Introduction
With its large green fields and buildings that look like castles, Kansas State University’s (KSU) campus makes one feel like they are in a fairy tale.1 However, there was not a happily ever after for Sara Weckhorst, a freshman at KSU.2 While at an off-campus fraternity, Ms. Weckhorst partook in drinking the alcohol provided by the fraternity and blacked out.3 A fraternity member raped her in his truck while other students watched.4 The fraternity member then raped her twice more.5 After leaving her “naked and passed out,” another member of the fraternity raped her.6 When Ms. Weckhorst reported the assaults to an investigator in the university’s Affirmative Action Office, they refused to investigate the rapes because they occurred off campus and were therefore not under the control of the university.7
For decades, student-on-student sexual assault has been a significant problem on college and university campuses.8 Many institutions of higher education have purposefully ignored the student-on-student sexual assaults that occur on their campuses and have deterred survivors from reporting or pressing criminal charges against their alleged perpetrators.9 As a result, many sexual assault survivors have pursued legal action against their schools for failing to provide sufficient investigative and judicial proceedings when responding to accusations of assault.10
In order to pursue such legal action, victims use Title IX of the Education Amendments of 1972, a federal civil rights law that prohibits sex-based discrimination in federally funded education programs and activities.11 The Supreme Court has held that Title IX establishes a private cause of action for students who experience sexual harassment at an educational institution that receives federal funding.12 This private cause of action permits recovery of monetary damages when the institution is deliberately indifferent to the harassment of a student after it is notified of prior harassment.13 An educational institution acts with “deliberate indifference” when it has notice that sexual harassment has occurred but then ignores the harassment by not properly investigating it or not implementing supportive measures for the complainant.14 As a result of an educational institution’s deliberate indifference after receiving an initial report of assault, some plaintiffs experience harassment a second time, also known as “post-notice harassment.”15
However, courts are split over whether a student may recover monetary damages if the institution’s deliberate indifference did not result in actual post-notice harassment and only vulnerability to it.16 For instance, the Sixth Circuit has held that in order for a plaintiff to demonstrate that an institution was deliberately indifferent post‑harassment, the plaintiff must undergo actual harassment a second time.17 Conversely, the Tenth Circuit in Farmer v. Kansas State University, as well as the First and Eleventh Circuits, has focused on the severity of the initial harassment and how an institution’s deliberate indifference during a rape investigation can lead to further harm that is not necessarily sexual in nature but may lead to a denial of equal access to education.18 In other words, is it enough for a plaintiff to be merely vulnerable to further harassment, or must a plaintiff suffer actual harassment a second time to state a viable Title IX claim?19
In March 2019, the Court of Appeals for the Tenth Circuit answered this question in Farmer.20 It affirmed the district court’s holding that KSU violated Title IX by being deliberately indifferent to reports it received of student-on-student sexual harassment, in this case, rape.21 The court reasoned that it was sufficient for the students to allege that the university turning a blind eye to their assaults made them “vulnerable to” sexual harassment without requiring an allegation of further actionable sexual harassment.22 In doing so, the court rejected KSU’s claim that in order for the students to state a Title IX claim, they must have alleged that the university’s deliberate indifference caused each plaintiff to experience further actionable incidents of harassment by other students, such as being raped again.23
This Case Note will argue that the Farmer court correctly concluded that vulnerability to subsequent harassment caused by a university’s deliberate indifference is sufficient harm to state a viable Title IX claim.24 In fact, the Farmer interpretation better encompasses the ultimate goal of Title IX: to prevent discrimination that could lead to the injury of being denied access to educational activities that all students deserve.25 Survivors such as the plaintiffs in Farmer should not have to experience rape a second time to receive Title IX protection.26 Simply living in fear of being sexually harassed again should be enough to state a viable Title IX claim if that fear prevents a student from accessing an educational institution’s programs and activities.27 Such an interpretation is better supported by scientific research on the psychological effects of sexual harassment, would make it less daunting for survivors to report sexual assault, and would hold educational institutions more accountable and push them to develop more rigorous investigative processes.28
Part I of this Case Note explores the legal background of the Farmer case by discussing the text and history of Title IX legislation as well as the Supreme Court’s interpretation of the statute.29 Part II goes on to examine the facts of Farmer.30 Part II continues by discussing the procedural history of Farmer, which includes the district court’s holding and KSU’s appeal.31 Part III establishes the Tenth Circuit Court of Appeals’ holding.32 Part IV analyzes Farmer and argues that the court correctly decided that vulnerability to sexual harassment is sufficient harm to state a claim under Title IX.33 Part IV goes on to interpret cases with opposite holdings to that of Farmer, which reveals the presence of a circuit split demonstrating why Farmer is correct in holding that vulnerability to further harassment is sufficient harm under Title IX.34
I. Background
A. Title IX Legislation
1. 20 U.S.C. § 1681(a)
Title IX was modeled after the Civil Rights Act of 1964.35 “Title VI of the Civil Rights Act provides that ‘[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.’”36 While the Civil Rights Act is almost indistinguishable from Title IX, it does not provide protection from discrimination based on sex.37
Eight years later, Congress passed Title IX.38 Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .”39 Senator Birch Bayh of Indiana explained that the purpose of this new legislation was to combat the destructive discrimination against women in the American educational system.40 Senator Bayh went on to note that because education provides access to jobs and financial security, discrimination becomes even more detrimental in the realm of educational institutions.41 Thus, he believed there was a need for far-reaching measures to provide women with effective legal protection from the lasting discrimination that was only serving to maintain second-class citizenship for American women.42
Moreover, Congress enacted Title IX under its spending power.43 It did so by conditioning federal funding on an educational institution’s promise not to discriminate.44 While the express language of Title IX only forbids “sex discrimination,” “courts have determined that the term ‘discrimination’ also encompasses sexual harassment, hostile educational environment, and sexual assault.”45
2. Title IX Enforcement
Title IX is enforceable by federal administrative agencies and through private causes of action.46 In August 2020, the U.S. Department of Education under the Trump administration released its final regulations governing sexual assault under Title IX.47 Title IX requires that agencies enact regulations “to provide guidance to recipients of federal financial assistance who administer education programs or activities on Title IX enforcement.”48 The U.S. Department of Education, Office for Civil Rights (OCR) enforces and investigates Title IX regulations.49 Specifically, OCR files a complaint against a school and investigates a school’s failure to eliminate discrimination such as sexual harassment.50 If a recipients of federal financial assistance do not abide by the regulations, they risk losing their funding.51
Even so, this does not mean that educational institutions must promise that sexual harassment will never take place on their campuses.52 However, they will be held responsible for responding to sexual harassment in a way that prevents a survivor’s equal access to education.53 While universities cannot guarantee that sexual harassment will never occur on their campuses, they must investigate and adjudicate whenever a complainant files a formal complaint.54
B. The Davis Deliberate Indifference Standard
1. Davis v. Monroe County Board of Education
The leading Supreme Court case interpreting Title IX is Davis v. Monroe County Board of Education.55 In Davis, the plaintiff, a fifth‑grade student, was sexually harassed on several occasions by another fifth-grade student.56 The fifth grader’s parents reported the harassment to several school officials, but the school did not take any action to investigate or discipline the classmate for a period of five months.57 The majority of the conduct took place in the actual classroom, which meant that the school did have control over the harasser and should have known about the harassment.58 According to Davis, schools can only face liability under Title IX if the school “exercises substantial control over both the harasser and the context in which the known harassment occurs.”59 If the educational institution does not directly engage in the harassment, or rather does not have control over the harasser, “it may not be liable for damages unless its deliberate indifference ‘subject[s]’ its students to harassment,” that is to make a plaintiff “liable,” “vulnerable,” or “expose[d]” to sexual harassment.60 In other words, an educational institution’s deliberate indifference must either cause a plaintiff to experience further actionable harassment or make them vulnerable to it.61
Furthermore, Davis describes the amount and type of sexual harassment that constitutes sex discrimination under Title IX.62 The Court held that a private Title IX damages action may lie against a school board in cases of student-on-student harassment; however, this is only the case where an educational institution is deliberately indifferent to sexual harassment of which it has “actual knowledge, [and the harassment] is so severe, pervasive, and objectively offensive that it can be said to deprive the victim[] of access to the educational opportunities or benefits provided by the school.”63 Because the Davis Court defined sexual harassment as having to be severe, pervasive, and objectively offensive, the present circuit split is over whether the Court meant to include vulnerability to harassment as its own separate cause of action.64
2. Sexual Harassment
The Court in Davis established a four-part test to determine whether a plaintiff’s Title IX claim of sexual harassment can survive.65 As mentioned above, in order for a plaintiff to win a Title IX claim, they must prove that the sexual harassment was severe, pervasive, objectively offensive, and that, as a result, they were denied equal access to education.66 The federal regulations further explain that these elements “must be evaluated in light of the known circumstances[,] [] depend on the facts of each situation, [and are] determined from the perspective of a reasonable person standing in the shoes of the complainant.”67 The regulations interpret Davis as subjective with respect to “whether the complainant viewed the conduct as unwelcome,” while the elements of severity, pervasiveness, and objective offensiveness are interpreted under a reasonable person standard to determine whether there has been a denial of equal access to education.68 Though the court in Farmer did not dispute whether the victims suffered sexual harassment, it focused on the severity and pervasiveness of the initial assaults to determine the significance of KSU’s inaction and whether the plaintiffs’ vulnerability to harassment as a result of such inaction was sufficient to deny them equal access to education.69 The Sixth Circuit, on the other hand, only focused on the subsequent reports of harassment without considering the severity or pervasiveness of the initial assaults.70
3. Actual Knowledge
The Trump Administration’s Title IX regulations provided that actual knowledge means either notice or allegations of sexual harassment.71 In postsecondary institutions, “notice to the Title IX Coordinator or any official with authority conveys actual knowledge” to the educational institution.72 Notice exists whenever any official with authority witnesses, hears, or receives a written or verbal complaint about sexual harassment.73 Postsecondary institutions have wide discretion to create their own employee reporting policy to decide which employees are mandatory reporters.74
4. Deliberate Indifference
The Court in Davis held that an educational institution with actual knowledge of sexual harassment commits intentional discrimination if it responds in a deliberately indifferent manner.75 Davis states that an educational institution acts with deliberate indifference when it responds to sexual harassment in a manner that is “clearly unreasonable in light of the known circumstances.”76 The Trump Administration’s regulations adopted Davis’s definition of deliberate indifference but also provided more information about what makes an educational institution’s response reasonable.77 For example, the regulations provide that what amounts to reasonableness includes when an educational institution’s response is prompt, consists of supportive measures to the complainant, and ensures that the Title IX Coordinator contacts each complainant to discuss supportive measures.78 The regulations also mandate the Title IX Coordinator to provide instructions on filing a formal complaint.79
II. Facts & Procedural History of Farmer v. Kansas State University
A. Plaintiff Tessa Farmer
In March 2015, a KSU student named Tessa Farmer went to a fraternity party and became inebriated.80 A designated driver took her back to her dorm room.81 Subsequently, another KSU student named T.R. invited Farmer to the fraternity house where the party was continuing and offered to pick her up and drive her there.82 Farmer agreed, and the two had sex at the fraternity house.83 After T.R. left the room, another KSU student named C.M., who had been hiding in the closet, emerged from the closet and raped Farmer.84 When T.R. returned, he was not surprised when he saw C.M.85
Following this, Farmer gave actual notice of the rapes to several different school officials.86 She reported the rape to the Riley County Police Department and to the director of the KSU Center for Advocacy, Response and Education (CARE).87 The CARE director told Farmer that, “although she could report the rape to the KSU Interfraternity Council (IFC), the IFC would not investigate the rape but only the fraternity more generally.”88 Nevertheless, Farmer filed a complaint with the IFC; three months later, the IFC told Farmer that the fraternity chapter had not violated any IFC policies.89 Then, Farmer “filed a complaint with KSU’s Office of Institutional Equity, alleging that C.M. had violated KSU’s sexual misconduct policy.”90 However, Farmer was told that “that policy did not cover fraternity houses.”91
As a result of KSU’s refusal to investigate the rape, Farmer lived in fear of running into her attacker.92 More specifically, Farmer struggled in school, stopped seeing her friends, removed herself from KSU activities, fell into a depression, and began slitting her wrists.93 Farmer alleges that by refusing to investigate the rape, KSU made students more vulnerable to rape because it sent a message to perpetrators that students can rape other students without fearing disciplinary action.94 Consequently, sending this message adversely impacted the educational environment of the university for survivors.95
B. Plaintiff Sara Weckhorst
In April 2014, another KSU student named Sara Weckhorst attended a fraternity party where she became inebriated and blacked out.96 J.F., another KSU student, raped Weckhorst in a truck in front of fifteen other students.97 J.F. then drove Weckhorst back to the fraternity house and sexually assaulted her on the way there.98 Once at the fraternity house, J.F. raped Weckhorst again and left her naked and passed out.99 Subsequently, another fraternity member named J.G. raped Weckhorst.100
Like Farmer, Weckhorst gave actual notice to several school officials.101 She filed a complaint with the KSU Affirmative Action Office.102 However, the investigator who interviewed Weckhorst told her that KSU could not do anything about the rapes or the two student‑assailants because the rapes did not occur on campus.103 Weckhorst then reported the rapes to the police.104 In the meantime, the KSU Women’s Center called the two assailants and told them that Weckhorst had filed charges against them, giving them the opportunity to coordinate their stories.105 Weckhorst later met with two associate deans for student life at KSU who told her they could not do anything because the rapes occurred off campus.106 Without Weckhorst’s permission, one of the associate deans took language from one of Weckhorst’s emails and used it to file a complaint, which released Weckhorst’s private information to student peers on the IFC board.107
As a result of KSU’s refusal to investigate the rape and the unauthorized release of information, Weckhorst was effectively denied access to her education.108 Her grades decreased, and she lost her academic scholarship.109 Weckhorst not only suffered academically, but she also experienced a myriad of emotional harms such as posttraumatic stress disorder and dissociation from her friends and family.110 Like Farmer, Weckhorst alleged that KSU made students more vulnerable to rape because it encouraged perpetrators to continue raping students without the fear of disciplinary action.111
C. Procedural History
1. The District Court’s Holding
The plaintiffs sued KSU separately, both asserting claims under Title IX.112 The “[p]laintiffs base[d] their Title IX claims on “KSU’s deliberate indifference after [they] reported to KSU that other students had raped them.”113 They relied on the Davis vulnerability standard, which states that a university’s deliberate indifference must, at a minimum, cause students to undergo further actionable harassment or make them vulnerable to it.114 The plaintiffs asserted that KSU’s deliberate indifference to their reports of rape made them vulnerable to further harassment because the perpetrators were left unchecked, which led them “to be deprived of educational benefits that were available to other students.”115 In other words, it was the risk of actual further harassment, rather than actual further harassment itself, that formed the basis of the plaintiffs’ complaint.116
In each case, while KSU did not deny that its actions were deliberately indifferent, it filed a Rule 12(b)(6) motion to dismiss all claims, as the plaintiffs “had failed to allege that any deliberate indifference by KSU had caused harm . . . that is actionable under Title IX.”117 KSU argued that in order to state a Title IX claim, the plaintiffs must allege that the university’s deliberate indifference actually caused “each of them to undergo further incidents of actual harassment by other students.”118 Citing Davis, the district court disagreed, holding that each plaintiff had sufficiently alleged an actionable Title IX violation because, under Title IX, a plaintiff must only allege (1) that the sex discrimination “occurred within a KSU educational program or activity;” (2) that “KSU had actual knowledge of, but was deliberately indifferent to, sexual harassment that was so severe, pervasive and objectively offensive” that it denied them equal access to education; and (3) that KSU’s deliberate indifference caused each plaintiff “to undergo harassment or made her liable or vulnerable to it.”119
2. KSU’s Appeal
Because the denial of a motion to dismiss is not ordinarily immediately appealable, KSU requested that the district court allow an interlocutory appeal to determine the following: (1) whether the plaintiff was required to allege that KSU’s deliberate indifference caused her to suffer actual further harassment, rather than only alleging that it made her liable or vulnerable to harassment; and (2) if the plaintiff was “required to plead actual further harassment, whether her allegations of deprivation of access to [equal] educational opportunities satisf[ied] this pleading requirement.”120 The district court permitted KSU to pursue these interlocutory appeals.121
III. Tenth Circuit Court of Appeals Holding
In the Tenth Circuit Court of Appeals, the issue the court faced was not whether KSU was deliberately indifferent, since the court accepted as true the plaintiffs’ factual allegations indicating that it was.122 Rather, what makes Farmer different from other Tenth Circuit cases is that the court discussed what happens after a plaintiff reports a rape and the university is deliberately indifferent post‑harassment.123
Consequently, the Tenth Circuit affirmed the district court’s decision to deny KSU’s 12(b)(6) motions to dismiss.124 The court held that it must consider each part of the Davis vulnerability standard, meaning “that [p]laintiffs can state a viable Title IX claim by alleging alternatively either that KSU’s deliberate indifference to their reports of rape caused [p]laintiffs ‘“to undergo” harassment or “made them liable or vulnerable” to it.’”125
To begin, in order to conclude that the vulnerability standard provides a private cause of action when an educational institution is deliberately indifferent, the court drew attention to Davis’s definition of the word “subject,” as in when a university’s “deliberate indifference ‘subject[s]’ its students to harassment;” in this sense, “subjects” includes “to make liable or vulnerable; [to] lay open; [to] expose.”126 Through this definition of “subject,” the court in Farmer reasoned that Davis’s inclusion of vulnerability to harassment was meant to broaden the causation element.127 Thus, under this definition, a plaintiff is not required to prove that they suffered further actionable harassment.128
Then, the court concluded that it must give effect to each part of the Davis deliberate indifference standard, as doing so was consonant with Title IX’s objectives, “which include protecting individual students against discriminatory practices” that could ultimately deny them equal access to education.129 Because KSU had “actual knowledge of sexual harassment that [was] severe, pervasive, and objectively offensive enough to deprive a student of access to the educational benefits and resources [that KSU] offers,” and because it “turn[ed] a blind eye to that harassment,” KSU’s deliberate indifference made the plaintiffs vulnerable to further harassment even though they did not experience actual sexual harassment again.130 The court did not require the plaintiffs to have experienced a second instance of actionable harassment as a result of KSU’s indifference.131 Rather, because KSU’s conduct and lack of investigation made the plaintiffs vulnerable to being raped again and ultimately excluded them from the educational opportunities KSU provided, the plaintiffs stated a viable Title IX claim.132
Finally, the court held that the plaintiffs sufficiently pled that KSU made them vulnerable to harassment.133 The plaintiffs alleged that the fear of running into their student-rapists caused them to struggle in school, lose their scholarships, withdraw from KSU activities, and feel unsafe on campus to the point where they needed someone to accompany them wherever they went.134 The court further noted that the plaintiffs alleged more than just a fear of encountering their assailants.135 Rather, they alleged that their fears forced them to act in a way that denied them access to activities made available to other students.136 Though the court conceded that a plaintiff’s fear of seeing their alleged harasser must be objectively reasonable, the court determined that the facts of this case were so “horrific” that the plaintiffs sufficiently pled that KSU’s deliberate indifference to their reports of rape “reasonably deprived them of educational opportunities available to other students at KSU.”137
IV. Analysis
A. The Farmer Court Correctly Held That Vulnerability to Sexual Harassment Is Sufficient Harm to State a Claim Under Title IX
Farmer was correctly decided because it better effectuates the two goals of Title IX: to ensure that educational institutions do not use federal funding to promote discrimination and to protect individuals from discrimination.138 As supported by studies on the psychological effects of sexual harassment, vulnerability to further harassment can have devastating emotional and physical consequences that could exclude a student from educational programs and activities.139 Further, Farmer is consistent with Tenth Circuit precedent.140 While there are other cases that held differently, they are distinguishable from Farmer or otherwise fail to properly interpret Title IX.141
1. The Tenth Circuit’s Holding in Farmer Is Consistent with the Dual Goals of Title IX
By interpreting the Davis causation element as allowing a plaintiff to state a viable Title IX claim by either alleging actual post-notice harassment or mere liability or vulnerability to it, the court in Farmer reached the correct decision because this interpretation is consistent with the text and the dual goals of Title IX: first, to avoid the use of federal resources to support discrimination and second, to provide individual citizens effective protection against such discrimination.142
First, Title IX does not require plaintiffs to suffer actual discrimination nor does it state how many times a plaintiff must experience discrimination to make a valid claim.143 If Title IX required the Farmer plaintiffs to experience actual harassment a second time to state a viable claim, then the court would essentially be encouraging the kind of discrimination Title IX is trying to avoid, which would go against the first objective of Cannon.144 Furthermore, whether the plaintiffs suffered actual post-notice harassment or mere vulnerability to it, the court would still meet Cannon’s second objective of providing students with effective protection against discrimination.145 If KSU was not held liable for letting its female students live in fear of running into their assailants every day, then it would lead to the discrimination of such students by treating them differently from other students and not protecting them from either actual post-notice harassment or a risk of it.146
Second, the language of Title IX demonstrates how discrimination is one of three elements a plaintiff can use to state an operable Title IX claim.147 Title IX contains an inclusive “or” that takes into account three different scenarios: exclusion from, denial of, or being subjected to discrimination in an education program or activity that receives federal funding.148 Notwithstanding the Davis Court’s analysis of the word “subjects,” the plaintiffs in Farmer were in fact excluded from and denied access to KSU’s educational activities because of discrimination; so, based on the exact language of Title IX, they did have a viable claim.149 Thus, though the plaintiffs did not experience actual post-notice harassment, KSU’s deliberate indifference to their initial assaults subjected them to further harassment by making them vulnerable to it, to the point where KSU’s conduct excluded them from and denied them access to KSU’s educational programs.150
In sum, Title IX does not require a plaintiff to suffer further actionable harassment in order to seek relief as long as some form of discrimination has denied them access to educational programs.151 Rather, it tries to avoid discrimination altogether so that there is no exclusion or denial of access to a student’s education in the first place.152 A separate vulnerability standard would not only discourage educational institutions from supporting discrimination by making them more accountable in the investigative process, but it would also add another layer of protection from the discrimination that Title IX is trying to prevent from happening.153
2. The Tenth Circuit’s Holding in Farmer Is Sensible in Light of the Psychological Effects of Sexual Harassment
Though the Farmer court did not go into the psychological effects of sexual harassment, research shows that living in fear post-harassment can deny a plaintiff equal access to education just as much as actual harassment can.154 Survivors of sexual assault “may experience the impact of a sexual assault physically and psychologically over both the short and long term.”155 These impacts can include “shock and anger,” “fear and anxiety,” “disrupted sleep,” “nightmares,” “tendency to isolate oneself,” “feelings of detachment,” and “a sense of shame.”156 In a Harvard T.H. Chan School of Public Health study on the health consequences of sexual assault, women in the study who reported prior sexual assault were two times as likely “to have elevated anxiety than women without a history of sexual trauma.”157
According to cross-cultural psychologist Colleen Ward, survivors of sexual abuse undergo a two-stage Rape Trauma Syndrome.158 The acute or crisis stage occurs right after the sexual assault and can sometimes continue for a few days or weeks after the event.159 This phase can lead a victim to exhibit emotional reactions such as shock, shame, fear, and anxiety.160 Not only could a survivor experience psychological trauma, but they may also have to deal with the physical trauma of rape, including pregnancy and venereal disease.161 “The second stage of the Rape Trauma Syndrome is one of ‘reintegration and reorganisation.’”162 While most survivors are able to overcome the psychological effects of sexual harassment by returning to school, some become overwhelmed and try to escape a hostile environment by dropping out of school, abusing drugs, or in extreme cases, attempting suicide.163
Importantly, it is almost impossible to predict how each individual will react to a crisis.164 It depends on the severity of the assault as well as the survivor’s characteristics, such as the availability of social support, lack of self-confidence, or chronic anxiety.165 Overall, how much stress an individual experiences is subjective and varies from person to person.166 This further emphasizes the difficulty in determining whether or not an incident of unwanted sex-based conduct meets the Davis elements of “severe and pervasive,” as what may seem severe and pervasive to one person may not to another.167 It also makes the “objectively offensive” element of the Davis test problematic, as it is difficult to be objective and put oneself in the shoes of someone who experienced trauma, since everyone experiences trauma in their own unique way.168 In light of these potential shortcomings in the Davis test, the separate vulnerability standard embraced by the Farmer court accurately recognized the scope of the Davis deliberate indifference standard to plaintiffs who may not experience further actionable harassment but are still deprived of an education.169
By creating an unsafe and intimidating environment, sexual harassment can impact a survivor’s academic performance, which can ultimately affect their career trajectory.170 According to Catherine Lhamon, then Assistant Secretary for Civil Rights in the Department of Education, the damage to a survivor’s physical and emotional health leads to the deprivation of an education altogether.171 As Senator Bayh articulated back in 1972, this relates to the reason why Title IX came to fruition in the first place: discrimination in the field of education is especially harmful because education provides access to a career and financial security.172
Based on these findings, if a plaintiff was only allowed to prove actual harassment to sustain a Title IX claim, it would thwart Title IX’s goal of protecting individuals from discriminatory practices.173 In light of this concern, the Farmer court correctly recognized that a court should be able to consider whether the mere vulnerability of being attacked again is enough to deny a survivor’s equal access to education where the initial incident and funding recipient’s lack of investigation leads a survivor to experience any of the psychological consequences described above.174
3. The Tenth Circuit’s Holding in Farmer Is Consistent with Tenth Circuit Precedent and Other Circuits
There is another Tenth Circuit case that supports the holding in Farmer.175 In Rost v. Steamboat Springs RE-2 School District, a special education student alleged that several of her male high school classmates coerced her into performing sexual acts with them.176 Unlike Farmer, this case dealt with the question of whether the school’s response to the initial report of assault was deliberately indifferent, rather than whether a deliberately indifferent response leaving a survivor vulnerable to future harassment could be the basis for a Title IX claim.177 The court in Rost held that the school was not deliberately indifferent because there was no evidence that the school district’s response of contacting law enforcement officials and cooperating in the investigation was so unreasonable as to amount to deliberate indifference.178 Additionally, there was no opportunity for further harassment because the victim’s mother withdrew the victim from the school.179 However, the court noted that the complainant would have successfully made a Title IX claim if she had returned to the school and school officials had not provided a “safe educational environment” for her upon her return.180 This is exactly the issue faced by the Farmer court, as the plaintiffs wanted to remain on campus, but, by leaving their assailants unchecked, KSU did not provide them with a safe educational environment.181
Moreover, the Farmer decision is also consistent with other circuits’ interpretations of Title IX. In fact, very similar to Farmer, the First Circuit held that a plaintiff does not need to suffer further actionable harassment if they can prove that they were merely vulnerable to further harassment.182 In Fitzgerald v. Barnstable School Committee, the First Circuit applied the most guiding reasoning to conclude that Title IX liability only involves the likelihood of post-notice harassment.183 In Fitzgerald, a kindergarten student claimed that a third-grade student made her lift her dress up on the bus.184 The parents of the kindergarten student reported the allegation to the school’s principal, who immediately opened an investigation into the matter.185 Following this incident, the parents of the kindergarten student informed the principal that their daughter had now reported that the alleged perpetrator had also asked her to pull down her underwear and spread her legs.186 After investigating and calling the police, the principal decided not to proceed with disciplinary measures.187 Since there was no disciplining or removal of the alleged perpetrator, the two students still encountered each other.188 The parents of the kindergarten student brought suit against the school system and superintendent for violating Title IX.189 The district court sided with the defendants because the plaintiff did not experience sexual harassment that was so severe, pervasive, and objectively offensive after the defendant first acquired actual knowledge of the offending conduct; the First Circuit affirmed the district court’s holding.190
The First Circuit analyzed Davis’s definition of “subjected” the same way the Tenth Circuit did in Farmer.191 The court in Fitzgerald interpreted the Davis Court’s vulnerability language as establishing a cause of action not only where the school’s deliberate indifference caused the student to undergo post-notice actual harassment, but also where the deliberate indifference made the student more vulnerable to it or more likely to experience it, even if further actionable harassment did not occur.192 Thus, even though the kindergarten student in Fitzgerald did not experience further actual harassment after the school was first notified of the alleged harassment, the school system could be liable for damages simply because the student was vulnerable to the possibility of the perpetrator sexually harassing her again.193
Just like in Farmer, the Eleventh Circuit opined that if a university does not investigate a report of sexual harassment and that leaves a plaintiff vulnerable to further harassment, then a plaintiff has a viable Title IX claim.194 In Williams v. Board of Regents of University System of Georgia, a case from the Eleventh Circuit, a female student was allegedly sexually assaulted by three student-athletes in one of the aggressors’ apartments.195 The next day, the female student reported the incident to the police, who, in turn, reported the incident to the university.196 The female student withdrew from the university and never returned.197 The university charged the three student-athletes with disorderly conduct under the university’s code of conduct.198 A university judiciary panel held a hearing on the disciplinary matter almost one year after the incident took place, at which it decided not to sanction the student‑athletes.199
The Williams court interpreted the Davis vulnerability language the same way as did the court in Farmer.200 The court held that the university was deliberately indifferent after the student’s alleged assault because the university had waited eight months to hold a disciplinary hearing regarding the incident, which was a long time after it received police reports that could have corroborated the student’s allegations.201 The university was deliberately indifferent because its failure to take action against the perpetrators was itself discrimination against the female student since it denied her an opportunity to continue to attend the university.202 The Williams court defined “further discrimination” as not requiring further actual harassment.203 Rather, the Eleventh Circuit recognized that the injuries the plaintiff suffered, which were similar to those that the plaintiffs in Farmer suffered, would satisfy the “further harassment” requirement.204 The injuries included the university’s failure to take any safeguards that would prevent future attacks by the student‑rapists themselves, even though the student had withdrawn from the university and had not alleged any further harassment.205
B. Cases Holding Differently than Farmer Are Distinguishable or Inconsistent with Title IX
There are cases that reject Title IX liability where further harassment does not occur after notice.206 The court in Farmer addressed one easily overcome counterargument, and that is the Tenth Circuit’s prior decision in Escue v. Northern Oklahoma College.207 In Escue, the Tenth Circuit provides a reasoning behind the importance of demanding the need for actual, post-notice harassment in order to support a Title IX claim.208 In Escue, a female student alleged that a professor had sexually harassed her.209 After a number of alleged incidents, the student and her father met with the university president to report the student’s complaint.210 The student had no further contact with the professor, and, after the meeting, there were no more allegations of further sexual harassment or discrimination.211 In response to the student’s allegations, the university allowed the student to transfer out of one course, and for another course, the university allowed the student to take the grade that she had on the date when she reported the sexual harassment.212 The university decided to dismiss the professor at the end of the semester.213
Based on the facts above, the Tenth Circuit’s decision in Escue rested on the school’s actions after the initial report of sexual harassment.214 The student brought a Title IX claim against the university, and the Tenth Circuit determined that the school’s actions were sufficient to rebut the student’s allegation that the university had been deliberately indifferent.215 The court in Farmer argued that this determination was made to highlight the adequacy of the university’s actions.216 It further went on to note that the Escue case did not hold or even suggest that a plaintiff would have to show further sexual harassment as a causation element in order to prevail even after a university is found to have been deliberately indifferent.217 In Farmer, the court did not evaluate the acceptableness of KSU’s actions since the parties did not dispute that KSU was deliberately indifferent in its investigation of the rapes.218 Rather, Farmer analyzed what type of harm a plaintiff must allege to show further sexual harassment, making it a noteworthy case in the Tenth Circuit.219
The deeper problem is the one at the core of the circuit split noted in the Introduction, and that is the Sixth Circuit’s contrary decision in Kollaritsch v. Michigan State University Board of Trustees.220 In Kollaritsch, the plaintiffs were sexually assaulted by other students and claimed that the school’s response to their initial reports was insufficient and therefore deliberately indifferent.221 One of the plaintiffs saw her assailant at least nine times after her initial report, which led her to have panic attacks and a fear of being attacked again.222 The Sixth Circuit held that the school’s conduct must either directly lead to more harassment or, in the alternative, be so deficient that no safeguards whatsoever are put in place to protect the victim from harassment that actually occurs.223 The court understood the Davis standard as providing two unreasonable responses that could lead to further harassment: either “directly causing further harassment” or “creating vulnerability that leads to further harassment.”224 The court did not think that the subsequent encounters were sexual in nature or severe, pervasive, and objectively unreasonable since none of the plaintiffs “suffered any actionable sexual harassment after the school’s response.”225 Unlike in Farmer, where the court based its reasoning on the initial incident of harassment and KSU’s lack of reaction to it,226 the court in Kollaritsch based its reasoning on the allegations of subsequent harassment and whether or not they constituted further actionable harassment.227
The court came to this conclusion by incorrectly applying tort law to Title IX by combining “the two analytically separate elements of causation and injury.”228 In tort law, the causation element requires that the defendant’s wrongful act be the cause-in-fact and proximate cause of the plaintiff’s injury.229 As recognized in both Davis and Kollaritsch, an “injury” within the meaning of Title IX denotes a denial of “access to the educational opportunities or benefits provided by the school” that are available to all students.230 “The proper causation analysis, then, [as used by the court in Farmer,] would require the court to examine whether [an educational institution’s] actions caused the plaintiffs’ alleged Title IX injuries, such as their leaves of absence or withdrawal from school activities.”231 Rather, the court in Kollaritsch asked whether the plaintiffs suffered further actionable harassment, which opposes Title IX’s goal of preventing a plaintiff from being denied equal access to education. 232
Consequently, unlike in Farmer, the Sixth Circuit’s test under Kollaritsch opposes the goals of Title IX.233 Under the Sixth Circuit’s interpretation, a plaintiff’s claim against a university for its deliberately indifferent response depends entirely on whether a third-party student commits another actionable incident of sexual harassment that is severe, pervasive, and objectively offensive.234 This would mean that a plaintiff must wait to be sexually harassed again before they are able to bring a viable Title IX claim, which one, encourages educational institutions to ignore discrimination since they do not have to implement preventative measures, and two, does nothing to protect students from being discriminated against.235
Of great consequence, “the Sixth Circuit further defined ‘pervasive’ to require ‘multiple incidents,’” which suggests that a plaintiff must prove that post-notice harassment itself constitutes multiple acts.236 Thus, in order to determine whether a plaintiff has been left vulnerable to harassment, “courts are left to decide exactly how many acts of sexual harassment” a plaintiff must go through before a university can be held liable.237 Ultimately, this means that one act of sexual assault will not be enough to sustain a cause of action under Title IX, which goes against Title IX’s goals of preventing discrimination altogether and protecting victims from discrimination that denies them access to education.238
In light of the split in circuit authority, the plaintiffs in Kollaritsch petitioned for the United States Supreme Court to issue a writ of certiorari.239 They made similar arguments as the court in Farmer.240 In their petition, despite the university’s argument that vulnerability must be more than a perpetrator’s mere presence on campus after an allegation, the plaintiffs argued that the case concerned fears of further assault as a result of the university’s failure to respond.241 The plaintiffs went on to note that fear by itself can deny a survivor equal access to educational opportunities, which is exactly what Title IX admonishes.242 Most interestingly, the plaintiffs asserted that the university required the Court to make a factual decision, rather than one of pure law, in deciding whether and how much more harassment is required when fear itself should be enough.243 Ultimately, the Court denied the plaintiffs writ of certiorari, which means the split between the circuits and the jurisdictional divide over the Davis Court’s definition of “subjected” is still out there.244
Conclusion
In Farmer, the court answered the question of when a survivor’s fear of further sexual harassment is sufficient to deprive that student of available educational opportunities.245 The court reasoned that because the initial rapes were so harrowing, it was reasonable for the plaintiffs to have the kind of fear that would deprive them of educational opportunities available to other students.246 The court in Kollaritsch reached a different conclusion.247 It focused on post-notice harassment and found that even though the plaintiffs’ fear of seeing their assailants deprived them of educational opportunities like the plaintiffs in Farmer, because the plaintiffs did not suffer any further actionable harassment, they could not state a viable Title IX claim.248 The opposite holdings in these two cases raise a question that future courts will need to resolve: Does the initial act of harassment and a university’s indifference to that harassment need to meet the Davis elements, or does only the subsequent harassment need to meet the elements to win a Title IX claim?249 When other courts encounter this issue or the Supreme Court resolves the split, those courts should not just follow the reasoning in Farmer but should also follow the legislative history and text of Title IX, as well as what research can tell us about the psychological effects of sexual harassment.250
Notwithstanding the Sixth Circuit’s contrary view, Farmer is the correct approach.251 Once a plaintiff proves that a university receiving federal funding has been deliberately indifferent, a plaintiff should not have to suffer further actionable harassment.252 If it was a requirement that plaintiffs suffer sexual harassment several times before a university is held liable for violating Title IX, the consequences of such a requirement would leave a significant impact on future survivors of campus sexual assault and would violate the text and dual purposes of Title IX.253 As a result, there would be no effective protection from sexual harassment for students on college campuses.254 A separate vulnerability standard would also make sure that educational institutions are doing their due diligence the very first time a report of sexual harassment is made by conducting an effective investigation and implementing supportive measures.255 Otherwise, survivors of sexual harassment would be left to wonder how much harassment is enough, when Title IX should provide them with the certainty that no harassment should occur at all.256