518 F.Supp.3d 688
W.D.N.Y.2021Background
- Plaintiffs are female students (Posso, Rolf, Doe‑1, Doe‑2) at Niagara University; several were on the swim/diving program and experienced persistent gender‑based sexual harassment and some physical assaults by male swimmers.
- Team culture: repeated sexualized name‑calling, body‑shaming, sexual innuendo, and incidents of physical violence; diving team lacked a coach for a period; male swimmers sometimes retained or were promoted despite complaints.
- Multiple reports (by swimmers to coaches, the diving coach Brooke Nigro, associate AD Susan Roarke, athletic director Simon Gray, Dean Jakubowski, and Title IX coordinator Ryan Thompson) beginning by 2016 allegedly went unremedied.
- Doe‑2 (a non‑swimmer) was raped by a male student in fall 2018, received a threatening voicemail afterward, and alleges the Title IX coordinator discouraged a formal complaint and steered her to a mutual no‑contact order while the assailant remained on the team.
- OCR had previously secured a Voluntary Resolution Agreement requiring Niagara to improve training and review prior complaints, but plaintiffs allege Niagara failed to implement required remedial changes for the swim program.
- Procedural posture: Niagara moved to dismiss; the magistrate judge’s R&R recommended granting dismissal of some claims but allowing Doe‑2’s pre‑assault Title IX claim to proceed and permitting amendment of her post‑assault claim; the district court adopted the R&R: dismissed negligent administration, common‑law negligence and Rolf’s breach of contract; allowed Doe‑2’s pre‑assault Title IX claim to proceed and gave leave to amend the post‑assault claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether Doe‑2 pleaded a viable Title IX pre‑assault claim (actual knowledge + deliberate indifference to risk of sexual assault). | Niagara knew of a heightened risk tied to the swim program’s endemic sexual harassment and failed to remedy it, causing Doe‑2’s assault. | Niagara lacked actual notice of a risk to Doe‑2 (a non‑swimmer); prior misconduct was "lesser" harassment and did not put university on notice of sexual assault risk. | Court allowed the pre‑assault Title IX claim to proceed: alleged systemic, sexualized conduct and reports to multiple officials provided actual notice of a heightened, specific risk tied to the swim program. |
| 2. Whether Doe‑2 pleaded a viable Title IX post‑assault claim (deliberate indifference in the university’s response after the assault). | Post‑assault handling (discouraging formal complaint, steering to mutual no‑contact, failing to inform of services) constituted deliberate indifference. | (Argued in motion) The post‑assault allegations were insufficiently pleaded. | Magistrate recommended dismissal of the post‑assault claim but granted leave to amend; district court adopted that approach and deferred ruling on any renewed motion to dismiss. |
| 3. Whether Niagara’s reliance on Karasek (and similar cases) was misapplied to relax the "actual knowledge" requirement. | Plaintiffs (and magistrate) argued official‑policy liability and program‑specific notice (Simpson/Karasek) are consistent with Gebser; actual knowledge here is satisfied by reports to officials about swim program culture. | Niagara contended R&R improperly diluted Gebser’s actual‑knowledge requirement and relied on Karasek to permit liability without proper notice. | Court rejected Niagara’s objection: R&R did not eviscerate actual notice—facts alleged show actual knowledge by officials and permit an official‑policy / program‑specific theory of liability. |
| 4. Whether Rolf’s breach of contract claim (scholarship/athletic contract) survives. | Rolf asserted breach based on university’s failure to enforce codes of conduct and protect athletes. | Niagara argued no specific, enforceable contractual promise was alleged; policy statements are insufficient to state a contract claim. | Court dismissed Rolf’s breach of contract claim for failing to allege a specific contractual obligation by Niagara and for relying on general policy statements. |
Key Cases Cited
- Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (damages under Title IX require actual notice and deliberate indifference by an official with authority)
- Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (student‑on‑student sexual harassment actionable under Title IX where deliberate indifference deprives access to educational benefits)
- Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir.) (official‑policy theory: liability where institutional program creates an obvious risk and the school is deliberately indifferent)
- Karasek v. Regents of Univ. of Cal., 956 F.3d 1093 (9th Cir.) (school policy of deliberate indifference can ground Title IX liability; program‑specific notice may suffice)
- Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282 (11th Cir.) (prior "lesser" harassment by athlete can provide sufficient notice that risk of more serious sexual misconduct exists)
- Kollaritsch v. Michigan State Univ. Bd. of Trs., 944 F.3d 613 (6th Cir.) (post‑assault deliberate‑indifference standard requires an additional incident of actionable harassment)
- Farmer v. Kansas State Univ., 918 F.3d 1094 (10th Cir.) (post‑assault Title IX claim can proceed where plaintiff alleges the university’s response left her vulnerable to further harassment)