Petition for Writ of Certiorari — The Ohio State University, Petitioner v. Steve Snyder-Hill, et al.

Supreme Court briefMar 14, 2023

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No. ______

In the

Supreme Court of the United States

——————————

THE OHIO STATE UNIVERSITY,

Petitioner,

STEVE SNYDER-HILL, ET AL.,

Respondents.

——————————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

——————————

PETITION FOR A WRIT OF CERTIORARI

——————————

DAVE YOST

Attorney General

OHIO ATTORNEY

GENERAL’S OFFICE

30 E. Broad Street

17th Floor

Columbus, OH 43215

GREGORY G. GARRE

Counsel of Record

CHARLES S. DAMERON

BLAKE E. STAFFORD

LIA R. CATTANEO

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

MICHAEL H. CARPENTER

TIMOTHY R. BRICKER

DAVID J. BARTHEL

CARPENTER LIPPS LLP

280 North High Street

Suite 1300

Columbus, OH 43215

Counsel for Petitioner

QUESTIONS PRESENTED

Title IX of the Education Amendments of 1972, 20

U.S.C. §§ 1681-1688, prohibits discrimination on the

basis of sex in educational programs or activities that

receive federal financial assistance. Title IX does not

express a private right of action, but in Cannon v.

University of Chicago, 441 U.S. 677 (1979), this Court

implied one. Because Title IX lacks an express right

of action, it does not specify a statute of limitations.

As a result, the length of the limitations period is

governed by analogous state law, whereas the date on

which the limitations period begins to run—i.e., when

the Title IX claim “accrue[s]”—“is a question of

federal law that is not resolved by reference to state

law.” Wallace v. Kato, 549 U.S. 384, 387-88 (2007).

In the decision below, a divided panel of the Sixth

Circuit—in conflict with the decisions of other

circuits—devised an extreme new “discovery rule” for

Title IX that permitted respondents to assert Title IX

claims based on conduct that occurred more than 20

to 40 years before they filed suit. The court also

interpreted Title IX’s private right of action to extend

beyond current or prospective students or employees

to essentially anyone who steps foot on a college

campus. The questions presented are:

1. Whether, or to what extent, a Title IX claim

accrues after the date on which the alleged injury

occurred.

2. Whether, or to what extent, Title IX’s implied

private right of action extends to individuals who are

not current or prospective students or employees.

PARTIES TO THE PROCEEDING

Petitioner (defendant-appellee below) is The Ohio

State University.

Respondents (plaintiffs-appellants below) are:

• Steve Snyder-Hill, Ronald McDaniel; David

Mulvin; William Brown; Kurt Huntsinger;

William Rieffer; Steve Hatch; Kelly Reed;

Melvin Robinson; Douglas Wells; James Khalil;

Jerrold L. Solomon; Joseph Bechtel; Michael

Murphy; John David Faler; Matt McCoy; Gary

Avis; Robert Schriner; Michael Montgomery;

John Doe 1; John Doe 2; John Doe 3; John Doe

4; John Doe 5; John Doe 6; John Doe 7; John

Doe 8; John Doe 9; John Doe 10; John Doe 11;

John Doe 12; John Doe 13; John Doe 14; John

Doe 15; John Doe 16; John Doe 17; John Doe

18; John Doe 19; John Doe 20; John Doe 21;

John Doe 22; John Doe 25; John Doe 27; John

Doe 29; John Doe 30; John Doe 31; John Doe

32; John Doe 33; John Doe 34; John Doe 35;

John Doe 36; John Doe 37; John Doe 39; John

Doe 40; John Doe 41; John Doe 42; John Doe

43; John Doe 44; John Doe 45; John Doe 46;

John Doe 47; John Doe 49; John Doe 52; John

Doe 54; John Doe 56; John Doe 57; John Doe

58; John Doe 59; John Doe 60; John Doe 62;

John Doe 63; John Doe 64; John Doe 66; John

Doe 67; John Doe 68; John Doe 69; John Doe

70; John Doe 71; John Doe 72; John Doe 73;

John Doe 74; John Doe 75; John Doe 76; and

John Doe 77 (plaintiffs-appellants in the court

of appeals in No. 21-3981); and

• Timothy Moxley; Ryan Callahan; John

Jackson, Jr.; James Carroll; Patrick Murray;

iii

Everett Ross; John Doe 78; John Doe 82; John

Doe 83; John Doe 84; John Doe 88; John Doe

89; John Doe 90; John Doe 91; John Doe 92;

John Doe 94; John Doe 95; John Doe 97; John

Doe 98; John Doe 99; John Doe 101; John Doe

103; and John Doe 104 (plaintiffs-appellants in

the court of appeals in No. 21-3991).

The following parties were plaintiffs-appellants in

the court of appeals in No. 21-3991 but dismissed

their appeals: Jeffrey Rohde; John Doe 79; John Doe

80; John Doe 81; John Doe 85; John Doe 86; John Doe

87; John Doe 93; John Doe 100; John Doe 102; and

John Doe 105.

The following parties were plaintiffs in the district

court but did not participate in the proceedings in the

court of appeals: Hugh Dyer; John Doe 24; John Doe

26; John Doe 38; John Doe 48; John Doe 51; John Doe

53; John Doe 55; and John Doe 61 (plaintiffs in the

district court in No. 18-cv-736); and John Doe 96

(plaintiff in the district court in No. 21-cv-3838).

RELATED PROCEEDINGS

United States Court of Appeals (6th Cir.):

Snyder-Hill v. Ohio State Univ., No. 21-3981

(Sept. 14, 2022), reh’g denied (Dec. 14, 2022)

Moxley v. Ohio State Univ., No. 21-3991 (Sept. 14,

2022), reh’g denied (Dec. 14, 2022)

United States District Court (S.D. Ohio):

Snyder-Hill v. Ohio State Univ., No. 18-cv-736

(Sept. 22, 2021)

Moxley v. Ohio State Univ., No. 21-cv-3838 (Oct.

25, 2021)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

RELATED PROCEEDINGS ..................................... iii

TABLE OF AUTHORITIES .................................... vii

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

STATUTORY PROVISIONS INVOLVED .................1

INTRODUCTION .......................................................1

STATEMENT OF THE CASE ....................................4

A. Legal Background ...........................................4

B. Factual Background ........................................6

C. Proceedings Below ..........................................8

REASONS FOR GRANTING THE PETITION .......12

THE

SIXTH

CIRCUIT’S

CLAIMACCRUAL

RULING

WARRANTS

REVIEW ..............................................................13

A. The Decision Below Deepens A Circuit

Split Over When Title IX Claims

Accrue ............................................................13

B. The Sixth Circuit’s Decision Is Wrong .........17

C. The Accrual Rule For Title IX Claims

Is Exceptionally Important And

Warrants Review In This Case.....................26

TABLE OF CONTENTS—Continued

Page

II. THE

SIXTH

CIRCUIT’S

RULING

EXPANDING THE SCOPE OF TITLE

IX’S IMPLIED PRIVATE RIGHT ALSO

MERITS REVIEW ..............................................29

CONCLUSION ..........................................................34

APPENDIX

Opinion of the United States Court of Appeals

for the Sixth Circuit, Snyder-Hill v. Ohio

State University, Nos. 21-3981 and 213991, 48 F.4th 686 (6th Cir. Sept. 14,

2022) ....................................................................1a

Order of the United States Court of Appeals

for the Sixth Circuit Denying Rehearing

En Banc, Snyder-Hill v. Ohio State

University, Nos. 21-3981 and 21-3991, 54

F.4th 963 (6th Cir. Dec. 14, 2022) ....................69a

Opinion and Order of the United States

District Court for the Southern District

of Ohio, Snyder-Hill v. Ohio State

University, No. 18-cv-00736, 2021 WL

7186148 (S.D. Ohio Sept. 22, 2021) ...............110a

Opinion and Order of the United States

District Court for the Southern District

of Ohio, Moxley v. Ohio State University,

No. 21-cv-3838, 2021 WL 7186269 (S.D.

Ohio Oct. 25, 2021) .........................................113a

TABLE OF CONTENTS—Continued

Page

Opinion and Order of the United States

District Court for the Southern District

of Ohio, Garrett v. Ohio State University,

561 F. Supp. 3d 747 (S.D. Ohio Sept. 22,

2021) ................................................................115a

20 U.S.C. § 1681 ....................................................140a

20 U.S.C. § 1687 ....................................................145a

vii

TABLE OF AUTHORITIES

Page(s)

CASES

Bannister v. Knox County Board of

Education,

49 F.4th 1000 (6th Cir. 2022) ..............................13

Bay Area Laundry & Dry Cleaning Pension

Trust Fund v. Ferbar Corp. of

California, Inc.,

522 U.S. 192 (1997) ........................................18, 21

Bishop v. Children’s Center for

Developmental Enrichment,

618 F.3d 533 (6th Cir. 2010)................................20

Cannon v. University of Chicago,

441 U.S. 677 (1979) ................................................5

Clark v. Iowa City,

87 U.S. (20 Wall.) 583 (1874)...............................18

Credit Suisse Securities (USA) LLC v.

Simmonds,

566 U.S. 221 (2012) ..............................................22

Cummings v. Premier Rehab Keller,

P.L.L.C.,

142 S. Ct. 1562 (2022)......................................5, 32

Davis ex rel. LaShonda D. v. Monroe

County Board of Education,

526 U.S. 629 (1999) .............................. 5, 29, 31, 32

Doe v. Brown University,

896 F.3d 127 (1st Cir. 2018) ................................33

viii

TABLE OF AUTHORITIES—Continued

Page

Fitzgerald v. Barnstable School Committee,

555 U.S. 246 (2009) ................................................5

Franklin v. Gwinnett County Public

Schools,

503 U.S. 60 (1992) ................................ 5, 22, 31, 32

Gabelli v. SEC,

568 U.S. 442 (2013) ...... 2, 18, 19, 21, 23, 26, 27, 28

Gebser v. Lago Vista Independent School

District,

524 U.S. 274 (1998) ..........................................5, 31

Graham County Soil & Water Conservation

District v. United States ex rel. Wilson,

545 U.S. 409 (2005) ........................................18, 21

Green v. Brennan,

578 U.S. 547 (2016) ..............................................18

Hernández v. Mesa,

140 S. Ct. 735 (2020)............................................22

Holmberg v. Armbrecht,

327 U.S. 392 (1946) ..............................................19

Janus Capital Group, Inc. v. First

Derivative Traders,

564 U.S. 135 (2011) ........................................22, 30

Jesner v. Arab Bank, PLC,

138 S. Ct. 1386 (2018)....................................22, 30

TABLE OF AUTHORITIES—Continued

Page

King-White v. Humble Independent School

District,

803 F.3d 754 (5th Cir. 2015)..........................14, 15

Klehr v. A.O. Smith Corp.,

521 U.S. 179 (1997) ..............................................27

McDonough v. Smith,

139 S. Ct. 2149 (2019)....................................18, 21

Merck & Co. v. Reynolds,

559 U.S. 633 (2010) ........................................18, 19

Ouellette v. Beaupre,

977 F.3d 127 (1st Cir. 2020) ................................16

Petrella v. Metro-Goldwyn-Mayer, Inc.,

572 U.S. 663 (2014) ........................................18, 20

Rotella v. Wood,

528 U.S. 549 (2000) ........................ 3, 23, 24, 25, 26

Rotkiske v. Klemm,

140 S. Ct. 355 (2019)............................ 3, 18, 19, 22

Samuelson v. Oregon State University,

725 F. App’x 598 (9th Cir. 2018) .........................15

SCA Hygiene Products Aktiebolag v. First

Quality Baby Products, LLC,

580 U.S. 328 (2017) ..............................................18

Stanley v. Trustees of the California State

University,

433 F.3d 1129 (9th Cir. 2006)..............................15

TABLE OF AUTHORITIES—Continued

Page

Stoneridge Investment Partners, LLC v.

Scientific-Atlanta, Inc.,

552 U.S. 148 (2008) ..............................................30

TRW Inc. v. Andrews,

534 U.S. 19 (2001) .................................... 18, 19, 20

Twersky v. Yeshiva University,

579 F. App’x 7 (2d Cir. 2014), cert.

denied, 575 U.S. 935 (2015) ...........................15, 16

United States v. Kubrick,

444 U.S. 111 (1979) ........................................18, 25

Urie v. Thompson,

337 U.S. 163 (1949) ........................................19, 20

Varnell v. Dora Consolidated School

District,

756 F.3d 1208 (10th Cir. 2014)......................13, 14

Wallace v. Kato,

549 U.S. 384 (2007) .............. 3, 6, 13, 18, 19, 20, 21

Wilson v. Garcia,

471 U.S. 261 (1985) ..............................................28

Wood v. Carpenter,

101 U.S. 135 (1879) ..........................................2, 27

Ziglar v. Abbasi,

582 U.S. 120 (2017) ..............................................30

TABLE OF AUTHORITIES—Continued

Page

STATUTES

20 U.S.C. §§ 1681-1688 ...............................................1

20 U.S.C. § 1681(a)................................................5, 31

20 U.S.C. § 1682 ..........................................................5

28 U.S.C. § 1254(1)......................................................1

Ohio Rev. Code § 2305.10(A) ......................................6

OTHER AUTHORITIES

Michael V. Drake, President, Ohio State

Univ., A Message from President Drake:

Strauss Investigation Report (May 17,

2019), https://president.osu.edu/story/

strauss-investigation-report ................................27

Strauss Investigation, Ohio State Univ.,

https://compliance.osu.edu/straussinvestigation.html (last visited Mar. 13,

2023) .......................................................................7

Sup. Ct. R. 12.4 ...........................................................1

Caryn Trombino & Markus Funk, Perkins

Coie LLP, Report of the Independent

Investigation: Sexual Abuse Committed

by Dr. Strauss at The Ohio State

University (May 15, 2019),

https://compliance.osu.edu/assets/site/

pdf/Revised_report.pdf...........................................7

xii

TABLE OF AUTHORITIES—Continued

Page

U.S. Dep’t of Educ., Nat’l Ctr. for Educ.

Statistics, Digest of Education Statistics

(2021), https://nces.ed.gov/programs/

digest/d21/tables/dt21_105.50.asp ......................28

U.S. Dep’t of Educ., Nat’l Ctr. for Educ.

Statistics, Fast Facts-Back to School

Statistics (2022), https://nces.ed.gov/

fastfacts/display.asp?id=372................................28

2 H.G. Wood, A Treatise on the Limitation

of Actions at Law and in Equity (4th ed.

1916) .....................................................................19

PETITION FOR A WRIT OF CERTIORARI

The Ohio State University respectfully petitions

this Court for a writ of certiorari to review the

judgments of the United States Court of Appeals for

the Sixth Circuit in these cases. Pursuant to this

Court’s Rule 12.4, Ohio State is filing a “single

petition for a writ of certiorari” for these cases because

the judgments below are from “the same court and

involve identical or closely related questions.”

OPINIONS BELOW

The opinion of the court of appeals in these

consolidated cases (App. 1a-68a) is reported at 48

F.4th 686. The order of the court of appeals denying

rehearing (App. 69a-109a) is reported at 54 F.4th 963.

The opinion of the district court in No. 18-cv-736 (App.

110a-12a) is available at 2021 WL 7186148. The

opinion of the district court in No. 21-cv-3838 (App.

113a-14a) is available at 2021 WL 7186269.

JURISDICTION

The court of appeals entered its judgments on

September 14, 2022, and denied rehearing on

December 14, 2022. This Court has jurisdiction under

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions of Title IX of the

Education Amendments of 1972, 20 U.S.C. §§ 16811688, are reproduced at App. 140a-46a.

INTRODUCTION

Statutes of limitations—and the idea that a claim

must be brought within a fixed period of time—are

almost as old as the law itself. As this Court recently

reiterated, they “provide ‘security and stability to

human affairs’” and thus are “‘vital to the welfare of

society.’” Gabelli v. SEC, 568 U.S. 442, 448-49 (2013)

(quoting Wood v. Carpenter, 101 U.S. 135, 139 (1879)).

But effective statutes of limitations require clear

rules governing the date on which a claim accrues and

the limitations period begins to run. The threshold

question in this case—on which the circuits are

split—is when does a claim under Title IX accrue?

The underlying Title IX cases here present that

issue in stark terms. Respondents allege that they

were sexually abused by a doctor, Richard Strauss,

who was employed by Ohio State between 1978 and

1998, and that Ohio State was deliberately indifferent

to Strauss’s abuse at the time. But respondents did

not file suit against Ohio State until 2018 and 2021—

more than 20 to 40 years after the alleged abuse

occurred, 20 years after Strauss stopped working at

Ohio State, and long after they had graduated from or

left Ohio State. The district court held that these

actions were untimely under the two-year statute of

limitations that undisputedly applies to these claims

(as borrowed from Ohio law). But a divided Sixth

Circuit panel reversed, holding that respondents’

claims did not accrue as a matter of federal law until

2018—after Ohio State announced an independent

investigation into Strauss’s misconduct. The Sixth

Circuit denied rehearing en banc, over the dissents of

Judges Guy, Thapar, Readler, and Bush.

The dissenters explicitly called for this Court’s

review—“before more jurisprudential damage is

done.” App. 86a (Readler, J., joined by Bush, J.,

dissenting from denial of rehearing en banc). As they

explained, the Sixth Circuit’s ruling deepens a “circuit

split” over the proper accrual rule for Title IX claims.

Id. at 97a; see id. at 49a (Guy, J., dissenting). The

Tenth Circuit has held that Title IX claims are subject

to the standard “occurrence rule,” under which a

claim accrues when the plaintiff is injured. Other

circuits have adopted the “discovery rule,” under

which a claim accrues when the plaintiff becomes

aware he is injured or has sufficient information to

know he has been injured. And, in this case, the Sixth

Circuit adopted an extreme new position—a “injuryand-deliberate-indifference discovery rule,” id. at 47a

(Guy, J., dissenting), which delays accrual until the

plaintiff “knows or has reason to know” of their injury

and the educational institution’s “deliberate

indifference,” id. at 32a-33a (majority opinion). This

circuit conflict alone warrants certiorari.

As the dissenters explained, the Sixth Circuit’s

position also is profoundly mistaken. This Court has

repeatedly stressed that the occurrence rule is the

“standard rule” of accrual that governs federal claims,

absent unambiguous statutory text to the contrary.

Wallace v. Kato, 549 U.S. 384, 388 (2007) (citation

omitted); see also, e.g., Rotkiske v. Klemm, 140 S. Ct.

355, 360 (2019). That should have ended the inquiry,

since Title IX does not express any contrary accrual

rule. And even when the discovery rule applies, this

Court has been “emphatic” that “discovery of the

injury, not discovery of the other elements of a claim,

is what starts the clock.” Rotella v. Wood, 528 U.S.

549, 555 (2000). The Sixth Circuit’s extreme new

discovery rule, however, extends beyond injury and

delays accrual until the plaintiff also “discovers” all of

the facts underlying the defendant’s deliberate

indifference. The upshot is that the Sixth Circuit’s

decision “effectively nullifies any statute of

limitations for Title IX claims based on sexual

harassment.” App. 43a (Guy, J., dissenting).

The conflict and confusion over such a basic aspect

of Title IX litigation—the accrual date for the

applicable statute of limitations—benefits neither

victims nor schools, and is especially intolerable “in

view of the ‘federal interests in uniformity, certainty,

and the minimization of unnecessary litigation’

surrounding statutes of limitations.” Id. at 100a

(Readler, J., dissenting) (citation omitted). And the

importance of that issue is only heightened by a

separate ruling by the divided Sixth Circuit below

“drastically expanding” Title IX’s implied right of

action to “cover virtually anyone who sets foot on

campus, no matter the reason.” Id. at 85a, 101a

(Readler, J., dissenting). That ruling exposes an even

more fundamental problem with the Sixth Circuit’s

ruling on both questions—it casts aside the restraint

this Court has stressed is required in interpreting the

contours of any implied private right of action.

Ohio State condemns the reprehensible conduct

underlying these lawsuits, has committed substantial

resources to preventing and addressing sexual

misconduct on campus, and is a fundamentally

different institution today than it was 25 years ago.

But the questions presented are purely legal and thus

transcend the particular circumstances alleged here.

No federally funded educational institution should be

subjected to “this distorted application of Title IX,”

under which “cases may reach back to conduct over 40

years old.” Id. at 85a-86a. The petition should be

granted.

STATEMENT OF THE CASE

A. Legal Background

Title IX provides that “[n]o 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). Congress enacted

Title IX pursuant to the Spending Clause. Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998).

Its “only express enforcement mechanism” is an

“administrative procedure” for the withdrawal of

federal funding.

Fitzgerald v. Barnstable Sch.

Comm., 555 U.S. 246, 255 (2009) (citing 20 U.S.C.

§ 1682). In Cannon v. University of Chicago, 441 U.S.

677 (1979), however, this Court implied a private

right of action for Title IX. In such suits, plaintiffs

may seek injunctive relief and damages against

schools receiving federal funds. See Franklin v.

Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992).

Because Title IX rests on a “contractual

framework” that ties its non-discrimination mandate

to the receipt of federal funds, Gebser, 524 U.S. at 286,

the Court has stressed that “private damages actions”

under Title IX “are available only where recipients of

federal funding had adequate notice that they could

be liable for the conduct at issue,” Davis ex rel.

LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S.

629, 640 (1999); see, e.g., Cummings v. Premier Rehab

Keller, P.L.L.C., 142 S. Ct. 1562, 1569-70 (2022). In

addition, to establish liability under Title IX for

sexual harassment, a plaintiff must show, in addition

to other elements, that an educational institution has

“actual knowledge” of, and acts with “deliberate

indifference” to, the “sexual harassment.” Davis, 526

U.S. at 641-43 (citing Gebser, 524 U.S. at 290-91).

Because Title IX lacks an express private right of

action, it lacks an express statute of limitations

governing that action. When a federal cause of action

lacks an express limitations period, the length of the

period is determined by “the law of the State in which

the cause of action arose.” Wallace, 549 U.S. at 387.

Here, all agree that the relevant limitations period

under applicable Ohio law is two years. App. 19a; see

Ohio Rev. Code § 2305.10(A). But the “accrual date”

on which the limitations period begins to run “is a

question of federal law that is not resolved by

reference to state law.” Wallace, 549 U.S. at 388.

B. Factual Background

The abuse alleged in these cases occurred decades

ago. From 1978 to 1998, Richard Strauss was

employed by Ohio State as a physician at the

University’s Student Health Center and as a team

physician for multiple athletics teams. App. 2a-3a. In

these capacities, Strauss sexually abused hundreds of

young men, often while performing medical

examinations.

This abuse occurred in various

settings on campus and at Strauss’s home. See id. at

2a-5a, 9a, 15a; id. at 45a-47a (Guy, J., dissenting).

Plaintiffs allege that Strauss’s abusive behavior

was well known among Ohio State students and staff,

including members of Ohio State’s athletics

department and staff at the Student Health Center.

Id. at 6a-7a, 10a (majority op.). Ohio State ultimately

placed Strauss on administrative leave in 1996 and,

after investigating his conduct, terminated his

position with University athletics. Id. at 3a. Strauss

retired from the University in 1998 and died in 2005.

Id.; id. at 43a (Guy, J., dissenting).

In April 2018, after a former Ohio State wrestler

reported to the University that Strauss had abused

him decades earlier, Ohio State launched an external,

independent investigation led by Perkins Coie LLP.

Id. at 5a (majority op.). This investigation was

comprehensive: Ohio State contacted more than

115,000 alumni and student-athletes and reached an

additional 147,000 people through University-wide

notifications to inform them of the investigation and

encourage them to share any information they had

with investigators. Ohio State also created a webpage

dedicated to the investigation and has released

thousands of pages of records relating to Strauss.1

In May 2019, Ohio State publicly released a 182page report prepared by Perkins Coie summarizing

the investigation and its findings.

See Caryn

Trombino & Markus Funk, Perkins Coie LLP, Report

of the Independent Investigation: Sexual Abuse

Committed by Dr. Strauss at The Ohio State

University (May 15, 2019).2 The report found that

Strauss sexually abused at least 177 men, nearly all

students, between 1978 and 1998. Id. at 1, 43. The

report also found that, despite “persisten[t], serious[],

and regular[]” complaints, “no meaningful action was

taken by the University to investigate or address the

concerns until January 1996.” Id. at 3.

In the wake of this investigation, Ohio State has

been committed to reconciling with its former

students and alumni who were impacted by Strauss.

For example, Ohio State has repeatedly and

unequivocally condemned Strauss’s abuse and its own

failure to prevent that abuse, and expressed its regret

and sincere apologies to each person impacted by

Strauss’s abuse. Ohio State also has offered to cover

See

Strauss

Investigation,

Ohio

State

https://compliance.osu.edu/strauss-investigation.html

visited Mar. 13, 2023).

Univ.,

(last

https://compliance.osu.edu/assets/site/pdf/Revised_report.pdf.

the cost of professionally certified counseling services

and treatment for anyone affected by Strauss, and

established a task force on sexual abuse composed of

leading experts and sexual-abuse survivors.

C. Proceedings Below

1. After the announcement of the investigation

and issuance of the Perkins Coie report, hundreds of

plaintiffs filed Title IX claims against Ohio State in

the Southern District of Ohio. This petition concerns

two lawsuits that were consolidated for appeal:

Snyder-Hill v. Ohio State University, No. 21-3981 (6th

Cir.), and Moxley v. Ohio State University, No. 213991 (6th Cir.). The Snyder-Hill suit was filed in July

2018, and the Moxley suit was filed in June 2021.

App. 17a-18a; see id. at 110a, 113a. The plaintiffs—

respondents in this Court—are 103 former Ohio State

students and student-athletes; two individuals who

refereed wrestling matches on Ohio State’s campus;

and two former high-school students who visited

campus, one to see a relative and the other to attend

a summer camp. See id. at 5a, 38a.

Respondents allege that Strauss abused them

while he was employed at Ohio State, and that Ohio

State officials were deliberately indifferent to that

abuse. Id. at 1a-2a. While respondents’ complaints

describe the various acts of abuse in detail, all of the

“abuse occurred between 1978 and 1998”—20 to 40

years before respondents filed suit, and decades after

they had graduated from or left Ohio State. Id. at 2a;

see id. at 43a (Guy, J., dissenting).

2. The district court granted Ohio State’s motions

to dismiss, holding that respondents’ claims are timebarred under the applicable two-year limitations

period. Id. at 110a-14a. In both Snyder-Hill and

Moxley, the court incorporated the reasoning from its

opinion in Garrett v. Ohio State University, 561 F.

Supp. 3d 747 (S.D. Ohio 2021) (reproduced at App.

115a-39a), vacated, 60 F.4th 359 (6th Cir. 2023), a

case brought by other Strauss victims asserting Title

IX claims.3 See App. 111a, 113a-14a.

In Garrett, the district court held that the

plaintiffs’ Title IX claims are untimely, regardless of

whether those claims accrued under the “occurrence

rule” or the “discovery rule.” Id. at 121a-33a. Under

the “occurrence rule,” the court explained, the claims

accrued no later than when the plaintiffs separated

from the University (between 1978 and 1999), since

that is “the latest moment they were deprived of

access to educational opportunities or benefits

provided by Ohio State as a result of Ohio State’s

deliberate indifference.” Id. at 125a-26a. Likewise,

the court continued, even if the discovery rule applied,

that would not change the accrual date, because the

plaintiffs were “aware of” their injuries when the

injuries occurred, and the “latest date of notice for

each [p]laintiff . . . occurred well before two years

prior to filing [suit].” Id. at 126a-33a.

3. A divided panel of the Sixth Circuit reversed.

Id. at 1a-68a.

a. Writing for the majority, Judge Moore

recognized as undisputed that the abuse at issue

occurred between 1978 and 1998, and that Ohio’s twoyear statute of limitations governs respondents’

claims. Id. at 2a, 19a. But the majority held, based

on Sixth Circuit precedent and Title IX’s “broad

The Sixth Circuit’s decision in Garrett is the subject of the

petition for certiorari in Ohio State University v. Gonzales, which

presents the same threshold issue as this petition.

remedial purpose,” that the “discovery rule,” not the

“occurrence rule,” governs the accrual of Title IX

claims. Id. at 20a-22a. According to the majority, the

decisions of this Court and other circuits adopting the

occurrence rule as the default rule for federal causes

of action are “inapposite.” Id. at 22a-25a.

The majority then held that, under the discovery

rule, a Title IX claim accrues only when the plaintiff

“knows or has reason to know that they were injured

and that the defendant [educational institution]

caused their injury” through its “deliberate

indifference.” Id. at 25a-35a. In the majority’s view,

a plaintiff’s “knowledge that he was abused,” that the

abuser was “employed” by the educational institution,

and that other students and staff were aware of the

abuse is “not enough to start the clock.” Id. at 34a.

Rather, according to the majority, the limitations

period does not begin to run until the plaintiff “knows

or should have known” of the institution’s “deliberate

indifference”—i.e., that school “administrators ‘with

authority to take corrective action’ knew of [the

abusive] conduct and failed to respond appropriately.”

Id. at 33a-35a (citation omitted).

Applying that rule to respondents’ allegations, the

majority held that, at the time of their injuries,

respondents may have “lacked reason to know . . . the

underlying facts about Ohio State’s alleged deliberate

indifference.” Id. at 33a. According to the majority,

“Ohio State is a vast institution,” and it is “difficult”

for “a student to know what appropriate persons

within the Ohio State administration knew.” Id. at

34a. The majority also suggested that respondents

may not have been able to discover Ohio State’s

deliberate indifference because it was “concealed,”

and that respondents may not have realized that

Strauss’s

“extreme[ly]

distress[ing]”

conduct

“medically” constituted “abuse.” Id. at 35a-38a.

The majority also rejected Ohio State’s separate

argument that the claims filed by four respondents

could not proceed in any event because they were not

students or employees at the time of the abuse. Id. at

38a-42a. According to the majority, “we have never

limited the availability of Title IX claims to employees

or students.” Id. at 39a. The court held that nonstudents and non-employees may bring suit under

Title IX if they were allegedly subjected to

“discrimination” in an “‘education program or

activity,’” which it “defined broadly” to “extend[] to

situations in which individuals are, for example,

accessing university libraries or other resources, or

attending campus tours, sporting events, or other

activities.” Id. at 41a (citation omitted).

b. Judge Guy dissented. Id. at 43a-68a. He

explained that the majority’s adoption of the

discovery rule, rather than the occurrence rule, for

Title IX claims contravenes this Court’s precedents

and exacerbates a “circuit split.” Id. at 47a-55a.

Moreover, Judge Guy added, the majority improperly

adopted “a new injury-and-deliberate-indifference

discovery rule” that also conflicts with precedent from

this Court and other circuits, and ultimately “renders

meaningless any limitations provision for Title IX

claims.” Id. at 47a, 55a-65a. Finally, Judge Guy

explained that the majority compounded its errors by

expanding Title IX to cover the four non-student

plaintiffs, noting that “none of [the plaintiffs at issue]

alleges that they were ‘denied equal access to an

educational program or activity.’” Id. at 65a-67a

(citation and internal alteration omitted).

4. The Sixth Circuit denied panel rehearing and

rehearing en banc, over multiple dissents. Id. at 69a109a. Judge Guy dissented for the reasons in his

panel dissent. Id. at 70a. Judge Thapar dissented in

light of the “tension between Sixth Circuit and

Supreme Court precedent about when a claim

accrues.” Id. at 83a. And Judge Readler, joined by

Judge Bush, dissented in a lengthy opinion. Id. at

70a, 84a-109a. Among other things, Judge Readler

explained that the panel decision “deepened” a

“circuit split” over the proper accrual rule, id. at 97a,

and it “ignored” “multiple lines of Supreme Court

authority,” id. at 84a-85a, 92a; see id. at 88a-100a. He

expressly urged this Court to grant review. Id. at 86a.

REASONS FOR GRANTING THE PETITION

This petition readily satisfies this Court’s criteria

for certiorari. The divided Sixth Circuit decision

below deepens a circuit conflict on when Title IX

claims accrue. It directly contravenes this Court’s

claim-accrual precedents, while exacerbating the

problems associated with expanding implied private

rights of action. If left to stand, it will produce

enormous uncertainty for educational institutions as

well as victims of alleged abuse on the accrual of Title

IX claims, and effectively penalize schools for

investigating decades-old misconduct. The Sixth

Circuit’s ruling extending Title IX’s judicially implied

cause of action to essentially anyone who steps foot on

a university campus underscores the implications of

the Sixth Circuit’s extreme decision and the need for

this Court’s intervention. Certiorari is warranted.

I. THE SIXTH CIRCUIT’S CLAIM-ACCRUAL

RULING WARRANTS REVIEW

A. The Decision Below Deepens A Circuit

Split Over When Title IX Claims Accrue

The Sixth Circuit’s divided decision “deepened” a

“circuit split” over the proper accrual rule for Title IX

claims based on harassment. App. 97a (Readler, J.,

dissenting); see id. at 49a (Guy, J., dissenting) (noting

the “circuit split”); Bannister v. Knox Cnty. Bd. of

Educ., 49 F.4th 1000, 1014 (6th Cir. 2022) (“Circuit

courts have adopted different approaches to the

accrual rules for Title IX claims.”).

1. The Tenth Circuit has adopted the “occurrence”

(or “injury occurrence”) rule for the accrual of Title IX

claims, holding that “accrual occurs [for Title IX

claims] when the plaintiff has a complete and present

cause of action,” such that “‘the plaintiff can file suit

and obtain relief.’” Varnell v. Dora Consol. School

Dist., 756 F.3d 1208, 1215-17 (10th Cir. 2014)

(quoting Wallace v. Kato, 549 U.S. 384, 388 (2007));

see App. 49a (Guy, J., dissenting) (“Varnell applied

the injury occurrence rule”); id. at 97a (Readler, J.,

dissenting) (“Varnell expressly recognized that the

occurrence rule serves as the default rule”);

Bannister, 49 F.4th at 1014 (recognizing that Varnell

applied the standard occurrence rule).

The plaintiff in Varnell asserted a Title IX

deliberate-indifference claim against her former high

school, alleging that she had been sexually abused by

a coach while she was a student, along with a Section

1983 claim based on the same abuse. 756 F.3d at

1215. Heeding this Court’s reasoning in Wallace, the

Tenth Circuit looked to the “accrual date for the

common-law tort most analogous” to the plaintiff’s

claims—“‘battery’”—which

“‘complete

upon

physical contact, even though there is no observable

damage at the point of contact.’” Id. at 1215-16

(citation omitted). Accordingly, the court held that

the plaintiff’s claims “accrued no later than the last

sexual abuse by [the coach]”—in 2007, well outside

the applicable limitations period. Id. at 1216-17.

The court observed that, “even if the discovery rule

applied,” as the plaintiff argued, the plaintiff’s claims

would still be untimely. Id. at 1216. As it explained,

the plaintiff “knew long before she filed suit all the

facts necessary to sue and recover damages”—even if

“she may not have known how harmful [the] abuse

was.” Id. (emphasis added). But at both the

beginning and end of its claim-accrual analysis, the

court held that, under Wallace, the occurrence rule is

the “standard rule” in this context, and that the

plaintiff’s Title IX claim was untimely under that

rule. Id. at 1215, 1217.

2. In conflict with the Tenth Circuit, other circuits

have held that the “discovery rule” governs the

accrual of claims under Title IX.

The Fifth Circuit has held that a Title IX claim

accrues when “the plaintiff becomes aware that he has

suffered an injury or has sufficient information to

know that he has been injured.” King-White v.

Humble Indep. Sch. Dist., 803 F.3d 754, 762 (5th Cir.

2015) (emphasis added) (citation omitted). Unlike the

occurrence rule, this discovery rule focuses on the

“plaintiff’s awareness” of “the existence of the injury”

and “the connection between the injury and the

defendant’s actions.” Id. (citation omitted). But the

Fifth Circuit held in King-White that, in the context

of a Title IX deliberate-indifference claim, the claim

accrues upon a plaintiff’s “aware[ness] of the abuse”

and of the abuser’s “connection” to the educational

institution; the plaintiff need not also be aware of the

institution’s own “conduct” or “policies” reflecting its

“deliberate indifference to the abuse.” Id. at 762-63.

In so holding, the Fifth Circuit explicitly “‘decline[d]’”

to “adopt a ‘delayed accrual’ rule” tethered to the

plaintiff’s knowledge of the institution’s “policies or

customs.” Id. at 763 (citation omitted).

The Ninth Circuit has likewise held that a Title IX

claim “accrues when a plaintiff knows or has reason

to know of the injury which is the basis of his action.”

Stanley v. Trustees of the Cal. State Univ., 433 F.3d

1129, 1136 (9th Cir. 2006) (citation omitted). Thus,

when the alleged injury is a “depriv[ation] of

educational opportunities and benefits” resulting

from sexual abuse, the claim accrues when the

plaintiff “‘knows or has reason to know’” of the abuse

and associated deprivation. Samuelson v. Oregon

State Univ., 725 F. App’x 598, 599 (9th Cir. 2018)

(quoting Stanley, 433 F.3d at 1136). Applying that

rule in a case where the plaintiff—who dropped out of

college following an on-campus sexual assault—

claimed that the university had been “deliberate[ly]

indifferen[t] to a prior report of sexual assault,” the

Ninth Circuit held that the claim accrued “when [the

plaintiff] dropped out of school.” Id. At that point, the

court reasoned, the plaintiff was “fully aware of the

injury and its consequences.” Id.

The Second Circuit has taken a similar approach

in an unpublished opinion. Twersky v. Yeshiva Univ.,

579 F. App’x 7, 9-10 (2d Cir. 2014), cert. denied,

575 U.S. 935 (2015). In Twersky, the court explained

that, even assuming a discovery rule applies to

Title IX claims, the limitations period begins to run

when plaintiffs are “aware of (1) their injuries,

(2) their abusers’ identities, and (3) their abusers’

prior and continued employment at [the educational

institution].” Id. A plaintiff need not also have actual

knowledge of “the school’s awareness of and

indifference to the abusive conduct.” Id. at 10.

3. In this case, the Sixth Circuit held that the

accrual of Title IX claims is governed by the discovery

rule, not the occurrence rule. App. 20a-22a. Then it

adopted an extreme version of that rule—creating a

third position on when Title IX claims accrue.

The Sixth Circuit below held that a Title IX claim

does not accrue until the plaintiff “knows or has

reason to know that they were injured and that the

[educational institution] caused their injury.” Id. at

32a (emphasis added). As a result—unlike in the

Second, Fifth, and Ninth Circuits, which have applied

a discovery rule for Title IX claims—in the Sixth

Circuit a plaintiff’s “knowledge that he was abused”

and that the abuser is “employed” by the educational

institution is “not enough to start the clock.” Id. at

34a. Rather, in the Sixth Circuit, the limitations

period does not begin to run until the plaintiff “knows

or should have known” of the institution’s “deliberate

indifference”—i.e., that school “administrators ‘with

authority to take corrective action’ knew of [the

abusive] conduct and failed to respond appropriately.”

Id. at 32a-35a (citation omitted).

As Judge Guy observed in dissent, this “injuryand-deliberate-indifference discovery rule” sets the

Sixth Circuit apart from every other circuit to address

the issue in the Title IX context. Id. at 65a.4

The Sixth Circuit majority relied on a First Circuit case

addressing claim accrual under Section 1983. App. 30a (citing

Ouellette v. Beaupre, 977 F.3d 127, 140 (1st Cir. 2020)). But in

4. This three-way circuit conflict is outcomedeterminative here. Had respondents filed suit in the

Tenth Circuit, their claims would have been untimely

under the occurrence rule, because the last instance

of sexual abuse alleged by any respondent occurred

decades before they filed suit. The same goes if

respondents had filed suit in the Second, Fifth, or

Ninth Circuits, because respondents knew or had

reason to know of their injuries and Strauss’s

connection to Ohio State at the time it occurred,

decades ago—thus triggering the discovery rule

adopted by those circuits. Only under the Sixth

Circuit’s extreme version of the discovery rule—which

requires knowledge of an institution’s alleged

deliberate indifference—could respondents’ claims be

timely decades after the abuse and any loss of

educational opportunity occurred.

This clear circuit conflict warrants certiorari.

B. The Sixth Circuit’s Decision Is Wrong

The Sixth Circuit’s position also contravenes

“multiple lines of Supreme Court authority”

governing claim accrual. App. 92a (Readler, J.,

dissenting); see id. at 48a-52a, 55a-64a (Guy, J.,

dissenting); id. at 83a (Thapar, J., dissenting).

1. For starters, the decision below flouts this

Court’s decisions stressing that the occurrence rule,

not the discovery rule, is the default rule governing

the accrual of federal causes of action.

a. This Court has repeatedly admonished that the

occurrence rule—under which the limitations period

the Section 1983 context, “Ouellette stands alone” among the

circuits. Id. at 65a (Guy, J., dissenting). The majority’s reliance

on Ouellette, therefore, only deepens the conflict.

begins to run when “the plaintiff has a complete and

present cause of action”—is the “standard [accrual]

rule” for federal claims. Wallace, 549 U.S. at 388

(quoting Bay Area Laundry & Dry Cleaning Pension

Tr. Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192,

201 (1997)); see, e.g., Rotkiske v. Klemm, 140 S. Ct.

355, 360 (2019); McDonough v. Smith, 139 S. Ct. 2149,

2155 (2019); SCA Hygiene Prods. Aktiebolag v. First

Quality Baby Prods., LLC, 580 U.S. 328, 337 (2017);

Green v. Brennan, 578 U.S. 547, 554 (2016); Petrella

v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 670

(2014); Gabelli v. SEC, 568 U.S. 442, 448 (2013);

Merck & Co. v. Reynolds, 559 U.S. 633, 644 (2010);

Graham Cnty. Soil & Water Conservation Dist. v.

United States ex rel. Wilson, 545 U.S. 409, 418 (2005);

United States v. Kubrick, 444 U.S. 111, 120 (1979);

Clark v. Iowa City, 87 U.S. (20 Wall.) 583, 589 (1874).

Rooted in “common-law tort principles,” Wallace,

549 U.S. at 388, the occurrence rule has “governed

since the 1830s,” Gabelli, 568 U.S. at 448 (citing

cases). Accordingly, “Congress has been operating

against th[is] background rule . . . for a very long

time,” TRW Inc. v. Andrews, 534 U.S. 19, 38 (2001)

(Scalia, J., concurring in the judgment)—long before

Congress enacted Title IX. This rule therefore

governs the accrual of federal causes of action unless

Congress provides otherwise. See, e.g., Rotkiske, 140

S. Ct. at 360; Graham Cnty., 545 U.S. at 418-19.

Under this “standard rule,” the limitations period

begins to run as soon as the allegedly “‘wrongful act

or omission results in damages’”—i.e., when the

alleged injury “occur[s]” and the plaintiff can file suit.

Wallace, 549 U.S. at 388, 391 (citations omitted).

Accrual is not “postpone[d]” merely because the

plaintiff “has no knowledge of his right to sue, or of

the facts out of which his right arises.” TRW, 534 U.S.

at 37 (Scalia, J., concurring in the judgment) (quoting

2 H.G. Wood, A Treatise on the Limitation of Actions

at Law and in Equity § 276c(1), at 1411 (4th ed.

1916)); see Wallace, 549 U.S. at 391. The occurrence

rule thus “sets a fixed date” for claim accrual,

“advancing ‘the basic policies of all limitations

provisions: repose, elimination of stale claims, and

certainty about a plaintiff’s opportunity for recovery

and a defendant’s potential liabilities.’” Gabelli, 568

U.S. at 448 (citation omitted).

The “discovery rule”—under which accrual is

delayed until “the injury is or reasonably could have

been discovered” by the plaintiff—is “an ‘exception’ to

the standard rule.” Id. at 449, 451 (quoting Merck,

559 U.S. at 644). It originally arose as an “equitybased doctrine” for “fraud actions,” Rotkiske, 140 S.

Ct. at 361, based on the recognition that plaintiffs

who have “‘been injured by fraud’” may be “unaware

that they have been harmed” because the “injury is

self-concealing,” Gabelli, 568 U.S. at 449-51 (quoting

Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946)).

But aside from this “historical exception for suits

based on fraud,” this Court has “deviated from the

traditional rule and imputed an injury-discovery rule

to Congress on only one occasion”—a suit under the

Federal Employers’ Liability Act seeking “recovery for

latent medical injuries” arising from the accumulated

inhalation of coal dust. TRW, 534 U.S. at 37 (Scalia,

J., concurring in the judgment) (citing Urie v.

Thompson, 337 U.S. 163, 170 (1949)).5

In a handful of cases, the Court has “simply observed

(without endorsement)” that lower courts applied a discovery

rule. TRW, 534 U.S. at 37 n.2 (Scalia, J., concurring in the

As Judge Guy explained below, Title IX suits

against educational institutions are “not akin to any

of those cases.” App. 53a-54a (dissenting). This is not

a fraud action. Nor does it involve a latent medical

disease, where the injury is “inherently unknowable”

to the plaintiff until “‘the accumulated effects of the

deleterious substance manifest themselves.’” Urie,

337 U.S. at 169-70 (citation omitted). Accordingly,

there is no basis to depart from the “‘standard rule’”

of accrual—a Title IX claim accrues when the alleged

injury “occur[s],” at which point the plaintiff has “‘a

complete and present cause of action.’” Wallace, 549

U.S. at 388 (citation omitted). And here, the possible

injuries—“the ‘sexual abuse’ and loss of ‘educational

opportunities’”—all “occurred between 1978 and

1998,” at which point respondents had a “‘complete

and present cause of action.’” App. 48a-49a (Guy, J.,

dissenting) (citation omitted). Under the occurrence

rule, respondents’ claims are thus plainly timebarred.

b. Instead of following this Court’s precedent, the

Sixth Circuit invoked its own precedent and declared

that “the ‘discovery rule’”—not the occurrence rule—

is the “‘general federal rule’” that applies “absent a

statutory directive to the contrary.”

App. 20a

(quoting Bishop v. Children’s Ctr. for Developmental

Enrichment, 618 F.3d 533, 536 (6th Cir. 2010)). But

as Justice Scalia observed decades ago, circuit

precedent suggesting a “‘general federal [discovery]

rule’” is a “bad wine of a recent vintage,” TRW, 534

U.S. at 35-37 (Scalia, J., concurring in the judgment),

in light of this Court’s recognition that the “‘standard

judgment) (citing cases involving medical malpractice and RICO

claims); see Petrella, 572 U.S. at 670 n.4 (copyright claims).

rule [is] that the limitations period commences when

the plaintiff has a complete and present cause of

action,’” id. at 36 (quoting Bay Area Laundry, 522

U.S. at 201). The wine has only gotten worse since

then, as this Court has reiterated that the occurrence

rule is the “standard rule,” Wallace, 549 U.S. at 388

(quoting Bay Area Laundry, 522 U.S. at 201), whereas

the discovery rule is a narrow “exception,” Gabelli,

568 U.S. at 449.

The Sixth Circuit reasoned that it could disregard

that precedent because “Title IX’s text contains no

statute of limitations at all.” App. 23a. But Wallace

and McDonough addressed the accrual of claims

under Section 1983, which also lacks a federal statute

of limitations. See id. at 52a (Guy, J., dissenting).

And yet, in that context, the Court held that the

occurrence rule is the “‘standard rule’” under

“common-law” principles and thus “normally” applies.

Wallace, 549 U.S. at 388 (citation omitted); see

McDonough, 139 S. Ct. at 2155 (occurrence rule

“presumptively” applies). Moreover, the Court has

applied the occurrence rule when the text of an

express statute of limitations does not dictate a

particular rule of accrual. See, e.g., Gabelli, 568 U.S.

at 447-48; Graham Cnty., 545 U.S. at 418.

By insisting that, “absent a statutory directive to

the contrary, the ‘discovery rule’ applies,” App. 20a,

the Sixth Circuit got it exactly backwards: “[I]n the

absence of an unambiguous statutory” directive

requiring a discovery rule, the “standard occurrence

rule” applies. Id. at 93a-94a (Readler, J., dissenting).

And because Title IX lacks an express statute of

limitations, it certainly does not expressly adopt any

discovery rule. Importing a discovery rule into Title

IX is thus “‘[a]textual judicial supplementation’ all

the same.” Id. at 51a (Guy, J., dissenting) (quoting

Rotkiske, 140 S. Ct. at 361); cf. Credit Suisse Sec.

(USA) LLC v. Simmonds, 566 U.S. 221, 229 (2012)

(“Congress’ silence, while permitting an inference

that Congress intended to apply ordinary background

tort principles, cannot show that it intended to apply

an unusual modification of those rules.” (citation

omitted)).

The Sixth Circuit’s reliance on Title IX’s “silen[ce]”

to justify a discovery rule, App. 23a, is particularly

misguided. Title IX lacks an express statute of

limitations because Title IX lacks an express cause of

action. Although this Court implied a private right of

action for Title IX in Cannon, it has since stressed

that implied causes of action “must [be] give[n]

‘narrow dimensions.’” Janus Cap. Grp., Inc. v. First

Derivative Traders, 564 U.S. 135, 142 (2011) (citation

omitted). The “watchword is caution.” Hernández v.

Mesa, 140 S. Ct. 735, 742 (2020); see Jesner v. Arab

Bank, PLC, 138 S. Ct. 1386, 1402-03 (2018). Instead

of caution, the Sixth Circuit simply invoked “Title IX’s

broad remedial purpose” in order to invent the most

expansive accrual rule possible. App. 22a.

The Sixth Circuit’s creation of this extreme rule

represents the very affront to the separation of

powers this Court has repeatedly admonished against

when it comes to implied rights of action. See id. at

84a-85a, 91a-92a (Readler, J., dissenting); Franklin,

503 U.S. at 78 (Scalia, J., concurring in the judgment)

(“[W]hatever the merits of ‘implying’ rights of action

may be, there is no justification for treating

[congressional] silence as the equivalent of the

broadest imaginable grant of remedial authority.”

(citation omitted)). The Sixth Circuit’s attempt to

turn back the clock on the judicial leeway to fashion—

and expand—implied rights of action underscores the

need for review.

2. Even if the discovery rule could apply to Title

IX claims, the Sixth Circuit’s extreme version of that

rule is egregiously wrong on its own terms.

a. Under the “discovery rule,” the limitations

period begins to run “when the injury is or reasonably

could have been discovered.” Gabelli, 568 U.S. at 451.

The Court has “been at pains to explain that discovery

of the injury, not discovery of the other elements of a

claim, is what starts the clock.” Rotella v. Wood, 528

U.S. 549, 555 (2000). That is true even when those

other elements are “complex, concealed, or

fraudulent”—“discovery” of other elements “is not

required before the statute starts running.” Id. at

556. Thus, in Rotella, for example, the Court held

that the limitations period for a RICO claim begins to

run even if the plaintiff has not “discovered the

pattern of predicate acts” constituting “racketeering.”

Id. at 556-59. In so holding, the Court was “emphatic”

that the “discovery rule does not extend beyond

[discovery of] the injury.” Id. at 555.

Here, each respondent “knew of their ‘injury’

between 1978 and 1998,” when the injury occurred.

App. 57a (Guy, J., dissenting). Respondents’ detailed

allegations about their traumatic experiences—

including dozens of respondents who fled the scene

and refused to be examined by Strauss, dozens who

complained about the abuse, and more than 100 who

allegedly suffered decades of traumatic life

experiences because of the abuse—confirm their

awareness of the injuries and of Strauss’s connection

to Ohio State at the time of the abuse. See id. at 56a57a; see also id. at 45a-47a. Accordingly, under the

discovery rule, their claims are untimely too.

b. The Sixth Circuit majority reached the

contrary conclusion by distorting the inquiry, holding

that the discovery rule delays accrual until the

“plaintiff knows or has reason to know that they were

injured and that the defendant [educational

institution] caused their injury.” Id. at 32a (emphasis

added). From this premise, the majority declared that

the limitations period does not begin to run until the

plaintiff “kn[ows] or has reason to know” of the

institution’s “‘deliberate[] indifferen[ce]’”—i.e., that

“administrators ‘with authority to take corrective

action’ knew of [the abusive] conduct and failed to

respond appropriately.” Id. at 32a-35a (citations

omitted). In other words, “the limitations period does

not commence until the plaintiffs discover all aspects

of the institution’s intentional misconduct.” Id. at

100a (Readler, J., dissenting) (emphasis added).

The Sixth Circuit’s extreme version of the

discovery rule flies in the face of Rotella’s holding that

the discovery rule is limited to “discovery of the

injury, not discovery of the other elements of a claim.”

528 U.S. at 555. Causation is “one of ‘the other

elements’ of a Title IX claim.” App. 62a (Guy, J.,

dissenting); see Rotella, 528 U.S. at 556-57

(explaining

the

plaintiff’s

responsibility

“investigate the cause of his injuries” (emphasis

added)). The same is true of deliberate indifference.

App. 62a (Guy, J., dissenting). A Title IX plaintiff’s

awareness of “a school’s deliberate indifference,” id.

at 32a (majority op.), is indistinguishable from a

RICO plaintiff’s awareness of a defendant’s “pattern

of predicate acts,” Rotella, 528 U.S. at 556 (emphasis

added)—which is not required to trigger the statute of

limitations. The fact that this deliberate indifference

may have been “concealed” thus makes no difference

to the question of claim accrual. Id.; contra App. 35a.

Nor does Kubrick support the Sixth Circuit’s

extreme rule. App. 26a-27a. In Kubrick, this Court

simply acknowledged (without endorsement) that the

court of appeals there had applied a discovery rule for

“medical malpractice cases,” under which the

limitations period did “not begin to run until the

plaintiff has discovered both his injury and its cause.”

444 U.S. at 120-21 (citation omitted). But the unique

concerns present in that context—where a particular

ailment may be the product of any number of “causes”

unknown to the plaintiff—are absent here. Moreover,

the Court stressed that, even under that rule, a

plaintiff need only know “that he has been hurt and

who has inflicted the injury”—and not that the

conduct was “improper” or “legally blameworthy.” Id.

at 121-22; see Rotella, 528 U.S. at 555 (stressing that

even in “medical malpractice” cases, the “discovery

rule does not extend beyond [discovery of] the

injury”).6

Ultimately, the Sixth Circuit’s “injury-anddeliberate-indifference discovery rule . . . renders

meaningless any limitations provision for Title IX

claims.” App. 47a (Guy, J., dissenting). This case

proves the point: The claims were filed “more than 20

to 40 years after the alleged sexual abuse occurred,”

“more than 20 years after Strauss stopped working at

[Ohio State],” and “more than 13 years after Strauss”

died. Id. at 43a. Allowing those stale claims to

Kubrick thus forecloses the Sixth Circuit’s theory that the

limitations period did not begin to run until respondents became

aware that Strauss’s conduct was not “medically appropriate.”

App. 36a-38a; see id. at 58a-60a (Guy, J., dissenting).

proceed “thwart[s] the basic objective of repose

underlying the very notion of a limitations period.”

Gabelli, 568 U.S. at 452 (quoting Rotella, 528 U.S. at

554). The fact that the Sixth Circuit had to bulldoze

this Court’s precedents to reach that startling result

only bolsters the need for this Court’s review.

C. The Accrual Rule For Title IX Claims Is

Exceptionally Important And Warrants

Review In This Case

1. The rule governing when a Title IX claim for

sexual harassment accrues is exceptionally

important—as evidenced by the multiple judges and

“amici universities with a collective enrollment of

over 200,000 students” that have already urged

further review.

App. 85a-86a (Readler, J.,

dissenting); see id. at 83a (Thapar, J., dissenting); id.

at 70a (Guy, J., dissenting); Amici Br. of Multiple

Institutions of Higher Education, 6th Cir. No. 21-3981

(Nov. 1, 2022) (Univ. CA6 Br.).

As the amici universities explained below, the

Sixth Circuit’s decision will have the perverse

consequence of discouraging educational institutions

from “seek[ing] to right past wrongs of their own

volition” through independent investigations. Univ.

CA6 Br. 10-11.

In the Sixth Circuit’s view,

respondents’ Title IX claims did not accrue until

sometime in 2018, after Ohio State announced that it

would undertake a comprehensive and transparent

independent investigation into Strauss’s misconduct.

App. 32a-34a. This investigation was integral to

uncovering the extent of the abuse, facilitating

reconciliation with survivors, and preventing

anything like this from happening again.7 But if the

price of such investigations is an onslaught of Title IX

damages suits based on decades-old allegations,

schools may be deterred from undertaking them.

More fundamentally, statutes of limitations are

“vital to the welfare of society” as a whole. Gabelli,

568 U.S. at 448-49 (quoting Wood v. Carpenter, 101

U.S. 135, 139 (1879)). They “‘promote justice by

preventing surprises through the revival of claims

that have been allowed to slumber until evidence has

been lost, memories have faded, and witnesses have

disappeared,’” ultimately “provid[ing] ‘security and

stability to human affairs.’” Id. (citations omitted).

Just as vital is the rule for claim accrual, as “any

period of limitation is utterly meaningless without

specification of the event that starts it running.”

Klehr v. A.O. Smith Corp., 521 U.S. 179, 199 (1997)

(Scalia, J., concurring in part and concurring in the

judgment). Given these vital interests, it is not

surprising that this Court has repeatedly granted

review to resolve confusion about the accrual of

federal causes of action. See supra at 18.

This case highlights the importance of those

interests. The claims were filed more than 20 to 40

years after the abuse occurred, 20 years after the

perpetrator stopped working at Ohio State and 13

years after his death, and a decade after the plaintiffs

graduated from or left the University. Yet the Sixth

Circuit held that the claims could proceed. If the

Sixth Circuit’s decision is left to stand, there is

See Michael V. Drake, President, Ohio State Univ., A

Message from President Drake: Strauss Investigation Report

(May

17,

2019),

https://president.osu.edu/story/straussinvestigation-report.

essentially no limit on the stale claims that could be

brought. See App. 43a (Guy, J., dissenting). No

matter the urge to address past wrongs, no system of

true justice can operate on such terms. See Gabelli,

568 U.S. at 448-49.

The importance of Title IX itself heightens the

need for this Court’s intervention. Title IX is a

sweeping federal statutory program. More than

100,000 educational institutions—with collective

enrollment of nearly 70 million students—receive

federal funds and are thus potentially subject to Title

IX.8 The confusion and division in the lower courts

over such a basic component of this statutory

program—the accrual date for the applicable

limitations period—is intolerable, particularly “in

view of the ‘federal interests in uniformity, certainty,

and the minimization of unnecessary litigation’

surrounding statutes of limitations.” App. 100a

(Readler, J., dissenting) (quoting Wilson v. Garcia,

471 U.S. 261, 275 (1985)). And because the Title IX

cause of action was implied by this Court, it is

incumbent on this Court to police its limits.

The inevitable increase in costs associated with

litigating stale Title IX claims also will divert funds

allocated for educational programs and activities,

ultimately harming students. And universities will

not be the only institutions who suffer from this

regime.

The decision below extends beyond

See U.S. Dep’t of Educ., Nat’l Ctr. for Educ. Statistics,

Digest of Education Statistics, Table 105.50 (2021),

https://nces.ed.gov/programs/digest/d21/tables/dt21_105.50.asp;

U.S. Dep’t of Educ., Nat’l Ctr. for Educ. Statistics, Fast Facts—

Back to School Statistics (2022), https://nces.ed.gov/fastfacts/

display.asp?id=372.

universities—it reaches all Title IX institutions,

including elementary and secondary schools. And for

the many non-university institutions “charged each

day with educating millions of children” on extremely

constrained budgets, the additional “cost of defending

against” these decades-old claims “alone could

overwhelm [them].” Davis ex rel. LaShonda D. v.

Monroe Cnty. Bd. of Educ., 526 U.S. 629, 680 (1999)

(Kennedy, J., dissenting). The increase in litigation

costs borne by schools could divert funding from other

public programs.

2. This case is an ideal vehicle for resolving the

accrual question. That question is a threshold issue

unimpeded by any jurisdictional or preliminary

disputes. And as the case comes to the Court, the

relevant facts are uncontested. The question for this

Court is purely legal—when do Title IX claims

accrue? That question, moreover, was fully ventilated

in the courts below, which debated the application of

this Court’s and other circuit’s claim-accrual

precedents across several opinions and reached

different conclusions. And by allowing claims that

“reach back to conduct over 40 years old” to proceed,

this case crystalizes just how much “jurisprudential

damage” the Sixth Circuit’s decision has done. App.

85a-86a (Readler, J., dissenting).

II. THE

SIXTH

CIRCUIT’S

RULING

EXPANDING THE SCOPE OF TITLE IX’S

IMPLIED PRIVATE RIGHT ALSO MERITS

REVIEW

Certiorari is warranted for all of the foregoing

reasons. But the Sixth Circuit’s separate ruling that

the implied right of action under Title IX “broadly . . .

extends” to “‘members of the public’” who merely visit

campus for “campus tours, sporting events, or other

activities,” App. 40a-41a (citation omitted), amplifies

the need for this Court’s review. As Judge Readler

observed, that ruling “drastically expand[s] Title IX’s

reach”—and the universe of potential Title IX

plaintiffs—to virtually “anyone who has ever stepped

foot on school grounds,” a holding that “no [other]

circuit” has adopted. Id. at 101a, 107a (Readler, J.,

dissenting). That ruling flies in the face of this

Court’s precedents cautioning against the expansion

of implied causes of action from a bygone era. And, if

left uncorrected, it will exacerbate the consequences

of the Sixth Circuit’s flawed claim-accrual ruling.

A. All of the “[c]oncerns with the judicial creation

of a private cause of action caution against its

expansion.” Janus Capital, 564 U.S. at 142 (emphasis

added) (citation omitted); see, e.g., Jesner, 138 S. Ct.

at 1402 (“The Court’s recent precedents cast doubt on

the authority of courts to extend or create private

causes of action . . . .”). Thus, the Court has generally

refused to “extend judicially created private rights of

action” beyond existing precedent absent a

congressional command to do so. Jesner, 138 S. Ct. at

1402; see, e.g., Ziglar v. Abbasi, 582 U.S. 120, 135

(2017) (“[The Court] has ‘consistently refused to

extend Bivens to any new context or new category of

defendants.’” (citation omitted)); Stoneridge Inv.

Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S.

148, 165 (2008) (“Though it remains the law, the

[implied] private right [of action under Section 10(b)

of the Securities Exchange Act] should not be

extended beyond its present boundaries.”).

The Sixth Circuit’s expansion of the Title IX cause

of action “runs up against the understanding that

[courts] are not to expand upon implied causes of

action absent express congressional direction.” App.

103a (Readler, J., dissenting).

This Court has

recognized a cause of action under Title IX based on

alleged sexual harassment in only two circumstances:

(1) “cases involving a teacher’s sexual harassment of

a student,” Gebser, 524 U.S. at 281 (citing Franklin,

503 U.S. at 74-75); and (2) cases involving a student’s

“sexual harassment [of] another student,” Davis, 526

U.S. at 632. These cases, in other words, all involve

“sexual harassment of students.” Id. at 651.

By its terms, Title IX is limited to “person[s]” who

are, “on the basis of sex,” “excluded from participation

in,” “denied the benefits of,” or “subjected to

discrimination under any [federally funded]

education program or activity.” 20 U.S.C. § 1681(a).

As the Court has recognized, “[t]he terms ‘subjec[t]’

and ‘under’ impose limits” on Title IX’s scope. Davis,

526 U.S. at 646 (alteration in original). “[P]erson”

also has to be read in context. App. 105a (Readler, J.,

dissenting). As relevant here, these textual limits

confirm that “Title IX extends only to those persons

participating in an education program or activity, not

to anyone who has ever stepped foot on school

grounds.” Id. at 107a. In any event, extending the

existing right of action beyond current or prospective

students and employees to “virtually anyone visiting

a university campus”—even a stadium full of 100,000

fans who descend upon campus on game day—is a job

for Congress, not the courts. Id. at 85a, 102a.

The Spending Clause nature of Title IX reinforces

this point. See Gebser, 524 U.S. at 287. “Unlike

ordinary legislation, which ‘imposes congressional

policy’ on regulated parties ‘involuntarily,’ Spending

Clause legislation operates based on consent: ‘in

return for federal funds, the [recipients] agree to

comply with federally imposed conditions.’”

Cummings v. Premier Rehab Keller, P.L.L.C., 142 S.

Ct. 1562, 1570 (2022) (citation omitted). Thus,

“private damages actions are available only where

recipients of federal funding had adequate notice that

they could be liable for the conduct at issue,” Davis,

526 U.S. at 640, such that a court can be “confident

that the recipient ‘exercise[d its] choice knowingly,

cognizant of the consequences of [its] participation’ in

the federal program,” Cummings, 142 S. Ct. at 1570

(alterations in original) (citation omitted).

Nothing in Title IX suggests that, as a condition of

accepting federal funds, schools knowingly consented

to damages claims under Title IX by anyone who

visits campus or has only an indirect or limited

connection to a program or activity offered to

students. And the staleness of these claims only

compounds the notice problem. Indeed, John Doe 47

was abused by Strauss while visiting his aunt, an

Ohio State employee, in 1981, see App. 66a-67a (Guy,

J., dissenting); Snyder-Hill D. Ct. Doc. 123, at ¶ 43

(May 27, 2020)—more than a decade before this Court

first recognized any sort of claim under Title IX for

sexual harassment, see Franklin, 503 U.S. at 70.

Likewise, neither John Doe 47 nor the three other

non-student plaintiffs (see supra at 8) alleges that

they were “den[ied] . . . equal access to an educational

program or activity.”

App. 66a-67a (Guy, J.,

dissenting) (alterations in original) (quoting Davis,

526 U.S. at 652); see id. at 105a-06a (Readler, J.

dissenting). Yet, as the very case invoked by the Sixth

Circuit in extending Title IX to these plaintiffs (App.

41a) explains, Title IX is keyed on “acts of sexual

harassment or assault that undermine [the plaintiff’s]

educational experience.” Doe v. Brown Univ., 896 F.3d

127, 132 (1st Cir. 2018) (emphasis added).

B. This aspect of the majority’s decision will also

have significant implications for educational

institutions in the Sixth Circuit. As Judge Readler

explained in his dissent, because the majority’s

decision lacks any limiting principle, it sets a

blueprint for claims by “virtually anyone who sets foot

on campus”—even “vendors, friends and family who

frequent campus, and every person that descends on

campus each fall on football Saturdays.” App. 85a,

106a-07a. As Judge Readler put it, do the 100,000

fans packed into Ohio Stadium on gameday “go home

with a Title IX claim against the University for being

indifferent to crude spectators”? Id. at 107a. Modern

universities like Ohio State are visited by countless

individuals daily; there is no end to the variations on

this hypothetical that could arise.

The potential disruption created by this sweeping

expansion of Title IX’s scope is only exacerbated by

the majority’s extreme claim-accrual rule. Together,

these rulings arm virtually anyone who has visited

Ohio State over the past 40 years with a potential

Title IX claim today. That shocking result would

revolutionize Title IX’s private right of action in a way

that neither Congress in 1972 nor this Court in

Cannon could have conceived, much less intended.

All of this explains why the dissenters below called

out for this Court’s review, “before more

jurisprudential damage is done.” Id. at 86a.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DAVE YOST

Attorney General

OHIO ATTORNEY

GENERAL’S OFFICE

30 E. Broad Street

17th Floor

Columbus, OH 43215

MICHAEL H. CARPENTER

TIMOTHY R. BRICKER

DAVID J. BARTHEL

CARPENTER LIPPS LLP

280 North High Street

Suite 1300

Columbus, OH 43215

GREGORY G. GARRE

Counsel of Record

CHARLES S. DAMERON

BLAKE E. STAFFORD

LIA R. CATTANEO

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Petitioner

March 14, 2023

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for the Sixth Circuit, Snyder-Hill v. Ohio

State University, Nos. 21-3981 and 213991, 48 F.4th 686 (6th Cir. Sept. 14,

2022) ....................................................................1a

Order of the United States Court of Appeals

for the Sixth Circuit Denying Rehearing

En Banc, Snyder-Hill v. Ohio State

University, Nos. 21-3981 and 21-3991, 54

F.4th 963 (6th Cir. Dec. 14, 2022) ....................69a

Opinion and Order of the United States

District Court for the Southern District

of Ohio, Snyder-Hill v. Ohio State

University, No. 18-cv-00736, 2021 WL

7186148 (S.D. Ohio Sept. 22, 2021) ...............110a

Opinion and Order of the United States

District Court for the Southern District

of Ohio, Moxley v. Ohio State University,

No. 21-cv-3838, 2021 WL 7186269 (S.D.

Ohio Oct. 25, 2021) .........................................113a

Opinion and Order of the United States

District Court for the Southern District

of Ohio, Garrett v. Ohio State University,

561 F. Supp. 3d 747 (S.D. Ohio Sept. 22,

2021) ................................................................115a

20 U.S.C. § 1681 ....................................................140a

20 U.S.C. § 1687 ....................................................145a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 21-3981/3991

STEVE SNYDER-HILL; RONALD MCDANIEL; DAVID

MULVIN; WILLIAM BROWN; KURT HUNTSINGER;

WILLIAM RIEFFER; STEVE HATCH; KELLY REED;

MELVIN ROBINSON; DOUGLAS WELLS; JAMES KHALIL;

JERROLD L. SOLOMON; JOSEPH BECHTEL; MICHAEL

MURPHY; JOHN DAVID FALER; MATT MCCOY; GARY

AVIS; ROBERT SCHRINER; MICHAEL MONTGOMERY;

JOHN DOES 1–22, 25, 27, 29–37, 39–47, 49, 52, 54, 56–

60, 62–64, AND 66–77 (21-3981); TIMOTHY MOXLEY;

RYAN CALLAHAN; JOHN JACKSON, JR.; JAMES

CARROLL; JEFFREY ROHDE; PATRICK MURRAY;

EVERETT ROSS; JOHN DOES 78–95 AND 97–105 (213991),

Plaintiffs-Appellants,

THE OHIO STATE UNIVERSITY,

Defendant-Appellee.

Argued: July 26, 2022

Decided and Filed: September 14, 2022

[48 F.4th 686]

Before: GUY, MOORE, and CLAY, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge.

In his role as university physician and athletic

team doctor at the Ohio State University, Dr. Richard

Strauss allegedly abused hundreds of young men

under the guise of performing medical examinations.

The abuse occurred between 1978 and 1998, but it did

not become public until 2018. After the allegations

became public, survivors of this abuse—including the

plaintiffs in these cases—brought Title IX suits

against Ohio State, alleging that Ohio State was

deliberately indifferent to their heightened risk of

abuse. The district court found that the plaintiffs’

claims were barred by the statute of limitations.

The district court erred. The plaintiffs adequately

allege that they did not know and could not

reasonably have known that Ohio State injured them

until 2018. Thus, at the motion-to-dismiss stage, we

cannot say that their claims accrued before then. We

REVERSE and REMAND for further proceedings

consistent with this opinion.

I. BACKGROUND

A. Factual Allegations1

1. Strauss’s Conduct

Richard Strauss served on the Ohio State faculty

starting in 1978.2 He soon became a team physician.

In that capacity, he “had regular contact with male

student-athletes” in at least seventeen different

At the motion-to-dismiss stage, we “accept all plausible

well-pled factual allegations as true.” Lutz v. Chesapeake

Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013). We

therefore describe the factual allegations as they are laid out in

the complaints.

2 Snyder-Hill R. 123 (Second Am. Compl. (“SAC”) ¶¶ 126–

27) (Page ID #2012); Moxley R. 16 (Am. Compl. ¶¶ 67–68) (Page

ID #217–18).

sports.3 He also served as a physician at Ohio State’s

Student Health Center.4 Strauss served in these

roles until 1996, when Ohio State placed him on

administrative leave, investigated his conduct, and

ultimately declined to renew his appointments with

Student Health Services and terminated his

employment

agreement

with

the

Athletics

Department. It did not publicly provide reasons for

these decisions. Ohio State conducted a hearing but

did not notify students or give them an opportunity to

participate.6

Strauss remained a tenured faculty member.

When he retired in 1998, Ohio State gave him

emeritus status.7 He opened a private men’s clinic

near Ohio State to treat “common genital/ urinary

problems,” advertised the clinic in Ohio State’s

student newspaper, and continued to see and treat

Ohio State students.8 The vice dean for the College of

Snyder-Hill R. 123 (SAC ¶ 131) (Page ID #2012–13);

Moxley R. 16 (Am. Compl. ¶ 72) (Page ID#218).

Snyder-Hill R. 123 (SAC ¶ 132) (Page ID #2013); Moxley

R. 16 (Am. Compl. ¶ 73) (Page ID #218–19).

Snyder-Hill R. 123 (SAC ¶¶ 133–34) (Page ID #2013);

Moxley R. 16 (Am. Compl. ¶¶ 74–75)(Page ID #219).

Snyder-Hill R. 123 (SAC ¶¶ 133) (Page ID #2013);

Moxley R. 16 (Am. Compl. ¶ 74) (Page ID #219).

Snyder-Hill R. 123 (SAC ¶ 134, 252–56) (Page ID #2013,

2033–34); Moxley R. 16 (Am. Compl. ¶¶ 75, 194–98) (Page ID

#219, 240–41).

8 Snyder-Hill R. 123 (SAC ¶¶ 262–63) (Page ID #2034–

35); Moxley R. 16 (Am. Compl. ¶¶ 202–05) (Page ID #241–42).

Medicine told Strauss that “there would be no

problem” with this arrangement.9

In his roles at Ohio State, Strauss regularly

abused male students during medical examinations,

committing at least 1,429 sexual assaults, and 47

rapes.10

He “groped and fondled students’

“performed

unnecessary

rectal

genitalia” ;

examinations and digitally penetrated students’

anuses”12; “pressed his erect penis against students’

bodies”13; “drugged14 and anally raped students”15;

Snyder-Hill R. 123 (SAC ¶ 261) (Page ID #2034); Moxley

R. 16 (Am. Compl. ¶ 203) (Page ID #241).

10 Snyder-Hill R. 123 (SAC ¶¶ 1, 3) (Page ID #1988–89);

Moxley R. 16 (Am. Compl. ¶¶ 1, 3) (Page ID #205).

11 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 309, 345, 374, 405,

435, 468–71, 496–97, 528–30, 554, 651, 669, 706, 749–752, 767–

72, 930–31, 982–84, 1026, 1081–84, 1147) (Page ID #2043, 2050,

2054, 2058, 2061, 2065, 2068, 2071, 2074, 2085, 2087, 2092,

2098, 2100–01, 2121, 2128, 2133, 2139, 2147); Moxley R. 16 (Am.

Compl. ¶¶ 246, 248–50, 253, 268, 271, 298, 336–38, 439) (Page

ID #249–251, 254, 258, 263, 279).

12 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 308–09, 710, 733,

748–52, 770, 1516, 1681, 1890–91, 2061, 2117, 2501) (Page ID

#2042–43, 2092, 2096–98, 2101, 2194, 2218, 2247–48, 2276,

2285, 2339); Moxley R. 16 (Am. Compl. ¶¶ 296–97, 359, 455, 583,

666) (Page ID #258, 266, 281, 300, 313). At least two plaintiffs

allege that Strauss performed this conduct while the plaintiff

was unconscious. See Snyder-Hill R. 123 (SAC ¶ 1122, 1947)

(Page ID #2144, 2256–57).

13 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 311, 1492, 2384,

2523) (Page ID #2043, 2191, 2322–23, 2342); see also id.

¶¶ 1076–78 (Page ID #2139) (Strauss rubbed his testicles

against patient’s thigh).

14 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 937, 1751) (Page ID

#2122, 2227).

15 See, e.g., id. ¶ 1947 (Page ID #2256–57).

“masturbated during or after the exams”16; and

engaged in other sexually abusive behavior. SnyderHill R. 123 (Second Am. Compl. (“SAC”) ¶¶ 135–46)

(Page ID #2013–14); Moxley R. 6 (Am. Compl. ¶¶ 81–

87) (Page ID #220). Each plaintiff alleges that

Strauss abused him between 1979 and 2000; all but

four were Ohio State students during this time.17

An independent investigation commissioned by

Ohio State in 2018 and undertaken by the law firm

Perkins Coie substantiates the plaintiffs’ allegations

of abuse. See Caryn Trombino & Markus Funk,

Perkins Coie LLP, Report of the Independent

Investigation: Sexual Abuse Committed by Dr.

Richard Strauss at The Ohio State University, (May

15, 2019) (hereinafter “Perkins Coie Report”). The

Perkins Coie Report found that Strauss sexually

abused at least 177 male student patients, the

majority of whom were student athletes.18 Perkins

Coie Report at 1, 43.

16 See, e.g., id. ¶¶ 1492, 2395 (Page ID #2191, 2324).

17 Id. ¶¶ 30–122 (Page ID #1996–2011); Moxley R. 16 (Am.

Compl. ¶¶ 30–63) (Page ID #212–17).

18 This number is lower than the number of alleged

instances of sexual abuse in the complaint. The difference is

explained by (1) allegations that Strauss abused some athletes

more than once; and (2) certain limitations of the report, which

noted: “it is impossible for us to determine with any certainty the

total number of students that Strauss sexually abused” but “that

Strauss abused additional students whose accounts are not

captured here.” Perkins Coie Report at 39.

2. Ohio State’s Conduct

The plaintiffs allege that Ohio State knew about,

facilitated, and covered up Strauss’s sexual abuse.19

Many students complained to Ohio State about

Strauss’s abuse,20 and more than 50 members of the

Athletics Department Staff knew about Strauss’s

inappropriate sexual conduct.21 Staff at the Student

Health Center were also aware of and received many

complaints about Strauss’s examinations of male

students.22 For example, during Strauss’s first year

working at Ohio State, a wrestler complained to staff

at the Student Health Center “that Dr. Strauss had

examined his genitals for 20 minutes and appeared to

be trying to get him excited.”23 In addition, Dr.

Murphy, the head team physician had received at

least five written reports about Strauss’s

misconduct.24

The plaintiffs allege that, despite this knowledge,

Ohio State took no action to prevent the abuse.25 At

times, Ohio State falsely told student athletes, as well

19 Snyder-Hill R. 123 (SAC ¶¶ 161–264, 278–79) (Page ID

#2017–35, 2037–38); Moxley R. 16 (Am. Compl. ¶¶ 5–11) (Page

ID #205–07).

20 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 162–64, 168, 172,

198, 209, 217) (Page ID #2017–19, 2025, 2027); Moxley R. 16

(Am. Compl. ¶¶ 11, 13, 103–09) (Page ID #207–08, 224–25).

21 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 167, 172) (Page ID

#2018–19); Moxley R. 16 (Am. Compl. ¶¶ 6, 113) (Page ID #206,

225).

22 See, e.g., Snyder-Hill R. 123 (SAC ¶ 174–176, 183–84,

186) (Page ID #2019–23); Moxley R. 16 (Am. Compl. ¶ 115) (Page

ID #226).

23 Moxley R. 16 (Am. Compl. ¶ 88) (Page ID #220).

24 Id. ¶ 117 (Page ID #226–27).

as some staff members, that it had not received prior

complaints about Strauss or that all complaints were

maintained in an appropriate file.26 At other times,

Ohio State employees had limited conversations with

Strauss about his behavior but failed to follow up,

investigate, report, or meaningfully address the

concerns.27

Despite the complaints of abuse,

Strauss’s supervisors rated Strauss’s performance as

“exceptional” and “excellent” in his evaluations and

had a policy of never mentioning allegations of sexual

misconduct on evaluations.28 All the while, Ohio

State required students to be examined and treated

by Strauss, often explicitly or implicitly making

students feel that they risked their scholarships or

athletic opportunities if they refused.29

The Perkins Coie Report substantiates the

plaintiffs’ claims that Ohio State knew of and

facilitated this abuse. The report found that although

Ohio State received “persisten[t], serious[ ], and

regular[ ]” complaints from students, it took “no

meaningful action . . . to investigate or address the

concerns until January 1996” when it quietly

25 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 164–66, 173, 177,

184, 187, 210, 216–17, 222) (Page ID #2018–23, 2027–28);

Moxley R. 16 (Am. Compl. ¶¶ 118, 163) (Page ID #227, 235).

26 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 162, 221, 230, 319–

25) (Page ID #2017–18, 2028, 2030, 2045–46); Moxley R. 16 (Am.

Compl. ¶¶ 103, 162) (Page ID #224, 234).

27 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 181–83, 188–91,

193) (Page ID #2021, 2023–25).

28 See, e.g., id. ¶¶ 226–29, 231 (Page ID #2029–30); Moxley

R. 16 (Am. Compl. ¶¶ 167–70) (Page ID #236).

29 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 199–201, 352–53,

429–30, 476) (Page ID #2025, 2051, 2061, 2065); Moxley R. 16

(Am. Compl. ¶¶ 141–42, 633, 720) (Page ID #232, 308, 323).

suspended Strauss. Perkins Coie Report at 3; see id.

at 87–162.Even after Ohio State completed its

perfunctory investigation in 1996, at which time it

ultimately suspended and terminated Strauss, it “hid

the reason why it was investigating Strauss and

placing him on leave”; “actively concealed Dr. Strauss’

abuse by not investigating or attempting to identify

the students Dr. Strauss harmed”; “further concealed

Dr. Strauss’ abuse by destroying medical records”;30

and shredded files related to Strauss’s sexual abuse.31

3. What the Plaintiffs Knew

Because the central issue at this stage is when the

plaintiffs’ claims accrued, the most relevant

allegations relate to what the plaintiffs knew or had

reason to know regarding Strauss’s and Ohio State’s

conduct and when they knew or had reason to

know it. These allegations vary among the different

plaintiffs, but the plaintiffs all allege a significant gap

between what they know now and what they knew

before the allegations about Strauss’s conduct became

public.

First, most plaintiffs allege that they did not know

30 Snyder-Hill R. 123 (SAC ¶¶ 244, 247–48) (Page ID

#2032); Moxley R. 16 (Am. Compl. ¶¶ 186, 189–90) (Page ID

#238–39). Ohio State’s policy was to destroy medical records

that were more than seven years old unless there was a reason

to maintain them. Snyder-Hill R. 123 (SAC ¶ 248) (Page ID

#2032). Although complaints of abuse should have given Ohio

State a reason to keep the records, Ohio State nonetheless

destroyed them. Id.

31 Snyder-Hill R. 123 (SAC ¶ 2571) (Page ID #2350);

Moxley R. 16 (Am. Compl. ¶ 918) (Page ID #355).

they were abused until 2018.32 At the time of the

abuse, they were teenagers and young adults and did

not know what was medically appropriate.33 Strauss

gave pretextual and false medical explanations for

the abuse. For example, he stated the abuse was

necessary to perform a hernia check;34 check for

muscle and bone anomalies;35 check for STIs;36

perform a prostate exam;37 perform a rectal exam;38

monitor a patient’s testicles that were different

sizes;39 check a patient’s lymph nodes;40 or treat a

skin infection on a patient’s penis.41

32 See Snyder-Hill R. 123 (SAC ¶¶ 153–60) (Page ID

#2016–17); Moxley R. 16 (Am. Compl. ¶¶ 94–101) (Page ID #222–

23).

33 See Snyder-Hill R. 123 (SAC ¶¶ 153–60) (Page ID

#2016–17); Moxley R. 16 (Am. Compl. ¶¶ 97) (Page ID #222–23).

34 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 554–55, 897, 993,

1368, 1463–64, 1522, 1569, 2215) (Page ID #2074–75, 2117,

2129, 2175, 2187, 2195, 2201, 2298); Moxley R. 16 (Am. Compl.

¶¶ 248–49, 337–38, 374, 488, 616, 666, 832) (Page ID #250–51,

263, 268–69, 285, 305, 313, 341).

35 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 554–55) (Page ID

#2074–75).

36 See, e.g., id. ¶¶ 1300, 1552 (Page ID #2166, 2199); Moxley

R. 16 (Am. Compl. ¶ 537) (Page ID #291–92).

37 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 2211–12) (Page ID

#2298); Moxley R. 16 (Am. Compl. ¶ 583) (Page ID #300).

38 See, e.g., Snyder-Hill R. 123 (SAC ¶ 2061) (Page ID

#2276); Moxley R. 16 (Am. Compl. ¶ 616) (Page ID #305).

39 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 1222, 1224, 2183)

(Page ID #2156, 2294).

40 See, e.g., id. ¶ 1428 (Page ID #2182); Moxley R. 16 (Am.

Compl. ¶ 752) (Page ID #328–29).

41 See, e.g., Moxley R. 16 (Am. Compl. ¶ 279) (Page ID

#255).

10a

Thus, the plaintiffs allege, even students who

felt “very uncomfortable during Dr. Strauss’

examination[s]” often “did not understand or believe

that Dr. Strauss had sexually abused [them].”42 This

was true even of many students who complained

about Strauss’s conduct at the time.43 Additionally,

many students believed that because the conduct was

so widely known and talked about, it could not have

been abuse.44 Similarly, many believed that Ohio

State would not have made Strauss the athletic team

doctor unless his examinations were legitimate, and

thus, that the conduct was medically appropriate

even if it was uncomfortable.45

The plaintiffs allege that Ohio State witnesses,

including physicians, conceded in sworn testimony

that the students could not have known Strauss

abused them because “patients do not know what is a

‘normal exam’ because patients have a ‘lack of

information’ about what is medically appropriate.”46

Ohio State witnesses acknowledged that this is due in

part to the fact that “it is normal for patients to be

naked in front of doctors and for doctors to touch

them, that ‘doctors are in a position of superior

knowledge and authority’ to patients, and that

42 Snyder-Hill R. 123 (SAC ¶ 391) (Page ID #2056); see also

id. ¶¶ 444, 477, 542 (Page ID #2062, 2065, 2072); Moxley R. 16

(Am. Compl. ¶ 256) (Page ID #252).

43 See, e.g., Snyder-Hill R. 123 (SAC ¶ 391) (Page ID

#2056).

44 Id. ¶¶ 451–52 (Page ID #2063).

45 Id. ¶¶ 450, 480–81 (Page ID #2063, 2066).

46 Id. ¶ 156 (Page ID #2016).

11a

patients, including OSU students, trusted their

doctor to do what was medically appropriate.”47

The plaintiffs point to the Perkins Coie Report to

support these allegations. Perkins Coie decided that

“it was essential for the Investigative Team to consult

with suitably qualified medical experts” “to discern

whether, and to what extent, Strauss’ physical

examinations of student-patients exceeded the

boundaries of what was appropriate or medically

necessary” because the abuse “occurred in the context

of a student’s purported medical examination.”

Perkins Coie Report at 12.48 The Perkins Coie Report

also noted that, in general, patients may have

“confusion as to whether sexual abuse, in fact,

occurred.” Perkins Coie Report at 11.49

Although most plaintiffs allege that they did not

know that Strauss’s conduct was abuse, nine allege

that they did. For example, plaintiffs Snyder-Hill and

Reed quickly recognized Strauss’s conduct as abuse

and promptly complained.50 John Doe 9 learned the

conduct was abusive when his primary care physician

told him that Strauss’s actions “were inappropriate

and not medically necessary.”51 John Doe 19 realized

that Strauss had abused him when he learned about

proper physician-patient conduct while attending

medical school.52

47 Id.

48 See Snyder-Hill R. 123 (SAC ¶ 157) (Page ID #2017);

Moxley R. 16 (Am. Compl. ¶ 98) (Page ID #223).

49 See Snyder-Hill R. 123 (SAC ¶ 155) (Page ID #2016).

50 Id. ¶¶ 313–14, 407–12 (Page ID #2043–44, 2058–59).

51 Id. ¶¶ 939–40 (Page ID #2122).

52 Id. ¶ 1318 (Page ID #2168).

12a

Although plaintiffs differ as to whether they knew

at the time that Strauss abused them, all allege that

they could not have known about Ohio State’s

responsibility for the abuse.53 They did not have

reason to know that others had previously complained

to Ohio State about Strauss’s conduct, let alone how

Ohio State had responded to any previous

complaints.54 Two Ohio State employees—Dr. Ted

Grace, who was the director of Ohio State’s Student

Health Services, and Dr. Miller, who was Strauss’s

direct supervisor—stated that they did not know of

“any way” that “any Ohio State student” could have

known that Ohio State knew about Strauss’s abuse

and nonetheless failed to “get rid of” him.55 Further,

each plaintiff alleges that, even if he had investigated,

further inquiry would have been futile because Ohio

State controlled their access to information.56 In

short, although plaintiffs allege that Ohio State

administrators knew of the abuse at the time, the

53 See, e.g., id. ¶¶ 265–69, 272, 329 (Page ID #2035–37,

2047); Moxley R. 16 (Am. Compl. ¶¶ 258, 260, 285, 304, 323)

(Page ID #252, 256–57, 259, 261).

54 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 364, 420, 451, 482,

516, 544, 637) (Page ID #2052, 2060, 2063, 2066, 2070, 2073,

2083); see also id. ¶¶ 320–21, 323 (Page ID #2045–46) (Ohio

State falsely informed complainant that it had not received any

previous complaints about Strauss).

55 Snyder-Hill R. 123 (SAC ¶¶ 265–66) (Page ID #2035);

Moxley R. 16 (Am. Compl. ¶¶ 207–08) (Page ID #242).

56 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 335, 367, 482, 678,

740, 854, 1066) (Page ID #2048, 2053, 2066, 2088, 2096–97,

2112, 2137); Moxley R. 16 (Am. Compl. ¶¶ 324, 350, 366, 388,

405, 426) (Page ID #261, 265, 267, 271, 274, 277); see also

Snyder-Hill R. 123 (SAC ¶¶ 243–48) (Page ID #2031–32) (Ohio

State actively concealed information).

13a

plaintiffs allege that they did not know until 2018 that

Ohio State administrators knew or that they enabled

and perpetuated the abuse.

In addition to the general allegations related to

Ohio State’s conduct—such as hiding what it knew,

falsifying evaluations, and destroying records—some

plaintiffs offer further specific allegations of

concealment.

For example, after Snyder-Hill

demanded a meeting to address Strauss’s conduct,

Grace sent him a letter falsely stating that Ohio State

had never before received a complaint about

It had, in fact, received multiple

Strauss.57

complaints, including one just three days earlier.58

Grace also falsely told Snyder-Hill that all complaints

would be kept in Strauss’s personnel file.59 In reality,

Strauss’s personnel file had no record of Snyder-Hill’s

or any other complaint.60 And, although Grace

agreed to inform Snyder-Hill about any future

complaints, Grace never did, even in 1996 when the

Ohio State investigator determined that Strauss had

been “performing inappropriate genital exams on

male students” “for years.”61

Although the plaintiffs allege that they had no

reason to know that Ohio State knew of Strauss’s

abuse, they allege varying degrees of knowledge about

whether others knew of Strauss’s conduct. Some had

never heard others discuss Strauss’s conduct and did

57 Snyder-Hill R. 123 (SAC ¶¶ 320–21, 323) (Page ID

#2045–46).

58 Id.

59 Id. ¶ 323, 334 (Page ID #2046, 2048).

60 Id. ¶ 327 (Page ID #2047).

61 Id. ¶¶ 319, 328 (Page ID #2045, 2047).

14a

not know that Strauss had behaved similarly toward

Others allege that Strauss’s

other students.62

conduct was common knowledge among student

athletes, who joked about it and discussed it amongst

themselves.63 Some discussed Strauss’s conduct only

with other student athletes and were not aware

whether their coaches knew about this conduct.64

Others allege that they knew that coaches or other

staff were aware of Strauss’s conduct. Tennis coach

John Daly “regularly joked about Dr. Strauss’

examinations of male athletes,” and “threatened

student-athletes that they would have to see Dr.

Strauss, if they did not do what the coach asked.”65

Members of other teams likewise joked and

complained about Strauss’s examinations in front of

coaches and trainers, who treated Strauss’s methods

as “normal.”66

62 See, e.g., id. ¶ 674 (Page ID #2088).

63 See, e.g., id. ¶¶ 170–71, 194, 442, 474, 552, 784, 836, 901,

926, 986–87, 1173, 1483 (Page ID #2019, 2025, 2062, 2065, 2074,

2103, 2110, 2118, 2120–21, 2128, 2150, 2190); Moxley R. 16 (Am.

Compl. ¶¶ 473, 636, 673–74, 719, 736) (Page ID #283, 308, 314,

323, 326).

64 See, e.g., Snyder-Hill R. 123 (SAC ¶ 389) (Page ID

#2056).

65 Id. ¶ 197 (Page ID #2025); see id. ¶¶ 876–77 (Page ID

#2115); Moxley R. 16 (Am. Compl. ¶ 138) (Page ID #231).

66 See, e.g., id. ¶¶ 501–03, 661, 1297 (Page ID #2068, 2086,

2165) (swim team); id. ¶¶ 552, 572–77, 589, 712 (Page ID #2074,

2076–77, 2093) (track and field team); id. ¶ 690, 694–95 (Page

ID #2090) (hockey team); id. ¶ 1005 (Page ID #2130) (fencing

team); id. ¶¶ 1028, 1423 (Page ID #2133, 2181–82) (wrestling

team); id. ¶ 1129 (Page ID #2145) (soccer team); id. ¶¶ 1226–30,

1340–41) (Page ID #2156–57, 2171) (gymnastics team); id.

¶¶ 167, 2581 (Page ID #2018, 2354) (general allegations); see

15a

Although most of Strauss’s abuse took place in

private exam rooms, Strauss abused some athletes in

full view of various adults and student bystanders.

For example, one plaintiff alleges that, in full view of

trainers and bystanders, Strauss instructed a

player—who came to Strauss for a toe infection—to

drop his pants, and then Strauss started groping

the player’s penis and testicles.67 Another plaintiff

alleges that “[o]n occasion” training staff saw Strauss

perform unwarranted “testicular exams” on him that

would last around 15–20 minutes.68 Other plaintiffs

allege that various trainers and staff witnessed

Strauss’s examinations, including those in which he

touched the plaintiffs’ genitals.69

Coaches and

trainers also regularly witnessed Strauss showering

with athletes or sitting in lockers staring at the

athletes as they showered or changed.70

When student athletes complained, coaches

typically dismissed their complaints. For example,

one swimmer alleges that when he told his coach that

Strauss made him uncomfortable, the coach told him

to “[s]hut the fuck up and get in the water.”71 The

same coach told another student “that Dr. Strauss’

also Moxley R. 16 (Am. Compl. ¶¶ 254, 559, 586, 618 (Page ID

#251–52, 295, 300, 3055).

67 Snyder-Hill R. 123 (SAC ¶ 688) (Page ID #2089).

68 Id. ¶ 789 (Page ID #2104).

69 See, e.g., id. ¶¶ 557–58 (Page ID #2075).

70 See, e.g., Moxley R. 16 (Am. Compl. ¶¶ 540–42) (Page ID

#292–93).

71 Snyder-Hill R. 123 (SAC ¶ 1299) (Page ID #2166); see

also Moxley R. 16 (Am. Compl. ¶ 419) (Page ID #276) (trainers

were present during examination in which Strauss repeatedly

stroked patient’s nipples).

16a

examinations were appropriate and there was no

reason to complain.”72 Various coaches “laughed off”

student complaints,73 made excuses,74 or ignored or

brushed aside student complaints.75

The plaintiffs who observed Ohio State’s coaches’

and staff’s widespread acceptance of Strauss’s

conduct allege that their coaches’ normalization of

Strauss’s conduct led them to reasonably believe that

it was not abuse.76 For example, one plaintiff

“stopped questioning the need for the genital

examinations because Dr. Strauss always said they

were necessary, and coaching staff showed no concern

despite the athletes’ frequent comments about the

genital exams.”77

Many likewise allege that the widespread

acceptance of the abuse meant that they had no

reason to know that other athletes had complained to

72 Snyder-Hill R. 123 (SAC ¶ 511) (Page ID #2069).

73 Id. ¶¶ 411, 690, 1227–29, 1753 (Page ID #2058, 2090,

2156–57, 2228); Moxley R. 16 (Am. Compl. ¶¶ 872, 874) (Page ID

#347–48).

74 See, e.g., Snyder-Hill R. 123 (SAC ¶ 501) (Page ID #2068)

(trainer told athlete “That’s just what Dr. Strauss does”); id.

¶ 2085 (Page ID #2280) (trainer told athlete that “some doctors

are just really into the human body”).

75 See, e.g., id. ¶¶ 272, 1894, 1951, 2141, 2281, 2524 (Page

ID #2036–37, 2248, 2257–58, 2288, 2308, 2342); Moxley R. 16

(Am. Compl. ¶¶ 273, 282–83, 579–80, 618, 637, 759) (Page ID

#254–56, 299, 305, 308, 330).

76 See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 695, 716–17, 795–

96, 821–22, 882–83, 1014–15, 1230, 1341–42, 1758, 2090–91)

(Page ID #2090–91, 2093, 2104, 2108, 2115–16, 2132, 2157,

2171–72, 2228, 2281); Moxley R. 16 (Am. Compl. ¶¶ 283, 348,

586–87, 761, 876) (Page ID #256, 264, 300, 330, 348).

77 Snyder-Hill R. 123 (SAC ¶ 1429) (Page ID #2183).

17a

Ohio State about the abuse or that Ohio State had

covered up any abuse or student complaints.78 They

further allege that this widespread acceptance of

Strauss’s conduct led them to believe that there was

no reason to investigate further: their coaches’

reactions “reinforce[d] [their] reasonable belief that

pursuing the matter would not be productive.”79

B. Procedural History

In the years after Strauss’s rampant abuse was

publicly exposed, many survivors filed suit against

Ohio State. This appeal involves two of these

lawsuits: Snyder-Hill v. Ohio State University, No.

2:18-cv-736 (S.D. Ohio), and Moxley v. Ohio State

University, No. 2:21-cv-3838 (S.D. Ohio). The SnyderHill plaintiffs filed their complaint on July 26, 2018.

Snyder-Hill R. 1. The district court designated the

case as related to Garrett v. Ohio State University, No.

2:18-cv-692 (S.D. Ohio), a case that had been filed ten

days earlier. Snyder-Hill R. 3 (Related Case Mem.)

(Page ID #57–58). Ohio State moved to dismiss,

Snyder-Hill R. 19 (Mot. to Dismiss) (Page ID #140–

58), and the district court referred the case to

mediation, Snyder-Hill R. 42 (Order) (Page ID #695).

After mediation was unsuccessful, the Snyder-Hill

plaintiffs filed an amended complaint. Snyder-Hill R.

123 (SAC) (Page ID #1988–2358). Ohio State again

moved to dismiss. Snyder-Hill R. 128 (Mot. to

Dismiss) (Page ID #2377–99).

78 See, e.g., id. ¶¶ 1040–41, 1135–36, 1252–53, 1352–54)

(Page ID #2134–35, 2146, 2159, 2173).

79 Id. ¶¶ 823, 884, 1899 (Page ID #2108–09, 2116, 2249);