Wills v. Brown University

USCA1 Opinion

United States Court of Appeals

For the First Circuit

No. 98-1701

MARKETA WILLS,

Plaintiff, Appellant,

v.

BROWN UNIVERSITY, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Boudin, Lynch, and Lipez, Circuit Judges.

Sheila A. Engelmeier with whom Shane H. Anderson and Mackall,

Crounse & Moore, PLC were on brief for appellant.

Steven M. Richard with whom Peter J. McGinn, Tillinghast Licht

& Semonoff Ltd., Beverly E. Ledbetter, and Janice E. Wright were on

brief for appellees.

July 15, 1999

BOUDIN, Circuit Judge. This appeal involves a lawsuit

seeking damages for sexual harassment brought in the district court

by the plaintiff, Marketa Wills, against Brown University and one

of its former teachers, Professor Kayode Adesogan. The principal

issues on appeal, but not the only ones, involve Title IX of the

Education Amendments of 1972, 20 U.S.C. 1681 et seq. The

background events and the proceedings in the district court are as

follows.

Adesogan, a chemistry professor at a Nigerian university,

taught as a visiting professor at Brown between 1991 and 1994. In

the fall semester of 1992, Wills--then a sophomore at Brown--took

a course in organic chemistry. Although assigned to a section

taught by Professor Ronald Lawler, Wills began to attend lectures

in the other organic chemistry section, this one taught by

Adesogan. Wills had earlier introduced herself to Adesogan at a

social event and attended a small study group held by Adesogan in

addition to his formal lectures.

On December 9, 1992, Wills sought out Adesogan in his

office because she was having difficulty in the course. During

this encounter, while purporting to pray with Wills, Adesogan twice

pulled Wills into his lap, allegedly put his hand under her shirt,

rubbed her stomach and twice touched or rubbed her breasts. The

next day Wills met with Dean Karen Romer, who was then associate

dean of academic affairs and had special responsibility for sexual

assault or harassment claims; on December 14, 1992, Wills filed a

written complaint. This incident lies at the core of Wills's

subsequent suit against Brown and Adesogan.

In response to Wills's written complaint, Provost Frank

Rothman and Dean of Faculty Bryan Shepp met with Wills on December

14, 1992, and then separately with Adesogan on December 15, 1992.

Adesogan admitted hugging Wills, drawing her onto his lap and

touching her breast, although he denied placing his hand under

Wills's shirt. By letter dated December 23, 1992, Rothman placed

Adesogan on probation, stating in a written reprimand that a

further incident would be grounds for immediate dismissal but that

this appeared to be Adesogan's first instance of improper behavior

during his stay at Brown.

Rothman was mistaken. In October 1992, Adesogan had

inappropriately hugged and touched another student, Laura

Schleussner, who was enrolled in his section and had come to meet

with him for help. Schleussner had then met with Dr. Barbara

Tannenbaum, a lecturer at Brown, who was acting as an ombudswoman

for Brown to oversee sexual harassment services. At trial,

Schleussner and Tannenbaum gave somewhat different versions of the

meeting, especially as to how much detail Schleussner provided. It

appears that Schleussner wanted to remain anonymous but did want

something done to prevent repetitions.

Schleussner had also complained to a chemistry department

lecturer whom she knew and trusted, and that lecturer spoke in due

course with Lawler, who taught the other section of organic

chemistry. Lawler in turn told Adesogan that students would feel

more comfortable if Adesogan kept his door open when conferring

with students, but Lawler--who may have known few details--did not

further advise the provost or anyone else in Brown's

administration.

In February 1993, Rothman accepted the recommendation of

the chemistry department that Adesogan be retained for another year

and given a raise. In September 1993, another student, Tilly

Gurman, filed a complaint that Adesogan had sexually harassed her

in the fall of 1992. Romer informed Rothman, and Romer suggested

no action because the Gurman incident had occurred before Adesogan

had been reprimanded, and both Romer and Rothman believed that the

warning to Adesogan in December 1993 had been sufficient.

In January 1994, another student, Amy Sanford, reported

to Romer that between the fall of 1993 and January 1994, Adesogan

had engaged in inappropriate conduct with Sanford (e.g., by

repeated hugs and kisses), and Sanford told Romer that Adesogan had

previously harassed another friend. Romer reported the matter to

her immediate superior but it was not carried further, apparently

because Sanford had not wanted it officially pursued.

Wills, after her own experience with Adesogan in December

1992, had not sought any further contact with him. She saw him

thereafter on two different occasions: first, on an unspecified

date, Adesogan entered a drugstore where Wills was working, and

Wills immediately retreated to a back room; second, in January

1994, Wills enrolled in another chemistry course and discovered

that Adesogan was the teacher. Wills testified that she rarely

attended the lectures after the first session, but Adesogan did not

long remain at Brown. During March 1994, Brown received further

complaints of harassment by Adesogan from six or more other female

students. That same month Brown dismissed Adesogan. Wills

ultimately graduated from Brown and later enrolled in medical

school in Pennsylvania.

In December 1995, just short of three years after her

meeting with Adesogan, Wills filed a complaint in district court

against Brown and Adesogan. The complaint set forth eight counts

against Brown, Adesogan, or both, under state law (counts I through

VIII) and two further federal claims against Brown under Title IX,

one designated "hostile environment sex harassment" (count IX) and

the other designated "quid pro quo sex harassment" (count X).

Adesogan never responded, and the case proceeded solely against

Brown. A default judgment in the amount of $275,000 was later

entered against Adesogan.

In due course, Brown moved for summary judgment as to all

counts against it. Following a hearing on November 24, 1997, the

district court granted summary judgment in Brown's favor as to the

claims for negligent hiring (count II), negligent retention (but

not negligent supervision, which was a part of the same count III),

negligent entrustment (count IV), and intentional and negligent

infliction of emotional distress (counts V and VI). Thereafter,

the court denied summary judgment on Wills's claims based on a

hostile environment theory of sex discrimination. This theory was

explicitly set forth in count IX based on Title IX (and by

implication in count VII under the state civil rights statute).

This disposition left for trial four separate claims

against Brown: assault and battery (count I), negligent

supervision (count III), and sex discrimination based both on a

hostile environment and a quid pro quo theory (counts IX and X).

Trial began on March 19, 1998, and when Wills rested her opening

case, the district court granted Brown's motion for a directed

verdict only as to the assault and battery claim and the quid pro

quo sex discrimination claim. Fed. R. Civ. P. 50(a). Following

further evidence, the negligent supervision and hostile environment

claims were submitted to the jury.

On March 31, 1998, the jury returned a verdict in Brown's

favor on both claims. Thereafter Wills filed a post-trial motion

seeking judgment notwithstanding the verdict and, alternatively, a

new trial on these same claims. Fed. R. Civ. P. 50, 59. The

district court denied Wills's motion and entered judgment in favor

of Brown. Wills now appeals, challenging (in her main argument)

the district court's exclusion of evidence on her hostile work

environment claim which was rejected by the jury. She also attacks

the district court's grant of summary judgment on three of the

state tort claims, its grant of directed verdicts on her assault

and battery and her quid pro quo claims, and its denial of a new

trial on the two claims rejected by the jury.

1. Title IX forbids schools that receive federal funding

from discriminating against students "on the basis of sex." 20

U.S.C. 1681(a). Starting from the now-accepted premise that

sexual harassment can constitute sex discrimination, Meritor

Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), the Supreme Court

has endorsed two different, although related, theories as to how

such harassment can constitute sex discrimination either in the

workplace (Title VII) or school context (Title IX).

One theory, popularly known as "quid pro quo" harassment

or discrimination, occurs most often when some benefit or adverse

action, such as change in salary at work or a grade in school, is

made to depend on providing sexual favors to someone in authority,

Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir.

1988); the other theory, under the rubric "hostile environment,"

applies where the acts of sexual harassment are sufficiently severe

to interfere with the workplace or school opportunities normally

available to the worker or student. Meritor, 477 U.S. at 66 ; Davis

v. Monroe County Bd. of Educ., 119 S. Ct. 1661 (1999). In this

case, Wills advanced both theories against Brown--one in count IX

and the other in count X. But the evidence now in dispute was

offered as support for the hostile environment claim (the quid pro

quo claim never reached the jury).

Broadly speaking, a hostile environment claim requires

the victim to have been subjected to harassment severe enough to

compromise the victim's employment or educational opportunities

and, in the case of a Title IX claim (but not under Title VII), the

institution must have had actual knowledge of the harassment and

have exhibited deliberate indifference to it. Gebser, 118 S. Ct.

at 1997-99. If the institution takes timely and reasonable

measures to end the harassment, it is not liable under Title IX for

prior harassment. Id. Of course, if it learns that its measures

have proved inadequate, it may be required to take further steps to

avoid new liability.

From the outset, Wills's main claim based on a hostile

environment theory has been that Wills was harassed by Adesogan on

December 9, 1992, and that Brown is responsible for Adesogan's

wrongdoing under Title IX because Brown had prior notice of the

earlier Schleussner episode but did nothing to prevent the threat

to other students such as Wills. Wills wanted the jury also to

know that after her own harassment on December 9, Brown did not

immediately remove Adesogan from the faculty or otherwise take

action beyond the reprimand; and, far more important, she wanted it

to know that Brown later received additional complaints from others

in 1993 and 1994 that Adesogan had harassed a half-dozen or more

additional victims. The admissibility issue was presented and

resolved in limine.

In excluding the evidence, the district judge reasoned

that if Brown had sufficient prior knowledge of the Schleussner

episode--and this was a fact question--then it was responsible for

Adesogan's action on December 9, 1992, regardless whether it later

took adequate remedial steps and regardless whether it got later

complaints from other students. Conversely, even if the remedial

steps were inadequate and other students were later harassed, this

did not create liability on Brown's part for Adesogan's harassment

by Wills on December 9, 1992, before the reprimand and before the

complaints received in 1993 and 1994. On this theory, the judge

drew a sharp line between what happened before and after December

9, 1992.

At different times, Wills has offered different theories

as to why the post-December 9 evidence in question is relevant to

Brown's liability, but the argument principally made in the

district court--and the only argument fairly developed in her

opening brief in appeal--is this: the showing of an inadequate

response to harassment is a standard issue in Title IX litigation

and (says Willis) she was therefore entitled to show that Brown's

response in December 1992 was inadequate and failed to prevent the

harassment of other students thereafter. Wills has cited

throughout a set of cases, including one of our own, where

inadequate response evidence was central. See, e.g., Gebser, 118

S. Ct. at 2000; Lipsett, 864 F.2d at 902-07 .

The difficulty for Wills is that evidence of an

inadequate response is pertinent to show fault and causation where

the plaintiff is claiming that she was harassed or continued to be

harassed after the inadequate response. See Gebser, 118 S. Ct. at

1999; Lipsett, 864 F.2d at 907 . But here, as already noted,

Wills's claim was of a single specific harassment incident that

occurred before the reprimand and the later complaints (albeit one

that caused continuing damages). There is no mechanical rule that

makes such evidence relevant or irrelevant in the abstract:

relevance depends on the facts and the theory of the case being

pressed.

Here, in relation to Brown's liability for the December

9 incident, the reprimand evidence was perhaps thinly relevant

because, although it had nothing to do with whether Brown had prior

notice before December 9 or whether Adesogan's behavior on that

occasion violated the statute, it could arguably have been admitted

as casting some backward light on Brown's general attitude--and

therefore on the issue whether Brown was "deliberately indifferent"

in its handling of the Schleussner claim and the resulting exposure

of other students, including Wills, to Adesogan's behavior. But

the reprimand was at best marginal to the main issues at trial--the

key evidence on "deliberate indifference" was what Brown knew and

what it did in response to Schleussner's complaint--and, taken

alone, the reprimand was more favorable to Brown than to Wills

(Brown wanted it in evidence). As it happens, the jury later

learned that Adesogan had not been fired until 1994.

Wills's real hope was the evidence as to later claims

made by other students, Brown's arguably casual treatment of the

Sanford claims in January 1994, and the obvious harm inflicted on

others by Adesogan's continuing depredations. Yet, this evidence

is even more remote to Brown's general attitude in 1992, had a

potential for severe prejudice, and would have required the trial

to explore circumstances surrounding claims and acts of harassment

of other victims which--unlike the Schleussner episode--had nothing

to do with the vital question whether Brown had notice prior to

December 1992.

In her reply brief on appeal, Wills offers a different

theory entirely. In effect, she asserts that Adesogan's harassment

of her continued after December 1992 because Adesogan remained as

a teacher and Wills was shocked and upset to find him in January

1994 as her teacher in new chemistry course. Her deposition gives

a somewhat tamer description of her reaction, but in any event

Wills was not required to take any course from Adesogan. Wills's

other exposure to Adesogan was a chance glimpse of him in a

drugstore at some earlier, unidentified point.

It is sufficient answer that theories offered for the

first time in the reply brief are not preserved. Executive Leasing

Corp. v. Banco Popular, 48 F.3d 66 , 67-68 & n.3 (1st Cir. 1995).

Indeed, it is doubtful that Wills said enough in the district court

to preserve the argument for appeal; at best, there are a few

hints. But even if preserved below, the argument has to be renewed

in the opening brief on appeal, so that the appellee has a chance

to respond. Reply briefs are to counter the appellee's arguments,

not to offer new theories of error for the first time.

Nevertheless, Wills's belated continuing harassment

theory is a very weak one on these facts. On some cases, merely to

maintain a harasser in a position of authority over the victim,

after notice of prior harassment, could create new liability. But

it would not be easy to describe Adesogan's mere presence on a

large campus as harassment of Wills, or to describe Brown's

reasonably firm reprimand as representing "deliberate indifference"

under Davis. 119 S. Ct. at 1673 . Brown's treatment of Sanford's

January 1994 complaint is a closer question on the latter issue,

but even here Sanford's request for anonymity is not irrelevant and

the connection to Wills is slight.

However, we need not decide whether this continuing

harassment theory could be made to work on the present facts. Even

if this theory was fairly presented to the district judge which we

doubt--Wills did argue that she had suffered damages after December

1992 but that is a quite different matter--it was not preserved on

appeal. Needless to say, this conclusion is not an endorsement of

Brown's handling of the Adesogan debacle, which was remarkably

inept even when one appreciates that there are due process values

for the professor and concerns about student anonymity that help

shape university procedures.

Wills's remaining evidentiary claims can be briefly

answered. She complains that in a non-responsive answer to a

question from Wills's counsel, one of the Brown officials testified

that Brown had fired Adesogan, and Wills then brought out the fact

that he was not fired until March 1994. The district court did not

permit further inquiry, and Wills now says that she was "severely

prejudiced" by the non-responsive answer and wrongly deprived of

the opportunity to explain to the jury that the reason he was fired

was "for sexually assaulting nearly seven women in one week."

But telling the jury that Adesogan had been fired in 1994

was hardly harmful to Wills: it showed that Brown did not fire

Adesogan in December 1992--the very point that Wills says she was

so anxious to present to the jury to show the inadequacy of the

reprimand--and it probably indicated to the jury that Adesogan's

behavior was even worse than it had already been led to believe by

Wills's own testimony. The reasons for excluding the March 1994

harassment incidents has already been discussed.

Finally, Wills complains that she was prevented from

offering testimony from two students, Tilly Gurman and Eve

Zaritsky, who were ready to testify that Adesogan had harassed them

in the fall of 1992. Gurman admittedly did not report the incident

to Brown until September 1993, and there is no indication that

Zaritsky ever reported her allegations. Nothing supports Wills's

argument on appeal that the evidence should have been admitted

because it increased the likelihood that Brown knew of these

incidents prior to December 1992 and was therefore more culpable

for failing to remove Adesogan prior to the December 1992 incident

with Wills. One other objection to testimony involving former

Brown dean, Toby Simon, is not worth discussing.

2. We turn now to Wills's remaining claims of error,

starting with the district court's grant of summary judgment as to

three of her ten claims: intentional infliction of emotional

distress, negligent hiring, and negligent retention. Wills has not

appealed from the grant of summary judgment as to the negligent

entrustment claim. All four of the these claims are governed by

Rhode Island law.

Starting with intentional infliction of emotional

distress, the tort requires "extreme and outrageous" conduct that

"intentionally or recklessly" causes severe emotional distress,

which must include some physical symptoms. Andrade v. Jamestown

Housing Authority, 82 F.3d 1179, 1187 (1st Cir. 1996); Elias v.

Youngken, 493 A.2d 158, 163-64 (R.I. 1985). Wills's opening brief

simply asserts in a few sentences that Brown's conduct was extreme

and outrageous because it ignored student complaints of sexual

harassment by Adesogan and thereby "allowed Adesogan to assault Ms.

Wills unfettered."

The only knowledge that Brown was shown to have had

before the "assault" was the Schleussner incident, but it is common

ground that Schleussner did not want to file a formal complaint.

Very difficult problems are posed in balancing a student's request

for anonymity or limited disclosure against the need to prevent

future harassment. Viewed in retrospect, Brown's procedures left

much to be desired. But there is nothing to the notion that Brown

was behaving outrageously when it failed to pursue the Schleussner

complaint beyond the limited informal measures instigated by

Schleussner herself.

Under Rhode Island law, an employer is required to

exercise reasonable care in selecting its employees. Welsh Mfg.,

Dir. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436 (R.I.

1984). Wills says that Brown made no search of Adesogan's

background before hiring him as a visiting professor beyond a look

at his work and resume and an inquiry to one of his colleagues.

Whether more was reasonably required does not matter because Wills

pointed to no evidence that a more searching inquiry by Brown in

Nigeria or elsewhere would have alerted it to the problem he posed.

The district court dismissed the claim on this ground and Wills

simply ignores this issue on appeal.

Wills last argument, as to summary judgment, is that the

district court should not have stricken the reference to

"retention" in her count claiming negligent supervision and

retention. The district court struck the retention language

because it said that no authority had been provided for such a

claim under state law and it thought that the multiplicity of

locutions was confusing. The court also said that there was no

basis for finding Brown negligent in not firing Adesogan prior to

December 1992 and that the only plausible claim was for negligent

supervision, which the court sent to the jury.

Assuming for the moment that there is a separate state

law claim under state law for negligent retention, the two claims

on these facts are very close and lack of adequate supervision is

certainly the stronger of the two. Indeed, on appeal--in the very

brief passage addressed to this issue--Wills muddles her two

theories by arguing that "Brown did not supervise or monitor"

Adesogan, or give him sexual harassment training or counseling,

even after he was put on probation. On the present facts, we are

not persuaded that Wills adequately explained her separate

"retention" theory or was prejudiced by its omission.

The remaining substantial objections are to the district

court's grant of a directed verdict in favor of Brown on two other

counts: the quid pro quo theory of sexual harassment under Title IX

and the assault and battery claim under state law. The test, in

both cases, is whether a reasonable jury could on the evidence

presented find in favor of Wills, resolving doubts and credibility

issues in her favor; and our review on this issue is de novo.

Combustion Eng'g, Inc. v. Miller Hydro Group, 13 F.3d 437, 441 (1st

Cir. 1993).

The quid pro quo theory presents the more complicated

issues and we begin with it. Quid pro quo cases normally involve

situations in which someone with authority over the victim inflicts

a penalty or withholds a benefit to obtain sexual favors, Lipsett,

864 F.2d at 898 , and it is easy to understand why the district

judge doubted that this case fell into that category. Wills was

not a student of Adesogan in December 1992, he had no authority

over her grade, he never said anything that conditioned her grade

or his tutoring services on Wills's agreeing to submit to his

advances, and--as the district court pointed out--she did not

testify that she understood Adesogan to be making to such a threat.

Accordingly, the judge withdrew this theory from the jury.

We are not certain that we agree with the district

court's reasoning, although the question may be a close one and

need not be finally resolved here. Patently, Wills' stronger claim

was for hostile environment and the quid pro quo claim is a

stretch. Indeed, in Ellerth, the Supreme Court recently spoke of

the "limited utility" of distinguishing between quid pro quo

"threats that are carried out" and "bothersome attentions" so

severe as to create a hostile environment. 118 S. Ct. at 2264.

But at present the categories remain and, if they are to be

entirely elided, it is for the Supreme Court to do so. Thus, our

question is one of evidence.

Here, it could be argued that while Adesogan had no

authority over Wills's grade, informal tutoring is a benefit of

Brown's offering; Adesogan's hugging and touching effectively cost

Wills the opportunity for further tutoring from Adesogan; and it

does not matter whether Adesogan expressed such a threat or whether

Adesogan or Wills so interpreted the situation. Certainly threats

need not be explicit, see Lipsett, 864 F.2d at 913 ; Sanders v. Casa

View Baptist Church, 134 F.3d 331, 339 (5th Cir. 1998), and it is

probably an open question under the case law whether this kind of

benefit (informal tutoring from a professor not the student's

teacher) is enough to create liability under a quid pro quo

theory. But even if we assume dubitante that there was enough

evidence to get to the jury on a quid quo pro claim, there is no

way that such an instruction could have altered the outcome here.

Sometimes the quid pro quo and hostile environment

theories connect to markedly different facts. Imagine a quid pro

quo case where a raise is denied to the employee because the

employer was turned down on a simple request for a date; and

contrast a hostile environment claim based on crude sexual remarks

from fellow employees. But on our facts, the theories effectively

overlap: the only sense in which a benefit was denied was that

Wills felt so uncomfortable in the environment that Adesogan had

created that she herself refused to avail herself of his tutoring.

This essentially common issue explains why, in this case, the

difference between the two theories tends to disappear. Cf.

Ellerth.

Brown chose in its closing argument to focus primarily on

the lack of notice to Brown based on the Schleussner episode,

arguing that there was a conflict between Tanenbaum and Schleussner

on the issue and that Tanenbaum should be believed. Secondarily,

Brown argued that Wills had not been damaged. Either theory would

also dispatch the quid pro quo claim but the jury may have adopted

neither of these arguments; during jury deliberations it asked the

judge to further explain the concept of hostile environment. He

declined to elaborate, and a general verdict followed in favor of

Brown so we do not know on what ground the jury actually resolved

the matter.

However, even if the jury found both notice and damage,

a jury that (improbably) thought Adesogan's actions too mild to

create a hostile environment could not easily have concluded that

Wills had been denied the benefit of Adesogan's tutoring. Thus, on

the realistic assessment we are asked to make under the harmless

error doctrine, there is no practical likelihood that the weaker

quid pro quo claim would have prevailed before a jury that rejected

the stronger (and manifestly more applicable) hostile environment

claim. On our facts, the refusal to instruct on quid pro quo,

assuming arguendo that it was error, was harmless.

This brings us to Wills's claim that the district court

erred in directing a verdict on the assault and battery charge.

Since Adesogan's conduct could easily be viewed as assault, the

directed verdict turned on whether Brown could be held liable

under Rhode Island law for the intentional tort of assault by

Adesogan, Brown's employee. Wills argues that under Rhode Island

law, a jury could find Brown liable for Adesogan's offensive

touching of Wills on December 9, 1992, because it occurred during

the course of an activity that he was hired to perform, namely, the

instruction of students. The district judge ruled that this was

not the law of Rhode Island.

Although (surprisingly) we are not entitled to give

special weight on this issue to the experience of the district

judge with Rhode Island law, Gibson v. City of Cranston, 37 F.3d

731, 735 (1st Cir. 1994), the cases confirm his conclusion. In

Rhode Island, an employer is not liable for an assault by its

employee merely because it occurred during the course of employee's

work. Labossiere v. Sousa, 143 A.2d 285 (R.I. 1958) (no liability

where waitress pushed customer). Rather, where the employer has

not actually authorized the assault, conduct must itself be a

reasonable and foreseeable incident of the employee's duties.

Bryce v. Jackson Diners Corp., 96 A.2d 637 (R.I. 1953) (store

manager sought to restrain a customer trying to leave without

paying).

Obviously, it was no part of Adesogan's duties to hug and

grope students who came to him for tutoring. Rhode Island could

easily extend liability for intentional torts more broadly and may

have done so by statute in some situations. But it has not done so

for assault, and the line drawn by Labossiere and Bryce remains in

force. Drake v. Star Market Co., Inc., 526 A.2d 517 (R.I. 1987).

Accordingly, the assault claim was properly withdrawn from the jury

because--fully accepting Wills's version of events--Adesogan but

not Brown was liable for the assault under state law.

Wills's final ground for appeal is the district court's

denial of her motion for new trial on the two remaining claims

(hostile environment and negligent supervision) rejected by the

jury. The district court's discretion in granting or denying a new

trial is very broad and the arguments made by Wills are in

substance some of the same claims we have already addressed (and no

others). This was surely a close case on the claims that went to

the jury and it could easily have been resolved in Wills's favor,

but juries are there to decide close cases, and nothing required

the district judge to afford Wills a new trial.

The judgment of the district court is affirmed. Each

side shall bear its own costs on the appeal.

It is so ordered.

- Dissent Follows -

LIPEZ, Circuit Judge, dissenting. This is a vexing case

for many reasons. The facts are difficult. The applicable law is

complex and evolving. Struggling with these unruly elements, the

trial court imposed a simple but erroneous limitation on Wills's

Title IX hostile environment claim by taking an unduly restrictive

view of the relevant evidence. Wills's articulation of this

hostile environment claim, both at trial and on appeal, was not a

model of clarity. The waiver issue on appeal is a close one. In

the end, however, despite the thoughtful analysis of my colleagues,

I cannot agree that Wills waived on appeal her claim that Brown is

liable for hostile environment sex discrimination on the basis that

Brown failed to respond adequately to the hostile educational

environment created by Adesogan's assault on her and by his

continuing presence in the classroom after that assault. That

conclusion requires me to explain why I believe that Wills is

entitled to a new trial on her claim.

I. Waiver

The discussion of the waiver issue on appeal requires an

understanding of Wills's presentation of her hostile environment

claim to the trial court. Wills presented a hostile environment

claim that was premised, in part, on Brown's liability for the

December 9, 1992 assault. The district court allowed this claim to

go to the jury and she fairly lost on it. But Wills also presented

a separate hostile environment claim that was premised on Brown's

liability for its inadequate response to the hostile educational

environment which arose for Wills following the December 9 assault.

For the purposes of this claim, Wills consistently maintained that

subsequent events evidence (events following the December 9, 1992

assault) was relevant to establishing Brown's liability.

Beginning with her complaint, Wills alleged that as a

result of Adesogan's sexual assault, she was

deprived . . . of the opportunity to receive

the full benefit of her education during the

relevant period at Brown University. Brown

knew or should have known of the environment

created by Adesogan and failed to take proper

remedial action to eliminate the harassment

caused by Adesogan and inflicted upon Wills.

In her memorandum in support of her Motion for a Partial Summary

Judgment, Wills argued, inter alia, that a single incident of

sexual harassment can be severe enough to give rise to a hostile

environment and that Adesogan's assault on her was "sufficiently

severe or pervasive to alter her education and create an abusive

educational environment. . . ." Later, during a pre-trial hearing,

Wills requested additional time to conduct discovery on issues

pertaining to Brown's response to her notice of the assault. She

argued that

one of the issues in this case is whether

Brown took prompt remedial action. Brown is

taking the position that one of the pieces of

evidence of the fact that they took prompt

remedial action is that Ms. Wills was

satisfied with what they did. Well, when

Brown promises that they are going to give her

an advocate to help her figure out what's

appropriate, was inappropriate, whether she

should be satisfied with what her options are,

I'd like to inquire why that didn't happen

when that is their policy.

The court took a different view of the relevance of such

evidence:

I think we are coming back to this fundamental

disagreement that we seem to have. I thought

I had ruled on this and put this to rest, but

it keeps resurfacing that I recognize that

your position is that what Brown may have done

or not done after the alleged assault

described by Ms. Wills is relevant to this

case. And I think, I thought I had ruled that

in my view it is not relevant. It would be

relevant if there were a second assault on Ms.

Wills that resulted from Brown's inaction then

it certainly would be relevant, but what is

relevant, what this case focuses on is what

Brown knew prior to the assault on Ms. Wills

and what it did or didn't do to prevent that

assault from taking place.

(emphasis added). The court's reference to the relevance of a

second assault on Wills is particularly important. The court

recognized that even if Wills could not prove that Brown knew of

the assault by Adesogan on Laura Schleussner, and hence could not

establish that Brown should have prevented Adesogan's assault on

her, she would still have a claim against Brown for hostile

environment discrimination based on the inadequacy of Brown's

response to her report of a sexual assault, but only if Adesogan

assaulted her a second time. The court did not accept the

proposition that the hostile environment could be the product of

events that flowed from the single assault by Adesogan, including

Wills's reaction to the assault and Adesogan's continuing presence

in the classroom.

Despite the court's exclusion from Wills's case of

liability evidence subsequent to the December 1992 assault, Brown

still felt the need in its oral motion for a judgment as a matter

of law at the close of Wills's case to argue that the evidence

failed to prove that the assault, although severe, "alter[ed] her

educational environment." The background for Brown's concern was

a footnote in a First Circuit case, Brown v. Hot, Sexy and Safer

Productions, Inc., 68 F.3d 525 (1st Cir. 1995), in which we said

that "we do not hold that a one-time episode is per se incapable of

sustaining a hostile environment claim." Id. at 541 n. 13. In

response to Brown's insistence that a hostile environment could not

be established by the single incident described by Wills, the court

queried:

You're not saying that this incident wasn't a

severe incident. It isn't the severity of the

incident, but rather you're saying that no

matter how severe the evidence doesn't show

that it affected Ms. Wills' educational

environment?

Brown responded:

Correct, your honor. Adesogan clearly acted

in an inappropriate manner and the conduct was

severe. The question, as I understand it, is

whether or not it altered her educational

environment. And I saw no evidence suggesting

that. She functioned very well at Brown, she

graduated with a good GPA. Was able to move

on in life.

The court then made this observation:

My question to you is, I guess what the

question you have raised is what constitutes

an educational environment. It doesn't sound

like you dispute that that would be a highly

offensive, despicable, almost every pejorative

word you can think of, and you seem to be

suggesting that educational environment means

that it's got to carry over into the future

and have some tangible effect ---.

(emphasis added). Brown responded again:

Your honor, that's my interpretation, and I

would not disagree with the court that this

single incident was inappropriate, the

professor behaved in a severe manner, but the

question is how we hold the institution liable

and what's the education environment, and I

would respectfully suggest to the court that

you have to look beyond the single incident,

otherwise it is a per se rule creating a

hostile environment by this one inappropriate

action.

At this juncture, the court and Brown both recognized that evidence

of Brown's liability for a hostile environment subsequent to the

assault by Adesogan on Wills must include evidence beyond the

assault itself. Yet that was the very liability evidence that the

court had not permitted Wills to introduce.

In response to this colloquy between the trial court and

Brown, Wills's counsel attempted to again call attention to the

existence of the hostile environment occurring after the assault,

focusing on Wills's inability to take advantage of education

opportunities on campus. She explained:

But I believe the testimony in this case was

that this incident impacted Ms. Wills' ability

to study. She took an incomplete in the

class. It impacted her ability to function in

the following class and so, therefore, the

incident, the single incident created for her

a hostile environment, her hostile educational

environment for Brown . . . .

Despite its intimations of interest at the close of

Wills's case, the court ultimately rejected any claim for hostile

environment discrimination based on Wills's experiences or Brown's

response after the December 1992 assault:

My ruling has consistently and clearly been

that evidence of what occurred after the

alleged assault on Ms. Wills is irrelevant in

this case. So I would not allow the evidence

on these grounds.

And you can mark for identification

that you say the offer of proof would consist

of. If you would like to respond in some way,

Mr. Richard, I will give you that opportunity.

Frankly, I don't see what difference it is

going to make, because if this becomes an

issue on appeal and the Court of Appeals

concludes that this kind of evidence was

admissible and might have influenced the

outcome, then presumably it would grant a new

trial. If it concludes that it wasn't

admissible, and it won't, and I don't think it

is going to make a great deal of difference

exactly what the incidents are alleged to

consist of, but I will leave it up to you Mr.

Richard.

After the verdict, Wills reiterated in her motion for a new trial

that the trial court "prevented [her] from showing Brown failed to

take appropriate action to end the harassment. Therefore, [she]

could not prove one of the elements she was required to prove under

Lipsett to establish Brown's liability for hostile environment

sexual harassment."

Despite Wills's arguments to the contrary both before and

throughout the trial, the court took the position that, absent a

second physical assault by Adesogan on Wills, or some form of

direct harassment, Wills had no claim for sex discrimination

against Brown occurring after December 9, 1992. In taking that

narrow view of hostile environment discrimination, the district

court failed to recognize that Wills's educational experiences at

Brown could be altered significantly by a hostile educational

environment resulting from Adesogan's assault on her and his

continuing presence in the classroom. That failure, in turn,

prompted the court to consistently reject all attempts by Wills to

introduce evidence of events following the assault on Wills to

establish Brown's liability for hostile environment discrimination.

In Wills's opening brief on appeal, she focused, inter

alia, on the school's response to her complaint:

To determine institutional liability under

either Lipsett or Gebser, a trier of fact must

look to an institution's response once it

learns of sexual harassment. Ms. Wills

submits that to determine whether an official

took "appropriate steps to halt" the

harassment (Lipsett) or whether an official

with authority to institute corrective

measures was 'deliberately indifferent to the

teacher's misconduct' (Gebser), the trier of

fact must examine the institution's response

to the complained-of-harassment. This

includes an assessment of the action taken

against the harasser as a result of the

harassment and whether the harassment stopped.

Further, the Supreme Court, many years ago,

made clear the determination of a hostile

environment must be based on 'the totality of

the circumstances.' As a result of the

district court's misapplication of the law in

this case, it precluded the parties from

introducing evidence, and specifically

precluded Ms. Wills from showing Brown's

action against Professor Adesogan as a result

of Ms. Wills' assault did not end the

harassment. . . . Accordingly, Ms. Wills was

not allowed to show a failure to properly

address the harassment, considering the

totality of the circumstances.

In elaborating on this "totality of the circumstances" view of

hostile environment discrimination in her opening brief, Wills

focused far too much attention on the trial court's alleged error

in excluding evidence of Adesogan's sexual assaults on other female

students at Brown before and after the assault on Wills, without

relating that evidence to her own experience of a hostile

environment at Brown. She did not refer explicitly to her claim

that the "totality of the circumstances" of a hostile environment

included her reaction to the assault on her by Adesogan and his

continuing presence in the classroom.

In her reply brief, Wills referred to the continuing

presence claim more clearly: "Wills continued to suffer harm after

Adesogan sexually assaulted her due to his continued presence on

campus without any real imposition of discipline for his egregious

conduct toward her." She then elaborated:

Wills has standing to challenge Brown's

remedial action taken after December 9, 1992,

as she was mistreated by Brown when she

reported the acts of Adesogan, and continued

to suffer harm after that date as a result of

Adesogan's continued presence on the campus

with unbridled authority to interact with

students, including Wills. In addition, Wills

has standing to challenge Brown's remedial

action . . . as Brown had actual notice of

Adesogan's misconduct and did not halt the

harassment.

Brown never filed a motion to strike this portion of Wills's reply

brief as unfairly presenting a new issue. At oral argument there

was extensive discussion of the hostile environment claim and the

propriety of the district court's decision to exclude all post-

December 9, 1992 evidence. In both Wills's argument and Brown's,

there were inquiries about Wills's continuing presence claim of

hostile environment discrimination. Instead of arguing that Wills

had waived this claim by not raising it in her opening brief, Brown

addressed the claim on its merits, arguing that there was no

further harassment of Wills by Adesogan following the assault, and

that the trial court was correct to exclude any liability evidence

subsequent to the December 9, 1992 assault. Brown's only effort at

oral argument to avoid the merits of Wills's hostile environment

claim involved an assertion, also set forth in its brief, that

Wills never made an offer of proof regarding Brown's conduct

following the assault in response to her complaints not that

Wills had waived any argument on appeal. In my view, these

exchanges demonstrate that the parties always understood, at trial

and on appeal, that Wills's claim of hostile environment

discrimination, rather than being limited to Brown's responsibility

for its failure to prevent Adesogan's sexual assault on Wills, also

included her claim that Brown was responsible for the hostile

environment discrimination she experienced after the assault

because of its severity and Adesogan's continuing presence in the

classroom.

Without minimizing the deficiencies in the quality of

Wills's opening brief on appeal, I think there is a significant

difference between an argument that is waived and one that is

argued poorly. Wills argued her continuing presence claim of

hostile environment discrimination to the trial court. This

argument in the trial court fairly informs the reference to the

"totality of the circumstances" claim of hostile environment

discrimination set forth in her opening brief on appeal. She

returned in her reply brief to the explicit iteration of the

continuing presence claim of hostile environment discrimination

presented to the trial court. Brown never argued in writing or

orally that Wills had waived on appeal this claim of hostile

environment discrimination. Given the prominence of this claim

before the district court, its adequate explanation in the reply

brief, and the attention it commanded at oral argument, Wills's

vague reference to it in her opening brief should not preclude our

consideration of this important issue.

II. Wills's Claim

There is no dispute that, following the incident on

December 9, 1992, Wills was never again physically assaulted or

verbally harassed by Adesogan. Nonetheless, Wills argues that

Adesogan's continuing presence on the faculty and in the classroom

created a hostile environment that altered the terms and conditions

of her educational environment, thereby establishing the basis for

a claim of sex discrimination against Brown under Title IX. The

majority recognizes that "in some cases, merely to maintain a

harasser in a position of authority over the victim, after notice

of prior harassment, could create new liability." This is an

important recognition. The majority also notes, however, that

Wills's "continuing harassment theory is a very weak one on these

facts."

I think we should be wary of characterizing the strength

or weakness of a case that Wills was never allowed to develop fully

because of the exclusionary rulings of the trial court.

Nevertheless, given what we do know of Wills's case from pre-trial

submissions and arguments before the trial court, I think she

offered the outlines of a plausible claim of continuing presence

hostile environment discrimination that she was entitled to present

to a jury. I therefore agree with Wills that the trial court erred

in excluding any evidence of Brown's liability for hostile

environment discrimination based on Brown's response to Wills's

complaint of a sexual assault by Adesogan and its response to other

information and events subsequent to December 9, 1992. I must

explain that position more fully.

A. Title IX and Gebser v. Lago Vista Independent School District

Title IX provides 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). Title IX imposes an obligation on educational

institutions receiving federal funds to refrain from denying

educational opportunities on the basis of sex. Title IX is

enforceable through an implied private right of action against an

educational institution. See Cannon v. University of Chicago, 441

U.S. 677 (1979). That action can include a demand for monetary

damages. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60

(1992).

When Wills brought her case against Brown in 1995, there

was uncertainty about the standards of liability for educational

institutions under Title IX. The Supreme Court ended this

uncertainty in Gebser v. Lago Vista Independent School District,

rejecting institutional liability based on agency principles or

constructive notice to establish institutional liability. See

Gebser v. Lago Vista Indep. Sch. Dist., 118 S. Ct. 1989, 1999

(1998). The Court explained that Title IX creates obligations that

are contractual in nature, "conditioning an offer of federal

funding on a promise by the recipient not to discriminate." Id. at

1997. The focus of Title IX is on "protecting individuals from

discriminatory practices carried out by recipients of federal

funds." Id. This focus differs from Title VII, which prohibits sex

discrimination without regard to federal funding. See id. On the

basis of the distinct purpose of Title IX, the Court concluded

that:

[I]n cases . . . that do not involve official

policy of the recipient entity, we hold that a

damages remedy will not lie under Title IX

unless an official who at a minimum has

authority to address the alleged

discrimination and to institute corrective

measures on the recipient's behalf has actual

knowledge of discrimination in the recipient's

programs and fails to adequately respond.

We think, moreover, that the response

must amount to deliberate indifference to

discrimination.

Id. at 1999 .

Accordingly, in a Title IX action, a plaintiff must

allege that the recipient of the federal funds - the educational

institution - was deliberately indifferent to discrimination on the

basis of sex. To establish the institution's liability, a

plaintiff must show that the school had "notice" of the alleged

discrimination. See id. Even if the school had notice of the

alleged discrimination, it is not liable for a Title IX violation

unless its response amounted to "deliberate indifference to

discrimination." See id.

B. The continuing presence claim of sex discrimination

Sex discrimination in education involves the denial of

educational benefits or the alteration of conditions of the

educational environment on the basis of sex. See Davis v. Monroe

County Bd. of Educ., 119 S. Ct. 1661, 1675 (1999). If sufficiently

severe, sex harassment, a form of sex discrimination for the

purpose of Title IX, "can be said to deprive the victims of access

to the educational opportunities or benefits provided by the

school." Id. The denial or alteration can be the result of

inappropriate touching, see Canutillo Indep. Sch. Dist. v. Leija,

101 F.3d 393, 395 (5th Cir. 1996), the solicitation of sexual

favors in return for educational rewards, see Miller v. Kentosh,

No. Civ. A. 97-6541, 1998 WL 355520 (E.D. Pa. June 29, 1998), a

pattern of coercive sexual relations between a student and a

teacher, see Franklin, 503 U.S. at 63 , or a pattern of severe

student on student sexual harassment, see Davis, 119 S. Ct. at

1673. The effect of such abusive conduct on a victim does not

necessarily end with a cessation of the abusive conduct,

particularly if the victim and the abuser retain the same or

similar roles in an educational institution. In some cases, the

continuing presence of the harasser may so alter the terms and

conditions of education that the victim of harassment may be able

to establish a claim for sex discrimination.

In Gebser, a student who had been involved in a sexual

relationship with her teacher sued the school district under Title

IX. Once the school was given notice of the sexual relationship

between the student and teacher, the school immediately fired the

teacher. Therefore, the Court had no occasion to consider the

relationship between the continued presence of the teacher in the

school and altered conditions of education. However, in Patricia

H. v. Berkeley Unified School District, 830 F. Supp. 1288 (N.D.

Cal. 1993), a district court squarely addressed this issue.

Patricia H. brought suit against the school district on behalf of

her daughters. Patricia H. had been involved with a teacher in the

school district (Hamilton) who, she alleged, molested both of her

daughters while Patricia H. and Hamilton were dating. Patricia H.

filed criminal charges against Hamilton. The school district

placed Hamilton on a leave of absence without pay, and then

suspended him. The criminal charges were ultimately dismissed,

subject to Hamilton's participation in rehabilitation programs and

psychological counseling, and his license to teach was reinstated.

Hamilton resumed teaching music classes, which he taught throughout

the school district, including those schools attended by Patricia

H.'s two daughters. On cross-motions for summary judgment, the

court was asked to consider whether "the mere presence of Hamilton

as a teacher, a figure of authority and respect, in the schools

[the two daughters] were attending, or would have attended but for

his presence, created a hostile environment that deprived them of

full enjoyment, and during the semesters of their absence, any

enjoyment, of their education within the [school district]." Id. at

1296. The court concluded that

[t]he very severity of the molestation, and

the grave disparity in age and power between

the girls and [the teacher], suggests that a

reasonable student, having experienced such an

assault, would be intimidated and fearful of

[the teacher's] presence at her school, so

much so that her fear would interfere with her

ability to learn, and to enjoy all aspects of

her education fully, even though the alleged

molestations were isolated in time and

occurred outside of the school setting. The

Court is unable to declare, as a matter of

law, that [the students] did not experience a

hostile environment in the [school district].

The Court, however, also cannot declare that,

as a matter of law, a hostile environment did

exist. The question, whether a reasonable

female student of [the student's] age, having

experienced the harassment she alleges, would

find [the teacher's] mere presence at [the

school] created a hostile environment, is one

question for the jury.

Id. at 1296-97 (footnotes omitted).

The proposition that the presence of a harasser can rise

to the level of hostile environment sex discrimination finds

support in the Title VII context. In Ellison v. Brady, 924 F.2d

872, 883 (9th Cir. 1991), the plaintiff alleged, inter alia, that

her employer's decision to allow an employee who had formerly

harassed her to transfer back into her office, after a six-month

"cooling-off period," created a hostile work environment. The

court accepted the plaintiff's argument, concluding that "[w]e

believe that in some cases the mere presence of an employee who has

engaged in particularly severe or pervasive harassment can create

a hostile work environment." Id. The court noted that there may be

situations where an employer can only fully remedy the harassment

by removing the harasser from the work environment. See id. at 883 ,

883 n.19.

C. The continuing presence claim of sex discrimination in this case

1. The hostile environment: the conduct of Adesogan

and its effect on Wills

Wills was enrolled in organic chemistry in the fall of

1992 because she planned to attend medical school. Because Wills

was having difficulty with the material, she went to see Adesogan

in his office for help on December 9, 1992 at 4:00 p.m., where she

found him meeting with another student. He told her to come back

at 5:30. When she returned, Adesogan looked up the grade on her

last exam and asked her why she had done so poorly. Wills told him

she had a lot of things going on at home and that she had not been

eating. He sent her off to get something to eat and told her to

come back at 6:30 since there was no way to study chemistry on an

empty stomach. When she returned at 6:30 and found the building

locked, she called up to Adesogan's office. He came down, let her

into the building, and they went upstairs to his office where

Adesogan shut the door.

First, Adesogan asked her to join him in prayer. He

told her that he was glad she was a Christian and asked God to open

up her brain so that she could be more receptive to him and to

chemistry formulas and equations. Adesogan then worked with Wills

on chemistry problems until he announced that they needed a break

time for prayer. He then picked her up, put his arms around her

waist and sat her on his lap. As he "prayed" about Wills's eating

problems and her performance in organic chemistry, he allegedly put

his hand under her shirt, rubbed her stomach and touched her

breast. Wills explained that the first time he touched her breast,

his hand just grazed her body and she thought that maybe the

touching was an accident. After this "prayer" session they

returned to studying organic chemistry. About twenty minutes

later, he told her they needed to pray again and he again pulled

Wills onto his lap. As he was touching her breasts and praying, he

told her: "I want you to understand there is no hanky panky stuff

going on - I want to be close to you like father-daughter." Again,

they returned to studying. The third time he pulled her onto his

lap for a prayer session and rubbed her breasts, he said: "Don't

let the Devil confuse Marketa into thinking that anything that went

on today was sexual." During each prayer session, which lasted

about seven or eight minutes, Adesogan sang religious songs.

The entire meeting lasted about an hour and forty-five

minutes. As she was leaving, Adesogan told Wills that she should

go to the small group sessions and that she should meet privately

with him before the exam. Together, they would be able to "get

it." Wills never went back to Adesogan's office, or to another

organic chemistry class that year.

As a result of Adesogan's continuing presence on the

faculty, Wills felt the need to avoid him, both on the college

campus and in her workplace. She delayed enrolling in the second

half of organic chemistry in an effort to distance herself from the

trauma of what had happened. When Wills ultimately enrolled in the

second half of organic chemistry in the spring of 1994, she

discovered that Adesogan was the only professor Brown had assigned

to teach the class, a fact she did not know until the day class

began. Wills immediately left the class. At trial, she testified

that "I probably tried to muster up some courage to go back to

class at least once or twice." Other than those occasions, she did

not return to the class for the rest of the semester.

In order to complete her pre-med studies, Wills had to

take the second semester of organic chemistry. The University sent

Wills a letter that spring offering her one of two options for the

second half of the organic chemistry class. She could request a

grade option change for the course, which would allow her to take

a pass in the course rather than a letter grade. As a pre-med

student, however, she was advised to first discuss this option with

one of the deans. Or, as the letter said, she could "cut her

losses," take an incomplete in the course and take the class again

in summer school, the tuition for which would be waived. The

school also offered to write her a letter that would

"contextualize" the difficulties she had experienced. Wills

completed the second semester of organic chemistry in summer

school.

On these facts, I conclude that a reasonable jury could

find that: (1) Adesogan subjected Wills to severe sexual

harassment; (2) Wills experienced his continuing presence in the

classroom as a hostile environment that altered the conditions of

her education at Brown; and (3) a reasonable person subjected to

the harassment that Wills experienced would have had a similar

reaction to the continuing presence of Adesogan in the classroom.

See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993);

Davis, 119 S. Ct. at 1674-75 .

The existence of a hostile environment, however, does not

necessarily subject an educational institution to liability under

Title IX. Liability only attaches where (1) the educational

institution has actual notice of the alleged discrimination, see

Gebser, 118 S. Ct. at 1999 , and (2) the school's response to the

discrimination was "clearly unreasonable in light of the known

circumstances." Davis, 119 S. Ct. at 1674 . When the educational

institution "does not engage in the harassment directly, it may not

be liable for damages unless its deliberate indifference subjects

its students to harassment. That is, deliberate indifference must,

at a minimum, cause the students to undergo harassment or make them

liable or vulnerable to it." Id. at 1672 (citations and quotation

marks omitted). I must therefore examine the issues of notice and

deliberate indifference.

2. Notice

The record is clear that Wills filed a written complaint

charging Adesogan with sexual harassment. That written complaint

was submitted to the Provost of Brown University, who was charged

with investigating allegations of sexual harassment. Wills also

met personally with the Provost. Thus, Wills informed an official

at Brown, with the authority to address the alleged discrimination

and to institute corrective measures, of the assault by Adesogan.

See Gebser, 118 S. Ct. at 1999 . The record also contains

correspondence between Wills and the Dean of the College, which

indicates that the school would accommodate Wills's desire to take

an incomplete in organic chemistry. This correspondence suggests

that Wills gave notice to the University officials in 1992 that she

was unable to continue with her organic chemistry studies because

of her experiences with Adesogan. Further, in Wills's "Motion to

Determine in Advance of Trial the Admissibility of Defendant's

Subsequent Acts," she claimed that Brown "was aware that she was

continuing to experience emotional and academic difficulties as a

result of Adesogan's assault upon her in 1992." Moreover, in a

pre-trial conference, Wills's counsel claimed that Wills's name

appeared in more than fifteen documents relating to the '93/'94

time frame which indicated that Brown was aware that Wills was

continuing to experience significant difficulties at school. At

trial, the Dean of the College testified that in the spring of 1994

Wills came to her because of difficulty with the second half of

organic chemistry.

In Gebser, the school district had received complaints

from parents that the teacher involved in a sexual relationship

with the student was using inappropriate and sexually explicit

language in his class. The Supreme Court rejected the argument

that such complaints met the notice requirement of Title IX. "That

[notice] . . . consisted of a complaint from parents of other

students charging only that [the teacher] had made inappropriate

comments during class, which was plainly insufficient to alert the

principal to the possibility that [the teacher] was involved in a

sexual relationship with a student." Gebser, 118 S. Ct. at 2000 .

Contrary to the Gebser scenario, Wills's report to Brown of the

sexual assault by Adesogan, of her inability to continue with the

study of organic chemistry in the fall of 1992, and of subsequent

emotional and academic difficulties she was having because of the

assault by Adesogan, was not "plainly insufficient" to alert Brown

to the existence for Wills of a hostile educational environment

that altered educational conditions for her at Brown. See id. at

1999 (the institution must have "actual knowledge of discrimination

in the recipient's programs"). Moreover, there is evidence that

Brown knew of Adesogan's assaults on other women students at Brown

before Wills attempted to take the second half of organic chemistry

in the spring of 1994. Accordingly, the next issue is whether

Wills can demonstrate that Brown was deliberately indifferent to

discrimination.

3. Deliberate Indifference

Once the institution is placed on actual notice of sex

discrimination, the institution is given an "opportunity to rectify

any violation." Gebser, 118 S. Ct. at 1999 . If the response is

adequate, the institution satisfies its obligations under Title IX.

See id. Only where the institution's response amounts to

"deliberate indifference to discrimination," id., or "is clearly

unreasonable in light of the known circumstances," Davis, 119 S.

Ct. 1674, will liability attach. This requirement comports with

the administrative enforcement scheme for Title IX which

contemplates action only when the "official who is advised of a

Title IX violation refuses to take action to bring the recipient

into compliance. The premise, in other words, is an official

decision by the recipient not to remedy the violation." Gebser, 118

S. Ct. at 1999. By requiring the plaintiff to prove that the

institution's response was deliberately indifferent, there is no

"risk that the recipient [of federal funds] would be liable in

damages not for its own official decision but instead for its

employees' independent actions." Id.

Only "known circumstances" inform what can be considered

a "clearly unreasonable" response. Davis, 119 S. Ct. at 1674 .

Thus, the adequacy of a school's response may change with an

increase in the school's knowledge of the circumstances of

discrimination. In a case such as this, Brown might not be liable

for Adesogan's individual act of sex discrimination (the sexual

assault on Wills) because of a lack of notice of any prior

misconduct by Adesogan. Moreover, its initial response to a first

complaint of misconduct from Wills might be adequate for the

purpose of the Gebser and Davis analysis. However, what was an

adequate response to a single complaint of sex harassment may

become "clearly unreasonable" when the school is placed on notice

by additional complaints or other pertinent information. See,

e.g., Davis, 119 S. Ct. at 1674 (noting that the petitioner might

be able to show that the school subjected her to discrimination by

failing to respond to complaints of misconduct by both the

petitioner as well as other female students). Accordingly, in the

context of the hostile environment claim in this case, Wills must

demonstrate that Brown's response was deliberately indifferent to

the hostile educational environment created for her by Adesogan's

assault and continuing presence in the classroom in light of the

notice the school received of Wills's ongoing problems with

Adesogan's presence and reports from other students of Adesogan's

misconduct.

In response to Wills's complaint, the Provost and the

Dean of Faculty met with Adesogan who admitted that he had pulled

Wills onto his lap, hugged her, and perhaps touched her breast

accidentally. The Provost sent Adesogan a letter of reprimand,

condemning his behavior and placing him on probation. The Provost

warned that "a second incident of unacceptable behavior will

constitute grounds for immediate dismissal." However, in the

Provost's deposition, he acknowledged a memorandum from the Dean of

the Faculty to all Department Chairs and Directors of Programs,

issued in September of 1992, summarizing the University's policy

prohibiting members of the faculty from engaging in acts of sex

discrimination against students. According to the memorandum, "a

faculty member or teaching assistant violating the policy will be

subject to immediate suspension and/or dismissal." Approximately

two months after Wills's complaint about the sexual assault,

members of the chemistry department recommended that Adesogan be

retained for the next academic year, notwithstanding his

"mistakes," and that he be given a raise. Provost Rothman accepted

the recommendations and reappointed Adesogan, awarding him a raise.

Thereafter, more women came forward to notify Brown of

Adesogan's misconduct. In September 1993, Tilly Gurman filed a

written complaint alleging that Adesogan had sexually harassed her

in the fall of 1992, prior to Adesogan's assault on Wills. The

Assistant Dean of Academic Affairs and the Provost decided to take

no action, concluding that Adesogan had already been reprimanded

and warned of the consequences of his behavior following the event

with Wills.

In January 1994, Amy Sanford informed the Assistant Dean

that Adesogan had hugged and kissed her on a number of occasions in

the fall of 1993. Although Sanford did not file a formal

complaint, the Assistant Dean did report the allegations to the

Dean of the College. No action was taken and Adesogan remained in

the classroom. In fact, as already noted, he was the only

professor teaching the second half of organic chemistry in the

spring of 1994, a gateway course for medical school which Wills had

to take. Brown took no further action against Adesogan until March

of 1994 when it received complaints from six female students in a

one week period that he had assaulted them.

On these facts, I cannot say as a matter of law that

Wills could not persuade a reasonable fact-finder that Brown's

decision to keep Adesogan on the faculty and in the classroom until

March 1994 reflected deliberate indifference to a hostile

environment that altered the conditions of Wills's education at

Brown. In reaching this conclusion, I am not suggesting that an

educational institution, after verifying a claim of sexual

harassment by one of its teachers, must terminate that teacher's

employment in order to avoid Title IX liability. Cf. Davis, 119 S.

Ct. at 1673-74. The adequacy of the institution's response,

assessed within the rubric of deliberate indifference, will depend

on a myriad of factors relating to the nature of the harassment,

its duration, the roles of the harasser and the victim before and

after the harassment, the nature of their continuing contact, other

acts of misconduct by the harasser known to the institution, and

the conditions altered by the continuing presence of the harasser.

In this case, a jury never considered this myriad of

factors because the district court took an unduly restrictive view

of hostile environment discrimination, believing that only a second

assault by Adesogan on Wills or some other form of direct

harassment would constitute such an environment. The court was

unwilling to consider that a hostile environment could exist on the

basis of other factors in this case, the response of Wills to the

sexual assault and the continued presence of the harasser in the

classroom who, because of his presence, denied Wills a benefit of

her education at Brown because of her sex. Title IX protects

individuals from such discriminatory practices carried out by the

recipient of federal funds. See Gebser, 118 S. Ct. at 1997 . Wills

contends that Brown, through its deliberate indifference, was

responsible for that denial of an educational benefit because of

her sex. The district court wrongly precluded her from presenting

this claim to a jury. We should correct that error.