Jaycee Wamer v. University of Toledo

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0038p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAYCEE WAMER,
Plaintiff-Appellant,
v.
UNIVERSITY OF TOLEDO,
Defendant-Appellee.
┐
│
│
│
│
│
│
│
┘
No. 20-4219
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 3:20-cv-00942—James G. Carr, District Judge.
Argued: July 21, 2021
Decided and Filed: March 2, 2022
Before: BOGGS, CLAY, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: Peter Pattakos, THE PATTAKOS LAW FIRM LLC, Fairlawn, Ohio, for Appellant.
Kristine L. Hayes, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee. ON BRIEF: Peter Pattakos, Rachel Hazelet, THE PATTAKOS LAW FIRM LLC,
Fairlawn, Ohio, for Appellant. Kristine L. Hayes, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
HELENE N. WHITE, Circuit Judge. Plaintiff Jaycee Wamer appeals the dismissal of her
suit against Defendant University of Toledo (“UT”) for deliberate indifference to sexual
>

-- 1 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 2
harassment by her instructor, in violation of Title IX. The district court granted UT’s motion to
dismiss, applying the standards for deliberate indifference to student-on-student harassment laid
out in Kollaritsch v. Michigan State University Board of Trustees, 944 F.3d 613 (6th Cir. 2019).
Because we find that the Kollaritsch test is not applicable to claims of deliberate indifference to
teacher-student sexual harassment, we reverse and remand for further proceedings.
I.
On May 2, 2018, Wamer, an undergraduate Communications major, was working to
complete a final project for instructor Eric Tyger’s class at UT’s Media Center when Tyger came
from behind and placed his arm around her, resting it on her chest while touching her hair.
Wamer continued working on her project, and when it was complete, she asked Tyger for
permission to use the computer in his office to print her project for submission. Tyger indicated
that she could do so, but did not move from his seat, so Wamer was forced to reach across
Tyger’s lap to access Tyger’s computer to print the assignment. As she did so, Tyger leaned his
head against Wamer, placed his hand on the middle of her thigh, and told her she smelled good,
asking what kind of perfume she wore because he wanted to “buy it for [his] wife.” R. 1, PID 4.
Tyger also asked Wamer about her job at a state park, mentioning he had once worked there and
“would go into the empty rooms to f*** women.” Id.
That evening and the following day, Tyger sent Wamer text messages asking for details
regarding her work schedule, insisting that she “better come visit [him] again” and eventually
texting, “Or don’t answer me. It’s cool,” when Wamer did not respond. Id.
In addition to the specific allegations regarding Tyger’s contact with Wamer on May 2
and his subsequent text messages, Wamer alleges that Tyger “frequently made inappropriate
comments to [his] class, including that students should ask about [his] drug overdose, that [he]
would not have gotten married at such a young age if his wife had not been pregnant, and that,
concerning the ‘#metoo’ movement against sexual assault and harassment, [he] believed that the
women were ‘asking for it.’” Id. at PID 3.

-- 2 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 3
On May 4, Wamer contacted Kevin O’Korn, a faculty member at UT, and reported
Tyger’s unwanted sexual advances. That day, O’Korn and Wamer each submitted a complaint
regarding Tyger’s conduct to UT’s Office of Title IX and Compliance.
At some point following submission of the reports, UT’s Title IX Office contacted
Wamer and asked whether she was “comfortable” attending a face-to-face interview on campus
regarding the incident, and Wamer responded that she was not. Id. at PID 6. Wamer alleges that
she was afraid of coming into contact with Tyger on campus and also feared retribution for
having reported the incident. According to Wamer, UT informed her it would continue to pursue
the case against Tyger even if she did not come in for an in-person interview, and Wamer never
indicated that she was choosing not to pursue the complaints against Tyger or that she did not
want UT to continue its investigation. However, three weeks after Wamer and O’Korn
submitted their reports, the University notified Wamer that it was closing its investigation and
would be taking no action. Wamer asserts that she would have agreed to attend an interview and
otherwise fully participate in the investigatory process if she had known that UT would
otherwise cease its investigation.
After UT closed its investigation without taking any action against Tyger, Wamer had an
increasingly difficult time concentrating on her studies and feared visiting campus for in-person
classes. As a result, Wamer changed her major, avoided coming to campus, and began enrolling
in online classes to ensure she would not come into contact with Tyger.
In October 2018, O’Korn arranged a meeting between Wamer and a more senior faculty
member, Deloris Drummond, to discuss Tyger’s harassment of Wamer. After the meeting,
Drummond reported Wamer’s allegations about Tyger to David Tucker, the chair of UT’s
Communications Department, and on November 6, Drummond filed a third complaint to UT’s
Title IX Office regarding Tyger’s May conduct. The next day, UT’s Title IX Office notified
Wamer that it had received another report naming her as a victim of sexual misconduct. On
November 27, 2018, UT placed Tyger on paid administrative leave and prohibited him from
coming to campus, based on allegations that he had “engaged in inappropriate conduct of a
sexual nature toward a student, in violation of Title IX, and the University Policies related to
Title IX.” Id. at PID 7. Wamer alleges that after Tyger was placed on administrative leave, he

-- 3 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 4
attempted to smear Wamer’s reputation among the campus community by outing her as the
student who reported him, publicizing her grades, and accusing her of lying.
On January 8, 2019, UT’s Title IX investigators interviewed O’Korn, who told them that
Wamer would have been “more comfortable” talking to someone other than an investigator
“about the situation.” Id. at PID 7–8. O’Korn also told investigators that Wamer had not been in
the building where the Media Center is located since May and had scheduled mostly online
classes to avoid Tyger. On May 10, 2019, UT held a pre-disciplinary hearing for Tyger. UT
investigators found that Tyger had engaged in sexual misconduct as Wamer had alleged and
recommended termination.
Wamer filed this action under Title IX, claiming that the University was deliberately
indifferent to the reports of sexual harassment that she and O’Korn made in May 2018, and that
the University’s indifference “unreasonably interfered with Wamer’s participation in and
enjoyment of the benefits of UT’s educational programs and activities.”1 Id. at PID 9.
UT filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim under Title IX. UT argued that Wamer failed to plead facts sufficient to
find that she was subjected to “severe, pervasive, and objectively offensive harassment” or that
she was “subjected to further sexual harassment after notifying the University of her complaint.”
R. 5, PID 118–21. Wamer responded, arguing that the pleading standards cited by UT in its
motion were applicable only to allegations of peer harassment, and thus did not apply to her
claims of teacher-on-student harassment.
The district court granted the University’s motion to dismiss. As to UT’s argument that
Wamer had failed to allege conduct satisfying the standard for “severe, pervasive, and
objectively offensive” harassment, the court agreed with Wamer that the standard is applicable
only to allegations of student-on-student harassment, and because Tyger was a faculty member,
Wamer simply needed to “allege that [his] misconduct amounts to actionable sexual harassment,
1The district court characterized Wamer’s complaint as alleging that UT was deliberately indifferent to all
three complaints, including Drummond’s November complaint, but the plain language of Wamer’s complaint
conflicts with that characterization.

-- 4 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 5
which she ha[d].” Wamer v. Univ. of Toledo, No. 20-cv-942, 2020 WL 6119419, at *3 (N.D.
Ohio. Oct. 16, 2020).
The district court concluded that the elements of a deliberate-indifference claim
applicable to cases of student-on-student harassment, articulated in Kollaritsch, are equally
applicable to instances of alleged teacher-student harassment, and thus determined that Wamer
was required to plead the following to survive a motion to dismiss: (1) institutional knowledge;
(2) an act of sexual harassment; (3) consequent injury; and (4) causation. Id. The district court
also explained that UT’s “response to allegations of sexual harassment” would amount to
deliberate indifference “only if its response [was] clearly unreasonable in light of known
circumstances.” Id. (citing Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999)).
Applying that test, it found that although “Tyger subjected [Wamer] to unwelcome and
indefensible sexual harassment, [Wamer] does not allege that the University’s action post-notice
was detrimental in that it resulted in harassment or that the University’s insufficient action made
‘the victim more vulnerable to, meaning unprotected from, further harassment.’” Id. at *4
(quoting Kollaritsch, 944 F.3d at 623). According to the district court, “[Wamer’s] subjective
dissatisfaction with the investigation’s outcome does not plausibly support an inference that
UT’s response, to engage in a three-week investigation unaided by [Wamer], left her exposed to
a risk of further sexual harassment or caused her to be more vulnerable to such sexual
harassment.” Id.
II.
This court reviews the district court’s grant of a motion to dismiss for failure to state a
claim de novo. Doe v. Miami Univ., 882 F.3d 579, 588 (6th Cir. 2018). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
When reviewing a 12(b)(6) motion to dismiss, a court must “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.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). However,
“a plaintiff’s obligation to provide the grounds of [her] entitle[ment] to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

-- 5 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 6
do. Factual allegations must be enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal quotation marks
omitted).
Wamer’s Title IX claim is based on the allegation that UT was deliberately indifferent to
reports that a professor had sexually harassed her. Title IX provides that “[n]o 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 “[u]nquestionably” encompasses a “duty not to
permit teacher-student harassment[,] . . . and recipients violate Title IX’s plain terms when they
remain deliberately indifferent to this form of misconduct.” Davis, 526 U.S. at 643 (citations
and internal quotation marks omitted). Thus, a school that receives federal funds can be held
liable in damages for a teacher’s sexual harassment of a student if it is proven that the school had
actual notice and exhibited deliberate indifference to the alleged harassment. See Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). The Supreme Court in Gebser explained that
deliberate indifference is shown where there is an official or other person with authority to take
corrective action, who has “actual knowledge of [the abuse] and fails adequately to respond.” Id.
A.
The primary issue in this appeal is whether Kollaritsch, which introduced a causation
element requiring additional post-notice harassment in deliberate-indifference claims alleging
student-on-student harassment, also applies in cases alleging teacher-on-student harassment. The
district court assumed that Kollaritsch applied and dismissed the case at least in part2 because
Wamer’s complaint did not allege any additional instances of harassment occurring after her
complaint to UT’s Title IX Office. There is no question that Wamer did not allege any post-
notice harassment, but the application of Kollaritsch to cases alleging teacher-student harassment
is an undecided question in our circuit, and there is little reason to conclude that the Kollaritsch
opinion was intended to sweep so broadly.
2We address the district court’s other possible rationale in subsection B.

-- 6 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 7
The Kollaritsch court addressed a question that divided our sister circuits following
Davis—what is required to find that a school has “subjected” a student to discrimination? See 20
U.S.C. § 1681(a). In Davis, the Supreme Court expanded Title IX liability to encompass
student-on-student harassment and explained that for a school to be liable under Title IX, its
deliberate indifference “must, at a minimum, cause [students] to undergo harassment or make
them liable or vulnerable to it.” 526 U.S. at 645 (internal quotation marks omitted). The First,
Tenth, and Eleventh Circuits read this language to mean that students must demonstrate only that
a school’s deliberate indifference made harassment more likely, not that it actually led to any
additional post-notice incidences of harassment. See Farmer v. Kan. State Univ., 918 F.3d 1094,
1103–05 (10th Cir. 2019) (plaintiffs who alleged that they were raped by classmates could make
out a viable deliberate-indifference claim by showing that the university’s unreasonable response
made them more vulnerable to future assaults or harassment, resulting in an “objectively
reasonable” fear sufficient to deprive them of educational opportunities); Fitzgerald v.
Barnstable Sch. Comm., 504 F.3d 165, 172–73 (1st Cir. 2007) (recognizing that “a single
instance of peer-on-peer harassment theoretically might form a basis for Title IX liability if that
incident were vile enough and the institution’s response, after learning of it, unreasonable
enough to have the combined systemic effect of denying access to a scholastic program or
activity”), rev’d on other grounds, 555 U.S. 246 (2009); Williams v. Bd. of Regents of Univ. Sys.
of Ga., 477 F.3d 1282, 1297–98 (11th Cir. 2007) (finding that a victim of student-on-student
sexual assault stated a claim for deliberate indifference, although she withdrew from the
university immediately following the incident, because the university’s failure to respond
prevented her from safely returning to the school and thus deprived her of an educational
opportunity). In contrast, the Eighth and Ninth Circuits require students to allege that a school’s
deliberate indifference actually led to instances of additional harassment, not that it merely made
such harassment more likely. See K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1058 (8th Cir.
2017) (concluding that a student must identify a “causal nexus between [the school’s] inaction
and [the student] experiencing sexual harassment”); Reese v. Jefferson Sch. Dist. No. 14J, 208
F.3d 736, 740 (9th Cir. 2000) (concluding that the plaintiffs failed to allege a deliberate-
indifference claim where there was no evidence that any peer harassment occurred after the
school district learned of the allegations).

-- 7 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 8
This court in Kollaritsch held that “[a] Title IX private cause of action against a school
for deliberate indifference to student-on-student sexual harassment comprises the two
components of actionable sexual harassment by a student and a deliberate-indifference
intentional tort by the school, along with the underlying elements for each.” 944 F.3d at 623.
Further,
the plaintiff must plead, and ultimately prove, an incident of actionable sexual
harassment, the school’s actual knowledge of it, some further incident of
actionable sexual harassment, that the further actionable harassment would not
have happened but for the objective unreasonableness (deliberate indifference) of
the school’s response, and that the Title IX injury is attributable to the post-actual-
knowledge further harassment.
Id. at 623–24.
Davis and Kollaritsch both addressed claims of peer harassment, rather than teacher-
student harassment, and thus are not necessarily directly applicable, in all respects, to teacher-
student harassment claims.3 The district court assumed that the Kollaritsch framework applied
based on this court’s statement in Williams ex rel. Hart v. Paint Valley Local School District,
400 F.3d 360 (6th Cir. 2005), that there is “but one standard” for deliberate indifference under
Title IX, not “one standard for student-on-student harassment and a less stringent standard for
teacher-on-student harassment.” Id. at 367. Similarly, UT argues that “deliberate indifference
claims are reviewed under the same standard whether they arise from student-to-student or
teacher-to-student conduct.” Appellee’s Br. at 11 (citing Williams, 400 F.3d at 367).
Though, admittedly, taken out of context, some language in Williams would appear to
sweep quite broadly, the court in Williams made its observations regarding the “standard” for
deliberate-indifference claims while analyzing what kind of response from a school district
constitutes deliberate indifference, not, as UT seems to suggest, in a farther-reaching analysis of
each element that must be proven to make out a legally cognizable deliberate-indifference claim
under Title IX. See 400 F.3d at 367. The plaintiff in Williams had argued that a simple
3Many aspects of the Supreme Court’s opinion in Davis are applicable to both teacher-student harassment
and peer harassment, but the opinion makes clear that there are legally significant differences between teacher-
student and peer harassment that “necessarily affect[]” the analysis of whether the misconduct constitutes a breach
of Title IX. See 526 U.S. at 653.

-- 8 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 9
“reasonableness” standard was applicable in the context of teacher-student harassment, rather
than the “clearly unreasonable” standard used for evaluating a response to peer harassment. Id.
The Williams court concluded that the “clearly unreasonable” standard was meant to apply in
both contexts, thus creating “one standard” for courts to judge whether a school’s response to
complaints of sexual misconduct satisfies this aspect of deliberate indifference. Id.
The Williams court did not state or imply that there are no differences in how courts
evaluate each element of a deliberate-indifference claim in the separate contexts of teacher-
student harassment and peer harassment. And Supreme Court precedent explicitly instructs
otherwise. In Davis, the Court explained that
[t]he relationship between the harasser and the victim necessarily affects the
extent to which the misconduct can be said to breach Title IX’s guarantee of equal
access to educational benefits and to have a systemic effect on a program or
activity. Peer harassment, in particular, is less likely to satisfy these requirements
than is teacher-student harassment.
526 U.S. at 653. Consequently, the Davis decision layered on an additional element necessary to
make a claim for peer harassment under Title IX, requiring plaintiffs in that context to
demonstrate that the harassment suffered was “so severe, pervasive, and objectively offensive
that it denies its victims the equal access to education that Title IX is designed to protect.” Id. at
652.
UT argued in the district court that the “severe, pervasive, and objectively offensive”
standard was also part of the single standard applicable to the resolution of both types of
deliberate-indifference claims, and therefore is applicable here. The district court correctly
found that this interpretation is unsupported by the text of Davis, which specifically analyzed the
differences between teacher-student harassment and peer harassment in finding that an additional
severity element should be required in the peer-harassment context:
Whether gender-oriented conduct rises to the level of actionable “harassment”
thus “depends on a constellation of surrounding circumstances, expectations, and
relationships,” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82, 118
S.Ct. 998, 140 L.Ed.2d 201 (1998), including, but not limited to, the ages of the
harasser and the victim and the number of individuals involved. Courts,
moreover, must bear in mind that schools are unlike the adult workplace and that
children may regularly interact in a manner that would be unacceptable among

-- 9 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 10
adults. . . . [I]n the context of student-on-student harassment, damages are
available only where the behavior is so severe, pervasive, and objectively
offensive that it denies its victims the equal access to education that Title IX is
designed to protect.
526 U.S. at 651–52 (citations omitted); see also Sauls v. Pierce Cnty. Sch. Dist., 399 F.3d 1279,
1284 (11th Cir. 2005) (“Because this case involves teacher-on-student harassment, Appellants
need not establish [that the] misconduct was ‘so severe, pervasive, and objectively offensive’
that it denied . . . equal access to educational programs or opportunities.”). Thus, although the
“clearly unreasonable” standard is applicable to both peer harassment and teacher-student
harassment claims, there are inherent differences in the evaluation of deliberate-indifference
claims depending on the identity of the harasser.
Having established that the standard announced in Kollaritsch is not presumptively
applicable to the context of teacher-student harassment by virtue of Williams’s holding that there
is a single clearly unreasonable standard for all deliberate-indifference claims, we now address
whether Kollaritsch decided that the post-notice harassment requirement applies to teacher-
student harassment claims. It did not. The Kollaritsch court used careful language specifically
cabining its holding to the context of student-on-student sexual harassment claims. See 944 F.3d
at 619 (“By design and effect, the Davis Court’s Title IX private cause of action against a school
for its response to student-on-student sexual harassment is a ‘high standard’ that applies only ‘in
certain limited circumstances.’” (emphasis added) (quoting Davis, 526 U.S. at 643)); id. at 621
(“Even upon establishing actionable student-on-student harassment, a plaintiff must also plead
and prove four elements of a deliberate-indifference-based intentional tort: (1) knowledge, (2) an
act, (3) injury, and (4) causation.” (emphasis added)); id. at 623 (“A Title IX private cause of
action against a school for deliberate indifference to student-on-student sexual harassment
comprises the two components of actionable sexual harassment by a student and a deliberate-
indifference intentional tort by the school, along with the underlying elements for each.”)
(emphasis added)); id. at 630 (Thapar, J., concurring) (“Of course, all this does not resolve what
should count as ‘discrimination’ under Title IX. But the plaintiffs in this case premised their suit
on student-on-student harassment. And Davis made clear that ‘discrimination’ in such cases
means ‘severe, pervasive, and objectively offensive’ harassment—not just the risk of

-- 10 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 11
harassment.” (quoting Davis, 526 U.S. at 650)). Moreover, the Kollaritsch standard was based
on an interpretation of Davis, a case specifically concerned with the articulation of the more
limited circumstances in which Gebser, addressing teacher-student harassment, could be
extended to peer-harassment claims. Based on this analysis, we conclude that we are not bound
by the standard articulated in Kollaritsch when evaluating teacher-student harassment claims.
That leaves the question whether the Kollaritsch requirement that “the injury is
attributable to . . . post-actual-knowledge further harassment” should be applied to teacher-
student sexual harassment claims. Given the inherent differences between peer harassment and
teacher harassment recognized in Davis, and the express purpose of Title IX that no person “on
the basis of sex, be excluded from participation in” or “be denied the benefits of . . . any
education program or activity,” 20 U.S.C. § 1681(a), we conclude that the more stringent
standard for peer-harassment deliberate-indifference claims introduced in Kollaritsch should not
apply in the context of teacher-student harassment claims.
First, Kollaritsch’s articulation of the causation requirement was based explicitly on the
interpretation of the holding in Davis that “deliberate indifference must, at a minimum, cause
students to undergo harassment or make them liable or vulnerable to it.” See 944 F.3d at 622
(quoting Davis, 526 U.S. at 645). And the Davis Court articulated that requirement in
delineating the limited category of peer-harassment claims considered sufficiently akin to
teacher-student harassment claims that they could be attributable to a school. Davis did not
abrogate, overrule, or otherwise limit Gebser; instead, it reiterated Gebser’s holding that “a
recipient intentionally violates Title IX, and is subject to a private damages action, where the
recipient is deliberately indifferent to known acts of teacher-student discrimination.” Davis,
526 U.S. at 643. The Davis Court established the context of the issue before it, stating:
Indeed, whether viewed as “discrimination” or “subject[ing]” students to
discrimination, Title IX “[u]nquestionably . . . placed on [the Board] the duty not”
to permit teacher-student harassment in its schools, Franklin v. Gwinnett County
Public Schools, supra, at 75, 112 S.Ct. 1028, and recipients violate Title IX’s
plain terms when they remain deliberately indifferent to this form of misconduct.
Id. The opinion then goes on to analyze the more limited circumstances in which a school can be
liable for student-on-student harassment:

-- 11 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 12
That is, the deliberate indifference must, at a minimum, “cause [students] to
undergo” harassment or “make them liable or vulnerable” to it. Moreover,
because the harassment must occur “under” “the operations of” a funding
recipient, see 20 U.S.C. § 1681(a); § 1687 (defining “program or activity”), the
harassment must take place in a context subject to the school district’s control.
These factors combine to limit a recipient’s damages liability to circumstances
wherein the recipient exercises substantial control over both the harasser and the
context in which the known harassment occurs. Only then can the recipient be
said to “expose” its students to harassment or “cause” them to undergo it “under”
the recipient’s programs. We agree with the dissent that these conditions are
satisfied most easily and most obviously when the offender is an agent of the
recipient.
Id. at 645 (citations omitted). This language seems to imply that the higher standards for
establishing the requisite culpability in peer-harassment situations are unnecessary in the context
of teacher-student harassment; while a school quite obviously “subjects” its students to
harassment and discrimination when it fails to respond to harassment by its agent (a teacher or
professor), a school can only be seen to be responsible for the impacts of student-on-student
harassment in more limited circumstances.
Moreover, there are important policy reasons for imposing a less stringent standard in
cases alleging teacher-student harassment. As the Court explained in Davis, Title IX “protects
students from discrimination” and “shields them from being ‘excluded from participation in’ or
‘denied the benefits of’ a recipient’s ‘education program or activity’ on the basis of gender.” Id.
at 631 (quoting 20 U.S.C. § 1681(a)). The Davis Court recognized that “[t]he relationship
between the harasser and the victim necessarily affects the extent to which the misconduct can be
said to breach Title IX’s guarantee of equal access to educational benefits and to have a systemic
effect on a program or activity.” Id. at 653. This makes sense. When a teacher sexually
harasses a student, it can more easily be presumed that the harassment would “undermine[] and
detract[] from [the student’s] educational experience” because teachers are at the core of a
student’s access to and experience of education. See id. at 651. When a student has been
sexually harassed by a teacher or professor, that student’s ability to benefit from the educational
experience provided by the school is often undermined unless the school steps in to remedy the
situation because the student is put in the position of choosing to forego an educational

-- 12 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 13
opportunity in order to avoid contact with the harasser, or to continue attempting to receive the
educational experience tainted with the fear of further harassment or abuse. For that reason,
requiring an additional post-notice incident of harassment in teacher-student deliberate-
indifference cases would undermine the purpose of Title IX.
Of course, refraining from applying the more stringent standard in Kollaritsch does not
change the fact that Wamer must still allege that: (1) she was sexually harassed by a teacher or
professor, (2) an official with authority to take corrective action had actual notice of the
harassment, (3) the school’s response was clearly unreasonable, and (4) the school’s deliberate
indifference caused her to suffer discrimination. See Gebser, 524 U.S. at 290–91; Williams,
400 F.3d at 368.
It is an open question in this circuit under what circumstances a school’s deliberate
indifference to teacher-student harassment can be considered to cause discrimination. We
conclude that a test similar to that articulated by the Tenth Circuit in Farmer and the Eleventh
Circuit in Williams is appropriate. We therefore hold that a plaintiff can satisfy the causation
requirement by showing that (1) following the school’s unreasonable response (2) (a) the
plaintiff experienced an additional instance of harassment or (b) an objectively reasonable fear of
further harassment caused the plaintiff to take specific reasonable actions to avoid harassment,
which deprived the plaintiff of the educational opportunities available to other students.
Taking the facts alleged in Wamer’s complaint as true, this test is satisfied. Wamer
alleges that she was sexually harassed by her instructor, that the University’s Title IX office was
made aware of the harassment and prematurely closed its investigation after three weeks without
taking any measures against her harasser, and that as a result of her fear of continued harassment
she took reasonable steps, including switching majors and enrolling primarily in online classes,
to avoid encountering her harasser, which undoubtedly detracted from her educational
experience. Because Wamer alleges facts that allow the inference that her fear of further
harassment was objectively reasonable, and that her post-harassment actions resulting in the
deprivation of educational opportunities were reasonably taken to avoid further harassment, she
has sufficiently stated a claim for deliberate indifference to teacher-student harassment.

-- 13 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 14
B.
It is not entirely clear from the district court’s opinion whether its dismissal of Wamer’s
complaint was based solely on the conclusion that Wamer did not plead facts satisfying the
Kollaritsch test or whether it was also based on a finding that Wamer failed to plead facts
showing that the University’s response to her complaint was clearly unreasonable. To the extent
that the district court’s dismissal of Wamer’s complaint was based on a finding that Wamer
failed to plead facts allowing an inference that UT’s response to her and O’Korn’s May reports
of sexual harassment were clearly unreasonable, we reverse on that basis as well.
UT claims that the decision of this court in Foster v. Board of Regents of University of
Michigan, 982 F.3d 960 (6th Cir. 2020) (en banc), demonstrates that “deliberate indifference
remains a high bar for plaintiffs to clear.” Appellee’s Br. at 16. But Foster was decided at the
summary judgment stage, and the decision was based on a thorough examination of exactly how
the university responded to each of the plaintiff’s complaints of peer harassment, with the court
ultimately concluding that the university was not deliberately indifferent given that it “adopted
escalating measures proportionate to the misconduct.” 982 F.3d at 966. Here, Wamer has not
had the opportunity to conduct discovery into the details of UT’s response to the two initial
complaints about Tyger, an instructor. Moreover, Wamer alleges that the University failed to
take any action in response to the initial complaints, not that the action was insufficient, as
alleged in Foster. And the Foster court specifically noted,
The deliberate indifference standard makes schools liable when they “refuse[ ] to
take action to bring the recipient into compliance,” Gebser[, 524 U.S. at 290], not
when they take action that ultimately fails to “purg[e] their schools of actionable
peer harassment,” Davis, 526 U.S. at 648, 119 S.Ct. 1661. We ask not whether the
school’s efforts were ineffective but whether they amounted to “an official
decision . . . not to remedy the violation.” Id. at 642, 119 S.Ct. 1661 (quotation
omitted).
Id. at 968.
Here, Wamer alleges that she and a faculty member lodged complaints about Tyger’s
conduct, and that a mere three weeks later, after Wamer responded that she did not feel
comfortable coming on campus for an in-person interview, the University closed its investigation

-- 14 of 15 --

No. 20-4219 Wamer v. Univ. of Toledo Page 15
and took no action against Tyger. Wamer’s claim is bolstered by the fact that six months later,
when the investigation was reopened based on a third complaint by a more senior faculty
member, UT found Wamer’s original allegations credible and terminated Tyger’s employment.
Whether UT’s decision to close its first investigation after three weeks was clearly unreasonable
depends on what steps the University took at the time to investigate Wamer’s claims and why it
decided to close the investigation without taking further action—information likely to be
revealed through discovery.
In granting Defendant’s motion to dismiss, the district court appears to have determined,
based on factual inferences, that UT’s investigation was reasonable as a matter of law. But the
district court was required to “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.” See
Directv, Inc., 487 F.3d at 476. It appears that the district court did the opposite, drawing all
reasonable inferences in favor of UT. Implied in Wamer’s complaint is the assumption that UT
did nothing (other than contacting her regarding a potential in-person interview) to investigate
her allegations, or at the very least that the investigation was clearly unreasonable. Yet, the
district court inferred that UT “investigated the complaint with the information [Wamer] had
provided[] and ultimately chose to not take action,” and that Wamer’s lawsuit was based solely
on her “subjective dissatisfaction with the investigation’s outcome.” Wamer, 2020 WL 6119419,
at *4. Thus, the district court erred in failing to construe the complaint in the light most
favorable to Wamer.
III.
For the foregoing reasons, we REVERSE the district court’s dismissal of Wamer’s
complaint and REMAND for further proceedings consistent with this opinion.

-- 15 of 15 --