Petition for Writ of Certiorari — Hill v. Jennings (No. 07-43)

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. Supreme Court, U.S.

{ 7 FILED

07-43 JUL 09 2007

NO. __OEFICE OF THE CLERK

In the

Supreme Court of the United States

THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL FILL,

Petitioner.

MELISSA JENNINGS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

ROY COOPER

North Carolina Attorney General

Christopher G. Browning, Jr., Solicitor General

Thomas J. Ziko.* Special Deputy Attomey General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

(919) 716-6920

Atiornevs for Petitioner

July 9, 2007 *Counsel of Record

QUESTIONS PRESENTED

1. Whether a university is liable for damages to a student-

athlete in an action for sexual harassment under Title IX of the

Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, for

mere emotional distress that did not have any concrete,

negative effects and did not have the systemic effect of denying

her equal access to an educational program or activity.

2. Whether in an action for sexual harassment under Title

IX of the Education Amendments of 1972, 20 U.S.C.

§§ 1681-1688, a student-athlete can prove that the university

was “deliberately indifferent” to discrimination against her

when the only notice she gave to the university pertained to her

coach’s comments to and interactions with other players who

had not complained.

LIST OF PARTIES TO THE

PROCEEDINGS BELOW

The parties to the proceedings in the court of appeals were

as follows:

Melissa Jennings was the plaintiff-appellant in the court of

appeals.

The University of North Carolina at Chapel Hill (UNC); Anson

Dorrance, individually and as women’s soccer coach at UNC;

William Palladino, individually and as assistant women’s

soccer coach at UNC; Chris Ducar, individually and as

assistant women’s soccer coach at UNC; Bill Prentice,

individually and as athletic trainer at UNC; Michael K.

Hooker, individually and as Chancellor at UNC; Susan

Ehringhaus, individually and as assistant to the Chancellor at

UNC; Richard A. Baddour, individually and as Director of

Athletics for UNC; Beth Miller, individually and as Senior

Associate Director of Athletics at UNC; John Swofford,

individually and as former Director of Athletics for UNC, were

all defendant-appellees in the court of appeals.

The University of North Carolina at Chapel Hill is the party

petitioning for certiorari. The other defendant-appellees in the

court of appeals are not petitioning for certiorari.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...... Seeaneeverveeseees i

LIST OF PARTIES TO THE PROCEEDINGS BELOW .. ii

py Roce bes 8 iy y |. Si rr ae Vv

TS da bys a 7 65 one ES REO e Ree eee ]

PIE FA CRC eed s cass aKa Kae RKO R See I

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

PEA SIEETE WOE CERES GHEE oe hoes ec cewewsvercvias 2

REASONS FOR GRANTING THE PETITION ......... 8

I. THE DECISION BELOW ALLOWS TITLE [IX CASES TO

PROCEED TO TRIAL IN THE ABSENCE OF EVIDENCE

OP Be ks Oia hb a bee ae PON tee 12

A. The Decision Below Greatly Expands

Educational Institutions’ Liability for

Damages in Title IX Cases. .............. 12

The Decision Below Is at Odds with the

Statutory Structure and Purpose of Title

Bs clearer ees Eee oe en 17

The Decision Below Creates a Conflict

among the Ciscuit Courts ........:-cseee- 19

Il. THE DECISION BELOW Is IN CONFLICT WITH THIS

CourRT’s PRIOR HOLDINGS REGARDING A

UNIVERSITY’S DUTIES AND OBLIGATIONS UNDER

BENGE. ob iw od Ce ORK Ok HS ee ES 20

The Fourth Circuit Failed to Adhere to this

Court’s Decision in Gebser .............. 22

The Fourth Circuit Failed to Adhere to this

Court’s Holding in Davis................. 26

iil

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APPENDIX

TABLE OF AUTHORITIES

FEDERAL CASES

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

__US._ , 165 L. Ed. 2d 526 (2006)

Cannon v. Univ. of Chicago,

OE TIE, GPT RII. 5g ovis ccccoe ses

Davis v. Monroe County Bd. of Educ.,

SOGUS. GIP TIO... «0. oe cae coc ccs

Gabrielle M. v. Park Forest-Chicago Heights,

Ill. Sch. Dist. 163, 315 F.3d 817

SSSA 6 See

Gebser v. Lago Vista Indep. Sch. Dist.,

Ue TO oS ae

Harris v. Forklift Sys., 510 U.S. 17 (1993) ....

Hayut v. State Univ. of N.Y.,

Foe ee Fae GROG, BE) cc ceevedeess

Jennings v. Univ. of N.C.,

340 F. Supp. 2d 666 (M.D.N.C. 2004) ....

Jennings v. Univ. of N.C.,

444 F.3d 255 (4" Cir. 2006) ............

Jennings v. Univ. of N.C.,

482 F.3d 686 (4 Cir. 2007) (en banc) ........ passim

Oncale v. Sundowner Offshore Servs.,

Fee Oe FT hi he eG cdiek kc nnsse stones 23, 25

Pennhurst State Sch. & Hosp. v. Halderman,

og RG OS nS er ee 18

FEDERAL STATUTES

See AP EE 3G Whe ws AS nee ee ee l

eis EE aly a's dew be wd ok 0 e's ee ee 13

ee ee ns Oe Os ok hw ck cake on eeneeearns 1,2

po ee Bf er rr ree rr rr Pres Te 1

Gea SU ec oso de oboe een een eens 2

PETITION FOR A WRIT OF CERTIORARI

The University u* North Carolina at Chapel Hill

respectfully petitions for writ of certiorari to review the

judgment of the United States Court of Appeals for the Fourth

Circuit.

OPINIONS BELOW

The en banc opinion of the court of appeals (Pet. App. 1a)

is reported at Jennings v. Univ. of N.C., 482 F.3d 686 (4" Cir.

2007). The panel opinion of the court of appeals (Pet. App.

74a) is reported at Jennings v. Univ. of N.C., 444 F.3d 255 (4"

' Cir. 2006). The district court’s decision granting defendants’

motion for summary judgment (Pet. App. 150a) is reported at

Jennings v. Univ. of N.C., 340 F. Supp. 2d 666 (M.D.N.C.

2004).

JURISDICTION

The Court of Appeals entered its judgment on April 9,

2007. (Pet. App. 1a) The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1). (Pet. App. 175a)

STATUTORY PROVISIONS INVOLVED

This case involves Title LX of the Education Amendments

of 1972, 20 U.S.C. § 1681 et seg. (Pet App. 176a)

STATEMENT OF THE CASE

The women’s soccer program at the University of North

Carolina at Chapel Hill (UNC) is the premier women’s soccer

team in the country. Through the spring of 1998, the UNC

women’s soccer program had won 15 National Championships.

In May 1998, Anson Dorrance, head coach of the women’s

soccer team, cut Melissa Jennings, a student and third string

goalkeeper, for failure to meet the team’s expectations on the

field, in the classroom and as a teammate. In August 1998,

Jennings filed a lawsuit in the United States District Court for

the Southern District of Ilinois in which she claimed, among

other things, that Dorrance intentionally and systematically

subjected Jennings to unwelcome sexual harassment and

created a hostile environment in the women’s soccer program.

Jennings further alleged that complaints about Dorrance’s

conduct were made to University officials, including defendant

Susan Ehringhaus, Assistant to the Chancellor and Senior

University Counsel. Based on those allegations, Jennings

claimed that UNC had violated her rights under Title [X of the

Educational Amendments of 1972 (20 U.S.C. § 1681, et seq.)

and that other defendants had violated her rights under 42

U.S.C. § 1983 and the common law.

On defendants’ motion, the case was transferred from the

Southern District of Illinois to the Middle District of North

Carolina. Following transfer, the district court granted

defendants’ motion to dismiss several, but not all, claims. The

district court denied UNC’s motion to dismiss the Title [X

claim.

The evidence developed during discovery failed to

substantiate Jennings’ allegations that Dorrance intentionally,

systematically and constantly sexually harassed her. Jennings

presented no evidence that Dorrance ever made any sexual

proposals to her, touched her, or even attempted to touch her.

In her deposition, Jennings admitted that during the two years

she was on the team, there were only three incidents when

Dorrance spoke to her about her personal life or was present

when someone else spoke about her personal life.

On one occasion, Jennings’ teammates asked if someone

who had attended a game was her boyfriend. Jennings testified

that Dorrance was present during that conversation, but she did

not remember him saying anything.

On another occasion, prior to a soccer practice, players

were talking about their weekend with their boyfriends, which

included a comment about a “shag fest” and a boy crawling

from the window of one player’s room. Dorrance chimed in

and teased the players who were talking about the incidents.

One of the players then asked, “Well, what about Trim’n

[Jennings’ nickname]?” -- meaning what about Jennings’

relationship with her boyfriend. Dorrance then asked Jennings,

“so Trim’n” or “Yes, what about Trim’n?” “Did you have a

great weekend?” That ts all he said. Jennings testified that she

did not respond to Dorrance’s question.

The third occasion involved Jennings’ performance

evaluation in the fall of 1996. Jennings testified that at the end

oi the soccer season Dorrance met with each player to give a

performance evaluation. That year, Jennings’ freshman season,

the team participated in the NCAA women’s soccer

championship in Santa Clara, California, and all the player

evaluation meetings were held in Dorrance’s hotel room.

During his meeting with Jennings, Dorrance was critical

of her performance, especially her poor academic performance.

At the time, Jennings’ GPA was 1.5 on a 4.0 scale, and she was

in danger of losing her academic eligibility to play soccer.

Jennings testified that, while trying to determine the cause of

her poor academic performance, Dorrance first asked if she

was attending the tutoring sessions. He then asked if she was

happy at school and asked about her social life. Jennings

testified that Dorrance then made a single, crude inquiry about

whether she was sexually active, to wit, “Who are you

f***ing?” Jennings testified that she immediately told

Dorrance, “It was none of his G-- d--- business.” Dorrance did

not continue his inquiry but instead moved on to discuss

Jennings’ athletic performance and soccer statistics.

Jennings testified that during her entire two years on the

women’s soccer team, those are the only three things that

Dorrance did to sexually harass her. Everything else that

Jennings complains of involved Dorrance’s interaction with

other players. Some of those interactions Jennings allegedly

witnessed herself, some she only heard about, and some she did

not learn about until after she hac been cut from the team. No

player involved in those interactions ever complained to the

team captains, the coaches or other University employees or

administrators about Dorrance’s behavior.

Jennings did testify that in the fall of her freshman year,

she arranged a meeting with Susan Ehringhaus, Assistant to the

Chancellor and Senior University Counsel, to discuss issues

other than alleged sexual harassment. Jennings testified that in

response to a general inquiry from Ehringhaus, she told

Ehringhaus that Dorrance was exchanging sexual comments

with other players during practice. Other than Jennings’

testimony about that one meeting, there is no evidence that

anybody said anything to anyone about sexual harassment on

the women’s soccer team before Jennings was cut from the

team. Ehringhaus denied that Jennings ever mentioned sexual

harassment on the women’s soccer team.

Jennings claims that Dorrance’s conduct prevented her

from focusing on her studies and affected her grades. The

evidence, however, shows that the longer Jennings was on the

team, the better she did in school. Starting from a GPA of

1.538 for her fall semester freshman year, Jennings’ GPA rose

every semester until it reached 2.022 when she was cut from

the team. Jennings testified that she believed her athletic

performance had improved and, when she met with Dorrance

in the spring of 1998, she was not expecting to get cut from the

team.

The district court awarded summary judgment to the

defendants because the conduct Jennings alleged was not

severe, pervasive and objectively offensive to the point of

depriving her of educational opportunities. The panel of the

Fourth Circuit Court of Appeals affirmed that decision.

After granting Jennings’ petition for rehearing en banc, the

Fourth Circuit reversed the panel decision. In reaching that

decision, the court relied upon all evidence of alleged sexual

harassment in the record. It did not distinguish between the

events that actually involved Dorrance and Jennings and events

where she merely witnessed or heard about Dorrance’s

interactions with other players. Similarly, the court did not

distinguish between the events of which Jennings was aware

while she was on the team and events which she learned about

in litigation.

The Fourth Circuit found that the University was on notice

that Jennings was being sexually harassed based upon

Jennings’ alleged report to Ehringhaus that Dorrance was

exchanging sexual comments with other players. The Fourth

Circuit further held that when coupled with her “subpar”

performance, Jennings’ allegation that Dorrance’s comments

prevented her from achieving her full academic or athletic

potential was enough to defeat defendant’s motion for

summary judgment. In the Fourth Circuit’s opinion, “{a]

rational jury could view Jennings as having been denied the

full opportunity to achieve her potential as a member of the

UNC women’s soccer team.” 482 F.3d at 707 (Gregory, J.

concurring) (Pet. App. 32a). The Fourth Circuit held that

Jennings’ testimony that she had suffered emotional distress

was sufficient to establish that she had suffered a concrete,

negative effect on her education. '

Judge Gregory, in a concurrence joined by Judge Motz,

noted that this was a close and difficult case. In his opinion,

Jennings’ testimony that her exposure to a sexually harassing

environment made it more difficult for her to develop and

achieve as a student-athlete was enough to defeat the

University’s motion for summary judgment. Judge Gregory

specifically opined that Jennings could establish a violation of

her rights under Title [X if she could prove that her grades rose

less than they would have had she not been subjected to a

sexually hostile environment.

Judge Niemeyer filed a dissent, in which Judge Williams

joined. Judge Niemeyer emphasized that Jennings and the

majority relied on incidents that were irrelevant to whether

Jennings was sexually harassed. Some of the events occurred

' Jennings did not seek any counseling or psychological care

until five and a half years after she filed this lawsuit and then she

only sought an expert opinion to support her case, not medical

treatment.

before Jennings entered UNC; some incidents Jennings never

knew about; and some Jennings learned of only from the

testimony given in this case.

Judge Niemeyer disagreed with the majority that evidence

of Jennings’ exposure to sexual banter between Dorrance and

other players denied her educational benefits. /d. at 716

(Niemeyer, J., dissenting) (Pet. App. 53a). Judge Niemeyer

noted that no court has ever supported a claim for sexual

harassment absent evidence of sexual harassment directed at

the plaintiff. Jd. at 720 (Pet. App. 61a). Judge Niemeyer

emphasized that “Title [X’s purpose is not to eradicate

harassment from the educational environment;” rather, Title IX

is a specific federal statute structured and designed to prevent

recipients of federal financial assistance from using the funds

in a discriminatory manner. /d. at 717 (Pet. App. 56a). “Title

[X protect[s] victims, not witnesses, of harassment.” Jd. at 721

(Pet. App. 63a). Because Title [IX was intended to prevent

discrimination in education programs and activities, “Jennings

must show that she was subjected to harassment — because of

her sex — so objectively severe or pervasive that she was

effectively denied equal access to UNC’s resources and

opportunities.” /d. at 717 (Pet. App. 56a). Judge Niemeyer

criticized the majority opinion for permitting Jennings to

proceed to trial based on her own conclusory allegation that

Dorrance’s conduct negatively impacted her academic

performance and performance on the soccer field. Jd. at 718

(Pet. App. 57a).

REASONS FOR GRANTING THE PETITION

This petition provides the Court with the opportunity to

determine whether a student-athlete can maintain a Title IX

sexual harassment claim when there is no evidence that she

suffered any concrete, systemic, negative effect on her

educational opportunities as a result of the alleged harassment.

In this case, the only evidence of injury was plaintiff's

testimony that the alleged harassment so upset her that she does

not believe she realized her full academic or athletic potential.

Title [X subjects educational institutions to liability for

damages only when, following actual notice that the plaintiff

is being sexually harassed, they are deliberately indifferent to

sexual harassment that is so severe, pervasive, and objectively

offensive that it effectively bars the victim’s access to an

educational opportunity or benefit. Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274 (1998); Davis v. Monroe County Bd.

of Educ., 526 U.S. 629, 650-51 (1999).

In Davis, the Court held that to state a claim for relief for

violation of her rights under Title [X, a plaintiff must show that

“the harassment had a concrete, negative effect on [the

plaintiff's] ability to receive an education,” 526 U.S. at 654,

and that the conduct was “serious enough to have the systemic

effect of denying the victim equal access to an educational

program or activity,” 526 U.S. at 652. Although the plaintiff in

Davis alleged her grades had dropped as she became unable to

concentrate on her studies, id. at 634, the majority emphasized

that “we [do not] contemplate, much less hold, that a mere

‘decline in grades 1s enough to survive’ a motion to dismiss” a

Title [CX claim for sexual harassment, id. at 652.

In his dissent, Justice Kennedy focused oi the discrepancy

between the Court’s described standard for liability and the

lack of allegations to meet that standard. Jd. at 677. Justice

Kennedy complained that the majority had not provided a

workable definition of what a concrete, negative effect of

harassment might be. “For example, the majority establishes

what sounds like a relatively high threshold for liability —

‘denial of equal access’ to education — and, almost in the same

breath, makes clear that alleging a decline in grades is enough

to survive 12(b)(6) and, it follows, to state a winning claim.”

Id. at 677. Justice Kennedy warned that the majority’s

definition of actionable harassment was so insubstantial and so

broad that “untold numbers of lawyers” will easily defeat

schools’ pretrial motions and subject schools to run-away

litigation. Jd.

The Fourth Circuit’s decision is the realization of Justice

Kennedy’s fears. In this case, there is no evidence that the

alleged sexual harassment had any concrete, negative effect on

plaintiff's educational opportunities. Plaintiff cannot even

show a decline in her grades. Nevertheless, the Fourth Circuit

has permitted plaintiff to evade summary judgment simply by

testifying that she was so upset by the alleged sexual

harassment that she lost her focus — which she claims

contributed not to a decline in her performance — but merely to

her failure to achieve what she considered to be her full

potential as a scholar and athlete.

This case provides the Court with the opportunity to set a

clear baseline for determining when sexual harassment has had

a concrete, systemic and negative effect on a plaintiff's access

to educational programs or activities for purposes of proving a

violation of Title [X. Absent further clarification of the

standard for liability, the leaders of thousands of schools,

colleges and universities will not know when they have

exposed their budgets and endowments to the threat of an

uncapped damages award because a student believes that

sexually offensive remarks from a faculty member or coach

prevented the student from improving his or her grade point

average, raising his or her class rank or being Phi Beta Kappa.

This appeal would also allow the Court to resolve an

apparent conflict among the circuits on the proof required to

establish a violation of Title IX rights. The Second and Fourth

Circuits have held that a Title IX claim may proceed to trial

when the student alleges that sexual harassment inhibited her

from participating more fully in classroom discussions or

resulted in her grades not being better. Hayut v. State Univ. of

N.Y., 352 F.3d 733, 750 (2d Cir. 2003) (professor’s sexual

harassment discouraged student “from more active

involvement in his classroom discussions”); Jennings, 482 F.3d

at 700 (Pet. App. 20a) (holding that hostile environment “made

it difficult for [Jennings] to focus on her studies”). In contrast,

the Seventh Circuit has held that mere psychological injury

without a concrete, negative effect is not sufficient to defeat a

school’s motion for summary judgment in a Title [X case.

Gabrielle M. v. Park Forest-Chicago Heights, Ill. Sch. Dist.

163, 315 F.3d 817, 823 (7th Cir. 2003).

In addition, this case provides the Court with the

opportunity to clarify whether an educational institution can be

held liable for deliberate indifference to sexual harassment

when it never received “actual notice” that any student was

being discriminated against on the basis of sex. Here, the only

notice UNC ever had was that Jennings did not like comments

Dorrance was making to other players during practices. Sexual

comments do not constitute sexual harassment in violation of

Title IX unless they are “so severe, pervasive, and objectively

offensive” that they can be said to deprive the victims of access

to the educational opportunities or benefits provided by the

school on the basis of sex. Davis, 526 U.S. at 651. In the

context of collegiate athletics, even women’s collegiate

athletics, Jennings’ description of the coach’s profanity,

cursing, references to women’s bodies, crude teasing and

joking could not have constituted “actual notice” to the

University that its long term and successful women’s soccer

coach was actually, intentionally discriminating against any of

the players on his team on the basis of their sex. This is

particularly true in light of the fact that none of the supposed

targets of the comments had ever complained.

Furthermore, there is no evidence that after Jennings told

the University of her concerns she herself was the target of any

sexual harassment so severe, pervasive or objectively offensive

that it violated her rights under Title IX.

In this case, the Fourth Circuit concluded that UNC could

be held liable to Jennings on an implied cause of action under

Title [IX because UNC did not take any action after Jennings

had told a University official that she did not like the sexual

comments she heard Dorrance make to other players. The

Fourth Circuit reached that decision even though there was no

evidence that Jennings herself was subjected to sexual

harassment, either before or after she met with the University

official, and no evidence that she was ever excluded from or

denied access to any educational program or activity. The

decision exposes the University to liability despite the fact that

it had no actual notice that the coach was discriminating

against any players on the women’s soccer team on the basis of

their sex. In short, the Fourth Circuit would hold the University

liable not for being deliberately indifferent to sexual

harassment but for failing to require its women’s soccer coach

to conduct himself in accordance with the plaintiff's standards

of decorum.

If the Fourth Circuit’s decision remains the law, it will

significantly expand the potential liability of schools, colleges

and universities, both public and private, that accept federal

funding. The Court should grant certiorari to limit educational

institutions’ potential liability to those cases of intentional

sexual discrimination that Congress intended to prohibit.

I. THE DECISION BELOW ALLOWS TITLE LX CASES TO

PROCEED TO TRIAL IN THE ABSENCE OF EVIDENCE OF

INJURY.

A. The Decision Below Greatly Expands Educational

Institutions’ Liability for Damages in Title [X Cases.

In this case, the Fourth Circuit held that a college athlete

may avoid summary judgment on a Title [X sexual harassment

claim despite her inability to present any evidence that the

alleged harassment had a concrete, systemic and negative

effect on her educational opportunities. The only evidence in

this case regarding Jennings’ injury from alleged sexual

harassment was her testimony that she was so upset by

Dorrance’s comments and conduct that she was not able to

reach her full academic or athletic potential. The concrete

evidence in the record, including plaintiff's own testimony,

shows that plaintiff’ s academic performance actually improved

while she was on the soccer team. Nevertheless, the Fourth

Circuit denied UNC’s motion for summary judgment because,

in its opinion, a rational jury could find that Jennings was

denied the full opportunity to achieve her potential as a

member of the UNC women’s soccer team. 482 F.3d at 707

(Pet. App. 33a).

The Fourth Circuit’s decision to subject UNC to suit for

damages on speculation that Jennings’ emotional response to

alleged harassment might have kept her from being an all “A”

student or a soccer star is contrary to the express wording of

Title IX and is at odds with the statutory structure and purpose

of Title IX.

Title IX of the Education Amendments of 1972, 20 U.S.C.

§1681(a) (Pet. App. 176a), provides in pertinent part:

No person in the United States shall, on the basis of

sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under

any education program or activity receiving Federal

financial assistance . . ..

“Congress enacted Title IX in 1972 with two principal

objectives in mind: ‘to avoid the use of federal resources to

support discriminatory practices’ and ‘to provide individual

citizens effective protection against those practices.’” Gebser,

524 U.S. at 286 (quoting Cannon v. Univ. of Chicago, 441 U.S.

677, 704 (1979)). The central purpose of Title [X is not to

compensate the victims of discrimination but to protect

individuals from discriminatory practices carried out by

recipients of federal funds. Gebser, 524 U.S. at 287.

Because Title IX operates by “conditioning an offer of

federal funding on a promise by the recipient not to

discriminate, in what amounts essentially to a contract between

the Government and the recipient of funds,” id. at 286, the

parameters of the judicially created, implied private cause of

action for damages for violations of Title IX cannot be at odds

with the structure and purpose of the statute, id. at 284-85. In

particular, the implied private cause of action cannot subject an

educational institution receiving federal funds to liability for

damages under circumstances that Congress did not envision

and the recipient institution could not have anticipated at the

time it accepted the funding. /d. at 287-88. For example, unlike

Title VII, Title [IX does not permit a plaintiff to pursue a claim

for damages against an educational institution on theories of

vicarious liability. Instead, the Court has held that “a damages

remedy will not lie under Title [X unless an official who at a

minimum has authority to address the alleged discrimination

and to institute corrective measures on the recipient’s behalf

has actual knowledge of discrimination in the recipient’s

programs and fails adequately to respond.” /d. at 290.

In Davis, the Court addressed the standard for determining

when a student has suffered an actionable injury under Title

IX. The Court held that in enacting Title IX, Congress intended

to condition receipt of federal funds on educational institutions’

obligation to protect their students from discriminatory

practices which have a concrete negative impact on the

students’ ability to receive an education. Davis, 526 U.S. at

654. The Court specifically emphasized that “the provision that

the discrimination occur ‘under any education program or

activity’ suggests that the behavior be serious enough to have

the systemic effect of denying the victim equal access to an

educational program or activity.” Jd. at 652.

Particularly important to the issues in this case, the Court

in Davis specifically rejected the idea that mere psychological

distress, even if that distress allegedly resulted in a decline in

grades, ts enough to state a claim for sexual harassment under

Title IX. Jd. Instead, the Court held that, to avoid a motion to

dismiss, a Title [IX plaintiff had to allege she suffered a

concrete, negative effect on her ability to receive an education,

id. at 654, and that the behavior at issue was serious enough to

have the systemic effect of denying the victim equal access to

an educational program or activity, id. at 652.

In Davis, the Court did note that teacher-on-student sexual

harassment is more likely to violate Title IX. Jd. at 653.

However, the Court did not hold or imply that a student who is

an alleged victim of sexual harassment at the hands of a teacher

has a lighter burden of proof. The student still has to prove that

the teacher’s harassment had the concrete, negative effect of

systemically denying the student access to an education

program or activity. Jd.

Justice Kennedy dissented from the decision in Davis. In

his dissent, Justice Kennedy warned that the majority, which

appeared to require a plaintiff to prove a “concrete, negative

effect” on her ability to receive an education, had not provided

a “workable definition” of an actionable claim under Title [X.

Id. at 677 (Kennedy, J., dissenting). Justice Kennedy

specifically criticized the majority for permitting the plaintiff

in Davis to avoid dismissal of her claim simply by alleging that

as a result of sexual harassment her “grades ‘dropped’ and her

‘ability to concentrate on her school work [was] affected.’” /d.

The majority defended its standards for Title IX liability and

rejected Justice Kennedy’s fear that its decision was exposing

educational institutions to boundless liability:

The dissent fails to appreciate these very real

limitations on a funding recipient’s liability under

Title IX. .. . Nor do we contemplate, much less hold,

that a mere “decline in grades is enough to survive” a

motion to dismiss. [526 U.S. at 677 (Kennedy, J.,

dissenting).] The drop-off in LaShonda’s grades

provides necessary evidence of a potential link

between her education and G.F.’s misconduct, but

petitioner’s ability to state a cognizable claim here

depends equally on the alleged persistence and

severity of G.F.’s actions, not to mention the Board’s

alleged knowledge and deliberate indifference. We

trust that the dissent’s characterization of our opinion

will not mislead courts to impose more sweeping

liability than we read Title LX to require.

Id. at 652 (emphasis added).

The Fourth Circuit’s decision in this case represents the

full realization of Justice Kennedy’s fears. The Fourth Circuit

has permitted plaintiff to avoid summary judgment without any

evidence of concrete injury and certainly no evidence that she

was systemically denied access to educational programs or

activities. Plaintiffs only evidence of injury is her own

unsubstantiated testimony that Dorrance’s interactions with

other players upset her so that she could not focus, and that this

affected her academic and athletic performance. Jennings did

not present evidence that her grades declined. Her academic

transcript shows that her grades improved while she was on the

women’s soccer team. 482 F.3d at 699-700 (Pet. App. 19a).

Furthermore, there is no concrete evidence that Dorrance’s

comments affected Jennings’ athletic performance. Jennings

was always the last string goalkeeper on the UNC women’s

soccer team. During her two seasons on the team, she played

in one game when UNC was winning in a rout. The goal keeper

coaches and Dorrance all testified that Jennings’ athletic

performance was always poor. In the face of this evidence, all

plaintiff could offer was her own conclusory testimony that

Dorrance’s conduct kept her from reaching her full potential as

an athlete. Even then, Jennings testified that she believed her

athletic performance had improved over the two seasons she

was on the UNC team.

If the decisions in Gebser or Davis mean anything, the

Fourth Circuit’s decision in this case cannot be correct. This

case provides the Court with the opportunity to clarify whether

a student may avoid summary judgment on her Title [X claim

merely by providing her own, unsubstantiated testimony that

alleged sexual harassment impaired her ability to reach her full

potential or instead must present evidence that as a result of

sexual harassment she suffered a concrete loss of educational

Opportunities serious enough to have the systemic effect of

denying the victim equal access to an educational program or

activity.

B. The Decision Below Is at Odds with the Statutory

Structure and Purpose of Title [X.

Title [X, like Title VI, is Spending Clause legislation that

creates obligations of a contractual nature between the federal

government and educational institutions that accept federal

funding. Gebser, 524 U.S. at 287-88. Consequently, liability

should be imposed under Title [X only if the recipients of

federal funds are on notice of (1) the type of activity that the

statute prohibits and (2) conduct that constitutes a violation of

these requirements. See id. In order for the recipient to

exercise a voluntary and knowing choice to accept the

obligations Congress envisioned, Congress must set out the

conditions for acceptance of the federal funding

“unambiguously.” Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy, US. __ , 165 L. Ed. 2d 526, 533 (2006) (quoting

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17

(1981)). States cannot knowingly and voluntarily accept

conditions and obligations of which they are “unaware” or are

“unable to ascertain.” 165 L. Ed. 2d at 534.

In Davis, this Court held that recipients of federal funding

were not liable for damages under Title [IX for mere

psychological injuries. 526 U.S. at 652. After this assurance

that they are liable only for concrete injunes, it no doubt came

as a surprise to all the public schools, colleges and universities

in the Fourth Circuit that, by accepting federal funding, they

have exposed themselves to unlimited liability for damages

when a student athlete claims that she was so upset by a

coach’s sexual comments to other players that she believes it

kept her from reaching her full academic or athletic potential.

In this respect, the Fourth Circuit’s decision is totally divorced

from the contractual principles that control the scope of

implied private causes of action under Title [X. The Fourth

Circuit’s decision thus is at odds with the statutory structure

and purpose of Title IX.

The Court should accept the petition in order to restore the

rights of all public schools, colleges and universities to fair

notice of their obligations under Title [X.

C. The Decision Below Creates a Conflict among the

Circuit Courts.

The Fourth Circuit is not alone in its error. The Second

Circuit Court of Appeals has also held that a student may

recover damages for a mere psychological injury.

In Hayut, the Second Circuit held that a student who had

been the target of sexually harassing comments by a faculty

member had stated a claim under Title IX. The Second Circuit

held that Title [X required the plaintiff to prove the faculty

member’s conduct created an educational environment

sufficiently hostile as to deprive her of access to educational

opportunities or benefits. /d. at 750. However, when reviewing

the evidence that the plaintiff had been deprived of access to

educational opportunities or benefits, the Second Circuit held

that the student could avoid summary judgment on her Title [IX

claim simply by testifying, among other things, that the faculty

member’s conduct “discouraged [plaintiff] from more active

involvement in his classroom discussions” or “simply created

a disparately hostile educational environment relative to her

peers.” Id. After Davis, it should have been clear that these

intangible, psychological injuries are not concrete, negative

effects on the plaintiff’ s education that can be said to be serious

enough to have the systemic effect of denying the victim equal

access to an educational program or activity as required to state

a Title IX claim. The decision in Hayut thus suffers from the

same error that marks the Fourth Circuit’s decision in this case.

The Seventh Circuit Court of Appeals, however, correctly

applied the Davis holding. In Gabrielle M. v. Park

Forest-Chicago Heights, Ill. Sch. Dist. 163,315 F.3d 817 (7th

Cir. 2003), the Seventh Circuit required the plaintiff to

demonstrate that she suffered a concrete, negative effect on her

education before she could go forward on her Title [IX claim.

The Seventh Circuit held that simply being diagnosed with a

psychological problem without evidence of falling grades or

increased absenteeism was insufficient to deny defendant’s

motion for summary judgment on her Title [IX claim. /d. at 823.

This case will provide the Court with the opportunity to

resolve the apparent conflict between the Seventh Circuit’s

decision that Davis requires a Title [X plaintiff to prove that

the alleged harassment had a concrete, systemic and negative

effect on her education and the Fourth and Second Circuits’

willingness to expose educational institutions to damages

merely because a student testified that her emotional distress

prevented her from achieving her full academic or athletic

potential.

Il. THE DECISION BELOW IS IN CONFLICT WITH THIS

CouRT’S PRIOR HOLDINGS REGARDING A UNIVERSITY’S

DUTIES AND OBLIGATIONS UNDER TITLE IX.

In Gebser and Davis, this Court rejected the use of theories

of vicarious liability to impute Title [X liability to educational

institutions for sexual misconduct. Instead, the Court explicitly

held that educational institutions are liable for alleged sexual

harassment only when the institution “‘itself intentionally acted

in clear violation of Title [IX by remaining deliberately

indifferent to acts of teacher-student harassment of which it

had actual knowledge.” Davis, 526 U.S. at 642 (citing Gebser,

524 U.S. at 290).

The only evidence that the University had any notice of

sexual harassment on the women’s soccer team before Jennings

was cut from the team was Jennings’ testimony regarding her

meeting with Ehringhaus, the Chancellor’s assistant and legal

counsel. Jennings testified that she requested the meeting to

speak to Ehringhaus about two concerns. First, she was

concemed that Dorrance had not told her teammates that she

had missed a game because she had been in the hospital. Her

second concern was that Dorrance was encouraging her to

attend parties where her teammates were drinking.

After Jennings had covered those issues, Ehringhaus

inquired about the atmosphere on the team and what was going

on. In response, Jennings testified she told Ehringhaus that

there was a “sexually hostile atmosphere at soccer practices.”

Jennings testified that she told Ehringhaus there was a

“humiliating, uncomfortable environment with sexual

comments being made.” Those comments included crude

inquiries about who was having sex with whom and who a

player’s current sexual partner was.

Jennings did not tell Ehringhaus that Dorrance was

directing any sexual comments to her. In fact, at the time

Jennings met with Ehringhaus, Dorrance had never made a

comment to her of a sexual nature. Jennings described her own

relationship with Dorrance at that time as “more comfortable,”

“nice,” and “friendly [in] nature.” Furthermore, Jennings had

not arranged the meeting in order to make a sexual harassment

complaint nor did she consider her conversation with

Ehringhaus to be a sexual harassment complaint. Jennings

testified she believed her conversation with Ehringhaus was in

confidence and its subject would not leave the room.

Other than Jennings’ testimony about the 1996 meeting

with Ehringhaus, there is no evidence that prior to May 1998

she or any teammate ever complained that Dorrance was

sexually harassing anyone. Only after Dorrance cut Jennings

from the team did Jennings’ parents complain that Dorrance

had sexually harassed Jennings.

The Fourth Circuit held that Jennings’ comments to

Ehringhaus were sufficient actual notice of sexual harassment

to hold the University accountable for injuries suffered as a

result of the University’s deliberate indifference to Dorrance’s

sexual harassment. Because the University did not have actual

notice that Jennings was being subjected to sexual harassment

and Jennings herself did not suffer any sexual harassment as a

result of the University’s deliberate indifference to her

“complaint,” the Fourth Circuit’s decision is in conflict with

both Gebser and Davis.

A. The Fourth Circuit Failed to Adhere to this Court’s

Decision in Gebser.

In Gebser, this Court hela “we will not hold a school

district liable in damages under Title [IX for a teacher’s sexual

harassment of a student absent actual notice and deliberate

indifference.” 524 U.S. at 292-93. In reaching that decision, the

Court distinguished Title [X from Title VII and rejected

arguments that Title [IX permitted plaintiffs to recover damages

on theories of vicarious liability such as respondeat superior.

Id. at 286-87.

Jennings’ conversation with Ehringhaus in the fall of 1996

did not give the University actual notice that Dorrance was

sexually harassing Jennings, or anyone else, such that the

University could be held liable for being deliberately

indifferent to violations of Title [IX on the women’s soccer

team.

First, Jennings herself did not intend her conversation with

Ehringhaus to constitute notice that Dorrance was sexually

harassing anyone. Jennings stated that she understood that the

conversation was in confidence and the substance would not go

beyond Ehringhaus’ office.

Second, this case involves coaches’ conduct in college

athletics, not faculty discussions in the classroom. As this

Court has observed, the context for any sexual comment is

critical — a coach is not guilty of severe or pervasive sexual

harassment if he smacks a professional football player on the

buttocks as the player runs onto the field “even if the same

behavior would reasonably be experienced as abusive by the

coach’s secretary . . . back at the office.” Oncale v. Sundowner

Offshore Servs., 523 U.S. 75, 81 (1998). Anyone who watches

college athletics would not be surprised to learn that some

coaches use profanity, curse and humiliate players. In this case,

Jennings’ concerns about the sexually hostile atmosphere on

the soccer team were based on a variety of Dorrance’s

comments to players which were profane, crude and

humiliating but not truly sexual. For example, Jennings thought

that Dorrance humiliated and degraded teammates when they

made mistakes. Jennings complained that Dorrance would

criticize one player by saying she was so smart in class “but

she can’t f**king pull off a f**king pass.” She testified that

Dorrance would call players “f**king stupid.” While Jennings

may have been offended by Dorrance’s comments, in the

context of practices on college athletic fields, Jennings’

description of these kinds of comments would not have given

Ehringhaus actual notice that Jennings or any other player on

the women’s soccer team was being discriminated against on

the basis of her sex.

Third, Jennings admitted that she did not tell Ehringhaus

that Dorrance was making any of the comments to her.

Jennings told Ehringhaus that Dorrance would make crude

inquiries to players about who they were having sex with and

who a player’s current sexual partner was. However, Jennings

had to admit that Dorrance never addressed any of those

comments to her. The record also shows that the players would

occasionally discuss their sex lives when Dorrance was

present, and Jennings admitted there were players who found

Dorrance’s attention flattering. The record contains testimony

from players that they did not find Dorrance’s joking and

teasing about their personal lives to be offensive. Absent

evidence that Dorrance had ever made a sexual comment to

Jennings, there was no way for Ehringhaus to determine

whether the comments were subjectively unwelcomed or were

part of joking or teasing among the players and Dorrance.

In the context of a major college athletic team, where

players spend more time with coaches and teammates than

anyone else, it is not alarming to learn that coaches and players

discuss their personal lives and joke and tease each other about

relationships. Although it might not be the best practice for a

coach to tease or joke with players about their sexual activities,

knowledge that a coach 1s engaging in such behavior does not

constitute knowledge of sexual harassment.

The final deficiency in Jennings’ “actual notice” of sexual

harassment is the complete absence of any evidence that

anything Dorrance said to his players was intended to violate

their rights under Title [X and discriminate against them on the

basis of their sex. When Jennings spoke to Ehringhaus in the

fall of 1996, Dorrance had been coach of the most successful

women’s college soccer team for 26 years. During that entire

time, none of Dorrance’s players had ever complained about

sexual harassment on the team. As noted above, playing on a

major college athletic team is different from going to a history

or biology class. The relationship between a coach and his

players is different from that between a faculty member and a

student. Even though Jennings testified she told Ehringhaus she

was concerned about the sexually hostile environment, there is

no evidence in the record that she gave Ehringhaus any reason

to believe Dorrance was doing anything because he intended to

discriminate against his players because of their sex.

Title [IX prohibits discrimination on the “basis of sex.”

This Court has not defined when offensive conduct is “on the

basis of sex.” However, the Court has stated that harassment

between men and women is not automatically discrimination

even when the words used have sexual content or connotations.

The Court has said that the critical issue is whether members

of one sex are treated differently from members of the other

sex. Oncale, 523 U.S. at 80.

As Judge Niemeyer notes in his dissent, there is no

evidence either that Dorrance treated the women on his team

any different from the way he would have treated men or that

male college athletes are not subjected to profanity, comments

about their bodies or inquiries about their sex lives. Judge

Niemeyer concluded that Jennings’ claim amounts to nothing

more than a complaint about the vulgarity of the pervasive

locker room-style talk by teammates and their coach.

Most importantly, there is no evidence that, in her

conversation with Ehringhaus, Jennings gave her any reason to

believe that Dorrance was discriminating against his players on

his championship, all female, women’s soccer team on the

basis of their sex. In light of the fact that Jennings was talking

about Dorrance’s conduct during soccer practice, the fact that

it was an all-female team, the fact that she could not say that

Dorrance had made any offensive comments to her and the fact

that there had been no previous complaints about the long term

coach’s conduct, there was no evidence that Ehringhaus had

“actual notice” that Dorrance was discriminating against

anyone on the women’s soccer team on the basis of her sex.

In sum, rather than follow this Court’s holding in Gebser

and require proof the University had actual notice that Jennings

was being sexually harassed, the Fourth Circuit permitted

Jennings to avoid summary judgment by presenting evidence

that she told Ehringhaus about Dorrance’s comments to other

players which Jennings found offensive and humiliating . That

conversation simply does not satisfy Jennings’ obligation to

prove the University had actual notice of sexual harassment

such that it can be held liable under the standards this Court

established in Gebser.

B. The Fourth Circuit Failed to Adhere to this Court’s

Holding in Davis

In Gebser, the Court held an educational institution is

liable only when its response to actual notice of sexual

harassment amounts to deliberate indifference to

discrimination. 524 U.S. at 290. In such case, the institution’s

liability is premised on the official decision not to prevent

further violations which result in injury to the plaintiff. Jd.

Even if Jennings’ confidential conversation with

Ehringhaus qualified as actual notice that Dorrance was

discriminating against other players on the women’s soccer

team, the Fourth Circuit failed to follow Davis when it

permitted Jennings to go forward with her claim with no

evidence that the University’s failure to act on that notice

subjected her to a violation of her rights under Title [X.

Plaintiff's case is notable for the fact that nothing

happened to her while she was a member of the women’s

soccer team. As stated above, during the two years Jennings

played on the women’s soccer team, Dorrance only made two

comments to her that were at all related to sex. No other event

relied upon by the Fourth Circuit involved Jennings.

A review of the en banc decision reveals that the majority,

the concurring judges and the dissenters all note that the

majority decision depends upon evidence of events that

Jennings did not personally experience or even know about

prior to the lawsuit. 482 F.3d at 692 n.1; id. at 703 (Gregory, J.,

concurring); id. 708 n.1 (Niemeyer, J., dissenting) (Pet. App.

5a; 26a; 38a). As Judge Niemeyer notes in his dissent, the

majority’s decision that plaintiff was sexually harassed

“rel{ies] on completely irrelevant incidents that occurred even

before she entered UNC as a freshman; that she never knew

about; and that she learned only from the testimony given in

this case.” 482 F.3d at 708 (Pet. App. 38a).

All that happened to Jennings after her conversation with

Ehringhaus is that she continued to fully participate without

incident in all the activities of the women’s soccer program.

The two comments that Dorrance made to her during her two

years on the team do not constitute severe or pervasive sexual

harassment actionable under Title IX.

Were Jennings an employee, her mere immersion in an

environment which she reasonably deemed to be sexually

harassing would be sufficient to prevail on a sexual harassment

claim under Title VIL. In Harris v. Forklift Sys., 510 U.S. 17,

21-22 (1993), this Court specifically held that Title VI permits

a plaintiff to recover damages from working in a

discriminatorily hostile or abusive environment even if there

were no concrete psychological harm as long as the

environment would reasonably be perceived, and is perceived,

as hostile or abusive.

The decision in Harris, however, stands in stark contrast

to the Court’s holding in Davis that a mere psychological

injury, even if allegedly reflected in a decline in grades, is not

the kind of concrete, systematic, negative effect on educational.

opportunities necessary to state a claim for sexual harassment

under Title IX. 526 U.S. at 652. Even if the University were

found to have been deliberately indifferent to Dorrance’s

conduct after Jennings’ conversation with Ehringhaus in the

fall of 1996, Jennings has no evidence that following that

conversation she suffered from sexual harassment so severe,

pervasive, and objectively offensive that it effectively bars her

access to an educational opportunity or benefit. Jd. at 633.

In this case, the University has never denied that it was

aware of its obligation under Title [X to protect plaintiff from

intentional discrimination serious enough to have the systemic

effect of denying her equal access to an educational program or

activity. What the University asserts is it had no actual notice

that Dorrance was intentionally discriminating against

Jennings, or indeed any other player on the UNC women’s

soccer team, on the basis of her sex.

In Gebser, this Court explicitly stated that the language

and structure of Title [X itself mandates that no institution can

be held liable in damages unless it makes the official decision

not to take action to remedy a known discrimination on the

basis of sex and a plaintiff suffers a subsequent violation as a

result of the institution’s deliberate indifference to its early

knowledge. In this case, Jennings simply did not present

sufficient evidence to create an issue of fact as to whether she

gave UNC notice of an actual violation of Title [X or as to

whether, following that actual notice, the University’s

deliberate indifference resulted in Dorrance sexually harassing

and discriminating against her on the basis of her sex in

violation of Title IX.

The unavoidable result of the Fourth Circuit’s decision

will be to extend educational institutions’ liability under Title

IX far beyond their clear obligation to protect students from

discrimination on the basis of sex. The decision exposes

universities to damages simply because they did not protect a

student from profanity and crude sexual jokes.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

ROY COOPER

Attorney General

Christopher G. Browning, Jr.

Solicitor General

Thomas J. Ziko*

Special Deputy Attorney General

July 9, 2007 * Counsel of Record

APPENDIX

APPENDIX CONTENTS

Published Opinion of the United States Court of Appeals

for the Fourth Circuit - En Banc,

I os oe ix ssp ties bh oud owes obs la

Published Opinion of the United States Court of Appeals

for the Fourth Circuit - Three Judge Panel,

RPO FEE BU y AUNO ecb ev KS As bab osbererederes 76a

Published Opinion of the United States District Court

for the Middle District of North Carolina, Greensboro

Division,

SUSU GIOROEE 27, DOO co vcctcccccecvsreesecess 155a

42 U.S.C. § 2000e-2(a(1) (2007) 2... ccc cece eee 178a

DEE Sade Ce hy 7 rr ee re 179a

20 U.S.C. § 1681 (2007) (Excerpts) ............... 180a

MELISSA JENNINGS, Plaintiff-Appellant, and DEBBLE

KELLER, Plaintiff,

Vv.

UNIVERSITY OF NORTH CAROLINA, at Chapel Hill;

ANSON DORRANCE, individually and as women's

soccer coach at UNC; WILLIAM PALLADINO,

individually and as assistant women's soccer coach at

UNC; CHRIS DUCAR, individually and as assistant

women's soccer coach at UNC; BILL PRENTICE,

individually and as athletic trainer at UNC; MICHAEL

K. HOOKER, individually and as Chancellor at UNC;

SUSAN EHRINGHAUS, individually and as assistant to

the Chancellor at UNC; RICHARD A. BADDOUR,

individually and as Director of Athletics for UNC; BETH

MILLER, individually and as Senior Associate Director

of Athletics at UNC; JOHN SWOFFORD, individually

and as former Director of Athletics for UNC; ALL

DEFENDANTS, Defendants-Appellees.

No. 04-2447

UNITED STATES COURT OF

APPEALS FOR THE FOURTH

CIRCUIT

482 F.3d 686

October 25, 2006, Argued

April 9, 2007, Decided

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

OPINION

MICHAEL, Circuit Judge:

Melissa Jennings, a former student and soccer player at the

University of North Carolina at Chapel Hill (UNC or the

University), claims that her coach, Anson Dorrance,

persistently and openly pried into and discussed the sex lives

of his players and made sexually charged comments, thereby

creating a hostile environment in the women's soccer program.

Jennings sued UNC, Dorrance, Susan Ehringhaus (Assistant to

the Chancellor and legal counsel to UNC), and several other

individuals associated with the University, alleging violations

of Title [IX of the Educational Amendments of 1972 (20 U.S.C.

§ 1681 et seqg.), 42 U.S.C. § 1983, and the common law. The

district court awarded summary judgment to the defendants.

After considering Jennings's appeal en banc, we vacate the

summary judgment on her Title [IX claim, her § 1983 claim

against Dorrance for sexual harassment, and her § 1983 claim

against Ehringhaus for sexual harassment based on supervisory

liability. The summary judgment on the remaining claims and

minor procedural rulings are affirmed.

Because Jennings was the non-movant in the summary

judgment proceedings, we recite the facts, with reasonable

inferences drawn, in her favor. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202

(1986). UNC has the country's most successful women's

soccer program at the college level. The UNC team, with

Dorrance as head coach, has won the most national

championships in the history of the sport. In light of this

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

record, young women soccer players with exceptional talent

covet the opportunity to play on Dorrance's team. Dorrance

personally recruited Jennings while she was in high school, and

she joined the UNC team at the start of her freshman year in

August 1996. Jennings was one of four goalkeepers until

Dorrance cut her from the team in May 1998, at the end of her

sophomore year. Jennings was seventeen when she started

playing for Dorrance, and he was forty-five.

Once Jennings became a member of the UNC team, she

was distressed to learn that Dorrance engaged in sexually

charged talk in team settings. Dorrance bombarded players

with crude questions and comments about their sexual

activities and made comments about players’ bodies that

portrayed them as sexual objects. In addition, Dorrance

expressed (once within earshot of Jennings) his sexual fantasies

about certain players, and he made, in plain view, inappropriate

advances to another. This behavior on Dorrance's part

occurred on a regular basis, particularly during team warm-up

time at the beginning of practice. The sex-focused talk that

Dorrance initiated or encouraged occurred at other times as

well, or, as one player put it, "anytime the team was together,"

whether "on a plane, in acar, or on a bus, in a hotel, at practice,

out of town, at events." J.A. 1066. Dorrance subjected

Jennings or her teammates to sexually charged inquiries and

comments in the following particulars.

In front of the entire team, Dorrance asked one player

nearly every day "who [her] fuck of the minute is, fuck of the

hour is, fuck of the week [is]," whether there was a "guy [she]

ha{dn't}] fucked yet,” or whether she "got the guys’ names as

they came to the door or .. . just took a number." J.A. 1237-38,

1261-62. He [*692] asked a second player if she was "going

Jennings, 482 F.3d 686 (4° Cir. 2007), CONT’D...

to have sex with the entire lacrosse team," and advised a third,

"[Y]ou just have to keep your knees together . . . you can't

make it so easy for them." J.A. 1127. Dorrance frequently

focused on a fourth player's sex life with questions such as

whether she was going to have a "shag fest" when her

boyfriend visited and whether she was "going to fuck him and

leave him." J.A. 1238, 1248. The coach "direct[ed] inquir[ies]"

to a fifth player about the size of her boyfriend's genitalia. J.A.

1452.

During practice Dorrance regularly commented on certain

players’ bodies, referring to their "nice legs," "nice rack[s],”

breasts "bouncing," "asses in spandex," and "top heav[iness]."

J.A. 393, 1073, 1229, 1236. Dorrance also called a player

"Chuck" (her name was Charlotte) because he believed that she

was a lesbian. J.A. 1228. He inquired pointedly in her

presence about her sexual orientation, asking "[D]Joes she not

like the guys?" J.A. 1283.

Dorrance disclosed his sexual fantasies about several

players. He told one player, Debbie Keller, that he would "die

to be a fly on the wall" the first time her roommate, another

team member, had sex. J.A. 1068. Dorrance admitted to

Keller the reason for his fascination about how her roommate

might react during sex: he believed the young woman "was a

very sexual person by nature,” yet she was a virgin who was

"fighting her inner self” because she was "so religious" (a born-

again Christian). J.A. 1070. Another incident in this category

occurred during a water break at practice, when Jennings

overheard Dorrance tell a trainer that he fantasized about

having "an Asian threesome" (group sex) with his Asian

players. J.A. 1284-85.

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

Dorrance did not limit himself to inappropriate speech. He

showed overt affection -- affection of the sort that was not

welcomed -- for one player, Keller, in front of the entire team.

He paid inordinate attention to Keller, frequently brushing her

forehead, hugging her, rubbing her back, whispering in her ear,

dangling a hand in front of her chest, or touching her stomach.

Dorrance took other undue liberties with respect to Keller. For

example, during one weight-lifting session when the players

were lightly clad, Dorrance called Keller over to him and

walked her outside "towards the stadium, putting his arms

around her." J.A. 1432. Also, one evening Dorrance

telephoned for Keller at home, and one of her roommates (not

a soccer player) told him that Keller was out with her

boyfriend. Dorrance retorted, "What is she doing, out having

sex all over Franklin Street?" J.A. 1073. Dorrance told Keller

that he "couldn't hide his affection for [her]" and said that "in

a lifetime you should be as intimate with as many people as

you can." J.A. 1011.

Jennings listened as Dorrance focused on the sex life of

one player after another. ' [*693] Jennings sought desperately

' Jennings herself heard most of the comments recounted above

that Dorrance made in front of the team. See J.A. 1229, 1236-38,

1248, 1261-62, 1283. The statements that Dorrance asked a

particular player whether she was "going to have sex with the entire

lacrosse team," J.A. 1127, and that he advised another player "to

keep [her] knees together," id. come from Debbie Keller's

deposition, as the dissent notes, see post at 30 n.1. Nevertheless,

Jennings's account of what was occurring is virtually the same. See

e.g., J.A. 1238 (Jennings testifying that Dorrance asked a player,

"How many guys in the [lacrosse] team did [you] fuck?"). Amy

Steelman, who played with Jennings, reported hearing, in a team

(continued...)

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

to avoid Dorrance's questions and ridicule about her personal

life. She therefore tried to "stay out of [his] radar” by not

participating in the discussions. J.A. 1242. She was targeted

nevertheless. During a fall tournament in California at the end

of Jennings's freshman season, Dorrance held one-on-one

meetings with players in his hotel room to assess their

performance for the season. Dorrance told Jennings that she

was in danger of losing her eligibility to play soccer if her

grades did not improve. In the midst of this discussion,

Dorrance asked Jennings, "Who are you fucking?” J.A. 1330.

She replied that it was "[n]one of his God damn business" what

she did off field. J.A. 1325. As Jennings described the scene,

"I was 17 when he asked me that in a dark hotel room, knee-to-

knee, bed not made, sitting at one of those tiny tables." J.A.

1230. She felt acutely uncomfortable.

Jennings again found herself the target of Dorrance's

sexual inquiries in a warm-up session during her sophomore

year. Some of the players and Dorrance were discussing one

player's weekend, called a "shag fest" by Dorrance, which

' (...continued)

setting, Dorrance's question to a player about the size of her

boyfriend's genitalia. Jennings did not testify about that incident, but

it is nevertheless indicative of Dorrance's pattern of asking abusive

questions to a number of different players. With respect to Keller,

Jennings heard her say that “she was uncomfortable and didn't like

the touching, the affection -- the over-affection she was receiving"

from Dorrance. J.A. 1291. Jennings witnessed some of Dorrance's

displays of affection toward Keller, observing him "putting his arms

around her.” J.A. 1432-33. Finally, although Dorrance made the "fly

on the wall” comment to Keller before Jennings joined the team,

Jennings learned about it because players were still discussing it after

she arrived. J.A. 1237.

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

ended with a young man crawling out of her window.

Attention turned to Jennings, who had spent the same weekend

with her boyfriend at another school. One player asked, using

Jennings's nickname, "[{W]ell, what about Trim'n?", J.A. 1246,

and Dorrance immediately "chimed in," saying "[Y]Jes, what

about Trim'n?" J.A. 1252. The coach wanted to know whether

Jennings had "the same good weekend" as the player whose

weekend he had just described as a shag fest. J.A. 1248.

Dorrance thus encouraged the interrogation about personal

sexual activity to "slide over" to Jennings for several minutes.

J.A. 1249, 1254-55. She felt humiliated and refused to

respond.

Jennings felt "uncomfortable, filthy and humiliated" by

Dorrance's persistent focus on sex and the sexual activities of

his players. J.A. 1242. Dorrance's questions and comments

moved from girl to girl to girl, putting Jennings in constant fear

that she would be his target at some point, as she was.

Jennings could not escape the anxiety that she felt and

witnessed in others. She saw two players who were

specifically targeted by Dorrance react with tears and facial

expressions that portrayed feelings of disgust or unhappiness.

The player Dorrance called "Chuck" was offended by his open

focus on her sexual orientation. J.A. 1282-83. Amy Steelman,

a player who was not specifically targeted, was "very

uncomfortable with [the] sexually charged environment" that

Dorrance had "created and encouraged." J.A. 1452. The

environment "was so damaging that it affected [Steelman's}

emotional well-being, and [she] would frequently come home

crying" from practice. /d. Keller's intense discomfort at

Dorrance's constant touching and affection was plainly evident

from her body language and facial expression. Keller

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT'D...

confirmed that Dorrance's touching and caressing "made [her]

skin crawl” and made her "fe[el] dirty." J.A. 1145.

During the fall of her freshman year Jennings notified

UNC about the hostile sexual environment that Dorrance had

created within the women's soccer program. She lodged a

complaint in a meeting with Susan Ehringhaus, legal counsel

to the [*694] University and Assistant to the Chancellor.

Jennings "gave [Ehringhaus] a [complete] run-down" about

Dorrance's persistence in talking about players' sex lives when

the team was assembled for practice or other activities. J.A.

1343. She reported her feelings of humiliation and discomfort.

Ehringhaus dismissed these concerns and suggested that

Jennings simply “work it out" with Dorrance. J.A. 1341.

Jennings's complaint thus remained unaddressed by the UNC

administration.

Jennings stayed on the team until she was cut by Dorrance

during exams at the end of her sophomore year. He cited

inadequate fitness as the reason. Over the next several days,

Jennings's parents submitted several complaints to the

Chancellor's office about Dorrance's regular involvement in

discussions about the sexual activities of his players.

Thereafter, the Director of Athletics, Richard Baddour,

conducted an administrative review pursuant to UNC's sexual

harassment policy. Dorrance admitted that he participated in

group discussions with players about their sex lives, but

claimed that his comments were only "of a jesting or teasing

nature." J.A. 1531. The review ended with Athletic Director

Baddour sending a letter of apology to Jennings's father and a

brief, mild letter of reprimand to Dorrance. Baddour wrote to

Mr. Jennings on June 9, 1998, apologizing for Dorrance's

"inappropriate. . . involvement in [sexual] discussions" with

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

his team members. J.A. 1531. Dorrance indicated his own

apology by counter-signing the letter. One day later, Baddour

wrote to Dorrance declaring it "inappropriate for [Dorrance] to

have conversations with members of [the] team (individually

or in any size group) regarding their sexual activity." J.A. 1533.

In August 1998, at the start of Jennings's junior year, she

and Keller brought this action against UNC and several

individuals associated with the University, including Dorrance

and Ehringhaus, asserting (among others) claims under Title [X

and § 1983. After the lawsuit was filed, Jennings was

threatened and harassed to the extent that UNC officials

warned her that they could not guarantee her safety on campus.

At UNC's urging, she spent her senior year at another school

and was then awarded a UNC degree. Keller settled her claims

and took a dismissal with prejudice. Jennings's case proceeded

to the entry of summary judgment in favor of the defendants.

She appealed and a divided panel of this court affirmed the

judgment. Jennings v. Univ. of N.C., at Chapel Hill, 444 F.3d

255 (4th Cir. 2006). We vacated the panel decision and

reheard the case en banc. Our review of the district court's

grant of summary judgment is de novo. Hill v. Lockheed

Martin Logistics Memt., Inc., 354 F.3d 277, 283 (4th Cir. 2004)

(en banc).

IL.

Jennings claims that UNC discriminated against her in

violation of Title [X by allowing Dorrance, the women's soccer

coach, to subject her to severe and pervasive sexual harassment

in the women's soccer program. Title [IX provides that "[n]o

person. . . shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

discrimination under any education program or activity

receiving Federal financial assistance." 20 U.S.C. § 1681(a).

Discrimination under Title [X includes coach-on-student sexual

harassment that creates a hostile environment in a school sports

program. See Franklin v. Gwinnett County Pub. Sch., 503

U.S. 60, 75, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992) (stating

that teacher's sexual harassment of student is covered by Title

IX). A private right of action against the institution is implied

under Title IX, Cannon v. Univ. of Chicago, 441 U.S. 677,

709, 99 S. Ct. 1946, [*695] 60 L. Ed. 2d 560 (1979), and

money damages are available as a remedy, Franklin, 503 U.S.

at 76.

To establish a Title IX claim on the basis of sexual

harassment, a plaintiff must show that (1) she was a student at

an educational institution receiving federal funds, (2) she was

subjected to harassment based on her sex, (3) the harassment

was sufficiently severe or pervasive to create a hostile (or

abusive) environment in an educational program or activity,

and (4) there is a basis for imputing liability to the institution.

See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (Ist

Cir. 2002). We look to case law interpreting Title VII of the

Civil Rights Act of 1964 for guidance in evaluating a claim

brought under Title IX. See, e.g., Davis v. Monroe County Bd.

of Educ., 526 U.S. 629, 651, 119 S. Ct. 1661, 143 L. Ed. 2d

839 (1999); Franklin, 503 U.S. at 75.

Jennings can establish the first element of her Title [X

claim without dispute: she was a student at UNC, an institution

receiving federal funds. On the second element of her claim,

Jennings must proffer facts showing that Dorrance subjected

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Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

her to harassment (verbal in this case) based on her sex. See 20

U.S.C. § 1681(a). Sexual harassment occurs when the victim

is subjected to sex-specific language that is aimed to humiliate,

ridicule, or intimidate. See Meritor Savings Bank, FSB v.

Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 91 L. Ed. 2d 49

(1986); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331-32

(4th Cir. 2003). A coach's sexually charged comments in a

team setting, even if not directed specifically to the plaintiff,

are relevant to determining whether the plaintiff was subjected

to sex-based harassment. See Spriggs v. Diamond Auto Glass,

242 F.3d 179, 184 (4th Cir. 2001) (considering, in Title VI

case, hostile comments concerning African Americans in

general as well as similar comments directed specifically

toward plaintiff).

UNC argues that Dorrance's sex-focused comments were

"of a joking and teasing nature" that did not amount to sexual

harassment. Appellees' Br. at 22; see Faragher v. City of Boca

Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662

(1998) (noting that "simple teasing [and] offhand comments"

do not amount to sexual harassment) (internal quotation marks

and citation omitted). The facts, when viewed in the light most

favorable to Jennings, show that Dorrance's persistent, sex-

oriented discussions, both in team settings and in private, were

degrading and humiliating to his players because they were

women. His conduct went far beyond simple teasing and

qualified as sexual harassment. See Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 81-82, 118 S. Ct. 998, 140

L. Ed. 2d 201 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17,

21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993); Ocheltree, 335

F.3d at 332.

lla

Jennings, 482 F.3d 686 (4 Cir. 2007), CONT’D...

Dorrance, in front of the entire team, frequently singled

out individual players to find out whether, with whom, and

how often they were having sex. He put the questions crudely

and bluntly, asking, for example, "[Who is your] fuck of the

week[?]}", J.A. 1237, "[Are you] going to fuck [your boyfriend]

and leave him[?]", J.A. 1248, and "How many guys in the

{lacrosse} team did [you] fuck?", J.A. 1238. As Jennings

expected, Dorrance ultimately asked her (albeit in private) a

similar question, "Who are you fucking?" J.A. 1330. Dorrance

even asked one player about the size of her boyfriend's

genitalia and suggested to another that she "just had to keep

[her] knees together." J.A. 1127. Dorrance fixated on one

player's large breasts, pronouncing that they made her [*696]

top-heavy and gave her poor balance. These sorts of questions

and comments, which frequently carried the strong suggestion

of promiscuity, provoked in several players acute feelings of

humiliation and degradation that were directly linked to their

gender. The nature of Dorrance's language, in other words,

establishes that he was targeting the young women because of

their sex. See Ocheltree, 335 F.3d at 332. Finally, Dorrance's

reckless comments about his sexual fantasies -- to a trainer that

he would like to have group sex with his Asian players and to

Debbie Keller that he would like to be a fly on the wall the first

time one player had sex -- assist in demonstrating that his

pronounced interest in discussing his players’ sex lives

transcended simple teasing or joking. In short, Jennings

proffers sufficient facts for a jury to find that Dorrance

subjected her to sexual harassment.

We next consider whether Jennings proffers facts to permit

a finding that Dorrance's sex-based harassment was sufficiently

12a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

severe or pervasive to create a hostile or abusive environment

in the women's soccer program. Harassment reaches the

sufficiently severe or pervasive level when it creates "an

environment that a reasonable person would find hostile or

abusive" and that the victim herself "subjectively perceive[s]

. . . to be abusive.” Harris, 510 U.S. at 21. Whether gender-

oriented harassment amounts to actionable (severe or

pervasive) discrimination "depends on a constellation of

surrounding circumstances, expectations, and relationships."

Davis, 526 U.S. at 651 (quoting Oncale, 523 U.S. at 82). All

the circumstances are examined, including the positions and

ages of the harasser and victim, whether the harassment was

frequent, severe, humiliating, or physically threatening, and

whether it effectively deprived the victim of educational

opportunities or benefits. See Davis, 526 U.S. at 650-51;

Harris, 510 U.S. at 23. Evidence of a general atmosphere of

hostility toward those of the plaintiff's gender is considered in

the examination of all the circumstances. See Harris, 510 U.S.

at 19 (considering harassment directed at both plaintiff and her

female co-workers); see also Spriggs, 242 F.3d at 184 (stating

that, "We are, after all, concerned with the ‘environment of . . .

hostility, and whatever the contours of one's environment, they

surely may exceed the individual dynamic between the

complainant and [her harasser]."). These standards for judging

hostility ensure that Title IX does not become a "general

civility code." See Oncale, 523 U.S. at 80. "[S]imple teasing,

offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminat[ion]." Faragher, 524

U.S. at 788 (internal quotation marks omitted). "Common

sense, and an appropriate sensitivity to social context, will

enable courts and juries" to identify objectively hostile or

abusive conduct. Oncale, 523 U.S. at 81-82. Here, a jury

could reasonably find that Dorrance's persistent sexual

l3a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

harassment was sufficiently degrading to young women to

create a hostile or abusive environment.

Dorrance was not just any college coach. He was and still

is the most successful women's soccer coach in U.S. college

history, and he has coached the national team. Dorrance thus

had tremendous power and influence over a player's

opportunity for achievement in the soccer world, both at UNC

and beyond. As Jennings put it, "[glirls would cut off their

right arm to be [at UNC]" and play for Dorrance. J.A. 1227.

Dorrance encouraged his players to confide in him about all

aspects of their personal lives, including the details of their

[*697] sexual activities. He professed to them that he wanted

to be a father figure. In reality, Dorrance abused his power as

coach to ask his players questions a father would not ask; he

pried into and talked openly about his players’ sex lives in a

way that was disrespectful and degrading. The disparity in

power between Dorrance and his players trapped players into

responding to his questions and enduring the environment. See

Crandall v. N.Y. College of Osteopathic Med., 87 F. Supp. 2d

304, 319(S.D.N.Y. 2000) (denying summary judgment in part

because “unequal power relationship" between harasser and

victim could support a jury finding of a sexually hostile

environment). As the coach, Dorrance controlled everything:

team membership, position, playing time, and scholarship

eligibility. Even Debbie Keller, the team captain and a star

player, was acutely mindful of Dorrance's enormous power and

influence, and she took care not to provoke him. Keller was

troubled by Dorrance's persistent focus on sex. "[A]ll [of his]

comments about his affection" for her, together with the

inappropriate touching, "made [her] skin crawl" and made her

"fe[el] dirty." J.A. 1145. Dorrance's conduct put constant

pressure on Keller because she "didn't want to tick him off to

l4a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

a point. . . where he would take it out on [her] by not playing

{her}." J.A. 1120. Jennings similarly described the pressure on

players to submit to Dorrance's excessive intrusion into their

sex lives: "{[H]ow do you say anything [to stop him?]. . . You

are stuck between a rock and a hard place.” J.A. 1290.

Any age disparity between the harasser and his victim is

also relevant to gauging whether there was a hostile or abusive

sexual environment. Davis, 526 U.S. at 651. Here, Dorrance

was a forty-five-year-old man probing into and commenting

about the sexual activities of young women, some of whom,

like Jennings, were as young as seventeen. Indeed, Jennings

felt the extra pressure of age difference when Dorrance called

her to his California hotel room to assess her performance as a

freshman player. Jennings describes the scene: "I was 17 when

he asked me ["Who are you fucking?’] in a dark hotel room,

knee-to-knee, bed not made, sitting at one of those tiny tables."

J.A. 1230.

Jennings had good reason to fear that she too would be

targeted by Dorrancc, for he had subjected her to a general

environment of sexual harassment. She had witnessed his

degrading and persistent focus on the sex lives of other players.

She observed Dorrance's sex-based humiliation of several of

her teammates, and she heard his demeaning comments.

Dorrance openly accused at least three players of being

promiscuous, asking them degrading questions such as, "Is

there a guy you haven't fucked yet?". J.A. 1261-62. Dorrance

turned news about visits by boyfriends into speculation about

rampant sex. Thus, he asked one player whether she was going

to have a "shag fest” when her boyfriend visited, and whether

she was "going to fuck him and leave him." J.A. 1248.

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

No aspect of his players’ sex lives appeared off limits for

Dorrance. He asked one player about the size of her

boyfriend's genitalia. He mocked a lesbian player by calling her

"Chuck" and asking in front of the team why "she [did] not like

the guys.” J.A. 1283. He expressed his fantasies to a trainer

about wanting to have group sex with his Asian players (this

Jennings overheard) and to Keller about his voyeuristic interest

in watching the first time one player, whom Dorrance believed

was a Virgin with repressed sexual desire, had intercourse.

These two private incidents together with overt displays of

affection toward Keller and his graphic comments about the

"nice rack[s]" or "nice legs" of certain players, J.A. 1229, 1236,

[*698] indicate that Dorrance viewed at least some of his

players as sexual objects.

Dorrance's sex-based verbal abuse permeated team

settings. It is described by players as occurring frequently,

often during team warm-up time, on a typical Monday

afternoon (the first practice date after the weekend), or any

time the team was together, whether at home or traveling.

According to Jennings, two players in particular were targeted

with humiliating comments or questions about their sex lives

almost every day or every other day.

Dorrance's persistent talk about his players’ sex lives

caused Jennings to live in constant fear that he would at some

point direct his "filthy comments" at her, as he shifted his focus

from player to player. J.A. 1243. Jennings tried to stay off of

Dorrance's "radar" when he was on the topic of sex, J.A. 1242,

but she was nevertheless targeted in the team setting. Thus, in

a team warm-up session during Jennings's sophomore year,

Dorrance asked whether Jennings had had "the same good

weekend” with her boyfriend as a player whose weekend he

l6a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

had just described as a "shag fest." J.A. 1248. Jennings was

humiliated by this question and did not respond. A jury could

reasonably find that Dorrance's two incidents (the hotel room

encounter being the first) of direct harassment of Jennings were

more abusive in light of the general, sexually charged

environment. In other words, the incidents were not isolated

events, but were part of an abusive pattern that instilled fear

and dread.

The sexually charged atmosphere perpetuated by Dorrance

left other players besides Jennings with feelings of humiliation

and discomfort. Keller was repulsed by Dorrance's

inappropriate touching, and she regarded it as "kind of sick"

when he told her he "want[ed] to watch [her} friend have sex."

J.A. 1069. Amy Steelman "was shocked by the pervasive and

frequent [sexual] discussions" that Dorrance "frequently

provoked" and "always encouraged;" she felt “very

uncomfortable with his sexually charged environment," and she

"would frequently [go] home crying" as a result. J.A. 1452.

Both Jennings and Steelman observed that Dorrance's

comments visibly upset other players as well. One, who was

constantly portrayed by Dorrance as sexually promiscuous, was

reduced to tears as a result of his accusations. Still another got

an upset or disgusted look on her face after Dorrance focused

on her breasts (her "rack," as he put it) and called her top

heavy. J.A. 1270-71. A lesbian player, whose sexual

orientation was highlighted by Dorrance, was noticeably

bothered by this attention. Evidence that other players shared

Jennings's humiliation and discomfort assists in showing that

she was objectively reasonable in finding the environment

hostile and abusive. Cf Hayut v. State Univ. of N.Y., 352 F.3d

733, 747 (2d Cir. 2003) (characterizing reactions of plaintiff's

peers to conduct directed at plaintiff as “significant to the

17a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

mandated objective analysis" of whether conduct was

sufficiently severe to be actionable under Title [X).

In sum, Jennings has proffered sufficient facts for a jury to

find that Dorrance's degrading and humiliating conduct was

sufficiently severe or pervasive to create a sexually hostile

environment. This conclusion takes into account the informal,

sometimes jocular, college sports team atmosphere that fosters

familiarity and close relationships between coaches and

players. A male coach might use sexual slang in front of his

women players, and the players might do the same in front of

the coach. Title [X is not a civility code for the male coach

who coaches women, and it is not meant to punish such a coach

for off-color language that is not aimed to degrade or

intimidate. What happened in [*699] this case, if Jennings's

version of the facts is believed, is that Dorrance took advantage

of the informal team setting to cross the line and engage in real

sexual harassment that created a hostile or abusive

environment.

A Title [X plaintiff completes her hostile environment

showing at the summary judgment stage if, based on her

proffered evidence, the sexual harassment "can be said to

deprive [her] of access to . . . educational opportunities or

benefits." Davis, 526 U.S. at 650 (emphasis added). Davis

explains that a sexual harassment victim "can be said" to have

been deprived of access to educational opportunities or benefits

in several circumstances, including when the harassment (1)

results in the physical exclusion of the victim from an

educational program or activity; (2) "so undermines and

detracts from the victim['s] educational experience" as to

"effectively den[y her] equal access to an institution's resources

and opportunities"; or (3) has "a concrete, negative effect on

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Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

[the victim's] ability" to participate in an educational program

or activity. Jd. at 650-51, 654.* These alternative ways of

showing deprivation or harm are rooted in the statute.

Specifically, Title IX states that a covered institution cannot,

on the basis of sex, (1) "exclude[] [a person] from participation

in,” (2) "den[y] [a person] the benefits of," or (3) subject[] [a

person] to discrimination under any education program or

activity." 20 U.S.C. § 1681(a). Davis hews to the statute in

pointing out that sexual harassment reaches the level of

actionable discrimination when it has "a concrete, negative

effect on [the victim's] ability" to participate in a program or

activity. See Davis, 526 U.S. at 654. Thus, in relying on

Davis's "concrete, negative effect" language in the discussion

that follows, we have neither gutted that case's deprivation

standard nor contravened the text of the statute, as the dissent

suggests. See post at 45. In all events, the burden of showing

a concrete, negative effect is sufficiently rigorous. It is, in

simple terms, an effect that is concrete (or real), negative, and

substantial.

2 Davis's deprivation standard was formulated in the context of

student-on-student harassment. The Supreme Court thus recognized

“the practical realities [faced by a school in] responding to student

behavior," noting that "children may regularly interact in a manner

that would be unacceptable among adults." Davis, 526 U.S. at 651,

653. The Court expressly acknowledged that "(t]he relationship

between the harasser and the victim necessarily affects the extent to

which the misconduct can be said to breach Title IX's guarantee...

and to have a systemic effect on a program or activity." Jd. at 653.

Student-on-student "harassment, in particular, is less likely to satisfy

these requirements than is teacher-student harassment" or coach-

student harassment. /d.

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Jennings, 482 F.3d 686 (4° Cir. 2007), CONT'D...

Jennings has met the burden here with evidence showing

that Dorrance's severe and pervasive sexual harassment

concretely and negatively affected her ability to participate in

the soccer program. She testified that the hostile atmosphere

created by Dorrance made her feel humiliated, anxious, and

uncomfortable; these effects, in turn, had a negative impact on

her participation and performance in soccer and on her

academic performance. Jennings's testimony is supported by

a psychiatrist's opinion that Dorrance's destructive practice of

verbal sexual abuse caused her to suffer severe emotional

distress.

The dissent suggests that the slight improvements in

Jennings's grades, her belief that she was improving as a

player, and her surprise and disappointment at being cut do not

depict a player who has been effectively "denied the

educational opportunity of playing on the team." Post at 52.

This evidence does not prevent Jennings from establishing that

she has a [*700] triable issue on the last part of the hostile

environment element of her Title [X claim. If anything, it

shows how hard Jennings was trying, and what she believed

she was achieving, in spite of the hostile environment. When

Dorrance cut Jennings from the team in the middle of

exams in May 1998, her cumulative GPA was 1.964, below

passing. When she finished exams, and the grades were

recorded, her GPA was 2.022, barely above passing. This

subpar academic performance gives substance to Jennings's

testimony that her GPA was so low because the hostile soccer

environment made it difficult for her to focus on her studies.

Likewise, Jennings's acknowledgment that she was

disappointed at being cut does not, at the summary judgment

stage, defeat her evidence that she was harmed by the hostile

20a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

environment, both emotionally and in her performance as a

player. Jennings was understandably disappointed because she

had lost the opportunity to play on the country’s premier

women's college soccer team. Her disappointment, however,

does not detract from the fact that she had to endure sexual

harassment in order to play. A jury could reasonably find that

the harassment interfered substantially with Jennings's ability

to participate in the soccer program, notwithstanding her desire

to stay on the team. At practice, for example, Jennings was in

constant fear that Dorrance would direct his questions about

sexual activities to her. This prompted her to concentrate on

"stay[ing] out of [Dorrance's] radar" when he was on the

subject of sex. J.A. 1242. This surely had a negative effect on

her ability to concentrate on soccer. Moreover, the general,

sex-charged environment that Dorrance perpetuated caused

Jennings to feel humiliated, anxious, and uncomfortable. A

jury could reasonably agree with her that the burden of these

feelings had a "negative[] impact[]" on her "performance on

the soccer field." J.A. 1585. In sum, a jury could find that the

total impact of Dorrance's severe and pervasive harassment,

including the severe emotional distress it caused Jennings to

suffer, had a concrete, negative effect on her ability to

participate in the soccer program.

Finally, Jennings must provide a basis for imputing

liability to UNC for Dorrance's conduct. An institution can be

held liable for a Title [X violation only if "an official who. .

. has authority to address the alleged discrimination and to

institute corrective measures. . . has actual knowledge of

discrimination in the [institution's] programs and _ fails

adequately to respond" or displays "deliberate indifference" to

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Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

discrimination. Gebser v. Lago Vista Indep. Sch. Dist., 524

U.S. 274, 290, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998).

Jennings's facts show that in the fall of 1996 Jennings met

witb Susan Ehringhaus, Assistant to the Chancellor and counsel

to the University. Ehringhaus was UNC's highest ranking

lawyer and an official responsible for fielding sexual

harassment complaints. Jennings informed Ehringhaus that

Dorrance had created an abusive environment in the women's

soccer program. Ehringhaus was given vivid details of

Dorrance's sexual comments about his players when the team

was together. Jennings also reported that the situation was

causing her intense feelings of discomfort and humiliation.

Ehringhaus dismissed this complaint by telling Jennings that

Dorrance was a "great guy" and that she should work out her

problems directly with him. J.A. 1341-42. Ehringhaus took no

action on the complaint, and Dorrance's harassment continued.

These facts are sufficient to establish that Jennings gave

Ehringhaus, and by extension UNC, actual notice of the hostile

environment created [*701] by Dorrance. This notice and the

University's failure to take any action to remedy the situation

would allow a rational jury to find deliberate indifference to

ongoing discrimination.

** *

For the foregoing reasons, Jennings has presented

sufficient evidence to raise triable questions of fact on all

disputed elements of her Title [IX claim against UNC, and the

district court erred in granting the University's motion for

summary judgment.

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

Ii.

Jennings asserts § 1983 claims for sexual harassment

against Dorrance, Ehringhaus, and several other individuals

who were employed by UNC. These defendants, according to

Jennings, acted "under color of” state law to deprive her of

"rights, privileges or immunities secured by the Constitution

and laws" of the United States, 42 U.S.C. § 1983, specifically

her Fourteenth Amendment equal protection right to be free

from sexual harassment in an educational setting, see Hayut,

352 F.3d at 743-44. The district court granted summary

judgment to all of the individual defendants on these claims,

but we conclude that Jennings has triable claims against

Dorrance and Ehringhaus.

To survive Dorrance's motion for summary judgment on

her § 1983 sexual harassment claim against him, Jennings must

show that he was a state actor, he harassed her because of sex,

and the harassment was sufficiently severe or pervasive to

interfere unreasonably with her educational activities. See Id.

at 744 (explaining that § 1983 sexual harassment claims based

on a hostile environment theory "are governed by traditional

Title VI. . . jurisprudence"). First, "'[s]tate employment is

generally sufficient to render the defendant a state actor," and

a defendant necessarily "acts under color of state law when he

abuses the position given to him by the State." West v. Atkins,

487 U.S. 42, 49-50, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988)

(quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 936n.18,

102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982)). As we spell out in

detail in part Il, supra, Jennings has proffered evidence (1) that

Dorrance was a state actor, functioning in his capacity as a

coach, when he engaged in sexual harassment and (2) that the

harassment was sufficiently severe or pervasive to intérfere

23a

Jennings, 482 F.3d 686 (4° Cir. 2007), CONT’D...

with her educational activities. The district court therefore

erred in granting summary judgment to Dorrance on the § 1983

claim for sexual harassment.

The district court correctly granted summary judgment on

identical § 1983 claims against three of Dorrance's

subordinates, assistant coaches William Palladino and Chris

Ducar, and the athletic trainer, Bill Prentice. Jennings has not

offered evidence that the three subordinates participated in

sexual harassment.

Jennings's § 1983 claim against Ehringhaus 1s based on the

theory of supervisory liability. See Baynard v. Malone, 268

F.3d 228, 235 (4th Cir. 2001) ("It is well settled that

‘supervisory officials may be held liable in certain

circumstances for the constitutional injuries inflicted by their

subordinates. (quoting Shaw v. Stroud, 13 F.3d 791, 798 (4th

Cir. 1994)). Jennings proffers evidence that Ehringhaus, as an

administrative official with authority to take action against

Dorrance, failed to act and thereby allowed Dorrance's sexual

harassment to continue unchecked. More specifically,

Jennings's evidence would allow a jury to find that Ehringhaus

had actual knowledge of Dorrance's misconduct; that her

response was "so inadequate as to show deliberate indifference

to or tacit authorization of the alleged offensive practices";

{*702] amd that there exists "an affirmative causal link"

between Ehringhaus's inaction and Jennings's constitutional

injury. See Baynard, 268 F.3d at 235 (quoting Shaw, 13 F.3d

at 799). Ebhringhaus is therefore not entitled to summary

judgment on Jennings's § 1983 claim against her for

supervisory liability.

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

Summary judgment on this claim was properly awarded to

the estate of Michael Hooker (former UNC Chancellor) and to

other current or past UNC officials, Richard Baddour, Beth

Miller, and John Swofford. There is no evidence that any of

these officials learned of Dorrance's behavior until Jennings

was cut from the team. Nor does Jennings suggest that these

individuals supported any official policy that enabled the

harassment.

Dorrance and Ehringhaus have preserved the issue of

qualified immunity. In their summary judgment papers the

individual defendants raised qualified immunity as a defense

on the § 1983 claims, but gave the issue secondary attention.

The district court did not address the question. On appeal the

defendants assert qualified immunity as an alternative

argument, again giving the matter limited treatment. These

circumstances prompt us to decline to consider the question,

and thus allow the district court to address it in the first

instance on remand. See Brown v. United States, 851 F.2d 615,

620 (3d Cir. 1988) (declining to exercise the power to consider

qualified immunity in the first instance on appeal).

IV.

The remaining issues raised by Jennings may be dealt

with in short fashion. She argues that the district court erred in

awarding summary judgment to the individual defendants on

her constitutional right to privacy claim brought under § 1983

and to Dorrance on her common law privacy claim. Here, we

affirm the district court because none of the defendants either

required Jennings to disclose personal information or invaded

her records to discover such information. Cf Thorne v. City

of El Segundo, 726 F.2d 459, 468-69 (9th Cir. 1983) (finding

25a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

a constitutional violation where a public job applicant was

required to answer questions about her sexual activity as a

condition of employment); Toomer v. Garrett, 155 N.C. App.

462, 574 S.E.2d 76, 90 (N.C. Ct. App. 2002) (stating that the

privacy invasion tort includes intrusions such as trespassing,

eavesdropping, and peeping into windows). Finally, Jennings

argues that the district court erred in denying two of her

motions: (1) the motion to strike the defendants’ answer on the

ground that their denial of one allegation in the complaint was

inconsistent with Dorrance's deposition testimony, and (2) the

motion to strike, as not properly authenticated, certain exhibits

(team records) accompanying Dorrance's affidavit. After

considering the arguments and materials relating to these

motions, we conclude that the district court did not abuse its

discretion in denying them.

For the reasons stated above, we vacate the district court's

grant of summary judgment on Jennings's Title [IX claim

against UNC, her § 1983 claim against Dorrance for sexual

harassment, and her § 1983 claim against Ehringhaus for

sexual harassment based on supervisory liability. We affirm

the grant of summary judgment on Jennings's remaining claims

against the individual defendants, and we affirm the procedural

rulings. The case is remanded for further proceedings on the

open Title IX and § 1983 ciaims.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

CONCUR

{*703] GREGORY, Circuit Judge, concurring:

This appeal presents the difficult issue of whether an

admittedly inappropriate environment created by a women's

collegiate soccer coach was sufficiently hostile to deprive a

player of the benefits of or participation in the team or her

education. Because I believe that Melissa Jennings has

presented enough evidence, when viewed in the light most

favorable to her, to create a triable issue of fact on her Title IX

claim, I vote to reverse the district court's grant of summary

judgment. I write separately from the thoughtful majority

opinion to express additional thoughts and to respond to

specific arguments raised in the well-written dissent.

I agree with the majority that Anson Dorrance's sexually

explicit, inappropriate, and harassing comments directed to

other players on the team, but overheard by Jennings, are

relevant to determining whether Jennings was subjected to a

hostile environment. ° See ante at 11. Although the majority

I agree with the majority that we may consider comments: (1)

made in Jennings's presence; (2) made outside her presence, but

consistent with her account; and (3) made before her tenure on the

team, but discussed in her presence. Cf. Schwapp v. Town of Avon,

118 F.3d 106, 110-12 (2d Cir. 1997) ("[I]ncidents . . . occurring

before [plaintiff's] tenure may be of limited probative value, but

cannot be ignored on summary judgment."); Rodgers v. Western-

Southern Life Ins. Co., 12 F.3d 668,674 (7th Cir. 1993) (stating that

in reviewing hostile environment claim courts may consider "the

(continued...)

27a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT'D...

of hostile environment cases involve conduct directed at the

plaintiff, unlike the dissent, I do not find evidence that "the

Supreme Court itself has assumed throughout its Title VII and

Title [X cases that only harassment directed and targeted at the

victim was capable of creating a hostile environment." Post at

48. Meritor Savings Bank, FSB v. Vinson held that hostile

environment claims were cognizable under Title VII because

the Act "affords employees the right to work in an

environment free from discriminatory intimidation, ridicule,

and insult." 477 U.S. 57, 65, 106 S. Ct. 2399, 91 L. Ed. 2d 49

(1986) (emphasis added). Meritor cited Rogers v. EEOC, 454

F.2d 234 (Sth Cir. 1971), a case recognizing a hostile

environment as potentially violative of Title VII where the

employer provided discriminatory service to its Hispanic

clientele rather than any direct action against its Hispanic

employees. Further, the Circuit Court opinion in Meritor

explicitly recognized that "[e]ven a woman who was never

herself the object of harassment might have a Title VII claim

if she were forced to work in an atmosphere in which such

harassment was pervasive." Vinson v. Taylor, 243 U.S. App.

D.C. 323, 753 F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant

part, rev'd in part, Meritor, 477 U.S. 57, 106 S. Ct. 2399, 91 L.

Ed. 2d 49.

This view fully accords with this Circuit's decision in

Spriggs v. Diamond Auto Glass, a hostile environment case

where we noted that "[w]e are, after all, concerned with the

‘environment’ of workplace hostility, and whatever the contours

(...continued)

lexicon of obscenity that pervaded the environment of the workplace

both before and after the plaintiff's introduction to its environs"),

28a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

of one's environment, they surely may exceed the individual

dynamic between the complainant and his supervisor." 242

F.3d 179, 184 (4th Cir. 2001) (citing Monteiro v. Tempe Union

High Sch. Dist., 158 F.3d 1022, 1033 (9th Cir. 1998) ("[R]acist

attacks need not be directed at the complainant in order to

create a hostile educational environment."); Vinson, 753 F.2d

at 146; Walker v. Ford Motor Co., 684 F.2d 1355, 1359 n.2

(11th Cir. 1982) ("The fact that many of the epithets were not

directed at [*704] [the plaintiff] is not determinative. The

offensive language often was used in [his] presence after he

had voiced objections to [his employer].")); accord Jackson v.

Quanex Corp., 191 F.3d 647, 660-61 (6th Cir. 1999) (noting

that the court may consider employer conduct directed towards

entire minority group, even in individual Title VII action, and

that such conduct was relevant to question of whether

environment was subjectively and objectively hostile);

Schwapp, 118 F.3d at 111 ("Just as a racial epithet need not be

directed at a plaintiff in order to contribute to a hostile work

environment, the fact that a plaintiff learns second-hand of a

racially derogatory comment or joke by a fellow employee or

supervisor also can impact the work environment.” (citation

omitted)); Edwards v. Wallace Community College, 49 F.3d

1517, 1522 (11th Cir. 1995) ("A plaintiff may have a viable

hostile environment claim even if the racial remarks were not

directed at her.").

As the majority explains, Dorrance's comments may have

singled out individual players at any given practice, but his

actions created a "general environment of sexual harassment,"

ante at 12, where young women under his control were the

subject of humiliating and degrading comments, frequently on

the basis of their alleged promiscuity, see ante at 10. I believe

that a rational jury could find that this environment, which

29a

Jennings, 482 F.3d 686 (4° Cir. 2007), CONT’D...

included the two specific incidents directed toward Jennings,

constituted a pervasive hostile environment. Drawing

inferences in Jennings's favor, a rational jury could find that

Jennings "live[d] in constant fear" that Dorrance would turn his

attention to her. Ante at 13. Indeed, this fear became a reality

during the encounter between Jennings and Dorrance in a hotel

room at the end of her freshman year.

Ii.

I agree with the dissent that Dorrance's hotel-room inquiry

to Jennings was plainly vulgar. The dissent concludes,

however, that the question was "obviously an inquiry about

what was occupying Jennings' time." Post at 50. While I agree

that a coach would inquire as to whether a player was having

personal problems, on this record, taking inferences in

Jennings's favor, I do not think we can conclude as a matter of

law that the question was "not made in an attempt to humiliate,

degrade, and demean." Post at 50.

First, as the majority notes, Dorrance's remarks to his

players "frequently carried the strong suggestion of

promiscuity," ante at 10, often employing the same vulgar

construction he used with Jennings. He asked players who

their "fuck of the week" was, J.A. 1237, if a certain player was

"going to fuck [her boyfriend] and leave him," J.A. 1248, and

another player, "[h]ow many guys in the [lacrosse] team did

[she] fuck," J.A. 1238. Because Jennings had heard those

remarks and practiced her sport in the abusive environment

engendered by them, a rational jury could conclude that

Dorrance's hotel-room inquiry was an attempt to humiliate,

degrade, and demean her on the basis of sex. Furthermore,

Dorrance's question assumed that Jennings was engaged in a

30a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

sexual relationship, unlike a question that would have simply

asked whether she was having "boy" or "relationship"

problems. To Jennings, the assumption that she was engaged

in sexual relations at all offended. See J.A. 1332 ("[Dorrance]

asking me if I'm fucking anybody would be the assumption of

. . . . [don't think anybody would ask that question, unless

you are assuming they already had sexual relationships."). In

all candor, it is a close issue whether Jennings's subjective view

meets the objective standard. In this case, however, I [*705]

believe that a rational jury could find the remark objectively

offensive because of the age difference between Dorrance and

Jennings, Dorrance's position of power and trust, and, most

importantly, the link between Dorrance's knowledge of whether

a player engaged in sexual activity and his harassment

implying that player's promiscuity.

Finally, omitted from both the majority and dissent's

version of the hotel-room conversation, is the fact that

Dorrance, directly after asking Jennings with whom she was

having sex, commented that Jennings should feel comfortable

sharing things with him--even things she could not share with

her father--because he was like a father figure. J.A. 1325.

Given this comment and Jennings's knowledge that Dorrance

showed open affection for a fellow team member (Debbie

Keller), I do not believe that as a matter of law Dorrance's

question was not "focus[ed] on sex" and not posed because of

Jennings's gender. Post at 50; see Wills v. Brown Univ., 184

F.3d 20, 39 (Ist Cir. 1999) (Lipez, J., dissenting) (recounting

facts of case involving college professor telling student "] want

to be close to you like father-daughter," during study sessions

that included professor fondling student).

3la

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

In sum, while the hotel-room remark can be viewed as a

mere poorly phrased inquiry from a coach to a player about

whether relationship problems were interfering with her

athletic performance, such a conclusion would require us to

draw inferences in favor of Dorrance, contrary to our standard

of review. Taking into account the factors discussed above, a

rational jury could conclude that Dorrance's vulgar inquiry was

sexual harassment and “part of an abusive pattern that instilled

fear and dread." Ante at 14.

Il.

As noted by the majority, a Title [X plaintiff must proffer

evidence that the hostile or abusive nature of the environment

"ha[d] ‘a concrete, negative effect on [the victim's] ability’ to

participate in an educational program or activity." Ante at 15-

16 (quoting Davis v. Monroe County Bd. of Educ., 526 U.S.

629, 650-51, 654, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999)).

In this case, the proper inquiry is whether the record contains

enough evidence to allow a rational jury to conclude that the

hostile environment created by Dorrance effectively denied

Jennings the benefits of membership on the women's soccer

team and enrollment at the University of North Carolina at

Chapel Hill ("UNC") by tnaking it much more difficult for her

to develop and achieve as « student-athlete. See Gabrielle M.

v. Park Forest-Chicago Heights, II. Sch. Dist. 163,315 F.3d

817, 828 (7th Cir. 2003) (Rovner, J., concurring in part and

{*706] concurring in the judgment); cf Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 25, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)

(Ginsburg, J., concurring) (""[T]he plaintiff need not prove that

his or her tangible productivity has declined as a result of the

harassment.’ It suffices to prove that a reasonable person

subjected to the discriminatory conduct would find, as the

32a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

plaintiff did, that the harassment so altered working conditions

as to 'ma[k]e it more difficult to do the job.” (alteration in

original) (citation omitted) (quoting Davis v. Monsanto Chem.

Co., 858 F.2d 345, 349 (6th Cir. 1988))).

While I believe that a plaintiff's grades are relevant to the

question of the concrete and negative effect of harassment, an

increase or decrease in grades is not dispositive. See, e.g.,

Gabrielle M., 315 F.3d at 828 (Rovner, J., concurring in part

{*707] and concurring in the judgment) (noting, in case

conceming elementary school student, the fact "that [the

plaintiff's] grades did not suffer is by no means dispositive");

Montgomery v. Ind. Sch. Dist. No. 709, 109 F. Supp. 2d 1081,

1094 (D. Minn. 2000) ("[G]rades are not the sole benefit to be

derived by a student from an educational experience."). In this

case, Jennings's grade point average increased from 1.538 at

the end of her first semester in the Fall of 1996 to a cumulative

average of 2.022 at the end of her sophomore year, when she

was dismissed from the soccer team. J.A. 1449. I disagrec

with the dissent's conclusion that an improvement in grades 1s

evidence of the lack of discriminatory impact. See post at 52.

Discriminatory impact would be shown if Jennings's grades,

though improved, had risen less than they would have had she

not been subjected to a hostile environment. In this case, I

believe that Jennings has proffered sufficient evidence to allow

a jury to conclude that the hostile environment created by

Dorrance affected her academic performance to such an extent

that she was deprived of equal access to the benefits of an

education at UNC.

33a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

During her deposition, Jennings testified that her grade

point average was low during her time on the team because she

was unhappy and uncomfortable due to the hostile environment

created by Dorrance. J.A. 1320. Jennings specifically stated

that she "found it hard to focus by just the constant--by the

environment that was created--it was very hard to focus." J.A.

1321. When pressed, Jennings stated that it was the hostile

environment created by Dorrance that affected her academic

performance, rather than her teammates, her shortcomings as

a soccer player, or her coaches' criticism of her soccer ability.

See J.A. 1322-23 ("Q. Was the fact that other girls on the team

were critical of your performance as a soccer player part of

what was affecting your performance at school? A. No. Like

I said before, it was the drinking comments, the comments

made about all the girls, and their sexual stuff that just made

me uncomfortable."). As noted by the majority, this testimony

is supported by a psychiatnist's opinion that stress caused by the

hostile environment contributed to Jennings's poor academic

performance. J.A. 1583. Despite the subsequent increase in

Jennings's grade point average, a rational jury could find, on

the basis of her testimony and her expert witness, that her poor

academic performance was a result of her lack of focus due to

the hostile environment created by Dorrance or that her grades

would have increased even more but for the hostile

environment. See Hayut v. State Univ. of N.Y., 352 F.3d 733,

748 (2d Cir. 2003) (noting that despite student's steady

academic performance during the period of harassment, her

testimony that she was unable to sleep and did not want to

attend classes and thus could not concentrate on her studies due

to harassment was enough evidence to render the issue one for

the jury); Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d

219, 227-28 (D. Conn. 2006)(finding daily verbal and some

Jennings, 482 F.3d 686 (4” Cir. 2007), CONT’D...

physical harassment undermined educational experience

despite plaintiff's ability to maintain her good grades).

The dissent implies that Dorrance's harassment could not

have interfered with or denied Jennings the full educational

opportunity of playing on the UNC women's soccer team

because she attempted to improve her play and was dismayed

at being cut from the team. See Post at 52. In essence, the

dissent concludes that because Jennings did her best to avoid

Dorrance and his abuse, but still made the most of her time on

the team and as a student at UNC, she has forfeited her cause

of action. This implication turns Title [X on its head. Cf

Gabrielle M., 315 F.3d at 829 (Rovner, J., concurring in part

and concurring in the judgment) ("Neither [the plaintiff] nor

future victims of schoolplace harassment should be penalized

simply because they seem resilient."); Hayut, 352 F.3d at 749

("[W]hat students put up with, without objection or protest,

does not mark the bounds of permissible classroom conduct.");

Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982) ("[A]

requirement that a man or woman run a gauntlet of sexual

abuse in return for the privilege of being allowed to work and

make a living can be as demeaning and disconcerting as the

harshest of racial epithets.").

The evidence reflects that Jennings's attempts to make the

most of her team experience did not involve increasing her

interaction with Dorrance, but rather with her teammates. For

example, in the Spring of 1998, prior to being cut from the

team, Jennings hosted a team party at her home and

participated in hazing events. J.A. 1365-66. Jennings

described her relationship with Dorrance during that time

35a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

period as not "friendly" or "cozy": "It was just he was a coach

and I was a player, and I did my thing. It wasn't that 'Hey, how

are you doing,’.... I would get a nod; that is about it." J.A.

1374. Indeed, Jennings characterized herself as "continuing to

pull away from" Dorrance during that time period. J.A. 1374.

Thus, while Jennings was attempting to improve her play, her

interactions with Dorrance grew more limited and her

increased participation in the team took the form of increased

socializing with her teammates.

A rational jury could view Jennings as having been denied

the full opportunity to achieve her potential as a member of the

UNC women's soccer team, despite her "growing desire to

remain with the team." Post at 52. For example, a jury could

view Dorrance to have, in effect, conditioned the receipt of his

coaching and advice on acceptance of his sexual banter, a

practice which denied Jennings equal access to the benefits of

team membership. Cf Wills 184 F.3d at 30 (noting that it is an

open question whether the denial of informal tutoring from a

professor is an educational benefit that could form the basis of

a Title [X suit).

The dissent ignores the special context of Title IX. Unlike

an employee-plaintiff in a Title VII action, if Jennings wished

to remain a student at UNC and a member of a varsity soccer

team, she had to remain a member of Dorrance's soccer team.

Jennings was, of course, free to transfer, and had she done so

as a result of Dorrance's harassment, she would have been even

further deprived of the educational opportunities of UNC. See,

e.g., Hayut, 352 F.3d at 750 (viewing student's withdrawal

from a university because of sexual harassment as depriving

the student of educational opportunities of university). In sum,

a rational jury could find that Jennings, who had played

36a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

competitive soccer since the age of six, including stints on boys

teams, was deprived of the educational advantage of UNC's

soccer program, despite her attempts to improve and her

disappointment when she was cut from the team, because of

Dorrance's harassment.

IV.

This is a difficult case, but I ultimately believe that

Jennings has presented enough evidence for her Title LX claims

to move forward. Drawing inferences in Jennings's favor, a

jury could conclude that the pervasive, hostile environment,

resulting from Dorrance's conduct, amounted to sexual

harassment and effectively deprived her of the educational

benefits of being a student-athlete at the University. For the

reasons stated above, the district court's grant of summary

judgment should be reversed. Accordingly, I concur in the

majority's opinion.

Judge Motz has requested that she is shown as joining this

opinion.

DISSENT

[*708] NIEMEYER, Circuit Judge, dissenting:

This case raises the question of whether Melissa Jennings,

a member of the University of North Carolina ("UNC")

women's soccer team for the 1996 and 1997 seasons was, by

reason of sexual discrimination, "deprive[d] .. . of access to the

educational opportunities or benefits provided by the school,”

in violation of Title IX, 20 U.S.C. § 1681(a). Davis v. Monroe

37a

Jennings, 482 F.3d 686 (4° Cir. 2007), CONT’D...

Co. Bd. of Educ., 526 U.S. 629, 650, 119 S. Ct. 1661, 143 L.

Ed. 2d 839 (1999).

After being warned repeatedly about both her academic

and athletic performance, Jennings was cut from the soccer

team in May 1998, before the beginning of the 1998 season.

By her own account, Jennings did not want to leave the team,

and she was not expecting to get cut but rather expected to hear

that she had improved. At the time, Jennings’ cumulative grade

point average was 1.964 on a 4.0 scale, up from the previous

year's 1.538. But she was still at or near the bottom of the

team's training performance levels and was a third-or fourth-

string goalkeeper. She had played in only one regular season

game during her first year and in one or two during her second

year.

Only after Jennings was cut did her father write a letter to

the general counsel of UNC, complaining about sexual

harassment of his daughter during the previous two years. A

few months later, Jennings commenced this action. The

district court granted UNC's motion for summary judgment,

and I would affirm.

During the two-year period of which Jennings complains,

she alleged no deprivation of an educational opportunity by

reason of sexual discrimination. She does allege (1) much

sexual talk during practices by teammates and her coach,

Anson Dorrance; (2) two innocuous comments directed at her

by teammates and Coach Dorrance; and (3) a conversation

during her annual evaluation meeting during which Coach

Dorrance was trying to understand the reasons for Jennings’

poor academic performance. He asked, "What is going on in

{your] social life? Is that affecting [your] grades? Is that

38a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT'D...

affecting [you] as a player? Who are you f**king? Is that

affecting your grades?"

Jennings does not allege that she was cut from the soccer

team because of sexual discrimination or that she played any

less because of sexual discrimination. She also does not allege

any touching, advances, or offers of sex. Her claim amounts to

a complaint about the vulgarity of the pervasive locker room-

style talk by teammates and her coach that attended team

practices. In these circumstances, the district court was correct

in concluding that the facts do not create a triable issue as to a

violation of Title [X, and therefore, [ respectfully dissent.

To give Jennings the full benefit of the facts in the

summary judgment record, it is necessary to set them forth

carefully and in some detail. This is especially important

because Jennings (as well as the majority) has tended to rely on

completely irrelevant incidents that occurred even before she

entered UNC as a freshman; that she never knew about; and

that she learned only from the testimony given in this case. '

' For instance, the majority repeatedly relies on Dorrance's "fly on

the wall" comment without mentioning that Dorrance allegedly made

this comment to Debbie Keller, the team captain, in the spring of

1994 -- more than two years before Jennings enrolled at UNC. (J.A.

1068.) The majority also relies on numerous instances about which

Jennings never had any knowledge -- nothing in the record imputes

them to Jennings’ knowledge, and Jennings herself never referred to

them, even though she testified to every incident of which she had

any awareness. (J.A. 1430-31.) Thus, the majority relies on the fact

that Dorrance told a player "to keep your knees together .. . you can't

(continued...)

39a

Jennings, 482 F.3d 686 (4" Cir, 2007), CONT’D...

[*709] A.

Melissa Jennings began playing goalkeeper on soccer

teams when she was 12 years old. She performed so well that

within a few years she was the first-string goalie on an elite

youth soccer club. (J.A. 1199, 1200.) After graduating from

high school, Jennings went on a recruiting trip to the .

University of Kansas and verbally committed to play for its

women's soccer team. (J.A. 1217.) Despite her verbal

commitment to Kansas, Jennings wished to play soccer at UNC

at Chapel Hill because she "knew it was the number one

school. It ha[d] all the national titles." (J.A. 1216.)

The UNC women's soccer team, which Anson Dorrance

has coached since its inception in 1979, has long been the

dominant program in the sport, winning 19 of 26 national titles,

including the national title in 2006. Because of the program's

' (...continued)

make it so easy for them" or asked another whether she was "going

to have sex with the entire lacrosse team." (J.A. 1127.) But Jennings

never heard those comments. Jennings-also never testified knowing

that Dorrance asked a player about the size of her boyfriend's

genitalia. (J.A. 1452.) Similarly, the majority relies on the fact that

Dorrance showed overt affection for Keller. But Jennings’ only

testimony in this regard is in relation to the weight room incident,

which she described as follows: "[WJe are in the weight room,

[Debbie Keller] goes off and talks with [Dorrance] in the bleachers."

(J.A. 1290.) Finally, neither Jennings nor Keller ever testified that

Dorrance "dangl|[ed] his hand in front of [Keller's] chest," (J.A. 1452-

53), as relied on by the majority.

40a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

dominance, Jennings called Dorrance and expressed her

interest. (J.A. 1216.)

Dorrance was familiar with Jennings because of a UNC

soccer camp that she had attended, and he asked her if she had

already committed elsewhere. After finding out about her

Kansas commitment, he told her to speak with Kansas' head

coach to see if Jennings could visit Chapel Hill. (J.A. 1217-18,

1221.) Jennings did visit UNC and ultimately joined its soccer

team as a walk-on recruit. Dorrance did not recommend her

for a scholarship. (J.A. 181.)

During Jennings’ freshman season, in the fall of 1996, she

was the third-or fourth-string goalkeeper and played in one

preseason game and one regular season game. (J.A. 1334.) The

team held practice every weekday afternoon during the fall and

on Saturday mornings, except on game days. (J.A. 1042-43.)

During the first 10-15 minutes of practice, before the formal

drills began, the players had what they called "team time,"

during which they would warm up, run a lap, and stretch as a

group. (J.A. 1046-47.) Debbie Keller, the team captain in

1996, described these warm-ups as a time "at the beginning of

practice to talk about our day and then get serious for practice,”

to "talk about. . . anything that would interfere with your

concentrating on practice." (J.A. 1044-45.)

The environment during team time was casual and

informal, and the women joked and conversed about a range of

topics, invariably talking about their social activities and their

personal lives, including their sex lives. They talked about the

"parties they had been to," whom they were dating, and "who

they hooked up with." (J.A. 1047-51.) Some girls discussed

"intimate sexual details," (J.A. 1052), giving "in full detail,

4la

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

start to finish," an account of "the night they spent with some

guy,” including the "different sexual [*710] acts they

performed.” (J.A. 1054.) According to Keller, these players

openly shared "too much info." (J.A. 1055.) Others discussed

the numerous sexual exploits they had undertaken within a

short period of time. (J.A. 1055, 1058.) While most of the sex

talk among the women during team time was more general than

descriptive, like whether they "had sex" or whom they had

"hooked up with," (J.A. 1041, 1056), Keller testified that

"anywhere between five to ten times" per season, the women

gave "graphic," "full detail," "start to finish" descriptions of

their sexual experiences. (J.A. 1054-55.)

Not all of the women discussed their sex lives so openly

and in such detail during team time. Keller described degrees

of openness among the players, with some women being "very

wide open about" their personal and sex lives, others being

intermediately so, and still others keeping their personal lives

completely private. (J.A. 1053-56.) Jennings fell into the last

group, testifying in deposition that she did not participate in her

teammates’ sex-themed conversations. (J.A. 1242, 1244.)

Once or twice a week, Coach Dorrance mingled with his

players during team time, walking among them as they

stretched and warmed up. (J.A. 1061.) The players’ team-time

conversations were free-flowing, and Dorrance did not regulate

their content. To the contrary, Dorrance regularly stopped and

participated in these informal conversations, "joking around

with different girls about their evenings before or just who

they're dating." (J.A. 1057.) At times, Dorrance asked whether

the players had been out drinking, and if so, how much. (J.A.

1067.) He also asked about team members’ families. (J.A.

1067.)

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

Because some of the women openly discussed their sex

lives, Dorrance overheard some of their more frank discussions

as he walked among them. According to Keller, "occasionally"

and certainly not "every time that he walked through,"

Dorrance would pause and engage in these discussions,

commenting on his players’ "personal dating [and] sex lives."

(J.A. 1066.) Keller testified that Dorrance did not confine his

comments and inquiries to team time, but talked to his players

at other times when "the team was together," whether "after a

game" or when waiting "for rides." (J.A. 1128.) Amy Steelman,

who played with Jennings during the 1996 season, remembers

the frequency of Dorrance's interventions differently, averring

that "[w]hen Anson Dorrance was around, he would encourage

and participate in sexual discussions, sexual jokes, sexual talk,

sexual banter, and sexual innuendos. A typical Monday

afternoon included queries and discussions with Dorrance into

the team members’ sexual and social exploits, particularly

prying into our sex lives." (J.A. 1452.) Jennings commented

that "Dorrance's sexual comments and inquiries took place on

a regular basis."* (J.A. 1585.)

Jennings testified that she never participated in any of the

sexual banter engaged in mutually by her teammates and

2 Dorrance has a much different recollection of the facts. In-his

affidavit, he stated: "I never initiated comments on those topics, only

infrequently heard players' comments on those subjects and even less

frequently said anything to any player at those times about those

subjects." (J.A. 186.) Several former soccer players who were

Jennings' teammates at UNC submitted affidavits consistent with

Dorrance's version of the facts. (J.A. 320, 324, 330, 332). At this

summary judgment stage, of course, these allegations must be

ignored, and the truth of the testimony of Jennings, Keller, and

Steelman must be accepted.

43a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

Dorrance. (J.A. 1242-43.) Jennings also testified that Dorrance

never directed any of his "team-time" comments at her. (J.A.

1242-43.) Although she did not participate [*711] and

although she was not targeted, Jennings paid attention to the

banter, and she labeled much of what she overheard as

inappropriate and humiliating. She testified to only two

specific incidents about which she heard, however, to provide

content to her general descriptions. First, one player informed

the team, in Dorrance's presence, that over the course of an

evening, she had sex with a man, crawled out of his window,

crawled into another man's window, and had sex with him too.

(J.A. 1055, 1058.) Dorrance asked the player whether she knew

the names of these men, and whether "she took tickets." (J.A.

1236.) Dorrance also asked this player, who was very open

about her promiscuity, who her "f**k of the minute,” "f**k of

the hour,” and "f**k of the week” was, and how "many guys on

the [lacrosse] team did she f**k?" ° (J.A. 1237-38.) Second,

another player spoke of a previous weekend with her

boyfriend, and Dorrance asked her if she was "going to have a

shag fest ... when he comes to town," and whether she was

"going to f**k him and leave him?" (J.A. 1284.)

Beyond these two incidents, Jennings testified about

one other particular comment that Dorrance made at practice,

although it was neither directed at her nor made in the presence

of any player. During a water break, Dorrance was talking to

a male athletic trainer, and Jennings overheard them both use

the phrase, "Asian threesome." (J.A. 1285.) Jennings heard

Dorrance "kind of chuckle” and say, "Oh, yeah," after hearing

> Keller testified that Dorrance "would use words more like

‘promiscuous, asking "how many people are you going to sleep

with.” (J.A. 1127.)

44a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

the phrase. (J.A. 1285.) Jennings interpreted the phrase to be

a description of a fantasy involving two of her Asian

teammates and one of the men. (J.A. 1284-86.) Jennings also

complained of Dorrance's use of profanity, including the words

and phrases "f**k," "unf**kingbelievable," "what the f**k,"

"f**king brilliant," and "f**king stupid." (J.A. 1231-33, 1264-

65.) Jennings testified that Dorrance would use such phrases

when his players made mistakes, such as when he believed a

player made a poor pass. (J.A. 1231.)

Jennings testified that Dorrance would occasionally

comment on players’ physical attributes, complimenting one

player for having "nice legs," (J.A. 1233), and another for

having "cute dimples," (J.A. 1229), commenting on "asses in

spandex," (J.A. 1229), scorning one as a "fat ass," (J.A. 1228),

and referring to one woman's chest as her "rack." (J.A. 1236.)

Jennings testified, however, that Dorrance never commented

on any of her physical attributes, respectfully or

disrespectfully. (J.A. 1243.) Jennings also admitted that

Dorrance never threatened her, never touched her, never ogled

her, never propositioned her, and never made any form of

sexual advance.

In fact, from her two years on the team, Jennings could

testify of only two instances when her personal life was

mentioned at all during soccer practice while Dorrance was

present. The first occurred before practice when Jennings and

some teammates were sitting on bleachers lining the soccer

practice field with Dorrance nearby. (J.A. 1252-54.) One of

the players spoke about her weekend with her boyfriend, and

Dorrance asked if it had been a "shag fest." (J.A. 1249.) The

teammate, seeking to involve Jennings in the conversation and

knowing that Jennings, whose nickname was "Trim'n" (which,

4Sa

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

Jennings stated, had no sexual connotation), had visited her

boyfriend at a different school the previous weekend, asked,

"What about Tim'n?" (J.A. 1246-48, 1252.) Dorrance "chimed

in," saying, "yes, what about Trim'n?" (J.A. 1246, 1252.)

Jennings ignored [*712] the questions asked by her teammate

and Dorrance, and left for the practice field to do "goalkeeper

stuff." (J.A. 1255.) The second instance occurred during team

time when a teammate asked Jennings whether a boy she had

seen Jennings hug after the previous day's game was a

boyfriend or just a friend. (J.A. 1257-59.) Jennings responded

that the boy was just a friend. (J.A. 1258.) As for Dorrance's

involvement in the exchange, he was present, but Jennings

could not remember whether he said anything. (J.A. 1258.)

As the season progressed, Jennings became concerned

about the sexual banter and other issues, and she approached

Susan Ehringhaus, then Assistant to the Chancellor and Senior

University Counsel, sometime between September and

November 1996 to express her concerns. (J.A. 1337-39, 1341.)

Jennings trusted Ehringhaus because she was a woman; she

was UNC's top legal officer; and Jennings generally felt

comfortable with her. (J.A. 1338.) Jennings told Ehringhaus

(1) that Dorrance contributed to a “humiliating” and

“uncomfortable” environment, giving Ehninghaus "a run-down

of what I thought would encompass everything” regarding

Dorrance's inappropriate comments, including the specifics of

Dorrance asking a team member "who the f**k of the week is."

(J.A. 1342-43); (2) that Dorrance failed to visit her in the

hospital when she had become sick earlier that semester (J.A.

1335) and failed to mention to the team that her hospital stay

was the reason she had missed a game (J.A. 1340); (3) that

Dorrance requested that Jennings buy $ 400 worth of Gatorade

for the team and the team's opponent during the water supply

46a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

disruptions caused by Hurricane Fran and subsequently failed

to reimburse her (J.A. 197, 1344-45); and (4) that Dorrance

encouraged Jennings to attend parties with her teammates, even

though Jennings had told Dorrance that she was underage and

alcohol was present at the parties (J.A. 198, 1338-40, 1347-48).

Jennings did not relate that any of Dorrance's sexual comments

had been directed at her. (J.A. 1346-47.) Ehringhaus stated

that Jennings made no complaints about the sexual banter at

this meeting or any other meeting until after Jennings had been

cut from the team. (J.A. 198.) But according to Jennings,

Ehringhaus responded to Jennings’ complaints by encouraging

her to "work it out with" Dorrance and asking whether she was

"taking those comments into context." (J.A. 1342.) Ehringhaus

characterized Dorrance as "a great guy" and related that she

had "known him for a long time." (J.A. 1342.) To Jennings,

Ehringhaus "didn't seem that concerned.” (J.A. 1342.)

A short time later, again during the fall of 1996, Jennings

approached Ehringhaus for a second time. At this meeting,

Jennings focused solely on Dorrance's failure to reimburse her

$ 400 for buying the Gatorade. (J.A. 1346.) Jcnnings did not

mention anything about the sexual banter at practice. (J.A.

1345-46.) Following this meeting, Jennings’ father, Craig

Jennings, also wrote a letter to the University, complaining of

Dorrance's failure to reimburse his daughter the $ 400. (J.A.

1352-53, 1411, 1543.) His letter did not mention any sexual

comments at practice. (J.A. 1543, 1551.) The reimbursement

issue was thereafter resolved, and Jennings had no further

meetings with Ehringhaus until after she had been cut from the

team. (J.A. 1350-51.)

Dorrance had a custom of meeting with each of his players

individually at the end of the soccer season for a personal

47a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

assessment of their performance during the season in the areas

of conditioning, skills, and on-field performance; contributions

to team chemistry; and academic status. (J.A. 182-83.) For the

1996 season, Dorrance [*713] held these end-of-year meetings

in his hotel room while the team was in California during

December to play in the national championship tournament.

(J.A. 1305.) After the player before Jennings had finished her

personal progress meeting with Dorrance, Jennings went in,

and both she and Dorrance sat down at a table located by the

window in his hotel room. (J.A. 1308.)

Dorrance began the conversation with "small talk," asking

Jennings such questions as "[H]ow are you doing?" and

"[W]hat is goiag on?" (J.A. 1309.) Dorrance began the

substantive portion of the meeting by addressing Jennings’

grade point average, which was a 1.538 on a 4.0 scale. (J.A.

1449.) Jennings knew that she was in danger of losing her

athletic eligibility due to her poor grades. Dorrance told her

that her grades "needed to improve" and that they were "not

acceptable.” (J.A. 1315, 1316.) He explained how important

her grades were, telling her she "ha[d] to study" and "do better

in school." (J.A. 1316.)

Seeking to find the reasons for Jennings’ poor academic

performance, Dorrance asked Jennings if she needed help,

inquiring whether she had been visiting the team's academic

tutor (which she had been). (J.A. 1318.) According to

Jennings, Dorrance then inquired whether Jennings’ social life

was affecting her grades, asking, "What is going on in [your]

social life? Is that affecting [your] grades, is that affecting

[you] as a player?" (J.A. 1329-30.) "Who are you f**king?" "Is

that affecting your grades?" "[Is that] causing a problem with

your grades, with your performance?” (J.A. 1326, 1330.)

48a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

Jennings was taken aback by the question, and immediately

replied that her persona! social life was "[nJone of his god

damn business." (J.A. 1325, 1331.) Dorrance ceased his inquiry

into the possible causes of Jennings’ poor academic

performance and "started talking about [Jennings'] performance

as a player.” (J.A. 1327.)

Because Jennings had played in only one game during the

year, as well as one preseason game, (J.A. 1334), Dorrance

focused his comments on Jennings’ conditioning, telling her

that her statistics for weightlifting, sprinting, and the like were

below team standards and therefore needed to improve. (J.A.

1327.) Dorrance ended the meeting by telling Jennings to

"{ijmprove [her] grades, first and foremost, and then . .

improve [her] performance, . . . [and to] fight for that first

string, second string position." (J.A. 1333.)

Jennings returned to the soccer team as a sophomore for

the fall 1997 season, during which she again had minimal

playing time, appearing in one or two games. (J.A. 1356.)

Again at the end of the 1997 season in December, Dorrance

met individually with each player for a personal progress

assessment. At Jennings’ meeting, Dorrance discussed her

academics, fitness, and contributions to team chemistry. (J.A.

1361.) He commented that Jennings’ cumulative GPA had

improved to a 1.964 from the previous year's 1.538. (J.A.

1449.) In Jennings’ words, Dorrance tried "to push me to

continue in a positive manner with my grades. He was

acknowledging the fact that I had made the effort." (J.A. 1362.)

But he told Jennings that she was still falling short of the

team's academic standards. (J.A. 1361.) He also told Jennings

that she needed to focus on her fitness and training,

commenting that she was not meeting the team's standards in

49a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

those areas either. (J.A. 1362.) Finally, he encouraged

Jennings "to be a positive life source" for the team by cheering

for the players from the sidelines, being "a comforting figure,

and [a] positive person, being supportive of teammates, and

everything else." (J.A. 1362, 1363.) Dorrance [*714] told

Jennings that he would have to remove her from the team if she

did not improve in each areA. (J.A. 1363.) Nothing else was

discussed. (J.A. 1365.)

During spring 1998 (the off-season), Jennings made efforts

to be more involved in the team's social activities, including

hosting recruits, working at the team's concession stand, and

even hazing the team's new members. (J.A. 1365-1372.)

On May 5, 1998, after Dorrance had asked each player to

complete a self-evaluation and an evaluation of her teammates

(J.A. 1391), Dorrance again conducted one-on-one meetings

with his players. At Jennings' meeting, Dorrance told her that

her training and fitness levels were still below the team's

minimum standards (J.A. 1387), that her performance was sub-

par (J.A. 1395), and that she therefore "was no longer to be a

part of the team.” (J.A. 1387.) Jennings was shocked and

became “hysterically upset.” (J.A. 1392.) Jennings "was not

expecting to get cut. I was expecting him to say, "You know,

you've improved.'. . . I thought I had done well. I even did

my [skills] testing injured. [I] was, you know, making every

possible attempt to do what he had asked." (J.A. 1388.)

Dorrance described Jennings’ efforts differently, observing that

she “has no discipline to improve herself as a player, is a poor

student and is bad for chemistry." (J.A. 279.) "Jennings was

clearly the worst goalkeeper on the team during the years she

played." (J.A. 182.)

50a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

A week after Jennings had been cut from the team, her

father, Craig Jennings, wrote a letter to Ehringhaus, dated May

12, 1998. (J.A. 1551.) Although Craig Jennings had once

before -- in the fall of 1996 -- written to Ehringhaus to

complain about the delayed reimbursement for Jennings’

purchase of Gatorade and the presence of alcohol at parties

attended by team players, he now complained for the first time

about the personal and sexual nature of Dorrance's comments

and questions during practice and during the player interviews.

Craig Jennings specifically complained:

Coach Dorrance has in every player/coach

review (except the one last week) and at the

practice field asked the following questions:

1. Who is your boy friend? Are you seeing

anyone? What does he do? Are you enjoying the

UNC campus? We personally do not find these

questions totally offensive, but the answers are

Melissa's to give, if she chooses without

retribution.

2. When answering yes to a boy friend or after

bringing friends to team activities he then has

asked the following: Are you sleeping with him?

Are you shacking up with him? We find both of

these questions totally inappropriate and

harassing!

3. The Monday practice session team question

has been on numerous occasions: Who is shacking

up with whom? He will even question roommates

on the field about the exploits of their teammates?

4. To one team member (not Melissa), he asks the

team who her S_ for the week is/was? Like most

5la

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

of the team members she can not respond because

he totally owns her way through your fine

institution and controls her ability to go to your

school. This is the sickest form of harassment.

(J.A. 1551.)

Ehringhaus forwarded Craig Jennings’ May 12 letter to

UNC Athletic Director Richard Baddour, who then ordered

Beth Miller, the Senior Associate Athletic Director, to begin an

investigation pursuant to UNC's sexual harassment policy.

(J.A. 200, 264.) Miller arranged a meeting on May 26, 1998, at

which Jennings, Craig Jennings, Ehringhaus, Baddour,

Dorrance, [*715] and Miller herself attended. (J.A. 1529.) At

the meeting, Jennings discussed the manner in which Dorrance

had dismissed her from the team (J.A. 1401), recounted when

Dorrance asked her about her sex life in their one-on-one

evaluation meeting in December 1996 (J.A. 1404), and

described the content of the sexual banter between Dorrance

and his players. (J.A. 1406.) Dorrance responded with a firm

denial of ever discussing sexual activity in a one-on-one

meeting with any player, but he acknowledged that he

participated in group discussions during practice that touched

on his players’ sex lives. He maintained that his comments

were only "of a jesting or teasing nature.” (J.A. 1531.)

Following the meeting, Athletic Director Baddour wrote

Craig Jennings a letter dated June 9, 1998, in which he stated:

Any unwelcome discussions, including jesting,

regarding sexual activity and team members’

relationships with m no are inappropriate in the

context you described. While Coach Dorrance

52a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

strongly denies that he has ever discussed an

individual team member's sexual activity in a one-

on-one discussion, Coach Dorrance has

acknowledged that he participated in group

discussions of a jesting or teasing nature with

soccer team members. This is altogether

inappropriate. While his actions were not

intended to be offensive, he now realizes that his

involvement in such discussions is inappropriate,

and he will immediately discontinue that activity.

Appropriate interventions have also occurred with

Coach Dorrance to address these unacceptable

conversations.

The University and Coach Dorrance

apologize for the "money issue." He has

maintained that he did not intend to embarrass

Melissa in any way. He recognizes that he

offended her and used poor judgment and for that

he apologizes.

Coach Dorrance also realizes that his dismissal of

Melissa was ill-timed, and he apologizcs for the

untimely discussion during the exam period.

(J.A. 1531.) Dorrance also signed the letter. (J.A. 1531.)

Athletic Director Baddour completed his investigation of—__

Jennings’ complaints by reprimanding Dorrance in a letter

dated June 10, 1998, which stated:

As I indicated to you in our last meeting I am

writing to officially notify you that it is

inappropriate for you to have conversations with

members of your team (individually or in any size

53a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

group) regarding their sexual activity. Please

refer to my letter of June 9, 1998 to Craig

Jennings.

(J.A. 1533.)

On August 25, 1998, at the beginning of Jennings’ third

year at UNC and a few months after she was cut from the team,

Jennings sued UNC and several individual defendants,

including Dorrance, alleging (1) a Title [X claim against UNC,

(2) claims under 42 U.S.C. § 1983 against Dorrance for sexual

harassment and invasion of privacy and against various UNC

officials for failure to supervise Dorrance, and (3) a common

law claim against Dorrance for invasion of privacy. The

district court granted the defendants’ motions for summary

judgment, and a divided panel of this court affirmed. Jennings

v. Univ. of N.C., 444 F.3d 255 (4th Cir. 2006). A majority of

this court's active members voted to grant Jennings' motion to

rehear this case en banc.

IL.

Relying indiscriminately on the catalogue of statements

made by Coach Dorrance and various members of UNC's

soccer [*716] team, made both before and after Jennings

attended UNC, the majority concludes that they created a

severe and pervasive sexually hostile environment that denied

Jennings access to the opportunities and benefits of the soccer

program. The majority's approach lacks any precision about

the meaning of comments, their connection with Jennings, their

timing (some occurred before Jennings came to UNC), and

54a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

their effect on Jennings and the soccer program. A disciplined

analysis of the facts and their effect on Jennings can lead only

to the conclusion that the sexual banter, while extensive and

inappropriate, did not deny Jennings any educational

opportunity. Indeed, she has never claimed that it did. The

majority's analysis amounts in essence to an evaluation of the

vulgar language by Coach Dorrance and teammates rather than

an analysis of whether such violations of civility amount to a

cause of action under Title IX.

While I agree that the sexual banter during soccer practices

was vulgar and inappropriate, both as to Coach Dorrance and

the soccer team members, the banter had no effect on whether

Jennings played soccer, or indeed whether she wanted to play

soccer, at UNC. To the contrary, despite the banter, Jennings

deeply desired to be a member of the team. When she was cut

for reasons unrelated to sexual banter, she was shocked and

profoundly disappointed.

At bottom, Jennings made genuine complaints about

vulgar sexual banter, but there were no complaints that the

sexual banter denied her educational benefits. Therefore

Jennings did not make out a Title IX claim.

Before conducting the analysis demanded by Title IX, a

review of the statute's requirements is necessary. This is

particularly so because the majority has misdescribed the

requirements of a Title [X claim, omitting the core requirement

that the plaintiff demonstrate that she was denied the benefits

of an educational program or activity on the basis of sex. See

ante at 9.

55a

Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

Title IX prohibits an educational institution that receives

federal funds from engaging in sex-based discrimination. The

statute provides, with certain exceptions not at issue here, 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). While Title IX does not, by its terms, create a private

cause of action against the funding recipient, the Supreme

Court has implied one, see Cannon v. Univ. of Chicago, 441

U.S. 677, 717, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979), and it

has held that money damages are available in such suits,

Franklin v. Gwinnett County Pub. Schools, 503 U.S. 60, 76,

112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992). The damages

remedy will lie against the funding recipient, however, only

when "an official who at a minimum has authority to address

the alleged discrimination and to institute corrective measures

on the [funding] recipient's behalf has actual knowledge of

discrimination in the recipient's programs" and responds with

"deliberate indifference to the discrimination." Gebser v. Lago

Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S. Ct. 1989,

141 L. Ed. 2d 277 (1998).

As with Title VII, "sexual harassment" under Title [X is a

form of "discrimination." See Franklin, 503 U.S. at 74-75. In

the context of student-on-student harassment, the Court has

held that the harassment must be "so severe, pervasive, and

objectively offensive that it can be said to deprive the victims

of access to the educational opportunities or benefits [*717]

provided by the school." Davis v. Monroe County Bd. of

Educ., 526 U.S. 629, 650, 119 S. Ct. 1661, 143 L. Ed. 2d 839

(1999). But other than for student-on-student harassment, the

Court has not defined the substantive contours of the

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Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

harassment forbidden by Title IX. Nonetheless, courts of

appeals have looked to the Supreme Court's Title VII

jurisprudence when interpreting Title IX. See, e.g., Frazier v.

Fairhaven Sch. Comm., 276 F.3d 52, 65-66 (1st Cir. 2002);

Lam v. Curators of the Univ. of Mo., 122 F.3d 654, 656-57

(8th Cir. 1997).

Because the Supreme Court implied in Davis that the

"severe, pervasive, and objectively offensive" standard for

student-on-student harassment was more demanding than Title

VII's "severe or pervasive" standard for harassment generally,

I agree with the majority that the level of harassment required

for actionable claims under Title [X in the case of teacher-on-

student harassment is Title VII's "severe or pervasive"

standard. See Harris v. Forklift Sys. Inc., 510 U.S. 17, 21, 114

S. Ct. 367, 126 L. Ed. 2d 295 (1993); Meritor Sav. Bank, FSB

v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49

(1986). This standard, of course, must be applied with

sufficient discipline that the standard does not become a

"general civility code." Faragher v. City of Boca Raton, 524

U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998).

Much more significant to Title [X liability, however, is the

analysis required for determining when a given level of

harassment brings about consequences with which Title [IX is

concerned. To succeed in a Title [IX harassment claim, the

plaintiff must prove that the harassment was so severe or

pervasive “that it can be said to deprive the [plaintiff] of access

to the educational opportunities or benefits provided by the

school." Davis, 526 U.S. at 650. This requirement of specified

consequences derives from the text of Title [X itself, which

shields students from "discrimination," such as being “excluded

from participation in” or "denied the benefits of" any.

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Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

"education program or activity receiving Federal financial

assistance" on the basis of sex. 20 U.S.C. § 1681(a).

Therefore, harassment standing alone, no matter how severe or

pervasive, is not actionable; it must have the effect of

discriminating so that it effectively denies students of “equal

access to an institution's resources and opportunities." Davis,

526 U.S. at 651; see also 20 U.S.C. § 1681(a). Title [X's

purpose is not to eradicate harassment from the educational

environment; it is "a specific federal statute designed primarily

to prevent recipients of federal financial assistance from using

the funds in a discriminatory manner." Gebser, 524 U.S. at

292.

Thus, Jennings must show that she was subjected to

harassment -- because of her sex -- so objectively severe or

pervasive that she was effectively denied equal access to

UNC's resources and opportunities.

If.

In this case, Jennings’ evidence, while amply describing

instances of sexual banter among teammates and Coach

Dorrance, falls far short of demonstrating that Jennings was

denied the benefits of soccer team membership. She has never

alleged that she did not want to be a member of the team or that

the banter denied her the benefits of membership. Indeed, she

wanted to remain on the team and believed that her

improvements in performance justified remaining on the team.

She was shocked and angered when she was cut.

Moreover, Jennings complained only once to UNC

officials during her two years on the team about the banter and

then at such a low level that the person to whom [*718] she

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Jennings, 482 F.3d 686 (4" Cir. 2007), CONT’D...

complained did not recall it. In addition, when Jennings’ father

wrote on Jennings’ behalf about problems that Jennings had

encountered with the soccer progr

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