Gruver v. State of Louisiana through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

STEPHEN M. GRUVER AND CIVIL ACTION

RAE ANN GRUVER, individually and

on behalf of MAXWELL R. GRUVER,

deceased 18-772-SDD-EWD

VERSUS

STATE OF LOUISIANA THROUGH THE

BOARD OF SUPERVISORS OF

LOUISIANA STATE UNIVERSITY AND

AGRICULTURAL AND MECHANICAL

COLLEGE, et al.

RULING

This matter is before the Court on the Motion to Dismiss1 filed by Defendant, State

of Louisiana through the Board of Supervisors of Louisiana State University and

Agricultural and Mechanical College (“LSU”). Plaintiffs, Stephen M. Gruver and Rae Ann

Gruver (“Plaintiffs”), individually and on behalf of their deceased son Maxwell R. Gruver

(“Gruver”), filed an Opposition2 to this motion, to which LSU filed a Reply,3 and Plaintiffs

filed a Sur-Reply.4 For the reasons which follow, LSU’s Motion will be granted in part and

denied in part.

I. FACTUAL BACKGROUND

This suit arises out of the tragic death of Maxwell R. Gruver, a student formerly

1 Rec. Doc. No. 70.

2 Rec. Doc. No. 93.

3 Rec. Doc. No. 91.

4 Rec. Doc. No. 95.

52482

Page 1 of 30

enrolled at LSU, who died in September of 2017 following a fraternity-related hazing

incident. Plaintiffs allege that, over the summer of 2017, LSU sent a 72-page book entitled

Greek Tiger to their son, an incoming freshman.5 Plaintiffs allege this book “encourage[s]

[new students] to consider participating in fraternity or sorority recruitment,”6 and served

generally to tout LSU’s long tradition of promoting the educational opportunities and

benefits of Greek Life to its students. Plaintiffs further allege that, although the second

paragraph of Greek Tiger states that “[h]azing and inappropriate behavior are not

tolerated by LSU[,]”7 in reality, this statement does not apply to male students in

fraternities at LSU.

Plaintiffs allege that male students involved in the Greek fraternity system at LSU

face a “risk of serious injury and death” that is “far worse than the television portrayals

LSU references,” and that, “[b]efore Max’s death, male students pledging LSU-recognized

fraternities have died, been hospitalized on an emergency basis for dangerous alcohol

consumption, and suffered broken ribs, cigarette burns and other serious physical

injuries.”8 Plaintiffs further allege that, “[a]s a result of LSU’s policy and practice of

responding differently to the hazing of male students than the hazing of female students,”

the hazing of female Greek students is “virtually nonexistent,” while the hazing of male

Greek students is “rampant.”9 To demonstrate this claim, Plaintiffs aver as follows:

128. In addition to the death of Max, incidents of dangerous hazing, forced

consumption of alcohol, deaths and fraternity injuries involving male

fraternity pledges and members at LSU include:

5 Complaint, Rec. Doc. No. 1, ¶ 46.

6 Id.

7 Id. at ¶ 47.

8 Id. at ¶ 9.

9 Id. at ¶ 13.

52482

Page 2 of 30

a. 2017: Delta Chi Fraternity; hazing activities in the spring of 2017

including requiring pledges to participate in a “capture game”

where pledges capture active members, transport them to an

undisclosed location, and drop them off, forcing them make their

way back to school on foot.

b. 2016: Kappa Sigma Fraternity; hazing of pledges including forced

consumption of alcohol, sleep deprivation, forced calisthenics,

branding, paddling, and personal servitude.

c. 2016: Omega Phi Psi Fraternity; hazing of pledges including an

“underground” pledging process that LSU found “resulted in the

endangering the safety and well-being of LSU Students.”

d. 2015-2016: Lambda Chi Alpha Fraternity; hazing of pledges

including sleep deprivation, forced consumption of alcohol,

personal servitude, and sit-ups and push-ups on trash and

broken glass (2015). After another report of hazing a year later,

LSU disallowed recruitment and living in the fraternity house for

a year (2016).

e. 2015: Beta Kappa Gamma Fraternity; LSU student Praneet Karki

died following an evening of hazing involving extreme exercise

required of fraternity pledges.

f. 2015: Sigma Chi Fraternity; after LSU student Sawyer Reed died

from a drug overdose, the investigation revealed likely hazing of

pledges and “rampant” drug use.

g. 2014: Acacia Fraternity; hazing of pledges including forced

alcohol consumption, personal servitude, acts of physical

violence and forced physical activities, and being forced to eat

dog food and rotten substances.

h. 2014: Lambda Chi Alpha Fraternity; alcohol-related medical

transport of pledge in conjunction with chapter’s bid-day event.

i. 2014: Sigma Phi Epsilon Fraternity; hazing of pledges including

pledges being driven off campus, forced to consume alcohol, and

then the intoxicated pledges were taken to the Mississippi River

levee, dropped off, and told to make their way back to school on

foot in the night. After one fraternity event in August of 2014

where alcohol was provided to underage pledges, a pledge was

found unresponsive in an LSU residence hall and transported to

the hospital.

52482

Page 3 of 30

j. 2013: Pi Kappa Phi Fraternity; hazing of pledges including

quizzes pledges with consequences for incorrect answers,

confining pledges in a small room with no light and little air,

forcing pledges to kneel on broken silverware, personal

servitude, and underage and excessive alcohol consumption.

k. 2011-2012: Sigma Alpha Epsilon Fraternity; an investigation

revealed hazing and endangering pledges, including hazing that

involved forcing pledges to perform physical activities, military

style workouts and calisthenics, such as bows and tows and wall

sits, throughout the night.

l. 2012: Sigma Chi Fraternity; hazing of pledges including cigarette

burns and forced wrestling of one another resulting in broken ribs.

m. 2012: Acacia Fraternity; violations of LSU’s rules and alcohol

policies arising from an incident in which three kegs of beer were

provided for all active members and pledges of the fraternity.

n. 2011: Pi Kappa Phi Fraternity; in the fall of 2011, fraternity placed

on probation by LSU and fraternity’s national headquarters for

what the fraternity later acknowledged were “serious incidents of

hazing.”

o. 2011: Sigma Alpha Epsilon; hazing of pledges including forced

physical activities and personal servitude.

p. 2006: Phi Gamma Delta Fraternity; pledge burned at fraternity

event after falling in bonfire.

q. 1997: Sigma Alpha Epsilon Fraternity; hazing which involved

forced, excessive consumption of alcohol resulted in the death of

fraternity pledge Benjamin Wynn, whose blood alcohol content

was measured at .588%, almost 6 times the legal limit, and the

hospitalization of fraternity pledge Donald Hunt.

r. 1979: Theta Chi Fraternity; a car struck and killed a fraternity

pledge who was blindfolded and participating in a ritual march

along a roadside.10

Plaintiffs claim that, “[o]f the 27 fraternities on LSU’s campus, which restrict

10 Id. at ¶ 128.

52482

Page 4 of 30

membership to male students, only four were without risk-management violations in the

five years preceding Max’s death,” and, “during those five years, there were at least 24

formal hazing investigations involving fraternities, 20 of which led to findings of policy

violations.11 Plaintiffs contend, “[i]n contrast, in that same period, female students

participating in LSU Greek Life never risked or suffered injury or death from dangerous

hazing.”12 Plaintiffs maintain that these “stark differences” result from “LSU’s policy and

practice of responding differently to the hazing of male students than the hazing of female

students,”13 and further allege that,

[Y]ear after year, LSU has remained deliberately indifferent to the serious

and substantial risks male students face in seeking the educational

opportunities and benefits of LSU Greek Life, and has refused and failed to

make any material changes to the manner in which it recognizes, promotes,

regulates, manages, and sanctions fraternities on campus, leaving them

unsafe and imposing serious and substantial risk to male students seeking

the educational benefits and opportunities touted by LSU.14

Additionally, Plaintiffs claim that, “[u]nlike LSU fraternities, LSU sororities, which

restrict membership to female students, do not have a culture or long-documented history

of dangerous hazing and misconduct,” and “when LSU has received reports of hazing at

its sororities, the sanctions LSU has imposed on the sororities have been significantly

greater in length and degree than sanctions LSU generally imposes on fraternities for

comparable misconduct.”15 Plaintiffs claim that LSU’s deliberate indifference to the great

risk of injury and death to male Greek students demonstrates that male Greek students

at LSU “have entirely different, and unequal, access to educational opportunities and

11 Id. at ¶ 10.

12 Rec. Doc. No. 93 at 2 (citing Rec. Doc. No. 1 at ¶ 13).

13 Rec. Doc. No. 1 at ¶ 13.

14 Id. at ¶ 138.

15 Id. at ¶ 11.

52482

Page 5 of 30

benefits offered by LSU Greek Life. LSU is deliberately indifferent to those risks, though

quickly and decisively acts when young women face lesser risks.”16

Plaintiffs allege that Gruver’s death was caused by hazing and forced alcohol

consumption while pledging Phi Delta Theta Fraternity (“Phi Delt”).17 Plaintiffs claim that

Phi Delt, “unbeknownst to and kept secret from Gruver and his family, had been the

subject of numerous credible complaints of hazing.”18 Plaintiffs further claim that

complaints about the hazing at Phi Delt were so numerous that “the Director of LSU’s

Office of Greek Life ‘begged for assistance’ from Phi Delt’s national headquarters in

addressing the misconduct.”19 Yet, Plaintiffs claim, neither LSU nor Phi Delt ever

addressed this issue.20 In fact, a mere three weeks before Gruver’s death, Plaintiffs

allege that a “self-described ‘Concerned Parent’ emailed the Office of Greek Life at LSU”21

as follows:

The Sigma Nu pledge class was made to drink alcohol at the Sigma Nu

house until each pledge member vomited. This occurred on boys bid night,

August 20th, 2017. I was made aware of this yesterday, when a mother of

a pledge (who has dropped out because of this) shared this information with

me. As a parent of a pledge of another fraternity, I am very angry that this

has occurred and I know that it will likely continue. I do not want to hear that

someone’s son is dead due to alcohol poisoning, and I expect someone to

investigate this incident ASAP and put an end to hazing at LSU.22

Plaintiffs further allege that, in response to this email, “LSU’s Greek Accountability team

‘decided there was not enough information to investigate the case,’ and closed its file on

16 Rec. Doc. No. 93 at 3 (citing Rec. Doc. No. 1 at ¶¶ 9, 102, 204).

17 Rec. Doc. No. 1 at ¶¶ 3-6.

18 Rec. Doc. No. 93 at 3 (citing Rec. Doc. No. 1 at ¶¶ 155-182).

19 Rec. Doc. No. 1 at ¶ 17.

20 Id. at ¶¶ 18-19.

21 Id. at ¶ 1.

22 Id.

52482

Page 6 of 30

the incident.”23 Plaintiffs claim that “LSU’s failure to even investigate this parent’s

ominous warning reflects its long-standing deliberate indifference to the hazing of male

students in its fraternities, despite the severe, pervasive risks of serious injuries and death

those students face” when they participate in Greek life at LSU.24

Plaintiffs have sued LSU for alleged violations of Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”). LSU has moved to dismiss

Plaintiffs’ claims under Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil

Procedure, arguing that Plaintiffs have failed to state a claim and lack standing under Title

IX, and LSU is shielded from suit by Eleventh Amendment sovereign immunity.

II. RULE 12(B)(1) MOTION TO DISMISS

“When a motion to dismiss for lack of jurisdiction ‘is filed in conjunction with other

Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before

addressing any attack on the merits.’”25 If a complaint could be dismissed for both lack

of jurisdiction and for failure to state a claim, “‘the court should dismiss only on the

jurisdictional ground under [Rule] 12(b)(1), without reaching the question of failure to state

a claim under [Rule] 12(b)(6).’”26 The reason for this rule is to preclude courts from issuing

advisory opinions and barring courts without jurisdiction “‘from prematurely dismissing a

case with prejudice.’”27

23 Id. at ¶ 2.

24 Id.

25 Crenshaw–Logal v. City of Abilene, Texas, 436 Fed. Appx. 306, 308 (5th Cir. 2011)(quoting Ramming

v. United States, 281 F.3d 158, 161 (5th Cir. 2001); see also Randall D. Wolcott, MD, PA v. Sebelius, 635

F.3d 757, 762 (5th Cir. 2011); Fed.R.Civ.P. 12(h)(3)).

26 Crenshaw–Logal, 436 Fed.Appx. at 308 (quoting Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th

Cir.1977)).

27 Id. (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998), and Ramming, 281 F.3d at

161).

52482

Page 7 of 30

“Article III standing is a jurisdictional prerequisite.”28 If a plaintiff lacks standing to

bring a claim, the Court lacks subject matter jurisdiction over the claim, and dismissal

under Rule 12(b)(1) is appropriate.29 The party seeking to invoke federal jurisdiction

bears the burden of showing that standing existed at the time the lawsuit was filed.30 In

reviewing a motion under 12(b)(1) for lack of subject matter jurisdiction, a court may

consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the

court's resolution of disputed facts.31

A. Sovereign Immunity

LSU argues dismissal under Rule 12(b)(1) is warranted because, as an arm of the

State of Louisiana, it is shielded by Eleventh Amendment sovereign immunity. LSU

asserted this defense in a case brought under Title IX in Pederson v. Louisiana State

University.32 LSU makes the same arguments in the present lawsuit that were rejected

by the Fifth Circuit in Pederson, arguing that the United States Supreme Court decision

in National Federation of Independent Business v. Sebelius33 effectively calls into

question the Fifth Circuit’s holding in Pederson, and this Court should reexamine the

issue. The Pederson court set forth the following analysis in finding that LSU was not

shielded by sovereign immunity for Title IX claims:

42 U.S.C. § 2000d–7(a)(1) provides that: “[a] State shall not be immune

28 Crenshaw–Logal, 436 Fed.Appx. at 308 (citing Steel Co., 523 U.S. at 101, 118 S.Ct. 1003, and Xerox

Corp. v. Genmoora Corp., 888 F.2d 345, 350 (5th Cir.1989)).

29 Whitmore v. Arkansas, 495 U.S. 149, 154–55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Chair King, Inc.

v. Houston Cellular Corp., 131 F.3d 507, 509 (5th Cir.1997).

30 M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001); Howery v. Allstate Ins. Co., 243

F.3d 912, 916 (5th Cir. 2001); Ramming, 281 F.3d at 161.

31 Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981).

32 213 F.3d 858 (5th Cir. 2000).

33 567 U.S. 519 (2012).

52482

Page 8 of 30

under the Eleventh Amendment of the Constitution of the United States from

suit in Federal court for a violation of ... title IX of the Education Amendments

of 1972.” In Litman v. George Mason University, 186 F.3d 544 (4th

Cir.1999), cert. denied, 528 U.S. 1181, 120 S.Ct. 1220, 145 L.Ed.2d 1120

(2000), the Court of Appeals for the Fourth Circuit concluded that, in

enacting § 2000d–7 Congress “permissibly conditioned [a state university's]

receipt of Title IX funds on an unambiguous waiver of [the university's]

Eleventh Amendment immunity, and that, in accepting such funding, [the

university] has consented to litigate [private suits] in federal court.” Id. at

555. The test for finding such waiver “is a stringent one,” College Sav. Bank

v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119

S.Ct. 2219, 2226, 144 L.Ed.2d 605 (1999) (quoting Atascadero State Hosp.

v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171(1985)), and

the Fourth Circuit in Litman conducted a careful analysis under the relevant

inquiry. We cannot improve on the work done by the court in Litman, and

we therefore simply adopt its holding for all the reasons supplied in its well-

crafted opinion.34

In Pederson, as in the present case, LSU argued that 42 U.S.C. § 2000d–7(a)(1)

did not contain the word “waiver,” and the state may have logically disregarded the

language of this statute as an attempt to abrogate its sovereign immunity. LSU also

argued that the Supreme Court's decision in Seminole Tribe v. Florida35 rejected the idea

of a state “constructively waiving” its Eleventh Amendment immunity.36 The Fifth Circuit

rejected both arguments:

First, we will consider whether 42 U.S.C. § 2000d–7(a)(1), although it does

not use the words “waiver” or “condition”, unambiguously provides that a

State by agreeing to receive federal educational funds under Title IX has

waived sovereign immunity. A state may “waive its immunity by voluntarily

participating in federal spending programs when Congress expresses ‘a

clear intent to condition participation in the programs ... on a State's consent

to waive its constitutional immunity.’” Litman, 186 F.3d at 550 (quoting

Atascadero State Hosp., 473 U.S. at 247, 105 S.Ct. 3142). Title IX as a

federal spending program “operates much in the nature of a contract: in

return for federal funds, the States agree to comply with federally imposed

conditions.” Id. at 551; see also Rosa H. v. San Elizario Independent School

District, 106 F.3d 648, 654 (5th Cir.1997) (stating that Title IX is Spending

34 Pederson, 213 F.3d at 875-76.

35 517 U.S. 44 (1996).

36 Pederson, 213 F.3d at 876.

52482

Page 9 of 30

Clause legislation, and as a statute enacted under the Spending Clause,

Title IX generates liability when the recipient of federal funds agrees to

assume liability)[.] The Supreme Court has noted that Congress in enacting

Title IX “condition[ed] an offer of federal funding on a promise by the

recipient not to discriminate, in what amounts essentially to a contract

between the Government and the recipient of funds.” Gebser v. Lago Vista

Indep. School Dist., 524 U.S. 274, 286, 118 S.Ct. 1989, 1997, 141 L.Ed.2d

277 (1998); Litman, 186 F.3d at 551–552. Thus, based on the above

reasoning we find that in 42 U.S.C. § 2000d–7(a)(a) Congress has

successfully codified a statute which clearly, unambiguously, and

unequivocally conditions receipt of federal funds under Title IX on the

State's waiver of Eleventh Amendment Immunity. See Litman, 186 F.3d at

554.

LSU argues that even if 42 U.S.C. § 2000d–7(a)(1) is intended to cause

waiver of sovereign immunity, this type of “conditional waiver” argument is

at odds with the Supreme Court's decision in Seminole Tribe. We do not

find this argument persuasive. As the Fourth Circuit reasoned in Litman:

We do not read Seminole Tribe and its progeny, including the

Supreme Court's recent Eleventh Amendment decisions, to preclude

Congress from conditioning federal grants on a state's consent to be

sued in federal court to enforce the substantive conditions of the

federal spending program. Indeed, to do so would affront the Court's

acknowledgment in Seminole Tribe of the “unremarkable ...

proposition that States may waive their sovereign immunity.”

Id. at 556 (quoting Seminole Tribe, 517 U.S. at 65, 116 S.Ct. 1114). We

conclude that in accepting federal funds under Title IX LSU waived its

Eleventh Amendment sovereign immunity.37

LSU acknowledges the Pederson decision but argues that it should be “closely re-

examined in light of” Sebelius, which LSU contends essentially overrules the Pederson

holding as to sovereign immunity and based on “the unique relationship that LSU has

maintained with the federal government since LSU’s commencement as a land grant

university in 1874.”38 LSU maintains that, “[c]onsidering LSU’s historical relationship with

37 Id.

38 Rec. Doc. No. 70-1 at 16. LSU also argues that, in College Savings Bank v. Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666 (1999), the Supreme Court held § 2000d-7’s constructive waiver

unconstitutional under Congress’s Article I Commerce Clause. LSU contends College Savings

52482

Page 10 of 30

the federal government, Congress unconstitutionally exceeded its Article I Spending

Power to the extent Congress coercively conditioned LSU’s receipt of federal funds on

waiver of its Eleventh Amendment immunity.”39

LSU contends Sebelius provides two scenarios in which a constructive waiver is

unconstitutionally coercive: 1) where the conditions do not govern the use of the subject

funds, but threaten to terminate other independent grants, and 2) where the conditions

apply retroactively. First, LSU argues Sebelius allows for the requirement that LSU use

Title IX funds in a nondiscriminatory manner, but it does not allow § 2000d-7 to terminate

the independent grant of sovereign immunity irrespective of LSU’s compliance with Title

IX. Second, LSU argues it has received federal funding since 1874 pursuant to the Morrill

Act. LSU maintains that it could not have anticipated in 1874 that it would later be required

to waive immunity in light of § 2000d-7’s enactment in 1986. Further, LSU avers it should

not be forced to waive immunity when accepting federal funds because the United States

is required to fund the ROTC program, and LSU has no choice but to accept. Thus, under

Sebelius, LSU renews its argument that § 2000d-7 unconstitutionally forces a waiver of

sovereign immunity, and LSU did not knowingly or voluntarily waive immunity.

As to abrogation, LSU contends Title IX does not abrogate immunity because it

was not enacted pursuant to the Fourteenth Amendment.

Plaintiffs oppose LSU’s motion and argue that LSU has validly waived Eleventh

Amendment sovereign immunity. Plaintiffs contend that the Fifth Circuit held both in

distinguished Congress’s ability to extract waivers under the Commerce Clause and the Spending Power

Clause, thus narrowing the power to extract waivers under the Spending Clause while not addressing the

extent to which the power is narrowed. LSU seems to argue Sebelius does this narrowing.

39 Id. at 16-17.

52482

Page 11 of 30

Pederson and Pace v. Bogalusa City Sch. Bd.40 that, in enacting § 2000d-7, Congress

unequivocally conditioned receipt of the statute’s listed funds, including Title IX, on the

State’s waiver of immunity, and these cases remain binding. Further, Plaintiffs claim that

the Fifth Circuit has already rejected LSU’s argument that the conditional spending

programs at issue therein—the IDEA and § 504 of the Rehabilitation Act—were unduly

coercive, and those holdings should apply equally to Title IX funds.

Plaintiffs contend LSU is attempting to circumvent the holding of Pederson by citing

to College Savings and Sebelius; however, Plaintiffs maintain these cases are factually

inapposite and do not support LSU’s argument that § 2000d-7 is unduly coercive.

Plaintiffs note that four circuit courts have already found that § 2000d-7’s conditions are

reasonably related to the question of whether federal funds are spent in a

nondiscriminatory manner, and no condition of § 2000d-7 applies retroactively. Rather,

Plaintiffs aver that LSU has voluntarily and knowingly accepted federal funding since the

enactment of § 2000d-7 thirty years ago. Thus, the spending program is not coercive.

Additionally, Plaintiffs argue that LSU is collaterally estopped from challenging

Pederson. Plaintiffs claim that LSU asserted and fully and vigorously litigated these same

sovereign immunity arguments in Pederson. Further, Plaintiffs note that LSU has

repeatedly made the argument that the Fifth Circuit should “re-examine” this issue in light

of “new” Supreme Court jurisprudence, and the Fifth Circuit has rejected this argument

every time.41

40 403 F.3d 272 (5th Cir. 2005).

41 LSU relied on Seminole Tribe v. Florida, 528 U.S. 18 (1999), in Pederson; Garcia v. S.U.N.Y. Health

Sciences Center, 280 F.3d 98 (2d Cir. 2001), in Pace; and Jackson v. Birmingham Board of Education, 544

U.S. 167 (2005), in Miller v. Tex. Tech Univ. Health Scis. Ctr., 421 F.3d 342 (5th Cir. 2005).

52482

Page 12 of 30

Plaintiffs contend that, in addition to § 2000d-7’s valid conditional waiver of

immunity, per Lesage v. State of Texas,42 Congress also abrogated states’ immunity to

Title IX lawsuits. The Lesage court found that § 2000d-7 abrogated immunity under Title

VI. Plaintiff argues Title IX was modeled on Title VI, and the language parallels exactly.

Title VI prevents race discrimination, Title IX prevents gender discrimination, and both

invoke the Equal Protection Clause of the Fourteenth Amendment as needed to abrogate

immunity. Thus, Plaintiffs maintain that LSU is still not immune from suit even if

unconstitutionally coerced.

As to the state law claims, Plaintiff admits this Court lacks jurisdiction but argues

their claims should be dismissed without prejudice.

Based on a wealth of binding jurisprudence, the Court finds that LSU is not entitled

to sovereign immunity from suits brought under Title IX. The Eleventh Amendment bars

private suits against a State in federal court, but there are two exceptions to this general

rule. Immunity may be abrogated when Congress acts under § 5, the Enforcement Clause

of the Fourteenth Amendment,43 or a state may consent to suit, and such consent must

be both knowing and voluntary.44

In South Dakota v. Dole, the Supreme Court set forth the test that is employed in

determining the validity of a conditional waiver such as § 2000d-7.45 Under Dole,

congressional spending programs that benefit the general welfare, contain unambiguous

conditions, and contain conditions reasonably related to the purpose of the expenditure,

42 158 F.3d 213, 215-219 (5th Cir. 1998), overruled on other grounds, 528 U.S. 18 (1999).

43 U.S. CONST. amend. XIV, § 5.

44 Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 277 (5th Cir. 2005).

45 Id. at 278 (citing South Dakota v. Dole, 483 U.S. 203 (1987)).

52482

Page 13 of 30

are valid unless they are either independently prohibited or coercive.46 Dole’s

requirements ensure compliance with the “knowing and voluntary” requirements set forth

in College Savings.47 A state knowingly waives immunity in exchange for federal funds

when it has knowledge that a Spending Clause condition requires waiver of immunity.48

Thus, Congress must make conditions on federally granted money clear and

unambiguous. If Congress does so, a state’s actual acceptance of funds is generally

voluntary, unless the spending program is deemed coercive.49

Specifically, 42 U.S.C. § 2000d-7(a)(1) conditions receipt of Title IX funds on a

state’s waiver of immunity. It provides that “a State shall not be immune under the

Eleventh Amendment of the Constitution of the United States from suit in Federal court

for a violation of …title IX of the Education Amendments of 1972.” The Pace court held

that there is no independent bar to conditional-spending programs under the Spending

Clause or unconstitutional-conditions doctrine.50 The Pace court also found that, because

a state can avoid suits under the IDEA by rejecting IDEA funds (and to do so, a state

would not have to reject all federal assistance), the conditional-spending scheme is not

unduly coercive.51 Additionally, although this statute does not contain the words “waiver”

or “condition,” in the statute, Congress clearly, unambiguously, and unequivocally

conditions receipt of federal funds under Title IX on the State’s waiver of Eleventh

Amendment immunity.52 Therefore, the “knowing” requirement is satisfied. In both Pace

46 Id. at 279

47 Id.

48 “That [a state] might not ‘know’ subjectively whether it had any immunity to waive by agreeing to

conditions is wholly irrelevant.” Id. at 284.

49 Id. at 279.

50 Id. at 285-286.

51 Id. at 287 (citing 29 U.S.C. § 794(b)(1); See e.g. Jim C. v. United States, 235 F. 3d 1079 (8th Cir. 2000)).

52 Id. at 280; Pederson, 213 F.3d at 876.

52482

Page 14 of 30

and Pederson, the Fifth Circuit found that, in accepting federal funds under Title IX, the

State waived its Eleventh Amendment sovereign immunity.53

In Sebelius, several states challenged Congress’s ability to require states to

comply with Medicaid expansion or potentially lose all federal Medicaid funding. The

Court affirmed that Congress customarily attaches conditions to funds granted to states,54

but the power to attach these conditions has limits.55 The Sebelius Court explained that

conditions must be “unambiguous so that a state at least knows what it is getting into,”56

must be related to the federal interest in national projects or programs,57 and must not

induce the states to engage in activities that would themselves be unconstitutional.58 And

while Congress may induce the states to accept conditional grants, Congress may not

cross the “point at which pressure turns into compulsion, and ceases to be inducement.”59

Where states have a real choice in accepting or declining federal aid, the federal-state

relationship is much like a contract, and the legitimacy of Congress’s spending power

rests on whether the state knowingly and voluntarily accepts the terms of the contract.60

If a state truly has no choice but to accept federal funding, the offer is coercive.61

The Sebelius Court compared the Medicaid expansion conditions to the conditions

imposed on South Dakota in Dole. In Dole, Congress conditioned 5% of South Dakota’s

federal highway funds on the State’s adoption of a drinking age of 21. This small

53 Id. at 280-81.

54 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 675 (2012)(citing Pennhurst State School and

Hospital v. Halderman, 451 U.S. 1, 17 (1981); South Dakota v. Dole, 483 U.S. 203, 206 (1987)).

55 Id. (citing Dole, supra, at 207, 208).

56 Id. (citing Pennhurst, supra, at 17).

57 Id. (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978)).

58 Id. (citing Dole, supra, at 210).

59 Id. at 675 (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)).

60 Id. at 676 (citing Barnes v. Goldman, 536 U.S. 181, 186 (2002); Pennhurst, supra, at 17.

61 Id. at 679.

52482

Page 15 of 30

percentage was deemed relatively mild encouragement rather than coercion, whereas

the threat of losing all Medicaid funding was deemed coercive.62 Therefore, in this Court’s

view, Sebelius did not announce a new rule on conditional spending programs but simply

applied Dole and other established precedent. In keeping with Fifth Circuit precedent,

the Court finds that LSU is not shielded from suit under Title IX by Eleventh Amendment

sovereign immunity.63

B. Standing

LSU also claims that Plaintiffs lack standing to bring this suit under Title IX. LSU

argues that the mere risk of injury is insufficient to satisfy the Article III standing

requirement, let alone to sustain a Title IX claim. LSU contends “Plaintiffs must allege a

‘concrete and particular injury in fact’ that is ‘fairly traceable’ to the alleged actions of

[LSU].”64 LSU further argues that a risk of future harm only satisfies Article III standing

when the harm is “certainly impending.”65 LSU contends that Plaintiffs have not alleged

that Gruver was at a unique risk to be hazed, nor that all male fraternity members are

hazed, so there can be no “certainly impending” risk.

Plaintiffs argue in opposition that LSU is barred from raising its Article III standing

argument in a reply memorandum. However, should the Court entertain the argument,

Plaintiffs assert that an “invasion of a legally protected interest” is sufficient for Article III

standing. Plaintiffs argue Gruver had a legally protected interest in not being excluded

62 Id.

63 Considering the Court’s ruling, Plaintiffs’ claim that LSU is collaterally estopped from raising this defense

is moot. Further, because the Court has determined that LSU waived its sovereign immunity, the Court

need not address abrogation. See Pederson, 213 F.3d at 875, n. 15.

64 Rec. Doc. 91 at 4 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

65 Id. (citing Clapper v. Amnesty International USA, 568 U.S. 398 (2013)).

52482

Page 16 of 30

from participation in, or denied benefits of, an education program on the basis of sex, and

the discriminatory policy denied him those benefits and caused his hazing and death.

Therefore, Plaintiffs argue they have demonstrated standing under Title IX.

The Court finds that LSU is not barred from raising a challenge to standing in its

Reply. The law is clear that “a defect in Article III standing deprives [a] federal court of

subject matter jurisdiction.”66 Further, “[b]ecause standing is a necessary component of

federal subject matter jurisdiction, it may be raised at any time by a party or the court.”67

Nevertheless, the Court is unpersuaded by LSU’s argument. To demonstrate

Article III standing, a plaintiff must show: (1) “an injury in fact—a harm suffered by the

plaintiff that is concrete and actual or imminent, not conjectural or hypothetical[,]” (2)

“causation—a fairly traceable connection between the plaintiff’s injury and the

[defendant’s] complained-of conduct[,]” and (3) “redressability—a likelihood that the

requested relief will redress the alleged injury.”68 The invasion of a “legally protected

interest” is an injury in fact.69

The Pederson court found Equal Protection jurisprudence to be instructive on the

issue of when a legally protected interest is violated. In those cases, when the

government erects a barrier making it more difficult for members of one group to obtain a

benefit than it is for members of another group, the injury in fact is the inability to seek

benefits on equal footing.70 Therefore, to establish standing in these circumstances, a

66 Brooks v. Georgia Pacific, L.L.C., No. 16-0676, 2017 WL 1534219 at *2 (citing Cadle Co. v. Neubauer,

562 F.3d 369, 374 (5th Cir. 2009) (citation omitted)).

67 Id. at *3 (citing Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005)).

68 Pederson, 213 F.3d at 869 (quoting Sierra Club v. Peterson, 185 F.3d 349, 360 (5thCir. 1999)).

69 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

70 Pederson, 213 F.3d at 871 (citing Northeastern Fla. Chapter of the Associated Gen. Contractors of Am.

v. City of Jacksonville, 508 U.S. 656, 666 (1993)); (see also Wilson v. Glenwood Intermountain Properties,

52482

Page 17 of 30

plaintiff only needs to demonstrate that he is ready and able to compete, but the

discriminatory policy prevents him from doing so on an equal basis.71 The Court finds

that Plaintiffs have sufficiently pled such an injury, as well as causation (that the injury

was fairly traceable to LSU’s alleged policy), and redressability, as will be demonstrated

in greater detail below.

III. MOTION TO DISMISS UNDER RULE 12(b)(6)

When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”72 The

Court may consider “the complaint, its proper attachments, documents incorporated into

the complaint by reference, and matters of which a court may take judicial notice.”73 “To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state

a claim to relief that is plausible on its face.’”74 In Twombly, the United States Supreme

Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)

motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.”75 A complaint is also insufficient if it

Inc., 98 F.3d 590, (10th Cir. 1996) (applying principles of Equal Protection standing to Fair Housing Act

claim)).

71 Id.

72 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin v. Eby Constr.

Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).

73 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).

74 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin v. Eby Constr. Co. v. Dallas Area

Rapid Transit, 369 F.3d at 467).

75 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations and brackets

omitted)(hereinafter Twombly).

52482

Page 18 of 30

merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”76 However,

“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.”77 In order to satisfy the plausibility standard, the plaintiff must show “more than

a sheer possibility that the defendant has acted unlawfully.”78 “Furthermore, while the

court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable

to the plaintiff.’”79 On a motion to dismiss, courts “are not bound to accept as true a legal

conclusion couched as a factual allegation.”80

Title IX prohibits discrimination on the basis of sex in federally-funded educational

programs.81 It is enforceable through an individual’s private right of action and allows for

the recovery of damages.82 There are two avenues to pursue a claim under Title IX: one

based on an institution’s official policy of intentional discrimination on the basis of sex and

one that seeks to hold an institution liable for teacher-on-student or student-on-student

sexual harassment.83 According to the Supreme Court in Davis v. Monroe County Board

of Education,84 to prevail on a student-to-student harassment claim, the plaintiff must

prove: (1) the school acted with deliberate indifference to sexual harassment of which it

76 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(internal citations

omitted)(hereinafter “Iqbal”).

77 Twombly, 550 U.S. at 570.

78 Iqbal, 556 U.S. at 678.

79 Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire

Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).

80 Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d

209 (1986)).

81 20 U.S.C. § 1681(a).

82 Franklin v. Gwinnett Cty. Public Schs., 503 U.S. 60 (1992).

83 See Pederson, 213 F.3d at 882; see also Doe 1 v. Baylor University, 240 F.Supp.3d 646, 657 (W.D.

Texas 2017).

84 526 U.S. 629 (1999).

52482

Page 19 of 30

had (2) actual knowledge, and (3) the harassment must be so severe, pervasive, and

objectively offensive that it can be said to deprive the victim of access to the educational

opportunities or benefits provided by the school.85 Because the deliberate indifference

must cause the harassment, liability is further limited to circumstances where the recipient

exercises substantial control over both the harasser and the context in which the known

harassment controls.86

LSU erroneously argues that Plaintiffs’ claim must be dismissed because the

implied private right of action under Title IX does not impose liability against LSU where

Plaintiffs do not allege peer-on-peer sexual harassment. Plaintiffs’ Title IX claim in this

case is unquestionably based on LSU’s alleged policy of intentional discrimination on the

basis of sex, an allowable cause of action under Title IX. Therefore, the Court will not

address LSU’s arguments regarding peer-on-peer sexual harassment as they are

irrelevant.

LSU claims Plaintiffs’ allegations are largely conclusory and only based “upon

information and belief.” LSU further argues that Plaintiffs’ Complaint compares one

instance of sorority hazing where females received the harshest available sanction to

twenty-four instances of fraternity hazing where twenty policy violations were found. LSU

contends these purported facts are insufficient to demonstrate a policy of discrimination.

LSU further argues that Plaintiffs are attempting to circumvent Davis by alleging

LSU engaged in a practice of discrimination by policing sorority hazing more strictly than

fraternity hazing. LSU contends this type of claim fails as well because Plaintiffs must

85 Davis, 526 U.S. at 650.

86 Id. at 645 (emphasis added).

52482

Page 20 of 30

assert that: (1) Gruver was a member of a protected class, (2) this class suffered adverse

action, and (3) this class was treated less favorably than similarly situated students.87

LSU argues that Plaintiffs have pled no facts supporting a claim that those outside of

Gruver’s protected class were treated more favorably than he. Rather, LSU maintains

that Plaintiffs’ Complaint demonstrates the opposite—that those outside of Gruver’s class

were in fact treated worse—because females were treated more harshly when their

hazing complaints were met with greater sanctions. Further, LSU contends Plaintiffs failed

to claim that LSU took any adverse action against Gruver himself, or that he ever reported

hazing in the first place. LSU argues that if Plaintiffs allege the hazing was the adverse

action, then the claim must be analyzed under Davis, where it would fail.

LSU also contends that a classic intentional discrimination claim fails because the

alleged intentional discrimination must cause the injury.88 LSU claims Plaintiffs only

allege that LSU failed to prevent an injury. Further, LSU contends a sex discrimination

claim predicated on student-on-student conduct must show the school had an affirmative

policy or practice that directed or encouraged misconduct on the basis of sex, not that the

institution simply failed to prevent the conduct. LSU argues that Plaintiffs claim the

adverse action caused by LSU was the mere risk Gruver faced, thus the policy was not

an affirmative cause of hazing.

Plaintiffs assert that Davis is inapplicable to their claim because it is not based on

peer-on-peer harassment. Rather, Plaintiffs have alleged a claim based on LSU’s actions

87 Rec. Doc. 70-1 at 11 (citing Kirk v. Monroe City Sch. Bd., 2018 WL 4292355, at *6 (W.D. La. Aug. 24,

2018), report and recommendation adopted, 2018 WL 4291750 (W.D. La. Sept. 7, 2018); Arceneaux on

Behalf of Rebekka A. v. Assumption Par. Sch. Bd., 242 F. Supp. 3d 486, 494 (E.D. La. 2017)).

88 Rec. Doc. 91, pg. 2 (citing Weckhorst v. Kansas State University, 2017 WL 3674963 (D. Kan. 2017)).

52482

Page 21 of 30

in intentionally discriminating against male students seeking the benefits of Greek life as

compared to female Greek students. Plaintiffs maintain that “discrimination under Title

IX should be construed broadly.”89

Plaintiffs argue that Pederson is controlling as to the elements of their claim, and

it provides that “the proper test for determining whether an intentional violation has

occurred under Title IX is whether an institution ‘intended to treat [students] differently on

the basis of their sex.’”90 Plaintiffs allege LSU has a policy of treating sorority hazing

complaints more harshly than fraternity complaints. Plaintiffs further argue that, because

this practice is grounded in outdated stereotypes of men, it is intentional discrimination

that forces males to seek benefits of Greek Life with greater risk of injury.

Plaintiffs also decry LSU’s claim that their allegations are conclusory and direct the

Court to numerous paragraphs in the Complaint detailing the manner in which LSU

treated fraternity hazing claims.91 Specifically, Plaintiffs allege LSU misconstrues their

allegations “to arrive at the erroneous conclusion that because at least three fraternities

were punished more severely than the single sorority discussed, Plaintiffs’ allegations fail

to give rise to a reasonable inference that LSU treated males and females differently.”92

Rather, Plaintiffs contend that one sorority was in fact punished more harshly than all

fraternities during the same time period, and this fact supports the position that LSU

treated sorority hazing complaints more severely.

To LSU’s assertion that those outside of Gruver’s class were not treated more

89 Rec. Doc. 93 at 6 (citing Jackson v. Birmingham Bd. Of Educ., 544 U.S. 167, 174-175 (2005)(internal

quotation marks omitted)).

90 Id. (quoting Pederson, 213 F.3d at 882).

91 Id. at 8 (citing Complaint at ¶¶ 101-103, 112-116, 125-141, 155-182).

92 Id. at 9 (internal quotation marks omitted).

52482

Page 22 of 30

favorably because they were met with greater sanctions, Plaintiffs counter that this

argument is “completely backwards.”93 Instead, Plaintiffs maintain that those outside of

Gruver’s class (female Greek students) were treated better specifically because their

hazing complaints were met aggressively and appropriately by LSU with greater

sanctions, thereby providing greater protection by LSU to female Greek students and

reducing their risk of injury. Plaintiffs argue that the adverse action taken against Gruver

was the operation of its discriminatory policy regarding male Greek hazing which

proximately caused Gruver’s injury specifically and creates a heightened risk of injury to

all male Greek students generally.

The Court has considered the allegations in the Complaint and the applicable

jurisprudence, and the Court finds that LSU is not entitled to dismissal under Rule

12(b)(6).

In Pederson, the plaintiffs brought suit against LSU under Title IX, alleging LSU

intentionally discriminated on the basis of sex by not sponsoring a women’s fast-pitch

softball team. In that case, the district court concluded that a Title IX claimant must prove

intentional discrimination in addition to a threshold finding of a Title IX violation.94 The

Fifth Circuit found that the actual notice and deliberate indifference requirements of sexual

harassment cases have “little relevance” in determining whether intentional discrimination

occurred.95 Rather, the proper test is “whether [LSU] intended to treat women differently

on the basis of sex by providing them unequal athletic opportunity.”96 “[LSU] need not

93 Rec. Doc. No. 93 at 8.

94 Pederson, 213 F.3d at 879-880.

95 Id. at 882.

96 Id.

52482

Page 23 of 30

have intended to violate Title IX, but need only have intended to treat women differently.”97

Application of archaic attitudes about women constitute intentional discrimination.98 Thus,

the Pederson plaintiffs were required only to prove a violation of Title IX and intentional

discrimination.99

In most Title IX cases, the threshold finding of a Title IX violation is found by a

violation of the clear terms of the statute. The Pederson court made the threshold finding

of a Title IX violation by utilizing the Policy Interpretations of Title IX, 44 Fed. Reg. at

71,413 (1979), the application of which is limited to athletics programs.100 Further, the

Supreme Court’s holding in Gebser v. Lago Vista Independent School Dist.,101 the leading

teacher-on-student harassment case, seems to support this approach. Gebser also

dispenses with the actual notice and deliberate indifference requirements where the Title

IX claim alleges an official policy of discrimination.102 This logically leaves the claimant to

prove only the policy of intentional discrimination. Davis also seems to support this

approach where it says an institution can be sued for damages “where the funding

recipient engages in intentional conduct that violates the clear terms of the statute.”103

The most factually analogous case located by the Court is J.H. v School Town of

Munster,104 a case decided by United States District Court for the Northern District of

Indiana. Although this ruling addressed a summary judgment motion, it is nonetheless

97 Id. at 881 (internal citations omitted).

98 Id.

99 See also Horner v. Kentucky High School Athletic Association, 206 F.3d 685 (6th Cir. 2000) (alleging the

same claim and proofs needed for the claim).

100 Id.

101 524 U.S. 274 (1998).

102 Id. at 290.

103 Davis, 526 U.S. at 642.

104 160 F.Supp.3d 1079 (N.D. Ind. 2016).

52482

Page 24 of 30

instructive to the present case. In J.H., a high school male brought a Title IX claim against

his school alleging that it purposefully ignored complaints of hazing in the boys’ swimming

program due to their gender.105 The Court noted that “J.H.'s argument is essentially that

the Defendants were willfully turning a blind eye to all of the awful things going on in the

male swimming program because ‘boys will be boys.’”106 The court explained that, “[i]n

essence, it's not necessary to show that Munster had a policy of forcing the boys to do or

not do something that didn't apply to the girls. Instead, indifference to the boys' welfare is

enough.”107 The court continued:

In pursuing this theory, J.H. must show a connection between Munster's

alleged custom or practice and his injury. Rice ex rel. Rice v. Corr. Med.

Servs., 675 F.3d 650, 670 (2012). So what all this boils down to is that J.H.

must show that Munster engaged in a widespread practice of ignoring

complaints of hazing from the boys' swimming program, either intentionally

or with deliberate indifference to the boys' rights, simply because the

complaints were coming from boys and not girls. See e.g. Hayden, 743 F.3d

at 583 (intentional discrimination can be shown by either deliberate

indifference or a discriminatory school policy). J.H. can show this based on

evidence of his own treatment, in addition to the treatment of others on his

team. Bohen, 799 F.2d at 1187 (Maj. opinion).108

The court relied on the same elements laid out in Davis and found that the school’s policy

alone demonstrated its intent to discriminate, suggesting that the first Davis prong

requiring discrimination is met even if it does not demonstrate harassment.109

Nevertheless, the court concluded that J.H. could proceed with his claim under either

framework.110 The court reasoned that the same evidence showing a practice of

105 Id.

106 Id. at 1086.

107 Id. (citation omitted).

108 Id.

109 Id. at 1091. The J.H. court did note, however, that the Seventh Circuit had not addressed whether a

plaintiff needs to satisfy the three remaining prongs of Davis for this type of claim.

110 Id.

52482

Page 25 of 30

intentionally ignoring the boys’ hazing complaints satisfies the deliberate indifference

element in that the practice is necessarily deliberately indifferent, and the basis of the

claim is the school’s own policy which establishes the school’s actual knowledge.111

Finally, the court found that the plaintiff had submitted sufficient evidence that the alleged

discrimination was sufficiently severe, pervasive, and objectively offensive such that it

undermined his educational opportunities.112 The court held that there was sufficient

evidence to allow a jury to determine whether the school’s failure to remedy the hazing—

which was extensively reported to the school administration— caused J.H. to leave the

school, experience a decline in grades, and suffer psychological effects.113 The court

also noted that a plaintiff need not prove that the girls’ team experienced no hazing, but

only that the discriminatory policy applied only to the boys.114

Ultimately, the court denied the motion for summary judgment for this portion of

J.H.’s claim, but it did not resolve the factors necessary to prove a Title IX claim because

it found the claim satisfied the test for student-on-student harassment claims. While this

analytical framework is not binding on this Court, the Court nevertheless finds the J.H.

decision instructive, and it demonstrates that federal courts have allowed claims like

Plaintiffs herein to proceed to trial under the same type of pleadings.

The present case alleges both an intentional policy of discrimination and student

misconduct. A similar case was presented in Doe 1 v. Baylor University, wherein female

students asserted a claim seeking to hold the university liable for its discriminatory custom

111 Id. (emphasis added).

112 Id.

113 Id.

114 Id. at 1088.

52482

Page 26 of 30

or policy that created a heightened risk of sexual harassment for female students.115

Specifically, the ten female plaintiffs in Baylor sued the university under Title IX and

alleged that, while they were students at Baylor University,

they were sexually assaulted by another student, but that when they sought

assistance and protection from Baylor, the school did nothing (or almost

nothing) in response to their reports. Plaintiffs allege Baylor discouraged

them from reporting their assaults, failed to adequately investigate each of

the assaults, and failed to ensure Plaintiffs would not be subjected to

continuing assault and harassment. Plaintiffs assert that Baylor's practices

in handling their reports reflect the school's widespread practice of

mishandling reports of peer sexual assault. They allege these practices

chilled other students from reporting sexual harassment, permitted the

creation of a campus condition “rife with sexual assault,” “substantially

increased Plaintiffs' chances of being sexually assaulted,” (Third Am.

Compl., Dkt. 56, at 1–2, ¶ 29), and ultimately created a harassing

educational environment that deprived Plaintiffs of a normal college

education and other educational opportunities.116

Notably, the Baylor court rejected the university’s argument, on a Rule 12(b)(6)

motion to dismiss, that “evidence of a general problem of sexual violence is not

sufficient.”117 The court explained:

At this stage of litigation, the Court considers only whether Plaintiffs'

Complaint contains sufficient factual matter, if accepted as true, to state a

claim to relief that is plausible on its face. Baylor attempts to disclaim liability

by dismissing Plaintiffs' allegations as “an amalgam of incidents that

involved completely different contexts, offenders, and victims,” (Def.'s Mot.

Dismiss Doe 7, Dkt. 62, at 21), and arguing that “evidence of a general

problem of sexual violence is not sufficient,” (id. at 22). This Court

disagrees. Plaintiffs have not alleged that Baylor had knowledge of

accusations against their specific assailants prior to their initial assaults, but

what they have alleged—a widespread pattern of discriminatory

responses to female students' reports of sexual assault—is arguably

more egregious. Indeed, even those Supreme Court justices who

expressed skepticism regarding holding institutions liable for sexual

assaults on individual students under Title IX have suggested that “a clear

pattern of discriminatory enforcement of school rules could raise an

115 240 F.Supp.3d 646, 657-658 (W.D. Tex. 2017) (hereinafter Baylor).

116 Id. at 652.

117 Id. at 653.

52482

Page 27 of 30

inference that the school itself is discriminating.” Davis v. Monroe Cty. Bd.

Educ., 526 U.S. 629, 683, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999)

(Kennedy, J., dissenting). In particular they noted that a “school's failure to

enforce its rules when the boys target the girls on a widespread level, day

after day, may support an inference that the school's decision not to respond

is itself based on gender” and thereby be actionable under Title IX. Id.118

Summarizing the plaintiffs’ claims, the court stated:

Taken together, Plaintiffs allege, these facts demonstrate Baylor created a

condition that substantially increased Plaintiffs' chances of being sexually

assaulted, (id. at 1); chilled student reporting of sexual harassment, (id. ¶

41); led to a sexually hostile environment at the university, (id. ¶ 43); caused

Plaintiffs psychological damage and distress, (id. ¶ 48); and deprived

Plaintiffs of a normal college education, (id. ¶ 50).119

Applying relevant jurisprudence, the Baylor court noted that the deliberate

indifference and actual notice elements of Davis do not apply to this type of claim.120

Rather, the court found, in evaluating a heightened risk claim, it must consider whether

the alleged custom or policy inflicted the injury of which plaintiffs complain.121 In support

of their heightened risk claim, the plaintiffs alleged that “Baylor's handling of reports of

sexual assaults created a heightened risk of sexual assault throughout the university's

student body.”122 Specifically, the plaintiffs alleged that Baylor

knew of and permitted a “campus condition rife with sexual assault,” (Third

Am. Compl., Dkt. 56, ¶ 29); that sexual assault was “rampant” on Baylor's

campus, (id. ¶ 27); that Baylor mishandled and discouraged reports of

sexual assault, (id. at 1, ¶ 36); and that Baylor's response to these

circumstances “substantially increased” the risk that Plaintiffs and others

would be sexually assaulted, (id. at 1).123

Evaluating this claim, the court noted and held as follows:

118 Id. (emphasis added).

119 Id.

120 Id. at 661.

121 Id.

122 Id.

123 Id.

52482

Page 28 of 30

The Supreme Court has repeatedly explained that where the Title IX

violation in question is caused by an institution's discriminatory policy or

custom, courts need not apply the actual notice and deliberate indifference

framework typically used in cases involving institutional liability for sexual

harassment or assault. See Gebser, 524 U.S. at 290, 118 S.Ct. 1989

(stating that the actual notice and deliberate indifference requirements are

restricted to those cases “that do not involve [an] official policy of the

[funding recipient]”); Davis, 526 U.S. at 642, 119 S.Ct. 1661 (acknowledging

that an institution cannot be liable unless it has notice that its conduct could

subject it to a damages claim but providing that “this limitation ... is not a bar

to liability where a funding recipient intentionally violates the statute”).

Plaintiff's heightened-risk claims fit squarely within the official-policy rubric

previously identified by the Court, and the Court is satisfied that Plaintiffs

have met their burden under Rule 12(b)(6).124

The Baylor court found that the plaintiffs sufficiently alleged that Baylor repeatedly

misinformed them of their rights under Title IX, failed to investigate sexual assaults,

discouraged them from naming assailants or coming forward, and failed to report any on-

campus assaults to the Department of Education.125 Thus, the court determined that

these facts, if proven, would allow a jury to infer that Baylor’s policy created the

heightened risk of sexual assault, thereby inflicting the plaintiffs’ injuries.126

Similarly, in the instant case, Plaintiffs allege that LSU’s purposeful disregard of

Greek male hazing complaints created a greater risk of danger for males in fraternities as

compared to females in sororities. While Baylor is not binding, the Court finds the Baylor

court’s reasoning and analysis particularly persuasive and applicable herein because,

substituting sexual assault/harassment allegations for “Greek male hazing,” the

allegations pled against the universities in both cases are extremely similar. Here,

Plaintiffs have clearly alleged that LSU misinformed potential male students about the risk

124 Id.

125 Id. at 662.

126 Id.

52482

Page 29 of 30

of hazing in fraternities, had actual notice of numerous hazing violations, and failed to

address or correct the hazing issue for Greek males while aggressively and appropriately

addressing and correcting hazing issues in sororities, thereby providing protection to

female Greek students that was not equally provided to Greek male students. Plaintiffs’

Complaint is replete with allegations that LSU had knowledge of the hazing problem within

Greek fraternities and was deliberately indifferent to the risk this posed to male Greek

students by a policy of general inaction to fraternity violations as opposed to strong

corrective action taken in response to sorority violations. The Court finds that, as in

Baylor, if these facts are proven, a jury may infer that LSU’s policy created the heightened

risk to Greek male students of serious injury or death by hazing, thereby inflicting the

injury alleged herein. Accordingly, LSU’s Motion to Dismiss shall be denied as to the Title

IX claims asserted.

IV. CONCLUSION

For the reasons set forth above, the Court finds that LSU’s Motion to Dismiss127 is

hereby GRANTED in part and DENIED in part. LSU’s Motion is GRANTED as to state

law claims asserted considering Plaintiffs’ concession that LSU is immune from suit in

federal court as to those claims. Plaintiffs’ state law claims are hereby DISMISSED

without prejudice. LSU’s Motion is DENIED as to Plaintiffs’ Title IX claims.

IT IS SO ORDERED.

Baton Rouge, Louisiana, this 1_9_t_h day of July, 2019.

S

CHIEF JUDGE SHELLY D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

127 Rec. Doc. No. 70.

52482

Page 30 of 30