Tiffany Williams v. Board of Regents

agent gone enough, undercover had far No. 04-13800. “crucial steps,” had taken all the to dem- Appeals, United States Court of agent onstrate to the solicitor that the was Eleventh Circuit. the act. complete about to direct what Nor does our decision sen- Feb. impose court should

tence the district Booker, the court

remand. After district correctly guidelines

must calculate the

range sentencing and then consider the 3553(a) §

factors set forth in 18 U.S.C.

fashioning Among a reasonable sentence. consider,

those factors the court should

addition guidelines range, to the are the offense,

nature and circumstances of the need reflect the seriousness of the

offense, provide just and the need to pun- adequate

ishment and afford deterrence. 3553(a).

18 U.S.C.

III. reasons, foregoing

For the we VACATE resentencing. REMAND for

Tiffany WILLIAMS, Plaintiff-

Appellant,

BOARD OF REGENTS OF THE UNI- GEORGIA,

VERSITY SYSTEM OF University Georgia,

The of Michael F.

Adams, capacities and in his official University

as President of the of Geor-

gia University and President of the

Georgia Association, Inc., Athletic Dooley, Individually,

Vincent J. and in capacity

his official as Athletic Di- University Georgia

rector of the Association, Inc., University

Athletic Georgia Inc., Athletic Association al., Defendants-Appellees.

et Williams, & Gary, Williams

Lorenzo Pierce, FL, Wyatt, E. Parenti, Eric Fort Associates, Atlanta, George McGriff & Background W. GA, Dumich, George Nicholas G. W. Here, as complaint,2 at Associates, Roswell, GA, McGriff & for approximately p.m. 9:00 on January

Williams. 2002, Tiffany (“Williams”), then a student at the University Georgia Jr., Snelling, Eddie David E. Langford, (“UGA”), telephone received a call from Law, GA, Dept, Atlanta, D. Edward player Tony basketball Cole. Cole Cook, Noell, Tolley, Tolley, Bates Mi-& invited Williams to his room in McWhorter chael, LLP, Athens, GA, Ap- Adam Lowell Hall, the main dormitory for student-ath- Oarlock, pel, Copeland, Stair, Semler & university letes on the campus. Shortly LLP, Kitchens, Joyce E. Kitchens/New room, after Williams at arrived Cole’s LLC, Atlanta, GA, Defendants-Appel- engaged two in consensual sex. Unbe- lees. Williams, Williams, knownst to Brandon player,

UGA football whom Williams did know, not was hiding in Cole’s closet. Cole and Brandon had previously agreed that Brandon would hide the closet while Cole had sex with Williams. When Cole went to the bathroom and slammed him, the door behind emerged Brandon KRAVITCH, Before TJOFLAT and naked, from the closet sexually assaulted JORDAN,* Judges, Circuit District Williams, and attempted rape her. Judge. As Brandon sexually was assaulting Williams, KRAVITCH, Cole was on the Judge: telephone Circuit with Thomas, Steven teammate, Cole’s sponte We sua grant rehearing in this Grant, Charles Brandon Williams’s team- case, vacating prior our opinion filed on mate. Cole told Thomas and Grant that 9, 2006, March published at 441 F.3d 1287 they were “running a train” on Williams.3 (11th Cir.2006), in entirety its and substi- room, Thomas came to Cole’s and Cole tute the following opinion place.1 its allowed Thomas to enter the room. With While the result, Court reaches the same Cole’s encouragement, Thomas sexually we address certain fully. claims more raped assaulted and Williams.

The primary question in this appeal is Williams to her dormitory returned at petitioner, whether a student at the Uni- approximately p.m., 11:00 called Jennifer versity of Georgia, alleged facts sufficient Shaughnessy, and Shaughnessy asked to withstand defendants’ motion to dismiss come to her room. When Shaughnessy her Title IX claim on arrived, based student-on- Williams visibly upset was student sexual harassment. crying. explained Williams hap- what had * Jordan, Honorable Adalberto J. United States facts we state allegations, are Williams's Judge District for the Southern District of accept which we must as true. Covad Florida, sitting by designation. Commc'n Corp., Co. v. BellSouth 299 F.3d (11th Cir.2002). The Court prior also vacates its 1276 n. 2 order of April denying petition the for rehear- ing en banc. 3.“Running slang expression a train'' is a for gang rape. 2. Because the disposed district court dismiss, Williams's claims on a motion to the with additional information room, Shaughnessy Programs cial in Cole’s pened investigation. the Several of the raped and about that she had been told Williams with Police spoke individuals who told police. the Williams call should allegations. supported to call not want Williams’s that she did Shaughnessy was afraid. While she police the because Williams, Cole, actions of Brandon The Williams, tele- was with Shaughnessy and Thomas constitute sexual harassment himself The caller identified rang. phone Policy of the under the Harassment Sexual Thomas, immedi- and Williams as Steven policy applica- University Georgia. The had never called up. Thomas ately hung however, January provided ble later, Minutes night. that Williams before “[sjexual harassment between stu- that that said again. called Williams Thomas dents, by employed of whom is neither telephone, afraid to answer she was University disciplin- treated as a should be therefore, Thom- Shaughnessy answered. reported to the ary matter and should be asked, “Why you hang immediately did as Affairs” and not dealt of Student Office said Shaughnessy up on me?” When Policy. Harassment with under the Sexual asked, Tiffany there?” “Hello,” “Is Thomas Williams, Cole, and Thomas Brandon were Thomas that he had Shaughnessy told disorderly with conduct under charged number, hung up. wrong and she Additionally, of Conduct. UGA’s Code from their mother, suspended them who their coaches then called her Williams after an Athens-Clarke sports that teams Police of the incident notified UGA early them in County grand jury indicted Police ar- room. UGA occurred Cole’s judiciary con- panel, A shortly April after 1:00 2002.4 UGA room rived at Williams’s uni- member and two sisting of one staff arranged 15 and January a.m. students, hearings almost a versity held exam a sexual assault to have Williams January 2002 incident year after the day, Later same performed. Cole, to sanction Brandon decided not process Police that UGA requested Williams, Williams, By the time of the Cole, or Thomas. Brandon charges against no and Brandon Williams hearing, Cole filing complaint Thomas. After left UGA Thomas Police, longer attended UGA. permanently with UGA three also faced 2003. The September withdrew from UGA. jury acquitted charges, but a criminal investigation, an conducted UGA Police Williams, dis- prosecutor and the Brandon which, police obtained Cole’s part as charges against Cole missed the show that records. The records telephone Thomas. dorm room several called Williams’s Cole alleges also following Williams’s days immediately in the times Harrick, head former defendants James withdrawal. incident and Williams’s team, incident, men’s basketball coach of UGA’s of the forty-eight hours Within Athletic Director of Dooley, Di- Vincent of Police notified UGA’s Chief UGA’s Athletic Association University Georgia of incident Programs of the rector of Judicial Adams, (“UGAA”), President and Michael explana- her with a written provided and in- UGAA, personally were 17, 2002, and from UGA April lieutenant tion. On admitting Cole recruiting and volved the Director of Judi- provided Police UGA Williams suf- and that Brandon did were indicted alleges that Cole and Thomas 4. Williams adversity spring foot- as the or no negative consequences as a fered little not suffer days the indict- a few after season ended suspension the basket- ball because result of they already ment. ended when had ball season though they previously even knew he had athletes that coaches needed to inform the disciplinary problems, partic- and criminal student-athletes about UGA’s sexual ularly involving of wom- policy. Despite those harassment harassment and Adams’s en, colleges. Dooley’s at other to duties ensure student-athletes’ compliance policy, with UGA’s and coaching While the men’s basketball UGAA failed to ensure that the student- University team at the of Rhode Island adequate athletes received information (“URI”), Harrick recruited Cole attend concerning sexual poli- UGA’s harassment gain When Cole could not admission URL cy applicable to student-athletes and failed URI, helped gain Harrick Cole admis- policy against enforce the football and Community College sion to the of Rhode players. basketball (“CCRI”). eventually Island Cole was dis- (1) from after allegations UGA, missed CCRI brought against: suit February December 1999 and 2000 he sex- Regents the Board of University of the ually part-time employees (“Board assaulted two of System Georgia Regents”), college’s department by grop- athletic (2) IX; and UGAA for violation of Title women, ing putting his hands down Adams, Harrick, Dooley and as individuals pants, their and threatening them when capacities and their official as UGA and they rejected pleaded his advances. Cole President, UGAA former head basketball charges no contest to criminal of misde- coach, and Athletic Director of UGAA for trespass meanor in connection with the (3) 1983; § violation of U.S.C. UGA and two sexual assaults.5 Regents Board of for violation of 1983; Cole, § U.S.C. and Brandon Furthermore, attending while Wabash Williams, and Thomas for state law torts. (“WVC”) Valley Carmel, College in Mount sought “injunctive She also ordering relief Illinois, Cole was dismissed from the bas- the defendants to implement policies, and ketball team because of disciplinary prob- procedures protect students like Plain- lems, including an incident in which he tiff from student-on-student sexual harass- whistled at and made lewd suggestions to ment prohibited by Title IX.” Adams, Harrick, female store clerk. and Dooley knew of the they incident when UGA, UGAA, Regents, the Board of recruited and admitted By Cole. the time Adams, Harrick, Dooley and all filed mo- WVC, Cole was dismissed from Harrick tions dismiss Williams’s claims. was at UGA again recruited Cole. Williams then moved to amend her com- Because Cole did not meet UGA’s stan- plaint, adding additional factual admission, dards for Harrick requested claims, support providing a more that Adams admit through Cole UGA’s specific request injunctive relief, for special policy. admissions Adams is the requesting declaratory against UGA, relief sole decision admitting maker when an UGAA, and the Regents. Board of For applicant special under the pol- admissions later, various reasons we discuss the dis- icy. Cole was admitted to attend UGA on trict court dismissed Williams’s Title a full scholarship. claims, requests denied her

Finally, alleges declaratory injunctive relief, that UGA offi- and de- suggestions cials received from part granted student- nied in in part Williams’s Adams, Harrick, Additionally, Dooley requested foster mother after he assaulted one knew about several other violent incidents of prep her friends and an incident in school Cole, involving May such as punched Cole’s 2001 ar- player when Cole another in the face violating protective rest for a during game. order that his a

1291 (3) claims; claims; dismissing her 1983 dis- The complaint. to amend motion (4) injunctive claim for supple- dismissing her to exercise also declined trict court state over Williams’s relief. jurisdiction mental sum, court the district In claims.

law all the claims. dismissed Erred in I. Whether the District Court Amend Denying Motion to Williams’s thorough appeals. After now Williams Complaint Her of oral record and the benefit of the review court’s reverse the district argument, we argues that the district Williams Title IX to dismiss Williams’s decisions denying in her motion court erred and to and UGAA against UGA claims to file claims for a complaint amend her her com- motion to amend deny Williams’s UGA, the declaratory judgment we affirm respects, In all other plaint. In her Regents, Board of and UGAA. court. district sought complaint, amended first “that defendants declaratory judgments Revieio Standard of harassment application of its sexual [sic] the district review de novo We unconstitu Tiffany Williams was policy mo the defendants’ granting court’s order equal protection as it denied her tional dismiss, v. Farm McDonald S. tion to appli [sic] and “that defendants the laws” Co., 722 Ins. 291 F.3d Bureau Life policy harassment cation of its sexual (11th Cir.2002), taking the facts students similarly other situated female construing them as true and complaint by other stu sexually harassed who are plaintiff. to the light most favorable of the laws.” equal protection dents denies Co., n. 2. F.3d at 1276 299 Covad Commc’n complaint also first amended Williams’s only granted when “A to dismiss is motion allegations. additional factual contained ‘beyond doubt movant demonstrates amend filed her first At the time Williams set of facts prove can no plaintiff that the UGA, Regents, the Board of complaint, ed entitle claim which would support of his Adams, Dooley filed a motion to had ” Harper v. Blockbuster him to relief.’ dismiss; filed an answer. only Thomas had (11th 1385, 1387 Corp., F.3d Entm’t Gibson, Cir.1998) Conley v. Procedure (quoting Federal Rule Civil 15(a) 41, 45-46, 2 L.Ed.2d 80 party may amend “[a] 78 S.Ct. states that U.S. (1957)). matter of course once as a party’s pleading pleading is responsive at time before the denial of a generally review We 15(a). pur For Fed.R.Civ.P. served.” an abuse complaint amend a motion to Rule, is a motion to dismiss poses of this discretion, Nursery v. E.I. Green Leaf v. pleading. Chilivis responsive not a Co., F.3d De Nemours & DuPont Cir.1982). (11th SEC, 1205, 1209 673 F.2d (11th Cir.2003), we review but defendant, has more than one If the case of law de novo. United States questions responsive pleadings, filed and not all have (11th Alaboud, Cir. 347 F.3d as a may amend plaintiff 2003). to those de regard course with matter of Brew yet to answer. that have fendants Discussion Video, Inc., 216 v. Producers er-Giorgio — n appeal raises four issues (11th Cir.2000). 1281, 1284 F.3d (1) in: court erred the district whether re- Here, the district court the clerk of amend her motion to denying Williams’s amended com- first to file Williams’s her Title fused dismissing complaint; 1292

plaint until obtained the consent that complaint Williams Williams’s amended is fu- tile, or leave of court. opposing parties stated, of the but as we the district court seeking per- then filed a motion Williams lacked the discretion to that make deter- court to file her first mission from the mination at that time. Apparently believing complaint.

amended that not amend her com- Williams could II. the Whether District Court Erred in course, plaint of as a matter the district Dismissing Williams’s Title IX analyzed court first amended com- her Claims plaint provision under of Rule another argues Williams the district court 15(a). permitted The district court dismissing erred in her IX Title claims complaint to in- Williams amend UGA, against Regents, the Board of clude additional factual but re- The UGAA. district court concluded that jected declaratory as futile her claims for Williams’s claims failed because she was judgments. unable to meet the deliberate indifference in failing The district court erred requirement of the Title cause of ac- allow Williams to file her first amended tion. complaint as a matter of course. When attempted to file her first amend presents This case a factually distinct complaint, only ed Thomas was the defen scenario from our and Supreme the dant who a responsive pleading. had filed precedents. Court’s In each of those complaint Williams’s first amended includ cases, the defendant did not learn about UGA, ed additional claims the alleged proclivities harasser’s until the UGAA, Regents, Board of none of alleged harasser became a teacher or a whom had a responsive pleading. filed student at the defendant’s school. Davis Therefore, had right Educ., County v. Monroe Bd. 526 U.S. complaint amend her as a matter of (1999) 629, 1661, 119 S.Ct. 143 L.Ed.2d 839 course.6 (student); Gebser v. Lago Indep. Vista Dist., 274, 1989, Sch. 524 U.S. argues

UGAA that we should affirm 118 S.Ct. (teacher); L.Ed.2d 277 holding district court’s it Haw- applies as Bd., UGAA kins v. Sarasota poli- County because the sexual harassment Sch. 322 F.3d (11th Cir.2003) (student). cy policy Here, was not its and it lacks the how- ever, authority change policy Adams, should Williams has plaintiff prevail. reject Dooley, also argu- We this and Harrick knew about Cole’s ment because it mimics argument past we sexual they misconduct when recruit- just rejected. argument simply UGAA’s is him gained ed his admission to UGA. 15(a) that, 178, 182, provides 6. Rule except also in the 83 S.Ct. 9 L.Ed.2d (1962)). plaintiff may two circumstances in which the But we have also held that “a course, amend party may as a matter of “a may properly deny district court leave to party's pleading only by amend the 15(a) complaint leave of amend the under Rule when by court or written consent of the adverse such amendment would be futile.” Hall v. 15(a). party." Am., Fed.R.Civ.P. This court has United Ins. Co. 367 F.3d 1262- that, 15(a)'s (11th Cir.2004) Foman, held consistent with Rule (citing man- 371 U.S. at freely given 227). date that "leave shall be plaintiff when 83 S.Ct. When the has the justice requires,” right so district courts should complaint to file an amended as a matter generously course, however, allow amendments even when the plain language of Rule plaintiff 15(a) right does not have the to amend the shows that the court lacks the discretion TRW,Inc., complaint. reject Rosen 979 F.2d the amended based on its (11th Cir.1992) Davis, (citing alleged futility. Foman v.

1293 Furthermore, 802, grounds, knew on other 525 UGAA U.S. 119 S.Ct. 33, (1998), reinstated, suggestions student-athletes’ 142 about L.Ed.2d 25 171 (11th Cir.1999). Second, the athletic coaches should inform student- F.3d 1264 an “ap applicable athletes about sexual propriate person” must actual have knowl Although, a IX policy. harassment Title edge of the discrimination or harassment recipient cannot be held liable miscon- plaintiff alleges occurred. Gebser v. alleged duct that occurred before the har- Dist., 274, Lago Indep. Vista Sch. 524 U.S. recipient, asser was affiliated with the as 290, 1989, 118 S.Ct. 141 L.Ed.2d 277 later, Adams, we and Har- explain Dooley, (1998). is, ‘appropriate person’ “[A]n ... preexisting knowledge past rick’s of Cole’s minimum, at a recipient an official of the sexual misconduct and the student-ath- entity authority with to take corrective suggestions letes’ are relevant when deter- action to end the discrimination.” Id. mining alleged whether Williams facts suf- Third, funding recipient a is liable for stu ficient to survive the motion to defendants’ only dent-on-student harassment if “the complaint. dismiss her Title IX funding recipient acts with deliberate indif ference to known acts of harassment in its states, in pertinent part: Title IX “No Davis, programs or activities.” 526 U.S. shall, sex, person ... on the basis of be 633, at 119 In considering S.Ct. 1661. this in, participation excluded from be denied element, analyze we the conduct of the of, subjected the benefits or be to discrimi harasser; funding recipient, not the nation under program education we do this ensure that we hold the activity receiving Federal financial assis funding if recipient only funding liable 1681(a). Although tance.” 20 U.S.C. recipient’s “subject deliberate indifference Title IX expressly permit private does not plaintiff ed” the to discrimination. Id. at suits, Supreme enforcement Court has 640-41, Therefore, 119 S.Ct. 1661. we will implied private right found an of action for funding recipient solely not hold a liable individuals to enforce the of Ti mandates person because a affiliated with the fund Chi., tle IX. Cannon v. 441 Univ. U.S. ing recipient against or ha discriminated 677, 717, 1946, 99 S.Ct. 60 L.Ed.2d 560 plaintiff. rassed the Hawkins v. Sarasota (1979). The held that pri Court also has (11th Bd., 1279, 1284 County Sch. 322 F.3d monetary vate can individuals obtain dam Cir.2003). Fourth, the discrimination ages. County Franklin v. Gwinnett Pub. severe, pervasive, objec must be “so Sch., 60, 76, 503 U.S. 112 117 S.Ct. tively effectively that it bars the offensive (1992). L.Ed.2d 208 opportuni victim’s access to an educational “ harassment’ is ‘dis ‘[SJexual Davis, ty or benefit.” 526 U.S. at 119 crimination’ in the school context under S.Ct. 1661. IX” and in Title certain narrow circum stances, plaintiff may be able to recover Against A. Title Claims the Board for student-on-student harassment. Davis Regents Educ., County v. Monroe Bd. 629, 650, matter, L.Ed.2d As an initial we hold that S.Ct. (1999). plaintiff seeking recovery A for a properly the district court dismissed violation of Title IX IX claim based student-on- Williams’s Title student if prove Regents. harassment must four ele Board of Even we construe First, ments. the defendant must be a Williams’s initial and first IX funding recipient. Floyd complaint broadly Title amended and construe Wait (11th ers, Cir.), favor, 133 F.3d vacated all the we cannot “appropriate that an Court has not resolved whether this is any allegations find entity funding sufficient to make an re person” Regents the Board of had with cipient subject liability. to Title IX NCAA knowledge “actual of discrimination the Smith, 459, 470-71, v. 525 U.S. 119 S.Ct. recipient’s programs adequate- and fail[ed] 924, (1999); 142 L.Ed.2d 929 see also Al Gebser, 290, ly respond.” 524 U.S. at Inc., High League, ston v. Va. Sch. 144 alleged 118 that the S.Ct. (W.D.Va.1999). 526, F.Supp.2d 531 We Regents appointed Board of Adams and however, by are persuaded, analysis the of ceded substantial control over UGA Michigan, the Western District of noting Adams, however, him. is not a member of that if funding recipients we allowed Regents, the Board of and Williams failed programs cede control over their to indi allege authority that Adams has to take funding recipients rect but did not hold change policies action to of the Board funding indirect recipients for Title liable Regents. any allega- of In the absence of violations, funding IX we would allow re appropriate person tions that an with the cipients to receive federal funds but avoid had Regents knowledge Board of actual of Title IX liability. Cmtys. Equity v. for alleges the acts that Williams constitute Ass’n, High Mich. Sch. Athletic 80 discrimination, Title IX claim Williams’s (W.D.Mich.2000). 729, F.Supp.2d 733-34 against Regents the Board of cannot sur- that We hold suffi Williams’s 12(b)(6) vive a motion to dismiss. United element, ciently alleges this and we leave $121,100 v. Currency, States in U.S. 999 discovery process for the and the district (11th Cir.1993) 1503, F.2d 1507 (holding court to determine whether to treat UGAA appeals that an court can affirm for funding recipient. like a supported by record, reason even if not court). upon by relied the district 2. Did an Appropriate Person Have Actual Knowledge Alleged of B. Title IX Against Claims UGA and Harassment or Discrimination? UGAA element, As to the second we Turning to the Title IX against claims agree with Williams that an “appropriate UGAA, UGA and for the reasons that fol- person” at both UGA and UGAA had actu low, we hold that the district court erred al knowledge of the harassment. Accord dismissing those claims. Williams, ing Adams, the President of UGAA, Dooley, UGA and and the Athletic 1. Are UGA UGAA Title UGAA, Director of actual knowledge had Funding Recipients? of the three forms of discrimination or element, As to the first parties harassment that allegedly faced: agree that a funding recipient UGA is (1) Cole’s recruitment and admission de subject properly liability. to Title IX Al spite past his misconduct at several other though disputes UGAA that funding it is a schools; (2) 14, January 2002 incident recipient, we pre believe Williams has Cole, Williams, involving Brandon sented sufficient facts at stage this to show Thomas; and the discrimination that that we should treat funding UGAA as a Williams faced as a result of UGA’s failure Here, recipient. alleged Williams has respond adequately to her UGA, a funding recipient, has Cole, ceded con Williams, Brandon trol programs, over one of its the athletic Additionally, Thomas. Williams has suffi department, provided to UGAA and ciently exten alleged Adams Dooley do —and sive funding to UGAA. Notably, not dispute' Adams Dooley had —that

1295 rights deprivation of federal was prevent corrective measures authority to take Gebser, 524 of the violation.” the cause dis- to end and UGAA UGA 291, 118 (citing Board U.S. at S.Ct. Thus, turn to the we must crimination. Brown, County. v. Bryan of Comm’rs a Title IX cause final two elements L.Ed.2d 626 117 S.Ct. U.S. action. Harris, (1997); Canton (1989)). Deliberately and UGAA L.Ed.2d 109 S.Ct. 3. Were Alleged to the indifference adopting In the deliberate Indifferent ? Discrimination in Title IX cases that do not standard of discrimination result allegations involve that fund Davis Court held The IX official ing recipient’s from the Title deliberately indifferent are ing recipients that “com the Court noted policy, Gebser to the recipient’s response “only where the namely, to im parable considerations” — clearly un lack thereof is harassment or by pose liability only for official decisions known circum light in of the reasonable remedy violation the defendant not to Davis, 648,119 S.Ct. 526 U.S. at stances.” actions of independent and not for the note, the Court defendants 1661. As the the de employees supported the use of — identify can that district courts also stated in Title indifference standard both liberate as not “response funding recipient’s a liability § municipality IX and 1983 cases. of law” as a matter ‘clearly unreasonable’ 290-91,118 at 1989. Id. S.Ct. to the claim on a motion dispose context, municipality liability 119 1661. Nev In the this Id. at S.Ct. dismiss. has a can show ertheless, plaintiff that Williams circuit has held that we believe by proving in to that facts her deliberate indifference alleged sufficient ... were of a need to municipality that and UGAA “the knew demonstrate UGA dis in area and the mu- supervise particular to the a deliberately indifferent choice not to nicipality that the district court made a deliberate crimination Miami, City response that the was take action.” Gold v. concluding in erred Cir.1998). (11th as a matter of F.3d 1350-51 ‘clearly “not unreasonable’ 151 here to guides our decision precedent This law.” with a scenario the extent that we deal is of this case The factual distinctiveness Gebser, factually from is distinct determining whether when most relevant Hawkins, Davis, stress that but we deliberately were indif- and UGAA for requirements important Title IX has In alleged discrimination. ferent to the indifference establishing deliberate Gebser, adopted the Supreme Court simply because cannot be scuttled for deter- indifference standard deliberate applicable the standard plaintiff can meet IX be recipient a Title would mining when liability cases. municipality harassment, teacher-on-student liable for First, plaintiff that the Gebser, 290-91, requires Title IX 524 at 118 S.Ct. U.S. indifference oc- Davis, that the deliberate prove adopted the same standard she response to discrimination curred determining liability for student-on-stu- Davis, 633, 119 S.Ct. Davis, 526 at at faced. U.S. dent harassment. Second, a Title Gebser, requires, as Davis the Court 119 1661. Prior S.Ct. for dam- “may not be liable recipient indifference stan- adopted the deliberate indifference ‘sub- li- unless its deliberate determining municipality’s ages dard when That harassment.. ject^]’ students to alleging its ability “for claims under 1983 must, is, at deliberate indifference failing municipality’s actions that a minimum, undergo’ ‘cause tablish deliberate indifference under our [students] or harassment or ‘make them liable vul municipality liability precedent. But 644-45, it.” Id. at nerable’ to S.Ct. satisfy precedent, our Title IX Dictionary Random House (citing go sufficiently must further and allege that (1966)) (defin English Language subjected the deliberate indifference her to “subject” undergo “to ing as cause further discrimination. something specified; expose” action of Williams meets the Title IX standard vulnerable; lay open; “to make liable or through regarding the Jan- expose”); Third New Interna Webster’s uary 14 incident. fail- UGA and UGAA’s Dictionary (defining tional ure to inform its student-athletes about “subject” undergo as “to cause to or sub applicable policy sexual harassment particular mit to: make submit to a action to supervise and failure its student-ath- EXPOSE”). or effect: Based on the subjected letes Williams to this further language, Davis Court’s we hold that a harassment and caused Williams to be the plaintiff Title IX at the motion to dismiss Cole, conspiracy victim of a between Bran- stage allege recipi that the Title IX must Williams, don and sexually Thomas to as- ent’s indifference to initial deliberate the rape By sault and placing her. Cole in a subjected plaintiff discrimination the dormitory student failing supervise and further discrimination. any way him in or to inform him of their earlier, Adams, Dooley, As stated and expectations of him applicable under the Harrick’s decision to recruit Cole and ad- policy, sexual harassment UGA and UGAA through mit him special UGA’s admission substantially by increased the risk faced process a form was of discrimination that female at students UGA. Williams, According suffered. Furthermore, viewing the evidence in Adams, Dooley, and Harrick knew at that Williams, light most favorable UGA point supervise of the need to Cole for two acted with deliberate again indifference First, reasons. UGA and UGAA officials responded when it January to the 14 inci- suggestions had received from student-ath- dent.7 Although UGA Police seem to have letes that UGA and UGAA ensure that performed thorough investigation, a UGA athletic coaches inform their athletes about provide adequate failed to an response.

the sexual harassment policy applicable to forty-eight incident, Within hours of the Second, student-athletes. and more im- had preliminary report UGA a providing portantly, Adams, alleges that incident, by April details about the Harrick, Dooley knew about Cole’s 2002, had a full report, including informa- past Nevertheless, sexual misconduct. tion about suspects interviews with even with its knowledge of the need to witnesses, from UGA Police. inform Neverthe- its appli- student-athletes about the less, eight cable UGA waited another policy sexual harassment months and of misconduct, conducting before past disciplinary hearing Cole’s sexual UGA and UGAA failed to determine adequately supervise alleged whether to sanction the Cole. Williams’s By of UGA and assailants. point, UGAA’s two of the al- failures are stage sufficient at this leged es- longer assailants no attended UGA. Although complaint appears played not to ade- what role UGAA in this form of dis- quately allege that UGAAhad role in the crimination and what role UGAAcould have discrimination Williams suffered because of played responding to the incident more incident, response January lax to the effectively. we leave for the district court to determine assailants, ulti- disciplinary panel implementing The fact that protec- more to sanction the mately policy decided not tive sexual harassment to deal with immaterial it fails to future Considering assailants is because incidents.8 what had occurred, why already waited almost eleven explain UGA UGA’s failure was inex- action, especially plicable discriminatory. months to take corrective considering the fact that Police’s re- UGA though Even university might “[a] not port provided substantial evidence corrob- ... expected be to exercise the same de- orating January version of the Williams’s gree of control over its students that a ar- incident. To the extent UGA Davis, grade enjoy,” school would gues long that it so because of the waited at 119 S.Ct. UGA and UGAA pending criminal trials the assail- Cole, exercised almost no control over (1) ants, argument this also fails because: even though they knew past about his charges criminal pending did not affect Moreover, sexual misconduct. UGA and ability proce- to institute its UGA’s own UGAA failed to inform student-athletes (2) dures; charges the criminal were an applicable about sexual harassment prevent ineffectual means to future attacks policy. together, Placed allega- Williams’s charges at while the pending; were tions that she faced several forms of disciplinary proceedings were harassment and that UGA and UGAA re- not instituted for another four months af- peatedly responded with deliberate indif- acquittal ter Brandon Williams’s and the ference are sufficient to meet Williams’s charges against dismissal of Cole and burden a motion to dismiss. Thomas. Severe, 4a. theWas Discrimination again, Once UGA’s deliberate indiffer- Pervasive, Objectively and by was ence followed further discrimina- Offensive? tion, in effectively this time the form of denying an opportunity Williams to contin- As for the part first of the final element, Although ue to attend UGA. we Williams conclude that the discrimina “severe, day objective withdrew from tion pervasive, UGA after the was and incident, January 633, ly we do not believe that offensive.” Id. at 1661. S.Ct. at stage gender-oriented this her withdrawal should fore- “Whether conduct rises argument close her that UGA continued to the level of actionable ‘harassment’ thus subject light ‘depends her to In a surrounding discrimination. on constellation of circumstances, harrowing expectation, ordeal that faced and relation Williams January to, ships,’ including, her decision to withdraw but not limited ages from UGA was and expected. reasonable of the harasser and the victim and Viewing light the evidence in the most at number of individuals involved.” Id. (citations omitted). Williams, favorable to UGA failed to take 119 S.Ct. 1661 any precautions prevent ‘systemic that would denying “[T]o future have a effect’ of Cole, Thomas, equal attacks from Brandon the victim access to an educational Williams, hooligans program activity or like-minded should or ... gender discrimina UGA, widespread Williams have decided to return to tion more than a sin must be by, example, removing gle peer either from stu- instance of one-on-one harass ” Hawkins, housing suspending dent or ment .... 322 F.3d at 1289 holding Supreme 8. Our does not affect the constitute 'discrimination' under Title IX.” precedent promul- Gebser, Court’s that "the failure to 524 U.S. at 118 S.Ct. 1989. gate grievance procedure a not does itself 652-53, Davis, opportuni- victim’s access to an educational 526 U.S. at S.Ct. (citing 1661). Davis, at ty or benefit.” noted, we this case in- S.Ct. As allegations, a According Williams’s cycle volves a of discrimination delib- at least two of the conspiracy between erate indifference that lasted for more began before she en- alleged perpetrators year, ultimately resulting than one in because Brandon tered Cole’s room withdrawal from and decision Williams’s closet, already in Cole’s with Williams was alleges not to return to UGA. Williams and without her knowl- permission Cole’s university if may that she return to the the room. View- edge, when she entered proce- implements UGA more effective most favor- ing light Williams, with agreed Brandon dures deal student-on-student able to Cole and that Brandon Although before arrived harassment. UGA and UGAA Williams emerge attempt would from the closet and formally forced neither leave once she and to have sex with Williams returning, nor banned her from the dis- Then, having during Cole finished sex. they engaged they crimination which Williams, Brandon’s sexual assault Cole campus allowed to occur on caused and in- called Thomas and Charles Grant to withdraw and not return. “running vited continue a train” them to Williams was faced with decisions to When though on Williams. Even Williams suc- UGA, leave or to return to she knew the attempted cessfully fended off Brandon’s (1) following: recruited UGA UGAA further when rape, the situation worsened despite and admitted student-athlete Moreover, raped her. Thomas arrived misconduct; knowledge past of his sexual telephoned Thomas later her twice. (2) supervise UGAA failed markedly January The 14 events differ dangerous properly students or instruct actionable, rarely from the theoretical sin- applicable student-athletes on the sexual gle incident mentioned Davis and Haw- policy; sexually harassment she was ringleader kins. The incident involved by raped assaulted and three student-ath- territory who lured the victim his letes, including past one whose sexual mis- conspired then with two friends to commit conduct to was known UGA and UGAA separate two acts of sexual assault and so (4) officials; response and to her com- a continuous series of events. constitutes plaints nothing assuage did her con- Although occurring in one room over two cerns of a future attack should she return hours, the acts are to meet the sufficient Considering UGA. these circum- objective requirements severity and of- stances, we conclude that Williams has facts, upon fensiveness. Based these to- alleged stage sufficient facts at this gether that with discrimination oc- alleged show that the discrimination “ef- incident, curred before and after the we fectively bar[red] [her] access to an edu- that alleged conclude Williams has suffi- benefit,” cational opportunity namely stage cient at that facts this to show pursuing an education at UGA. pervasive. discrimination was It is important emphasize the extent Alleged 4b. Did the Discrimination Ef- analysis. and limits of our A court’s hold- fectively Bar Williams’s Access to an can ing reach no further than the facts of ? Opportunity Educational or Benefit it. ease before See Watts v. BellSouth Telecomms., Inc., us 316 This leaves to resolve whether F.3d 1207 (11th Cir.2003) (“[J]udieial “effectively the discrimination decisions can- bar[red]

1299 beyond the facts of the cases failure to state a claim and the defendants’ not make law qualified immunity. The district court dis- announced.”); are in which those decisions missed all other claims based on Eleventh 217 Aguillard, v. F.3d United States immunity. Amendment Cir.2000) curiam) (“The (11th (per 1321 only prior a decision can reach holdings of § provides Title U.S.C. pre and circumstances as far as the facts every person right with the to sue those acting under color of state law for viola in the ease which sented to the Court tions of federal constitutional and statuto (citation and in produced that decision.” ry § provisions. U.S.C. 1983. Section omitted)). marks ternal merely by a bring 1983 is vehicle which to alleged in this case are ex- The facts suits; it not create these does substan com- According treme. to the amended rights. Whiting tive federal Traylor, present (11th which we take as true for plaint, Cir.1996). Therefore, F.3d plaintiff and officials active- must to a purposes, point specific UGA UGAA federal right that the defendant violated. Id. ly despite recruited and admitted Cole his sexual misconduct. Once past serious Here, Adams, asserts at and Cole was a student-athlete Harrick, Dooley, acting while under finding color of placed dormitory, in a the defendants’ did state law—a the de- dispute deprived fendants do not her of against him supervise not or even counsel — (1) rights: IX by her federal under Title sexual harassment or other sexual miscon- failing implement policies proce- assault, rape duct. Even after the compliance dures to ensure with the stat- orchestrated, the defendants which Cole Equal ute and under the Protection failed for months to remove Cole and the Clause discrimination based sex. university. other attackers from the It is Williams also asserts 1983 claim likely prevented that this failure they the three defendants because university to contin- returning from to the by exhibited deliberate indifference re- her education. ue cruiting admitting despite Cole his past. explain troubled Williams fails to hold that these extreme facts are We statutory right what or constitutional a claim IX. sufficient state under Title through their deliber- defendants violated decide, decide, We do not nor could we indifference, ate so we consider those alle- IX claim whether valid Title would have Title IX gations as relevant to both the if been stated the facts had been Additionally, equal protection claims. less severe. and the Board Williams asserts that UGA Equal Regents violated Protection III. Whether the District Court Erred in by implementing a sexual harass- Clause policy § ment that treats student-on-student

Dismissing Williams’s 1983 differently from harassment harassment Claims university of the involving other members § Next we consider Williams’s 1983 community. Adams, Harrick, and Doo- against claims Against in A. Section 1983 Claims

ley, as individuals and their official ca- Adams, Harrick, Dooley Vi- pacities, against Regents the Board of for olating Title IX and UGA. The district court dismissed Adams, Harrick, and against the claims court dismissed The district § claim against first 1983 Dooley as individuals based on Williams’s Williams’s 1300 12(b)(6) motion to defense a Rule dis-

Adams, Harrick, Dooley as individuals miss, im- grant qualified § the court should a 1983 cannot assert plaintiff a because munity if fails to plaintiffs of Title IX. We a violation action based on clearly of a established allege a violation claims IX does not allow agree. Title statutory right. constitutional officials; only school against individual Univ., v. Ala. State 102 F.3d can be held liable for funding recipients Cir.1997) curiam). (11th 1179, (per 1182 Parnell, Hartley v. Title violations. Cir.1999).9 (11th 1263, Al- 1270 193 F.3d qualified To establish a defense of this court has never considered

though immunity, the defendant must show that § a can use 1983 to as- plaintiff whether discretionary scope he acted within the against IX claim an individual sert a Title authority challenged performing when official, conclude that to allow school we Dollar, 1558, Rich v. 841 F.2d conduct. manner to use 1983 this plaintiffs Cir.1988). (11th If the defendant 1563 an end run around Title IX’s permit would burden, meets this the burden shifts to the limiting liability to fund- explicit language plaintiff to establish that the defendant’s ing recipients. clearly established law.

conduct violated agree that parties Id. at 1564. The Against B. Section 1983 Claims burden; therefore, defendants met their Adams, Harrick, Dooley Vi- dispositive inquiry. we turn to the olating Equal Protection Clause The district court dismissed step, Under the second § 1983 claim plaintiff Williams’s second must establish that the state of individuals, Adams, Harrick, Dooley as challenged the law when the events oc qualified have holding that the defendants curred was such that the defendant had immunity and that failed to state warning fair that his treatment of a claim. not address whether plaintiff We need was unconstitutional. Will- claim ingham Loughnan, Williams failed to state a because we F.3d (11th Cir.2003). holding quali affirm the court’s plaintiff district The does not immunity grounds. precise fied have to show that the conduct

question has been held unlawful. Id. “Qualified immunity shields Nevertheless, right for a federal to be governmental executing officials discre established, clearly parameters its “must tionary responsibilities damages from civil sufficiently clear that a reasonable offi be ‘insofar as their conduct does not violate cial would understand what he is do clearly statutory established or constitu ing right.” violates Anderson v. rights person tional of which reasonable 635, 640, Creighton, 483 U.S. S.Ct. ” would v. McMil have known.’ Courson (1987). 3034, 97 L.Ed.2d 523 lian, (11th Cir.1991) 939 F.2d

(citing Fitzgerald, Harlow v. The con Equal Protection Clause (1982)). 818, 102 right S.Ct. 73 L.Ed.2d fers federal constitutional to be If a qualified immunity defendant asserts a free from sex discrimination. Pers. Adm’r Snow, ally contrary proposition. 9. v. 84 F.3d stands for the Id. Williams cites Seamons claim, (10th Cir.1996), support 1226 at 1234 n. 8. noted, but as the court Seamons actu- district 256, 273, an Feeney, appeals 99 that court can affirm for Mass. v. U.S. (1979). Here, record, 2282, supported by reason if not 60 L.Ed.2d 870 even S.Ct. court). incident, upon by relied the district alleged harrowing a has Williams that unfortu- to other similar nately increasingly have become common Against C. Section 1983 Claims UGA university campuses.10 today’s Regents and the Board of that presents compelling case

Williams § As 1983 claims Adams, Harrick, Dooley and knew about against Regents, UGA and the Board of disciplinary problems criminal and that we hold that the Eleventh Amendment they that consid- plagued past, Cole’s but bars against suit those defendants. Under greater basketball skills a benefit ered his circumstances, most the Eleventh Amend a bur- questionable than his mores were against ment bars suits states and state Furthermore, present- has den. Williams by entities their citizens. Hans v. Louisi ed evidence to show the defendants’ ana, 1, 20-21, 504, 134 U.S. S.Ct. actions, action, coupled may with others’ (1890). L.Ed. 842 Williams does not dis actionable under amount to discrimination pute Regents that UGA and the Board of minimum, Adams, Harrick, Title IX. At a are state entities for Eleventh Amendment recklessly, ap- and Dooley acted their purposes. But even in in those situations attitude parent “win at all costs” resulted suits, which the Eleventh Amendment bars than enormous costs and fewer wins a party may sue the state if the state has Nevertheless, has expected. Williams immunity if Congress waived its has present any failed to cases that show the validly immunity. abrogated the state’s clearly three defendants violated her es- Prepaid Coll. Sav. Bank v. Fla. Postsec equal protection rights by re- tablished Bd., ondary Expense Educ. 527 U.S. cruiting admitting an individual like 2219,144 119 S.Ct. L.Ed.2d 605 Therefore, Williams cannot meet Cole. (abrogation); Atascadero Hosp. State step her burden under the second of the Scanlon, 234, 239-40, 105 S.Ct. qualified immunity analysis, and we hold (1985) (waiver). 3142, 87 L.Ed.2d 171 Adams, Harrick, Dooley are enti- qualified immunity. tled correctly Williams notes that Con § brings also 1983 claims immuni gress validly abrogated the states’ Harrick, Adams, against Dooley, Gebser, ty from IX at Title suits. U.S. capacities. their official The district court why 118 S.Ct. 1989. This is the Elev claims on Eleventh dismissed these based enth Amendment did not bar the direct immunity. UGA, UGAA, Amendment Without address- IX against Title action ing reasoning, Here, however, the district court’s we hold Regents. the Board of properly § instead that the claims were dis- trying bring is to use 1983 to missed for the same reasons we dismissed not Congress Title claim. has abro gated immunity the claims those defendants from 1983 suits. states’ $121,100 capacities. King, their individual in Miller v. 384 F.3d 1259-60 (11th Cir.2004). Nor has or the Currency, (holding U.S. 999 F.2d at 1507 Carman, C7; Weichselbaum, See, Campus Diane Simone e.g., Finally, A Debacle Athletes: Post, Survive, Dec. Raunchy, Partygoers, Denver Raucous Others at CU's Barnett Can’t Life La Salle Talk 8, 2005, B05; Assaults, at Phila. Charged Alleged Players Sexual Six UTC 9, 2005, News, 1, 2004, Register, Daily July at 10. Mobile Nov. at Rape, with 1302 major of stages for the its Eleventh timeframes waived Regents of

Board (5) Therefore, process; notice complaint the the immunity. Amendment outcome of the com- parties the of the bars Williams’s Amendment Eleventh (6) the plaint; and an assurance and the Board against UGA § 1983 claims steps prevent take re- school will Regents.11 of any harassment and to currence of discriminatory effects on correct its Erred in District Court the IV. Whether others, if appro- complainant the and In- Claim Dismissing Williams’s for by and accor- priate required —as junctive Relief Fed.Reg. 12044. dance with asserts that the Finally, Williams rejected district court Williams’s The dismissing her claim erred district court standing. claims because she lacked requested in injunctive that she for relief expanded upon and complaint her initial minimum, As an irreducible In her ini complaint. amended her first to meet requires plaintiff Article III injunc sought an complaint, tial Lujan v. standing requirements. three imple “ordering the defendants tion 555, Wildlife, 504 560- U.S. of Defenders protect policies, procedures and ment (1992); 61, 112 L.Ed.2d S.Ct. Plaintiff from student-on-stu students like (11th Harris, Kelly v. 331 F.3d 819-20 by Title prohibited harassment dent sexual Cir.2003). First, plaintiff the must show clear, entirely this re Although IX.” not injury-in-fact. that she has suffered an likely applies to injunctive relief quest 560, 112 Lujan, 504 U.S. at S.Ct. 2130. Adams, UGA, Regents, of Doo the Board plaintiff The must show In first amended ley, and UGAA. injury legally invasion of a arises from the injunction sought an complaint, Williams sufficiently con protected interest that is Regents ordering and the Board and not abstract particularized, crete and policies harassment implement sexual Second, plaintiff Id. and indefinite. providing for: a causal connection between must establish (1) injury-in-fact asserted and the chal students, parents notice to of ele- students, lenged action of the defendant. Id. mentary secondary Third, plaintiff must show that it is employees procedure, including of the filed; likely, speculative, rather than that a fa may be complaints where the (2) injury. will redress her procedure of the to vorable decision application Additionally, alleging harassment carried Id. at S.Ct. 2130. complaints students, injunctions con regulate or future by employees, “[b]ecause out other (3) reliable, duct, injunc- party standing has to seek parties; adequate, third only party alleges, tive relief if the impartial investigation of com- ultimately proves, a real and immediate— plaints, including opportunity evidence; conjectural merely to a present opposed and other as witnesses injury.” future designated reasonably prompt hypothetical —threat carrero, (11th Cir.1992) complaint Although Williams’s does not set 963 F.2d UGAA, (citation omitted). against if we were to accede §a Even forth 1983 claim request, we would hold that the we "must read the to Williams’s asserts that any theory Amendment bars a 1983 claim to include on which Eleventh plaintiff may UGAA. recover.” Linder Porto-

13Q3 Regents Sys. Bd. that because it Wooden v. Univ. dismissed the federal of of (11th Cir.2001) against defendants, claims of Ga., 247 F.3d other it (citation omitted). pursuant would exercise its discretion 28 U.S.C. 1367 not to supple- assume agree We with the district court’s rea- jurisdiction mental over the state law soning and hold that Williams lacked In claims. her notice appeal, Williams standing pursue injunctive relief be- stated that she appealing was “the order cause the threat future harm to granting the defendants’ motion to dismiss merely Williams and other students is con- and the final judgment.” Additionally, she First, jectural.12 assailants no Cole, Williams, included Brandon Therefore, longer attend UGA. as for Thomas on the certificate of interested them, may harm that come from granting persons brief, appellate and she injunctive relief would not prevent future included attorney Thomas’s on the certifi- harm to Williams or other students or cates of service attached to the notice of remedy past harm Williams suffered. appeal and appellate briefs. These probably facts show that Williams intend- Second, no longer attends appeal ed to the district ruling court’s alleges if UGA. Williams ÚGA Williams, however, the state law claims. adopts equal an protective more sexu- failed to arguments raise in her initial policy presumably al harassment the one — 'reply addressing brief the district may she asks this court to order —she Therefore, ruling court’s on this issue. pursue undergraduate or graduate studies though even remand we some federal Furthermore, at UGA. alleges she claims, we will not remand to the district policy, the absence of such a the current court to consider it whether should exer- students at UGA who are the victims of supplemental jurisdiction cise over the student-on-student harassment suffer from state law claims because we conclude that prohibited inequality. Williams’s claim Williams waived that argument by failing that an equal protective and more sexual Greenbriar, properly to raise it on appeal. policy prevent harassment would future Alabaster, City Ltd. v. 881 F.2d conjectural harm is injunc- too to warrant (11th Cir.1989). 1573 n. 6 Consequently, tive relief. we affirm the district court’s decision that Williams lacks Conclusion standing injunctive to obtain the relief she conclusion, In we REVERSE the dis- seeks. trict court’s dismissal of Williams’s Title against claims UGAA and Cole, Against V. State Law Claims permission denial of to amend her com- Williams, Brandon and Thomas plaint and REMAND to the district court The district court also dismissed proceedings for further consistent with Cole, state Williams’s law claims this decision. We AFFIRM the district Williams, Thomas, holding Brandon court on all rulings. other solely To the extent that Williams’s claim sion was on threshold matter for a injunctive part law; therefore, relief is of her first amended court decide as matter of complaint, we hold that the district court it was different from the district court's deci- properly though dismissed the claim even deny sion to the motion to amend because the could amend her as a declaratory claims for relief were futile. matter of course. The district court's deci- that, receiving actual to after plaintiff show JORDAN, Judge, specially District harassment, or the discrimination notice of concurring: (or nothing did close funding recipient the Title as to the judgment the I concur in problem, the and nothing) to to correct UGAA, and the UGA against IX the claims led further discrimina- that this failure opinion in all panel’s in the and concur against plaintiff. the tion or harassment to ex- separately I write respects. other Otherwise, recipient es- funding a would IX Title I Ms. Williams’ plain why believe superior lia- sentially facing be respondeat and the UGAA the UGA claims (or liability) for bility maybe even strict motion dismiss. survive a or harassment com- of discrimination acts recipient’s the by others without mitted case, deliberate Title typical In the knowledge. contemporaneous or prior that the by evidence is shown indifference having placed been recipient, funding prior a case should A rule established in of discrimi an or acts actual notice of act in a later case “woodenly applied” not be harassment, subsequently does nation or ... dif- any regard significant “without (or stop or virtually nothing) nothing Codispoti in the two cases. See ferences” offending conduct. Causation the prevent 506, 535, U.S. Pennsylvania, that, as a result by evidence is shown (1974)(Rehn- 2687, 41 L.Ed.2d 912 S.Ct. deliberate indiffer funding recipient’s the J., differ- dissenting). This case is quist, subjected ence, to further plaintiff was the different, ent, than significantly the and or harassment. See acts of discrimination in paradigm which typical Gebser/Davis Educ., County Bd. v. Monroe Davis recipient is oblivious to the funding the 650, 1661, 633, 640-41, 119 S.Ct. U.S. un- or harassment threat of discrimination (1999); v. Lago Gebser L.Ed.2d 839 is committed. Ms. til some misconduct Dist., Indep. School Vista and the alleged has UGA Williams 141 L.Ed.2d 277 118 S.Ct. knew, recruiting and admit- before UGAA (1998). view, is my Ms. Williams’ case In (1) Cole, sexually had ting Mr. that he typical Title IX case. not the employees at attacked two female school depart- athletic community college’s his I each involved what and Davis Gebser his by groping putting and ment them deliber- alleged would call “after-the-fact” pants, that he hands down their recipients in funding The ate indifference. suggestions to a store clerk had made lewd knowledge prior no and Davis had Gebser attending college. another Ms. while or acts of discrimination to the first alleged has also UGA the teacher by, respectively, harassment UGAA, knowledge of these with allegation There was no and the student. Cole, facts, Mr. with nevertheless admitted hired the that the school district Gebser scholarship, special admis- a full under knowing that he had offending teacher it believed program, because was or students sions sexually harassed abused program. Likewise, help that he could the basketball allega- there was no past. knew, light in the most Reading the that the school district tion Davis Williams, student, to Ms. offending favorable prior admitting nothing to moni- allegedly him in classroom with the the UGAA did placing after his admis- tor or counsel Mr. Cole proclivity had a plaintiff, that the student short, has claimed cases, In Ms. In sion. harassment. both for sexual in this case therefore, require that the deliberate indifference it made sense preceded, proximately caused, sex- university, the coach sexually assaults one rape. words, ual In assault other players. Ms. of his case, In such a the univer- Williams has sity’s “before-the-fact” de- calculated decision to hire the coach liberate indifference. after looking into and verifying his check- past, ered combined subsequent with its I why see no a funding reason recipient failure to conduct monitoring or pro- if, should avoid IX liability prior Title with vide any counseling, would be deliberately knowledge of a prospective student’s or under indifferent Title generally IX. See prior teacher’s documented acts serious Brennan, Farmer v. 825, 837, misconduct, sexual it admits the student or (1994) (ex- S.Ct. 128 L.Ed.2d 811 hires the teacher and then fails to conduct plaining, in Eighth context, Amendment any monitoring or counseling, thereby that deliberate indifference exists when an placing other students in danger. serious of, official knows and disregards, an exces- scenario, In such a there should not and sive risk of harm: “the official must both any need not requirement be that the vic- be aware of facts from which the inference tim subjected be to a second act of dis- could be drawn that a substantial risk of crimination or harassment before there exists, serious harm and he must also draw can be IX liability. Title inference”). that university, Assume that a desperate to they as Insofar funding concern the re- upgrade its losing volleyball women’s cipient’s knowledge behavior, Ms. team, decides to hire as its new coach a allegations Williams’ are not too far re- man who had publicly been forced leave moved from the hypothetical described his two most college coaching posi- recent above. Ms. Williams should have op- tions because of allegations that he had portunity prove against sexually some of harassed his stu- female the UGA and the through UGAA discov- dent-athletes. The university checks into ery, if the evidence is sufficient to past i.e., coach’s it does dili- due — survive summary judgment, present gence determines that allega- —and them jury. to a against tions the coach well-founded, were despite his vehement denials. The univer- Allowing Ms. Williams’ IX Title claims confirms, sity for example, years two the UGA and the UGAA to defeat earlier the put 12(b)(6) coach had his hands motion, down a Rule moreover, would the shorts of two players, of his female and not implicit adoption lead of a watered- that this incident led to the firing. liability coach’s down standard. For if example, it Yet because of boosters, pressure from turns out the UGA and the UGAA did including one says alumnus who that he not about Mr. past know Cole’s sexual will withhold a substantial misconduct, until donation there will be no Title IX liabil- volleyball the women’s team starts ity, win- as actual notice will lacking, be ning, university coach, hires the who there not can be deliberate indifference has won championships numerous and has without knowledge. Similarly, if it turns history of turning losing programs out that the UGA and the UGAA learned around. The university nothing does Cole, about allegations against Mr. but conduct, monitor the however, coach’s and investigated and found them unsubstanti- fails to provide ated, him with counseling. or found them substantiated but year Less than a being after by hired the monitored Mr. Cole in an counseled and/or conduct, any similar prevent attempt liability, for no Title will be

there acted will not have the UGAA Elev under indifference

with deliberate See, e.g., Sauls precedent.

enth Circuit Dist, F.3d County School

Pierce (11th Cir.2005); v. DeKalb Davis

1285-87 Dist., 1372- F.3d

County School Cir.2000). (11th COLLIER, L. Wal

Mary Arthur Ann McGoldrick, Roy

lace, Robert Plaintiffs-Appellants,

Pino, Ford, DICKINSON, III, A. Carl

Fred O. Lambert, Michael D. McCas

Sandra Shelton, Walden, Phillip Boyd

kill, Perryman, Bil Lawrence J. M.

David Defendants-Appellees,

bo, Department of Financial

Florida

Services, Defendant.

No. 06-12614. Appeals, States

United Court

Eleventh Circuit. 12,

Feb.

Case Details

Case Name: Tiffany Williams v. Board of Regents

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Mar 9, 2006

Citation: 477 F.3d 1282

Docket Number: 04-13800

Court Abbreviation: 11th Cir.