Doe v. Brown University , 896 F.3d 127 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1941
JANE DOE,
Plaintiff, Appellant,
v.
BROWN UNIVERSITY in Providence in the State of Rhode Island and
Providence Plantations, JONAH ALLEN WARD, and
YOLANDA CASTILLO-APPOLLONIO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Wendy Murphy, with whom Patrick T. Jones, Audrey R. Poore,
and Jones Kelleher LLP were on brief, for appellant.
Thomas R. Bender, Associate Counsel, Office of General
Counsel, Brown University, with whom Steven M. Richard and Nixon
Peabody LLP were on brief, for appellees.
Jenna M. Labourr and Washington Injury Lawyers, PLLC, on brief
for amici curiae Equal Means Equal, National Coalition Against
Violent Athletes, Allies Reaching for Equality, and Faculty
Against Rape, in support of appellant.
July 18, 2018
TORRUELLA, Circuit Judge. In November 2013, Jane Doe
("Doe"), then a freshman at Providence College, was sexually
assaulted by three students of Brown University ("Brown") on
Brown's campus. After Doe reported the assault to the local
authorities in the City of Providence, Brown notified Doe that it
would conduct an inquiry to determine whether the students had
violated Brown's Code of Student Conduct. Doe alleges that
eventually, Brown abandoned the investigation and did not initiate
any disciplinary action against the three Brown students. Doe
then initiated this action seeking damages and equitable relief
against Brown under Title IX of the Education Amendments to the
Civil Rights Act of 1964. 20 U.S.C. § 1681 et seq. The district
court granted Brown's motion for judgment on the pleadings, and
Doe now appeals that decision. For the reasons explained below,
we find that Doe's complaint did not, on its face, allege
sufficient facts for a plausible Title IX claim against Brown, and
therefore affirm the district court's grant of Brown's motion for
judgment on the pleadings.
I. Background
A. Factual Background
Because this case was decided on a motion for judgment
on the pleadings, we take the well-pleaded facts from the complaint
and draw all reasonable inferences in the plaintiff's favor.
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Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 137, 140
(1st Cir. 2016).
On November 21, 2013, Doe, a freshman at Providence
College,1 was socializing with some friends at a bar in Providence,
Rhode Island. While at the bar, Doe was drugged "against her
knowledge and will," transported by taxi to a Brown dormitory, and
sexually assaulted by three males over an extended period of time.
The assailants were all Brown students and members of Brown's
football team. Doe received medical treatment at a Massachusetts
hospital shortly thereafter.
On February 3, 2014, Doe reported the sexual assault to
the Providence Police Department. A Brown University Police
officer was present while Doe gave a statement to the Providence
Police. Between February and May 2014, the Providence Police
executed several search warrants for the dorm rooms and cell phones
of the Brown students suspected of assaulting Doe. The seized
cell phones revealed text messages between the Brown students that
referenced rape and contained explicit images of Doe, taken at the
time of the alleged sexual assault.
On June 19, 2014, Brown University notified Doe that she
had a right to file a complaint pursuant to Brown's Code of Student
1 Providence College is not affiliated with Brown University, and
Doe has not claimed that she was a Brown student.
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Conduct, but mentioned nothing regarding Doe's right to file a
Title IX complaint. Doe then explicitly requested that Brown
investigate her sexual assault following Title IX standards.
However, Brown insisted that it would only conduct an inquiry under
the Code of Student Conduct. As a result, on October 11, 2014,
Doe filed a complaint against Brown with the Department of
Education's Office for Civil Rights ("OCR").2
In June 2016, after Doe had repeatedly requested an
update on the status of Brown's inquiry, Brown responded that it
never completed the investigation and had abandoned any
disciplinary action against the three Brown students. On an
unspecified date, Doe withdrew from Providence College out of fear
for her safety and well-being while on the Providence College
campus and in the general Providence area. This fear, she alleges,
was a direct result of Brown's inactions regarding her sexual
assault, including Brown's failure to discipline the suspected
assailants.
B. Procedural Background
Doe filed suit against Brown seeking compensatory
damages and equitable relief under Title IX.3 In her complaint,
2 Doe's OCR complaint was accepted for investigation and remains
pending.
3 Doe also asserted two state law claims under the Rhode Island
Civil Rights Act, R.I. Gen. Laws § 42-112-1, and Rhode Island's
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Doe alleged that Brown had violated Title IX when it acted with
deliberate indifference after Doe's sexual assault by failing to
provide her a prompt, equitable, and effective response and redress
as Title IX requires. She also alleged that Brown failed to
enforce Title IX in the response to and redress of sex-based
violence about which it knew or should have known, thereby creating
a hostile environment prior to Doe's sexual assault. As a direct
result of Brown's actions or inactions, Doe claims to have suffered
substantial interference with her access to educational
opportunities or benefits, ultimately causing her to withdraw from
Providence College.
Brown moved for judgment on the pleadings, see Fed. R.
Civ. P. 12(c), and after a hearing, the district court granted
Brown's motion. Doe v. Brown Univ., 270 F. Supp. 3d 556, 563
(D.R.I. 2017). The district court found that "Doe's status as a
non-student [of Brown], regardless of her allegations that the
Court accepts as true, removes her from Title IX's private-cause-
of-action umbrella of protection." Id.Equal Protection clause, R.I. Const. art I, § 2, against Brown
University and certain Brown officials. However, the district
court dismissed these claims without prejudice after declining to
exercise supplemental jurisdiction over them. Since then, Doe has
refiled the state law claims in state court.
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II. Discussion
"We review a district court's grant of judgment on the
pleadings de novo." Mongeau v. City of Marlborough, 492 F.3d 14,
17 (1st Cir. 2007). In doing so, "we take the well-pleaded facts
and the reasonable inferences therefrom in the light most favorable
to the nonmovant (here, the plaintiff)." Kando v. R. I. State Bd.
of Elections, 880 F.3d 53, 58 (1st Cir. 2018). This Court "will
affirm a dismissal or judgment on the pleadings if the complaint
fails to state facts sufficient to establish a 'claim to relief
that is plausible on its face.'" Gray v. Evercore Restructuring
L.L.C., 544 F.3d 320, 324 (1st Cir. 2008) (quoting Trans–Spec Truck
Serv. v. Caterpillar Inc., 524 F.3d 315, 320 (1st Cir. 2008)). We
are, of course, "not bound by the district court's reasoning but,
rather, may affirm the entry of judgment on any ground made
manifest by the record." Kando, 880 F.3d at 58.
Title IX provides that "[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial
assistance." 20 U.S.C. § 1681(a). The Supreme Court has
recognized an implied "private right of action to enforce [Title
IX's] prohibition on intentional sex discrimination," see Cannon
v. Univ. of Chi., 441 U.S. 677, 690-993 (1979), which includes
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actions for monetary damages by private persons and "encompasses
intentional sex discrimination in the form of a recipient's
deliberate indifference." Jackson v. Birmingham Bd. of Educ., 544
U.S. 167, 173 (2005). While the Court has recognized that this
right of action extends to students and employees, it has never
expressly restricted it to those two categories of plaintiffs.
See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281
(1998); North Haven Bd. of Ed. v. Bell, 456 U.S. 512, 520-21
(1982). In fact, the Court has stated that "Title IX . . . broadly
prohibits a funding recipient from subjecting any person to
'discrimination' 'on the basis of sex.'" Jackson, 544 U.S. at
173. Sexual harassment, moreover, "can constitute discrimination
on the basis of sex under Title IX." Gebser, 524 U.S. at 283.
A recipient of federal funding can be liable under Title
IX if "its deliberate indifference 'subjects' its students to
harassment." Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 644
(1999) (brackets omitted). To succeed in bringing such a
"deliberate indifference" claim, a plaintiff must show that (1)"he
or she was subject to 'severe, pervasive, and objectively
offensive' sexual harassment"; (2) "the harassment caused the
plaintiff to be deprived of educational opportunities or
benefits"; (3) the funding recipient was aware of such harassment;
(4) the harassment occurred "in [the funding recipient's] programs
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or activities"; and (5) the funding recipient's response, or lack
thereof, to the harassment was "clearly unreasonable." Porto v.
Town of Tewksbury, 488 F.3d 67, 72-73 (1st Cir. 2007).
Doe dedicates a number of pages of her brief to arguing
that based on Cannon's four-part test,4 she has a private right of
action against Brown under Title IX. See Cannon, 441 U.S. at 689-
709. Doe further argues that the district court erred when it
found that she had no right to sue Brown because Brown lacked any
"authority or capacity to take corrective action on behalf of Doe
with regard to her education at Providence College." According
to Doe, because Title IX imposes liability when "the [funding]
recipient exercises substantial control over both the harasser and
the context in which the known harassment occurs," Davis, 526 U.S.
at 645 -- which Doe alleges is the case here -- her complaint
should have been allowed to proceed. We, however, do not need to
reach these arguments in light of our conclusion that the district
court's judgment on the pleadings was correct, albeit on other
4 Cannon's four part test considers: (1) whether the statute in
question was enacted for the benefit of a special class of which
plaintiff is a member; (2) whether the legislative history provides
any indication of congressional intent to create a private remedy;
(3) whether recognizing a private remedy would frustrate the
underlying purpose of the statue; and (4) whether recognizing a
private remedy would be inappropriate because the subject matter
involves issues better addressed by the states. 441 U.S. at 689-
709.
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grounds. Rather, this case turns on whether Doe's complaint, on
its face, pleads sufficient facts to establish a plausible claim
for relief under Title IX. And it does not.
Section 1681(a)'s text, prohibiting that any person "be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or
activity," indicates that a person may be "subject[] to
discrimination under" a funding recipient's education program
without necessarily being "excluded from participation in" or
being "denied benefits of" that program. 20 U.S.C. § 1681(a).
The Supreme Court confirmed as much in Bell. See 456 U.S. at 520-
21. There, when the Court determined that "Title IX proscribes
employment discrimination in federally funded education programs,"
id. at 535–36, it found that "[e]mployees who directly participate
in federal programs or who directly benefit from federal grants,
loans, or contracts clearly fall within the first two protective
categories" of Title IX, that is, "excluded from participation in"
and "denied the benefits of." Id. at 520-21. In addition, the
Court found that "a female employee who works in a federally funded
education program is 'subjected to discrimination under' that
program if [for example] she is paid a lower salary for like work,
given less opportunity for promotion, or forced to work under more
adverse conditions than are her male colleagues." Id. at 521. In
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other words, the "subject to discrimination under" clause captures
situations other than where a person has been "excluded from access
to" or "denied the benefits of" an educational program. The
"subject to discrimination under" clause covers situations where
a person -- while participating in a funding recipient's
educational program or activity -- has inferior access to or is
less able to enjoy the benefits of a particular educational program
relative to members of the opposite sex.
Thus, Bell implies that, in order for a person to
experience sex "discrimination under an education program or
activity," that person must suffer unjust or prejudicial treatment
on the basis of sex while participating, or at least attempting to
participate, in the funding recipient's education program or
activity. That a potential Title IX plaintiff seeking relief for
being "subjected to discrimination under" an education program
must be a participant, or at least have the intention to
participate, in the defendant's educational program or activity
seems logical since the "discrimination" that Title IX prohibits
is not the acts of sexual assault or sexual harassment in and of
themselves, but rather the differential treatment by a funding
recipient of persons of a particular sex who are taking part or
trying to take part in its educational program or activity but are
suffering acts of sexual harassment or assault that undermine their
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educational experience. Cf. Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80 (1998) ("We have never held that workplace
harassment . . . is automatically discrimination because of sex
merely because the words used have sexual content or connotations.
'The critical issue, Title VII's text indicates, is whether members
of one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed.'"
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1998)
(Ginsburg, J., concurring))).5 And here is where Doe's complaint
is lacking.
In her complaint, Doe alleged that she suffered
interference with her access to educational opportunities to the
point where she had to withdraw from Providence College, and argued
that "[n]othing in Title IX jurisprudence requires that a Plaintiff
must suffer interference with educational opportunities at the
offending institution." But we have to disagree.
Not only did the Supreme Court suggest in Bell that the
scope of Title IX's "subject to discrimination under" clause is
circumscribed to persons who experience discriminatory treatment
while participating, or at least attempting to participate, in
5 As we have noted before, "[w]e may turn to Title VII for guidance
on Title IX claims." Doe v. Trs. of Bos. Coll., 892 F. 3d 67, 92
n.18 (1st Cir. 2018).
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education programs or activities provided by the defendant
institution,6 cf. 456 U.S. at 520-21, but Davis also supports this
proposition, cf. 526 U.S. 629, 650-52. In Davis, while discussing
the circumstances under which schools may be liable for their
deliberate indifference to student-on-student sexual harassment,
the Court stated that
[F]unding recipients are properly held liable in damages
only where they are deliberately indifferent to sexual
harassment, of which they have actual knowledge, that is
so severe, pervasive, and objectively offensive that it
can be said to deprive the victims of access to the
educational opportunities or benefits provided by the
school.
Id. at 650 (emphasis added). The Court then emphasized this
limitation by explaining that a Title IX damages claim is available
when the harassment "so undermines and detracts from the victims'
educational experience, that the victim-students are effectively
6 We clarify, though, that a victim does not need to be an enrolled
student at the offending institution in order for a Title IX
private right of action to exist. Members of the public regularly
avail themselves of the services provided by educational
institutions receiving federal funding. For example, they
regularly access university libraries, computer labs, and
vocational resources and attend campus tours, public lectures,
sporting events, and other activities at covered institutions. In
any of those instances, the members of the public are either taking
part or trying to take part of a funding recipient institution's
educational program or activity. In the case before us, however,
Doe failed to allege that she had availed herself of any of Brown
University's educational programs in the past or that she intended
to do so in the future. She did not plead that Brown University's
alleged deliberate indifference to it prevented her from accessing
such resources at Brown.
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denied equal access to [the] institution's resources and
opportunities." Id. at 651. The Court further stated that "the
provision that the discrimination occur 'under any education
program or activity' suggests that the behavior be serious enough
to have the systemic effect of denying the victim equal access to
[the] educational program or activity." Id. at 652.
Doe's complaint alleged that she suffered "substantial
interference with her access to educational opportunities or
benefits" as a direct result of Brown's alleged deliberate
indifference. But her complaint did not allege that she
participated or even would have participated in any of Brown's
educational programs or activities. Even accepting all of Doe's
well-pleaded facts as true, her complaint contains no factual
allegation as to how Brown's deliberate indifference "deprive[d]
[Doe] of access to the educational opportunities or benefits
provided by [Brown]." Davis, 526 U.S. at 650. Therefore, Doe's
complaint, on its face, fails to establish that she has been
"subjected to discrimination under [Brown's] education program or
activity." 20 U.S.C. § 1681(a). Finding no plausible claim under
Title IX in Doe's complaint, we must affirm the district court's
grant of Brown University's motion for judgment on the pleadings.
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III. Conclusion
Like the district court before us, we also recognize
that Doe's complaint contains very serious allegations of sexual
assault on a university's campus. However, because Doe's
complaint failed to allege sufficient facts for a plausible Title
IX claim against Brown, we affirm the judgment of the district
court.
Affirmed.
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