Lauren Kesterson v. Kent State Univ.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0227p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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LAUREN KESTERSON, │

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Plaintiff-Appellant, > No. 18-4200

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v. │

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KENT STATE UNIVERSITY; KAREN LINDER, │

individually; ERIC OAKLEY, in his official capacity, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 5:16-cv-00298—Sara E. Lioi, District Judge.

Argued: October 23, 2019

Decided and Filed: July 23, 2020

Before: SUTTON, KETHLEDGE, and STRANCH, Circuit Judges.

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COUNSEL

ARGUED: Ashlie Case Sletvold, THE CHANDRA LAW FIRM LLC, Cleveland, Ohio, for

Appellant. Thomas R. Houlihan, AMER CUNNINGHAM CO., L.P.A., Akron, Ohio, for

Appellee Kent State University. Lisa M. Critser, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellee Karen Linder. ON BRIEF: Ashlie Case Sletvold,

Subodh Chandra, Donald Screen, THE CHANDRA LAW FIRM LLC, Cleveland, Ohio, for

Appellant. Thomas R. Houlihan, Jack Morrison, Jr., Richard P. Schroeter, Jr., AMER

CUNNINGHAM CO., L.P.A., Akron, Ohio, for Appellee Kent State University. Lisa M. Critser,

Reid T. Caryer, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for

Appellee Karen Linder. Jack Morrison, Jr., AMER CUNNINGHAM CO., L.P.A., Akron, Ohio

for Appellee Eric Oakley. Andrew T. Tutt, ARNOLD & PORTER KAYE SCHOLER LLP,

Washigton, D.C., for Amici Curiae.

The court delivered a PER CURIAM opinion. STRANCH, J. (pp. 11–17), delivered a

separate opinion concurring in part and dissenting in part.

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 2

_________________

OPINION

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PER CURIAM. Lauren Kesterson, a student athlete at Kent State University, told her

coach, Karen Linder, that Linder’s son had raped her. Linder never notified anyone at Kent

State. The university learned about the assault two years later when Kesterson made a complaint

to the school’s Title IX office. An investigation of the complaint led to Linder’s resignation.

Kesterson sued Kent State, Linder, and another coach, Eric Oakley, for violating the free-speech-

retaliation protections of the First (and Fourteenth) Amendments, the equal-protection guarantees

of the Fourteenth Amendment, and Title IX. The district court granted summary judgment to the

defendants. We reverse in part and affirm in part.

I.

Lauren Kesterson started college at Kent State University in August 2012. The

university’s softball coach, Karen Linder, recruited her to play on a scholarship for the school’s

Division I team. A few weeks after she arrived, Kesterson met Linder’s son, Tucker, also a

freshman at Kent State. The two became friends. But later that year, in December 2012, Tucker

allegedly raped Kesterson in her dorm room. Kesterson told her family and a few close friends

about the incident in September 2013.

At the conclusion of her sophomore year, May 2014, Kesterson met with Linder for an

end-of-season interview. When Linder asked how she was doing, Kesterson told Linder that

Tucker had raped her. The parties dispute who said what next. Kesterson says she told Linder

she did not want to bring criminal charges, while Linder says Kesterson told her not to tell

anyone about the assault. Kesterson also claims (and Linder denies) that Linder told her to “keep

[this information] between the people who already know and not tell other people.” R.156 at 49.

All agree that Linder, a mandatory reporter under Kent State’s Title IX policy, did not notify

anyone, including the athletic director, any other administrator, or the Title IX office at Kent

State, about Kesterson’s claim.

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 3

Kesterson told several more Kent State employees over the next year: two assistant

coaches, her team’s academic counselor, and the executive director of Kent State’s Women’s

Center. None of these employees, all mandatory reporters as well, notified Kent State’s Title IX

office.

In 2015, at the beginning of her senior year, Kesterson contacted the Title IX office

herself. She met with Erin Barton, one of the school’s deputy Title IX coordinators, and filed a

formal complaint against Tucker and Linder. Barton started a confidential investigation. Two

days later, Barton met with Linder, who acknowledged that she violated Kent State policy by not

reporting Kesterson’s claim. Two days after that meeting, Kent State’s athletic director, Joe

Nielsen, gave Linder the option to resign or be fired. Linder resigned. A week after Kesterson’s

report, Kent State confirmed that Tucker was no longer enrolled at the school.

In 2016, Kesterson sued Linder and Eric Oakley, Linder’s interim replacement, for

violating her constitutional rights, namely her free speech rights not to be retaliated against for

reporting the alleged rape and her equal protection rights. She also sued Kent State for violating

her rights under Title IX. The district court granted summary judgment to the defendants on all

of Kesterson’s claims. This appeal followed.

II.

We review the district court’s summary judgment decision with fresh eyes. Maben v.

Thelen, 887 F.3d 252, 258 (6th Cir. 2018). If a jury could reasonably find for either party, the

case must go to a jury trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And in

making that call, we give all reasonable inferences from the record to the non-movant,

Kesterson. Id. at 255.

Constitutional claims against Linder. Kesterson believes Linder violated her First

Amendment right to speak freely and her Fourteenth Amendment right to equal protection of the

law. Linder faces no liability unless she violated a constitutional right that is clearly established.

Pearson v. Callahan, 555 U.S. 223, 232 (2009). Only when “existing precedent” places the rule

at issue “beyond debate” will we consider the law “clearly established.” Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011). That does not mean we need a case “directly on point.” Id. A key

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 4

consideration is notice. Unless a reasonable official, confronted with the same facts, would

know that the challenged actions violate the law, qualified immunity bars liability. District of

Columbia v. Wesby, 138 S. Ct. 577, 590 (2018).

Assessed in the light cast by this standard, one of Kesterson’s constitutional claims

succeeds at this stage and two fail as a matter of law.

Start with the successful claim, the First Amendment retaliation challenge. To show

retaliation, Kesterson must establish (1) that the First Amendment protects her speech, (2) that

she suffered an injury that would deter a person of “ordinary firmness” from continuing to speak

out, and (3) that Linder’s actions were motivated at least in part by Kesterson’s speech. Jenkins

v. Rock Hill Local Sch. Dist., 513 F.3d 580, 585–86 (6th Cir. 2008).

Kent State concedes that the First Amendment protects Kesterson’s sexual assault

allegations. And factual disputes prevent us from resolving the remaining two elements one way

or the other. Consider Linder’s treatment of Kesterson after she told the coach that her son raped

her and the impact these actions would have on a reasonable person. Linder stopped calling

Kesterson by her nickname and chastised her in front of another coach for becoming emotional

during a practice. Linder also removed Kesterson from her starting shortstop position in favor of

a younger player and limited her playing time. Then there’s the fact that Kesterson had to attend

multiple events at the Linder home, where Tucker lived at the time. Kesterson claims Linder

made her go even after Kesterson objected that she felt uncomfortable going there. Whether or

not these actions would deter an ordinarily firm person from speaking out turns on a number of

things: Is this what really happened? Is Kesterson or Linder more credible? How do the true

facts line up with the dynamics of a player-coach relationship? See Fritz v. Charter Twp of

Comstock, 592 F.3d 718, 724 (6th Cir. 2010). On the record so far, these are questions best

answered by a jury rather than a panel of three judges.

The same holds true for Linder’s motivation for treating Kesterson in this way. She did

not report the allegation of assault against her son but notified the school about another softball

player’s report of abuse. Linder admitted that Kesterson’s report made her worry about Tucker’s

reputation. Then there’s Kesterson’s allegation that Linder told her not to tell anyone else about

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 5

the incident. Maybe these realities taken together reveal a desire to punish Kesterson for

speaking out. Or maybe they simply reflect a mother trying to protect her son. A factfinder must

resolve the point.

None of this would matter, it is true, if the law Linder allegedly violated was not clearly

established. But we think the case law, by 2014, had put beyond debate that a coach at a state

university cannot retaliate against a student-athlete for speaking out by subjecting her to

harassment and humiliation. For decades, employees at “state colleges and universities” have

known that those institutions “are not enclaves immune from the sweep of the First

Amendment.” Papish v. Bd. of Curators of Univ. of Mo., 410 U.S. 667, 670 (1973) (per curiam)

(quotation omitted). Students may exercise their First Amendment rights unless doing so would

“materially and substantially disrupt” school operations. See Healy v. James, 408 U.S. 169, 189

(1972) (quotation omitted); Hazelwood Sch. Dist. v. Kulhmeier, 484 U.S. 260, 272 (1988). And

school officials may not retaliate against students based on their protected speech. See Papish

410 U.S. at 670; see also Kincaid v. Gibson, 236 F.3d 342, 354 (6th Cir. 2001). More

specifically, long before these events, our court explained that coaches could not retaliate against

a player “for reporting improprieties.” Lowery v. Euveard, 497 F.3d 584, 600 (6th Cir. 2007);

see also Seamons v. Snow, 206 F.3d 1021, 1030 (10th Cir. 2000).

Based on these cases, a reasonable coach would have known at the time Linder acted that

she could not retaliate against a student athlete for reporting a sexual assault. All that remains is

for a jury to decide whether Kesterson can carry her burden of proof.

Linder objects that her actions against Kesterson were “inconsequential” and could not

have deterred her because she told others about the alleged rape. Linder Appellee Br. 16. But a

coach’s view of how a player should react to her language and actions cannot by itself carry the

day. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002). That Kesterson told others what

happened bears on the inquiry but is not dispositive. See id. It’s not hard to think of situations in

which players might tell others what a coach has done to them for moral support, not because

they do not fear retaliation from the coach.

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Linder adds that she had a legitimate reason for every decision she made about

Kesterson, whether it’s playing time, nicknames, criticism, or attendance at team events. See

King v. Zamiara, 680 F.3d 686, 710 (6th Cir. 2012). Maybe so. But Kesterson does not have to

prove that speech-related animus alone drove Linder’s decisionmaking. All she has to do is

show that Linder’s “desire to punish” Kesterson motivated her decisions “in substantial part.”

Johnson, 308 F.3d at 603. She has done that, at least when it comes to sending the case to a jury.

Linder maintains that Henley v. Tullahoma City School System, 84 F. App’x 534, 541

(6th Cir. 2003), creates too much uncertainty about a coach’s liability for First Amendment

retaliation for the law to be clearly established. But Henley did not say that a coach would be

spared liability for the types of actions Linder took. The decision indeed said a coach could face

liability if a player’s speech motivated a coach’s decision. Id. at 541–42. That warning came to

roost here.

Kesterson’s First Amendment prior restraint claim, however, lacks a foundation in our

precedents. A prior restraint is an “administrative” or “judicial order[]” that forbids speech in

advance. Novak v. City of Parma, 932 F.3d 421, 432 (6th Cir. 2019). The alleged restraint must

impose a “legal impediment.” Alexander v. United States, 509 U.S. 544, 551 (1993). Linder did

nothing of the sort. At most, she told Kesterson not to tell anyone about the assault.

Kesterson also claims that Linder violated her Fourteenth Amendment right to equal

protection of the law. She advances two theories for relief: a “deliberate indifference” claim and

a “class of one” claim. For present purposes, the key issue in both is whether the law was clearly

established. The district court didn’t think so, and neither do we. No matter how Kesterson

styles her claim, we have not found a case that would warn a reasonable coach about an equal

protection claim in this setting.

Kesterson’s arguments on this score are minimal. She does not discuss any class-of-one

cases. And the two “deliberate indifference” cases invoked by her do not bear on the question at

hand. See Patterson v. Hudson Area Schs., 551 F.3d 438 (6th Cir. 2009); Shively v. Green Local

Sch. Dist. Bd. of Educ., 579 F. App’x 348 (6th Cir. 2014). Patterson dealt with a school

district’s Title IX liability. 551 F.3d at 444. And Shively concerned a school board’s response to

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 7

reports of gender and religious discrimination, 579 F. App’x at 350, a case, by the way that was

decided months after Kesterson spoke to Linder.

But wait, Kesterson responds, qualified immunity never protects a coach who violates a

mandatory school policy. That is not true. Public officials “do not lose their qualified immunity

merely because their conduct violates some . . . administrative provision.” Davis v. Scherer, 468

U.S. 183, 194 (1984). Kesterson offers no case to the contrary. She instead cites a few cases in

which we denied qualified immunity because the tasks the employees failed to perform did not

involve an exercise of discretion. But these cases do not stand for the broad proposition that the

violation of a mandatory school policy necessarily violates a constitutional right and necessarily

removes the employee’s eligibility for qualified immunity. Consider the two cases: Borretti v.

Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991); Morrison v. Lipscomb, 877 F.2d 463, 468 (6th

Cir. 1989). In each case, little discovery had occurred. And in each case, the plaintiffs’ claims

fell well within existing precedent, as we repeatedly emphasized. Borretti, 930 F.2d at 1153–55;

Morrison, 877 F.2d at 468. They do not stand for the broad proposition that qualified immunity

is denied whenever a school employee violates a mandatory duty, no matter whether the duty

bears on a violation of a constitutional right or not and no matter whether the right was clearly

established or not. Any such approach would overrule legions of decisions that make the point

that the violation of a government policy does not by itself establish a constitutional violation.

See, e.g., City & County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1777 (2015); Latits v.

Philips, 878 F.3d 541, 553 (6th Cir. 2017); Gravely v. Madden, 142 F.3d 345, 349–50 (6th Cir.

1998); Lavado v. Keohane, 992 F.2d 601, 610 n.5 (6th Cir. 1993); Russo v. City of Cincinnati,

953 F.2d 1036, 1044 (6th Cir. 1992).

Title IX claim against Kent State. Kesterson separately claims that Kent State violated

Title IX in the way it handled her sexual assault report. “[I]n certain limited circumstances,”

Davis v. Monroe County Board of Education, 526 U.S. 629, 643 (1999), a “federally funded

university may be directly liable under Title IX for its inadequate response to allegations of

student-on-student harassment,” Doe v. Univ. of Ky., 959 F.3d 246, 250 (6th Cir. 2020).

Schools face liability when they (1) have “actual knowledge” of sexual harassment (2) that is “so

severe, pervasive and objectively offensive” that it deprives the student of “educational

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 8

opportunities or benefits” and (3) act with deliberate indifference to the problem. Davis, 526

U.S. at 650.

Kent State concedes that Kesterson suffered “objectively offensive” sexual harassment.

That leaves two questions: Did Kent State know about the alleged rape? And did it act with

deliberate indifference in responding to it?

Kent State learned about Kesterson’s allegations when she reported them to the school’s

deputy Title IX coordinator in 2015. That’s the case even though Kesterson told Linder and a

few other Kent State employees before then. Only when an “appropriate person” at a school

knows about sexual discrimination does the school have “actual knowledge.” Gebser v. Lago

Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998); Stiles ex rel. D.S. v. Grainger County, 819

F.3d 834, 848 (6th Cir. 2016); Hill v. Cundiff, 797 F.3d 984, 971 (11th Cir. 2015). An

appropriate person is someone who “at a minimum has authority to address the alleged

discrimination . . . on the [school’s] behalf.” Gebser, 524 U.S. at 290.

Erin Barton was that person. She was Kent State’s deputy Title IX coordinator and

counts as an “appropriate person.” She had the authority to take corrective actions on Kent

State’s behalf to remedy the sexual discrimination Kesterson faced.

Contrary to Kesterson’s argument, the other employees she told lacked any similar

powers. Yes, they could have aided her in getting access to helpful resources. And yes, they

could have, and should have, reported her allegations to Kent State. But a university employee’s

ability to mitigate hardship or refer complaints does not make them an “appropriate person.” See

Hill, 797 F.3d at 971. Otherwise, every employee would qualify and schools would face a form

of vicarious liability that Title IX does not allow. See Davis, 526 U.S. at 640–41; Gebser, 524

U.S. at 288.

A school acts with “deliberate indifference” when its reaction to sexual discrimination is

“clearly unreasonable” in light of what it knew. Davis, 526 U.S. at 648. Assessed against this

standard, Kent State did not act unreasonably. Kesterson told Barton about the alleged rape on

August 24, 2015. Barton started an investigation immediately after Kesterson’s report. Four

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 9

days later, Linder was forced to resign or face termination. And a week later, Kent State

confirmed that Tucker was not enrolled for the upcoming semester.

Kesterson counters that we should not apply the “appropriate person” test here. But she

argued the opposite below. That amounts to a forfeiture. Harris v. Roadway Exp., Inc., 923 F.2d

59, 61 (6th Cir. 1991). The argument is not persuasive anyway. She points out that in Davis, the

case that articulated the standard for student-on-student harassment cases, the words “appropriate

person” never appear. That’s true, but that’s because the school’s actual knowledge wasn’t at

issue. Davis concerned whether a student could sue a school for its deliberate indifference to

student-on-student sexual discrimination. 526 U.S. at 643. It adopted the elements of the test

from Gebser (decided a year earlier), which dealt with a student’s ability to sue a school when it

acts with deliberate indifference to a teacher’s harassment of a student. See Davis, 526 U.S. at

643, 650; Gebser, 524 U.S. at 290. Gebser of course discussed the “appropriate person”

requirement for actual knowledge at length. 524 U.S. at 290. At no point did Davis suggest it

disagreed with that analysis or that it had developed a new standard. Every mention of “actual

knowledge” in the case is tied to district administrators, not school employees. See Davis, 526

U.S. at 647, 651, 654.

Every circuit to consider the question agrees that plaintiffs alleging deliberate

indifference to student-on-student harassment must satisfy the “appropriate person” standard.

Hill, 797 F.3d at 971; Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 739 (9th Cir. 2000);

Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1247 (10th Cir. 1999). We have said the same in

dicta. Stiles, 819 F.3d at 848. And in our prior cases where we did not comment on the point,

the parties either did not dispute the school’s knowledge or did not introduce any evidence

related to knowledge. See M.D. ex rel Deweese v. Bowling Green Indep. Sch. Dist., 709 F. App’x

775, 776–78 (6th Cir. 2017); Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 363–66 (6th Cir.

2012); Patterson 551 F.3d at 445–46; Winzer v. Sch. Dist. for City of Pontiac, 105 F. App’x 679,

681 (6th Cir. 2004); Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2000)

Even so, Kesterson says, it’s wrong to think that Linder and the other employees don’t

count as “appropriate persons.” But Kesterson offers no evidence that these individuals could

act on Kent State’s behalf. She instead says that the employees could have pointed her to school

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 10

resources, and they all had an obligation to report her allegations. True. But that doesn’t make

these errors in judgment or violations of school policy the actions of Kent State or failures to

respond by Kent State. An appropriate person is someone “high enough up the chain-of-

command” that her decision constitutes the school’s decision. Hill, 797 F.3d at 971 (quotation

omitted). That was not Linder or any of the other employees.

Kesterson says that Kent State acted with deliberate indifference because its employees

failed to follow the school’s policy and made several mistakes during its investigation. But these

kinds of errors do not amount to deliberate indifference by the school. Davis, 526 U.S. at 648;

Doe, 959 F.3d at 252.

That leaves two loose ends. Kesterson also sued Eric Oakley in his official capacity for

violating her First Amendment rights. But she’s forfeited the claim because she barely discussed

it in her briefs. United States v. Johnson, 440 F.3d 832, 845–46 (6th Cir. 2006). That does not

suffice to preserve the claim.

Kesterson claims the district court abused its discretion when it refused to modify a

scheduling order. One of Kesterson’s attorneys asked for a 3-month extension to the court’s

deposition schedule because she had a medical problem and Kesterson’s lead attorney needed

time to get up to speed on the case. While courts should be sensitive to medical issues affecting

the parties in a case, that does not free attorneys from responsibility for staying up to speed on a

case or mean that trial courts should ignore the costs to the system and the parties of delaying

discovery—a process that already takes too long and costs too much by too many measures to

count. Nor is it by any means clear how this ruling prejudiced Kesterson. The district court did

not abuse its discretion in rejecting the extension.

We reverse in part and affirm in part.

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 11

________________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

________________________________________________________

JANE B. STRANCH, Circuit Judge, concurring in part and dissenting in part. I agree

with the majority opinion that Kesterson stated a First Amendment retaliation claim but believe

the same is true of her equal protection and Title IX claims. On those claims, I respectfully

dissent.

I begin with Kesterson’s student-on-student sexual harassment claim under Title IX. As

the majority explains, a plaintiff must demonstrate that the school had actual knowledge of that

harassment, meaning an “appropriate person” knew of it. Davis v. Monroe Cty. Bd. of Educ.,

526 U.S. 629, 650 (1999). The majority opinion defines an “appropriate person” as someone

who has “the authority to take corrective actions on Kent State’s behalf to remedy the sexual

discrimination Kesterson faced.” (Maj Op. at 8) That language is reflected in a number of Title

IX cases across the nation, many of which have struggled with its application to student-on-

student harassment claims. Those cases suggest that the standard for determining a school’s

actual knowledge in student-on-student cases is still developing. In my view, applying that

standard here shows that Linder was an appropriate person.

The majority opinion relies on Hill v. Cundiff, 797 F.3d 948 (11th Cir. 2015), to conclude

that Linder lacked the ability to take corrective action, and that “getting access to helpful

resources” and “refer[ing] complaints” is not enough. (Maj. Op. at 8) But, as the Hill opinion

itself proves, the standard is not to be applied so inflexibly. In considering whether a teacher’s

aide was an “appropriate person,” the Eleventh Circuit examined the aide’s position and

authority to discipline students, and found that an aide “had to answer to a teacher, the assistant

principals, and the principal, and [] was not high enough on the chain-of-command at [the

school] for her acts to ‘constitute an official decision by the school district itself not to remedy

the misconduct.’” Id. at 971 (quoting Floyd v. Waiters, 171 F.3d 1264, 1264 (11th Cir. 1999)).

Even for an aide, who may be only a student assistant to a teacher, the court examined the facts

to determine whether she was an appropriate person. See also Hawkins v. Sarasota Cty. Sch.

Bd., 322 F.3d 1279, 1286–87 (11th Cir. 2003) (explaining that actual knowledge in student-on-

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student harassment cases is a fact-intensive inquiry that must “examine how [the state] organizes

its public schools, the authority and responsibility granted by state law to administrators and

teachers, the school district’s discrimination policies and procedures, and the facts and

circumstances of the particular case”).

Other circuit courts employing a corrective action standard apply it even more flexibly

and consider it a question of fact for the jury to decide. Take, for example, the Eighth and Tenth

Circuits, which have left open the possibility that various school officials, including teachers and

coaches, can meet the notice standard. See Plamp v. Mitchell Sch. Dist., No. 17-2, 565 F.3d 450,

457 (8th Cir. 2009) (emphasizing that courts cannot “fashion a bright-line rule as to what job

titles and positions automatically mark an individual as having sufficient authority or control for

the purposes of Title IX liability,” and holding “that school guidance counselors and teachers are

[not] always without the authority necessary to institute corrective measures or lack sufficient

control to take remedial action”). The Tenth Circuit has emphasized that “[b]ecause officials’

roles vary among school districts, deciding who exercises substantial control [to establish actual

knowledge] is necessarily a fact-based inquiry.” Murrell v. Sch. Dist. No. 1, Denver, Colo.,

186 F.3d 1238, 1247 (10th Cir. 1999) (“School districts contain a number of layers below the

school board: superintendents, principals, vice-principals, and teachers and coaches, not to

mention specialized counselors such as Title IX coordinators. Different school districts may

assign different duties to these positions or even reject the traditional hierarchical structure

altogether.” (brackets omitted) (quoting Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648,

660 (5th Cir. 1997))). And the Fifth and Seventh Circuit do not even require that an official have

authority to take corrective action. See I.F. v. Lewisville Indep. Sch. Dist., 915 F.3d 360, 372

(5th Cir. 2019) (finding that “it [was] indisputable that [the school district] had actual

knowledge” of the harassment when the plaintiffs notified the school counselor, without

considering whether such counselor could take corrective action); see also Doe v. Galster,

768 F.3d 611, 617 (7th Cir. 2014) (specifying that actual knowledge turns on what “school

administrators” knew).

In applying the test it proposes, the majority opinion ignores the extensive record in

drawing a quick and incorrect conclusion about Linder’s authority to take corrective action.

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Kesterson told Linder that Tucker Linder raped her. Linder was well aware of the difficulties

Kesterson experienced—e.g., needing counseling, struggling with schoolwork and her softball

performance (on which her college scholarship was based), being “emotional” at practice, and

raising concerns about attending events at Linder’s home where pictures of her abuser were

displayed. Linder was directly involved in many of these difficulties and had the authority to aid

in remedying the harm resulting to Kesterson from these issues.

Linder was not just any coach, as the majority opinion suggests; she was the head varsity

coach for the softball team and was involved in the day-to-day activities of the team members.

Linder had control over Kesterson’s schedule, training, and scholarship, and she could have

taken measures to remedy the hardships Kesterson faced while attending practice and school.

Her position enabled her to address the sexual harassment Kesterson reported to her—either

directly or, as required, by reporting to even higher-level administrators. See Mathis v. Wayne

Cty. Bd. of Educ., No. 1:09-0045, 2011 WL 3320966, at *1-2, aff’d, 496 F. App’x 513 (6th Cir.

2012) (imposing liability based on actual knowledge by basketball coach rather than by higher-

ranked school employees). A rational juror could find Linder to be an “appropriate person” to

satisfy the notice standard discussed by the majority opinion.

Because the majority opinion’s actual knowledge assessment failed to consider Linder’s

actions, it also inappropriately assessed the third prong, deliberate indifference. A school district

that receives federal funds is liable for damages under Title IX if it remains “deliberately

indifferent to known acts of harassment.” Patterson v. Hudson Area Schools, 551 F.3d 438, 446

(6th Cir. 2009) (quoting Vance v Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 260 (6th Cir.

2000)). “[T]he deliberate indifference must, at a minimum, ‘cause [students] to undergo’

harassment or ‘make them liable or vulnerable’ to it.” Vance, 231 F.3d at 260 (quoting Davis,

536 U.S. at 645). To be deliberately indifferent, a school district’s response to a sexual assault

must be “clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648.

The record provides ample evidence to support a finding of deliberate indifference. First,

it is disputed whether Linder imposed confidentiality on Kesterson during the 2014 exit

interview or Kesterson sought to keep the assault confidential. Although she did not want to

press criminal charges, Kesterson asserts that Linder never asked her if she wanted to file a

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 14

report with the Title IX office. And while KSU emphasizes that it took Kesterson seventeen

months to report the assault, Kesterson attributes her hesitation to the fact that Linder was her

abuser’s mother. Kesterson also testified that she felt inclined not to press charges against

Tucker Linder because “she didn’t see how [she] could continue to play softball pursuing a rape

case against [her] coach’s son.”

Second, KSU’s sexual harassment policy designates all employees as mandatory

reporters and requires them to report all instances of sexual misconduct to the Title IX

coordinator or deputy coordinator. The policy provides that “University departments may create

individual reporting structures to facilitate prompt reporting and adequate response; however, all

reports must ultimately be provided to the Title IX coordinator or deputy coordinators as quickly

as possible.” (R. 164-8, KSU Policy Register 5-16.2(D), PageID 4463) Linder was aware of

these requirements—during this same time frame, she reported another student’s sexual assault

claim to the Title IX office—but did not report Kesterson’s. While a policy violation alone is not

enough to demonstrate deliberate indifference, the jury may consider it in determining whether

Linder sought to help Kesterson or was acting in her own interest. Linder admitted that she was

concerned about the “fallout” from Kesterson’s report and the impact it would have on her son.

A reasonable juror could find that Linder’s request to keep the assault confidential evidences

deliberate indifference.

Other disputes of material fact remain. Kesterson argues that when she returned to KSU

for her junior year, she continued to experience additional hardships as a result of the assault.

Linder’s behavior toward Kesterson changed; she no longer called her by her nickname, did not

pay her much attention, and treated her as if she “wasn’t a part of the team anymore.” Kesterson

also testified that Linder “did everything she could to convince [her she] was no longer good at

softball” and was indifferent to her success on the field. Linder also limited Kesterson’s playing

time, took her out of the starting lineup for a short period, and moved her from her preferred

position of short stop to second base. After being “emotional” at a practice, Linder informed

Kesterson that her behavior was inappropriate despite knowing the underlying circumstances for

such behavior.

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 15

Kesterson also reported the assault to Barton at the Title IX office, who told Kesterson

that she would issue no-contact orders within the first 24 hours and a formal notice to Linder and

her superiors of the alleged misconduct. Although there is a dispute about why these actions

were not taken, Barton never issued the notice or the no-contact orders, and it is unclear whether

she informed Kesterson of her decision not to do so. The investigation continued for 137 days

after Kesterson reported the incident to Barton and, during that time, she was told to keep all

matters about the complaint and pending investigation confidential.

Construing the evidence in the light most favorable to Kesterson, a reasonable juror could

find that KSU had actual knowledge of and was deliberately indifferent to Kesterson’s hardships.

For these reasons, Kesterson’s Title IX claim should not have been dismissed.

Turning to the equal protection claim, the majority opinion’s conclusion that the law was

not clearly established because it did not “warn a reasonable coach about an equal protection

claim in this setting” is at odds with our case law. (Maj. Op. at 8) That conclusion means that

the opinion also errs in hopscotching over the constitutional violation analysis. Under our

precedent, the “equal protection right to be free from student-on-student discrimination is well-

established.” Shively v. Green Local Sch. Dist. Bd. of Educ., 579 F. App’x 348, 356 (6th Cir.

2014) (citing cases). A student may prove an equal protection violation by showing that an

official acted with deliberate indifference to her allegation of student harassment. Id. at 356–57

(collecting cases). The standard of deliberate indifference is met by showing that “the recipient’s

response to [allegations of harassment] or lack thereof is clearly unreasonable in light of the

known circumstances.” Williams v. Port Huron Sch. Dist., 455 F. App’x 612, 618 (6th Cir.

2012) (quoting Vance, 231 F.3d at 260). I think the district court was correct in its well-reasoned

opinion determining that, under the deliberate indifference framework, triable issues of material

fact remain on Kesterson’s equal protection claim.

On the second prong of qualified immunity, I agree with the majority that to determine whether a

law is clearly established, we need not find a case “directly on point.” (Maj. Op. at 2) The

Supreme Court has recognized “‘that officials can still be on notice that their conduct violates

established law even in novel factual circumstances’ and has ‘rejected a requirement that

previous cases be fundamentally similar’ to the facts in a case to render qualified immunity

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 16

inapplicable.” Jackson v. City of Cleveland, 925 F.3d 793, 823 (6th Cir. 2019) (quoting Hope v.

Peizer, 536 U.S. 730, 741 (2002)). And we have noted that “‘general statements of the law’ are

capable of giving clear and fair warning . . . even where ‘the very action in question has not

previously been held unlawful.’” Id. (brackets omitted) (quoting Smith v. Cupp, 430 F.3d 766,

776–77 (6th Cir. 2005)).

I disagree, however, with the majority opinion’s dismissive approach to the two cases

clearly establishing that Linder’s conduct would violate Kesterson’s constitutional right to equal

protection. In Patterson v. Hudson Area Schools, 551 F.3d 438, 448 (6th Cir. 2009), we declined

to grant qualified immunity to school officials where the student suffered bullying that was

“severe and pervasive” and the officials’ response was inadequate “to deter other students from

perpetuating the cycle of harassment.” Id. at 447–48. And in Shively, where the defendants

“failed to enforce the school policy on harassment,” we relied on Patterson and held that it was

well established by 2011 that school officials’ deliberate indifference to reports of student

harassment violate a student’s equal protection rights. 579 F. App’x at 357–58.

The majority distinguished Patterson on the basis that it involved a funding recipient’s

liability under Title IX. But we have already established that deliberate indifference in a § 1983

equal protection claim is “substantially the same” as demonstrating deliberate indifference in

Title IX cases. Stiles ex rel. D.S. v. Grainger County, 819 F.3d 834, 852 (6th Cir. 2016) (quoting

William ex rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d 360, 369 (6th Cir. 2009)). And the

majority opinion’s attempt to distinguish Shively because it dealt with gender and religious—as

opposed to sexual—harassment is simply a distinction without a difference. The law is clear that

the plaintiff need only offer evidence that she was subjected to peer harassment, regardless of its

form, id. (citing cases), and then focus on “the recipient’s response to [allegations of] harassment

or lack thereof” in evaluating a deliberate indifference equal protection claim, Williams, 455 F.

App’x at 618 (quoting Vance, 231 F.3d at 260). The conclusion that the law requires a match of

the particulars of the harassment endured is not a part of the applicable legal standard.

Here a head coach learned that her son raped a student athlete and the coach intentionally

ignored school policy mandating that she report the rape—a coach who had reported similar

assaults not involving her family. We made clear in Soper v. Hoben that rape “obviously

No. 18-4200 Kesterson v. Kent State Univ., et al. Page 17

qualifies as being severe, pervasive, and objectively offensive sexual harassment[.]” 195 F.3d

845, 855 (6th Cir. 1999). See Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)

(recognizing that there “can be the rare ‘obvious case,’ where the unlawfulness of [an official’s]

conduct is sufficiently clear even though existing precedent does not address similar

circumstances” (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004))). That is the end of the

harassment inquiry. See Jackson, 925 F.3d at 823. And Patterson and Shively clearly

established that Linder could be held liable for acting with deliberate indifference to Kesterson’s

claim of harassment. See Patterson, 551 F.3d at 448; Shively, 479 F. App’x at 358. Under our

precedent, I think qualified immunity should be denied for Kesterson’s equal protection claim.

For the foregoing reasons, I respectfully dissent as to the dismissal of Kesterson’s equal

protection and Title IX claims.