Opposition Brief — Hill v. Jennings (No. 07-43)

(2 FILED

@ . AUG 24 2007

Ne.07-43 | Supace Cone Ee

In THE

Supreme Court of the United States

UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL,

Petitioner,

Vv.

MELISSA JENNINGS,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION

DANIEL F, KONICEK MARCIA D. GREENBERGER

Konicek & Dillon Dina R. Lassow*

21 W. State St. FATIMA Goss GRAVES

Geneva, IL 60134 NATIONAL WOMEN’S LAW

(630) 262-9655 CENTER

il t Circle, N.W.

Suite

Washi D.C. 20036

(202) 5180

Counsel for Respondent

August 24, 2007 * Counsel of Record

BEST AVAILABLE COPY

i

QUESTION PRESENTED

Whether the en banc Fourth Circuit properly ruled

that a jury should determine the disputed facts

regarding the liability of the University of North

Carolina at Chapel Hill (UNC) for damages to

student-athlete Melissa Jennings for its deliberate

indifference to sexual harassment by its women’s

soccer coach, given that Jennings presented sufficient

evidence for a reasonable jury to conclude that:

a) she notified the university of the coach’s

sexually hostile actions; and

b) the harm she suffered from the sexual

harassment, including severe emotional

distress, had a negative impact on her

academic performance and ultimately her

place on the varsity soccer team, causing

her to be denied access to educational

opportunities and benefits at UNC.

i

TABLE OF CONTENTS

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FARRER CP AUTEM ccccerccesescresecnssetesnneesncnronnesors ill

BON Ser GANG - cipeicenipearesuiensiarnennninintnamatiamnailini |

STATEMENT OF THE CARE ......cccccrcscscoreseescoesssenevesoee 4

REASONS FOR DENYING THE WRIT ...............0..00 9

I. THERE IS NO CONFLICT AMONG THE

CIRCUIT COURTS OR WITH THIS

CUES © PM EIEET ES cctvsctesviseneeneesnnceenmenpresncoaes 9

A. The Fourth Circuit's Ruling Is Consistent

With Rulings From Other Circuits. .................... 10

B. The Fourth Circuit Applied This Court's

PROSENSE FURIIIN cercccssnvessncssetenmnitennsttcetionsees 13

1. The Decision Below Is Consistent With

II icsnicensetbieti bacioinediciieies neater ae a, 13

I. scteccheshcieniin iniepaiint aaa Coa a 16

I]. THE COURT’S REVIEW OF THIS CASE

WOULD BE PREMATURE. .........c0cseressscceoressoseeees 20

Ce series citstsccsinnceisesteradeacideiisaiaaiagtai 22

iii

TABLE OF AUTHORITIES

CASES

Anderson v. Liberty Lobby, 477 U.S. 242 (1986)....... 4

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

ee ck I Cle Gas PPI IIE ccnisescsctcionbescsienbanee 19, 20

Davis v. Monroe County. Bd. of Educ., 526 U.S. 629

RSIS Ee Re NM an cet Oates RST ON Sel passim

Faragher v. City of Boca Raton, 524 U.S. 1775

(REAR ERED SR cane CRN Ces tiie RTE BANA Neate Ader 15

Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60

| __RRESOS ORERSPPO il ee CTA Ee SE aR ate eS WEY 1,19

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

Dist. 163, 315 F.3d 817 (7th Cir. 2008)........ 10, 11, 12

Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274

TINIE Uiilhhde siti laiacbaiesdhioccscnibiesahioiabaalacadichnaniiaalle passim

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240

I ae 21

Hayut v. State Univ. of N.Y., 352 F.3d 733 (2d Cir.

(RR SEM MRE Sire exten 10

Kyles v. Whitley, 514 U.S. 419 (1995) (Scalia, J.,

| ESTERS SAE SAPO ot RM eT 20

Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75

Ses eciiodens Sitabaihcadshinsnlieiaatrinieedsooibioteasaicndetlebadedvonesaiiaiahai 16

Pennhurst State Sch. & Hosp. v. Halderman, 451

Oe a 19

1V

Robinson v. Jacksonville Shipyards, 760 F. Supp.

Re es eS sintiniincecteseisencsinneernissatinteseaenian 16

Sauls v. Pierce County Sch. Dist., 399 F.3d 1279 (11th

I. ITUIII dace kde ccc anibebsdcdehomnbibsbticta acl ab boauastaaSalawicode 1]

Texas v. Mead, 465 U.S. 1041 (1984) veccccccccsssecceseeeeree 7

United States v. Johnson, 268 U.S. 220

SIFTED eivivinistcasiiesisivtshinetiisssebicessetiatinbaiiandiamhddiaaaaapaiiilas 21

STATUTES AND OTHER AUTHORITIES

Revised Sexual Harassment Guidance: Harassment

of Students by School Employees, Other Students,

or Third Parties, 66 Fed. Reg. 5512 (Jan. 19, 2001)

sates tebe iti Ne kc Tee 19

Sexual Harassment Guidance: Harassment of

Students by School Employees, Other Students, or

Third Parties, 62 Fed. Reg. 12034 (March 13, 1997).

20

COOTER T OTOH EE EEE ETE FE HERTESES SHH HEEESERESE EEE SESE TESS OSES HE TEHEHEEEEEETHHEEEESEHEEEEED

Title IX of the Education Amendments of 1972,

Be Ue Be Oe OE haiiineicieonnion ]

l

BRIEF IN OPPOSITION

INTRODUCTION

Title IX of the Education Amendments of 1972,

21 U.S.C. § 1681 et seq., bars sex discrimination—

including sexual harassment—by educational

institutions that receive federal funds. Franklin v.

Gwinnett County Pub. Sch., 503 U.S. 60 (1992). To

ensure that recipients will be liable for damages only

for their own conduct in sexual harassment cases,

this Court issued decisions in 1998 and 1999 that

establish stringent standards for liability.

In Gebser v. Lago Vista Ind. Sch. Dist., 524

U.S. 274 (1998), a case involving teacher-student

sexual harassment, this Court determined that, to be

liable for damages for sexual harassment under Title

IX, an appropriate school official must have

knowledge of the harassment and, in the face of that

knowledge, the school must be deliberately

indifferent to the harassment. In the context of

student-on-student harassment, this Court held in

Davis v. Monroe County. Bd. of Educ., 526 U.S. 629,

652 (1999), that a private damages action may lie

where “the behavior is so severe, pervasive, and

objectively offensive that it denies its victims the

equa! access to education that Title [X is designed to

protect.”

Applying these standards, the Court of Appeals

for the Fourth Circuit, sitting en banc, ruled 8-2 that

Melissa Jennings had “presented sufficient evidence

to raise triable questions of fact on all disputed

elements of her Title [IX [sexual harassment] claim.”

Pet. App 22a. A soccer player recruited by Head

2

Coach Anson Dorrance, she was cut from the team

during exam period of her sophomore year, reflecting

the adverse academic and athletic consequences

Jennings suffered because the University of North

Carolina at Chapel Hill (UNC) failed to address the

sexually hostile environment created by Coach

Dorrance. Nothing in this straight forward

application of Gebser and Davis provides a reason for

this Court to grant review.

To begin with, there is no dispute in this case

that Jennings must demonstrate that the hostile

environment created by Coach Dorrance was severe

enough to deny her equal access to concrete

educational opportunities and benefits. Moreover,

she must demonstrate that UNC was on notice

regarding the hostile environment, and was

deliberately indifferent to addressing it. It is those

standards that the Fourth Circuit explicitly applied

in finding that Jennings presented enough evidence

to allow a reasonable jury to determine whether she

carried the burden of meeting them.

Nor is there any dispute among the courts of

appeals over the appropriate standard for damages

liability in a Title [IX sexual harassment case. The

Seventh Circuit decision cited by UNC as purportedly

in conflict with the Fourth Circuit applies the same

well-settled Gebser and Davis standards. Indeed, the

only real disputes in this case are factual.

Although, to be sure, there are some key facts

that even UNC cannot dispute: There is no dispute,

for example, that Coach ODorrance’§ made

inappropriate comments to his students during team

practices and events attended by Jennings, a 17-year-

3

old member of the soccer team. There also is no

dispute that Jennings met with UNC’s legal counsel,

an appropriate school official under Gebser, and that

no action was taken by UNC after the meeting. Nor

is there any dispute that after Jennings was cut from

the team and her parents complained vociferously,

Coach Dorrance wrote a letter to her father

acknowledging that his conduct was “inappropriate”

and “unacceptable.” Finally, there is no dispute that

UNC took no action to determine how it might

otherwise remedy the impact that the coach’s

unacceptable conduct had on Jennings’ performance.

However, many other remaining factual

disputes remain concerning the scope and effect of

the coach’s inappropriate conduct, the specific

information imparted to UNC regarding that conduct,

and the precise nature and cause of the injury

suffered by Jennings. These issues reinforce that this

case should be allowed to proceed to trial to allow

those factual disputes to be resolved by a jury.

UNC attempts to dress up these factual

disputes as legal issues. In so doing, it improperly

asks this Court to step into the role of trier of fact.

But petitions for writs of certiorari are not granted

“to review evidence and discuss specific facts.”

United States v. Johnson, 268 U.S. 220, 227 (1925).

In addition, the factual nature of UNC’s claims

highlights that any review here is premature. The

Fourth Circuit’s decision merely denies summary

judgment to UNC because of the material facts in

dispute. After trial, there may be no legal issues that

need resolution, and, if there are such issues, they

would be properly defined.

4

UNC has presented no reason why this Court

should grant certiorari, particularly of this

interlocutory decision, and its petition should be

denied.

STATEMENT OF THE CASE

Melissa Jennings was only 17 years old when

she arrived as a freshman at UNC as a recruited

student-athlete on the women’s soccer team.! Pet.

App. 3a. As the Fourth Circuit sets forth in pages

and pages of descriptions of highly offensive behavior

(Pet. 2a-28a), during practices and other team

gatherings the head coach, 45-year-old Anson

Dorrance, regularly “bombarded [his] players with

crude questions and comments about their sexual

activities and made comments about players’ bodies

that portrayed them as sexual objects.” Pet. App. 3a.

These sexually hostile comments were difficult to

escape, they “permeated team settings,” often

occurring “during team warm-up time * * * or any

time the team was together, whether at home or

traveling.” Pet. App. 16a. The “questions and

comments moved from girl to girl to girl’—some

directed at Jennings—and she and her teammates

had no choice but to endure them all. Pet. App. 7a.

For example, Jennings heard Dorrance ask one

teammate whether there was “a guy [she hadn’t]

f**ked yet?” and another whether she was planning a

“shag fest” with her boyfriend. Pet. App. 15a. He

then asked Jennings whether she had “the same

1 We present these facts, and any inferences drawn from them,

in the light most favorable to Melissa Jennings. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

5

good weekend’ with her boyfriend.” Pet. App. 16a.

Another time, he asked one player whether she was

“going to have sex with the entire lacrosse team.”

Pet. App. 3a-4a. In addition, he frequently

commented on the “nice rack{s]” and “nice legs” of

some of the players. Ibid.

Jennings also endured Dorrance’s musings

about his sexual fantasies. She overheard her him

talk about “an Asian threesome”—having “group sex

with his Asian players.” Pet. App. 4a. He told Debbie

Keller, one of the team captains, that he would “die

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

another team member, had sex” because he believed

the roommate “was a virgin with repressed sexual

desire.” Pet. App. 4a,16a. That fantasy made such

an impression on the team that they were still

talking about it in front of Jennings a year or more

after he told it to Keller. Pet. App. 5a n. 1.

The court below also described Jennings’ end-

of-season performance evaluation that took place in

Coach Dorrance’s dark hotel room during a

tournament. With the two of them alone in the room,

“knee-to-knee, bed not made,” in the middle of

discussing how she needed to improve her grades, he

asked Jennings: “Who are you f**king?” Pet App. 6a,

15a.

In adc ‘tion to all the out-of bounds, offensive

sexual remarks, the court discussed the evidence that

Coach Dorrance engaged in unwanted and highly

inappropriate physical contact with Keller in front of

the team. He touched her stomach, and dangled his

hand in front of her chest, while putting his arm

around her and rubbing her back. Pet. App. 5a.

6

These advances made Keller’s “skin crawl,” but,

reflecting the obvious power relationship between

this successful coach and his young players, she

testified that she did not object because she did not

want to lose her playing time. Pet. App. 14a-15a.

Jennings testified that experiencing all of the

coach’s actions, comments and questions—whether

they were directed at her individually, the teammate

next to her, or the entire team—made her feel

“uncomfortable, filthy and humiliated.” Pet. App. 7a.

The Fourth Circuit noted that her “testimony is

supported by a psychiatrist’s opinion that Dorrance’s

destructive practice of verbal sexual abuse caused her

to suffer severe emotional distress.” Pet. App. 20a.

Jennings further explained that because of the

sexually hostile environment created by the coach,

her performance as a soccer player and her academic

work suffered. Ibid. She testified that she received

low grades the entire time she was on the team

because she “found it hard to focus” in the midst of a

hostile environment and was uncomfortable and

unhappy. Pet. App. 34a. And her entire soccer

experience and ability to improve was negatively

affected, as she struggled to “stay out of [Dorrance’s]}

radar” while he was making his sexual remarks. Pet.

App. 21a. Jennings was ultimately cut from the team

by Coach Dorrance at the end of her sophomore year.

Pet. App. 8a.

The court below also discussed the meeting

that took place during the fall of 1996, Jennings’ first

soccer season at UNC, with Susan Ehringhaus,

Senior University Counsel and Assistant to the

Chancellor. Jennings testified that at that meeting

7

she described Coach Dorrance’s sexual questions and

comments to the team, and the feelings of discomfort

and humiliation that they caused her. Pet. App. 22a.

Ehringhaus took no action after the meeting and

merely told Jennings that Dorrance “was a ‘great guy’

and that she should work out her problems directly

with him.” Ibid.

UNC did not respond to Jennings’ complaint

about the hostile environment at all until May 1998,

after she had been cut from the team and her parents

complained. On June 9, 1998, the Athletic Director

sent Jennings’ father a letter stating that Coach

Dorrance “now realizes that his involvement in

[team] discussions is inappropriate, and he will

immediately discontinue * * * these unacceptable

conversations.” Pet. App. 9la. The next day, the

Athletic Director issued a letter of reprimand to

Coach Dorrance, notifying him that “it is

inappropriate for you to have conversations with

members of your team (individually or in any size

group) regarding their sexual activities.” bid.

On August 25, 1998, Jennings and Keller sued

UNC and several of its employees individually and in

their capacity as UNC employees.2 Pet. App. Qa.

Afterwards, Jennings was so severely threatened and

harassed that “UNC officials warned her that they

could not guarantee her safety on campus.” Ibid.

She was forced to spend her senior year at another

school, though awarded a degree from UNC. Ibid.

2 In its en banc decision, the Fourth Circuit affirmed the district

court’s grant of summary judgment as to all of the individual

defendants except for Coach Dorrance and Susan Ehringhaus.

Pet. App. 23a. UNC was the only defendant to seek this Court’s

review. Pet. ii.

8

Several years later, on March 19, 2004, Coach

Dorrance sent a letter of apology to Keller,

acknowledging that his participation in “discussions

of thfe] team members’ sexual activities or

relationships with men” was “altogether

inappropriate and unacceptable.” J.A. 777. Keller

then settled her claims with all defendants and filed

a stipulation of dismissal with prejudice on March 24,

2004. Pet. App. 92a. The district court granted

defendants’ motion for summary judgment on

October 27, 2004. Pet. App. 155a.

On appeal, the Fourth Circuit, in a split

decision, upheld the district court. Pet. App. 76a. In

an opinion written by District Judge Dever, sitting by

designation, the court concluded that there was no

hostile environment because the Coach’s conduct had

not “crossed the line” between vulgar, mildly

offensive language and sexual harassment. Pet. App.

llla. Judge Michaels dissented, emphasizing that

because he believed that “Jennings had proffered

facts showing that the soccer team environment was

persistently degrading and humiliating to her and to

other young women, she is entitled to a trial.” Pet.

App. 129a-130a.

The Fourth Circuit granted Jennings’ petition

for rehearing en banc, vacating the panel decision.

Pet. App. 2a. On April 19, 2007, in an 8-2 decision,?

the court reversed the district court’s grant of

summary judgment. Ibid. Closely following this

Court’s decisions in Gebser and Davis, the court held

3 Judge Niemeyer, joined by Judge Williams, dissented from the

majority decision.

9

that the facts put forth by Jennings “are sufficient to

establish that Jennings gave Ehringhaus, and by

extension UNC, actual notice of the _ hostile

environment created 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.”

Pet. App. 22a. The court further found that a

reasonable jury could determine that the crude

questioning, comments, touching, and _. other

manifestations of sexual harassment toward the

young women on his soccer team, including 17-year-

old Jennings, were “sufficiently degrading to create a

hostile or abusive environment.” Pet. App. 13a-14a.

The court also determined that Jennings had

put forth evidence that she had been denied equal

access to educational benefits by demonstrating that

her academic and athletic performance was

negatively affected by the harassment. It pointed to

the fact that Jennings “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.” Pet. App. 20a.

REASONS FOR DENYING THE WRIT

I. THERE IS NO CONFLICT AMONG THE

CIRCUIT COURTS OR WITH THIS

COURT’S PRECEDENTS.

In support of certiorari, UNC argues that the

Fourth Circuit’s decision conflicts with a decision of

the Seventh Circuit and with this Court’s Title IX

—

10

jurisprudence. Pet. App. 19a-20a. There simply is no

conflict among the courts of appeals,4 and the

decision below is fully in accord with this Court’s

decisions in Gebser and Davis. Review is therefore

unwarranted. SUP. CT. R. 10.

A. The Fourth Circuit's Ruling Is

Consistent With Rulings From

Other Circuits.

UNC contends that the Fourth Circuit’s ruling

has contributed to an “apparent” conflict among the

lower courts. Pet. 20. There is no apparent conflict—

much less a real one. The only case that UNC claims

is in conflict with the Fourth Circuit is Gabrielle M. v.

Park Forest-Chicago Heights, Ill. Sch. Dist. 163, 315

F.3d 817 (7th Cir. 2003). But in Gabrielle M., the

Seventh Circuit applied the same legal standards as

the Fourth Circuit. It reached a different outcome

because the facts it addressed were entirely different.

Both the Fourth Circuit and the Seventh Circuit

applied the stringent Gebser and Davis standards for

establishing a sexual harassment claim under Title

IX. In the instant case, the Fourth Circuit properly

held that the facts offered by Jennings were sufficient

to allow a jury to decide whether the team

environment was so hostile that it severely affected

her emotional state, and had a negative impact on

4 UNC also claims that a Second Circuit decision, Hayut v. State

Univ. of N.Y., 352 F.3d 733 (2d Cir. 2003), is in conflict with the

Seventh Circuit. Hayut involves the sexual harassment of a

college student by a professor, and is very similar to this case.

Like the Fourth Circuit, as discussed below, the Second Circuit

properly applied this Court’s precedents to the facts before it,

and its decision does not raise any conflict.

1]

her academic and athletic performance.5 Pet. App.

20-21a. Put differently, it held that a reasonable jury

could find that the sexually hostile environment had

deprived Jennings of access to educational

opportunities and benefits at UNC, including her

ability to stay on the soccer team, and to perform as

well as she otherwise might academically.

To be sure, the Seventh and Fourth Circuits

reach different outcomes, but the key difference

between the decision below and the Gabrielle M. case

is the very different facts to which the Seventh

Circuit applied the legal standards. In stark contrast

to the facts here, Gabrielle M. involved student-on-

student harassment by a five year-old kindergartner,

not a 45-year-old coach harassing teenage and young

adult students. Further, in Gabrielle M., the school

district immediately attempted to address the

harassment—again in contrast to the uncontraverted

evidence presented by Jennings that UNC did

5 This case does not raise the question of whether the rigorous

Davis deprivation of access to educational opportunities or

benefits standard used by the Fourth Circuit applies to teacher-

student harassment cases. Compare Sauls v. Pierce County Sch.

Dist., 399 F.3d F.3d 1279, 1284 (11th Cir. 2005) (“Because this

case involves teacher-on-student harassment, Appellants need

not establish [that the] misconduct was ‘so severe, pervasive,

and objectively offensive’ that it denied [the victim] equal access

to educational programs or opportunities.”) with Pet. App. 19a

n.2. Accordingly, this Court need not reach that issue here.

Texas v. Mead, 465 U.S. 1041, 1042 (1984) (Stevens, J.,

respecting the denial of the writ) (The “Court’s decision to deny

the petition for a writ of certiorari [when the issue discussed by

the dissent was neither presented to the court below nor raised

in the petition for certiorari] is demonstrably consistent with the

principles which inform [the] exercise of certiorari

jurisdiction.”).

12

nothing following her meeting with Ehringhaus.

Indeed, the rest of Jennings’ freshman soecer season

and her full sophomore season went by (culminating

with her being cut from the team), before the

university took any steps to end the Coach’s

_undisputedly improper behavior. Pet. App. 8a. Even

then, UNC responded only by sending a letter

acknowledging that Dorrance’s sexual comments

were inappropriate and unacceptable. Ibid. It took

no steps to remedy the injury caused by Dorrance’s

behavior, and in fact counseled her to leave the

university rather than offer her protection after she

filed this case. Pet. App. 9a.

In its effort to create a conflict with Gabrielle M.,

UNC’s petition ignores that Jennings has put forth

specific evidence that the sexually hostile

environment resulted in concrete harm. Pet. 19-20.

From the very start of her freshman year at UNC,

she suffered severe emotional distress, was unable to

concentrate on her school work, received poor grades,

avoided her soccer coach during practice, and was

ultimately dismissed from the team. Pet. App. 20-

21a. In contrast, in Gabrielle M., the court found it

difficult to determine the concrete effect on a five-

year-old’s access to education resulting from what it

believed to be imprecisely defined harassment from

another five-year-old. 315 F.3d at 822-23. It is these

factual differences, not legal differences, that explain

the results in the two cases. Accordingly, there is no

legal issue that needs to be settled by this Court. See

Johnson, 268 U.S. at 227 (“We do not grant certiorari

to review evidence and discuss specific facts.”).

13

B. The Fourth Circuit Applied This

Courts Title IX Precedents

Properly.

UNC further asserts that the decision below

conflicts with this Court’s decisions in Gebser and

Davis. Pet. 20-29. These claims are also meritless.

1. The Decision Below Is Consistent

With Gebser.

The Fourth Circuit studiously followed

Gebser’s requirements for damages liability in a Title

IX sexual harassment case. Under this standard,

educational institutions are subject to liability for

teacher-student sexual harassment when an

appropriate school official has actual knowledge of

the harassment and responds to it with deliberate

indifference. Gebser, 524 U.S. at 277.

In an effort to drum up an issue for this Court,

UNC argues that Jennings’ description of Coach

Dorrance’s conduct during team practices and events,

and the discomfort and humiliation that she felt, did

not give sufficient notice of sexual harassment to

Ehringhaus because: a) the comments Jennings

complained of “involved Dorrance’s interaction with

other players;” b) Jennings did not schedule the

meeting with the announced purpose of providing

notice; and c) the comments could not have

constituted sexual harassment because of the

“informal” nature of interactions in athletics. Pet. 20-

26. All of these arguments are factual and should be

decided by a jury. None raise the kind of legal issues

that warrant this Court’s review.

14

First, UNC protests (Pet. 24) that Jennings did

not complain of the Coach’s comments to her—only to

others made in her presence. But this argument

ignores that Jennings was subject to a sexually

hostile environment created by those very comments

and other behaviors. Because Coach Dorrance’s

regular comments “permeated team settings,” (Pet.

App. 16a) moving from “gir]-to-girl-to-girl,” (Pet. App.

7a) a jury could reasonably determine that Jennings’

“vivid details of Dorrance’s sexual comments about

his players” and report “that the situation was

causing her intense feelings of discomfort and

humiliation” provided Ehringhaus with sufficient

notice. Pet. App. 22a. Moreover, UNC’s argument is

contrary to the whole concept of sexual harassment

caused by a hostile environment. A hostile

environment is just that—it is created by the conduct

that surrounds the student and that the student

must endure—not just the conduct directed

specifically at the student. It is precisely because the

coach’s offensive comments were addressed to so

many players that they permeated the environment

and harmed Jennings.

This is particularly true here, given that, as

the court below noted, “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.” Pet. App. 14a. And

“la]s the coach, Dorrance controlled everything: team

membership, position playing time, and scholarship

eligibility.” Ibid. While UNC emphasizes that other

players did not complain, a jury could consider that

some players were afraid to complain and risk losing

a spot on the “premier women’s soccer team in the

15

country” (Pet. 2).6 Cf. Faragher v. City of Boca

Raton, 524 U.S. 775, 805 (1998) (a supervisor has

“power to alter the environment”).

Second, UNC suggests (Pet. 22-26) that to

provide adequate notice Jennings was required to

formally announce to Ehringhaus that she had come

to complain about sexual harassment. Certainly such

a formal announcement by a college-age student

should hardly be needed to alert a knowledgeable

attorney—“an official responsible for fielding sexual

harassment complaints” (Pet. App. 22a)—that one of

its employees was harassing students.7

Third, UNC’s argument (Pet. 23-26) that it

was not on notice of a hostile environment because

sexually offensive comments are permitted in school

6 Debbie Keller, the team captain and star soccer player who

settled with UNC in 2004, testified that Dorrance’s sexual

“comments about his affection’ for her, together with the

inappropriate touching, ‘made her skin crawl’ and made her

‘fefe]l dirty.” Pet. App. 14a. But even she “didn’t want to tick

him off to a point * * * where he would take it out on [her] by not

playing {her].” Pet. App. 14-15a.

7 UNC stresses that Jennings “understood that the conversation

was in confidence” (Pet. 23), but this argument further

corroborates testimony that she and Keller were afraid of

provoking Coach Dorrance. Pet. App. 15a (“[H]ow do you say

anything [to stop him?] * * * You are stuck between a rock and a

hard place.”). And, of course, Ehringhaus was perfectly free to

investigate the coach’s behavior without divulging how she had

learned of the problem. Moreover, even UNC could not contest

that it was on notice of the hostile environment following the

complaints by Jennings’ parents immediately after she was cut

from the team. Yet UNC only submitted a “mild letter of

reprimand to Dorrance” and a letter of apology to Jennings’s

father (Pet. App. 8a-9a), taking no steps to identify and address

the academic and athletic harm suffered by Jennings.

16

athletics must also be rejected. Whatever different

social mores may govern professional football players

and office workers (see Oncale v. Sundowner Offshore

Serv., Inc., 523 U.S. 75, 81 (1998)), surely UNC is not

claiming that its student-athletes must endure a

sexually hostile environment to participate in varsity

sports. Cf. Robinson v. Jacksonville Shipyards, 760

F. Supp. 1486, 1526-27 (M.D. Fla. 1991) (“social

context” arguments cannot be used to require women

to endure abuse in order to work in a historically

male environment). Indeed, UNC itself admitted

that the comments made by Dorrance were highly

inappropriate. Pet. App. 8a. Moreover, Oncale

emphasizes that whether there is actionable sexual

harassment depends on the entire “constellation of

surrounding circumstances, expectations and

relationships.” Oncale, 523 U.S. at 81-82. As the

Fourth Circuit properly recognized, these factual

questions belong, in the first instance, with the jury.

See, e.g., Pet. App. 18a.

In sum, the Fourth Circuit was correct in

holding that a jury should examine all of the facts to

determine whether UNC had sufficient notice that

Coach Dorrance’s conduct created a_ hostile

environment. UNC does not present any conflict with

Gebser that requires correction by this Court.

2. The Decision Below is Consistent

with Davis.

UNC also erroneously contends that review is

warranted because the Fourth Cuircuit’s decision

conflicts with the standard established for Title IX

damages liability for student-on-student harassment

in Davis. Pet. 26-28. Davis requires that such

17

harassment must be severe and pervasive enough

that it “so undermines and detracts from the victims’

educational experience, that the victim-students are

effectively denied equal access to an institution’s

resources and opportunities.” 526 U.S. at 651.

UNC’s repeated claims that Jennings did not

suffer the injury required under Davis rest on

disputed facts, not legal issues. Its assertions that

“nothing happened to her while she was a member of

the women’s soccer team” (Pet. 27) and “[aJ]ll 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” (ibid.) only exemplify its attempt to

ignore Jennings’ evidence that disputes its

contentions. As a jury could more than reasonably

find, the degrading and abusive environment that

Jennings endured caused her to suffer severe

emotional distress during the entire period that she

was on the team.® Her grades were hurt, her soccer

performance was impaired, and ultimately she even

lost her chance to continue to be a member of the

team. It is difficult to imagine more concrete injury

that a student could suffer while on the team.

8 UNC’s claim (Pet. 28) that under Davis a psychological injury,

even when reflected in a decline in grades, is insufficient to

show that a student was deprived of her educational

opportunities is simply wrong. Davis stated only that a drop in

grades can demonstrate concrete injury but that alone does not

itself create liability—the severity of the misconduct and the

school’s knowledge of that misconduct must still be established.

526 U.S. at 652. In any event, Jennings’ allegations that her

academic and athletic performance suffered, including losing her

spot on the soccer team, are the very concrete injuries that could

lead a jury to determine that she had been denied access to

significant UNC educational programs and benefits.

18

In yet another attempt to create a legal

dispute, UNC claims that there was no academic

harm suffered because Jennings’ grades did not fall,

and in fact improved somewhat. Pet. 16. The fact

that Jennings’ grades rose slightly during her

sophomore year (her academic performance was

consistently “barely above passing” Pet. App. 20a.)

could reasonably show that she was managing

slightly better to endure the hostile environment—

not that she suffered no harm. See ibid. And, in

contrast to Davis, 526 U.S. ‘at 634, because the

harassment began as soon as she arrived on campus,

there is no “pre-harassment” period with which to

compare what her grades could have been absent the

harassment.

In fact, Jennings’ claims present even more

severe adverse educational effects than those suffered

in Davis. Jennings’ evidence, which a jury should

assess, supports a finding not only of an adverse

effect on her grades, as was the case in Davis, but

also of being cut from an athletic team because of her

negatively affected performance, denying her access

to a key UNC athletic opportunity.

Moreover, in contrast to Davis there was a

significant age and power difference between

Jennings, a 17-year-old student-athlete, and 45-year-

old Coach Dorrance. Indeed, as Justice Kennedy

made clear in his dissenting opinion in Davis, “[a]

teacher's sexual overtures toward a student are

always inappropriate.” 526 U.S. at 675. And as the

Court held in Gebser, when a student is subjected to

“sexual harassment and abuse by a teacher,” that

“teacher’s conduct is reprehensible and undermines

19

the basic purposes of the educational system.”

Gebser, 524 U.S. at 292.

Thus, contrary to UNC’s statements, the

decision below is not the “realization of Justice

Kennedy’s fears.” Pet. 9. The fears he expressed in

his dissenting opinion in Davis were about cases of

student-on-student harassment, not the teacher-

student harassment at issue here. E.g., Davis, 526

U.S. at 678 (“[A]lmost every child, at some point, has

trouble in school because he or she is being teased by

his or her peers * * * The majority's test for

actionable harassment will, as a result, sweep in

almost all of the more innocuous conduct it

acknowledges as a ubiquitous part of school life.”);

526 U.S. at 672 (emphasis added) (schools may be

exposed to “potentially crushing financial liability for

student conduct that is not prohibited in clear terms

by Title IX”).9

9 UNC also argues that schools have not received adequate

notice that they could be held liable for the type of harassment

alleged by Jennings under Arlington Cent. Sch. Dist. Bd. of

Educ. v. Murphy, __ U.S. _., 126 S. Ct. 2455, 2459 (2006) and

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

(1981). Pet. 18. But recipients of federal funds have long been

on notice that sexual harassment may trigger a claim for

damages where, as alleged here, the educational institution

failed to respond to teacher-student harassment. See Gebser,

supra; Franklin, supra. Moreover, in 1997, the Office for Civil

Rights of the Department of Education (“OCR”), which

administers the Title IX, issued a Sexual Harassment Guidance

that sets forth a recipient’s obligations. Sexual Harassment

Guidance: Harassment of Students by School Employees, Other

Students, or Third Parties, 62 Fed. Reg. 12034 (March 13, 1997).

That Guidance, which was revised in 2001 after this Court

issued its decisions in Gebser and Davis, notifies all recipients

that if they know, or should know, that a hostile environment

20

At bottom, UNC is unhappy because the

Fourth Circuit concluded that Jennings presented

sufficient facts to go forward with her case under this

Court’s stringent requirements. This unhappiness

does not support a grant of certiorari. SUP. CT. R. 10.

Il. THE COURTS REVIEW OF THIS CASE

WOULD BE PREMATURE

Even if UNC had presented legal issues that

were in dispute, this case provides a poor vehicle for

resolving any such issues because of its interlocutory

posture. There is no final ruling on the merits—the

court below found only that UNC was not entitled to

summary judgment because of the material facts in

dispute. See Kyles v. Whitley, 514 U.S. 419, 456

(1995) (Scalia, J., dissenting); Johnson, 268 U.S. at

227.

In remanding the case for trial, the Fourth

Circuit determined that Jennings had created

genuine issues of fact as to whether: 1) Coach

Dorrance’s “degrading and humiliating conduct was

sufficiently severe or pervasive to create a sexually

hostile environment” (Pet. App. 18a); 2) that

exists, they are “responsible for taking immediate effective

action to eliminate the hostile environment and prevent its

recurrence.” They further have the obligation “to remedy the

effects on the victim that. could reasonably have been prevented

had the school responded promptly and effectively.” Revised

Sexual Harassment Guidance: Harassment of Students by

School Employees, Other Students, or Third Parties, 66 Fed.

Reg. 5512 (Jan. 19, 2001). Cf. Davis, 526 U.S. at 647 (noting

that school board associations had warned its members in 1993

that they could be liable for peer sexual harassment).

Accordingly, its conditions and obligations as a recipient of

federal funds were clear. Arlington Cent. Sch. Dist. Bd. of

Educ., 126 S. Ct. at 2459.

21

environment caused Jennings to become so nervous,

anxious, and uncomfortable that it had a negative

impact on her academic and athletic performance

(Pet. App. 20a); and 3) UNC had adequate notice of

the hostile environment (Pet. App. 22a). It is also

clear that UNC plans to raise its version of the facts

in dispute before the district court. E.g. Pet. 5

(noting that “Ehringhaus denie[s] that Jennings ever

mentioned sexual harassment on the women’s soccer

team”); see also Pet. 12, 16-17.

At this time, it is highly speculative as to

whether review by this Court will ever be warranted,

let alone sought, by UNC. The jury may agree with

UNC’s version of the facts and the district court may

find for UNC. Any appeal by Jennings under such

circumstances is highly unpredictable at this point.

Similarly, if judgment were entered for Jennings, and

if UNC decides to appeal and is then unsuccessful,

the nature of any petition for certiorari that UNC

might choose to file would likely he very different.

from the one currently before this Court. It would be

shaped by the actual findings of fact and any lower

court legal conclusions based on those facts.

In sum, as UNC’s fact-dependent arguments

demonstrate, this case is the very sort of case that

should be decided by a jury, and that decision should

not be delayed. In light of the many material

disputes of fact, the interlocutory position of this case

“itself alone furnishe[s] sufficient ground for the

denial” of the petition. Hamilton-Brown Shoe Co. v.

Wolf Bros. & Co., 240 U.S. 251, 258 (1916); see also

Virginia Military Inst. v. United States, 508 U.S. 946

(1993) (Scalia, J., respecting the denial of the

petition).

22

CONCLUSION

For the reasons stated above, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

DANIEL F. KONICEK MARCIA D. GREENBERGER

Konicek & Dillon DINA R. Lassow*

21 W. State St. FATIMA GOSS GRAVES

Geneva, IL 60134 NATIONAL WOMEN’S LAW

(630) 262-9655 CENTER

11 Dupont Circle, N.W.

Suite 800

Washington, D.C. 20036

(202) 588-5180

Counsel for Respondent

August 24, 2007 * Counsel of Record