Ross v. University of Tulsa , 859 F.3d 1280 ( 2017 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 20, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ABIGAIL ROSS,
Plaintiff - Appellant,
v. No. 16-5053
UNIVERSITY OF TULSA,
Defendant - Appellee.
____________________
EQUAL RIGHTS ADVOCATES;
SURVJUSTICE INC.,
Amici Curiae.
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:14-CV-00484-TCK-PJC)
_________________________________
John Clune, Hutchinson Black and Cook, LLC, Boulder, Colorado (Lauren
E. Groth, Hutchinson Black and Cook, LLC, Boulder, Colorado, J. Spencer
Bryan, and Steven J. Terrill, Bryan & Terrill Law, PLLC, Tulsa,
Oklahoma, with him on the briefs), for Plaintiff-Appellant Abigail Ross.
John David Lackey, Paul & Lackey, P.C., Tulsa, Oklahoma, for Defendant-
Appellee University of Tulsa.
Rebecca Peterson-Fisher, Equal Rights Advocates, San Francisco,
California, filed a brief for Amici Curiae Equal Rights Advocates and
SurvJustice Inc.
_________________________________
Before KELLY, EBEL, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
The plaintiff (Ms. Abigail Ross) was allegedly raped by a fellow
student at the University of Tulsa (Mr. Patrick Swilling). The alleged rape
led Ms. Ross to sue the university for money damages under Title IX of the
Education Amendments Act of 1972. Under Title IX, universities that
receive federal financial assistance cannot discriminate on the basis of
gender. See 20 U.S.C. § 1681(a). Such discrimination occurs when a
university obtains notice of sexual harassment and responds with deliberate
indifference. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290
(1998).
In this case, Ms. Ross presents distinct theories of the university’s
deliberate indifference.
The first theory involves what happened before the alleged rape: that
the university acted with deliberate indifference by failing in 2012 to
adequately investigate reports that Mr. Swilling had raped another student
(J.M.).
The second theory involves what happened after the alleged rape of
Ms. Ross. After Ms. Ross reported the rape, the university conducted a
student-conduct hearing. The purpose was to determine whether Mr.
Swilling had violated university policy by raping Ms. Ross. By the time of
2
the hearing, university officials had learned of prior reports of sexual
harassment committed by Mr. Swilling. But these reports were excluded at
the hearing. Ms. Ross alleges that exclusion of these reports constituted
deliberate indifference on the part of the university.
The University of Tulsa obtained summary judgment on both
theories, and Ms. Ross appeals. On the first theory, the dispositive issue is
whether a fact-finder could reasonably infer that an appropriate person at
the university had actual notice of a substantial danger to others. On the
second theory, we must determine whether a reasonable fact-finder could
characterize exclusion of the prior reports as deliberate indifference.
We conclude that both theories fail as a matter of law. On the first
theory, campus-security officers were the only university employees who
knew about reports that J.M. had been raped. Based on Ms. Ross’s
arguments, a reasonable fact-finder could not infer that campus-security
officers were appropriate persons for purposes of Title IX. And on the
second theory, there is no evidence of deliberate indifference by the
University of Tulsa. The university excluded prior reports of sexual
harassment based on a reasonable application of university policy. Thus,
we affirm the award of summary judgment to the university.
I. Standard of Review
In considering the award of summary judgment, we engage in de
novo review. Koch v. City of Del City, 660 F.3d 1228, 1237 (10th Cir.
3
2011). This review requires us to view the summary-judgment evidence in
the light most favorable to Ms. Ross, resolving all factual disputes and
drawing all reasonable inferences in her favor. Estate of Booker v. Gomez,
745 F.3d 405, 411 (10th Cir. 2014). Summary judgment is appropriate only
if the University of Tulsa shows that (1) there are no genuine issues of
material fact and (2) the University of Tulsa is entitled to judgment as a
matter of law. Koch, 660 F.3d at 1238.
II. The Elements of Ms. Ross’s Claim
For both theories, Ms. Ross must satisfy four elements:
1. The University of Tulsa had actual notice of a substantial risk
that Mr. Swilling would commit an act of sexual harassment
(such as sexual violence) against a student.
2. The University of Tulsa was deliberately indifferent to that
risk.
3. The sexual harassment was severe, pervasive, and objectively
offensive.
4. The sexual harassment deprived Ms. Ross of access to the
university’s educational benefits or opportunities.
See Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1246 (10th Cir. 1999). The
University of Tulsa challenges only the first and second elements.
On the first element, the University of Tulsa could obtain notice only
through an appropriate person. Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. 274, 290 (1998). An appropriate person “is, at a minimum, an official
4
of the [university] with authority to take corrective action [on behalf of the
university] to end the discrimination.” Id.On the second element, a university is “deemed ‘deliberately
indifferent’ to acts of student-on-student harassment only where the
[university’s] response to the harassment or lack thereof is clearly
unreasonable in light of the known circumstances.” Davis ex rel. LaShonda
D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648 (1999).
III. Ms. Ross’s First Theory (Prior to the Alleged Rape of Ms. Ross)
Ms. Ross’s first theory involves what happened before her alleged
rape: According to Ms. Ross, the University of Tulsa failed to adequately
investigate two reports in 2012 that Mr. Swilling had raped J.M. 1 For this
theory, Ms. Ross points to evidence that in 2012, two football players had
reported a rape of J.M. to campus security and J.M. then confirmed the
rape. But at J.M.’s behest, campus-security officers dropped the matter.
Ms. Ross contends that dropping the matter left Mr. Swilling free to
sexually assault others at the university.
1
Courts are split on whether notice can consist of prior reports. See
Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114,
1119 (10th Cir. 2008); Escue v. N. Okla. Coll., 450 F.3d 1146, 1153 (10th
Cir. 2006). But we need not weigh in on this split, as the university does
not deny that notice can theoretically consist of prior reports of sexual
harassment. For the sake of argument, we assume that prior reports can be
sufficient. Even with that assumption, Ms. Ross’s first theory would fail as
a matter of law.
5
Like the district court, we reject this theory as a matter of law. But
our reasoning differs from the district court’s.
In the district court’s view, a fact-finder could reasonably conclude
that two high-ranking campus-security officers were appropriate persons.
But the district court held that (1) J.M.’s report was too vague to provide
notice and (2) even if J.M.’s report had provided such notice, the
University of Tulsa’s response would not have been clearly unreasonable.
To support the second holding, the district court observed that
 J.M. had declined to press criminal charges against Mr.
Swilling or file a student-conduct complaint and
 J.M. had indicated that she did not want disruption in her life
prior to her upcoming graduation.
Thus, the court reasoned, it was not clearly unreasonable for the university
to drop the matter.
We take a different view. Viewing the evidence in the light most
favorable to Ms. Ross, a fact-finder could justifiably infer that campus-
security officers had learned of the reported rape. That knowledge could
reasonably suggest that dropping the investigation was clearly
unreasonable, leaving a potential predator free to sexually assault others at
the university. But based on Ms. Ross’s arguments, a reasonable fact-
finder could not conclude that the campus-security officers had authority
to take corrective action. In the absence of such authority, Ms. Ross’s first
theory fails as a matter of law.
6
A. The reports by the football players and J.M. could have
provided campus-security officers with actual notice.
The threshold inquiry is whether the campus-security officers
obtained actual notice in 2012 of a substantial risk to individuals on
campus. In our view, a reasonable fact-finder could infer such notice.
“‘[A]ctual notice requires more than a simple report of inappropriate
conduct . . . .’” Escue v. N. Okla. Coll., 450 F.3d 1146, 1154 (10th Cir.
2006) (quoting Doe v. Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57, 63 (D.
Me. 1999)). Here, however, the reports provided far more. In our view,
these reports could have led a fact-finder to reasonably infer actual notice
on the part of campus-security officials.
1. A reasonable fact-finder could infer that J.M. had
characterized her sexual encounter as a rape.
In 2012, two football players called campus security and reported
that their friend, J.M., had been raped in her campus apartment by Mr.
Swilling. The football players explained that they had learned of the rape
from J.M.’s roommate. According to the football players, the roommate
had overheard the rape.
Following this report, J.M. spoke with campus-security officers. The
parties disagree over what J.M. shared with campus security. According to
Ms. Ross, J.M. confirmed that she had been raped the prior night;
according to the University of Tulsa, J.M. stated that the sexual encounter
7
had been consensual. Ms. Ross’s position is supported by at least three
evidentiary items.
The first is a recorded conversation in 2014 between J.M. and a
campus-security officer, Sergeant Zach Livingston. During this
conversation, J.M. acknowledged that (1) Mr. Swilling had sexually
assaulted her in 2012 and (2) she had reported the assault shortly thereafter
to campus-security officers. The conversation included this exchange:
Sergeant Livingston: I’m just trying to figure out because
when, you know, everything that we’ve
discovered about it has said that when
you came in that you said it was a
consensual deal.
J.M.: No.
Appellant’s App’x, vol. V at 1201, 3:16-3:28 (Plaintiff’s Response to
Defendant’s Partial Motion for Summary Judgment, Exhibit 12). 2
The second evidentiary item is a recorded conversation between J.M.
and an investigator from the Tulsa County District Attorney’s Office.
During this conversation, J.M. said that in 2012, she had told campus-
security officers: “Patrick [Swilling] had taken advantage of me,” “it was
not with my . . . acknowledgement,” and “I just don’t want to even think
2
The record of this interview, like others cited in this opinion, is
available only as an audio recording. Our citations for the audio recordings
provide the page numbers where the recordings are indexed and the time
stamps of the relevant material. The parentheticals provide the titles of the
exhibits as given in the table of contents to the appendix.
8
about it anymore.” Appellant’s App’x, vol. V at 1202, 39:02-39:47
(Plaintiff’s Response to Defendant’s Partial Motion for Summary
Judgment, Exhibit 13). J.M. also indicated that she had explained her
preference not to pursue the matter with Mr. Swilling because
 she had only one semester remaining before graduation,
 she did not want her private life to be publicized, and
 Mr. Swilling’s father was a powerful figure who had played
professional football.
J.M. added that the campus-security officers had agreed that Mr. Swilling’s
father was a prominent figure.
The third evidentiary item is a recorded conversation between a
former campus-security officer and a Tulsa police detective. The detective
stated: “[T]he other thing was that [J.M.] said that you guys knew . . . that
. . . when she filled out [a written report] that . . . she put in there that she
was raped.” Appellant’s App’x, vol. V at 1203, 13:43-13:54 (Plaintiff’s
Response to Defendant’s Partial Motion for Summary Judgment, Exhibit
14). 3
3
Some summary-judgment evidence indicates that campus-security
officers destroyed J.M.’s written statement. In light of this potential
destruction of evidence, Ms. Ross argues that “it was inappropriate for the
district court to have credited [the University of Tulsa] with [J.M.]’s report
being too ‘vague’ to require further action when the precise content of that
complaint is no longer available due to [the University of Tulsa’s] own
destruction.” Appellant’s Opening Br. at 34. We need not address this
9
The University of Tulsa points to contrary accounts from current and
former campus-security officers. According to these accounts, J.M.
reported in 2012 that the sexual activity had been consensual. Although a
fact-finder could reasonably credit these accounts, we must resolve this
factual dispute favorably to Ms. Ross. See Part I, above. Doing so, we
conclude that a fact-finder could reasonably determine that J.M. had told
campus security in 2012 that she was raped by Mr. Swilling.
2. The fact-finder could reasonably infer that the reports by
J.M. and the football players had been sufficiently specific
to supply actual notice.
In our view, the fact-finder could justifiably infer that (1) J.M.’s
report was sufficiently detailed and (2) the reports by the football players
added specificity to J.M.’s report. The district court reached a different
conclusion, concluding for four reasons that J.M.’s report was too vague to
provide actual notice. We disagree with the court’s reasoning.
First, the district court noted that J.M. had been reluctant to speak
with campus security in 2012. But J.M.’s reluctance need not mean that her
report was vague.
Second, the district court noted that J.M. had not used the words
“rape” or “assault” when talking to campus-security officers. This
observation is immaterial, for J.M. denied telling campus-security officers
argument because the district court’s vagueness analysis was otherwise
flawed. See Part III(A)(2), below.
10
that the sexual encounter had been consensual. See Part III(A)(1), above.
Thus, a fact-finder could justifiably conclude that J.M. had described a
rape. See Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 132, 136-37 (2d
Cir. 2001) (accepting for purposes of summary judgment that a woman had
reported a rape to her employer even though the woman had not used the
word “rape”). In addition, the football players added clarity, stating that
J.M. had been raped by Mr. Swilling.
Third, the district court stated that J.M. had not provided campus
security with “facts or details.” Ross v. Univ. of Tulsa, 180 F. Supp. 3d
951, 968 (N.D. Okla. 2016). But, from the reports by J.M. and the football
players, the campus-security officers could ascertain “the basic facts, the
who, what, when, and where.” See United States v. Fusaro, 708 F.2d 17, 25
(1st Cir. 1983). For example, a fact-finder could justifiably conclude that
the campus-security officers had known
 who was reportedly involved (J.M. and Mr. Swilling),
 what reportedly happened (Mr. Swilling raped J.M.),
 when the rape reportedly occurred (the prior evening), and
 where the rape reportedly occurred (in J.M.’s campus
apartment).
A fact-finder could justifiably conclude that these basic facts provided
campus-security officers with actual notice.
11
The University of Tulsa appears to argue that greater specificity is
required when the alleged harasser was a student rather than a teacher. But,
even if this were true, the reports here were sufficiently specific to provide
actual notice to the university.
Fourth, the district court asserted that J.M. had not accused Mr.
Swilling of any specific misconduct. But, as discussed above, a fact-finder
could justifiably conclude that J.M. had reported a rape. See Part III(A)(1),
above. 4
Rejecting the district court’s four rationales, we conclude that the
fact-finder could reasonably view the reports by J.M. and the football
players as sufficiently specific to constitute actual notice to campus-
security officers.
* * *
A fact-finder could reasonably conclude that J.M. had reported a rape
in 2012. Of course, the fact-finder might also reach the opposite
conclusion. But at this stage of the proceedings, we must resolve this
factual dispute favorably to Ms. Ross. See Part I, above. Based on the
4
The two amici curiae argue that the district court’s analysis is also
flawed because under § 1983, “an official cannot escape a finding of
deliberate indifference where the evidence shows that he ‘refused to verify
underlying facts that he strongly suspected to be true, or declined to
confirm inferences of risk that he strongly suspected to exist.’” Amici Br.
at 14 (quoting Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005)). Because
we have elsewhere determined that the district court’s analysis was
erroneous for other reasons, we need not address the amici’s argument.
12
reports by J.M. and the football players, the fact-finder could justifiably
conclude that campus-security officers had actual notice of a substantial
danger posed by Mr. Swilling’s presence at the university. 5
B. The fact-finder could justifiably conclude that campus-
security officers had acted with deliberate indifference.
A university is “deemed ‘deliberately indifferent’ to acts of student-
on-student harassment only where the [university’s] response to the
harassment or lack thereof is clearly unreasonable in light of the known
circumstances.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ.,
526 U.S. 629, 648 (1999). The resulting issue is whether a fact-finder
5
In discussing the existence of actual notice, the University of Tulsa
apparently contends that the university lacked substantial control over the
context for the alleged rapes of J.M. and Ms. Ross.
The apparent contention about J.M.’s rape appears irrelevant because
J.M. has not sued.
For the alleged rape of Ms. Ross, the university could incur liability
only by exercising “substantial control over . . . the context in which the
[alleged rape] occur[red].” Davis ex rel. LaShonda D. v. Monroe Cty. Bd.
of Educ., 526 U.S. 629, 645 (1999). Ms. Ross’s alleged rape occurred in a
private apartment on campus.
The fact-finder could reasonably infer university control over a rape
in the apartment. For example, the summary-judgment evidence indicates
that the university exerts disciplinary authority over students for
misconduct that occurs in private apartments on campus. In addition, if Mr.
Swilling had been found responsible in 2012 for raping J.M., the university
could have expelled him and barred him from the campus. By barring Mr.
Swilling from the campus, the university could potentially have prevented
him from sexually harassing students on campus. In these circumstances, a
fact-finder could reasonably conclude that the university had retained
substantial control over the context for Ms. Ross’s alleged rape.
13
could justifiably conclude that campus-security officers had acted in a
clearly unreasonable manner.
Viewing the summary-judgment evidence in the light most favorable
to Ms. Ross, the fact-finder could reasonably conclude that campus-
security officers had acted in a clearly unreasonable manner when dropping
the investigation. Thus, the fact-finder could reasonably conclude that
campus-security officers had been deliberately indifferent.
Ms. Ross does not dispute that in 2012, J.M.
 declined to press criminal charges against Mr. Swilling or to
file a student-conduct complaint and
 indicated that she did not want disruption in her life prior to
graduation.
The district court focused on these facts, reasoning that further
investigation of Mr. Swilling would have disrupted J.M.’s life. Thus, the
district court concluded that campus-security officers had not acted with
deliberate indifference when dropping the investigation.
But the fact-finder could reasonably conclude that campus-security
officers had known that further investigation was necessary to gauge the
significance of Mr. Swilling’s danger to others. One campus-security
officer acknowledged that investigation is necessary to avert a threat to
other students regardless of whether an alleged victim has chosen to
cooperate:
14
Q. Okay. Why would you retain or even begin an
investigation when the alleged victim doesn’t appear to
want to make a report?
A. Whether or not the victim was interested in making a
report or not, it was still a reportable offense. And the
university had a duty to investigate and determine if that
offense had been committed and report accordingly if it
was found that it had been, with or without the victim
cooperation.
Q. You would agree that merely because somebody does not
want to report something, doesn’t mean the alleged
perpetrator is not still a threat to other students?
A. Correct. Most generally failure of victim cooperation is
likely in sexual related offenses. And it could be for a
number of -- you know, fear, embarrassment or other
reasons for them not to cooperate. However, as a law
enforcement officer there is still a duty to investigate the
crime.
Appellant’s App’x, vol. VI at 1222-23. Similarly, guidance from the Office
for Civil Rights states that universities should investigate even when an
alleged victim fails to report sexual harassment or to cooperate in the
investigation:
Once a school has notice of possible sexual harassment of
students . . . it should take immediate and appropriate steps to
investigate or otherwise determine what occurred and take
prompt and effective steps reasonably calculated to end any
harassment, eliminate a hostile environment if one has been
created, and prevent harassment from occurring again. These
steps are the school’s responsibility whether or not the student
who was harassed makes a complaint or otherwise asks the
school to take action.
Office for Civil Rights Guidance at 15. Perhaps for this reason, University
of Tulsa Dean Yolanda Taylor acknowledged that the university would
15
have incurred an obligation to investigate even if the complaining
individual had declined to participate. In these circumstances, a fact-finder
could justifiably conclude that
 the presence of a rapist on the university campus would pose a
substantial risk to others and
 campus-security officers had acted in a clearly unreasonable
manner when dropping the investigation. 6
But this does not mean that we can impute deliberate indifference to
the university itself. Until Ms. Ross reported the rape, the only university
employees that knew of J.M.’s alleged rape were campus-security officers.
The resulting issue is whether these officers were appropriate persons
under Title IX.
C. Based on Ms. Ross’s arguments, a reasonable fact-finder
could not conclude that the University of Tulsa’s campus-
security officers were appropriate persons.
To trigger Title IX liability, a university must have actual notice
through an appropriate person. Escue v. N. Okla. Coll., 450 F.3d 1146,
1152 (10th Cir. 2006). An appropriate person “is, at a minimum, an official
of the [university] with authority to take corrective action [on behalf of the
6
Ms. Ross and the amici also present other arguments, contending that
the university acted with deliberate indifference in (1) failing to provide
J.M. with all necessary information and accommodations and (2)
disregarding the university’s own policies, past practices, and legal
obligations. We need not address these arguments.
16
university] to end the discrimination.” Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 290 (1998); see Part II, above.
A fact-finder could reasonably conclude that campus-security
officers had learned in 2012 that J.M. was complaining of a rape rather
than describing a consensual sexual encounter. But there is nothing to
suggest that this information went beyond campus-security officers.
Therefore, we must consider whether Ms. Ross’s arguments could
reasonably support characterization of campus-security officers as
appropriate persons.
In district court, Ms. Ross argued that all campus-security officers
were appropriate persons. The district court did not go this far. Instead, the
court concluded only that a reasonable fact-finder could regard two high-
ranking campus-security officers as appropriate persons: Security Director
Joe Timmons and Patrol Captain Paul Downe. For this conclusion, the
district court gave three reasons. On appeal, Ms. Ross defends the district
court’s conclusion and argues that the court’s reasoning would support
characterization of all campus-security officers as appropriate persons.
In our view, Ms. Ross has not justified treatment of all campus-
security officers as appropriate persons. Thus, Ms. Ross cannot avoid
summary judgment on her theory regarding the university’s response to the
reports by the football players and J.M.
17
1. The District Court’s First Reason
The district court’s first reason was that the University of Tulsa had
designated campus security as a proper recipient of sexual-harassment
reports. Based on this designation, the district court compared the role of
campus-security officers to the role that teachers had in Montgomery v.
Independent School District No. 709, 109 F. Supp. 2d 1081 (D. Minn.
2000). The Montgomery court explained that
the School District’s sexual harassment policy imposes upon
teachers a duty to convey reports of sexual harassment to the
school principals. It is therefore clear that teachers had the
authority to take at least this minimal corrective measure
which, if effectively carried out, would impart knowledge of
the harassment to higher School District officials with even
greater authority to act.
Id. at 1099. Factually, our case bears some resemblance to Montgomery.
Legally, however, the Supreme Court in Gebser has rejected use of
vicarious liability and agency principles as grounds for liability under Title
IX. In our view, Gebser requires us to reject the district court’s first
reason.
Analogizing her circumstances to those in Montgomery, Ms. Ross
notes that university policy required campus-security officers to
automatically report sexual assaults to the Office of Student Affairs. For
this argument, Ms. Ross interprets the Supreme Court’s opinion in Gebser
v. Lago Vista Independent School District, 524 U.S. 274 (1998). There the
Supreme Court explained that an appropriate person “is, at a minimum, an
18
official of the [university] with authority to take corrective action [on
behalf of the university] to end the discrimination.” 524 U.S. at 290; see
Parts II, III(C), above. In Ms. Ross’s view, campus security’s role in
receiving and forwarding complaints means that campus-security officers
“institute corrective measures” for the University of Tulsa. Gebser, 524
U.S. at 290. Essentially, Ms. Ross reads Gebser as holding that anyone
who participates in the initiation of a corrective process is an “appropriate
person.”
The district court’s reasoning and Ms. Ross’s argument would stretch
the Supreme Court’s opinion in Gebser. Gebser provides that if campus-
security officers cannot themselves take corrective action, they would not
be considered appropriate persons. See Part II, above. And merely passing
on a report of sexual harassment to someone authorized to take corrective
action is not itself corrective action. See Plamp v. Mitchell Sch. Dist. No.
17-2, 565 F.3d 450, 459 (8th Cir. 2009) (holding that specified school
personnel are authorized to report potentially discriminatory conduct,
“[b]ut that authority does not amount to an authority to take a corrective
measure or institute remedial action within the meaning of Title IX”); Rosa
H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660-61 (5th Cir. 1997)
(indicating that notice of harassment by employees who lack authority,
beyond reporting the misconduct to other employees, is insufficient to
trigger a school’s liability under Title IX).
19
To decide otherwise would turn the deliberate-indifference standard
into vicarious liability. For example, consider a school where every
employee receiving a report of sexual harassment must convey the report to
the principal. If one employee fails to convey a report to the principal, that
failure could be attributed to the school as a whole. This type of vicarious
liability is precisely what the Supreme Court sought to avoid through the
deliberate-indifference standard. See Gebser, 524 U.S. at 287-90 (rejecting
the application of vicarious liability and agency principles as grounds for
triggering liability under Title IX); see also Davis v. Monroe Cty. Bd. of
Educ., 526 U.S. 629, 642 (1999) (stating that in Gebser, the Supreme Court
“rejected the use of agency principles to impute liability to the district for
the misconduct of its teachers”).
Ms. Ross’s contrary interpretation of Gebser would create Title IX
liability for clerical errors by ministerial personnel who lack any
discretionary authority to take corrective measures. For example, consider
the assistant for a Dean of Students who is tasked with adjudicating
student-conduct complaints. Under Ms. Ross’s interpretation, this assistant
would be considered an appropriate person simply for receiving and
forwarding reports to the Dean of Students. The clerical act of receiving
and forwarding a report may ultimately lead the Dean of Students to take
corrective action, but is not itself corrective action. Nothing in Gebser
would suggest liability for a university based solely on the assistant’s loss
20
of a report or failure to forward it to the Dean of Students. See, e.g., Hill v.
Cundiff, 797 F.3d 948, 971 (11th Cir. 2015) (holding that a teacher’s aide
was not an “appropriate person” for purposes of Title IX).
Under Gebser, we reject the district court’s first reason for treating
campus-security officers as appropriate persons.
2. The District Court’s Second Reason
The district court’s second reason focused on campus security’s
investigative role. For example, the district court observed that campus-
security officers “work[] directly with [the Office of Student Affairs] to
investigate . . . instances of campus violence . . . .” Ross v. Univ. of Tulsa,
180 F. Supp. 3d 951, 967 (N.D. Okla. 2016). 7 On appeal, Ms. Ross
similarly asserts that campus-security officers’ investigative role makes
the officers appropriate persons for purposes of Title IX.
It is not clear what Ms. Ross is arguing. She might be arguing that
campus-security officers are appropriate persons because investigations are
7
The district court also stated that campus security works with the
Office of Student Affairs to “combat campus violence and properly report
instances of campus violence to the federal government.” Ross, 180 F.
Supp. 3d at 967. But aside from conducting investigations, Ms. Ross has
not
 explained how campus-security officers combat campus
violence or
 argued that reporting instances of campus violence to the
federal government would constitute corrective action.
21
necessary for the university to start its corrective process. This potential
argument would assume that anyone participating in the initiation of a
corrective process is an “appropriate person.” But this assumption would
entail the sort of vicarious liability that the Supreme Court tried to avoid
in Gebser. See Part III(C)(1), above.
If Ms. Ross is instead characterizing the investigation itself as a form
of corrective action, the argument would also fail. Perhaps investigation is
a form of corrective action; perhaps not. The answer is not self-evident and
we need not resolve this question today, for Ms. Ross has not explained or
supported characterization of an investigation as a form of corrective
action. To the extent that she is taking this position, her argument is
perfunctory and therefore waived. See Hill v. Kemp, 478 F.3d 1236, 1255
n.21 (10th Cir. 2007) (declining to consider an argument raised in a
“perfunctory manner”). We therefore reject the district court’s second
reason for treating campus-security officers as appropriate persons.
3. The District Court’s Third Reason
The district court’s third reason involved the university’s designation
of campus-security officers as appropriate persons. The court reasoned that
this designation created an expectation among students:
Third, [the university’s] Sexual Violence Policy and other
surrounding facts could be viewed as creating an equitable
expectation in students (and their parents) that a report to [the
university’s campus-security officers] triggers any and all of
[the university’s] “corrective processes.” Adopting [the
22
university’s] argument would allow it to designate [the
university’s campus-security officers] as an entity to receive
sexual violence complaints in its own Title IX policies, fail to
ensure that such entity delivers reports to the school’s Title IX
coordinators, and effectively shield itself from Title IX civil
liability. The Court does not read Gebser to require this result.
Therefore, a jury could find the 2012 Report to [the
university’s campus-security officers] was made to an
“appropriate person.”
Ross v. Univ. of Tulsa, 180 F. Supp. 3d 951, 967 (N.D. Okla. 2016). In her
reply brief, Ms. Ross supports this rationale:
As is clear, the district court recognized that it would
circumvent the purpose of Title IX if [the university] were
permitted to designate its law enforcement officers as
appropriate persons in its own Title IX policies, then avoid
liability by merely suggesting otherwise in summary judgment
briefing. This would render Title IX law on “appropriate
person” utterly meaningless. Accordingly, the district court’s
ruling on this issue should be affirmed. 8
Appellant’s Reply Br. at 13.
8
In her reply brief, Ms. Ross alleged that “Dean [of Students Yolanda]
Taylor [has] explained that a report to [campus security] is the equivalent
of a report to the Title IX coordinator.” Appellant’s Reply Br. at 12 (citing
Appellant’s App’x, vol. V at 984). But the cited material—a deposition of
Dean Taylor—does not support this allegation. In this deposition, Ms.
Taylor was asked to “list out the different people that might interact with
somebody who has reported sexual violence.” Appellant’s App’x, vol. V at
983. She complied by listing the Title IX coordinator and various deputy
coordinators. Dean Taylor was then asked whether there was “[a]nybody
else besides those coordinators and yourself? . . . What about campus
security?” Id. at 948. She responded: “I'm sorry, and campus security of
course.” Id. Dean Taylor was simply stating that campus-security officers
“might interact with somebody who has reported sexual violence.” See
Appellant’s App’x, vol. V at 983-84. She was not characterizing a report to
campus security as the equivalent of a report to the Title IX coordinator.
23
We reject this argument. To the extent that university policy
indicates that campus-security officers would begin the university’s
“corrective processes,” that fact would not justify treating the officers as
appropriate persons for purposes of Title IX. See Part III(C)(1), above.
Ms. Ross adds that university policy designated campus security as
“appropriate persons.” But university policy does not expressly designate
campus security as appropriate persons.
As a result, we reject the district court’s third reason for treating
campus-security officers as appropriate persons.
* * *
Ms. Ross’s summary-judgment evidence indicates that
campus-security officers learned in 2012 that J.M. was reporting a rape
committed by Mr. Swilling. But Ms. Ross has not justified treatment of
campus-security officers as appropriate persons for purposes of Title IX.
Thus, Ms. Ross’s first theory fails as a matter of law. 9
9
At oral argument, the panel asked the University of Tulsa (1) whether
campus-security officers had the power to arrest and (2) if so, whether that
power would make these officers appropriate persons. But Ms. Ross did not
rely on the arrest power in district court or in her appellate briefs. Thus,
we need not decide whether the possible power to arrest would make
campus-security officers appropriate persons.
24
IV. Ms. Ross’s Second Theory (After the Alleged Rape of Ms. Ross)
Ms. Ross also presents a second theory: that the University of Tulsa
responded to her report in a way that was clearly unreasonable. This theory
is based on an evidentiary rule that the University of Tulsa allegedly uses
for student-conduct hearings: Evidence of the student’s prior misconduct
may be considered only if there had been an earlier finding of
responsibility. Ms. Ross alleges improper reliance on this rule to exclude
evidence of Mr. Swilling’s prior misconduct. 10
A. The Absence of a Prior Finding of Responsibility
When the university conducted the hearing on Ms. Ross’s complaint,
Mr. Swilling had not been found responsible for any acts of sexual
harassment. As a result, the hearing officer did not consider reports of Mr.
Swilling’s other acts of sexual misconduct. In her opening brief, Ms. Ross
attributed the absence of a finding of responsibility to the University of
Tulsa’s failure to properly investigate Mr. Swilling’s past acts of sexual
harassment. This theory fails as a matter of law.
10
At oral argument, Ms. Ross appeared to contend that this evidentiary
rule had not been applied in the hearing. Instead, she contended that the
university had imposed a blanket ban on all evidence of prior sexual
history. This argument is waived because it was presented for the first time
at oral argument. See Lebahn v. Nat’l Farmers Union Uniform Pension
Plan, 828 F.3d 1180, 1188 n.8 (10th Cir. 2016) (stating that arguments
made for the first time at oral argument are waived). Thus, we need not
consider this contention.
25
Ms. Ross’s theory is subject to the same deliberate-indifference
standard set out in Davis ex rel. LaShonda D. v. Monroe County Board of
Education: A university is “deemed ‘deliberately indifferent’ to acts of
student-on-student harassment only when the recipient’s response to the
harassment or lack thereof is clearly unreasonable in light of the known
circumstances.” 526 U.S. 629, 648 (1999); see Part II, above.
As a threshold matter, it is not clearly unreasonable for the
University of Tulsa to apply its alleged evidentiary rule. We base this
conclusion on guidance from the U.S. Department of Education’s Office
for Civil Rights.
This guidance indicates that it “may be helpful” for schools to
consider evidence of prior acts of sexual harassment when there has been a
finding of responsibility:
If there is a dispute about whether harassment occurred or
whether it was welcome . . . [,] [t]he following types of
information may be helpful in resolving the dispute:
. . . .
 Evidence that the alleged harasser has been found to have
harassed others may support the credibility of the student
claiming the harassment . . . .
Office for Civil Rights Guidance at 9. This guidance does not recommend
use of prior reports in the absence of a finding of responsibility. Thus, the
University of Tulsa’s alleged evidentiary rule conforms to this guidance.
26
Ms. Ross does not argue that the use of this rule was inherently
unreasonable. 11 Rather, she argues that using this rule at the hearing was
clearly unreasonable because the University of Tulsa had failed to properly
investigate Mr. Swilling’s past acts.
This argument fails because further investigation, standing alone,
would not have permitted consideration of Mr. Swilling’s alleged acts of
sexual harassment in the past. The summary-judgment record contains
unrebutted evidence that university policy would permit consideration of
these alleged acts only if there had been a separate hearing, trial, or similar
proceeding that had resulted in a finding of responsibility on the part of
Mr. Swilling.
11
Ms. Ross argues that the university’s dean of students acknowledged
that use of this evidentiary rule had been unreasonable. Appellant’s
Opening Br. at 42 n.7 (“[Dean Taylor] has since acknowledged that she
knew the school was acting unreasonably in failing to consider the prior
accusations of sexual assault against Mr. Swilling.”). This characterization
is inaccurate. Dean Taylor was asked about using past sexual-harassment
allegations in a conduct hearing; she responded that she would “like to be
able to use all of the information,” but understood from counsel that she
could not do that. Appellant’s App’x, vol. V at 1090. Dean Taylor did not
say or imply that she regarded exclusion of the prior allegations as
“unreasonable.”
Similarly, Ms. Ross argues that Dean Taylor “acknowledged that had
she been permitted to consider all four sexual misconduct allegations
against Swilling, the outcome would have been different.” Appellant’s
Opening Br. at 3. But Ms. Ross elsewhere acknowledges that Dean Taylor
corrected this testimony with an erratum, “chang[ing] ‘would’ to ‘could.’”
Appellant’s Opening Br. at 42 n.7. But even if Dean Taylor believed that
the outcome would have been different, exclusion of the evidence would
not have been clearly unreasonable.
27
In her reply brief, Ms. Ross shifted her argument, contending that the
university should also have adjudicated Mr. Swilling’s responsibility for
other alleged acts of sexual harassment prior to adjudicating his
responsibility for the alleged rape of Ms. Ross. This argument is waived,
for it did not appear in the opening brief. State Farm Fire & Cas. Co. v.
Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (“[A]ppellant failed to raise
this issue in his opening brief and, hence, has waived the point.”).
The argument also fails as a matter of law. Prior to Ms. Ross’s
report, the only university officers that knew about the incident with J.M.
were campus-security officers. And the two other reports about Mr.
Swilling were unknown even to campus-security officers prior to Ms.
Ross’s report. By the time others at the university learned of the incident
involving J.M., she had already left the university and indicated that she
did not want to participate in a student-conduct hearing. Similarly, a
second alleged victim had refused to file a complaint or to speak with
anyone at the university about the incident. And a third alleged victim had
never even attended the University of Tulsa.
In addition, summary-judgment evidence indicates that
 when an alleged victim refuses to participate in a hearing, it
can become more difficult for the school to find the alleged
aggressor responsible for misconduct and
 university policy prevents hearings from taking place when the
victim refuses to even give a statement to the university.
28
And there is no evidence that Ms. Ross had asked the University of Tulsa
to adjudicate responsibility for the other alleged acts prior to the hearing
on her own student-conduct complaint.
In our view, the university did not act in a way that was clearly
unreasonable by failing to sua sponte adjudicate Mr. Swilling’s
responsibility for the prior reports of sexual harassment.
B. The Alleged Failure to Consider Guidance from the Office
for Civil Rights
Ms. Ross does not argue that any of the university’s policies are
inherently unreasonable, but the amici do. They argue that the district
court erred by failing to consider applicable federal guidance in
determining the validity of the university’s evidentiary rule. In the amici’s
view, “the exclusion of evidence of prior sexual violence in student
disciplinary hearings ‘could lead to a “target rapist” on a college campus
being repeatedly accused but repeatedly cleared despite a pattern of the
same conduct.’” Amici Br. at 16 (quoting Ross v. Univ. of Tulsa, 180 F.
Supp. 3d 951, 972 (N.D. Okla. 2016)). In the view of the amici, this result
would be absurd. But the university’s application of its rule conforms to
the federal guidance. See Part IV(A), above. Thus, it was not absurd for the
University of Tulsa to apply its evidentiary rule.
29
C. The District Court’s Alleged Reliance on the Defense of
Good-Faith Reliance on Counsel
Ms. Ross argues that the district court erred in crediting the defense
of good-faith reliance on counsel. According to Ms. Ross, the University of
Tulsa “neither asserted this defense in its summary judgment briefing nor
offered any evidence necessary to meet its burden of proving the defense.”
Appellant’s Reply Br. at 19. For the sake of argument, we may assume that
(1) the district court drew this conclusion and (2) this conclusion was
erroneous. But these assumptions would not affect the outcome, for the
University of Tulsa would prevail as a matter of law even without a
defense involving good-faith reliance on counsel.
D. The Actions of the University’s Outside Counsel
At oral argument, Ms. Ross also contended that the university’s
outside counsel was an appropriate person for purposes of Title IX. This
contention was presented for the first time at oral argument, which was too
late. See Lebahn v, Nat’l Farmers Union Uniform Pension Plan, 828 F.3d
1180, 1188 n.8 (10th Cir. 2016) (stating that arguments made for the first
time at oral argument are waived). Therefore, we decline to consider this
argument.
* * *
We conclude that a reasonable fact-finder could not find that the
University of Tulsa had responded to Ms. Ross’s report in a way that was
30
clearly unreasonable. Thus, Ms. Ross’s second theory fails as a matter of
law.
V. Disposition
The district court awarded summary judgment to the University of
Tulsa. We affirm, rejecting Ms. Ross’s two theories.
On the first theory, Ms. Ross is correct that a fact-finder could
reasonably conclude that (1) the reports about J.M. had put campus-
security officers on notice of a rape and (2) the campus-security officers
acted with deliberate indifference by dropping their investigation into the
reported rape of J.M. But based on Ms. Ross’s arguments, the fact-finder
could not reasonably conclude that campus-security officers were
appropriate persons. Thus, Ms. Ross’s first theory fails as a matter of law.
Ms. Ross’s second theory also fails, for it was not clearly
unreasonable for the university to apply its policy excluding evidence of
other sexual harassment in the absence of a prior finding of responsibility.
Affirmed.
31