PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ TESSA FARMER, Plaintiff - Appellee,

v. KANSAS STATE UNIVERSITY, Defendant - Appellant.

––––––––––––––––––– –––––––––––––––– SARA WECKHORST, Plaintiff - Appellee,

v. KANSAS STATE UNIVERSITY, Defendant - Appellant. No. 17-3207

No. 17-3208

________________ _________________ Appeals from the United States District Court for the District of Kansas (D.C. Nos. 2:16-CV-02255-JAR-G EB and 2:16-CV- 02256-JAR-GEB)

________________ _________________ Derek T. Teeter (Allan V. Hallqui st and Michael T. Raupp, with him on the briefs), Husch Blackwell LLP, Kansas City , Missouri, for Defendant-Appel lant. Jonathon D. Fazzola (Dustin L. V an Dyk, Gary D. White, Jr., andMeaghan M. Girard, Palmer, Leatherman, White, Girar d & Van Dyk, LLP , Topeka, Kansa s, and Douglas E. Fierberg, The Fierberg National Law Group, PLLC, Traverse City, Michigan, with him on the brief), The Fierberg Nation al Law Group, PLLC, Traverse City, Michigan, for Plaintiffs-Appellees. FILED United States Court of Appeals Tenth Circuit 

### March 18, 2019
Elisabeth A. Shumaker Clerk of Court2 Emily Martin and Neena Chaudhry, N ational Women’s Law Center, W ashington, D.C.; Sunu Chandy and Alexandra Brodsk y, of counsel; and Seanna R. Br own, Maximillian S. Shifrin and Tiffany A . Miao, Baker & Hostetler, LLP, New York, New York, on the brief for Amici Curiae.

________________ _________________ Before MATHESON , EBEL , and EID , Circuit Judges.

________________ _________________ EBEL , Circuit Judge.

________________ _________________ Congress, through Title IX, bans discrimination on the basis of sex in education programs receiving fe deral funding. Plaintiffs, two students at Kansas State University (“KSU”), allege that KSU, a recipient of feder al educational funds, violated Title IX by being deliber ately indifferent to reports it received of student-onstudent sexual harassment which , in this case, involved rape. Often Title IX plaintiffs allege that a funding recipient’s deliberate indiffe rence to prior reports of rape caused the plaintiff subse quently to be raped or assaulted . But that is not the claim Plaintiffs asser t here. Instead, th ey allege that KSU vi olated Title IX’s ban against sex discrimination by be ing deliberately indifferent af ter Plaintiffs reported to KSU that other students had rape d them, and that deliberate ind ifference caused Plaintiffs subsequently to be dep rived of educational benefits that were available to other students. At the procedural posture presented by these i nterlocutory appeals, which address the denial of KSU’ s motions to dismiss, we accept as true Plaintiffs’ factual allegations indicating th at KSU was deliberately indiff erent to their rape reports. That is not being ch allenged in these appeals. Accep ting, then, that KSU3 was deliberately indifferent, the narrow legal question present ed here involves the element of causation: what harm m ust Plaintiffs allege that KSU ’s deliberate indifference caused them? KSU contends that, in order to s tate a Title IX claim, Plaintif fs must allege that the university’s deliberat e indifference caused each of th em to undergo further incidents of actual harassment by other students. Plaintiffs a ssert, instead, that they state a viable Title IX claim by alleging that KSU’s deliberate indifference to their reports of rape caused them to be vulnerable to further harassm ent, which in turn deprived them of the educationa l opportunities that KSU offers its students. The Supreme Court has already an swered the legal question prese nted here, ruling, as Plaintiffs allege, th at a funding recipient’s “delib erate indifference must, at a minimum, cause students to unde rgo harassment or make them li able or vulnerable to it.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 644-45 (1999) (alterations, i nternal quotation marks omitted) (emphasi s added). We conclude that, in this case , Plaintiffs have sufficiently al leged that KSU’s deliberate indifference made each of them “vulnerable to” sexua l harassment by allowing their student-assailant s—unchecked and without the sch ool investigating— to continue attending KSU along with Plaintiffs. This, as Plai ntiffs adequately allege, caused them to withdraw from participating in the educa tional opportunities offered by KSU. Having jurisdic tion under 28 U.S.C. § 1292(b), therefore, we AFFIRM the district c ourt’s decision to deny KSU’s Fed. R. Civ. P. 12(b)(6) motions4 to dismiss Plaintiffs’ Title IX cl aims. Our ruling, of course, does not address the merits of the issues in this cas e which must await further fact ual development.
I. OVERVIEW OF TITLE IX We begin with a quick overview of Title IX, 20 U.S.C. §§ 1681-8 8. With exceptions not relevant here , Title IX provides that [n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denie d the benefits of, or be subject ed to discrimination under any educati on program or activity receivin g Federal financial assistance . . . . Id. § 1681(a). Congress enacted Title IX under its spending po wer, “conditioning an offer of federal funding on a pro mise by the recipient not to d iscriminate, in what amounts essentially to a contract between the Government and th e recipient of funds.” Gebser v. Lago Vista In dep. Sch. Dist., 524 U.S. 274, 286 (1998). In enacting Title IX, Congress sought both “to avoid the use of fe deral resources to support discriminatory practic es” and “to provide individual ci tizens effective protection against those practice s.” Cannon v. Univ. of Chicag o, 441 U.S. 677, 704 (1979). Title IX is enforceable, not only by federal administrative age ncies, but also through private causes of action, like the cases at issue here, brought by victims of prohibited sex discrimination ag ainst the federal funding recip ient. See Jackson v. Birmingham Bd. of Educ., 544 U. S. 167, 173 (2005). A funding r ecipient, however, “may be liable in damages under Title IX only for its own misco nduct.” Davis, 526 U.S. at 640. “The recipient itse lf must ‘exclud[ e] [persons] f rom participation in, . . .5 den[y] [persons] the benefits o f, or . . . subjec[t] [persons] to discrimination under ‘its ‘program[s] or activ it[ies]’ in order to be liable under Title IX.” Id. at 640-41 (quoting 20 U.S.C. § 1681(a)) (a lterations added in Davis); see also id. at 640-43. That point is critical in this c ase because, although the sex d iscrimination that Title IX prohibits can include s exual harassment, see id. at 64 9-53, the sexual harassment—rapes—alleged here wer e committed, not by the recipi ent KSU, but by KSU students. In such a situa tion, the funding recipient can o nly be liable for its own deliberately indifferent res ponse to known sexual harassmen t by students against other students. See Gebser, 524 U.S. at 291; Davis, 526 U.S. a t 640-43. Critically, “a recipient’s deliberate indiff erence to one student’s sexual harassment of another . . . constitute[s] intentional di scrimination on the basis of sex” prohibited by Title IX. Jackson, 544 U.S. at 182 (ci ting Davis, 526 U.S. at 650). Here, Plaintiffs base their Titl e IX claims on KSU’s deliberate indifference after Plaintiffs reported to KSU that other students had raped them. We accept as true the allegation that KSU res ponded with deliberate indiffer ence to Plaintiffs’ reports of rape. Plaintiffs then allege that KSU’s deliberate indifference caused them to have to continue attending KSU with the student-rapists pote ntially emboldened by the indifference expressed by KS U which, in turn, caused Plaint iffs to withdraw from participating in educational opportunities that KSU offers and prevented them from using available KSU resources f or fear of encountering the unch ecked student-rapists and other students who knew of t he rapes. It is in this way th at Plaintiffs allege that KSU has excluded them “from par ticipation in, den[ied] [them] t he benefits of, or6 subject[ed] [them] to discriminat ion under its programs or acti vities.” Davis, 526 U.S. at 640-41 (internal quotation marks, alterations omitted) (quoting 20 U.S.C. § 1681(a)). Although Plaintiffs allege that KSU’s response to their reports of rape was so deficient as to amount to deliber ate indifference, we note that Title IX does not require a funding recipient to acquiesce in the p articular reme dial action a victim seeks. Nor does Title IX prescrib e any particular mandatory re medial action. Davis stress[ed] that [the Court’s] c onclusion . . . —that recipients may be liable for their deliberate indifference to known acts of peer sexual harassment—does not mean that r ecipients can avoid liability on ly by purging their schools of actionabl e peer harassment or that adm inistrators must engage in particular d isciplinary action. . . . . . . [T]he recipient must merel y respond to known peer harassm ent in a manner that is not clearly unreasonable. Id. at 648-49 (citations omitted).
II. BACKGROUND With these general Title IX prin ciples in mind, we consider Pla intiffs’ specific factual allegations against KSU, accepted as true and viewed in the light most favorable to Plaintiffs. See Str aub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
A. Plaintiff Tessa Farmer Plaintiff Farmer alleged the fo llowing: In March 2015, she went to a fraternity party and became very drunk. A d esignated driver took Farmer b ack to her dorm room. At 2:00 a.m., Farmer rece ived a Facebook message from T. R., another KSU7 student who Farmer knew from high school. T.R. invited Farmer to the fraternity house where the party was conti nuing, offering to pick up Farme r and drive her there. Farmer agreed. T.R. drove to Farm er’s dorm, picked her up and took her to his room at the fraternity house, where t he two had sex. T.R. then left the room, telling Farmer he was going to start his car, pre sumably to take her back to h er dorm room. After T.R. left, C.M., another KSU stude nt who was a stranger to Farm er and who had been hiding in the closet while T.R. a nd Farmer had sex, emerged fro m the closet and raped Farmer. When T.R. returne d to the room, he was not surpr ised by C.M.’s presence or by Farmer’s being upset and sobbing. Farmer reported to the Riley C ounty Police Department that C.M. had raped her. She also reported the rape t o the director of the KSU Cen ter for Advocacy, Response and Education (“CARE”) . The CARE director told Farmer that, although she could report the rape to th e KSU Interfraternity Council (“ IFC”), the IFC would not investigate the rape but woul d only investigate the fratern ity chapter more generally. Farmer, nevertheless, filed a complaint with the IF C; three months later the IFC responded to Farmer that the fraternity chapter as a wh ole had not violated any IFC policies. Farmer later learned that, contra ry to what KSU’s CARE directorhad told her, there might be other avenues thro ugh which Farmer could complai n to KSU about the rape. In August 2015, Farmer file d a complaint with KSU’s Offi ce of Institutional Equity, alleging C.M. had violate d KSU’s sexual misconduct poli cy. Farmer was told, however, that that policy did not cover fraternity houses

.8 Farmer, living in fear that she w ould run into her attacker, mi ssed classes, struggled in school, secluded hers elf from friends, withdrew fr om KSU activities in which she had previously taken a leadership role, fell into a d eep depression, slept excessively, and engaged in self-d estructive behaviors such as excessive drinking and slitting her wrist. Far mer alleges that, [b]y refusing to investigate o ff-campus sexual assaults at frat ernities and fraternity events, like those [s he] endured, K-State makes stud ents like Tessa [Farmer] more vulnerable to rape because it sends a messa ge to fraternity members that students can rape other students with n o fear of school disciplinary action. K-Sta te’s practice ignores the real ity that many off-campus sexual assaults adversely impact the on-campus educational environment for vi ctims, just as it did Tessa’s. (Aplt. App. 25 ¶ 73.)
B. Plaintiff Sara Weckhorst Plaintiff Weckhorst alleged tha t, in April 2014, she attended a fraternity event at Pillsbury Crossing, “a freque nt K-State party location not f ar from campus.” (Id. 620 ¶ 13.) There, Weckhorst “cons um[ed] a large amount of alco hol and blacked out” while speaking with J.F., a nother KSU student who was one of the fraternity’s designated drivers. (Id.) J.F. t ook the passed-out Weckhorst to his truck and raped her in front of approximately fi fteen other students, some of w hom took video and photographs of the rape which t hey later posted on social media . J.F. then drove Weckhorst to the fraternity hous e. On the way, he again sexual ly assaulted her. At the fraternity house, “J.F. took Sa ra to the ‘sleep room,’ line d with beds, and raped her again. When he wa s finished, J.F. left her there, naked an d passed out, and joined other fraternity members in part ying downstairs.” (Id. ¶ 15.) Several hours later,9 Weckhorst awoke to find another student and fraternity member, J.G., raping her. Weckhorst “made her way out of the bed and to a nearby patio,” but J.G. followed and raped Weckhorst a gain. (Id. 621 ¶ 16.) Weckhorst sought help at the KSU W omen’s Center and the Manhatt an, Kansas, Rape Crisis Center. The director of the Women’s Center helped Weckhorst file a complaint with the KSU Affirmative Action Office. As a result, a KSU investigator interviewed Weckhors t but told her that KSU “would do nothing about the rapes or the two student-assa ilants because the rapes occur red off-campus.” (Id. 622 ¶ 22.) Weckhorst then reporte d the rapes to the Riley Coun ty Police. In the meantime, the director of the KS U Women’s Center called the two perpetrators and told them Weckhorst had filed ch arges against them, which accor ding to the allegations tipped off “the stude nt-assailants and g[ave] them an opportunity to coordinate their stories,” in addition to invading Weckhorst’s privacy rights, exposing her to potential retaliat ion, compromising her safety, and placing her in fear. (Id. 624-25 ¶ 33.) Weckhorst later met with two asso ciate deans for student life a t KSU. They reiterated that KSU would do nothing because the rapes occurred off campus. But the deans encouraged Weckhorst to file a complaint about the pr esence of alcohol at the fraternity party. She did s o anonymously and, as a result, KSU’s Interfraternity Council (“IFC”) suspended the fraternity’s charter. Weckhorst and her parents continue d to ask KSU to investigate t he rapes, but KSU refused. Without permission , one of the associate deans to ok language from an10 email received from Weckhorst and filed it as a co mplaint with KSU’s Office of Greek Affairs and the IFC. This action “released Sara’s highly sensitive, private information, including her full name and a detailed description of the multiple rapes, to student peers on the IFC boa rd without any chance of this ac tion benefitting Sara” because the Office of G reek Affairs “did not have jurisdiction to punish the studentassailants, only the fraternity. ” (Id. 629 ¶ 48.) Because of this unauthorized release of information, Weckhorst “has si nce lived day-to-day not knowi ng who she might encounter who knows the details about the nightmare she endured .” (Id. 630 ¶ 48.) 1 Moreover, because the alleged per petrators remained on campus, Weckhorst alleges she is always afraid, apprehensive , and hyper-alert, on-campus and off. Every man who passes her on the sidewalk terrifies her. At lea st once a day on-campus, Sara is overcome by panic, anxious that any pass ing man could be one of the student-assa ilants. She is constantly on t he lookout for J.F. Recently, walking to the K-State library she passed a man who turned toward her. She jumped, s creamed, and began to cry. Sar a only uses campus resources like the library when she is joined by fr iends or her Chi Omega sorority sisters, and otherwise stayed home to av oid being alone in a campus setting. (Id. 637 ¶ 77.) Weckhorst’s grades “plummeted” and she lost he r academic scholarship. (Id. 638 ¶ 79.) She “has exhibite d symptoms of post-traumatic stress disorder,” has nightmares , has distanced herself from fa mily and friends,

1 Although Weckhorst alleges that KSU was deliberately indiffere nt because it did very little in response to her re ports of rape, she also allege s that some of KSU’s alleged actions affirmatively ca used her additional harm. For example, Weckhorst alleged that KSU informed the st udent-rapists that Weckhorst ha d gone to the police and KSU, without permission, and had released confidential info rmation about Weckhorst and the rapes to fellow students.11 and “has decreased her involveme nt in her sorority and philanth ropy and has turned down leadership opport unities.” (Id. 637 ¶ 78, 638 ¶ 80 .) Although she “wants to continue her K-State education, . . . doing so means facing emboldened student-assailants who know K-State will protect the m and not the victim of their attacks.” (Id . 637 ¶ 75.) Similar, to Plainti ff Farmer, Plaintiff Weckhorst alleges that, [b]y refusing to investigate o ff-campus sexual assaults at frat ernities and fraternity events, like those Sa ra [Weckhorst] endured, K-State makes students, like Sara, more vulnerable to rape because it sends a message to fraternity members that students can rape other students with n o fear of school disciplinary action. K-Sta te’s practice ignores the rea lity that many off-campus sexual assaults adversely impact the on-campus educational environment for vict ims, just as it did Sara’s. (Id. 638-39 ¶ 83.)
C. These cases Each Plaintiff separately sued KSU, asserting claims under Tit le IX and state law. In each case, KSU moved un der Fed. R. Civ. P. 12(b)(6) to dismiss all claims. The district court denied KSU’s m otions to dismiss the Title IX claims; that is the matter now before us on appeal. 2
The district court held that ea ch Plaintiff had sufficiently al leged an actionable Title IX violation. In reaching that conclusion, the district court, citing Davis, 526 U.S. 629, and Rost ex rel. K.C. v . Steamboat Springs RE-2 Schoo l District, 511 F.3d

2 The district court dismissed the state-law claims. Those clai ms are not before us in these interlocutory appeals.12 1114, 1119 (10th Cir. 2008), beg an by noting that, to state a T itle IX claim, Plaintiffs had to allege sex discriminati on that occurred w ithin a KSU edu cational program or activity; KSU had actual knowledge of, but was deliberately ind ifferent to, sexual harassment that was so severe, p ervasive and objectively offens ive that it deprived Plaintiffs of access to the educational benefits or opportuniti es provided by KSU; and that KSU’s deliberate indiffere nce caused each Plaintiff, at a minimum, to undergo harassment or made her liable or vulnerable to it. In its moti ons to dismiss, KSU argued, among other things, that Plaintiffs had failed to alleg e that any deliberate indifference by KSU had caused ha rm to Plaintiffs that is actio nable under Title IX. The district court rejected that argument and declined to dismi ss Plaintiffs’ Title IX claims. At KSU’s request, the district c ourt invoked 28 U.S.C. § 1292(b ) and certifie[d] its . . . Memorandum and Order . . . for interlocut ory appeal for determination of the following controlling questions of law: (1 ) whether Plaintiff was required to allege, as a distinct element of her Title IX claim, that KSU’s deliberate indifferen ce caused her to suffer actual further harassment, rather than alleging that Defendant’s post-assault deliberate indifference made her ‘liable or vulnerable to’ harassment; an d (2) if Plaintiff is required to plead actual further harassment, wheth er her allegations of deprivation of a ccess to educational opportuniti es satisfy this pleading requirement. (Aplt. App. 606; see also id. 1247. ) The Tenth Circuit, then, permitted KSU to pursue these interlocutory appeal s presenting these certified q uestions, see 28 U.S.C. § 1292(b), and ordered thes e appeals consolidated. 3

3 In light of the narrow issues pre sented by these interlocutory appeals pursued under § 1292(b), we have no occasion he re to address KSU’s contention that the sexual13 III. STANDARD OF REVIEW This court reviews de novo the district court’s rulings on KSU’ s Fed. R. Civ. P. 12(b)(6) motions to dismiss, accepting as true all well pled facts and viewing those facts in the light most favorab le to Plaintiffs. See Straub, 9 09 F.3d at 1287. “To withstand a motion to dismiss, a complaint must contain enough allegations of fact ‘to state a claim that is plau sible on its face.’” Id. (quotin g Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
IV. LEGAL DISCUSSION Accepting, for the purpose of the se interlocutory appeals, that Plaintiffs’ factual allegations charge that K SU was deliberately indifferen t to their reports that they had been raped, the narrow question we consider is whether each “Plaintiff was required to allege, as a distinct element of her Title IX claim , that KSU’s deliberate indifference caused her to suffe r actual further harassment, ra ther than alleging that Defendant’s post-assault deliber ate indifference made her ‘. . . vulnerable to’ harassment.” (Aplt. App. 606.) KSU asserts that each Plaintif f must allege, as an element of her Title I X claim, that KSU’s deliberate indifferen ce caused her to be subjected to actual further hara ssment by a student. Plaintiff s, instead, contend that it is sufficient for them to allege that KSU’s deliberate indiffer ence made them

harassment of which Plaintiffs c omplain did not occur within a KSU program or activity and, thus, KSU is not r esponsible for s tudent-on-stude nt sexual harassment occurring off campus at fraternity parties or in fraternity hou ses.14 “vulnerable to” harassment. As explained below, Plaintiffs hav e the more persuasive argument and we, therefore, affirm the district court’s decisio n. A. It is sufficient fo r Plaintiffs to allege that KSU’s deliber ate indifference made them “vulnerable to” sexual hara ssment. Title IX does not requ ire a subsequent sexual assault before a plaintiff can sue. The Supreme Court, in Davis, has already answered the legal que stion presented here. To explain, we begin with the statutory langua ge. Title IX provides: [n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denie d the benefits of, or be subject ed to discrimination under any educati on program or activity receivin g Federal financial assistance . . . . 20 U.S.C. § 1681(a) (emphasis a dded). In applyi ng Title IX’s l anguage—“[n]o person . . . shall, on the basi s of sex, . . . be subjected to discrimination . . .”—to a case involving student-on-student harassment, the Supreme Court ruled: If a funding recipient does not eng age in harassment directly, it may not be liable for damages unless its deliberate indifference “subject[ s]” its students to harassment. That is, the deliberate indifference must, at aminimum, “cause [students] to un dergo” harassment or “make them liable o r vulnerable” to it. Random House Di ctionary of the English Langu age 1415 (1966) (defining “subject” as “to cause to undergo the action o f something specified; expose” or “to make liable or vulnerable; lay open; expose”); Webster's Third New In ternational Dictionary 2275 (1961) (defin ing “subject” as “to cause to undergo or submit to: make submit to a particular action or effect: EXPOSE”). Davis, 526 U.S. at 644–45 (emphasis added). Davis, then, clearly indicates that Plaintiffs can state a viab le Title IX claim by alleging alternatively either that KSU’s deliberate indifferenc e to their reports of rape caused Plaintiffs “‘to undergo’ harassment or ‘ma[d]e them liab le or vulnerable’ to it.” 526 U.S. at 645 (emphasis added) ; see Fitzgerald v. Barnstable Sch. Comm., 504 F.3d15 165, 172 (1st Cir. 2007) (citing Davis and stating that “to ‘subject’ a student to harassment, the institution’s deliberate indifference must, at a minimum, have caused the student to undergo harassment, m ade her more vulnerable to it, or made her more likely to experience it”), rev’d on othe r grounds, 555 U.S. 246 (2009) ; id. at 172 (stating that Davis’s language, “mak[ing] them liable or vulnerable to” haras sment, “sweeps” broader than requiring further actual hara ssment to have occurred); Her nandez v. Baylor Univ., 274 F. Supp. 3d 602, 613 (W.D. T ex. 2017) (citing Davis and sta ting that “the Supreme Court has made clear tha t to ‘subject’ a student to har assment a school need only make the student vulnerable to that ha rassment”; further s tating that a recipient’s actionable “discrimin atory harm can include the har m faced by studentvictims who are rendered vulnera ble to future harassment and ei ther leave school or remain at school and endure an edu cational environment that con stantly exposes them to a potential encounter with their harasser or assailant” ; elaborating that the required harm could include “forc ing the student to change his or her study habits . . . or lowering the student’s grades” ); see also, e.g., Joyce v. Wr ight State Univ., No. 3:17-cv-387, 2018 W L 3009105, at *8 (S.D. Ohio June 15, 201 8); Karasek v. Regents of Univ. of Calif., No. 1 5-cv-03717-WHO, 2015 WL 852733 8, at *12-*13 (N.D. Cal. Dec. 11, 2015) (unrepor ted) (citing cases); Takla v. Regents of Univ. of Calif., No. 2:15-cv-04418-CAS(S Hx), 2015 WL 6755190, at *4-*5 ( C.D. Cal. Nov. 2, 2015) (unreported); Kelly v. Y ale Univ., No. Civ.A 3:01-CV-1 591, 2003 WL 1563424, at *4-*5 (D. Conn. M ar. 26, 2003) (unreported) . To underscore that a Title IX plaintiff is not required to a llege that she suffered actual additional incidents of16 sexual harassment, the Supreme C ourt in Davis referred to the R andom House Dictionary definition of “subject ” to include, “to make liable . . . ; lay open; expose.” Davis, 526 U.S. at 645. KSU’s contrary argument, that Pl aintiffs must allege (and event ually prove) that KSU’s deliberate indifference to their reports of rape caused e ach Plaintiff to endure further actual incidents of sexual harassment simply ignores Da vis’s clear alternative language recognizing that a fundi ng recipient’s “deliberate ind ifference must, at a minimum, ‘cause students to undergo’ harassment or make them ‘l iable or vulnerable to’” sexual harassment, 526 U.S . at 645 (emphasis added). We m ust give effect to each part of that sentence. Doing so is consistent with Titl e IX’s objectives, which includ e protecting individual students against disc riminatory practices, Cannon, 4 41 U.S. at 704. The alternative offered by the Un iversity—i.e., that a student must be harassed or assaulted a second time before the school’s clearly unreasonable response to the ini tial incident becomes actionabl e, irrespective of the deficiency of the school’s response, the im pact on the student, and the other circumst ances of the case—runs counter t o the goals of Title IX and is not convincing. Karasek, 2015 WL 8 527338, at *12. Once a funding recipient, like KS U, has actual knowledge of sex ual harassment that is severe, per vasive and objectively offensive enough to deprive a student of access to the educati onal benefits a nd resources the recipient offers, 4 see

4 No one asserts that the sexual harassment alleged in these cas es is not sufficiently extreme.17 Davis, 526 U.S. at 633, 650-51, t he recipient cannot, acting wi th deliberate indifference, turn a blind eye to that harassment. See id. at 641 (indicating that funding recipient can be liable under Title IX for “remain[ing] idle in the face of known student-on-student harassm ent”). Critically, then, KSU’s alleged liability stems directly from its own con duct, its own deliberate indiffe rence to known student-on-student sexual harass ment occurring in its programs and activities that is sufficiently severe, pervasive, a nd objectively offensive enoug h to deprive a student of access to the educational oppor tunities the recipient provid es. See Davis, 526 U.S. at 633. KSU is wrong to contend that, by holding it liable forits own deliberate indifference to the serious rap e charges, we are requiring the university to remediate the harm caused by the student rap ists rather than KSU itself. We conclude, then, that Plainti ffs can state a viable Title IX claim for studenton-student harassment by alleging that the funding recipient’s deliberate indifference caused them to be “vulnerable to ” further harassment without re quiring an allegation of subsequent actual sexual harassment. B. Plaintiffs have adequately ple d that KSU made them “vulnera ble to” harassment Plaintiffs sufficiently pled that KSU’s de liberate indifference to their reports of rape made them vulnerable to harassment by alleging that the fear of running into their student-rapists caused the m, among other things, to strug gle in school, lose a scholarship, withdraw from activ ities KSU offers its students, and avoid going anywhere on campus w ithout being accompanied by friends or soro rity sisters. See18 Joyce, 2018 WL 30091 05, at *7-*8 (S.D. Ohio) (declining to dism iss Title IX claim based on funding recipient unive rsity’s failure to enforce rest raining order prohibiting assailant from bei ng on campus because “it could be said that [university’s] alleged failure t o enforce the expulsion order m ade [plaintiff] Joyce ‘vulnerable’ to additi onal incidents of se xual assault and sexu al harassment by [the perpetrator], even though she ne ver actually encountered him on campus”); Kelly, 2003 WL 1563424, at *4-*5 (D. Con n.) (holding Title IX plaintif f sufficiently alleged that funding recipient’s deliberate indifference to herreported rape—by ignoring her “requested academic and residential accommodations after the assault” and her reported “discomfort and fear that she would feel if sh e encountered” the alleged assailant—made her “liable or vulne rable” to her assail ant’s harassment, even though no further actual harassm ent occurred because victim lef t her dorm and her classes); see also Doe ex rel. Doe v. Coventry Bd. of Educ., 63 0 F. Supp. 2d 226, 233 (D. Conn. 2009) (stating that a reasonable jury could find that funding recipient forcing high school victim of s exual assault to attend school w ith her assailant amounted to sufficiently severe ha rassment to deprive victim of access to educational opportunities, based on “potentia l interactions” between victim and the student harasser); Doe ex rel. Doe v . Derby Bd. of Educ., 451 F. Supp. 2d 438, 440, 444-45 (D. Conn. 2006) (holding, in case where junior high student rep orted that senior high student raped her and where fund ing recipient housed both junio r and senior high schools in same building, funding recipient could be liable und er Title IX for its postassault deliberate indifference which “constantly exposed” the plaintiff “to the19 possibility of an encounter with” th e perpetrator, even if ther e was no evidence that the perpetrator actually harasse d the victim after she reported rape). Plaintiffs’ allegations are qu ite specific and reasonable underthe circumstances. Plainti ffs allege more than a general fear of running into their assailants. They allege that th eir fears have forced them to t ake very specific actions that deprived them of the educat ional opportunities offered to other students. In addition, they have alleged a perv asive atmosphere of fear at K SU of sexual assault caused by KSU’s inadequate acti on in these cases. A Title IX p laintiff’s alleged fear of encountering her attacker mus t be objectively reasonable, bu t under the horrific circumstances alleged here Plain tiffs have adequately alleged t hat KSU’s deliberate indifference to their rape reports reasonably deprived them of educational opportunities available to oth er students at KSU. See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1297 (11th Cir. 2007) (statin g that student rape victim’s decision to withdraw from school was “reasonable and e xpected” “[i]n light of the harrowing ordeal” she endured). Future cases will undou btedly be asked to draw lines on when a victim’s fe ar of further sexual harassment is sufficient to deprive that student of educa tional opportunities that the educ ational institution offers to others, but we have no hesitation in concluding that the allegations in these complaints are sufficient to sur vive a motion to dismiss, where all inferences are drawn in favor of Plaintiffs. C. KSU’s arguments to th e contrary are unavailing20 We now briefly address KSU’s cont rary arguments. KSU latches o n to a number of cases invoki ng the phrases “furth er discrimination” o r “ further sexual harassment.”
1. Rost ex rel. K.C. v. Steamboat Springs RE-2 School District, 511 F.3d 1114 (10th Cir. 2008), and Escue v. Northern Oklahoma College, 450 F.3d 1146 (10th Cir. 2006) The primary cases on which KSU re lies are the Tenth Circuit’s d ecisions in Rost ex rel. K.C. v. Steamboat Sp rings RE-2 School District, 51 1 F.3d 1114 (10th Cir. 2008), and Escue v. Norther n Oklahoma College, 450 F.3d 11 46 (10th Cir. 2006). As detailed below, Rost a nd Escue were decided at the s ummary judgment stage of litigation, rather than at the pleading stage. In eac h case, the Tenth Circuit upheld the district court’s summ ary judgment determination that the Title IX plaintiff had failed to present sufficien t evidence for a reasonable jury to find that the funding recipient was deliberately indiff erent. In making that determi nation, the Tenth Circuit pointed to evidence that the sexual harassment stopped after the funding recipient took action. Thus, alt hough both cases did look at w hether there had been continuing sexual harassment aft er the recipient took remedial action, they did so for the purpose of illuminating whethe r the funding recipient had b een clearly unreasonable. Neither case had occasion to address the questio n at issue here, what injury does the funding recipien t’s deliberate indifference hav e to cause a plaintiff to be actionable under Title IX. Ne ither case held that a Title I X plaintiff was required to allege subsequent actual inci dents of sexual harassment had occurred following the school’s inadequate response to the victim’s complaint.21 In our cases, by contrast, because they come to us on an interl ocutory appeal on the pleadings, all parties ha ve to accept, and do accept, th at KSU was deliberately indifferent in failing to take remedial actions. Thus, the iss ue presented in Rost and Escue—whether the educational institution was deliberately indi fferent—is not before us. Instead, here KSU is seeking to add a new pleading burden to a Title IX claimant, which is that, even ac cepting that KSU was deliberate ly indifferent, a Title IX plaintiff must further allege as an element of her case that subsequent discrete acts of sexual harassment directed at her followed the funding recip ient’s deliberately indifferent response to her complaints. Plaintiffs, instead, argue—and we have agreed—tha t once they sh ow that the funding recipient was deliberatel y indifferent to their complai nts of peer sexual harassment, they can show the re quisite harm caused by that del iberate indifference by alleging and proving that the prior sexual assaults were so grievous and the likelihood of continuing to encount er the sexual predators on c ampus so credible that KSU’s inaction by itself deprived them of the “benefits . . . u nder any education program . . . receiving Federal fi nancial assistance.” Rost, 5 11 F.3d at 1119. In short, they allege that KSU creat ed such an adverse environment for learning for them by its dismissive treatment of their complaints of rape th at it was that environment that reasonably prev ented them from accessing the e ducational opportunities available to other students. That issue was not presented in nor resolved by either Rost or Escue.22 In Escue, a college student alle ged that her professor sexually harassed her. 450 F.3d at 1149. Once the student reported the harassment to the school, the school acted to prevent further contac t between the student and the pr ofessor, including immediately transferring the st udent out of the offending profe ssor’s class, confronting the professor about h is behavior, and eventually no n-renewing him. Id. at 1150. This court determined t hat the school’s actions (whic h are dramatically different from essentially no ac tion taken here by KSU) were su fficient to rebut the plaintiff’s allegation that the University had b een deliberatel y indifferent. Id. at 1154-56. In reaching that conclu sion on the deliberate indiffe rence issue, the Tenth Circuit noted that, “Ms. Escue [ the student] does not allege th at further sexual harassment occurred as a result of [the school’s] deliberate in difference.” Id. at 1155. That determination was made in the context of illuminati ng the adequacy of the university’s actions. Nothi ng in that opinion held or even suggested that a complaining student would have t o show subsequent offending con duct as a causation element in order to pr evail even after the funding re cipient had been found to have been deliber ately indifferent. In Rost, a special education stude nt alleged that several of he r male high school classmates coerced her int o performing sexual acts with them. 511 F.3d at 1117. Rost upheld summary judgmen t for the recipient school di strict because there was no evidence that the school d istrict’s response—“immediatel y contact[ing] law enforcement officials , cooperat[ing] fully in the investigation , and ke[eping] informed of the investigation” —was so unreasonable as to amount to deliberate23 indifference. Id. at 1121. It wa s in that context that Rost n oted that the studentvictim’s mother “does not contend that furth er sexual harassmen t occurred as a result of the district’s deliberate indi fference after [the student-vi ctim’s] disclosure” of the ongoing sexual harassment to th e school district. Id. at 1123- 24. In fact, there was no opportunity for further haras sment there because the victim’ s mother withdrew the victim from the school and “[t]he re [wa]s no evidence in the re cord that Ms. Rost was willing to work with school officials and allow K.C. to ret urn to school under some accommodation.” Id. at 11 24. Still, we noted that, “[i]f K.C. had expressed interest in returning to the s chool and school officials had no t provided a safe educational environment, then sh e would likely have a Title IX claim.” Id. That is, of course, essentially the issue that is presented in our case. Admittedly, in the course of c oncluding that the school distric t was not deliberately indifferent, Rost mentions causation. Id. at 1123 . But causation was not listed as one of the issues in that case. Moreover, Rost certa inly did not hold that a Title IX plaintiff had to prove a n actual subsequent sexual ass ault or harassment in order to state a viable Title IX claim. If anything, Rost’s cl osing hypothetical suggests that, had the victim re turned to school and had the di strict had been deliberately indifferent, causi ng an unsafe school environment, that would “likely” be enough to state a Title IX claim against the district. Id. at 1124. It is not surprising, in addres sing the question of whether the educational funding recipient had been “deli berately indifferent,” that cou rts might look to see whether the offending action con tinued thereafter. However, co nsulting subsequent24 behavior as an evidentiary aid i n determining if the school’s a ction taken had been deliberately indifferent is a w holly different thing than requi ring a continuation of the offending behavior as a separate element o f causation before a Title IX claim may be maintained.
2. Out-of-circuit cases KSU also cites to a group of out -of-circuit cases that it belie ves supports its position. Most relevant is the E leventh Circuit’s decision in Williams v. Board of Regents of University System of Georgia, 477 F.3d 1282 (11th Ci r. 2007), a case cited by both parties. In tha t case, Plaintiff Williams allege d that the funding recipients at issue there—the Un iversity of Georgia and its ath letic association, id. at 1294—were deliberately i ndifferent, id. at 1288-90. 5 The Eleventh Circuit did say “that a Title IX plaintiff at a m otion to dismiss stage must al lege that the Title IX recipient’s deliberate indiffere nce to the initial discriminati on subjected the plaintiff to further discrimination.” I d. at 1296 (emphasis added). Imp ortantly, however, Williams defined “further discri mination” not to require furthe r overt acts of assault or abuse. Instead, the Eleventh Circuit recognized that injuri es similar to those Plaintiffs allege here would sati sfy its “further harassment” r equirement. Williams explained that “further discrimi nation” included “effectively d enying Williams an

5 KSU asserts that Williams is a pre-assault delib erate indiffer ence case. In fact, the plaintiff in Williams asserted c laims alleging the funding reci pients were deliberately indifferent both before and afte r she was sexually assaulted. See 477 F.3d at 1288- 90, 1296-97.25 opportunity to conti nue to attend” the Uni versity of Georgia by delaying any action against the student-rapists for months and by failing “to take any precautions that would prevent future attacks” by the student-rapists themselves or other “likeminded” students by, for example , removing the alleged student- rapists from student housing or suspending t hem, or by “implementing a more protecti ve sexual harassment policy to deal with f uture incidents,” id. at 1296-9 7; see also, e.g., Hernandez, 274 F. Supp. 3d at 6 13 (W.D. Tex.) (holding that, “[ w]hile allegations of further assault or harassment ar e necessary for a claim under T itle IX,” that requirement can be met by allega tions of “harm faced by student -victims who are rendered vulnerable to future ha rassment and either leave schoo l or remain at school and endure an educational envi ronment that constantly exposes t hem to a potential encounter with their harasser or a ssailant” (emphasis added)); Kinsman v. Fla. State Univ. Bd. of Trs., No. 4:15cv235 , 2015 WL 11110848, at *4 (N.D. Fla. Aug. 12, 2015) (unreported) (applying Willia ms to require allegations th at the funding recipient’s deliberate indiffere nce caused “further discriminat ion,” but holding such “further discrimination” can inc lude the hostile environment cr eated by “the possibility of further encounters between a rape victim and her attacker,” which can “deprive the victim of access to educational opportunities prov ided by a university” (internal quotation ma rks omitted)). KSU further cites decisions from other circuits that it argues require a showing of “further harassment” or “furt her discrimination.” But those cases are easily distinguishable. See K.T. v. C ulver-Stockton College, 865 F.3d 1054, 1058 (8th Cir.26 2017) (addressing situation wher e there was no opportunity for further harassment because the victim did not atte nd the school); Reese v. Jeffers on School District No. 14J, 208 F.3d 736, 738, 740 (9th C ir. 2000) (addressing situati on where there was no opportunity for further harassm ent because students involved we re graduating.) In conclusion, the out-of-circuit cases that KSU cites are not only not binding on us but are also either disti nguishable or they end up ultima tely supporting the conclusion we reach here. To th e extent that ambiguous dicta c an be found in any of them, they certainly cannot affe ct the binding guidance that we get from the Supreme Court in Davis, 526 U.S. at 644-45. 6
V. CONCLUSION Plaintiffs alleged that they repor ted to KSU that other KSU stu dents had raped them. We must assume for purposes of these interlocutory appea ls that KSU was deliberately indifferent in respo nding to Plaintiffs’ rape repo rts by failing to take any reasonable action to address and remedy those matters. The Sup reme Court, in Davis, held that, to be actiona ble, a federal education funding recipient’s deliberate

6 KSU finally asserts that Plaint iffs lack Article III standing to assert their claims. KSU did not raise this argument below and the district court di d not certify this question for interlocutory app eal. We address the argument bri efly because Article III standing implicates our juris diction. However, Plaintiffs have adequately alleged their standing under Article III , which “requires allegations—a nd, eventually, proof—that the plaintiff persona lly suffered a concrete and par ticularized injury in connection with the conduct about which [s]he comp lains.” Trum p v. Hawaii, 138 S. Ct. 2392, 2416 (2018) (internal quotation marks, alteration omitted). Plaintiffs have alleged that the c onduct of which they complain caused the m a concrete and particularized injury by depriv ing them of access to the educat ional resources and opportunities KSU offe rs its students.27 indifference to reports of stude nt-on-student se xual harassment —here, rape—“must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it.” 526 U.S. a t 644-45 (internal quotation mark s, alterations omitted) (emphasis added). We conclude, t herefore, that a Title IX plai ntiff must allege, at a minimum, that the funding recipi ent’s deliberate indifference c aused her to be vulnerable to further harassmen t. Plaintiffs hav e met that ple ading requirement here by alleging, among other things, that KSU’s deliberate indiffer ence caused them objectively to fear encountering their unchecked assailants on campus, which in turn caused Plaintiffs to stop partic ipating in the educational oppo rtunities KSU offered its students. We, therefore, AFFI RM the district court’s decis ion to deny KSU’s motions to dismiss Plain tiffs’ Title IX claims.