Case 3:16-cv Document 35 Filed 03/23/16 Page 1 of 31 PageID #: 2134

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1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION ) Jane Doe, I et. al., ) ) Plaintiffs, ) Case 3:16-cv ) v. ) Judge Aleta Trauger ) ) JURY DEMAND The University of Tennessee, ) ) Defendant. ) PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANT S MOTION TO DISMISS DAVID RANDOLPH SMITH & ASSOCIATES David Randolph Smith TN BPR# Dominick R. Smith, TN BPR # W. Lyon Chadwick, TN BPR # Christopher W. Smith, TN BPR # st Avenue South Nashville, Tennessee (615) telephone (615) fax drs@drslawfirm.com dom@drslawfirm.com lyon@drslawfirm.com csmith@drslawfirm.com Attorneys for Plaintiffs Case 3:16-cv Document 35 Filed 03/23/16 Page 1 of 31 PageID #: 2134

2 TABLE OF CONTENTS Table of Contents...ii Table of Authorities...iii Background & Procedural History...1 Argument...3 I. Plaintiffs have sufficiently stated before claims based on Gebser. [p. 3] a. Actual knowledge is not required in Title IX cases alleging an official policy of the funding recipient. [p. 3] b. Even if actual knowledge is required, Plaintiffs have pleaded with particularity facts establishing: 1) UT s knowledge of the significant increase in reported sexual assaults at UT over the years; and 2) that UT was on notice that its responses to, and policies regarding, sexual assaults were deficient, which created a substantial risk of abuse to students, including Plaintiffs. [p. 9] i. Actual Knowledge is not individual-specific knowledge. [p. 9] ii. Plaintiffs have established that: 1) UT had knowledge that its remedial efforts were ineffective; and 2) UT possessed enough knowledge of sexual assaults, especially by UT athletes, that UT could have responded reasonably to remedy the problem. [p. 11] II. Plaintiff Jane Doe I s claims are not barred by the statute of limitations because Plaintiff Doe I timely entered into a tolling agreement within one year from the date of her educational deprivation, which is the crucial element of a Title IX injury. [p. 13] III. Plaintiff V has stated a claim under Title IX for third-party retaliation. [p. 15] IV. Plaintiff Jane Doe VIII has not pleaded an after case and has standing to seek injunctive and declaratory relief. [p. 18] V. Plaintiffs have standing to seek injunctive and declaratory relief. [p. 19] VI. Plaintiffs can properly seek injunctive and declaratory relief under Title IX irrespective of a separate cause of action for preemption. [p. 22] VII. TUAPA violates Title IX and is preempted by Title IX and the Campus SaVE Act. [p. 23] VIII. The remaining Motions to Strike are untimely and without merit. [p. 25] Conclusion...25 Certificate of Service...26 Case 3:16-cv Document 35 Filed 03/23/16 Page 2 of 31 PageID #: 2135

3 TABLE OF AUTHORITIES Cases Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct (2015) Ashcroft v. Iqbal, 556 U.S. 662 (2009)... 3 Auer v. Robbins, 519 U.S. 452 (1997)... 23, 24 Belcher v. Robertson County, 2014 U.S. Dist. LEXIS (M.D. Tenn. Nov. 26, 2014)...11 Barry v. Corrigan, 79 F. Supp. 3d 712, (E.D. Mich. 2015) Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)... 2, 3 Biediger v. Quinnipiac University, 928 F. Supp. 2d 414 (D. Conn. 2013)... 23, 24 Bowman v. KISAN, LLC, 2014 U.S. Dist. LEXIS (M.D. Tenn. Nov. 19, 2014) Cannon v. University of Chicago, 441 U.S. 677 (1979)... 2, 18, 22 Cmtys. for Equity v. Mich. High Sch. Ath. Ass'n, 459 F.3d 676 (6th Cir. 2006)... 19, 21 Condiff v. Hart County School District, 770 F. Supp. 2d 876 (W.D. Ky. 2011)... 6, 7 Conley v. Gibson, 355 U.S. 41 (1957)... 2 Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625 (6th Cir. 2009)... 3 Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)... passim Delgado v. Stegall, 367 F.3d 668 (7th Cir. Ill. 2004) Dibbern v. Univ. of Mich., No , 2013 U.S. Dist. LEXIS (E.D. Mich. Nov. 18, 2013) Directv, Inc. v. Treesh, 487 F.3d 471 (6th Cir. 2007)... 2 Doe v. Bibb County School District, 83 F. Supp. 3d 1300 (M.D. Ga. 2015)... 7 Doe v. Brown Univ., 2016 U.S. Dist. LEXIS (D.R.I. Feb. 22, 2016) Doe v. Claiborne County, 103 F.3d 495 (6th Cir. Tenn. 1996)... 2, 19 Doe v. Rutherford County, No. 3:13-cv-00328, 2014 U.S. Dist. LEXIS (M.D. Tenn. Aug. 18, 2014) Doe v. Salisbury Univ., 107 F. Supp. 3d 481 (D. Md. 2015)...15 Faulkner v. University of Tennessee, 1994 Tenn. App. LEXIS 651(Tenn. Ct. App. Nov. 16, 1994) Gebser v. Lago Vista Independent School District, 524 U.S. 274 (U.S. 1998)... passim Guardians Ass'n v. Civil Serv. Comm'n, iii Case 3:16-cv Document 35 Filed 03/23/16 Page 3 of 31 PageID #: 2136

4 103 S. Ct (U.S. 1983) Hawkins v. Anheuser-Busch, Inc., 517 F.3d 345 (6th Cir. 2008)... 16, 18 Inge v. Rock Fin. Corp., 281 F.3d 613 (6th Cir. 2002)... 2 Karasek v. Regents of the Univ. of Cal., 2015 U.S. Dist. LEXIS (N.D. Cal. Dec. 11, 2015) Klemencic v. Ohio State University, 263 F.3d 504 (6th Cir. 2001)... 5, 6 Lopez v. Metro. Government, 646 F. Supp. 2d 891 (M.D. Tenn. 2009) Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) Mann v. University of Cincinnati, 864 F. Supp. 44 (S.D. Ohio 1994) Mansourian v. Regents of the University of California, 602 F.3d 957 (9th Cir. 2010)... 4, 24 Ollier v. Sweetwater Union High School District, 768 F.3d 843 (9th Cir. 2014)... 15, 17, 19 Parker v. Franklin County Community School Corporation, 667 F.3d 910, 921 (7th Cir. 2012)... 4 Patterson v. Hudson Area Schools, 551 F.3d 438 (6th Cir. 2009)... 9, 10 Pederson v. Louisiana State University, 213 F.3d 858, 882 (5th Cir. 2000)... 4 S.S. v. Alexander, 177 P.3d 724 (Wn. App. 2008) Simpson v. University of Colorado, 500 F.3d 1170 (10th Cir. 2007)... passim Staehling v. Metro. Government, 2008 U.S. Dist. LEXIS (M.D. Tenn. Sept. 12, 2008)... 10, 11, 13 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)... 2 T.L. v. Sherwood, 68 F. Supp. 3d 1295 (D. Or. 2014)... 16, 17 Tubbs v. Stony Brook University, 2016 U.S. Dist. LEXIS (S.D.N.Y. Mar. 4, 2016)... 3, 5 Varlesi v. Wayne State Univ., No , 2016 U.S. App. LEXIS 4385 (6th Cir. Mar. 7, 2016)...15 Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208(10th Cir. 2014) W.H. v. Tenn. Dep't of Educ., 2016 U.S. Dist. LEXIS 7206 (M.D. Tenn. Jan. 20, 2016)... 2 Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. N.Y. 1994) iv Case 3:16-cv Document 35 Filed 03/23/16 Page 4 of 31 PageID #: 2137

5 Other Authorities Article, Eradicating Student-Athlete Assault of Women: Section 1983 and Personal Liability Following Fitzgerald v. Barnstable, 2009 Mich. St. L. Rev. 629, 648 (2009)... 5 Note: Simpson v. University of Colorado: Title IX Crashes the Party in Collegiate Recruiting, 58 DEPAUL L. REV. 153, (2008)... 5 Michael A. Messner (2005) The triad of violence in men s sports, in E. Buchwald, P. R. Fletcher & M. Roth, eds. TRANSFORMING A RAPE CULTURE (Milkweed Editions)...8 William A. Kaplin, Typology and Critique of Title IX Sexual Harassment Law After Gebser and Davis, 26 J.C. & U.L. 615, 638 (Spring 2000) Rules Rule 12(b)(6)... 2 Rule 12(f) Regulations 34 CFR 106.8(b) CFR (b) (2000)... 23, 24 U.S. Department of Education Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, or Third Parties (2001) Unreported Cases Belcher v. Robertson County, 2014 U.S. Dist. LEXIS (M.D. Tenn. Nov. 26, 2014)...11 Bowman v. KISAN, LLC, 2014 U.S. Dist. LEXIS (M.D. Tenn. Nov. 19, 2014) Dibbern v. Univ. of Mich., No , 2013 U.S. Dist. LEXIS (E.D. Mich. Nov. 18, 2013) Doe v. Brown Univ., 2016 U.S. Dist. LEXIS (D.R.I. Feb. 22, 2016) Doe v. Rutherford County, No. 3:13-cv-00328, 2014 U.S. Dist. LEXIS (M.D. Tenn. Aug. 18, 2014) Faulkner v. University of Tennessee, 1994 Tenn. App. LEXIS 651(Tenn. Ct. App. Nov. 16, 1994) Karasek v. Regents of the Univ. of Cal., 2015 U.S. Dist. LEXIS (N.D. Cal. Dec. 11, 2015) Staehling v. Metro. Government, 2008 U.S. Dist. LEXIS (M.D. Tenn. Sept. 12, 2008)... 10, 11, 13 Tubbs v. Stony Brook University, 2016 U.S. Dist. LEXIS (S.D.N.Y. Mar. 4, 2016)... 3, 5 Varlesi v. Wayne State Univ., No , 2016 U.S. App. LEXIS 4385 (6th Cir. Mar. 7, 2016)...15 W.H. v. Tenn. Dep't of Educ., 2016 U.S. Dist. LEXIS 7206 (M.D. Tenn. Jan. 20, 2016)... 2 v Case 3:16-cv Document 35 Filed 03/23/16 Page 5 of 31 PageID #: 2138

6 Plaintiffs, by and through counsel, respectfully submit this Response in Opposition to the Defendant University of Tennessee s ( UT ) Motion to Dismiss. BACKGROUND & PROCEDURAL HISTORY This case is a Title IX action for declaratory, injunctive and monetary relief for injuries Plaintiffs Jane Does I-VIII sustained as a result of long standing policies, acts and omissions of UT relating to sexual assaults involving male UT football and basketball players. 1 The Title IX lawsuit avers UT violated Title IX by its own actions, policies and customs of: direct interference with the disciplinary process in favor of male athletes who were accused of sexual assaults; direct encouragement of environments that encouraged underage drinking, drug use and sexual assault; unlawful discrimination against victims of sexual assault; and intentional misuse of a one-sided and inequitable Tennessee Uniform Administrative Procedures Act ( TUAPA ) procedure. 2 The suit further alleges UT had actual notice (and itself created) a long-standing, severely hostile sexual environment of rape by male athletes (particularly football players) and retaliation by UT employees that was condoned and completely unaddressed by UT officials. 3 UT now moves for a partial dismissal 4 of certain portions of the amended complaint for failure to state a claim; Plaintiffs before theory Title IX claims; Plaintiffs V and VIII s after claims; Plaintiff I s before claim on limitations grounds; the claim for injunctive relief based upon an alleged lack of standing; and Plaintiffs claim for preemption of TUAPA. 5 UT has also moved, 1 ECF 22, 1. 2 ECF 22, 2, 3, 4, 6, 7, 9, 23, 24, 41, 53 and passim. 3 Id. at 3, 9, 53, 309, 311 (e), (p), (q), 370, 380 and passim. UT is therefore simply incorrect in its assertion that Plaintiffs did not plead the required element of actual notice. ECF 32, p. 4. UT presents an entirely incorrect and crabbed interpretation that actual notice must be perpetrator or victim specific. Cf. United States v. Page, 167 F.3d 325, 329 (6th Cir. Ohio 1999) ( [Defendant s] crabbed interpretation would prevent the statute from reaching precisely the type of situation for which a federal domestic violence statute would be needed and that 2261(a)(2) was intended to cover. ). Compare Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 296 (U.S. 1998) ( We have already noted that the text of Title IX should be accorded "'a sweep as broad as its language ). 4 ECF UT does not move to dismiss: Plaintiffs I IV, VI, or VII s after Title IX claims under Count I (Tile IX liability); or Plaintiffs claims for injunctive relief for violations of Title IX (Count II). UT s renewed motion to dismiss for improper venue (ECF 32, p. 4) is not addressed in this filing, since Plaintiffs have fully briefed this issue in other filings, especially their Sur-Reply (ECF 34). Although UT seeks to dismiss Count III (preemption claim), as there is no private cause of action for preemption or enforcement of the Supremacy clause, this argument and motion fails because Plaintiffs, indisputably, have a private right of action to sue for injunctive relief to enforce Title IX (and any violations of federal law under Title IX by UT). Each Plaintiff has pleaded that cause of action (under Count II) and has further pleaded the paragraphs of Counts II and III as part and parcel of their substantive claim for violation of their Title IX rights and in their 1 Case 3:16-cv Document 35 Filed 03/23/16 Page 6 of 31 PageID #: 2139

7 albeit once again in an untimely and procedurally defective manner, to strike certain paragraphs of the amended complaint. As shown herein: Plaintiffs have properly pleaded a cognizable before Title IX claim for monetary relief; Plaintiff V has a valid Title IX retaliation claim; Plaintiff VIII did not plead an after claim for monetary damages, but has standing to sue for injunctive relief (as do the other Plaintiffs); Plaintiff I s before claim is not barred by limitations; Plaintiffs have standing to sue for injunctive relief as a Title IX remedy irrespective of the lack of a cause of action for preemption and injunctive relief is proper under Title IX because UT has (and continues) to violate Title IX and federal law that conflicts with UT s TUAPA procedure. Accordingly, UT s partial motion to dismiss should be denied in all respects. Likewise, UT s motion to strike paragraphs of the amended complaint based upon the purported non-viability of the before theory should be denied. LEGAL STANDARD UNDER RULE 12(B)(6) In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff. 6 The Federal Rules of Civil Procedure require only that a plaintiff provide a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. 7 The court must determine only whether the claimant is entitled to offer evidence to support the claims, not whether the plaintiff can ultimately prove the facts alleged. 8 The complaint's allegations, however, must be enough to raise a right to relief above the speculative level. 9 To establish the facial plausibility required to unlock the doors of claim and prayer for injunctive relief. Am. Compl. (ECF 22) at 68-69; 343 at 71; 353 at 73; 361 at 76; 369 at 78; 378 at 81; 387 at 83; 394 at 85 and at 85 d. Doe v. Claiborne County, 103 F.3d 495, 513 (6th Cir. Tenn. 1996) ( It is unquestionable that Doe has a private right of action under Title IX, see Cannon v. University of Chicago, 441 U.S. 677, , 60 L. Ed. 2d 560, 99 S. Ct (1979), for both injunctive relief and monetary damages ). Simply put, it matters not that there is no private cause of action for preemption under the Supremacy Clause because Plaintiffs have cognizable claims for injunctive relief under Cannon v. University of Chicago. The paragraphs of Count III should remain in the complaint as part of Count II and the pleaded claims for each Jane Doe ( at 68-69; 343 at 71; 353 at 73; 361 at 76; 369 at 78; 378 at 81; 387 at 83; 394 at 85). 6 Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002); W.H. v. Tenn. Dep't of Educ., 2016 U.S. Dist. LEXIS 7206, *20-21 (M.D. Tenn. Jan. 20, 2016). 7 Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). 8 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)) 9 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). 2 Case 3:16-cv Document 35 Filed 03/23/16 Page 7 of 31 PageID #: 2140

8 discovery, the plaintiff cannot rely on legal conclusions or [t]hreadbare recitals of the elements of a cause of action, but, instead, the plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. 10 Only a complaint that states a plausible claim for relief survives a motion to dismiss. 11 Moreover, a court cannot dismiss for factual implausibility even if it strikes a savvy judge that... recovery is very remote and unlikely. 12 ARGUMENT I. Plaintiffs have sufficiently stated before claims based on Gebser. 13 a. Actual Knowledge is not required in Title IX cases alleging an official policy of the funding recipient. UT s argument in its Motion to Dismiss simply reads crucial language out of Supreme Court precedent (ECF 32, p. 4 5). Gebser v. Lago Vista Independent School District, which announced the actual knowledge requirement, qualified that requirement in cases involving an official policy by the funding recipient: [I]n cases... that do not involve official policy of the recipient entity, we hold that a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond. 14 In Davis v. Monroe County Board of Education, the Supreme Court reiterated this limitation from Gebser on the actual knowledge requirement, reasoning: The high standard imposed in Gebser sought to eliminate any risk that the recipient would be liable in damages not for its own official decision but instead for its employees' independent actions Ashcroft v. Iqbal, 556 U.S. 662, , 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). 11 Id. at 679; Twombly, 550 U.S. at Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 630 (6th Cir. 2009) (quoting Twombly, 550 U.S. at 556). 13 UT unfairly (and immaterially) charges the Plaintiffs with making irrelevant salacious allegations" (ECF 32). In a Title IX before case the details of the sexual assault are properly set forth to establish the Plaintiff s damages for pain, suffering, mental anguish and emotional distress. See e.g. Compl. Tubbs v. Stony Brook Univ., Case No. 7:15-cv NSR-PED (Jan. 23, 2015) (ECF 1, 28) (Tubbs forced her to perform oral sex on him at least twice, once by pushing her down and holding her head to his penis, and once by pinning her on the bed with his knees against her shoulders and then forcing his penis into her mouth. ). Available at: (last accessed March 22, 2016) U.S. 274, 290 (U.S. 1998) (emphasis added) U.S. 629, (U.S. 1999) (citing Gebser at ) (emphasis added). 3 Case 3:16-cv Document 35 Filed 03/23/16 Page 8 of 31 PageID #: 2141

9 The unmistakable corollary of the Supreme Court s reasoning is that, where a funding recipient s own official policy or official decision caused the Title IX injury, the high standard announced in Gebser is inapplicable. 16 The Tenth Circuit reached this conclusion in Simpson v. University of Colorado ( we do not think that the notice standards established for sexual-harassment claims in Gebser and Davis necessarily apply in this circumstance 17 ). The Ninth Circuit, in Mansourian v. Regents of the University of California, reached the same conclusion: Gebser does not make pre-litigation notice of an alleged violation a prerequisite to recovery in every Title IX case, or even in every sexual harassment case. Proof of actual notice is required only when the alleged Title IX violation consists of an institution s deliberate indifference to acts that do not involve official policy of the recipient entity. 18 The Seventh Circuit, in Parker v. Franklin County Community School Corporation, considered a case in which the plaintiffs alleged that the defendants violated Title IX by scheduling girls' highschool basketball games during less favorable times than boys' games. 19 The Parker Court did not, however, proceed by analyzing whether the defendants had actual notice that the scheduling of girls basketball games was discriminatory, and responded with deliberate indifference. Instead, it noted that the case may present an even easier case than deliberate indifference because the actions at issue here are easily attributable to the funding recipient, and thus, always by definition intentional. 20 Similarly, the Fifth Circuit, in Pederson v. Louisiana State University, held that female athletes who were provided unequal athletic opportunities at LSU could recover damages because LSU's discrimination was intentional. Rejecting LSU's reliance on Gebser and Davis, it explained that in the instant case, it is the institution itself that is discriminating. The proper test is not whether it knew of or is responsible for the actions of others, but is whether Appellees intended to treat women differently on the basis of their sex by providing them unequal athletic opportunity UT errs in arguing that Plaintiffs seek to impose a standard of mere negligence. ECF 32, p. 1. UT is liable for monetary damages under Gebser for its own intentional policies and customs. 526 U.S. 629, (U.S. 1999) (citing Gebser at ) F.3d 1170, 1177 (10th Cir. 2007) F.3d 957, 967 (9th Cir. 2010) (citing Gebser at ) (emphasis added) F.3d 910, 921 (7th Cir. 2012) (citing Jackson v. Birmingham Bd. of Educ, 544 U.S. 167, (2005)). 20 Id F.3d 858, 882 (5th Cir. 2000) (emphasis added). 4 Case 3:16-cv Document 35 Filed 03/23/16 Page 9 of 31 PageID #: 2142

10 In the past few weeks, a District Court, in Tubbs v. Stony Brook University, applied Simpson and denied the defendant s Rule 12(b)(6) motion to dismiss a before Title IX claim. 22 Tubbs is instructive for interpreting Simpson as a kind of heightened pleading standard, whereby a plaintiff may allege a before case based on knowledge of an increase in sexual assaults on campus combined with notice that policies and responses to sexual assaults are deficient and a subsequent failure to remedy the deficiencies. 23 Notably, the Court in Tubbs relied in part upon this very Court s opinion in Mathis v. Wayne County Bd. of Educ., in which the past harassment did not involve the plaintiff or perpetrators with a known history of misconduct. This Court nevertheless held that a reasonable jury could, therefore, conclude that, based on all of the testimony and circumstances, someone in Sisk's position would know enough about sexual harassment of younger players on the team to step in and attempt to effectively address the problem. 24 UT argues that the Sixth Circuit would reject Simpson, but this argument simply overlooks that Simpson itself follows inexorably from the Supreme Court s rulings in Gebser and Davis. 25 More fundamentally, this argument suggests, incorrectly, that the Sixth Circuit has definitively ruled on the issue, when in fact is has not. For example, UT relies on Klemencic v. Ohio State University for the proposition that a school would be liable only if it received actual notice of harassment and responded to it with deliberate indifference. 26 This is a true enough 22 Tubbs v. Stony Brook Univ., 2016 U.S. Dist. LEXIS 28465, *20 30 (S.D.N.Y. Mar. 4, 2016). 23 Id. at *29. See also Note: Simpson v. University of Colorado: Title IX Crashes the Party in Collegiate Recruiting, 58 DEPAUL L. REV. 153, (2008) ( Under the Tenth Circuit's analysis, the focus shifts away from questions as to whether CU had actual notice of the harassment. Instead, the inquiry hinges on whether the University had notice that its training or supervision was inadequate in light of a known risk that was substantially certain to materialize if not addressed. Under those circumstances, the challenge of establishing a Title IX violation is more surmountable... In articulating its modified approach to Title IX liability, the Tenth Circuit pointed out that actual notice and insufficient response requirements do not apply to cases involving official policies of educational institutions. ); Article, Eradicating Student-Athlete Assault of Women: Section 1983 and Personal Liability Following Fitzgerald v. Barnstable, 2009 Mich. St. L. Rev. 629, 648 (2009)( Simpson's significance also lies, in part, in the court's finding that Title IX liability may arise where harassment has already occurred and there exists a substantial certainty that it will occur in the future and it does in fact occur. It also fills an accountability gap for situations in which the risk of harassment was obvious to the school, but the identities of the harasser and victim could not be determined in advance. The standard adopted in Simpson fills the gap by recognizing liability where an institution has knowledge of a substantial risk of harassment that could be avoided by [appropriate means, such as] adequate training, but it remains deliberately indifferent" by not attempting to "prevent the "risk from materializing ). 24 Mathis v. Wayne Cty. Bd. of Educ., 782 F. Supp. 2d 542, 551 (M.D. Tenn. 2011). 25 ECF 32, p Id. (citing 263 F.3d 504, 511 (6th Cir. 2001)). 5 Case 3:16-cv Document 35 Filed 03/23/16 Page 10 of 31 PageID #: 2143

11 legal proposition and states the legal standard in cases that do not involve official policy. 27 But, crucial to the analysis of the precedential impact of Klemencic, the Sixth Circuit was not presented with an official policy or own actions case; and did not meaningfully analyze the issue of actual notice. 28 Klemencic was decided in the defendant s favor on the basis that the plaintiff had not established the first element of a Title IX case: sex discrimination. 29 The question of actual notice was simply not at issue in the case, and the Sixth Circuit s limited mention of actual notice is pure dicta. 30 However, even so, it is worth pointing out that the Sixth Circuit, in Klemencic, acknowledged: where sexual harassment of a student... is at issue in either a 1983 or Title IX action, a school is liable only for its own actions. 31 UT s reliance on Condiff v. Hart County School District for the misleadingly-reproduced proposition that application of the Monell policy or custom standard to Title IX claims is incorrect and not supported by the case law is worthy of the Court s careful consideration. 32 Condiff was a Title IX retaliation case, and thus actual knowledge was not at issue (or, for that matter, mentioned at all in the opinion). 33 Importantly, the footnote from which UT extracts this excerpt reads, in context: Defendant maintains that the Board can only be held liable under a Title IX retaliation claim if the adverse action against Condiff was the result of a discriminatory policy or custom adopted by the Board. Defendant s application of the Monell policy or custom standard to Title IX claims is incorrect and not supported by the case law. 34 The District Court thus rejected the Defendant s convoluted application of Monell principles to the adverse action element of a Title IX retaliation claim. 35 This excerpt, understood in U.S. 274, 290 (U.S. 1998) F.3d at Id. 30 Id. The District Court had also previously dismissed the plaintiff s hostile sexual environment claims on summary judgment, and the plaintiff did not appeal that ruling. Klemencic, at Id. 32 ECF 32, p. 12 (citing 770 F. Supp. 2d n. 3 (W.D. Ky. 2011)). In addition to UT s misapplication of Condiff, UT s use of Escue v. N. Okla. College, 450 F.3d 1146 (10th Cir. Okla. 2006) (ECF 32, p. 8) is another example of an uprooted, out-of-context quotation in a case that supports the Plaintiffs case. In Escue a college student was sued for sexual assault by a teacher and the court found that prior instances by that teacher were too dissimilar to establish actual notice. The Court further explained, however, that: By noting that actual knowledge of discrimination in the recipient's program is sufficient, the [Gebser] Court implicitly decided that harassment of persons other than the plaintiff may provide the school with the requisite notice to impose liability under Title IX. Id. at 1153 (emphasis in original). 33 See id. 34 Id. (emphasis added). 35 Id. 6 Case 3:16-cv Document 35 Filed 03/23/16 Page 11 of 31 PageID #: 2144

12 context and with the essential modifier Defendant s, stands for a wholly different legal proposition than that for which UT underhandedly attempts to make it stand before this Court. The Condiff Court rejected the defendant s backwards logic that it could be held liable only for its own policies. UT fallaciously (the converse of the theorem is not true) misapplies the above excerpt for the false conclusion that Monell policy liability is not a proper basis for Title IX liability. The Court should not be misled by this deracinated quotation from a non-analogous case. Finally, UT relies on Doe v. Bibb County School District in support of its position. 36 But this reliance is unavailing as Bibb supports the Plaintiffs case. Bibb explicitly recognized the viability of the claims of Plaintiffs Jane Does I VIII here, stating: the Court does not foreclose the possibility of Title IX liability based on a defendant's knowledge of prior harassment of victims other than the plaintiff by different perpetrators. 37 The Bibb court simply found that, at the summary judgment stage, the plaintiffs failed to present sufficient evidence that any of the prior incidents were the result of a similar systemic failure that also contributed to Jane Doe II's assault, which might have alerted the Defendant to a substantial risk of the same type of harassment. 38 By contrast, here, at the pleading stage, Plaintiffs have plausibly alleged the existence of systemic, policy-level deficiencies at UT that increased the risk of the type of assault Plaintiffs suffered. Systemic failure alleged at Am. Compl. 4; 331(c), (d), (h) at 62; 313 at 65. The Declarations of Jenny M. Wright and W. Timothy Rogers (attesting to the truth of the pleaded facts, especially at Am. Coml. 53) are unaddressed by UT and plainly support the Plaintiffs allegations of an official policy of University interference, especially by the Athletic Department, into sexual assault investigations involving male athletes. 39 In May 2013, Mr. Rogers presented Chancellor Cheek a memorandum, in which Mr. Rogers reiterated his concerns at the University s refusal to discuss [the] inordinate number of sexual assault allegations in Vol. Hall, some alleging athletes were involved. 40 In the same memorandum, Mr. Rogers memorialized his 36 ECF 32, p. 12 (citing 83 F. Supp. 3d 1300 (M.D. Ga. 2015)). 37 Bibb, at The Court also observed that statistical evidence could be relevant to establishing a hostile sexual environment, noting that the Plaintiffs have presented no statistical analysis from which the Court could draw any conclusion. Id. at Here, the Jane Doe Plaintiffs I VIII have presented statistical evidence. ECF 22 3, Id. at ECF 22, Exhibits ECF 22, 48. Plaintiffs Jane Doe I, II, and VIII were sexually assaulted in Vol. Hall. Plaintiff Jane Doe III was sexually assaulted after consuming alcohol, provided by UT athletes, in Vol. Hall. ECF 22, 58, 120, 137, Case 3:16-cv Document 35 Filed 03/23/16 Page 12 of 31 PageID #: 2145

13 grave concern regarding the University s refusal to allow me to discuss a proposal to launch a campus-wide program to address the issue of sexual assault. 41 Ms. Wright was specifically instructed to hold up and not to pursue an investigation (or any disciplinary action) regarding allegations of sexual assault committed by UT football player Marlin Lane in April 2013 at Vol. Hall. 42 Plaintiffs have also filed a sworn declaration (and pleaded facts at ) of a former UT football player, Drae Bowles, supporting the allegations that Butch Jones, the head coach of UT s football team, told Mr. Bowles that he had betrayed the team because he had helped Jane Doe IV in the immediate moments after she had been sexually assaulted by Bowles teammates, A.J. Johnson and Mike Williams. 43 Mr. Bowles was physically accosted by UT football players Geraldo Orta and Marlin Lane, both of whom had previously been investigated in connection with an alleged rape of a high-school student at Vol. Hall in April Mr. Bowles was also physically assaulted and punched in the mouth by Curt Maggitt, a UT football player. 45 Plaintiff Jane Doe V made UT officials aware of this assault, but no actions were taken to address or remedy the situation. 46 Taken together, these allegations, supported by sworn declarations and pleadings, establish that UT had an official policy of disregarding the obvious and known risk of sexual assaults, especially by male athletes, both on and off of UT s campus ECF 22, 48. See also ECF ECF 22, 52. See also ECF ECF 22, See also ECF It is worth recalling that the Tenth Circuit treated the head coach of the football team in the Simpson case as an official whose rank in the CU hierarchy was comparable to that of a police chief in a municipal government. Simpson, at ECF 22, ECF 22, ECF 22, As discussed more fully infra, UT s notice of the retaliation against Bowles and its failure to respond adequately is an official act that is discriminatory, and makes UT a party to the retaliatory acts of these third parties by being deliberately indifferent to them. In addition, UT s failure to remedy known acts of retaliation provide a basis for Jane Doe V s Title IX retaliation claim. 47 See also ECF 22, 4, pleading UT s policy of directly supporting, maintaining and controlling environments for athletes in the major sports of football and basketball that encouraged underage drinking, drug use and rape; and unlawfully discriminating against victims of sexual assault and fostering a hostile sexual environment by the misuse of a one-sided Tennessee Uniform Administrative Procedures Act ( TUAPA ) procedure. See also, e.g., Timothy Davis and Keith E. Smith Eradicating Student-Athlete Sexual Assault of Women: Section 1983 and Personal Liability Following Fitzgerald v. Barnstable, 2009 MICH. ST. L. REV. 629, 656 (Fall, 2009) ( The male dominance and power pervasive in sport produces, however, an opportunity for those in power positions to take responsibility to change cultural norms within the institution. Yet as cases such as J.K., Williams, and Simpson demonstrate, the behavior of college coaches and administrators often falls short of assuming responsibility for attempting to eradicate athlete violence against women. Moreover, the actions of coaches and administrators often contribute to perpetuating what 8 Case 3:16-cv Document 35 Filed 03/23/16 Page 13 of 31 PageID #: 2146

14 b. Even if actual knowledge is required, Plaintiffs have pleaded with particularity facts establishing: 1) UT s knowledge of the significant increase in reported sexual assaults at UT over the years; and 2) that UT was on notice that its responses to, and policies regarding, sexual assaults were deficient, which created a substantial risk of abuse to students, including Plaintiffs. i. Actual knowledge is not individual-specific knowledge. In addition to misunderstanding when the actual knowledge requirement applies in a Title IX case, UT also misunderstands what this requirement in fact entails. UT seems to (mis)- construe actual knowledge as perpetrator specific knowledge, arguing that: [The] University had no information suggesting that the individual alleged harassers themselves an amalgam of football players, a basketball player, and a non-athlete had committed any previous sexual misconduct. 48 But this truncated view of actual notice is simply not at all how courts, including the Sixth Circuit Court of Appeals (and the Middle District of Tennessee), understand actual knowledge. 49 In Patterson v. Hudson Area Schools, the Sixth Circuit had occasion to reject the perpetrator-specific conception of actual knowledge, when the Court stated: Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances. 50 Factually, Patterson involved the repeated sexual harassment of a student by different perpetrators. 51 The Court reversed summary judgment, concluding that there was a genuine issue of material fact as to whether the school district was deliberately indifferent because of the district s has been described as a culture marked by indifference to the sexual assault of women by student athletes ) (emphasis added); Michael A. Messner (2005) The triad of violence in men s sports, in E. Buchwald, P. R. Fletcher & M. Roth, eds. TRANSFORMING A RAPE CULTURE (Milkweed Editions). Available at: (last accessed March 19, 2016)(Professor of Sociology at USC s book chapter explaining male athletes violence against women in major sports of football, basketball and ice hockey based upon: competitive, homophobic, and misogynistic talk and joking; a group practice of voyeuring, where boys can watch their friends have sex with and sometimes join in girls [the situation in Jane Doe IV and VII s cases]; suppression of empathy toward others, especially toward the girls; and a culture of silence among peers [the situation with player Bowles].). 48 ECF 32, p See Patterson v. Hudson Area Schools, 551 F.3d 438 (6th Cir. 2009) F.3d, at 446 (citing Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000)). 51 Id. at Case 3:16-cv Document 35 Filed 03/23/16 Page 14 of 31 PageID #: 2147

15 knowledge that its remedial efforts were not stopping the overall harassment of the plaintiff. 52 As the Court reasoned: The thrust of Hudson's argument is that Hudson dealt successfully with each identified perpetrator; therefore, it asserts that it cannot be liable under Title IX as a matter of law. This argument misses the point. As explained above, Hudson's success with individual students did not prevent the overall and continuing harassment of DP, a fact of which Hudson was fully aware, and thus Hudson's isolated success with individual perpetrators cannot shield Hudson from liability as a matter of law. 53 This result in Patterson is impossible to square with UT s perpetrator-specific (mis)-conception of actual knowledge, since Hudson did not have prior actual knowledge regarding the specific perpetrators in that case, but was denied summary judgment anyway, on the basis that Hudson did have knowledge that its remedial efforts were ineffective. 54 More pointedly, in Staehling v. Metro. Government, the United States of America (Department of Justice) filed an amicus brief to argue the appropriate law governing Title IX cases against the government or governmental agencies. 55 In its brief, the United States argued that: Title IX does not require individualized notice of a threat to the specific plaintiff or from the alleged perpetrator. 56 Further, the United States argued: The actual notice requirement does not mandate notice of previous harassment between the victim and the perpetrator, but is satisfied where plaintiffs can demonstrate that an educational institution has more generalized notice at the programmatic level that its policies are creating an environment conducive to sexual harassment. 57 Significantly, the United States cited to Simpson, among other cases, in support of its position. 58 Judge Echols opinion in Staehling adopted and applied the DOJ s Simpson interpretation of actual knowledge: Post-Davis, some courts have held that, given the limitations on liability under Title IX, a school must be aware that a particular individual was 52 Id. at Id. at Id. See also Judge Richard Posner s discussion of actual knowledge in Delgado v. Stegall, 367 F.3d 668, 671 (7th Cir. Ill. 2004) ( Deliberate indifference means shutting one's eyes to a risk one knows about but would prefer to ignore. It thus corresponds to the criminal definition of recklessness. ) (citations omitted). See Am. Comp. 49 (Cheek refused to read Rogers memo on risks of sexual assaults). 55 ECF 67-1 (Case No. 3:07-CV-797) (M.D. Tenn. 2008). 56 Id., p Id. 58 Id. 10 Case 3:16-cv Document 35 Filed 03/23/16 Page 15 of 31 PageID #: 2148

16 subjected to a sexually hostile environment or that a particular individual was the perpetrator of sexual harassment. The more accepted view, and the one this Court adopts, is that, to be liable, "'the institution must have possessed enough knowledge of the harassment that it reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiff's legal claim is based. 59 Further, Courts in the Sixth Circuit, and specifically in the Middle District of Tennessee, have explicitly acknowledged the before theory of Title IX liability. In Lopez v. Metro. Government, Judge Echols expressly approved of and applied the Simpson before theory of Title IX liability when a school exhibits deliberate indifference, before a harassing attack on a student by a fellow student, in a way that makes the student more vulnerable to the attack itself (citing Simpson). 60 In yet another (third) Middle District of Tennessee case, Judge Todd Campbell recognized the Simpson before theory of liability citing Lopez s discussion and citation of Simpson. 61 ii. Plaintiffs have established that: 1) UT had knowledge that its remedial efforts were ineffective; and 2) UT possessed enough knowledge of sexual assaults, especially by UT athletes, that UT could have responded reasonably to remedy the problem. Applying these authorities to the instant case, Plaintiffs Jane Doe I VIII have pleaded with particularity facts establishing both 1) UT s knowledge that its remedial efforts were ineffective and 2) UT had knowledge of sexual assaults, especially by male athletes, that UT reasonably could have responded with remedial measures to address the kind of harassment upon 59 Staehling v. Metro. Gov't, 2008 U.S. Dist. LEXIS 91519, *28-29 (M.D. Tenn. Sept. 12, 2008) (emphasis added). 60 Title IX liability can flow from two harassment time periods: (a) when a school exhibits deliberate indifference, before a harassing attack on a student by a fellow student, in a way that makes the student more vulnerable to the attack itself; or (b) when a school exhibits deliberate indifference after an attack, that causes a student to endure additional harassment. Snethen v. Bd. of Public Educ. for City of Savannah, 2008 U.S. Dist. LEXIS 22788, 2008 WL at *2 (S.D. Ga. 2008); see, Simpson v. Univ. of Colorado, 500 F.3d 1170, 1173 (10th Cir. 2007)(summary judgment in Title IX case inappropriate where claim was that coach failed to adequately supervise high school recruits because even before female students were sexually assaulted there were a variety of sources of information suggesting the risks that sexual assault would occur if recruiting was inadequately supervised ); Zamora v. North Salem Central Sch. Bd., 414 F.Supp2d 418, 425 (S.D.N.Y. 2005)(Davis implied that prior complaints of others subjected to harassment may be considered when judging the response of a school board). Lopez v. Metro. Gov't, 646 F. Supp. 2d 891, (M.D. Tenn. 2009) (emphasis in original). 61 Belcher v. Robertson County, 2014 U.S. Dist. LEXIS at*24 (M.D. Tenn. Nov. 26, 2014). To be liable [under Title IX], a school must have possessed enough knowledge of the harassment that it reasonably could have responded with remedial measures to address that harassment. Mathis, 782 F.Supp.2d at 549. To avoid liability, the school must merely respond to known peer harassment in a manner that is not clearly unreasonable. Id. Title IX liability can flow from two "harassment" time periods: (1) when the school exhibits deliberate indifference before a harassing attack on a student by a fellow student, in a way that makes the student more vulnerable to the attack; and (2) when a school exhibits deliberate indifference after a harassing attack that causes a student to endure additional harassment. Lopez, 646 F.Supp.2d at 917. [where the Lopez Court is then, at p. 917 immediately citing Simpson]. 11 Case 3:16-cv Document 35 Filed 03/23/16 Page 16 of 31 PageID #: 2149

17 which the Jane Doe Plaintiffs legal claims are based. 62 Again, the Declaration of Ms. Wright (and pleaded facts at 42, 51-53) support Plaintiffs factual allegations as to interference with and manipulation of the disciplinary process when UT athletes were accused of sexual assault. 63 Such interference included: coaching witnesses; 64 instructing Ms. Wright to hold up a sexual assault investigation involving a UT football player; 65 and verbally berating Ms. Wright for her handling of disciplinary cases involving athletes. 66 Similarly, the Declaration of Mr. Rogers (and pleaded facts at 53) support the Plaintiffs factual contentions regarding Mr. Roger s memorandum, presented to Chancellor Cheek, who refused even to read it. 67 The memorandum, as mentioned above, detailed Mr. Rogers concerns about: the inordinate (and statistically significant) number of disciplinary cases involving athletes; 68 the inordinate number of sexual assault allegations in Vol. Hall; the refusal even to discuss a proposal to launch a campus-wide program to address the systemic issues of sexual assault within the athletic program; and constant criticism from the athletic department concerning the disciplinary penalties assigned to athletes. 69 Additionally, Plaintiffs have alleged that: Chancellor Cheek manipulated the TUAPA process when athletes were involved; 70 and that Mr. Rogers, beginning in 2011 (prior to the assaults of each Plaintiff in this case), repeatedly briefed Chancellor Cheek, in weekly and bi-weekly 62 See esp. ECF 22, ECF 22, 42 53; see also ECF ECF 22, Id. at Id. at ECF 22, 48; See also ECF See 2009 MICH. ST. L. REV. 629, ( the following factors converge and contribute to male athletes violence against women: (1) support from fellow athletes for the use of violence as a strategy for defining their masculinity; (2) perceived support emanating from the sports culture for the use of physical domination to establish identity and to enhance status; (3) social bonds among athletes that foster overconformance to sport ethic norms and the sense that those outside the sports culture are incapable of understanding the athlete experience; (4) "collective hubris" among teammates which produces the belief that those outside the circle of elite athletes do not deserve respect; (5) athletes' perceptions that "women, apart from their own mothers and sisters, are celebrity-obsessed 'groupies' who can be exploited for sexual pleasure without consequences"; (6) institutional support for elite athletes notwithstanding their involvement in inappropriate behaviors; and (7) institutional failure to hold athletes accountable ). (emphasis added). 69 Id. Further, UT cites in its memo in support of its motion to dismiss that the additional training by UT to address this known hostile environment would be stereotyping all males or even all male studentathletes as potential rapists for whom training necessary that would violate Title IX (ECF 32, p. 13). It is difficult to imagine a situation in which providing training to students to mitigate a known hostile environment would be discriminatory toward them, especially in light of the fact that OCR has obligated funding recipients to provide such training (2001 Guidance and 2011 DCL), as does VAWA Section ECF 22, 53(f). 12 Case 3:16-cv Document 35 Filed 03/23/16 Page 17 of 31 PageID #: 2150

18 meetings, on the growing risk of sexual assaults. 71 Finally, Paragraphs 23 to 53 of the First Amended Complaint include notice references to no fewer than nine former UT football players who have been arrested and charged with sex crimes (including rape) and other violent crimes. 72 All of these incidents were reported in local and sometimes national news outlets. 73 In many cases, UT employed a circle-the-wagons effort to handle sexual assault claims internally. For purposes of resolving the instant motion to dismiss at the pleading stage, these factual allegations, supported by three sworn declarations, establish that UT had actual knowledge, both in the sense that UT possessed enough knowledge of the harassment that it reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiff's legal claim is based 74 and in the sense that UT knew that its efforts to remediate [were] ineffective, but it nevertheless continued to use those same methods to no avail. 75 Accordingly, this Court should deny UT s motion to dismiss Plaintiffs Count I before claims. II. Plaintiff Jane Doe I s claims are not barred by the statute of limitations because Plaintiff Doe I timely entered into a tolling agreement within one year from the date of her educational deprivation, which is the crucial element of a Title IX injury. A prerequisite to any claim under Title IX is a deprivation of an educational opportunity. 76 This key component is an absolute requirement for any Title IX claim, irrespective of whether it is asserted under a before theory (under Simpson); as an after theory (based on a clearly 71 Id. at 53(g). 72 These players and charges include: Nilo Sylvan (rape of a 17-year-old, 1995); Antwan Stewart (rape of a 16-year-old, 2003); Tony McDaniel (aggravated assault, 2005); Nu Keese Richardson (attempted armed robbery, 2009); Janzen Jackson (attempted armed robbery, 2009, and murder, 2014); Mike Edwards (attempted armed robbery, 2009); Da Rick Rogers (disorderly conduct and resisting arrest, 2010); Darren Myles, Jr (assault, disorderly conduct, resisting arrest, 2010); Brent Brewer (domestic assault, 2011). 73 Id. 74 Staehling v. Metro. Gov't, 2008 U.S. Dist. LEXIS 91519, *28-29 (M.D. Tenn. Sept. 12, 2008) (emphasis added) F.3d, at 446 (citing Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000)). 76 Students are not only protected from discrimination, but also specifically shielded from being "excluded from participation in" or "denied the benefits of" any "education program or activity receiving Federal financial assistance." 1681(a). The statute makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on the basis of gender. We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have 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. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650, 119 S. Ct. 1661, 1675 (1999) (emphasis added). 13 Case 3:16-cv Document 35 Filed 03/23/16 Page 18 of 31 PageID #: 2151