Argued: March 20, 2019
from the United States District Court for the Western
District of Michigan at Grand Rapids. No. 1:15-cv-01191-Paul
Lewis Maloney, District Judge.
Michael E. Baughman, PEPPER HAMILTON LLP, Philadelphia,
Pennsylvania, for Appellants.
Alexander S. Zalkin, THE ZALKIN LAW FIRM, P.C., San Diego,
California, for Appellees.
Michael E. Baughman, Hedya Aryani, PEPPER HAMILTON LLP,
Philadelphia, Pennsylvania, for Appellants.
Alexander S. Zalkin, THE ZALKIN LAW FIRM, P.C., San Diego,
California, for Appellees. Seanna R. Brown, BAKER &
HOSTETLER LLP, New York, New York, for Amicus Curiae.
Before: BATCHELDER, ROGERS, and THAPAR, Circuit Judges.
M. BATCHELDER, CIRCUIT JUDGE.
victim of "student-on-student sexual harassment"
has a private cause of action against the school under Title
IX of the Education Amendments of 1972 (Title IX), 86 Stat.
373, codified as 20 U.S.C. § 1681, et seq.,
based on the formula first set out in Davis v. Monroe
County Board of Education, 526 U.S. 629 (1999). Under
that formula, the sexual harassment must meet a certain
standard and the evidence must satisfy the elements for an
intentional tort. Our particular focus in this appeal is on
the requirements that the harassment must be
"pervasive" and the school's response must
"cause" the injury. In short, we hold that a
student-victim plaintiff must plead, and ultimately prove,
that the school had actual knowledge of actionable sexual
harassment and that the school's deliberate indifference
to it resulted in further actionable sexual harassment
against the student-victim, which caused the Title IX
injuries. A student-victim's subjective dissatisfaction
with the school's response is immaterial to whether the
school's response caused the claimed Title IX violation.
Because none of the plaintiffs in this case suffered any
actionable sexual harassment after the school's
response, they did not suffer "pervasive" sexual
harassment as set out in Davis and they cannot meet
the causation element. We also find that the individual
defendant is entitled to qualified immunity. Altogether, we
REVERSE the district court's order and REMAND for entry
of a final judgment dismissing these claims.
lawsuit stems from four student-on-student sexual assaults at
Michigan State University. In each case, a male student
sexually assaulted a female student and she reported it to
campus police and to the proper administrative authorities,
which undertook a response beginning with an investigation.
The plaintiffs are the female student victims: Emily
Kollaritsch, Shayna Gross, Jane Roe 1, and Jane Roe 2. But
this lawsuit is not about the sexual assaults, nor is it
directed at the perpetrators; it is directed at the
University administration and its response. The plaintiffs
contend that the administration's response was
inadequate, caused them physical and emotional harm, and
consequently denied them educational opportunities. They sued
the Michigan State University Board of Trustees (hereinafter
"MSU") and Vice President for Student Affairs
Denise Maybank, among several others, claiming violations of
Title IX, Due Process and Equal Protection under 42 U.S.C.
§ 1983, and Michigan law.
defendants moved to dismiss the claims pursuant to Federal
Rule of Civil Procedure 12(b)(6). Following a hearing and the
plaintiffs' withdrawal of several claims, the district
court dismissed all but four claims: the claims by
Kollaritsch, Gross, and Roe 1 that MSU violated Title IX, and
the § 1983 claim by Gross that Maybank violated her
right to equal protection. See Kollaritsch v. Mich. State
Univ. Bd. of Tr., 298 F.Supp.3d 1089, 1096 (W.D. Mich.
filed an interlocutory appeal of the district court's
denial of her assertion of qualified immunity. See
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (providing
a defendant the right to an interlocutory appeal of the
"denial of a claim of qualified immunity, to the extent
that it turns on an issue of law"). Meanwhile, MSU moved
the district court to certify its order for interlocutory
appeal pursuant to 28 U.S.C. § 1292(b) (providing for
interlocutory appeal of qualifying issues at the courts'
discretion) and, upon certification, moved this court to
permit the appeal. We granted the motion, explaining that
"whether a plaintiff must plead further acts of
discrimination to allege deliberate indifference to
peer-on-peer harassment under Title IX" is a controlling
question of law warranting immediate appeal. We consolidated
procedural posture, a § 1292(b) interlocutory appeal
such as this one is unusual in that it arises from a denial
rather than a grant of a Rule 12(b)(6) motion to dismiss the
complaint, so "we are not governed by the Rule 12(b)(6)
standard of review" for granted motions. Foster
Wheeler Energy Corp. v. Metro. Knox Solid Waste Auth.,
Inc., 970 F.2d 199, 202 (6th Cir. 1992). This is a
review "limited to pure questions of law."
Id.; but see Yamaha Motor Corp., U.S.A. v.
Calhoun, 516 U.S. 199, 205 (1996) (explaining that we
are not limited to only the specifically certified
question but may "address any issue fairly
included within the certified order"). We do not make
any determination of any facts, even by implication; the
analyses and decisions herein leave all questions of fact
unresolved and all allegations still merely alleged. See
Sheet Metal Emp'rs Indus. v. Absolut Balancing
Co., 830 F.3d 358, 361 (6th Cir. 2016). This same
limitation applies to the facts accepted as true for purposes
of our deciding the qualified-immunity claim.
design and effect, the Davis Court's Title IX
private cause of action against a school for its response to
student-on-student sexual harassment is a "high
standard" that applies only "in certain limited
circumstances." Davis, 526 U.S. at 643. The
school is "properly held liable in damages only where
[it is] deliberately indifferent to sexual harassment, of
which [it] has actual knowledge, that is so severe,
pervasive, and objectively offensive that it can be said to
deprive the victims of access to the educational
opportunities or benefits provided by the school."
Id. at 650.
we state the Davis standard as a three-element test
and ordinarily that is enough. But, even without the careful
parsing that follows, the Davis formula clearly has
two separate components, comprising separate-but-related
torts by separate-and-unrelated tortfeasors: (1)
"actionable harassment" by a student, id.
at 651-52; and (2) a deliberate-indifference intentional tort
by the school, id at 643. The critical point here is
that the Davis formulation requires that the school
had actual knowledge of some actionable sexual harassment and
that the school's deliberate indifference to it resulted
in further actionable harassment of the student-victim.
Sexual Harassment. We can conservatively describe
"harassment," without additional qualification, as
some type of aggressive and antagonistic behavior that, from
the victim's perspective, is uninvited, unwanted, and
non-consensual. For student-on-student sexual harassment to
be actionable under Davis's Title IX
private-cause-of-action formulation, it must be (a) severe,
(a) pervasive, and (c) objectively offensive. Id. at
651; see, e.g., Pahssen v. Merrill
Cmty. Sch. Dist., 668 F.3d 356, 363 (6th Cir. 2012)
(holding that harassment comprising a shove into a locker, an
"obscene sexual gesture," and a "request for
oral sex" did "not rise to the level of severe,
pervasive, and objectively offensive conduct" (quotation
means something more than just juvenile behavior among
students, even behavior that is antagonistic, non-consensual,
and crass. The Davis Court made an explicit
admonishment that "simple acts of teasing and
name-calling" are not enough, "even where these
comments target differences in gender." Davis,
526 U.S. at 651; 652 ("It is not enough to show . . .
that a student has been teased or called offensive
names." (quotation marks and editorial marks
means "systemic" or "widespread,"
id. at 652-53, but for our purposes, it also means
multiple incidents of harassment; one incident of
harassment is not enough. Id. (explaining that this
cause of action does not cover "claims of official
indifference to a single instance of one-on-one peer
harassment"). The Davis Court hypothesized that
a single incident could be sufficiently severe that
it would result in the articulated injury-and we do not doubt
that a sexual assault would be such a severe incident-but the
Court held that a single incident would nonetheless fall
short of Title IX's requirement of "systemic"
harassment. As the Court put it:
Although, in theory, a single instance of sufficiently severe
one-on-one peer harassment could be said to have such an
effect, we think it unlikely that Congress would have
thought such behavior sufficient to rise to this level in
light of the inevitability of student misconduct and the
amount of litigation that would be invited by entertaining
claims of official indifference to a single instance of
one-on-one peer harassment. By limiting private damages
actions to cases having a systemic effect on
educational programs or activities, we reconcile the general
principle that Title IX prohibits official indifference to
known peer sexual harassment with the practical realities of
responding to student behavior, realities that Congress could
not have meant to be ignored.
Id. at 652-53 (emphasis added). The Davis
dissent offered its view of this passage, which the majority
did not dispute: "The majority appears to intend [the
pervasiveness] requirement to do no more than exclude the
possibility that a single act of harassment perpetrated by
one student on one other student can form the basis for an
actionable claim." Id. at 677 (Kennedy, J.,
dissenting). That a single incident is insufficient on its
own to state a claim correspondingly adds further support to
the requirement that at least one more (further)
incident of harassment, after the school has actual knowledge
and implements a response, is necessary to state a
offensive" means behavior that would be offensive to a
reasonable person under the circumstances, not merely
offensive to the victim, personally or subjectively.
Id. at 651. "Whether gender-oriented conduct
rises to the level of actionable harassment thus depends on a
constellation of surrounding circumstances, expectations, and
relationships, including, but not limited to, the ages of the
harasser and the victim and the number of individuals
involved." Id. (quotation marks omitted). The
victim's perceptions are not determinative. "Indeed,
the [Davis majority] . . . suggests that the