a part of the team." (J.A. 1387.) Jennings was

shocked and became "hysterically upset." (J.A. 1392.) Jennings "was

not expecting to get cut. I was expecting him to say, ‘You know,

you’ve improved.’ . . . I thought I had done well. I even did my

[skills] testing injured. [I] was, you know, making every possible

attempt to do what he had asked." (J.A. 1388.) Dorrance described

Jennings’ efforts differently, observing that she "has no discipline to

improve herself as a player, is a poor student and is bad for chemistry." (J.A. 279.) "Jennings was clearly the worst goalkeeper on the

team during the years she played." (J.A. 182.) 

A week after Jennings had been cut from the team, her father,

Craig Jennings, wrote a letter to Ehringhaus, dated May 12, 1998.

(J.A. 1551.) Although Craig Jennings had once before — in the fall

of 1996 — written to Ehringhaus to complain about the delayed reimbursement for Jennings’ purchase of Gatorade and the presence of

alcohol at parties attended by team players, he now complained for

the first time about the personal and sexual nature of Dorrance’s comments and questions during practice and during the player interviews.

Craig Jennings specifically complained:

Coach Dorrance has in every player/coach review (except

the one last week) and at the practice field asked the following questions: 

38 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
1. Who is your boy friend? Are you seeing anyone? What

does he do? Are you enjoying the UNC campus? We personally do not find these questions totally offensive, but the

answers are Melissa’s to give, if she chooses without retribution. 

2. When answering yes to a boy friend or after bringing

friends to team activities he then has asked the following:

Are you sleeping with him? Are you shacking up with him?

We find both of these questions totally inappropriate and

harassing! 

3. The Monday practice session team question has been on

numerous occasions: Who is shacking up with whom? He

will even question roommates on the field about the exploits

of their teammates? 

4. To one team member (not Melissa), he asks the team

who her S___ for the week is/was? Like most of the team

members she can not respond because he totally owns her

way through your fine institution and controls her ability to

go to your school. This is the sickest form of harassment. 

(J.A. 1551.) 

Ehringhaus forwarded Craig Jennings’ May 12 letter to UNC Athletic Director Richard Baddour, who then ordered Beth Miller, the

Senior Associate Athletic Director, to begin an investigation pursuant

to UNC’s sexual harassment policy. (J.A. 200, 264.) Miller arranged

a meeting on May 26, 1998, at which Jennings, Craig Jennings, Ehringhaus, Baddour, Dorrance, and Miller herself attended. (J.A. 1529.)

At the meeting, Jennings discussed the manner in which Dorrance had

dismissed her from the team (J.A. 1401), recounted when Dorrance

asked her about her sex life in their one-on-one evaluation meeting in

December 1996 (J.A. 1404), and described the content of the sexual

banter between Dorrance and his players. (J.A. 1406.) Dorrance

responded with a firm denial of ever discussing sexual activity in a

one-on-one meeting with any player, but he acknowledged that he

participated in group discussions during practice that touched on his

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 39
players’ sex lives. He maintained that his comments were only "of a

jesting or teasing nature." (J.A. 1531.) 

Following the meeting, Athletic Director Baddour wrote Craig Jennings a letter dated June 9, 1998, in which he stated:

Any unwelcome discussions, including jesting, regarding

sexual activity and team members’ relationships with men

are inappropriate in the context you described. While Coach

Dorrance strongly denies that he has ever discussed an individual team member’s sexual activity in a one-on-one discussion, Coach Dorrance has acknowledged that he

participated in group discussions of a jesting or teasing

nature with soccer team members. This is altogether inappropriate. While his actions were not intended to be offensive, he now realizes that his involvement in such

discussions is inappropriate, and he will immediately discontinue that activity. Appropriate interventions have also

occurred with Coach Dorrance to address these unacceptable conversations. 

The University and Coach Dorrance apologize for the

"money issue." He has maintained that he did not intend to

embarrass Melissa in any way. He recognizes that he

offended her and used poor judgment and for that he apologizes. 

Coach Dorrance also realizes that his dismissal of Melissa

was ill-timed, and he apologizes for the untimely discussion

during the exam period. 

(J.A. 1531.) Dorrance also signed the letter. (J.A. 1531.) 

Athletic Director Baddour completed his investigation of Jennings’

complaints by reprimanding Dorrance in a letter dated June 10, 1998,

which stated:

As I indicated to you in our last meeting I am writing to

officially notify you that it is inappropriate for you to have

40 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
conversations with members of your team (individually or

in any size group) regarding their sexual activity. Please

refer to my letter of June 9, 1998 to Craig Jennings. 

(J.A. 1533.) 

B

On August 25, 1998, at the beginning of Jennings’ third year at

UNC and a few months after she was cut from the team, Jennings

sued UNC and several individual defendants, including Dorrance,

alleging (1) a Title IX claim against UNC, (2) claims under 42 U.S.C.

§ 1983 against Dorrance for sexual harassment and invasion of privacy and against various UNC officials for failure to supervise Dorrance, and (3) a common law claim against Dorrance for invasion of

privacy. The district court granted the defendants’ motions for summary judgment, and a divided panel of this court affirmed. Jennings

v. Univ. of N.C., 444 F.3d 255 (4th Cir. 2006). A majority of this

court’s active members voted to grant Jennings’ motion to rehear this

case en banc. 

II

Relying indiscriminately on the catalogue of statements made by

Coach Dorrance and various members of UNC’s soccer team, made

both before and after Jennings attended UNC, the majority concludes

that they created a severe and pervasive sexually hostile environment

that denied Jennings access to the opportunities and benefits of the

soccer program. The majority’s approach lacks any precision about

the meaning of comments, their connection with Jennings, their timing (some occurred before Jennings came to UNC), and their effect

on Jennings and the soccer program. A disciplined analysis of the

facts and their effect on Jennings can lead only to the conclusion that

the sexual banter, while extensive and inappropriate, did not deny

Jennings any educational opportunity. Indeed, she has never claimed

that it did. The majority’s analysis amounts in essence to an evaluation of the vulgar language by Coach Dorrance and teammates rather

than an analysis of whether such violations of civility amount to a

cause of action under Title IX. 

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 41
While I agree that the sexual banter during soccer practices was

vulgar and inappropriate, both as to Coach Dorrance and the soccer

team members, the banter had no effect on whether Jennings played

soccer, or indeed whether she wanted to play soccer, at UNC. To the

contrary, despite the banter, Jennings deeply desired to be a member

of the team. When she was cut for reasons unrelated to sexual banter,

she was shocked and profoundly disappointed. 

At bottom, Jennings made genuine complaints about vulgar sexual

banter, but there were no complaints that the sexual banter denied her

educational benefits. Therefore Jennings did not make out a Title IX

claim. 

Before conducting the analysis demanded by Title IX, a review of

the statute’s requirements is necessary. This is particularly so because

the majority has misdescribed the requirements of a Title IX claim,

omitting the core requirement that the plaintiff demonstrate that she

was denied the benefits of an educational program or activity on the

basis of sex. See ante at 9. 

Title IX prohibits an educational institution that receives federal

funds from engaging in sex-based discrimination. The statute provides, with certain exceptions not at issue here, 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). While Title IX does not, by its

terms, create a private cause of action against the funding recipient,

the Supreme Court has implied one, see Cannon v. Univ. of Chicago,

441 U.S. 677, 717 (1979), and it has held that money damages are

available in such suits, Franklin v. Gwinnett County Pub. Schools,

503 U.S. 60, 76 (1992). The damages remedy will lie against the

funding recipient, however, only when "an official who at a minimum

has authority to address the alleged discrimination and to institute corrective measures on the [funding] recipient’s behalf has actual knowledge of discrimination in the recipient’s programs" and responds with

"deliberate indifference to the discrimination." Gebser v. Lago Vista

Indep. Sch. Dist., 524 U.S. 274, 290 (1998). 

As with Title VII, "sexual harassment" under Title IX is a form of

"discrimination." See Franklin, 503 U.S. at 74-75. In the context of

42 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
student-on-student harassment, the Court has held that the harassment

must be "so severe, pervasive, and objectively offensive that it can be

said to deprive the victims of access to the educational opportunities

or benefits provided by the school." Davis v. Monroe County Bd. of

Educ., 526 U.S. 629, 650 (1999). But other than for student-onstudent harassment, the Court has not defined the substantive contours

of the harassment forbidden by Title IX. Nonetheless, courts of

appeals have looked to the Supreme Court’s Title VII jurisprudence

when interpreting Title IX. See, e.g., Frazier v. Fairhaven Sch.

Comm., 276 F.3d 52, 65-66 (1st Cir. 2002); Lam v. Curators of the

Univ. of Mo., 122 F.3d 654, 656-57 (8th Cir. 1997). 

Because the Supreme Court implied in Davis that the "severe, pervasive, and objectively offensive" standard for student-on-student

harassment was more demanding than Title VII’s "severe or pervasive" standard for harassment generally, I agree with the majority that

the level of harassment required for actionable claims under Title IX

in the case of teacher-on-student harassment is Title VII’s "severe or

pervasive" standard. See Harris v. Forklift Sys. Inc., 510 U.S. 17, 21

(1993); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

This standard, of course, must be applied with sufficient discipline

that the standard does not become a "general civility code." Faragher

v. City of Boca Raton, 524 U.S. 775, 788 (1998). 

Much more significant to Title IX liability, however, is the analysis

required for determining when a given level of harassment brings

about consequences with which Title IX is concerned. To succeed in

a Title IX harassment claim, the plaintiff must prove that the harassment was so severe or pervasive "that it can be said to deprive the

[plaintiff] of access to the educational opportunities or benefits provided by the school." Davis, 526 U.S. at 650. This requirement of

specified consequences derives from the text of Title IX itself, which

shields students from "discrimination," such as being "excluded from

participation in" or "denied the benefits of" any "education program

or activity receiving Federal financial assistance" on the basis of sex.

20 U.S.C. § 1681(a). Therefore, harassment standing alone, no matter

how severe or pervasive, is not actionable; it must have the effect of

discriminating so that it effectively denies students of "equal access

to an institution’s resources and opportunities." Davis, 526 U.S. at

651; see also 20 U.S.C. § 1681(a). Title IX’s purpose is not to eradiJENNINGS v. UNIVERSITY OF NORTH CAROLINA 43
cate harassment from the educational environment; it is "a specific

federal statute designed primarily to prevent recipients of federal

financial assistance from using the funds in a discriminatory manner."

Gebser, 524 U.S. at 292. 

Thus, Jennings must show that she was subjected to harassment —

because of her sex — so objectively severe or pervasive that she was

effectively denied equal access to UNC’s resources and opportunities.

III

In this case, Jennings’ evidence, while amply describing instances

of sexual banter among teammates and Coach Dorrance, falls far

short of demonstrating that Jennings was denied the benefits of soccer

team membership. She has never alleged that she did not want to be

a member of the team or that the banter denied her the benefits of

membership. Indeed, she wanted to remain on the team and believed

that her improvements in performance justified remaining on the

team. She was shocked and angered when she was cut. 

Moreover, Jennings complained only once to UNC officials during

her two years on the team about the banter and then at such a low

level that the person to whom she complained did not recall it. In

addition, when Jennings’ father wrote on Jennings’ behalf about problems that Jennings had encountered with the soccer program — a lack

of reimbursement and invitations to parties at which alcohol was

served — he did not mention any sexual banter or harassment. Only

after Jennings was cut from the team were accusations of sexual

harassment made. 

Jennings has tried to argue that she was denied an educational benefit by asserting conclusorily and without factual support that Dorrance’s conduct "negatively impacted [her] academic performance

and performance on the soccer field." (J.A. 1585.) Yet, the record

shows that when, over the course of two years, she was confronted

with her poor academic and field performance, her response never

suggested a problem with Dorrance’s conduct. Rather, the discussions

focused on more disciplined training and more time for academics.

Moreover, the record shows that Jennings did improve academically

each semester. (J.A. 1449.) More revealing is Jennings’ own evalua44 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
tion of herself that she was doing better. As she testified, when she

was cut, she was expecting Dorrance to say to her, "You know,

you’ve improved." (J.A. 1388.) 

It is not surprising therefore that Jennings’ argument on appeal

focuses entirely on whether Dorrance’s conduct was severe or pervasive, rather than on whether she was denied an educational benefit.

The majority simply continues this emphasis by ignoring or misstating the core requirement of Title IX liability that conduct deprive a

plaintiff of "equal access to an institution’s resources and opportunities." Davis, 526 U.S. at 651; see also 20 U.S.C. § 1681(a). The

majority completely and inexplicably omits this core requirement

from its boilerplate recitation of the necessary elements for "establish[ing] a Title IX claim on the basis of sexual harassment." See ante

at 9. 

When the majority does purport to address the omitted requirement, it holds that Jennings may satisfy the requirement by merely

alleging that Dorrance’s comments had a "negative impact" on her

"performance on the soccer field." See ante at 17. This holding stands

on a complete misreading of Davis. If the majority sincerely believes

that the Supreme Court "point[ed] out that sexual harassment reaches

the level of actionable discrimination when it has ‘a concrete, negative effect on [the victim’s] ability’ to participate in a program or

activity," see ante at 15 (quoting Davis, 526 U.S. at 654), it has blatantly ignored the entire portions of the opinion that actually define

the cause of action. Contrary to the majority’s representation of

Davis, the Supreme Court reiterated five separate times that Title IX’s

discrimination requirement is satisfied "only where [the harassment is

so severe or pervasive] that it can be said to deprive the victims of

access to the educational opportunities or benefits provided by the

school." See Davis, 526 U.S. at 654 (emphasis added); id. at 633

(same); id. at 651 (same); id. at 652 (same); id. at 653 (same). It was

only when the Court applied "this standard to the facts at issue" that

it stated the following: "The harassment was not only verbal; it

included numerous acts of objectively offensive touching, [including]

criminal sexual misconduct. . . . Further, petitioner contends that the

harassment had a concrete, negative effect on her daughter’s ability

to receive an education." Id. at 653-54. It is almost too obvious to

state, but the petitioner’s isolated contention in Davis did not define

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 45
what it means to "discriminate" under Title IX, as the majority apparently believes.4

 The Court accepted that allegation as part of a complaint that included allegations of "objectively offensive touching" of

the plaintiff amounting to "criminal sexual misconduct." The majority’s importation of and heavy reliance upon a watered-down "negative impact" test, derived from a single allegation in the Davis

petitioner’s complaint, is obviously wrong, particularly when the

Court specifically and repeatedly articulated the Title IX cause of

action. 

The majority’s gutting of the "denial of benefit" requirement is not

only contrary to the Supreme Court’s pronouncements in Davis, but

more importantly, it contravenes the actual text of the statute, which

only shields students from "discrimination," such as being "excluded

from participation in" or "denied the benefits of" any "education program or activity." See 20 U.S.C. § 1681(a) (emphasis added). 

The acts of sexual harassment alleged by Jennings can be divided,

for discussion purposes, into three categories: (1) "sexual" banter at

practice directed at or involving Jennings; (2) other sexual banter at

practice among teammates and Coach Dorrance; and (3) the December 1996 evaluation meeting between Jennings and Dorrance at which

Dorrance inquired, as part of his effort to discover the cause of Jennings’ poor grades, who Jennings was "f**king." I address these in

turn. 

A

Jennings identified two incidents during her two years on the team

when the banter at practices involved or implicated her.

The first incident arose prior to a practice when one of Jennings’

teammates recounted her weekend’s activities with her boyfriend, and

Dorrance asked if it had been a "shag fest." (J.A. 1249.) The team4

Indeed, the majority even waters down the petitioner’s allegation in

Davis. In Davis, the petitioner contended that the harassment had a "concrete, negative effect on her daughter’s ability to receive an education."

Davis, 526 U.S. at 654. The majority converts "receive an education" to

"participate in a program or activity." Ante at 15. 

46 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
mate, seeking to involve Jennings in the conversation and knowing

that Jennings had visited her boyfriend at a different university the

previous weekend, asked, "What about Trim’n?" (J.A. 1246-48,

1252.) Dorrance "chimed in," saying, "yes, what about Trim’n?" (J.A.

1246, 1252.) Jennings ignored these questions from her teammate and

Dorrance and left for the practice field. (J.A. 1255.) 

Dorrance’s question was an offhand comment amounting to "simple teasing." It was Jennings’ teammate who instigated the efforts to

involve Jennings in the conversation, and Dorrance’s question was

merely a follow-up to hers. The only reason the question even

achieves the status of "simple teasing," instead of being utterly innocuous, is because of Dorrance’s earlier "shag fest" comment to Jennings’ teammate. A "recurring point" in the Supreme Court’s Title

VII opinions, however, is that "‘simple teasing,’ offhand comments,

and isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the ‘terms and conditions of employment.’"

Faragher, 524 U.S. at 788 (citation omitted). The Court’s "standards

for judging hostility are sufficiently demanding" to "filter out complaints attacking the ordinary tribulations" of collegiate athletics,

"such as the sporadic use of abusive language, gender-related jokes,

and occasional teasing." Id. (citation and quotation marks omitted).

This incident certainly falls within the "simple-teasing" category. 

The second incident involved a teammate asking Jennings whether

a boy she had seen Jennings hug was a boyfriend or just a friend.

(J.A. 1257-59.) Jennings responded that the boy was just a friend.

(J.A. 1258.) As for Dorrance’s involvement, Jennings remembers him

being present but saying nothing. (J.A. 1258.) Not even the majority

relies on this incident, for reasons that are obvious — it could neither

stand alone as an incident of sexual harassment nor add to a collection

of incidents constituting sexual harassment. 

B

The sexual banter at practices among teammates and Coach Dorrance also does not rise to sexual harassment of Jennings. Jennings

rightfully places herself as a bystander during this banter. When there

is an absence of sexual harassment directed at a plaintiff, however,

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 47
environmental conduct voluntarily engaged in by others has never

supported a claim for sexual harassment. 

In the two cases where we have most relied on background conduct

in applying the "severe or pervasive" standard, the direct harassment

of the plaintiff still provided the foundation for the hostile environment claim. In Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir.

2001) (Spriggs II), we took into account environmental conduct as

enhancing conduct specifically directed at the plaintiff. But the core

of the harassment claim in Spriggs was based on a white supervisor

repeatedly calling his African-American subordinate, "dumb monkey"

and "nigger," during the relevant employment period. See Spriggs v.

Diamond Auto Glass, 165 F.3d 1015, 1017 n.2 (4th Cir. 1999)

(Spriggs I). Similarly, in Ocheltree v. Scollon Prod. Inc., 335 F.3d

325 (4th Cir. 2003) (en banc), we took environmental conduct into

account, but primarily to enhance the core sexual harassment directed

at the plaintiff, who was a female. The targeted harassment included

male co-workers confronting the plaintiff with a pornographic picture

depicting pierced male genitalia; simulating oral sex on a mannequin

while fondling the mannequin’s breasts in front of the plaintiff in

order to rile and offend her; and singing to the plaintiff, in an operatic

voice, "Come to me, oh, baby come to me, your breath smells like

come to me." Id. at 328. 

In cases where there was a scarcity of direct harassment, however,

the plaintiffs could not rely on environmental conduct to make their

claim. See, e.g., Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745,

753-54 (4th Cir. 1996) (upholding entry of summary judgment against

complainant because of his overreliance on incidents "not directed

specifically at him," such as those occurring in "group settings"). 

Moreover, the Supreme Court itself has assumed throughout its

Title VII and Title IX cases that only harassment directed and targeted at the victim was capable of creating a hostile environment. In

Meritor, for example, "sexual harassment" was defined as "unwelcome sexual advances, requests for sexual favors, and other verbal or

physical conduct of a sexual nature." 477 U.S. at 65 (citation and quotation marks omitted) (emphasis added). In Harris, the Court stated

that the workplace must be "permeated with discriminatory intimidation, ridicule, and insult." 510 U.S. at 21 (citation and quotation

48 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
marks omitted). But the intimidation, ridicule, and insults in Harris,

as elsewhere, targeted the victim. 510 U.S. at 19 (stating the victim

was made "the target of unwanted sexual innuendos"). Thus, in Davis,

the student was not only verbally assaulted, but was also touched in

a manner that amounted to "criminal sexual misconduct." 526 U.S. at

653. In Faragher, the complainant faced "uninvited and offensive

touching" and such choices as, "[d]ate me or clean the toilets for a

year." 524 U.S. at 780. In Oncale v. Sundowner Offshore Services,

Inc., 523 U.S. 75, 77 (1998), the complainant "was forcibly subjected

to sex-related, humiliating actions against him," such as being "physically assaulted . . . in a sexual manner" and being "threatened with

rape." These examples fairly reflect the Court’s consistent teaching

that Title VII and Title IX protect victims, not witnesses, of harassment. 

In short, the indirect sexual banter of which Jennings complains

cannot on its own support Jennings’ harassment claim. Nor does it

heighten the discriminatory impact of the one instance of simple teasing directed at her so as to satisfy the demanding requirement that the

harassment be so "severe or pervasive" that it "effectively bar[ ] the

victim’s access to an educational opportunity or benefit." Davis, 526

U.S. at 633. 

C

The third and perhaps principal incident of which Jennings complains occurred during Jennings’ end-of-year personal progress meeting in December 1996. It arose from Dorrance’s inquiry into the

causes for Jennings’ poor academic performance during her first

semester at UNC. Jennings’ GPA at the time was 1.538 on a 4.0 scale.

(J.A. 1449.) During the meeting, Dorrance impressed upon her the

importance of her studies, telling her that she "ha[d] to study" and "do

better in school." (J.A. 1316.) He then sought to find the causes of

Jennings’ poor academic performance, as a responsible coach who

risked losing a player due to academic ineligibility would do. Dorrance asked Jennings if she needed help, if she had been visiting the

team’s academic tutor (which she had been). (J.A. 1318.) He then

wondered whether Jennings’ social life was affecting her grades, asking, according to Jennings’ testimony, "What is going on in [your]

social life? Is that affecting [your] grades?" (J.A. 1329-30.) "Who are

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 49
you f**king?" "[I]s that affecting your grades?" "[Is that] causing a

problem with your grades, with your performance?" (J.A. 1326,

1330.) Jennings forcefully replied that her personal social life was

"[n]one of his god damn business." (J.A. 1325-26, 1331.) Dorrance

immediately dropped the subject, and according to Jennings, "started

talking about my performance as a player." (J.A. 1327.) 

As phrased, Dorrance’s question "Who are you f**king" was

plainly vulgar and certainly too personal. Nonetheless, the inquiry

clearly did not focus on sex or include an overture to sex; it was, in

context, obviously an inquiry about what was occupying Jennings’

time. Jennings bordered on the verge of becoming academically ineligible to play soccer, and Dorrance, as her coach, intervened, asking

if her grades were being adversely affected by her social life. Dorrance’s question about Jennings’ sex life was not physically threatening; it was not a sexual proposition; it was not made in an attempt to

humiliate, degrade, and demean. See Harris, 510 U.S. at 23 (differentiating between the "physically threatening or humiliating" comment

and the "mere offensive utterance"). Rather, the question was asked

in an effort to discover the cause of Jennings’ poor academic performance. Dorrance’s use of profanity and his inquiry into a personal

subject for purposes of a legitimate inquiry about Jennings’ time does

not transform the single, isolated question into a "severe" example of

sexual harassment. The context and purpose of the question, indeed,

removed it from any consideration as sexual harassment of the kind

prohibited by Title IX. See Harris, 510 U.S. at 21 ("‘[M]ere utterance

of an . . . epithet which engenders offensive feelings in an employee

does not sufficiently affect the conditions of employment to implicate

Title VII" (quoting Meritor, 477 U.S. at 67)). 

* * *

Jennings cites no other incidents to support her claim, and she testified at the end of her deposition that this was all that she knew. (J.A.

1430-31.) She only became aware of other evidence — evidence upon

which the majority relies heavily — after the commencement of this

action. We are thus left with one simple incident of teasing, the

team’s sexual banter which Jennings overheard, and one coarsely

posed question about what time-consuming distraction might be

affecting Jennings’ grades. 

50 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
To evaluate such evidence for liability, courts must determine

whether an environment is sufficiently hostile or abusive "by looking

at all the circumstances," Harris, 510 U.S. at 23, including the context

of the case, which in this case is the collegiate athletic field. See

Oncale, 523 U.S. at 81 (explaining that a football player’s environment "is not severely or pervasively abusive . . . if the coach smacks

him on the buttocks as he heads onto the field —- even if the same

behavior would reasonably be experienced as abusive by the coach’s

secretary (male or female) back at the office"). The collegiate athletic

field is unlike the typical classroom, and the collegiate athletic coach

is unlike the typical university instructor. The proper baseline by

which to judge the language of Coach Dorrance and Jennings’ teammates is the world of competitive collegiate athletics in which

coaches, by necessity, have a much more casual and personal relationship with their student-athletes. While vulgarity of the level witnessed

by Jennings was surely not necessary to the program, it is undoubtedly normal for a coach to have discussions with a player about his

or her body, athletic performance, academic performance, inter-player

relationships, social activities, and extracurricular activities. College

sports, especially an elite program like women’s soccer at UNC,

involve long and intensive daily practice sessions, extensive overnight

travel, and a significant amount of downtime spent together. 

Some coaches use profanity or sarcasm as a way to express displeasure, to emphasize a point, or to motivate. Dorrance, according to

Jennings, cursed when his players made mistakes, such as when a

player made a poor pass. (J.A. 1231.) But Title IX does not protect

students from profanity. See McWilliams v. Fairfax County Bd. of

Supervisors, 72 F.3d 1191, 1196 (4th Cir. 1996) (holding that Title

VII does not protect employees from discrimination "‘because of’ [the

harasser’s] vulgarity and insensitivity and meanness of spirit"). 

The critical inquiry in this case, as in all Title IX cases, is whether

the alleged harassment was so objectively "severe [or] pervasive . . .

that it can be said to deprive [Jennings] of access to the educational

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

650. The majority’s application of a simple "negative impact" test —

whether Dorrance’s comments had a "negative impact" on Jennings’

"performance on the soccer field," ante at 17 — is simply inconsistent

with the governing statute and with Supreme Court precedent, both

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 51
of which require that the harassment actually "discriminate" by "depriv[ing] the [plaintiff] of access to . . . educational opportunities or

benefits." See 20 U.S.C. § 1681(a); Davis, 526 U.S. at 650. 

On this record, it cannot be said that Dorrance’s language effectively excluded Jennings from participating as a member of UNC’s

women’s soccer team, especially in light of Jennings’ own testimony.

And her empty assertion, made conclusorily in a litigation affidavit,

that Dorrance’s conduct "negatively impacted" her performance is

completely undermined by her own testimony of the events. When

Dorrance cut her from the team, Jennings testified that she was

shocked and hysterically upset at being cut because she thought she

had been improving as a player. She thought she had done well, doing

everything she could to become a better player under Dorrance’s

direction. In Jennings’ own words, "I was not expecting to get cut. I

was expecting [Dorrance] to say, ‘You know, you’ve improved,’ this

and this. I thought I had done well. . . . I was, you know, making

every possible attempt to do what he had asked." (J.A. 1388.) This

testimony hardly depicts a player who has been sexually harassed to

the point of being denied the educational opportunity of playing on

the team. The majority’s effort to depict the environment on the soccer team as one that denied Jennings (or any other player, for that

matter) the benefits of playing soccer is belied by this testimony. 

Furthermore, Jennings’ grade point average progressively

improved during her two seasons on the team. Her cumulative GPA

at the end of her freshman year was 1.539, at the end of the 1997

summer sessions it was 1.903, at the end of the fall 1997 semester it

was 1.964, and at the end of the 1998 spring semester, when she was

cut from the team, it was 2.022. (J.A. 1449.) If a decline in grades is

evidence of discriminatory impact, then an improvement in grades

should be evidence otherwise. Cf. Davis, 526 U.S. at 652 (stating that

even "a mere decline in grades" is insufficient to prove that the

alleged harassment has deprived a student of access to school

resources). A player, who not only does not leave a team or school,

but also has a willingness or indeed a growing desire to remain with

the team or school, must surely have to make an extraordinary showing to sustain a Title IX claim. 

The majority fails to confront the legal consequences that flow

from the undisputed fact that Jennings’ evidence consists of (1) only

52 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
two direct verbal comments made over the course of two years, and

(2) second-hand comments that neither paint women in a negative or

demeaning light, nor constitute anything approaching sexual

advances, threats, coercion, or intimidation. In the face of her teammates’ graphic, detailed, and open descriptions of their sexual

exploits, Jennings complains of Dorrance going too far in his teasing.

But however this environmental language is characterized, it falls

woefully short of elevating the two verbal comments directed at Jennings to a level at which one could conclude that Jennings was denied

the benefits of playing soccer for UNC. As Jennings’ own testimony

provides, it was her substandard conditioning, performance, and

grades that did that. 

IV

Jennings’ Title IX claim must fail for another, independent reason.

Dorrance’s comments were not gender-based, in that they were not

made because Jennings was a woman. Title IX prohibits discrimination "on the basis of sex." 20 U.S.C. § 1681(a). A person "is harassed

or otherwise discriminated against [‘on the basis of’] his or her sex

if, ‘but for’ the employee’s sex, he or she would not have been the

victim of the discrimination." Wrightson v. Pizza Hut, 99 F.3d 138,

142 (4th Cir. 1996). "The critical issue" is "whether members of one

sex are exposed to disadvantageous terms or conditions . . . to which

members of the other sex are not exposed." Harris, 510 U.S. at 25

(Ginsburg, J., concurring).

The direct harassment of which Jennings complains was in no way

related to her gender. Dorrance asked, "What about Trim’n?", not

because Jennings is a woman, but because he and a teammate wished

to engage Jennings in a conversation about her dating life. Her gender

was irrelevant to the question. Even more plainly, Dorrance did not

ask Jennings about her sex life in December 1996 because of her gender, but because he was trying to discover the cause of Jennings’ substandard academic performance. Jennings’ gender played no role in

Dorrance’s question. 

Furthermore, there is no evidence on the record from which to infer

that "but for" Jennings’ gender, Dorrance would have refrained from

teasing Jennings about her dating life and from asking whether her

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 53
sex life was affecting her grades. An integral attribute of Dorrance’s

coaching style was his willingness to engage his players on a personal

and frank level. If Dorrance was then the coach of the men’s soccer

team, he would just as surely have teased his male players about their

weekends with their girlfriends as he lightly teased Jennings about her

weekend with her boyfriend. Such teasing about a player’s social life

is the norm on any collegiate athletic team, whether male or female.

Indeed, Jennings had the opportunity to present evidence that Dorrance treated women differently than men, as Dorrance simultaneously coached both the men’s and women’s soccer teams at UNC

from 1979 to 1988. But the record remains silent about any such difference. 

In addition, there is no evidence that Dorrance’s inquiry about Jennings’ social life was gender-based. Responsible coaches, whether of

a men’s or women’s athletic team, search for the cause of a player’s

borderline academic ineligibility, including whether the player’s

social life is interfering. While Dorrance posed his question too

crassly and personally, the question nonetheless was a grade-centered

inquiry and not an inquiry made because Jennings was a woman.

There is no evidence on the record that "but for" Jennings’ gender,

Dorrance would not have teased about her weekend or asked whether

her sex life was affecting her grades. 

As for the second-hand sexual banter, its relevance becomes yet

more remote when considering whether Jennings was exposed to the

banter because of her gender. There is no evidence that distinguished

her environment from a male environment, where players would

undoubtedly hear the same banter. She was exposed because she was

a member of the team, not because she was a woman. At the beginning of oral argument, Jennings’ counsel conceded that there would

be no case if every fact were the same except that the team was full

of male players "because [in that hypothetical] it would not be gender

based." This concession is fatal because it necessarily relied on a further concession — that the evidence, standing alone, could not show

that Jennings was discriminated against because of her sex.

Moreover, it would be ridiculous to infer that Dorrance’s comments were motivated by general hostility toward the presence of

women on a women’s soccer team, when he was the coach of the

54 JENNINGS v. UNIVERSITY OF NORTH CAROLINA
team. See Oncale, 523 U.S. at 80 (stating that when the harassing conduct is not motivated by sexual desire, an inference of gendermotivated harassment may still be derived if a victim "is harassed in

such sex-specific and derogatory terms . . . as to make it clear that the

harasser is motivated by general hostility to the presence of women

[or men] in the [educational setting]"). Indeed, Dorrance has been the

head coach of the women’s team for 27 years (since 1979), leading

his players to 19 national championship titles. This duration and success rate makes any inference that Dorrance is generally hostile to

young women soccer players even more preposterous. 

"Whatever evidentiary route the plaintiff chooses to follow, he or

she must always prove that the conduct at issue was not merely tinged

with offensive sexual connotations, but actually constituted ‘discrimination [on the basis of sex].’" Oncale, 523 U.S. at 81. The evidentiary

route that Jennings has chosen, for the reasons given, does not prove

discrimination "on the basis of sex." See 20 U.S.C. § 1681(a). 

V

Jennings seeks to hold Dorrance and Ehringhaus personally liable

for sexual harassment under 42 U.S.C. § 1983, basing her claim on

her Fourteenth Amendment equal protection right to be free from sexual harassment in educational settings. The Equal Protection Clause

confers a right to be free from gender discrimination that is

not substantially related to important governmental objectives. Applying this precept, courts have held that intentional sexual harassment of employees by persons acting

under color of state law violates the Fourteenth Amendment

and is actionable under § 1983. Courts may apply the standards developed in Title VII litigation to similar litigation

under § 1983. 

Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994) (citations and

quotation marks omitted). 

Because Jennings has failed to demonstrate that Dorrance’s language was so severe or pervasive as to deny her the opportunity to

play soccer for UNC, it follows that her § 1983 claim must also fail.

JENNINGS v. UNIVERSITY OF NORTH CAROLINA 55
VI

Participation in intercollegiate athletics involves, of necessity, a

level of physical and mental training that toughens a player in competition. It is not the same type of training that attends participation in

a chamber orchestra or a debate team. Driving players to reach

beyond their physical limits often involves yelling, encouragement,

and condemnation. We can hardly apply the standards of the classroom or the courtroom to the language of the athletic field. 

Of course, the environment cannot provide a cover for discrimination, including sexual harassment. In disposing of a case as this, we

must discern the difference without imposing a civility code. 

In the context of this case, Title IX presents the narrow issue of

whether a player — in this case Jennings — was denied the benefits

of the soccer team because of Coach Dorrance’s comments. It is crystal clear that she did not think so until after she was cut from the team.

From her anger and disappointment in being cut — concededly not

because of sexual discrimination — she pursues this unfortunate lawsuit to complain about vulgar language that surely did offend her, and

rightfully so. But Title IX requires more. 

For these reasons, I would affirm the judgment of the district court.

Judge Williams has authorized me to indicate that she joins in this

opinion.

56 JENNINGS v. UNIVERSITY OF NORTH CAROLINA