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Farmer v. Kansas State University

United States District Court, D. Kansas

August 23, 2017

TESSA FARMER, Plaintiff,
v.
KANSAS STATE UNIVERSITY, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE.

         Plaintiff Tessa Farmer filed this action against Defendant Kansas State University (“KSU”), alleging Title IX, negligence, and Kansas Consumer Protection Act claims based on KSU's deliberate indifference in response to her report that she was sexually assaulted by a KSU student at a KSU fraternity house. KSU moved to dismiss Plaintiff's claims. Relevant to her Title IX claim, KSU argued that Plaintiff had not alleged sexual harassment in a KSU “program or activity, ” and that she had not alleged she suffered “further harassment” after her report of sexual assault to KSU officials. The Court denied KSU's motion on the Title IX claim, because it found Plaintiff had alleged sexual harassment in a KSU “program or activity, ” and because Plaintiff was not required to allege that she actually suffered further harassment at the hands of the assailant after her report of assault to support her Title IX claim.

         This matter comes before the Court on KSU's Motion to Certify Order for Interlocutory Appeal and Stay Case (Doc. 48). KSU requests leave, pursuant to 28 U.S.C.§ 1292(b), to appeal the question whether Plaintiff is required to plead facts demonstrating that she suffered further harassment at the hands of the alleged assailant after her report of sexual assault. Plaintiff has responded to KSU's motion, arguing that certification of appeal and stay are not warranted. The motion is fully briefed and the Court is prepared to rule. For the reasons explained below, the Court grants KSU's motion to certify appeal and for stay.

         I. Procedural Background

         In support of its motion to dismiss Plaintiff's Title IX claim, KSU argued that the “further harassment” requirement arose from the Supreme Court's statement, in Davis ex rel. LaShonda D. v. Monroe County Board of Education, that “deliberate indifference must, at a minimum, ‘cause [students] to undergo' harassment or ‘make them liable or vulnerable' to it.”[1] Plaintiff responded that she “need not show she was assaulted or harassed again, ” so long as she showed KSU's deliberate indifference made her more “liable or vulnerable” to harassment and deprived her of educational access.[2]

         In its Memorandum and Order denying KSU's motion to dismiss, the Court analyzed two Tenth Circuit cases that upheld summary judgment rulings in favor of Title IX funding recipients.[3] Both cases noted the absence of further harassment after the plaintiffs made reports of sexual assault or harassment.[4] The Court found that although these cases noted the absence of further harassment, they did not stand for the proposition that the actual occurrence of further harassment is a necessary requirement of a Title IX claim because (1) the cases discussed the lack of further harassment to emphasize the lack of deliberate indifference, rather than as a standalone element; (2) the cases described the lack of further harassment as “significant, ” but did not state that it was an express element of a Title IX claim; (3) the Circuit simply distinguished an Eleventh Circuit case that allowed a Title IX claim to go forward without allegations of further harassment, rather than rejecting its approach; and (4) courts that have directly addressed the issue have held that Davis requires that the funding recipient's deliberate indifference leave the student “liable or vulnerable to” further harassment, not that further harassment actually occur.[5]Accordingly, the Court denied KSU's motion to dismiss Plaintiff's Title IX claim, finding that it was enough that Plaintiff alleged KSU's deliberate indifference made her “liable or vulnerable to” further harassment and deprived her of access to educational opportunities, rather than alleging the assailant actually harassed her further following her report.

         II. Legal Standards

         The court of appeals may hear appeals from all final decisions of the district courts of the United States and certain interlocutory orders involving injunctions, appointing receivers and determining rights in admiralty cases.[6] With regard to other interlocutory orders, a district judge may certify an interlocutory order when she is of the opinion that (1) such order involves a controlling question of law; (2) a substantial ground for difference of opinion exists with respect to the question of law; and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation.[7] The Court retains discretion to certify an interlocutory order for appeal under section 1292(b).[8] Such certification is “limited to extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate and final decision of controlling questions encountered early in the action.”[9]

         Certification of appeal under section 1292(b) does not automatically stay proceedings in the district court.[10] District courts, however, have discretion to determine whether to stay proceedings pending disposition of an interlocutory appeal.[11]

         III. Discussion

         A. Interlocutory Appeal

         KSU argues that interlocutory appeal of the Court's Memorandum and Order denying KSU's motion to dismiss is justified under § 1292(b) because the further harassment issue is a controlling question of law, there is a substantial ground for difference of opinion, and appeal of the Order may materially advance the ultimate termination of the litigation. Plaintiff, by contrast, argues each of these elements weighs in favor of denying interlocutory appeal. The Court addresses each element in turn.

         1. Controlling Question of Law

         KSU requests certification for appeal of the “purely legal question of whether Ms. Farmer is required to plead facts demonstrating that K-State's alleged deliberate indifference caused ‘further harassment[.]'”[12] As the Court explained in its Memorandum and Order, the parties did not dispute that Plaintiff alleged a deprivation of her educational access and that the funding recipient's deliberate indifference left her liable or vulnerable to further harassment.[13] The parties also did not dispute that Plaintiff did not allege “further harassment, in the strictest sense, at the hands of the alleged assailant after her report of sexual harassment.”[14] The Court was therefore “left with the purely legal question” whether Plaintiff must allege that further harassment actually occurred after the funding recipient was on notice of the initial harassment, or whether it was enough that she alleged KSU's deliberate indifference made her liable or vulnerable to further harassment and deprived her of educational access.[15] The Court found that Plaintiff presented a plausible Title IX claim by alleging KSU's deliberate indifference made her liable or vulnerable to further harassment and deprived her of educational access, and the Court rejected KSU's contention that Plaintiff needed to allege that she indeed suffered further harassment after her report.

         The Court finds that the issue of whether Plaintiff must plead that she suffered actual further harassment after she reported her sexual assault to KSU is a controlling question of law. If Plaintiff must indeed allege actual further harassment as a discrete element, her Title IX claim fails because Plaintiff did not allege actual further harassment, but instead alleged and argued that KSU's lack of response made her “liable or vulnerable” to harassment and deprived her of access to educational opportunities.[16]

         Plaintiff argues in response to KSU's motion for certificate of appeal that she in fact did allege further harassment after her report of assault, including allegations concerning “the fear she experienced sharing a campus with the assailant, living in a state of hypervigilance, ” and her encounter with “T.R., the student who left her in his room, with the assailant hiding in his closet, for her to be raped, which caused her to experience intense panic and hysterical crying.”[17]Plaintiff did not make this argument in responding to KSU's motion to dismiss, but instead argued that she need only allege KSU's deliberate indifference made her liable or vulnerable to harassment. The Court therefore did not address whether these allegations met the definition of further harassment in ruling on the motion to dismiss.

         In any event, the Court is not convinced that the allegations Plaintiff points to would satisfy pleading requirements if indeed Plaintiff is required to allege that KSU's deliberate indifference caused actual further harassment. Plaintiff's allegations reflect the trauma a sexual assault survivor inevitably experiences in encountering an assailant and being at risk of further assault or harassment, but they do not reflect that Plaintiff was actually further sexually assaulted or affirmatively harassed.[18] Certainly, Plaintiff's allegations bolster her claim that KSU's deliberate indifference made her “liable or vulnerable to” harassment and caused a deprivation of educational access. But if the rule of law is that Title IX requires Plaintiff to allege that KSU's lack of response caused her to be sexually assaulted or harassed again after her report of assault, as KSU contends, then her allegations do not satisfy this rule. Accordingly, the Court finds that the issue of whether Plaintiff must allege she suffered further harassment after her report of sexual assault as a result of KSU's deliberate indifference is a controlling question of law.

         2. Substantial Ground for Difference of Opinion

         For a substantial ground for difference of opinion to exist, it is not enough that the issue is one of first impression, or that the only other case on point reached an opposite conclusion.[19]Rather, this standard implies that the question “is difficult, novel, and either a question on which there is little precedent or one whose correct resolution is not substantially guided by previous decisions.”[20] This Court has previously found that a substantial ground for difference of opinion existed where a party presented “colorable arguments” in support of its alternative position.[21]

         The Court is confident that its analysis of the further harassment issue is accurate. As the Supreme Court explained in Davis, to give rise to a Title IX claim a funding recipient's “deliberate indifference must, at a minimum, ‘cause [students] to undergo' harassment or ‘make them liable or vulnerable' to it.”[22] Here, Plaintiff presented multiple allegations that KSU's deliberate indifference following her report of sexual assault made her liable or vulnerable to harassment and deprived her of educational access. For example, Plaintiff alleged that because of KSU's deliberate indifference and her ongoing fear of encounters with the assailant on campus, she missed classes, withdrew from campus leadership roles, and engaged in self-destructive behaviors including self-medicating with excessive amounts of alcohol and cutting her wrists.

         As the Tenth Circuit stated in Rost, a plaintiff who alleges that a school is deliberately indifferent in response to a report of sexual harassment or assault likely has a Title IX claim if the student “expresse[s] interest in returning to the school [following the harassment or assault] and school officials [do not] provide a safe educational environment.”[23] Plaintiff has alleged here that KSU's deliberate indifference compromised her safety on campus.[24] The Court is thus satisfied that Plaintiff has stated a plausible Title IX claim by alleging that KSU's deliberate indifference made her liable or vulnerable to further harassment and denied her access to educational benefits. The Court is not convinced that Plaintiff's claim fails simply because she did not allege she in fact suffered further harassment or another assault following her report to KSU.[25]

         KSU, however, points to several cases that it argues stand for the proposition that a Title IX plaintiff must allege further harassment actually occurred following a report of harassment.[26]As Plaintiff argues, rather than adopting a distinct further harassment requirement, several of these cases can be read as simply (1) acknowledging a requirement of either “further harassment or deprivation of rights;”[27] or (2) addressing further harassment as a factor in determining whether the defendant was deliberately indifferent.[28] Furthermore, as the Court explained in its Memorandum and Order, several courts have held that Davis requires that ...


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