PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 19-3275

__________

JOHN J. HALL; JEANETTE A. HALL, as administrators and

personal representatives of the Estate of Karlie A. Hall,

and in their own right as decedent's heirs-at-law,

 Appellants

v.

MILLERSVILLE UNIVERSITY; SARA WIBERG, 

individually and as an employee of Millersville University; 

ACACIA NATIONAL FRATERNITY; ACACIA 

FRATERNITY CHAPTER NUMBER 84; COLIN 

HERBINE, individually and as an agent of Acacia Fraternity 

Chapter No. 84; JACK MILITO, individually and as an agent 

of Acacia Fraternity Chapter No. 84; NICHOLAS HENCH, 

individually and as an agent of Acacia Fraternity Chapter No. 

84; SEAN EBERT, individually and as an agent of

Acacia Fraternity Chapter No. 84; NIGALE QUILES, 

individually and as an agent of Acacia Fraternity Chapter No. 

84; JOHN DOES #1-5, individually and as an agents of 

Acacia Fraternity Chapter No. 84

__________

On Appeal from the United States District Court
2

for the Eastern District of Pennsylvania

(District Court Civil No. 5-17-cv-00220)

District Judge: Honorable Edward G. Smith

Argued October 14, 2021

BEFORE: SHWARTZ, NYGAARD, and FISHER, 

Circuit Judges

(Filed: January 11, 2022)

Brian D. Kent

M. Stewart Ryan

Laffey Bucci & Kent

1100 Ludlow Street, Suite 301

Philadelphia, PA 19107

Counsel for Appellants

James P. Davy [Argued]

P.O. Box 15216

Philadelphia, PA 19125

Counsel for Appellant Jeanette A. Hall

Josh Shapiro, Attorney General

Claudia M. Tesoro [Argued]

Office of Attorney General of Pennsylvania

1600 Arch Street, Suite 300

Philadelphia, PA 19103 
3

Kevin R. Bradford

Stephen R. Kovatis

Office of Attorney General of Pennsylvania

21 South 12th Street, 3rd Floor

Philadelphia, PA 19107

Counsel for Appellees

Margaret H. Zhang

Women's Law Project

125 South 9th Street, Suite 300

Philadelphia, PA 19107

Counsel for Amicus Appellants

__________

OPINION OF THE COURT

__________

NYGAARD, Circuit Judge.

John and Jeanette Hall (“the Halls”) sued Millersville 

University (“Millersville”) under Title IX after their daughter, 

Karlie Hall, was murdered in her dorm room by her boyfriend, 

Gregorio Orrostieta. Despite finding genuine issues of material 

fact for each element of the Halls’ Title IX claim, the District 

Court granted summary judgment in Millersville’s favor, 

holding that Millersville lacked notice it could face liability 
4

under Title IX for the actions of a non-student guest. The Halls 

appeal, and this Court must now consider whether Millersville 

had adequate notice it could be liable under Title IX for its 

deliberate indifference to known sexual harassment 

perpetrated by a non-student guest. We hold Millersville had 

such notice. 

Title IX’s plain terms notify federal funding recipients 

that they may face monetary liability for intentional violations 

of the statute. Moreover, it is an intentional violation of Title 

IX’s terms for a funding recipient to act with deliberate 

indifference to known sexual harassment where the recipient 

exercises substantial control over the context in which the 

harassment occurs and the harasser, even if they are a third

party. Given this framework, we conclude the text of Title IX 

provides Millersville and other federal funding recipients with 

adequate notice. We must therefore reverse and remand. 

Nevertheless, because we agree with the District Court that 

genuine issues of material fact exist for each element of the 

Halls’ Title IX claim, we will affirm the District Court’s order 

to the extent it holds these factual disputes preclude summary 

judgment in Millersville’s favor.

I. BACKGROUND

Because this case is fact-laden, we must encumber the

reader with much detail. 

A. Origins of Karlie’s Relationship with Orrostieta

Karlie Hall began dating Orrostieta around March of 

2014, while Karlie was a senior in high school. The two 

continued dating through the summer of 2014, and by 
5

summer’s end Orrostieta was visiting Karlie daily and would 

often spend the night with Karlie in her room. At that time, 

Karlie lived with her mother, Jeanette, and her twin sister, 

Kristen, at Jeanette Halls’ home. 

During this period, and while at Jeanette’s home, 

Orrostieta exhibited abusive behavior towards Karlie. On one 

occasion, Kristen overheard Karlie yell “you hit me” back at 

Orrostieta after he had screamed at Karlie while she showered. 

Joint Appendix at 11, 151, 158. Additionally, during a party 

thrown at Jeanette’s home, Kristen heard banging coming from 

a room Karlie and Orrostieta were locked in, though the two 

eventually came out as if nothing had happened. 

In August of 2014, Karlie and Kristen enrolled in 

Millersville and moved from their mother’s home into their 

respective dormitories, with Karlie living in Bard Hall and

Kristen in Gaige Hall. While at Millersville, Karlie maintained 

her relationship with Orrostieta and often invited him into Bard 

Hall as her guest. On occasion, Karlie would bring Orrostieta 

into Bard Hall through a rear entrance that she and her 

roommate, Tina Flexer, both found convenient. 

B. October 4th-5

th Incident of Dating Violence

As Karlie’s first semester at Millersville continued, so 

too did Orrostieta’s visits, and his abuse.1 On October 4th, 

1 Orrostieta exhibited abusive behavior towards Karlie, as well 

as Karlie’s friends, prior to the October 4th incident in Karlie’s 

dorm room. In September of 2014, Orrostieta destroyed one of 

Karlie’s stuffed animals in an argument. Also on October 4th, 

after losing track of Karlie at a party, Orrostieta grabbed Tina 
6

2014, the day after Karlie and Kristin’s 18th birthday, 

Orrostieta visited and stayed with Karlie in the room she shared 

with Tina Flexer. That night, Karlie and Orrostieta went to a 

party with Flexer, though Flexer left early and went back to 

Bard Hall. When Karlie and Orrostieta returned in the early 

hours of October 5

th, Flexer noticed that Karlie had been 

crying. Later that night, Flexer approached Karlie in the 

hallway outside their dorm room and Karlie explained she had 

been crying because she had been in a verbal fight with 

Orrostieta. Sara Wiberg, the resident assistant for Karlie’s 

floor, also noticed Karlie’s crying and questioned Flexer about 

Karlie in the hallway. As Wiberg spoke with Flexer, the two 

heard rustling sounds coming from inside Karlie’s room and 

eventually heard Karlie scream “ow.” Joint Appendix at 12, 

152, 160, 165. Wiberg then knocked on Karlie’s door, which 

Orrostieta answered. 

When Orrostieta opened the door, Karlie was in bed 

with her back to Wiberg. Wiberg then spoke with Orrostieta 

about Karlie’s yell and the rustling noises. Although Orrostieta 

was not direct in his responses, he admitted things between him 

and Karlie “got a little physical” when he attempted to force

himself into her bed. Joint Appendix at 12-13, 153, 160, 166.

Orrostieta then exited Karlie’s room and waited in the hallway 

while Wiberg went in to check on Karlie. Once in the room, 

Wiberg saw Karlie had been crying and that her face was red 

and puffy. Karlie informed Wiberg that she wanted Orrostieta 

to leave but did not say much else. Wiberg then left Karlie’s 

room.

Flexer by her shoulders, threatened her, and forcefully shook 

her while demanding to know Karlie’s location. 
7

Once outside, Orrostieta begged Wiberg to stay on 

campus. At that time, Millersville had a policy that if a student 

no longer wants their guest on campus, the guest must leave. 

Wiberg thus had Orrostieta gather his things from Karlie’s 

room and go with her to another resident assistant’s room, 

where Wiberg and the other resident assistant reiterated 

Millersville’s guest policy to Orrostieta and ultimately decided 

to call Millersville University Police to assist in his removal. 

After receiving a call about a subject refusing to leave 

campus, Millersville police officer Brian Liddick arrived at 

Bard Hall. Once there, Liddick spoke with Orrostieta, who 

Wiberg recalls was “very persistent on not leaving” and “still 

very upset.” Joint Appendix at 13, 153, 161, 166. Orrostieta 

explained to Liddick that he had not touched or hit Karlie, and 

that he did not have a ride home. Liddick then contacted 

Orrostieta’s friend to arrange for a pickup and drove Orrostieta 

to a nearby gas station. Despite taking notes on his interactions 

with Wiberg and Orrostieta, Liddick did not create an incident 

report immediately after dropping off Orrostieta. Liddick’s 

incident report for this event was made on February 11, 2015,

at the direction of a supervisor in the wake of Karlie’s murder.

Following Orrostieta’s removal from campus, Wiberg 

repeatedly returned to Karlie’s room to check on Karlie. At one 

point in the evening, Flexer recalls Wiberg observing Karlie’s 

injury and getting an ice pack for Karlie’s face. After she

finished checking on Karlie, Wiberg drafted an incident report 

pursuant to her duties as a resident assistant and to fulfil her 

obligations under Millersville’s Title IX policy, which required 

that a report be made after observing an incident of domestic 

or dating violence. Wiberg’s report included a general 

description of the events that transpired between Karlie and 
8

Orrostieta between the evening of October 4th and early 

morning hours of October 5th. Wiberg’s incident report was 

received by Ron Wiafe, Millersville’s Assistant Director of 

Judicial Affairs and Deputy Title IX Coordinator, as well as 

Alison Sehl, the Area Coordinator at Millersville. Wiafe 

looked over Wiberg’s report and then filed it away. Sehl did 

not forward Wiberg’s report and did not discuss it with anyone 

until after Karlie’s murder.

 

After Wiberg left, Flexer returned to the dorm room and 

spoke with Karlie alone. Karlie initially kept her back to 

Flexer, but Flexer eventually noticed that “there was something 

weird with her eye” because it “was really red.” Joint Appendix

at 13-14, 154, 161. When Flexer asked her what happened, 

Karlie stated Orrostieta had pressed the heel of his hand on 

Karlie’s eye and had pushed her down into a pillow. Flexer 

doubted this story and believed that Orrostieta had hit Karlie, 

rather than merely pushed her. For that reason, the next day 

Flexer called her mother, Renea Flexer, and described Karlie’s 

injury and what she had observed between Karlie and 

Orrostieta. Renea then called Millersville University Police, 

Millersville counseling department, and Alison Sehl to report 

Karlie’s domestic assault and black eye. Each time Renea 

called she was told that nothing could be done without a 

complaining witness. 

Karlie tried to hide her injury from others in the week 

following the October 4th incident. During that week, Karlie 

avoided her sister Kristen, she rarely left her room, and she 

missed class. 

C. Karlie and Orrostieta’s Relationship post October 4th

and Karlie’s Murder
9

In the aftermath of the October 4th incident, Karlie and 

Orrostieta’s relationship was “on again, off again.” Joint 

Appendix at 155, 162. They were still dating as of 

Thanksgiving 2014, and Orrostieta lived with Karlie at Jeanette 

Hall’s house while Karlie was there during her winter break. 

At some point during this winter break, Karlie and Orrostieta

returned to her dorm room in Bard Hall and were discovered 

by Wiberg. Although Karlie was allowed to be at Bard Hall, 

Millersville policy did not allow dorm room guests over winter 

break, and so Wiberg had Orrostieta removed. 

At the end of the break, Karlie returned to Millersville 

to begin her second semester. Shortly thereafter, on February 

7

th, 2015, Karlie attended an Acacia fraternity party with 

Orrostieta and a group of friends. Karlie and Orrostieta fought 

during the party, though they later returned to her room in Bard 

Hall together. After Karlie and Orrostieta returned, other 

residents of Bard Hall heard the sounds of furniture moving in 

Karlie’s room, as well as the sound of a female voice screaming 

for help. In response to these sounds, Wiberg knocked on 

Karlie’s door but heard nothing and did not further pursue the 

matter. That night Orrostieta killed Karlie through 

“strangulation and multiple traumatic injuries,” and potentially 

sexually assaulted her. Joint Appendix at 16, 157, 163-64.

After police investigation, Orrostieta was arrested and later 

convicted of third-degree murder. 

D. Relevant Millersville Policies

Throughout Karlie’s enrollment, Millersville 

maintained a Title IX Policy. This policy covered all areas of 

Millersville operations, programs, and sites, and included the 

conduct of employees, students, visitors/third parties, and 
10

applicants. This policy defined sexual misconduct to include 

dating and domestic violence, and any conduct constituting 

sexual misconduct under this policy was considered a violation 

of Title IX. 

Pursuant to Millersville’s Title IX Policy, any Deputy 

Title IX Coordinator or Area Coordinator was required to

report any instance of sexual misconduct to the Title IX 

Coordinator or other designated employee and ensure that the 

report was actually received. Under this policy, Wiafe and 

Sehl, as Deputy Title IX Coordinator and Area Coordinator, 

respectively, were thus required to forward Wiberg’s report to 

Millersville’s Title IX Coordinator and ensure its receipt. 

Neither did so. Millersville’s Title IX Policy also required that 

victims of domestic or dating violence on campus be contacted 

by someone at Millersville. Karlie was not contacted by 

someone at Millersville after Wiberg’s report of the October 

4

th incident. 

Outside of its Title IX Policy, Millersville also 

maintained policies for controlling who was allowed on its 

campus. For example, Millersville had a guest policy that

required overnight guests, such as Orrostieta, to check in with 

a student employee at the entrance of any dormitory, sign a 

logbook, and leave a form of identification during their stay. 

The same guest policy also stated that no individual guest was 

permitted to stay in a dormitory for more than three 

consecutive days, or eight total days in one month. Millersville 

also controlled who entered its residence halls by limiting 

access to those with a student identification card and by

requiring that visitors and students not assigned to a designated 

residence hall be escorted by a valid resident. Additionally, 

Millersville had the ability to issue “No Trespass Orders,” 
11

which would ban individuals from being on Millersville’s 

campus. 

II. JURISDICTION & STANDARD OF REVIEW

The District Court had subject-matter jurisdiction under 

28 U.S.C. § 1331. We have appellate jurisdiction under 28 

U.S.C. § 1291. 

Our review of the District Court’s grant of summary 

judgment is plenary. Dempsey v. Bucknell Univ., 834 F.3d 457, 

467 (3d Cir. 2016). Moreover, our review of the District 

Court’s legal rulings is de novo. Shelton v. Bledsoe, 775 F.3d 

554, 559 (3d Cir. 2015). In reviewing the summary judgment 

record, we apply the same standard as the District Court. Id. To 

prevail on a motion for summary judgment, the moving party 

must demonstrate “that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter 

of law.” Fed R. Civ. P. 56(a). Because the Halls were the 

nonmoving party, we must review the record in the light most 

favorable to them and draw all reasonable inferences in their 

favor. Shelton, 775 F.3d at 559. 

III. DISCUSSION

A. Notice of Liability

The first issue we must address is whether, as a matter 

of law, Millersville could not be held liable under Title IX 

because it lacked notice that its deliberate indifference to 

sexual harassment perpetrated by a non-student guest could 

result in Title IX liability. 
12

The District Court determined Millersville lacked the 

requisite notice because neither this Court nor the Supreme 

Court had extended Title IX liability to situations in which a 

federal funding recipient was deliberately indifferent to sexual 

harassment committed by a student’s non-student guest. In 

reaching this holding, the District Court reviewed Title IX’s 

regulatory scheme, state common law, and Title IX guidance 

materials published by the Office for Civil Rights. The District 

Court found that, at most, these materials “put educational 

institutions on notice that they face potential liability for the 

misconduct of their students or other parties whom they play a 

critical role in connecting with the student, e.g., a work-study 

program, a student loan agency, or a school-invited athlete or 

speaker.” Joint Appendix at 57. As Orrostieta was a nonstudent guest invited by Karlie and not by Millersville, 

however, the District Court concluded these materials did not 

provide Millersville with sufficient notice to support a cause of 

action under Title IX. 

On appeal, Millersville maintains the District Court 

correctly decided this issue because no court has extended Title 

IX liability to instances of sexual harassment committed by a 

student’s non-student guest, and neither Title IX nor any 

administrative guidance materials contemplate Title IX 

liability for the same. The Halls, on the other hand, contend the 

District Court’s holding was error. They argue the Supreme 

Court has already established that federal funding recipients 

such as Millersville could face Title IX liability for their 

deliberate indifference to harassment committed by third 

parties, so long as the recipient has control over the harasser 

and context of harassment. The Halls thus maintain the District 

Court erred by categorically rejecting liability because of 

Orrostieta’s status as a non-student guest, rather than analyzing 
13

Millersville’s control over both Orrostieta and the context of 

Karlie’s harassment. After a careful review of the record, 

precedent, and the parties’ briefing, we agree with the Halls. 

Title IX provides that “[n]o person in the United States 

shall, on the basis of sex, be excluded from participation in, be 

denied the benefits of, or be subjected to discrimination under 

any education program or activity receiving Federal financial 

assistance.” 20 U.S.C. § 1681(a). To enforce this prohibition 

on intentional sex-based discrimination, the Supreme Court 

has recognized that Title IX implies a private right of action 

and that monetary damages are available in such suits. Jackson 

v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005); see

Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992). 

Because Title IX is legislation enacted pursuant to Congress’s 

authority under the spending clause, however, “private 

damages actions are available only where recipients of federal 

funding had adequate notice that they could be liable for the 

conduct at issue.” Davis ex rel. v. Monroe Cnty. Bd. of Educ., 

526 U.S. 629, 640 (1999). “When Congress enacts legislation 

under its spending power, that legislation is ‘in the nature of a 

contract: in return for federal funds, the States agree to comply 

with federally imposed conditions.’” Jackson, 544 U.S. at 181-

82 (quoting Pennhurst State Sch. and Hosp. v. Halderman, 451 

U.S. 1, 17 (1981)). Where the State is unaware of the 

conditions or unable to ascertain what is expected of it, there 

can be no knowing acceptance. Pennhurst, 451 U.S. at 17. 

Accordingly, if the federal funding recipient lacks notice it 

could be held liable for certain conduct, an implied right of 

action under Title IX will not lie under Pennhurst.

Pennhurst’s notice requirement “does not bar a private 

damages action under Title IX where the funding recipient 
14

engages in intentional conduct that violates the clear terms of 

the statute.” Davis, 526 U.S. at 642. This is because Title IX’s 

plain language unquestionably places a duty on funding 

recipients to not discriminate based on sex, and as such, the 

text of Title IX gives recipients notice that intentional 

discrimination will result in liability under the statute. 

Franklin, 503 U.S. at 74-75; see also Jackson, 544 U.S. at 182. 

It is for this reason that the Supreme Court has, throughout its 

Title IX jurisprudence, rejected arguments that Pennhurst bars 

a particular plaintiff’s cause of action after finding that a 

funding recipient’s conduct constituted an intentional violation 

of Title IX.

Take Gebser, for example, where the Supreme Court 

dealt with whether an implied right of action for monetary 

damages under Title IX could lie for a teacher’s sexual 

harassment of a student. Gebser v. Lago Vista Indep. Sch. Dist., 

524 U.S. 274, 277 (1998). There, the appellant argued that

federal funding recipients could be subject to monetary 

liability under Title IX for their employees’ sexual harassment 

under theories of respondeat superior and constructive notice. 

Id. at 282-83. The Supreme Court rejected these arguments 

under Pennhurst, however, noting that “[i]f a school district’s 

liability for a teacher’s sexual harassment rests on principles of 

constructive notice or respondeat superior, it will likewise be 

the case that the recipient of funds was unaware of the 

discrimination.” Id. at 287. Without awareness or actual 

knowledge of discrimination, the funding recipient could not 

have intentionally violated the clear terms of Title IX, and thus 

the terms of Title IX could not have provided adequate notice. 

Id. at 288. That said, the Supreme Court determined that a 

private right of action for monetary damages under Title IX 

based on a teacher’s sexual harassment could lie, albeit in 
15

limited circumstances where the funding recipient was aware 

of the discrimination, had authority to address it, but remained 

deliberately indifferent. Id. at 290-91. When these 

circumstances were present, the Court found, a funding 

recipient intentionally acted in violation of Title IX’s terms. 

Id.; see also Davis, 526 U.S. at 642-43 (explaining the

Supreme Court’s holding in Gebser). 

Next, in Davis, the Supreme Court held that Pennhurst 

did not bar a plaintiff’s cause of action for a funding recipient’s 

deliberate indifference to student-on-student sexual 

harassment. Davis, 526 U.S. at 639-44. On appeal, the funding 

recipient argued that Pennhurst barred such a cause of action 

because Title IX provided no notice that funding recipients 

could face monetary liability for harm arising from student-onstudent harassment. Id. at 640. The Supreme Court disagreed. 

Id. at 640-649. Tracing its Title IX jurisprudence, the Supreme 

Court reiterated that Pennhurst did not bar a private damages 

action under Title IX where the funding recipient engages in 

intentional conduct that violates the clear terms of the statute. 

Id. at 642 (citing Franklin, 503 U.S. at 74-75). Thus, to 

determine whether the Pennhurst notice requirement applied in 

Davis, the Supreme Court had to ascertain whether the funding 

recipient’s conduct—deliberate indifference to known studenton-student harassment—constituted an intentional violation of 

Title IX. Id. at 643. The Supreme Court found that it did, but 

only in limited circumstances where the recipient had control 

over the harasser and the context of harassment. Id. at 645. This

control was necessary because without it a funding recipient’s 

deliberate indifference could not “subject” its students to 

harassment in violation of Title IX’s plain terms. Id. at 643-46.

Ultimately, then, because the Supreme Court determined that 

the funding recipient’s alleged deliberate indifference 
16

constituted an intentional violation of Title IX’s terms, the 

Court determined that Pennhurst did not apply and that the 

recipient had adequate notice of liability. Id. 

Lastly, in Jackson the Supreme Court held that 

Pennhurst did not bar a plaintiff’s Title IX claim for retaliation 

because the defendant’s conduct constituted an intentional 

violation of Title IX’s terms. Jackson, 544 U.S. at 183. Much 

like the funding recipient in Davis, the recipient in Jackson 

argued that Pennhurst precluded liability for a retaliation claim 

since the recipient lacked notice it could be held liable for 

retaliating against those who complain of Title IX violations. 

Id. at 182. And much like in Davis, the Supreme Court 

disagreed. Id. Because retaliation is “intentional conduct that 

violates the clear terms of the statute,” Pennhurst did not apply 

as “Title IX itself therefore supplied sufficient notice.” Id. at 

183. 

Against this backdrop, and for the reasons we set forth 

herein, we conclude that the District Court erred in holding that 

Millersville lacked adequate notice of liability that it could be 

held monetarily liable under Title IX for its deliberate 

indifference to a nonstudent’s conduct. The Supreme Court 

made clear in Davis that a funding recipient may be liable for 

acts of sexual harassment by individuals other than students. 

526 U.S. at 643-46. Though Davis concerned only deliberate 

indifference to known student-on-student harassment, the 

Court’s holding was not based upon the classification of the 

harasser as a student, guest, or other type of third party. See 

also Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170 

(10th Cir. 2007) (nonstudent football recruits). Instead, the 

Court’s focus was on whether the funding recipient had control 

over the harasser and the context of the harassment since the 
17

funding recipient can only “subject” students to discrimination 

under Title IX if it has control over the harasser and remains 

deliberately indifferent to the harasser’s actions. Davis, 526 

U.S. at 644-46. 

The record shows that Millersville knew, and intended, 

for its Title IX policies to apply to nonstudents. Millersville’s 

2014 Title IX policy, which was in place while Karlie was 

enrolled, defined sexual misconduct to include sexual assault 

and intimate partner/dating violence, and also required that 

incidents of sexual misconduct be reported to Millersville’s 

Title IX Coordinator. More importantly, as admitted by 

Millersville’s corporate designee, this policy “cover[ed] all 

areas of University operations, programs, sites, and include[d] 

the conduct of employees, students, visitors/third parties, and 

applicants.” District Court Docket No. 148-20, Deposition of 

Elizabeth Swantek, 37:5-39:16. Millersville also believed that

sexual misconduct as defined in its 2014 Title IX policy 

violated Title IX. Millersville’s own Title IX policy thus 

contemplated Title IX liability could result from the actions of 

third parties such as “visitors” like Orrostieta. Although we do 

not rely on Millersville’s 2014 Title IX policy for our holding 

or as an indicium of congressional notice, “we do find support 

for our reading of Title IX in the fact that [Millersville itself] 

rendered an analogous interpretation.” Davis, 526 U.S. at 647. 

We find additional support for our holding in the same 

Office for Civil Rights guidance materials considered by the 

District Court. Throughout, the Office for Civil Rights explains 

that sexual harassment by third parties could result in liability. 

See e.g., Office for Civil Rights; Sexual Harassment Guidance: 

Harassment of Students by School Employees, Other Students, 

or Third Parties, 62 Fed. Reg. 12034-01 (Mar. 13, 1997) (“The 
18

Office for Civil Rights has long recognized that sexual 

harassment of students engaged in by school employees, other 

students, or third parties, is covered by Title IX.”); id. at 12038 

(“Sexually harassing conduct . . . by an employee, by another 

student, or by a third party. . . .”); id. at 12039 (“Title IX 

protects any ‘person’ from sex discrimination; accordingly 

both male and female students are protected from sexual 

harassment engaged in by a school’s employees, other 

students, or third parties.”).

Despite these clear references to liability resulting from 

third-party harassment, the District Court focused solely on the 

section that states “[s]exually harassing conduct of third 

parties, who are not themselves employees or students at the 

school (e.g., a visiting speaker or members of a visiting athletic 

club) can also cause a sexually hostile environment in school 

programs or activities.” Id. at 12040. Given this language, the 

District Court concluded that, at most, funding recipients had 

notice they could face liability from harassment committed by 

parties that the university had invited, like a visiting athlete or 

professor. We believe this reading was error. Because the 

“visiting speaker or members of a visiting athletic club” 

language was preceded by an “e.g.” it should be read as a list 

of illustrative examples, not an exhaustive list of all third 

parties whose harassment creates liability. Antonin Scalia & 

Bryan A. Garner, Reading Law (2012), at 132; Andrew M. v. 

Del. Cnty. Office of Mental Health & Mental Retardation, 490 

F.3d 337, 347 (3d Cir. 2007) (“Clearly this list of examples is 

not exclusive, hence the ‘e.g.’”). The District Court’s 

interpretation of this language is also belied by other sections 

of the guidance. In the section subtitled “Application of 

Guidance to Harassment by Third Parties” the Office for Civil 

Rights notes that “[s]everal commenters stated that it was 
19

unclear whether the Guidance applies if a student alleges 

harassment by a third party, i.e., by someone who is not an 

employee at the school.” Office for Civil Rights; Sexual 

Harassment Guidance: Harassment of Students by School 

Employees, Other Students, or Third Parties, 62 Fed. Reg. at 

12036. The Office of Civil Rights addressed these comments, 

explaining:

The Guidance clarifies that the principles 

in the Guidance apply to situations in 

which, for example, a student alleges that 

harassment by a visiting professional 

speaker or members of a visiting athletic 

team created a sexually hostile 

environment. . . . The applicable 

standards have not changed, but the final 

Guidance clarifies that the same standards 

also apply if adults who are not employees 

or agents of the school engage in 

harassment of students.

Id. (emphasis added). Although our holding does not depend 

on these guidance materials, taken together these materials 

should have given Millersville sufficient notice that third-party

harassment fell within the scope of Title IX’s proscriptions. 

Further support for our holding today can be found in 

the Title IX decisions of other Circuit Courts of Appeals. While 

none of our sister circuits have addressed the issue raised on 

appeal here, they have consistently held that Pennhurst does 

not bar suit when a funding recipient intentionally violates 

Title IX’s plain terms. See e.g., Parker v. Franklin Cnty. Cmty. 

Sch. Corp., 667 F.3d 910, 920-21 (7th Cir. 2012); Doe v. 
20

Edgewood Indep. Sch. Dist., 964 F.3d 351, 358 (5th Cir. 2020) 

(“Title IX is contractual in nature, not banning discrimination 

outright but conditioning an offer of federal funding on a 

promise by the recipient not to discriminate. Put simply, there 

are strings attached. And if a school that receives federal 

funding violates the no sex discrimination condition, it may be 

held liable for money damages.”) (quotations and footnotes 

omitted). As such, the Title IX decisions of our sister circuits 

have often analyzed the alleged conduct of funding recipients 

to determine whether their conduct constitutes an intentional 

violation of Title IX’s terms. See, e.g., Doe v. Fairfax Cnty.

Sch. Bd., 10 F.4th 406, 410-412 (4th Cir. 2021) (Wynn, J.

concurring) (addressing dissent’s argument that Pennhurst 

barred liability because Title IX did not provide notice of 

liability for pre-notice sexual harassment, and explaining that 

a funding recipient’s failure to respond after learning of a 

single incident of sexual assault can “subject” a student to 

discrimination in violation of Title IX’s plain terms, and thus 

the text of Title IX provided sufficient notice).

As a final note, we write to address Millersville’s 

argument that our holding here will open the floodgates and

subject universities to unwarranted liability under Title IX for 

“anyone’s on-campus conduct resulting in the disruption or 

outright destruction of a student’s pursuit of her education.” 

Brief of Appellee at 36. While we recognize that this is a valid 

policy concern, the Supreme Court’s holding in Davis 

forecloses Millersville’s worry. To be liable under Title IX, the 

university would have to have “substantial control over both 

the harasser and the context in which the known harassment 

occurs.” Davis, 526 U.S. at 645. Moreover, the university 

would have to know of the harassment and ultimately respond 

in a manner that is “clearly unreasonable.” Id. at 648-49. We 
21

do not think it is likely that a university would have substantial 

control over any random third party who wanders onto an open 

campus and harasses students, nor it is likely that a university 

would have substantial control over all aspects of a campus 

which is open to the public. Id. at 649 (“A university might not, 

for example, be expected to exercise the same degree of control 

over its students that a grade school would enjoy.”). Even if the 

university had such control, however, if the university is not 

made aware of the third-party harassment or responds in a 

manner that is not clearly unreasonable, it will not face 

liability. Put simply, there is a high bar to establish liability for 

deliberate indifference under Title IX, and our holding today 

does little to lower that bar. 

B. Summary Judgment Evidence

Having found that Millersville had adequate notice of 

liability, we next turn our attention to the other issue raised on 

appeal: whether the trial court erred in finding that genuine 

issues of material fact existed for each element of the Halls’

deliberate indifference claim. The Halls contend the District 

Court got this issue right, and that the summary judgment 

record fully supports the District Court’s holding. Millersville 

disagrees and argues that the summary judgment record 

supports granting summary judgment in Millersville’s favor, 

because Millersville lacked control over Orrostieta and 

Karlie’s dorm room, and its actions did not constitute 

deliberate indifference. Moreover, Millersville asserts the 

District Court should not have even decided this issue and 

should have stopped its opinion as soon as it concluded that 

Millersville lacked notice of liability. 

To prevail on their Title IX claim, the Halls must show:
22

1) Millersville received federal funds; 

2) sexual harassment occurred; 

3) Millersville exercised substantial 

control over the harasser and the context 

in which the harassment occurred; 

4) Millersville had actual knowledge of 

the harassment; 

5) Millersville was deliberately 

indifferent to the harassment; and 

6) the harassment was so severe, 

pervasive, and objectively offensive that 

it deprived Karlie Hall of her access to the 

educational opportunities or benefits 

provided by the school. 

See Davis, 526 U.S. at 645-650. Here, there is no question that 

Millersville receives federal funding and that Orrostieta’s 

conduct constituted sexual harassment, and neither party 

claims otherwise. Brief of Appellee, 20 n. 16. Accordingly, to 

defeat Millersville’s motion for summary judgment, the Halls 

needed to show there were genuine issues of material fact as to 

the remaining elements. We find that the Halls have done so. 

i. Millersville’s Control over Orrostieta and Bard Hall

To start, we find there is sufficient evidence in the 

record to raise a genuine issue of material fact as to whether 

Millersville exercised substantial control over Orrostieta and 

the context in which Karlie’s harassment occurred. The record 

shows that Millersville maintained guest policies for its 

dormitories, which put rules in place for when guests like 

Orrostieta were allowed to stay overnight in Millersville’s 
23

dorms.2 Moreover, the record reveals that Millersville relied on 

these policies to justify exercising some control over Orrostieta 

when removing him from Bard Hall on multiple occasions: 

once after Karlie stated she wanted Orrostieta to leave on 

October 5th, and again after he was caught on campus with 

Karlie during her winter break. The record further discloses 

that Millersville had the ability to issue “No Trespass Orders” 

to keep third parties off of its campus, though the efficacy of 

such orders is in dispute. 

Nevertheless, Millersville argues that it is entitled to 

summary judgment on this element because Orrostieta’s status 

as a non-student meant Millersville lacked jurisdiction over 

him, and thus he could not be subjected to formal disciplinary 

action. This argument misses the mark. Whether Millersville 

had control over Orrostieta is not a limited inquiry into 

2 We recognize the record shows that Orrostieta may have 

bypassed these policies on previous occasions, given that 

Karlie had allowed him to enter through a rear entrance. 

Nothing in the record shows that Orrostieta entered through 

that rear entrance on October 4

th, or the night Karlie was 

murdered, however. Moreover, while this evidence may cut 

against the Hall’s claim that Millersville maintained control 

over Orrostieta and the context of Karlie’s harassment, it alone 

does not convince us that summary judgment for Millersville 

is proper. Our purview is to determine if there is a genuine 

dispute of material fact on an issue, not to weigh the evidence 

and act as a fact finder. Boyle v. Cnty. of Allegheny 

Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) As there is

evidence suggesting Millersville had control, this issue is best 

left for the jury. 
24

Millersville’s formal disciplinary authority, but a broader 

examination of the degree of control Millersville had over him 

and its ability to “take remedial action.” Davis, 526 U.S. at 644. 

Even assuming that formal disciplinary authority is required, 

however, we cannot find in Millersville’s favor. Millersville 

relied on its own policies to remove Orrostieta on two separate 

occasions, and it had the authority to issue a “No Trespass 

Order,” which Millersville admits “can be issued against 

anyone, and is meant to prevent the individual in question from 

accessing a specified location or the entire campus.” Brief of 

Appellee at 45. Given these facts, we conclude there is at least 

a genuine issue of material fact as to Millersville’s control over 

Orrostieta.3

Millersville also asserts that it is entitled to summary 

judgment on this element because it lacked control over the 

context of Karlie’s harassment, since it occurred in her private 

dorm room. As to this argument, we agree with the District 

Court. This case does not concern Karlie’s privacy; it concerns 

the control Millersville had over the context of Karlie’s 

harassment. Here, the record is replete with evidence sufficient 

3

In its briefing, Millersville recognizes that Title IX liability 

may arise in situations involving visiting speakers, visiting 

athletes, and other third parties who are “official guests of the 

school or college, or otherwise on the premises for a schoolrelated purpose.” Brief of Appellee at 31. This admission 

further cuts against Millersville’s argument that it lacked 

control over Orrostieta due to a lack of formal disciplinary 

authority. We fail to see how a school’s formal disciplinary 

authority could extend to these parties, who are neither 

employees nor students of the school, but at the same time fail 

to extend to a third party guest of a student.
25

to raise a genuine issue of fact as to Millersville’s control over 

its campus, which includes Karlie’s dorm room in Bard Hall.

Additionally, Millersville cites to Swanger v. Warrior 

Run Sch. Dist., 346 F. Supp. 3d 689 (M.D. Pa. 2018) to support 

its argument that the control needed to establish a deliberate 

indifference claim under Title IX is a causation requirement 

not met in this case. We disagree. The causation requirement 

mentioned in Swanger is nothing more than a restatement of 

the Supreme Court’s holding in Davis. Id. at 705-06. 

Moreover, the holding in Swanger was not based on causation, 

but was instead based on the district court’s conclusion that the 

school district in Swanger had acted in a manner that was not 

clearly unreasonable. Id. at 706. In short, Swanger does not 

change our analysis or alter our consideration of the record, 

which we must construe in the Halls’ favor, and which we find 

demonstrates a genuine dispute of material fact as to 

Millersville’s control over Orrostieta and the context of 

Karlie’s harassment.4

4 We similarly disagree with Millersville’s claim that “it is 

impossible to infer any causal connection between the October 

4 events . . . and Karlie’s murder,” as well as Millersville’s tacit 

attempt to shift the blame to Jeanette Hall for failing to notice 

Karlie’s abuse while Orrostieta lived with Karlie. Brief of 

Appellee at 46. Millersville seems to think the discussion of 

causation in Swanger means that Millersville could only face 

liability if its actions were the direct cause of Karlie’s murder. 

This is an incorrect understanding of Title IX. Millersville may 

face liability under Title IX for deliberate indifference that 

results in a student being excluded from participation in, being 

denied the benefits of, or being subjected to discrimination 

under its programs. 20 U.S.C. § 1681(a). The question is thus 
26

ii. Actual Notice

The record also leads us to conclude that there is a 

genuine issue of fact as to whether Millersville had actual 

notice of Karlie’s harassment. To establish liability for 

deliberate indifference under Title IX, a plaintiff must show 

that an “appropriate person” had actual notice of harassment. 

Gebser, 524 U.S. at 290. An appropriate person is “at a 

minimum, an official of the recipient entity with authority to 

take corrective action to end the discrimination.” Id. Moreover, 

this Court has held that an educational institution has actual 

notice of harassment if the institution “knows the underlying 

facts, indicating sufficiently substantial danger to students, and 

was therefore aware of the danger.” Bostic v. Smyrna Sch.

Dist., 418 F.3d 355, 361 (3d Cir. 2005) (quoting 3C Fed. Jury 

Prac. & Instr. § 177.36 (5th ed. 2001)). Here, based on the 

record before us, we find that a jury could reasonably conclude 

that appropriate persons at Millersville had actual notice of 

Karlie’s harassment. 

In particular, the record shows that the abuse and danger 

Karlie faced from Orrostieta were reported to several persons

at Millersville who had some authority to take corrective action

not whether Millersville’s alleged deliberate indifference 

caused Karlie’s murder, but whether its deliberate indifference 

to her harassment resulted in her being excluded from

participation in, denied the benefits of, or subjected to 

discrimination under Millersville’s education program. Given 

the record, we conclude that it is, in fact, possible for a jury to 

infer such a connection. 
27

in this case. For starters, Karlie’s harassment was reported to, 

and by, her resident assistant Sara Wiberg, who described

Karlie’s harassment in the report she drafted after the October 

4

th incident. This report stated that Wiberg heard Karlie 

“scream and yell ‘ow’” and that when Orrostieta answered the 

door, he admitted that things between him and Karlie “got a 

little physical.” District Court Docket No. 147-11. Wiberg’s 

report was sent to Millersville’s Deputy Title IX Coordinator, 

who had the responsibility to investigate reports of sexual 

misconduct, and who was required under Millersville’s Title 

IX policy to ensure the report was received by Millersville’s 

Title IX Coordinator. The report also was received by 

Millersville’s Area Coordinator, Alison Sehl, who was 

similarly required under Millersville’s Title IX policy to 

forward the report to the Title IX Coordinator and ensure it was 

received. In addition, after Tina Flexer informed her mother of 

Karlie’s abuse, Renea Flexer called Millersville Police 

Department, Millersville Counseling, and Area Coordinator 

Alison Sehl about Karlie. During these calls, Renea conveyed 

that Karlie had been injured in a domestic assault with 

Orrostieta and that she had a visible black and blue eye. 

Viewing these facts in the light most favorable to the Halls, we 

cannot agree with Millersville that it is entitled to summary 

judgment on this element. These facts at least establish a 

genuine dispute as to whether Millersville had actual notice, if 

not prove that Millersville had notice as a matter of law. 

iii. Deliberate Indifference

The next element of the Halls’ deliberate indifference 

claim we consider is whether Millersville University was 

deliberately indifferent to Karlie’s harassment. In Davis, the 

Supreme Court expounded upon the deliberate indifference 
28

standard explaining that it is not a mere reasonableness 

standard and that to avoid liability a funding recipient must 

simply respond to known harassment in a manner “that is not 

clearly unreasonable.” Davis, 526 U.S. at 649. Here, the record 

leads us to conclude there is at least a genuine issue of fact as 

to whether Millersville’s conduct constituted deliberate 

indifference. 

The record shows that after receiving Wiberg’s report, 

neither Millersville’s Deputy Title IX Coordinator nor its Area 

Coordinator ensured the report was received by Millersville’s 

Title IX Coordinator, as they were required to do under 

Millersville’s own Title IX policy. Moreover, the record 

reveals Millersville did not reach out to Karlie after the October 

4

th incident, and that it did not take any action in response to 

Renea’s calls other than to tell her nothing could be done 

without a complaining witness. Certainly, Millersville’s 

inaction in response to these reports raises a genuine issue of 

fact best left for a jury. 

Despite this, Millersville maintains there is no question 

of fact on this element. First, Millersville contends that it did 

not just do “nothing” in response to Karlie’s abuse because the 

night of the October 4th incident Wiberg got Orrostieta out of 

Karlie’s room. Brief of Appellee at 44. Second, Millersville 

maintains that its actions in the wake of Wiberg’s report and 

Renea Flexer’s calls were mere negligence or bureaucratic 

inaction, which cannot amount to deliberate indifference. 

Millersville’s arguments are unpersuasive. Though Wiberg’s 

removal of Orrostieta the night of October 4th “took care of the 

immediate problem,” Brief of Appellee at 44, we cannot say 

this alone establishes Millersville’s response to Karlie’s abuse 

was not clearly unreasonable as a matter of law. A reasonable
29

jury could still conclude Millersville acted with deliberate 

indifference due to its inaction in response to Wiberg’s 

subsequent incident report or Renea Flexer’s calls, as well as 

its failure to generate a police report regarding Orrostieta’s 

removal until after Karlie’s death. 

Nor can we conclude that Millersville’s response to 

Karlie’s harassment constituted mere negligence or 

bureaucratic inaction. Millersville’s Deputy Title IX 

Coordinator Ron Wiafe admits that after receiving Wiberg’s 

report, he did not follow Millersville’s own Title IX policy and 

forward the report to the Title IX coordinator. Instead, Wiafe 

made the decision to not report the October 4

th incident to the 

Title IX Coordinator and simply filed Wiberg’s incident report 

away. Similarly, Millersville’s Area Coordinator Alison Sehl 

admits that after receiving Wiberg’s incident report, she neither 

forwarded it to the Title IX Coordinator nor discussed the 

report with anyone until after Karlie’s murder. And, as 

previously explained, after Millersville Police Department, 

Millersville Counseling, and Area Coordinator Alison Sehl 

were separately called by Renea Flexer to discuss Karlie’s 

abuse, each informed Renea that nothing could be done, and 

each decided to take no further action. When viewed in the 

light most favorable to the Halls, we simply cannot say this 

evidence proves that Millersville’s response to Karlie’s 

harassment was mere negligence. For the same reasons, we 

cannot conclude that the conduct of Wiafe, Sehl, and other 

Millersville personnel in response to reports of Karlie’s 

harassment did not constitute an official decision to not remedy 

Karlie’s harassment. Gebser, 524 U.S. at 290. At the very least, 

this evidence establishes an issue of fact for the jury. 

iv. Severity of Karlie’s Harassment
30

The final element of the Halls’ deliberate indifference 

claim we must consider is whether Karlie’s harassment was 

sufficiently severe and pervasive so as to deprive Karlie the 

benefit of her education. At a minimum, the record here 

establishes a genuine dispute of fact, as evidence indicates that 

in the wake of the October 4th incident, Karlie rarely left her 

room and missed class. Additionally, as the District Court 

correctly pointed out, a jury could consider Karlie’s death 

when evaluating this element. We thus agree with the District 

Court that, given these facts, a jury could reasonably conclude 

that Karlie’s harassment was sufficiently severe.5

* * *

Altogether, our review of the record convinces us that 

the Halls have satisfied their burden to defeat Millersville’s 

motion for summary judgment, as there are genuine disputes 

of fact as to each element of the Halls’ deliberate indifference 

claim. As such, we affirm the portion of the District Court’s 

opinion which held that the existence of these genuine disputes 

precludes summary judgment in Millersville’s favor. 

Nevertheless, because we disagree with the District Court that 

Millersville lacked notice, we must reverse. Accordingly, the 

judgment of the District Court for the Eastern District of 

5

In a footnote, Millersville asserts that Karlie must have been 

in good academic standing after her first semester, and the 

October 4th incident, because she returned to Millersville for 

her second semester. Brief of Appellee at 10, n.12. While this 

may be true, it does not establish that Millersville has 

demonstrated that no issues of material fact exist as to the 

severity of Karlie’s harassment. At most, it is more evidence to 

be weighed by the jury. 
31

Pennsylvania is reversed, and this case is remanded for further 

proceedings consistent with this opinion.