Owens v. Louisiana State University

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ABBY OWENS, ET AL. CIVIL ACTION

VERSUS NO. 21-242-WBV-SDJ

LOUISIANA STATE UNIVERSITY, ET AL.

ORDER AND REASONS

Before the Court is a Motion to Dismiss Second Amended Complaint by the

Board of Supervisors of Louisiana State University and Agricultural and Mechanical

College.1 Plaintiffs oppose the Motion,2 and the Board of Supervisors has filed a

Reply.3 After careful consideration of the parties’ memoranda and the applicable law,

the Motion is GRANTED in part and DENIED in part.

I. FACTUAL and PROCEDURAL BACKGROUND4

This case involves allegations by ten former students of Louisiana State

University and Agricultural and Mechanical College (“LSU”) that LSU and its

Athletic Department funded and implemented a purposefully deficient sexual

misconduct and Title IX reporting scheme separate from LSU’s official Title IX office

to keep sexual assault claims within the Athletic Department.5 In their Second

Amended Complaint and Jury Demand (“Second Amended Complaint”), Abby Owens,

1 R. Doc. 201.

2 R. Doc. 209.

3 R. Doc. 231.

4 The factual background of this case was extensively detailed in the Court’s Order and Reasons

granting Jennie Stewart’s Motion to Dismiss (R. Doc. 317) and, for the sake of brevity, will not be

repeated here.

5 R. Doc. 1 at ¶ 10; R. Doc. 22 at ¶ 10; R. Doc. 182 at ¶ 25.

Samantha Brennan, Calise Richardson, Jade Lewis, Kennan Johnson, Elisabeth

Andries, Jane Doe, Ashlyn Robertson, Corinn Hovis, and Sarah Beth Kitch

(collectively, “Plaintiffs”), allege that while attending school at LSU’s Baton Rouge

campus between 2009 and 2021, the defendants, LSU’s Board of Supervisors, Jennie

Stewart, Verge Ausberry, Miriam Segar, and Johnathan Sanders (collectively,

“Defendants”) repeatedly engaged in discriminatory, retaliatory, and other unlawful

actions in their interactions with Plaintiffs and in response to Plaintiffs’ reports of

Title IX violations.6 Plaintiffs allege that LSU handled Title IX complaints made

against student-athletes differently than complaints made against non-athletes.7

Plaintiffs further allege that, “Title IX complaints against student-athletes are

purposefully buried or diverted so as to ensure that those complaints were never

properly investigated or addressed and the student-athletes are not negatively

impacted or prevented from concentrating on their athletics, all of which benefits

LSU financially and causes further harm to Plaintiffs.”8 Plaintiffs assert that

Defendants’ actions and inactions in response to their reports of Title IX violations

subjected them to additional harassment and created a sexually hostile environment

on campus.9

Plaintiffs allege that they were victims of sex-based discrimination, including

rape, sexual assault, sexual harassment, and/or stalking, that was perpetrated by

male LSU students and a male professor between 2009 and 2020, and that one

6 R. Doc. 182 at ¶ 36.

7 Id. at ¶ 43.

8 Id. at ¶ 44.

9 Id. at ¶ 45.

plaintiff was the victim of verbal and emotional abuse by an LSU tennis coach.10

Plaintiffs allege that they were unaware of LSU’s inadequate Title IX reporting

policies until the March 2021 publication of the Husch Blackwell report. According

to Plaintiffs, LSU retained the Husch Blackwell law firm in November 2020 to

investigate the school’s handling of several Title IX-related incidents, as well as

LSU’s Title IX policies and procedures.11 Plaintiffs allege that Husch Blackwell

publicly released its investigative report and findings on March 5, 2021, concluding

that various incidents of athletics-related misconduct had not been appropriately

reported to LSU’s Title IX Coordinator and voicing concern about a lack of reporting

prior to November 2016.12 Husch Blackwell also found that LSU’s Title IX Office had

never been appropriately staffed or provided with the independence and resources to

carry out Title IX’s mandates, noting that the Title IX Office “has at times not

handled those matters reported to it appropriately.”13 Husch Blackwell noted that

its concerns about reporting were not limited to athletics, and that it found

deficiencies in a variety of different matters.14

In the Second Amended Complaint, Plaintiffs allege that they could not have

known that LSU and its employees, including the individual defendants, had

concealed disclosures of sexual misconduct that should have been reported to LSU’s

Title IX Office, that LSU purposely handled complaints of sexual misconduct

10 See, Id. at ¶¶ 113-741.

11 Id. at ¶ 47.

12 Id. at ¶¶ 51-52.

13 Id. at ¶¶ 53-54.

14 Id. at ¶¶ 52 & 54.

perpetrated by student athletes or others affiliated with the LSU Athletics

Department in a different manner than complaints of sexual misconduct perpetrated

by other individuals, and that Defendants intentionally instituted a process of

responding to disclosures of Title IX violations in a manner designed to deter any

future disclosures.15 Pertinent to the instant Motion, Plaintiffs assert the following

four claims against the Board of Supervisors of LSU (the “Board”): (1) deliberate

indifference to sex discrimination in violation of Title IX of the Educational

Amendments of 1972, 20 U.S.C. §§ 1681, et seq. (hereafter, “Title IX”); (2) hostile

environment in violation of Title IX; (3) heightened risk in violation of Title IX; and

(4) retaliation by withholding protection otherwise conferred by Title IX in violation

of Title IX.16

In its Motion to Dismiss, the Board asserts that Plaintiffs’ Title IX claims are

all time-barred because they are based on events that allegedly occurred more than

one year before Plaintiffs filed this suit on April 26, 2021, and that equitable tolling

does not apply.17 While recognizing that one incident alleged by Hovis may have

occurred within the applicable time period, the Board contends that Hovis’ deliberate

indifference and hostile environment claims should be dismissed because her

allegations fail to show that the Board acted with deliberate indifference or that she

was deprived of educational opportunities.18 The Board also asserts that Hovis’

heightened risk claim should be dismissed because it “is unavailable” in this Circuit,

15 Id. at ¶ 83.

16 Id. at ¶¶ 754-1001.

17 R. Doc. 201 at ¶ 1; R. Doc. 201-1 at pp. 2-10.

18 R. Doc. 201 at ¶ 2; R. Doc. 201-1 at pp. 4-5 & 10-12.

and further asserts that Plaintiffs cannot recover punitive damages from the Board

under Title IX.19 Plaintiffs oppose the Motion, asserting that their claims were

timely-filed based on the publication of the Husch Blackwell report, and further

assert that they have alleged plausible claims under Title IX. 20 Plaintiffs

acknowledge that punitive damages are not available under Title IX, but assert that

they can seek punitive damages based upon other claims asserted in their Second

Amended Complaint.21 In response, the Board re-asserts the same arguments made

in its Motion, maintaining that Plaintiffs’ Title IX claims are time-barred, that Hovis’

Title IX claims for deliberate indifference, hostile environment, and heightened risk

fail as a matter of law, and that Plaintiffs are not entitled to punitive damages.22

II. LEGAL STANDARD

A. Fed. R. Civ. P. 12(b) Motion to Dismiss.

Under Federal Rule of Civil Procedure 12(b)(6), a defendant can seek dismissal

of a complaint, or any part of it, for failure to state a claim upon which relief may be

granted.23 To survive a Rule 12(b)(6) 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.’”24 “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

19 R. Doc. 201 at ¶¶ 2 & 3; R. Doc. 2-1 at p. 12.

20 R. Doc. 209.

21 Id. at p. 25.

22 R. Doc. 231.

23 Fed. R. Civ. P. 12(b)(6).

24 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 173 L.Ed.2d 868 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

liable for the misconduct alleged.”25 “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant

has acted unlawfully.”26

A court must accept all well-pleaded facts as true, viewing them in the light

most favorable to the plaintiff.27 The Court, however, is not bound to accept as true

conclusory allegations, unwarranted factual inferences, or legal conclusions. 28

“Dismissal is appropriate when the complaint on its face shows a bar to relief.”29 In

deciding a Rule 12(b)(6) motion to dismiss, a court is generally prohibited from

considering information outside the pleadings, but may consider documents outside

of the complaint when they are: (1) attached to the motion; (2) referenced in the

complaint; and (3) central to the plaintiff’s claims.30 The Court can also take judicial

notice of matters that are of public record, including pleadings that have been filed

in a federal or state court.31

B. Title IX.

“Congress enacted Title IX in 1972 with two principal objectives in mind: ‘[T]o

avoid the use of federal resources to support discriminatory practices’ and ‘to provide

25 Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Ashcroft, 556 U.S. at 678, 129 S.Ct. at

1949) (quotation marks omitted).

26 Iqbal, 556 U.S. at 679, 129 S.Ct. at 1949 (quotation omitted).

27 Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting In re Katrina Canal Breaches

Litig., 495 F.3d 191, 205 (5th Cir. 2007)).

28 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).

29 Cutrer v. McMillan, 308 Fed.Appx. 819, 820 (5th Cir. 2009) (quotation and internal quotation marks

omitted).

30 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir. 2011).

31 In re American Intern. Refinery, 402 B.R. 728, 749 (W.D. La. 2008) (citing Cisco Systems, Inc. v.

Alcatel USA, Inc., 301 F. Supp. 2d 599, 602 n.3 (E.D. Tex. 2004)).

individual citizens effective protection against those practices.’”32 In line with those

objectives, Title IX provides that, “No person in the United States shall, on the basis

of sex, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial

assistance.”33 Title IX is enforceable by private right of action for damages.34

Through this private right of action, school districts may be liable for, among other

things, student-on-student sexual harassment if: (1) the district had actual

knowledge of the harassment; (2) the harasser was under the district’s control; (3) the

harassment was based on the victim’s sex; (4) the harassment was “so severe,

pervasive, and objectively offensive that it effectively bar[red] the victim’s access to

an educational opportunity or benefit;” and (5) the district was deliberately

indifferent to the harassment.35

III. ANALYSIS

A. Prescription/Tolling of Plaintiffs’ Title IX Claims.

In its Motion to Dismiss, the Board asserts that all of Plaintiffs’ Title IX claims,

except for Hovis’ Title IX claims based upon one allegation, must be dismissed

because they are time-barred by Louisiana’s one-year prescriptive period set forth in

La. Civ. Code art. 3492.36 “A statute of limitations may support dismissal under Rule

32 Roe v. Cypress-Fairbanks Ind. Sch. Dist., 53 F.4th 334, 340-341 (5th Cir. 2022) (quoting Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (alteration in

original)).

33 Roe, 53 F.4th at 341 (quoting 20 U.S.C. § 1681(a)) (internal quotation marks omitted).

34 Franklin v. Gwinnett County Public Schs., 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992)).

35 Roe, 53 F.4th at 341 (quoting Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156,

165 (5th Cir. 2011) (alteration in original)) (internal quotation marks omitted).

36 R. Doc. 201-1 at pp. 2-6.

12(b)(6) where it is evident from the plaintiff’s pleadings that the action is barred and

the pleadings fail to raise some basis for tolling or the like.”37 The Fifth Circuit has

held that, “Title IX should be treated like [42 U.S.C.] § 1983 for limitations

purposes.”38 There is no federal statute of limitations for actions brought under 42

U.S.C. § 1983.39 When that is the case, “the settled practice is to borrow an

‘appropriate’ statute of limitations from state law.”40 In Wilson v. Garcia, the

Supreme Court held that a § 1983 claim is best characterized as a personal injury

action and, as such, is governed by the forum state’s statute of limitations for personal

injury actions.41 In Owens v. Okure, the Supreme Court clarified that when a state

has multiple statutes of limitations for personal injury actions, a § 1983 claim should

be governed by the general or residual statute for personal injury actions. 42

Accordingly, this Court will apply Louisiana’s one-year prescriptive period for

personal injury actions43 to Plaintiffs’ Title IX claims, rather than the three-year

period applicable to sexual assaults.44

37 King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015) (citing Jones v. Alcoa, Inc.,

339 F.3d 359, 366 (5th Cir. 2003)).

38 King-White, 803 F.3d at 759 (citing authority from other Circuits).

39 See, King-White, 803 F.3d at 758.

40 Id. (citations omitted). The Fifth Circuit noted, however, that, “Of course, this rule only applies to

statutes enacted prior to passage of 28 U.S.C. § 1658, which now governs in such circumstances. See

28 U.S.C. § 1658(a); Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371, 124 S.Ct. 1836, 158 L.Ed.2d

645 (2004)).” See, Redburn v. City of Victoria, 898 F.3d 486, 496 (5th Cir. 2018) (“Courts considering

claims brought under § 1983 must borrow the relevant state’s statute of limitations for personal injury

actions.”) (citing authority).

41 Wilson v. Garcia, 471 U.S. 261, 276-80, 105 S.Ct. 1938, 1947-49, 85 L.Ed.2d 254 (1985), superseded

by statute as stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d

645 (2004).

42 488 U.S. 235, 249-50, 109 S.Ct. 573, 581-82, 102 L.Ed.2d 594 (1989).

43 La. Civ. Code art. 3492.

44 La. Civ. Code art. 3496.2.

The Fifth Circuit has held that, “Absent tolling, the limitations period runs

from the moment a plaintiff’s claim ‘accrues,’ and while we borrow the limitations

period from state law, ‘the particular accrual date of a federal cause of action is a

matter of federal law.’”45 Thus, federal law governs when a Title IX claim accrues.46

A claim “accrues” under federal law when the plaintiff becomes aware that he has

suffered an injury or has sufficient information to know that he has been injured.47

According to the Fifth Circuit, a plaintiff’s knowledge encompasses two elements: (1)

the existence of the injury; and (2) causation, that is, the connection between the

injury and the defendant’s actions.48 “However, the plaintiff need not know that a

legal cause of action exists; she need only know facts that would support a claim.”49

Further, for accrual purposes, “awareness” does not require actual knowledge;

“rather, all that must be shown is the existence of ‘circumstances [that] would lead a

reasonable person to investigate further.’”50

Since the Louisiana statute of limitations applies to Plaintiffs’ Title IX claims,

Louisiana equitable tolling principles apply. 51 Louisiana law allows for the

suspension of prescription under the doctrine of contra non valentem.52 The

45 King-White, 803 F.3d at 762 (quoting Frame v. City of Arlington, 657 F.3d 215, 238 (5th Cir. 2011)).

46 King-White, 803 F.3d at 762 (citing Frame v. City of Arlington, 657 F.3d 215, 238 (5th Cir. 2011)).

47 King-White, 803 F.3d at 762 (quoting Spotts v. United States, 613 F.3d 559, 574 (5th Cir. 2010))

(internal quotation marks omitted).

48 King-White, 803 F.3d at 762 (quoting Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.

2001)) (internal quotation marks omitted).

49 King-White, 803 F.3d at 762 (quoting Piotrowski, 237 F.3d at 576) (internal quotation marks

omitted).

50 King-White, 803 F.3d at 762 (quoting Piotrowski, 237 F.3d at 576) (internal quotation marks

omitted).

51 Green v. Doe, 260 Fed.Appx. 717, 720 (5th Cir. 2007) (citing Rotella v. Pederson, 144 F.3d 892, 897

(5th Cir. 1998)).

52 Broussard v. Brown, 599 Fed.Appx. 188 (5th Cir. 2015) (citing Corsey v. Louisiana, 375 So.2d 1319,

1321-22 (La. 1979)).

Louisiana Supreme Court has recognized four factual situations in which the doctrine

of contra non valentem applies to suspend the prescriptive period, the most pertinent

to this case being when “the cause of action is neither known nor reasonably knowable

by the plaintiff even though plaintiff’s ignorance is not induced by the defendant.”53

“However, the doctrine of contra non valentem only applies in ‘exceptional

circumstances.’”54 Sometimes referred to as the “discovery rule,”55 the Louisiana

Supreme Court has further clarified that, “[t]his principle will not exempt the

plaintiff’s claim from the running of prescription if his ignorance is attributable to his

own willfulness or neglect; that is, a plaintiff will be deemed to know what he could

by reasonable diligence have learned.”56 An action can also be equitably tolled under

the fraudulent concealment doctrine by proving two elements: (1) that the defendants

concealed the conduct complained of; and (2) the plaintiff failed, despite the exercise

of due diligence on her part, to discover the facts that form the basis of her claim.57

To satisfy the first element, the defendant must have engaged in affirmative acts of

concealment.58 The Fifth Circuit has held that silence is not enough, and that the

53 Renfroe v. State ex rel. Dept. of Transp. and Development, 2001-1646 (La. 2/26/02), 809 So.2d 947,

953 (citing Plaquemines Parish Comm. Council v. Delta Dev. Co., 502 So.2d 1034 (La. 1987)).

54 Renfroe, 809 So.2d at 953 (quoting La. Civ. Code art. 3467, Official Revision Comment (d); State ex

rel. Div. of Admin. v. McInnis Brothers Construction, Inc., 97-0742 (La. 10/21/97), 701 So.2d 937, 940).

See, Ellis v. Evonik Corp., Civ. A. No. 21-1089, 2022 WL 1719196, at *3 (E.D. La. May 27, 2022) (Vance,

J.) (same).

55 Ellis, Civ. A. No. 21-1089, 2022 WL 1719196, at *3.

56 Renfroe, 809 So.2d at 953-54 (quoting Corsey v. State of Louisiana, Through the Department of

Corrections, 375 So.2d 1319, 1322 (La. 1979)).

57 State of Tex. v. Allan Const. Co., Inc., 851 F.2d 1526, 1528 (5th Cir. 1988) (citation omitted).

58 Allan, 851 F.2d at 1528-29 (citing authority). See, Rx.com v. Medco Health Solutions, Inc., 322

Fed.Appx. 394, 397 (5th Cir. 2009) (citing Allan, 851 F.2d at 1531)).

defendant “must be guilty of some trick or contrivance tending to exclude suspicion

and prevent inquiry.”59

1. Plaintiffs’ Title IX Deliberate Indifference and Hostile

Environment Claims

The Board argues that, with the exception of Hovis, Plaintiffs’ Title IX

deliberate indifference and hostile environment claims must be dismissed as

untimely because Plaintiffs allege that they had knowledge of their injuries, the

conduct that allegedly caused those injuries, and the identity of some or all of the

persons who engaged in the alleged conduct more than one year before Plaintiffs filed

this suit on April 26, 2021.60 The Board further argues that Plaintiffs cannot invoke

equitable tolling or the doctrine of contra non valentem based upon the publication of

the Husch Blackwell report in March 2021 because the information contained in the

report does not relate to Plaintiffs’ clams or injuries.61 To the extent Plaintiffs seem

to invoke the fraudulent concealment doctrine, the Board argues that Plaintiffs have

failed to allege acts of intentional concealment by the Board, since Plaintiffs allege

only that the Board failed to disclose certain facts to them and do not allege that the

Board had a duty to disclose any particular information or that the Board prevented

Plaintiffs from investigating their claims and filing a lawsuit.62

Plaintiffs assert that their claims were timely-filed, relying upon the same

arguments made in the opposition briefs they filed in response to the motions to

59 Allan, 851 F.2d at 1529 (quoting Crummer Co. v. Du Pont, 255 F.2d 425, 432 (5th Cir.1958)) (internal

quotation marks omitted).

60 R. Doc. 201-1 at pp. 2-4.

61 Id. at pp. 7-8.

62 Id. at pp. 8-9 (citing authority).

dismiss filed by Jennie Stewart, Verge Ausberry, Miriam Segar, and Jonathan

Sanders.63 Relying upon a 2017 case from the Western District of Texas, Doe I v.

Baylor University, Plaintiffs assert that their Title IX claims were timely-filed

because Plaintiffs were unaware that their injuries were causally connected to

“actions and inactions by LSU,” including the connection between their injuries and

LSU’s flawed Title IX program, until the release of the Husch Blackwell report in

March 2021.64 Plaintiffs invoke the doctrines of contra non valentem and fraudulent

concealment in their Opposition brief by asserting that they were unaware of the

causal connection between their injuries and the Board’s actions “because those

actions and inactions were actively concealed by the Defendant from Plaintiffs.”65

Plaintiffs list all of the allegations in their Second Amended Complaint that support

their position, including that, “LSU actively concealed their complaints,”66 that “LSU,

including specifically Defendant Stewart, concealed the name of Robertson’s

assailant from Title IX records,” 67 that “LSU, specifically Defendant Sanders,

concealed information regarding John Roe’s other victims,”68 that “LSU concealed

information regarding subsequent reports related to Andries and John Roe,”69 and

that “LSU and its employees, specifically Defendant Stewart, had concealed all notes

63 See, R. Docs. 210, 211, 212, & 213.

64 R. Doc. 209 at pp. 8-9 (citing Doe 1, 240 F. Supp. 3d 646, 662-63 (W.D. Tex. 2017)).

65 R. Doc. 209 at P. 16. See, Id. at pp. 8-16 & 16-18.

66 Id. at p. 10.

67 Id. at p. 11 (citing R. Doc. 182 at ¶ 287).

68 R. Doc. 209 at p. 12 (citing R. Doc. 182 at ¶ 450).

69 R. Doc. 209 at p. 12 (citing R. Doc. 182 at ¶ 450).

from Plaintiff Doe’s multiple interviews and had misrepresented the facts of her

report.”70 Plaintiffs also point to their allegation that:

Until the release of the Report in March 2021 and the Louisiana Senate

Committee Hearings, Plaintiffs were unable to know, in fact the Board

of Supervisors concealed from Plaintiffs, that the Board of Supervisors

had specific knowledge of the pervasive harassment and heightened risk

of sexual assault by certain assailants suffered by Plaintiffs and

interfering with Plaintiffs’ access to educational opportunities and

benefits.71

As such, Plaintiffs argue that they were not aware and had no reason to further

investigate whether the Board was culpable for the harms they had suffered due to

the sexual misconduct they experienced and the lack of appropriate response from

the responsible LSU employees until the publication of the Husch Blackwell report

in March 2021.72

In response, the Board argues that the Baylor case is not controlling but that,

even if it was, it supports the Board’s position regarding the untimeliness of Plaintiffs’

claims.73 For the same reasons asserted in its Motion, the Board maintains that the

doctrine of contra non valentem, including the category of intentional concealment,

does not apply to Plaintiffs’ Title IX claims.74

For the same reasons set forth in the Court’s February 17, 2023 Order and

Reasons granting the motion to dismiss filed by Jennie Stewart, the Court finds that,

on their face, Plaintiffs’ Title IX deliberate indifference and hostile environment

70 R. Doc. 209 at p. 14 (citing R. Doc. 182 at ¶ 649).

71 R. Doc. 209 at p. 15 (citing R. Doc. 182 at ¶ 937).

72 R. Doc. 209 at p. 16.

73 R. Doc. 231 at pp. 2-4.

74 Id. at pp. 4-6.

claims, except for Hovis’ claims based upon John Loe’s alleged violation of a no-

contact directive, accrued outside the applicable one-year statute of limitations.75 As

the Board correctly points out,76 the Second Amended Complaint alleges that

Richardson was raped by an LSU football player during her freshman year at LSU,

which began in the fall of 2014, that she was raped by a football recruit in the fall of

2015, that she was verbally and physically abused by LSU football player John Coe

between the summer of 2016 and 2017 and had reported the abuse by October 2016,

and that LSU football player John Doe attempted to rape her in the fall of 2016 and

she reported it to her direct supervisor the following day.77 The Second Amended

Complaint alleges that Robertson was raped by John Doe on January 22, 2016, that

it was reported to LSU a few days later, that John Doe continued to verbally harass

Robertson in late spring/early summer of 2016, and that he threw a shake on her car

during finals week in May 2016.78 The Second Amended Complaint alleges that John

Doe took a nude photograph of Brennan without her consent on July 9, 2016, and

that Brennan met with LSU officials about it on July 22, 2016.79 Plaintiffs allege that

John Doe also raped Owens on June 28, 2016, that she first disclosed the rape after

checking into a nearby rehabilitation facility on or about April 4, 2017, and that the

75 R. Doc. 317 at pp. 13-15. While the prior order concerned Plaintiffs’ claims against Jennie Stewart

brought pursuant to 42 U.S.C. § 1983, the same one-year prescriptive period applicable to Plaintiffs’ §

1983 claims applies to their Title IX claims against the Board.

76 R. Docs. 201-1 pp. 3-4.

77 R. Doc. 182 at ¶¶ 121-122, 124-130, 147-162, 182-191.

78 Id. at ¶¶ 243-248 & 253-255, & 262-268.

79 Id. at ¶¶ 290-306.

facility reported the sexual assault to LSU’s Athletic Department approximately a

week after the initial disclosure and informed Owens and her parents of the report.80

The Second Amended Complaint alleges that Andries was sexually assaulted

by John Roe on a fraternity bus trip in October 2016, that John Roe attempted to

sexually assault her again in July 2017, and that she reported the first assault to her

LSU therapist in the fall of 2017.81 Plaintiffs allege that Lewis was physically

assaulted by John Coe at least six times between January 2017 and May 2018, and

that she first disclosed the abuse to the tennis team athletic trainer in May 2017.82

Plaintiffs allege that Johnson was verbally and emotionally abused and harassed by

the LSU tennis coach, Julia Sell, between the fall of 2017 and her graduation in the

spring of 2019, and that Johnson was afraid that she would lose her scholarship if

she reported Sell to her psychologist.83 Plaintiffs allege that Jane Doe was physically

and verbally abused by John Poe between the fall of 2018 and March 2019 and that

she reported the abuse in March 2019.84 Plaintiffs allege that Hovis was raped by

LSU football player John Loe on January 24, 2020, that she immediately reported it

to her Resident Assistant, that she reported that she believed she had been drugged,

that she filed a report with the LSU Police Department (“LSUPD”), and that Baton

Rouge Police Department officers were called but refused to take a statement from

Hovis.85 Plaintiffs also allege that in June 2020, LSU disciplined Loe for violating

80 Id. at ¶¶ 328-338.

81 Id. at ¶¶ 364-373, 376-377, 381.

82 Id. at ¶¶ 456-459, 462-467, & 477-479.

83 Id. at ¶¶ 562, 564-579, 584-589, 592, & 594.

84 Id. at ¶¶ 598-626.

85 Id. at ¶¶ 652-671.

LSU’s Title IX policy by suspending him from May 10, 2020 to May 31, 2021, and by

issuing a no-contact directive ordering him to have no contact with Hovis.86 Plaintiffs

allege that Loe violated the no-contact directive twice by having his girlfriend contact

Hovis on two occasions in May 2020, that Hovis reported the contact to defendants

Stewart and Sanders, but that LSU did not take any disciplinary action against Loe

for violating the no-contact directive.87 Finally, Plaintiffs allege that Kitch was

verbally abused and sexually harassed by her Ph.D. professor and advisor, John Moe,

between the fall of 2009 and 2014, but that Kitch was terrified to disclose his

pervasive harassment because no one at LSU seemed to experience repercussions for

sexual assault and she was afraid that she would never graduate if she did not

maintain a good working relationship with Moe.88 Plaintiffs also seem to allege that

Kitch reported the harassment in August 2019.89

Plaintiffs’ allegations are deeply disturbing. Nonetheless, accepting Plaintiffs’

allegations set forth in the Second Amended Complaint as true, all of the alleged

harassment and abuse, with the exception of John Loe violating the no-contact

directive as to Hovis in May 2020, occurred between 2009 and February 2020,90 which

is more than a year before Plaintiffs filed this suit on April 26, 2021.91 Additionally,

again with the exception of Hovis, Plaintiffs’ allegations regarding their hostile

environment claim fail to show that Plaintiffs experienced a hostile environment at

86 Id. at ¶ 679.

87 Id. at ¶¶ 680-681.

88 Id. at ¶¶ 699-724.

89 Id. at ¶¶ 733-736.

90 Id. at ¶¶ 121-122, 124-130, 147-162, 182-191, 290-306, 328-338, 364-373, 376-377, 381, 456-459, 462-

467, 477-479, 562, 564-579, 584-589, 592, 594, 598-626, 652-671, & 699-724.

91 R. Doc. 1.

LSU within one year before filing suit. Plaintiffs’ allegations in Count II are

conclusory and fail to provide a timeframe for when Plaintiffs allegedly experienced

a hostile environment at LSU.92 Plaintiffs’ allegations elsewhere in the Second

Amended Complaint indicate that many of the plaintiffs left LSU more than a year

before filing suit,93 while others experienced a hostile environment on campus in 2019

or earlier.94

Further, and importantly, Plaintiffs’ hostile environment claim is duplicative

of their deliberate indifference claim. In Count I of the Second Amended Complaint,

Plaintiffs repeatedly allege that the Board violated Title IX based upon its deliberate

indifference to sex-based discrimination and that the Board “created and/or subjected

Plaintiffs to a hostile educational environment in violation of Title IX . . . .”95 In Count

II, Plaintiffs similarly allege that, “Plaintiffs allege violations of Title IX against

Defendant LSU Board of Supervisors due to the Board of Supervisors’ cultivation and

perpetuation of a sexually hostile environment against them.”96 For all of these

reasons, the Court finds that Plaintiffs’ Title IX deliberate indifference and hostile

environment claims are time-barred on their face.

The Court further finds, for many of the same reasons set forth in its February

17, 2023 Order and Reasons granting Jennie Stewart’s motion to dismiss, that the

publication of the Husch Blackwell report does not support the application of contra

92 R. Doc. 182 at ¶¶ 857-913.

93 Id. at ¶¶ 284, 316-317, 345, 594, 648, & 724.

94 Id. at ¶¶ 130-239, 451, & 456-552.

95 Id. at ¶¶ 755, 757, 760, 778, 788, 815(j), & 847.

96 Id. at ¶¶ 850, 853, 855, & 856.

non valentem to the facts set forth in this case.97 Specifically, the Court again finds

that, within some reasonable amount of time after initially reporting the Title IX

violations, Plaintiffs would have understood that the Board’s deliberate indifference

to their reports was the cause of their post-reporting injuries, including an allegedly

hostile environment, or Plaintiffs could reasonably have been expected to inquire

further.98

The Court reaches the same conclusion with respect to Plaintiffs’ allegations

of fraudulent concealment. While Plaintiffs allege in the Second Amended Complaint

that, “LSU and its employees, including Defendants Ausberry and Segar, had

concealed disclosures of sexual misconduct that should have been reported to LSU’s

Title IX Office,”99 the only allegations that can potentially be construed as acts of

concealment by the Board, include the following:100 (1) LSU, including defendant

Stewart, concealed the name of Robertson’s assailant from Title IX records;101 (2)

LSU, specifically defendant Sanders, concealed information regarding John Roe’s

other victims and concealed information regarding subsequent reports related to

Andries and John Roe;102 and (3) LSU and its employees, specifically Stewart, had

concealed all notes from Jane Doe’s multiple interviews and had misrepresented the

97 R. Doc. 317 at pp. 15-18.

98 See, R. Doc. 317 at p. 17 (quoting Doe 1 v. Baylor University, 240 F. Supp. 3d 646, 663-64 (W.D. Tex.

2017) (citing King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 761-63 (5th Cir. 2015))).

99 R. Doc. 182 at ¶ 83(f).

100 The Court notes that Plaintiffs’ allegations refer to “LSU” and, according to the Second Amended

Complaint, the Board is referenced in the Second Amended Complaint as “Board of Supervisors.” R.

Doc. 182 at ¶ 182.

101 R. Doc. 182 at ¶ 287(c).

102 Id. at ¶ 450(a) & (b).

facts of her report.103 Even accepting these allegations as affirmative acts of

concealment by the Board, there are no allegations in the Second Amended Complaint

that any of these acts prevented Plaintiffs from discovering the facts that form the

basis of their deliberate indifference and hostile environment claims against the

Board before the publication of the Husch Blackwell report in March 2021. Stated

another way, “Plaintiffs have not alleged any facts from which the court can

reasonably infer that they could not have ‘discovered’ their post-reporting causes of

action in the exercise of due diligence.”104

As the Board points out,105 Plaintiffs’ allegations make clear that they were

aware of their alleged injuries and the specific defendants allegedly responsible for

those injuries more than a year before this lawsuit was filed. As such, “Within some

reasonable amount of time after their initial reports, Plaintiffs would have

understood that [the Board’s] deliberate indifference to their reports was the cause of

those post-reporting injuries or could reasonably have been expected to ‘inquire

further.’” 106 Accordingly, the Court finds that Plaintiffs’ Title IX deliberate

indifference and hostile environment claims, asserted in Counts I and II of the Second

103 Id. at ¶ 649(c).

104 Doe 1 v. Baylor University, 240 F. Supp. 3d 646, 665 (W.D. Tex. 2017) (citation omitted). See also,

Doe #1 v. Bd. of Supervisors of Louisiana State University and Agricultural and Mechan. College, Civ.

A. No. 21-564, 2022 WL 16701930, at *15 (M.D. La. Nov. 3, 2022) (Dick, C.J.) (“Plaintiffs’ allegations

do not plausibly allege that LSU engaged in ‘affirmative acts of concealment,’ or that LSU affirmatively

lulled Plaintiffs into inaction or perpetrated ‘some trick or contrivance tending to exclude suspicion

and prevent inquiry’ such to excuse late filing.”).

105 R. Doc. 201-1 at p. 8.

106 Doe 1, 240 F. Supp. 3d at 663-664 (citing King-White v. Humble Indep. School Dist., 803 F.3d 754,

761-763 (5th Cir. 2015)).

Amended Complaint, except for Hovis’ claims based upon John Loe’s alleged violation

of a no-contact directive, are time-barred.

2. Plaintiffs’ Title IX Heightened Risk Claims

The Court reaches the opposite conclusion with respect to Plaintiffs’

heightened-risk claims asserted in Count III of the Second Amended Complaint.

Plaintiffs allege in the Second Amended Complaint that until the release of the Husch

Blackwell report in March 2021, they had no reason to know, and the Board concealed

from them, that the Board had specific knowledge of the pervasive harassment and

heightened risk of sexual assault by certain assailants suffered by Plaintiffs that

interfered with Plaintiffs’ access to educational opportunities and benefits.107 The

Court finds it plausible that Plaintiffs did not have reason to further investigate their

heightened risk claims until the publication of the Husch Blackwell report in March

2021. Accepting Plaintiffs’ well-pleaded facts as true and viewing them in the light

most favorable to Plaintiffs, as this Court is bound to do,108 the Court finds that

Plaintiffs’ Title IX claims for heightened-risk liability did not accrue until March 2021

and, as such, are timely.109

3. Plaintiffs’ Title IX Retaliation Claims

Turning next to Plaintiffs’ Title IX retaliation claims, asserted in Count IV of

the Second Amended Complaint, the Board points out that only six plaintiffs –

107 R. Doc. 182 at ¶ 937. See, Id. at ¶¶ 80, 81, 83, 96, 97, 240, 287, 325, 360, 450, 554, 595, 649, 697,

740, 848, 915, 937.

108 Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting In re Katrina Canal Breaches

Litig., 495 F.3d 191, 205 (5th Cir. 2007)).

109 See, Doe 1 v. Baylor University, 240 F. Supp. 3d 646, 663 (W.D. Tex. 2017).

Owens, Richardson, Andries, Lewis, Johnson, and Doe – actually allege retaliatory

conduct and, further, that all of the alleged retaliatory conduct occurred more than a

year before Plaintiffs filed this suit on April 26, 2021 and thus are time-barred.110

Plaintiffs argue that they “make clear in the Second Amended Complaint that they

did not become aware of some of the retaliation nor LSU’s role in covering up and

perpetuating the retaliation until the Husch Blackwell report was released in March

2021, which led them to make the causal connection between the retaliation they had

experienced and LSU’s culpability.”111 Plaintiffs, however, do not reference any

allegations in the Second Amended Complaint to support this position. Elsewhere in

their Opposition brief, however, Plaintiffs point out that they have alleged that it was

not until the release of the Husch Blackwell report that Owens, Richardson, Lewis,

Johnson, Andries, and Doe became aware of “the retaliation they suffered from LSU

Responsible Employees following good-faith Title IX violation disclosures.”112 In

response, the Board maintains that Plaintiffs’ retaliation claims accrued more than

a year before Plaintiffs filed this suit and that equitable tolling does not apply to their

claims.113 The Board further asserts that none of the “additional information”

contained in the Husch Blackwell report, as outlined in Plaintiffs’ Opposition brief,

relates to Plaintiffs’ individual claims or injuries, nor does the information “erase

Plaintiffs’ earlier knowledge of the Board’s response to their reports.”114

110 R. Doc. 201-1 at pp. 5-6.

111 R. Doc. 209 at pp. 22-23.

112 Id. at p. 15 (citing R. Doc. 182 at ¶ 1001).

113 R. Doc. 231 at p. 4 (citing R. Doc. 182 at ¶¶ 175-176, 203, 205-206, 209, 336, 422-423, 426-427, 515-

516, 529-530, 594, 629-633, 951, 957, 982, 988-990, & 995); R. Doc. 231 at pp. 5-6.

114 R. Doc. 231 at p. 5 (citing R. Doc. 209 at pp. 10-14).

The Court agrees with the Board that Plaintiffs’ retaliation claims are time-

barred. “To establish a prima facie case of retaliation, the plaintiff must show that:

(1) he engaged in a protected activity, (2) he suffered an adverse employment action,

and (3) a causal connection exists between the protected activity and the adverse

employment action.”115 According to the Fifth Circuit, “The language of the anti-

retaliation provision of Title IX and that of Title VII are similar and ‘should be

accorded a similar interpretation.’”116 The Fifth Circuit has also held that, in the

context of a Title VII retaliation claim, “retaliation is, by definition, a discrete act, not

a pattern of behavior.”117 At least one other court in this Circuit has interpreted this

authority to mean that retaliation in the Title IX context is a discrete act.118

While Plaintiffs allege, generally, that, “Defendants repeatedly engaged in

discriminatory, retaliatory, and other unlawful actions . . . in response to Plaintiffs’

reports of Title IX violations,”119 only six plaintiffs – Richardson, Owens, Andries,

Lewis, Johnson, and Doe – allege retaliatory conduct or adverse action by Defendants.

Plaintiffs allege that Richardson faced retaliation at work immediately after

reporting her physical abuse by John Coe, including termination from her job in the

115 Collins v. Jackson Pub. Sch. Dist., 609 Fed.Appx. 792, 795 (5th Cir. 2015) (citing Willis v. Cleco

Corp., 749 F.3d 314, 317 (5th Cir. 2014)). See also, Sanches v. Carrollton-Farmers Branch Indep. Sch.

Dist., 647 F.3d 156, 170 (5th Cir. 2011) (citing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174,

125 S.Ct. 1497, 161 L.Ed.2d 361 (2005)) (“To establish title IX retaliation, [plaintiff] must show that

the district or its representatives took an adverse action against her because she complained of

harassment.”).

116 Collins, 609 Fed.Appx. at 795 (quoting Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 252 n.18

(5th Cir. 1997) (citations omitted)).

117 Hamic v. Harris County W.C. & I.D. No. 36, 184 Fed.Appx. 442, 447 (5th Cir. 2006) (citation

omitted).

118 Doe #1 v. Bd. of Supervisors of Louisiana State Univ. and Agric. and Mechan. College, Civ. A. No.

21-564-SDD-SDJ, 2022 WL 16701930, at *18-19 (M.D. La. Nov. 3, 2022).

119 R. Doc. 182 at ¶ 36. See also, Id. at ¶ 83(e).

football recruiting office “in the spring of 2017.”120 Plaintiffs further allege that in

the fall of 2018, Richardson was denied an athlete tutor position and that, “another

two job opportunities with the football department vanished for Richardson without

any explanation.”121 Regarding Owens, Plaintiffs allege that on or about April 4,

2017, she checked into a rehabilitation facility and disclosed for the first time that

she had been raped by John Doe on or around June 28, 2016.122 Plaintiffs allege that

Owens’ counselor reported her rape to LSU and that, after this disclosure, Julia and

Mike Sell, who were “Responsible Employees” under LSU’s Title IX policy,123 engaged

in materially adverse actions against Owens by disallowing her to re-join the tennis

team following her rehabilitation.124

Plaintiffs further allege that Andries reported that she was sexually assaulted

by John Roe to her LSU therapist in the fall of 2017, and that the assault was

subsequently reported to LSU’s Lighthouse Program, to the LSU Disability Services

Office in February 2019, and to LSU’s Title IX Office in March 2019.125 Plaintiffs

allege that Andries suffered retaliation in response to reporting her abuse, which

included being told that she had no right to be kept up to date on the status of her

case, being harassed with inappropriate questions during an unnecessary interview

on or around August 22, 2019, being denied reasonable accommodations and interim

measures on or around August 29, 2019, and LSU issuing a mutual no-contact order

120 R. Doc. 182 at ¶¶ 175 & 203.

121 Id. at ¶¶ 206-209.

122 Id. at ¶¶ 328-337.

123 Id. at ¶ 33.

124 Id. at ¶¶ 950-951.

125 Id. at ¶ 364-397 & 985.

between Andries and John Roe on or around September 26, 2019.126 Plaintiffs allege

that after Lewis reported her abuse by John Coe to various LSU athletic department

staff between May 2017 and August 2018, Julia and Mike Sell retaliated against her

in the spring of 2019 “by telling Plaintiff Lewis’s teammates to isolate themselves

from Plaintiff Lewis and manipulating Plaintiff Lewis and Johnson into

arguments.”127 Plaintiffs also allege that after reporting John Coe’s abuse to LSUPD

on June 18, 2018, defendant Jonathan Sanders retaliated against Lewis by

“immediately charging” her with violating the residential life policy for having a

candle in her room and placing her on academic probation on or around June 22,

2018.128 Finally, Plaintiffs allege that when Coe was banned from the weight room

in the summer of 2018, football coaches made comments to Lewis indicating they

blamed her for Coe being banned from the weight room.129

Plaintiffs allege that when Johnson reported John Coe’s repeated abuse of

Lewis to Julia Sell, Sell retaliated against Johnson by telling her that she would be a

better tennis player if she stopped “worrying so much about other people.”130

Plaintiffs do not provide a timeline for this alleged retaliation, but allege that

Johnson graduated from LSU in the spring of 2019.131 Plaintiffs further allege that

when Doe reported John Poe’s stalking and harassment to LSU’s Title IX office in

March of 2019,132 she suffered retaliation in the form of being denied reasonable

126 Id. at ¶¶ 422-423, 426-428, 434-438, & 986- 990.

127 Id. at ¶¶ 962-963. See, Id. at ¶¶ 458-470, 474-476, 483-485, & 547-548.

128 Id. at ¶¶ 967-969. See, Id. at ¶¶ 505-516.

129 Id. at ¶¶ 527 & 530.

130 Id. at ¶¶ 580-581 & 981-982.

131 Id. at ¶ 594.

132 Id. at ¶¶ 598-620 & 994.

accommodations, being denied any information about her case under false pretenses,

and being told that her case did not fall under the scope of Title IX, all of which

occurred in 2019.133 Plaintiffs also allege that Doe was retaliated against when LSU

forced Doe to undergo “four traumatic interviews that caused severe emotional

distress,” all of which seemingly occurred in 2019.134

Even assuming, without deciding, that the acts alleged to have been taken by

LSU individuals constitute adverse actions for purposes of retaliation under Title

IX,135 and that the Board can be held liable for retaliatory acts committed by the

individual defendants and other LSU personnel, 136 all of the alleged acts of

retaliation, by Plaintiffs’ own accounts, occurred between 2017 and 2019, more than

a year before Plaintiffs filed this suit on April 26, 2021.

The Court further finds that, for the same reasons previously given, the

publication of the Husch Blackwell report in March 2021 does not support the

application of contra non valentem or fraudulent concealment to the retaliation claims

of Richardson, Owens, Andries, Lewis, Johnson or Doe. As set forth in the Second

Amended Complaint, and as with their Title IX deliberate indifference and hostile

environment claims, Plaintiffs were aware of the retaliatory actions and by whom

they were committed when they occurred or shortly thereafter. Thus, Plaintiffs were

133 Id. at ¶¶ 629-633, 995.

134 Id. at ¶¶ 624-630 & 996.

135 The Court notes that the Fifth Circuit has held that, in the context of a Title VII retaliation claim,

retaliation “requires an adverse employment action, which has been defined in this Circuit as an

ultimate employment decision, such as hiring, granting leave, discharging, promoting, and

compensating.” Hamic v. Harris County W.C. & I.D. No. 36, 184 Fed. Appx. 442, 447 (5th Cir. 2006)

(citation omitted).

136 Neither party addressed this issue in their briefing.

aware of the facts that form the basis of their retaliation claims more than a year

before they filed this lawsuit. As such, the Court rejects Plaintiffs’ contention that

they “make clear in the Second Amended Complaint that they did not become aware

of some of the retaliation nor LSU’s role in covering up and perpetuating the

retaliation until the Husch Blackwell report was released in March 2021 . . . .”137

Accordingly, the Title IX retaliation claims asserted by Richardson, Owens, Andries,

Lewis, Johnson, and Doe are time-barred and the Board’s Motion is granted to the

extent that the Board seeks dismissal of these claims.

As for the remaining plaintiffs, Robertson, Brennan, Hovis, and Kitch, the

Second Amended Complaint contains only a conclusory allegation that LSU “had

specific knowledge of the pervasive harassment and retaliation” that they each

suffered.138 Such conclusory allegations are insufficient to state a plausible Title IX

claim for retaliation against the Board. The Board’s Motion is therefore granted to

the extent that the Board seeks dismissal of their retaliation claims.

B. Hovis’ Title IX Deliberate Indifference and Hostile Environment

Claims.

Because the Court has determined that Hovis’ Title IX deliberate indifference

and hostile environment claims are not time-barred to the extent they are based upon

Hovis’ allegation that John Loe violated a no-contact directive in May 2020, the Court

addresses the Board’s assertion that these claims should be dismissed for failing to

state a plausible claim for relief.

137 R. Doc. 209 at pp. 22-23.

138 R. Doc. 182 at ¶¶ 287(a), 325(b), 697, & 740(a). See, Id. at ¶¶ 242-288, 289-326, 651-698, & 699-

741.

1. Hovis’ Title IX Deliberate Indifference Claim

The Board asserts that Hovis’ Title IX deliberate indifference claim fails

because Plaintiffs have failed to show that the Board was “deliberately indifferent to

the harassment.”139 The Board claims that deliberate indifference “is an extremely

high standard to meet,” and that a defendant is deliberately indifferent when its

response or lack of response was “clearly unreasonable in light of the known

circumstances.” 140 According to the Board, Hovis alleges that LSU failed to

appropriately respond to her complaint that Loe violated the no-contact order because

LSU did not take any disciplinary action against Loe. The Board argues that this

alleged action is not clearly unreasonable in light of the facts because Hovis admits

that Loe was suspended in May 2020, so LSU had already taken significant

disciplinary action by removing Loe from campus.141 The Board asserts that Hovis

does not allege that the Board had prior knowledge of harassment by Loe, against

Hovis or anyone else, nor does Hovis allege that the conduct recurred.142

Plaintiffs argue that, as alleged in the Second Amended Complaint, “the

suspension was only for a fleeting three weeks – hardly a ‘significant disciplinary

action.’”143 Plaintiffs assert that LSU did nothing to ensure that Hovis was protected

from further abuse by Loe. Although Hovis eventually obtained a no-contact directive

six months after reporting her assault, Plaintiffs claim that Hovis reported both

139 R. Doc. 201-1 at p. 10 (quoting I.L. v. Houston Indep. Sch. Dist., 776 Fed.Appx. 839 (5th Cir. 2019))

(internal quotation marks omitted).

140 R. Doc. 201-1 at p. 10 (quoting I.F. v. Lewisville Indep. Sch. Dist., 915 F.3d 360 (5th Cir. 2019) and

I.L., 776 Fed.Appx. at 842) (internal quotation marks omitted).

141 R. Doc. 201-1 at pp. 10-11.

142 Id. at p. 11 (citing I.L., 776 Fed.Appx. at 843).

143 R. Doc. 209 at p. 23 (citing R. Doc. 182 at ¶ 679.

incidents of Loe’s girlfriend violating that directive and that LSU took no action to

prevent or discipline Loe for these violations. Instead, Plaintiffs assert that LSU

eventually allowed Loe to transfer to another institution.144 Plaintiffs further assert

that over the next few months, Hovis’ grades and ability to participate in her

education began to suffer and she sought help from LSU, but that LSU refused to

provide her with any accommodations to remedy the hostile environment she

experienced.145 Relying upon the Fifth Circuit’s decision in M.D. by Stukenberg v.

Abbott, Plaintiffs assert that the Board acted with deliberate indifference because it

consciously disregarded a known and excessive risk to Hovis’ health and safety.146

The Fifth Circuit has made clear that deliberate indifference in the Title IX

context is a “high bar” and requires the defendant’s response to be “clearly

unreasonable in light of the known circumstances.”147 According to the Fifth Circuit,

“neither negligence nor mere unreasonableness is enough.”148 “Courts afford broad

deference to school officials and should not ‘second-guess[] the disciplinary decisions

made by school administrators.’”149 Further, “Schools need not ‘accede to a parent’s

remedial demands’ or actually succeed in remedying the harassment.”150 The Fifth

has further clarified, however, that, “when there is ‘an official decision by the [school

144 R. Doc. 209 at p. 23 (citing R. Doc. 182 at ¶¶ 679-682.

145 R. Doc. 209 at p. 23 (citing R. Doc. 182 at ¶¶ 687-693).

146 R. Doc. 209 at p. 24 (citing M.D. by Stukenberg, 907 F.3d 237, 252 (5th Cir. 2018)).

147 Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 341 (5th Cir. 2022) (quoting Sanches v.

Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 167 (5th Cir. 2011)) (internal quotation

marks omitted).

148 Sanches, 647 F.3d at 167 (citing Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ.,

625 U.S. 629, 642, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999)).

149 Roe, 53 F.4th at 341 (quoting Davis, 526 U.S. at 648, 119 S.Ct. 1661).

150 Roe, 53 F.4th at 341 (quoting Sanches, 647 F.3d at 167-168).

district] not to remedy the violation’ such that its deliberate indifference ‘caus[es] the

discrimination,’ a school commits a Title IX violation.”151

Accepting all well-pleaded facts as true and viewing them in the light most

favorable to Plaintiffs, as the Court is bound to do,152 the Court finds that Plaintiffs

allegations, while thin, are sufficient to show that the Board was deliberately

indifferent in its response, or lack thereof, to Hovis’ report that Loe twice violated the

no-contact directive issued by LSU. Although not addressed by either party, the

timeline set forth in the Second Amended Complaint regarding Loe’s violation of the

no-contact directive and his suspension from LSU is somewhat confusing. Plaintiffs

allege that on March 6, 2020, one of LSU’s Title IX investigators concluded that Loe

violated LSU’s Title IX policy by sexually assaulting Hovis on January 24, 2020 and

that defendant Miriam Segar was notified of that conclusion that same day.153

Plaintiffs then allege that in approximately June of 2020, LSU disciplined Loe for

violating the Title IX policy by suspending him from LSU from May 10, 2020 to May

31, 2021, and by issuing a no-contact directive ordering Loe to have no communication

or contact with Hovis.154 Further, in their Opposition brief, Plaintiffs state that the

suspension “was only for a fleeting three weeks.”155 Plaintiffs provide no additional

information in the Second Amended Complaint regarding Loe’s purported retroactive

suspension, nor do Plaintiffs allege whether the no-contact directive was likewise

151 Roe, 53 F.4th at 341 (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-291, 118

S.Ct. 1989, 141 L.Ed.2d 277 (1998); Davis, 526 U.S. at 642-643, 119 S.Ct. 1661).

152 Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting In re Katrina Canal Breaches

Litig., 495 F.3d 191, 205 (5th Cir. 2007)).

153 R. Doc. 182 at ¶¶ 677-678.

154 Id. at ¶ 679.

155 R. Doc. 209 at p. 23.

retroactive to a date in May 2020. Nonetheless, despite alleging that LSU did not

issue the no-contact directive until June 2020, Plaintiffs allege that Loe violated the

directive twice by having his girlfriend contact Hovis in May 2020.156 Believing this

to be a typographical error, the Court reviewed Plaintiffs’ prior amended complaint,

which contains the same allegations.157

It is unclear to the Court from the foregoing allegations whether Loe’s

suspension occurred before or after his alleged violation of LSU’s no-contact directive

and, thus, whether the suspension can be considered a response by LSU to Loe’s

violation of the no-contact directive. In Count II of the Second Amended Complaint,

however, Plaintiffs further allege that LSU was deliberately indifferent to the

harassment experienced by Hovis when, after reporting Loe’s two violations of the

no-contact directive, “LSU took no action to enforce the no-contact order.”158 Viewing

all well-pleaded facts in the light most favorable to Plaintiffs, the Court agrees with

Plaintiffs that the Board’s failure to respond to Loe’s violation of the no-contact

directive was clearly unreasonable in light of the known circumstances.159 According

to the Second Amended Complaint, those “known circumstances” include a prior

determination by an LSU Title IX investigator that Loe violated LSU’s Title IX policy

by sexually assaulting Hovis on January 24, 2020, which resulted in Loe’s subsequent

156 R. Doc. 182 at ¶ 680.

157 See, R. Doc. 22 at ¶¶ 330-332. The Court notes that the original Complaint filed on April 26, 2021

did not name Hovis as a plaintiff. See, R. Doc. 1.

158 R. Doc. 182 at ¶ 837.

159 Id. at ¶ 838. See, Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 341 (5th Cir. 2022)

(citing authority) (“However, when there is ‘an official decision by the [school district] not to remedy

the violation’ such that its deliberate indifference ‘caus[es] the discrimination,’ a school commits a Title

IX violation.”).

year-long suspension and the issuance of the no-contact directive at issue.160 The

Board does not contest or otherwise dispute these allegations in its briefing.161 As

such, the Court finds that Hovis has alleged a facially plausible Title IX deliberate

indifference claim against the Board based upon the Board’s failure to respond to

Loe’s alleged violation of the no-contact directive issued by LSU in June 2020.

2. Hovis’ Title IX Hostile Environment Claim

The Board next asserts that Hovis’ hostile environment claim must be

dismissed because Plaintiffs have failed to show that the alleged harassment was so

severe, pervasive, and objectively offensive that it deprived Hovis of access to the

educational opportunities provided by LSU and that the Board was deliberately

indifferent to the harassment.162 The Board relies upon its prior arguments

regarding Hovis’ failure to allege deliberate indifference, and further claims that

Hovis has not alleged a deprivation of educational opportunities.163 The Board

acknowledges that Plaintiffs have alleged that Hovis could not attend a class near

the football stadium out of fear of seeing Loe and that Hovis failed a class because

she did not attend a midterm due to stress. The Board, however, argues that these

allegations are insufficient under Fifth Circuit authority, which requires an

allegation that the harassment “undermines and detracts from the victims’

160 R. Doc. 182 at ¶¶ 677-679.

161 See, generally, R. Docs. 201-1 & 231.

162 R. Doc. 201-1 at p. 11 (citing Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ., 625

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

163 R. Doc. 201-1 at p. 11.

educational experience” and “effectively denied” the victim equal access to the

institution’s resources and opportunities.164

Plaintiffs assert that the Board appears to conflate the standard of proof

required for a hostile environment claim with the standard applicable to a deliberate

indifference claim, and argue that a hostile environment claim only requires proof

that the harassment was severe, pervasive, and objectively unreasonable. 165

Plaintiffs further assert that the Board “entirely misstates and minimizes the

educational harm suffered by Hovis.”166 Plaintiffs point out that they also alleged

that Hovis’ grades suffered significantly, she had difficulty making it to classes, she

ended up failing and having to pay to retake a class, her anxiety about seeing Loe

was so overwhelming that she found it nearly impossible to attend a class that took

place in a building near the football stadium, and that she had to start seeing a

psychiatrist to seek accommodations and medical intervention for her PTSD,

generalized anxiety disorder, depression, and panic disorder.167 As such, Plaintiffs

argue that Hovis has pled sufficient facts to prove that the harassment she

experienced was severe, pervasive, and objectively unreasonable. In response, the

Board maintains that Hovis’ allegations are insufficient to state a hostile

environment claim for the same reasons asserted in their Motion.168

164 R. Doc. 201-1 at pp. 11-12 (citing R. Doc. 182 at ¶ 905; Davis, 526 U.S. at 651, 119 S.Ct. 1661).

165 R. Doc. 209 at pp. 24-25 (citing Davis, 526 U.S. at 652, 119 S.Ct. 1661).

166 R. Doc. 209 at p. 25.

167 Id. (citing R. Doc. 182 at ¶¶ 683-698).

168 R. Doc. 231 at p. 7.

Both the Supreme Court and the Fifth Circuit have recognized that a Title IX

claim may be based on a hostile environment theory.169 As previously mentioned, to

establish a Title IX hostile environment claim, a plaintiff must show that: (1) the

defendant had actual knowledge of the harassment; (2) the harasser was under the

defendant’s control; (3) the harassment was based on the victim’s sex; (4) the

harassment was “so severe, pervasive, and objectively offensive that it effectively

bar[red] the victim’s access to an educational opportunity or benefit;” and (5) the

defendant was deliberately indifferent to the harassment.170 Here, the Board

challenges the fourth and fifth elements of Hovis’ hostile environment claim. The

Court has already determined that Plaintiffs have alleged sufficient facts to show

that the Board was deliberately indifferent to Loe’s violation of the no-contact

directive, thus addressing the fifth factor. The Court now finds that Plaintiffs have

failed to allege sufficient facts to show that Loe’s violation of the no-contact directive

was so severe, pervasive, and objectively offensive that it barred her access to

educational opportunities or benefits.

Although not mentioned by the parties, Plaintiffs allege in Count II of the

Second Amended Complaint that Hovis was subjected to “severe, pervasive, and

objectively offensive sexual harassment in the form of forcible rape in an environment

that lacked appropriate training and support services for survivors of sexual

169 Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ., 625 U.S. 629, 638-642, 119 S.Ct.

1661, 143 L.Ed.2d 839 (1999); Sewell v. Monroe City Sc. Bd., 975 F.3d 577, 583-584 (5th Cir. 2020).

170 Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 341 (5th Cir. 2022) (quoting Sanches v.

Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011) (alteration in original)

(quoting Davis, 526 U.S. at 650, 119 S.Ct. 1661)).

misconduct.”171 Plaintiffs further allege that Hovis’ harassment “was sufficiently

severe to create an objectively hostile environment” so as to alter the conditions of

her educational environment because Hovis could not attend classes near the football

stadium because of her fear and anxiety of seeing Loe and that Hovis failed one of her

classes because she could not get out of bed for her midterm due to the stress and

anxiety she experienced due to the rape.172 Count II contains no allegations

regarding the severity of the harassment experienced by Hovis as a result of Loe’s

violation of the no-contact directive.

Elsewhere in the Second Amended Complaint, Plaintiffs allege that Loe twice

violated the no-contact directive “by having his girlfriend contact Hovis on two

occasion in May 2020,” but Plaintiffs offer no other information regarding this

contact.173 Plaintiffs also allege that, “Hovis was deeply traumatized by the rape and

the Title IX investigation process,”174 that, “Despite being an excellent student prior

to the rape, Hovis failed one of her classes as a result of the rape because she couldn’t

get out of bed for her midterm exam,”175 that she was denied an extension of her

accommodations from LSU’s Disability Services office in January 2021 even though

she “still suffered the disabling consequences of Loe’s rape,”176 and that, “As a result

of the rape and of LSU’s failures, Hovis must go to a psychiatrist to get

accommodations and medical intervention for PTSD, generalized anxiety disorder,

171 R. Doc. 182 at ¶ 904.

172 Id. at ¶ 905.

173 Id. at ¶ 680.

174 Id. at ¶ 683.

175 Id. at ¶ 687.

176 Id. at ¶¶ 690-691.

depression, and panic disorder.”177 None of these allegations, however, connect Hovis’

alleged deprivation of access to educational opportunities and benefits to Loe’s

violation of the no-contact directive in May 2020. As such, even viewing all well-

pleaded allegations in the light most favorable to Hovis, the Court finds that Hovis

has failed to state a Title IX hostile environment claim against the Board based upon

Loe’s alleged violation of the no-contact directive.

C. Plaintiffs’ Title IX Heightened Risk Claims.

The Board further asserts that, to the extent they are not time-barred,

Plaintiffs’ Title IX heightened risk claims must be dismissed because the Fifth Circuit

has “never recognized or adopted a Title IX theory of liability based on a general

‘heightened risk’ of sex discrimination” and has “decline[d] to do so.”178 Plaintiffs

argue that the Board has presented “an incomplete characterization” of the Fifth

Circuit’s opinion in Poloceno v. Dallas Independent School District, and further assert

that the Fifth Circuit declined to adopt they heightened risk theory of liability in

Poloceno because the facts involved excessive physical exercise rather than student-

on-student sexual assault.179 Plaintiffs contend that the Fifth Circuit “clearly

acknowledged heightened risk as a theory of liability” in its sister circuits, thereby

keeping open the option of adopting the heightened risk theory of liability in a future

case.180 Plaintiffs further assert that, “this Court has recognized a heightened risk

177 Id. at ¶ 694.

178 R. Doc. 201-1 at p. 12 (quoting Poloceno v. Dallas Independent School District, 826 Fed.Appx. 359,

363 (5th Cir. 2020)).

179 R. Doc. 209 at p. 20 (citing Poloceno, 826 Fed.Appx. at 363).

180 R. Doc. 209 at p. 20 (citing Poloceno, 826 Fed.Appx. at 363).

theory of liability in Title IX cases,” although Plaintiffs cite a case from the Middle

District of Louisiana in support of that assertion.181 In response, the Board maintains

that Plaintiffs’ Title IX heightened risk claim is not available under Poloceno, and

point out that the case relied upon by Plaintiffs was decided before Poloceno, which

the Board contends is “the Fifth Circuit’s controlling ruling” on this issue.182

While there is conflicting case law on this issue, the Court finds that a Title IX

heightened risk claim is available to Plaintiffs. The Court reaches this conclusion

based the specific facts and language of Poloceno, as well as subsequent authority

from within this Circuit recognizing a Title IX heightened risk claim in the context of

allegations of student-on-student sexual harassment. In Poloceno, an unpublished

Fifth Circuit opinion from 2020, the plaintiff alleged that the defendant violated her

daughter’s rights under Title IX “by having ‘a physical exercise program that did not

consider the physical and metabolic differences between boys and girls.’”183 On

appeal, plaintiff argued that the district court erred in dismissing her complaint on

the basis that she had failed to allege intentional discrimination and had alleged only

disparate impact.184 The Fifth Circuit, however, affirmed the lower court’s dismissal

of plaintiff’s Title IX claim for failing to allege intentional discrimination.185 Plaintiff

also argued on appeal that she had an actionable Title IX heightened risk claim and

that the district court erred by recharacterizing it as a disparate-impact claim.186 The

181 R. Doc. 209 at p. 21 (citing Gruver v. State, 401 F. Supp. 3d 742, 762 (M.D. La. 2019)).

182 R. Doc. 231 at pp. 7-8 (citing Poloceno, 826 Fed.Appx. at 363).

183 Poloceno, 826 Fed.Appx. at 362.

184 Id.

185 Id. at 363.

186 Id.

Fifth Circuit held that, “We have never recognized or adopted a Title IX theory of

liability based on a general ‘heightened risk’ of sex discrimination, and we decline to

do so.”187 Importantly, the Fifth Circuit then observed that, “the cases from our sister

circuits that recognize the ‘heightened risk’ analysis limit this theory of liability to

contexts in which students committed sexual assaults on other students,

circumstances not present here.”188

At first glance, it would appear that Poloceno stands for the proposition that

the Fifth Circuit has expressly declined to recognize the availability of any Title IX

heightened risk claim. But in a more recent, published opinion, the Fifth Circuit

seemed to recognize the availability of a heightened risk claim in the context of

student-on-student sexual assault allegations. In Roe v. Cypress-Fairbanks

Independent School District, the plaintiff asserted that the defendant was liable

under Title IX for her “pre-assault claims” and alleged that, “‘[a]s a result of CFISD’s

deliberate indifference, Plaintiff was subjected to a heightened risk that she would be

a victim of dating violence and sexual assault. This risk materialized when she was

assaulted on campus.’”189 In a supplemental brief to the district court, the defendant

cited Poloceno to support its position that the plaintiff’s heightened risk claim should

187 Id.

188 Id. (citing Simpson v. Univ. of Colo. at Boulder, 500 F.3d 1170 (10th Cir. 2007) (applying

heightened-risk liability theory in a student-on-student sexual harassment case); Karasek v. Regents

of Univ. of Cal., 956 F.3d 1093, 1112 (9th Cir. 2020) (articulating a four-element test for a plaintiff’s

heightened risk theory in cases of sexual misconduct and sexual harassment)).

189 Roe v. Cypress-Fairbanks Indep. Sch. Dist., Civ. A. No. H-18-2850, 2020 WL 7043944, at *8 (S.D.

Tex. Dec. 1, 2020) (Lake, J.), aff’d in part, rev’d in part by Roe v. Cypress-Fairbanks Indep. Sch. Dist.,

be dismissed.190 The district court in Roe rejected that argument, concluding that:

Because the claims at issue in Poloceno did not stem from sexual

harassment or assault but, instead, from excessive physical exercise,

and the Fifth Circuit explained its decision not to recognize the

heightened risk theory in that case by stating that “the cases from our

sister circuits that recognize the ‘heightened risk’ analysis limit this

theory of liability to contexts in which students committed sexual

assault on other students, circumstances not present here,” id., the court

concludes that the Fifth Circuit has not foreclosed the possibility of

recognizing the heightened risk theory in an appropriate case. But this

is not an appropriate case.191

Then, “Assuming without deciding that the Fifth Circuit would recognize plaintiff’s

ability to assert a Title IX claim based on her allegations that CFISD maintained an

official policy that created a heightened risk that she would be sexually assaulted,”

the district court in Roe concluded that the defendant was entitled to summary

judgment on the claim because plaintiff had failed to raise a genuine issue of material

fact as to three of the four elements applicable to her heightened risk claim.192

The plaintiff in Roe appealed that decision, arguing that the defendant was

deliberately indifferent to her risk of sexual assault and in response to her abusive

relationship, sexual assault, and subsequent related harassment.193 In determining

whether the district court had erred in concluding that the defendant was not

deliberately indifferent to plaintiff’s risk of sexual assault, the Fifth Circuit set forth

the five elements that a Title IX plaintiff must prove,194 and found that the two

190 Roe, 53 F.4th 334 (5th Cir. 2022).

191 Roe, Civ. A. No. H-18-2850, 2020 WL 7043944 at *8.

192 Id. at *10-14.

193 53 F.4th 334, 340 (5th Cir. 2022).

194 As explained elsewhere in this Order, a Title IX plaintiff must prove that: (1) the defendant had

actual knowledge of the harassment; (2) the harasser was under the defendant’s control; (3) the

harassment was based on the victim’s sex; (4) the harassment was “so severe, pervasive, and

objectively offensive that it effectively bar[red] the victim’s access to an educational opportunity or

elements at issue in the case were the defendant’s actual knowledge of the sexual

harassment and the defendant’s deliberate indifference. 195 The Fifth Circuit

concluded that the plaintiff had failed to show that the defendant had actual

knowledge of plaintiff’s risk of sexual assault196 and, as such, affirmed the district

court’s decision granting summary judgment on plaintiff’s heightened risk claim. The

Fifth Circuit specifically found that the plaintiff was unable to create a genuine issue

of material fact regarding whether the defendant was liable for pre-assault deliberate

indifference.197 Noticeably absent from the Roe decision is any reference to Poloceno

or the suggestion that a Title IX claim cannot be based upon a heightened risk theory

of liability.

At least two district courts in this Circuit have similarly recognized the

availability of Title IX heightened risk claims. In Doe v. Board of Supervisors of the

University of Louisiana System, the plaintiff alleged, among other things, that before

her assault, the deliberate indifference of the Board of Supervisors of the University

of Louisiana System (“ULS”) to actual notice of the threat posed by one of its students,

manifested by ULS’s failure to investigate or meaningfully discipline the student

after he was arrested for rape and ULS’s failure to prevent him from transferring to

Louisiana Tech University, substantially increased her risk of being sexually

assaulted by the student.198 In denying ULS’s motion to dismiss the heightened risk

benefit;” and (5) the defendant was deliberately indifferent to the harassment. Roe, 53 F.4th at 341

(quoting Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011)

(alteration in original)) (internal quotation marks omitted).

195 Roe, 53 F.4th at 341.

196 53 F.4th at 341-342.

197 Id. at 342.

198 Civ. A. No. 22-00338-BAJ-SDJ, 2023 WL 143171, at *12 (M.D. La. Jan. 10, 2023) (Jackson, J.).

claim, the Middle District of Louisiana, citing Roe, determined that the claim was

both facially plausible and that it was timely-filed.199 The district court does not

mention the Poloceno decision in its analysis or otherwise suggest that a Title IX

heightened risk claim is not available in this Circuit.

In Doe v. Texas A&M University, a case that was decided before Roe, the

plaintiffs also asserted a “pre-assault claim,” alleging that the defendant created a

heightened risk that their daughter would be assaulted.200 In addressing the

defendant’s motion to dismiss, the Southern District of Texas held that, “While the

Fifth Circuit has not recognized as cognizable a Title IX claim for creation of a general

heightened risk of discrimination, it has not foreclosed the possibility that such a

claim may be cognizable in the context of student-on-student sexual assault.”201 The

district court further held that, “In Poloceno the court acknowledged that both the

Ninth and Tenth Circuits have recognized Title IX heightened risk claims in the

context of student-on-student sexual harassment or assault.”202 The Doe court also

recognized that, “Cases within the Fifth Circuit that have recognized Title IX pre-

assault claims are based on allegations that the defendants failed to address sexually

hostile environments after receiving reports of sexual assault.”203 The district court

ultimately granted the defendant’s motion to dismiss the heightened risk claim,

199 Id. at *12-16. See, Id. at *9 (citing Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 341-

42 (5th Cir. 2022)).

200 Civ. A. No. H-21-3728, 2022 WL 5250294, at *5 (S.D. Tex. Oct. 6, 2022) (Lake, J.).

201 Id. at *6 (citing Poloceno v. Dallas Indep. Sch. Dist., 826 Fed.Appx. 359, 363 (5th Cir. 2020)).

202 Doe, Civ. A. No. H-21-3728, 2022 WL 5250294 at *6 (citing Poloceno, 826 Fed.Appx. at 363 & n.5).

203 Doe, Civ. A. No. H-21-3728, 2022 WL 5250294 at *6 (citing Does 1-10 v. Baylor University, 240 F.

Supp. 3d 646, 662 (W.D. Tex. 2017); Doe 12 v. Baylor University, 336 F. Supp. 3d 763, 782-83 (W.D.

Tex. 2018)).

finding that the plaintiffs had failed to allege facts showing that the defendant had

knowledge of objectively offensive conduct before the alleged sexual assaults occurred

or that the defendant had an official policy or custom that created a heightened risk

of sexual assault.204

The Court is aware of at least one case in which one of our sister courts

dismissed a Title IX claim as not viable on the basis that the Fifth Circuit in Poloceno

“unequivocally communicated that it has ‘never recognized or adopted’ a heightened

risk claim under Title IX, [and] it ‘decline[s] to do so.”205 Nonetheless, the Court is

not bound by that authority and notes that that court did not have the benefit of the

Fifth Circuit’s decision in Roe, as that opinion was released subsequent to the district

court’s order. Relying upon Roe, the two Doe opinions issued by other district courts

in this Circuit, and the specific facts of Poloceno, the Court finds that while the Fifth

Circuit has not recognized a Title IX heightened risk claim, it has not foreclosed the

possibility that such a claim may be cognizable in the context of student-on-student

sexual assault allegations. Accordingly, the Court concludes that Plaintiffs’ Title IX

heightened risk claims are not subject to dismissal on the only basis urged by the

Board, namely that the claim is unavailable under Poloceno.206

204 Doe, Civ. A. No. H-21-3728, 2022 WL 5250294, at *7-8.

205 Doe #1 v. Bd. of Supervisors of Louisiana State Univ. and Agric. and Mechan. College, Civ. A. No.

21-564-SDD-SDJ, 2022 WL 16701930, at *16 (M.D. La. Nov. 3, 2022) (emphasis in original).

206 See, R. Doc. 231 at p. 7.

D. Punitive Damages.

The Board further asserts that Plaintiffs’ claim for punitive damages should

be dismissed because punitive damages are not available under Title IX.207 Plaintiffs

concede that punitive damages are not available under Title IX, but assert that

punitive damages are available pursuant to their other causes of action in the Second

Amended Complaint.208 As such, Plaintiffs assert that the Motion should be denied

with respect to the Board’s request to dismiss their claim for punitive damages.

The Court finds Plaintiffs’ Opposition brief puzzling. Plaintiffs’ readily admit

that they are not entitled to punitive damages under Title IX, but seem to suggest

that they can maintain a claim for punitive damages against the Board because they

have alleged non-Title IX claims against other defendants. Plaintiffs, however, fail

to address the fact that they have alleged only Title IX claims against the Board. As

the Board points out, both the Western District of Louisiana and the Middle District

of Louisiana have held that punitive damages are not available under Title IX.209

Plaintiffs have failed to direct the Court to any contradictory authority. As such,

because Plaintiffs have alleged only Title IX claims against the Board, the Court finds

that Plaintiffs’ claim for punitive damages against the Board must be dismissed.210

207 R. Doc. 201-1 at p. 12 (citing Minnis v. Bd. of Supervisors of Louisiana State Univ. and Agric. and

Mechan. Coll., 972 F. Supp. 2d 878 (M.D. La. 2013); Kirk v. Sch. Bd. City of Monroe, Civ. A. No. 3:17-

CV-01466, 2020 WL 7931377 (W.D. La. Dec. 21, 2020) (Hayes, M.J.)); R. Doc. 231 at p. 8 (citing Minnis,

supra; Kirk, supra).

208 R. Doc. 209 at p. 25.

209 Minnis, 972 F. Supp. 2d at 889 (citing Mercer v. Duke University, 50 Fed.Appx. 643, 644 (4th Cir.

2002); Kirk, Civ. A. No. 3:17-CV-01466, 2020 WL 7931377 at *4 (citing Barnes v. Gorman, 536 U.S.

181, 185, 122 S.Ct. 2097, 2100, 153 L.Ed.2d 230 (2002); Minnis, 972 F. Supp. 2d at 889).

210 To the extent Plaintiffs assert that they are entitled to punitive damages based upon other claims

alleged in the Second Amended Complaint, the Court recently dismissed all of Plaintiffs’ claims

asserted against the remaining defendants. See, R. Docs. 317, 319, 321, & 323.

E. Leave to Amend is Denied.

Although not mentioned by either party in their briefs,211 the Court finds that

granting Plaintiffs leave to amend their complaint to address the foregoing

deficiencies is not appropriate in this case under Fed. R. Civ. P. 15. This Court will

“freely give leave [to amend] when justice so requires,”212 but leave to amend “is by

no means automatic.”213 In exercising its discretion, this Court may consider such

factors as “undue delay, bad faith, or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the amendment, and futility

of the amendment.”214 “An amendment is futile if it would fail to survive a Rule

12(b)(6) motion.”215

Applying those factors here, the Court finds that any amendment would likely

be futile and is likely to cause undue delay in this case. More importantly, however,

Plaintiffs have already been afforded two opportunities to amend their allegations,216

and have repeatedly failed to cure the deficiencies through amendments previously

allowed. Based upon the foregoing and exercising its discretion under Fed. R. Civ. P.

15, Plaintiffs will not be afforded a third opportunity to amend their claims against

the Board.

211 See, R. Docs. 201-1, 209, & 231.

212 Fed. R. Civ. P. 15(a).

213 Halbert v. City of Sherman, Tex., 33 F.3d 526, 529 (5th Cir. 1994) (citation omitted).

214 Nolan v. M/V SANTE FE, 25 F.3d 1043 (5th Cir. 1994) (citing Gregory v. Mitchell, 635 F.2d 199,

203 (5th Cir. 1981)).

215 Marucci Sports, L.L.C. v. National Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014)

(citation omitted).

216 See, R. Docs. 1, 22, 177, 180, 181, & 182.

IV. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that the Motion to

Dismiss Second Amended Complaint by the Board of Supervisors of Louisiana State

University and Agricultural and Mechanical College217 is GRANTED in part and

DENIED in part. The Motion is GRANTED to the extent that the Board seeks

dismissal of Plaintiffs’ Title IX hostile environment and retaliation claims asserted

in Counts II and IV of the Second Amended Complaint, and those claims are hereby

DISMISSED WITH PREJUDICE. The Motion is also GRANTED to the extent

that the Board seeks dismissal of the Title IX deliberate indifference claims asserted

by Abby Owens, Samantha Brennan, Calise Richardson, Jade Lewis, Kennan

Johnson, Elisabeth Andries, Jane Doe, Ashlyn Robertson, and Sarah Beth Kitch in

Count I of the Second Amended Complaint, and those claims are DISMISSED WITH

PREJUDICE. The Motion is also GRANTED to the extent that the Board seeks

dismissal of Plaintiffs’ claim against it for punitive damages.

The Motion is DENIED, however, to the extent that the Board seeks dismissal

of Plaintiffs’ Title IX heightened risk claim, asserted in Count III of the Second

Amended Complaint, and to the extent that the Board seeks dismissal of Corinn

Hovis’ Title IX deliberate indifference claim, asserted in Count I of the Second

217 R. Doc. 201.

Amended Complaint, to the extent that her claim is based upon John Loe’s alleged

violation of LSU’s no-contact directive.

New Orleans, Louisiana, March 31, 2023.

WENDY B. in

United States District Judge