Rose McAvoy v. DICKINSON COLLEGE Appeal from the United States District Court for the Middle…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 23-2939
____________
ROSE MCAVOY,
Appellant
v.
DICKINSON COLLEGE
____________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court No. 1-20-cv-01327)
District Judge: Honorable David S. Cercone
____________
Argued: June 4, 2024
____________
Before: CHAGARES, Chief Judge, CHUNG and FISHER,
Circuit Judges
(Filed: August 16, 2024)

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Andrew T. Miltenberg
Gabrielle M. Vinci [ARGUED]
Nesenoff & Miltenberg
363 7th Avenue, 5th Floor
New York, NY 10001
Counsel for Appellant
Kimberly M. Colonna [ARGUED]
McNees Wallace & Nurick
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17101
Counsel for Appellee
____________
OPINION OF THE COURT
____________
CHAGARES, Chief Judge.
Rose McAvoy claims that Dickinson College
(“Dickinson”) violated Title IX of the Education Amendments
of 1972, 20 U.S.C. § 1681(a) (“Title IX”), and breached its
contract with her by failing to respond to and investigate her
sexual assault claim in a timely and adequate manner. The
District Court granted Dickinson’s motion for summary
judgment, holding that McAvoy failed to produce sufficient
evidence that Dickinson acted with deliberate indifference to
her assault under Title IX and did not produce sufficient
evidence of breach of contract damages. For the reasons that

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follow, we will affirm.
I.
The highly fact-intensive nature of the claims in this
appeal necessitates a detailed discussion of the factual
background. Our description of the assault at the center of this
case is taken from McAvoy’s statement to Dickinson, which is
quoted verbatim in Dickinson’s final report of the incident.
A.
Dickinson is a private liberal arts college of about 2,100
students located in Carlisle, Pennsylvania.1 McAvoy began
her studies as an undergraduate student at Dickinson in fall
2015. TS2 began at Dickinson two years later, in 2017. The
two became friends through a shared interest in a cappella
singing and theater.
On October 30, 2017, McAvoy and TS attended an
evening school event together, then went for a walk and
entered an empty room in a Dickinson building. The two began
kissing and “making out.” Appendix (“App.”) 205. McAvoy
initially reciprocated but became increasingly nervous and
unsure, as TS lay on top of her. She asked him to stop and he
1 See Quick Facts, Dickinson College,
https://www.dickinson.edu/homepage/1657/quick_facts
[https://perma.cc/HRLR-W2P2] (last visited July 11, 2024).
2 Because TS did not participate in the appeal or in the District
Court proceedings, we will identify him by initials only
throughout this opinion.

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did so; the two then lay on the floor together, cuddling and
talking.
McAvoy tried to express to TS that she did not want to
continue being sexually intimate. Although she thought she
had made herself understood, the making out resumed and TS
placed his hand on her breast. McAvoy removed his hand, but
he continued to kiss her, then moved back on top of her and put
his hand inside her shirt.
At some point, McAvoy stopped reciprocating. She
kept trying to move TS’s hand away, but he lifted her shirt up
anyway. McAvoy began to panic and felt like she couldn’t
breathe. She started to try to say his name and something along
the lines of “can we stop”; she eventually said “can we —” and
TS stopped and she got out from underneath him.
McAvoy told TS that she liked him but felt the
encounter was “a lot.” App. 210. She kissed him a final time
out of a feeling of obligation and walked him home. McAvoy
felt terrible about the experience and blamed herself that it
happened. She also felt sore and bruised for several days as a
result of TS pushing himself on top of her.
B.
McAvoy reported the incident to a Dickinson professor
the day after it happened, on October 31, 2017, although she
did not identify TS by name. The professor reported the assault
to the Title IX office that day. A Dickinson dean emailed
McAvoy the following day, advising her about available
resources, notifying her of the availability of an advisor or
advocate, offering to meet with her, and providing her

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information including a link to Dickinson’s Sexual Harassment
and Misconduct Policy (“Policy”).
McAvoy met with Dickinson’s interim Title IX
coordinator, Joyce Bylander, a week later, on November 7.
McAvoy declined to disclose TS’s name at the meeting.
Bylander offered options to McAvoy, including academic
support and resources for victims of sexual assault. McAvoy
had not yet decided at that time whether to proceed with a Title
IX investigation of the incident. Bylander followed up in
writing over the course of the next several days to assure
McAvoy that she could choose how to proceed, advising her to
talk to her therapist about what might help her most, and to
offer assistance in obtaining academic accommodations.
Bylander wrote McAvoy a more formal letter on November 9,
offering to meet again, providing a list of rights and resources,
and including a link to Dickinson’s Policy.
McAvoy met with Bylander a second time, this time
accompanied by Dickinson employee Josh Eisenberg, the
following month on December 6. During that meeting,
Bylander offered McAvoy the option of informal resolution
through mediation, although Dickinson’s Policy did not allow
for this approach. McAvoy declined. McAvoy disclosed TS’s
name and requested a formal Title IX investigation into the
assault. She designated Eisenberg as her Title IX advisor.
Bylander informed McAvoy of the various accommodations
available to her during the investigation, including a no-contact
directive, which McAvoy requested.
Dickinson issued McAvoy a letter the next day formally
stating that the investigation had been initiated. The letter
advised her, consistent with Dickinson’s Policy, that Dickinson
would “make every effort [to] complete the investigation and

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resolution process within 60 days but [would] balance this
objective against the principles of thoroughness and
fundamental fairness.” App. 242. The letter “anticipate[d] that
there may [be] some delay in meeting the 60-day objective
given that the beginning of this investigation comes just as we
are about to close for winter break,” but assured McAvoy that,
consistent with Dickinson’s Policy, she would be informed
about the investigation’s progress as the sixty-day mark
approached. App. 242.
Four days later, on December 11, Dickinson sent a
similar letter to TS to inform him about the investigation and
the anticipated sixty-day timeline. Dickinson also issued a
written no-contact directive to both TS and McAvoy that day.
The directive’s stated purpose was to minimize contact
between TS and McAvoy. TS’s letter provided that he was not
permitted “to approach [McAvoy], attempt to speak to her, or
otherwise have contact with her” either himself or through a
third party. App. 551. It directed that the “best course of
action” in the event of an encounter “is for you to immediately
turn and walk away.” The directive recognized that “[t]here
may be times when doing so is impossible or impractical, such
as when in the library, the cafeteria or attending a college
event. In those instances, it is your obligation to avoid
approaching, speaking to or otherwise having contact with . . .
McAvoy.” App. 551.
C.
TS texted McAvoy twice, about a week after the assault
(and a month before Dickinson issued the no-contact
directive). In the first text, on November 7, he asked, “[A]re
we good? I kinda feel li[k]e you were avoiding me at the caf
this morning. If not . . . then that’s fine, I’ll steer clear. Just

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wanna know what’s up.” App. 388. McAvoy did not respond.
The next day, TS texted, “Okay, message received. I’m sorry
for what I did to offend you.” App. 389. McAvoy told Josh
Eisenberg about the November 7 and 8 texts from TS.
McAvoy never again received any texts, calls, or other
communications from TS, including while the no-contact
directive was in place.
McAvoy nonetheless encountered TS after the no-
contact directive was issued. She saw him in the dining hall
and visiting his friends in the dorm where she lived. TS did
not speak with or contact McAvoy during these encounters,
although he sat at nearby tables in the dining hall. When the
two were present in the same location, TS would not depart.
On one occasion, TS and McAvoy turned a corner at the same
time and literally ran into each other.
McAvoy never reported these incidents to Dickinson
security as violations of the no-contact directive, but she did
inform Eisenberg about them. Eisenberg advised that
Dickinson could put in place additional accommodations for
dining hall use to set separate times for TS and McAvoy to eat,
but security services would need to be involved to enforce the
accommodation. McAvoy was not sure she wanted to involve
security services at the time and did not recall asking for the
dining hall accommodation then or at any time afterward.
Although McAvoy did not request dining hall
accommodations, she accepted other supports and
accommodations that Dickinson offered. She received
frequent mental health services from Dickinson’s Wellness
Center. She also requested and was granted academic
accommodations from all of her professors. She opted to
withdraw from a class called Fat Studies, which she did not

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need in order to graduate. She also eventually withdrew from
her Chinese class, although her professor had accommodated
her need to reschedule an exam.3 She took an online sign
language class to replace Chinese during summer 2018, with
Dickinson’s approval.
Both McAvoy and TS were active in theater
extracurricular activities. When exploring possible
accommodations, Eisenberg informed McAvoy that it was
difficult, but achievable, to establish theater
accommodations. McAvoy decided to participate in only one
theater event that spring, a one-day student-run drama club
event. She requested of the students running the event that TS
not be placed in a group with her. The students accommodated
her request. TS attended the event, however, and McAvoy
found his presence intimidating. TS did not speak to her, and
McAvoy did not inform any Dickinson employees of her
anxiety about his presence.
When the following year’s housing assignments were
made that spring, both McAvoy and TS applied for and were
granted permission to live in the theater special interest house.
McAvoy told Eisenberg and emailed Bylander to complain
3 The Chinese professor told McAvoy that she should “get
over” what happened so that she “could do school.” App. 438.
McAvoy informed both Eisenberg and Bylander of the
comment. Bylander told McAvoy that she did not have to “get
over” what happened and assisted her with obtaining academic
accommodations from the professor. Eisenberg told McAvoy
that she could report the comment under Title IX, but McAvoy
declined to do so.

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about TS’s housing assignment. Bylander intervened on
McAvoy’s behalf and TS decided to live elsewhere.
D.
Meanwhile, during the entirety of spring 2018,
Dickinson’s investigation of McAvoy’s sexual assault claim
was ongoing. Dickinson employed two outside investigators,
who met with McAvoy and Eisenberg for the first time on
December 8, shortly after McAvoy disclosed TS’s name. The
investigators interviewed McAvoy three times and TS twice,
in addition to seven other individuals. The investigators also
obtained and reviewed relevant documents.
The investigation took longer than the sixty-day target
for resolution set forth in Dickinson’s Policy. Despite
Dickinson’s statement that the sixty days “may be extended for
good cause with written notice to the parties of the delay and
the reason for the delay,” App. 280, McAvoy was not given a
written explanation about the delay apart from the initial letter
indicating the process could take longer because it began just
before the winter break.
McAvoy did not remain entirely uninformed, however.
She met with the investigators on December 8, February 15,
and February 28. Additionally, while the investigation was
underway, she would ask Eisenberg for information and he
would inquire and then advise her of the status. McAvoy did
not recall any time that she reached out to Eisenberg or
Bylander and did not receive a response from them. In March,
Bylander wrote to McAvoy and stated that she was “sorry this
process is taking so long.” App. 557.

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The investigators provided an initial report to the parties
in April 2018. Both McAvoy and TS submitted written
responses to the initial report. Dickinson advised McAvoy that
the investigators were considering the responses and would
issue a final report soon. The final report, which is forty pages
long, was issued on May 1, 2018, nearly five months after
McAvoy requested the investigation. The report concluded
that a preponderance of the evidence supported a finding that
TS had subjected McAvoy to sexual touching after she
withdrew her consent and thus had engaged in sexual assault.
Bylander sent the final report to McAvoy on May 11,
with an explanation of the next stage of the process — that the
report would be submitted to a review panel to determine
whether to affirm or reject the investigation’s findings and to
consider the imposition of sanctions. On May 30, in response
to McAvoy’s inquiry about the status, she was advised that the
review panel’s outcome was anticipated within the next ten
days. Dickinson employee Stephen Winn contacted McAvoy
on June 18, to inform her that the review panel’s finding would
be provided to her in two days.
Winn provided the outcome letter on June 20. The letter
advised McAvoy that the review panel had unanimously
concluded that the investigation had been fair, impartial, and
reliable, and that a preponderance of the evidence supported
the investigators’ conclusion that TS had engaged in sexual
assault in violation of Dickinson’s Sexual Harassment and
Misconduct Policy. McAvoy was informed that she could
review the report and submit evidence for the review panel to
consider before it imposed sanctions. McAvoy submitted
materials in response, which were sent to the review panel.

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Katharina Matic, Dickinson’s new Title IX coordinator,4
advised McAvoy that she should expect a decision in early July
and offered her continued access to support.
Dickinson issued its sanction letter on July 3.
Dickinson imposed a semester of probation on TS. It also
rescinded the no-contact directive, although it reminded the
parties not to have contact with each other. McAvoy and TS
both appealed the panel’s determination. On July 31, the
appeal officer issued a final decision upholding the review
panel’s sexual assault decision, concluding that probation was
an appropriate sanction, and additionally directing that TS
must meet with the Title IX coordinator to review the
definition of consent.
The sanction on TS ultimately was not carried out. TS
instead chose to leave Dickinson at the end of spring 2018 and
did not return. McAvoy remained at Dickinson. She graduated
two years later, in spring 2020, later than she originally
expected.
E.
McAvoy filed the underlying civil action challenging
Dickinson’s response to her assault claim on July 31,
2020. She asserted four causes of action: (1) hostile
environment due to deliberate indifference to sexual assault in
violation of Title IX; (2) gender discrimination due to
deliberate indifference to sexual assault in violation of Title IX;
(3) negligence; and (4) breach of contract due to a failure to
abide by Dickinson’s internal procedures for investigating
4 Matic replaced Bylander as Dickinson’s Title IX coordinator
in June 2018.

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sexual assault.5 The District Court dismissed McAvoy’s
negligence claim on Dickinson’s motion to dismiss.6 After the
close of discovery, Dickinson moved for summary judgment
on the remaining claims. The District Court granted
Dickinson’s summary judgment motion. This timely appeal
followed.
II.7
McAvoy presents two issues on appeal. First, she
asserts that the District Court erred in holding that she did not
produce sufficient evidence that Dickinson acted with
5 McAvoy also asserted a claim of intentional and/or negligent
infliction of emotional distress. She removed that claim when
she amended her complaint.
6 McAvoy does not challenge the dismissal of the negligence
claim.
7 The District Court exercised jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367. We have appellate jurisdiction
under 28 U.S.C. § 1291. Federal Rule of Civil Procedure
“56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The District
Court’s grant of summary judgment is subject to plenary
review. Razak v. Uber Techs. Inc., 951 F.3d 137, 144 (3d Cir.
2020). We, accordingly, will affirm only if there is no genuine
dispute as to any material fact and Dickinson is entitled to
judgment as a matter of law. See id. We view the facts and
evidence in the light most favorable to McAvoy as the non-
moving party. See id.

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deliberate indifference in response to her Title IX
complaint. Second, she contends that the District Court erred
in concluding that she failed to produce sufficient evidence to
establish a genuine dispute of material fact that she suffered
damages to support a claim for breach of contract. We consider
each claim in turn and agree with the District Court that there
is no genuine dispute as to any material fact and Dickinson is
entitled to judgment as a matter of law.
A.
Title IX provides, inter alia, that no person “shall, on the
basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). Title IX primarily was
designed to prevent schools from using federal funds in a
sexually discriminatory manner. Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 292 (1998). To that end, its
nondiscrimination mandate is chiefly enforced by agencies
through means authorized by the statute, including the
termination of federal funding. Id. at 280–81.
The Supreme Court has determined that Title IX also
contains an implied private right of action accompanied by the
availability of monetary damages. Id. at 281 (citing Cannon v.
Univ. of Chi., 441 U.S. 677 (1979) and Franklin v. Gwinnett
Cnty. Pub. Schs., 503 U.S. 60 (1992)). The Supreme Court
recognized in Davis ex rel. LaShonda D. v. Monroe County
Board of Education, 526 U.S. 629, 633 (1999), that such an
implied private damages action may be employed to hold
educational institutions accountable for student-on-student
harassment. Yet Davis set a high bar in these cases: “funding
recipients are properly held liable in damages only where they

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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.” Id. at 650; see also Hall v. Millersville Univ.,
22 F.4th 397, 407 (3d Cir. 2022) (observing that “there is a high
bar to establish liability for deliberate indifference under Title
IX”).
The facts of Davis are illustrative. There, the
petitioner’s minor daughter alleged that she had been subjected
to months of sexual harassment — both verbal and physical —
by her fifth-grade classmate. Davis, 526 U.S. at 633–34. The
petitioner and her daughter repeatedly reported the harasser’s
alarming conduct to teachers and school administrators, but no
action was taken. Id. at 634. The school never addressed the
abuse and it only ended when the harasser was charged with
and pleaded guilty to sexual battery. Id. The petitioner filed a
Title IX suit against the school district. Id. at 635–36. The
District Court dismissed the complaint for failure to state a
claim and the Court of Appeals for the Eleventh Circuit
affirmed the dismissal en banc. Id. at 636. The Supreme Court
reversed. See id. at 638.
The Davis Court concluded that liability may attach
where a Title IX funding recipient acts intentionally in
violation of the statute by remaining deliberately indifferent to
known acts of student-on-student harassment under
circumstances in which the recipient exercises substantial
control over both the harasser and the context of the
harassment. Id. at 643–44. Because the funding recipient has
not engaged in the harassment directly, its deliberate
indifference must cause the harassment or make the victim

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vulnerable to it.8 Id. at 644–45. Additionally, to satisfy the
statute’s express terms, the recipient cannot be liable unless the
harassment is extreme enough to deprive the victim of access
to the educational opportunities or benefits that the Title IX
recipient provides. Id. at 650.
The Davis Court recognized that schools should not be
tasked with purging all peer harassment, and that courts should
not be tasked with second-guessing the disciplinary decisions
of school administrators. Id. at 648. To those ends, the Court
held that deliberate indifference occurs only where the Title IX
recipient’s response “is clearly unreasonable in light of the
known circumstances.” Id. Whether the recipient’s response
meets that standard is a question of fact. See, e.g., Hall, 22
F.4th at 410–11. In Davis, the allegations of the complaint
were sufficient to plead a cause of action under this rigorous
8 Based on the Supreme Court’s holding that liability may arise
if a school has made a student vulnerable to harassment, some
Courts of Appeals have held that students need not show that
the school’s deliberate indifference led to any additional post-
notice incidents of harassment. See, e.g., Doe v. Fairfax Cnty.
Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021). Other Courts of
Appeals have held, in contrast, that post-notice incidents of
harassment are required before liability for deliberate
indifference may attach. See, e.g., Kollaritsch v. Mich. State
Univ. Bd. of Trs., 944 F.3d 613, 622–23 (6th Cir. 2019).
Our Court has not yet decided this issue and we need not do so
in this case. Regardless of whether post-notice incidents of
harassment are required or occurred in McAvoy’s case,
Dickinson’s liability for deliberate indifference is not triggered
if its actions were not clearly unreasonable in light of known
circumstances.

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standard, and so the Supreme Court concluded that dismissal
at the pleadings stage had been improper.
The District Court in McAvoy’s case applied Davis and
its progeny. It concluded that Dickinson’s response was not
clearly unreasonable in light of the known circumstances and
held that McAvoy’s claim of deliberate indifference failed as a
matter of law. After closely considering the summary
judgment record in this matter, we reach the same conclusion.9
McAvoy argues that Dickinson demonstrated deliberate
indifference by: (1) unreasonably delaying resolution of her
claim and failing to communicate in writing about that delay;
(2) failing to proactively enact additional, unrequested
accommodations in response to McAvoy’s reported concerns;
and (3) offering informal resolution in violation of its Policy.
We consider McAvoy’s arguments seriatim, while remaining
mindful that our analysis requires consideration of whether
Dickinson’s response was clearly unreasonable in light of all
the circumstances known to it. See Davis, 526 U.S. at 648.
1.
McAvoy’s primary dispute with Dickinson’s
investigation of the assault is the length of time that the process
9 The District Court did not discuss whether McAvoy was
subjected to “severe, pervasive, and objectively offensive”
harassment, instead resolving the case on deliberate
indifference grounds. We, too, decline to reach that issue and
therefore express no opinion as to whether McAvoy satisfied
the “severe, pervasive, and objectively offensive” prong of the
Davis test.

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entailed.10 From initiation to final resolution, the process took
more than three times longer than the sixty-day objective set
forth in Dickinson’s Policy. McAvoy contends that
Dickinson’s prolonged process and its failure to adequately
explain the cause of the delay were clearly unreasonable under
the circumstances and therefore constitute deliberate
indifference. We disagree.
McAvoy was notified in writing on the first day of the
investigation that the process would likely go beyond sixty
days because it was initiated just before the holidays, when the
school would be closed. Dickinson made clear at that time that
the length of the investigation process would reflect the need
to balance the thoroughness and fairness of the process against
the sixty-day objective. McAvoy also was told that the Title
IX coordinator would always be available to her to provide
information and updates about the process.
The investigation itself was a significant undertaking: it
required hiring outside investigators, numerous interviews, a
lengthy report, and a review panel process to ensure the
fairness of the proceeding. During that time, McAvoy never
experienced an occasion when Bylander and Eisenberg were
not available to her, and Eisenberg updated her with
information every time she asked. McAvoy met with the
10 McAvoy does not argue that Dickinson’s investigation itself
was unreasonable — and with good reason. The record shows
that Dickinson undertook a substantial and thorough
investigation of McAvoy’s assault. The hiring of outside
investigators, the length and level of detail of the report, and
the number of witnesses interviewed all weigh in favor of a
conclusion that Dickinson’s investigation was not clearly
unreasonable.

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investigators in December and February, which would have
given her a sense of the investigation’s progress, and
Dickinson notified both McAvoy and TS of the initial results
of its investigation by April, while school was still in session,
allowing both parties to review and respond to that initial
report before a final report was completed. After the final
report, McAvoy participated in the review panel process and
sanction stage of the proceeding.
These undisputed facts reflect the reasonableness of this
timeframe given the substantial nature of the proceeding and
McAvoy’s engagement in it. There is no evidence that the
length of the investigation was the result of any impermissible
motivation on Dickinson’s part. The Court of Appeals for the
Ninth Circuit has held, for instance, that a delayed response
may constitute deliberate indifference if the delay reflects an
intentional effort to sabotage the orderly resolution of the
complaint. See Karasek v. Regents of Univ. of Cal., 956 F.3d
1093, 1106 (9th Cir. 2020). Here, while the process took
longer than Dickinson’s sixty-day objective, there is no sign of
any effort to sabotage the orderly resolution of McAvoy’s
complaint or other similarly improper motivation that would
render this timeframe unreasonable.
We are also mindful that Dickinson did not sit idly by
while the investigation was undertaken by its outside
investigators. Although Dickinson could have better
communicated with McAvoy about aspects of the investigation
process — particularly in the period leading up to its initial
draft report — Dickinson did not ignore McAvoy or her claims
during that time, providing her services and accommodations
throughout spring 2018. See id. (observing that the eight-and-
a-half month process did not reflect deliberate indifference to
assault in part because the school was not idle during that time).

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In support of her claim of unreasonable delay, McAvoy
relies on Williams v. Board of Regents of University System
of Georgia, 477 F.3d 1282 (11th Cir. 2007). The Williams
court reversed the dismissal at the pleading stage of a
complaint alleging that the defendant university had been
deliberately indifferent to the victim’s claim that three student-
athletes had gang raped her. Id. at 1288–91. Although the
university received a preliminary report from police within
forty-eight hours of the incident, the university waited for
nearly eleven months before conducting its own disciplinary
hearing to consider sanctioning the assailants — delaying so
long that two of the three assailants no longer attended the
university. Id. at 1296. The Court of Appeals for the Eleventh
Circuit concluded that the unexplained delay, in the context of
the other “extreme” facts of the case, stated a claim of
deliberate indifference. Id. at 1299.
Williams is not analogous to McAvoy’s case. Not only
did McAvoy’s case progress beyond the pleading stage to
summary judgment, allowing the District Court to consider a
more fulsome record, but also the facts surrounding her
investigation are strikingly different. Dickinson initiated its
investigation promptly after being informed of TS’s identity
and McAvoy’s wish to pursue a Title IX investigation. While
the time encompassed by the proceeding went beyond
Dickinson’s goal of sixty days, Dickinson reached a
preliminary resolution in April and a final resolution in July,
so its timing did not make it likely that TS — a freshman at the
time of the investigation — would no longer attend Dickinson
before its conclusion. Additionally, the no-contact directive
remained in place during the investigation and Dickinson
provided support and resources for McAvoy throughout that

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time. Williams thus does not lend support to McAvoy’s
deliberate indifference claim.
McAvoy also suggests that the five-day period from her
providing TS’s name (Wednesday, December 6) until
Dickinson put the no-contact directive in place (Monday,
December 11) was clearly unreasonable.11 We disagree.
While this delay may not be ideal, there is no evidence that
Dickinson was aware of any urgency requiring immediate
imposition of the directive. When Dickinson was made aware
of TS’s identity on December 6, TS had not spoken with or
contacted McAvoy for nearly a month, since his final text
message on November 8. Importantly, there also was no
indication that McAvoy was in any immediate physical danger.
Dickinson’s delay thus was not clearly unreasonable in light of
the known circumstances. See Davis, 526 U.S. at 648.
2.
McAvoy next claims that Dickinson was deliberately
indifferent because there were instances in which she believes
Dickinson should have done more to protect her. Specifically,
she points to Dickinson’s purported failure to enforce the no-
contact directive or to amend its terms to offer her additional
protections to prevent her from encountering TS on
Dickinson’s campus, a failure to provide theater
accommodations, the assignment of McAvoy and TS to the
same dorm for fall 2018, and the failure to pursue an
11 McAvoy stated at oral argument that she does not include
the period from the incident (October 30) until her decision to
disclose TS’s name to Dickinson (December 6) in her claim of
unreasonable delay because Dickinson was not on notice of
TS’s identity during that period of time.

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investigation of the professor who told her to get over the
assault. Viewing all of the facts and inferences in the light
most favorable to McAvoy, we are unpersuaded that these
arguable shortcomings in Dickinson’s response render its
actions clearly unreasonable under the circumstances. See
Davis, 526 U.S. at 648.
Regarding both her theater participation and her
housing assignment, McAvoy received her requested
accommodations. Ultimately, she chose to participate in one
theater event and she and Eisenberg decided together that she
would arrange for accommodations herself. She received the
accommodation she requested and never asked that TS not be
permitted to attend that event. The evidence as a whole thus
does not establish that Dickinson’s response was clearly
unreasonable. See Davis, 526 U.S. at 648. With regard to
housing, when McAvoy complained, Dickinson responded and
intervened, and the situation was resolved.12 McAvoy
appeared to be pleased with that outcome. App. 554 (“That’s
great! Thank you so much!”). McAvoy’s complaint seems to
be that the two should never have been assigned to live together
in the first place. Yet there is no evidence that the decision to
place the two in the same housing was the result of anything
more than negligence on Dickinson’s part. See Johnson, 972
F.3d at 912.
12 The record is unclear as to precisely who made the housing
assignment, although Dickinson employee Steven Winn
testified that Dickinson’s housing office — which was
supervised by Bylander in her role as Dean of Students —
would have had ultimate oversight over the housing
assignments.

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22
As to the other occasions on which McAvoy
encountered TS and let Eisenberg or other Dickinson
employees know of her concerns about seeing him, the record
shows that McAvoy was asked how she would like the school
to handle the encounters and she decided not to pursue
additional remedies.13 For instance, Eisenberg told McAvoy
that she could report the professor’s inappropriate comment
under Title IX. McAvoy “looked into” reporting the
professor’s comment and located the online form to do so, but
ultimately opted not to report. Similarly, Eisenburg advised
McAvoy that additional accommodations for dining hall use
could be put in place to set separate times for TS and McAvoy
to eat, but McAvoy was not sure she wanted to involve security
services and never pursued that course.
McAvoy suggests that Dickinson should have acted on
its own initiative even though she did not request further
accommodations. It does appear that Dickinson’s Policy could
have permitted it to act proactively to further minimize
interactions between McAvoy and TS, even without
McAvoy’s request for additional accommodations. See App.
278 (stating that the Title IX coordinator is “[r]esponsible for
determining appropriate interim measures”). Yet we are
unpersuaded that the claimed failure to do more constitutes
deliberate indifference.
McAvoy was a young adult attending college at the time
of these events. Her age made it appropriate for Dickinson to
take into account her views on how various encounters should
13 We express no opinion as to whether McAvoy’s experience
of encountering TS in the dining hall and at other campus
locations qualifies as harassment or as a violation of the no-
contact directive.

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be handled — much more so than it might have been if, for
instance, she had been a minor child in elementary school. We
are also cognizant that a university necessarily exercises less
control over student interactions than grade schools. Davis,
526 U.S. at 649 (“A university might not . . . be expected to
exercise the same degree of control over its students that a
grade school would enjoy.”); Doe ex rel. Doe v. Metro. Gov’t
of Nashville & Davidson Cnty., 35 F.4th 459, 467 (6th Cir.
2022) (“Due to the varying degrees of oversight that these two
kinds of institutions exercise over their students, the distinction
between a university and a high school makes a difference for
the purposes of a student-on-student-harassment claim
under Title IX.”). And Dickinson’s efforts to manage the
situation were not clearly unreasonable solely because they did
not entirely prevent encounters between McAvoy and TS
during the pendency of the investigation.14 See Sanches v.
Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156,
168 (5th Cir. 2011) (“Ineffective responses . . . are not
necessarily clearly unreasonable.”). Under these
circumstances, we conclude that the evidence does not create a
genuine dispute of material fact as to whether Dickinson acted
with deliberate indifference.15
14 We note that at least one Court of Appeals has held as a
matter of law that encounters in which a victim and assailant
were simply mutually present at the same location, without
more, were not “severe, pervasive, and objectively
unreasonable” to give rise to an actionable Title IX claim. See
Kollaritsch, 944 F.3d at 624–25.
15 We emphasize that a Title IX recipient’s response is viewed
as a whole, see Davis, 526 U.S. at 651 (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998))

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3.
McAvoy claims that Dickinson acted with deliberate
indifference because Bylander improperly suggested McAvoy
could pursue informal resolution of her assault claim. While
Dickinson’s Policy offers “voluntary resolution,” including
mediation, as an alternative approach to resolving certain Title
IX claims, that option is not permitted in sexual assault cases.
App. 283 (“Mediation, even if voluntary, may not be used in
cases involving sexual assault.”). McAvoy claims that
Bylander improperly offered informal resolution option during
their December 6 meeting and felt Bylander was “pushing” that
option by virtue of offering it. App. 406.
That Bylander offered an informal resolution option in
violation of Dickinson’s Policy does not rise to the level of
deliberate indifference. A failure to adhere to internal policy,
or even applicable federal regulations, does not, in and of itself,
constitute deliberate indifference. See Gebser, 524 U.S. at
291–92 (“Lago Vista’s alleged failure to comply with the
[Department of Education] regulations . . . does not establish
(observing that Title IX liability depends on a “constellation of
surrounding circumstances, expectations, and relationships”),
so a student’s decision not to request a particular
accommodation is not dispositive. While, under some
circumstances, facts showing that a student was satisfied with
the Title IX recipient’s response or did not wish for or request
further accommodations can provide evidence that the
response was not clearly unreasonable, we emphasize that this
is a case-specific inquiry and we do not suggest that a student’s
failure to request any particular accommodation renders a
response reasonable.

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25
the requisite actual notice and deliberate indifference.”); see
also Karasek, 956 F.3d at 1107 (concluding that a failure to
comply with Department of Education regulations or a
school’s own policies does not per se establish deliberate
indifference); Sanches, 647 F.3d at 169 (“[J]ust because [the
school principal] allegedly failed to follow district policy does
not mean that her actions were clearly unreasonable.”).
While a policy violation alone may not be enough,
McAvoy suggests that Dickinson attempted to employ
informal resolution in order to minimize her assault. Under
some circumstances, a school’s motivation to minimize an
incident may provide evidence of deliberate indifference. See,
e.g., Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 273 (4th Cir.
2021). In Fairfax County, a case involving the physical assault
of a high school student while on a multi-day class trip, the
school did not take any measures to protect the victim or
provide her support during the trip, school officials reacted to
reports of the incident by making inappropriate jokes and
ridiculing her, and the school failed to interview several
individuals known to have information about the incident. See
1 F.4th at 271–72. Additionally, school officials affirmatively
tried to dissuade the victim from taking legal action. Id. at 272.
The Court of Appeals for the Fourth Circuit determined that a
reasonable jury might conclude that such evidence showed that
the school “tried to sweep the reports under the rug” so as not
to cause problems for the assailant, a star student, and
amounted to deliberate indifference. Id. at 273.
Here, in contrast, while Bylander offered informal
resolution as one (improper) option for addressing McAvoy’s
experience, the record does not establish that her offer was part
of an overall effort to minimize the incident. Rather, the record
reflects that Dickinson provided her both mental health and

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26
academic support, responded to her affirmative requests for
accommodations, expended significant resources in
conducting a thorough investigation of the assault, and did not
attempt to dissuade her from pursuing Title IX relief. Under
these circumstances, we do not view Bylander’s offer of
procedures that would have violated the Policy as sufficient to
constitute deliberate indifference.
4.
McAvoy sums up her Title IX claim by contending that
“Dickinson’s utter lack of any response” was clearly
unreasonable and therefore rose to the level of deliberate
indifference. McAvoy Br. 21. Yet the record contradicts her
position. Dickinson put a no-contact directive in place,
provided McAvoy with support and resources, and conducted
an in-depth investigation ultimately ending with the imposition
of sanctions on TS.16 We cannot conclude — as we must, if
16 McAvoy does not dispute Dickinson’s decision to impose
probation on TS at the conclusion of the Title IX proceeding,
although she does contend that Dickinson acted unreasonably
by rescinding the no-contact directive at that time. While the
decision to rescind the no-contact directive is somewhat
puzzling, it alone is not enough to create a genuine dispute of
material fact as to whether Dickinson’s overall response was
clearly unreasonable. There is no evidence in the record that
TS was on campus that summer (the time of the recission) and
TS withdrew from Dickinson and did not return. We also
observe that McAvoy is not entitled to demand particular
sanctions in this Title IX proceeding, as Title IX is not an
avenue for second-guessing the disciplinary decisions of
school administrators. See Davis, 526 U.S. at 648 (“[C]ourts

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McAvoy is to prevail — that Dickinson’s actions reflect what
amounts to an official decision not to remedy the Title IX
violation in her case. See Gebser, 524 U.S. at 290 (“The
premise [of Title IX deliberate indifference] . . . is an official
decision by the recipient [of federal funds] not to remedy the
violation.”).
We reiterate, in conclusion, that our role in this case is
limited. While we sympathize with the fact that McAvoy
underwent a traumatic and upsetting experience, we are not
tasked with considering TS’s actions or with substituting our
own judgment for Dickinson’s manner of sanctioning him. We
consider only whether Dickinson acted with deliberate
indifference to McAvoy’s assault. Applying Davis, we
conclude that, even if Dickinson could have done more,
communicated more frequently, and acted more quickly, the
evidence shows that its response was not clearly unreasonable
under the known circumstances, so Dickinson was not
deliberately indifferent. See Davis, 526 U.S. at 648 (holding
that Title IX recipients are deliberately indifferent only where
the response (or lack of response) to student-on-student
harassment “is clearly unreasonable in light of the known
circumstances”). Summary judgment therefore was
appropriate. See, e.g., Johnson, 972 F.3d at 915 (concluding
that summary judgment for school on deliberate indifference
claims was appropriate where the school tried to conduct an
investigation and it put a no-contact order into place); Karasek,
956 F.3d at 1108 (concluding that the university was not
deliberately indifferent where it investigated the complaint,
interviewed the assailant, and imposed sanctions).
should refrain from second-guessing the disciplinary decisions
made by school administrators.”).

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B.
In addition to her Title IX claim, McAvoy contends that
Dickinson breached its contract with her by failing to abide by
the terms of its Policy, specifically the sixty-day timeline and
written notice provisions. Pennsylvania law recognizes that
the relationship between a student and a private educational
institution is contractual in nature, so a student may bring a
breach of contract action if the institution is claimed to have
violated that contract. Swartley v. Hoffner, 734 A.2d 915, 919
(Pa. Super. Ct. 1999). To prevail on her breach of contract
claim against Dickinson, McAvoy was required to establish the
existence of a contract, its breach, and resulting damages. See
McShea v. City of Phila., 995 A.2d 334, 340 (Pa. 2010).
Assuming without deciding that McAvoy satisfied the other
elements for a breach of contract claim, summary judgment
was appropriate because she did not produce evidence that she
suffered damages caused by the claimed breach. See Logan v.
Mirror Printing Co. of Altoona, 600 A.2d 225, 226 (Pa. Super.
Ct. 1991) (requiring a causal connection between the breach
and the loss).
Even accepting that Dickinson’s failure to notify
McAvoy in writing constituted a breach,17 McAvoy failed to
establish that the lack of notice caused her claimed injuries
(that is, continuing to encounter TS during spring 2018 while
the investigation was ongoing and delaying her graduation).
17 At oral argument, McAvoy conceded that the Policy does not
require Dickinson to complete all investigations within sixty
days provided that it gives written notice and clarified that the
primary breach McAvoy asserts is the failure to provide such
notice.

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29
There is ample evidence that McAvoy was made aware of the
investigation’s progress during its pendency, while there is no
evidence that the asserted injuries were caused by a lack of
written notice. We therefore agree with the District Court that
summary judgment was appropriate.
III.
For all of the foregoing reasons, we conclude that the
District Court properly granted summary judgment to
Dickinson on McAvoy’s Title IX and breach of contract
claims. We therefore will affirm the judgment of the District
Court.

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