Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

NOTE:  when i initiated a case against harvard a few years back at the DOE's 
OCR office, the case involved claims regarding harvard's sexual assault 
policies, and whether they violated title ix.  when the case was accepted for 
resolution - then president of harvard, larry summers, said harvard's sexual 
assault policy "had nothing to do with title ix".  this lack of appreciation 
for the legal relationship between title ix and rape is not uncommon.  the 
case below explains nicely why schools can't legitimately maintain such a 
position.  indeed, failure to appreciate the legal relationship enhances the 
risk a school will be subjected to legal proceedings and sanctions under 
OCR/DOE's jurisdiction, as well as providing some evidence of a school's 
"deliberate indifference", which could add to a school's liability exposure 
in real world civil courtrooms.  Wendy Murphy


S.S., Appellant, and P.L., Plaintiff, v. ROC ALEXANDER, De-fendant, and 
UNIVERSITY OF WASHINGTON, Respondent.

No. 58335-2-I

COURT OF APPEALS OF WASHINGTON, DIVISION ONE

2008 Wash. App. LEXIS 333


February 11, 2008, Filed 

 
PRIOR HISTORY:  [*1] 
   Superior Court County: King. Supe-rior Court Cause No: 04-2-04660-2 SEA. 
Date filed in Superior Court: April 13, 2005. Superior Court Judge Sign-ing: 
Judge Bruce W. Hilyer. 

COUNSEL: Counsel for Appellant(s): Re-becca J. Roe, Seattle, WA.

Counsel for Respondent(s): Andrew G. Cooley, Seattle, WA. 

JUDGES: Written by: Judge Dwyer. Con-curred by: Judge Baker, Judge Becker. 

OPINION BY: Dwyer 

OPINION
DWYER, J. -- S.S., a former under-graduate student at the University of 
Washington who was also employed by the UW's athletic department as a 
stu-dent assistant equipment manager for the UW football team, appeals from a 
superior court order granting summary judgment dismissal of her claims 
against the university. S.S. alleges that she was raped in her UW dormitory 
room by Roc Alexander, who at that time was a fellow student and a member of 
the football team. S.S. further al-leges that the actions of UW officials 
following her report of the rape, cou-pled with the trauma of the rape, 
de-prived her of her right to be free from sex discrimination in education 
programs, thus violating Title IX of the Education Amendments of 1972, 20 
U.S.C. ßß 1681-1688, and deprived her of her civil rights, a claim 
cogniza-ble under 42 U.S.C. ß 1983. 1 After an  [*2] exhaustive review of 
relevant de-cisional authority and a thorough re-view of the trial court 
record, we conclude that S.S. put before the su-perior court sufficient 
evidence to warrant the submittal of her Title IX claim to a jury. 
Accordingly, we re-verse the decision of the superior court and remand this 
matter to that court for further proceedings. 

1   In her briefing on appeal, S.S. concedes that the trial court correctly 
dismissed her ß 1983 claim. Thus, we affirm the trial court's ruling on that 
is-sue without further discussion. 

I. 

Facts 
 2 

2   The parties dispute many of the facts at issue in this case. As herein 
discussed, in reviewing the trial court's ruling on sum-mary judgment we view 
all facts and inferences therefrom in the light most favorable to the 
non-moving party, S.S. CR 56(c). Ac-cordingly, the facts iterated herein are 
those most favorable to S.S.'s case that may be found from the evidence 
presented to the trial court. We, of course, express no opinion as to the 
truth of this evidence, a deter-mination that must be preceded by a trial on 
the merits.
In autumn of 2000, 18-year-old S.S. began attending the UW as an 
under-graduate freshman. The summer before classes commenced, she  [*3] moved 
into freshman housing on the UW campus and began working in a highly-coveted 
position as a student assistant equip-ment manager for the UW's varsity 
football team, a position she had also held with her high school team. After 
the conclusion of the football team's regular season, while the team was 
en-gaged in a practice period leading up to the January 1, 2001 Rose Bowl 
game, S.S. became involved in a consensual sexual relationship with Roc 
Alexan-der, another student at the UW and a key player on the football team.
During the course of their rela-tionship, S.S. began to find Alexan-der's 
conduct toward her increasingly demeaning. For example, Alexander would 
express interest in having sex with S.S.'s roommate, open and leave open the 
door of S.S.'s dormitory room while S.S. was undressed after inter-course, 
and wipe off his genitalia af-ter intercourse with items of clothing 
belonging to S.S. Once, after having sex in a dormitory study room, 
Alexan-der ejaculated onto S.S.'s back and then refused to wipe off the 
ejacu-late, knowing that this would require S.S. to either walk back to her 
room in that state or use her clothes to clean herself and then have to wear 
them during her walk to  [*4] her room. On another occasion, Alexander 
"whipped out his penis and stuck it in [S.S.'s] face" in the presence of 
an-other male who was in Alexander's room watching television.
During their last consensual sexual encounter, Alexander raised his hand to 
S.S. in a threatening manner. S.S. ended their relationship as a result of 
that incident.
Days after the relationship ended, Alexander forcibly pushed his way into 
S.S.'s dormitory room, removed her clothing, and had penile-vaginal 
in-tercourse with her against her will and despite her verbal protest.
After the incident, S.S. "felt raped" but did not know "if it was le-gally a 
rape or not" and so did not immediately report the rape to anyone because she 
"just wanted to forget what happened." S.S. continued her work with the 
football team, a posi-tion that would occasionally expose her to contact with 
Alexander, believ-ing that she should not have to sacri-fice her employment 
as a result of Al-exander's actions. However, she avoided social contact with 
Alexander and other football team members for the remaining portion of that 
school year.
The next summer, 2001, S.S. again began working as a student assistant 
equipment manager for the football team  [*5] in preparation for the 
up-coming season. While socializing at a training camp for equipment 
managers, trainers, and coaches, assistant coach Pete Kaligis asked S.S. if 
she had ever been sexually assaulted by a football player. S.S. became 
emotion-ally upset, answered in the affirma-tive, and identified Alexander as 
her assailant. Kaligis did not present or suggest to S.S. any specific 
options for dealing with the incident.
Approximately two weeks later, S.S. was approached by Tony Piro, the 
equipment manager for the football team and S.S.'s supervisor. Piro asked 
S.S. if she would like to speak with the head football coach about the 
in-cident. S.S. answered in the negative. Piro did not present or suggest to 
S.S. any other options for dealing with the incident.
S.S. was subsequently approached by Dave Burton, the UW's associate ath-letic 
director, and Piro's supervisor. 3 Burton brought S.S. into a meeting with 
Marie Tuite, the assistant ath-letic director and Burton's supervi-sor. At 
the meeting, S.S. told Tuite and Burton that Alexander had "vio-lated" her. 
In response to her allega-tion, Tuite and Burton suggested that S.S. transfer 
away from her position with the football team. Burton warned  [*6] S.S. that 
members of the football team would likely harass S.S. should they find out 
about the rape, and Tu-ite stated that, if S.S. stayed on the football team 
and it was revealed that S.S. was raped by a member of the team, "it would 
reflect poorly on the University of Washington's handling of the situation." 
S.S. stated that she did not wish to leave her job with the football program. 

3   The UW's brief describes Bur-ton as an associate athletic di-rector. 
S.S.'s brief describes Burton as the "head trainer." S.S.'s brief also 
describes Bur-ton as an "assistant athletic di-rector for student services."
Tuite offered to arrange a small number of counseling sessions for S.S. and 
told S.S. that some kind of action would occur to redress her complaint. 
Neither Tuite nor Burton presented or suggested any other specific options to 
S.S. for dealing with the incident.
S.S. did not hear anything more from Tuite or any other member of the 
athletic department for several days or weeks. She then returned to Tuite's 
office and expressed an interest in filing a police report. Tuite stated that 
she was working on a solution and specifically told S.S. to wait. Again, 
Tuite did not present or suggest any specific  [*7] options to S.S.
Tuite then contacted her direct su-pervisor, athletic director Barbara 
Hedges, and Helen Remick, the school's designated Title IX compliance 
offi-cer. Remick referred Tuite to Lois Price-Spratlen, the UW's ombudsman. 4 
Hedges, Tuite, and Price-Spratlen then met to determine how to proceed in 
re-gard to S.S.'s allegation. At that meeting, the three women decided that 
Price-Spratlen would conduct a media-tion between S.S., the alleged rape 
victim, and Alexander, her alleged rapist. 

4   The UW's ombudsman is ap-pointed by the president "to as-sist in the 
protection of the rights and interests of individ-ual members of the student 
body, the faculty, and the staff against arbitrary and capricious action or 
lack of appropriate ac-tion by University agencies, the student body, the 
faculty, or the staff." The ombudsman is charged with the authority to 
receive complaints from students with re-gard to "alleged inequities," to 
seek to resolve such inequities, and "recommend to the President redress when 
the Ombudsman be-lieves that an individual has been improperly treated and 
when the Ombudsman has been unable to resolve the matter."
A day or two after that decision was made, Burton again approached  [*8] S.S. 
and brought her to meet with Price-Spratlen. Once S.S. arrived at 
Price-Spratlen's office she was asked to fill out an intake form, upon which 
she identified the reason for her visit as "date rape." During S.S's meeting 
with Price-Spratlen, Price-Spratlen told S.S. about the mediation process 
that had been planned.
Despite the existence of other on-campus and off-campus resources avail-able 
to victims of rape and sexual as-sault, Price-Spratlen did not present or 
suggest to S.S. any options for dealing with the situation other than the 
mediation. 5 Price-Spratlen also told S.S. that she had already met with 
Alexander, and that he "was really sorry and that he'd cried in front of 
[Price-Spratlen]," thereby implying that Alexander would be coop-erative at 
the planned mediation. While S.S. knew "in a sense" that her participation in 
the mediation was voluntary, she also stated: "[I]it was my employer who was 
encouraging this. So, I didn't know what would happen if I didn't go through 
the mediation, what sort of other resolution there would be." 

5   Other options available to UW students who are victims of sex-ual assault 
include referral to the Sexual Assault and Relation-ship Violence 
Information  [*9] Service (SARIS) (an on-campus sexual assault resource 
program operating under the auspices of the University of Washington Of-fice 
of the Vice President for Student Affairs that provides in-formation, 
advocacy, and referral to other sexual assault re-sources), on-campus 
judicial pro-ceedings available through the Office of the Vice President of 
Judicial Affairs, and referral to law enforcement agencies. 
Rachelle White, the director of SARIS, had previously objected to 
Price-Spratlen's mediation of sexual assaults. S.S. avers that this dynamic 
is one reason that she was not referred to SARIS. 
S.S. was provided with a bro-chure that refers to resources available to 
victims of sexual harassment. S.S. did not believe that such resources were 
applica-ble to her situation, however, as she characterized the incident with 
Alexander as rape or sexual assault, rather than sexual har-assment.
S.S. had two subsequent meetings with Price-Spratlen. S.S. gave 
Price-Spratlen detailed accounts of the rape, both verbally and in writing. 
There is no indication in the record, however, that any person from 
Price-Spratlen's office, any person from the athletic administration, or any 
other university official ever  [*10] inves-tigated the circumstances 
surrounding S.S.'s complaint to determine the truth of her allegation.
On the evening of October 1, 2001, a three-hour mediation took place in 
Price-Spratlen's office. S.S., the student-employee alleged rape victim, 
Alexander, the student-football player alleged rapist, Price-Spratlen, the UW 
ombudsman, and Tuite, the assistant athletic director, were all present at 
the mediation. During the mediation, S.S. expressed her desire that 
Alexan-der be suspended from participation in several football games. 
Alexander de-nied S.S.'s rape allegation and threatened that he would leave 
the UW if he were suspended from any football games. Tuite refused to 
consider sus-pending Alexander, stating that the media "would ask why he was 
not play-ing." At the conclusion of the media-tion, Tuite and Price-Spratlen 
decided that Alexander would undergo counsel-ing and perform community 
service.
S.S. was not satisfied with the me-diation's outcome, believing that she was 
not provided the opportunity to discuss most of the issues she wished to 
discuss, and that referring Alexan-der for counseling and community serv-ice 
work was a sanction not commensu-rate with the seriousness of the rape  [*11] 
she had suffered. She further suspected that Tuite and Price-Spratlen were 
biased in Alexander's favor and that Tuite was attempting to protect the 
football program from pub-lic embarrassment.
After the mediation, S.S. ap-proached Price-Spratlen and expressed her 
dissatisfaction with the outcome of the mediation. In response, 
Price-Spratlen asked S.S. if she was "making everything up." Price-Spratlen 
then told S.S. that a different outcome would require another mediation 
ses-sion. Again, Price-Spratlen did not suggest or present any other options 
to S.S. S.S. decided not to undergo an additional mediation, believing that 
Alexander would not admit what he had done in front of UW officials and that 
Price-Spratlen's office was "trying to sweep [her] complaint under the rug 
and avoid negative publicity for the athletic department."
S.S. subsequently spoke to Tuite and again expressed dissatisfaction with the 
outcome of the mediation. Tu-ite did not present or suggest to S.S. any other 
options for dealing with the incident.
Price-Spratlen called S.S. into a meeting a few days after S.S. had 
ex-pressed her dissatisfaction to Price-Spratlen regarding the mediation's 
outcome. At the meeting, Price-Spratlen  [*12] instructed S.S. to fill out 
and sign a form entitled "Client Plan." Price-Spratlen dictated statements 
that she instructed S.S. to write down on the form, including the following: 
"I have spoken with Roc Al-exander and we have discussed all of the issues I 
wanted to cover with him," "His responses to our conversa-tion were 
satisfactory to me," and Marie Tuite "will communicate this info. to Barbara 
Hedges. I consider this matter closed."
Later that year, S.S. again ap-proached Tuite and stated that she had heard 
of a rape perpetrated by Alexan-der against another female student. Tuite 
responded that she had also heard of the alleged rape, but de-clined to take 
any further action, ex-plaining that "they could not punish him for something 
he had already been punished for."
S.S. subsequently approached Burton to express her concern that Alexander was 
not fulfilling the obligations im-posed on him pursuant to the media-tion. 
Burton responded by again sug-gesting that S.S. transfer away from her job 
with the football team. Burton did not suggest or present to S.S. any other 
options for dealing with the in-cident. S.S. chose to retain her stu-dent 
employment with the football pro-gram, explaining that  [*13] she "re-fused 
to let this incident force [her] to leave." 6 

6   In the spring of 2002, S.S. contacted the King County Sexual Assault 
Resource Center and, sub-sequently, the King County Prose-cutor's office to 
determine whether to file a police report regarding the rape. A prosecutor 
informed S.S. that it would be unlikely charges would be filed considering 
the passage of time. Accordingly, S.S. decided not to file a police report.
As a result of the mediation, which S.S. felt had "almost completely 
vin-dicated Roc Alexander," S.S. experi-enced feelings of hopelessness and 
helplessness, found it difficult to concentrate on her studies, and felt 
angry and upset whenever she had con-tact with Roc Alexander throughout the 
course of her sophomore year. S.S. also found it hard to concentrate on her 
studies and applied for and re-ceived a hardship deferment for one class. 
S.S. would speak to her room-mate on an almost-daily basis that year about 
the rape, the mediation, and the difficulty of being in Alexan-der's 
presence. S.S. also sought the assistance of a counselor, who met with her 
for 64 sessions beginning in early 2003. The counselor reported that S.S. 
suffered from anxiety and depression related  [*14] both to be-ing sexually 
assaulted and to the me-diation process, which she felt had trivialized her 
experience. 7 

7   In his declaration, S.S.'s counselor stated, "S. S. pre-sented in 
counseling to deal with issues related to inability to concentrate, intrusive 
thoughts, difficulties sleeping, grinding teeth, and general feelings of 
anxiety and depression related to being sexually assaulted and her experience 
of the mediation proc-ess she went through at the Uni-versity of Washington 
Ombudsman's Office. She reported feeling dis-missed and unheard through the 
process of mediation, stating that the University of Washington Ombudsman's 
Office appeared to take the perpetrator's side and imposed minimal 
consequences so that her experience was trivial-ized. She indicated that the 
questioning of her truthfulness and credibility was devastating . . . . S.S. 
reported that she con-tinued to work at the UW Athletic Department where she 
had contact with the man who assaulted her. She reported feeling angry and 
upset whenever she had contact with him, whether at work or on campus, but 
refused to give up her job. She indicated that to quit her job would mean 
that he had 'won.'" (Emphasis added.)
During 2003,  [*15] S.S. partici-pated in an on-campus rape education 
training session in which the director of the sexual assault and relationship 
violence program (SARIS), an on-campus rape assault referral and advocacy 
group, stated that mediation is an in-appropriate means of dealing with 
sex-ual assault. 8 S.S. subsequently con-tacted the UW's on-campus legal 
serv-ices office, where she learned that another woman, P.L., had raised a 
similar rape allegation against Alex-ander. 9 

8   In response to the UW's mo-tion for summary judgment, S.S. submitted the 
declarations of two additional witnesses who also opined as to the propriety 
of re-solving sexual assault by media-tion. Expert witness Mary Koss, a 
professor at the University of Arizona with joint appointments as Professor 
of Psychology, Pro-fessor of Family and Community Medicine, and Professor of 
Psy-chiatry, stated in her declara-tion that:
 
   Mediations are an inappropriate method of dealing with a sexual assault, 
and particu-larly as conducted in this case. The implica-tion from mediation 
is that S.S. is as much to blame for the situation as Roc Alexander. S.S. was 
never encouraged to contact an advocate. She participated in a process that 
contem-plates people of  [*16] equal resources to speak and be heard, and 
proceeds without the assumption that there is a wronged party and a 
responsible person.

 
Expert witness Connie Best, a Professor of Psychiatry at the Medical 
University of South Caro-lina, responsible for investigat-ing and resolving 
sexual assault and harassment complaints, simi-larly stated in her 
declaration that: "Mediation is an inappro-priate method of handling a 
sex-ual assault claim because it trivializes the complaint by im-plying that 
the victim is par-tially at fault or has misunder-stood the conduct." 
The UW cites to several sources that indicate that some universities offer 
mediation be-tween a victim and his or her al-leged assailant when an 
allega-tion of sexual assault is raised, as one option available amongst 
other options to be selected by the alleged victim. 

9   Rulings on P.L.'s claims against Roc Alexander and the University of 
Washington are not at issue in this appeal.
On February 27, 2004, S.S. filed this suit against the university as-serting 
that the UW's actions violated Title IX of the Education Amendments of 1972. 
The UW moved for summary judgment. The trial court granted the motion.
This appeal followed.

II. 

Preliminary Matters 

Standard  [*17] of review 
"We engage in a de novo review of a ruling granting summary judgment. 
An-derson v. Weslo, Inc., 79 Wn. App. 829, 833, 906 P.2d 336 (1995). Thus, we 
engage in the same inquiry as the trial court." Green v. Normandy Park 
Riviera Section Cmty. Club, Inc., 137 Wn. App. 665, 681, 151 P.3d 1038 
(2007). "Summary judgment is properly granted when the pleadings, 
affida-vits, depositions, and admission on file demonstrate that there is no 
genuine issue of material fact and that the moving party is entitled to 
judgment as a matter of law. CR 56(c); Hutchins v. 1001 Fourth Ave. Assocs., 
116 Wn.2d 217, 220, 802 P.2d 1360 (1991)." Green, 137 Wn. App. at 681. "All 
reasonable inferences from the evidence must be construed in favor of the 
nonmoving party. Lamon v. McDon-nell Douglas Corp., 91 Wn.2d 345, 349, 588 
P.2d 1346 (1979)." Green, 137 Wn. App. at 681.

Federal case authority 
Title IX is an enactment of the United States Congress. The issues presented 
for resolution in this case thus involve our analysis of federal questions. 
In resolving the issues presented, we are mindful that "[t]he statute being a 
federal one, we are, of course, bound by the construction placed upon it by 
the Supreme  [*18] Court of the United States." N. Pac. Ry. Co. v. Longmire, 
104 Wash. 121, 125, 176 P. 150 (1918).
We have greater latitude when ana-lyzing the decisions of the various federal 
appellate courts. "When a Fed-eral statute is constructed by a United States 
court of appeals, such construction is entitled to great weight with us when 
the same statute is involved in a case we are consider-ing, but it is not 
binding on us if we do not deem it logical or sound." Home Ins. Co. of New 
York v. N. Pac. Ry. Co., 18 Wn.2d 798, 808, 140 P.2d 507 (1943). Moreover, 
the geographical lo-cation of the court issuing the opin-ion is of no moment. 
"We have never held that an opinion from the Ninth Circuit is more or less 
persuasive than, for example, the Second, Sixth, Seventh, Eighth, or Tenth 
Circuits." In re Pers. Restraint of Markel, 154 Wn.2d 262, 271 n.4, 111 P.3d 
249 (2005). Thus, we are properly guided by the principles of law announced 
in the most well-reasoned of the deci-sions we have reviewed. We are not, 
however, bound to follow a holding of a lower federal court merely because it 
was announced as such.
The utility of unpublished federal court decisions presents yet another 
vexing concern. In their briefing,  [*19] each party has cited such 
deci-sions and we have reviewed these deci-sions, as well as others. Our own 
rules do not allow for the citation of our own unpublished decisions to us. 
RAP 10.4(h).
In deciding the federal questions presented to us, however, it is sensi-ble 
that we should apply the same body of decisional law as would be applied in a 
federal court charged with decid-ing identical issues. On January 1, 2007, 
the United States Supreme Court adopted Federal Rule of Appellate Pro-cedure 
32.1, which permits citation to unpublished decisions as persuasive authority 
and, by inference, author-izes the circuit courts to reference these 
decisions as authority in their opinions. Fed. R. App. P. 32.1 applies to 
unpublished decisions filed on or after January 1, 2007.
As to unpublished decisions filed prior to that date, each circuit court has 
its own rule. The majority of the circuit courts, however, now allow for the 
unrestricted citation of these de-cisions. The other circuit courts al-low 
for such citations in more limited circumstances.
We will apply the majority approach and cite to unpublished federal court 
decisions where appropriate. However, no issue will be decided solely on the 
basis  [*20] of such authority.

III. 

The Identification and Delineation of the Title IX Private Right of Action 
S.S.'s claim is premised upon "Ti-tle IX of the Education Amendments of 1972 
(Title IX), 86 Stat. 373, as amended, 20 U.S.C. ß 1681 et seq." Davis v. 
Monroe County Bd. of Educ., 526 U.S. 629, 632-33, 119 S. Ct. 1661, 143 L. Ed. 
2d 839 (1999).
 
   Title IX provides, with certain exceptions not at issue here, that "[n]o 
per-son in the United States shall, on the basis of sex, be excluded from 
participa-tion in, be denied the bene-fits of, or be subjected to 
discrimination under any education program or activ-ity receiving Federal 
finan-cial assistance." 20 U.S.C. ß 1681(a).

 
Davis, 526 U.S. at 638.
Although no private right of action is explicitly set forth in the stat-ute, 
the United States Supreme Court
 
   held in Cannon v. Univer-sity of Chicago, 441 U.S. 677 (1979), that Title 
IX is also enforceable through an implied right of action . . . [and] 
subsequently estab-lished in Franklin v. Gwin-nett County Public Schools, 503 
U.S. 60 (1992), that monetary damages are avail-able in the implied private 
action.

 
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281, 118 S. Ct. 1989, 
141 L. Ed. 2d 277 (1998).
In Franklin,  [*21] in addition to clarifying that damages were available as 
a Title IX private action remedy, the Court confirmed that acts of 
teacher-student sexual harassment fell within the ambit of Title IX:
 
   Unquestionably, Title IX placed on the Gwinnett County Public Schools the 
duty not to discriminate on the basis of sex, and "when a supervisor sexually 
har-asses a subordinate because of the subordinate's sex, that supervisor 
'discrimi-nate[s]' on the basis of sex." Meritor Sav. Bank, FSB v. Vinson, 
477 U.S. 57, 64, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). We believe the same 
rule should apply when a teacher sexually harasses and abuses a student.

 
Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76, 117 L. Ed. 2d 
208, 112 S. Ct. 1028 (1992) (al-teration in original).
"Title IX was enacted as an exer-cise of Congress' powers under the Spending 
Clause." 10 Jackson v. Bir-mingham Bd. of Educ., 544 U.S. 167, 181, 125 S. 
Ct. 1497, 161 L. Ed. 2d 361 (2005); Davis, 526 U.S. at 640. "When Congress 
acts pursuant to its spending power, it generates legisla-tion 'much in the 
nature of a con-tract: in return for federal funds, the States agree to 
comply with feder-ally imposed conditions.'" Davis, 526 U.S. at 640  [*22] 
(quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S. 
Ct. 1531, 57 L. Ed. 2d 695 (1981). 

10   U.S. CONST. art. I, ß 8, cl. 1.
Thus, in Franklin, the Court noted that imposing liability for a Title IX 
violation premised upon unintentional conduct was inconsistent with the 
re-quirements of the Spending Clause. Franklin, 503 U.S. at 74. "The point of 
not permitting monetary damages for an unintentional violation is that the 
receiving entity of federal funds lacks notice that it will be liable for a 
monetary award." Franklin, 503 U.S. at 74. In Franklin, however, where the 
allegations were that school officials were aware that a student was being 
sexually harassed by a teacher who also served as a sports coach and that 
school administrators discouraged the student from "pressing charges" against 
the teacher, 503 U.S. at 63-64, the Court saw no such im-pediment. "This 
notice problem does not arise in a case such as this, in which intentional 
discrimination is alleged." Franklin, 503 U.S. at 74-75.
The Supreme Court revisited the re-lationship between Title IX and 
teacher-student sexual harassment six years later. In Gebser, the Court 
de-termined that it would be inconsistent  [*23] with the Spending Clause 
origins of Title IX to impose damages liabil-ity on funding recipients based 
on principles of constructive notice or respondeat superior liability. 
Gebser, 524 U.S. at 285. Instead, the Court concluded "that damages may not 
be re-covered . . . unless an official of the school district who at a 
minimum has authority to institute corrective measures on the district's 
behalf has actual notice of, and is deliberately indifferent to, the 
teacher's miscon-duct." Gebser, 524 U.S. at 277. The Court stated this rule 
more broadly later in the opinion:
 
   [A] damages remedy will not lie under Title IX un-less an official who at 
a minimum has authority to ad-dress the alleged discrimi-nation and to 
initiate cor-rective measures on the re-cipient's behalf has actual knowledge 
of discrimination in the recipient's programs and fails adequately to 
re-spond.

 
Gebser, 524 U.S. at 290.
The following year, the Supreme Court, for the first-and only-time ad-dressed 
the interplay between peer (student-on-student) sexual harassment and Title 
IX. Specifically, in Davis, the Court addressed "the question whether a 
recipient of federal educa-tion funding may be liable for damages under Title 
IX under  [*24] any cir-cumstances for discrimination in the form of 
student-on-student sexual har-assment." Davis, 526 U.S. at 639 (em-phasis 
added). As the Court defined its task: "We must determine whether a 
district's failure to respond to stu-dent-on-student harassment in its 
schools can support a private suit for money damages." Davis, 526 U.S. at 639.
In Davis, the Title IX claim was brought on behalf of a fifth grade girl who 
had been subjected to re-peated acts of sexual harassment by a fifth grade 
male classmate. Despite the girl's protests to three of her teachers, her 
attempt to meet with the school principal (which was rebuffed), and her 
parent's intercession with the principal, no disciplinary action was taken 
against the boy. Instead, the principal asked the girl's mother why her 
daughter "was the only one com-plaining." Davis, 526 U.S. at 635.
Against this factual backdrop, the Supreme Court directly faced the ques-tion 
of whether a Title IX action for damages could be predicated upon acts of 
peer sexual harassment. The Court began its analysis by acknowledging that "a 
recipient of federal funds may be liable in damages under Title IX only for 
its own misconduct." Davis, 526 U.S. at 640. The  [*25] Court noted that the 
student's claim was properly directed.
 
   We disagree with [the school board's] assertion, however, that [the 
plain-tiff] seeks to hold the Board liable for [the boy's] actions instead of 
its own. Here [the plaintiff] at-tempts to hold the Board li-able for its own 
decision to remain idle in the face of known student-on-student harassment in 
its schools.

 
Davis, 526 U.S. at 641 (emphasis added). The basis for the Court's 
dis-agreement was a premise underlying its decision in Gebser:
   [T]he theory in Gebser was that the recipient was directly liable for its 
de-liberate indifference to discrimination. Liability in that case did not 
arise be-cause the "teacher's actions [were] treated" as those of the funding 
recipient; the district was directly liable for its own failure to act.

 
Davis, 526 U.S. at 645-46 (citations omitted).
The Court concluded "that recipi-ents of federal funding may be liable for 
'subject[ing]' their students to discrimination where the recipient is 
deliberately indifferent to known acts of student-on-student sexual 
harass-ment and the harasser is under the school's disciplinary authority." 
Davis, 526 U.S. at 646-47 (alteration in original). The Court noted that  
[*26] "[d]eliberate indifference makes sense as a theory of direct liability 
under Title IX only where the funding recipient has some control over the 
alleged harassment. A recipient cannot be directly liable for its 
indiffer-ence where it lacks the authority to take remedial action." Davis, 
526 U.S. at 644. Thus, "the harassment must take place in a context subject 
to the school district's control." Davis, 526 U.S. at 645.
The Court also discussed the mean-ing of the term "deliberate indiffer-ence" 
in the Title IX context. "[F]unding recipients are deemed 'de-liberately 
indifferent' to acts of student-on-student harassment only where the 
recipient's response to the harassment or lack thereof is clearly 
unreasonable in light of known circum-stances." Davis, 526 U.S. at 648. 
Stated differently, the recipient must "respond to known peer harassment in a 
manner that is not clearly unreason-able." Davis, 526 U.S. at 649.
The Court summed up its decision thusly:
 
   Students are not only protected from discrimina-tion, but also 
specifically shielded from being "ex-cluded from participation in" or "denied 
the benefits of" any "education program or activity receiving Fed-eral 
financial assistance." ß 1681(a). The  [*27] stat-ute makes clear that, 
what-ever else it prohibits, stu-dents must not be denied ac-cess to 
educational benefits and opportunities on the ba-sis of gender. We thus 
con-clude that funding recipi-ents are properly held li-able in damages only 
where they are deliberately indif-ferent to sexual harassment, of which they 
have actual knowledge, that is so se-vere, pervasive, and objec-tively 
offensive that it can be said to deprive the vic-tims of access to the 
educa-tional opportunities or benefits provided by the school.

 
Davis, 526 U.S. at 650. A total denial of access is not required to state a 
claim. Rather, the sexual harassment must be of sufficient severity that it 
"so undermines and detracts from the victims' educational experience, that 
the victim-students are effectively denied equal access to an institu-tion's 
resources and opportunities." Davis, 526 U.S. at 651. The focus is on a 
denial of "the equal access to education that Title IX is designed to 
protect." Davis, 526 U.S. at 652.

IV. 

Formulations of the Elements of a Ti-tle IX Cause of Action for Damages 
Following Davis 
Following the Supreme Court's deci-sion in Davis, the lower federal courts 
commenced announcing various formulations of what  [*28] were termed the 
"elements" of a Title IX cause of action for damages premised upon peer 
sexual harassment. One of the earliest, and most often cited, formulations is 
that such a claim properly exists
 
   when the plaintiff can demonstrate the following elements:
(1) the sexual harassment was so severe, pervasive, and objectively offensive 
that it could be said to de-prive the plaintiff of ac-cess to the educational 
op-portunities or benefits pro-vided by the school,
(2) the funding recipient had actual knowledge of the sexual harassment, and
(3) the funding recipient was deliberately indifferent to the harassment.

 
Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253, 258-59 (6th Cir. 2000) 
(quoting Soper v. Hoben, 195 F.3d 845, 854 (6th Cir. 1999)). In ad-dition, 
the plaintiff must prove that the defendant was a recipient of fed-eral 
education funding. Vance, 231 F.3d at 258.
More recently, a different circuit court announced a slightly different 
formulation:
 
   A plaintiff seeking re-covery for a violation of Title IX based on 
student-on-student harassment must prove four elements. First, the defendant 
must be a Ti-tle IX funding recipient. Second, an "appropriate per-son" must 
have actual knowl-edge of  [*29] the discrimi-nation or harassment the 
plaintiff alleges occurred. "An 'appropriate person" . . . is, at a minimum, 
an offi-cial of the recipient entity with authority to take cor-rective 
action to end the discrimination." Third, a funding recipient is liable for 
student-on-student har-assment only if "the funding recipient acts with 
deliber-ate indifference to known acts of harassment in its programs or 
activities." In considering this element, we analyze the conduct of the 
funding recipient, not the alleged harasser . . . . Fourth, the 
discrimination must be "so severe, perva-sive, and objectively offen-sive 
that it effectively bars the victim's access to an educational opportunity or 
benefit."

 
Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1293 (11th 
Cir. 2007) (citations omitted).
A six-element formulation has also been utilized by various federal courts. 
Pursuant to this formulation, the first element is that the claim be brought 
against a funding recipient. Then,
 
   funding recipients are properly held liable in dam-ages where they are: 
(1) de-liberately indifferent, (2) to sexual harassment, (3) of which they 
have actual knowledge, (4) that is so severe, pervasive, and ob-jectively  
[*30] offensive, (5) that it can be said to deprive the victims of ac-cess to 
the educational op-portunities or benefits pro-vided by the school.

 
Ray v. Antioch Unified Sch. Dist., 107 F. Supp. 2d 1165, 1168 (N.D. Cal. 
2000) (citing Davis, 526 U.S. at 650).
Yet another formulation has been announced by yet another circuit court:
 
   To establish a Title IX claim on the basis of sexual harassment, a 
plaintiff must show that (1) she was a stu-dent at an educational 
in-stitution receiving federal funds, (2) she was subjected to harassment 
based on her sex, (3) the harassment was sufficiently severe or per-vasive 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.

 
Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (en banc). This 
formulation is similar to one previously adopted by the First Cir-cuit Court 
of Appeals. See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 
2002).
What should we make of the exis-tence of these various formulations? Simply 
this: When courts refer to the "elements" of a Title IX claim, they are not 
using the term in the same way as if they were referring to the "ele-ments"  
[*31] of a criminal offense. In the latter circumstance, the ele-ments would 
be set forth in the stat-ute defining the crime enacted by Con-gress or the 
state legislature. Here, the cause of action is implied; Con-gress did not 
set forth the elements. Rather, the various "tests" formulated are based on 
statements in judicial opinions. In the end, unlike the words used in a 
criminal statute, it is not the words used in the various judicial opinions 
that direct our analysis. In-stead, it is the ideas and concerns 
expressed--constitutional and other-wise--that we must take care to fully 
address in resolving the difficult is-sues presented to us.

V. 

The UW is a Recipient of Federal Edu-cational Funding 
The parties agree that the UW is a recipient of federal education funding 
assistance. The UW, therefore, must act in compliance with Title IX.

VI. 

Sexual Harassment is Sex Discrimina-tion and S.S. Established that She 
Suffered Sexual Harassment 
"'[S]exual harassment' is 'dis-crimination' in the school context un-der 
Title IX." Davis, 526 U.S. at 650. "There is no dispute that 
student-on-student sexual assault can constitute sexual harassment for Title 
IX pur-poses." Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438, 444 (D. Conn. 
2006)  [*32] (citing Soper, 195 F.3d at 855 (victim's allegations of rape and 
sex-ual abuse qualify as severe, perva-sive, and objectively offensive sexual 
harassment)).
 
   Rape is unquestionably among the most severe forms of sexual harassment. . 
. . It imports a profoundly se-rious level of abuse into a situation that, by 
law, must remain free of discrimina-tion based on sex. Being raped is, at 
minimum, an act of discrimination based on sex.

 
Little v. Windermere Relocation, Inc., 301 F.3d 958, 967-68 (9th Cir. 2002).
S.S. presented a great deal of evi-dence in support of her claim that she was 
raped by Alexander. The require-ments of this element of her Title IX cause 
of action are met. See Doe v. Green, 298 F. Supp. 2d 1025, 1034 (D. Nev. 
2004) ("[A] complaint of harass-ment need not be undisputed or [ 
]cor-roborated before it can be considered to fairly alert the school 
district of the potential for sexual harass-ment.").

VII. 

Appropriate UW Officials Had Knowledge of the Discrimination 
The Title IX "private right of ac-tion extends only to claims against the 
educational institution itself." Frazier, 276 F.3d at 65. To establish a 
Title IX claim, the plaintiff must show that an appropriate official was 
aware  [*33] of the discrimination and then failed to reasonably respond. "An 
'appropriate person' under ß 1682 is, at a minimum, an official of the 
re-cipient entity with authority to take corrective action to end the 
discrimi-nation." Gebser, 524 U.S. at 290. Whether a particular employee is 
an "appropriate person" is necessarily a fact-based inquiry.
Certain observations are germane to the inquiry, however.
 
   With respect to harass-ment by teachers or staff, application of the 
Supreme Court's requirement of ac-tual notice to an official with authority 
to address the discrimination and to initiate corrective measures results in 
a limited and readily identifiable number of school administrators. However, 
a much broader num-ber of administrators and employees could conceivably 
exercise at least some con-trol over student behavior.

 
Hawkins v. Sarasota County Sch. Bd., 322 F.3d 1279, 1287 (11th Cir. 2003). In 
cases of peer sexual harassment, it remains an "open" question as to whether 
knowledge of the discrimina-tion by a classroom instructor consti-tutes 
knowledge by the funding recipi-ent. Hawkins, 322 F.3d at 1286. In such 
cases, however, knowledge by an assistant principal, Siewert v. Spencer-Owen 
Cmty. Sch. Corp., 497 F. Supp. 2d 942 (S.D. Ind. 2007),  [*34] a Title IX 
coordinator, Vance, 231 F.3d 253, an affirmative action offi-cer or a dean, 
Morse v. Regents of Univ. of Colo., 154 F.3d 1124 (10th Cir. 1998), and a 
university lawyer ("an official responsible for fielding sexual harassment 
complaints"), Jennings, 482 F.3d at 700, all have been deemed sufficient.
In S.S.'s case, several "appropri-ate persons" had knowledge of her 
vic-timization. Initially, we hold that assistant coach Kaligis and equipment 
manager Piro, even though the latter was S.S.'s work supervisor, do not fall 
into this category. Their duties are at a lower level, more akin to a 
classroom instructor. On the other hand, Ombudsman Price-Spratlen and Ti-tle 
IX Coordinator Remick clearly are "appropriate persons." Similarly, Ath-letic 
Director Hedges, who administers a multimillion dollar departmental budget 
and whose span of control in-volves the supervision of hundreds of 
student-athletes and student-employees, is also an "appropriate person." A 
similar conclusion is reached with regard to Assistant Ath-letic Director 
Tuite and Associate Athletic Director Burton. Each holds an administrative 
position involving the exercise of significant discretion and each plainly 
had the authority  [*35] to "institute corrective meas-ures." Gebser, 524 
U.S. at 277. Each was in a position to exercise control over the harasser and 
the context in which the harassment took place. Davis, 526 U.S. at 645.
Thus, S.S. presented sufficient evidence on this element of her cause of 
action to warrant submission of the matter to a jury.

VIII. 

The UW's Response Constituted Deliber-ate Indifference 
A funding recipient acts with de-liberate indifference when it responds to a 
report of a discriminatory act in a manner that is clearly unreasonable in 
light of all of the known circum-stances. Davis, 526 U.S. at 629. 
"[D]eliberate indifference will often be a fact-based question, for which 
bright line rules are ill-suited." Doe v. Derby, 451 F. Supp. 2d at 447. 
In-deed, "the deliberate indifference or clearly unreasonable standard 'does 
not lend itself well to a determina-tion by the Court on summary judg-ment.'" 
Doe v. Green, 298 F. Supp. 2d at 1036 (quoting Hart v. Paint Valley Local 
Sch. Dist., No. 02-01-004, 2002 U.S. Dist. LEXIS 25720, *31 (S.D. Ohio Nov. 
15, 2002).
The point at which notice of the harassment is given to the funding 
re-cipient is "the starting point for measuring the adequacy of its 
re-sponse."  [*36] Doe v. Derby, 451 F. Supp. 2d at 446. Thus, in a Title IX 
action wherein the underlying act of harassment was the rape of a 13-year-old 
female student by a 17-year-old male student, it was held:
 
   While the Board may be liable for the post-assault school situation, there 
is no dispute that the Board did not receive notice of Porto, Jr.'s sexual 
assault of Sally Doe until after the rape took place and there-fore, under 
Davis, the Board cannot be held liable for the sexual assault itself.

 
Doe v. Derby, 451 F. Supp. 2d at 445-46.
An appropriate response, however, is required. "A school that knowingly 
condones sexual harassment between students has misused its power in much the 
same way that an employer does in a coworker sexual harassment case." Doe v. 
Oyster River Coop. Sch. Dist., 992 F. Supp. 467, 475-76 (D.N.H. 1997).
Courts have found funding recipi-ents' responses to notices of sexual 
harassment to be wanting in a variety of circumstances. An institution's 
failure to properly investigate a claim of discrimination is frequently seen 
as an indication of deliberate indifference. See, e.g., Jennings, 482 F.3d at 
694; Vance, 231 F.3d at 259; Murrell v. Sch. Dist. No. 1, 186 F.3d 1238 (10th 
Cir. 1999);  [*37] Bruning v. Carroll Cmty. Sch. Dist., 486 F. Supp. 2d 892 
(N.D. Iowa 2007); Doe v. Oyster River, 992 F. Supp. at 481. Similarly, where 
an institution fails to notify law enforcement of a crimi-nal act, or 
discourages the victim from reporting the act to law enforce-ment, this has 
been seen as an indica-tion of deliberate indifference. See, e.g., Franklin, 
503 U.S. at 64; Vance, 231 F.3d at 262; Murrell, 186 F.3d 1238. A school 
official's act of dis-couraging student victims from inform-ing their parents 
of the harassment, based on fear of lawsuits, is viewed in the same way. Doe 
v. Oyster River, 992 F. Supp. at 481.
The funding recipient's failure to meaningfully and appropriately disci-pline 
the student-harasser is fre-quently seen as an indication of de-liberate 
indifference. See, e.g., Davis, 576 U.S. at 635; Williams, 477 F.3d 1282; 
Vance, 231 F.3d at 262; Murrell, 186 F.3d 1238; Doe v. Derby, 451 F. Supp. 2d 
438; Theno v. Tongan-oxie Unified Sch. Dist. No. 464, 377 F. Supp. 2d 952, 
977 (D. Kan. 2005); Doe v. Oyster River, 992 F. Supp. at 481 ("[W]hether 
[the] 'punishment fit the crime'" is a measure of an appro-priate response.); 
Siewert v. Spencer-Owen, 497 F. Supp. 2d 942 (S.D. Ind. 2007).
The  [*38] funding recipient's minimization of the discriminatory im-port of 
sexual harassment or assault has also been seen as indicative of deliberate 
indifference. See, e.g., Jennings, 482 F.3d at 700 (university counsel told 
victim that "she should work out her problems directly with [her harasser]"); 
Siewert, 497 F. Supp. 2d at 954 (victim told "some threats aren't as serious 
as others"); Kelly v. Yale Univ., No. 3:01-CV-1591, 2003 U.S. Dist. LEXIS 
4543 at *3 (D. Conn. Mar. 26, 2003) (university dean publicly announced that 
sexual assault endured by student-victim "was not le-gal rape" in 
Connecticut). Where the response of the funding recipient has a negative 
impact on the victim and not on the abuser, this has been treated as an 
indication of deliberate indifference. Doe v. Dallas Indep. Sch. Dist., No. 
3:01-CV-1092, 2002 U.S. Dist. LEXIS 13014 (N.D. Tex. July 16, 2002) (victim 
removed from class; abuser allowed to remain). Moreover, treating the abuser 
and the abused equally has been seen as being delib-erately indifferent to 
the discrimina-tory acts. Siewert, 497 F. Supp. 2d at 954 (After a complaint 
followed by no disciplinary action, the harasser in-stigated an altercation 
at school. The  [*39] school disciplined the harasser and the victim equally. 
This demon-strated deliberate indifference to the harassment.). It 
constitutes a delib-erately indifferent response if the harasser and other 
students are left to believe that the harassing behavior has the "tacit 
approval" of the fund-ing recipient. Siewert, 497 F. Supp. 2d at 954.
Conducting an investigation and then doing nothing more may also con-stitute 
deliberate indifference.
 
   If this Court were to ac-cept [the school district's] argument, a school 
district could satisfy its obligation where a student has been raped by 
merely investigat-ing and absolutely nothing more. Such minimalist re-sponse 
is not within the contemplation of a reason-able response.

 
Vance, 231 F.3d at 260. This view of the law has been adhered to 
consis-tently.
   Permitting a school dis-trict to avoid liability on the basis of some 
minimalist and ineffective response to discrimination would be in-consistent 
with the Supreme Court's ruling that re-sponses which are "clearly 
unreasonable" constitute de-liberate indifference.

 
Doe v. Green, 298 F. Supp. 2d at 1036 n.4.
The continuing use of "ineffective methods to no acknowledged avail" also 
constitutes deliberate indifference.  [*40] Vance, 231 F.3d at 262; Canty v. 
Old Rochester Reg'l Sch. Dist., 66 F. Supp. 2d 114 (D. Mass. 1999). Thus, 
"[w]here a school district has actual knowledge that its efforts to 
remedi-ate are ineffective, and it continues to use those same methods to no 
avail, such district has failed to act rea-sonably in light of the known 
circum-stances." Vance, 231 F.3d at 261. Ac-cord Theno, 377 F. Supp. 2d at 
977 (talking to the harassers on several occasions but then taking no other 
ac-tion constituted deliberate indiffer-ence). Where the lack of remedial 
ac-tion results in the student-victim "believing another complaint to the 
school would have been a futile exer-cise," Doe v. Oyster River, 992 F. Supp. 
at 486, a jury question on the existence of deliberate indifference is 
presented.
S.S. has provided ample evidence to raise a jury question on the issue of the 
UW's deliberate indifference. A lack of appropriate discipline of her rapist, 
minimizing the effects of her rape, treating the victim equally with the 
rapist in the mediation process, allowing her rapist's denial of wrong-doing 
to be accepted at face value at the mediation, keeping the matter out of the 
public eye to avoid negative publicity, offering  [*41] only a re-peated 
mediation as an alternative re-medial measure, discouraging S.S. from filing 
a police report, top adminis-trators not notifying the UW's own po-lice force 
of the report of a violent sex crime, repeatedly suggesting that S.S. leave 
her job with the football program while her rapist would remain, wearing S.S. 
down until she believed that further complaints would be fu-tile, a decision 
not to investigate--or cause to be investigated--her rape report, and--in the 
absence of a proper investigation--questioning her truthfulness when she 
expressed dis-satisfaction with the results of the mediation are all claims 
supported by evidence in this case. Each of those claims finds support in the 
federal case law as an indication of deliber-ate indifference. At a minimum, 
a jury question is presented.
Without any citation to Title IX case authority, the UW in its briefing 
claims that S.S. has failed to offer proof that it caused her to suffer 
discrimination. This contention demon-strates a lack of understanding of 
causation in the Title IX context. As the Supreme Court explained:
 
   These factors combine to limit a recipient's damages liability to 
circumstances wherein the recipient exer-cises  [*42] substantial control 
over both the ha-rasser and the context in which the known harassment occurs. 
Only then can the recipient be said to "ex-pose" its students to har-assment 
or "cause" them to undergo it "under" the re-cipient's programs.

 
Davis, 526 U.S. at 645.
By submitting evidence that "appro-priate persons," who had control over her 
rapist and the campus environment in which the rape occurred, had actual 
knowledge of the rape and responded in a deliberately indifferent manner, 
S.S. has submitted sufficient proof of causation in a Title IX cause of 
ac-tion to warrant submission of the claim to a jury.

IX. 

The Discrimination Alleged by S.S. was Severe, Pervasive, and Objectively 
Of-fensive 
The next question is whether S.S. has presented sufficient evidence to raise 
a jury question as to whether she was subjected to sex discrimina-tion that 
was severe, pervasive, and objectively offensive. We conclude that she has.
There is no question that rape con-stitutes a severe form of sexual 
har-assment and, accordingly, also consti-tutes a severe form of sex 
discrimina-tion. There is also no question that it is "objectively offensive" 
to be raped. In addition, we note that "[t]he effect of such abusive conduct  
[*43] on a victim does not necessarily end with a cessation of the abusive 
conduct, particularly if the victim and the abuser retain the same or similar 
roles in an educational insti-tution." Wills v. Brown Univ., 184 F.3d 20, 
46-47 (1st Cir. 1999).
To correctly analyze the suffi-ciency of the evidence to meet the 
re-quirements of this "element," however, we must first correctly describe 
S.S.'s claim. She does not claim that the university owes her damages for the 
rape committed by Alexander. To the contrary, her contention is that the 
institution should be responsible for that amount of the deleterious ef-fects 
of the rape's aftermath that re-sulted from actions of the university. She 
urges that, by enacting Title IX, Congress did not intend only to elimi-nate 
acts of sex discrimination in educational settings but, rather, in-tended 
also to require the ameliora-tion and minimization of the effects of such 
discriminatory acts when they do occur. In this regard, S.S. bases her claim 
on the allegation that the UW did not ameliorate the discrimina-tion she 
suffered or seek to remedy its effects but, rather, exacerbated the damage 
done by the discrimination and enhanced its discriminatory im-pact. This,  
[*44] she claims, is the type of circumstance that Title IX was designed to 
eliminate from education programs. We agree.
The UW maintains that S.S. does not state a proper Title IX claim because she 
was raped only once by Alexander and a single instance of sexual har-assment 
cannot serve as the predicate for a Title IX cause of action. In making this 
assertion, the university relies on statements made by the Su-preme Court in 
Davis. In Davis, the Court, in dicta, noted that "[a]lthough, in theory, a 
single in-stance of sufficiently severe one-on-one peer harassment could be" 
suffi-cient to support a claim, 526 U.S. at 652, "we think it unlikely that 
Con-gress would have thought such behavior sufficient," 526 U.S. at 652-53, 
given the "practical realities of responding to student behavior, realities 
that Congress could not have meant to be ignored." 526 U.S. at 653. Thus, the 
university contends, because S.S. was raped only once, she does not have a 
cognizable Title IX claim against it.
We disagree. After reviewing the factual differences between this case and 
the Davis case, after considering the intent of Congress in enacting Ti-tle 
IX, and given the existence of federal decisions rejecting the  [*45] very 
argument now made by the univer-sity, we hold that the private right of 
action implied in Title IX applies to claims such as that brought by S.S.
"Title IX is not a civility code." Jennings, 482 F.3d at 698. This truism was 
of great concern to the Supreme Court in Davis, a case involving sex-ual 
harassment among fifth grade stu-dents. In issuing its decision, the Court 
took great pains to make clear that it did not intend to federalize every 
instance of playground taunting or elementary classroom teasing. Thus, the 
Court made clear that "[d]amages are not available for simple acts of teasing 
and name-calling among school children . . . even where these com-ments 
target differences in gender." Davis, 526 U.S. at 652. In making the comments 
relied on by the university, the Court also apparently intended that a single 
instance of somewhat more severely harassing behavior not be federalized.
However, the circumstances here are a far cry from those in Davis. No fifth 
graders are principals in this dispute. This claim involves the forcible 
rape, by means of penile-vaginal penetration, of a teenage col-lege freshman 
by an adult football player. The act of sex discrimination here alleged was  
[*46] violent, criminal, and severe. It bears no re-semblance to the fifth 
grade play-ground actions the possible federali-zation of which so troubled 
the Davis court.
Moreover, it must be kept in mind that S.S. seeks damages resulting only from 
the university's own actions. The concern in Davis, that a single act of 
inappropriate elementary school play-ground mischief might result in dam-ages 
liability to a public school, is not present here. S.S. did not have to be 
raped twice before the university was required to appropriately respond to 
her requests for remediation and assistance. In the Title IX context, there 
is no "one free rape" rule.
In Davis, the Court cited the im-portance of congressional intent in reaching 
its decision. We are confi-dent that our present holding is en-tirely 
consistent with the intent of Congress when it enacted Title IX.
In our examination of the congres-sional intent in enacting Title IX, we 
first observe the obvious.
 
   It is always difficult to determine Congress' intent when dealing with the 
ele-ments of an implied cause of action, because the text and legislative 
history of a statute that does not ex-pressly create a cause of action is 
typically silent as to the parameters  [*47] of the action.

 
Hawkins v. Sarasota County Sch. Bd., 322 F.3d 1279, 1287 (11th Cir. 2003).
"It is Congress' intention in 1972 . . . that is of significance in 
in-terpreting Title IX." N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 529, 
102 S. Ct. 1912, 72 L. Ed. 2d 299 (1982). We must "'attempt to infer how the 
1972 Congress would have addressed the issue had the . . . action been 
in-cluded as an express provision in the statute.'" Gebser, 524 U.S. at 285 
(alteration in original) (quoting Cent. Bank of Denver, N.A. v. First 
Interstate Bank of Denver, N.A., 511 U.S. 164, 178, 128 L. Ed. 2d 119, 114 S. 
Ct. 1439 (1994)). This
 
   endeavor inherently en-tails a degree of specula-tion, since it addresses 
an issue on which Congress has not specifically spoken. To guide the 
analysis, we gen-erally examine the relevant statute to ensure that we do not 
fashion the scope of an implied right in a manner at odds with the statutory 
structure and purpose.

 
Gebser, 524 U.S. at 284 (citations omitted).
In determining intent, we first recognize that "[t]he statute is broadly 
worded." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 179, 125 S. Ct. 
1497, 161 L. Ed. 2d 361 (2005). The Supreme Court has previously de-termined  
[*48] that "[t]here is no doubt that 'if we are to give [Title IX] the scope 
that its origins dic-tate, we must accord it a sweep as broad as its 
language.'" North Haven Bd. of Educ., 456 U.S. at 521 (quoting United States 
v. Price, 383 U.S. 787, 801, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966)). 
Moreover, "'[d]iscrimination' is a term that covers a wide range of 
intentional unequal treatment; by us-ing such a broad term, Congress gave the 
statute a broad reach." Jackson, 544 U.S. at 175. "Because Congress did not 
list any specific discriminatory practices when it wrote Title IX, its 
failure to mention one such practice does not tell us anything about whether 
it intended that practice to be covered." Jackson, 544 U.S. at 175.
The Supreme Court has repeatedly noted "Title IX's 'unmistakable focus on the 
benefited class.'" Davis, 526 U.S. at 639 (quoting Cannon v. Univer-sity of 
Chicago, 441 U.S. 677, 691, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1977)). "Title 
IX's beneficiaries plainly in-clude all those who are subjected to 
'discrimination' 'on the basis of sex.'" Jackson, 544 U.S. at 180 n.3 
(quoting 20 U.S.C. ß1681(a)).
The goals of the legislative propo-nents of Title IX are clear. "Congress 
enacted Title  [*49] IX not only to prevent the use of federal dollars to 
support discriminatory practices, but also 'to provide individual citizens 
effective protection against those practices.'" Jackson, 544 U.S. at 180 
(quoting Cannon, 441 U.S. at 704)). Accord Gebser, 524 U.S. at 286. 
"Con-gress surely did not intend for fed-eral moneys to be expended to 
support the intentional actions it sought by statute to proscribe." Franklin, 
503 U.S. at 75.
S.S. claims that Title IX is in-tended to accomplish both the prohibi-tion of 
discriminatory acts and the elimination of the effects of such 
discrimination. The UW, on the other hand, essentially argues that Title IX's 
focus is only on acts of dis-crimination, not on its effects. We find the 
university's suggested multi-ple-discriminatory act requirement at odds with 
the intent of Congress in enacting Title IX. The effects of dis-crimination 
upon those in the pro-tected class was clearly of concern to the 1972 
Congress. Congress clearly desired to eliminate or minimize those effects. 
Consequently, the UW may be held liable for exacerbating those ef-fects to 
S.S.'s detriment.
We find support for this conclusion in the federal case law. Several courts 
have held that a  [*50] single act of severe sexual harassment can support a 
Title IX cause of action. As held by the Sixth Circuit Court of Ap-peals, one 
incident can satisfy a claim. Vance, 231 F.3d at 259, 259 n.4 (quoting Doe v. 
School Admin. Dist. No. 19, 66 F. Supp. 2d 57, 62 (D. Me. 1999) ("Within the 
context of Title IX, a student's claim of hostile envi-ronment can arise from 
a single inci-dent.")). Accord Dallas Ind. Sch. Dist., 2002 LEXIS 13014 
(single act of manual penetration of student-victim's vagina coupled with 
school administra-tors' actions which exacerbated the discriminatory effects 
of the abuse).
A lengthy analysis of this question appears in Doe v. Derby, 451 F. Supp. 2d 
438. In that case, a 13-year-old female student who was about to enter the 
eighth grade was sexually as-saulted during summer recess, and off school 
grounds, by a 17-year-old male high school student. The middle school and the 
high school held classes in the same building. There was a single incident of 
sexual assault. There was no evidence that the boy ever person-ally harassed 
the girl after the inci-dent. He was suspended from school for ten days. 
After her eighth-grade year, the girl transferred to another school.
The court  [*51] held that the ele-ments of a Title IX cause of action were 
stated.
 
   The evidence shows that Porto, Jr. [the abuser] was permitted to continue 
at-tending school in the same building as Sally Doe [the victim] after the 
assault, leaving open the constant potential for interactions between them, 
and indeed Sally Doe states in her af-fidavit that she saw Porto, Jr. 
frequently during the school year. . . . . [T]his evidence could support a 
reasonable jury conclusion that these circumstances rose to the level of 
"se-vere, pervasive, and objec-tively offensive" under Davis.

 
Doe v. Derby, 451 F. Supp. 2d at 444. The court then elaborated upon its 
holding, discussing the facts of its case in conjunction with the facts of 
another case, also in which a single act of rape had been held sufficient to 
support a Title IX cause of action.
   In Kelly, the plaintiff, a sexual assault victim, continued to attend Yale 
Di-vinity School with her at-tacker. Although she had no interactions with, 
and was not harassed by, her at-tacker after the assault, his "presence on 
campus and the accompanying risk that she might encounter him cre-ated a 
hostile environment that effectively deprived her of the educational 
op-portunities  [*52] or bene-fits provided by the school." Kelly, 2003 U.S. 
Dist. LEXIS 4543, 2003 WL 1563424, at *3. The court held that a reasonable 
jury could find that "following the assault, [the at-tacker's] presence on 
campus was harassing because it ex-posed her to the possibility of an 
encounter with him." Id. In similar fashion, Sally Doe was constantly 
ex-posed to a potential encoun-ter with her assailant be-cause Derby High 
School and Middle School were housed in the same building such that students 
from each could readily come in contact with each other. In fact, Sally Doe's 
affidavit states that she saw Porto, Jr. many times during the school year 
and that the experience of seeing him "was very upset-ting" and made the 
"school year very hard." Thus, even absent actual post-assault harassment by 
Porto, Jr., the fact that he and plain-tiff attended school to-gether could 
be found to constitute pervasive, se-vere, and objectively offen-sive 
harassment.

 
Doe v. Derby, 451 F. Supp. 2d at 444. See also Morse v. Univ. of Colo., 154 
F.2d 1124 (10th Cir. 1998) (combina-tion of acts of student-teacher that 
exacerbate the effects of peer harass-ment and the peer harassment supported 
a claim).
In summary, as a result  [*53] of our review of congressional intent and as a 
result of our examination of fed-eral decisional authority, we conclude that 
the single act of rape committed upon S.S. is sufficient to support her 
claim. In so holding, we emphasize that S.S. may not recover damages for the 
rape itself but, rather, may only recover based on injury done to her by 
actions of the university after she reported the rape.

X. 

The Discrimination Deprived S.S. of Equal Access to Educational 
Opportuni-ties or Benefits 
The university next contends that S.S. did not establish that she suf-fered 
cognizable injury and that, ac-cordingly, her claim was properly dis-missed. 
In making this argument, the university contends that inasmuch as S.S. 
remained enrolled in school and continued with her work in the ath-letic 
department she has not proved that she was "effectively barred" from 
educational opportunities as required by Davis. We disagree.
Under the rule announced in Davis, a total bar or exclusion from educa-tion 
opportunities need not be demon-strated. It is the denial of "equal access to 
an institution's resources and opportunities" that is the key. Ray v. Antioch 
Unified Sch. Dist., 107 F. Supp. 2d 1165, 1168 (N.D. Cal. 2000)  [*54] 
(quoting Davis, 526 U.S. at 650). Thus, where the student-plaintiff submitted 
proof that sexual harassment caused her fear and emo-tional distress that had 
"concrete, negative effects on [the student's] ability to receive an 
education," Ray, 107 F. Supp. 2d at 1171, she had been denied "equal access" 
to that educa-tion.
Other courts have expressed a simi-lar view. In the First Circuit, it has 
been held that sufficient evidence of injury has been shown if there is proof 
that the effects of sexual har-assment "compromise the victim's . . . 
educational opportunities." Wills, 184 F.3d at 26. This standard was later 
applied by the same court in Frazier, 276 F.3d at 65 (The measure of 
cogni-zable injury is whether the effects of the sexual harassment 
"compromise or interfere with educational opportuni-ties normally available 
to stu-dents.").
In the Second Circuit, a similar rule has been announced. Where sexual 
harassment of a student "created a disparately hostile educational 
envi-ronment relative to her peers, the above-described harassment could be 
construed as depriving [the student-victim] of the benefits and educa-tional 
opportunities available at SUNY New Paltz." Hayut v. State Univ. of N.Y., 352 
F.3d 733, 750 (2d Cir. 2003).  [*55] Thus, access to educa-tional benefits is 
not "equally avail-able" if the educational environment is "disparately 
hostile."
The concern of equality in access to educational benefits is at the heart of 
Title IX. Indeed, "one of the primary purposes behind the Act [is] to ensure 
equal access." Doe v. Oyster River, 992 F. Supp. at 475. Not just a total 
bar, but the denial of equal ac-cess is the concern.
 
   [A] sexually harassed student may likewise be cut off on the basis of sex 
from the privileges attending the full enjoyment of an educa-tion. Since a 
good education leads to access to jobs, discrimination in education "is 
doubly destructive for women." See 118 Cong. Rec. at 5804 (1972) (Comments of 
Sen. Bayh, sponsor of Title IX). 11

 
Doe v. Oyster River, 992 F. Supp. at 475. 

11   "Senator Bayh's remarks, as those of the sponsor of the lan-guage 
ultimately enacted, are an authoritative guide to the stat-ute's 
construction." North Haven Bd. of Educ., 456 U.S. at 526-27. Indeed, "Senator 
Bayh's state-ments . . . are the only authori-tative indications of 
congres-sional intent[.]" North Haven Bd. of Educ., 456 U.S. at 527. 
The Fourth Circuit recently ad-dressed the question of the predicate showing 
of injury  [*56] necessary to state a cognizable Title IX claim. In Jennings, 
the court observed:
 
   Specifically, Title IX states that a covered insti-tution 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 activ-ity." 20 U.S.C. ß1681(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 
vic-tim's] ability" to partici-pate in a program or activ-ity. See Davis, 526 
U.S. at 654.

 
Jennings, 482 F.3d at 699 (alteration in original). The court further 
ex-plained:
   Davisexplains that a sex-ual harassment victim "can be said" to have been 
de-prived of access to educa-tional opportunities or benefits in several 
circum-stances, including when the harassment (1) results in the physical 
exclusion of the victim from an education program or activity; (2) "so 
undermines and detracts from the victim['s] educational experience" as to 
"effec-tively den[y her] equal ac-cess to an institution's re-sources and 
opportunities"; or (3) has "a concrete, negative effect on [the vic-tim's]  
[*57] ability" to participate in an educa-tional program or activity. [Davis, 
526 U.S.] at 650-51, 654 n.2. These alternative ways of showing deprivation 
or harm are rooted in the statute.

 
Jennings, 482 F.3d at 699. An effect is "concrete" if it is "real," 
"nega-tive, and substantial." Jennings, 482 F.3d at 699.
The court in Jennings also rejected the notion that the student should lose 
her cause of action as a result of being resilient. Of the student-victim's 
attempts to work through her difficulties, thus, in effect, miti-gating her 
damages, the court noted that, "[i]f anything, it shows how hard Jennings was 
trying, and what she believed she was achieving, in spite of the hostile 
environment." Jennings, 482 F.3d at 700.
Two concurring judges agreed. They noted that the sexual harassment Jennings 
endured from her college soc-cer coach "ma[de] it much more diffi-cult for 
her to develop and achieve as a student-athlete." Jennings, 482 F.3d at 705 
(Gregory, J., concurring). The concurring judges criticized the posi-tion 
advocated by the dissent, which mirrors the UW's present claim.
 
   In essence, the dissent concludes that because Jennings did her best to 
avoid [the coach-harasser] and his abuse, but  [*58] still made the most of 
her time on the team and as a student at UNC, she has for-feited her cause of 
action. This implication turns Title IX on its head.

 
Jennings, 482 F.3d at 707 (Gregory, J. concurring). Jennings, it was 
con-cluded, had been "denied . . . equal access to the benefits of team 
member-ship." Jennings, 482 F.3d at 707 (Gregory, J. concurring).
S.S. submitted to the trial court evidence of her distress, anxiety, and 
emotional hurt. She presented evidence that this interfered with her studies. 
She provided evidence that the enjoy-ment of her student employment 
oppor-tunities was compromised by the ac-tions of university officials, 
includ-ing the repeated suggestion that she leave her job to avoid further 
diffi-culties. In short, she presented evi-dence that the university's 
handling of her rape report resulted in her be-ing denied the full benefit of 
her educational experience both in the classroom and in the athletic 
depart-ment. At a minimum, a jury question is presented as to whether these 
effects are "real," "negative," and "substan-tial." If the jury so finds, it 
will be entitled to find that S.S. was de-nied the equality of access that 
Title IX was enacted to afford.
S.S. provided  [*59] sufficient evidence of cognizable injury to war-rant 
submitting her claim to a jury.

XI. 

Decision 
The trial court's dismissal of S.S.'s claim brought pursuant to 42 U.S.C. ß 
1983 is affirmed. The trial court's dismissal of S.S.'s claim brought 
pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. ßß 
1681-1688, is reversed. The cause is remanded to the superior court for 
further proceedings consis-tent with this opinion.
Affirmed in part, reversed in part, and remanded to the superior court.
Dwyer, J.
WE CONCUR:
Baker, J
Becker, J. 


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