Rachael DeMarcus v. University of South Alabama

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11670

____________________

RACHAEL DEMARCUS,

ALEXIS SILVER,

HANNAH MADDUX,

MADDIE SOBOLESKI,

CAITLIN TIPPING, et al.,

Plaintiffs-Appellants,

versus

UNIVERSITY OF SOUTH ALABAMA,

ALEXIS MEEKS-RYDELL,

ROBERT CHILCOAT,

PATRICIA GANDOLFO,

JOEL ERDMANN, et al.,

Defendants-Appellees.

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2 Opinion of the Court 23-11670

____________________

Appeal from the United States District Court

for the Southern District of Alabama

D.C. Docket No. 1:21-cv-00380-KD-B

____________________

Before JORDAN, NEWSOM, and BRASHER, Circuit Judges.

NEWSOM, Circuit Judge:

Several college volleyball players accused their coach of mis-

treating them—physically, verbally, psychologically, and sexually.

The players’ accusations are serious, and the coach’s conduct, if it

occurred as alleged, may well have violated state law in some way.

The question for us, though, is a narrow one: Do the players’ alle-

gations assert violations of federal law—specifically, of either Title

IX or 42 U.S.C. § 1983? We hold that they do not. We therefore

affirm the district court’s order dismissing the players’ claims.

I

A

For two seasons, Alexis Meeks-Rydell was the head coach of

the University of South Alabama women’s volleyball team. 1

1 This case reaches us on an appeal from the district court’s grant of Meeks-

Rydell’s and the University’s motions to dismiss. So, for purposes of this ap-

peal, we take the facts alleged in the complaint as true and “constru[e] them

in the light most favorable to the plaintiff.” Williams v. Bd. of Regents of Univ.

Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir. 2007).

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According to eight players, during that time Meeks-Rydell “en-

gag[ed] in a pattern and practice of sexual harassment and physical,

verbal, and psychological abuse.” Third Am. Compl. ¶¶ 37, 40,

Doc. 64. The players—whose names we’ll need to reference be-

low—are Rachael DeMarcus, Alexis Silver, Caitlin Tipping,

Meaghan Jones, Hannah Kazee, Hannah Johnson, Hannah Mad-

dux, and Maddie Soboleski.

The players allege that either they or their parents (or both)

reported Meeks-Rydell’s misconduct to various University admin-

istrators, including Athletic Director Joel Erdmann, Senior Associ-

ate Athletic Director Jinni Frisbey, and Associate Athletic Director

Chris Moore. They also assert that assistant women’s volleyball

coaches Rob Chilcoat and Patricia Gandolfo witnessed Meeks-Ry-

dell’s abuse on an ongoing basis.

The players accuse Meeks-Rydell of engaging in all manner

of sexual abuse. They generally allege that Meeks-Rydell pinched

their buttocks, required them to participate in “floor hugs” (which

involved Meeks-Rydell lying on top of a player), and forced them

to tell her that they loved her. Individual players level additional

allegations. DeMarcus asserts that Meeks-Rydell sent her sexually

inappropriate text messages. Kazee says that Meeks-Rydell re-

duced her playing time and psychologically punished her when she

complained that inappropriate touching made her uncomfortable.

And Soboleski makes a series of claims—namely, that Meeks-Ry-

dell (1) periodically kissed her on the forehead and cheek, (2) forced

her to spend extensive time alone with her, including at Meeks-

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4 Opinion of the Court 23-11670

Rydell’s house, and (3) summoned her to her hotel room several

times for “sexual conduct,” including, on one occasion, when

Meeks-Rydell forced Soboleski to lie in bed with her and told her

to “use her [] boobs as a pillow.” Third Am. Compl. ¶¶ 159–63.

The complaint specifically asserts that Soboleski reported the ho-

tel-related allegation to Erdmann and Frisbey in December 2020.

As for non-sexual abuse, the players generally allege that

Meeks-Rydell swore at and made abusive comments to them,

blamed them for her personal problems, accused them of faking

injuries, forced them to play through serious medical conditions,

concealed their injuries from school trainers, and instituted cor-

poral punishments (including extreme early-morning “breakfast

club[]” workouts). Individual players also make more specific alle-

gations, some of which they say were witnessed by or reported to

other University employees. DeMarcus claims that Meeks-Rydell

slapped her in retaliation for telling an athletic trainer about an in-

jury—an act she says Chilcoat and Gandolfo witnessed. DeMarcus

also asserts that Meeks-Rydell forced her to play through a head

injury, leading to a concussion and supraventricular tachycardia—

conduct she says an athletic trainer reported to Frisbey. Tipping

alleges that Moore and Meeks-Rydell intimidated her (using a fab-

ricated $6,000 fine) into writing a letter to the NCAA stating that

she was leaving the University due to concerns about fires in Aus-

tralia rather than the physical, emotional, and sexual abuse that she

had experienced. Kazee asserts that the coaching staff denied her

medical attention after an on-court injury and that she had to crawl

out of the gym, leading to a two-week hospital stay—an incident

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23-11670 Opinion of the Court 5

she says her parents reported to Frisbey. Johnson alleges that

Meeks-Rydell and Chilcoat instituted a practice drill in which they

would spike balls towards players’ faces, which caused her to suffer

a concussion—an act she says her mother reported to Frisbey. And

Maddux asserts that Meeks-Rydell once forbade her from using her

inhaler when she was gasping for air and once screamed at her

when she was vomiting and experiencing a nosebleed—conduct

she says she and Soboleski reported to Frisbey and Erdmann.

The complaint also contains allegations of non-sexual abuse

unaccompanied by any assertion that they were witnessed by or

reported to other University employees. Jones, for instance, alleges

that Meeks-Rydell forced her to run extra sprints as punishment for

attempting to retrieve her inhaler during an asthma attack. Kazee

alleges that Meeks-Rydell publicly informed the entire team of con-

fidential conversations the two had concerning her mental and

physical health. And Silver alleges that because of the physical

abuse suffered at the hands of Meeks-Rydell, she lost 40 pounds in

a single semester.

Following an influx of these complaints in December 2020,

Meeks-Rydell was placed on administrative leave in January 2021.

A month later, she resigned.

B

Following Meeks-Rydell’s resignation, the players sued

(1) the University (a) under Title IX and (b) for breach of contract,

and (2) Meeks-Rydell, Erdmann, Frisbey, Moore, Chilcoat, and

Gandolfo (a) under § 1983 and (b) under various state laws.

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6 Opinion of the Court 23-11670

Eventually, the district court dismissed the players’ operative com-

plaint. The court found that the players had abandoned their

breach-of-contract claims and therefore dismissed them with prej-

udice. The court also dismissed the Title IX and § 1983 claims with

prejudice for failure to state a claim. Finally, because it had dis-

missed the federal claims, the court declined to exercise supple-

mental jurisdiction over the remaining state-law claims and dis-

missed those without prejudice.

This is the players’ appeal of the dismissal of their Title IX

and § 1983 claims. 2

II

We must decide whether the players’ Title IX claims and

§ 1983 claims were properly dismissed under Federal Rule of Civil

Procedure 12(b)(6). Dismissal for failure to state a claim is proper

when the plaintiff can’t allege “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). A claim is facially plausible if the facts asserted “allow[]

the court to draw the reasonable inference that the defendant is li-

able for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Importantly, while “factual allegations” are entitled to an

assumption of truth, “[t]hreadbare recitals of the elements of a

2 “We review de novo the district court’s order granting the defendants’ motion

to dismiss, taking the facts alleged in the complaint as true and construing

them in the light most favorable to the plaintiff.” Williams, 477 F.3d at 1291

(citation omitted).

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23-11670 Opinion of the Court 7

cause of action, supported by mere conclusory statements,” are

not. Id. at 678–79.

A

Title IX provides that “[n]o person in the United States shall,

on the basis of sex, be . . . subjected to discrimination under any

education program or activity receiving Federal financial assis-

tance.” 20 U.S.C. § 1681(a). The Supreme Court has held that the

statute includes a private right of action and has interpreted sex

“discrimination” to include sexual harassment. See Cannon v. Univ.

of Chicago, 441 U.S. 677, 709, 717 (1979); Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274, 281 (1998). And we have established a test

for “teacher on student” sexual-harassment claims under Title IX:

(1) “[T]he plaintiff must be able to identify an ‘appropriate person’

under Title IX . . . with the authority to take corrective measures in

response to actual notice of sexual harassment”; (2) “the substance

of that actual notice must be sufficient to alert the school official

of the possibility of the Title IX plaintiff’s harassment”; and (3) “the

official with such notice must exhibit deliberate indifference to the

harassment.” Doe v. Sch. Bd. of Broward Cnty., 604 F.3d 1248, 1254

(11th Cir. 2010) (citations omitted).

Applying Broward’s test, the district court held that the play-

ers failed to state a Title IX claim. First, the court concluded that

only Erdmann, Frisbey, and Moore were “appropriate persons,” be-

cause Chilcoat and Gandolfo were merely assistant coaches under

Meeks-Rydell. Then, it ruled that only one report by the players

constituted notice to an appropriate person of sexual harassment—

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8 Opinion of the Court 23-11670

Soboleski’s December 2020 report of the hotel-related incidents.

And finally, it held that the University did not act with deliberate

indifference upon receiving that notice because Meeks-Rydell was

placed on administrative leave in January 2021, resigned in Febru-

ary 2021, and did not interact with the players after the December

2020 report. The district court was correct in all three respects.

1

An “appropriate person” for Title IX notice purposes is “an

official of the recipient entity with authority to take corrective ac-

tion to end the discrimination.” Gebser, 524 U.S. at 290. Although

the line isn’t “clearly delineated,” the official to whom notice is

given must be at least “‘high enough up the chain-of-command that

his acts constitute an official decision by the school district itself

not to remedy the misconduct.’” 3 Broward, 604 F.3d at 1254–55

3 There is a wrinkle. We first addressed the “appropriate person” issue in Floyd

v. Waiters, 133 F.3d 786, 789–93 (11th Cir. 1998) (Floyd I), vacated by 525 U.S.

802 (1998), reinstated in 171 F.3d 1264 (11th Cir. 1999). Our opinion in Floyd I

seemed to set a high (and rigid) bar, limiting the class of appropriate persons

to (1) members of the institution’s governing board (there, the local school

board) and (2) those designated by state law with “‘administrative control or

direction’ of the school district under Title IX,” such as, at least under the ap-

plicable Georgia law, the superintendent. Id. at 791–92. Not long thereafter,

though, the Supreme Court decided Gebser and vacated Floyd I with instruc-

tions to reconsider in the light of its decision. On remand, the panel did two

things. First, it “reinstate[d its] prior decision and opinion.” Floyd v. Waiters,

171 F.3d 1264, 1264 (11th Cir. 1999) (Floyd II) (emphasis added). But second,

in doing so, it characterized its earlier holding in Floyd I in a way that was ar-

guably consistent with Gebser but also arguably inconsistent with Floyd I. In

particular, without mentioning Floyd I’s seeming adoption of a bright-line

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23-11670 Opinion of the Court 9

(quoting Floyd v. Waiters, 171 F.3d 1264, 1264 (11th Cir. 1999) (Floyd

II)).

Ultimately, the “question of who is an appropriate person is

‘necessarily a fact-based inquiry’ because ‘officials’ roles vary

among school districts.’” Id. at 1256 (citation omitted). In conduct-

ing the appropriate-person analysis, we distinguish between Title

IX cases involving student-on-student harassment and those involv-

ing staff-on-student harassment. A “broad[] number of administra-

tors and employees” can be “appropriate persons” with regard to

student-on-student harassment. Hawkins v. Sarasota Cnty. Sch. Bd.,

322 F.3d 1279, 1287 (11th Cir. 2003). But “[w]ith respect to harass-

ment by teachers or staff, application of the Supreme Court’s

[test] . . . results in a limited and readily identifiable number of

school administrators.” Id.

board-member-or-superintendent rule, the Floyd II panel described Floyd I as

requiring, more flexibly, that an appropriate person be (1) a “supervisor with

authority to take corrective action” and (2) “a school official high enough up

the chain-of-command that his acts constitute an official decision by the school

district itself.” 171 F.3d at 1264. More than a decade later, in Broward, we

appeared to recognize the tension by noting that neither the Supreme Court

“[n]or . . . our circuit” had “clearly delineated which school officials are appro-

priate persons.” 604 F.3d at 1254–55. And we appeared to resolve that tension

by adopting the following “elaboration of the Supreme Court’s ‘appropriate

person’ requirement”—“that the official with notice of the harassment must

be ‘high enough up the chain-of-command that his acts constitute an official

decision by the school district itself not to remedy the misconduct.’” Id. at

1255 (quoting Floyd II, 171 F.3d at 1264). We accept Broward’s resolution of

the tension and its articulation of our post-Gebser “appropriate person” stand-

ard.

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10 Opinion of the Court 23-11670

Taking as true the facts alleged in the complaint, only Erd-

mann, Frisbey, and Moore are appropriate persons for Title IX pur-

poses. Erdmann was the Athletic Director, Frisbey was the Senior

Associate Athletic Director, and Moore was the Associate Athletic

Director. All were “school administrators” with authority over

Meeks-Rydell, and the University doesn’t even dispute that they

qualify as appropriate persons.

But Chilcoat and Gandolfo, Meeks-Rydell’s assistant

coaches, were not appropriate persons. Aside from multiple bald

assertions, the players don’t provide any explanation why Chilcoat

and Gandolfo qualify. To be clear, their designation as assistant

coaches—notably, beneath Meeks-Rydell on the organizational

chart—doesn’t make them appropriate persons. As assistant

coaches, Chilcoat and Gandolfo were at the bottom of the “chain

of command” described in Broward. See 604 F.3d at 1254–55. Our

decision in Hawkins makes this even clearer: As already noted, we

said there that in a Title IX case involving harassment by teachers

or staff, the category of appropriate persons is “limited” to a “read-

ily identifiable number of school administrators.” Hawkins, 322

F.3d at 1287. In no way were Chilcoat and Gandolfo “school ad-

ministrators,” and the players make no attempt to argue otherwise.

See also Burks v. Board of Trs. of Fla. A & M Univ., 505 F. Supp. 3d

1273, 1280 (N.D. Fla. 2020) (holding similarly that plaintiffs had not

proven that an assistant coach was an “appropriate person”). 4

4 Courts have disagreed over whether an employee must be the alleged perpe-

trator’s supervisor in order to qualify as an appropriate person. Compare Rosa

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Comparisons to those we have held to be—and not to be—

appropriate persons further confirm that Chilcoat and Gandolfo

don’t qualify. In Broward, for instance, we held that a high school

principal was an appropriate person to receive a report of sexual

assault by a teacher. 604 F.3d at 1255–56. In Floyd I, however, we

held that not even a school security guard’s direct supervisor was

an appropriate person to whom to report the guard’s alleged sexual

assault. Floyd v Waiters, 133 F.3d 786, 788, 793 (11th Cir. 1998) (Floyd

I), vacated by 525 U.S. 802 (1998), reinstated in 171 F.3d 1264 (11th

Cir. 1999). 5

H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th Cir. 1997) (holding

that an appropriate person is “a school official who . . . was invested by the

school board with the duty to supervise the employee and the power to take

action that would end such abuse”), with Wadsworth v. Nguyen, 129 F.4th 38,

70 (1st Cir. 2025) (holding that a high-school assistant principal who had been

designated by the superintendent as a proper person to whom to make Title

IX complaints was an appropriate person to receive a report of abuse by that

high school’s principal). We needn’t decide that issue today, because nothing

here turns on Chilcoat and Gandolfo’s status as supervisors or assistants.

5 The players cite three non-binding district court decisions that, they say, hold

that those in “assistant” positions can qualify as “appropriate persons.” See Br.

of Appellants at 30–31. None helps them. Two involved student-on-student

sexual harassment. See S.M. v. Sealy Indep. Sch. Dist., No. H-20-705, 2021 WL

1599388, at *1 (S.D. Tex. Apr. 23, 2021); J.B. v. Klein Indep. Sch. Dist., No. 4:19-

CV-0210, 2020 WL 813020, at *6–7 (S.D. Tex. Feb. 18, 2020), report and recom-

mendation adopted, 2020 WL 1156121 (S.D. Tex. Mar. 9, 2020). And the third

had nothing to say about the assistant issue. See C.K. v. Wrye, No. 4:15-00280,

2015 WL 5099308, at *6 (M.D. Pa. Aug. 31, 2015) (addressing a teacher’s aide

who had been accused of harassment, not one who had received a report of

another’s harassment).

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12 Opinion of the Court 23-11670

* * *

For the foregoing reasons, we hold that Erdmann, Frisbey,

and Moore were “appropriate persons” to receive notice of miscon-

duct for Title IX purposes, but that Chilcoat and Gandolfo were

not. In the next section, we will determine whether Erdmann, Fris-

bey, or Moore received the required “actual notice.”

2

As relevant here, “actual notice” under Title IX could have

been accomplished in either of two ways. First, and most obvi-

ously, the players could show that an appropriate person knew that

Meeks-Rydell was sexually harassing them. See J.F.K. v. Troup Cnty.

Sch. Dist., 678 F.3d 1254, 1260 (11th Cir. 2012). Second, the players

could demonstrate that an appropriate person knew that Meeks-

Rydell was sexually harassing other students in a manner sufficient

to alert that person of the possibility that she might also be sexually

harassing the players. See id. In either case, “lesser harassment may

still provide actual notice of sexually violent conduct.” Broward,

The players’ reliance on Wilborn v. Southern Union State Community College, 720

F. Supp. 2d 1274 (M.D. Ala. 2010), is similarly misplaced. To the extent the

decision there can be understood to hold that a low-level employee can be an

appropriate person if she is designated to receive complaints and has an obli-

gation to forward them to those with authority to act, it contravenes the rule

that Title IX requires actual, rather than constructive, notice to an official with

authority to take corrective action. See Gebser, 524 U.S. at 285, 290; see also Ross

v. Univ. of Tulsa, 859 F.3d 1280, 1289–90 (10th Cir. 2017) (holding that one who

“merely pass[es] on a report of sexual harassment to someone authorized to

take corrective action” cannot be an appropriate person).

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604 F.3d at 1258. “[L]esser harassment” includes actions like grop-

ing, inappropriate touchings that couldn’t be accidental, and mak-

ing “‘lewd suggestions.’” Id. at 1258–59 (quoting Williams v. Board

of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1290 (11th Cir.

2007)). But it doesn’t include “minimal and far afield” conduct such

as making “sexually suggestive comments during class” or touch-

ings in a context that “may have been appropriate or accidental,

such as [at] an athletic event.” Id. at 1258 (citing Gebser, 524 U.S. at

291, and Davis v. DeKalb Cnty. Sch. Dist., 233 F.3d 1367, 1373 (11th

Cir. 2000)). Importantly, the plaintiff needn’t herself be the one to

provide the notice. See id. at 1257.

The players allege seven ways in which they say an appropri-

ate person had actual notice:

1. First, Chilcoat and Gandolfo witnessed Meeks-Rydell’s har-

assment on an ongoing basis. Third Am. Compl. ¶¶ 61, 179–

81.

2. Second, the University knew or should have known about

Meeks-Rydell’s reputation for “engaging in sexual harass-

ment” in a previous job. Id. ¶¶ 168–69.

3. Third, Johnson’s mother gave Frisbey notice of Meeks-Ry-

dell’s abuse in February 2019 by complaining to him about

“highly concerning and improper practices.” 6 Id. ¶¶ 135–36.

6 In their brief, the players claim that this report was to Erdmann, see Br. of

Appellants at 34–35, but their complaint indicates that the report was made to

Frisbey, see Third Am. Compl. ¶¶ 135–36.

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14 Opinion of the Court 23-11670

4. Fourth, Moore admitted knowledge of the abuse in a January

2020 meeting when he pressured Tipping to write a letter to

the NCAA “stating that she was leaving the University due

to concerns about fires in Australia rather than the physical,

emotional, and sexual abuse and harassment she suffered” at

the hands of Meeks-Rydell. Id. ¶ 93.

5. Fifth, Maddux and Soboleski gave Erdmann and Frisbey no-

tice in December 2020 about Meeks-Rydell’s “physical, emo-

tional, and sexual” abuse. Id. ¶ 152.

6. Sixth, Kazee and her parents met with Frisbey and Meeks-

Rydell in December 2020 to complain that the coaches had

denied players medical attention and that Meeks-Rydell had

engaged in other “inappropriate conduct.” Id. ¶ 125.

7. Seventh, Soboleski gave Erdmann and Frisbey notice a sec-

ond time in December 2020, telling them that Meeks-Rydell

had summoned her to her hotel room several times for “sex-

ual conduct”—including, in one instance, forcing Soboleski

to lie in bed with her and telling Soboleski to “use her []

boobs as a pillow.” Id. ¶ 159.

The district court held that only the last report provided actual no-

tice. We agree.

To begin, no notice to either Chilcoat or Gandolfo (No. 1

above) could have sufficed because, as already explained, they were

not “appropriate persons.”

The reports of Johnson’s mother (No. 3) and Kazee (No. 6)

were also insufficient. According to the complaint, those reports

alleged only “inappropriate conduct” and “improper practices.”

See id. ¶¶ 125, 136. Title IX requires an allegation of sexual

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23-11670 Opinion of the Court 15

harassment—a generalized allegation of other misconduct, or even

abuse, is not enough. See Gebser, 524 U.S. at 281. Neither of the

allegations permits a reasonable inference of sexual harassment.

Save for Soboleski’s second report—which we’ll address sep-

arately—all the remaining reports fail Iqbal’s pleading require-

ments. Despite the considerable deference that courts give to facts

alleged in a complaint at the motion-to-dismiss stage, conclusory

statements—devoid of any factual support—aren’t assumed to be

true. See Iqbal, 556 U.S. at 678–79. The allegation concerning

Meeks-Rydell’s reputation at a previous university (No. 2) is illus-

trative. The complaint states only—and baldly—that the Univer-

sity knew or should have known about Meeks-Rydell’s reputation

for “engaging in sexual harassment” in a previous job—without

stating, or even implying, who at the University had that

knowledge. Third Am. Compl. ¶¶ 168–69. The complaint is no

more specific regarding Soboleski’s first report, which she provided

with Maddux (No. 5), or Tipping’s meeting with Moore (No. 4). It

states only that Soboleski and Maddux complained about “sexual

abuse[]” and that Moore pressured Tipping to pen the letter to

cover up “sexual abuse and harassment.” 7 Id. ¶¶ 93, 152. Given

that the governing legal standard requires “actual notice of sexual

7 In his partial dissent, Judge Jordan contends that the complaint’s allegation

regarding Tipping’s meeting with Moore adequately alleges notice because we

have to draw reasonable inferences from the complaint. See Jordan Op. at 2.

But there aren’t any reasonable inferences to be drawn from a mere thread-

bare recital of one of Title IX’s elements. See Iqbal, 556 U.S. at 678–79.

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16 Opinion of the Court 23-11670

harassment,” Broward, 604 F.3d at 1254, the complaint’s bare asser-

tions are insufficient—they are simply conclusory legal statements

not entitled to deference, see Iqbal, 556 U.S. at 678–79. 8

Soboleski’s second report (No. 7), by contrast, provided spe-

cific claims about specific sexual assaults—and provided it to appro-

priate persons, Erdmann and Frisbey. See J.F.K., 678 F.3d at 1260.

Accordingly, we will consider whether Erdmann and Frisbey exhib-

ited “deliberate indifference” to the conduct alleged in that report.

3

A defendant exhibits deliberate indifference for Title IX pur-

poses if his or her “response to the harassment or lack thereof is

clearly unreasonable in light of the known circumstances.”

Broward, 604 F.3d at 1259 (citation and quotation marks omitted).

“[T]he deliberate indifference must, at a minimum, ‘cause [stu-

dents] to undergo’ harassment or ‘make them liable or vulnerable’

to it.” Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S.

629, 645 (1999) (citation omitted). The district court held that the

University wasn’t deliberately indifferent because Meeks-Rydell

was placed on leave the month after Soboleski’s December 2020

meeting with Erdmann and Frisbey, resigned the month after that,

and the complaint didn’t allege any further contact between

8 The December 2020 reports of Maddux and Soboleski (No. 5) and Kazee (No.

6) also fail to establish Title IX liability because, as explained below, neither

Erdmann nor Frisbey exhibited deliberate indifference in responding to those

reports. See infra at 16–17.

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23-11670 Opinion of the Court 17

Meeks-Rydell and the players following Soboleski’s meeting. Be-

fore us, the players don’t dispute the district court’s holding in that

respect but, rather, argue that an appropriate person at the Univer-

sity was put on notice earlier. But for reasons already explained,

only Soboleski’s December 2020 report provided actual notice to

an appropriate person of any Title IX-triggering conduct. And we

agree with the district court that the University was not deliber-

ately indifferent in its response to that notice.

* * *

For the foregoing reasons, we affirm the district court’s dis-

missal of the players’ Title IX claims for failure to state a claim.

B

To state a claim under 42 U.S.C. § 1983, a plaintiff must

(1) “allege the violation of a right secured by the Constitution and

laws of the United States” and (2) “show that the alleged depriva-

tion was committed by a person acting under color of state law.”

West v. Atkins, 487 U.S. 42, 48 (1988). Here, the players have asserted

violations of their Fourteenth Amendment “substantive due pro-

cess” rights. The parties quibble over whether the underlying right

is an “interest in [] bodily integrity,” which is said to include a right

against “sexual harassment and excessive corporal punishment,”

or, instead, a “right to be free from unwanted touching by a college

coach.” See Order Granting Mot. to Dismiss 43–44, 52, Doc. 74; Br.

of Appellee Meeks-Rydell 24; Reply Br. 13. Regardless of the inter-

est claimed, though, the test for whether “executive action” vio-

lates substantive due process—as opposed to legislative action of

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18 Opinion of the Court 23-11670

the sort clearly not at issue here—is whether it “‘shocks the con-

science.’” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)

(quoting Rochin v. California, 342 U.S. 165, 172 (1952)); see id. (“[The]

criteria to identify what is fatally arbitrary differ depending on

whether it is legislation or a specific act of a governmental officer

that is at issue.”); see also Nix v. Franklin Cnty. Sch. Dist., 311 F.3d

1373, 1375 (11th Cir. 2002) (“As a general rule, to prevail on a claim

of a substantive due-process violation” involving executive action,

“a plaintiff must prove that a defendant’s conduct ‘shocks the con-

science.’” (citation omitted)).

Of course, a plaintiff suing under § 1983 must also overcome

qualified immunity. In a qualified-immunity analysis, the public of-

ficial “‘must first prove that [s]he was acting within the scope of

[her] discretionary authority when the allegedly wrongful acts oc-

curred.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)

(quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). Then,

“the burden shifts to the plaintiff” to show “a constitutional viola-

tion” that is “clearly established.” Id. (citations and quotation

marks omitted). “A right may be clearly established for qualified

immunity purposes in one of three ways: (1) case law with indis-

tinguishable facts clearly establishing the constitutional right; (2) a

broad statement of principle within the Constitution, statute, or

case law that clearly establishes a constitutional right; or (3) con-

duct so egregious that a constitutional right was clearly violated,

even in the total absence of case law.” Lewis v. City of W. Palm Beach,

561 F.3d 1288, 1291–92 (11th Cir. 2009) (citations omitted).

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23-11670 Opinion of the Court 19

Applying these standards, the district court held (1) that the

players failed to state a claim under § 1983 because the defendants’

actions were not “conscience-shocking,” and (2) regardless, that the

players hadn’t shown that the law was sufficiently clearly estab-

lished to overcome qualified immunity. The players acknowledge

that the University employees were acting within the scope of their

discretionary authority, but they insist that they nevertheless vio-

lated clearly established law. We needn’t address the merits of the

players’ § 1983 claim because we conclude that the players haven’t

shown that any University employee’s conduct violated clearly es-

tablished substantive-due-process principles. We therefore hold

that they are entitled to qualified immunity. 9

1

The players haven’t provided any “case law with indistin-

guishable facts clearly establishing the constitutional right.” Lewis,

561 F.3d at 1291–92. Indeed, at oral argument, the players con-

ceded that they aren’t proceeding on that first path. See Oral Arg.

9 Erdmann, Frisbey, and Moore aren’t subject to supervisory liability, either.

Supervisory liability can arise only “(1) when a ‘history of widespread abuse

puts the responsible supervisor on notice of the need to correct the alleged

deprivation, and he fails to do so’ or (2) when a supervisor’s ‘improper custom

or policy results in deliberate indifference to constitutional rights.’” Broward,

604 F.3d at 1266 (quoting Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.

1999)). As already explained, the players haven’t sufficiently pleaded that Erd-

mann, Frisbey, or Moore knew of widespread abuse in Meeks-Rydell’s past,

nor have they made any attempt to plead a custom or policy that led to Meeks-

Rydell’s misconduct.

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20 Opinion of the Court 23-11670

at 37:30–38:03. And with good reason. While many of the players’

allegations are serious and, if true, may well indicate violations of

state law, the bar set by our substantive-due-process precedent is

very high—far too high, at the very least, to clearly establish the

unconstitutionality of Meeks-Rydell’s alleged conduct.

Consider first the players’ allegations regarding Meeks-Ry-

dell’s, Chilcoat’s, and Gandolfo’s non-sexual conduct—e.g., forcing

them to play through injuries, denying them medical care and ac-

cess to inhalers, slapping them, and spiking volleyballs toward their

faces. Far from supporting the players’ position, our most factually

analogous precedents tend to undermine it, and in any event don’t

clearly establish the law in the players’ favor. See, e.g., Davis v. Carter,

555 F.3d 979, 984 (11th Cir. 2009) (holding that a coach’s actions

didn’t shock the conscience when he ignored a player’s physical

struggles during a workout session, even where the player eventu-

ally collapsed and died); T.W. ex rel. Wilson v. Sch. Bd. of Seminole

Cnty., 610 F.3d 588, 599 (11th Cir. 2010) (finding it “inconceivable”

that a teacher’s conduct in intentionally tripping a developmentally

disordered student and causing him to stumble would shock the

conscience). We haven’t found conscience-shocking behavior in

any remotely similar case in the absence of a serious injury of the

sort that is lacking here. See, e.g., Neal ex rel. Neal v. Fulton Cnty. Bd.

of Educ., 229 F.3d 1069, 1076 (11th Cir. 2000) (holding that a plaintiff

stated a claim for conscience-shocking behavior where he alleged

that a coach struck a student in the face with a weight lock, knock-

ing his eyeball out of its socket and causing permanent blindness);

Kirkland ex rel. Jones v. Greene Cnty. Bd. of Educ., 347 F.3d 903, 904–05

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23-11670 Opinion of the Court 21

(11th Cir. 2003) (holding that a plaintiff’s allegations of conscience-

shocking behavior survived summary judgment where a teacher

repeatedly struck a child in the ribs, back, and head with a metal

cane, causing continuing migraines).

Nor are there any factually analogous decisions that clearly

established the unconstitutionality of Meeks-Rydell’s alleged sexual

misconduct—e.g., the hotel-related incidents, kissing her players,

and engaging in “floor hugs.” Again, it may well be that Meeks-

Rydell’s actions violated some state law, but no precedent to which

we have been pointed—or that we have found—reveals a clear vio-

lation of the players’ substantive-due-process rights. See, e.g., Skin-

ner v. City of Miami, 62 F.3d 344, 348 (11th Cir. 1995) (holding that a

firefighter failed to prove conscience-shocking behavior where sev-

eral of his colleagues handcuffed him while another rubbed his

scrotum on top of the victim’s head in a hazing ritual).

2

This is also not a case in which a “broad statement of princi-

ple within the Constitution, statute, or case law . . . clearly estab-

lishes a constitutional right.” Lewis, 561 F.3d at 1292. We have ex-

plained that a qualifying “broad statement” cannot be “too gen-

eral” and must “put every reasonable officer” on notice that it

“‘clearly prohibit[s] the officer’s conduct in the particular circum-

stances before him.’” Baxter v. Roberts, 54 F.4th 1241, 1268 (11th Cir.

2022) (alteration in original) (quoting District of Columbia v. Wesby,

583 U.S. 48, 63 (2018)). For example, in the First Amendment con-

text, we have held that the rules against viewpoint discrimination

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22 Opinion of the Court 23-11670

and allowing licensing authorities to exercise unbridled discretion

constitute the kinds of broad principles capable of clearly establish-

ing the law for qualified-immunity purposes. See Jarrard v. Sheriff of

Polk Cnty., 115 F.4th 1306, 1324–26 (11th Cir. 2024).

We have nothing of the sort here. With respect to the alle-

gations of non-sexual corporal punishment, the players point to

Neal as ostensibly establishing a qualifying broad statement of prin-

ciple. That is incorrect. To the contrary, Neal focuses on what

kinds of facts are relevant, notes that there are objective and sub-

jective components of the shocks-the-conscience analysis, and con-

siders three factors in a “totality of the circumstances” test. 229

F.3d at 1075–76 & n.3. These may be helpful guideposts bearing on

the analysis of allegedly conscience-shocking behavior on the mer-

its, but they don’t—and don’t even purport to—establish a “broad

statement of principle.” Lewis, 561 F.3d at 1292. And with respect

to the allegations of sexual misconduct, the players don’t point to

any cases clearly establishing a relevant “broad statement,” nor are

we aware of any.

3

Finally, the players’ allegations don’t rise to the level of “con-

duct so egregious that a constitutional right was clearly violated,

even in the total absence of case law.” Lewis, 561 F.3d at 1292. “This

method is reserved for ‘extreme circumstances’ presenting ‘partic-

ularly egregious facts’ that would have put any reasonable officer

on notice that his actions ‘offended the Constitution.’” Baxter, 54

F.4th at 1268 (quoting Taylor v. Riojas, 592 U.S. 7, 8–9 (2020)). So-

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23-11670 Opinion of the Court 23

called “obvious clarity” cases are few and far between, and they in-

variably deal with conduct that is beyond any reasonable pale. See,

e.g., Taylor, 592 U.S. at 8–9 (leaving inmate for six days in a cell cov-

ered “nearly floor to ceiling” in feces and in another cell that was

“frigidly cold” and had only a clogged drain in the floor to dispose

of bodily wastes); Hope v. Pelzer, 536 U.S. 730, 733–35 (2002) (hand-

cuffing inmate to “hitching post” for seven hours in the hot sun

with no bathroom breaks and very little water); Lee v. Ferraro, 284

F.3d 1188, 1199 (11th Cir. 2002) (slamming arrestee’s head against

the trunk of her car after she had been “arrested, handcuffed, and

completely secured”). The conduct alleged here, while most re-

grettable, isn’t in that universe.

* * *

For the foregoing reasons, we affirm the district court’s dis-

missal of the players’ § 1983 claims on qualified-immunity grounds.

III

We AFFIRM the district court’s order dismissing the players’

Title IX claims and § 1983 claims.

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23-11670 Jordan, J., Dissenting in Part 1

JORDAN, Circuit Judge, Concurring in Part and Dissenting in Part:

I join Judge Newsom’s opinion for the court except with re-

spect to the Title IX claim of Caitlin Tipping, as to which I respect-

fully dissent. In my view, Ms. Tipping sufficiently (i.e., plausibly)

alleged notice to an “appropriate person”—Associate Athletic Di-

rector Chris Moore.

The operative complaint alleges that Coach Alexis Meeks-

Rydell sexually harassed Ms. Tipping. This harassment included

“butt pinching” and “forced hugs” by Coach Meeks-Rydell. In ad-

dition, Coach Meeks-Rydell “forced” Ms. Tipping into telling her “I

love you.” See Third Am. Compl. at 21 ¶ 85.

On the issue of notice, the complaint alleges that, after Ms.

Tipping was forced to leave the University and its volleyball team

due to the sexual harassment and abusive conduct, Coach Meeks-

Rydell and Associate Athletic Director Moore scheduled a meeting

with her in January of 2020. See id. at 22 ¶¶ 90–91. At that meeting,

Coach Meeks-Rydell and Associate Athletic Director Moore sought

to intimidate Ms. Tipping by falsely telling her she would be subject

to a $6,000 fine for leaving the University. See id. at 22 ¶ 92. Then,

in “order to perpetuate the physical and emotional abuse and sex-

ual harassment and conceal . . . such wrongful and illegal conduct

from the NCAA,” Coach Meeks-Rydell and Associate Athletic Di-

rector Moore convinced Ms. Tipping they could take care of the

falsely manufactured fine if she wrote a letter saying she was leav-

ing the University due to concerns in Australia “rather than the

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2 Jordan, J., Dissenting in Part 23-11670

physical, emotional, and sexual abuse and harassment she suf-

fered.” Id. at 22 ¶ 93. As a result of this coercion, Ms. Tipping pro-

vided the requested letter. See id. at 23 ¶ 94.

From my perspective, Ms. Tipping has plausibly alleged that

Associate Athletic Director Moore (an “appropriate person” for Ti-

tle IX purposes) had “actual knowledge of discrimination in the

[University’s] programs and failed adequately to respond.” Gebser

v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). As alleged,

Associate Athletic Director Moore, together with Coach Meeks-

Rydell—the alleged harasser—made up a story about a $6,000 fine

in order to hide from the NCAA the physical and emotional abuse

and sexual harassment Ms. Tipping suffered. A “complaint at-

tacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007). And we have to draw reasonable inferences from the

complaint at the motion-to-dismiss stage. See Worthy v. City of Phe-

nix City, Ala., 930 F.3d 1206, 1214 (11th Cir. 2019). Persons in the

positions of Coach Meeks-Rydell and Associate Athletic Director

Moore would not manufacture the threat of a $6,000 fine unless

there was something they wished to hide, and the complaint alleges

that one of these things was Coach Meeks-Rydell’s sexual harass-

ment of Ms. Tipping.

I join the court’s opinion except as it relates to Ms. Tipping’s

Title IX claim.