Timothy Moxley v. The Ohio State University ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0214p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
STEVE SNYDER-HILL; RONALD MCDANIEL; DAVID
│
MULVIN; WILLIAM BROWN; KURT HUNTSINGER;
│
WILLIAM RIEFFER; STEVE HATCH; KELLY REED;
│
MELVIN ROBINSON; DOUGLAS WELLS; JAMES KHALIL;
│
JERROLD L. SOLOMON; JOSEPH BECHTEL; MICHAEL >
MURPHY; JOHN DAVID FALER; MATT MCCOY; GARY │ Nos. 21-3981/3991
AVIS; ROBERT SCHRINER; MICHAEL MONTGOMERY; │
JOHN DOES 1–22, 25, 27, 29–37, 39–47, 49, 52, 54, 56– │
60, 62–64, and 66–77 (21-3981); TIMOTHY MOXLEY; │
RYAN CALLAHAN; JOHN JACKSON, JR.; JAMES │
CARROLL; JEFFREY ROHDE; PATRICK MURRAY; │
EVERETT ROSS; JOHN DOES 78–95 and 97–105 (21- │
3991), │
Plaintiffs-Appellants, │
│
│
v. │
│
THE OHIO STATE UNIVERSITY, │
Defendant-Appellee. │
┘
Appeal from the United States District Court for the Southern District of Ohio at Columbus.
Nos. 2:18-cv-00736 (21-3981); 2:21-cv-03838 (21-3991)—Michael H. Watson, District Judge.
Argued: July 26, 2022
Decided and Filed: September 14, 2022
Before: GUY, MOORE, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Ilann M. Maazel, EMERY CELLI BRINCKERHOFF ABADY WARD &
MAAZEL, New York, New York, for Appellants. Michael H. Carpenter, CARPENTER, LIPPS
& LELAND, LLP, Columbus, Ohio, for Appellee. ON BRIEF: Ilann M. Maazel, Debra L.
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 2
Greenberger, Marissa R. Benavides, EMERY CELLI BRINCKERHOFF ABADY WARD &
MAAZEL, New York, New York, Adele P. Kimmel, Alexandra Z. Brodsky, PUBLIC JUSTICE,
Washington, D.C., Scott Elliot Smith, SCOTT ELLIOT SMITH, LPA, Columbus, Ohio, for
Appellants. Michael H. Carpenter, Timothy R. Bricker, David J. Barthel, CARPENTER, LIPPS
& LELAND, LLP, Columbus, Ohio, for Appellee. David A. Lebowitz, KAUFMAN LIEB
LEBOWITZ & FRICK LLP, New York, New York, Caroline Hickey Zalka, Alexandra Rose,
Seth Massey, WEIL, GOTSHAL & MANGES LLP, New York, New York, Arianna Scavetti,
WEIL, GOTSHAL & MANGES LLP, Washington, D.C., Roger A. Cooper, Mitchell A.
Lowenthal, Charity E. Lee, Sarah B. Gutman, CLEARY GOTTLIEB STEEN & HAMILTON
LLP, New York, New York, Jim Davy, ALL RISE TRIAL & APPELLATE, Philadelphia,
Pennsylvania, Tad Thomas, THOMAS LAW OFFICES, Cincinnati, Ohio, for Amici Curiae.
MOORE, J., delivered the opinion of the court in which CLAY, J., joined. GUY, J. (pp.
31–48), delivered a separate dissenting opinion.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. In his role as university physician and
athletic team doctor at the Ohio State University, Dr. Richard Strauss allegedly abused hundreds
of young men under the guise of performing medical examinations. The abuse occurred between
1978 and 1998, but it did not become public until 2018. After the allegations became public,
survivors of this abuse—including the plaintiffs in these cases—brought Title IX suits against
Ohio State, alleging that Ohio State was deliberately indifferent to their heightened risk of abuse.
The district court found that the plaintiffs’ claims were barred by the statute of limitations.
The district court erred. The plaintiffs adequately allege that they did not know and could
not reasonably have known that Ohio State injured them until 2018. Thus, at the motion-to-
dismiss stage, we cannot say that their claims accrued before then. We REVERSE and
REMAND for further proceedings consistent with this opinion.
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 3
I. BACKGROUND
A. Factual Allegations1
1. Strauss’s Conduct
Richard Strauss served on the Ohio State faculty starting in 1978.2 He soon became a
team physician. In that capacity, he “had regular contact with male student-athletes” in at least
seventeen different sports.3 He also served as a physician at Ohio State’s Student Health
Center.4 Strauss served in these roles until 1996, when Ohio State placed him on administrative
leave, investigated his conduct, and ultimately declined to renew his appointments with Student
Health Services and terminated his employment agreement with the Athletics Department.5 It
did not publicly provide reasons for these decisions. Ohio State conducted a hearing but did not
notify students or give them an opportunity to participate.6
Strauss remained a tenured faculty member. When he retired in 1998, Ohio State gave
him emeritus status.7 He opened a private men’s clinic near Ohio State to treat “common
genital/urinary problems,” advertised the clinic in Ohio State’s student newspaper, and continued
1
At the motion-to-dismiss stage, we “accept all plausible well-pled factual allegations as true.” Lutz v.
Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013). We therefore describe the factual allegations as
they are laid out in the complaints.
2
Snyder-Hill R. 123 (Second Am. Compl. (“SAC”) ¶¶ 126–27) (Page ID #2012); Moxley R. 16 (Am.
Compl. ¶¶ 67–68) (Page ID #217–18).
3
Snyder-Hill R. 123 (SAC ¶ 131) (Page ID #2012–13); Moxley R. 16 (Am. Compl. ¶ 72) (Page ID #218).
4
Snyder-Hill R. 123 (SAC ¶ 132) (Page ID #2013); Moxley R. 16 (Am. Compl. ¶ 73) (Page ID #218–19).
5
Snyder-Hill R. 123 (SAC ¶¶ 133–34) (Page ID #2013); Moxley R. 16 (Am. Compl. ¶¶ 74–75) (Page ID
#219).
6
Snyder-Hill R. 123 (SAC ¶¶ 133) (Page ID #2013); Moxley R. 16 (Am. Compl. ¶ 74) (Page ID #219).
7
Snyder-Hill R. 123 (SAC ¶ 134, 252–56) (Page ID #2013, 2033–34); Moxley R. 16 (Am. Compl. ¶¶ 75,
194–98) (Page ID #219, 240–41).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 4
to see and treat Ohio State students.8 The vice dean for the College of Medicine told Strauss that
“there would be no problem” with this arrangement.9
In his roles at Ohio State, Strauss regularly abused male students during medical
examinations, committing at least 1,429 sexual assaults, and 47 rapes.10 He “groped and fondled
students’ genitalia”11; “performed unnecessary rectal examinations and digitally penetrated
students’ anuses”12; “pressed his erect penis against students’ bodies”13; “drugged14 and anally
raped students”15; “masturbated during or after the exams”16; and engaged in other sexually
abusive behavior. Snyder-Hill R. 123 (Second Am. Compl. (“SAC”) ¶¶ 135–46) (Page ID
#2013–14); Moxley R. 6 (Am. Compl. ¶¶ 81–87) (Page ID #220). Each plaintiff alleges that
Strauss abused him between 1979 and 2000; all but four were Ohio State students during this
time.17
An independent investigation commissioned by Ohio State in 2018 and undertaken by the
law firm Perkins Coie substantiates the plaintiffs’ allegations of abuse. See Caryn Trombino &
8
Snyder-Hill R. 123 (SAC ¶¶ 262–63) (Page ID #2034–35); Moxley R. 16 (Am. Compl. ¶¶ 202–05) (Page
ID #241–42).
9
Snyder-Hill R. 123 (SAC ¶ 261) (Page ID #2034); Moxley R. 16 (Am. Compl. ¶ 203) (Page ID #241).
10
Snyder-Hill R. 123 (SAC ¶¶ 1, 3) (Page ID #1988–89); Moxley R. 16 (Am. Compl. ¶¶ 1, 3) (Page ID
#205).
11
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 309, 345, 374, 405, 435, 468–71, 496–97, 528–30, 554, 651, 669,
706, 749–752, 767–72, 930–31, 982–84, 1026, 1081–84, 1147) (Page ID #2043, 2050, 2054, 2058, 2061, 2065,
2068, 2071, 2074, 2085, 2087, 2092, 2098, 2100–01, 2121, 2128, 2133, 2139, 2147); Moxley R. 16 (Am. Compl.
¶¶ 246, 248–50, 253, 268, 271, 298, 336–38, 439) (Page ID #249–251, 254, 258, 263, 279).
12
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 308–09, 710, 733, 748–52, 770, 1516, 1681, 1890–91, 2061, 2117,
2501) (Page ID #2042–43, 2092, 2096–98, 2101, 2194, 2218, 2247–48, 2276, 2285, 2339); Moxley R. 16 (Am.
Compl. ¶¶ 296–97, 359, 455, 583, 666) (Page ID #258, 266, 281, 300, 313). At least two plaintiffs allege that
Strauss performed this conduct while the plaintiff was unconscious. See Snyder-Hill R. 123 (SAC ¶ 1122, 1947)
(Page ID #2144, 2256–57).
13
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 311, 1492, 2384, 2523) (Page ID #2043, 2191, 2322–23, 2342);
see also id. ¶¶ 1076–78 (Page ID #2139) (Strauss rubbed his testicles against patient’s thigh).
14
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 937, 1751) (Page ID #2122, 2227).
15
See, e.g., id. ¶ 1947 (Page ID #2256–57).
16
See, e.g., id. ¶¶ 1492, 2395 (Page ID #2191, 2324).
17
Id. ¶¶ 30–122 (Page ID #1996–2011); Moxley R. 16 (Am. Compl. ¶¶ 30–63) (Page ID #212–17).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 5
Markus Funk, Perkins Coie LLP, Report of the Independent Investigation: Sexual Abuse
Committed by Dr. Richard Strauss at The Ohio State University, (May 15, 2019) (hereinafter
“Perkins Coie Report”). The Perkins Coie Report found that Strauss sexually abused at least
177 male student patients, the majority of whom were student athletes.18 Perkins Coie Report at
1, 43.
2. Ohio State’s Conduct
The plaintiffs allege that Ohio State knew about, facilitated, and covered up Strauss’s
sexual abuse.19 Many students complained to Ohio State about Strauss’s abuse,20 and more than
50 members of the Athletics Department Staff knew about Strauss’s inappropriate sexual
conduct.21 Staff at the Student Health Center were also aware of and received many complaints
about Strauss’s examinations of male students.22 For example, during Strauss’s first year
working at Ohio State, a wrestler complained to staff at the Student Health Center “that Dr.
Strauss had examined his genitals for 20 minutes and appeared to be trying to get him excited.”23
In addition, Dr. Murphy, the head team physician had received at least five written reports about
Strauss’s misconduct.24
18
This number is lower than the number of alleged instances of sexual abuse in the complaint. The
difference is explained by (1) allegations that Strauss abused some athletes more than once; and (2) certain
limitations of the report, which noted: “it is impossible for us to determine with any certainty the total number of
students that Strauss sexually abused” but “that Strauss abused additional students whose accounts are not captured
here.” Perkins Coie Report at 39.
19
Snyder-Hill R. 123 (SAC ¶¶ 161–264, 278–79) (Page ID #2017–35, 2037–38); Moxley R. 16 (Am.
Compl. ¶¶ 5–11) (Page ID #205–07).
20
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 162–64, 168, 172, 198, 209, 217) (Page ID #2017–19, 2025,
2027); Moxley R. 16 (Am. Compl. ¶¶ 11, 13, 103–09) (Page ID #207–08, 224–25).
21
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 167, 172) (Page ID #2018–19); Moxley R. 16 (Am. Compl. ¶¶ 6,
113) (Page ID #206, 225).
22
See, e.g., Snyder-Hill R. 123 (SAC ¶ 174–176, 183–84, 186) (Page ID #2019–23); Moxley R. 16 (Am.
Compl. ¶ 115) (Page ID #226).
23
Moxley R. 16 (Am. Compl. ¶ 88) (Page ID #220).
24
Id. ¶ 117 (Page ID #226–27).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 6
The plaintiffs allege that, despite this knowledge, Ohio State took no action to prevent the
abuse.25 At times, Ohio State falsely told student athletes, as well as some staff members, that it
had not received prior complaints about Strauss or that all complaints were maintained in an
appropriate file.26 At other times, Ohio State employees had limited conversations with Strauss
about his behavior but failed to follow up, investigate, report, or meaningfully address the
concerns.27 Despite the complaints of abuse, Strauss’s supervisors rated Strauss’s performance
as “exceptional” and “excellent” in his evaluations and had a policy of never mentioning
allegations of sexual misconduct on evaluations.28 All the while, Ohio State required students to
be examined and treated by Strauss, often explicitly or implicitly making students feel that they
risked their scholarships or athletic opportunities if they refused.29
The Perkins Coie Report substantiates the plaintiffs’ claims that Ohio State knew of and
facilitated this abuse. The report found that although Ohio State received “persisten[t], serious[],
and regular[]” complaints from students, it took “no meaningful action . . . to investigate or
address the concerns until January 1996” when it quietly suspended Strauss. Perkins Coie
Report at 3; see id. at 87–162.
Even after Ohio State completed its perfunctory investigation in 1996, at which time it
ultimately suspended and terminated Strauss, it “hid the reason why it was investigating Strauss
and placing him on leave”; “actively concealed Dr. Strauss’ abuse by not investigating or
25
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 164–66, 173, 177, 184, 187, 210, 216–17, 222) (Page ID #2018–
23, 2027–28); Moxley R. 16 (Am. Compl. ¶¶ 118, 163) (Page ID #227, 235).
26
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 162, 221, 230, 319–25) (Page ID #2017–18, 2028, 2030, 2045–
46); Moxley R. 16 (Am. Compl. ¶¶ 103, 162) (Page ID #224, 234).
27
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 181–83, 188–91, 193) (Page ID #2021, 2023–25).
28
See, e.g., id. ¶¶ 226–29, 231 (Page ID #2029–30); Moxley R. 16 (Am. Compl. ¶¶ 167–70) (Page ID
#236).
29
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 199–201, 352–53, 429–30, 476) (Page ID #2025, 2051, 2061,
2065); Moxley R. 16 (Am. Compl. ¶¶ 141–42, 633, 720) (Page ID #232, 308, 323).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 7
attempting to identify the students Dr. Strauss harmed”; “further concealed Dr. Strauss’ abuse by
destroying medical records”;30 and shredded files related to Strauss’s sexual abuse.31
3. What the Plaintiffs Knew
Because the central issue at this stage is when the plaintiffs’ claims accrued, the most
relevant allegations relate to what the plaintiffs knew or had reason to know regarding Strauss’s
and Ohio State’s conduct and when they knew or had reason to know it. These allegations vary
among the different plaintiffs, but the plaintiffs all allege a significant gap between what they
know now and what they knew before the allegations about Strauss’s conduct became public.
First, most plaintiffs allege that they did not know they were abused until 2018.32 At the
time of the abuse, they were teenagers and young adults and did not know what was medically
appropriate.33 Strauss gave pretextual and false medical explanations for the abuse. For
example, he stated the abuse was necessary to perform a hernia check;34 check for muscle and
bone anomalies;35 check for STIs;36 perform a prostate exam;37 perform a rectal exam;38 monitor
30
Snyder-Hill R. 123 (SAC ¶¶ 244, 247–48) (Page ID #2032); Moxley R. 16 (Am. Compl. ¶¶ 186, 189–90)
(Page ID #238–39). Ohio State’s policy was to destroy medical records that were more than seven years old unless
there was a reason to maintain them. Snyder-Hill R. 123 (SAC ¶ 248) (Page ID #2032). Although complaints of
abuse should have given Ohio State a reason to keep the records, Ohio State nonetheless destroyed them. Id.
31
Snyder-Hill R. 123 (SAC ¶ 2571) (Page ID #2350); Moxley R. 16 (Am. Compl. ¶ 918) (Page ID #355).
32
See Snyder-Hill R. 123 (SAC ¶¶ 153–60) (Page ID #2016–17); Moxley R. 16 (Am. Compl. ¶¶ 94–101)
(Page ID #222–23).
33
See Snyder-Hill R. 123 (SAC ¶¶ 153–60) (Page ID #2016–17); Moxley R. 16 (Am. Compl. ¶¶ 97) (Page
ID #222–23).
34
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 554–55, 897, 993, 1368, 1463–64, 1522, 1569, 2215) (Page ID
#2074–75, 2117, 2129, 2175, 2187, 2195, 2201, 2298); Moxley R. 16 (Am. Compl. ¶¶ 248–49, 337–38, 374, 488,
616, 666, 832) (Page ID #250–51, 263, 268–69, 285, 305, 313, 341).
35
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 554–55) (Page ID #2074–75).
36
See, e.g., id. ¶¶ 1300, 1552 (Page ID #2166, 2199); Moxley R. 16 (Am. Compl. ¶ 537) (Page ID #291–
92).
37
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 2211–12) (Page ID #2298); Moxley R. 16 (Am. Compl. ¶ 583)
(Page ID #300).
38
See, e.g., Snyder-Hill R. 123 (SAC ¶ 2061) (Page ID #2276); Moxley R. 16 (Am. Compl. ¶ 616) (Page ID
#305).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 8
a patient’s testicles that were different sizes;39 check a patient’s lymph nodes;40 or treat a skin
infection on a patient’s penis.41
Thus, the plaintiffs allege, even students who felt “very uncomfortable during Dr.
Strauss’ examination[s]” often “did not understand or believe that Dr. Strauss had sexually
abused [them].”42 This was true even of many students who complained about Strauss’s conduct
at the time.43 Additionally, many students believed that because the conduct was so widely
known and talked about, it could not have been abuse.44 Similarly, many believed that Ohio
State would not have made Strauss the athletic team doctor unless his examinations were
legitimate, and thus, that the conduct was medically appropriate even if it was uncomfortable.45
The plaintiffs allege that Ohio State witnesses, including physicians, conceded in sworn
testimony that the students could not have known Strauss abused them because “patients do not
know what is a ‘normal exam’ because patients have a ‘lack of information’ about what is
medically appropriate.”46 Ohio State witnesses acknowledged that this is due in part to the fact
that “it is normal for patients to be naked in front of doctors and for doctors to touch them, that
‘doctors are in a position of superior knowledge and authority’ to patients, and that patients,
including OSU students, trusted their doctor to do what was medically appropriate.”47
The plaintiffs point to the Perkins Coie Report to support these allegations. Perkins Coie
decided that “it was essential for the Investigative Team to consult with suitably qualified
medical experts” “to discern whether, and to what extent, Strauss’ physical examinations of
39
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 1222, 1224, 2183) (Page ID #2156, 2294).
40
See, e.g., id. ¶ 1428 (Page ID #2182); Moxley R. 16 (Am. Compl. ¶ 752) (Page ID #328–29).
41
See, e.g., Moxley R. 16 (Am. Compl. ¶ 279) (Page ID #255).
42
Snyder-Hill R. 123 (SAC ¶ 391) (Page ID #2056); see also id. ¶¶ 444, 477, 542 (Page ID #2062, 2065,
2072); Moxley R. 16 (Am. Compl. ¶ 256) (Page ID #252).
43
See, e.g., Snyder-Hill R. 123 (SAC ¶ 391) (Page ID #2056).
44
Id. ¶¶ 451–52 (Page ID #2063).
45
Id. ¶¶ 450, 480–81 (Page ID #2063, 2066).
46
Id. ¶ 156 (Page ID #2016).
47
Id.
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 9
student-patients exceeded the boundaries of what was appropriate or medically necessary”
because the abuse “occurred in the context of a student’s purported medical examination.”
Perkins Coie Report at 12.48 The Perkins Coie Report also noted that, in general, patients may
have “confusion as to whether sexual abuse, in fact, occurred.” Perkins Coie Report at 11.49
Although most plaintiffs allege that they did not know that Strauss’s conduct was abuse,
nine allege that they did. For example, plaintiffs Snyder-Hill and Reed quickly recognized
Strauss’s conduct as abuse and promptly complained.50 John Doe 9 learned the conduct was
abusive when his primary care physician told him that Strauss’s actions “were inappropriate and
not medically necessary.”51 John Doe 19 realized that Strauss had abused him when he learned
about proper physician-patient conduct while attending medical school.52
Although plaintiffs differ as to whether they knew at the time that Strauss abused them,
all allege that they could not have known about Ohio State’s responsibility for the abuse.53 They
did not have reason to know that others had previously complained to Ohio State about Strauss’s
conduct, let alone how Ohio State had responded to any previous complaints.54 Two Ohio State
employees—Dr. Ted Grace, who was the director of Ohio State’s Student Health Services, and
Dr. Miller, who was Strauss’s direct supervisor—stated that they did not know of “any way” that
“any Ohio State student” could have known that Ohio State knew about Strauss’s abuse and
nonetheless failed to “get rid of” him.55 Further, each plaintiff alleges that, even if he had
investigated, further inquiry would have been futile because Ohio State controlled their access to
48
See Snyder-Hill R. 123 (SAC ¶ 157) (Page ID #2017); Moxley R. 16 (Am. Compl. ¶ 98) (Page ID #223).
49
See Snyder-Hill R. 123 (SAC ¶ 155) (Page ID #2016).
50
Id. ¶¶ 313–14, 407–12 (Page ID #2043–44, 2058–59).
51
Id. ¶¶ 939–40 (Page ID #2122).
52
Id. ¶ 1318 (Page ID #2168).
53
See, e.g., id. ¶¶ 265–69, 272, 329 (Page ID #2035–37, 2047); Moxley R. 16 (Am. Compl. ¶¶ 258, 260,
285, 304, 323) (Page ID #252, 256–57, 259, 261).
54
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 364, 420, 451, 482, 516, 544, 637) (Page ID #2052, 2060, 2063,
2066, 2070, 2073, 2083); see also id. ¶¶ 320–21, 323 (Page ID #2045–46) (Ohio State falsely informed complainant
that it had not received any previous complaints about Strauss).
55
Snyder-Hill R. 123 (SAC ¶¶ 265–66) (Page ID #2035); Moxley R. 16 (Am. Compl. ¶¶ 207–08) (Page ID
#242).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 10
information.56 In short, although plaintiffs allege that Ohio State administrators knew of the
abuse at the time, the plaintiffs allege that they did not know until 2018 that Ohio State
administrators knew or that they enabled and perpetuated the abuse.
In addition to the general allegations related to Ohio State’s conduct—such as hiding
what it knew, falsifying evaluations, and destroying records—some plaintiffs offer further
specific allegations of concealment. For example, after Snyder-Hill demanded a meeting to
address Strauss’s conduct, Grace sent him a letter falsely stating that Ohio State had never before
received a complaint about Strauss.57 It had, in fact, received multiple complaints, including one
just three days earlier.58 Grace also falsely told Snyder-Hill that all complaints would be kept in
Strauss’s personnel file.59 In reality, Strauss’s personnel file had no record of Snyder-Hill’s or
any other complaint.60 And, although Grace agreed to inform Snyder-Hill about any future
complaints, Grace never did, even in 1996 when the Ohio State investigator determined that
Strauss had been “performing inappropriate genital exams on male students” “for years.”61
Although the plaintiffs allege that they had no reason to know that Ohio State knew of
Strauss’s abuse, they allege varying degrees of knowledge about whether others knew of
Strauss’s conduct. Some had never heard others discuss Strauss’s conduct and did not know that
Strauss had behaved similarly toward other students.62 Others allege that Strauss’s conduct was
common knowledge among student athletes, who joked about it and discussed it amongst
56
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 335, 367, 482, 678, 740, 854, 1066) (Page ID #2048, 2053, 2066,
2088, 2096–97, 2112, 2137); Moxley R. 16 (Am. Compl. ¶¶ 324, 350, 366, 388, 405, 426) (Page ID #261, 265, 267,
271, 274, 277); see also Snyder-Hill R. 123 (SAC ¶¶ 243–48) (Page ID #2031–32) (Ohio State actively concealed
information).
57
Snyder-Hill R. 123 (SAC ¶¶ 320–21, 323) (Page ID #2045–46).
58
Id.
59
Id. ¶ 323, 334 (Page ID #2046, 2048).
60
Id. ¶ 327 (Page ID #2047).
61
Id. ¶¶ 319, 328 (Page ID #2045, 2047).
62
See, e.g., id. ¶ 674 (Page ID #2088).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 11
themselves.63 Some discussed Strauss’s conduct only with other student athletes and were not
aware whether their coaches knew about this conduct.64
Others allege that they knew that coaches or other staff were aware of Strauss’s conduct.
Tennis coach John Daly “regularly joked about Dr. Strauss’ examinations of male athletes,” and
“threatened student-athletes that they would have to see Dr. Strauss, if they did not do what the
coach asked.”65 Members of other teams likewise joked and complained about Strauss’s
examinations in front of coaches and trainers, who treated Strauss’s methods as “normal.”66
Although most of Strauss’s abuse took place in private exam rooms, Strauss abused some
athletes in full view of various adults and student bystanders. For example, one plaintiff alleges
that, in full view of trainers and bystanders, Strauss instructed a player—who came to Strauss for
a toe infection—to drop his pants, and then Strauss started groping the player’s penis and
testicles.67 Another plaintiff alleges that “[o]n occasion” training staff saw Strauss perform
unwarranted “testicular exams” on him that would last around 15–20 minutes.68 Other plaintiffs
allege that various trainers and staff witnessed Strauss’s examinations, including those in which
he touched the plaintiffs’ genitals.69 Coaches and trainers also regularly witnessed Strauss
63
See, e.g., id. ¶¶ 170–71, 194, 442, 474, 552, 784, 836, 901, 926, 986–87, 1173, 1483 (Page ID #2019,
2025, 2062, 2065, 2074, 2103, 2110, 2118, 2120–21, 2128, 2150, 2190); Moxley R. 16 (Am. Compl. ¶¶ 473, 636,
673–74, 719, 736) (Page ID #283, 308, 314, 323, 326).
64
See, e.g., Snyder-Hill R. 123 (SAC ¶ 389) (Page ID #2056).
65
Id. ¶ 197 (Page ID #2025); see id. ¶¶ 876–77 (Page ID #2115); Moxley R. 16 (Am. Compl. ¶ 138) (Page
ID #231).
66
See, e.g., id. ¶¶ 501–03, 661, 1297 (Page ID #2068, 2086, 2165) (swim team); id. ¶¶ 552, 572–77, 589,
712 (Page ID #2074, 2076–77, 2093) (track and field team); id. ¶ 690, 694–95 (Page ID #2090) (hockey team); id.
¶ 1005 (Page ID #2130) (fencing team); id. ¶¶ 1028, 1423 (Page ID #2133, 2181–82) (wrestling team); id. ¶ 1129
(Page ID #2145) (soccer team); id. ¶¶ 1226–30, 1340–41) (Page ID #2156–57, 2171) (gymnastics team); id. ¶¶ 167,
2581 (Page ID #2018, 2354) (general allegations); see also Moxley R. 16 (Am. Compl. ¶¶ 254, 559, 586, 618 (Page
ID #251–52, 295, 300, 3055).
67
Snyder-Hill R. 123 (SAC ¶ 688) (Page ID #2089).
68
Id. ¶ 789 (Page ID #2104).
69
See, e.g., id. ¶¶ 557–58 (Page ID #2075).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 12
showering with athletes or sitting in lockers staring at the athletes as they showered or
changed.70
When student athletes complained, coaches typically dismissed their complaints. For
example, one swimmer alleges that when he told his coach that Strauss made him uncomfortable,
the coach told him to “[s]hut the fuck up and get in the water.”71 The same coach told another
student “that Dr. Strauss’ examinations were appropriate and there was no reason to complain.”72
Various coaches “laughed off” student complaints,73 made excuses,74 or ignored or brushed
aside student complaints.75
The plaintiffs who observed Ohio State’s coaches’ and staff’s widespread acceptance of
Strauss’s conduct allege that their coaches’ normalization of Strauss’s conduct led them to
reasonably believe that it was not abuse.76 For example, one plaintiff “stopped questioning the
need for the genital examinations because Dr. Strauss always said they were necessary, and
coaching staff showed no concern despite the athletes’ frequent comments about the genital
exams.”77
Many likewise allege that the widespread acceptance of the abuse meant that they had no
reason to know that other athletes had complained to Ohio State about the abuse or that Ohio
70
See, e.g., Moxley R. 16 (Am. Compl. ¶¶ 540–42) (Page ID #292–93).
71
Snyder-Hill R. 123 (SAC ¶ 1299) (Page ID #2166); see also Moxley R. 16 (Am. Compl. ¶ 419) (Page ID
#276) (trainers were present during examination in which Strauss repeatedly stroked patient’s nipples).
72
Snyder-Hill R. 123 (SAC ¶ 511) (Page ID #2069).
73
Id. ¶¶ 411, 690, 1227–29, 1753 (Page ID #2058, 2090, 2156–57, 2228); Moxley R. 16 (Am. Compl.
¶¶ 872, 874) (Page ID #347–48).
74
See, e.g., Snyder-Hill R. 123 (SAC ¶ 501) (Page ID #2068) (trainer told athlete “That’s just what Dr.
Strauss does”); id. ¶ 2085 (Page ID #2280) (trainer told athlete that “some doctors are just really into the human
body”).
75
See, e.g., id. ¶¶ 272, 1894, 1951, 2141, 2281, 2524 (Page ID #2036–37, 2248, 2257–58, 2288, 2308,
2342); Moxley R. 16 (Am. Compl. ¶¶ 273, 282–83, 579–80, 618, 637, 759) (Page ID #254–56, 299, 305, 308, 330).
76
See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 695, 716–17, 795–96, 821–22, 882–83, 1014–15, 1230, 1341–42,
1758, 2090–91) (Page ID #2090–91, 2093, 2104, 2108, 2115–16, 2132, 2157, 2171–72, 2228, 2281); Moxley R. 16
(Am. Compl. ¶¶ 283, 348, 586–87, 761, 876) (Page ID #256, 264, 300, 330, 348).
77
Snyder-Hill R. 123 (SAC ¶ 1429) (Page ID #2183).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 13
State had covered up any abuse or student complaints.78 They further allege that this widespread
acceptance of Strauss’s conduct led them to believe that there was no reason to investigate
further: their coaches’ reactions “reinforce[d] [their] reasonable belief that pursuing the matter
would not be productive.”79
B. Procedural History
In the years after Strauss’s rampant abuse was publicly exposed, many survivors filed suit
against Ohio State. This appeal involves two of these lawsuits: Snyder-Hill v. Ohio State
University, No. 2:18-cv-736 (S.D. Ohio), and Moxley v. Ohio State University, No. 2:21-cv-3838
(S.D. Ohio). The Snyder-Hill plaintiffs filed their complaint on July 26, 2018. Snyder-Hill R. 1.
The district court designated the case as related to Garrett v. Ohio State University, No. 2:18-cv-
692 (S.D. Ohio), a case that had been filed ten days earlier. Snyder-Hill R. 3 (Related Case
Mem.) (Page ID #57–58). Ohio State moved to dismiss, Snyder-Hill R. 19 (Mot. to Dismiss)
(Page ID #140–58), and the district court referred the case to mediation, Snyder-Hill R. 42
(Order) (Page ID #695). After mediation was unsuccessful, the Snyder-Hill plaintiffs filed an
amended complaint. Snyder-Hill R. 123 (SAC) (Page ID #1988–2358). Ohio State again moved
to dismiss. Snyder-Hill R. 128 (Mot. to Dismiss) (Page ID #2377–99).
While the motions to dismiss in Snyder-Hill and the related cases were pending, the
Moxley plaintiffs filed a separate case on June 28, 2021, and amended their complaint on August
12, 2021. Moxley R. 1; Moxley R. 16. They designated the Moxley case as related to the Snyder-
Hill case. Moxley R. 1-1 (Civil Cover Sheet) (Page ID #145). The district court consolidated
Moxley with both Snyder-Hill and Garrett. Moxley R. 10 (Related Case Mem.) (Page ID #172–
73).
The district court granted Ohio State’s motions to dismiss in each of the consolidated
cases. See Garrett v. Ohio State Univ., 561 F. Supp. 3d 747 (S.D. Ohio 2021); Ratliff v. Ohio
State Univ., No. 2:19-cv-4746, 2021 WL 7186198 (S.D. Ohio Sept. 22, 2021); Snyder-Hill v.
Ohio State Univ., No. 2:18-cv-736, 2021 WL 7186148 (S.D. Ohio Sept. 22, 2021); Moxley v.
78
See, e.g., id. ¶¶ 1040–41, 1135–36, 1252–53, 1352–54) (Page ID #2134–35, 2146, 2159, 2173).
79
Id. ¶¶ 823, 884, 1899 (Page ID #2108–09, 2116, 2249); see also id. ¶ 1441 (Page ID #2184).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 14
Ohio State Univ., No. 2:21-cv-3838, 2021 WL 7186269 (S.D. Ohio Oct. 25, 2021). The district
court reasoned that the plaintiffs’ claims were barred by the statute of limitations because the
abuse happened more than two years ago, and the plaintiffs knew or had reason to know that they
were injured at the time that the abuse occurred. See Garrett, 561 F. Supp. 3d at 754–62;
Snyder-Hill, 2021 WL 7186148, at *1; Moxley, 2021 WL 7186269, at *1. The plaintiffs timely
appealed. Snyder-Hill R. 160 (Notice of Appeal) (Page ID #2778); Moxley R. 28 (Notice of
Appeal) (Page ID #514).
II. ANALYSIS
A. Standard of Review
“We review de novo the district court’s order dismissing plaintiffs’ complaint pursuant to
Rule 12(b)(6).” Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013).
“[W]e construe the complaint in a light most favorable to plaintiffs, accept all plausible well-pled
factual allegations as true, and draw all reasonable inferences in plaintiffs’ favor.” Id.Because at the motion-to-dismiss stage, we may consider only the allegations in the
complaint, a 12(b)(6) motion is generally “an ‘inappropriate vehicle’ for dismissing a claim
based upon a statute of limitations.” Id. (quoting Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547
(6th Cir. 2012)). “However, dismissal is warranted if ‘the allegations in the complaint
affirmatively show that the claim is time-barred.’” Id. (quoting Cataldo, 676 F.3d at 547).
“[T]he statute of limitations is an affirmative defense,” and it is the defendant’s burden to show
that the statute of limitations has run. Id. (quoting Campbell v. Grand Trunk W. R.R. Co., 238
F.3d 772, 775 (6th Cir. 2001)).
B. Accrual Date in Title IX Claims
“Title IX does not contain its own statute of limitations.” Lillard v. Shelby Cnty. Bd. of
Educ., 76 F.3d 716, 728 (6th Cir. 1996). Title IX thus borrows from Ohio’s two-year statute of
limitations for personal injury claims. Id. at 729. Although state law determines the limitations
period, “federal standards govern when the statute begins to run.” Sharpe v. Cureton, 319 F.3d
259, 266 (6th Cir. 2003) (citing Wilson v. Garcia, 471 U.S. 261, 267 (1985)); see Bishop v.
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 15
Child.’s Ctr. for Developmental Enrichment, 618 F.3d 533, 536 (6th Cir. 2010) (citing Wallace
v. Kato, 549 U.S. 384, 388 (2007)). This question—when did the statute start to run—is at the
heart of this appeal.
1. Whether the Discovery Rule Applies
“The general federal rule is that ‘the statute of limitations begins to run when the
reasonable person knows, or in the exercise of due diligence should have known, both his injury
and the cause of that injury.’” Bishop, 618 F.3d at 536 (quoting Campbell, 238 F.3d at 775). In
other words, absent a statutory directive to the contrary, the “discovery rule” applies, and the
clock starts only when a plaintiff knows or should have known certain facts related to their
injury. This contrasts with the occurrence rule, under which a claim accrues at the moment of
injury.
In line with the general principle articulated in Bishop and elsewhere, we have long held
that the discovery rule applies in the § 1983 context. See, e.g., id. at 536–37; Roberson v.
Tennessee, 399 F.3d 792, 794 (6th Cir. 2005); Hughes v. Vanderbilt Univ., 215 F.3d 543, 548
(6th Cir. 2000); Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984). Our application of the
discovery rule in the § 1983 context guides our analysis here because “[t]he analysis concerning
when the statute of limitations [for a Title IX claim] began to run is the same as [for a § 1983
claim].” Haley v. Clarksville-Montgomery Cnty. Sch. Sys., 353 F. Supp. 3d 724, 734 (M.D.
Tenn. 2018); see King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 759 (5th Cir. 2015)
(“Title IX should be treated like § 1983 for limitations purposes.” (collecting cases)).
Applying the discovery rule in Title IX cases accords with the discovery rule’s purposes.
The discovery rule seeks to protect plaintiffs who, through no fault of their own, lacked the
information to bring a claim. We have explained that “the discovery rule is applied . . . if the
cause of an injury is not apparent.” Fonesca v. Consol. Rail Corp., 246 F.3d 585, 588 (6th Cir.
2001); see Hicks v. Hines, Inc., 826 F.2d 1543, 1544 (6th Cir. 1987). This rule “protects
plaintiffs who are . . . struggling to uncover the underlying cause of their injuries from having
their claims time-barred before they could reasonably be expected to bring suit.” A.Q.C. ex rel.
Castillo v. United States, 656 F.3d 135, 140 (2d Cir. 2011).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 16
The discovery rule recognizes that, without certain information, a plaintiff has no viable
claim. “That he has been injured in fact may be unknown or unknowable until the injury
manifests itself; and the facts about causation may be in the control of the putative defendant,
unavailable to the plaintiff or at least very difficult to obtain.” United States v. Kubrick, 444 U.S.
111, 122 (1979). This lack of knowable information leaves the plaintiff “at the mercy of” the
defendant and unable to file suit. Id. “To say to one who has been wronged, ‘You had a remedy,
but before the wrong was ascertainable to you, the law stripped you of your remedy,’ makes a
mockery of the law.” City of Aurora v. Bechtel Corp., 599 F.2d 382, 387–88 (10th Cir. 1979)
(citation and emphasis omitted). The discovery rule ensures that plaintiffs in this position still
have a remedy.
Applying the discovery rule in the Title IX context is also consistent with the remedial
purposes of Title IX. Title IX “provides relief broadly to those who face discrimination on the
basis of sex in the American education system.” Doe v. Univ. of Ky., 971 F.3d 553, 557 (6th Cir.
2020) (citing NCAA v. Smith, 525 U.S. 459, 466 n.4 (1999)). Applying the more restrictive
occurrence rule would be counter to Title IX’s broad remedial purpose.
Finally, we observe that other circuits that have reached this issue have applied the
discovery rule in Title IX cases. See, e.g., King-White, 803 F.3d at 762; Doe v. Howe Mil. Sch.,
227 F.3d 981, 988 (7th Cir. 2000); Stanley v. Trs. of Cal. State Univ., 433 F.3d 1129, 1136 (9th
Cir. 2006); but see Twersky v. Yeshiva Univ., 579 F. App’x 7, 9 (2d Cir. 2014) (order) (declining
to decide whether the discovery rule applies); Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208,
1216 (10th Cir. 2014) (same). In adopting the discovery rule in Title IX cases, we note that any
contrary holding would create an unnecessary circuit split.
Ohio State’s arguments urging us to reject the discovery rule are not persuasive. Ohio
State primarily points to the Supreme Court’s decision in Rotkiske v. Klemm, 140 S. Ct. 355(2019), a case that addressed the accrual of Fair Debt Collection Practices Act (FDCPA) claims.
Unlike Title IX, the FDCPA’s text contains a statute of limitations: FDCPA actions must be
brought “within one year from the date on which the violation occurs.” Id. at 358 (quoting
15 U.S.C. § 1692k(d)). The Supreme Court held that the discovery rule did not apply to FDCPA
suits. Id. at 360–61.
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 17
Rotkiske is inapposite. In Rotkiske, the Court’s analysis both started and ended with the
text of the FDCPA, which expressly states that the statute of limitations starts on “the date on
which the violation occurs.” Id. at 358 (quoting 15 U.S.C. § 1692k(d)). The Court therefore
concluded that importing the discovery rule would amount to “[a]textual judicial
supplementation.” Id. at 361; see also id. at 360 (“We must presume that Congress ‘says in a
statute what it means and means in a statute what it says there.’” (quoting Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 254 (1992))). In short, Rotkiske was a straightforward case of text-based
statutory interpretation.
Thus, Rotkiske has no bearing on a case about the accrual of Title IX claims because Title
IX’s text contains no statute of limitations at all. See Lillard, 76 F.3d at 728. We agree with the
Second Circuit that Rotkiske’s reasoning is limited to the FDCPA’s text, and that Rotkiske does
not affect “the continuing propriety of the discovery rule.” Sohm v. Scholastic, Inc., 959 F.3d 39,
50 & n.2 (2d Cir. 2020); see also Navarro v. Procter & Gamble Co., 515 F. Supp. 3d 718, 760
(S.D. Ohio 2021) (applying the discovery rule in light of pre-Rotkiske precedent because
“Rotkiske has little to say about which [rule] should apply” when statute is silent). Other circuits
have likewise continued to apply the discovery rule in other contexts post-Rotkiske. See, e.g.,
Ouellette v. Beaupre, 977 F.3d 127, 136 (1st Cir. 2020) (applying discovery rule to § 1983
claim); Johnson v. Chudy, 822 F. App’x 637, 638 (9th Cir. 2020) (same); Lupole v. United
States, No. 20-1811, 2021 WL 5103884, at *1 (4th Cir. Nov. 3, 2021) (applying discovery rule to
FTCA claim). And, albeit only in nonprecedential decisions, we have done the same. Norton v.
Barker, No. 21-5893, 2022 WL 837976, at *2 (6th Cir. Feb. 16, 2022) (order) (§ 1983 case);
B&P Littleford, LLC v. Prescott Mach., LLC, No. 20-1449/1451, 2021 WL 3732313, at *7 (6th
Cir. Aug. 24, 2021) (Defend Trade Secrets Act case). No appellate court has held that Rotkiske
did away with the common-law discovery rule when a statute is silent.
True, we have previously speculated, in dicta, that Rotkiske might prompt reconsideration
of the discovery rule. See Dibrell v. City of Knoxville, 984 F.3d 1156, 1162 (6th Cir. 2021).80
Unfortunately, as is often the case with such musings, our earlier dicta overlooked important
80
To be clear, any discussion of the discovery rule in Dibrell is dicta because Dibrell stated that it “need
not resolve this tension [between the discovery rule and the occurrence rule] now because Dibrell’s claims would be
untimely either way.” 984 F.3d at 1162.
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 18
context in Rotkiske. Rotkiske did not state that “[a]ny presumption favoring th[e] discovery
rule . . . represents a ‘bad wine of recent vintage.’” Id. (emphasis added) (quoting Rotkiske, 140
S. Ct. at 360). Instead, the “bad wine” discussed in Rotkiske was the use of the discovery rule to
override clear statutory text. See Rotkiske, 140 S. Ct. at 360. As we have recognized, applying
the discovery rule as a common-law accrual principle “says nothing” about how to determine the
meaning of specific statutory language. See El-Khalil v. Oakwood Healthcare, Inc., 23 F.4th
633, 636 (6th Cir. 2022). The converse is also true.
Nor do Wallace v. Kato, 549 U.S. 384 (2006), or McDonough v. Smith, 139 S. Ct. 2149(2019), change our analysis. In these cases, the Supreme Court applied the occurrence rule to
§ 1983 claims. No party in these cases raised the discovery rule, and the Court did not discuss
the issue at all. Because the issue is not jurisdictional, the Court’s silence in these two cases does
not impact our analysis one way or the other. In fact, binding post-Wallace cases—even those
cases explicitly relying on Wallace—have continued to apply the discovery rule in the § 1983
context. See, e.g., Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir. 2007) (citing Wallace but
continuing to apply the discovery rule in the § 1983 context); D’Ambrosio v. Marino, 747 F.3d
378, 384 (6th Cir. 2014) (same). Moreover, McDonough recognized that “[t]he Court has never
suggested that the date on which a constitutional injury first occurs is the only date from which a
limitations period may run.” 139 S. Ct. at 2160. Ohio State’s reliance on Wallace and
McDonough is unavailing.
Likewise, three of our unpublished decisions—Guy v. Lexington-Fayette Urban County
Government, 488 F. App’x 9 (6th Cir. 2012), Gilley v. Dunaway, 572 F. App’x 303 (6th Cir.
2014), and Giffin v. Case Western Reserve University, 181 F.3d 100 (6th Cir. 1999) (table)—do
not move the needle. Guy and Gilley interpret Kentucky law, which is of no use to our analysis
of when a claim accrues under federal law. And Giffin offers no discussion of the discovery rule
and no analysis that sheds light on claim accrual.
Ultimately, we conclude that applying the discovery rule aligns with precedent, the rule’s
purpose, and Title IX’s broad remedial purpose. We therefore agree with every other circuit to
decide the issue and hold that the discovery rule determines the accrual of Title IX claims.
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 19
2. The Scope of the Discovery Rule
Having concluded that the discovery rule applies, we next examine the precise scope of
the discovery rule. In line with our earlier cases, we hold that, when the discovery rule applies, a
claim accrues when a plaintiff knows or has reason to know that the defendant injured them: in
other words, they must discover both their injury and its cause.
We have previously explained that, under the discovery rule, a claim accrues “when the
reasonable person knows, or in the exercise of due diligence should have known, both his injury
and the cause of that injury.” Bishop, 618 F.3d at 536 (quoting Campbell, 238 F. 3d at 775);
accord Amburgey v. United States, 733 F.3d 633, 636 (6th Cir. 2013); Fonesca, 246 F.3d at 588.
This approach is the same as the seven other circuits to address this issue. See Ouellette, 977
F.3d at 136; Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998); Miller v. United States,
932 F.2d 301, 303 (4th Cir. 1991); Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.
2001); In re Copper Antitrust Litig., 436 F.3d 782, 789 (7th Cir. 2006); Bibeau v. Pac. Nw. Rsch.
Found. Inc., 188 F.3d 1105, 1108 (9th Cir. 1999); Chappell v. Rich, 340 F.3d 1279, 1283 (11th
Cir. 2003).
This approach follows the Supreme Court’s lead in Kubrick, 444 U.S. 111. In Kubrick,
the Supreme Court distinguished between “a plaintiff’s ignorance of his legal rights,” which did
not affect the accrual date, and a plaintiff’s “ignorance of the fact of his injury or its cause,”
which did affect accrual. 444 U.S. at 122. In other words, “the [Supreme] Court was careful to
distinguish between ignorance of the facts, including an injury and its cause, and ignorance of
the law.” Ouellette, 977 F.3d at 136 (citing Kubrick, 444 U.S. at 122). The “critical facts” that
start the clock are “that [the plaintiff] has been hurt and who has inflicted the injury.” Kubrick,
444 U.S. at 122. If a plaintiff has no reason to know who injured them, their claim has not
accrued.
Ignoring Kubrick, Ohio State zooms in on a single sentence in Rotella v. Wood, in which
the Supreme Court stated that it has “been at pains to explain that discovery of the injury, not
discovery of the other elements of a claim, is what starts the clock.” 528 U.S. 549, 555 (2000).
This language, Ohio State argues, means that a claim accrues once a plaintiff knows or has
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 20
reason to know of their injury, regardless of whether they have reason to know who or what
caused the injury. But Rotella’s very next sentence points to Kubrick’s explanation that “the
justification for a discovery rule does not extend beyond the injury” because “a plaintiff’s
ignorance of his legal rights” is different from “his ignorance of the fact of his injury or its
cause.” Rotella, 528 U.S. at 555–56 (emphasis added) (quoting Kubrick, 444 U.S. at 122). In
seamlessly transitioning between knowledge of an “injury” and knowledge of the “injury or its
cause,” the Supreme Court distinguished both injury and cause from a plaintiff learning of their
legal rights. This discovery—learning of “legal rights”—includes the “other elements of a
claim” that Rotella tells us do not affect accrual. In other words, discovering that a defendant
caused an injury is part of discovering the injury. Rotella does not undercut Kubrick’s
understanding that a plaintiff must have discovered that the defendant harmed them for a claim
to accrue.
Our precedent supports this understanding of Rotella and Kubrick. Although we have
been clear that discovery refers to both injury and cause, we have also stated that the clock starts
“when the plaintiff knows or has reason to know of the injury which is the basis of his action.”
Hughes, 215 F.3d at 548; accord Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838,
843 (6th Cir. 2015); Roberson, 399 F.3d at 794. The Fifth Circuit has done the same.
Explaining that “the [limitations] period begins to run the moment the plaintiff becomes aware
that he has suffered an injury or has sufficient information to know that he has been injured,” the
Fifth Circuit emphasized that a plaintiff must be able to know “the facts that would ultimately
support a claim.” Piotrowski, 237 F.3d at 576 (internal quotation marks and citations omitted).
Thus, “[a] plaintiff’s awareness encompasses two elements: (1) [t]he existence of the injury; and
(2) causation, that is, the connection between the injury and the defendant’s actions.” Id.(internal quotation marks and citations omitted). In other words, discovery of injury and cause
are both a part of discovering the injury that is the basis of the action.
In deciding when a plaintiff discovers the injury that is the basis of their action, “courts
look ‘to what event should have alerted the typical lay person to protect his or her rights.’”
Johnson, 777 F.3d at 843 (quoting Roberson, 399 F.3d at 794); accord Cooey, 479 F.3d at 416;
Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 520 (6th Cir. 1997). Individuals cannot
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 21
be alerted to protect their rights without knowledge about causation. For example, a person who
suffers a latent injury, knowing that they are sick, cannot reasonably be expected to protect their
rights without knowing what caused their sickness. Just as an employee needs to know that their
employer exposed them to toxic materials before they can bring suit, a student must know that
their school exposed them to a heightened risk of harassment before they have a viable claim.81
Moreover, our requirement that a plaintiff discover “the injury which is the basis of
[their] action,” Hughes, 215 F.3d at 548, necessarily requires us to look at what the basis of their
action is. In a Title IX case, a plaintiff’s cause of action is against the school based on the
school’s actions or inactions, not the actions of the person who abused the plaintiff. See Davis ex
rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 640 (1999) (“[A] recipient of
federal funds may be liable in damages under Title IX only for its own misconduct.”); Bose v.
Bea, 947 F.3d 983, 988 (6th Cir. 2020) (same). The institution’s conduct is therefore the “the act
providing the basis of” a plaintiff’s legally cognizable Title IX injury. Garza v. Lansing Sch.
Dist., 972 F.3d 853, 867 n.8 (6th Cir. 2020) (quoting Collyer v. Darling, 98 F.3d 211, 220 (6th
Cir. 1996)); see Doe ex. rel. Doe #2 v. Metro. Gov’t of Nashville & Davidson Cnty., 35 F.4th
459, 466 (6th Cir. 2022) (“[I]n a successful ‘before’ claim, a school’s deliberate indifference to
known past acts of sexual misconduct must have caused the misconduct that the student currently
alleges.”). In other words, a plaintiff could not have been “alerted . . . to protect his or her
rights” through a Title IX suit unless they had reason to believe that the institution did something
(or failed to do something) that caused their injury. See Johnson, 777 F.3d at 843.
The First Circuit applied similar logic in Ouellette. There, the plaintiff alleged that a
police officer sexually abused him decades earlier when the plaintiff was a teenager. The
plaintiff did not know at the time that the police department had received prior complaints that
the officer had abused other teenagers. 977 F.3d at 132. The plaintiff’s knowledge that the
officer abused him and that his abuser was employed by the police department did not trigger
accrual because, as is also true in the Title IX context, “[a] constitutional tortfeasor’s
81
Thus, in the context of the discovery rule, “injury” means something more than “harm.” Although injury
and harm may sometimes be synonymous, that’s not always the case. Here, “injury” means “[t]he violation of
another’s legal right” or “[a]nything said or done in breach of a duty not to do it, if harm results.” Injury, Black’s
Law Dictionary (11th ed. 2019).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 22
employment with a municipality or supervision by a superior state officer does not, on its own,
give rise to a ‘complete and present’ § 1983 cause of action.” Id. at 140. Because there is no
respondeat superior liability, “[a]ny knowledgeable attorney that Ouellette consulted around the
time of his alleged abuse” would have told him not to file a lawsuit against the city “in the
absence of additional information suggesting that they were also a cause of his injury.” Id.
Thus, his claim had not accrued at that time. Id.; see also Barrett v. United States, 689 F.2d 324,
330 (2d Cir. 1982) (“It is illogical to require a party to sue the government for negligence at a
time when the Government’s responsibility in the matter is suppressed in a manner designed to
prevent the party, even with reasonable effort, from finding out about it.”).
We are persuaded by Ouellette’s reasoning and adopt it fully. We are also persuaded by
two sets of well-reasoned district court opinions that adopt similar logic in the Title IX context.
In Karasek v. Regents of University of California, the court reasoned that the “‘touchstone’ of
accrual is notice of the ‘injury which is the basis of [the plaintiff’s] action,’” and that, unlike in
cases with direct respondeat superior liability in which a defendant’s liability is easily
discernable, an assault does not give a plaintiff knowledge of an institution’s conduct. 500 F.
Supp. 3d 967, 979 (N.D. Cal. 2020) (quoting Stanley, 433 F.3d at 1136). Thus, the court
ultimately “conclude[d] that a plaintiff’s Title IX pre-assault claim accrues when the plaintiff
knows or has reason to know of the school’s policy of deliberate indifference that created a
heightened risk of harassment.” Id. at 978. Similarly, in a series of cases arising from a sex-
abuse scandal at Baylor University, the district court reasoned that the plaintiffs’ knowledge that
their assailants had previously assaulted other women was “insufficient to demonstrate that
[they] would have been put on notice to look into Baylor’s knowledge of [the assailant]’s history
or Baylor’s conduct in administering its football program prior to [the] assault[s].” Hernandez v.
Baylor Univ., 274 F. Supp. 3d 602, 616–17 (W.D. Tex. 2017) (emphasis added); see Doe 1 v.
Baylor Univ., 240 F. Supp. 3d 646, 663 (W.D. Tex. 2017); Lozano v. Baylor Univ., 408 F. Supp.
3d 861, 901 (W.D. Tex. 2019). What the plaintiffs knew or had reason to know was an issue of
fact: “[w]hile it is plausible that Plaintiffs were aware of their heightened-risk claims at the time
of their assaults, it is also plausible that they did not have reason to further investigate those
claims until [the allegations became public].” Doe 1, 240 F. Supp. 3d at 663. Thus, the court
declined to dismiss the pre-assault claims.
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 23
These cases illustrate that a pre-assault heightened-risk claim may not accrue until well
after a post-assault Title IX claim. A plaintiff will typically know or have reason to know that a
school mishandles their own report of an assault close to the time of the school’s inadequate
response. But that same plaintiff may have no reason to know of a school’s deliberate
indifference that gave rise to their heightened-risk claim. It would be “unreasonable to conclude
. . . that a plaintiff’s knowledge that [their] individual complaint was mishandled would reveal
that the University has a broad de facto policy of deliberate indifference generally.” Karasek,
500 F. Supp. 3d at 981. This difference distinguishes the plaintiffs’ claims from King-White,
803 F.3d at 763, in which the Fifth Circuit held that the plaintiffs’ post-assault claims accrued
when their complaints to the school administrations went “unheeded.” In short, even if a
plaintiff has reason to know that a school responded improperly to their complaint, they may still
lack reason to know that others had complained before them or that the school was deliberately
indifferent to any prior complaints.
To summarize, we agree with seven of our sibling circuits, and we expressly hold that,
pursuant to the discovery rule, a claim accrues when a plaintiff knows or has reason to know that
they were injured and that the defendant caused their injury. In the Title IX context, this means
that the claim does not accrue until the plaintiff knows or has reason to know that the defendant
institution injured them.
C. Accrual of the Plaintiffs’ Claims
We next must decide whether the plaintiffs adequately allege that their claims did not
accrue until 2018. We hold that the plaintiffs’ allegations are plausible. Thus, the district court
erred in dismissing their cases.
Although the plaintiffs need not have known or had reason to know of the legal elements
of their claims, they must have known or had reason to know of the facts underpinning their
claims before the statute of limitations begins to run. Kubrick, 444 U.S. at 122. Thus, the
plaintiffs’ claims accrued when they knew or had reason to know that Ohio State was
“deliberately indifferent to sexual harassment, of which [Ohio State had] actual knowledge, that
is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 24
access to the educational opportunities or benefits provided by the school.” Davis, 526 U.S. at
650.
The plaintiffs’ allegations that they lacked reason to know that Ohio State injured them
are plausible. It would be difficult for “typical lay person” in the plaintiffs’ position to know the
underlying facts about Ohio State’s alleged deliberate indifference. The plaintiffs allege that
none of them knew or had reason to know that Ohio State administrators were on notice of
Strauss’s abuse.82 And how could they know? Both Dr. Grace, who was the director of Ohio
State’s Student Health Services, and Dr. Miller, who was Strauss’s direct supervisor, stated that
they did not know of “any way” that “any [Ohio State] student” could have known that Ohio
State knew about Strauss’s abuse and nonetheless failed to get rid of him.83 And when Ohio
State hired Perkins Coie in 2018 to investigate both the allegations of abuse and “whether [Ohio
State] had knowledge of such allegations against Strauss,” it took $6.2 million and 12 months for
Perkins Coie to issue its final conclusions.84 Ohio State is a vast institution, and the plaintiffs’
allegations underscore how difficult it is for a student to know what appropriate persons within
the Ohio State administration knew.
A plaintiff’s knowledge that he was abused is not enough to start the clock. See
Ouellette, 977 F.3d at 140 (knowledge of abuse is not the same as knowledge of institutional
conduct). Knowledge that Ohio State employed Strauss is not enough. See Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274, 285 (1998) (no respondeat superior claims for Title IX claims of
employee-student harassment). Knowledge that other students knew of Strauss’s conduct is not
enough. See id. at 290 (Title IX requires “notice to an ‘appropriate person’ and an opportunity to
rectify any violation” (citing 20 U.S.C. § 1682)). Knowledge that coaches or trainers knew is not
enough. See Kesterson v. Kent State Univ., 967 F.3d 519, 528–29 (6th Cir. 2020) (knowledge of
abuse by coaches and assistant coaches does not satisfy knowledge requirement of Title IX).
82
Snyder-Hill R. 123 (SAC ¶ 267) (Page ID #2035–36); Moxley R. 16 (Am. Compl. ¶ 209) (Page ID #242–
43).
83
Snyder-Hill R. 123 (SAC ¶¶ 265–66) (Page ID #2035); Moxley R. 16 (Am. Compl. ¶¶ 207–08) (Page ID
#242).
84
Snyder-Hill R. 123 (SAC ¶¶ 273–75) (Page ID #2037); Moxley R. 16 (Am. Compl. ¶¶ 215–18) (Page ID
#244).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 25
Instead, the clock starts only once the plaintiff knows or should have known that Ohio State
administrators “with authority to take corrective action” knew of Strauss’s conduct and failed to
respond appropriately. Gebser, 524 U.S. at 290.
Should the plaintiffs’ snippets of knowledge “have alerted the typical lay person to
protect his or her rights” by investigating further? Johnson, 777 F.3d at 843 (quoting Roberson,
399 F.3d at 794). We cannot say. This is a question of fact—one that is improper to resolve at
the motion-to-dismiss stage. See Lutz, 717 F.3d at 464 (a motion to dismiss is typically “an
‘inappropriate vehicle’ for dismissing a claim based upon a statute of limitations”).
But the answer to this question may not ultimately matter because the plaintiffs
adequately allege that if they had investigated the abuse, they would not have discovered that
Ohio State injured them. A plaintiff’s duty to investigate does not trigger accrual. Instead, “the
limitations period does not begin to run until the plaintiff thereafter discovers or a reasonably
diligent plaintiff would have discovered ‘the facts constituting the violation.’” Merck & Co. v.
Reynolds, 559 U.S. 633, 653 (2010). In other words, even if the plaintiffs should have
investigated, the clock does not start if the plaintiffs would not have learned that Ohio State
injured them. The plaintiffs allege that Ohio State concealed Strauss’s abuse and Ohio State’s
knowledge of it, destroyed records, gave Strauss false performance reviews, and actively misled
students by, for example, telling complainants that no one had ever previously complained about
Strauss. See Section I.A.2, supra. The plaintiffs plausibly allege a decades-long cover up.
Given these plausible allegations, the plaintiffs adequately allege that they could not have
reasonably discovered Ohio State’s conduct. This alone provides sufficient grounds to delay the
accrual of their Title IX claims.
The above reasons apply to all plaintiffs, and these reasons alone warrant reversal. But
the Moxley plaintiffs and all but nine of the Snyder-Hill plaintiffs adequately allege an additional
ground that provides a separate and independent basis for our holding: they did not know they
were abused. The district court felt that these allegations were implausible, pointing to other
allegations “that Plaintiffs were concerned by Strauss’s abuse and felt violated by it, discussed
the abuse with teammates, classmates, or family members, reported the abuse themselves, or that
the abuse caused them immediate mental and emotional distress.” Garrett, 561 F. Supp. 3d at
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 26
759 n.7. In the district court’s view, the plaintiffs’ distress belies their claims that they did not
know Strauss’s conduct was abuse.
At this early stage, the district court was incorrect to dismiss the plaintiffs’ allegations by
holding that they were implausible as a matter of law. The plaintiffs plausibly allege that
experiencing distress—even extreme distress—does not mean that they knew or should have
known that they were abused. Strauss gave pretextual medical explanations for his abuse, such
as conducting a hernia check or doing an evaluation for sexually transmitted infections. See
Section I.A.1, supra. The plaintiffs further allege that physician-patient abuse is particularly
difficult to identify because physicians, unlike other professionals, are expected to touch a
person’s sexual organs, and laypeople lack the training to know whether an examination is
medically appropriate. Id. On top of that, the plaintiffs were young, untrained, and
inexperienced, Ohio State gave Strauss its stamp of approval, and trusted adult professionals
routinely told the plaintiffs that Strauss’s conduct was normal. Id.
Amici shed light on the plausibility of the plaintiffs’ claims. A significant body of
literature shows that (1) many people do not recognize that they have been sexually abused,
particularly if they were abused by someone on whom they depend; and (2) people suffer serious
harms resulting from their abuse, even if they do not recognize it as abuse. See Psychology &
Psychiatry Scholars Br. at 10–26. Example after example highlights the unique difficulties of
recognizing whether a physician’s conduct is abusive. See National Center for Victims of Crime
Br. at 4–18. And recognizing abuse—especially physician-patient abuse—can be even harder in
the context of college athletics because of the insular nature of teams, the immense trust and
authority placed in coaches, and the culture of college athletics, including the role of coaches and
trainers in setting norms. See National Women’s Law Center Br. at 9–23.
Medical procedures, including necessary ones such as colonoscopies, are often
uncomfortable. That does not mean that they are abusive. As a result, discomfort does not mean
that plaintiffs should know that they are being abused. See Doe v. Pasadena Hosp. Ass’n, No.
2:18-cv-08710, 2020 WL 1244357, at *6 (C.D. Cal. Mar. 16, 2020) (plaintiffs’ failure to
discover physician’s abuse was reasonable when physician “touch[ed] their legs in a sexual
manner, conduct[ed] unexpected vaginal exams, and unnecessary breast exams” because
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 27
physician misrepresented “that his ‘acts were for a legitimate medical purpose’”). Instead, even
if a patient is uncomfortable, whether they knew or should have known that they were abused is
an issue of fact for the jury.
Ultimately, we hold that the plaintiffs’ claims survive Ohio State’s motion to dismiss for
three independent reasons. First, the plaintiffs plausibly allege that they did not know and lacked
reason to know that Ohio State caused their injury. Second, they plausibly allege that even if
they had investigated further, they could not have learned of Ohio State’s conduct. Third, most
plaintiffs plausibly allege that they did not know that they were abused. Alone, each of these
grounds is sufficient to delay accrual.
D. Non-Student Plaintiffs
Finally, Ohio State argues that four non-student plaintiffs in the Snyder-Hill case cannot
bring a Title IX claim. John Doe 30 and John Doe 42 were contract referees; John Doe 47 was a
fifteen-year-old high-school student visiting Ohio State’s campus; and John Doe 49 was a
fourteen- or fifteen-year-old high-school student who attended an Ohio State wrestling camp.85
Title IX provides that “[n]o person . . . 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). “Congress easily could have substituted ‘student’ or ‘beneficiary’ for the word ‘person’
if it had wished to restrict the scope of [Title IX].” North Haven Bd. of Educ. v. Bell, 456 U.S.
512, 521 (1982). It did not limit the statute in this way and thus, Title IX’s plain language
sweeps more broadly.
Contrary to Ohio State’s assertions, we have never limited the availability of Title IX
claims to employees or students. The two cases on which Ohio State relies prove this point. In
Doe v. University of Kentucky, 971 F.3d at 558, the court held that “although Doe[] was not
enrolled as a student at the University, she has shown that . . . there remain genuine disputes as to
whether she was denied the benefits of an ‘education program or activity’ furnished by the
University.” The court pointed to the fact that she paid the University directly for housing in its
85
Snyder-Hill R. 123 (SAC ¶¶ 1613, 1812, 1903, 1940) (Page ID #2208, 2236, 2250, 2255).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 28
residence halls, paid for a dining hall and student fees, and alleged that she hoped to enroll at the
University after beginning her education at the Community college. Id. Although we explained
that Doe’s relationship with the school was akin to a student, this analysis was relevant only
because Doe brought a claim for student-on-student sexual harassment. Id. at 557–58. The
inquiry was not relevant to whether individuals can bring Title IX claims more generally.
In Arocho v. Ohio University, No. 20-4239, 2022 WL 819734, at *3 (6th Cir. Mar. 18,
2022), we recognized that “a nonstudent like [the plaintiffs] may bring a Title IX claim, if [they]
w[ere] excluded from or discriminated against under a[n] ‘education program or activity.’” In
Arocho, the plaintiff did not have a Title IX claim because “the full extent of Arocho’s
relationship with Ohio University was her participation in career day” and she did “not allege
that she intended to partake in any Ohio University education program or activities in the future.”
Id. at *4. The barrier to Arocho’s suit was not that she was a nonstudent; it was instead that she
could not point to any education program or activity of which she was denied the benefit.
Because none of these four plaintiffs was a student or regular employee of Ohio State, we
must decide whether they were discriminated against under an education program or activity.
We have no binding authority that establishes a framework for this analysis.
Doe v. Brown University, 896 F.3d 127 (1st Cir. 2018), persuasively analyzes the issue.
Doe, a student at Providence College, was sexually assaulted by three Brown students on
Brown’s campus. Id. at 128–29. She reported the assault, and later alleged that Brown
responded inappropriately by abandoning its investigation into the assault. Id. at 129. The First
Circuit read the Supreme Court’s decision in Bell to “impl[y] 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.” Id. at 131. The First
Circuit held that Doe failed to state a Title IX claim because she did not experience
discriminatory treatment while participating or attempting to participate in any educational
program provided by Brown. Id. at 133.
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 29
At the same time, the First Circuit recognized that “members of the public” can bring a
Title IX claim if they are “avail[ing] themselves of the services provided by educational
institutions receiving federal funding,” for example by “access[ing] university libraries,
computer labs, and vocational resources,” or “attend[ing] campus tours, public lectures, sporting
events, and other activities at covered institutions.” Id. at 132 n.6. Similarly, both the Second
and Third Circuits have held that something can be considered “an ‘education program or
activity’ under § 1681(a) if it has ‘features such that one could reasonably consider its mission to
be, at least in part, educational.” Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545, 555 (3d Cir.
2017) (quoting O’Connor v. Davis, 126 F.3d 112, 117 (2d Cir. 1997)).
We adopt the reasoning of the First Circuit and hold that a non-student and non-employee
can bring a Title IX claim if they were subject to discrimination “while participating, or at least
attempting to participate, in the funding recipient’s education program or activity.” Doe v.
Brown, 896 F.3d at 131. We further hold that “education program or activity” is defined broadly
and extends to situations in which individuals are, for example, accessing university libraries or
other resources, or attending campus tours, sporting events, or other activities.
Under this framework, John Doe 49’s claim clearly survives the motion to dismiss. John
Doe 49 alleges that he “was at OSU for OSU’s summer wrestling camp,” which was “an
education program or activity offered to young athletes not yet old enough to attend OSU, which
was staffed by OSU employees and student-athletes.”86 This camp was an educational program
that provided training for young wrestlers. John Doe 49 was participating in it and was denied
its benefits when Strauss abused him.
John Does 30 and 42 likewise state Title IX claims. They were contract referees when
Strauss abused them.87 Thus, they were “attending” or participating in “sporting events.” Doe v.
Brown, 896 F.3d at 132 n.6. And Strauss “gave John Doe 47 a long tour of the athletics
facilities,” and assaulted him “under the guise that he would show John Doe 47 the types of
86
Snyder-Hill R. 123 (SAC ¶ 1940) (Page ID #2255).
87
Id. ¶¶ 1613, 1812 (Page ID #2208, 2236).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 30
medical exams athletes had to get to be cleared to play for OSU.”88 Even if this was not a bona
fide education activity because it was merely a guise for Strauss’s abuse, John Doe 47 was
“attempting to participate in an education program” because he believed that he was receiving a
bona fide tour of Ohio State’s facilities, offered by an Ohio State employee. Doe v. Brown,
896 F.3d at 132 (emphasis added).
III. CONCLUSION
We REVERSE the district court’s orders granting Ohio State’s motions to dismiss, and
we REMAND for further proceedings consistent with this opinion.
88
Id. ¶¶ 1906–11 (Page ID #2251).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 31
_________________
DISSENT
_________________
RALPH B. GUY, JR., Circuit Judge, dissenting. Today’s decision effectively nullifies
any statute of limitations for Title IX claims based on sexual harassment. In these two appeals,
110 male plaintiffs (84 plaintiffs in Snyder-Hill and 33 plaintiffs in Moxley) assert Title IX
claims against The Ohio State University.1 In the Snyder-Hill plaintiffs’ 371-page complaint and
the Moxley plaintiffs’ 159-page complaint, each plaintiff describes the obscene details of how
Dr. Richard Strauss sexually abused them in the school’s locker room or showers, at Strauss’s
home, or during physical examinations. All agree that the alleged sexual abuse occurred
between 1978 and 1998. (Maj. Op. 1). And all agree that plaintiffs’ Title IX claims are subject
to Ohio’s two-year statute of limitations for general personal injury claims. See, e.g., Lillard v.
Shelby Cnty. Bd. of Educ., 76 F.3d 716, 729 (6th Cir. 1996); see Owens v. Okure, 488 U.S. 235,
250 (1989); Ohio Rev. Code § 2305.10(A); (Maj. Op. 17).
These two lawsuits were filed in July 2018 and June 2021—more than 20 to 40 years
after the alleged sexual abuse occurred (1978 to 1998), more than 20 years after Strauss stopped
working at the university (1998), and more than 13 years after Strauss committed suicide
(2005).2 As Judge Watson correctly concluded, plaintiffs’ Title IX claims accrued, and the
statute of limitations expired, long ago.
In reversing, the majority opinion does not rely on a tolling doctrine to revive plaintiffs’
claims. It accepts plaintiffs’ allegations that their Title IX claims did not accrue, and thus the
two-year limitations period did not start running, until sometime after April 2018—when the
university announced it had hired the law firm Perkins Coie to conduct an internal “investigation
1
After oral argument, some plaintiffs voluntarily dismissed their appeal.
2
Snyder-Hill (R. 123, ¶¶ 2, 268); Moxley (R. 16, ¶¶ 2, 210).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 32
into student athletes’ allegations of sexual misconduct by Dr. Strauss dating back to the late-
1970s.”3
“Statutes of limitations are not simply technicalities.” Bd. of Regents v. Tomanio,
446 U.S. 478, 487 (1980). Rather, the Supreme Court has repeatedly explained:
Statutes of limitations are intended to “promote justice by preventing surprises
through the revival of claims that have been allowed to slumber until evidence has
been lost, memories have faded, and witnesses have disappeared.” Railroad
Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-49 (1944).
They provide “security and stability to human affairs.” Wood v. Carpenter,
101 U.S. 135, 139 (1879). We have deemed them “vital to the welfare of
society,” ibid., and concluded that “even wrongdoers are entitled to assume that
their sins may be forgotten,” Wilson v. Garcia, 471 U.S. 261, 271 (1985).
Gabelli v. SEC, 568 U.S. 442, 448-49 (2013). The hard reality is that “there comes a point at
which the delay of a plaintiff in asserting a claim is sufficiently likely either to impair the
accuracy of the factfinding process or to upset settled expectations that a substantive claim will
be barred without respect to whether it is meritorious.” Tomanio, 446 U.S. at 487; see also Am.
Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974). Here, the alleged sexual abuse and
alleged failure of the university to take corrective action are egregious and reprehensible. But
that is not a license to ignore well-established principles regarding when certain claims accrue.
Because plaintiffs’ Title IX claims are time-barred, I would affirm.
I.
Start with the full picture of what plaintiffs allege. Plaintiffs recount in graphic detail that
Strauss’s abuse included: “fondling their testicles and penises,” “often without gloves” for a
“prolonged” or “extended period of time”;4 “masturbating [them] to erection5 and ejaculation”;6
3
See, e.g., Snyder-Hill (R. 123, ¶¶ 153, 270; Appellant Br. 10, 19, 28); Moxley (R. 16, ¶¶ 94, 212;
Appellant Br. 11, 18, 26 & n.19).
4
Snyder-Hill (R. 123, ¶¶ 309, 647, 651, 733, 787, 1026, 1030, 1392, 1462-65, 1595, 1696, 1875, 1981,
2004, 2082, 2118, 2210, 2337, 2460, 2500, 2516, 2519, 2521); Moxley (R. 16, ¶¶ 246, 248, 253, 268, 271, 275, 279,
317, 338, 357, 439, 454, 470-71, 488-89, 504, 520, 535, 537, 613-14, 616, 630-31, 651, 666, 668-69, 687, 691, 694,
697, 713-14, 718, 733, 780, 795, 831, 847, 869).
5
Snyder-Hill (R. 123, ¶¶ 528, 751, 767–72, 951, 1294, 1428, 1571, 1663, 1769, 1926-28, 2138, 2260, 2316,
2356, 2500, 2522, 2540-41); Moxley (R. 16, ¶¶ 336, 374-75, 396-97, 415, 558, 575-78, 598, 733-34, 750, 752, 775,
781, 815, 887).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 33
masturbating himself “during or after the exams”;7 “drugging8 and anally raping them”;9
“unnecessar[ily]” “penetrating their rectums” with his fingers, often for a “prolonged” time and
without gloves;10 and “rubbing his testicles on” or “press[ing] his erect penis against [plaintiffs’]
bodies”;11 “touching their bodies in other inappropriate ways, making inappropriate comments
about their bodies, and asking improper, sexualized questions.” Snyder-Hill (R. 123, ¶¶ 3, 138-
46, 2561); Moxley (R. 16, ¶¶ 3, 79-87, 908). In many cases, plaintiffs experienced a combination
of these acts on one or more occasions. But the majority opinion does not mention some of the
most obscene sexual conduct that plaintiffs allege occurred.
Nor is the alleged sexual abuse confined to the context of a medical exam (as the majority
opinion suggests). The abuse also occurred in the university’s locker room, in the showers, or at
Strauss’s home. For example, the complaints allege: Strauss came into the locker room wearing
only a towel and masturbated John Doe 9 (Snyder-Hill R. 123, ¶¶ 949-51); Strauss showered
with John Doe 17, John Doe 42, and John Doe 98, and masturbated while staring at each plaintiff
(id., ¶¶ 1815, 1240; Moxley R. 16, ¶ 754); Strauss masturbated while he watched John Doe 8
shower (Snyder-Hill R. 123, ¶¶ 907, 910); Strauss entered the sauna nude and masturbated,
sometimes while sitting behind John Doe 98 (Moxley R. 16, ¶ 756); Strauss gave John Doe 19 a
ride home and attempted to kiss him and repeatedly tried to fondle his genitals, took nude
photographs of plaintiff at Strauss’s home, followed plaintiff into the locker room, began
massaging him, and then “kissing John Doe 19’s neck and back” (Snyder-Hill R. 123, ¶ 1307-
10); at Strauss’s home, Strauss gave John Doe 70 a massage, penetrated plaintiff’s anus with his
finger, and then straddled plaintiff’s lower back, masturbated, and ejaculated onto plaintiff’s
back. (Id., ¶¶ 2392-95). This is just a sampling.
6
Snyder-Hill (R. 123, ¶¶ 1301, 1492, 1667, 1727, 1730, 1855-56, 2164, 2368, 2386, 2408, 2410, 2414,
2436); Moxley (R. 16, ¶¶ 3, 908; id., ¶¶ 298, 396-97, 696).
7
Snyder-Hill (R. 123, ¶¶ 1492, 2395).
8
Snyder-Hill (R. 123, ¶¶ 937, 1751).
9
Snyder-Hill (R. 123, ¶¶ 1946-48, 1959, 1122).
10
Snyder-Hill (R. 123, ¶¶ 309, 609, 710, 752, 770, 1516, 1599-1600, 1681, 1890-91, 2061, 2117, 2213,
2394, 2501); Moxley (R. 16, ¶¶ 616, 249-50, 253, 296, 359, 455, 583, 666, 713-14, 753, 776).
11
Snyder-Hill (R. 123, ¶¶ 311, 1076-76, 1492, 2384, 2523, 2360).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 34
II.
If Congress does not provide a statute of limitations for a federal cause of action, we look
to “state law for tolling rules, just as we [do] for the length of statutes of limitations”—but the
“accrual date” of the cause of action “is a question of federal law that is not resolved by
reference to state law.” Wallace v. Kato, 549 U.S. 384, 388, 394 (2007) (claim under 42 U.S.C.
§ 1983). When it comes to the accrual question, there are two possible answers under federal
law: the “injury occurrence rule” (which the university argues applies) or the “injury discovery
rule.” The court’s opinion here, however, adopts an injury-and-deliberate-indifference discovery
rule that renders meaningless any limitations provision for Title IX claims.
1.
The injury occurrence rule “presumptively” applies. McDonough v. Smith, 139 S. Ct.
2149, 2155 (2019) (§ 1983 claim); see also, e.g., Gabelli, 568 U.S. at 448; Wallace, 549 U.S. at
388, 391 (§ 1983); Clark v. Iowa City, 87 U.S. 583, 20 Wall. 583, 589 (1875). But the majority
concludes otherwise, even while stating that the accrual analysis for Title IX claims should be
the same as for § 1983 claims. (Maj. Op. 17-18).
Time and again, the Supreme Court has explained that the “time at which a [federal]
claim accrues . . . ‘conform[s] in general to common-law tort principles.’” McDonough, 139 S.
Ct. at 2155 (quoting Wallace, 549 U.S. at 388). “Under those principles, it is ‘the standard rule
that accrual occurs when the plaintiff has a complete and present cause of action,’ that is, when
‘the plaintiff can file suit and obtain relief.’” Wallace, 549 U.S. at 388 (cleaned up); see also
Gabelli, 568 U.S. at 448. As Wallace further explains, “[u]nder the traditional rule of accrual . . .
the tort cause of action accrues, and the statute of limitations commences to run, when the
wrongful act or omission results in damages. The cause of action accrues even though the full
extent of the injury is not then known or predictable.” Wallace, 549 U.S. at 391 (cleaned up;
emphasis added).
By that measure, plaintiffs’ claims are untimely. To be sure, the most analogous
common-law tort is battery, and a “battery is complete upon physical contact, even though there
is no observable damage at the point of contact.” Restatement (Second) of Torts § 899,
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 35
comment. c (Am. L. Inst. 1979); accord Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208,
1215-16 (10th Cir. 2014) (Title IX). Despite what this court’s opinion says, Varnell applied the
injury occurrence rule, and thus there is at present a “circuit split.” (Maj. Op. 19, 22). Under the
injury occurrence rule, each plaintiff’s Title IX claim “accrued no later than the last sexual abuse
by” Strauss (1978 to 1998). Varnell, 756 F.3d at 1216-17.
But even taking the elements of a Title IX claim at face value, the result is the same.
After all, the cognizable injury or damages is “sexual harassment . . . that is so severe, pervasive,
and objectively offensive, and that so undermines and detracts from the victims’ educational
experience, that the victim-students [were] effectively denied equal access to an institution’s
resources and opportunities.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651 (1999).
That is, the “Injury” element under Title IX is “the deprivation of ‘access to the educational
opportunities or benefits provided by the school.’” Kollaritsch v. Mich. State Univ. Bd. of Trs.,
944 F.3d 613, 622 (6th Cir. 2019) (quoting Davis, 526 U.S. at 650); see also Foster v. Bd. of
Regents, 982 F.3d 960, 965 (6th Cir. 2020) (en banc); Doe v. Miami Univ., 882 F.3d 579, 590
(6th Cir. 2018) (Title IX hostile-environment claim). Plaintiffs indeed seek “damages” for inter
alia the “sexual abuse” and loss of “educational opportunities” that occurred between 1978 and
1998.12
Accordingly, under the injury occurrence rule, plaintiffs’ Title IX claims are time-barred
because their claims accrued no later than the last occasion that they were harmed by Strauss
(1978 to 1998). See Varnell, 756 F.3d at 1216-17. To conclude otherwise, would put “the
supposed statute of repose in the sole hands of the party seeking relief.” Wallace, 549 U.S. at
391.
2.
The injury discovery rule applies only in a few well-defined situations. This case is not
one of them. The so-called injury discovery rule “arose in fraud cases as an exception to the
general limitations rule,” and the Supreme Court has held that it applies “where a plaintiff has
been injured by fraud and remains in ignorance of it without any fault or want of diligence or
12
Snyder-Hill (R. 123, PgID 2357); Moxley (R. 16, PgID 361).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 36
care on his part,” Merck & Co. v. Reynolds, 559 U.S. 633, 644-45 (2010) (citations omitted;
emphasis added); see also Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019); Gabelli, 568 U.S. at
449-50; Bailey v. Glover, 88 U.S. 342, 21 Wall. 342, 347-50 (1875). But this is not a fraud case.
The discovery rule also applies when “Congress has enacted statutes that expressly
include the language . . . setting limitations periods to run from the date on which the violation
occurs or the date of discovery of such violation.” Rotkiske, 140 S. Ct. at 361 (citing statutes);
see also, e.g., Cal. Pub. Emps.’ Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042, 2047, 2050 (2017)
(discovery rule); Merck, 559 U.S. at 637, 644-48 (discovery rule). On the other hand, where, as
here, Congress does not provide a statute of limitations that expressly includes “discovery” rule
language, the Court applies the “standard” injury occurrence rule. See, e.g., Rotkiske, 140 S. Ct.
at 358, 360; Gabelli, 568 U.S. at 448-49, 454; Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct.
1962, 1969 (2014); Wallace, 549 U.S. at 388, 391 (§ 1983); McDonough, 139 S. Ct. at 2155-56
(§ 1983).
Congress omitted any statute of limitations in Title IX. Thus, it did not silently intend to
adopt a discovery rule—“a question that, on everyone’s account, [Congress] never faced.”
Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017). The Court has
reiterated that adopting a discovery rule is “particularly inappropriate” because “Congress has
shown that it knows how to adopt the omitted language or provision.” Rotkiske, 140 S. Ct. at
361 (emphasis added). “[R]eading in a provision stating that [a] limitations period begins to run
on the date an alleged [federal law] violation is discovered,” id., is an “expansive approach to the
discovery rule [and] is a ‘bad wine of recent vintage.’” Id. (quoting TRW Inc. v. Andrews, 534
U.S. 19, 37 (2001) (Scalia, J., concurring in the judgment)).
It is thus improper to implant a discovery rule into Title IX merely “because Title IX’s
text contains no statute of limitations at all.” (Maj. Op. 20). This is “[a]textual judicial
supplementation” all the same. See Rotkiske, 140 S. Ct. at 361. If anything, it is more
problematic given that we are dealing with a “judicially implied” cause of action. Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284-85 (1998). Title IX is not a blank page for
politically unaccountable judges to write in whatever rule seems to further “the remedial
purposes of Title IX.” (Maj. Op. 19). “Indeed, it is quite mistaken to assume . . . that ‘whatever’
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 37
might appear to ‘further the statute’s primary objective must be the law.’” Henson, 137 S. Ct. at
1725 (cleaned up). “Legislation is, after all, the art of compromise, the limitations expressed in
statutory terms often the price of passage, and no statute yet known ‘pursues its stated purpose at
all costs.’” Id. (cleaned up).
No less than twice the Supreme Court has told courts what to do when there is no federal
statute of limitations at all. Wallace, 549 U.S. at 388-91 (false arrest claim under § 1983);
McDonough, 139 S. Ct. at 2155-56 (malicious prosecution claim under § 1983 based on
fabricated evidence). The majority opinion admits that in both Wallace and McDonough “the
Supreme Court applied the occurrence rule to § 1983 claims.” (Maj. Op. 21-22). In both cases,
the Court explained in detail how the occurrence rule applied and the reasons why. Cf. Ramos v.
Louisiana, 140 S. Ct. 1390, 1404 & n.54 (2020); see also Direct Mktg. Ass’n v. Brohl, 814 F.3d
1129, 1148 (10th Cir. 2016) (Gorsuch, J., concurring). But because the Court did not “discuss”
the discovery rule or mention whether a party advocated for the discovery rule, the majority
opinion takes the view that the Court’s application of the occurrence rule was a mere suggestion
that “does not impact our analysis.” (Maj. Op. 22). It is a mistake, however, to require the Court
to explicitly state that the discovery rule does not apply to cases under § 1983 or Title IX.
To the extent this court has applied the injury discovery rule to § 1983 claims, Sevier v.
Turner, 742 F.2d 262, 273 (6th Cir. 1984), this court recently questioned whether “our cases
imbibing this ‘bad wine’ warrant reconsideration in light of the Supreme Court’s recent
teachings,” Dibrell v. City of Knoxville, 984 F.3d 1156, 1162 (6th Cir. 2021). Dibrell decided
not to “resolve this tension” because plaintiff’s § 1983 claims were untimely under both accrual
rules. Id. With this in mind, we should not import the same “bad wine” into the new context of
Title IX claims.
Other than “the historical exception for suits based on fraud,” the Court has “deviated
from the traditional rule and imputed an injury-discovery rule to Congress on only one
occasion.” TRW, 534 U.S. at 37 (Scalia, J., concurring in the judgment)
(citing Urie v. Thompson, 337 U.S. 163, 169-71 (1949) (involving pulmonary silicosis caused by
inhaling coal dust)). The Court did so in Urie because the Court “could not imagine that
legislation as ‘humane’ as the Federal Employers’ Liability Act” (FELA) “would bar recovery
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 38
for latent medical injuries.” Id. Because Urie refused to count “each inhalation of silica dust” as
“a separate tort giving rise to a fresh ‘cause of action,’” Urie held that “the afflicted employee
can be held to be ‘injured’ only when the accumulated effects of the deleterious substance
manifest themselves.” 337 U.S. at 169-70 (citation omitted). “[I]n one other case [the Court]
simply observed (without endorsement) that several Courts of Appeals had substituted injury-
discovery for the traditional rule in medical-malpractice actions under the Federal Tort Claims
Act” (FTCA). TRW, 534 U.S. at 37 n.2 (Scalia, J., concurring in the judgment) (citing United
States v. Kubrick, 444 U.S. 111, 120 & n.7 (1979)). “[I]n two other cases” involving civil RICO
actions, the Court “observed (without endorsement) that lower federal courts ‘generally apply’
an injury-discovery rule.” Id. (citing Rotella v. Wood, 528 U.S. 549, 555 (2000); Klehr v. A. O.
Smith Corp., 521 U.S. 179, 191 (1997)). This case is not akin to any of those cases.
Yet the court’s opinion here relies on FTCA and FELA cases to justify adopting a
discovery rule. (Maj. Op. 18, 23). This case is not like one of the “medical-malpractice cases
[under the FTCA] in which the plaintiff has little reason to suspect anything other than natural
causes for his injury.” Amburgey v. United States, 733 F.3d 633, 637 (6th Cir. 2013) (cleaned
up); see also Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998); Miller v. United
States, 932 F.2d 301, 303 (4th Cir. 1991). Nor does this case involve claims for “latent” injuries
or diseases under FELA. See, e.g., Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 773
(6th Cir. 2001); Fonseca v. CONRAIL, 246 F.3d 585, 586, 589 (6th Cir. 2001); Hicks v. Hines
Inc., 826 F.2d 1543, 1544 (6th Cir. 1987).13 Even in FELA cases, we have held that “if greater
than de minimus harm is discernable at the time of the tortious event,” the “time of event rule”
(i.e., injury occurrence rule) applies. Fonseca, 246 F.3d at 588 (quoting Hicks, 826 F.2d at
1544).
13
This court stated the injury-and-cause discovery rule in Bishop v. Children’s Center for Developmental
Enrichment, 618 F.3d 533, 536 (6th Cir. 2010), a § 1983 case. But Bishop is quoting Campbell, 238 F.3d at 775, a
FELA case involving bone joint injuries allegedly caused by using certain equipment for over two decades. Id. at
773-74. Bishop does not offer any explanation for doing so, and the causation part of the rule that is unique to our
FELA and FTCA cases played no part in the court’s brief analysis. See Bishop, 618 F.3d at 537 (“Plaintiffs’ claims
accrued . . . when they knew that CB had been expelled from [school] . . . . [R]edress was available at the time of the
injury.”).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 39
The court’s opinion here, however, makes the leap in logic that a Title IX claim is like a
“latent injury” claim, asserting that “[j]ust as an employee needs to know that their employer
exposed them to toxic materials before they can bring suit, a student must know that their school
exposed them to a heightened risk of harassment before they have a viable claim.” (Maj. Op.
25). But a Title IX injury is not the result of “the accumulated effects of [a] deleterious
substance” that only becomes “manifest” decades later. Urie, 337 U.S. at 169-70 (citation
omitted).
Given there is no textual or historical reason to graft a discovery rule onto the implied
right of action under Title IX, I would decline to do so.
3.
Even assuming the “injury discovery rule” applies, plaintiffs’ claims are untimely. Under
the injury “discovery rule,” the statute of limitations will begin to run “only when the injury is or
reasonably could have been discovered.” Gabelli, 568 U.S. at 451 (emphasis added); accord
Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015). The trigger
date is the “event” that “should have alerted the typical lay person to protect his or her rights.”
Johnson, 777 F.3d at 843 (citation omitted). This is a simple, “objective inquiry.” Id.
By that standard, plaintiffs’ claims accrued when plaintiffs admittedly knew Strauss
injured them between 1978 and 1998. How can it be otherwise? Plaintiffs claim that a
cognizable Title IX “injury” occurred by virtue of being subjected to “sexual harassment . . . that
is so severe, pervasive, and objectively offensive, and that so undermine[d] and detract[ed] from
the [their] educational experience, that the [plaintiffs were] effectively denied equal access to
[the university]’s resources and opportunities” between 1978 and 1998. Davis, 526 U.S. at 651;
see also Kollaritsch, 944 F.3d at 622.14 Plaintiffs cannot, and indeed do not, simultaneously
claim that at the time of Strauss’s misconduct they did not know or have “reason to know of the
injury which is the basis of [their] action.” Johnson, 777 F.3d at 843 (citation omitted; emphasis
added). The majority opinion does not solve this enigma.
14
Snyder-Hill (R. 123, ¶¶ 2576, 2588); Moxley (R. 16, ¶¶ 923, 935).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 40
Lest there is any doubt, plaintiffs allege they were subjected to obscene sexual abuse in
the school’s locker room or showers, at Strauss’s home, or during physical exams. Supra
Section I. At least 28 plaintiffs fled from the situation and/or later refused to be examined by
Strauss or be anywhere near Strauss.15 At least 25 plaintiffs allege that they complained to
university administration, coaches, trainers, health center staff, and/or other physicians about
Strauss’s conduct.16 Of the 2 plaintiffs who complained to physicians, one physician replied,
“That seems really odd . . . It’s not normal.” Snyder-Hill (R. 123, ¶¶ 382-83). The other
physician responded, “Dr. Strauss’ actions were inappropriate and not medically necessary,” and
the physician wrote a note “to excuse John Doe 9 from further physicals by Dr. Strauss.” (Id., ¶¶
939-40).
Remarkably, 104 plaintiffs claim Strauss’s abuse has caused decades of suffering and
many other tragedies in life (e.g., drugs, alcohol abuse, emotional disorders, relationship
problems, intimacy issues, divorce, and attempted suicide).17 And they seek damages for these
harms. Id.
It is beyond debate that plaintiffs knew of their “injury” between 1978 and 1998.
Gabelli, 568 U.S. at 451; Johnson, 777 F.3d at 843. Because the facts on the face of the
complaint show that plaintiffs’ claims are untimely, “dismissing the claim[s] under Rule 12(b)(6)
is appropriate.’” Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 821 F.3d 780,
786 (6th Cir. 2016) (citation omitted); see also Fed. R. Civ. P. 12(b)(6); Jones v. Bock, 549 U.S.
199, 215 (2007); Bishop v. Lucent Techs., Inc., 520 F.3d 516, 520 (6th Cir. 2008).
15
Snyder-Hill (R. 123, ¶¶ 562-63, 810, 1003, 1152, 1579, 1713, 2217, 2296-97, 2329, 2358); Moxley (R.
16, ¶¶ 253, 273-80, 318-19, 340, 361, 377, 398, 430, 538, 541, 552, 598, 616-17, 634, 682, 781, 789, 805, 816, 833,
882).
16
Snyder-Hill (R. 123, ¶¶ 314-20, 347-51, 360-62, 382-86, 409-11, 414-16, 501-03, 572-73, 589-90, 690,
792, 814-17, 822-23, 883-84, 1086, 1095, 1226-30, 1311-12, 1429, 1832-33, 1894, 1949-51, 2085-86, 2472);
Moxley (R. 16, ¶¶ 273, 361, 579, 618, 715, 872).
17
Snyder-Hill (R. 123, ¶¶ 339, 369, 396, 425, 456, 486, 548, 630, 641, 664, 680, 698, 723, 743, 763, 782,
800, 843, 969-72, 1044-45, 1069, 1107, 1140, 1167, 1199, 1257, 1283, 1325, 1358, 1382, 1407, 1452, 1478, 1504,
1540, 1591, 1611, 1626, 1658, 1675, 1691, 1708, 1721, 1739, 1762, 1780, 1794, 1811, 1825, 1868, 1885, 1902,
1939, 1959, 1995, 2041, 2057, 2076, 2095, 2112, 2131, 2153, 2177, 2231, 2254, 2276, 2291, 2330, 2347, 2379,
2402, 2423, 2446, 2468, 2510, 2534); Moxley (R.16, ¶¶ 262, 289, 308, 327, 353, 369, 391, 408-09, 430-32, 482,
499, 552, 569, 592, 607, 626, 645, 661, 682, 707, 727, 744, 789-90, 805, 826, 841, 863, 882).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 41
Yet the court’s opinion concludes that all 110 plaintiffs’ Title IX claims are not time-
barred for “three independent reasons.” (Maj. Op. 34).
First, the majority is willing to say that only 9 Snyder-Hill plaintiffs “allege that they did
know that Strauss’s conduct was abuse,” (Maj. Op. 9-10, 32), but that is only because these 9
plaintiffs concede in their brief that they “knew Strauss abused them.” Snyder-Hill (Appellant
Br. 28 n.15). The opinion otherwise accepts the bald allegation of the other 75 Snyder-Hill
plaintiffs and all 34 Moxley plaintiffs that, because they “were not trained in medicine and did
not know what was medically appropriate,” they “did not understand or believe that Dr. Strauss
had sexually abused” them until sometime after the university publicized its investigation in
April 2018.18 (Emphasis added); see (Maj. Op. 32-34 (“[P]eople suffer serious harms resulting
from their abuse, even if they do not recognize it as abuse.”)). As stated, nowhere do plaintiffs
allege they did not know they were “injured,” nor could they.
This conflates “injury” with what qualifies as “sexual abuse.” Under the discovery rule,
it is irrelevant whether plaintiffs labeled Strauss’s conduct as “sexual abuse.” It is “discovery of
the injury” alone that “starts the clock.” Rotella, 528 U.S. at 555 (emphasis added). For
example, “identifying professional negligence may also be a matter of real complexity, and its
discovery is not required before the statute starts running” for a medical malpractice claim.
Rotella, 528 U.S. at 556 (citing Kubrick, 444 U.S. at 122, 124). The same goes for any other
legal label for conduct, e.g., excessive force, defamation, or sexual abuse. The “‘accrual’ of a
claim” does not “await awareness by the plaintiff that his injury was . . . inflicted” in a way that
constitutes sexual abuse. Kubrick, 444 U.S. at 123. Plaintiffs, “armed with the facts about the
harm done to [them], can protect [themselves] by seeking advice in the medical and legal
community. To excuse [them] from promptly doing so by postponing the accrual of [their]
claim[s] would undermine the purpose of the limitations statute[.]” Id. (emphasis added); see
also Rotella, 528 U.S. at 555-56.
18
See, e.g., Snyder-Hill (R. 123, ¶¶ 153-60, 267, 270-72, 390, 448, 454, 480, 484, 514, 518, 542, 546, 588,
591; Appellant Br. 10, 19, 28); Moxley (R. 16, ¶¶ 94-101, 209, 212-14, 256, 260; Appellant Br. 11, 18, 26 & n.19).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 42
Just as the individual “suffering from inadequate treatment is thus responsible for
determining within the limitations period then running whether the inadequacy was
malpractice,” here the limitations period started running decades ago and plaintiffs had two years
to determine whether Strauss’s conduct was sexual abuse and whether the university was
deliberately indifferent. Rotella, 528 U.S. at 556 (emphasis added).
The majority then points to the statement that “[g]enerally, a motion under Rule 12(b)(6)
. . . is an ‘inappropriate vehicle’ for dismissing a claim based upon a statute of limitations.” Lutz
v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013). From this, it is inaccurate
to summarily conclude that “whether [plaintiffs] knew or should have known that they were
abused is an issue of fact for the jury.” (Maj. Op. 31, 34).
That conclusion is also erroneous for another reason, even assuming plaintiffs must
recognize the misconduct as “sexual abuse.” Plaintiffs detailed and obscene allegations belie
their assertion that they did not know Strauss’s misconduct was sexual abuse. Only “factual
allegations in the complaint” are taken as true; “conclusory statements” and “legal conclusions,”
even if “couched as a factual allegation,” are “not entitled to be assumed true.” Ashcroft v. Iqbal,
556 U.S. 662, 678-79, 681 (2009) (cleaned up). Judges cannot throw “judicial experience and
common sense” out the window simply because plaintiffs assert that they did not know Strauss’s
conduct was, by definition, sexual abuse. Id. at 679. If that were enough, the statute of
limitations would be extended indefinitely because the issue would always be consigned to a jury
trial. “Repose would hinge on speculation about what the [plaintiffs] knew, when [they] knew it,
and when [they] should have known it.” Gabelli, 568 U.S. at 452; see Jones, 549 U.S. at 215.
Second, the court’s opinion stitches out a new injury-and-deliberate-indifference
discovery rule: “[T]he clock starts only once the plaintiff knows or should have known that Ohio
State administrators ‘with authority to take corrective action’ knew of Strauss’s conduct and
failed to respond appropriately.” (Maj. Op. 31-32) (emphasis added). Recall that the institution
must somehow make this showing to invoke the statute of limitations defense. How exactly is
that possible at any stage in litigation, especially decades after the critical events? And even if a
plaintiff will “know or have reason to know that a school mishandle[d] their own report of an
assault,” that will not be enough to trigger accrual for a “heightened-risk claim,” so long as the
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 43
plaintiff claims that they did not “know that others had complained before them or that the
school was deliberately indifferent to any prior complaints.” (Maj. Op. 28-29).
Third, and relatedly, the opinion adds that even if a plaintiff was alerted to investigate
further, that will “not ultimately matter,” so long as the plaintiff claims “that if they had
investigated the abuse, they would not have discovered” the institution’s deliberate indifference.
(Maj. Op. 31-32). But when will that not be the case? With that, the opinion concludes that all
110 plaintiffs plausibly allege that they did not “know the underlying facts about Ohio State’s
alleged deliberate indifference.” Id. at 30, 34.
But the Supreme Court was emphatically clear: “[I]n applying a discovery accrual
rule, we have been at pains to explain that discovery of the injury, not discovery of the other
elements of a claim, is what starts the clock.” Rotella, 528 U.S. at 555 (emphasis added).
Rotella reminds us yet again that even in the context of “medical malpractice, where the cry for a
discovery rule is loudest,” the “discovery rule does not extend beyond the injury.” Id. At issue
in Rotella was the accrual of civil claims under the Racketeer Influenced and Corrupt
Organizations Act (RICO). Id. at 551. The Court rejected plaintiff’s (and this circuit’s then-
prevailing) “injury and pattern discovery rule,” “under which a civil RICO claim accrues only
when the claimant discovers, or should discover, both an injury and a pattern of RICO activity.”
Id. at 551, 553 (collecting cases).
Civil “RICO has a unique pattern requirement” to state a claim. Rotella, 528 U.S. at
556.19 And “a pattern of predicate acts may well be complex, concealed, or fraudulent,” “and
involve harm to parties wholly unrelated to an injured plaintiff.” Rotella, 528 U.S. at 555, 559.
Even so, Rotella refused to adopt plaintiff’s “less demanding” discovery rule. Rotella, 528 U.S.
at 557. “A RICO plaintiff’s ability to investigate the cause of his injuries is no more impaired by
his ignorance of the underlying RICO pattern than a malpractice plaintiff is thwarted
by ignorance of the details of treatment decisions or of prevailing standards of medical practice.”
Id. at 556-57 (emphasis added). As such, Rotella held that the limitations period began at the
19
To state a civil RICO claim, a plaintiff must allege “(1) conduct (2) of an enterprise (3) through a pattern
(4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 44
“the point of injury or its reasonable discovery”—not when the plaintiff reasonably “discovered
the pattern of predicate acts” for his civil RICO claim. Id. at 558-59.
Rotella’s rationale governs here (assuming the discovery rule applies). An institution’s
deliberate indifference is one of “the other elements” of a Title IX claim, not the “injury”
element that “starts the clock.” Rotella, 528 U.S. at 555; see, e.g., Kesterson v. Kent State Univ.,
967 F.3d 519, 527 (6th Cir. 2020); Kollaritsch, 944 F.3d at 619-22. Causation is yet another
element. Kollaritsch, 944 F.3d at 622; see also e.g., Connick v. Thompson, 563 U.S. 51, 59 n.5
(2011) (noting that a plaintiff who has “satisfied the deliberate indifference requirement” does
not automatically “satisfy the causation requirement”); Bd. of Comm’rs of Bryan Cnty. v. Brown,
520 U.S. 397, 404-05 (1997).
It makes no difference that an institution’s policy or practice of deliberate indifference to
prior acts of sexual harassment “might well be complex, concealed, or fraudulent, and involve
harm to parties wholly unrelated to an injured plaintiff.” See Rotella, 528 U.S. at 559. Of
course, the “difficulty in identifying” such conduct is “inherent” in deliberate indifference
claims. See id. These matters often (if not always) involve secret conduct, private disciplinary
meetings, inaccessible personnel files, and conduct that may not be recorded at all. But that
“only reinforces” the reasons for refusing to inject the “complexity” of deliberate indifference
into the injury discovery rule. See id. To hold otherwise, “would bar repose, prove a godsend to
stale claims, and doom any hope of certainty in identifying potential liability.” Id.On that score, plaintiffs’ Title IX claims accrued between 1978 and 1998 when each
plaintiff possessed the “critical facts that he has been hurt and who has inflicted the injury.”
Twersky v. Yeshiva Univ., 579 F. App’x 7, 9-10 (2d Cir. 2014) (quoting Kubrick, 444 U.S. at
122). Namely, “they were unquestionably aware of (1) their injuries, (2) their [abuser’s]
identit[y], and (3) their [abuser’s] prior and continued employment at [the university].” Id.Rotella also put to rest plaintiffs’ objection that without evidence of the university’s
deliberate indifference, plaintiffs could not file suit at the time of the abuse because they “could
not overcome Rule 11, let alone Rule 12(b)(6).”20 The Court acknowledged that RICO claims
20
Snyder-Hill (Appellant Br. 49); Moxley (Appellant Br. 44).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 45
often involve fraud and therefore must be pleaded with “particularity” under Rule 9(b)—unlike
plaintiffs’ Title IX claims—and yet the Court saw no reason to expand the injury discovery rule.
Rotella, 528 U.S. at 560. And as in Rotella, plaintiffs’ argument “ignores the flexibility provided
by Rule 11(b)(3), allowing pleadings based on evidence reasonably anticipated after further
investigation or discovery.” Id.In fact, plaintiffs took advantage of Rule 11 in filing suit here. The university announced
its investigation in April 2018. At that time, plaintiffs knew nothing more about the university’s
deliberate indifference than they allegedly did for the past several decades. And yet the Snyder-
Hill plaintiffs managed to file suit in July 2018. Under the majority’s reasoning, however,
plaintiffs’ claims still had yet to accrue. After all, it was not until 12 months later, in May 2019,
that the Perkins Coie report publicly aired the university’s dirty laundry.21
If there were any lingering doubt that Title IX and § 1983 deliberate indifference claims
will never accrue until the plaintiff says so decades later, the majority opinion justifies its rule
because the First Circuit did just that with a § 1983 claim against a city in Ouellette v. Beaupre,
977 F.3d 127, 130, 139-40 (1st Cir. 2020). (Maj. Op. 27 (“We are persuaded by Ouelette’s
reasoning and adopt it fully.”)).
But contrary to the majority opinion’s suggestion, “seven of our sibling circuits” have not
adopted an injury-and-deliberate-indifference discovery rule. (Maj. Op. 23, 29). Ouellette
stands alone—the other six cases cited do not even discuss the accrual of deliberate indifference
claims. Nor does the opinion mention the circuits that have refused “to adopt a ‘delayed accrual’
rule” for Title IX and § 1983 claims against an institution, even though “the claims against [the
institution] are necessarily based on official ‘policies or customs’” or deliberate indifference to
prior misconduct “that could not have been known at the time of [plaintiff’s] abuse.” King-White
v. Humble Indep. Sch. Dist., 803 F.3d 754, 763 (5th Cir. 2015) (Title IX and § 1983); see
Twersky, 579 F. App’x at 9-10 (Title IX); Lawson v. Rochester City Sch. Dist., 446 F. App’x
21
See, e.g., Snyder-Hill (R. 123, ¶¶ 271-75; id., ¶ 25 n.10 (citing Michael V. Drake, A Message from
President Drake: Strauss Investigation Report, The Ohio State University (May 17, 2019), https://president.osu.edu/
presidents/drake/news-andnotes/2019/strauss-investigation-report-campus-wide-email html)).
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 46
327, 329 (2d Cir. 2011) (§ 1983); see also Tengood v. City of Philadelphia, 529 F. App’x 204,
210 & n.5 (3d Cir. 2013) (§ 1983).
III.
The court’s opinion then goes on to expand the scope of Title IX. Although the
university argues that four plaintiffs—John Doe 30, John Doe 42, John Doe 47, and John Doe
49—fail to state a Title IX claim because they were “neither students nor employees” of the
university, and they were not denied the benefits of any “education program or activity” of the
university, Snyder-Hill (Appellant Br. 51), today’s decision rejects that argument.
This court has explicitly held that the right to bring suit under Title IX is limited to “those
circumstances where a plaintiff is so closely tied to a university that the individual is essentially a
student of that university.” Doe v. Univ. of Ky., 971 F.3d 553, 559 n.4 (6th Cir. 2020). In the
majority opinion’s view, that rule is “not relevant” because that case involved student-on-student
sexual harassment and this is a case about employee-on-student harassment. (Maj. Op. 35). But
that does not change Title IX’s coverage. Title IX does not distinguish between students and
teachers as harassers: The statute prohibits “discrimination under any education program or
activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a) (emphasis added).
Satisfied that it is freed from the bonds of precedent, the majority opinion concludes that
“‘members of the public’ can bring a Title IX claim” if they are subject to discrimination when
they are, “for example, accessing university libraries or other resources, or attending campus
tours, sporting events or other activities.” (Maj. Op. 37). That conclusion rests on dictum from a
footnote in Doe v. Brown University, 896 F.3d 127, 132 n.6 (1st Cir. 2018), a case in which the
court rejected a Title IX claim brought by “a freshman at Providence College, [who] was
sexually assaulted by three students of Brown University . . . on Brown’s campus.” Id. at 128.
Here, John Doe 30 and John Doe 42 were contract referees paid by the university, and
they experienced a single instance of sexual harassment before or after they had refereed a
wrestling match. Snyder-Hill (R. 123, ¶¶ 75, 87, 1612-13, 1812). John Doe 49 was a high
school student attending a summer wrestling camp at the university. (Id., ¶¶ 94, 1940). John
Doe 47 was a high school student and “was on [the university]’s campus visiting his aunt, a
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 47
university employee.” (Id., ¶ 1903). “While hanging around the athletics department by himself,
John Doe 47 was approached by Dr. Strauss,” who “gave John Doe 47 a long tour of the athletics
facilities and subjected him twice during that day to sexually abusive ‘medical exams.’” (Id., ¶¶
1904-06) (emphasis added).
Even if any of these four plaintiffs were sufficiently tied to the university, none of them
alleges that they were “den[ied] . . . equal access to an educational program or activity.” Davis,
526 U.S. at 652; see also Meriwether v. Hartop, 992 F.3d 492, 511 (6th Cir. 2021). That is,
plaintiffs do not allege that they quit refereeing, quit the wrestling camp or intended to attend
again but did not do so, or had planned to attend the university and decided not to do so. Arocho
v. Ohio University, 2022 WL 819734, at *3-4 (6th Cir. 2022) (dismissing Title IX claims even
though a university officer “sexually assaulted [a high school student] during his ‘work hours
and at work-related locations,’ and in his Ohio University police cruiser”). Nor have the four
plaintiffs even alleged that Strauss’s abuse seriously “undermine[d] and detract[ed] from” their
experience participating in any university activity. Davis, 526 U.S. at 651; see also Kollartisch,
944 F.3d at 622 (noting examples of an impaired experience).
“Emotional harm standing alone is not a redressable Title IX injury.” Kollartisch, 944
F.3d at 622; see also Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562, 1569, 1576
(2022).
* * *
In the end, this court’s opinion grants the plaintiffs what the democratic process has
effectively denied them. In 2019, Ohio legislation was proposed to grant the right to “bring a
civil action against a land grant university to recover damages for any injury . . . proximately
caused by sexual misconduct against the victim that was committed between January 1, 1978,
and December 31, 2000, by a physician who was an employee of the university during that
period of time.” H.B. 249, 133rd Gen. Assemb., Reg. Sess. (Ohio. 2019). The proposal
specifically provided that “there is no period of limitations for a civil action brought by [such] a
victim.” Id. But H.B. 249 failed to pass the introduction stage. Michigan, under similar
Nos. 21-3981/3991 Snyder-Hill, et al. v. Ohio State Univ. Page 48
circumstances, has enacted more measured legislation, and additional legislation is being
considered.22
I respectfully dissent.
22
See 2018 Mich. Pub. Act No. 183, §§ 5805(2)-(6), 5851b(1)-(3) (codified as amended at Mich. Comp.
Laws §§ 600.5805, 600.5851b); see also H.B. 5962, 101st Leg., Reg. Sess. (Mich. 2022); H.B. 4306, 101st Leg.,
Reg. Sess. (Mich. 2021).