Arvilla Stinson v. Tramene Maye, et al.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 19-10815
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D.C. Docket No. 2:15-cv-00924-WKW-SRW

ARVILLA STINSON,
as next friend of K.R., a minor,

Plaintiff-Appellant,

versus

TRAMENE MAYE, et al.,

Defendants-Appellees.
________________________

Appeal from the United States District Court
for the Middle District of Alabama
________________________
(August 25, 2020)
Before ROSENBAUM, ED CARNES, and BOGGS,
*
Circuit Judges.
PER CURIAM:

*
The Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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This case concerns the tragic gang raping of K.R.,
1
who at the time was a
student at Southlawn Middle School in Montgomery. The gang rape, perpetrated by
three boys who were also Southlawn students, occurred on the edge of school
property, shortly after school ended, while school employees remained on duty.
According to the complaint, Defendant Tramene Maye, the assistant principal at
Southlawn, saw the three boys grab K.R. and drag her into an abandoned building,
where they raped her. Although Maye saw this occur and K.R.’s stepsister further
alerted him to the ongoing violence, Maye did nothing. Nor did Southlawn have a
policy specifically addressing student-on-student sexual harassment.
When Rafiq Vaughn, the principal of Southlawn at the time these events
occurred, learned of them from K.R.’s mother, he called law enforcement. Allegedly
in connection with that phone call, law enforcement deemed the rape “consensual
sex” and took no further action. While K.R. and her mother were in Vaughn’s office
after the rape, Vaughn allegedly made some entirely inappropriate comments to K.R.
and later encouraged her to transfer out of Southlawn. In contrast, not one thing was
done with respect to the boys involved. They stayed at Southlawn and were not

1
This case requires us to review an order granting a motion to dismiss for failure to state a
claim under Rule 12(b)(6), Fed. R. Civ. P. So for purposes of reviewing the order dismissing the
case, we set forth and discuss the allegations in the complaint as though they are true, viewing
them in the light most favorable to Stinson. Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283,
1288 (11th Cir. 2010). They may or may not prove to be the actual facts.
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disciplined or investigated by the school in any way—even when Vaughn learned
that all the students were saying that the boys had “run a train”
2
on K.R.
K.R.’s mother, Arvilla Stinson, sued the Montgomery County Board of
Education (the “Board”), alleging violations of Title IX, 20 U.S.C. § 1681. She also
sued Maye and Vaughn, asserting Alabama common-law claims. The Board moved
to dismiss Stinson’s Title IX claim, and the district court granted the motion. Since
only Stinson’s state-law claims remained, the district court dismissed the case to
allow Stinson to pursue them in state court.
On appeal, Stinson challenges the district court’s dismissal of her Title IX
claim against the Board. Her complaint focuses solely on the events following the
gang rape—that is, on Vaughn’s response to K.R.’s report of having been raped.
After careful review, we conclude that, as alleged in Stinson’s complaint, Vaughn’s
response (on behalf of the Board) to K.R.’s gang rape violated Title IX. We
therefore reverse the ruling of the district court dismissing Stinson’s Title IX claim
and remand for further proceedings.
I.
A. The Board’s Policies

2
To “run a train” means to gang rape. Williams v. Bd. of Regents of Univ. Sys. of Ga., 477
F.3d 1282, 1288 n.3 (11th Cir. 2007).
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The Board had a Handbook that contained grievance procedures for Title IX
claims. That Handbook, though, did not specifically address Title IX grievances
relating to student-on-student harassment.
It did, however, have a section concerning bullying and harassment among
students. Under the Handbook, “harassment” included, among other things,
subjecting another student to physical contact. According to the Handbook, any
Board employee who was aware of bullying or harassment was required to promptly
notify the school principal or other designated person by delivering to the principal
or other designated person a completed Bullying/Harassment Complaint Form.
The Handbook then required the principal or his designee to accept and
investigate all reports of harassment or bullying. Under the Handbook, except for
good cause, any investigation was required to be completed within five business
days after the administrator or designated investigator received notice of the
complaint. Upon completion of the investigation, the Handbook mandated that the
principal or designated investigator provide a written report to the Chief Academic
Officer. In particular, the written investigation report was to include a determination
of whether the allegations were factual, whether a policy violation occurred, and any
proposed discipline.
The Handbook provided that verified acts of bullying or harassment would
result in disciplinary action, corrective action, or both, reasonably calculated to end
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the identified conduct, deter future misconduct, and protect the complainant and
other similarly situated individuals. In accordance with the Handbook, forcible rape
was “Sexual Battery,” which was a Class D offense punishable by Proposal for Due
Process/Expulsion.
B. The Gang Rape of K.R. and the Board’s Response
On about October 23, 2014, K.R. was leaving Southlawn’s campus at the end
of the school day. Suddenly, a group of three boys grabbed her and dragged her into
an abandoned building on the perimeter of the school’s property.
As this was happening, K.R.’s stepsister, who had been walking with K.R.,
pointed out to Assistant Principal Maye what was going on. Though Maye saw the
three boys grabbing and dragging K.R., he did nothing to stop the boys. Instead, he
told K.R.’s stepsister to just “go on about her business.” Maye took no further
action; he did not even report the events to Principal Vaughn. Meanwhile, two of
the boys gang raped K.R. while the third kept a lookout.
Stinson, who was on campus at the time participating in a parent-teacher
meeting, soon learned of the gang-raping. She immediately went to Vaughn’s office
to report the episode. During Stinson’s meeting with Vaughn, Vaughn “exhibited
little concern for K.R.” and instead focused his attention on trying to convince
Stinson to refrain from calling the media. Then he told K.R. that she needed to “love
her body” and that K.R. had more of an adult’s body, similar to Vaughn’s girlfriend.
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Nevertheless, Vaughn did call the local police about the incident. For their
part, the local police deemed the rape “consensual sex” and took no further action.
Following the meeting with Vaughn, Stinson took K.R. to the hospital for
treatment. Hospital personnel concluded that K.R. had “clearly been raped” so they
called the police and notified Child Protective Services and the Alabama Department
of Human Resources.
K.R. fell into a deep depression. Because of the gang rape, K.R. received
psychological treatment. She also missed seven to eight days of school. During this
period, K.R. did not want to leave her home. No one from Southlawn or the Board
contacted K.R. during her absence from school. Nor did the Board offer counseling
to K.R. or take any other steps to assist her in dealing with her grief after the gang
rape.
Vaughn did not complete any reports about the gang rape, did not conduct any
investigation into the gang rape, and did not undertake any further actions relating
to the gang rape, including disciplining the boys involved. And K.R. did not receive
notice of Title IX or her right to make a grievance regarding the gang rape. The
Board did not change any of its policies or provide any additional training to
employees after these events.
About a week into K.R.’s absence from school, Stinson went to Southlawn to
give K.R.’s doctor’s note to the school and to pick up K.R.’s schoolwork. While
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there, Stinson spoke with Vaughn about K.R.’s distress. Vaughn responded by
suggesting that Stinson not permit K.R. to return to Southlawn because all the
students were saying that the three boys had “run a train” on K.R.
So though the boys involved remained at Southlawn, K.R. transferred to a
different school within the Board’s school system. There, she had to deal with the
stress of starting at a new school in the middle of the school year. Adding to that
stress, other students at K.R.’s new school became aware of the gang rape through
social media. They teased her about it. K.R. continues to take medication and
receive treatment for mental-health trauma. Her grades have dropped, and her social
life has declined. She also has become reluctant to leave her house and has had
violent outbursts towards her younger siblings.
Meanwhile, at least as of the date Stinson filed her complaint, the Board had
not changed any of its policies. Nor had it provided any additional training to staff
following K.R.’s gang rape.
Based on these events, Stinson sued the Board, Vaughn, and Maye, alleging
three counts. She set forth one federal claim under Title IX against only the Board
(Count I). In Count II, she asserted a claim for “negligence/wantonness” against
Maye in his individual and official capacities. And in Count III, she charged Vaughn
in his individual and official capacities with the tort of “outrage (intentional/reckless
infliction of emotional distress).” The Board moved to dismiss Count I, and the
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district court granted the motion, dismissing the two state claims as well (though
without prejudice, unlike with respect to Count I), to allow them to proceed in state
court. On appeal, therefore, our sole focus is on Count I, the Title IX claim against
the Board.
In her Title IX claim, Stinson alleged that “Vaughn, as principal of Southlawn
Middle, is high enough on the chain of command to impute liability to [the Board]
for purposes of Title [IX] liability.” She made no allegations at all in her Title IX
claim about Maye or about his failure to help K.R. Nor did she incorporate any
allegations about Maye from any other parts of her complaint into the Title IX claim.
Rather, Stinson alleged only that “Vaughn had the authority to initiate corrective
action in response to K.R. being gang raped.”
In particular, Stinson’s Title IX claim asserted that the Board is liable for
failing to do the following things: (1) “have a specific policy for addressing student-
on-student grievances under Title IX framework”; (2) “make grievance procedures
. . . known and available to the Plaintiff”; (3) “process the complaints of sexual
assault and rape alleged by K.R. as mandated by Title IX”; (4) “notify K.R. that her
complaints of sexual assault and rape were covered under Title IX and that she was
afforded protection thereunder”; (5) “properly investigate K.R.’s allegations of
sexual assault and gang rape”; (6) impose disciplinary measures or take remedial
action against the individuals who raped K.R.”; and (7) “reach a timely outcome of
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the investigation (because there was no investigation) and their subsequent failure
to make Plaintiff aware of [the] outcome.” In addition, the claim alleged that the
Board, “through Vaughn, violated Title IX by making statements regarding K.R.’s
body and how she should ‘love her body’ after she was gang raped.”
As relief, Stinson sought declaratory and injunctive relief, as well as damages.
The Board moved to dismiss Count I for failure to state a claim. In opposing
the Board’s motion, Stinson once again confirmed that her “Title IX allegations
center not on the rape itself, but on the [Board’s] deliberately indifferent response to
K.R.’s rape.” Stinson did not seek leave to amend her complaint if the district court
found her complaint failed to state a claim under Count I.
As we have noted, the district court granted the Board’s motion and dismissed
Count I with prejudice. In concluding that Stinson’s Title IX count failed to state a
claim, the district court, consistent with Stinson’s complaint and her opposition to
the Board’s motion to dismiss, considered only the Board’s post-gang-rape conduct.
Stinson now appeals.
II.
We review de novo a district court’s order granting a motion to dismiss a
complaint for failure to state a claim. Echols v. Lawton, 913 F.3d 1313, 1319 (11th
Cir.), cert. denied, 139 S. Ct. 2678 (2019); Hill v. White, 321 F.3d 1334, 1335 (11th
Cir. 2003) (per curiam). In reviewing a ruling on a Rule 12(b)(6) motion, we “accept
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the factual allegations in the complaint as true and construe them in the light most
favorable to the plaintiff.” Echols, 913 F.3d at 1319 (citation omitted). To defeat a
motion to dismiss, a complaint must contain enough factual allegations that,
accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
III.
Rule 8(a)(2), Fed. R. Civ. P., requires a complaint to provide “a short and
plain statement of the claim showing that the pleader is entitled to relief.” The
purpose of the “statement” is to “give the defendant fair notice of what the claim is
and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(cleaned up). We have recognized that this rule aims to enable the responding party
to identify the pleader’s claim, frame a responsive pleading, and to permit the court
to determine which facts are intended to support which claims. Weiland v. Palm
Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1320 (11th Cir. 2015). Though Stinson
is represented here, even when a plaintiff proceeds pro se and we therefore leniently
review her pleadings, we cannot act “as de facto counsel for a party or . . . rewrite
an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. Cty.
of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
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Here, Stinson’s complaint and her opposition to the Board’s motion to dismiss
in the district court both rested her Title IX claim exclusively on the Board’s action
after K.R.’s gang rape. For that reason, the district court likewise evaluated
Stinson’s Title IX claim on the basis of only the Board’s post-rape actions. Because
Stinson’s complaint did not provide notice to the Board or to the district court that
she sought to include within her Title IX claim Maye’s pre-rape actions (in addition
to basing it on the Board’s post-rape conduct), we likewise confine our assessment
of Stinson’s Title IX claim taking into account only the Board’s response to the rape.
On appeal, Stinson asserts for the first time that her Title IX claim is also
premised on the Board’s (through Maye’s) pre-rape conduct. But a complaint cannot
be amended by the briefs on appeal. Agnew v. NCAA, 683 F.3d 328, 348 (7th Cir.
2012); Gallagher v. City of Clayton, 699 F.3d 1013, 1022 (8th Cir. 2012). And there
is simply no way to read Stinson’s Title IX claim as alleged to rest in part on Maye’s
actions.
IV.
Title IX guarantees, with exceptions not relevant here, that “[n ]o person in the
United States 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). The Supreme
Court has held that Title IX provides for an implied private right of action for which
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money damages are available. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629,
639 (1999).
Among others, student-on-student sexual harassment and sexual violence can
constitute forms of discrimination for which a recipient of federal-education funding
can be held liable under certain circumstances. Davis, 526 U.S. at 646-47. In
particular, the Supreme Court has concluded that liability under Title IX may lie for
a funding recipient that “subject[s] [its] students to discrimination where the
recipient is deliberately indifferent to known acts of student-on-student sexual
harassment and the harasser is under the school’s disciplinary authority.” Id.
(internal quotation marks omitted).
Our case law establishes that a plaintiff seeking to make out a claim for
student-on-student Title IX liability must show seven things
3
: (1) the defendant
must be a recipient of federal education funding, Hill v. Cundiff, 797 F.3d 948, 970
(11th Cir. 2015); (2) an “appropriate person,” meaning an official of the funding
recipient who, “at a minimum has authority to address the alleged discrimination and
to institute corrective measures on the recipient’s behalf,” Hill, 797 at 970-71

3
We have previously variously described a Title IX claim for student-on-student sexual
harassment to have four elements, see Hill v. Cundiff, 797 F.3d 948, 970 n.11 (11th Cir. 2015)
(describing Hawkins v. Sarasota Cty. Sch. Bd., 322 F.3d 1279, 1285 (11th Cir. 2003), as
identifying four elements of a Title IX student-on-student sexual-harassment claim), and five
elements, see Hill, 797 F.3d at 970 & 970 n.11. Our discussions of the application of these
elements, though, shows that however we may have counted them in the past, in fact, there are
effectively seven elements of Title IX claim for student-on-student sexual harassment.
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(quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)), must
have had (3) actual knowledge of the sexual harassment and discrimination the
plaintiff suffered, id.; ( 4) the sexual harassment must have been “sufficiently ‘severe,
pervasive, and objectively offensive’” by Title IX standards, id. at 972 (quoting
Davis, 526 U.S. at 651); (5) the funding recipient must have been deliberately
indifferent to the sexual harassment and discrimination the plaintiff endured, id. at
973; (6) the funding recipient’s actions must have caused the plaintiff to undergo
sexual harassment or made the plaintiff more vulnerable to it or its effects, see id.;
and (7) the funding recipient’s deliberate indifference to the harassment and
discrimination must have effectively barred the plaintiff’s access to an educational
opportunity or benefit, id. at 975.
Here, the allegations in the complaint satisfy all these elements.
First, the defendant must receive federal education funding for Title IX
purposes. Davis, 526 U.S. at 639. Here, the complaint alleges that the Board is a
public-school district. Therefore, it is a Title IX funding recipient. See
https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/sex.html
(last visited
August 25, 2020) (“All public school districts are covered by Title IX because they
receive some federal financial assistance and operate education programs.”).
Second and third, an “appropriate person,” meaning an official of the funding
recipient who “at a minimum has authority to address the alleged discrimination and
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to institute corrective measures on the recipient’s behalf,” must have had actual
knowledge of the sexual harassment the plaintiff endured. Hill, 797 F.3d at 971
(quoting Gebser, 524 U.S. at 290). We have explained that an “appropriate person”
is a school official who is “high enough up the chain-of-command that his acts
constitute an official decision by the school district itself not to remedy the
misconduct.” Id. (citation omitted). Therefore, who qualifies as an “appropriate
person” is a fact-specific inquiry that differs from school district to school district
based on officials’ varying roles. Doe v. Sch. Bd. of Broward Cty., 604 F.3d 1248,
1256 (11th Cir. 2010). Nevertheless, we have previously noted that principals likely
generally satisfy the standard. Id. After all, principals usually have the authority to
“take corrective measures” to respond to allegations of student-on-student
harassment. Id.; see also, e.g., Hill, 797 F.3d at 971 (holding that the principal and
two assistant principals were “appropriate persons”).
Here, the parties do not dispute that Vaughn is an “appropriate person” for
Title IX purposes. For good reason. The complaint alleges that Vaughn, as the
principal of Southlawn, “was and is the highest-ranking school official at Southlawn
. . . and is the first line of responsibility for ensuring that the students in his school
are safe.” In addition, it asserts that the Board’s Handbook assigns school principals
the responsibility to ensure that all reports of harassment or bullying are investigated.
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The Board likewise concedes that Stinson supplied Vaughn with actual
knowledge of the alleged gang rape of K.R. on the day it occurred. Again, the
complaint requires this conclusion at the motion-to-dismiss stage. See, e.g., ECF
No. 33 at ¶ 40 (averring that Stinson went to Vaughn’s office and reported the gang
rape immediately after it occurred).
That brings us to the fourth element: whether the sexual harassment was
“sufficiently ‘severe, pervasive, and objectively offensive’” by Title IX standards.
Hill, 797 F.3d at 972 (quoting Davis, 526 U.S. at 651). Sexual harassment satisfies
this element when it is “so severe, pervasive, and objectively offensive, and . . . so
undermines and detracts from the victims’ educational experience, that the victim-
students are effectively denied equal access to an institution’s resources and
opportunities.” Davis, 526 U.S. at 651.
The alleged events here certainly satisfy this threshold. K.R., a Southlawn
student, was grabbed and dragged by three other Southlawn students and then gang
raped. Then, after that occurred, her own principal, to whom she reported the
violence, exacerbated the situation, telling K.R. she had a woman’s body like his
girlfriend and that she should love her body. His sole remedial response was to call
the police. But, according to the allegations of the complaint, Vaughn took no other
action at all. He did not even speak with the boys involved—even after Southlawn
students openly gossiped that the boys had “run a train” on K.R. Instead of doing
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anything at all to address the boys’ violence, he told K.R. to transfer to another
school, thus engineering her denial of equal access to Southlawn’s resources and
opportunities. Indeed, what gang-rape victim would not have a problem with
continuing to sit in class with three boys who gang raped her with impunity?
The facts here “differ markedly from the rarely actionable, theoretical single
incident mentioned in Davis.” Hill, 797 F.3d at 973 (quoting Williams v. Bd. of
Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1298 (11th Cir. 2007) (internal
quotation marks omitted)). Even setting aside Maye’s failure to stop the gang rape
(since Stinson does not seek in her Title IX claim to hold the Board liable for that),
the series of events that followed were several, lasted over an extended period, and
only aggravated the effects of the gang rape. As we have noted, those alleged actions
(and inactions) included Vaughn’s inappropriate remarks to K.R., his failure to
follow up at all with K.R., his failure to advise K.R. of her Title IX rights, his failure
to investigate the incident or even speak with the boys involved (even when he knew
the rest of the Southlawn students were saying that the boys had “run a train” on
K.R.), his failure to discipline the boys involved, and his suggestion that K.R. leave
Southlawn.
As for the fifth element of a Title IX claim—whether the funding recipient
was deliberately indifferent to the sexual harassment and discrimination the plaintiff
endured—the complaint alleges that certain events happened in a certain sequence
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that is significant for this element of the claim. First, Vaughn showed little concern
for K.R. and “pleaded with Stinson to refrain from calling the media.” Then Vaughn
told K.R. that she needed to “‘love her body’” and that she “had more of an adult
body similar to [his] girlfriend’s body.” Then Vaughn “called the local police, who
deemed the rape ‘consensual sex’ and took no further action.” After that, Stinson
took K.R. to the hospital where medical personnel determined that K.R. had been
raped and notified the authorities.
The complaint does not indicate how long the police took to arrive at the
conclusion of “consensual sex” or what investigation, if any, led them to that
conclusion. We do know that the hospital concluded that K.R. had been raped and
reported that conclusion to the police. Given the circumstances, and given that there
is no allegation as to any investigation or any period of time before Vaughn was
informed of law enforcement’s conclusion of consensual sex, we can, at this stage,
draw an inference favorable to Stinson that little or no investigation was done by
police and Vaughn knew that.
A further reasonable inference from the allegations about the sequence of
events is that Vaughn’s phone call to police led to the determination the police made
that the rape was “consensual sex” and therefore no further action was needed.
Vaughn certainly made no investigation himself and apparently he did not inquire
as to what investigation was done by police.
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Despite K.R.’s very serious allegations against the boys and the lack of
information as to any police investigation following Vaughn’s phone call, the Board
did nothing further. Of course, Stinson herself could have reported the attack to the
police, and the hospital actually did. In fact, the hospital did more than the Board.
After concluding itself that K.R. “had clearly been raped,” the hospital called not
only the police but also Child Protective Services and Alabama’s Department of
Human Resources.
But Vaughn didn’t. Under different circumstances, a school official may be
entitled to rely on law enforcement’s investigation. See I.F. v. Lewisville Indep. Sch.
Dist., 915 F.3d 360, 378 (5th Cir. 2019) (concluding that where the school district
“promptly reported” to the police that a student was being cyberbullied, and the
police department “began an investigation” that resulted in a student’s being charged
with criminal harassment and thus, the school’s three-day suspension of him and its
assignment of him to the Disciplinary Alternative Education Program for thirty days,
there was no evidence of deliberate indifference). But those are not the allegations
in Stinson’s complaint. Instead, it alleges that Vaughn only made a phone call to
police that allegedly led to their conclusion that something happened to K.R. that
should be deemed “consensual sex.” Vaughn then undertook no further action or
inquiry.
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Based on those allegations, Vaughn’s reliance on that “consensual sex”
conclusion is clearly unreasonable. Title IX “does not require school districts to
simply do something in response to sexual harassment; rather, they must respond in
a manner that is not ‘clearly unreasonable in light of the known circumstances.’”
Doe, 604 F.3d at 1263 (quoting Davis, 526 U.S. at 648 (emphasis added by Doe)).
Vaughn’s response here—making a single phone call to law enforcement—could
have been less only if he did absolutely nothing.
Vaughn did not speak at all with the boys involved, even though Maye had
seen the three boys grab and drag K.R. into the abandoned building before the
alleged gang rape—actions that in and of themselves (and even without
consideration of the gang rape) are violent and sexually harassing. Nor did the Board
itself undertake or even begin any kind of investigation at all.
Worse yet, Vaughn exacerbated the situation. He told his middle-school
student K.R., who had just complained to him of having been gang raped, that she
had a woman’s body like his girlfriend and that she should love her body. The first
remark seems to excuse the boys’ behavior, and both comments were entirely
inappropriate to make to a middle-school-aged girl who had just reported having
been gang raped. Besides these offensive statements, Vaughn did nothing to follow
up with K.R. when she missed school for seven or eight days. Nor did he even advise
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her of her Title IX rights, including her right to make a grievance about the alleged
gang rape.
And when Stinson met with Vaughn and discussed K.R.’s distress, Vaughn
did not seek to find ways to allow K.R. to return to Southlawn and feel safe. He did
just the opposite: he effectively acknowledged that it was common knowledge
around school that K.R. had been gang raped (he advised Stinson that all the students
were saying that the boys had “run a train” on K.R.) and then told Stinson that K.R.
should transfer mid-schoolyear to another school. Even though Vaughn knew that
the students believed K.R. had been gang raped, he still did nothing with respect to
the boys involved. He did not discipline them in any way or even speak with them
about the tragic incident. So because of Vaughn’s decisions, they remained at
Southlawn with impunity while their alleged victim suffered the further
consequences of having to transfer to a different school.
In short, the Board’s response to Stinson’s report of K.R.’s alleged gang rape
was effectively “an official decision . . . not to remedy the violation” of Title IX.
Doe, 604 F.3d at 1259 (quoting Gebser, 524 U.S. at 290). As a result, the Board’s
deliberate indifference subjected K.R. to additional discrimination. Specifically,
K.R. had to endure Vaughn’s inappropriate remarks, the Board’s failure to advise
K.R. of her Title IX rights, and the Board’s refusal to undertake any action at all
(other than Vaughn’s initial call to the police, which was followed by the
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“consensual sex” conclusion). The Board did nothing to make it safe for K.R. to
return to Southlawn. Based on those allegations, Stinson has stated a claim that the
Board’s response violated Title IX. Hill, 797 F.3d at 973 (“A clearly unreasonable
response causes students to undergo harassment or makes them more vulnerable to
it”); Williams, 477 F.3d at 1293 (holding that a funding recipient is liable under
Ti tle IX if the recipient’s deliberate indifference “subjected” the plaintiff to
discrimination).
Indeed, in Doe, where the principal actually investigated (albeit very sloppily)
two prior complaints of teacher-on-student sexual harassment, we concluded that
there was a material issue of fact over whether the school had been deliberately
indifferent. 604 F.3d at 1260. We said that, despite our acknowledgment that the
funding recipient there “took some action in response to [the] sexual harassment
allegations” and that it was “not a situation in which a school district ‘made no effort
whatsoever either to investigate or to put an end to the harassment.’” Id. (quoting
Davis, 526 U.S. at 654). By comparison, construing the allegations of Stinson’s
complaint in the light most favorable to her, Vaughn’s phone call to police and his
statements in the course of that call were followed by the conclusion, without any
investigation, that the rape was “consensual sex” and no further action was needed.
If the funding recipient’s actions in Doe were not enough to defeat summary
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judgment, the Board’s response here, through Vaughn, certainly could not have
sufficed to justify dismissal of the case altogether.
Turning to the sixth element—causation—we have already explained how the
Board’s deliberate indifference through its actions and inactions caused K.R. to
undergo sexual harassment, not to mention how they caused K.R. to be more
vulnerable to the effects of the sexual harassment she suffered.
Finally, we have also described how the Board’s deliberate indifference to the
harassment K.R. endured effectively barred K.R.’s access to Southlawn. We have
previously concluded that a funding recipient’s clearly unreasonable response to a
rape, which resulted in the victim’s decision to unenroll and move to another school
district in another state, satisfied this element. Hill, 797 F.3d at 975. Here, the
factual allegations are even more compelling—the principal actually advised Stinson
to transfer K.R. out of Southlawn.
In sum, Stinson’s complaint alleges sufficient facts to set forth a viable Title
IX claim. For these reasons, we reverse the district court’s order dismissing the case
and remand for further proceedings.
REVERSED and REMANDED.

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