Jane Doe v. Board of Trustees of the Nebraska State Colleges, a Political Subdivision of the…

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1814
___________________________
Jane Doe
Plaintiff - Appellee
v.
Board of Trustees of the Nebraska State Colleges, a Political Subdivision of the
State of Nebraska
Defendant - Appellant
------------------------------
19 Civil Rights and Survivor Advocacy Organizations
Amicus on Behalf of Appellee(s)
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: January 11, 2023
Filed: August 15, 2023
____________
Before KELLY, ERICKSON, and STRAS, Circuit Judges.
____________
ERICKSON, Circuit Judge.

-- 1 of 13 --

-2-
The Board of Trustees of the Nebraska State Colleges (“NSCS”) appeals from
a jury verdict finding it acted with deliberate indifference after Jane Doe (“Doe”)
was sexually assaulted while attending Chadron State College (“Chadron”). We
reverse and remand with directions that the district court enter judgment in favor of
NSCS and vacate the award of Doe’s attorney fees.
I. BACKGROUND
During the time frame at issue, Doe worked as a campus security officer in a
complex with three linked dormitories (Andrews Hall, Kent Hall, and High Rise).
In May 2016, Anthony Ige visited Doe while she was at work in Andrews Hall and
stole her drink. Doe followed Ige to his room where Ige groped her and tried
unsuccessfully to prevent her from leaving. Later in the evening Doe returned to
Ige’s room, and he sexually assaulted her.
After the assault, Doe met with Robin Bila, a counselor at Chadron. Doe was
circumspect during her conversation with Bila, reporting that she had an “incident”
with Ige (which she preferred not to detail) and expressing concerns about sexually
transmitted diseases and consent. Doe told Bila that she did not want to report Ige
to the police. Bila provided information to Doe and complied with Doe’s wishes not
to report the assault. Doe did not report the incident to anyone else.
Throughout the summer Ige taunted Doe, although Doe did not report this
conduct to Chadron. In September 2016, Ige took Doe’s phone while she was
working in Andrews Hall and headed to the basement. Doe followed, and Ige groped
her in the stairway and sexually assaulted her in a bathroom. The next day, Doe
missed an appointment with Bila. Bila texted Doe and then went to Doe’s apartment.
When Doe came to the door, she was distressed and disheveled. Bila brought her to
the nurse’s office. Doe told Bila that Ige had once again assaulted her. Bila informed
Doe that she could file a Title IX complaint and that she could go to the hospital for
medical treatment. Doe initially did not report Ige to the police, but she changed her

-- 2 of 13 --

-3-
mind, and the incident was reported. Doe met with a police officer who reviewed
security footage with her.
Ige was never charged; however, Chadron initiated Title IX proceedings.
Chadron’s Title IX policy includes two stages. In the first stage, the Title IX
coordinator consults with NSCS’s general counsel and decides whether further
investigation is warranted. If investigation is warranted, the Title IX coordinator
determines, after the investigation, whether sexual misconduct occurred, and
provides a recommendation to Chadron’s vice president responsible for student
affairs, who has ten days to decide whether the second stage—disciplinary
proceedings—should be initiated. At the time of this incident, Anne DeMersseman
served as Chadron’s Title IX coordinator. Once DeMersseman learned of the
alleged September assault from the police department, she prepared a mutually
binding no-contact order and served it on Ige at the end of his police interview. The
order prohibited any contact or communication between Ige and Doe. DeMersseman
also provided the order to the campus security supervisor, so he could give it to Doe.
As part of her investigation, DeMersseman interviewed Ige and Doe.
DeMersseman explained to Doe the investigatory process, options related to law
enforcement, and Ige’s potential consequences. DeMersseman discussed counseling
options with Doe, who reported that she was already seeing Bila. DeMersseman
told Doe that if Ige breached the no-contact order, she should immediately call
security. She also confirmed that Doe and Ige were not in any of the same classes.
DeMersseman contacted Chadron’s housing director with the intention of moving
Ige out of the High Rise dormitory, which was connected to Andrews Hall. But after
talking with the director, DeMersseman concluded that it was more sensible to ban
Ige from Andrews Hall rather than move him. Ige was sent a letter banning him
from Andrews Hall, and staff were notified of the ban several days later in a
document that included Ige’s name and photograph.
DeMersseman testified that she had difficulty reconciling Doe’s and Ige’s
accounts and found herself conflicted after watching the video footage. She believed

-- 3 of 13 --

-4-
the surveillance video corroborated different parts of each person’s version. After
repeatedly viewing the video footage, speaking to Bila, and visiting the police station
to examine the evidence the police had developed, DeMersseman considered both
Doe and Ige to be credible. While she viewed Ige as immature, she did not believe
he was dangerous. DeMersseman ultimately concluded in her report that Ige had
violated NSCS Board Policy 3020 by failing to obtain Doe’s consent regarding the
May and September 2016 sexual activities. The report instructed Doe to contact
DeMersseman if any retaliation occurred, if Ige breached the no-contact order, or if
she needed other help. The report was sent to Chadron’s vice president, who decided
to initiate disciplinary proceedings against Ige.
In response to DeMersseman’s report, Chadron moved Doe’s work
assignment to Brooks Hall, a secure building with limited access and better visibility.
After the move, Chadron notified Ige that he was no longer banned from Andrews
Hall but was now banned from Brooks Hall. Ige waived his due process rights, and
Chadron’s vice president imposed the following additional sanctions on Ige: (1) he
made the no-contact order permanent; (2) he required Ige to participate in weekly
counseling sessions at Chadron; (3) he placed Ige on behavioral probation until he
graduated; (4) he directed Ige to read a book titled The Macho Paradox: Why Some
Men Hurt Women and How All Men Can Help and to participate in journaling and
discussion with his counselor; and (5) he required Ige to complete an online consent
and alcohol course. Chadron’s vice president felt these sanctions were appropriate
because Ige had not violated the initial no-contact order, Ige had cooperated with the
investigation, and the punishment was consistent with the way other similar
complaints had been handled. He believed it was possible to keep Doe safe without
suspending or expelling Ige from campus.
Doe objected to the disciplinary sanctions, believing Ige should be removed
from campus, and inquired about the options available to her, specifically asking
about the possibility of completing the remainder of the term online. Chadron
offered Dow the opportunity to complete her coursework off campus and security
escort if she stayed on campus.

-- 4 of 13 --

-5-
In mid-November 2016, Doe’s attorney asked NSCS to provide a copy of the
relevant documents for review. NSCS’s Title IX director complied and asked
counsel to let him know as soon as possible if Doe was seeking any other
accommodations. Doe’s counsel responded that Doe did not want a campus escort
because it would draw attention to her. Counsel did not request any additional steps
or accommodations other than stating Ige should be removed from campus. When
Chadron advised Doe’s counsel that security personnel could wear plainclothes,
Doe’s counsel did not respond.
In July 2017, Doe sued NSCS for violating Title IX and for race
discrimination. Doe voluntarily dismissed the discrimination claim. After NSCS’s
summary judgment motion was denied, the case proceeded to trial. The district court
denied NSCS’s motion for judgment as a matter of law. The jury found in Doe’s
favor and awarded damages in the amount of $300,000. NSCS renewed its motion
for judgment as a matter of law, or, alternatively, for a new trial. The district court
denied both motions and awarded Doe attorney fees. NSCS appeals.
II. DISCUSSION
On appeal, NSCS raises three claims: (1) the Title IX claim fails as a matter
of law; (2) the district court erred when it admitted the expert testimony of Dr. Charol
Shakeshaft; and (3) the district court erred in awarding attorney’s fees. We begin
with NSCS’s paramount claim that, as a matter of law, it was not deliberately
indifferent after Doe reported being sexually assaulted.
A district court may render judgment as a matter of law when “a party has
been fully heard on an issue during a jury trial and the court finds that a reasonable
jury would not have a legally sufficient evidentiary basis to find for the party on that
issue.” Fed. R. Civ. P. 50(a)(1). We review the district court’s ruling de novo,
viewing the evidence in a light most favorable to the jury’s verdict. See Wilson v.
Brinker Int’l, Inc., 382 F.3d 765, 769 (8th Cir. 2004). Our review gives great

-- 5 of 13 --

-6-
deference to the jury’s verdict and we “will not set aside a jury verdict unless there
is a complete absence of probable facts to support the verdict.” Id. at 769-70
(cleaned up). While we are not permitted to make credibility assessments, a
reviewing court is to consider uncontradicted and unimpeached evidence in the
record favoring the moving party. Id. at 770.
For Doe to prevail on her Title IX deliberate indifference claim, evidence in
the record must establish that Chadron: (1) was deliberately indifferent, (2) to known
acts of discrimination, (3) which occurred under its control. See Maher v. Iowa State
Univ., 915 F.3d 1210, 1213 (8th Cir. 2019). Deliberate indifference is established
when a school responds in a clearly unreasonable manner to harassment considering
the circumstances known to it. Id. It “is a stringent standard of fault that cannot be
predicated upon mere negligence.” Doe v. Dardanelle Sch. Dist., 928 F.3d 722, 725
(8th Cir. 2019). Title IX is not a procedure for courts to second-guess disciplinary
decisions made by school administrators. Id.
Doe focused her arguments in her brief on Chadron’s response to the second
assault. During oral argument, Doe’s counsel confirmed that Doe’s claim was
premised on Chadron’s conduct after the second incident. Doe has waived any claim
of deliberate indifference premised on the first sexual assault reported only to Bila.
See Robinson v. Norling, 25 F.4th 1061, 1062 (8th Cir. 2022) (noting an argument
is waived when it is intentionally relinquished).
Viewing the evidence in a light most favorable to the jury’s verdict, the
uncontradicted evidence demonstrates that Chadron acted promptly—nearly
immediately—upon learning of the assault. Chadron issued a mutually binding no-
contact order between Doe and Ige, which was served on Ige at the end of his police
interview. Chadron verified that the two students did not share the same classes, and
promptly initiated an investigation to determine what happened. Chadron
interviewed Doe, explained the investigatory process to her, banned Ige from
Andrews Hall, and accommodated Doe academically. At the conclusion of the
investigation, Chadron placed Doe in a more secure employment location and

-- 6 of 13 --

-7-
banned Ige from that location, placed Ige on behavioral probation, required Ige to
attend weekly counseling sessions and work through an appropriate text, compelled
Ige to complete an online consent and alcohol class, approved Doe to complete
coursework off campus if she wanted to, offered to provide Doe with a plain-clothed
escort while on campus, and solicited Doe’s input with regard to providing
additional assistance or accommodations. These uncontroverted steps were prompt,
extensive, substantive, directed to protect and assist Doe, and not clearly
unreasonable given the circumstances known to Chadron.
Even if this evidence was somehow sufficient to constitute deliberate
indifference, the evidence falls short on causation. For Chadron to be liable, the acts
of deliberate indifference “must cause students to undergo harassment or make them
liable or vulnerable to it.” Shank v. Carleton Coll., 993 F.3d 567, 573 (8th Cir. 2021)
(cleaned up). The reason is that Title IX creates liability for schools that accept
federal funding only if they “subject” the student to abuse. 20 U.S.C. § 1681(a); cf.
Du Bois v. Bd. of Regents of the Univ. of Minn., 987 F.3d 1199, 1203 (8th Cir.
2021) (defining “[d]iscrimination under Title IX [to] include[] harassment”). The
fact that one student harms another is not enough. See Schrum ex rel. Kelly v. Kluck,
249 F.3d 773, 781-82 (8th Cir. 2001). Title IX requires a school to be in a position
to control the situation, know of it, and still exhibit indifference. See Gebser v. Lago
Vista Indep. Sch. Dist. 524 U.S. 274, 289 (1998) (requiring notice to an “appropriate
person” before a funding recipient can be liable).
Applying those principles here, Doe cannot show a causal nexus between
Chadron’s actions and the sexual assaults or harassment. See Shank, 993 F.3d at
573. No “appropriate person” knew about the first assault, so school officials could
not have predicted a second one was coming. Gebser, 524 U.S. at 289. In the words
of Title IX, they could not have “subject[ed]” her to it. 20 U.S.C. § 1681(a). And
once the second assault took place—and the proper administrators were notified—
there were no more incidents of harassment or abuse. See Shank, 993 F.3d at 573.
Doe was understandably distraught by the events, but merely “[l]inking the college’s
actions or inactions to emotional trauma the plaintiff experienced in the wake of

-- 7 of 13 --

-8-
sexual harassment or assault, even if proven, is not enough.” Id. at 576. In other
words, Doe has not shown that Chadron caused a cognizable harm by failing to more
severely discipline Ige.
While it is a rare case that reversal is warranted after giving appropriate
deference to a jury’s verdict, this is such a case. After examining the uncontroverted
facts presented at trial, a reasonable jury could not find in Doe’s favor. It is
understandable that Doe wanted Ige removed from campus, or suffer more severe
consequences, however, a cognizable claim requires Doe to show Chadron acted in
a clearly unreasonable manner, which is not sustainable on the record. The district
court erred when it failed to grant NSCS’s motion for judgment as a matter of law.
We need not reach the other issues raised by NSCS. Because Doe is no longer a
prevailing party, we order that the award of attorney’s fees be vacated.
III. CONCLUSION
We reverse the judgment of the district court and remand to the district court
with directions to enter judgment in favor of NSCS and to vacate the award of Doe’s
attorney’s fees.
KELLY, Circuit Judge, dissenting.
Doe was a student at Chadron State College when she was sexually
assaulted—twice—by a fellow student, Ige. Central to this Title IX case is whether
the College’s response to Doe’s report of the second sexual assault was “clearly
unreasonable in light of the known circumstances.” Davis v. Monroe Cnty. Bd. of
Educ., 526 U.S. 629, 648 (1999). Viewing the evidence in the light most favorable
to the prevailing party—here, Doe—a reasonable jury could find that it was. See
Baker v. John Morrell & Co., 382 F.3d 816, 828 (8th Cir. 2004).
Ige sexually assaulted Doe in May 2016 and again in September 2016. On
September 20, 2016, Doe reported the September assault—which she described as

-- 8 of 13 --

-9-
the second violent rape by Ige—to the College.1 At the time, Doe worked in
Andrews Hall, a part of a three-dormitory complex that included High Rise Hall,
where Ige lived. By September 23, the College had banned Ige from Andrews Hall
but failed to timely notify the dormitory, resulting in a “five-day lag between the
date of a ban and the communication about the ban to the dorm.” DeMersseman
testified that this “lag” was “not reasonable.” Because of the adjoining nature of the
dormitory complex, which had a shared common area, it was still possible for Ige
and Doe to encounter each other. And initially, Doe understood that Ige would be
banned from the entire complex. The College, however, did not tell Doe that it had
decided to “[l]eave [Ige] where he’s at” and only ban him from Andrews Hall.
On September 29, Doe encountered Ige as she passed through the dormitory
complex on her way to Andrews Hall for work. Doe had a panic attack and “gave
up her shift,” telling her employer that she would not be able to come to work. Doe
met with DeMersseman the following day, who only then explained that Ige would
not be removed from the dormitory complex.
The College soon decided instead to move Doe’s workstation to another
dormitory, Brooks Hall—a stand-alone residence separate from the Andrews Hall
complex. No one told Doe, or consulted her, about this decision. Instead, on
October 2, Doe arrived for work at Andrews Hall and was met by uniformed campus
security officers who escorted her to her new workplace. And the move to Brooks
Hall—which Doe explained had fewer “privilege[s]” than her previous workstation
at Andrews—was permanent. The College then restored Ige’s access to Andrews
Hall.
1 Doe also reported the first sexual assault she experienced to Bila shortly after
it occurred. But it was undisputed that Bila was not an “appropriate person” under
Title IX to trigger the College’s liability. See 20 U.S.C. § 1682; Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) (explaining that an “appropriate
person” is an official of the institution who “at a minimum has authority to address
the alleged discrimination and to institute corrective measures on the [institution’s]
behalf”).

-- 9 of 13 --

-10-
The following week, the College’s vice president, Jon Hansen, sent a letter
informing Ige that Doe’s allegations against him qualified as an act of “sexual
violence” and “unreasonably dangerous” conduct under the College’s policy. Ige
admitted to the policy violation. At that point, Ige could be barred from all or part
of the campus if, as provided in the College’s policy, he was determined to be “a
continued threat . . . to the victim.” But in considering Ige’s sanctions, the College
did not conduct a risk assessment with any defined criteria. Rather, Hansen merely
used his own “judgment” to place Ige on “behavioral probation”—a status undefined
by the College—and to impose modest sanctions, such as reading a book, journaling,
and completing a consent course. The sanctions were loosely monitored, and several
were not tailored to the type of misconduct—sexual assaults—involved.
One of Ige’s sanctions was to attend weekly counseling sessions at the
College’s counseling center. The counseling center was in a small, enclosed
basement on campus and had just two counselors. Doe regularly attended
counseling sessions there and had a long-standing relationship with one of the
counselors, who had assisted Doe through both sexual assaults. Once Doe learned
that Ige had been directed to receive counseling at the same place, she felt
“compromised” knowing that she could run into Ige in the “small basement where
[students] all pass each other.” At this point, Doe “didn’t even want to live,” but she
decided to stop receiving counseling at the center even though she felt she still
“needed counseling more than anything.” The College did not offer her an option
of counseling at another location.
The jury also heard evidence that the College left Doe on her own to monitor
Ige’s whereabouts on campus. Doe began to avoid the College’s food hall, library,
student center, and other locations on the small campus where she thought Ige might
be. And she specifically stayed away from places where Ige had previously taunted
her about sexually assaulting her. Doe also stopped participating in a campus
organization, where she was the vice president, because the meetings were held on
campus.

-- 10 of 13 --

-11-
On October 31, Doe emailed Hansen and told him that she felt unsafe on
campus and that the College had not taken sufficient steps to protect her from
“someone who admitted to raping [her].” Doe said she spent time trying to “spot”
Ige before he saw her so that she could “protect” herself. Hansen did not respond to
Doe’s email until two weeks later, when he encouraged Doe to visit the College’s
counseling center—the very same one Ige was now also utilizing. Doe also called
DeMersseman’s office multiple times, but she received no response and was left “in
the dark” about “what [was] going on.”
Doe soon requested alternative options for completing her education, and she
emphasized that she “wanted to keep going to class” in person. But the only options
Hansen offered Doe involved either completing her courses mostly online or
transferring to another institution. Doe eventually gave up looking for help from the
College. She did not take a “paralegal exam” or the Law School Admission Test as
she had originally planned. She finished her final semester but opted to skip
commencement because she was afraid Ige would attend the ceremony.
In this case, a reasonable jury could likely conclude that the College
“promptly” initiated its Title IX investigation of Doe’s allegations. But in
determining whether the College acted with deliberate indifference, the jury was
entitled to consider all of “the known circumstances”—including the extent of the
College’s response, the nature of its efforts to address Doe’s safety concerns, and
the efficacy of its remedial actions. See Davis, 526 U.S. at 648. Given the evidence
presented at trial, a reasonable jury could find that the College’s actions were “not
reasonably calculated to end [the] harassment,” Zeno v. Pine Plains Cent. Sch. Dist.,
702 F.3d 655, 669 (2d Cir. 2012), and were clearly unreasonable in light of the sexual
assaults that Doe suffered on campus.
This court, however, concludes that even if Doe establishes deliberate
indifference, she cannot prevail because “there were no more incidents of
harassment or abuse” after Doe’s second sexual assault. But the plain text of Title

-- 11 of 13 --

-12-
IX requires only that a plaintiff establish that he or she was “subjected to”
discrimination. 20 U.S.C. § 1681(a). The statute does not require that the plaintiff
suffer more incidents of harassment after notifying an institution. See Davis, 526
U.S. at 645. Rather, plaintiffs may establish Title IX liability by showing that an
institution’s deliberate indifference caused them to be harassed or made them
vulnerable to harassment. See id. (noting that “subject” means “to cause to undergo
the action of something specified; expose” or “to make liable or vulnerable; lay open;
expose”); see also Farmer v. Kan. State Univ., 918 F.3d 1094, 1103 (10th Cir. 2019)
(explaining that the plain language of Davis “clearly indicates that Plaintiffs can state
a viable Title IX claim by alleging alternatively either that [a school’s] deliberate
indifference to their reports of rape caused Plaintiffs to undergo harassment or made
them liable or vulnerable to it” (cleaned up)). Here, Doe presented evidence that
after she reported the second sexual assault to the College, the school responded with
a safety plan that objectively made her vulnerable to additional harassment from Ige.
This is sufficient. Accord Davis, 526 U.S. at 644–45.
The court then concludes that Doe has not shown that the College “caused a
cognizable harm” and that Doe merely linked her “emotional trauma” to the
College’s actions. But Doe in fact showed a cognizable harm—she testified in detail
about how she altered her academic pursuits, ceased her involvement in campus
activities, and limited her physical presence on campus because of Ige’s conduct.
The jury was entitled to rely on this evidence to conclude that the discrimination
Doe endured was “so severe, pervasive, and objectively offensive” that she was
deprived of access to the educational opportunities or benefits provided by the
College. See Shank v. Carleton Coll., 993 F.3d 567, 573 (8th Cir. 2021).
Our only task in reviewing the district court’s denial of a motion for judgment
as a matter of law is to determine “whether there is sufficient evidence to support
the jury’s verdict.” Baker, 382 F.3d at 828 (quoting Keenan v. Comput. Assocs.
Int’l, Inc., 13 F.3d 1266, 1268 (8th Cir. 1994)). In doing so, we may not “engage in
a weighing or evaluation of the evidence.” Id. (quoting Keenan, 13 F.3d at 1268).
And reversal is appropriate only where “there is a complete absence of probative

-- 12 of 13 --

-13-
facts to support the verdict” and the record contains “no proof beyond speculation.”
Am. Bank of St. Paul v. TD Bank, N.A., 713 F.3d 455, 462 (8th Cir. 2013) (cleaned
up). Because there was sufficient evidence in the record for a reasonable jury to
conclude that Doe satisfied her burden of proof, I respectfully dissent.
______________________________

-- 13 of 13 --