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-GEB and 2:16-CV-02256-JAR-GEB)

_________________________________ 

Derek T. Teeter (Allan V. Hallquist and Michael T. Raupp, with him on the briefs), 

Husch Blackwell LLP, Kansas City, Missouri, for Defendant-Appellant. 

Jonathon D. Fazzola (Dustin L. Van Dyk, Gary D. White, Jr., and Meaghan M. Girard, 

Palmer, Leatherman, White, Girard & Van Dyk, LLP, Topeka, Kansas, and Douglas E. 

Fierberg, The Fierberg National Law Group, PLLC, Traverse City, Michigan, with him 

on the brief), The Fierberg National 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 Court
2 

Emily Martin and Neena Chaudhry, National Women’s Law Center, Washington, D.C.; 

Sunu Chandy and Alexandra Brodsky, of counsel; and Seanna R. Brown, 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 federal funding. Plaintiffs, two students at Kansas 

State University (“KSU”), allege that KSU, a recipient of federal educational funds, 

violated Title IX by being deliberately 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 indifference to prior reports of 

rape caused the plaintiff subsequently to be raped or assaulted. But that is not the 

claim Plaintiffs assert here. Instead, they allege that KSU violated Title IX’s ban 

against sex discrimination by being deliberately indifferent after Plaintiffs reported to 

KSU that other students had raped them, and that deliberate indifference caused 

Plaintiffs subsequently to be deprived of educational benefits that were available to 

other students. At the procedural posture presented by these interlocutory appeals, 

which address the denial of KSU’s motions to dismiss, we accept as true Plaintiffs’ 

factual allegations indicating that KSU was deliberately indifferent to their rape 

reports. That is not being challenged in these appeals. Accepting, then, that KSU 
3 

was deliberately indifferent, the narrow legal question presented here involves the 

element of causation: what harm must Plaintiffs allege that KSU’s deliberate 

indifference caused them? 

KSU contends that, in order to state a Title IX claim, Plaintiffs must allege 

that the university’s deliberate indifference caused each of them to undergo further 

incidents of actual harassment by other students. Plaintiffs assert, 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 harassment, which in turn 

deprived them of the educational opportunities that KSU offers its students. 

The Supreme Court has already answered the legal question presented here, 

ruling, as Plaintiffs allege, that a funding recipient’s “deliberate indifference must, at 

a minimum, cause students to undergo harassment or make them liable or vulnerable 

to it.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 644-45 

(1999) (alterations, internal quotation marks omitted) (emphasis added). 

We conclude that, in this case, Plaintiffs have sufficiently alleged that KSU’s 

deliberate indifference made each of them “vulnerable to” sexual harassment by 

allowing their student-assailants—unchecked and without the school investigating—

to continue attending KSU along with Plaintiffs. This, as Plaintiffs adequately 

allege, caused them to withdraw from participating in the educational opportunities 

offered by KSU. Having jurisdiction under 28 U.S.C. § 1292(b), therefore, we 

AFFIRM the district court’s decision to deny KSU’s Fed. R. Civ. P. 12(b)(6) motions 
4 

to dismiss Plaintiffs’ Title IX claims. Our ruling, of course, does not address the 

merits of the issues in this case which must await further factual development. 

I. OVERVIEW OF TITLE IX 

We begin with a quick overview of Title IX, 20 U.S.C. §§ 1681-88. 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 denied the benefits of, or be subjected to 

discrimination under any education program or activity receiving Federal 

financial assistance . . . . 

Id. § 1681(a). Congress enacted Title IX under its spending power, “conditioning an 

offer of federal funding on a promise by the recipient not to discriminate, in what 

amounts essentially to a contract between the Government and the recipient of 

funds.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998). In 

enacting Title IX, Congress sought both “to avoid the use of federal resources to 

support discriminatory practices” and “to provide individual citizens effective 

protection against those practices.” Cannon v. Univ. of Chicago, 441 U.S. 677, 704 

(1979). 

Title IX is enforceable, not only by federal administrative agencies, but also 

through private causes of action, like the cases at issue here, brought by victims of 

prohibited sex discrimination against the federal funding recipient. See Jackson v. 

Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). A funding recipient, however, 

“may be liable in damages under Title IX only for its own misconduct.” Davis, 526 

U.S. at 640. “The recipient itself must ‘exclud[e] [persons] from participation in, . . . 
5 

den[y] [persons] the benefits of, or . . . subjec[t] [persons] to discrimination under ‘its 

‘program[s] or activit[ies]’ in order to be liable under Title IX.” Id. at 640-41 

(quoting 20 U.S.C. § 1681(a)) (alterations added in Davis); see also id. at 640-43. 

That point is critical in this case because, although the sex discrimination that 

Title IX prohibits can include sexual harassment, see id. at 649-53, the sexual 

harassment—rapes—alleged here were committed, not by the recipient KSU, but by 

KSU students. In such a situation, the funding recipient can only be liable for its 

own deliberately indifferent response to known sexual harassment by students against 

other students. See Gebser, 524 U.S. at 291; Davis, 526 U.S. at 640-43. Critically, 

“a recipient’s deliberate indifference to one student’s sexual harassment of another 

. . . constitute[s] intentional discrimination on the basis of sex” prohibited by Title 

IX. Jackson, 544 U.S. at 182 (citing Davis, 526 U.S. at 650). 

Here, Plaintiffs base their Title 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 responded with deliberate indifference 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 potentially emboldened by 

the indifference expressed by KSU which, in turn, caused Plaintiffs to withdraw from 

participating in educational opportunities that KSU offers and prevented them from 

using available KSU resources for fear of encountering the unchecked student-rapists 

and other students who knew of the rapes. It is in this way that Plaintiffs allege that 

KSU has excluded them “from participation in, den[ied] [them] the benefits of, or 
6 

subject[ed] [them] to discrimination under its programs or activities.” 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 deliberate indifference, we note that Title IX does not 

require a funding recipient to acquiesce in the particular remedial action a victim 

seeks. Nor does Title IX prescribe any particular mandatory remedial action. Davis 

stress[ed] that [the Court’s] conclusion . . . —that recipients may be liable 

for their deliberate indifference to known acts of peer sexual 

harassment—does not mean that recipients can avoid liability only by 

purging their schools of actionable peer harassment or that administrators 

must engage in particular disciplinary action. . . . 

. . . [T]he recipient must merely respond to known peer harassment 

in a manner that is not clearly unreasonable. 

Id. at 648-49 (citations omitted). 

II. BACKGROUND 

With these general Title IX principles in mind, we consider Plaintiffs’ specific 

factual allegations against KSU, accepted as true and viewed in the light most 

favorable to Plaintiffs. See Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 

2018). 

A. Plaintiff Tessa Farmer 

Plaintiff Farmer alleged the following: In March 2015, she went to a fraternity 

party and became very drunk. A designated driver took Farmer back to her dorm 

room. At 2:00 a.m., Farmer received a Facebook message from T.R., another KSU 
7 

student who Farmer knew from high school. T.R. invited Farmer to the fraternity 

house where the party was continuing, offering to pick up Farmer and drive her there. 

Farmer agreed. T.R. drove to Farmer’s dorm, picked her up and took her to his room 

at the fraternity house, where the two had sex. T.R. then left the room, telling Farmer 

he was going to start his car, presumably to take her back to her dorm room. After 

T.R. left, C.M., another KSU student who was a stranger to Farmer and who had been 

hiding in the closet while T.R. and Farmer had sex, emerged from the closet and 

raped Farmer. When T.R. returned to the room, he was not surprised by C.M.’s 

presence or by Farmer’s being upset and sobbing. 

Farmer reported to the Riley County Police Department that C.M. had raped 

her. She also reported the rape to the director of the KSU Center for Advocacy, 

Response and Education (“CARE”). The CARE director told Farmer that, although 

she could report the rape to the KSU Interfraternity Council (“IFC”), the IFC would 

not investigate the rape but would only investigate the fraternity chapter more 

generally. Farmer, nevertheless, filed a complaint with the IFC; three months later 

the IFC responded to Farmer that the fraternity chapter as a whole had not violated 

any IFC policies. 

Farmer later learned that, contrary to what KSU’s CARE director had told her, 

there might be other avenues through which Farmer could complain to KSU about the 

rape. In August 2015, Farmer filed a complaint with KSU’s Office of Institutional 

Equity, alleging C.M. had violated KSU’s sexual misconduct policy. Farmer was 

told, however, that that policy did not cover fraternity houses. 
8 

Farmer, living in fear that she would run into her attacker, missed classes, 

struggled in school, secluded herself from friends, withdrew from KSU activities in 

which she had previously taken a leadership role, fell into a deep depression, slept 

excessively, and engaged in self-destructive behaviors such as excessive drinking and 

slitting her wrist. Farmer alleges that, 

[b]y refusing to investigate off-campus sexual assaults at fraternities and 

fraternity events, like those [she] endured, K-State makes students like 

Tessa [Farmer] more vulnerable to rape because it sends a message to 

fraternity members that students can rape other students with no fear of 

school disciplinary action. K-State’s practice ignores the reality that 

many off-campus sexual assaults adversely impact the on-campus 

educational environment for victims, just as it did Tessa’s. 

(Aplt. App. 25 ¶ 73.) 

B. Plaintiff Sara Weckhorst 

Plaintiff Weckhorst alleged that, in April 2014, she attended a fraternity event 

at Pillsbury Crossing, “a frequent K-State party location not far from campus.” (Id. 

620 ¶ 13.) There, Weckhorst “consum[ed] a large amount of alcohol and blacked 

out” while speaking with J.F., another KSU student who was one of the fraternity’s 

designated drivers. (Id.) J.F. took the passed-out Weckhorst to his truck and raped 

her in front of approximately fifteen other students, some of whom took video and 

photographs of the rape which they later posted on social media. J.F. then drove 

Weckhorst to the fraternity house. On the way, he again sexually assaulted her. At 

the fraternity house, “J.F. took Sara to the ‘sleep room,’ lined with beds, and raped 

her again. When he was finished, J.F. left her there, naked and passed out, and joined 

other fraternity members in partying 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 again. (Id. 621 ¶ 16.) 

Weckhorst sought help at the KSU Women’s Center and the Manhattan, 

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 Weckhorst but told her that KSU “would do nothing about 

the rapes or the two student-assailants because the rapes occurred off-campus.” (Id. 

622 ¶ 22.) Weckhorst then reported the rapes to the Riley County Police. In the 

meantime, the director of the KSU Women’s Center called the two perpetrators and 

told them Weckhorst had filed charges against them, which according to the 

allegations tipped off “the student-assailants and g[ave] them an opportunity to 

coordinate their stories,” in addition to invading Weckhorst’s privacy rights, 

exposing her to potential retaliation, compromising her safety, and placing her in 

fear. (Id. 624-25 ¶ 33.) 

Weckhorst later met with two associate deans for student life at 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 presence of alcohol at 

the fraternity party. She did so anonymously and, as a result, KSU’s Interfraternity 

Council (“IFC”) suspended the fraternity’s charter. 

Weckhorst and her parents continued to ask KSU to investigate the rapes, but 

KSU refused. Without permission, one of the associate deans took language from an 
10 

email received from Weckhorst and filed it as a complaint 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 board without any chance of this action benefitting Sara” 

because the Office of Greek Affairs “did not have jurisdiction to punish the studentassailants, only the fraternity.” (Id. 629 ¶ 48.) Because of this unauthorized release 

of information, Weckhorst “has since lived day-to-day not knowing who she might 

encounter who knows the details about the nightmare she endured.” (Id. 630 ¶ 48.)1

Moreover, because the alleged perpetrators 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 least once a 

day on-campus, Sara is overcome by panic, anxious that any passing man 

could be one of the student-assailants. She is constantly on the lookout 

for J.F. Recently, walking to the K-State library she passed a man who 

turned toward her. She jumped, screamed, and began to cry. Sara only 

uses campus resources like the library when she is joined by friends or 

her Chi Omega sorority sisters, and otherwise stayed home to avoid being 

alone in a campus setting. 

(Id. 637 ¶ 77.) Weckhorst’s grades “plummeted” and she lost her academic 

scholarship. (Id. 638 ¶ 79.) She “has exhibited symptoms of post-traumatic 

stress disorder,” has nightmares, has distanced herself from family and friends, 

 1

 Although Weckhorst alleges that KSU was deliberately indifferent because it did 

very little in response to her reports of rape, she also alleges that some of KSU’s 

alleged actions affirmatively caused her additional harm. For example, Weckhorst 

alleged that KSU informed the student-rapists that Weckhorst had gone to the police 

and KSU, without permission, and had released confidential information about 

Weckhorst and the rapes to fellow students. 
11 

and “has decreased her involvement in her sorority and philanthropy and has 

turned down leadership opportunities.” (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 them and not the 

victim of their attacks.” (Id. 637 ¶ 75.) Similar, to Plaintiff Farmer, Plaintiff 

Weckhorst alleges that, 

[b]y refusing to investigate off-campus sexual assaults at fraternities and 

fraternity events, like those Sara [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 no fear of 

school disciplinary action. K-State’s practice ignores the reality that 

many off-campus sexual assaults adversely impact the on-campus 

educational environment for victims, just as it did Sara’s. 

(Id. 638-39 ¶ 83.) 

C. These cases 

 Each Plaintiff separately sued KSU, asserting claims under Title IX and state 

law. In each case, KSU moved under Fed. R. Civ. P. 12(b)(6) to dismiss all claims. 

The district court denied KSU’s motions to dismiss the Title IX claims; that is the 

matter now before us on appeal.2

 

The district court held that each Plaintiff had sufficiently alleged 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 School District, 511 F.3d 

 2

 The district court dismissed the state-law claims. Those claims are not before us in 

these interlocutory appeals. 
12 

1114, 1119 (10th Cir. 2008), began by noting that, to state a Title IX claim, Plaintiffs 

had to allege sex discrimination that occurred within a KSU educational program or 

activity; KSU had actual knowledge of, but was deliberately indifferent to, sexual 

harassment that was so severe, pervasive and objectively offensive that it deprived 

Plaintiffs of access to the educational benefits or opportunities provided by KSU; and 

that KSU’s deliberate indifference caused each Plaintiff, at a minimum, to undergo 

harassment or made her liable or vulnerable to it. In its motions to dismiss, KSU 

argued, among other things, that Plaintiffs had failed to allege that any deliberate 

indifference by KSU had caused harm to Plaintiffs that is actionable under Title IX. 

The district court rejected that argument and declined to dismiss Plaintiffs’ Title IX 

claims. 

At KSU’s request, the district court invoked 28 U.S.C. § 1292(b) and 

certifie[d] its . . . Memorandum and Order . . . for interlocutory 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 indifference caused her to suffer actual further 

harassment, rather than alleging that Defendant’s post-assault deliberate 

indifference made her ‘liable or vulnerable to’ harassment; and (2) if 

Plaintiff is required to plead actual further harassment, whether her 

allegations of deprivation of access to educational opportunities satisfy 

this pleading requirement. 

(Aplt. App. 606; see also id. 1247.) The Tenth Circuit, then, permitted KSU to 

pursue these interlocutory appeals presenting these certified questions, see 28 U.S.C. 

§ 1292(b), and ordered these appeals consolidated.3 

 3

 In light of the narrow issues presented by these interlocutory appeals pursued under 

§ 1292(b), we have no occasion here to address KSU’s contention that the sexual 
13 

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 favorable to Plaintiffs. See Straub, 909 F.3d at 1287. “To 

withstand a motion to dismiss, a complaint must contain enough allegations of fact 

‘to state a claim that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). 

IV. LEGAL DISCUSSION

Accepting, for the purpose of these interlocutory appeals, that Plaintiffs’ 

factual allegations charge that KSU was deliberately indifferent 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 suffer actual further harassment, rather than alleging that 

Defendant’s post-assault deliberate indifference made her ‘. . . vulnerable to’ 

harassment.” (Aplt. App. 606.) KSU asserts that each Plaintiff must allege, as an 

element of her Title IX claim, that KSU’s deliberate indifference caused her to be 

subjected to actual further harassment by a student. Plaintiffs, instead, contend that it 

is sufficient for them to allege that KSU’s deliberate indifference made them 

 

harassment of which Plaintiffs complain did not occur within a KSU program or 

activity and, thus, KSU is not responsible for student-on-student sexual harassment 

occurring off campus at fraternity parties or in fraternity houses. 
14 

“vulnerable to” harassment. As explained below, Plaintiffs have the more persuasive 

argument and we, therefore, affirm the district court’s decision. 

A. It is sufficient for Plaintiffs to allege that KSU’s deliberate indifference made 

them “vulnerable to” sexual harassment. Title IX does not require a subsequent 

sexual assault before a plaintiff can sue. 

The Supreme Court, in Davis, has already answered the legal question 

presented here. To explain, we begin with the statutory language. Title IX provides: 

[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) (emphasis added). In applying Title IX’s language—“[n]o 

person . . . shall, on the basis of sex, . . . be subjected to discrimination . . .”—to a 

case involving student-on-student harassment, the Supreme Court ruled: 

If a funding recipient does not engage 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 a minimum, 

“cause [students] to undergo” harassment or “make them liable or 

vulnerable” to it. Random House Dictionary of the English Language 1415 

(1966) (defining “subject” as “to cause to undergo the action of something 

specified; expose” or “to make liable or vulnerable; lay open; expose”); 

Webster's Third New International Dictionary 2275 (1961) (defining 

“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 viable Title IX claim by 

alleging alternatively either that KSU’s deliberate indifference to their reports of rape 

caused Plaintiffs “‘to undergo’ harassment or ‘ma[d]e them liable or vulnerable’ to it.” 

526 U.S. at 645 (emphasis added); see Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 
15 

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, made her more vulnerable to it, or made her more likely 

to experience it”), rev’d on other grounds, 555 U.S. 246 (2009); id. at 172 (stating that 

Davis’s language, “mak[ing] them liable or vulnerable to” harassment, “sweeps” broader 

than requiring further actual harassment to have occurred); Hernandez v. Baylor Univ., 

274 F. Supp. 3d 602, 613 (W.D. Tex. 2017) (citing Davis and stating that “the 

Supreme Court has made clear that to ‘subject’ a student to harassment a school need 

only make the student vulnerable to that harassment”; further stating that a 

recipient’s actionable “discriminatory harm can include the harm faced by studentvictims who are rendered vulnerable to future harassment and either leave school or 

remain at school and endure an educational environment that constantly exposes 

them to a potential encounter with their harasser or assailant”; elaborating that the 

required harm could include “forcing the student to change his or her study habits . . . 

or lowering the student’s grades”); see also, e.g., Joyce v. Wright State Univ., 

No. 3:17-cv-387, 2018 WL 3009105, at *8 (S.D. Ohio June 15, 2018); Karasek v. 

Regents of Univ. of Calif., No. 15-cv-03717-WHO, 2015 WL 8527338, at *12-*13 

(N.D. Cal. Dec. 11, 2015) (unreported) (citing cases); Takla v. Regents of Univ. of 

Calif., No. 2:15-cv-04418-CAS(SHx), 2015 WL 6755190, at *4-*5 (C.D. Cal. Nov. 

2, 2015) (unreported); Kelly v. Yale Univ., No. Civ.A 3:01-CV-1591, 2003 WL 

1563424, at *4-*5 (D. Conn. Mar. 26, 2003) (unreported). To underscore that a Title 

IX plaintiff is not required to allege that she suffered actual additional incidents of 
16 

sexual harassment, the Supreme Court in Davis referred to the Random House 

Dictionary definition of “subject” to include, “to make liable . . . ; lay open; expose.” 

Davis, 526 U.S. at 645. 

KSU’s contrary argument, that Plaintiffs must allege (and eventually prove) that 

KSU’s deliberate indifference to their reports of rape caused each Plaintiff to endure 

further actual incidents of sexual harassment simply ignores Davis’s clear alternative 

language recognizing that a funding recipient’s “deliberate indifference must, at a 

minimum, ‘cause students to undergo’ harassment or make them ‘liable or vulnerable 

to’” sexual harassment, 526 U.S. at 645 (emphasis added). We must give effect to each 

part of that sentence. 

Doing so is consistent with Title IX’s objectives, which include protecting 

individual students against discriminatory practices, Cannon, 441 U.S. at 704. 

The alternative offered by the University—i.e., that a student must be 

harassed or assaulted a second time before the school’s clearly

unreasonable response to the initial incident becomes actionable, 

irrespective of the deficiency of the school’s response, the impact on the 

student, and the other circumstances of the case—runs counter to the 

goals of Title IX and is not convincing. 

Karasek, 2015 WL 8527338, at *12. 

Once a funding recipient, like KSU, has actual knowledge of sexual 

harassment that is severe, pervasive and objectively offensive enough to deprive a 

student of access to the educational benefits and resources the recipient offers,4 see 

 4

 No one asserts that the sexual harassment alleged in these cases is not sufficiently 

extreme. 
17 

Davis, 526 U.S. at 633, 650-51, the recipient cannot, acting with 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 harassment”). Critically, then, KSU’s alleged liability 

stems directly from its own conduct, its own deliberate indifference to known 

student-on-student sexual harassment occurring in its programs and activities that is 

sufficiently severe, pervasive, and objectively offensive enough to deprive a student 

of access to the educational opportunities the recipient provides. See Davis, 526 U.S. 

at 633. KSU is wrong to contend that, by holding it liable for its own deliberate 

indifference to the serious rape charges, we are requiring the university to remediate 

the harm caused by the student rapists rather than KSU itself. 

We conclude, then, that Plaintiffs 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 requiring an allegation 

of subsequent actual sexual harassment. 

B. Plaintiffs have adequately pled that KSU made them “vulnerable to” 

harassment 

Plaintiffs sufficiently pled that KSU’s deliberate indifference to their reports 

of rape made them vulnerable to harassment by alleging that the fear of running into 

their student-rapists caused them, among other things, to struggle in school, lose a 

scholarship, withdraw from activities KSU offers its students, and avoid going 

anywhere on campus without being accompanied by friends or sorority sisters. See 
18 

Joyce, 2018 WL 3009105, at *7-*8 (S.D. Ohio) (declining to dismiss Title IX claim 

based on funding recipient university’s failure to enforce restraining order 

prohibiting assailant from being on campus because “it could be said that 

[university’s] alleged failure to enforce the expulsion order made [plaintiff] Joyce 

‘vulnerable’ to additional incidents of sexual assault and sexual harassment by [the 

perpetrator], even though she never actually encountered him on campus”); Kelly, 

2003 WL 1563424, at *4-*5 (D. Conn.) (holding Title IX plaintiff sufficiently 

alleged that funding recipient’s deliberate indifference to her reported rape—by 

ignoring her “requested academic and residential accommodations after the assault” 

and her reported “discomfort and fear that she would feel if she encountered” the 

alleged assailant—made her “liable or vulnerable” to her assailant’s harassment, even 

though no further actual harassment occurred because victim left her dorm and her 

classes); see also Doe ex rel. Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226, 233 

(D. Conn. 2009) (stating that a reasonable jury could find that funding recipient 

forcing high school victim of sexual assault to attend school with her assailant 

amounted to sufficiently severe harassment to deprive victim of access to educational 

opportunities, based on “potential 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 reported that senior high 

student raped her and where funding recipient housed both junior and senior high 

schools in same building, funding recipient could be liable under Title IX for its postassault deliberate indifference which “constantly exposed” the plaintiff “to the 
19 

possibility of an encounter with” the perpetrator, even if there was no evidence that 

the perpetrator actually harassed the victim after she reported rape). 

Plaintiffs’ allegations are quite specific and reasonable under the 

circumstances. Plaintiffs allege more than a general fear of running into their 

assailants. They allege that their fears have forced them to take very specific actions 

that deprived them of the educational opportunities offered to other students. In 

addition, they have alleged a pervasive atmosphere of fear at KSU of sexual assault 

caused by KSU’s inadequate action in these cases. A Title IX plaintiff’s alleged fear 

of encountering her attacker must be objectively reasonable, but under the horrific 

circumstances alleged here Plaintiffs have adequately alleged that KSU’s deliberate 

indifference to their rape reports reasonably deprived them of educational 

opportunities available to other students at KSU. See Williams v. Bd. of Regents of 

Univ. Sys. of Ga., 477 F.3d 1282, 1297 (11th Cir. 2007) (stating that student rape 

victim’s decision to withdraw from school was “reasonable and expected” “[i]n light 

of the harrowing ordeal” she endured). Future cases will undoubtedly be asked to 

draw lines on when a victim’s fear of further sexual harassment is sufficient to 

deprive that student of educational opportunities that the educational institution 

offers to others, but we have no hesitation in concluding that the allegations in these 

complaints are sufficient to survive a motion to dismiss, where all inferences are 

drawn in favor of Plaintiffs. 

C. KSU’s arguments to the contrary are unavailing 
20 

We now briefly address KSU’s contrary arguments. KSU latches on to a 

number of cases invoking the phrases “further discrimination” or “ 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 relies are the Tenth Circuit’s decisions in 

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). As detailed below, Rost and Escue were decided at the summary judgment 

stage of litigation, rather than at the pleading stage. In each case, the Tenth Circuit 

upheld the district court’s summary judgment determination that the Title IX plaintiff 

had failed to present sufficient evidence for a reasonable jury to find that the funding 

recipient was deliberately indifferent. In making that determination, the Tenth 

Circuit pointed to evidence that the sexual harassment stopped after the funding 

recipient took action. Thus, although both cases did look at whether there had been 

continuing sexual harassment after the recipient took remedial action, they did so for 

the purpose of illuminating whether the funding recipient had been clearly 

unreasonable. Neither case had occasion to address the question at issue here, what 

injury does the funding recipient’s deliberate indifference have to cause a plaintiff to 

be actionable under Title IX. Neither case held that a Title IX plaintiff was required 

to allege subsequent actual incidents 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 interlocutory appeal 

on the pleadings, all parties have to accept, and do accept, that KSU was deliberately 

indifferent in failing to take remedial actions. Thus, the issue presented in Rost and 

Escue—whether the educational institution was deliberately indifferent—is not 

before us. Instead, here KSU is seeking to add a new pleading burden to a Title IX 

claimant, which is that, even accepting that KSU was deliberately 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 recipient’s deliberately 

indifferent response to her complaints. 

Plaintiffs, instead, argue—and we have agreed—that once they show that the 

funding recipient was deliberately indifferent to their complaints of peer sexual 

harassment, they can show the requisite harm caused by that deliberate indifference 

by alleging and proving that the prior sexual assaults were so grievous and the 

likelihood of continuing to encounter the sexual predators on campus so credible that 

KSU’s inaction by itself deprived them of the “benefits . . . under any education 

program . . . receiving Federal financial assistance.” Rost, 511 F.3d at 1119. In 

short, they allege that KSU created such an adverse environment for learning for 

them by its dismissive treatment of their complaints of rape that it was that 

environment that reasonably prevented them from accessing the educational 

opportunities available to other students. That issue was not presented in nor 

resolved by either Rost or Escue. 
22 

In Escue, a college student alleged 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 contact between the student and the professor, including 

immediately transferring the student out of the offending professor’s class, 

confronting the professor about his behavior, and eventually non-renewing him. Id. 

at 1150. This court determined that the school’s actions (which are dramatically 

different from essentially no action taken here by KSU) were sufficient to rebut the 

plaintiff’s allegation that the University had been deliberately indifferent. Id. at 

1154-56. In reaching that conclusion on the deliberate indifference issue, the Tenth 

Circuit noted that, “Ms. Escue [the student] does not allege that further sexual 

harassment occurred as a result of [the school’s] deliberate indifference.” Id. at 

1155. That determination was made in the context of illuminating the adequacy of 

the university’s actions. Nothing in that opinion held or even suggested that a 

complaining student would have to show subsequent offending conduct as a 

causation element in order to prevail even after the funding recipient had been found 

to have been deliberately indifferent. 

In Rost, a special education student alleged that several of her male high 

school classmates coerced her into performing sexual acts with them. 511 F.3d at 

1117. Rost upheld summary judgment for the recipient school district because there 

was no evidence that the school district’s response—“immediately 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 deliberate 
23 

indifference. Id. at 1121. It was in that context that Rost noted that the studentvictim’s mother “does not contend that further sexual harassment occurred as a result 

of the district’s deliberate indifference after [the student-victim’s] disclosure” of the 

ongoing sexual harassment to the school district. Id. at 1123-24. In fact, there was 

no opportunity for further harassment there because the victim’s mother withdrew the 

victim from the school and “[t]here [wa]s no evidence in the record that Ms. Rost 

was willing to work with school officials and allow K.C. to return to school under 

some accommodation.” Id. at 1124. Still, we noted that, “[i]f K.C. had expressed 

interest in returning to the school and school officials had not provided a safe 

educational environment, then she 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 concluding that the school district 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 certainly did not hold that a 

Title IX plaintiff had to prove an actual subsequent sexual assault or harassment in 

order to state a viable Title IX claim. If anything, Rost’s closing hypothetical 

suggests that, had the victim returned to school and had the district had been 

deliberately indifferent, causing 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 addressing the question of whether the educational 

funding recipient had been “deliberately indifferent,” that courts might look to see 

whether the offending action continued thereafter. However, consulting subsequent 
24 

behavior as an evidentiary aid in determining if the school’s action taken had been 

deliberately indifferent is a wholly different thing than requiring a continuation of the 

offending behavior as a separate element of 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 believes supports its 

position. Most relevant is the Eleventh Circuit’s decision in Williams v. Board of 

Regents of University System of Georgia, 477 F.3d 1282 (11th Cir. 2007), a case 

cited by both parties. In that case, Plaintiff Williams alleged that the funding 

recipients at issue there—the University of Georgia and its athletic association, id. at 

1294—were deliberately indifferent, id. at 1288-90.5 The Eleventh Circuit did say 

“that a Title IX plaintiff at a motion to dismiss stage must allege that the Title IX 

recipient’s deliberate indifference to the initial discrimination subjected the plaintiff 

to further discrimination.” Id. at 1296 (emphasis added). Importantly, however, 

Williams defined “further discrimination” not to require further overt acts of assault 

or abuse. Instead, the Eleventh Circuit recognized that injuries similar to those 

Plaintiffs allege here would satisfy its “further harassment” requirement. Williams 

explained that “further discrimination” included “effectively denying Williams an 

 5

 KSU asserts that Williams is a pre-assault deliberate indifference case. In fact, the 

plaintiff in Williams asserted claims alleging the funding recipients were deliberately 

indifferent both before and after she was sexually assaulted. See 477 F.3d at 1288-

90, 1296-97. 
25 

opportunity to continue to attend” the University 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 them, or by “implementing a more protective sexual 

harassment policy to deal with future incidents,” id. at 1296-97; see also, e.g., 

Hernandez, 274 F. Supp. 3d at 613 (W.D. Tex.) (holding that, “[w]hile allegations of 

further assault or harassment are necessary for a claim under Title IX,” that 

requirement can be met by allegations of “harm faced by student-victims who are 

rendered vulnerable to future harassment and either leave school or remain at school 

and endure an educational environment that constantly exposes them to a potential 

encounter with their harasser or assailant” (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 Williams to require allegations that the funding 

recipient’s deliberate indifference caused “further discrimination,” but holding such 

“further discrimination” can include the hostile environment created by “the 

possibility of further encounters between a rape victim and her attacker,” which can 

“deprive the victim of access to educational opportunities provided by a university” 

(internal quotation marks omitted)). 

KSU further cites decisions from other circuits that it argues require a showing 

of “further harassment” or “further discrimination.” But those cases are easily 

distinguishable. See K.T. v. Culver-Stockton College, 865 F.3d 1054, 1058 (8th Cir. 
26 

2017) (addressing situation where there was no opportunity for further harassment 

because the victim did not attend the school); Reese v. Jefferson School District No. 

14J, 208 F.3d 736, 738, 740 (9th Cir. 2000) (addressing situation where there was no 

opportunity for further harassment because students involved were graduating.) 

In conclusion, the out-of-circuit cases that KSU cites are not only not binding 

on us but are also either distinguishable or they end up ultimately supporting the 

conclusion we reach here. To the extent that ambiguous dicta can be found in any of 

them, they certainly cannot affect 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 reported to KSU that other KSU students had raped 

them. We must assume for purposes of these interlocutory appeals that KSU was 

deliberately indifferent in responding to Plaintiffs’ rape reports by failing to take any 

reasonable action to address and remedy those matters. The Supreme Court, in 

Davis, held that, to be actionable, a federal education funding recipient’s deliberate 

 6

 KSU finally asserts that Plaintiffs lack Article III standing to assert their claims. 

KSU did not raise this argument below and the district court did not certify this 

question for interlocutory appeal. We address the argument briefly because Article 

III standing implicates our jurisdiction. However, Plaintiffs have adequately alleged 

their standing under Article III, which “requires allegations—and, eventually, 

proof—that the plaintiff personally suffered a concrete and particularized injury in 

connection with the conduct about which [s]he complains.” Trump v. Hawaii, 138 

S. Ct. 2392, 2416 (2018) (internal quotation marks, alteration omitted). Plaintiffs 

have alleged that the conduct of which they complain caused them a concrete and 

particularized injury by depriving them of access to the educational resources and 

opportunities KSU offers its students. 
27 

indifference to reports of student-on-student sexual harassment—here, rape—“must, 

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

vulnerable to it.” 526 U.S. at 644-45 (internal quotation marks, alterations omitted) 

(emphasis added). We conclude, therefore, that a Title IX plaintiff must allege, at a 

minimum, that the funding recipient’s deliberate indifference caused her to be 

vulnerable to further harassment. Plaintiffs have met that pleading requirement here 

by alleging, among other things, that KSU’s deliberate indifference caused them 

objectively to fear encountering their unchecked assailants on campus, which in turn 

caused Plaintiffs to stop participating in the educational opportunities KSU offered 

its students. We, therefore, AFFIRM the district court’s decision to deny KSU’s 

motions to dismiss Plaintiffs’ Title IX claims.