Sofie Karasek v. University of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOFIE KARASEK; NICOLETTA No. 18-15841

COMMINS; ARYLE BUTLER,

Plaintiffs-Appellants, D.C. No.

3:15-cv-03717-

v. WHO

REGENTS OF THE UNIVERSITY OF ORDER AND

CALIFORNIA, AMENDED

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Northern District of California

William Horsley Orrick, District Judge, Presiding

Argued and Submitted October 21, 2019

San Francisco, California

Filed January 30, 2020

Amended April 20, 2020

Before: Jay S. Bybee and N. Randy Smith, Circuit Judges,

and Salvador Mendoza, Jr.,* District Judge.

*

The Honorable Salvador Mendoza, Jr., United States District Judge

for the Eastern District of Washington, sitting by designation.

2 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

Order;

Opinion by Judge Bybee

SUMMARY**

Title IX

The panel filed (1) an order amending its opinion,

denying a petition for panel rehearing, and denying on behalf

of the court a petition for rehearing en banc; and (2) an

amended opinion affirming in part and vacating in part the

district court’s judgment in favor of defendant Regents of the

University of California on claims brought under Title IX of

the Education Amendments of 1972 by three plaintiffs who

were sexually assaulted while undergraduates at the

University of California, Berkeley.

Plaintiffs alleged that UC violated Title IX by failing to

adequately respond to their individual assaults and by

maintaining a general policy of deliberate indifference to

reports of sexual misconduct.

The panel affirmed the district court’s dismissal of two

plaintiffs’ individual claims and grant of summary judgment

on a third plaintiff’s individual claim. To state a Title IX

claim arising from student-on-student or faculty-on-student

sexual harassment or assault, a plaintiff suing a school must

allege that (1) the school exercised substantial control over

the harasser and the context in which the harassment

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 3

occurred; (2) the harassment was so severe that it deprived

the plaintiff of educational opportunities; (3) a school official

with authority to address the alleged discrimination had

actual knowledge of it; (4) the school acted with deliberate

indifference to the harassment, such that the school’s

response was clearly unreasonable in light of the known

circumstances; and (5) the school’s deliberate indifference

subjected the student to harassment. The panel affirmed the

district court’s holding that two plaintiffs failed adequately to

allege deliberate indifference in UC’s investigation delays,

policy violations, failure to take steps to prevent continued

harassment, inequitable response, or failure to permit a

plaintiff to participate in an investigation. The panel affirmed

the district court’s holding that the third plaintiff failed to

establish a triable issue as to whether UC acted with

deliberate indifference by failing to investigate her complaint,

failing to take steps to prevent the harasser from harassing her

again, or committing policy violations.

The panel vacated the district court’s dismissal of the pre-

assault claim regarding an alleged policy of deliberate

indifference to reports of sexual misconduct that created a

sexually hostile environment for plaintiffs and heightened the

risk that they would be sexually assaulted. The panel held

that such a claim is a cognizable theory of Title IX liability.

Finding persuasive a decision of the Tenth Circuit, the panel

held that a pre-assault claim survives a motion to dismiss if

the plaintiff plausibly alleges that (1) a school maintained a

policy of deliberate indifference to reports of sexual

misconduct, (2) which created a heightened risk of sexual

harassment that was known or obvious (3) in a context

subject to the school’s control, and (4) as a result, the plaintiff

suffered harassment that was so severe, pervasive, and

objectively offensive that it can be said to have deprived the

4 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

plaintiff of access to the educational opportunities or benefits

provided by the school. The panel remanded the case for

further proceedings.

COUNSEL

Alexander S. Zalkin (argued), The Zalkin Law Firm P.C., San

Diego, California, for Plaintiffs-Appellants.

Hailyn J. Chen (argued) and Bradley S. Phillips, Munger

Tolles & Olson LLP, Los Angeles, California; Susan M.

Pelletier, Munger Tolles & Olson LLP, Washington, D.C.; for

Defendant-Appellee.

ORDER

The court’s opinion filed January 30, 2020, and appearing

at 948 F.3d 1150 (9th Cir. 2020), is hereby amended in the

following ways:

1. At slip. op. 32–33; 948 F.3d at 1169, change

<(2) which created a heightened risk of sexual harassment>

to <(2) which created a heightened risk of sexual harassment

that was known or obvious>

2. At slip op. 33, 948 F.3d at 1169, change <(4) the

plaintiff was harassed as a result> to <(4) as a result, the

plaintiff suffered harassment that was “so severe, pervasive,

and objectively offensive that it can be said to [have]

deprive[d] the [plaintiff] of access to the educational

opportunities or benefits provided by the school.” Davis,

526 U.S. at 650.>

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 5

An amended opinion is filed herewith.

With this amended opinion, the panel has voted to deny

the petition for panel rehearing. Judge Bybee, Judge N.R.

Smith, and Judge Mendoza recommended denying the

petition for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc, and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing

en banc, filed March 13, 2020, are DENIED. No subsequent

petitions for rehearing or rehearing en banc may be filed.

OPINION

BYBEE, Circuit Judge:

Appellants Sofie Karasek, Nicoletta Commins, and Aryle

Butler were sexually assaulted while undergraduates at the

University of California, Berkeley (UC). They sued UC

under Title IX of the Education Amendments of 1972 (Title

IX), asserting two theories of liability. First, Appellants

allege that UC violated Title IX by failing to adequately

respond to their individual assaults. Second, Appellants

allege that UC violated Title IX by maintaining a general

policy of deliberate indifference to reports of sexual

misconduct, which heightened the risk that Appellants would

be assaulted. This latter theory is known as the “pre-assault

claim” because it relies on events that occurred before

Appellants’ assaults. The district court dismissed Karasek’s

6 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

individual claim, Commins’s individual claim, and the pre-

assault claim, and it granted summary judgment to UC on

Butler’s individual claim. We affirm the dismissal of

Karasek’s and Commins’s individual claims and the grant of

summary judgment on Butler’s individual claim. However,

we vacate the dismissal of the pre-assault claim and remand

for further proceedings.

I. BACKGROUND

For purposes of this appeal, we must accept as true the

factual allegations in Appellants’ Fourth Amended Complaint

(FAC) and in documents of which the district court took

judicial notice. See United States ex rel. Lee v. Corinthian

Colls., 655 F.3d 984, 991 (9th Cir. 2011). We remind the

parties and other interested persons that the facts have not

been established. See Lacey v. Maricopa Cty., 693 F.3d 896,

907 (9th Cir. 2012) (en banc).

A. Karasek’s Individual Claim

In February 2012, Karasek attended an overnight trip with

the Cal Berkeley Democrats Club (Club). While sleeping in

a bed with three other students, Karasek awoke because TH,

one of the other students in the bed, was “massaging her legs,

back and buttocks.” This continued for thirty minutes.

Karasek reported the assault to the Club president.

On February 14, 2012, the Club president informed a UC

official that TH had assaulted three Club members: Karasek

and two other women who had reported being assaulted to the

Club president. The UC official “discouraged” the Club

president from removing TH from the Club, instead

suggesting she “use more informal, transformative justice

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 7

models to deal with TH.” After TH admitted to the Club

president that he had assaulted Karasek, she asked TH to

resign from his board position, but allowed him to continue

attending Club events. Several months later, TH assaulted

another Club member. The Club president notified UC that

more women had reported that TH sexually assaulted them.

The president then removed TH from the Club altogether.

On April 20, 2012, Karasek and three other women met

with Denise Oldham, UC’s Title IX Officer, and Hallie Hunt,

the Director of the Center for Student Conduct (CSC), to

formally report their assaults. Contrary to UC’s Sexual

Harassment Policy, Karasek was not told of the options for

resolving her claim, the range of possible outcomes, the

availability of interim protective measures, or that UC would

not actually investigate unless Karasek submitted a written

statement. One month later, Karasek learned that one of TH’s

other victims had submitted a written statement. She

“thought it was a good idea,” so she also submitted a written

report to Hunt on May 15, 2012.

On May 14, 2012, Glenn DeGuzman, the Assistant

Director of CSC, met with TH. TH admitted that he had

“acted foolishly.” No formal consequences resulted from that

meeting. Instead, DeGuzman merely emailed TH the next

day, asking him to “please stay away from alcohol” and

cautioning:

If you do drink, do so responsibly. Make the

decision now to not put yourself in situations

to be alone with other women specifically if

you are drinking. Until you can better

understand what you are experiencing, it is in

8 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

your best interest to not put yourself in that

situation.

TH was then allowed to participate in UC’s “Cal in the

Capitol” program during the summer of 2012 with no

restrictions.

Oldham met with TH for the first time on September 17,

2012. Several weeks later, Oldham emailed CSC, stating that

she “determined that this situation could be resolved without

a formal investigation by [the Title IX] office,” and that

“from her perspective, she considered the sexual harassment

issue with TH to be resolved.”

CSC then began an informal process with TH. On

October 10, 2012, DeGuzman sent TH an Administrative

Disposition Letter stating that TH had violated UC’s Student

Code of Conduct. TH could choose either to discuss this

finding with DeGuzman further or to accept responsibility

and submit to a number of sanctions. TH chose the former

option and met with DeGuzman. Following this meeting,

DeGuzman sent a second Administrative Disposition Letter.

This letter, however, omitted one of the sanctions that had

been included in the first letter—namely, that TH meet with

a UC Health Educator to discuss “gender issues and sexual

misconduct.” TH accepted responsibility on October 26,

2012. As a result, the following sanctions applied:

(1) disciplinary probation until TH graduated, (2) one

consultation with a mental health practitioner of TH’s choice,

and (3) one meeting with an Alcohol and Other Drugs

Counselor in UC’s Social Services department.

Meanwhile, Karasek had received no communications

from UC since filing her written statement in May 2012. She

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 9

was not informed that Oldham opted not to formally

investigate. Nor was Karasek told that her complaint against

TH had been resolved informally or that TH was sanctioned.

Karasek alleges that UC’s failure to apprise her of the

investigation or allow her to participate violated UC’s Sexual

Misconduct Policy and a 2011 Dear Colleague Letter issued

by the Department of Education (DOE). See Dear Colleague

Letter: Sexual Violence, Russlynn Ali, Office for Civil

Rights, U.S. Dep’t of Educ. (Apr. 4, 2011) [hereinafter 2011

Dear Colleague Letter or DCL].

Eventually, Karasek learned that TH would graduate from

UC in December 2012. Frustrated that UC was not timely

handling her complaint, Karasek met with Christine

Ambrosio, the Director of Women’s Resources at UC’s

Gender Equity Resource Center, on November 2, 2012, to

voice her concerns. A couple of days later, Ambrosio

emailed Karasek, saying that she had contacted CSC and was

waiting for an update on the TH investigation. After Karasek

sent several more emails, someone in UC’s Title IX office

finally responded on December 12, 2012. That email simply

said that “this matter had been explored and resolved using an

early resolution process outlined in our campus procedures

for responding to sexual harassment complaints,” and that the

Title IX officer had “communicated the outcome of the

resolution process to the Center for Student Conduct.” The

email did not describe the investigation’s outcome. TH then

graduated from UC. A few days later, an individual in CSC

emailed Karasek, saying that TH had violated the Code of

Student Conduct. Again, this email did not inform Karasek

of any of the sanctions imposed. Karasek did not learn the

nature of the sanctions until September 20, 2013.

10 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

B. Commins’s Individual Claim

In January 2012, Commins invited an acquaintance from

the Tae Kwan Doe team, John Doe 2 (Doe 2), to her

apartment. While there and without Commins’s consent, Doe

2 performed oral sex on Commins, digitally penetrated her,

rubbed his genitals on her face, and attempted to physically

coerce her to perform oral sex on him. Commins reported the

assault to UC’s Tang Student Health Center the next day and

to UC’s Police Department on January 20, 2012. The

Alameda District Attorney’s Office charged Doe 2 with

felony sexual assault.

On January 31, 2012, UC placed Doe 2 on interim

suspension, prohibiting him from entering campus. After a

hearing, UC modified the interim suspension to allow Doe 2

on campus solely to attend his classes. UC did not inform

Commins of the suspension or the hearing.

Commins submitted an Incident Report Form to CSC on

February 22, 2012. Several weeks later, Julio Oyola, a CSC

representative, met with Commins to discuss her allegations.

At this meeting, Oyola intimated that UC would not

investigate until after the Berkeley Police Department

finished its criminal investigation. Commins told Oyola that

she was not comfortable with a delay, to no avail. UC’s Dean

of Students sent a letter to Doe 2 on May 11, 2012, informing

him that he was again placed on interim suspension to

“accommodate [his] request to postpone [UC’s] hearing upon

[his] charges until such time as criminal charges pending

against [him] have been resolved.”

Doe 2 was convicted of felony assault on October 5,

2012. UC’s officials then began communicating with Doe 2

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 11

and his attorney about UC’s investigation. At some point

during these exchanges, a UC official told Commins that a

formal hearing would be held where Commins could present

evidence. No hearing was ever held. Instead, on January 21,

2013, Oldham told Commins that she had completed her

investigation of Doe 2, found that he had violated UC’s

Policy on Sexual Harassment, and forwarded that finding to

CSC.

CSC then began an informal investigation. Hunt met with

Doe 2 and his attorney on February 4, 2013. Following that

meeting, Hunt asked Commins if she would be comfortable

with Doe 2 being suspended until she graduated. Commins

said that she preferred that Doe 2 be permanently expelled,

but Hunt responded that this was not possible. Commins

reluctantly agreed that a suspension of her assailant was the

best available option.

As a result, CSC sent Doe 2 an Administrative

Disposition Letter, informing him that he had violated the

Code of Student Conduct. The letter imposed the following

sanctions: (1) suspension until August 31, 2015;

(2) exclusion from campus and UC activities until that same

date; (3) permanent disciplinary probation; (4) prohibition on

contacting Commins; and (5) a reflective writing assignment.

Doe 2 accepted these sanctions on March 5, 2013.

In March, Hunt emailed Commins to inform her of the

outcome of CSC’s investigation. This email was sent to an

address that Commins had never used to communicate with

UC, so Commins did not see the email. Four months later,

Commins emailed Hunt, seeking an update on the

investigation. Hunt promptly responded and described Doe

12 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

2’s sanctions. Commins was not given an opportunity to

appeal or contest these sanctions.

Nearly one year later, Commins informed Hunt that she

had been accepted to UC’s graduate School of Public Health

and expressed concern that Doe 2 would return to campus

while Commins pursued her graduate studies. Hunt

confirmed that Doe 2 planned to return to UC once his

suspension ended. Commins asked UC to preclude Doe 2

from returning to campus until she graduated. UC denied that

request. Doe 2 recommenced his education in August 2015.

While he attended UC, he remained subject to UC’s no-

contact order. Commins does not allege that she saw Doe 2

again.

C. Butler’s Individual Claim

During the summer of 2012, Butler worked as a research

assistant to Margot Higgins, a graduate student. Higgins paid

Butler directly, and Butler did not receive academic credit for

her work. The research occurred in Alaska. While in Alaska,

Butler lived at the Wrangell Mountains Center (WMC), a

nonprofit entity unaffiliated with UC. WMC also hosted

programming for the Alaska Wildlands Studies Program,

where Butler’s assailant, John Doe (Doe), was a part-time

instructor.

Doe had a reputation for giving hugs, some of which were

“longer than what felt comfortable.” According to Butler,

one night, while Butler was alone in WMC’s common area,

Doe came up behind her, trapped her against a table, put his

hands down her pants, touched her inappropriately, and then

left. Shortly after this incident, Butler told Higgins that

“someone had done something inappropriate, had touched her

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 13

inappropriately, but that she handled it.” Higgins asked if it

was Doe, and Butler confirmed that it was. Higgins said that

she would not do anything if Butler felt like she had dealt

with the situation.

Several days later, Doe approached Butler from behind,

ran his fingers through her hair, and rubbed her shoulders.

Doe said, “It’s so nice to have such a beautiful woman

around,” and then left. Butler again called Higgins, told her

what Doe did, and informed Higgins that the encounter made

her “uncomfortable” and that she “didn’t like it.” Higgins

told Butler that she would do whatever Butler wanted.

Apparently, nothing came of this call.

A few days after that, Butler was singing while preparing

dinner in WMC’s kitchen. Doe came up behind her, put his

hands under her shirt, and touched her breasts. As he left,

Doe said, “You have such a beautiful voice.” Immediately

after that incident, Butler called Higgins and told her what

happened. Higgins allowed Butler to stay in Higgins’s cabin,

which was outside of WMC’s property, until Doe left. Butler

did not interact with Doe again.

Butler first reported her assaults to UC on November 20,

2012, in a meeting with Ambrosio. Butler cannot recall what

details they discussed, but she does know that she did not

identify Doe as her assailant at that meeting. On February 28,

2013, Butler met with Oldham and Ambrosio. Butler

expressed her desire to remain anonymous, fearing retaliation

if she reported the assault. Ultimately, Butler told Oldham

where the assaults had occurred, but did not disclose Doe’s

identity.

14 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

Several months later, Butler emailed Ambrosio and

explained that Butler believed UC was violating federal law,

state law, and UC’s policies in the manner in which it was

handling Butler’s report. Butler and one of her friends met

with Ambrosio and Oldham on April 26, 2013. At this

meeting, Oldham noted that UC’s policies would not apply

unless Butler’s assailant was UC’s employee. Butler then

revealed the names of the Alaska Wildlands Studies Program,

WMC, Higgins, and Lynn Huntsinger, who was Higgins’s

faculty advisor. According to Oldham’s notes, Butler asked

Oldham to research the program to determine whether UC’s

policies would apply.

Oldham emailed Huntsinger on May 21, 2013, asking

about the Wildlands Studies Program. Huntsinger said she

was not aware of that program, but after searching on the

internet, she discovered that it was a California State

University, Monterey Bay program. The next day, Oldham

emailed Butler to ask for more details about her participation

in the Wildlands Studies Program and for a copy of the

contract she signed with Higgins. Before Butler responded,

Oldham received an email from Leslie Arutunian, an

employee with the Wildlands Studies Program. Arutunian

told Oldham that the program had no connection to UC.

On May 30, 2013, Oldham emailed Butler again,

notifying her that Oldham had received new information.

Because of various scheduling conflicts, Butler did not meet

with Oldham until August 7, 2013. Butler contends that at

this meeting she identified Doe as her assailant and told

Oldham that Doe was a guest lecturer at UC. Oldham

showed Butler the documents Arutunian had sent and said

that Arutunian was willing to speak with Butler about her

assaults. Butler preferred that Oldham follow up with

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 15

Arutunian instead. This was the last time Butler met with

Oldham, and Oldham did not take any further steps to

investigate Butler’s claims.

At his deposition, Doe confirmed that he visits UC’s

campus “once or twice a year,” and that he sporadically

serves as a guest speaker. Doe estimated that he gives a guest

lecture once “every year or two,” and that he had been on

UC’s campus five or six times since the summer of 2012.

D. Pre-Assault Claim

To support Appellants’ pre-assault claim, the FAC

includes allegations relating to UC’s history of responding to

reports of sexual misconduct. The FAC describes a 2014

report prepared by the California State Auditor detailing

several deficiencies in UC’s handling of sexual-harassment

cases between 2009 and 2013. The FAC also highlights an

administrative Title IX claim filed in 2014 by thirty-one

women, alleging that UC has not adequately responded to

complaints of sexual assault since 1979. Appellants allege

that UC resolved a majority of sexual-assault complaints with

informal processes, even though Oldham publicly stated that

only formal processes should be used in cases of sexual

assault. And finally, the FAC alleges that UC “consciously

and intentionally” chose to resolve sexual-assault reports

informally to avoid its statutory duty to report cases of sexual

violence to DOE. Based on these allegations, the FAC

concludes that UC maintained “a policy of deliberate

indifference to sexual misconduct against female students”

that created a “sexually hostile environment” and heightened

the risk that Appellants would be assaulted.

16 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

E. Proceedings Below

After multiple rounds of motions to dismiss, the district

court dismissed all but Butler’s Title IX claim. Following

discovery on Butler’s claim, the district court granted

summary judgment to UC. The court then entered judgment

in favor of UC on all claims.

Appellants timely appealed from that judgment,

challenging the district court’s summary-judgment order and

its orders granting UC’s motions to dismiss. On appeal,

Appellants argue that Karasek and Commins adequately

pleaded a Title IX violation based on UC’s response to their

reports of sexual assault, Butler established a genuine issue of

material fact as to whether UC violated Title IX in its

response to her report, and Appellants adequately alleged that

UC’s policy of indifference to sexual misconduct violated

Title IX.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 28 U.S.C. § 1331.

We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the grant of a motion to dismiss under

Rule 12(b)(6) and may affirm on any ground supported by the

record. Metzler Inv. GMBH v. Corinthian Colls., Inc.,

540 F.3d 1049, 1061 (9th Cir. 2008). This “[r]eview is

limited to the complaint, materials incorporated into the

complaint by reference, and matters of which the court may

take judicial notice.” Id. When considering a motion to

dismiss, we accept “as true all well-pleaded allegations of

fact in the complaint” and construe them in the light most

favorable to the non-moving party. Corinthian Colls.,

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 17

655 F.3d at 991. A complaint will not survive a motion to

dismiss unless it “contain[s] sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(internal quotation marks omitted).

We also review a grant of summary judgment de novo.

Tauscher v. Phx. Bd. of Realtors, Inc., 931 F.3d 959, 962 (9th

Cir. 2019). A party is entitled to summary judgment “only if,

taking the evidence and all reasonable inferences in the light

most favorable to the non-moving party, there are no genuine

issues of material fact, and the movant is entitled to judgment

as a matter of law.” Id. (citing Fed. R. Civ. P. 56(a)). “An

issue of material fact is genuine if there is sufficient evidence

for a reasonable jury to return a verdict for the non-moving

party.” Id. (internal quotation marks omitted). Factual

determinations underlying a grant of summary judgment will

not be reversed unless they are clearly erroneous. Pyramid

Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 813 (9th

Cir. 2014).

III. DISCUSSION

Title IX provides, “No person in the United States shall,

on the basis of sex, be excluded from participation in, be

denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). Victims of sex

discrimination have a private right of action against recipients

of federal education funding for alleged Title IX violations,

see Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979), and

may seek damages for those violations, see Franklin v.

Gwinnett Cty. Pub. Schs., 503 U.S. 60, 75–76 (1992).

Damages are available if the “official policy” of the funding

18 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

recipient discriminates on the basis of sex. Gebser v. Lago

Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). In the

absence of an official policy, damages are not recoverable

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

adequately to respond.” Id. In other words, there must be

“an official decision by the recipient not to remedy the

violation.” Id.

As already noted, Appellants assert two types of

claims—individual claims and a pre-assault claim. We

address the individual claims first.

A. Individual Claims

To ensure that a funding recipient is liable “only for its

own misconduct,” Davis v. Monroe Cty. Bd. of Educ.,

526 U.S. 629, 640 (1999), a plaintiff alleging a Title IX claim

against a school that arises from student-on-student or

faculty-on-student sexual harassment or assault must

establish five elements.1 First, the school must have

“exercise[d] substantial control over both the harasser and the

context in which the known harassment occur[red].” Id.

at 645. Second, the plaintiff must have suffered harassment

“that is so severe, pervasive, and objectively offensive that it

1

These five elements are in addition to the threshold requirements

that the defendant be a recipient of “[f]ederal financial assistance” and that

the plaintiff experienced sex discrimination. See 20 U.S.C. § 1681(a).

Here, there is no dispute that UC receives federal funding and that

Appellants’ sexual assaults constituted sex discrimination. See Davis,

526 U.S. at 649–50 (“[S]exual harassment is a form of discrimination for

Title IX purposes . . . .”).

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 19

can be said to deprive the [plaintiff] of access to the

educational opportunities or benefits provided by the school.”

Id. at 650. Third, a school official with “authority to address

the alleged discrimination and to institute corrective measures

on the [school’s] behalf” must have had “actual knowledge”

of the harassment. Reese v. Jefferson Sch. Dist. No. 14J, 208

F.3d 736, 739 (9th Cir. 2000); see Davis, 526 U.S. at 650.

Fourth, the school must have acted with “deliberate

indifference” to the harassment, such that the school’s

“response to the harassment or lack thereof [was] clearly

unreasonable in light of the known circumstances.” Davis,

526 U.S. at 648. This is a fairly high standard—a “negligent,

lazy, or careless” response will not suffice. Oden v. N.

Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 2006).

Instead, the plaintiff must demonstrate that the school’s

actions amounted to “‘an official decision . . . not to remedy’”

the discrimination. Id. (quoting Gebser, 524 U.S. at 290)

(alteration in original). And fifth, the school’s deliberate

indifference must have “subject[ed the plaintiff] to

harassment.” Davis, 526 U.S. at 644. Put differently, the

school must have “cause[d the plaintiff] to undergo

harassment or ma[d]e [the plaintiff] liable or vulnerable to it.”

Id. at 645 (internal quotation marks omitted).

The Supreme Court has emphasized that Title IX “does

not mean that recipients can avoid liability only by purging

their schools of actionable peer harassment or that

administrators must engage in particular disciplinary action.”

Id. at 648. Rather, “the recipient must merely respond . . . in

a manner that is not clearly unreasonable.” Id. at 649.

Absent an unreasonable response, we cannot “second-guess[]

the disciplinary decisions made by school administrators.”

Id. at 648. And the reasonableness of the response depends

on the educational setting involved—what would be

20 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

unreasonable in the context of an elementary school might

not be unreasonable in the context of a university. Id. at 649.

The district court dismissed Karasek’s and Commins’s

claims for failing to adequately allege the fourth

element—deliberate indifference. On Butler’s claim, the

district court found that she failed to demonstrate the first,

fourth, and fifth elements—that UC controlled Butler’s

assailant, acted with deliberate indifference, and caused

Butler to undergo harassment. We affirm the district court’s

orders with respect to each of the individual claims.2

1. Karasek’s individual claim

Karasek argues that the FAC adequately alleges that UC

was deliberately indifferent in four respects: (a) UC

unjustifiably delayed its investigation, (b) UC violated its

own policies and the DCL when responding to Karasek’s

report, (c) UC took no steps to prevent TH from continuing

to harass Karasek, and (d) the substance of UC’s response

was inequitable.

a. UC’s alleged delay

A school’s delayed response constitutes deliberate

indifference if it prejudices the plaintiff or if the delay was a

“deliberate attempt to sabotage [the p]laintiff’s complaint or

its orderly resolution.” Oden, 440 F.3d at 1089. In Oden, the

plaintiff argued that a nine-month delay between the

2

Because we address only the fourth element, we express no opinion

on the circuit split regarding the fifth element. Compare Kollaritsch v.

Mich. State Univ. Bd. of Trs., 944 F.3d 613 (6th Cir. 2019), with Farmer

v. Kan. State Univ., 918 F.3d 1094 (10th Cir. 2019).

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 21

plaintiff’s report of sexual assault and a formal hearing held

by her college established deliberate indifference. Id. We

rejected that argument. We noted that the college acted

shortly after the plaintiff’s report by providing counseling,

helping her file a formal complaint, and ordering her assailant

not to contact her. See id. Although the nine-month delay

was “negligent, lazy, or careless,” it did not amount to

deliberate indifference, given the school’s actions in the

meantime. Id.

Here, eight and one-half months elapsed between the date

when UC had actual notice of Karasek’s assault and when TH

accepted the sanctions UC proposed. But like the college in

Oden, UC was not idle during those months. When the Club

president told UC that TH sexually assaulted a student, UC

communicated with the president to determine the best course

of action. Less than one month after Karasek reported her

assault to CSC, DeGuzman met with TH to discuss the

charges. Oldham met with him again at the beginning of the

ensuing fall semester, eventually leading to the issuance of

several Administrative Disposition Letters. To be sure, the

actions UC took after learning of Karasek’s assault may have

been less helpful than the college’s actions in Oden.

Nevertheless, UC’s actions and attendant delay did not

constitute a “deliberate attempt to sabotage [Karasek’s]

complaint or its orderly resolution.” Id.

Karasek relies on Williams v. Board of Regents of

University System of Georgia, 477 F.3d 1282 (11th Cir.

2007). But that case involved a level of indifference far more

extreme than anything present here. In Williams, the

University of Georgia did not hold a disciplinary hearing until

eleven months after the plaintiff informed the university that

she had been gang-raped by members of the basketball team.

22 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

Id. at 1296–97. The university’s police department had

performed a “thorough investigation” and produced a

comprehensive report within a few months of the assault that

largely corroborated the plaintiff’s account, but the university

still took no action. Id. at 1296–97. By the time the

disciplinary hearing was held, several of the plaintiff’s

assailants no longer attended the university. Id. at 1296. The

Eleventh Circuit concluded that, in those circumstances, the

university’s delay was deliberately indifferent. Id.

Unlike the university in Williams, UC met with and

ultimately sanctioned Karasek’s assailant while he still

attended school. Any delay did not prejudice Karasek. Even

though UC could have acted more quickly, UC’s delay did

not constitute deliberate indifference.

b. UC’s alleged policy violations

Ordinarily, a school’s “failure to comply with [DOE]

regulations . . . does not establish . . . deliberate indifference.”

Gebser, 524 U.S. at 291–92. The same is true of a school’s

violations of its own policies. See Oden, 440 F.3d at 1089

(finding no deliberate indifference even though the school’s

nine-month delay “contravene[d] College policy”); see also

Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist.,

647 F.3d 156, 169–70 (5th Cir. 2011) (“[J]ust because [the

school official] allegedly failed to follow district policy does

not mean that her actions were clearly unreasonable.”).

UC’s alleged conduct was inconsistent with both the DCL

and its own policies. The DCL advises a school to “take

immediate steps to protect” the complainant, afford the

parties “an equal opportunity to present relevant witnesses

and other evidence,” give “periodic status updates” to both

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 23

parties, and promptly notify the parties “in writing[] about the

outcome of both the complaint and any appeal.” 2011 Dear

Colleague Letter, at 10–13.3 Many of these provisions are

reflected in UC’s own policies. Further, both the DCL and

UC’s policies provide that a sexual-assault complaint should

be resolved within sixty days. Id. at 12. Finally, UC’s

Interim Sexual Misconduct Policy requires CSC to “consult

with the Complainant” before resolving a sexual-assault

complaint informally via an Administrative Disposition

Letter. UC followed none of these provisions.

Yet, this does not constitute deliberate indifference per se.

The DCL itself states that it is applying a standard that is less

exacting than the deliberate-indifference test used in “private

lawsuits for monetary damages.” Id. at 4 n.12. In other

words, in DOE’s view, a school could fail to abide by the

DCL’s provisions and yet not violate the deliberate-

indifference standard. We cannot say that UC was

3

The DCL is a “good practices” or “significant guidance document,”

as defined by the Office of Management and Budget (OMB). See id. at 1

n.1. According to OMB, guidance documents may set forth an agency’s

“policy on . . . or interpretation of a statutory or regulatory issue,” but they

may not “impose a legally binding requirement” that adds to existing law.

Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432,

3434 (Jan. 25, 2007). DOE acknowledges that the DCL informs DOE’s

judgment of whether a school is “complying with [its] legal obligations,”

but cautions that the DCL applies the “standard for administrative

enforcement of Title IX and in court cases where plaintiffs are seeking

injunctive relief,” and not the deliberate-indifference standard. 2011 Dear

Colleague Letter, at 1 n.1, 4 n.12.

Further, we note that DOE has rescinded the DCL, albeit long after

the events alleged in the FAC transpired. See Dear Colleague Letter,

Candice Jackson, Office for Civil Rights, U.S. Dep’t of Educ., at 1 (Sept.

22, 2017).

24 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

deliberately indifferent solely by disregarding the DCL and

its own policies.

To avoid this conclusion, Karasek, citing Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57 (1986), argues that the

DCL is DOE’s interpretation of Title IX, so we must defer to

that interpretation. But Meritor involved a question of

statutory interpretation: whether the phrase “discriminate

against any individual . . . because of such individual’s . . .

sex” in Title VII encompassed a sexually hostile work

environment. See id. at 63–67 (quoting 42 U.S.C. § 2000e-

2(a)(1)). We do not face a statutory interpretation issue. A

damages remedy for Title IX violations is judicially implied,

not statutorily created. The Supreme Court has crafted “a

sensible remedial scheme” with “a measure of latitude . . .

that best comports with the statute.” Gebser, 524 U.S. at 284.

Because the DCL does not address that remedial scheme, the

DCL is merely advisory and not an interpretation of Title IX

that need be afforded deference in this context under

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). The Supreme Court in Davis, not

Congress, articulated the deliberate-indifference standard.

All we must decide is whether UC’s conduct qualifies as

deliberate indifference under that standard. Meritor is

inapposite, and the DCL does not control our inquiry here.

See Gebser, 524 U.S. at 291–92.

That is not to say that the DCL is entirely irrelevant to the

deliberate-indifference inquiry. Although we are aware of no

federal court of appeals that has addressed the impact of DOE

guidance documents when analyzing deliberate indifference,

many district courts have concluded that those documents

may guide the analysis. See, e.g., Doe 1 v. Baylor Univ.,

240 F. Supp. 3d 646, 659 (W.D. Tex. 2017) (“While the

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 25

Court agrees that a school’s failure to comply with certain

DOE guidelines generally cannot, alone, demonstrate a

school’s deliberate indifference, . . . it also agrees with

numerous courts that DOE regulations may still be consulted

when assessing the appropriateness of a school’s response to

reports of sexual assault.”); Butters v. James Madison Univ.,

208 F. Supp. 3d 745, 757–58 (W.D. Va. 2016) (noting that “a

school’s compliance or non-compliance with the DCL can be

a factor that the court considers,” but a violation of the DCL

“would not be dispositive on the issue of deliberate

indifference”); Doe v. Forest Hills Sch. Dist., No. 1:13-cv-

428, 2015 WL 9906260, at *10 (W.D. Mich. Mar. 31, 2015)

(“Although failure to comply with Title IX guidance does not,

on its own, constitute deliberate indifference, it is one

consideration.” (emphasis omitted)).

We agree that the DCL is useful as a persuasive document

that sets forth DOE’s considered views. Yet, given DOE’s

decision to rescind the DCL in 2017, see supra note 3, the

DCL’s persuasive force is somewhat limited. Regardless, a

school’s failure to follow the DCL’s provisions, standing

alone, will not constitute deliberate indifference. But that

failing may be relevant, particularly when it reflects “an

official decision . . . not to remedy the [Title IX] violation.”

Gebser, 524 U.S. at 290.

Ultimately, we conclude that UC’s noncompliance with

the DCL and its own policies was, at most, “negligent, lazy,

[and] careless.” Oden, 440 F.3d at 1089. Nevertheless,

because UC investigated Karasek’s complaint, met with her

assailant shortly after she submitted her written report, and

eventually imposed appropriate sanctions, UC’s

noncompliance did not constitute deliberate indifference to

Karasek’s complaint.

26 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

c. UC’s alleged failure to preclude further

harassment

Karasek argues that UC was deliberately indifferent by

failing to preclude the possibility that TH could harass

Karasek again after she reported the assault. UC could have

immediately imposed interim sanctions on TH, such as

barring him from campus during UC’s investigation or

issuing a no-contact order, particularly given that UC was

aware that multiple women reported being sexually assaulted

by him. Indeed, in hindsight, UC’s decision to initially

discourage the Club president from expelling TH from the

Club is troubling. UC instead attempted to resolve the

complaints against TH informally through “an early

resolution process.” We might have handled the situation

differently, but the Supreme Court has instructed us to

“refrain from second guessing the disciplinary decisions

made by school administrators” unless those decisions were

“clearly unreasonable.” Davis, 526 U.S. at 648.

UC’s decisions were not clearly unreasonable. Karasek

never interacted with TH again after the assault, aside from

seeing him from afar on one occasion. And there is no

indication that Karasek told Oldham and Hunt that she

regularly saw TH when meeting with them on April 20, 2012.

As a result, UC had no reason to know that preventative

measures were necessary to protect Karasek from future

harassment, especially in light of the context and nature of

her assault (though, as we note below, UC’s lack of

communication with Karasek likely prevented UC from fully

understanding what preventative steps may have been

necessary). UC’s failure to implement protective measures

did not exhibit deliberate indifference.

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 27

d. The substance of UC’s response

Karasek argues that “UC’s response was wholly

inequitable” because UC allowed TH to participate in the

“Cal in the Capitol” event and communicated with TH while

ignoring Karasek. Choosing not to prohibit TH from

attending “Cal in the Capitol” does not establish deliberate

indifference, for “[a]n aggrieved party is not entitled to the

precise remedy that he or she would prefer.” Oden, 440 F.3d

at 1089. Indeed, Karasek does not allege that she would have

attended “Cal in the Capitol” but for TH’s presence, so it is

unclear that UC’s decision not to forbid TH from attending

while UC’s investigation continued was clearly unreasonable.

As for UC’s lack of communication, this is an inexcusable

omission by UC’s officials. Keeping a victim of sexual

assault largely in the dark about the investigation of her

assailant and the ultimate sanctions imposed is not only

inappropriate, but also deprives the school of information that

might be crucial to its investigation. Nevertheless, despite its

lack of communication, UC acted on Karasek’s complaint

and imposed arguably appropriate sanctions on TH. Thus,

UC was not deliberately indifferent to Karasek’s assault.

Because the allegations in the FAC fail to show that UC

made “an official decision . . . not to remedy the [Title IX]

violation,” Gebser, 524 U.S. at 290, we affirm the district

court’s dismissal of Karasek’s individual Title IX claim.

2. Commins’s individual claim

Like Karasek, Commins argues that the FAC adequately

alleges deliberate indifference for several reasons: (a) UC

unjustifiably delayed its investigation, (b) UC violated the

DCL and its own policies, (c) UC failed to take steps to

28 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

prevent Doe 2 from further harassing Commins, and (d) UC

unreasonably failed to permit Commins to participate in the

investigation of Doe 2.

a. UC’s alleged delay

Commins argues that UC unjustifiably delayed its

resolution of Commins’s complaint. Thirteen months elapsed

after Commins reported her assault before UC imposed final

sanctions on Doe 2. This delay was partially engendered by

UC’s decision to stay its investigation until Doe 2’s criminal

charges were resolved. But UC did not sit on its hands during

those months. To the contrary, within two weeks of

Commins’s report, UC placed Doe 2 on interim suspension,

barring him from campus. Doe 2 remained on that

suspension, with a slight modification allowing him to attend

classes, throughout the investigation. This is unlike the

University of Georgia in Williams, which failed to act against

the assailants for eleven months. Commins’s allegations thus

fail to show that the thirteen-month delay prejudiced her or

was a “deliberate attempt to sabotage [her] complaint.”

Oden, 440 F.3d at 1089. UC’s actions were not clearly

unreasonable.

b. UC’s alleged policy violations

Like Karasek, Commins argues that UC’s investigation

ran afoul of the DCL and UC’s policies. While investigating

Commins’s complaint, UC acted inconsistently with all the

provisions of the DCL and its own policies that we have

already identified. Indeed, given the violent nature of

Commins’s assault, Commins likely should have been

afforded the opportunity to present testimony and other

evidence at a formal hearing, as the DCL recommends and

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 29

UC’s policies require. UC also violated its Interim Sexual

Misconduct Policy’s prohibition on suspending an

investigation merely because of pending criminal charges

against the assailant, which the DCL advises against as well.

See 2011 Dear Colleague Letter, at 10. But for the reasons

expressed above, this does not establish deliberate

indifference, particularly in light of the interim suspension

immediately placed on Doe 2 to protect Commins while UC’s

investigation was stayed.

c. UC’s alleged failure to prevent further harassment

Commins asserts that UC was deliberately indifferent

because “Doe 2 was not placed on interim suspension until

three months” after Commins’s report, and because UC

“never issued a no-contact order.” Both assertions are

incorrect. As demonstrated by the FAC’s allegations, UC

placed Doe 2 on interim suspension within two weeks of

Commins’s report, not three months. And UC did issue a no-

contact order to Doe 2 as part of the final sanctions imposed.

Commins does not allege that these protective measures were

ineffective. Indeed, Commins identifies no instance when she

ever saw Doe 2 again after reporting her sexual assault.

Thus, Commins’s argument here fails to demonstrate UC’s

deliberate indifference.

d. UC’s alleged failure to allow Commins to

participate in the investigation

Finally, Commins argues that UC responded inequitably

by constantly communicating with Doe 2 while failing to

update Commins or provide her with an opportunity to

participate in the investigation. Although UC contacted

Commins several times during the investigation and

30 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

discussed potential sanctions with her, we agree that UC’s

general lack of communication was likely a significant

failing. And as noted above, the decision to resolve

Commins’s complaint informally without allowing Commins

to testify or present evidence is troubling, given the context

and nature of her assault. If she had been given that

opportunity, perhaps UC would have dealt even harsher

sanctions. The wisdom of UC’s decision not to expel a

convicted felon, or at least extend his suspension while

Commins pursued graduate studies at UC, can be questioned.

Despite these shortcomings, however, UC’s response did not

exhibit deliberate indifference. After Commins reported her

assault, UC moved quickly to suspend her assailant, and UC

imposed fairly stringent sanctions upon resolution of

Commins’s complaint. We may disagree with UC’s handling

of Commins’s complaint, but that does not suffice for Title

IX liability. See Oden, 440 F.3d at 1089. We affirm the

district court’s dismissal of Commins’s individual claim.

3. Butler’s individual claim

In granting summary judgment to UC, the district court

held that Butler’s Title IX claim failed because UC’s

response was not deliberately indifferent.4 On appeal, Butler

argues that UC was deliberately indifferent in three respects:

(a) UC failed to investigate her complaint at all, (b) UC failed

to take steps to prevent Doe from harassing Butler again, and

(c) UC violated the DCL and its own policies.

4

The district court rejected Butler’s claim for two additional,

independent reasons: UC lacked control over Butler’s assailant and UC

did not cause Butler to experience severe and pervasive harassment.

Because we affirm the district court’s finding that UC was not deliberately

indifferent, we do not address the district court’s additional findings.

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 31

a. UC’s investigation

Butler’s argument that UC failed to investigate her

complaint is demonstrably false. Indeed, the district court

found that this argument “misrepresents the record.” After

Butler reported her assault and asked Oldham to investigate,

Oldham discussed the nature of the Wildlands Studies

Program with a UC faculty member to determine if UC’s

policies would apply. That conversation led Oldham to

discover that the program was affiliated with California State

University, Monterey Bay, and not with UC. Oldham also

emailed Leslie Arutunian, an employee with the Wildlands

Studies Program, who confirmed that the program had no

connection to UC. At that point, Oldham concluded that

UC’s policies did not apply to Butler’s assault and stopped

investigating. Thus, UC did in fact investigate Butler’s

complaint, and the extent of its investigation was not “clearly

unreasonable.” See Davis, 526 U.S. at 648.

b. UC’s alleged failure to prevent further harassment

Butler argues that UC was deliberately indifferent by

failing to preclude the possibility that Doe could harass Butler

again. But it is unclear what interim protective measures UC

should have imposed. As the district court found, Doe “was

an independent third-party with no official relationship to

UC.” Accordingly, UC could not directly sanction Doe, as it

could if Butler’s assailant had been a UC student or faculty

member. And Butler never told Oldham that she feared

meeting Doe on campus or that she wanted UC to issue a no-

contact order. Indeed, when Butler asked for help obtaining

academic accommodations, UC did so, demonstrating UC’s

sensitivity to Butler’s requests. Finally, Butler never claims

to have seen Doe again after her assault. Given the

32 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

information UC knew at the time, UC’s failure to

immediately implement protective measures does not

constitute deliberate indifference.

c. UC’s alleged policy violations

Butler contends that UC violated the DCL and UC’s own

policies by failing to (1) “respond to Butler’s complaint,”

(2) “act when [Butler] wanted to remain anonymous,” or

(3) “implement any interim measures to remediate her hostile

environment on campus.” We have already concluded that

UC did respond to Butler’s complaint and that the lack of

protective measures was not clearly unreasonable.

Regardless, as we explained above, UC’s failure to follow the

DCL’s guidance or abide by the school’s own policies does

not establish deliberate indifference. See supra Section

III.A.1.b. Accordingly, we affirm the grant of summary

judgment to UC on Butler’s individual claim.

B. Appellants’ Pre-Assault Claim

In addition to their individual Title IX claims, Appellants

allege that UC maintained a “policy of deliberate indifference

to sexual misconduct” that “created a sexually hostile

environment for [Appellants]” and heightened the risk that

Appellants would be sexually assaulted. UC argues that this

pre-assault theory of Title IX liability “fails as a matter of

law” because it is “contrary to . . . Supreme Court precedent.”

The district court dismissed this claim because it found

Appellants’ argument that UC’s “level of awareness or

deficiency of response with respect to the general problem of

sexual violence is enough to establish either actual knowledge

or deliberate indifference for the purposes of a Title IX

claim” without sufficient basis in our case law. To the

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 33

district court’s credit, we have never directly addressed pre-

assault Title IX claims. We hold that such a claim is a

cognizable theory of Title IX liability. Because we clarify the

standard applicable to such claims, we vacate the district

court’s dismissal of Appellants’ pre-assault claim and remand

for further proceedings.

As explained above, a plaintiff asserting a Title IX claim

based on sexual harassment committed by a faculty member

or peer must demonstrate that the school had “actual

knowledge” of the harassment and responded with “deliberate

indifference.” See Davis, 526 U.S. at 650. This ensures that

a school is “liable in damages under Title IX only for its own

misconduct,” and not that of third parties. Id. at 640.

But the calculus shifts when a plaintiff alleges that a

school’s “official policy” violates Title IX. See Gebser,

524 U.S. at 290. In that context, the school has “intentionally

violate[d] the statute.” Davis, 526 U.S. at 642. A school

need not have had actual knowledge of a specific instance of

sexual misconduct or responded with deliberate indifference

to that misconduct before damages liability may attach. See

Gebser, 524 U.S. at 290; see also Mansourian v. Regents of

Univ. of Cal., 602 F.3d 957, 967 (9th Cir. 2010) (“[W]here

the official policy is one of deliberate indifference to a known

overall risk of sexual harassment, notice of a particular

harassment situation and an opportunity to cure it are not

predicates for liability.”). Thus, a pre-assault claim should

survive a motion to dismiss if the plaintiff plausibly alleges

that (1) a school maintained a policy of deliberate

34 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

indifference to reports of sexual misconduct,5 (2) which

created a heightened risk of sexual harassment that was

known or obvious (3) in a context subject to the school’s

control, and (4) as a result, the plaintiff suffered harassment

that was “so severe, pervasive, and objectively offensive that

it can be said to [have] deprive[d] the [plaintiff] of access to

the educational opportunities or benefits provided by the

school.” Davis, 526 U.S. at 650.

We find persuasive the Tenth Circuit’s decision in

Simpson v. University of Colorado Boulder, 500 F.3d 1170

(10th Cir. 2007). There, the University of Colorado hosted

talented high school football players on campus each fall.

The recruits were to be shown “a good time” and “were

paired with female ‘Ambassadors.’” Id. at 1173. Some

recruits were “promised an opportunity to have sex,” and

there was evidence that the coaching staff not only knew of

this conduct, but encouraged it. Id. at 1173–74. The

university was aware of prior complaints of sexual

misconduct by recruits and had been warned by the district

attorney that the university needed to supervise the recruits

and implement sexual assault prevention training. Id. at

1173–74, 1179–84. The plaintiffs were two women who

were sexually assaulted by football recruits. Asserting a pre-

assault claim, the plaintiffs argued that the university had a

history of responding with deliberate indifference to reports

of sexual assaults occurring in its football recruiting program.

5

We do not hold that deliberate indifference to reports of past sexual

misconduct is the only form of pre-assault conduct that could result in an

institution’s Title IX liability. Rather, we focus on the sufficiency of such

allegations because they are what the FAC articulates. We do not have

occasion to consider whether other forms of pre-assault conduct could

amount to an official policy of deliberate indifference that is actionable

under Title IX.

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 35

Id. at 1174–75, 1177. The district court granted summary

judgment to the university, finding that the plaintiffs failed to

establish “actual notice” and “deliberate[] indifferen[ce].” Id.

at 1174. The Tenth Circuit reversed. It held that “when [a

Title IX] violation is caused by [an] official policy,” the

“notice standards established . . . in Gebser and Davis” do not

apply because, in that case, “the institution itself, rather than

its employees (or students), [is] the wrongdoer.” Id. at

1177–78. Because the “risk of . . . [sexual] assault” in the

football recruiting program was “obvious,” the failure to

remedy that risk constituted an official policy of deliberate

indifference that violated Title IX. Id. at 1178, 1180.

UC reads Simpson to require that the risk of sexual

harassment be a “specific problem in a specific program.”

Based on that understanding, UC argues that Appellants’

allegations of a heightened risk of sexual harassment

throughout UC’s programs cannot survive.

We disagree. To be sure, Simpson involved a particular

program. But Simpson’s reasoning, and the reasoning of

Gebser and Davis, supports imposing Title IX liability when

a school’s official policy is one of deliberate indifference to

sexual harassment in any context subject to the school’s

control. Of course, it may be easier to establish a causal link

between a school’s policy of deliberate indifference and the

plaintiff’s harassment when the heightened risk of harassment

exists in a specific program. But we will not foreclose the

possibility that a plaintiff could adequately allege causation

even when a school’s policy of deliberate indifference

extends to sexual misconduct occurring across campus.

Applying the framework we have set forth, we vacate the

district court’s dismissal of the pre-assault claim. Allegations

36 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

that UC had actual knowledge or acted with deliberate

indifference to a particular incident of harassment are

unnecessary to sustain this theory of liability. Instead, all

Appellants need allege are facts demonstrating the four

elements we have articulated above.

What the FAC does allege is troubling. The FAC

describes a report issued in 2014 by the California State

Auditor that details deficiencies in UC’s approach to sexual-

misconduct complaints. See CALIFORNIA STATE AUDITOR,

REP. NO. 2013-124, SEXUAL HARASSMENT AND SEXUAL

VIOLENCE (2014). The Auditor found that, over a five-year

period, UC “resolved 76 percent of Title IX complaints from

students using the early resolution process” in a generally

inadequate manner. Id. at 53. For example, UC could not

“demonstrate that [it] consistently informed students of what

to expect as the university investigated their complaints.” Id.

at 55. UC also failed to “provide regular updates on the

status of [its] investigations to students.” Id. at 57. It did not

“consistently complete investigations in a timely manner.”

Id. at 61. And it “did not notify all student complainants of

the outcome of an investigation and the subsequent

disciplinary action against the accused.” Id. at 59. Further,

the Auditor found that UC did not sufficiently educate its

employees and students about preventing sexual harassment,

which led to the “mishandl[ing]” of sexual-misconduct

complaints and “put[] the safety of [its] students at risk.” Id.

at 15, 30.

The FAC also highlights an incongruity between UC’s

public statements and its handling of sexual-misconduct

complaints. In February 2014, Denise Oldham—UC’s Title

IX Officer—stated in an interview with the Los Angeles

Times that she “could not imagine a situation where” using an

KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA 37

early resolution process for cases involving sexual assault

“would be appropriate.” If Oldham’s premise is correct—that

early resolution is not an appropriate mechanism for

resolving sexual-assault claims—UC’s conduct during the

period in question appears inexplicable. According to the

FAC, of the five hundred cases of sexual misconduct reported

to UC’s Office for the Prevention of Harassment and

Discrimination in 2012, only two were resolved through a

“formal process.” Similarly, of the fourteen sexual-

misconduct complaints reported to UC’s Center for Student

Conduct in 2013, all “were resolved through the . . . informal

resolution process.”

Finally, the FAC alleges that UC had a powerful incentive

to resolve cases through an informal process. The Jeanne

Clery Disclosure of Campus Security Policy and Campus

Crime Statistics Act requires UC to annually publish the

number of “criminal . . . sex offenses, forcible or

nonforcible,” that were “reported to campus security

authorities or local police agencies” and that occurred on or

around campus during the prior two years. 20 U.S.C.

§ 1092(f)(1)(F)(i). According to the FAC, UC “takes the

position” that “it is not required to report the offense”

pursuant to the Clery Act “if the matter is resolved

informally.” Assuming that is true (as we must, at this stage),

it is plausible that choosing to resolve sexual-misconduct

complaints through an early resolution process enables UC to

escape these statutory disclosure requirements.

UC argues that Appellants’ allegations are less probative

of an official policy than the evidence mustered by the

plaintiffs in Simpson. We agree that the allegations here are

much broader than the specific problem of sexual assault in

the University of Colorado’s football recruiting program. But

38 KARASEK V. REGENTS OF THE UNIV. OF CALIFORNIA

UC’s argument misses the mark. We are here on a motion to

dismiss. Simpson involved a motion for summary judgment,

after the parties had conducted discovery. Thus, the question

is not whether Appellants’ allegations are comparable to the

evidence produced in Simpson. Rather, the question is

whether Appellants plausibly allege that UC had a policy of

deliberate indifference that heightened the risk of sexual

harassment on campus, resulting in the assaults Appellants

experienced.

Ultimately, we leave to the district court to decide, in the

first instance, whether Appellants’ allegations are sufficient

to survive a motion to dismiss under the principles we have

set forth. We reiterate that Title IX does not require UC to

purge its campus of sexual misconduct to avoid liability. See

Davis, 526 U.S. at 648. A university is not responsible for

guaranteeing the good behavior of its students. The element

of causation ensures that Title IX liability remains within

proper bounds. To that end, adequately alleging a causal link

between a plaintiff’s harassment and a school’s deliberate

indifference to sexual misconduct across campus is difficult.

Whether the FAC plausibly alleges such a link—or any of the

four elements—is an issue for the district court to decide

upon remand. And the district court retains the discretion to

allow Appellants to amend their complaint if “justice so

requires.” Fed. R. Civ. P. 15(a)(2). In short, we vacate that

portion of the district court’s dismissal order addressing

Appellants’ pre-assault claim and remand for further

proceedings.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED. Each party shall bear its own costs on appeal.