Rudman v. Oklahoma State of

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

SIERRA RUDMAN and CALYN )

BOYD, )

)

Plaintiffs, )

)

-vs- ) Case No. CIV-22-0091-F

)

STATE OF OKLAHOMA, ex rel. )

BOARD OF REGENTS FOR THE )

REGIONAL UNIVERSITY SYSTEM )

OF OKLAHOMA, and KAY )

ROBINSON, )

)

Defendants. )

ORDER

Plaintiffs Sierra Rudman (Rudman) and Calyn Boyd (Boyd) filed this civil

action against defendants State of Oklahoma, ex rel. Board of Regents for the

Regional University System of Oklahoma (Board) and Kay Robinson (Robinson)

seeking to recover damages under Title IX of the Education Amendments of 1972

(Title IX), 20 U.S.C. § 1681(a), and 42 U.S.C. § 1983. Rudman and Boyd claimed

violations of their statutory rights under Title IX and violations of their constitutional

rights under the First and Fourteenth Amendments.

The Board and Robinson moved for dismissal of Rudman and Boyd’s First

Amended Complaint pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6), Fed. R.

Civ. P. Upon review of the parties’ submissions, the court entered an order (doc. no.

41) which (1) granted Robinson’s motions to dismiss seeking to dismiss Rudman

and Boyd’s § 1983 claims (Fourteenth Amendment procedural and substantive due

process and equal protection claims and First Amendment free speech claims) under

Rule 12(b)(5) and Rule 12(b)(6), and dismissed the § 1983 claims without prejudice;

(2) granted the Board’s motion to dismiss seeking to dismiss Rudman’s Title IX

claim under Rule 12(b)(5) and Rule 12(b)(6) and dismissed the Title IX claim

without prejudice; (3) denied the Board’s motion to dismiss seeking to dismiss

Boyd’s Title IX claim but quashed Boyd’s service of process on the Board; and (4)

granted Rudman and Boyd leave to file a Second Amended Complaint.

In accordance with the court’s order, Rudman and Boyd filed a Second

Amended Complaint (doc. no. 44), re-alleging their claims under Title IX and

§ 1983. The Board and Robinson have filed motions to dismiss challenging

Rudman’s claims under Rule 12(b)(6).1

I.

Legal Standards

“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant[s]

[are] liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quotation marks and citation omitted). In reviewing a motion to dismiss, the court

assumes the truth of “all well-pleaded facts in the complaint, and draw[s] all

reasonable inferences therefrom in the light most favorable to the plaintiff[].” Dias

v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).

Robinson, who is sued in her individual capacity, raises the defense of

qualified immunity. When a defendant asserts a qualified-immunity defense, the

1 Robinson also filed a motion to dismiss challenging Boyd’s § 1983 claims against her. See, doc.

no. 49. That motion, which was uncontested by Boyd, was granted. See, doc. no. 55. Boyd’s

§ 1983 claims against Robinson were dismissed with prejudice based upon qualified immunity.

Id.

burden shifts to the plaintiff to allege facts sufficient to show “(1) that the defendant

violated a constitutional or statutory right (2) that was clearly established at the time

of the conduct in question.” Dahn v. Amedei, 867 F.3d 1178, 1185 (10th Cir. 2017).

The court “can decide which prong to address first, and need not address both.” Id.

“A constitutional right is clearly established if it is sufficiently clear that every

reasonable official would have understood that what [s]he is doing violates that

right.” Doe v. Woodard, 912 F.3d 1278, 1289 (10th Cir. 2019) (quotation marks and

citations omitted). “The plaintiff must show there is a Supreme Court or Tenth

Circuit decision on point, or the clearly established weight of authority from other

courts must have found the law to be as the plaintiff maintains.” Id. “Generally,

existing precedent must have placed the statutory or constitutional question beyond

debate for a right to be clearly established.” Id. (quotation marks and citations

omitted).

II.

Relevant Factual Allegations from the Second Amended Complaint

The well-pleaded factual allegations in the Second Amended Complaint as to

plaintiff Sierra Rudman are as follows:

Rudman is a former student of the University of Central Oklahoma (UCO),

which is a public four-year college operated by the Board. UCO is a recipient of

federal funds and is subject to Title IX.

At all relevant times, UCO had a Title IX policy, which prohibited all forms

of sexual or sex-based harassment or discrimination, or sexual misconduct, including

sexual violence, sexual assault, and stalking.

In addition, UCO had a general anti-discrimination and anti-harassment

policy and a sexual discrimination and harassment investigation policy. It also had

a student code of conduct (student code), which prohibited hazing.

Boyd is a former employee of UCO. She held the position of Coordinator of

Student Engagement for the Division of Enrollment and Student Success from July

2018 until September 2020. One of the individuals Boyd reported to was Robinson,

who held the position of Senior Director of Student and Community Engagement.

As part of her job duties, Robinson was responsible for UCO’s Spirit Teams,

including the Cheer Team.

During her employment, Boyd was a mandatory reporter of sexual

harassment, sexual exploitation, sexual discrimination, and hazing. She received

Title IX training and was considered a “Responsible Employee” at UCO for

purposes of Title IX. As a “Responsible Employee,” she had the legal duty to report

any incidents of sexual harassment, sexual discrimination, or other violations of Title

IX. Doc. no. 44, ¶ 12.

At UCO, several campus organizations conducted events where upper-class

students were appointed to mentor or guide new or under-class students. One of

those organizations was the Cheer Team. It held such an event, known as the Big

Sister/Little Sister Reveal (Big/Little Reveal). This annual event was broken down

into two smaller events: one “Official,” supervised and led by UCO employees and

representatives, and one “Unofficial.” Doc. no. 44, ¶ 16.

In the summer of 2019, Boyd reported to Robinson that she had learned of

sexual exploitation and harassment hazing, which occurred at the Cheer Team’s

“Unofficial” Big/Little Reveal event (“Unofficial” event) in August of 2018.

Robinson said she would “look into it,” but she did nothing to investigate or prevent

the sexual exploitation or harassment hazing Boyd was reporting. Doc. no. 44,

¶¶ 17-18.

Rudman participated in the Cheer Team from February or March 2020 until

the spring of 2021. On or around August 13, 2020, Rudman was invited to attend

the Big/Little Reveal. The “Official” Big/Little Reveal event (“Official” event) took

place on UCO property and was attended by at least one UCO employee, Jenni

Hawkins (Hawkins). Doc. no. 44, ¶ 76. Hawkins was the coach of the Cheer Team.

After the “Official” event, the Cheer Team left to attend the “Unofficial”

event. Doc. no. 44, ¶ 76. The “Unofficial” event was held at an off-campus

residence of two upper-class Cheer Team members. Id., ¶ 31. At least seven other

new Cheer Team members, including males, attended the “Unofficial” event. Id.,

¶ 32. Upon arrival, Rudman was told to surrender her car keys and cell phone. Like

other new Cheer Team members, she was blindfolded and taken into the house.

Although they were minors, she and other new members were provided alcohol.

They were taken to a bedroom and ordered to perform a “lap dance” on each other.

Doc. no. 44, ¶ 35. They were also asked sexual questions. In addition, the new

Cheer Team members were ordered to take off their shirts and the upper-class Cheer

Team members poured alcohol and ice-cold water under their bras and directly on

their chests. The new Cheer Team members were ordered to “grind” (move up and

down in a sexual way) on objects. Id. at ¶ 38. Because she was blindfolded, Rudman

was unable to see other persons in the room and felt as if either male or female

members of the Cheer Team would sexually assault her. According to Rudman, the

new members stayed in the bedroom for about an hour, and they were blindfolded

in the house for five to six hours.

At the conclusion of the event, the new Cheer Team members, who were

heavily intoxicated, were ordered out of the residence and told to find their own way

home.

Robinson and Hawkins mandated attendance at the “Unofficial” event. Doc.

no. 44, ¶¶ 79, 145. If any new Cheer Team members had refused to attend, Hawkins

would have punished them by preventing them from participating in Cheer Team

activities “on the mat.” Id. at ¶ 79. The upper-class Cheer Team members reported

new Cheer Team members to Hawkins if they failed to follow their instructions and

Hawkins would discipline the new Cheer Team members based entirely on the

upper-class Cheer Team members’ reports. Id., ¶ 80.

The upper-class Cheer Team members who had inflicted the hazing and

sexual exploitation on the new Cheer Team members, including Rudman, had

themselves been hazed and sexually exploited in the years immediately preceding.

Doc. no. 44, ¶¶ 72, 144. They continued the hazing and sexual harassment/

exploitation because they believed it was a “rite of passage.” Doc. no. 44, ¶ 72.

They also characterized the “Unofficial” event as “Team Bonding” carried out so

they could “bond as a group” and that the event was “successful.” Doc. no. 44, ECF

p. 6 n. 1.

Later in the 2020-2021 school year, a dispute occurred between some Cheer

Team members and Hawkins. The matter was referred to a UCO dean. The official

caused an anonymous survey to be distributed to the Cheer Team members and their

parents. One of the survey participants disclosed the sexual abuse and hazing during

the August 2020 “Unofficial” event.

Rudman first learned of an investigation into the event when a local news

source published findings of the survey in March 2021. The information was

disclosed by UCO’s media outlet.

UCO made no effort to warn Rudman that what had happened to her during

the event would become public knowledge, and she was blindsided by the public

learning of her being victimized by hazing.

After the news story broke, the Cheer Team members began discussing the

contents of the story and the facts about the “Unofficial” event on the Cheer Team

GroupMe chat. The upper-class Cheer Team members threatened the new Cheer

Team members, including Rudman, with physical harm and their safety if they did

not remain quiet about the abuse they suffered.

Robinson and Hawkins learned of the Cheer Team members’ comments and

called a meeting in March 2021. Robinson told the Cheer Team that if they did not

stay quiet about the “Big/Little Reveal” or any other hazing activities, she would

dissolve the GroupMe chat. Doc. no. 44, ¶ 51. Rudman observed Robinson, and it

appeared to her from Robinson’s demeanor that she had prior knowledge of the

Cheer Team’s hazing practices. During the meeting, other Cheer Team members

spoke about the same sort of hazing that took place at the “Unofficial” event over

previous years.

Robinson told the Cheer Team members present at the meeting that they

needed to keep their mouths shut about the hazing incident, and not to discuss it

among themselves or with anyone in the public. Robinson said this could result in

the Cheer Team getting into trouble. Doc. no. 44, ¶ 55. She further told them to

keep their mouths shut as she believed the publicity surrounding the media reporting

on the contents of the survey would “probably blow over.” Id., ¶ 85.

Thereafter, Robinson dissolved the GroupMe chat, rendering it impossible for

Rudman or any Cheer Team members to screenshot the posts of individual members,

and destroyed all evidence of its existence and content.

Rudman was told that if she were ever to mention the hazing incident, she

would not be allowed to set foot on the cheerleading mat, compete for a

championship, or letter as a cheerleader.

Because Rudman was known throughout the UCO campus as a cheerleader,

the student population knew she had been victimized by hazing. As a result of the

public disclosure of the hazing, Rudman was humiliated and felt alone on campus.

She suffered severe emotional distress, made worse because she had to discuss what

happened with her mother and grandmother. Her grades worsened, and she became

more withdrawn from school activities. She left UCO at the end of the school year.

She moved out of state and is attending classes elsewhere.

The Cheer Team program was suspended for two years by UCO.

Upper-class Cheer Team members told Rudman that they had discussed with

Robinson the hazing that they had experienced. They told her that Robinson and

Hawkins had personally attended an “Unofficial” event and witnessed hazing and

sexual harassment/exploitation on new Cheer Team members. Id., ¶ 77. According

to the upper-class Cheer Team members, Robinson and Hawkins told them they

stopped attending the “Unofficial” event because they knew that allowing the hazing

and sexual harassment/exploitation could get them into trouble with UCO. Id., ¶ 78.

The upper-class Cheer Team members also told Rudman that Robinson was

shown videos taken of the hazing and sexual harassment/exploitation activities

occurring at the “Unofficial” event. Doc. no. 44, ¶ 82. The hazing and sexual

harassment/exploitation had been moved off campus at the insistence of Robinson

and Hawkins as they were concerned that the activities were unlawful. Indeed,

Robinson ordered the “Unofficial” event off campus. Id., ¶ 144. According to Boyd,

Robinson had the responsibility to direct UCO students hosting off-campus activities

not to engage in hazing or sexual harassment/exploitation. Id., ¶ 74. Robinson could

provide training and education as to what constituted hazing and sexual abuse and

could enforce consequences of unlawful actions, even off campus. Id., ¶ 75. And

according to UCO policy and an employee of UCO, Robinson had the authority to

supervise the Cheer Team at the “Unofficial” event and to order the event to be

terminated. Id., ¶ 145.

In the Second Amended Complaint, Rudman asserts a Title IX claim of

deliberate indifference to known acts of student-on-student sexual harassment

against the Board. In addition, she alleges Fourteenth Amendment procedural and

substantive due process and equal protection claims and First Amendment free

speech claims against Robinson.

III.

Rudman’s Title IX Claim Against the Board

Title IX Claim – Deliberate Indifference to Known Acts of Student-on-Student

Sexual Harassment

Rudman claims UCO discriminated against her on the basis of sex in violation

of Title IX. The statute states that “[n]o person . . . shall, on the basis of sex, be

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

discrimination under any education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). The Supreme Court has recognized that sexual

harassment is a form of discrimination on the basis of sex and is actionable under

Title IX. See, Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75 (1992).

It has determined that Title IX may be enforced through a private right of action

against a recipient of federal education funds and that a damages remedy is available

for violations. See, Cannon v. University of Chicago, 441 U.S. 677, 709 (1979);

Franklin, 503 U.S. at 76.

In Davis Next Friend LaShonda D. v. Monroe County Board of Education,

526 U.S. 629, 643, 648 (1999), the Supreme Court specifically recognized that a

recipient of federal education funds can be held liable in damages under Title IX

where the recipient is deliberately indifferent to known acts of student-on-student

sexual harassment. Id. The Tenth Circuit has ruled that to state a Title IX claim

based upon deliberate indifference to known acts of student-on-student sexual

harassment, a plaintiff must allege that the funding recipient “‘(1) had actual

knowledge of, and (2) was deliberately indifferent to (3) harassment that was so

severe, pervasive and objectively offensive that it (4) deprived the victim of access

to the educational benefits or opportunities provided by the school.’” Doe v. School

District Number 1, Denver, Colorado, 970 F.3d 1300, 1308 (10th Cir. 2020) (quoting

Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1246 (10th Cir. 1999)).

While the Supreme Court in Davis recognized Title IX liability for a funding

recipient’s deliberate indifference to known acts of peer sexual harassment, it also

explained that the liability is limited to circumstances “wherein the recipient

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

known harassment occurs.” Davis, 526 U.S. at 645. As the Supreme Court

explained:

The statute’s plain language confines the scope of

prohibited conduct based on the recipient’s degree of

control over the harasser and the environment in which the

harassment occurs. If a funding recipient does not engage

in harassment directly, it may not be liable for damages

unless its deliberate indifference subjects its students to

harassment. That is, the deliberate indifference must, at a

minimum, cause students to undergo harassment or make

them liable or vulnerable to it. Moreover, because the

harassment must occur under the operations of a funding

recipient, the harassment must take place in a context

subject to the school district’s control.

Id. at 644-645 (internal quotation marks, citations, definitions, and alterations

omitted) (emphasis added).

The student misconduct at issue in Davis occurred during school hours and on

school grounds. Indeed, the bulk of it took place in the classroom. 526 U.S. at 646.

The Supreme Court concluded that, in those circumstances, the funding recipient

“retain[ed] substantial control over the context in which the harassment occur[red].”

Id. In addition, in that setting, the funding recipient “exercise[d] significant control

over the harasser.” Id.

The Board does not challenge whether the Second Amended Complaint

alleges facts sufficient to show that it had substantial control over the harassers.

Instead, as with its prior dismissal motion, the Board asserts that the amended

pleading fails to allege facts sufficient to establish that it had substantial control over

the context in which the hazing and sexual harassment/exploitation occurred. The

Board points out that the hazing and sexual harassment/exploitation did not take

place on campus. Rather, it occurred at an off-campus residence of two upper-class

Cheer Team members. The residence, the Board emphasizes, was neither owned

nor controlled by UCO. And it asserts that there are no factual allegations to indicate

that UCO had any authority to regulate the private residence or the activities that

occurred there. Further, the Board emphasizes that this court previously found that

UCO’s disciplinary authority over the Cheer Team, by itself, was not sufficient to

establish that it controlled the location or context in which the members committed

the sexual misconduct.2

Additionally, the Board contends that there are no factual allegations in the

Second Amended Complaint to establish two of the essential elements of a Title IX

claim – actual knowledge and deliberate indifference. According to the Board, the

amended pleading’s allegations do not show that UCO had actual knowledge of a

substantial risk of abuse to Rudman. The Board also contends that that the Second

Amended Complaint sets forth only vague and conclusory statements of deliberate

indifference by UCO. Consequently, the Board argues that Rudman’s Title IX claim

against it fails as a matter of law.

In its prior ruling dismissing Rudman’s Title IX claim, the court found the

Board’s substantial control argument to be dispositive. However, viewing the

factual allegations of the Second Amended Complaint and all reasonable inferences

2 In its previous order, the court did conclude that disciplinary authority over the Cheer Team

members was not enough by itself to establish that the university controlled the location or context

in which the members committed sexual misconduct. See, doc. no. 41, ECF p. 15. The only circuit

decision cited by the court for that conclusion was Brown v. State, 23 F.4th 1173, 1182 (9th Cir.

2022). The court notes that after its decision, the Ninth Circuit vacated the decision and ordered

the case to be reheard en banc. Brown v. Arizona, No. 20-15568, 56 F.4th 1169 (9th Cir. Dec. 9,

2022). No en banc decision has yet been issued.

from those facts in Rudman’s favor, the court concludes that Rudman has now

alleged facts sufficient to avoid dismissal on the substantial control issue.

In her briefing, Rudman again relies primarily upon a Kansas district court

case, Weckhorst v. Kansas State University, 241 F. Supp. 3d 1154, 1169-70 (D. Kan.

2017), aff’d Farmer v. Kansas State University, 918 F.3d 1094 (10th Cir. 2019), to

support that UCO had substantial control over the context in which the alleged

harassment occurred.

In Weckhorst, the plaintiff, a female Kansas State University (KSU) student,

attended an off-campus fraternity event where she became extremely intoxicated and

blacked out. Id. at 1159. A male KSU student, and the fraternity’s designated driver,

took the plaintiff to his truck and raped her in front of about fifteen university

students, some of whom took photographs and videos. Id. He then drove the

plaintiff back to the off-campus fraternity house and assaulted her on the way. Id.

When they arrived at the fraternity house, he took her to a “sleep room” lined with

beds and raped her again. Id. He left her there, naked and passed out. Id. When

she woke up several hours later, another member of the fraternity was raping her.

Still intoxicated, she left the room and made her way to a nearby patio. The fraternity

member followed her onto the patio and raped her again. Id. Photographs and videos

were later circulated widely on social media. Id. at 1159-60. After the plaintiff filed

a complaint, the university advised that it would not investigate or take any action

against the fraternity members because the rapes had occurred off campus. Id. at

1160-63. The plaintiff suffered from post-traumatic stress disorder symptoms. She

stopped going to classes, was forced to withdraw from a math course, and lost a

prestigious scholarship. Id. at 1163-64.

The plaintiff filed an action against KSU alleging a violation of Title IX. On

a Rule 12(b)(6) motion, the university argued that the harassment did not occur

within one of its programs or activities because it had no substantial control over the

context in which the off-campus rapes occurred. Id. at 1165-66. The district court

disagreed. In determining that KSU had substantial control over the context in which

the rapes occurred, so as to warrant imposition of liability under Title IX, the court

cited the following factual allegations:

(1) KSU fraternities are student housing organizations that

are open only to KSU students, and on its website, KSU

describes its fraternities as ‘Kansas State University

Organizations’; (2) the director of the fraternity at issue in

this case is a KSU instructor; (3) KSU promotes its

fraternities on its website and to prospective students and

parents; (4) KSU employs five individuals on campus in

its Office of Greek Affairs, which is responsible for

carrying out a number of functions to support fraternities

and sororities, including administrative assistance,

advisory responsibilities, education and development,

serving as a liaison to chapter presidents, holding regular

meetings with chapters, and conducting chapter

assessments; (5) KSU has authority to regulate fraternity

houses, and promulgates rules for regulating parties and

certain other activities at fraternity houses and events; and

(6) Dean of Student Life, Pat Bosco, approved the KSU

[Interfraternity Council’s] decision to ‘suspend the

fraternity for the alcohol at the party at which Plaintiff was

raped.’

Id. at 1167.

The court also found that KSU had substantial control over the fraternity

members because they were students at KSU and were under the disciplinary control

of KSU. Id. The court concluded that while the plaintiff’s allegations did not reflect

that “KSU had complete control over the alleged assailants at the fraternity house or

the fraternity parties, her allegations [did] reflect that KSU had substantial control

over both the assailants and the fraternity.” Id. at 1168 (emphasis in original).

In the case at bar, the court previously found that Rudman’s allegations in the

First Amended Complaint fell short of the Weckhorst fact pattern which established

the university had substantial control over the context in which the harassment

occurred. The court concluded that Rudman’s factual allegations did not indicate

that UCO had any authority to regulate the private residence of the Cheer Team

members, or the parties and events held by Cheer Team members at that residence.

Nor did the factual allegations indicate that UCO promulgated rules regulating

parties or other activities at the Cheer Team members’ private residences. The court,

however, concludes that the new allegations, along with other allegations in the

Second Amended Complaint, viewed in a light favorable to Rudman, are sufficient,

like the allegations in Weckhorst, to indicate that UCO had substantial control over

the harassers and the context in which the harassment occurred. The allegations

indicate that UCO, through Robinson and Hawkins, had the authority to regulate

(which in this case would mean prohibit) the Cheer Team members’ hazing and

sexual harassment/exploitation activities that occurred at the off-campus residence

of two of the Cheer Team members. In the court’s view, they indicate that UCO

retained substantial control over the context in which the hazing and sexual

harassment/exploitation of Rudman occurred.

Specifically, according to the allegations, the Cheer Team was one of UCO’s

constituent organizations exclusively for UCO students. UCO employed Robinson,

who was responsible for the Cheer Team, and Hawkins, who was the Cheer Team

coach. Each year, the Cheer Team held the Big/Little Reveal, consisting of both an

“Official” event and an “Unofficial” event. Boyd reported to Robinson in the

summer of 2019 that she received a report from a new Cheer Team member of sexual

exploitation and harassment hazing that occurred at the “Unofficial” event in 2018.

Several upper-class Cheer Team members had also discussed with Robinson the

hazing they had previously experienced at the “Unofficial” event. In addition,

Robinson and Hawkins had personally attended the “Unofficial” event and

witnessed the hazing and sexual harassment/exploitation inflicted on the new Cheer

Team members. They had also been shown videos taken of the hazing and sexual

harassment/exploitation activities at the “Unofficial” event. Although the “Official”

event was held on campus, the “Unofficial” event was moved off-campus at the

insistence of Robinson and Hawkins as they were concerned that the activities were

unlawful. Indeed, Robinson ordered it off campus. And Robinson and Hawkins

stopped attending the “Unofficial” event because they knew the hazing and sexual

harassment/exploitation could get them into trouble.

Although an “Unofficial” event, attendance by the new Cheer Team members

was mandated by Robinson and Hawkins. If they refused to attend, Hawkins would

have the members punished by preventing them from participating in the Cheer

Team activities “on the mat.” And Hawkins disciplined new Cheer Team members

based entirely on the reports of the upper-class Cheer Team members.

According to Boyd, Robinson, who was her supervisor, had the responsibility

to direct UCO students hosting off-campus not to engage in hazing or sexual

harassment/exploitation-type behavior. Robinson could provide training and

education as to what constituted hazing and sexual abusive and could enforce

consequences of unlawful actions, even off campus. Further, according to UCO

policy and an employee of UCO, Robinson had the authority to supervise the

“Unofficial” event and to order that it be terminated.

After the 2020 “Unofficial” event which Rudman attended was revealed, and

disclosed publicly, Robinson and Hawkins met with the Cheer Team members, and

Robinson told them to keep their mouths shut about the incident as it could result in

the Cheer Team program getting into trouble. Robinson believed the publicity

surrounding the media reporting on the incident would “probably blow over.”

Ultimately, the Cheer Team program was suspended by UCO for two years due to

the incident.

The Tenth Circuit Court of Appeals has recognized that harassment occurring

off school grounds may give rise to liability under Title IX. See, Rost ex rel. K.C.

Steamboat Springs RE-2 School Dist., 511 F.3d 1114, 1121 n. 1 (10th Cir. 2008).

According to the Court of Appeals, “there must be some nexus between the

out-of-school conduct and the school” to create that liability. Id. The court

concludes that Rudman’s factual allegations in the Second Amended Complaint are

sufficient to establish a meaningful nexus between UCO and the off-campus hazing

and sexual harassment at the Cheer Team members’ private residence, so as to render

the Board liable under Title IX for the hazing and sexual harassment/exploitation.

Unlike the allegations in the First Amended Complaint, the factual allegations in the

Second Amended Complaint do support a reasonable inference that the hazing and

sexual harassment/exploitation took place in a context subject to UCO’s control.

See, Davis, 526 U.S. at 630. The court concludes that Rudman’s Title IX claim for

deliberate indifference to known acts of student-on-student sexual harassment is not

subject to dismissal under Rule 12(b)(6) on the ground of a lack of substantial control

over the context in which the harassment occurred.

As stated, the Board also challenges whether the factual allegations in the

Second Amended Complaint are sufficient to establish the essential elements of

actual knowledge and deliberate indifference. The court concludes that the factual

allegations are sufficient to establish that Robinson had actual knowledge of the

hazing and sexual harassment/exploitation that occurred at the “Unofficial” event

held by the Cheer Team members.3 Robinson had attended the event previously and

3 “To trigger Title IX liability, a university must have actual notice through an appropriate person.”

Ross v. University of Tulsa, 859 F.3d 1280, 1288-89 (10th Cir. 2017). “An appropriate person ‘is,

at a minimum, an official of the [university] with authority to take corrective action [on behalf of

the university] to end the discrimination.’” Id. (quoting Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274, 290 (1998)). The court concludes that the factual allegations and reasonable

had witnessed hazing and sexual harassment/exploitation. She had also seen videos

of hazing and sexual harassment/exploitation that occurred previously. Boyd, as

part of her job duties, had also reported to Robinson about the harassment that

occurred in 2018. Upper-class Cheer Team members had discussed their prior

hazing and sexual harassment/exploitation experience with Robinson. Based on the

allegations and reasonable inferences from those allegations, viewed in Rudman’s

favor, Robinson had actual knowledge of hazing and sexual harassment/exploitation

in the Cheer Team program prior to the 2020 “Unofficial” event. Escue v. Northern

Oklahoma College, 450 F.3d 1146, 1153 (10th Cir. 2006) (“[H]arassment of persons

other than the plaintiff may provide the school with the requisite notice to impose

liability under Title IX.”) (citing Gebser, 524 U.S. at 290). The court concludes that

the prior similar instances of hazing and sexual harassment/exploitation that

occurred to other new Cheer Team members provided Robinson “with actual

knowledge that [the upper-class Cheer Team members] presented a ‘substantial risk

of [hazing and sexual harassment/exploitation]’” to Rudman at the 2020

“Unofficial” event. Escue, 450 F.3d at 1154.

The court also concludes that the factual allegations are sufficient to establish

the deliberate indifference element. A university is deliberately indifferent to acts

of student-on-student harassment “only where the . . . response to the harassment or

lack thereof is clearly unreasonable in light of the known circumstances.” Davis,

526 U.S. at 648. Despite being aware of the sexual misconduct occurring at prior

annual “Unofficial” events for the Cheer Team and having the ability to terminate it

and enforce consequences of unlawful actions, Robinson did not take any action to

stop the 2020 “Unofficial” event. Viewing the factual allegations and reasonable

inferences drawn in Rudman’s favor are sufficient to establish that Robinson was an “appropriate

person” through whom the university could have obtained actual acknowledge for purposes of

Title IX liability.

inferences therefrom in a light favorable to Rudman, the court concludes that a

reasonable jury could conclude that the lack of response by Robinson was clearly

unreasonable.

Because the factual allegations sufficiently plead actual knowledge and

deliberate indifference, the court concludes that Rudman’s Title IX claim should not

be dismissed under Rule 12(b)(6). The Board’s motion will therefore be denied.

IV.

Section 1983 Claims Against Defendant Robinson

Procedural and Substantive Due Process Claims

Rudman asserts that Robinson violated her Fourteenth Amendment

procedural and substantive due process rights by depriving her of her education and

educational activities. The Fourteenth Amendment protects citizens from, among

other things, deprivation of property without due process of law. U.S. Const. amend.

XIV, § 1. “Procedural due process ensures the state will not deprive a party of

property without engaging fair procedures to reach a decision, while substantive due

process ensures the state will not deprive a party of property for an arbitrary reason

regardless of the procedures used to reach that decision.” Hyde Park Co. v. Santa

Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000). To state either a procedural

or substantive due process claim, “a plaintiff must first establish that a defendant’s

actions deprived plaintiff of a protectible property interest.” Id. A property interest

in the context of the Fourteenth Amendment Due Process Clause is a “legitimate

claim of entitlement” to some benefit, as opposed to a mere “abstract need or desire”

or “unilateral expectation.” Board of Regents of State Colleges v. Roth, 408 U.S.

564, 577 (1972).

In her papers, Robinson argues that Rudman cannot state a procedural or

substantive due process claim because cheerleading is not a protectible property

interest. To the extent that Rudman claims that her continued education is a

protectible property interest, Robinson contends that Rudman fails to allege facts to

show that Robinson denied her an education. Robinson points out that Rudman was

not suspended or removed from UCO or otherwise kept from attending classes.

Further, to the extent Rudman relies upon the theory of “constructive expulsion” to

support her claims, Robinson argues that the Second Amended Complaint, like the

First Amended Complaint, fails to state facts to establish that she was constructively

expelled from UCO. Robinson contends that the new allegations do not show that

she deliberately created an intolerable environment in order to force Rudman to

leave campus or that the conditions were so objectively intolerable that Rudman had

no choice but to leave. Lastly, Robinson points out that even if Rudman has alleged

facts to establish a plausible procedural due process claim or substantive due process

claim, she has not identified clearly established law permitting a procedural due

process claim or substantive due process claim based on the “constructive

expulsion” theory.

Rudman responds that she had a protected property interest in her continued

education at UCO. She also contends that she was deprived of that property interest

by Robinson because her environment became so objectively intolerable that she

was subjected to “constructive expulsion” from the university. According to

Rudman, the facts, as now pled, plausibly establish that she was forced out of UCO.

Further, she contends that it was Robinson’s actions that created the intolerable

environment.

As the court previously ruled, Rudman had a protected property interest in her

continued education at UCO. See, Gaspar v. Bruton, 513 F.2d 843, 850 (10th Cir.

1975); Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d

1172, 1181 (10th Cir. 2001). And the court assumes without deciding that Rudman

may be able to show deprivation of a property interest in continued education

through “constructive expulsion.” See, Garcia v. Clovis Municipal Schools, Case

No. CIV 02-1101 WJ/KWR, 2003 WL 27385436, at *4 (D.N.M. March 3, 2003)

(discussing Seamons v. Snow, 84 F.3d 1226, 1234 (10th Cir. 1996), and Stevenson

v. Martin County Bd. of Educ., No. 99-2685, 2001 WL 98358 (4th Cir. Feb. 6, 2001)).

However, the court again concludes that new allegations, along with the other

allegations in the Second Amended Complaint, do not give rise to a reasonable

inference that Robinson “deliberately created an intolerable environment in order to

force [Rudman] to leave and that the conditions within the [university] were so

objectively intolerable that [Rudman] had no choice but to leave.” Garcia, 2003 WL

27385436, at *4.

Construed in her favor, the Second Amended Complaint alleges that Rudman

was subjected to hazing, sexual harassment and sexual exploitation at the annual

Cheer Team “Unofficial” Big/Little Reveal event in August 2020; Robinson, who

had actual knowledge of hazing, sexual harassment and sexual exploitation

occurring at previous “Unofficial” events, mandated that Rudman attend the event

or be subject to punishment by Hawkins; the hazing, sexual harassment and sexual

exploitation was disclosed by one survey participant in the spring of 2021; UCO

disclosed to the media what happened to Rudman and other new Cheer Team

members during the “Unofficial” event in 2020; Rudman did not know about an

investigation into the “Unofficial” event until it was disclosed to the media, and

UCO did not warn her that what happened at the “Unofficial” event would be made

public knowledge; the upper-class Cheer Team members threatened the new Cheer

Team members’ physical safety and accused them of “ratting out” the “Unofficial”

event and the hazing; Robinson told the Cheer Team members to stay quiet about

the Big/Little Reveal or any other hazing activities or she would dissolve the Cheer

Team’s GroupMe Chat; Robinson told the Cheer Team members to keep their

mouths shut about the Big/Little Reveal and to not discuss it among themselves or

with anyone in the public to avoid the Cheer Team program getting into trouble and

because she believed the publicity on the contents of the survey would “probably

blow over;”4 Robinson dissolved the GroupMe Chat, rendering it impossible for

Rudman to screenshot the posts by individual Cheer Team members, and Robinson

destroyed all evidence of its existence and content; the student population knew

Rudman had been victimized by the hazing and sexual abuse because she was known

as a cheerleader; and as a result of the public disclosure of the hazing and sexual

abuse, Rudman was humiliated and felt alone on campus, suffering emotional

distress which was made worse because she had to discuss what happened to her

with her mother and grandmother; her grades gradually worsened, and she became

more withdrawn from school activities.

While the court, as previously explained in its prior ruling, does not minimize

how difficult these experiences must have been for Rudman, the court concludes that

the circumstances alleged by Rudman are not sufficient to demonstrate that her

learning conditions at UCO were such that a reasonable person would have felt

compelled to leave the university. Further, the factual allegations, in the court’s

view, are insufficient to show that Robinson deliberately created an intolerable

environment in order to force Rudman to leave UCO.5 Thus, the court concludes

that Rudman fails to allege facts sufficient to establish deprivation by Robinson of

her protected property interest in continued education at UCO. As a result, the court

concludes that Rudman fails to allege facts establishing that she has plausible

4 In her pleading, Rudman alleges that she was told that if she ever mentioned the hazing incident,

she would never be allowed to set foot on the cheerleading mat, compete for a championship or

letter as a university cheerleader. Rudman, however, does not allege that Robinson made those

statements to her.

5 The court notes there are no factual allegations that Robinson was involved in disclosing the

“Unofficial” Big/Little Reveal event to the public.

procedural and substantive due process claims against Robinson under the first

prong of the qualified immunity analysis.6

Additionally, the court concludes that even if Rudman has alleged facts

sufficient to state plausible procedural and substantive due process claims, Robinson

would still be entitled to qualified immunity under the second prong of the analysis.

In her papers, Rudman has not identified clearly established law permitting a

procedural due process claim or substantive due process claim based on the

“constructive expulsion” theory. Rudman relies upon the district court’s decision in

Garcia. That is not sufficient. See, Ullery v. Bradley, 949 F.3d 1282, 1300 (10th

Cir. 2020) (“‘[D]istrict court decisions—unlike those from the courts of appeals—

do not necessarily settle constitutional standards or prevent repeated claims of

qualified immunity.’”) (quoting Camreta v. Greene, 563 U.S. 692, 709 n. 7 (2011)).

Rudman also relies on the Fourth Circuit’s decision in Doe v. Fairfax Cty. Sch. Bd.,

1 F.4th 257 (4th Cir. 2021), and the Sixth Circuit’s decision in G.C. v. Owensboro

Pub. Sch., 711 F.3d 623, 631 (6th Cir. 2013). However, the court notes that the Doe

6 Generally, state actors are only liable for their own acts, not for violent acts of third parties. See,

Rost, 511 F.3d at 1125. However, there are two exceptions to this general rule—the “special

relationship” doctrine and the “danger creation” theory. Id. at 1126. “[T]he special relationship

doctrine exists when the state [has] assume[d] control over an individual sufficient to trigger an

affirmative duty to provide protection to that individual.” Id. (quotation marks and citation

omitted). No circumstances exist to establish a “special relationship” between Rudman and UCO.

“[T]he danger creation theory provides that a state may also be liable for an individual’s safety if

it created the danger that harmed the individual.” Id. To the extent the Second Amended

Complaint can be construed to allege a substantive due process claim based upon the danger

creation theory, the court finds that Rudman’s factual allegations are not sufficient to state a

plausible claim. One of the factors Rudman must satisfy to state a plausible claim is that

Robinson’s conduct, when viewed in total, shocks the conscience. Id. at 1126. To do this, “a

plaintiff must do more than show that the government actor intentionally or recklessly caused

injury to the plaintiff by abusing or misusing government power.” Camuglia v. City of

Albuquerque, 448 F.3d 1214, 1222 (10th Cir. 2006) (quotation marks and citation omitted). “The

plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm

that is truly conscience shocking.” Id. at 1222-23 (quotation marks and citation omitted). The

court finds Rudman’s factual allegations regarding Robinson’s conduct, viewed in total and in

favor of Rudman, are not sufficient to rise to the conscience-shocking level.

case involved a Title IX claim, not a § 1983 procedural due process or substantive

due process claim. Also, it was decided after the alleged sexual misconduct in this

case occurred. While the G.C. case involved a § 1983 procedural due process claim

based on a de facto expulsion, the court concludes that G.C. does not amount to

clearly established weight of authority from other courts for purposes of discerning

clearly established law. The court concludes that the procedural and substantive due

process claims should be dismissed with prejudice under Rule 12(b)(6) based upon

both prongs of the qualified immunity analysis.

Section 1983 Equal Protection Claim

Rudman asserts that Robinson violated her equal protection rights. “The

Equal Protection Clause of the Fourteenth Amendment commands that no State shall

deny to any person within its jurisdiction the equal protection of the laws[.]” City

of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (internal

quotation marks and citation omitted).

Robinson contends that Rudman’s amended pleading fails to state a plausible

equal protection claim. Citing Phan v. Colorado Legal Services, Civil Action No.

18-cv-01403-GPG, 2018 WL 10335669 (D. Colo. June 19, 2018), Robinson

contends that Rudman fails to make a “threshold showing” that she was treated

differently than others with whom she was similarly situated. Id. at *3.

In response, Rudman asserts that “this is not the ‘class of one’ situation” as

discussed in Phan. Doc. no. 35, ECF p. 23. Rudman asserts that her action against

Robinson is “contemplated” by the decisions in Starrett v. Wadley, 876 F.2d 808,

814 (10th Cir. 1989), and Harman v. Oklahoma ex rel. Northern Oklahoma Board of

Regents, No. CIV-07-327-C, 2007 WL 1674205 (W.D. Okla. June 7, 2007), and she

contends that she has plausibly pleaded such a claim. Id.

As the court previously explained, the Starrett and Harman cases determined

that a supervisor’s sexual harassment of a state employee and corresponding

retaliation after complaints were made about the harassment violated the state

employee’s right to equal protection of the law. Starrett, 876 F.2d at 814-15;

Harman, 2007 WL 1674205, at *5. However, the alleged sexual harassment in this

case was committed by a student, rather than by Robinson or any other UCO

employee supervised by Robinson. The court finds that Rudman’s factual

allegations do not give rise to an equal protection claim based solely upon the cited

authority of Starrett and Harman.

In its prior ruling, the court recognized that the Tenth Circuit has held that “a

governmental official or supervisory employee may be held liable under section

1983 upon a showing of deliberate indifference to known sexual harassment.”

Murrell, 186 F.3d at 1250. The appellate court determined that the plaintiff had

stated a § 1983 equal protection claim against the principal and teachers who

“actually knew of and acquiesced in” a student’s sexual harassment of another

student “by refusing to reasonably respond to it.” Id.

In contrast to its prior ruling, the court concludes that Rudman’s new factual

allegations, along with the other factual allegations in the Second Amended

Complaint, do state a plausible § 1983 equal protection claim under Murrell. The

court finds that Rudman has stated facts sufficient to establish that Robinson actually

knew of the sexual harassment/exploitation of new Cheer Team members by

upper-class members at the annual “Unofficial” event and consciously acquiesced

in that conduct by refusing to reasonably respond to it.

As previously explained, Rudman must show that Robinson violated a

constitutional or statutory right—here, an equal protection right—that was clearly

established at the time of the conduct in question. Dahn, 867 F.3d at 1185. The

court concludes that she has. Since at least the Murrell decision in 1999, the law has

been clearly established in the Tenth Circuit that a school principal, teacher, or other

administrator may be liable for an equal protection violation if they are deliberately

indifferent to acts of sexual harassment perpetrated on one student by another

student.7 Therefore, the court concludes that Robinson is not entitled to qualified

immunity and Rudman’s § 1983 equal protection claim against Robinson is not

subject to dismissal under Rule 12(b)(6).

Section 1983 Free Speech Claim

In the Second Amended Complaint, Rudman alleged that Robinson violated

her First Amendment right to free speech. In response to Robinson’s motion

challenging Rudman’s First Amendment claims, Rudman states that she will not

“contest” the motion. The court thus deems the motion confessed in accordance

with LCvR 7.1(g). In its prior ruling, the court concluded that Rudman had failed to

state a plausible traditional prior restraint claim or retaliation claim under the First

Amendment. The court dismissed the claims under the first prong of the qualified

immunity analysis. Although Rudman has set forth new allegations in the Second

Amended Complaint, those factual allegations do not change the court’s decision

that Rudman has failed to state a plausible traditional prior restraint claim or

retaliation claim under the First Amendment. The court will therefore dismiss

Rudman’s First Amendment free speech claims with prejudice under Rule 12(b)(6)

based on the first prong of the qualified immunity analysis.

V.

For the reasons stated, Defendant, State of Oklahoma, ex rel. Board of Regents

for the Regional University System of Oklahoma and The University of Central

7 The court notes that in Murrell, the Tenth Circuit denied the school principal and teachers

qualified immunity for the plaintiff’s § 1983 equal protection claim based on deliberate

indifference to known sexual harassment. In so doing, the appellate court relied upon the holding

in Starrett that sexual harassment can violate the Fourteenth Amendment equal protection right

and the holding of Woodward v. City of Worland, 977 F.2d 1392, 1401 (10th Cir. 1992), that a

person who exercises supervisory authority may be held liable for consciously acquiescing in

sexually harassing conduct by a non-state actor over whom the state actor has authority.

Oklahoma’s Motion to Dismiss Rudman’s Claims (doc. no. 51) is DENIED.

Plaintiff's Title IX claim against the Board remains pending.

Defendant Kay Robinson’s Motion to Dismiss Claims by Plaintiff Sierra

Rudman (doc. no. 48) is GRANTED in part and DENIED in part. Plaintiff Sierra

Rudman’s Fourteenth Amendment procedural due process and substantive due

process claims and First Amendment free speech claim under 42 U.S.C. § 1983

against defendant Kay Robinson are dismissed with prejudice under Rule 12(b)(6),

Fed. R. Civ. P., based upon qualified immunity. Plaintiff's Fourteenth Amendment

equal protection claim under 42 U.S.C. § 1983 against defendant Kay Robinson

remains pending.

IT IS SO ORDERED this 26" day of April, 2023.

UNITED STATES DISTRICT JUDGE

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