Isabelle Arana v. Board of Regents of the University of Wisconsin
Isabelle Arana v. Board of Regents of the University of Wisconsin
Opinion
In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2454 ISABELLE ARANA, Plaintiff-Appellant, v.
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Appellee. ____________________
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:20-cv-00856-wmc — William M. Conley, Judge. ____________________
ARGUED FEBRUARY 14, 2023 — DECIDED JULY 11, 2025 ____________________
Before ROVNER, KIRSCH, and JACKSON-AKIWUMI, Circuit Judges.
JACKSON-AKIWUMI, Circuit Judge. This Title IX action arose from the University of Wisconsin-Madison’s decision to read- mit a star football player after expelling him for sexually as- saulting two female students. The player submitted a petition for readmission shortly after a state court jury, deliberating a different charge using a different standard of proof, found 2 No. 22-2454
him not guilty of sexually assaulting the women. According to the petition for readmission—submitted mere weeks be- fore the football season began—evidence developed at the state court trial cast doubt on the University’s conclusion, af- ter its own investigation, that the player committed sexual as- sault as defined by the student code of conduct. Under pres- sure from influential parties, and without hearing from the survivors of the alleged assault, the University Chancellor granted the petition. One of the women, Isabelle Arana, responded by filing this suit. She alleges the school was deliberately indifferent to the sexual harassment she suffered. The district court dismissed the case after granting the University’s motion for summary judgment. The court acknowledged a jury could conclude the University acted with deliberate indifference if it made its re- admission decision in response to public pressure. But the court rejected Arana’s argument that the harassment she suf- fered was actionable under Title IX because it deprived her of access to educational opportunities. We find, however, that there is a genuine dispute as to whether the harassment Arana experienced was so severe and whether the University’s re- sponse was so clearly unreasonable that it had a detrimental effect on Arana’s education. A reasonable jury could resolve these disputes in Arana’s favor and find for her on her delib- erate indifference claim. We therefore reverse the grant of summary judgment and remand the case for further proceed- ings. I Isabelle Arana enrolled at the University of Wisconsin’s main campus in Madison, Wisconsin, in 2017. She abruptly interrupted her studies and returned home to Chicago in No. 22-2454 3
April of the following year. A few days later, Arana’s father informed the University that Arana had been sexually har- assed and assaulted by two members of the University’s foot- ball team, Quintez Cephus and Danny Davis III, the day be- fore returning home. The following day, the University’s Title IX coordinator, Lauren Hasselbacher, emailed Arana. She informed Arana the University had insufficient information to initiate an in- vestigation and offered to speak with Arana to proceed. Within days, the Madison Police Department informed the school that Cephus was the subject of a criminal investigation. Cephus was then suspended from the football team. Around that time, Arana expressed interest in a no-contact order and the school issued one against both players. The directive ap- plied indefinitely, and violations could result in disciplinary charges. The University was initially proactive in enforcing the no- contact order. Hasselbacher herself emailed the Dean’s Office to check whether Arana shared a class with either Cephus or Davis. Hasselbacher learned that Arana and Davis were in the same music class and worked with other administrators to separate the two. Another woman (“Complainant 1”) later contacted the University, alleging that she too was assaulted by Cephus the same night as Arana. She provided a written account to Has- selbacher alleging that Cephus had sexually assaulted her and Arana after they refused his advances. According to Com- plainant 1, the two women had been drinking heavily before accompanying Cephus to his apartment. Complainant 1 said that Arana appeared unconscious during the interaction due 4 No. 22-2454
to her intoxication and that Cephus enlisted Davis to take re- vealing photos of the two women without their consent. Hasselbacher determined she had enough information to charge both Cephus and Davis with assaulting and harassing the women, and a formal disciplinary inquiry commenced. The investigation spanned four months, during which all par- ties were offered an opportunity to provide statements, pre- sent evidence, and meet with investigators accompanied by representatives of their choosing. The investigation culmi- nated in a report detailing the evidence collected. An assistant dean concluded that the evidence showed, more likely than not, that Cephus had committed Second De- gree Sexual Assault, Third Degree Sexual Assault, and Sexual Harassment, as defined by University policy. 1 The assistant dean recommended Cephus be expelled and set the matter for consideration before a “Nonacademic Misconduct Hearing Committee.” The parties were provided with all available ev- idence to review, and they and their representatives were af- forded the opportunity to appear before the committee. On the morning of the meeting, Cephus approached Arana in an attempt, according to Arana’s attorney, to intim- idate her. The attorney stepped between the two to defuse the
1 “Second Degree Sexual Assault” encompassed sexual contact or in-
tercourse with a person incapable of providing consent due to intoxication if the respondent had actual knowledge of the inability to consent. UNIVERSITY OF WISCONSIN-MADISON, POL’Y ON SEXUAL HARASSMENT & SEXUAL VIOLENCE, at 14 (2018). “Third Degree Sexual Assault” included “Sexual intercourse with a person without … consent.” Id. at 15. And “Sexual Harassment” consisted of “[u]nwelcome sexual advances, re- quests for sexual favors, and other verbal or physical conduct of a sexual nature [that] … creates a hostile environment.” Id. at 14. No. 22-2454 5
situation and reported the incident as a violation of the no- contact order. 2 A university official reminded Cephus of the no-contact order and warned that he must leave the area when coming into contact with Arana. The disciplinary committee found that, by a preponder- ance of the evidence, Cephus was responsible for two of the three charges: Third Degree Sexual Assault and Sexual Har- assment. Not only was Arana too intoxicated to consent to sexual intercourse, the committee ruled, she had also affirm- atively denied permission. The committee further found that Cephus sexually harassed Arana by creating, intentionally or not, a hostile learning environment. The committee, however, reversed the Second Degree Sexual Assault charge after con- cluding the evidence was insufficient to support a finding that Cephus knew the level of Arana’s intoxication. Cephus was nonetheless expelled based on the other two charges, a deci- sion he appealed to the University’s Chancellor, Rebecca Blank, and then to the Board of Regents. Both appeals were denied, and the investigation closed after more than twelve months. The assistant dean ultimately found Davis not responsible for sexual harassment and neither Davis nor Cephus respon- sible for taking nude photographs of Arana. While Davis ad- mitted to taking photographs of the women at Cephus’s
2 The University argues that this is hearsay because an assistant dis-
trict attorney’s deposition testimony described the event as conveyed to him by Arana’s attorney. We of course may not consider inadmissible hearsay. Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016). But the record includes Arana’s and her attorney’s sworn accounts of the event. So, we need not rely on the purported hearsay. 6 No. 22-2454
direction, there was not sufficient evidence to establish that the women were naked in the photos. After the school’s Title IX investigation, Cephus’s criminal case advanced to trial in the Dane County Circuit Court. Ce- phus faced a single charge of Second Degree Sexual Assault. WIS. STAT. ANN. § 940.225(2)(cm). Like the University’s policy on Second Degree Sexual Assault, to be convicted of the Wis- consin equivalent, the jury had to find that Arana was “under the influence of an intoxicant to a degree which renders that person incapable of giving consent” and that Cephus had “ac- tual knowledge” of Arana’s inability to consent. Id. But unlike the University decisionmakers, who only had to decide whether Cephus was guilty by a preponderance of the evi- dence, the jury had to find Cephus guilty beyond a reasonable doubt. In essence, the jury was asked to convict Cephus of a charge the school had already found not supported by the ev- idence under the school’s less stringent evidentiary standard. The jury did not convict. Following the acquittal, one juror said that surveillance videos shown at trial—purportedly showing that the women were not outwardly displaying signs of severe intoxication—were “important” because they showed “how the victims looked in [Cephus’s] eyes.” Once acquitted in state court, Cephus filed a petition for readmission with Chancellor Blank. Although the initial Title IX investigation had spanned months, Cephus expected a re- sponse in two days, noting that “with the passing of each day, [his] ability to attend a Division I university and participate in athletics is compromised if not completely eliminated.” The petition was based on new evidence purportedly de- veloped during Cephus’s criminal trial that he claimed called into question the University’s findings. Specifically, he cited No. 22-2454 7
surveillance video, testimony from witnesses about their per- ception of the women’s sobriety, and testimony that drew into question Complainant 1’s credibility. The petition included a thumb drive with clips of the surveillance videos and a depo- sition transcript of one of the witnesses. Because “[t]he press for time [did] not allow for preparation of the trial transcript,” however, Cephus “recount[ed] the [other] evidence at trial.” The University’s general counsel was charged with re- viewing all the evidence and submitting a written report iden- tifying the most pertinent evidence for Chancellor Blank’s consideration. Chancellor Blank rarely reviewed all the evi- dence, relying on her counsel to do so. The University’s coun- sel reached out to Cephus’s attorney about the trial transcript because the University believed “it to be an essential element in the chancellor’s review of [Cephus’s] petition.” The prose- cutor at the criminal trial later told the University it had to order the transcripts if it wanted to know what happened at trial. The University’s counsel declined, saying time was of the essence. Chancellor Blank would later agree, saying a de- lay was not “tenable given the publicity this trial was get- ting,” and Cephus deserved a response in a “timely” fashion, as it would not be fair for him to put his life on hold after a jury had acquitted him. The Chancellor’s team spoke to select individuals who had been at the trial, including Cephus’s attorney, who Uni- versity representatives conferred with multiple times. The University did not speak to Arana or any of her legal team, none of whom had been informed of the petition or given a chance to review the newly submitted evidence. At the same time, the University received input from other interested parties. High-level donors pressured the 8 No. 22-2454
University to readmit Cephus quickly. Within 48 hours of re- ceiving the petition, Chancellor Blank received letters from five donors who each had given at least $1,000,000 and possi- bly over $100,000,000 collectively to the University. The letter writing campaign was initiated by Ted Kellner, whose name adorned the University’s football buildings; he had recently made a significant revocable pledge to the University. The University also tracked fan sentiment, monitoring a social media hashtag referencing Cephus, which was often ac- companied by an image of Cephus on the football field with an inscription reading, “Wisconsin Don’t Delay, Let Cephus Play!” Many of the posts tagged Chancellor Blank personally in hopes she would see them. Chancellor Blank further heard from the football program. The team wrote a letter urging her to readmit Cephus. Dozens of players took part in a press conference staged by Cephus and his legal team, perceived by the Chancellor to be part of a pressure campaign for Cephus’s reinstatement. The team’s head coach publicly proclaimed he would welcome Cephus back given the opportunity. Eight days after the petition was filed, Chancellor Blank called Hasselbacher to inform her that she would readmit Ce- phus. Chancellor Blank said she faced a difficult situation where “both sides” might sue and she had to do what was right. She could not ignore the “fast and unequivocal jury de- cision” and though she “[did not] take lightly overturning process,” she “[did not] see much other choice.” Hasselbacher advised that the women should be given a chance to respond. No. 22-2454 9
But the University declined the advice, as it was not required to by law. 3 Five days later, Chancellor Blank readmitted Cephus by vacating the finding that he was responsible for Third Degree Sexual Assault (recall that this includes “[s]exual intercourse with a person without … consent” and the University had found that Arana was too intoxicated to consent and had af- firmatively denied permission). UNIVERSITY OF WISCONSIN- MADISON, POL’Y ON SEXUAL HARASSMENT & SEXUAL VIOLENCE, at 15 (2018). According to the Chancellor, various witnesses consistently reported that the women consumed alcohol, but descriptions of their intoxication varied between “drunk,” “very drunk,” “buzzed,” “tipsy,” “hammered,” “drunk but acting normal,” and “blacked out.” Regardless, Chancellor Blank believed the surveillance video corroborated that Arana did not “exhibit outward signs of incapacitation.” The Chancellor’s decision did, however, uphold the sex- ual harassment finding against Cephus. But her rationale var- ied from the Board’s, which relied on Cephus’s continued presence creating a hostile learning environment. The Chan- cellor, in contrast, cited Cephus’s admission to taking nude photos of the women without their consent. Because of this
3 The Wisconsin Administrative Code at the time explicitly required
that a complainant be notified of any change to the disciplinary outcome. WIS. ADMIN. CODE USW § 17.18 (2016). Chancellor Blank interpreted this to mean Arana should not be involved before a decision was made be- cause the code did not expressly provide for her participation. The Wis- consin Administrative Code was amended a few years later to ensure that “[if] enrolled as a student at the time of the petition, the complainant shall be provided opportunity to respond to the petition prior to the readmis- sion decision.” WIS. ADMIN. CODE USW § 17.18 (2021). 10 No. 22-2454
and Cephus’s history—including other incidents of harass- ment and lying during the police and University investiga- tions—the Chancellor kept in place the no-contact order. Chancellor Blank was to personally notify several interested parties of her decision, including Kellner, the donor who re- cently made the revocable pledge to the University (the rec- ord does not indicate how many of the parties she in fact no- tified). Arana returned to campus two weeks later for a new se- mester. Worried that the no-contact order would prove insuf- ficient because Cephus had previously violated it, Arana and her counsel met with the University’s Assistant Dean of Stu- dents and its Director of Threat Intervention Services hoping to develop a safety plan. In an about-face from their prior pro- active stance, the two University personnel rejected Arana’s concerns because they saw no actionable threat, and told her instead to try avoiding Cephus and to call 9-1-1 if she felt threatened. Feeling the University’s response left her on her own and fearful of encountering Cephus, Arana skipped classes, did not use the student union or communal study spaces, and avoided walking through parts of campus where she might run into Cephus. Arana also reduced her attendance at soror- ity events, opting to stay in her apartment or return home to Chicago on weekends. These changes required her to “work[] harder and longer hours to attain the same grades.” Believing her fear and anxiety would limit her ability to succeed, she transferred from advanced to easier courses. Although she had been on track to graduate in three years, Arana’s reduced courseload delayed graduation by a semester, which in turn delayed her matriculation into law school by a full year. No. 22-2454 11
In June 2020, Arana filed a Title IX lawsuit against the Uni- versity, alleging, in part, deliberate indifference to the sexual harassment that she experienced. Arana and the University filed cross motions for summary judgment. The University conceded that it had knowledge of sexual harassment: it never vacated its finding that Cephus had violated the school’s policy on sexual harassment. But it argued that it was not liable under Title IX because Arana could not prove that the school was deliberately indifferent to the harassment or that the harassment deprived her of access to educational op- portunities. The district court disagreed with the University’s argu- ment that a reasonable jury could not find the school deliber- ately indifferent to the harassment Arana suffered. The dis- trict court disagreed because the decision to readmit Cephus “appears to have been driven by at best a desire to avoid any arguable liability for having suspended and expelled Cephus in response to his acquittal on criminal sexual assault charges less than two weeks before, or at worst, a desire to get an im- portant player back on the football field in time for the open- ing of UW’s football season.” Doe v. Bd. of Regents, 615 F. Supp. 3d 877, 885 (W.D. Wis. 2022). But the district court agreed with the University that Arana could not show the harassment at the hands of Cephus deprived her of educational opportuni- ties. In support of its conclusion, the court cited Arana’s oth- erwise successful academic performance. The district court 12 No. 22-2454
therefore denied Arana’s motion and granted the Univer- sity’s. 4 Arana appeals the grant of summary judgment in favor of the University, arguing the district court erred in concluding no reasonable jury could find for her on all elements of her Title IX claim. II Title IX was signed into law over 50 years ago to protect individuals from discriminatory sex-based practices in edu- cation and to prevent federal resources from being used to support such practices. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998). To achieve this goal, the law prohibits recipients of federal funds from causing anyone to “be ex- cluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity” based on sex. 20 U.S.C. § 1681(a). This prohibition has been interpreted expansively to give the law “a sweep as broad as its language.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982). The Supreme Court later recognized that Title IX includes an implied private right of action, Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979), and that it permits schools to be liable not just for their own direct acts of discrimination, but also for indirect discrimination claims involving teacher-on-student sexual harassment if the school had actual notice of the har- assment and was deliberately indifferent to it, Gebser, 524 U.S. at 292–93. Shortly after, the Court extended Gebser’s holding
4 The district court also concluded that Arana could not prevail on a
claim that the University directly discriminated against her. Neither party challenges that holding. No. 22-2454 13
to cases involving student-on-student sexual harassment. Da- vis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999). Under Davis, a successful Title IX claim based on student- on-student harassment requires the plaintiff to prove the fol- lowing elements: First, the school or its officials had actual knowledge of sex-based harassment. 526 U.S. at 650; see also Jauquet v. Green Bay Area Cath. Educ., Inc., 996 F.3d 802, 808 (7th Cir. 2021). Second, the harassment was “so severe, perva- sive, and objectively offensive” as to deprive access to educa- tional opportunities or benefits. 526 U.S. at 650. Third, the school’s response was deliberately indifferent to the harass- ment. Id. III “We review de novo a district court’s decision on cross- motions for summary judgment, construing all facts and drawing all reasonable inferences in favor of the party against whom the motion under consideration was filed.” Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017). That means we are to construe the facts in favor of Arana and will affirm the district court’s decision only if “there are no genuine issues of mate- rial fact.” Id. On the other hand, if a reasonable jury, on the evidence presented, could return a verdict in favor of Arana on her Title IX claim, then we must reverse. See Carmody v. Bd. of Trs. of Univ. of Ill., 893 F.3d 397, 401 (7th Cir. 2018). We begin by determining what is within the scope of our review. The University’s motion for summary judgment fo- cused on two arguments: that Arana was not deprived of ed- ucational opportunities and that the University’s response was not so unreasonable as to constitute deliberate indiffer- ence. Before us, the University makes the following additional 14 No. 22-2454
arguments: one instance of sexual harassment cannot be con- sidered pervasive and the one instance of harassment is not actionable because it occurred at a private apartment, an en- vironment outside the University’s control. The University al- luded to the control argument in a footnote to its brief in sup- port of summary judgment but, as Arana points out to us, the University did not develop the argument until its summary judgment reply brief, thereby waiving the argument. O’Neal v. Reilly, 961 F.3d 973, 974 (7th Cir. 2020); see also Costello v. Grundon, 651 F.3d 614, 637 (7th Cir. 2011) (declining to affirm summary judgment on “alternative bases” that were “not raised in the district court until the filing of the reply”). 5
5 We disagree with our dissenting colleague that it is appropriate to
consider this line of argument. Even setting aside the fact that our caselaw counsels against considering an argument developed only in a reply brief on summary judgment, the record has not been sufficiently developed to decide this fact-intensive issue. And the issue is, indeed, fact intensive. Take, for example, the Ninth Circuit’s decision in Brown v. Arizona finding that a university had control over an off-campus housing facility where a football player sexually assaulted other students. 82 F.4th 863, 878–79 (9th Cir. 2023). This holding was based on several pieces of evidence. First, the university’s football program conditioned athletes’ ability to live off cam- pus on good behavior and had the authority to revoke the privilege. Id. at 878. Second, the university’s Student Code of Conduct explicitly stated that it “applie[d] to student conduct both on-campus and off-campus be- cause off-campus misconduct can affect student health, safety, and secu- rity as much as on-campus misconduct can.” Id. (cleaned). Finally, a no- contact order imposed in Brown “expressly applied both to on-campus and off-campus spaces.” Id. Even the Eighth Circuit case on which the dis- sent relies limited its holding to the facts before it. See Roe v. St. Louis Univ., 746 F.3d 874, 884 (8th Cir. 2014) (“We conclude that on this record ….). By contrast, the parties here have not developed the factual record to a suffi- cient degree. As such, we decline the University’s invitation, which our dissenting colleague accepts, to decide this issue for the first time without No. 22-2454 15
The University arguably also waived its contention that the harassment was not pervasive. Id. But Arana does not ar- gue that the issue was waived, instead addressing the argu- ment’s merits on appeal, and she thus waives any waiver ar- gument. Riemer v. Ill. Dep’t of Transp., 148 F.3d 800, 804–05 n.4 (7th Cir. 1998). We therefore begin by examining whether the harassment experienced by Arana was severe, pervasive, and objectively offensive. IV To constitute actionable conduct under Title IX, student- on-student harassment must be severe, pervasive, and objec- tively offensive. Davis, 526 U.S. at 633. The inquiry into whether harassment is actionable “depends on a constellation of surrounding circumstances, expectations, and relation- ships.” Id. at 651. The severity and objective offensiveness of rape and sexual assault are not, and cannot be, in doubt. See Baskervill v. Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir. 1995) (actionable conduct in the Title VII context includes “sexual assaults” and “other physical contact, whether amorous or hostile, for which there is no consent express or implied”); see also Vengalattore v. Cornell Univ., 36 F.4th 87, 103 (7th Cir. 2022) (“Because Title VII’s discrimination prohibition overlaps Title IX’s prohibition against sex discrimination in education pro- grams … we have … long interpreted Title IX by looking to … the caselaw interpreting Title VII.” (cleaned)). The re- maining question is whether the harassment suffered by Arana was pervasive.
the benefit of a developed record, full briefing, or a decision from the dis- trict court. 16 No. 22-2454
The University claims that the harassment was not perva- sive. As support, it cites language in Davis expressing skepti- cism that a single instance of harassment can form the basis of Title IX liability. The Court explained that severe, pervasive, and objectively offensive harassment will have a “systemic ef- fect” on a student’s education. Davis, 526 U.S. at 652. “Alt- hough, in theory, a single instance of sufficiently severe one- on-one peer harassment could be said to have such an effect” it found “it unlikely that Congress would have thought such behavior sufficient to rise to this level.” Id. at 652–53. Accord- ing to the University, our dissenting colleague, and two of our sister circuits, this conclusively means a victim of a single sex- ual assault can never recover under Title IX. Post, at 46; Kol- laritsch v. Michigan State Univ. Bd. of Trs., 944 F.3d 613, 620–21 (6th Cir. 2019); K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1059 (8th Cir. 2017). Reading Davis plainly and with complete deference to its authority, we disagree, and we join three of our sister circuits in doing so. While the Court in Davis expressed skepticism at the sufficiency of alternative facts not then before it, it did not mandate hand-counting harassment. Given the potential life- altering and lasting impact of sexual assault, it is entirely con- ceivable that an instance of harassment may be sufficiently se- vere and pervasive to “differ markedly from the rarely action- able, theoretical single incident mentioned in Davis ….” Wil- liams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1298 (11th Cir. 2007). For this reason, several of our sister cir- cuits—the First, Fourth, and Eleventh—have held that single incidents of harassment may create Title IX liability “if that incident were vile enough and the institution’s response, after learning of it, unreasonable enough to have the combined sys- temic effect of denying access to a scholastic program or No. 22-2454 17
activity.” Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172 (1st Cir. 2007); see also Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021) (“Even a single incident of sexual harass- ment, if sufficiently severe, can inflict serious lasting harms on the victim—physical, psychological, emotional, and so- cial.”); Williams, 477 F.3d at 1297–98; Hill v. Cundiff, 797 F.3d 948, 973 (11th Cir. 2015). 6
6 In truth, the dissent’s view that the Eleventh Circuit stands on the
other side of this circuit split is a legible one. Post, at 48–49. In Williams, the Eleventh Circuit considered whether a female university student who was sexually assaulted by several male students on a single night had experi- enced sufficiently pervasive harassment under Davis. 477 F.3d at 1297–98. The Eleventh Circuit ultimately found the assault pervasive despite “oc- curring in one room over two hours” because the assailants undertook a “continuous series” of harassing actions such as conspiring to commit the gang rape and each assaulting Williams. Id. Yet, when examined more closely, it is unclear whether Williams requires plaintiffs to present evidence that multiple instances of harassment occurred before a school had actual notice of the discrimination (“pre-notice harassment”). After all, Williams was assaulted over the course of a single evening. Id. at 1298. And rather than clearly stating that Williams had shown that she suffered more than one instance of pre-notice harassment, the Eleventh Circuit instead found that the assault differed “markedly from the rarely actionable, theoretical single incident mentioned in Davis.” Id. To this end, two of our sister circuits read Williams to permit Title IX claims where only a single instance of harassment is alleged. See Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 273 (4th Cir. 2021) (reading Williams to permit Title IX claims “even though the plaintiff alleged only a single incident of pre-notice harassment”); Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 342–43 (5th Cir. 2022). Even assuming the dissent’s reading of Williams is correct, applying the Eleventh Circuit’s logic to the record before us still supports our con- clusion that the harassment Arana experienced was pervasive. After all, Arana, like Williams, presents evidence that Cephus was a “ringleader 18 No. 22-2454
We agree and adopt this standard because it promotes the appropriate balance between Davis’s twin aims of preventing students from being “denied access to educational benefits and opportunities on the basis of gender,” 526 U.S. at 650, and only holding institutions liable for their “own failure to act,” id. at 645. It recognizes the reality that while a student would reasonably feel apprehensive and fearful regardless of their school’s response to a report of egregious harassment, that fear and apprehension casts a pervasive shadow across the student’s schooling where administrators respond in an un- reasonable manner. The University argues that even if a single assault were actionable, they are not liable because Davis said that Title IX liability only attaches where a school’s deliberate indifference “subjects its students to harassment.” 526 U.S. at 644 (cleaned). They read this language to mean that they are not liable because it is not as if they responded insufficiently while Cephus committed further acts of sexual harassment. This reading unduly narrows Davis. Just after the quoted lan- guage, Davis states that a school’s response “must, at a mini- mum, cause students to undergo harassment or make them lia- ble or vulnerable to it.” Id. at 645 (emphasis added). 7 Davis is
who lured the victim to his territory” and conspired with Davis to harass Arana by taking nonconsensual photographs of her. Williams, 477 F.3d at 1298. She also presents evidence that Davis penetrated her vagina several times. These events, as in Williams, occurred in a continuous series over the course of a single evening. Id. Like the Eleventh Circuit, we believe that these events “differ markedly” from the nonactionable single incident considered in Davis. 7 The circuits are split as to whether this means that a Title IX plaintiff
must show that the school’s deliberate indifference after receiving notice of student-on-student harassment resulted in further concrete acts of No. 22-2454 19
more inclusive than the University alleges and would extend liability to instances where a school’s response puts a student at further risk of harassment. We therefore hold that Title IX monetary liability can extend to a single pre-notice instance of egregious harassment where the educational institution’s re- sponse was clearly unreasonable under the totality of the cir- cumstances. 8 For her part, Arana has presented sufficient evidence (in- cluding her own and other witnesses’ prior statements to Uni- versity personnel and campus police) for a jury to conclude that the harassment she experienced on that April evening
harassment or simply left the student more vulnerable to future acts of harassment. See Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 342– 43 (5th Cir. 2022) (recognizing 4-3 split in favor of no requirement to show further post-notice acts of actual harassment while declining to take a po- sition). On one side of the split stand the Sixth, Eighth, and Ninth Circuits, holding that a school can be deliberately indifferent only when its actions result in a further incident of harassment. Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 621 (6th Cir. 2019); K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1058 (8th Cir. 2017); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). The other side of the split consists of the First, Fourth, Tenth, and Eleventh Circuits, which hold that a school’s ac- tions need only make harassment more likely. Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172 (1st Cir. 2007), rev’d on other grounds, 555 U.S. 246 (2009); Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021); Farmer, 918 F.3d at 1105; Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1295–97 (11th Cir. 2007). 8 The dissent casts this holding as a “strained interpretation” of Davis.
Post, at 35, 58. Yet, it is the dissent’s own interpretation that strains against Davis’s plain text. Our colleague presumes, without explanation, that Da- vis’s “context” compels a requirement of further harassment. Id. at 56. But we, like the First, Fourth, Tenth, and Eleventh Circuits before us, find that the dissent’s formulation “overly distills the rule set forth by the Davis Court.” Fitzgerald, 504 F.3d at 172. 20 No. 22-2454
was sufficiently egregious as to be pervasive. Not only does she present evidence that Cephus sexually assaulted her, but that Cephus penetrated her vagina with his fingers and then his penis several times. She was unconscious throughout the assault. Cephus even enlisted Davis in between the assaults to help him take revealing photographs of her. We discuss the jury issue as to the insufficiency of the Uni- versity’s response infra in Part VI. V We next turn to Arana’s argument that the severe, perva- sive, and objectively offensive harassment that she suffered deprived her of educational opportunities and benefits, con- trary to the district court’s ruling. This relates to our inquiry into the severity of the harassment, as the harassment must, as outlined above, be severe enough to have “systemic ef- fect[s]” on the student’s education. Davis, 526 U.S. at 652–53. Put plainly, courts look to see whether the harassment “had a ‘concrete, negative effect’ on the victim’s access to education.” Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 821 (7th Cir. 2003) (quoting Davis, 526 U.S. at 654). In Davis, the Supreme Court explained that a drop in the plaintiff’s grades provided “necessary evidence of a potential link” between the harassment and the plaintiff’s education. 526 U.S. at 652. The Court did not, however, impose a thresh- old requirement that plaintiffs must demonstrate a decline in grades to succeed in a Title IX action. Indeed, courts have rec- ognized a variety of other suitable evidence demonstrates a “concrete negative effect.” Id. at 652; see, e.g., Gabrielle M., 315 F.3d at 823 (increased absenteeism); Wamer v. Univ. of No. 22-2454 21
Toledo, 27 F.4th 461, 471 (6th Cir. 2022) (changed course of study); Doe v. Sch. Dist. No. 1, 970 F.3d 1300, 1312–13 (10th Cir. 2020) (missed in-person instruction and socialization oppor- tunities); Farmer v. Kansas State Univ., 918 F.3d 1094, 1104–05 (10th Cir. 2019) (lost scholarship, withdrawal from extracur- riculars, and avoidance of campus areas without escorts). Arana, for her part, contends the district court misstated the law. Facially, the district court’s decision dismissed the idea that “proof of declining grades or absenteeism” was a prerequisite for Title IX liability. Doe v. Bd. of Regents, 615 F. Supp. 3d at 886. But the court nonetheless emphasized grades and absenteeism above all else. The court found it important that Arana continued participating in student groups and successfully graduated with a strong GPA in under four years. While mostly true, this characterization paints an overly rosy picture. The University recognized in its original Title IX investi- gation that sharing a campus with her assailant would create a hostile environment for Arana. Crucially, Arana has ex- plained over the course of this litigation how that environ- ment affected her education. Her anxiety prevented her from using certain campus resources. She skipped classes, did not use the student union or communal study spaces, and stayed away from certain parts of campus. Given these disruptions, she had to “work harder and longer hours to attain the same grades,” and transferred from advanced courses to easier courses. Ultimately, she graduated with good grades in only three and a half years, but she entered college expecting to graduate in three years based on credits carried from high school. That extra semester delayed her entry to law school by a year. Further, she reduced her attendance at sorority events, 22 No. 22-2454
choosing to return to Chicago many weekends rather than so- cialize. The University posits that, if anything, these effects are at- tributable to its readmission of Cephus and not the harass- ment he caused. See Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274–75 (4th Cir. 2021) (“[T]he main object of inquiry for this prong is the alleged sexual harassment, rather than the de- fendant’s response thereto. Indeed, the latter is relevant only to the issue of deliberate indifference.” (cleaned)). In support, the University marshals evidence that the effects Arana de- scribed did not begin right after the assault. This position ignores our caselaw finding that a victim of a violent assault is denied equal access when they graduate early with a limited diploma “rather than stay and complete the work needed for a full … diploma.” Doe v. Galster, 768 F.3d 611, 619 (7th Cir. 2014) (citing Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655 (2d Cir. 2012)). That reasoning applies in this context with equal strength where there is evidence that Arana struggled greatly after the assault and delayed her own graduation. See Doe, 1 F.4th at 275 (directing factfinders to “consider all of the surrounding circumstances … and an ap- propriate sensitivity to social context” when undertaking this inquiry). The University’s causal argument also stretches too far. For instance, in this case, the University’s decision forced Arana to share a campus with her assailant. It was this cam- pus environment that in part caused Arana’s struggles, and the environment was caused by the assault. True, one link in the causal chain was the University’s decision to readmit Ce- phus. This in no way detracts from the clear line one can draw between the assault and the detrimental effects Arana now No. 22-2454 23
describes. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020 (recognizing events often have multiple causes). If a jury were to find that the University’s readmission de- cision was clearly unreasonable, see infra Part VI, then it could appropriately rely on Arana’s testimony that she delayed her graduation, spent most of her time alone, or left campus en- tirely to find that the harassment and the University’s unrea- sonable response negatively affected her education in a con- crete way. The University appears to also question whether the hos- tile environment could have a systemic effect given Arana and Cephus overlapped for only one semester between his re- admission and his departure to pursue a professional football career. We see no reason to mandate an artificial threshold for the amount of time that need pass before an effect can be con- sidered systemic. Even if we did, we would not go so far as the University to categorically draw that line beyond one se- mester’s worth of harassment. We have no problem envision- ing that one semester’s interruption can adversely affect, or even completely derail, a student’s education. Arana’s asser- tions, if credited, establish as much. Fundamentally, the district court and University incor- rectly gauge the nature of education. To distill a student’s ed- ucation to “good” or “bad” academic achievements leaves “unanswered … the full spectrum of success that female stu- dents might have achieved” had they not been subject to dis- crimination and “excuse[s] discrimination because its victims are resilient enough to persist” in its face. Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 135 (4th Cir. 2022) (Keenan, J., concur- ring). A reasonable jury could rely on the dropped classes, changed courseload, and delayed graduation to find a 24 No. 22-2454
material impact on Arana’s academic performance, regard- less of whether her grades suffered. If Arana’s testimony is credited, the harassment she suf- fered ultimately left her unable to enjoy the full panoply of educational opportunities that made her classmates’ experi- ences enriching. This is sufficient to establish deprivation of educational opportunities because, after all, education is more than academics. 9 VI Where does this leave us? At this point a reasonable jury could conclude that Arana experienced severe, pervasive, and objectively offensive harassment after being sexually as- saulted and this fomented a hostile environment, having pro- found effects on her academic and social life. But the fact that Arana experienced harassment while studying at the Univer- sity of Wisconsin would not entitle her to damages from the University. Title IX imposes liability for “subject[ing],” Davis, 526 U.S. at 643, others to discrimination or making them “vul- nerable to it,” id. at 645, so “a recipient of federal funds may be liable in damages under Title IX only for its own miscon- duct.” Id. at 640. This means the University cannot be liable
9 As the Rape, Abuse and Incest National Network (“RAINN”) refer-
ences in its amicus brief, Chancellor Blank acknowledged the following in her remarks about returning to in-person instruction after the COVID-19 pandemic shuttered campus: “It is the connections and interactions that make UW-Madison a great university and that bring students here for a high-quality residential learning experience.” Brief for RAINN as Amicus Curiae at 17–18 (citing Chancellor Blank, Creating the New Normal: Return- ing to Campus, UNIVERSITY OF WISCONSIN: BLANK’S SLATE (Mar. 25, 2021), https://chancellor.wisc.edu/blog/creating-the-new-normal-returning-to- campus/). No. 22-2454 25
for the harassing conduct of Cephus unless its own deliberate indifference to the harassment subjected Arana or made her vulnerable to discrimination. See id. at 646–47. The University maintains that it was never deliberately in- different to Arana’s accusations of harassment because its “re- sponse was immediate, vigorous, and sustained.” It points to the ways the school supported Arana after she came forward with her allegations and how it expelled Cephus after a thor- ough investigation. But the adequacy of the University’s ini- tial Title IX investigation is not in dispute. Instead, Arana ar- gues that the school was deliberately indifferent when it re- admitted Cephus. The University believes that we cannot se- lectively examine one part of its response. What it seems to miss is that the challenged action, Cephus’s readmission, ef- fectively nullified the initial Title IX investigation. Regardless of how proper a school’s initial response, Title IX would be undone if a school could avoid liability by vacating a discipli- nary decision comporting with Title IX using a process that does not. The University insists that the Chancellor overturned the initial decision in response to legitimate changed circum- stances: a not guilty verdict and trial evidence showing Ce- phus was not responsible for sexual assault. This argument has a certain logic: A school should be able to make a good- faith evaluation of newly presented evidence that might change a prior disciplinary decision without running afoul of Title IX. Arana presents evidence, however, that suggests the University’s decision to readmit Cephus was not the product of a reasoned and good-faith reexamination but undue influ- ence. For instance, the University did not wait for the trial transcript, did not contact Arana about the new evidence or 26 No. 22-2454
to ask for other evidence from the trial, and yet it heard from numerous influential parties adverse to Arana’s interests. The University rightly points out that Wisconsin law did not require the Chancellor to involve Arana in the readmis- sion process. It maintains that the Chancellor therefore fol- lowed state law and cannot be deliberately indifferent. It may be true that the law did not require Arana’s participation, but it also did not seem to forbid it. Regardless, there is no need to decide whether a school can be deliberately indifferent when following state law. There is sufficient evidence apart from the exclusion of Arana from the readmission process that could lead a jury to conclude that the University unrea- sonably readmitted Cephus because of a desire to further the football program’s interests. That sufficient evidence is this: Although the initial inves- tigation spanned more than a year, the decision to readmit Cephus concluded within weeks, just in time for the start of the football season. The University contends that most of the legwork had been done during the initial investigation and Chancellor Blank needed to consider only a few pieces of new evidence. However, there is no escaping the fact that the time- line looks suspicious: Cephus’s petition for readmission came shortly before the football season commenced and demanded a favorable decision immediately. Layer on top of that influ- ential donors, fans, and the football program all making the same demand and one could reasonably conclude that Ce- phus’s readmission was meant to placate a growing chorus calling for just that result. For this reason, we disagree with the University’s argument that, ultimately, the true motive behind readmitting Cephus is inconsequential. A jury would be well within its rights to find the University was No. 22-2454 27
deliberately indifferent to known harassment simply to avoid angering key boosters and interest groups. Of course, it is pos- sible to view the evidence—particularly Chancellor Blank’s sworn testimony attesting to her nonmonetary motivations— and conclude that the Chancellor came to her conclusion in- dependent of these demands, but at this point we must make all reasonable inferences in favor of Arana. See Carmody, 893 F.3d at 401. Alongside the suspicious timing, the new evidence the University presents does not undermine its conclusions dur- ing the original Title IX investigation as much as the Univer- sity suggests. According to the University, critical to the Chancellor’s decision was a police interview with Complain- ant 1 where she described an interaction with Arana and Ce- phus: “[I said something] like we’re leaving, we’re going home, or something, and [Cephus] was like no, like come back in 20 minutes. And I was like what do you need 20 minutes for. And [Arana] was like sex.” But the University omits context that supports the conclusion that Arana was too intoxicated to provide consent. Complainant 1 continued: “[Arana] was like, her eyes were rolling to the back of her head. And he’s like come back in 20 minutes. He’s like get out of my room right now. And then I got mad at [Arana] and I was like are you really going to have sex with someone who just talked to me like that. And she was like not even respond- ing.” This context makes the evidence less convincing, sug- gesting the University presents it now as pretext. The same can be said about other evidence that the Chan- cellor alluded to in her readmission decision. The Chancellor highlighted testimony from witnesses who observed the two women before the incident; she noted their descriptions of the 28 No. 22-2454
women’s appearances ranged from “drunk” to “buzzed” to “black out.” But these witnesses’ observations, along with the Chancellor’s own belief that the women did not show “out- ward signs” of incapacitation in security footage captured be- fore they arrived at Cephus’s apartment, primarily addressed the outward appearance of the women and not their actual level of intoxication and resulting ability to consent to sex. This evidence, therefore, is most pertinent to a violation of the University’s prohibition against Second Degree Sexual As- sault, which requires actual knowledge of a person’s inability to consent—and was the charge the University already de- cided not to levy against Cephus. Their testimony is not as probative of the charge the University did initially find Ce- phus guilty of and vacated with the readmission—namely Third Degree Sexual Assault, which lacks a knowledge re- quirement. Indeed, Arana’s version of events that she drank heavily and was later unable to consent when alone with Complainant 1 and Cephus remains largely uncontradicted and supported by other evidence that the University had ac- cess to from the beginning. This includes texts Arana sent Complainant 1 the next morning asking if Complainant 1 was sure that Cephus and Arana had a sexual encounter and seek- ing details of the encounter. None of this is to say that a school can be held liable under Title IX simply because an official draws the wrong conclu- sion from a good-faith evaluation of the evidence. Even if a school wrongly concludes that harassment did not occur when the evidence shows that it did, it cannot be held liable under Title IX unless that decision was clearly unreasonable. See Gabrielle M., 315 F.3d at 824 (“[A]s long as the school’s re- sponse is not ‘clearly unreasonable,’ it cannot have acted with the requisite deliberate indifference to incur Title IX No. 22-2454 29
liability.”) (quoting Davis, 526 U.S. at 648–49). The decision to readmit Cephus was not clearly unreasonable solely because it may have been predicated on a mistaken reading of the ev- idence. We are even willing to accept the Chancellor’s charac- terization of the case as containing “ambiguity.” But because of the apparent weaknesses in the new evidence, coupled with the intense pressure the Chancellor was under to read- mit Cephus, a jury could decide to not credit the Chancellor’s testimony that donor money did not influence her and instead conclude that the University cited the new evidence as mere pretext to readmit a student because of a public pressure cam- paign. And sacrificing Arana’s interest in an educational en- vironment free from sex discrimination on the altar of the football program could be seen as clearly unreasonable by a jury. 10
10 The dissent posits that evidence of a pressure campaign is improper
and speculative. Post, at 51–53. We agree that a plaintiff cannot avoid sum- mary judgment based on ”testimony … speculating as to [the defendant’s] state of mind, or other intuitions, hunches, or rumors.” Widmar v. Sun Chemical Corp., 772 F.3d 457, 460 (7th Cir. 2014); FED. R. CIV. P. 56(c); FED. R. EVID. 602; see Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (collecting cases where testimony that adverse action was taken with discriminatory intent could not defeat summary judgment). There is a difference between speculative testimonial evidence and the circumstantial evidence here. Widmar, 772 F.3d at 460–62 (rejecting testimony claiming employer acted with discriminatory intent while reiterating that circumstantial evidence can establish impermissible motive). Arana does not rely on mere asser- tions of intent but points to letters from donors, news conferences, and an acknowledgment from the University that it was under pressure to read- mit Cephus. The dissent takes the Chancellor at her word that she tuned this pressure out. But that is not our call to make; it is a jury’s. See Norton v. Sam’s Club, 145 F.3d 114, 119 (2d Cir. 1998) (one “who discriminates is unlikely to leave a smoking gun … attesting to a discriminatory intent.” (cleaned)). And while the evidence of discrimination Arana presents is 30 No. 22-2454
No matter, the University believes it has an ace up its sleeve in the form of the no-contact order. The argument goes something like this: even if the school unreasonably readmit- ted Cephus, the University’s entire response was not clearly unreasonable because Cephus was directed not to contact Arana, providing her some modicum of safety. See C.S. v. Madison Metro. Sch. Dist., 34 F.4th 536, 543 (7th Cir. 2022) (en banc) (“[A] response does not have to be perfect or even suc- cessful.”). We are not in the business of scrutinizing every last disciplinary decision by substituting our judgment for that of school administrators. Gabrielle M., 315 F.3d at 825. Moreover, schools need not default to expulsion in response to accusa- tions of sexual harassment to avoid Title IX liability. Johnson v. N.E. Sch. Corp., 972 F.3d 905, 912 (7th Cir. 2020). We do not suggest that the University had to expel or maintain the ex- pulsion of Cephus in lieu of issuing a no-contact order. But even if a no-contact order was an appropriate response to the assault in this case, Arana submitted evidence that suggests the University had no interest in enforcing the order after Ce- phus’s readmission. If this evidence is credited, a jury could reasonably conclude that the University’s response to harass- ment was clearly unreasonable. 11
circumstantial rather than direct, that does not make it less probative. United States v. Rose, 12 F.3d 1414, 1417 (7th Cir. 1994). We draw, as we must, all reasonable inferences from this evidence in Arana’s favor, Kemp, 877 F.3d at 350, and leave for the jury the ultimate question of whether to credit those inferences or credit the Chancellor’s testimony and other evi- dence in the University’s favor. 11 This conclusion does not conflict with Johnson and C.S. as the dis-
sent suggests. Post, at 53, 55. We have made clear that the law does not require expulsion. Further, the dissent asserts that if the schools in those two cases avoided liability by telling the alleged assailant to avoid the No. 22-2454 31
The University points us to two facts showing it genuinely intended to enforce the no-contact order. First, it says that Ce- phus never violated the no-contact order after he was read- mitted. But that may be the result of Arana’s actions more than the University’s. Title IX’s protections would mean little if a school could avoid liability by relying on students to pro- tect themselves by curtailing engagement in educational op- portunities, the very result the law seeks to prevent. Second,
plaintiff but did not go so far as excluding the assaulter from school grounds then the University cannot be liable for doing the same here. But the dissent glosses over facts distinguishing those cases from the one be- fore us. The most significant one is the lack of evidence that the schools in those cases showed reluctance to enforce the disciplinary measures put in place (a no-contact order in Johnson, 972 F.3d at 908, and a verbal directive to cease the troubling behavior in C.S., 34 F.4th at 546). The dissent be- lieves that it can say for certain that the University did not express hesita- tion in enforcing the no-contact order and that it was positively the order, and not Arana’s own curtailment of her education, that prevented Arana and Cephus from seeing each other. We, on the other hand, recognize the conflicting evidence regarding the efficacy of the no-contact order. We may not usurp the jury’s role to resolve that conflict. See Runkel v. City of Springfield, 51 F.4th 736, 741–42 (7th Cir. 2022). Unlike the University, the school in Johnson was otherwise incapable of expelling the harassing student. Neither Johnson nor the student who raped her, Froschauer, cooperated with the school’s investigation, mean- ing that there was no way for the school to take greater disciplinary action as such action would have been unsupported by sufficient evidence. 972 F.3d at 909. Additionally, had the school expelled Froschauer, it would have risked violating the state court’s protective order specifically allow- ing him to attend classes. Id. at 909–10. The school therefore approved Johnson’s requested for a homebound learning exemption to avoid having classes with Froschauer. Id. at 909. While this did not eliminate the possi- bility that the two would cross paths at school, it indicates that the school did everything in its power to limit the students’ interactions because it felt it had a responsibility to do so. 32 No. 22-2454
the University points out that administrators met with Arana to hear her concerns about the continued enforcement of the no-contact order. But there is substantial disagreement about what happened at that meeting. A jury could infer a lack of interest in enforcing the order if it accepts Arana’s characteri- zation that the administrators simply told her to contact po- lice if she felt unsafe. This response could be seen as standing in marked contrast with the University’s prior proactive en- forcement of the no-contact order, especially considering that Cephus had, by then, already allegedly violated the order once before. And any lessened zeal at enforcing the no-contact order after Cephus’s readmission would be even more nota- ble, a jury could conclude, because Cephus had previously vi- olated the no-contact order at the very time and place one would expect him to be on his best behavior. A jury could ra- tionally conclude that Arana had reason to fear that someone who would violate the order at such a time and place might do it again, anywhere. A jury is of course free to accept the University’s framing that it was not dismissive of Arana and would have acted if there was a more acute threat. It is not our role, however, to decide the strength of competing evidence. That is a role for the jury to play, and we must allow it that opportunity. See Davis, 526 U.S. at 654 (“The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974))). VII At its core, the University’s arguments ask us to accept the parts of the record that suggest it acted reasonably while ig- noring the parts of the record that suggest otherwise. Whereas No. 22-2454 33
our dissenting colleague takes the University up on its pro- posal, we decline to do so at this stage of the proceedings as it is the role of the jury to weigh the evidence. We also decline to view each piece of evidence in isolation. When we view the following evidence holistically, we conclude that a reasonable jury could find for Arana: (a) the coordinated campaign to pressure the University to readmit Cephus, (b) the speed of the readmission decision relative to the start of the football season, (c) the decision not to wait for a transcript of the crim- inal trial, (d) the decision to not notify Arana or give her an opportunity to be heard prior to the readmission decision, (e) the differing charges and standards of proof at play in the criminal and disciplinary proceedings, and (f) the discrep- ancy between the University’s treatment of the no-contact or- der before and after readmission. Together, this evidence paints a portrait of an educational institution that, in a reason- able jury’s eyes, may have been deliberately indifferent to sex- ual harassment on its campus. Therefore, we REVERSE the district court’s grant of sum- mary judgment in the University’s favor and remand for fur- ther proceedings consistent with this opinion. 34 No. 22-2454
KIRSCH, Circuit Judge, dissenting. Title IX of the Education Amendments Act of 1972 bars federally funded schools from engaging in sex discrimination. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court rec- ognized that student-on-student harassment can amount to school-sanctioned sex discrimination. However, to eliminate any risk that schools would be held responsible for their stu- dents’ misconduct rather than for their own official decision to permit sex discrimination, the Court imposed a high bar for establishing liability that can only be met in certain limited circumstances. Section by section, the majority’s opinion erodes these carefully crafted limitations. The effect is the cre- ation of a new, practically limitless Title IX standard—one that would be unrecognizable to the Davis Court. Consider the limitations that schools only need to respond to peer harassment that occurs in their programs or activities and is so severe, pervasive, and objectively offensive that it has the systemic effect of denying the victim equal access to an educational opportunity or benefit. The Court expressly said in Davis that a single instance of harassment does not meet this standard. But the majority holds otherwise, dismiss- ing the language in Davis as mere dicta. To make matters worse, it does so in a case where the single instance of harass- ment did not even occur in the University of Wisconsin’s pro- grams or activities. The majority’s application of deliberate indifference is similarly difficult to comprehend. While it acknowledges that courts “are not in the business of scrutinizing every last disci- plinary decision by substituting our judgment for that of school administrators,” that is exactly what the majority does. Ante, at 30. Based on nothing more than speculation about the No. 22-2454 35
University’s motives and doubts that it made the right deci- sion to readmit Quintez Cephus, the majority holds that a jury could find the University’s response amounted to deliberate indifference. Even if there were an evidentiary basis for be- lieving the University’s readmission decision was made in bad faith—and there isn’t—nothing in the record suggests that its no-contact order was ineffective, let alone a clearly un- reasonable response to Isabelle Arana’s alleged assault. It is undisputed that following Cephus’s readmission, Arana never saw him again on campus, and the school never learned of any further contact between the two. No reasonable juror could find that the University’s response amounted to delib- erate indifference under these circumstances. Finally, a school isn’t liable under Davis unless its deliber- ate indifference subjects students to harassment. That means Arana must have experienced additional harassment as a re- sult of the University’s allegedly inadequate response. But the majority reads this limitation right out of Davis. Its strained interpretation—that a student need only be left vulnerable to the possibility of further harassment—provides no limit at all. When a school is deliberately indifferent to severe, pervasive, and objectively offensive harassment in its programs and ac- tivities, students are always left vulnerable to further harass- ment. If this requirement is to mean anything, it must mean something more than that. The majority cannot ignore Davis in favor of applying its own view of what the “appropriate balance” is between pre- venting harassment and subjecting schools to liability. Ante, at 18. I respectfully dissent. 36 No. 22-2454
I I accept Arana’s allegations and testimony as true at sum- mary judgment. See Osborn v. JAB Mgmt. Servs., Inc., 126 F.4th 1250, 1258 (7th Cir. 2025). But that “does not extend to draw- ing inferences that are supported by only speculation or con- jecture.” Id. (quotation omitted). A In late April 2018, Isabelle Arana’s father reported to the University of Wisconsin that Quintez Cephus had sexually as- saulted Arana at his off-campus apartment. The Dean of Stu- dents Office contacted Arana the same day, providing infor- mation about the University’s resources and rights for sexual assault victims. The Dean of Students Office also contacted Arana’s professors to inform them that Arana had been the victim of a sensitive crime and asked for their understanding in making academic accommodations. The day after, the Uni- versity’s Title IX Coordinator, Lauren Hasselbacher, emailed Arana information about support resources and potential protective measures at her disposal, such as no-contact direc- tives. The next day, Cephus was suspended from the football team indefinitely. Hasselbacher informed Arana a few days later that Cephus had been suspended from the team because he was the subject of a Madison Police Department criminal investigation. In response, Arana requested a no-contact or- der against Cephus and Danny Davis III (a fellow student and football player who was present the night of the alleged as- sault but later found not responsible for any misconduct). Hasselbacher issued no-contact orders to both Cephus and Davis the next day. The orders remained in effect indefinitely No. 22-2454 37
and required them to avoid all contact with Arana (emphases in original): After receiving allegations of sexual miscon- duct, I am issuing a No Contact Directive prohibit- ing you from having any contact with Isabelle Arana. Contact refers to any intentional words or actions including, but not limited to: tele- phone calls, text messages, instant messages, emails, Facebook, Twitter, or other forms of so- cial media …. If you have incidental contact, it is your responsi- bility to remove yourself from the situation as quickly as possible under the circumstances, to take means to separate, and to avoid further contact. Failure to do so could give reasonable inference of in- tentional, rather than incidental, contact and be a violation of this order.… Hasselbacher sent Arana copies of the no-contact orders the same day. Less than a month after issuing the no-contact orders, and after receiving more information from Arana and another stu- dent who also alleged that Cephus had assaulted her the same night as Arana, the University opened an official investiga- tion into Cephus. Hasselbacher issued Cephus a Notice of Charge informing him that he was under investigation for possible violations of the University’s policy against sexual assault and sexual harassment. It also reminded Cephus of his no-contact order. The Notice of Charge kicked off a Title IX investigation and disciplinary process against Cephus that spanned more than a year. 38 No. 22-2454
In late August 2018, the Dane County District Attorney’s Office filed criminal charges against Cephus. In light of the charges, Hasselbacher immediately reached out to Arana to ask if she had any concerns about returning to school or re- quests regarding her safety or academic accommodations. Ce- phus’s attorney demanded that the University delay the in- vestigation due to the criminal case against his client, but the University’s investigation pressed on. As the fall 2018 semes- ter approached, Hasselbacher also checked with the Dean of Students Office to ensure that Arana had no classes that would overlap with Cephus or Davis. When Arana’s father informed Hasselbacher that Arana had music class with Da- vis, an assistant dean went to the class to ensure he complied with the no-contact order. Hasselbacher immediately spoke with Arana’s attorney about the class overlap, apologized for the oversight, and asked whether Arana believed that Davis had made intentional contact with her. Hasselbacher also spoke with Davis’s attorney to discuss alternatives so that he and Arana would not be enrolled in the same class. Davis dropped the class that day. Hasselbacher presented her Final Investigative Report to the University’s Office of Student Conduct in October 2018. The decision whether to sanction Cephus based on the re- port’s findings was left to Assistant Dean Ervin Cox. Three weeks after receiving the report, Cox concluded that Cephus was responsible for sexual harassment and second- and third- degree sexual assault. Cox recommended expulsion. In January 2019, a three-member misconduct committee held a hearing on the findings and proposed sanction for Ce- phus. While waiting for the hearing to begin, Cephus walked toward Arana. Arana’s attorney perceived Cephus as walking No. 22-2454 39
in a threatening manner, so she stepped in front of him to pre- vent physical contact. Arana’s attorney reported the incident to an assistant dean at the hearing. The assistant dean imme- diately spoke to Cephus and reminded him that under the no- contact order, if he saw Arana, he needed to walk in the other direction and remove himself from the area. The committee unanimously found Cephus responsible by a preponderance of the evidence for third-degree sexual assault and sexual harassment. It also concluded that he was not responsible for second-degree sexual assault. By a 2-to-1 vote, the committee upheld the expulsion sanction. On March 13, 2019, Chancellor Rebecca Blank affirmed the committee’s findings and sanction recommendation, and Cephus was of- ficially banned from campus three days later. B On August 2, 2019, after a week-long criminal trial, a jury acquitted Cephus after 35 minutes of deliberation. Four days later, Cephus filed a petition seeking readmission to the Uni- versity. State law vested the readmission decision in the chan- cellor. See Wis. Admin. Code § UWS 17.18 (2016). The petition was 242 pages long, including exhibits. Cephus’s attorneys also sent the University a jump drive with approximately 70 video clips. After the petition was filed, Blank received many emails from alumni, donors, employees, students, and members of the public asking her to grant or deny Cephus’s petition for many different reasons. Several influential donors wrote to Blank urging her to readmit Cephus. Blank spoke with one of them, Ted Kellner, and told him what she told everyone else: that she appreciated his commentary and would make a decision after looking at the evidence. Blank testified that she was struck by the speed of the verdict, which 40 No. 22-2454
persuaded her that she needed to take the petition seriously and look at the additional evidence. Blank enlisted the Uni- versity’s vice chancellor for legal affairs and two other attor- neys from its Office of Legal Affairs to help her work on the petition. The vice chancellor tried to order a copy of the transcript from Cephus’s trial, but he was told by the court reporter that, even on an expedited basis, it would take at least several months to produce. Blank testified that it was not tenable to wait multiple months for the transcript. In her view, time was of the essence because the University was going to start soon, and if Cephus was going to be readmitted, she would make that decision within a month. She further explained that wait- ing was not a viable choice given the publicity the trial was getting and because the University had to respond in a timely manner to Title IX issues. On August 19, Blank granted Cephus’s petition. In her decision, she wrote that substantial amounts of information were not available to the University during the Title IX investigation and disciplinary proceedings, which affected the University’s prior findings. Specifically, she concluded that the evidence fell short of the preponderance of the evidence standard required to find Cephus responsible for third-degree sexual assault. Blank upheld the University’s finding of sexual harassment, however, based on Cephus’s admission in a police interview and at trial that he enlisted Davis to photograph Arana and the other complainant partially unclothed and without their consent. Blank reduced Cephus’s sanction from expulsion to a suspension effective from March 13 to the date of decision, thereby readmitting him for the fall semester. But Blank also determined that the No. 22-2454 41
no-contact order prohibiting Cephus from making any contact with Arana would remain in effect, and she warned that any additional misconduct would likely result in serious discipline. The University informed Arana of the reinstatement decision later that morning. In early September, the director of the University’s Threat Intervention Services met with Arana and her attorneys. Arana was terrified about Cephus being on campus and ex- pected the University to develop a safety plan. But although Arana and her attorneys expressed her fears about running into Cephus and other football players, they provided no in- formation about previous contact with any football players or statements by anyone on campus that could be construed as threats or harassment. Arana and her attorneys also did not indicate that Cephus had violated the no-contact order. Be- cause Arana provided no actionable information, the director concluded additional safety measures were not warranted at that time and advised Arana to call 911 if she felt threatened and to avoid Cephus if she saw him around campus. After Cephus returned to the University, he never tried to call, write, or contact Arana, and Arana never saw him on campus. No one else on campus ever said anything to Arana about what happened with Cephus. Arana continued to re- ceive support services and academic accommodations from the University. Following the fall semester, Cephus left the University to enter the NFL draft. II Title IX of the Education Amendments Act of 1972 pro- vides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the 42 No. 22-2454
benefits of, or be subjected to discrimination under any edu- cation program or activity receiving Federal financial assis- tance.” 20 U.S.C. § 1681(a). The statutory scheme gives admin- istrative agencies authority to enforce the guarantees of Ti- tle IX. Id. § 1682; see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 288 (1998). But in Cannon v. University of Chicago, 441 U.S. 677 (1979), the Supreme Court held that victims also have an implied right of action. Id. at 717. If a school engages in sex discrimination, it can be found liable for damages to the students it discriminated against. Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992). In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court clarified that student-on-student harassment can amount to school-sanctioned sex discrimination. Id. at 633. But to ensure that schools would only be held responsible for their own discriminatory practices, and not for the mis- conduct of their students, the Court placed significant re- strictions on when peer harassment could give rise to Title IX liability. Id. at 640–43 (imposing a “high standard” that creates liability only “in certain limited circumstances”). First, the school must have actual knowledge of actionable sexual har- assment in its programs or activities. Id. at 633, 650. Second, the school’s response must be clearly unreasonable in light of the circumstances, such that it amounts to deliberate indiffer- ence. Id. at 648. Third, the school’s deliberate indifference must subject its students to harassment. Id. at 644. A Schools do not have a duty to act under Davis unless they are aware of actionable sexual harassment in their programs or activities. Id. at 633. Sexual harassment is only actionable if it is “so severe, pervasive, and objectively offensive that it No. 22-2454 43
effectively bars the victim’s access to an educational opportunity or benefit.” Id. The majority says the alleged off- campus assault satisfies this standard. Ante, at 15–20. That conclusion is wrong twice over. First, unsupervised and unsponsored off-campus activity does not occur in a school’s programs or activities. Second, a single instance of sexual harassment is not sufficiently pervasive or widespread to have “the systemic effect of denying the victim equal access to an educational program or activity.” Davis, 526 U.S. at 652. 1 Start with the requirement that the harassment take place in a school’s programs or activities. Title IX only prohibits sex discrimination that occurs “under” “the operations of” a school receiving federal funds. 20 U.S.C. §§ 1681(a) & 1687. In Davis, the Court explained this means the harassment “must take place in a context subject to the school[’s] control” such that the school “exercises substantial control over both the harasser and the context in which the known harassment oc- curs.” 526 U.S. at 645. For example, the harassment in Davis took place during school hours and on school grounds— much of it in the classroom. Id. at 646. The Court recognized that the elementary school’s authority over its students in this context was “comprehensive,” “custodial and tutelary, per- mitting a degree of supervision and control that could not be exercised over free adults.” Id. (quotations omitted). Here, the alleged assault occurred in a privately owned apartment building in the middle of the night. Nothing in the record indicates the University exercised any supervision or control in this context, nor does Arana suggest she entered the apartment building to attend a University-sponsored pro- gram or activity. Instead, Arana argues that the University 44 No. 22-2454
had the authority to discipline Cephus for his off-campus mis- conduct because he was a student at the University and the school’s written policies permitted it to do so. While that may be true, it only establishes the University’s control over Ce- phus, not any control over the context in which the alleged assault occurred. Remember, Davis requires “substantial con- trol over both the harasser and the context in which the known harassment occurs.” Id. at 645 (emphases added). Absent any evidence of the latter, the alleged assault is not actionable har- assment. The Eighth Circuit reached the same conclusion in Roe v. St. Louis University, 746 F.3d 874 (8th Cir. 2014). Roe was raped during a private party in an off-campus apartment. Id. at 878– 79. She argued that “the University had disciplinary control over the rapist because he was a student and that universities may control certain off campus behavior due to the nature of the relationship between students and the institution.” Id. at 884. But the Eighth Circuit held that “a University must have had control over the situation in which the harassment or rape occurs” and “there was no evidence that the University had control over the student conduct at the off campus party.” Id.; see also Ostrander v. Duggan, 341 F.3d 745, 750–51 (8th Cir. 2003) (finding no control where the university “did not own, possess, or control” the off-campus premises where the al- leged assault occurred); accord Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 366 (6th Cir. 2012) (“When conduct occurs … off school grounds entirely, the school district has control over neither the harasser, nor the context.”) (quotation omit- ted). The majority largely avoids this issue. It says the Univer- sity waived this argument by merely alluding to it in a No. 22-2454 45
footnote in its opening brief before the district court. Ante, at 14. But the University did more than allude to this argument. It stated unequivocally that “[a]n off-campus sexual assault, without evidence of any on-campus harassment, cannot give rise to a Title IX claim,” and included case citations to support its view. Arana understood the University’s argument and addressed it in her response brief. That the district court did not consider the argument when it granted summary judg- ment is of no consequence. “We may affirm summary judg- ment on any ground supported by the record, as long as the parties adequately presented the issue before the district court and the nonmoving party had an opportunity to contest it.” King v. Hendricks Cnty. Comm’rs, 954 F.3d 981, 984 (7th Cir. 2020). The majority also says in a footnote that “the record has not been sufficiently developed to decide this fact-intensive issue.” Ante, at 14 n.5. For support, it points to evidence that the Ninth Circuit found relevant in Brown v. Arizona, 82 F.4th 863 (9th Cir. 2023), such as the fact that the school could dis- cipline its students for off-campus misconduct. Id. at 878. As an initial matter, much of the evidence the Brown court found relevant is already in the record, including the scope of the no-contact order and the University’s policies concerning off- campus misconduct. See id. at 878. But more fundamentally, both the majority and the Ninth Circuit’s decision in Brown err in conflating evidence of control over the harasser with evidence of control over the context in which the harassment occurs. The fact that a school can discipline students for off- campus misconduct bears on its control over the harasser, but it says nothing about the school’s control over particular off- campus environments. See id. at 887–89 (Rawlinson, J., dis- senting). Under the majority’s preferred approach, however, 46 No. 22-2454
a school would exercise control over every context in which two of its students interact, no matter how unrelated to its ed- ucational programs or activities, so long as its disciplinary policies gave it the authority to punish off-campus miscon- duct. That approach is incompatible with both the text of Ti- tle IX and Davis. Davis does not mandate that schools police the conduct of their students whenever and wherever it occurs. 526 U.S. at 644–45. School officials are only responsible for student mis- conduct in environments within their supervisory authority. Id. That includes settings like classrooms, school grounds, school buses, and other school-supervised or sponsored activ- ities that take place off campus. See Feminist Majority Found. v. Hurley, 911 F.3d 674, 713–14 (4th Cir. 2018) (Agee, J., con- curring in part and dissenting in part) (collecting cases). But it does not include unsupervised and unsponsored activities in a privately owned, off-campus apartment building. In that context, peer harassment neither occurs in a school’s pro- grams and activities nor is reasonably attributable to the school when it fails to act. 2 Even if we ignore the fact that the alleged assault did not occur in the University’s programs or activities, a single in- stance of peer harassment is not actionable under Davis. 526 U.S. at 652–53. Rather, the sexual harassment must be so se- vere, pervasive, and objectively offensive that it has “the sys- temic effect of denying the victim equal access to an educa- tional program or activity.” Id. at 652. While the Davis Court posited that “in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an ef- fect,” it found it “unlikely that Congress would have thought No. 22-2454 47
such behavior sufficient [given] the inevitability of student misconduct and the amount of litigation that would be in- vited by entertaining [such] claims.” Id. at 652–53. Accord- ingly, the Court decided that foreclosing liability for “claims of official indifference to a single instance of one-on-one peer harassment” would best “reconcile the general principle that Title IX prohibits official indifference to known peer sexual harassment with the practical realities of responding to stu- dent behavior, realities that Congress could not have meant to be ignored.” Id.; see also Gebser, 524 U.S. at 285 (explaining that the Court’s task is to infer how Congress would have ad- dressed the issue). The majority acknowledges this passage in Davis yet none- theless holds that the University can be held liable for a single instance of egregious harassment. Ante, at 15–19. To the ma- jority, the Court’s reasoning was merely dicta that we can dis- regard. Id. at 16. That is a remarkable proposition. Davis set out a comprehensive framework to limit the new cause of ac- tion the Court was creating. The Court’s discussion of con- duct that does not suffice to create liability is integral to un- derstanding how this framework should be applied. We are not entitled to ignore the Court’s determination of what Con- gress would have intended and decide for ourselves what the “appropriate balance” is between preventing harassment and subjecting schools to liability. Id. at 17. While the First and Fourth Circuits have similarly held that a single instance of peer harassment can be actionable, the persuasive force of their reasoning is limited by the fact that neither court mean- ingfully grapples with the relevant passage in Davis. The Fourth Circuit did not mention it in Doe v. Fairfax County School Board, 1 F.4th 257 (4th Cir. 2021). Id. at 273–74. And the First Circuit relegated it to a footnote in Fitzgerald v. Barnstable 48 No. 22-2454
School Committee, 504 F.3d 165 (1st Cir. 2007). Id. at 173 n.3. And neither decision suggests, as the majority now does, that the Court’s discussion was simply dicta. The majority says the Eleventh Circuit has taken a similar view. Ante, at 16–17 & n.6. But the two cases it cites both in- volved more than one instance of harassment, “markedly” distinguishing them from the “theoretical single incident mentioned in Davis.” Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1298 (11th Cir. 2007); Hill v. Cundiff, 797 F.3d 948, 973 (11th Cir. 2015) (quotation omitted). In fact, the Eleventh Circuit expressly stated in both cases that more than one instance of harassment is required to make out a Davis claim. See Williams, 477 F.3d at 1297 (“[G]ender discrimina- tion must be more widespread than a single instance of one- on-one peer harassment ….”) (quotation omitted); Hill, 797 F.3d at 972 (“To be severe, pervasive, and objectively offen- sive, the behavior must be serious enough to have a ‘systemic effect’ of denying equal access to an education. A ‘single in- stance of sufficiently severe one-on-one peer harassment’ can- not have such a systemic effect in light of ‘the amount of liti- gation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harass- ment.’”) (quoting Davis, 526 U.S. at 652–53). In a footnote, the majority says the Fourth and Fifth Circuits read Williams to permit Title IX claims based only on a single instance of pre- notice harassment. Ante, at 17 n.6. But those circuits were re- ferring to another passage in Williams that concerns a separate element of Davis claims: whether there needs to be additional instances of post-notice harassment. Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 343 (5th Cir. 2022) (citing Wil- liams, 477 F.3d at 1295–97); Fairfax Cnty. Sch. Bd., 1 F.4th at 273 (citing Williams, 477 F.3d at 1295–97). That is a different issue No. 22-2454 49
altogether from the threshold question of whether a single in- stance of pre-notice harassment is actionable under Title IX. The weight of authority confirms that the passage in Davis means what it says: a single instance of peer harassment is not enough to establish liability. See Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 620–21 (6th Cir. 2019); K.T. v. Culver- Stockton Coll., 865 F.3d 1054, 1059 (8th Cir. 2017); Williams, 477 F.3d at 1297–98; see also Davis, 526 U.S. at 677 (Kennedy, J., dissenting) (observing that the majority’s systemic intent re- quirement “exclude[s] the possibility that a single act of har- assment perpetrated by one student on one other student can form the basis for an actionable claim”). In Section V of its opinion, the majority goes on to explain how Arana’s alleged sexual assault had a systemic, concrete, and negative effect on her education. Ante, at 20–24. Because Davis categorically precludes finding that a single instance of harassment can have such an effect, I do not address this por- tion of the majority’s opinion, except to say I disagree that the facts in the record are sufficient to show the alleged assault “so undermine[d] and detract[ed] from [Arana’s] educational experience, that [she was] effectively denied equal access to [the University’s] resources and opportunities.” Davis, 526 U.S. at 651. B Apart from the lack of actionable harassment, the Univer- sity also isn’t liable under Davis because its response to the alleged assault did not amount to deliberate indifference. De- liberate indifference means the school’s response is “so unrea- sonable, under all the circumstances, as to constitute an offi- cial decision to permit discrimination.” C.S. v. Madison Metro. 50 No. 22-2454
Sch. Dist., 34 F.4th 536, 543 (7th Cir. 2022) (en banc) (quotation omitted); accord Davis, 526 U.S. at 648. This standard is inten- tionally high “to eliminate any risk” that a school will be held liable for the acts of others rather than its own decision to per- mit sex discrimination. Id. at 643 (quotation omitted). All it requires is that a school “respond to known peer harassment in a manner that is not clearly unreasonable.” Id. at 649. “This is not a mere reasonableness standard,” and courts are fully capable of deciding the question as a matter of law in appro- priate cases. Id. (quotation omitted). Our case law applying this standard has emphasized that Title IX neither grants plaintiffs the right “to make particular remedial demands,” id. at 648, nor “force[s] funding recipi- ents to suspend or expel every student accused of miscon- duct,” Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 825 (7th Cir. 2003). A school’s “response does not have to be perfect or even successful” to meet this stand- ard. C.S., 34 F.4th at 543. Instead, schools “‘continue to enjoy the flexibility they require’ in disciplinary decisions unless their response to harassment is ‘clearly unreasonable.’” Doe v. Galster, 768 F.3d 611, 619 (7th Cir. 2014) (quoting Davis, 526 U.S. at 648–49). “And we will not second guess a school’s dis- ciplinary decisions—even a school’s decision not to impose any disciplinary measures—so long as those decisions are not clearly unreasonable. Indeed, judges make poor vice princi- pals.” Johnson v. Ne. Sch. Corp., 972 F.3d 905, 912 (7th Cir. 2020) (cleaned up). The majority and I agree that the University’s response be- fore the readmission decision satisfies this standard, and that the University had the ability to revisit and reverse its prior disciplinary decision even if it ultimately reached the wrong No. 22-2454 51
conclusion. Ante, at 24–25, 28. We also agree that the Univer- sity did not need to maintain Cephus’s expulsion from cam- pus in lieu of continuing to enforce its no-contact order, which remained in place after Cephus was readmitted. Id. at 29. Nev- ertheless, the majority says a reasonable jury could find that the University was deliberately indifferent because there is evidence that it (1) acted in bad faith when it decided to read- mit Cephus, and (2) did not intend to enforce the no-contact order. That conclusion ignores the limits of our review under Title IX and is unsupported by the record. 1 The majority believes a reasonable jury could find that the University readmitted Cephus in bad faith. It says the timing of Cephus’s readmission was suspicious, there was intense pressure on Blank to readmit Cephus, and the new evidence included in Cephus’s petition did little to undermine the Uni- versity’s prior findings. So it concludes that a reasonable jury could find Blank’s reliance on this additional evidence was pretextual. The implication is that there is evidence Blank let Cephus back on campus to appease donors, the football pro- gram, and its fans. But the majority’s chain of inferences is not supported by the evidence and ignores the limits of our re- view under Title IX. Consider the majority’s suspicions about the timing of the University’s decision. The majority says that “the decision to readmit Cephus concluded within weeks, just in time for the start of the football season,” which “looks suspicious.” Ante, at 26. But the majority’s suspicion about timing is not evi- dence of anything. And oddly missing from its discussion is Blank’s sworn testimony about her legitimate motivations for proceeding swiftly, including her concern that the fall 52 No. 22-2454
semester was going to start very soon, and that the University needed to make a decision within a month to ensure that Ce- phus, if readmitted, would be able to start school on time. Nothing in the record suggests that Blank was lying or that she made her decision “simply to avoid angering key boosters and interest groups.” Id. at 26. “Personal knowledge can in- clude reasonable inferences, but it does not include speculat- ing as to [a school’s] state of mind, or other intuitions, hunches, or rumors.” Widmar v. Sun Chem. Corp., 772 F.3d 457, 460 (7th Cir. 2014). Next, the majority reasons that because the new evidence Blank considered “does not undermine” the University’s original findings “as much as the University suggests,” a jury could find the readmission decision was based on pretext. Ante, at 26. The majority is effectively saying that because the University did not make the “right” decision, there is a genu- ine dispute as to whether it made its decision in good faith. That is hard to square with the majority’s own acknowledge- ment that “a school [cannot] be held liable under Title IX simply because an official draws the wrong conclusion from a good-faith evaluation of the evidence.” Id. at 28. If the pri- mary evidence of pretext here is the fact that a reasonable jury could disagree with the conclusions the University drew from the evidence, the line between honest mistake and bad faith collapses. Such a close examination of the record also ignores the limits of our review under Title IX. Remember, “we will not second guess a school’s disciplinary decisions—even a school’s decision not to impose any disciplinary measures— so long as those decisions are not clearly unreasonable.” John- son, 972 F.3d at 912. The majority’s interrogation of the No. 22-2454 53
University’s readmission decision ignores this cautionary lan- guage, chiding Blank for relying on evidence that was “not as probative” and because additional context made certain evi- dence “less convincing.” Ante, at 28. In doing so, the majority applies something more akin to the “mere reasonableness standard” the Court expressly rejected in Davis. 526 U.S. at 649 (quotation omitted). 2 Even if the University’s readmission decision was made in bad faith, no reasonable jury could find that its overall re- sponse was so clearly unreasonable that it amounted to delib- erate indifference. The University’s investigation, discipli- nary proceedings, support for Arana, and no-contact order ef- fectively separated Arana and Cephus the entire time they overlapped on campus. The University issued a no-contact or- der to Cephus as soon as Arana requested one, less than a week after learning of her allegations. And the single time the University learned that Cephus might have violated his no- contact order at the January 2019 disciplinary proceeding, it immediately stepped in and warned him not to do so again. After his readmission, the no-contact order remained in effect, Cephus never tried to contact Arana, and Arana never saw him on campus again. The majority agrees that the University did not need to maintain Cephus’s expulsion in lieu of enforcing the no- contact order. Ante, at 29. And for good reason. We have regularly found that schools are not deliberately indifferent when they’ve taken similar steps to minimize contact between a victim and her assailant. See, e.g., Johnson, 972 F.3d at 909– 15; C.S., 34 F.4th at 545–48; cf. Lapka v. Chertoff, 517 F.3d 974, 983–85 (7th Cir. 2008) (reaching a similar conclusion in the 54 No. 22-2454
Title VII context). Instead, the majority says there is “evidence that suggests the University had no interest in enforcing the [no-contact] order after Cephus’s readmission.” Ante, at 30. Specifically, it references Arana’s meeting in September 2019 with the director of the University’s Threat Intervention Services, where, Arana says, the director advised her to call 911 if she felt threatened and to avoid Cephus if she saw him around campus. These statements do not reasonably suggest that the Uni- versity did not intend to enforce the no-contact order after Ce- phus’s readmission. Suggesting Arana call 911 if she felt threatened and avoid Cephus if she saw him (i.e., common- sense advice) does not indicate the University would have al- lowed Cephus to violate his no-contact order without conse- quence. Holding otherwise, as the majority does here, would permit a plaintiff to defeat summary judgment any time she harbors a subjective suspicion that her school will not enforce its disciplinary decisions. At summary judgment, we don’t credit speculative theories lacking evidentiary foundation. Widmar, 772 F.3d at 460. Significantly, neither Arana nor her attorneys provided any information, in the September meeting or afterward, about any violation of the no-contact order. “The standard set out in Davis is not satisfied by knowledge that something might be happening …. School administrators have actual knowledge only of the incidents that they witness or that have been reported to them.” Galster, 768 F.3d at 617–18. The only time Arana reported an alleged violation of the no-contact or- der was before Cephus’s expulsion, and the University acted swiftly in response. The director’s advice does not create a genuine dispute of material fact when it is undisputed that No. 22-2454 55
the University kept a no-contact order in place and never learned of any violation or further harassment by Cephus. We reached a similar conclusion in C.S. There, a middle school principal became aware that an employee had an inap- propriate grooming relationship with the student-plaintiff. 34 F.4th at 546. Near the end of the student’s seventh grade year, the principal told the employee to “limit the hugs and physi- cal contact with [the student], avoid interacting with her in private settings, and set strong boundaries in his relationship with her.” Id. at 546 (cleaned up). Unbeknownst to the princi- pal, the employee repeatedly and horrifically sexually abused the student during her eighth grade year. Id. We held that the principal’s response to known discrimination “was not so un- reasonable as to amount to deliberate indifference to discrim- ination.” Id. at 547 (quotation omitted). The principal’s discus- sion with the employee satisfied the district’s obligations un- der Title IX, we said, because the record showed the principal “reasonably believed she had succeeded in minimizing his physical contact with [the student], since she received no fur- ther reports raising new concerns.” Id. And because the prin- cipal had learned of nothing further that would indicate the employee was not going to heed the principal’s earlier warn- ing, there was no “obligation for [the principal] to take further action.” Id. at 547–48. Like the principal in C.S., the University had no obligation to take additional action when it never learned of any further interaction between Arana and Cephus. C Finally, even if a school is deliberately indifferent to ac- tionable harassment in its programs and activities, it still isn’t 56 No. 22-2454
liable under Davis “unless its deliberate indifference subjects its students to harassment.” 526 U.S. at 644 (cleaned up); see also id. at 640–41 (“The [University] itself must … subject per- sons to discrimination under its programs or activities in or- der to be liable under Title IX.”) (cleaned up). That means Arana must have experienced further harassment after her fa- ther notified the University about the alleged sexual assault. Kollaritsch, 944 F.3d at 622. The majority holds otherwise, concluding that the Univer- sity’s response only needed to put Arana at risk of further har- assment, even if none occurred. Ante, at 18–19. It relies on a statement in Davis which says that a school’s “deliberate in- difference must, at minimum, cause students to undergo har- assment or make them liable or vulnerable to it.” 526 U.S. at 645 (cleaned up). In the majority’s view, the use of the disjunc- tive “or” means students do not have to undergo further har- assment to make out a claim so long as they are made liable or vulnerable to it. When read in isolation, the majority’s in- terpretation of the clause “or make them liable or vulnerable to it” is plausible. But “the language of an opinion is not al- ways to be parsed as though we were dealing with language of a statute.” Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979). Instead, the Court’s opinion “must be read with a careful eye to context.” Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 374 (2023). With context, it is clear the Court was simply elaborating on what it means to “subject” students to harassment. See Da- vis, 526 U.S. at 645 (citing to dictionaries defining the term “subject”). And this requirement—that plaintiffs must be sub- jected to harassment—presumes that further harassment has actually occurred. See Kollaritsch, 944 F.3d at 628–29 (Thapar, No. 22-2454 57
J., concurring) (“To be ‘subjected’ to a harm, as a matter of ordinary English, requires that you experience that harm.”). The sentence the majority relies on merely provides two ways a school’s inadequate response can subject its students to fur- ther harassment. Its response “might (1) be a detrimental ac- tion, thus fomenting or instigating further harassment, or it might (2) be an insufficient action (or no action at all), thus making the victim vulnerable to, meaning unprotected from, further harassment.” Id. at 623 (majority opinion). But either way, there still must be further harassment. Id. at 622–23. In other words: The Davis Court described wrongful conduct of both commission (directly causing further har- assment) and omission (creating vulnerability that leads to further harassment). The definition presumes that post-notice harassment has taken place; vulnerability is simply an alternative pathway to liability for harassment, not a free- standing alternative ground for liability. [T]he vulnerability component of the … definition was not an attempt at creating broad liability for damages for the possibility of harassment, but ra- ther an effort to ensure that a student who expe- riences post-notice harassment may obtain damages regardless of whether the harassment resulted from the institution placing the student in a position to experience that harassment or leaving the student vulnerable to it. Zachary Cormier, Is Vulnerability Enough? Analyzing the Juris- dictional Divide on the Requirement for Post-Notice Harassment in Title IX Litigation, 29 Yale J.L. & Feminism 1, 23–24 (2017). 58 No. 22-2454
The Court in Davis went to great lengths to emphasize the “very real limitations” it put in place to narrowly circum- scribe the scope of Title IX liability for peer harassment. Davis, 526 U.S. at 652. And it warned against mischaracterizing its decision in ways that would “impose more sweeping liabil- ity.” Id. Yet that is exactly what the majority does. Its strained interpretation—that a student need only be left vulnerable to the possibility of further harassment—provides no limit at all. When a school is deliberately indifferent to severe, pervasive, and objectively offensive harassment in its programs and ac- tivities, students are always left vulnerable to further harass- ment. If that was all the Court intended, it would not have imposed the additional requirement that the school’s deliber- ate indifference must also subject students to harassment. The majority has thus effectively erased one of Davis’s “very real limitations” on liability. Id. The majority’s decision cannot be reconciled with the cau- tious approach the Court took in Davis. That caution reflects, in part, a concern regarding adequate notice. See id. at 640–41, 644–45. Schools are only liable under Title IX as a condition of receiving federal funds, “much in the nature of a contract.” Id. at 639–40 (quotation omitted). Title IX liability therefore rests on whether a school “voluntarily and knowingly accepts the terms of the ‘contract,’” which it cannot do if it is “unable to ascertain what is expected of it.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). To ensure that schools can “exercise their choice knowingly, cognizant of the conse- quences of their participation,” the scope of their potential li- ability under Title IX must be “unambiguous[].” Id. If nothing else, no one could say the sweeping liability the majority per- mits today arises unambiguously from the text of Title IX or Davis. No. 22-2454 59
III The facts in the record are insufficient to establish any of the three elements necessary to make out a claim under Davis. A single instance of off-campus sexual assault does not con- stitute actionable harassment. Regardless, the University comprehensively and immediately responded to it anyway. When the University learned of new evidence that under- mined its findings after Cephus’s acquittal, it reduced his punishment from expulsion to suspension. Although it va- cated its earlier sexual assault finding, the University still re- quired Cephus to avoid all contact with Arana. And after he returned to campus, Arana never saw him again. No reason- able juror could find the University’s response deliberately in- different. Even if one could, the University still isn’t liable in the absence of further acts of harassment. In holding other- wise, the majority establishes a new Title IX standard that is irreconcilable with Davis and practically limitless in scope. I respectfully dissent and encourage the full court to act swiftly to bring our circuit back into alignment with Davis.
Opinion
In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2454 ISABELLE ARANA, Plaintiff-Appellant, v.
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Appellee. ____________________
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:20-cv-00856-wmc — William M. Conley, Judge. ____________________
ARGUED FEBRUARY 14, 2023 — DECIDED JULY 11, 2025 ____________________
Before ROVNER, KIRSCH, and JACKSON-AKIWUMI, Circuit Judges.
JACKSON-AKIWUMI, Circuit Judge. This Title IX action arose from the University of Wisconsin-Madison’s decision to read- mit a star football player after expelling him for sexually as- saulting two female students. The player submitted a petition for readmission shortly after a state court jury, deliberating a different charge using a different standard of proof, found 2 No. 22-2454
him not guilty of sexually assaulting the women. According to the petition for readmission—submitted mere weeks be- fore the football season began—evidence developed at the state court trial cast doubt on the University’s conclusion, af- ter its own investigation, that the player committed sexual as- sault as defined by the student code of conduct. Under pres- sure from influential parties, and without hearing from the survivors of the alleged assault, the University Chancellor granted the petition. One of the women, Isabelle Arana, responded by filing this suit. She alleges the school was deliberately indifferent to the sexual harassment she suffered. The district court dismissed the case after granting the University’s motion for summary judgment. The court acknowledged a jury could conclude the University acted with deliberate indifference if it made its re- admission decision in response to public pressure. But the court rejected Arana’s argument that the harassment she suf- fered was actionable under Title IX because it deprived her of access to educational opportunities. We find, however, that there is a genuine dispute as to whether the harassment Arana experienced was so severe and whether the University’s re- sponse was so clearly unreasonable that it had a detrimental effect on Arana’s education. A reasonable jury could resolve these disputes in Arana’s favor and find for her on her delib- erate indifference claim. We therefore reverse the grant of summary judgment and remand the case for further proceed- ings. I Isabelle Arana enrolled at the University of Wisconsin’s main campus in Madison, Wisconsin, in 2017. She abruptly interrupted her studies and returned home to Chicago in No. 22-2454 3
April of the following year. A few days later, Arana’s father informed the University that Arana had been sexually har- assed and assaulted by two members of the University’s foot- ball team, Quintez Cephus and Danny Davis III, the day be- fore returning home. The following day, the University’s Title IX coordinator, Lauren Hasselbacher, emailed Arana. She informed Arana the University had insufficient information to initiate an in- vestigation and offered to speak with Arana to proceed. Within days, the Madison Police Department informed the school that Cephus was the subject of a criminal investigation. Cephus was then suspended from the football team. Around that time, Arana expressed interest in a no-contact order and the school issued one against both players. The directive ap- plied indefinitely, and violations could result in disciplinary charges. The University was initially proactive in enforcing the no- contact order. Hasselbacher herself emailed the Dean’s Office to check whether Arana shared a class with either Cephus or Davis. Hasselbacher learned that Arana and Davis were in the same music class and worked with other administrators to separate the two. Another woman (“Complainant 1”) later contacted the University, alleging that she too was assaulted by Cephus the same night as Arana. She provided a written account to Has- selbacher alleging that Cephus had sexually assaulted her and Arana after they refused his advances. According to Com- plainant 1, the two women had been drinking heavily before accompanying Cephus to his apartment. Complainant 1 said that Arana appeared unconscious during the interaction due 4 No. 22-2454
to her intoxication and that Cephus enlisted Davis to take re- vealing photos of the two women without their consent. Hasselbacher determined she had enough information to charge both Cephus and Davis with assaulting and harassing the women, and a formal disciplinary inquiry commenced. The investigation spanned four months, during which all par- ties were offered an opportunity to provide statements, pre- sent evidence, and meet with investigators accompanied by representatives of their choosing. The investigation culmi- nated in a report detailing the evidence collected. An assistant dean concluded that the evidence showed, more likely than not, that Cephus had committed Second De- gree Sexual Assault, Third Degree Sexual Assault, and Sexual Harassment, as defined by University policy. 1 The assistant dean recommended Cephus be expelled and set the matter for consideration before a “Nonacademic Misconduct Hearing Committee.” The parties were provided with all available ev- idence to review, and they and their representatives were af- forded the opportunity to appear before the committee. On the morning of the meeting, Cephus approached Arana in an attempt, according to Arana’s attorney, to intim- idate her. The attorney stepped between the two to defuse the
1 “Second Degree Sexual Assault” encompassed sexual contact or in-
tercourse with a person incapable of providing consent due to intoxication if the respondent had actual knowledge of the inability to consent. UNIVERSITY OF WISCONSIN-MADISON, POL’Y ON SEXUAL HARASSMENT & SEXUAL VIOLENCE, at 14 (2018). “Third Degree Sexual Assault” included “Sexual intercourse with a person without … consent.” Id. at 15. And “Sexual Harassment” consisted of “[u]nwelcome sexual advances, re- quests for sexual favors, and other verbal or physical conduct of a sexual nature [that] … creates a hostile environment.” Id. at 14. No. 22-2454 5
situation and reported the incident as a violation of the no- contact order. 2 A university official reminded Cephus of the no-contact order and warned that he must leave the area when coming into contact with Arana. The disciplinary committee found that, by a preponder- ance of the evidence, Cephus was responsible for two of the three charges: Third Degree Sexual Assault and Sexual Har- assment. Not only was Arana too intoxicated to consent to sexual intercourse, the committee ruled, she had also affirm- atively denied permission. The committee further found that Cephus sexually harassed Arana by creating, intentionally or not, a hostile learning environment. The committee, however, reversed the Second Degree Sexual Assault charge after con- cluding the evidence was insufficient to support a finding that Cephus knew the level of Arana’s intoxication. Cephus was nonetheless expelled based on the other two charges, a deci- sion he appealed to the University’s Chancellor, Rebecca Blank, and then to the Board of Regents. Both appeals were denied, and the investigation closed after more than twelve months. The assistant dean ultimately found Davis not responsible for sexual harassment and neither Davis nor Cephus respon- sible for taking nude photographs of Arana. While Davis ad- mitted to taking photographs of the women at Cephus’s
2 The University argues that this is hearsay because an assistant dis-
trict attorney’s deposition testimony described the event as conveyed to him by Arana’s attorney. We of course may not consider inadmissible hearsay. Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016). But the record includes Arana’s and her attorney’s sworn accounts of the event. So, we need not rely on the purported hearsay. 6 No. 22-2454
direction, there was not sufficient evidence to establish that the women were naked in the photos. After the school’s Title IX investigation, Cephus’s criminal case advanced to trial in the Dane County Circuit Court. Ce- phus faced a single charge of Second Degree Sexual Assault. WIS. STAT. ANN. § 940.225(2)(cm). Like the University’s policy on Second Degree Sexual Assault, to be convicted of the Wis- consin equivalent, the jury had to find that Arana was “under the influence of an intoxicant to a degree which renders that person incapable of giving consent” and that Cephus had “ac- tual knowledge” of Arana’s inability to consent. Id. But unlike the University decisionmakers, who only had to decide whether Cephus was guilty by a preponderance of the evi- dence, the jury had to find Cephus guilty beyond a reasonable doubt. In essence, the jury was asked to convict Cephus of a charge the school had already found not supported by the ev- idence under the school’s less stringent evidentiary standard. The jury did not convict. Following the acquittal, one juror said that surveillance videos shown at trial—purportedly showing that the women were not outwardly displaying signs of severe intoxication—were “important” because they showed “how the victims looked in [Cephus’s] eyes.” Once acquitted in state court, Cephus filed a petition for readmission with Chancellor Blank. Although the initial Title IX investigation had spanned months, Cephus expected a re- sponse in two days, noting that “with the passing of each day, [his] ability to attend a Division I university and participate in athletics is compromised if not completely eliminated.” The petition was based on new evidence purportedly de- veloped during Cephus’s criminal trial that he claimed called into question the University’s findings. Specifically, he cited No. 22-2454 7
surveillance video, testimony from witnesses about their per- ception of the women’s sobriety, and testimony that drew into question Complainant 1’s credibility. The petition included a thumb drive with clips of the surveillance videos and a depo- sition transcript of one of the witnesses. Because “[t]he press for time [did] not allow for preparation of the trial transcript,” however, Cephus “recount[ed] the [other] evidence at trial.” The University’s general counsel was charged with re- viewing all the evidence and submitting a written report iden- tifying the most pertinent evidence for Chancellor Blank’s consideration. Chancellor Blank rarely reviewed all the evi- dence, relying on her counsel to do so. The University’s coun- sel reached out to Cephus’s attorney about the trial transcript because the University believed “it to be an essential element in the chancellor’s review of [Cephus’s] petition.” The prose- cutor at the criminal trial later told the University it had to order the transcripts if it wanted to know what happened at trial. The University’s counsel declined, saying time was of the essence. Chancellor Blank would later agree, saying a de- lay was not “tenable given the publicity this trial was get- ting,” and Cephus deserved a response in a “timely” fashion, as it would not be fair for him to put his life on hold after a jury had acquitted him. The Chancellor’s team spoke to select individuals who had been at the trial, including Cephus’s attorney, who Uni- versity representatives conferred with multiple times. The University did not speak to Arana or any of her legal team, none of whom had been informed of the petition or given a chance to review the newly submitted evidence. At the same time, the University received input from other interested parties. High-level donors pressured the 8 No. 22-2454
University to readmit Cephus quickly. Within 48 hours of re- ceiving the petition, Chancellor Blank received letters from five donors who each had given at least $1,000,000 and possi- bly over $100,000,000 collectively to the University. The letter writing campaign was initiated by Ted Kellner, whose name adorned the University’s football buildings; he had recently made a significant revocable pledge to the University. The University also tracked fan sentiment, monitoring a social media hashtag referencing Cephus, which was often ac- companied by an image of Cephus on the football field with an inscription reading, “Wisconsin Don’t Delay, Let Cephus Play!” Many of the posts tagged Chancellor Blank personally in hopes she would see them. Chancellor Blank further heard from the football program. The team wrote a letter urging her to readmit Cephus. Dozens of players took part in a press conference staged by Cephus and his legal team, perceived by the Chancellor to be part of a pressure campaign for Cephus’s reinstatement. The team’s head coach publicly proclaimed he would welcome Cephus back given the opportunity. Eight days after the petition was filed, Chancellor Blank called Hasselbacher to inform her that she would readmit Ce- phus. Chancellor Blank said she faced a difficult situation where “both sides” might sue and she had to do what was right. She could not ignore the “fast and unequivocal jury de- cision” and though she “[did not] take lightly overturning process,” she “[did not] see much other choice.” Hasselbacher advised that the women should be given a chance to respond. No. 22-2454 9
But the University declined the advice, as it was not required to by law. 3 Five days later, Chancellor Blank readmitted Cephus by vacating the finding that he was responsible for Third Degree Sexual Assault (recall that this includes “[s]exual intercourse with a person without … consent” and the University had found that Arana was too intoxicated to consent and had af- firmatively denied permission). UNIVERSITY OF WISCONSIN- MADISON, POL’Y ON SEXUAL HARASSMENT & SEXUAL VIOLENCE, at 15 (2018). According to the Chancellor, various witnesses consistently reported that the women consumed alcohol, but descriptions of their intoxication varied between “drunk,” “very drunk,” “buzzed,” “tipsy,” “hammered,” “drunk but acting normal,” and “blacked out.” Regardless, Chancellor Blank believed the surveillance video corroborated that Arana did not “exhibit outward signs of incapacitation.” The Chancellor’s decision did, however, uphold the sex- ual harassment finding against Cephus. But her rationale var- ied from the Board’s, which relied on Cephus’s continued presence creating a hostile learning environment. The Chan- cellor, in contrast, cited Cephus’s admission to taking nude photos of the women without their consent. Because of this
3 The Wisconsin Administrative Code at the time explicitly required
that a complainant be notified of any change to the disciplinary outcome. WIS. ADMIN. CODE USW § 17.18 (2016). Chancellor Blank interpreted this to mean Arana should not be involved before a decision was made be- cause the code did not expressly provide for her participation. The Wis- consin Administrative Code was amended a few years later to ensure that “[if] enrolled as a student at the time of the petition, the complainant shall be provided opportunity to respond to the petition prior to the readmis- sion decision.” WIS. ADMIN. CODE USW § 17.18 (2021). 10 No. 22-2454
and Cephus’s history—including other incidents of harass- ment and lying during the police and University investiga- tions—the Chancellor kept in place the no-contact order. Chancellor Blank was to personally notify several interested parties of her decision, including Kellner, the donor who re- cently made the revocable pledge to the University (the rec- ord does not indicate how many of the parties she in fact no- tified). Arana returned to campus two weeks later for a new se- mester. Worried that the no-contact order would prove insuf- ficient because Cephus had previously violated it, Arana and her counsel met with the University’s Assistant Dean of Stu- dents and its Director of Threat Intervention Services hoping to develop a safety plan. In an about-face from their prior pro- active stance, the two University personnel rejected Arana’s concerns because they saw no actionable threat, and told her instead to try avoiding Cephus and to call 9-1-1 if she felt threatened. Feeling the University’s response left her on her own and fearful of encountering Cephus, Arana skipped classes, did not use the student union or communal study spaces, and avoided walking through parts of campus where she might run into Cephus. Arana also reduced her attendance at soror- ity events, opting to stay in her apartment or return home to Chicago on weekends. These changes required her to “work[] harder and longer hours to attain the same grades.” Believing her fear and anxiety would limit her ability to succeed, she transferred from advanced to easier courses. Although she had been on track to graduate in three years, Arana’s reduced courseload delayed graduation by a semester, which in turn delayed her matriculation into law school by a full year. No. 22-2454 11
In June 2020, Arana filed a Title IX lawsuit against the Uni- versity, alleging, in part, deliberate indifference to the sexual harassment that she experienced. Arana and the University filed cross motions for summary judgment. The University conceded that it had knowledge of sexual harassment: it never vacated its finding that Cephus had violated the school’s policy on sexual harassment. But it argued that it was not liable under Title IX because Arana could not prove that the school was deliberately indifferent to the harassment or that the harassment deprived her of access to educational op- portunities. The district court disagreed with the University’s argu- ment that a reasonable jury could not find the school deliber- ately indifferent to the harassment Arana suffered. The dis- trict court disagreed because the decision to readmit Cephus “appears to have been driven by at best a desire to avoid any arguable liability for having suspended and expelled Cephus in response to his acquittal on criminal sexual assault charges less than two weeks before, or at worst, a desire to get an im- portant player back on the football field in time for the open- ing of UW’s football season.” Doe v. Bd. of Regents, 615 F. Supp. 3d 877, 885 (W.D. Wis. 2022). But the district court agreed with the University that Arana could not show the harassment at the hands of Cephus deprived her of educational opportuni- ties. In support of its conclusion, the court cited Arana’s oth- erwise successful academic performance. The district court 12 No. 22-2454
therefore denied Arana’s motion and granted the Univer- sity’s. 4 Arana appeals the grant of summary judgment in favor of the University, arguing the district court erred in concluding no reasonable jury could find for her on all elements of her Title IX claim. II Title IX was signed into law over 50 years ago to protect individuals from discriminatory sex-based practices in edu- cation and to prevent federal resources from being used to support such practices. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998). To achieve this goal, the law prohibits recipients of federal funds from causing anyone to “be ex- cluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity” based on sex. 20 U.S.C. § 1681(a). This prohibition has been interpreted expansively to give the law “a sweep as broad as its language.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982). The Supreme Court later recognized that Title IX includes an implied private right of action, Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979), and that it permits schools to be liable not just for their own direct acts of discrimination, but also for indirect discrimination claims involving teacher-on-student sexual harassment if the school had actual notice of the har- assment and was deliberately indifferent to it, Gebser, 524 U.S. at 292–93. Shortly after, the Court extended Gebser’s holding
4 The district court also concluded that Arana could not prevail on a
claim that the University directly discriminated against her. Neither party challenges that holding. No. 22-2454 13
to cases involving student-on-student sexual harassment. Da- vis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999). Under Davis, a successful Title IX claim based on student- on-student harassment requires the plaintiff to prove the fol- lowing elements: First, the school or its officials had actual knowledge of sex-based harassment. 526 U.S. at 650; see also Jauquet v. Green Bay Area Cath. Educ., Inc., 996 F.3d 802, 808 (7th Cir. 2021). Second, the harassment was “so severe, perva- sive, and objectively offensive” as to deprive access to educa- tional opportunities or benefits. 526 U.S. at 650. Third, the school’s response was deliberately indifferent to the harass- ment. Id. III “We review de novo a district court’s decision on cross- motions for summary judgment, construing all facts and drawing all reasonable inferences in favor of the party against whom the motion under consideration was filed.” Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017). That means we are to construe the facts in favor of Arana and will affirm the district court’s decision only if “there are no genuine issues of mate- rial fact.” Id. On the other hand, if a reasonable jury, on the evidence presented, could return a verdict in favor of Arana on her Title IX claim, then we must reverse. See Carmody v. Bd. of Trs. of Univ. of Ill., 893 F.3d 397, 401 (7th Cir. 2018). We begin by determining what is within the scope of our review. The University’s motion for summary judgment fo- cused on two arguments: that Arana was not deprived of ed- ucational opportunities and that the University’s response was not so unreasonable as to constitute deliberate indiffer- ence. Before us, the University makes the following additional 14 No. 22-2454
arguments: one instance of sexual harassment cannot be con- sidered pervasive and the one instance of harassment is not actionable because it occurred at a private apartment, an en- vironment outside the University’s control. The University al- luded to the control argument in a footnote to its brief in sup- port of summary judgment but, as Arana points out to us, the University did not develop the argument until its summary judgment reply brief, thereby waiving the argument. O’Neal v. Reilly, 961 F.3d 973, 974 (7th Cir. 2020); see also Costello v. Grundon, 651 F.3d 614, 637 (7th Cir. 2011) (declining to affirm summary judgment on “alternative bases” that were “not raised in the district court until the filing of the reply”). 5
5 We disagree with our dissenting colleague that it is appropriate to
consider this line of argument. Even setting aside the fact that our caselaw counsels against considering an argument developed only in a reply brief on summary judgment, the record has not been sufficiently developed to decide this fact-intensive issue. And the issue is, indeed, fact intensive. Take, for example, the Ninth Circuit’s decision in Brown v. Arizona finding that a university had control over an off-campus housing facility where a football player sexually assaulted other students. 82 F.4th 863, 878–79 (9th Cir. 2023). This holding was based on several pieces of evidence. First, the university’s football program conditioned athletes’ ability to live off cam- pus on good behavior and had the authority to revoke the privilege. Id. at 878. Second, the university’s Student Code of Conduct explicitly stated that it “applie[d] to student conduct both on-campus and off-campus be- cause off-campus misconduct can affect student health, safety, and secu- rity as much as on-campus misconduct can.” Id. (cleaned). Finally, a no- contact order imposed in Brown “expressly applied both to on-campus and off-campus spaces.” Id. Even the Eighth Circuit case on which the dis- sent relies limited its holding to the facts before it. See Roe v. St. Louis Univ., 746 F.3d 874, 884 (8th Cir. 2014) (“We conclude that on this record ….). By contrast, the parties here have not developed the factual record to a suffi- cient degree. As such, we decline the University’s invitation, which our dissenting colleague accepts, to decide this issue for the first time without No. 22-2454 15
The University arguably also waived its contention that the harassment was not pervasive. Id. But Arana does not ar- gue that the issue was waived, instead addressing the argu- ment’s merits on appeal, and she thus waives any waiver ar- gument. Riemer v. Ill. Dep’t of Transp., 148 F.3d 800, 804–05 n.4 (7th Cir. 1998). We therefore begin by examining whether the harassment experienced by Arana was severe, pervasive, and objectively offensive. IV To constitute actionable conduct under Title IX, student- on-student harassment must be severe, pervasive, and objec- tively offensive. Davis, 526 U.S. at 633. The inquiry into whether harassment is actionable “depends on a constellation of surrounding circumstances, expectations, and relation- ships.” Id. at 651. The severity and objective offensiveness of rape and sexual assault are not, and cannot be, in doubt. See Baskervill v. Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir. 1995) (actionable conduct in the Title VII context includes “sexual assaults” and “other physical contact, whether amorous or hostile, for which there is no consent express or implied”); see also Vengalattore v. Cornell Univ., 36 F.4th 87, 103 (7th Cir. 2022) (“Because Title VII’s discrimination prohibition overlaps Title IX’s prohibition against sex discrimination in education pro- grams … we have … long interpreted Title IX by looking to … the caselaw interpreting Title VII.” (cleaned)). The re- maining question is whether the harassment suffered by Arana was pervasive.
the benefit of a developed record, full briefing, or a decision from the dis- trict court. 16 No. 22-2454
The University claims that the harassment was not perva- sive. As support, it cites language in Davis expressing skepti- cism that a single instance of harassment can form the basis of Title IX liability. The Court explained that severe, pervasive, and objectively offensive harassment will have a “systemic ef- fect” on a student’s education. Davis, 526 U.S. at 652. “Alt- hough, in theory, a single instance of sufficiently severe one- on-one peer harassment could be said to have such an effect” it found “it unlikely that Congress would have thought such behavior sufficient to rise to this level.” Id. at 652–53. Accord- ing to the University, our dissenting colleague, and two of our sister circuits, this conclusively means a victim of a single sex- ual assault can never recover under Title IX. Post, at 46; Kol- laritsch v. Michigan State Univ. Bd. of Trs., 944 F.3d 613, 620–21 (6th Cir. 2019); K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1059 (8th Cir. 2017). Reading Davis plainly and with complete deference to its authority, we disagree, and we join three of our sister circuits in doing so. While the Court in Davis expressed skepticism at the sufficiency of alternative facts not then before it, it did not mandate hand-counting harassment. Given the potential life- altering and lasting impact of sexual assault, it is entirely con- ceivable that an instance of harassment may be sufficiently se- vere and pervasive to “differ markedly from the rarely action- able, theoretical single incident mentioned in Davis ….” Wil- liams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1298 (11th Cir. 2007). For this reason, several of our sister cir- cuits—the First, Fourth, and Eleventh—have held that single incidents of harassment may create Title IX liability “if that incident were vile enough and the institution’s response, after learning of it, unreasonable enough to have the combined sys- temic effect of denying access to a scholastic program or No. 22-2454 17
activity.” Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172 (1st Cir. 2007); see also Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021) (“Even a single incident of sexual harass- ment, if sufficiently severe, can inflict serious lasting harms on the victim—physical, psychological, emotional, and so- cial.”); Williams, 477 F.3d at 1297–98; Hill v. Cundiff, 797 F.3d 948, 973 (11th Cir. 2015). 6
6 In truth, the dissent’s view that the Eleventh Circuit stands on the
other side of this circuit split is a legible one. Post, at 48–49. In Williams, the Eleventh Circuit considered whether a female university student who was sexually assaulted by several male students on a single night had experi- enced sufficiently pervasive harassment under Davis. 477 F.3d at 1297–98. The Eleventh Circuit ultimately found the assault pervasive despite “oc- curring in one room over two hours” because the assailants undertook a “continuous series” of harassing actions such as conspiring to commit the gang rape and each assaulting Williams. Id. Yet, when examined more closely, it is unclear whether Williams requires plaintiffs to present evidence that multiple instances of harassment occurred before a school had actual notice of the discrimination (“pre-notice harassment”). After all, Williams was assaulted over the course of a single evening. Id. at 1298. And rather than clearly stating that Williams had shown that she suffered more than one instance of pre-notice harassment, the Eleventh Circuit instead found that the assault differed “markedly from the rarely actionable, theoretical single incident mentioned in Davis.” Id. To this end, two of our sister circuits read Williams to permit Title IX claims where only a single instance of harassment is alleged. See Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 273 (4th Cir. 2021) (reading Williams to permit Title IX claims “even though the plaintiff alleged only a single incident of pre-notice harassment”); Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 342–43 (5th Cir. 2022). Even assuming the dissent’s reading of Williams is correct, applying the Eleventh Circuit’s logic to the record before us still supports our con- clusion that the harassment Arana experienced was pervasive. After all, Arana, like Williams, presents evidence that Cephus was a “ringleader 18 No. 22-2454
We agree and adopt this standard because it promotes the appropriate balance between Davis’s twin aims of preventing students from being “denied access to educational benefits and opportunities on the basis of gender,” 526 U.S. at 650, and only holding institutions liable for their “own failure to act,” id. at 645. It recognizes the reality that while a student would reasonably feel apprehensive and fearful regardless of their school’s response to a report of egregious harassment, that fear and apprehension casts a pervasive shadow across the student’s schooling where administrators respond in an un- reasonable manner. The University argues that even if a single assault were actionable, they are not liable because Davis said that Title IX liability only attaches where a school’s deliberate indifference “subjects its students to harassment.” 526 U.S. at 644 (cleaned). They read this language to mean that they are not liable because it is not as if they responded insufficiently while Cephus committed further acts of sexual harassment. This reading unduly narrows Davis. Just after the quoted lan- guage, Davis states that a school’s response “must, at a mini- mum, cause students to undergo harassment or make them lia- ble or vulnerable to it.” Id. at 645 (emphasis added). 7 Davis is
who lured the victim to his territory” and conspired with Davis to harass Arana by taking nonconsensual photographs of her. Williams, 477 F.3d at 1298. She also presents evidence that Davis penetrated her vagina several times. These events, as in Williams, occurred in a continuous series over the course of a single evening. Id. Like the Eleventh Circuit, we believe that these events “differ markedly” from the nonactionable single incident considered in Davis. 7 The circuits are split as to whether this means that a Title IX plaintiff
must show that the school’s deliberate indifference after receiving notice of student-on-student harassment resulted in further concrete acts of No. 22-2454 19
more inclusive than the University alleges and would extend liability to instances where a school’s response puts a student at further risk of harassment. We therefore hold that Title IX monetary liability can extend to a single pre-notice instance of egregious harassment where the educational institution’s re- sponse was clearly unreasonable under the totality of the cir- cumstances. 8 For her part, Arana has presented sufficient evidence (in- cluding her own and other witnesses’ prior statements to Uni- versity personnel and campus police) for a jury to conclude that the harassment she experienced on that April evening
harassment or simply left the student more vulnerable to future acts of harassment. See Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 342– 43 (5th Cir. 2022) (recognizing 4-3 split in favor of no requirement to show further post-notice acts of actual harassment while declining to take a po- sition). On one side of the split stand the Sixth, Eighth, and Ninth Circuits, holding that a school can be deliberately indifferent only when its actions result in a further incident of harassment. Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 621 (6th Cir. 2019); K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1058 (8th Cir. 2017); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). The other side of the split consists of the First, Fourth, Tenth, and Eleventh Circuits, which hold that a school’s ac- tions need only make harassment more likely. Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172 (1st Cir. 2007), rev’d on other grounds, 555 U.S. 246 (2009); Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021); Farmer, 918 F.3d at 1105; Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1295–97 (11th Cir. 2007). 8 The dissent casts this holding as a “strained interpretation” of Davis.
Post, at 35, 58. Yet, it is the dissent’s own interpretation that strains against Davis’s plain text. Our colleague presumes, without explanation, that Da- vis’s “context” compels a requirement of further harassment. Id. at 56. But we, like the First, Fourth, Tenth, and Eleventh Circuits before us, find that the dissent’s formulation “overly distills the rule set forth by the Davis Court.” Fitzgerald, 504 F.3d at 172. 20 No. 22-2454
was sufficiently egregious as to be pervasive. Not only does she present evidence that Cephus sexually assaulted her, but that Cephus penetrated her vagina with his fingers and then his penis several times. She was unconscious throughout the assault. Cephus even enlisted Davis in between the assaults to help him take revealing photographs of her. We discuss the jury issue as to the insufficiency of the Uni- versity’s response infra in Part VI. V We next turn to Arana’s argument that the severe, perva- sive, and objectively offensive harassment that she suffered deprived her of educational opportunities and benefits, con- trary to the district court’s ruling. This relates to our inquiry into the severity of the harassment, as the harassment must, as outlined above, be severe enough to have “systemic ef- fect[s]” on the student’s education. Davis, 526 U.S. at 652–53. Put plainly, courts look to see whether the harassment “had a ‘concrete, negative effect’ on the victim’s access to education.” Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 821 (7th Cir. 2003) (quoting Davis, 526 U.S. at 654). In Davis, the Supreme Court explained that a drop in the plaintiff’s grades provided “necessary evidence of a potential link” between the harassment and the plaintiff’s education. 526 U.S. at 652. The Court did not, however, impose a thresh- old requirement that plaintiffs must demonstrate a decline in grades to succeed in a Title IX action. Indeed, courts have rec- ognized a variety of other suitable evidence demonstrates a “concrete negative effect.” Id. at 652; see, e.g., Gabrielle M., 315 F.3d at 823 (increased absenteeism); Wamer v. Univ. of No. 22-2454 21
Toledo, 27 F.4th 461, 471 (6th Cir. 2022) (changed course of study); Doe v. Sch. Dist. No. 1, 970 F.3d 1300, 1312–13 (10th Cir. 2020) (missed in-person instruction and socialization oppor- tunities); Farmer v. Kansas State Univ., 918 F.3d 1094, 1104–05 (10th Cir. 2019) (lost scholarship, withdrawal from extracur- riculars, and avoidance of campus areas without escorts). Arana, for her part, contends the district court misstated the law. Facially, the district court’s decision dismissed the idea that “proof of declining grades or absenteeism” was a prerequisite for Title IX liability. Doe v. Bd. of Regents, 615 F. Supp. 3d at 886. But the court nonetheless emphasized grades and absenteeism above all else. The court found it important that Arana continued participating in student groups and successfully graduated with a strong GPA in under four years. While mostly true, this characterization paints an overly rosy picture. The University recognized in its original Title IX investi- gation that sharing a campus with her assailant would create a hostile environment for Arana. Crucially, Arana has ex- plained over the course of this litigation how that environ- ment affected her education. Her anxiety prevented her from using certain campus resources. She skipped classes, did not use the student union or communal study spaces, and stayed away from certain parts of campus. Given these disruptions, she had to “work harder and longer hours to attain the same grades,” and transferred from advanced courses to easier courses. Ultimately, she graduated with good grades in only three and a half years, but she entered college expecting to graduate in three years based on credits carried from high school. That extra semester delayed her entry to law school by a year. Further, she reduced her attendance at sorority events, 22 No. 22-2454
choosing to return to Chicago many weekends rather than so- cialize. The University posits that, if anything, these effects are at- tributable to its readmission of Cephus and not the harass- ment he caused. See Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274–75 (4th Cir. 2021) (“[T]he main object of inquiry for this prong is the alleged sexual harassment, rather than the de- fendant’s response thereto. Indeed, the latter is relevant only to the issue of deliberate indifference.” (cleaned)). In support, the University marshals evidence that the effects Arana de- scribed did not begin right after the assault. This position ignores our caselaw finding that a victim of a violent assault is denied equal access when they graduate early with a limited diploma “rather than stay and complete the work needed for a full … diploma.” Doe v. Galster, 768 F.3d 611, 619 (7th Cir. 2014) (citing Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655 (2d Cir. 2012)). That reasoning applies in this context with equal strength where there is evidence that Arana struggled greatly after the assault and delayed her own graduation. See Doe, 1 F.4th at 275 (directing factfinders to “consider all of the surrounding circumstances … and an ap- propriate sensitivity to social context” when undertaking this inquiry). The University’s causal argument also stretches too far. For instance, in this case, the University’s decision forced Arana to share a campus with her assailant. It was this cam- pus environment that in part caused Arana’s struggles, and the environment was caused by the assault. True, one link in the causal chain was the University’s decision to readmit Ce- phus. This in no way detracts from the clear line one can draw between the assault and the detrimental effects Arana now No. 22-2454 23
describes. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020 (recognizing events often have multiple causes). If a jury were to find that the University’s readmission de- cision was clearly unreasonable, see infra Part VI, then it could appropriately rely on Arana’s testimony that she delayed her graduation, spent most of her time alone, or left campus en- tirely to find that the harassment and the University’s unrea- sonable response negatively affected her education in a con- crete way. The University appears to also question whether the hos- tile environment could have a systemic effect given Arana and Cephus overlapped for only one semester between his re- admission and his departure to pursue a professional football career. We see no reason to mandate an artificial threshold for the amount of time that need pass before an effect can be con- sidered systemic. Even if we did, we would not go so far as the University to categorically draw that line beyond one se- mester’s worth of harassment. We have no problem envision- ing that one semester’s interruption can adversely affect, or even completely derail, a student’s education. Arana’s asser- tions, if credited, establish as much. Fundamentally, the district court and University incor- rectly gauge the nature of education. To distill a student’s ed- ucation to “good” or “bad” academic achievements leaves “unanswered … the full spectrum of success that female stu- dents might have achieved” had they not been subject to dis- crimination and “excuse[s] discrimination because its victims are resilient enough to persist” in its face. Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 135 (4th Cir. 2022) (Keenan, J., concur- ring). A reasonable jury could rely on the dropped classes, changed courseload, and delayed graduation to find a 24 No. 22-2454
material impact on Arana’s academic performance, regard- less of whether her grades suffered. If Arana’s testimony is credited, the harassment she suf- fered ultimately left her unable to enjoy the full panoply of educational opportunities that made her classmates’ experi- ences enriching. This is sufficient to establish deprivation of educational opportunities because, after all, education is more than academics. 9 VI Where does this leave us? At this point a reasonable jury could conclude that Arana experienced severe, pervasive, and objectively offensive harassment after being sexually as- saulted and this fomented a hostile environment, having pro- found effects on her academic and social life. But the fact that Arana experienced harassment while studying at the Univer- sity of Wisconsin would not entitle her to damages from the University. Title IX imposes liability for “subject[ing],” Davis, 526 U.S. at 643, others to discrimination or making them “vul- nerable to it,” id. at 645, so “a recipient of federal funds may be liable in damages under Title IX only for its own miscon- duct.” Id. at 640. This means the University cannot be liable
9 As the Rape, Abuse and Incest National Network (“RAINN”) refer-
ences in its amicus brief, Chancellor Blank acknowledged the following in her remarks about returning to in-person instruction after the COVID-19 pandemic shuttered campus: “It is the connections and interactions that make UW-Madison a great university and that bring students here for a high-quality residential learning experience.” Brief for RAINN as Amicus Curiae at 17–18 (citing Chancellor Blank, Creating the New Normal: Return- ing to Campus, UNIVERSITY OF WISCONSIN: BLANK’S SLATE (Mar. 25, 2021), https://chancellor.wisc.edu/blog/creating-the-new-normal-returning-to- campus/). No. 22-2454 25
for the harassing conduct of Cephus unless its own deliberate indifference to the harassment subjected Arana or made her vulnerable to discrimination. See id. at 646–47. The University maintains that it was never deliberately in- different to Arana’s accusations of harassment because its “re- sponse was immediate, vigorous, and sustained.” It points to the ways the school supported Arana after she came forward with her allegations and how it expelled Cephus after a thor- ough investigation. But the adequacy of the University’s ini- tial Title IX investigation is not in dispute. Instead, Arana ar- gues that the school was deliberately indifferent when it re- admitted Cephus. The University believes that we cannot se- lectively examine one part of its response. What it seems to miss is that the challenged action, Cephus’s readmission, ef- fectively nullified the initial Title IX investigation. Regardless of how proper a school’s initial response, Title IX would be undone if a school could avoid liability by vacating a discipli- nary decision comporting with Title IX using a process that does not. The University insists that the Chancellor overturned the initial decision in response to legitimate changed circum- stances: a not guilty verdict and trial evidence showing Ce- phus was not responsible for sexual assault. This argument has a certain logic: A school should be able to make a good- faith evaluation of newly presented evidence that might change a prior disciplinary decision without running afoul of Title IX. Arana presents evidence, however, that suggests the University’s decision to readmit Cephus was not the product of a reasoned and good-faith reexamination but undue influ- ence. For instance, the University did not wait for the trial transcript, did not contact Arana about the new evidence or 26 No. 22-2454
to ask for other evidence from the trial, and yet it heard from numerous influential parties adverse to Arana’s interests. The University rightly points out that Wisconsin law did not require the Chancellor to involve Arana in the readmis- sion process. It maintains that the Chancellor therefore fol- lowed state law and cannot be deliberately indifferent. It may be true that the law did not require Arana’s participation, but it also did not seem to forbid it. Regardless, there is no need to decide whether a school can be deliberately indifferent when following state law. There is sufficient evidence apart from the exclusion of Arana from the readmission process that could lead a jury to conclude that the University unrea- sonably readmitted Cephus because of a desire to further the football program’s interests. That sufficient evidence is this: Although the initial inves- tigation spanned more than a year, the decision to readmit Cephus concluded within weeks, just in time for the start of the football season. The University contends that most of the legwork had been done during the initial investigation and Chancellor Blank needed to consider only a few pieces of new evidence. However, there is no escaping the fact that the time- line looks suspicious: Cephus’s petition for readmission came shortly before the football season commenced and demanded a favorable decision immediately. Layer on top of that influ- ential donors, fans, and the football program all making the same demand and one could reasonably conclude that Ce- phus’s readmission was meant to placate a growing chorus calling for just that result. For this reason, we disagree with the University’s argument that, ultimately, the true motive behind readmitting Cephus is inconsequential. A jury would be well within its rights to find the University was No. 22-2454 27
deliberately indifferent to known harassment simply to avoid angering key boosters and interest groups. Of course, it is pos- sible to view the evidence—particularly Chancellor Blank’s sworn testimony attesting to her nonmonetary motivations— and conclude that the Chancellor came to her conclusion in- dependent of these demands, but at this point we must make all reasonable inferences in favor of Arana. See Carmody, 893 F.3d at 401. Alongside the suspicious timing, the new evidence the University presents does not undermine its conclusions dur- ing the original Title IX investigation as much as the Univer- sity suggests. According to the University, critical to the Chancellor’s decision was a police interview with Complain- ant 1 where she described an interaction with Arana and Ce- phus: “[I said something] like we’re leaving, we’re going home, or something, and [Cephus] was like no, like come back in 20 minutes. And I was like what do you need 20 minutes for. And [Arana] was like sex.” But the University omits context that supports the conclusion that Arana was too intoxicated to provide consent. Complainant 1 continued: “[Arana] was like, her eyes were rolling to the back of her head. And he’s like come back in 20 minutes. He’s like get out of my room right now. And then I got mad at [Arana] and I was like are you really going to have sex with someone who just talked to me like that. And she was like not even respond- ing.” This context makes the evidence less convincing, sug- gesting the University presents it now as pretext. The same can be said about other evidence that the Chan- cellor alluded to in her readmission decision. The Chancellor highlighted testimony from witnesses who observed the two women before the incident; she noted their descriptions of the 28 No. 22-2454
women’s appearances ranged from “drunk” to “buzzed” to “black out.” But these witnesses’ observations, along with the Chancellor’s own belief that the women did not show “out- ward signs” of incapacitation in security footage captured be- fore they arrived at Cephus’s apartment, primarily addressed the outward appearance of the women and not their actual level of intoxication and resulting ability to consent to sex. This evidence, therefore, is most pertinent to a violation of the University’s prohibition against Second Degree Sexual As- sault, which requires actual knowledge of a person’s inability to consent—and was the charge the University already de- cided not to levy against Cephus. Their testimony is not as probative of the charge the University did initially find Ce- phus guilty of and vacated with the readmission—namely Third Degree Sexual Assault, which lacks a knowledge re- quirement. Indeed, Arana’s version of events that she drank heavily and was later unable to consent when alone with Complainant 1 and Cephus remains largely uncontradicted and supported by other evidence that the University had ac- cess to from the beginning. This includes texts Arana sent Complainant 1 the next morning asking if Complainant 1 was sure that Cephus and Arana had a sexual encounter and seek- ing details of the encounter. None of this is to say that a school can be held liable under Title IX simply because an official draws the wrong conclu- sion from a good-faith evaluation of the evidence. Even if a school wrongly concludes that harassment did not occur when the evidence shows that it did, it cannot be held liable under Title IX unless that decision was clearly unreasonable. See Gabrielle M., 315 F.3d at 824 (“[A]s long as the school’s re- sponse is not ‘clearly unreasonable,’ it cannot have acted with the requisite deliberate indifference to incur Title IX No. 22-2454 29
liability.”) (quoting Davis, 526 U.S. at 648–49). The decision to readmit Cephus was not clearly unreasonable solely because it may have been predicated on a mistaken reading of the ev- idence. We are even willing to accept the Chancellor’s charac- terization of the case as containing “ambiguity.” But because of the apparent weaknesses in the new evidence, coupled with the intense pressure the Chancellor was under to read- mit Cephus, a jury could decide to not credit the Chancellor’s testimony that donor money did not influence her and instead conclude that the University cited the new evidence as mere pretext to readmit a student because of a public pressure cam- paign. And sacrificing Arana’s interest in an educational en- vironment free from sex discrimination on the altar of the football program could be seen as clearly unreasonable by a jury. 10
10 The dissent posits that evidence of a pressure campaign is improper
and speculative. Post, at 51–53. We agree that a plaintiff cannot avoid sum- mary judgment based on ”testimony … speculating as to [the defendant’s] state of mind, or other intuitions, hunches, or rumors.” Widmar v. Sun Chemical Corp., 772 F.3d 457, 460 (7th Cir. 2014); FED. R. CIV. P. 56(c); FED. R. EVID. 602; see Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (collecting cases where testimony that adverse action was taken with discriminatory intent could not defeat summary judgment). There is a difference between speculative testimonial evidence and the circumstantial evidence here. Widmar, 772 F.3d at 460–62 (rejecting testimony claiming employer acted with discriminatory intent while reiterating that circumstantial evidence can establish impermissible motive). Arana does not rely on mere asser- tions of intent but points to letters from donors, news conferences, and an acknowledgment from the University that it was under pressure to read- mit Cephus. The dissent takes the Chancellor at her word that she tuned this pressure out. But that is not our call to make; it is a jury’s. See Norton v. Sam’s Club, 145 F.3d 114, 119 (2d Cir. 1998) (one “who discriminates is unlikely to leave a smoking gun … attesting to a discriminatory intent.” (cleaned)). And while the evidence of discrimination Arana presents is 30 No. 22-2454
No matter, the University believes it has an ace up its sleeve in the form of the no-contact order. The argument goes something like this: even if the school unreasonably readmit- ted Cephus, the University’s entire response was not clearly unreasonable because Cephus was directed not to contact Arana, providing her some modicum of safety. See C.S. v. Madison Metro. Sch. Dist., 34 F.4th 536, 543 (7th Cir. 2022) (en banc) (“[A] response does not have to be perfect or even suc- cessful.”). We are not in the business of scrutinizing every last disciplinary decision by substituting our judgment for that of school administrators. Gabrielle M., 315 F.3d at 825. Moreover, schools need not default to expulsion in response to accusa- tions of sexual harassment to avoid Title IX liability. Johnson v. N.E. Sch. Corp., 972 F.3d 905, 912 (7th Cir. 2020). We do not suggest that the University had to expel or maintain the ex- pulsion of Cephus in lieu of issuing a no-contact order. But even if a no-contact order was an appropriate response to the assault in this case, Arana submitted evidence that suggests the University had no interest in enforcing the order after Ce- phus’s readmission. If this evidence is credited, a jury could reasonably conclude that the University’s response to harass- ment was clearly unreasonable. 11
circumstantial rather than direct, that does not make it less probative. United States v. Rose, 12 F.3d 1414, 1417 (7th Cir. 1994). We draw, as we must, all reasonable inferences from this evidence in Arana’s favor, Kemp, 877 F.3d at 350, and leave for the jury the ultimate question of whether to credit those inferences or credit the Chancellor’s testimony and other evi- dence in the University’s favor. 11 This conclusion does not conflict with Johnson and C.S. as the dis-
sent suggests. Post, at 53, 55. We have made clear that the law does not require expulsion. Further, the dissent asserts that if the schools in those two cases avoided liability by telling the alleged assailant to avoid the No. 22-2454 31
The University points us to two facts showing it genuinely intended to enforce the no-contact order. First, it says that Ce- phus never violated the no-contact order after he was read- mitted. But that may be the result of Arana’s actions more than the University’s. Title IX’s protections would mean little if a school could avoid liability by relying on students to pro- tect themselves by curtailing engagement in educational op- portunities, the very result the law seeks to prevent. Second,
plaintiff but did not go so far as excluding the assaulter from school grounds then the University cannot be liable for doing the same here. But the dissent glosses over facts distinguishing those cases from the one be- fore us. The most significant one is the lack of evidence that the schools in those cases showed reluctance to enforce the disciplinary measures put in place (a no-contact order in Johnson, 972 F.3d at 908, and a verbal directive to cease the troubling behavior in C.S., 34 F.4th at 546). The dissent be- lieves that it can say for certain that the University did not express hesita- tion in enforcing the no-contact order and that it was positively the order, and not Arana’s own curtailment of her education, that prevented Arana and Cephus from seeing each other. We, on the other hand, recognize the conflicting evidence regarding the efficacy of the no-contact order. We may not usurp the jury’s role to resolve that conflict. See Runkel v. City of Springfield, 51 F.4th 736, 741–42 (7th Cir. 2022). Unlike the University, the school in Johnson was otherwise incapable of expelling the harassing student. Neither Johnson nor the student who raped her, Froschauer, cooperated with the school’s investigation, mean- ing that there was no way for the school to take greater disciplinary action as such action would have been unsupported by sufficient evidence. 972 F.3d at 909. Additionally, had the school expelled Froschauer, it would have risked violating the state court’s protective order specifically allow- ing him to attend classes. Id. at 909–10. The school therefore approved Johnson’s requested for a homebound learning exemption to avoid having classes with Froschauer. Id. at 909. While this did not eliminate the possi- bility that the two would cross paths at school, it indicates that the school did everything in its power to limit the students’ interactions because it felt it had a responsibility to do so. 32 No. 22-2454
the University points out that administrators met with Arana to hear her concerns about the continued enforcement of the no-contact order. But there is substantial disagreement about what happened at that meeting. A jury could infer a lack of interest in enforcing the order if it accepts Arana’s characteri- zation that the administrators simply told her to contact po- lice if she felt unsafe. This response could be seen as standing in marked contrast with the University’s prior proactive en- forcement of the no-contact order, especially considering that Cephus had, by then, already allegedly violated the order once before. And any lessened zeal at enforcing the no-contact order after Cephus’s readmission would be even more nota- ble, a jury could conclude, because Cephus had previously vi- olated the no-contact order at the very time and place one would expect him to be on his best behavior. A jury could ra- tionally conclude that Arana had reason to fear that someone who would violate the order at such a time and place might do it again, anywhere. A jury is of course free to accept the University’s framing that it was not dismissive of Arana and would have acted if there was a more acute threat. It is not our role, however, to decide the strength of competing evidence. That is a role for the jury to play, and we must allow it that opportunity. See Davis, 526 U.S. at 654 (“The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974))). VII At its core, the University’s arguments ask us to accept the parts of the record that suggest it acted reasonably while ig- noring the parts of the record that suggest otherwise. Whereas No. 22-2454 33
our dissenting colleague takes the University up on its pro- posal, we decline to do so at this stage of the proceedings as it is the role of the jury to weigh the evidence. We also decline to view each piece of evidence in isolation. When we view the following evidence holistically, we conclude that a reasonable jury could find for Arana: (a) the coordinated campaign to pressure the University to readmit Cephus, (b) the speed of the readmission decision relative to the start of the football season, (c) the decision not to wait for a transcript of the crim- inal trial, (d) the decision to not notify Arana or give her an opportunity to be heard prior to the readmission decision, (e) the differing charges and standards of proof at play in the criminal and disciplinary proceedings, and (f) the discrep- ancy between the University’s treatment of the no-contact or- der before and after readmission. Together, this evidence paints a portrait of an educational institution that, in a reason- able jury’s eyes, may have been deliberately indifferent to sex- ual harassment on its campus. Therefore, we REVERSE the district court’s grant of sum- mary judgment in the University’s favor and remand for fur- ther proceedings consistent with this opinion. 34 No. 22-2454
KIRSCH, Circuit Judge, dissenting. Title IX of the Education Amendments Act of 1972 bars federally funded schools from engaging in sex discrimination. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court rec- ognized that student-on-student harassment can amount to school-sanctioned sex discrimination. However, to eliminate any risk that schools would be held responsible for their stu- dents’ misconduct rather than for their own official decision to permit sex discrimination, the Court imposed a high bar for establishing liability that can only be met in certain limited circumstances. Section by section, the majority’s opinion erodes these carefully crafted limitations. The effect is the cre- ation of a new, practically limitless Title IX standard—one that would be unrecognizable to the Davis Court. Consider the limitations that schools only need to respond to peer harassment that occurs in their programs or activities and is so severe, pervasive, and objectively offensive that it has the systemic effect of denying the victim equal access to an educational opportunity or benefit. The Court expressly said in Davis that a single instance of harassment does not meet this standard. But the majority holds otherwise, dismiss- ing the language in Davis as mere dicta. To make matters worse, it does so in a case where the single instance of harass- ment did not even occur in the University of Wisconsin’s pro- grams or activities. The majority’s application of deliberate indifference is similarly difficult to comprehend. While it acknowledges that courts “are not in the business of scrutinizing every last disci- plinary decision by substituting our judgment for that of school administrators,” that is exactly what the majority does. Ante, at 30. Based on nothing more than speculation about the No. 22-2454 35
University’s motives and doubts that it made the right deci- sion to readmit Quintez Cephus, the majority holds that a jury could find the University’s response amounted to deliberate indifference. Even if there were an evidentiary basis for be- lieving the University’s readmission decision was made in bad faith—and there isn’t—nothing in the record suggests that its no-contact order was ineffective, let alone a clearly un- reasonable response to Isabelle Arana’s alleged assault. It is undisputed that following Cephus’s readmission, Arana never saw him again on campus, and the school never learned of any further contact between the two. No reasonable juror could find that the University’s response amounted to delib- erate indifference under these circumstances. Finally, a school isn’t liable under Davis unless its deliber- ate indifference subjects students to harassment. That means Arana must have experienced additional harassment as a re- sult of the University’s allegedly inadequate response. But the majority reads this limitation right out of Davis. Its strained interpretation—that a student need only be left vulnerable to the possibility of further harassment—provides no limit at all. When a school is deliberately indifferent to severe, pervasive, and objectively offensive harassment in its programs and ac- tivities, students are always left vulnerable to further harass- ment. If this requirement is to mean anything, it must mean something more than that. The majority cannot ignore Davis in favor of applying its own view of what the “appropriate balance” is between pre- venting harassment and subjecting schools to liability. Ante, at 18. I respectfully dissent. 36 No. 22-2454
I I accept Arana’s allegations and testimony as true at sum- mary judgment. See Osborn v. JAB Mgmt. Servs., Inc., 126 F.4th 1250, 1258 (7th Cir. 2025). But that “does not extend to draw- ing inferences that are supported by only speculation or con- jecture.” Id. (quotation omitted). A In late April 2018, Isabelle Arana’s father reported to the University of Wisconsin that Quintez Cephus had sexually as- saulted Arana at his off-campus apartment. The Dean of Stu- dents Office contacted Arana the same day, providing infor- mation about the University’s resources and rights for sexual assault victims. The Dean of Students Office also contacted Arana’s professors to inform them that Arana had been the victim of a sensitive crime and asked for their understanding in making academic accommodations. The day after, the Uni- versity’s Title IX Coordinator, Lauren Hasselbacher, emailed Arana information about support resources and potential protective measures at her disposal, such as no-contact direc- tives. The next day, Cephus was suspended from the football team indefinitely. Hasselbacher informed Arana a few days later that Cephus had been suspended from the team because he was the subject of a Madison Police Department criminal investigation. In response, Arana requested a no-contact or- der against Cephus and Danny Davis III (a fellow student and football player who was present the night of the alleged as- sault but later found not responsible for any misconduct). Hasselbacher issued no-contact orders to both Cephus and Davis the next day. The orders remained in effect indefinitely No. 22-2454 37
and required them to avoid all contact with Arana (emphases in original): After receiving allegations of sexual miscon- duct, I am issuing a No Contact Directive prohibit- ing you from having any contact with Isabelle Arana. Contact refers to any intentional words or actions including, but not limited to: tele- phone calls, text messages, instant messages, emails, Facebook, Twitter, or other forms of so- cial media …. If you have incidental contact, it is your responsi- bility to remove yourself from the situation as quickly as possible under the circumstances, to take means to separate, and to avoid further contact. Failure to do so could give reasonable inference of in- tentional, rather than incidental, contact and be a violation of this order.… Hasselbacher sent Arana copies of the no-contact orders the same day. Less than a month after issuing the no-contact orders, and after receiving more information from Arana and another stu- dent who also alleged that Cephus had assaulted her the same night as Arana, the University opened an official investiga- tion into Cephus. Hasselbacher issued Cephus a Notice of Charge informing him that he was under investigation for possible violations of the University’s policy against sexual assault and sexual harassment. It also reminded Cephus of his no-contact order. The Notice of Charge kicked off a Title IX investigation and disciplinary process against Cephus that spanned more than a year. 38 No. 22-2454
In late August 2018, the Dane County District Attorney’s Office filed criminal charges against Cephus. In light of the charges, Hasselbacher immediately reached out to Arana to ask if she had any concerns about returning to school or re- quests regarding her safety or academic accommodations. Ce- phus’s attorney demanded that the University delay the in- vestigation due to the criminal case against his client, but the University’s investigation pressed on. As the fall 2018 semes- ter approached, Hasselbacher also checked with the Dean of Students Office to ensure that Arana had no classes that would overlap with Cephus or Davis. When Arana’s father informed Hasselbacher that Arana had music class with Da- vis, an assistant dean went to the class to ensure he complied with the no-contact order. Hasselbacher immediately spoke with Arana’s attorney about the class overlap, apologized for the oversight, and asked whether Arana believed that Davis had made intentional contact with her. Hasselbacher also spoke with Davis’s attorney to discuss alternatives so that he and Arana would not be enrolled in the same class. Davis dropped the class that day. Hasselbacher presented her Final Investigative Report to the University’s Office of Student Conduct in October 2018. The decision whether to sanction Cephus based on the re- port’s findings was left to Assistant Dean Ervin Cox. Three weeks after receiving the report, Cox concluded that Cephus was responsible for sexual harassment and second- and third- degree sexual assault. Cox recommended expulsion. In January 2019, a three-member misconduct committee held a hearing on the findings and proposed sanction for Ce- phus. While waiting for the hearing to begin, Cephus walked toward Arana. Arana’s attorney perceived Cephus as walking No. 22-2454 39
in a threatening manner, so she stepped in front of him to pre- vent physical contact. Arana’s attorney reported the incident to an assistant dean at the hearing. The assistant dean imme- diately spoke to Cephus and reminded him that under the no- contact order, if he saw Arana, he needed to walk in the other direction and remove himself from the area. The committee unanimously found Cephus responsible by a preponderance of the evidence for third-degree sexual assault and sexual harassment. It also concluded that he was not responsible for second-degree sexual assault. By a 2-to-1 vote, the committee upheld the expulsion sanction. On March 13, 2019, Chancellor Rebecca Blank affirmed the committee’s findings and sanction recommendation, and Cephus was of- ficially banned from campus three days later. B On August 2, 2019, after a week-long criminal trial, a jury acquitted Cephus after 35 minutes of deliberation. Four days later, Cephus filed a petition seeking readmission to the Uni- versity. State law vested the readmission decision in the chan- cellor. See Wis. Admin. Code § UWS 17.18 (2016). The petition was 242 pages long, including exhibits. Cephus’s attorneys also sent the University a jump drive with approximately 70 video clips. After the petition was filed, Blank received many emails from alumni, donors, employees, students, and members of the public asking her to grant or deny Cephus’s petition for many different reasons. Several influential donors wrote to Blank urging her to readmit Cephus. Blank spoke with one of them, Ted Kellner, and told him what she told everyone else: that she appreciated his commentary and would make a decision after looking at the evidence. Blank testified that she was struck by the speed of the verdict, which 40 No. 22-2454
persuaded her that she needed to take the petition seriously and look at the additional evidence. Blank enlisted the Uni- versity’s vice chancellor for legal affairs and two other attor- neys from its Office of Legal Affairs to help her work on the petition. The vice chancellor tried to order a copy of the transcript from Cephus’s trial, but he was told by the court reporter that, even on an expedited basis, it would take at least several months to produce. Blank testified that it was not tenable to wait multiple months for the transcript. In her view, time was of the essence because the University was going to start soon, and if Cephus was going to be readmitted, she would make that decision within a month. She further explained that wait- ing was not a viable choice given the publicity the trial was getting and because the University had to respond in a timely manner to Title IX issues. On August 19, Blank granted Cephus’s petition. In her decision, she wrote that substantial amounts of information were not available to the University during the Title IX investigation and disciplinary proceedings, which affected the University’s prior findings. Specifically, she concluded that the evidence fell short of the preponderance of the evidence standard required to find Cephus responsible for third-degree sexual assault. Blank upheld the University’s finding of sexual harassment, however, based on Cephus’s admission in a police interview and at trial that he enlisted Davis to photograph Arana and the other complainant partially unclothed and without their consent. Blank reduced Cephus’s sanction from expulsion to a suspension effective from March 13 to the date of decision, thereby readmitting him for the fall semester. But Blank also determined that the No. 22-2454 41
no-contact order prohibiting Cephus from making any contact with Arana would remain in effect, and she warned that any additional misconduct would likely result in serious discipline. The University informed Arana of the reinstatement decision later that morning. In early September, the director of the University’s Threat Intervention Services met with Arana and her attorneys. Arana was terrified about Cephus being on campus and ex- pected the University to develop a safety plan. But although Arana and her attorneys expressed her fears about running into Cephus and other football players, they provided no in- formation about previous contact with any football players or statements by anyone on campus that could be construed as threats or harassment. Arana and her attorneys also did not indicate that Cephus had violated the no-contact order. Be- cause Arana provided no actionable information, the director concluded additional safety measures were not warranted at that time and advised Arana to call 911 if she felt threatened and to avoid Cephus if she saw him around campus. After Cephus returned to the University, he never tried to call, write, or contact Arana, and Arana never saw him on campus. No one else on campus ever said anything to Arana about what happened with Cephus. Arana continued to re- ceive support services and academic accommodations from the University. Following the fall semester, Cephus left the University to enter the NFL draft. II Title IX of the Education Amendments Act of 1972 pro- vides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the 42 No. 22-2454
benefits of, or be subjected to discrimination under any edu- cation program or activity receiving Federal financial assis- tance.” 20 U.S.C. § 1681(a). The statutory scheme gives admin- istrative agencies authority to enforce the guarantees of Ti- tle IX. Id. § 1682; see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 288 (1998). But in Cannon v. University of Chicago, 441 U.S. 677 (1979), the Supreme Court held that victims also have an implied right of action. Id. at 717. If a school engages in sex discrimination, it can be found liable for damages to the students it discriminated against. Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992). In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court clarified that student-on-student harassment can amount to school-sanctioned sex discrimination. Id. at 633. But to ensure that schools would only be held responsible for their own discriminatory practices, and not for the mis- conduct of their students, the Court placed significant re- strictions on when peer harassment could give rise to Title IX liability. Id. at 640–43 (imposing a “high standard” that creates liability only “in certain limited circumstances”). First, the school must have actual knowledge of actionable sexual har- assment in its programs or activities. Id. at 633, 650. Second, the school’s response must be clearly unreasonable in light of the circumstances, such that it amounts to deliberate indiffer- ence. Id. at 648. Third, the school’s deliberate indifference must subject its students to harassment. Id. at 644. A Schools do not have a duty to act under Davis unless they are aware of actionable sexual harassment in their programs or activities. Id. at 633. Sexual harassment is only actionable if it is “so severe, pervasive, and objectively offensive that it No. 22-2454 43
effectively bars the victim’s access to an educational opportunity or benefit.” Id. The majority says the alleged off- campus assault satisfies this standard. Ante, at 15–20. That conclusion is wrong twice over. First, unsupervised and unsponsored off-campus activity does not occur in a school’s programs or activities. Second, a single instance of sexual harassment is not sufficiently pervasive or widespread to have “the systemic effect of denying the victim equal access to an educational program or activity.” Davis, 526 U.S. at 652. 1 Start with the requirement that the harassment take place in a school’s programs or activities. Title IX only prohibits sex discrimination that occurs “under” “the operations of” a school receiving federal funds. 20 U.S.C. §§ 1681(a) & 1687. In Davis, the Court explained this means the harassment “must take place in a context subject to the school[’s] control” such that the school “exercises substantial control over both the harasser and the context in which the known harassment oc- curs.” 526 U.S. at 645. For example, the harassment in Davis took place during school hours and on school grounds— much of it in the classroom. Id. at 646. The Court recognized that the elementary school’s authority over its students in this context was “comprehensive,” “custodial and tutelary, per- mitting a degree of supervision and control that could not be exercised over free adults.” Id. (quotations omitted). Here, the alleged assault occurred in a privately owned apartment building in the middle of the night. Nothing in the record indicates the University exercised any supervision or control in this context, nor does Arana suggest she entered the apartment building to attend a University-sponsored pro- gram or activity. Instead, Arana argues that the University 44 No. 22-2454
had the authority to discipline Cephus for his off-campus mis- conduct because he was a student at the University and the school’s written policies permitted it to do so. While that may be true, it only establishes the University’s control over Ce- phus, not any control over the context in which the alleged assault occurred. Remember, Davis requires “substantial con- trol over both the harasser and the context in which the known harassment occurs.” Id. at 645 (emphases added). Absent any evidence of the latter, the alleged assault is not actionable har- assment. The Eighth Circuit reached the same conclusion in Roe v. St. Louis University, 746 F.3d 874 (8th Cir. 2014). Roe was raped during a private party in an off-campus apartment. Id. at 878– 79. She argued that “the University had disciplinary control over the rapist because he was a student and that universities may control certain off campus behavior due to the nature of the relationship between students and the institution.” Id. at 884. But the Eighth Circuit held that “a University must have had control over the situation in which the harassment or rape occurs” and “there was no evidence that the University had control over the student conduct at the off campus party.” Id.; see also Ostrander v. Duggan, 341 F.3d 745, 750–51 (8th Cir. 2003) (finding no control where the university “did not own, possess, or control” the off-campus premises where the al- leged assault occurred); accord Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 366 (6th Cir. 2012) (“When conduct occurs … off school grounds entirely, the school district has control over neither the harasser, nor the context.”) (quotation omit- ted). The majority largely avoids this issue. It says the Univer- sity waived this argument by merely alluding to it in a No. 22-2454 45
footnote in its opening brief before the district court. Ante, at 14. But the University did more than allude to this argument. It stated unequivocally that “[a]n off-campus sexual assault, without evidence of any on-campus harassment, cannot give rise to a Title IX claim,” and included case citations to support its view. Arana understood the University’s argument and addressed it in her response brief. That the district court did not consider the argument when it granted summary judg- ment is of no consequence. “We may affirm summary judg- ment on any ground supported by the record, as long as the parties adequately presented the issue before the district court and the nonmoving party had an opportunity to contest it.” King v. Hendricks Cnty. Comm’rs, 954 F.3d 981, 984 (7th Cir. 2020). The majority also says in a footnote that “the record has not been sufficiently developed to decide this fact-intensive issue.” Ante, at 14 n.5. For support, it points to evidence that the Ninth Circuit found relevant in Brown v. Arizona, 82 F.4th 863 (9th Cir. 2023), such as the fact that the school could dis- cipline its students for off-campus misconduct. Id. at 878. As an initial matter, much of the evidence the Brown court found relevant is already in the record, including the scope of the no-contact order and the University’s policies concerning off- campus misconduct. See id. at 878. But more fundamentally, both the majority and the Ninth Circuit’s decision in Brown err in conflating evidence of control over the harasser with evidence of control over the context in which the harassment occurs. The fact that a school can discipline students for off- campus misconduct bears on its control over the harasser, but it says nothing about the school’s control over particular off- campus environments. See id. at 887–89 (Rawlinson, J., dis- senting). Under the majority’s preferred approach, however, 46 No. 22-2454
a school would exercise control over every context in which two of its students interact, no matter how unrelated to its ed- ucational programs or activities, so long as its disciplinary policies gave it the authority to punish off-campus miscon- duct. That approach is incompatible with both the text of Ti- tle IX and Davis. Davis does not mandate that schools police the conduct of their students whenever and wherever it occurs. 526 U.S. at 644–45. School officials are only responsible for student mis- conduct in environments within their supervisory authority. Id. That includes settings like classrooms, school grounds, school buses, and other school-supervised or sponsored activ- ities that take place off campus. See Feminist Majority Found. v. Hurley, 911 F.3d 674, 713–14 (4th Cir. 2018) (Agee, J., con- curring in part and dissenting in part) (collecting cases). But it does not include unsupervised and unsponsored activities in a privately owned, off-campus apartment building. In that context, peer harassment neither occurs in a school’s pro- grams and activities nor is reasonably attributable to the school when it fails to act. 2 Even if we ignore the fact that the alleged assault did not occur in the University’s programs or activities, a single in- stance of peer harassment is not actionable under Davis. 526 U.S. at 652–53. Rather, the sexual harassment must be so se- vere, pervasive, and objectively offensive that it has “the sys- temic effect of denying the victim equal access to an educa- tional program or activity.” Id. at 652. While the Davis Court posited that “in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an ef- fect,” it found it “unlikely that Congress would have thought No. 22-2454 47
such behavior sufficient [given] the inevitability of student misconduct and the amount of litigation that would be in- vited by entertaining [such] claims.” Id. at 652–53. Accord- ingly, the Court decided that foreclosing liability for “claims of official indifference to a single instance of one-on-one peer harassment” would best “reconcile the general principle that Title IX prohibits official indifference to known peer sexual harassment with the practical realities of responding to stu- dent behavior, realities that Congress could not have meant to be ignored.” Id.; see also Gebser, 524 U.S. at 285 (explaining that the Court’s task is to infer how Congress would have ad- dressed the issue). The majority acknowledges this passage in Davis yet none- theless holds that the University can be held liable for a single instance of egregious harassment. Ante, at 15–19. To the ma- jority, the Court’s reasoning was merely dicta that we can dis- regard. Id. at 16. That is a remarkable proposition. Davis set out a comprehensive framework to limit the new cause of ac- tion the Court was creating. The Court’s discussion of con- duct that does not suffice to create liability is integral to un- derstanding how this framework should be applied. We are not entitled to ignore the Court’s determination of what Con- gress would have intended and decide for ourselves what the “appropriate balance” is between preventing harassment and subjecting schools to liability. Id. at 17. While the First and Fourth Circuits have similarly held that a single instance of peer harassment can be actionable, the persuasive force of their reasoning is limited by the fact that neither court mean- ingfully grapples with the relevant passage in Davis. The Fourth Circuit did not mention it in Doe v. Fairfax County School Board, 1 F.4th 257 (4th Cir. 2021). Id. at 273–74. And the First Circuit relegated it to a footnote in Fitzgerald v. Barnstable 48 No. 22-2454
School Committee, 504 F.3d 165 (1st Cir. 2007). Id. at 173 n.3. And neither decision suggests, as the majority now does, that the Court’s discussion was simply dicta. The majority says the Eleventh Circuit has taken a similar view. Ante, at 16–17 & n.6. But the two cases it cites both in- volved more than one instance of harassment, “markedly” distinguishing them from the “theoretical single incident mentioned in Davis.” Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1298 (11th Cir. 2007); Hill v. Cundiff, 797 F.3d 948, 973 (11th Cir. 2015) (quotation omitted). In fact, the Eleventh Circuit expressly stated in both cases that more than one instance of harassment is required to make out a Davis claim. See Williams, 477 F.3d at 1297 (“[G]ender discrimina- tion must be more widespread than a single instance of one- on-one peer harassment ….”) (quotation omitted); Hill, 797 F.3d at 972 (“To be severe, pervasive, and objectively offen- sive, the behavior must be serious enough to have a ‘systemic effect’ of denying equal access to an education. A ‘single in- stance of sufficiently severe one-on-one peer harassment’ can- not have such a systemic effect in light of ‘the amount of liti- gation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harass- ment.’”) (quoting Davis, 526 U.S. at 652–53). In a footnote, the majority says the Fourth and Fifth Circuits read Williams to permit Title IX claims based only on a single instance of pre- notice harassment. Ante, at 17 n.6. But those circuits were re- ferring to another passage in Williams that concerns a separate element of Davis claims: whether there needs to be additional instances of post-notice harassment. Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 343 (5th Cir. 2022) (citing Wil- liams, 477 F.3d at 1295–97); Fairfax Cnty. Sch. Bd., 1 F.4th at 273 (citing Williams, 477 F.3d at 1295–97). That is a different issue No. 22-2454 49
altogether from the threshold question of whether a single in- stance of pre-notice harassment is actionable under Title IX. The weight of authority confirms that the passage in Davis means what it says: a single instance of peer harassment is not enough to establish liability. See Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 620–21 (6th Cir. 2019); K.T. v. Culver- Stockton Coll., 865 F.3d 1054, 1059 (8th Cir. 2017); Williams, 477 F.3d at 1297–98; see also Davis, 526 U.S. at 677 (Kennedy, J., dissenting) (observing that the majority’s systemic intent re- quirement “exclude[s] the possibility that a single act of har- assment perpetrated by one student on one other student can form the basis for an actionable claim”). In Section V of its opinion, the majority goes on to explain how Arana’s alleged sexual assault had a systemic, concrete, and negative effect on her education. Ante, at 20–24. Because Davis categorically precludes finding that a single instance of harassment can have such an effect, I do not address this por- tion of the majority’s opinion, except to say I disagree that the facts in the record are sufficient to show the alleged assault “so undermine[d] and detract[ed] from [Arana’s] educational experience, that [she was] effectively denied equal access to [the University’s] resources and opportunities.” Davis, 526 U.S. at 651. B Apart from the lack of actionable harassment, the Univer- sity also isn’t liable under Davis because its response to the alleged assault did not amount to deliberate indifference. De- liberate indifference means the school’s response is “so unrea- sonable, under all the circumstances, as to constitute an offi- cial decision to permit discrimination.” C.S. v. Madison Metro. 50 No. 22-2454
Sch. Dist., 34 F.4th 536, 543 (7th Cir. 2022) (en banc) (quotation omitted); accord Davis, 526 U.S. at 648. This standard is inten- tionally high “to eliminate any risk” that a school will be held liable for the acts of others rather than its own decision to per- mit sex discrimination. Id. at 643 (quotation omitted). All it requires is that a school “respond to known peer harassment in a manner that is not clearly unreasonable.” Id. at 649. “This is not a mere reasonableness standard,” and courts are fully capable of deciding the question as a matter of law in appro- priate cases. Id. (quotation omitted). Our case law applying this standard has emphasized that Title IX neither grants plaintiffs the right “to make particular remedial demands,” id. at 648, nor “force[s] funding recipi- ents to suspend or expel every student accused of miscon- duct,” Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 825 (7th Cir. 2003). A school’s “response does not have to be perfect or even successful” to meet this stand- ard. C.S., 34 F.4th at 543. Instead, schools “‘continue to enjoy the flexibility they require’ in disciplinary decisions unless their response to harassment is ‘clearly unreasonable.’” Doe v. Galster, 768 F.3d 611, 619 (7th Cir. 2014) (quoting Davis, 526 U.S. at 648–49). “And we will not second guess a school’s dis- ciplinary decisions—even a school’s decision not to impose any disciplinary measures—so long as those decisions are not clearly unreasonable. Indeed, judges make poor vice princi- pals.” Johnson v. Ne. Sch. Corp., 972 F.3d 905, 912 (7th Cir. 2020) (cleaned up). The majority and I agree that the University’s response be- fore the readmission decision satisfies this standard, and that the University had the ability to revisit and reverse its prior disciplinary decision even if it ultimately reached the wrong No. 22-2454 51
conclusion. Ante, at 24–25, 28. We also agree that the Univer- sity did not need to maintain Cephus’s expulsion from cam- pus in lieu of continuing to enforce its no-contact order, which remained in place after Cephus was readmitted. Id. at 29. Nev- ertheless, the majority says a reasonable jury could find that the University was deliberately indifferent because there is evidence that it (1) acted in bad faith when it decided to read- mit Cephus, and (2) did not intend to enforce the no-contact order. That conclusion ignores the limits of our review under Title IX and is unsupported by the record. 1 The majority believes a reasonable jury could find that the University readmitted Cephus in bad faith. It says the timing of Cephus’s readmission was suspicious, there was intense pressure on Blank to readmit Cephus, and the new evidence included in Cephus’s petition did little to undermine the Uni- versity’s prior findings. So it concludes that a reasonable jury could find Blank’s reliance on this additional evidence was pretextual. The implication is that there is evidence Blank let Cephus back on campus to appease donors, the football pro- gram, and its fans. But the majority’s chain of inferences is not supported by the evidence and ignores the limits of our re- view under Title IX. Consider the majority’s suspicions about the timing of the University’s decision. The majority says that “the decision to readmit Cephus concluded within weeks, just in time for the start of the football season,” which “looks suspicious.” Ante, at 26. But the majority’s suspicion about timing is not evi- dence of anything. And oddly missing from its discussion is Blank’s sworn testimony about her legitimate motivations for proceeding swiftly, including her concern that the fall 52 No. 22-2454
semester was going to start very soon, and that the University needed to make a decision within a month to ensure that Ce- phus, if readmitted, would be able to start school on time. Nothing in the record suggests that Blank was lying or that she made her decision “simply to avoid angering key boosters and interest groups.” Id. at 26. “Personal knowledge can in- clude reasonable inferences, but it does not include speculat- ing as to [a school’s] state of mind, or other intuitions, hunches, or rumors.” Widmar v. Sun Chem. Corp., 772 F.3d 457, 460 (7th Cir. 2014). Next, the majority reasons that because the new evidence Blank considered “does not undermine” the University’s original findings “as much as the University suggests,” a jury could find the readmission decision was based on pretext. Ante, at 26. The majority is effectively saying that because the University did not make the “right” decision, there is a genu- ine dispute as to whether it made its decision in good faith. That is hard to square with the majority’s own acknowledge- ment that “a school [cannot] be held liable under Title IX simply because an official draws the wrong conclusion from a good-faith evaluation of the evidence.” Id. at 28. If the pri- mary evidence of pretext here is the fact that a reasonable jury could disagree with the conclusions the University drew from the evidence, the line between honest mistake and bad faith collapses. Such a close examination of the record also ignores the limits of our review under Title IX. Remember, “we will not second guess a school’s disciplinary decisions—even a school’s decision not to impose any disciplinary measures— so long as those decisions are not clearly unreasonable.” John- son, 972 F.3d at 912. The majority’s interrogation of the No. 22-2454 53
University’s readmission decision ignores this cautionary lan- guage, chiding Blank for relying on evidence that was “not as probative” and because additional context made certain evi- dence “less convincing.” Ante, at 28. In doing so, the majority applies something more akin to the “mere reasonableness standard” the Court expressly rejected in Davis. 526 U.S. at 649 (quotation omitted). 2 Even if the University’s readmission decision was made in bad faith, no reasonable jury could find that its overall re- sponse was so clearly unreasonable that it amounted to delib- erate indifference. The University’s investigation, discipli- nary proceedings, support for Arana, and no-contact order ef- fectively separated Arana and Cephus the entire time they overlapped on campus. The University issued a no-contact or- der to Cephus as soon as Arana requested one, less than a week after learning of her allegations. And the single time the University learned that Cephus might have violated his no- contact order at the January 2019 disciplinary proceeding, it immediately stepped in and warned him not to do so again. After his readmission, the no-contact order remained in effect, Cephus never tried to contact Arana, and Arana never saw him on campus again. The majority agrees that the University did not need to maintain Cephus’s expulsion in lieu of enforcing the no- contact order. Ante, at 29. And for good reason. We have regularly found that schools are not deliberately indifferent when they’ve taken similar steps to minimize contact between a victim and her assailant. See, e.g., Johnson, 972 F.3d at 909– 15; C.S., 34 F.4th at 545–48; cf. Lapka v. Chertoff, 517 F.3d 974, 983–85 (7th Cir. 2008) (reaching a similar conclusion in the 54 No. 22-2454
Title VII context). Instead, the majority says there is “evidence that suggests the University had no interest in enforcing the [no-contact] order after Cephus’s readmission.” Ante, at 30. Specifically, it references Arana’s meeting in September 2019 with the director of the University’s Threat Intervention Services, where, Arana says, the director advised her to call 911 if she felt threatened and to avoid Cephus if she saw him around campus. These statements do not reasonably suggest that the Uni- versity did not intend to enforce the no-contact order after Ce- phus’s readmission. Suggesting Arana call 911 if she felt threatened and avoid Cephus if she saw him (i.e., common- sense advice) does not indicate the University would have al- lowed Cephus to violate his no-contact order without conse- quence. Holding otherwise, as the majority does here, would permit a plaintiff to defeat summary judgment any time she harbors a subjective suspicion that her school will not enforce its disciplinary decisions. At summary judgment, we don’t credit speculative theories lacking evidentiary foundation. Widmar, 772 F.3d at 460. Significantly, neither Arana nor her attorneys provided any information, in the September meeting or afterward, about any violation of the no-contact order. “The standard set out in Davis is not satisfied by knowledge that something might be happening …. School administrators have actual knowledge only of the incidents that they witness or that have been reported to them.” Galster, 768 F.3d at 617–18. The only time Arana reported an alleged violation of the no-contact or- der was before Cephus’s expulsion, and the University acted swiftly in response. The director’s advice does not create a genuine dispute of material fact when it is undisputed that No. 22-2454 55
the University kept a no-contact order in place and never learned of any violation or further harassment by Cephus. We reached a similar conclusion in C.S. There, a middle school principal became aware that an employee had an inap- propriate grooming relationship with the student-plaintiff. 34 F.4th at 546. Near the end of the student’s seventh grade year, the principal told the employee to “limit the hugs and physi- cal contact with [the student], avoid interacting with her in private settings, and set strong boundaries in his relationship with her.” Id. at 546 (cleaned up). Unbeknownst to the princi- pal, the employee repeatedly and horrifically sexually abused the student during her eighth grade year. Id. We held that the principal’s response to known discrimination “was not so un- reasonable as to amount to deliberate indifference to discrim- ination.” Id. at 547 (quotation omitted). The principal’s discus- sion with the employee satisfied the district’s obligations un- der Title IX, we said, because the record showed the principal “reasonably believed she had succeeded in minimizing his physical contact with [the student], since she received no fur- ther reports raising new concerns.” Id. And because the prin- cipal had learned of nothing further that would indicate the employee was not going to heed the principal’s earlier warn- ing, there was no “obligation for [the principal] to take further action.” Id. at 547–48. Like the principal in C.S., the University had no obligation to take additional action when it never learned of any further interaction between Arana and Cephus. C Finally, even if a school is deliberately indifferent to ac- tionable harassment in its programs and activities, it still isn’t 56 No. 22-2454
liable under Davis “unless its deliberate indifference subjects its students to harassment.” 526 U.S. at 644 (cleaned up); see also id. at 640–41 (“The [University] itself must … subject per- sons to discrimination under its programs or activities in or- der to be liable under Title IX.”) (cleaned up). That means Arana must have experienced further harassment after her fa- ther notified the University about the alleged sexual assault. Kollaritsch, 944 F.3d at 622. The majority holds otherwise, concluding that the Univer- sity’s response only needed to put Arana at risk of further har- assment, even if none occurred. Ante, at 18–19. It relies on a statement in Davis which says that a school’s “deliberate in- difference must, at minimum, cause students to undergo har- assment or make them liable or vulnerable to it.” 526 U.S. at 645 (cleaned up). In the majority’s view, the use of the disjunc- tive “or” means students do not have to undergo further har- assment to make out a claim so long as they are made liable or vulnerable to it. When read in isolation, the majority’s in- terpretation of the clause “or make them liable or vulnerable to it” is plausible. But “the language of an opinion is not al- ways to be parsed as though we were dealing with language of a statute.” Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979). Instead, the Court’s opinion “must be read with a careful eye to context.” Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 374 (2023). With context, it is clear the Court was simply elaborating on what it means to “subject” students to harassment. See Da- vis, 526 U.S. at 645 (citing to dictionaries defining the term “subject”). And this requirement—that plaintiffs must be sub- jected to harassment—presumes that further harassment has actually occurred. See Kollaritsch, 944 F.3d at 628–29 (Thapar, No. 22-2454 57
J., concurring) (“To be ‘subjected’ to a harm, as a matter of ordinary English, requires that you experience that harm.”). The sentence the majority relies on merely provides two ways a school’s inadequate response can subject its students to fur- ther harassment. Its response “might (1) be a detrimental ac- tion, thus fomenting or instigating further harassment, or it might (2) be an insufficient action (or no action at all), thus making the victim vulnerable to, meaning unprotected from, further harassment.” Id. at 623 (majority opinion). But either way, there still must be further harassment. Id. at 622–23. In other words: The Davis Court described wrongful conduct of both commission (directly causing further har- assment) and omission (creating vulnerability that leads to further harassment). The definition presumes that post-notice harassment has taken place; vulnerability is simply an alternative pathway to liability for harassment, not a free- standing alternative ground for liability. [T]he vulnerability component of the … definition was not an attempt at creating broad liability for damages for the possibility of harassment, but ra- ther an effort to ensure that a student who expe- riences post-notice harassment may obtain damages regardless of whether the harassment resulted from the institution placing the student in a position to experience that harassment or leaving the student vulnerable to it. Zachary Cormier, Is Vulnerability Enough? Analyzing the Juris- dictional Divide on the Requirement for Post-Notice Harassment in Title IX Litigation, 29 Yale J.L. & Feminism 1, 23–24 (2017). 58 No. 22-2454
The Court in Davis went to great lengths to emphasize the “very real limitations” it put in place to narrowly circum- scribe the scope of Title IX liability for peer harassment. Davis, 526 U.S. at 652. And it warned against mischaracterizing its decision in ways that would “impose more sweeping liabil- ity.” Id. Yet that is exactly what the majority does. Its strained interpretation—that a student need only be left vulnerable to the possibility of further harassment—provides no limit at all. When a school is deliberately indifferent to severe, pervasive, and objectively offensive harassment in its programs and ac- tivities, students are always left vulnerable to further harass- ment. If that was all the Court intended, it would not have imposed the additional requirement that the school’s deliber- ate indifference must also subject students to harassment. The majority has thus effectively erased one of Davis’s “very real limitations” on liability. Id. The majority’s decision cannot be reconciled with the cau- tious approach the Court took in Davis. That caution reflects, in part, a concern regarding adequate notice. See id. at 640–41, 644–45. Schools are only liable under Title IX as a condition of receiving federal funds, “much in the nature of a contract.” Id. at 639–40 (quotation omitted). Title IX liability therefore rests on whether a school “voluntarily and knowingly accepts the terms of the ‘contract,’” which it cannot do if it is “unable to ascertain what is expected of it.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). To ensure that schools can “exercise their choice knowingly, cognizant of the conse- quences of their participation,” the scope of their potential li- ability under Title IX must be “unambiguous[].” Id. If nothing else, no one could say the sweeping liability the majority per- mits today arises unambiguously from the text of Title IX or Davis. No. 22-2454 59
III The facts in the record are insufficient to establish any of the three elements necessary to make out a claim under Davis. A single instance of off-campus sexual assault does not con- stitute actionable harassment. Regardless, the University comprehensively and immediately responded to it anyway. When the University learned of new evidence that under- mined its findings after Cephus’s acquittal, it reduced his punishment from expulsion to suspension. Although it va- cated its earlier sexual assault finding, the University still re- quired Cephus to avoid all contact with Arana. And after he returned to campus, Arana never saw him again. No reason- able juror could find the University’s response deliberately in- different. Even if one could, the University still isn’t liable in the absence of further acts of harassment. In holding other- wise, the majority establishes a new Title IX standard that is irreconcilable with Davis and practically limitless in scope. I respectfully dissent and encourage the full court to act swiftly to bring our circuit back into alignment with Davis.
Opinion
In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2454 ISABELLE ARANA, Plaintiff-Appellant, v.
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Appellee. ____________________
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:20-cv-00856-wmc — William M. Conley, Judge. ____________________
ARGUED FEBRUARY 14, 2023 — DECIDED JULY 11, 2025 ____________________
Before ROVNER, KIRSCH, and JACKSON-AKIWUMI, Circuit Judges.
JACKSON-AKIWUMI, Circuit Judge. This Title IX action arose from the University of Wisconsin-Madison’s decision to read- mit a star football player after expelling him for sexually as- saulting two female students. The player submitted a petition for readmission shortly after a state court jury, deliberating a different charge using a different standard of proof, found 2 No. 22-2454
him not guilty of sexually assaulting the women. According to the petition for readmission—submitted mere weeks be- fore the football season began—evidence developed at the state court trial cast doubt on the University’s conclusion, af- ter its own investigation, that the player committed sexual as- sault as defined by the student code of conduct. Under pres- sure from influential parties, and without hearing from the survivors of the alleged assault, the University Chancellor granted the petition. One of the women, Isabelle Arana, responded by filing this suit. She alleges the school was deliberately indifferent to the sexual harassment she suffered. The district court dismissed the case after granting the University’s motion for summary judgment. The court acknowledged a jury could conclude the University acted with deliberate indifference if it made its re- admission decision in response to public pressure. But the court rejected Arana’s argument that the harassment she suf- fered was actionable under Title IX because it deprived her of access to educational opportunities. We find, however, that there is a genuine dispute as to whether the harassment Arana experienced was so severe and whether the University’s re- sponse was so clearly unreasonable that it had a detrimental effect on Arana’s education. A reasonable jury could resolve these disputes in Arana’s favor and find for her on her delib- erate indifference claim. We therefore reverse the grant of summary judgment and remand the case for further proceed- ings. I Isabelle Arana enrolled at the University of Wisconsin’s main campus in Madison, Wisconsin, in 2017. She abruptly interrupted her studies and returned home to Chicago in No. 22-2454 3
April of the following year. A few days later, Arana’s father informed the University that Arana had been sexually har- assed and assaulted by two members of the University’s foot- ball team, Quintez Cephus and Danny Davis III, the day be- fore returning home. The following day, the University’s Title IX coordinator, Lauren Hasselbacher, emailed Arana. She informed Arana the University had insufficient information to initiate an in- vestigation and offered to speak with Arana to proceed. Within days, the Madison Police Department informed the school that Cephus was the subject of a criminal investigation. Cephus was then suspended from the football team. Around that time, Arana expressed interest in a no-contact order and the school issued one against both players. The directive ap- plied indefinitely, and violations could result in disciplinary charges. The University was initially proactive in enforcing the no- contact order. Hasselbacher herself emailed the Dean’s Office to check whether Arana shared a class with either Cephus or Davis. Hasselbacher learned that Arana and Davis were in the same music class and worked with other administrators to separate the two. Another woman (“Complainant 1”) later contacted the University, alleging that she too was assaulted by Cephus the same night as Arana. She provided a written account to Has- selbacher alleging that Cephus had sexually assaulted her and Arana after they refused his advances. According to Com- plainant 1, the two women had been drinking heavily before accompanying Cephus to his apartment. Complainant 1 said that Arana appeared unconscious during the interaction due 4 No. 22-2454
to her intoxication and that Cephus enlisted Davis to take re- vealing photos of the two women without their consent. Hasselbacher determined she had enough information to charge both Cephus and Davis with assaulting and harassing the women, and a formal disciplinary inquiry commenced. The investigation spanned four months, during which all par- ties were offered an opportunity to provide statements, pre- sent evidence, and meet with investigators accompanied by representatives of their choosing. The investigation culmi- nated in a report detailing the evidence collected. An assistant dean concluded that the evidence showed, more likely than not, that Cephus had committed Second De- gree Sexual Assault, Third Degree Sexual Assault, and Sexual Harassment, as defined by University policy. 1 The assistant dean recommended Cephus be expelled and set the matter for consideration before a “Nonacademic Misconduct Hearing Committee.” The parties were provided with all available ev- idence to review, and they and their representatives were af- forded the opportunity to appear before the committee. On the morning of the meeting, Cephus approached Arana in an attempt, according to Arana’s attorney, to intim- idate her. The attorney stepped between the two to defuse the
1 “Second Degree Sexual Assault” encompassed sexual contact or in-
tercourse with a person incapable of providing consent due to intoxication if the respondent had actual knowledge of the inability to consent. UNIVERSITY OF WISCONSIN-MADISON, POL’Y ON SEXUAL HARASSMENT & SEXUAL VIOLENCE, at 14 (2018). “Third Degree Sexual Assault” included “Sexual intercourse with a person without … consent.” Id. at 15. And “Sexual Harassment” consisted of “[u]nwelcome sexual advances, re- quests for sexual favors, and other verbal or physical conduct of a sexual nature [that] … creates a hostile environment.” Id. at 14. No. 22-2454 5
situation and reported the incident as a violation of the no- contact order. 2 A university official reminded Cephus of the no-contact order and warned that he must leave the area when coming into contact with Arana. The disciplinary committee found that, by a preponder- ance of the evidence, Cephus was responsible for two of the three charges: Third Degree Sexual Assault and Sexual Har- assment. Not only was Arana too intoxicated to consent to sexual intercourse, the committee ruled, she had also affirm- atively denied permission. The committee further found that Cephus sexually harassed Arana by creating, intentionally or not, a hostile learning environment. The committee, however, reversed the Second Degree Sexual Assault charge after con- cluding the evidence was insufficient to support a finding that Cephus knew the level of Arana’s intoxication. Cephus was nonetheless expelled based on the other two charges, a deci- sion he appealed to the University’s Chancellor, Rebecca Blank, and then to the Board of Regents. Both appeals were denied, and the investigation closed after more than twelve months. The assistant dean ultimately found Davis not responsible for sexual harassment and neither Davis nor Cephus respon- sible for taking nude photographs of Arana. While Davis ad- mitted to taking photographs of the women at Cephus’s
2 The University argues that this is hearsay because an assistant dis-
trict attorney’s deposition testimony described the event as conveyed to him by Arana’s attorney. We of course may not consider inadmissible hearsay. Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016). But the record includes Arana’s and her attorney’s sworn accounts of the event. So, we need not rely on the purported hearsay. 6 No. 22-2454
direction, there was not sufficient evidence to establish that the women were naked in the photos. After the school’s Title IX investigation, Cephus’s criminal case advanced to trial in the Dane County Circuit Court. Ce- phus faced a single charge of Second Degree Sexual Assault. WIS. STAT. ANN. § 940.225(2)(cm). Like the University’s policy on Second Degree Sexual Assault, to be convicted of the Wis- consin equivalent, the jury had to find that Arana was “under the influence of an intoxicant to a degree which renders that person incapable of giving consent” and that Cephus had “ac- tual knowledge” of Arana’s inability to consent. Id. But unlike the University decisionmakers, who only had to decide whether Cephus was guilty by a preponderance of the evi- dence, the jury had to find Cephus guilty beyond a reasonable doubt. In essence, the jury was asked to convict Cephus of a charge the school had already found not supported by the ev- idence under the school’s less stringent evidentiary standard. The jury did not convict. Following the acquittal, one juror said that surveillance videos shown at trial—purportedly showing that the women were not outwardly displaying signs of severe intoxication—were “important” because they showed “how the victims looked in [Cephus’s] eyes.” Once acquitted in state court, Cephus filed a petition for readmission with Chancellor Blank. Although the initial Title IX investigation had spanned months, Cephus expected a re- sponse in two days, noting that “with the passing of each day, [his] ability to attend a Division I university and participate in athletics is compromised if not completely eliminated.” The petition was based on new evidence purportedly de- veloped during Cephus’s criminal trial that he claimed called into question the University’s findings. Specifically, he cited No. 22-2454 7
surveillance video, testimony from witnesses about their per- ception of the women’s sobriety, and testimony that drew into question Complainant 1’s credibility. The petition included a thumb drive with clips of the surveillance videos and a depo- sition transcript of one of the witnesses. Because “[t]he press for time [did] not allow for preparation of the trial transcript,” however, Cephus “recount[ed] the [other] evidence at trial.” The University’s general counsel was charged with re- viewing all the evidence and submitting a written report iden- tifying the most pertinent evidence for Chancellor Blank’s consideration. Chancellor Blank rarely reviewed all the evi- dence, relying on her counsel to do so. The University’s coun- sel reached out to Cephus’s attorney about the trial transcript because the University believed “it to be an essential element in the chancellor’s review of [Cephus’s] petition.” The prose- cutor at the criminal trial later told the University it had to order the transcripts if it wanted to know what happened at trial. The University’s counsel declined, saying time was of the essence. Chancellor Blank would later agree, saying a de- lay was not “tenable given the publicity this trial was get- ting,” and Cephus deserved a response in a “timely” fashion, as it would not be fair for him to put his life on hold after a jury had acquitted him. The Chancellor’s team spoke to select individuals who had been at the trial, including Cephus’s attorney, who Uni- versity representatives conferred with multiple times. The University did not speak to Arana or any of her legal team, none of whom had been informed of the petition or given a chance to review the newly submitted evidence. At the same time, the University received input from other interested parties. High-level donors pressured the 8 No. 22-2454
University to readmit Cephus quickly. Within 48 hours of re- ceiving the petition, Chancellor Blank received letters from five donors who each had given at least $1,000,000 and possi- bly over $100,000,000 collectively to the University. The letter writing campaign was initiated by Ted Kellner, whose name adorned the University’s football buildings; he had recently made a significant revocable pledge to the University. The University also tracked fan sentiment, monitoring a social media hashtag referencing Cephus, which was often ac- companied by an image of Cephus on the football field with an inscription reading, “Wisconsin Don’t Delay, Let Cephus Play!” Many of the posts tagged Chancellor Blank personally in hopes she would see them. Chancellor Blank further heard from the football program. The team wrote a letter urging her to readmit Cephus. Dozens of players took part in a press conference staged by Cephus and his legal team, perceived by the Chancellor to be part of a pressure campaign for Cephus’s reinstatement. The team’s head coach publicly proclaimed he would welcome Cephus back given the opportunity. Eight days after the petition was filed, Chancellor Blank called Hasselbacher to inform her that she would readmit Ce- phus. Chancellor Blank said she faced a difficult situation where “both sides” might sue and she had to do what was right. She could not ignore the “fast and unequivocal jury de- cision” and though she “[did not] take lightly overturning process,” she “[did not] see much other choice.” Hasselbacher advised that the women should be given a chance to respond. No. 22-2454 9
But the University declined the advice, as it was not required to by law. 3 Five days later, Chancellor Blank readmitted Cephus by vacating the finding that he was responsible for Third Degree Sexual Assault (recall that this includes “[s]exual intercourse with a person without … consent” and the University had found that Arana was too intoxicated to consent and had af- firmatively denied permission). UNIVERSITY OF WISCONSIN- MADISON, POL’Y ON SEXUAL HARASSMENT & SEXUAL VIOLENCE, at 15 (2018). According to the Chancellor, various witnesses consistently reported that the women consumed alcohol, but descriptions of their intoxication varied between “drunk,” “very drunk,” “buzzed,” “tipsy,” “hammered,” “drunk but acting normal,” and “blacked out.” Regardless, Chancellor Blank believed the surveillance video corroborated that Arana did not “exhibit outward signs of incapacitation.” The Chancellor’s decision did, however, uphold the sex- ual harassment finding against Cephus. But her rationale var- ied from the Board’s, which relied on Cephus’s continued presence creating a hostile learning environment. The Chan- cellor, in contrast, cited Cephus’s admission to taking nude photos of the women without their consent. Because of this
3 The Wisconsin Administrative Code at the time explicitly required
that a complainant be notified of any change to the disciplinary outcome. WIS. ADMIN. CODE USW § 17.18 (2016). Chancellor Blank interpreted this to mean Arana should not be involved before a decision was made be- cause the code did not expressly provide for her participation. The Wis- consin Administrative Code was amended a few years later to ensure that “[if] enrolled as a student at the time of the petition, the complainant shall be provided opportunity to respond to the petition prior to the readmis- sion decision.” WIS. ADMIN. CODE USW § 17.18 (2021). 10 No. 22-2454
and Cephus’s history—including other incidents of harass- ment and lying during the police and University investiga- tions—the Chancellor kept in place the no-contact order. Chancellor Blank was to personally notify several interested parties of her decision, including Kellner, the donor who re- cently made the revocable pledge to the University (the rec- ord does not indicate how many of the parties she in fact no- tified). Arana returned to campus two weeks later for a new se- mester. Worried that the no-contact order would prove insuf- ficient because Cephus had previously violated it, Arana and her counsel met with the University’s Assistant Dean of Stu- dents and its Director of Threat Intervention Services hoping to develop a safety plan. In an about-face from their prior pro- active stance, the two University personnel rejected Arana’s concerns because they saw no actionable threat, and told her instead to try avoiding Cephus and to call 9-1-1 if she felt threatened. Feeling the University’s response left her on her own and fearful of encountering Cephus, Arana skipped classes, did not use the student union or communal study spaces, and avoided walking through parts of campus where she might run into Cephus. Arana also reduced her attendance at soror- ity events, opting to stay in her apartment or return home to Chicago on weekends. These changes required her to “work[] harder and longer hours to attain the same grades.” Believing her fear and anxiety would limit her ability to succeed, she transferred from advanced to easier courses. Although she had been on track to graduate in three years, Arana’s reduced courseload delayed graduation by a semester, which in turn delayed her matriculation into law school by a full year. No. 22-2454 11
In June 2020, Arana filed a Title IX lawsuit against the Uni- versity, alleging, in part, deliberate indifference to the sexual harassment that she experienced. Arana and the University filed cross motions for summary judgment. The University conceded that it had knowledge of sexual harassment: it never vacated its finding that Cephus had violated the school’s policy on sexual harassment. But it argued that it was not liable under Title IX because Arana could not prove that the school was deliberately indifferent to the harassment or that the harassment deprived her of access to educational op- portunities. The district court disagreed with the University’s argu- ment that a reasonable jury could not find the school deliber- ately indifferent to the harassment Arana suffered. The dis- trict court disagreed because the decision to readmit Cephus “appears to have been driven by at best a desire to avoid any arguable liability for having suspended and expelled Cephus in response to his acquittal on criminal sexual assault charges less than two weeks before, or at worst, a desire to get an im- portant player back on the football field in time for the open- ing of UW’s football season.” Doe v. Bd. of Regents, 615 F. Supp. 3d 877, 885 (W.D. Wis. 2022). But the district court agreed with the University that Arana could not show the harassment at the hands of Cephus deprived her of educational opportuni- ties. In support of its conclusion, the court cited Arana’s oth- erwise successful academic performance. The district court 12 No. 22-2454
therefore denied Arana’s motion and granted the Univer- sity’s. 4 Arana appeals the grant of summary judgment in favor of the University, arguing the district court erred in concluding no reasonable jury could find for her on all elements of her Title IX claim. II Title IX was signed into law over 50 years ago to protect individuals from discriminatory sex-based practices in edu- cation and to prevent federal resources from being used to support such practices. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998). To achieve this goal, the law prohibits recipients of federal funds from causing anyone to “be ex- cluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity” based on sex. 20 U.S.C. § 1681(a). This prohibition has been interpreted expansively to give the law “a sweep as broad as its language.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982). The Supreme Court later recognized that Title IX includes an implied private right of action, Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979), and that it permits schools to be liable not just for their own direct acts of discrimination, but also for indirect discrimination claims involving teacher-on-student sexual harassment if the school had actual notice of the har- assment and was deliberately indifferent to it, Gebser, 524 U.S. at 292–93. Shortly after, the Court extended Gebser’s holding
4 The district court also concluded that Arana could not prevail on a
claim that the University directly discriminated against her. Neither party challenges that holding. No. 22-2454 13
to cases involving student-on-student sexual harassment. Da- vis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999). Under Davis, a successful Title IX claim based on student- on-student harassment requires the plaintiff to prove the fol- lowing elements: First, the school or its officials had actual knowledge of sex-based harassment. 526 U.S. at 650; see also Jauquet v. Green Bay Area Cath. Educ., Inc., 996 F.3d 802, 808 (7th Cir. 2021). Second, the harassment was “so severe, perva- sive, and objectively offensive” as to deprive access to educa- tional opportunities or benefits. 526 U.S. at 650. Third, the school’s response was deliberately indifferent to the harass- ment. Id. III “We review de novo a district court’s decision on cross- motions for summary judgment, construing all facts and drawing all reasonable inferences in favor of the party against whom the motion under consideration was filed.” Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017). That means we are to construe the facts in favor of Arana and will affirm the district court’s decision only if “there are no genuine issues of mate- rial fact.” Id. On the other hand, if a reasonable jury, on the evidence presented, could return a verdict in favor of Arana on her Title IX claim, then we must reverse. See Carmody v. Bd. of Trs. of Univ. of Ill., 893 F.3d 397, 401 (7th Cir. 2018). We begin by determining what is within the scope of our review. The University’s motion for summary judgment fo- cused on two arguments: that Arana was not deprived of ed- ucational opportunities and that the University’s response was not so unreasonable as to constitute deliberate indiffer- ence. Before us, the University makes the following additional 14 No. 22-2454
arguments: one instance of sexual harassment cannot be con- sidered pervasive and the one instance of harassment is not actionable because it occurred at a private apartment, an en- vironment outside the University’s control. The University al- luded to the control argument in a footnote to its brief in sup- port of summary judgment but, as Arana points out to us, the University did not develop the argument until its summary judgment reply brief, thereby waiving the argument. O’Neal v. Reilly, 961 F.3d 973, 974 (7th Cir. 2020); see also Costello v. Grundon, 651 F.3d 614, 637 (7th Cir. 2011) (declining to affirm summary judgment on “alternative bases” that were “not raised in the district court until the filing of the reply”). 5
5 We disagree with our dissenting colleague that it is appropriate to
consider this line of argument. Even setting aside the fact that our caselaw counsels against considering an argument developed only in a reply brief on summary judgment, the record has not been sufficiently developed to decide this fact-intensive issue. And the issue is, indeed, fact intensive. Take, for example, the Ninth Circuit’s decision in Brown v. Arizona finding that a university had control over an off-campus housing facility where a football player sexually assaulted other students. 82 F.4th 863, 878–79 (9th Cir. 2023). This holding was based on several pieces of evidence. First, the university’s football program conditioned athletes’ ability to live off cam- pus on good behavior and had the authority to revoke the privilege. Id. at 878. Second, the university’s Student Code of Conduct explicitly stated that it “applie[d] to student conduct both on-campus and off-campus be- cause off-campus misconduct can affect student health, safety, and secu- rity as much as on-campus misconduct can.” Id. (cleaned). Finally, a no- contact order imposed in Brown “expressly applied both to on-campus and off-campus spaces.” Id. Even the Eighth Circuit case on which the dis- sent relies limited its holding to the facts before it. See Roe v. St. Louis Univ., 746 F.3d 874, 884 (8th Cir. 2014) (“We conclude that on this record ….). By contrast, the parties here have not developed the factual record to a suffi- cient degree. As such, we decline the University’s invitation, which our dissenting colleague accepts, to decide this issue for the first time without No. 22-2454 15
The University arguably also waived its contention that the harassment was not pervasive. Id. But Arana does not ar- gue that the issue was waived, instead addressing the argu- ment’s merits on appeal, and she thus waives any waiver ar- gument. Riemer v. Ill. Dep’t of Transp., 148 F.3d 800, 804–05 n.4 (7th Cir. 1998). We therefore begin by examining whether the harassment experienced by Arana was severe, pervasive, and objectively offensive. IV To constitute actionable conduct under Title IX, student- on-student harassment must be severe, pervasive, and objec- tively offensive. Davis, 526 U.S. at 633. The inquiry into whether harassment is actionable “depends on a constellation of surrounding circumstances, expectations, and relation- ships.” Id. at 651. The severity and objective offensiveness of rape and sexual assault are not, and cannot be, in doubt. See Baskervill v. Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir. 1995) (actionable conduct in the Title VII context includes “sexual assaults” and “other physical contact, whether amorous or hostile, for which there is no consent express or implied”); see also Vengalattore v. Cornell Univ., 36 F.4th 87, 103 (7th Cir. 2022) (“Because Title VII’s discrimination prohibition overlaps Title IX’s prohibition against sex discrimination in education pro- grams … we have … long interpreted Title IX by looking to … the caselaw interpreting Title VII.” (cleaned)). The re- maining question is whether the harassment suffered by Arana was pervasive.
the benefit of a developed record, full briefing, or a decision from the dis- trict court. 16 No. 22-2454
The University claims that the harassment was not perva- sive. As support, it cites language in Davis expressing skepti- cism that a single instance of harassment can form the basis of Title IX liability. The Court explained that severe, pervasive, and objectively offensive harassment will have a “systemic ef- fect” on a student’s education. Davis, 526 U.S. at 652. “Alt- hough, in theory, a single instance of sufficiently severe one- on-one peer harassment could be said to have such an effect” it found “it unlikely that Congress would have thought such behavior sufficient to rise to this level.” Id. at 652–53. Accord- ing to the University, our dissenting colleague, and two of our sister circuits, this conclusively means a victim of a single sex- ual assault can never recover under Title IX. Post, at 46; Kol- laritsch v. Michigan State Univ. Bd. of Trs., 944 F.3d 613, 620–21 (6th Cir. 2019); K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1059 (8th Cir. 2017). Reading Davis plainly and with complete deference to its authority, we disagree, and we join three of our sister circuits in doing so. While the Court in Davis expressed skepticism at the sufficiency of alternative facts not then before it, it did not mandate hand-counting harassment. Given the potential life- altering and lasting impact of sexual assault, it is entirely con- ceivable that an instance of harassment may be sufficiently se- vere and pervasive to “differ markedly from the rarely action- able, theoretical single incident mentioned in Davis ….” Wil- liams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1298 (11th Cir. 2007). For this reason, several of our sister cir- cuits—the First, Fourth, and Eleventh—have held that single incidents of harassment may create Title IX liability “if that incident were vile enough and the institution’s response, after learning of it, unreasonable enough to have the combined sys- temic effect of denying access to a scholastic program or No. 22-2454 17
activity.” Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172 (1st Cir. 2007); see also Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021) (“Even a single incident of sexual harass- ment, if sufficiently severe, can inflict serious lasting harms on the victim—physical, psychological, emotional, and so- cial.”); Williams, 477 F.3d at 1297–98; Hill v. Cundiff, 797 F.3d 948, 973 (11th Cir. 2015). 6
6 In truth, the dissent’s view that the Eleventh Circuit stands on the
other side of this circuit split is a legible one. Post, at 48–49. In Williams, the Eleventh Circuit considered whether a female university student who was sexually assaulted by several male students on a single night had experi- enced sufficiently pervasive harassment under Davis. 477 F.3d at 1297–98. The Eleventh Circuit ultimately found the assault pervasive despite “oc- curring in one room over two hours” because the assailants undertook a “continuous series” of harassing actions such as conspiring to commit the gang rape and each assaulting Williams. Id. Yet, when examined more closely, it is unclear whether Williams requires plaintiffs to present evidence that multiple instances of harassment occurred before a school had actual notice of the discrimination (“pre-notice harassment”). After all, Williams was assaulted over the course of a single evening. Id. at 1298. And rather than clearly stating that Williams had shown that she suffered more than one instance of pre-notice harassment, the Eleventh Circuit instead found that the assault differed “markedly from the rarely actionable, theoretical single incident mentioned in Davis.” Id. To this end, two of our sister circuits read Williams to permit Title IX claims where only a single instance of harassment is alleged. See Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 273 (4th Cir. 2021) (reading Williams to permit Title IX claims “even though the plaintiff alleged only a single incident of pre-notice harassment”); Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 342–43 (5th Cir. 2022). Even assuming the dissent’s reading of Williams is correct, applying the Eleventh Circuit’s logic to the record before us still supports our con- clusion that the harassment Arana experienced was pervasive. After all, Arana, like Williams, presents evidence that Cephus was a “ringleader 18 No. 22-2454
We agree and adopt this standard because it promotes the appropriate balance between Davis’s twin aims of preventing students from being “denied access to educational benefits and opportunities on the basis of gender,” 526 U.S. at 650, and only holding institutions liable for their “own failure to act,” id. at 645. It recognizes the reality that while a student would reasonably feel apprehensive and fearful regardless of their school’s response to a report of egregious harassment, that fear and apprehension casts a pervasive shadow across the student’s schooling where administrators respond in an un- reasonable manner. The University argues that even if a single assault were actionable, they are not liable because Davis said that Title IX liability only attaches where a school’s deliberate indifference “subjects its students to harassment.” 526 U.S. at 644 (cleaned). They read this language to mean that they are not liable because it is not as if they responded insufficiently while Cephus committed further acts of sexual harassment. This reading unduly narrows Davis. Just after the quoted lan- guage, Davis states that a school’s response “must, at a mini- mum, cause students to undergo harassment or make them lia- ble or vulnerable to it.” Id. at 645 (emphasis added). 7 Davis is
who lured the victim to his territory” and conspired with Davis to harass Arana by taking nonconsensual photographs of her. Williams, 477 F.3d at 1298. She also presents evidence that Davis penetrated her vagina several times. These events, as in Williams, occurred in a continuous series over the course of a single evening. Id. Like the Eleventh Circuit, we believe that these events “differ markedly” from the nonactionable single incident considered in Davis. 7 The circuits are split as to whether this means that a Title IX plaintiff
must show that the school’s deliberate indifference after receiving notice of student-on-student harassment resulted in further concrete acts of No. 22-2454 19
more inclusive than the University alleges and would extend liability to instances where a school’s response puts a student at further risk of harassment. We therefore hold that Title IX monetary liability can extend to a single pre-notice instance of egregious harassment where the educational institution’s re- sponse was clearly unreasonable under the totality of the cir- cumstances. 8 For her part, Arana has presented sufficient evidence (in- cluding her own and other witnesses’ prior statements to Uni- versity personnel and campus police) for a jury to conclude that the harassment she experienced on that April evening
harassment or simply left the student more vulnerable to future acts of harassment. See Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 342– 43 (5th Cir. 2022) (recognizing 4-3 split in favor of no requirement to show further post-notice acts of actual harassment while declining to take a po- sition). On one side of the split stand the Sixth, Eighth, and Ninth Circuits, holding that a school can be deliberately indifferent only when its actions result in a further incident of harassment. Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 621 (6th Cir. 2019); K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1058 (8th Cir. 2017); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). The other side of the split consists of the First, Fourth, Tenth, and Eleventh Circuits, which hold that a school’s ac- tions need only make harassment more likely. Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172 (1st Cir. 2007), rev’d on other grounds, 555 U.S. 246 (2009); Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021); Farmer, 918 F.3d at 1105; Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1295–97 (11th Cir. 2007). 8 The dissent casts this holding as a “strained interpretation” of Davis.
Post, at 35, 58. Yet, it is the dissent’s own interpretation that strains against Davis’s plain text. Our colleague presumes, without explanation, that Da- vis’s “context” compels a requirement of further harassment. Id. at X. But we, like the First, Fourth, Tenth, and Eleventh Circuits before us, find that the dissent’s formulation “overly distills the rule set forth by the Davis Court.” Fitzgerald, 504 F.3d at 172. 20 No. 22-2454
was sufficiently egregious as to be pervasive. Not only does she present evidence that Cephus sexually assaulted her, but that Cephus penetrated her vagina with his fingers and then his penis several times. She was unconscious throughout the assault. Cephus even enlisted Davis in between the assaults to help him take revealing photographs of her. We discuss the jury issue as to the insufficiency of the Uni- versity’s response infra in Part VI. V We next turn to Arana’s argument that the severe, perva- sive, and objectively offensive harassment that she suffered deprived her of educational opportunities and benefits, con- trary to the district court’s ruling. This relates to our inquiry into the severity of the harassment, as the harassment must, as outlined above, be severe enough to have “systemic ef- fect[s]” on the student’s education. Davis, 526 U.S. at 652–53. Put plainly, courts look to see whether the harassment “had a ‘concrete, negative effect’ on the victim’s access to education.” Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 821 (7th Cir. 2003) (quoting Davis, 526 U.S. at 654). In Davis, the Supreme Court explained that a drop in the plaintiff’s grades provided “necessary evidence of a potential link” between the harassment and the plaintiff’s education. 526 U.S. at 652. The Court did not, however, impose a thresh- old requirement that plaintiffs must demonstrate a decline in grades to succeed in a Title IX action. Indeed, courts have rec- ognized a variety of other suitable evidence demonstrates a “concrete negative effect.” Id. at 652; see, e.g., Gabrielle M., 315 F.3d at 823 (increased absenteeism); Wamer v. Univ. of No. 22-2454 21
Toledo, 27 F.4th 461, 471 (6th Cir. 2022) (changed course of study); Doe v. Sch. Dist. No. 1, 970 F.3d 1300, 1312–13 (10th Cir. 2020) (missed in-person instruction and socialization oppor- tunities); Farmer v. Kansas State Univ., 918 F.3d 1094, 1104–05 (10th Cir. 2019) (lost scholarship, withdrawal from extracur- riculars, and avoidance of campus areas without escorts). Arana, for her part, contends the district court misstated the law. Facially, the district court’s decision dismissed the idea that “proof of declining grades or absenteeism” was a prerequisite for Title IX liability. Doe v. Bd. of Regents, 615 F. Supp. 3d at 886. But the court nonetheless emphasized grades and absenteeism above all else. The court found it important that Arana continued participating in student groups and successfully graduated with a strong GPA in under four years. While mostly true, this characterization paints an overly rosy picture. The University recognized in its original Title IX investi- gation that sharing a campus with her assailant would create a hostile environment for Arana. Crucially, Arana has ex- plained over the course of this litigation how that environ- ment affected her education. Her anxiety prevented her from using certain campus resources. She skipped classes, did not use the student union or communal study spaces, and stayed away from certain parts of campus. Given these disruptions, she had to “work harder and longer hours to attain the same grades,” and transferred from advanced courses to easier courses. Ultimately, she graduated with good grades in only three and a half years, but she entered college expecting to graduate in three years based on credits carried from high school. That extra semester delayed her entry to law school by a year. Further, she reduced her attendance at sorority events, 22 No. 22-2454
choosing to return to Chicago many weekends rather than so- cialize. The University posits that, if anything, these effects are at- tributable to its readmission of Cephus and not the harass- ment he caused. See Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274–75 (4th Cir. 2021) (“[T]he main object of inquiry for this prong is the alleged sexual harassment, rather than the de- fendant’s response thereto. Indeed, the latter is relevant only to the issue of deliberate indifference.” (cleaned)). In support, the University marshals evidence that the effects Arana de- scribed did not begin right after the assault. This position ignores our caselaw finding that a victim of a violent assault is denied equal access when they graduate early with a limited diploma “rather than stay and complete the work needed for a full … diploma.” Doe v. Galster, 768 F.3d 611, 619 (7th Cir. 2014) (citing Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655 (2d Cir. 2012)). That reasoning applies in this context with equal strength where there is evidence that Arana struggled greatly after the assault and delayed her own graduation. See Doe, 1 F.4th at 275 (directing factfinders to “consider all of the surrounding circumstances … and an ap- propriate sensitivity to social context” when undertaking this inquiry). The University’s causal argument also stretches too far. For instance, in this case, the University’s decision forced Arana to share a campus with her assailant. It was this cam- pus environment that in part caused Arana’s struggles, and the environment was caused by the assault. True, one link in the causal chain was the University’s decision to readmit Ce- phus. This in no way detracts from the clear line one can draw between the assault and the detrimental effects Arana now No. 22-2454 23
describes. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020 (recognizing events often have multiple causes). If a jury were to find that the University’s readmission de- cision was clearly unreasonable, see infra Part VI, then it could appropriately rely on Arana’s testimony that she delayed her graduation, spent most of her time alone, or left campus en- tirely to find that the harassment and the University’s unrea- sonable response negatively affected her education in a con- crete way. The University appears to also question whether the hos- tile environment could have a systemic effect given Arana and Cephus overlapped for only one semester between his re- admission and his departure to pursue a professional football career. We see no reason to mandate an artificial threshold for the amount of time that need pass before an effect can be con- sidered systemic. Even if we did, we would not go so far as the University to categorically draw that line beyond one se- mester’s worth of harassment. We have no problem envision- ing that one semester’s interruption can adversely affect, or even completely derail, a student’s education. Arana’s asser- tions, if credited, establish as much. Fundamentally, the district court and University incor- rectly gauge the nature of education. To distill a student’s ed- ucation to “good” or “bad” academic achievements leaves “unanswered … the full spectrum of success that female stu- dents might have achieved” had they not been subject to dis- crimination and “excuse[s] discrimination because its victims are resilient enough to persist” in its face. Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 135 (4th Cir. 2022) (Keenan, J., concur- ring). A reasonable jury could rely on the dropped classes, changed courseload, and delayed graduation to find a 24 No. 22-2454
material impact on Arana’s academic performance, regard- less of whether her grades suffered. If Arana’s testimony is credited, the harassment she suf- fered ultimately left her unable to enjoy the full panoply of educational opportunities that made her classmates’ experi- ences enriching. This is sufficient to establish deprivation of educational opportunities because, after all, education is more than academics. 9 VI Where does this leave us? At this point a reasonable jury could conclude that Arana experienced severe, pervasive, and objectively offensive harassment after being sexually as- saulted and this fomented a hostile environment, having pro- found effects on her academic and social life. But the fact that Arana experienced harassment while studying at the Univer- sity of Wisconsin would not entitle her to damages from the University. Title IX imposes liability for “subject[ing],” Davis, 526 U.S. at 643, others to discrimination or making them “vul- nerable to it,” id. at 645, so “a recipient of federal funds may be liable in damages under Title IX only for its own miscon- duct.” Id. at 640. This means the University cannot be liable
9 As the Rape, Abuse and Incest National Network (“RAINN”) refer-
ences in its amicus brief, Chancellor Blank acknowledged the following in her remarks about returning to in-person instruction after the COVID-19 pandemic shuttered campus: “It is the connections and interactions that make UW-Madison a great university and that bring students here for a high-quality residential learning experience.” Brief for RAINN as Amicus Curiae at 17–18 (citing Chancellor Blank, Creating the New Normal: Return- ing to Campus, UNIVERSITY OF WISCONSIN: BLANK’S SLATE (Mar. 25, 2021), https://chancellor.wisc.edu/blog/creating-the-new-normal-returning-to- campus/). No. 22-2454 25
for the harassing conduct of Cephus unless its own deliberate indifference to the harassment subjected Arana or made her vulnerable to discrimination. See id. at 646–47. The University maintains that it was never deliberately in- different to Arana’s accusations of harassment because its “re- sponse was immediate, vigorous, and sustained.” It points to the ways the school supported Arana after she came forward with her allegations and how it expelled Cephus after a thor- ough investigation. But the adequacy of the University’s ini- tial Title IX investigation is not in dispute. Instead, Arana ar- gues that the school was deliberately indifferent when it re- admitted Cephus. The University believes that we cannot se- lectively examine one part of its response. What it seems to miss is that the challenged action, Cephus’s readmission, ef- fectively nullified the initial Title IX investigation. Regardless of how proper a school’s initial response, Title IX would be undone if a school could avoid liability by vacating a discipli- nary decision comporting with Title IX using a process that does not. The University insists that the Chancellor overturned the initial decision in response to legitimate changed circum- stances: a not guilty verdict and trial evidence showing Ce- phus was not responsible for sexual assault. This argument has a certain logic: A school should be able to make a good- faith evaluation of newly presented evidence that might change a prior disciplinary decision without running afoul of Title IX. Arana presents evidence, however, that suggests the University’s decision to readmit Cephus was not the product of a reasoned and good-faith reexamination but undue influ- ence. For instance, the University did not wait for the trial transcript, did not contact Arana about the new evidence or 26 No. 22-2454
to ask for other evidence from the trial, and yet it heard from numerous influential parties adverse to Arana’s interests. The University rightly points out that Wisconsin law did not require the Chancellor to involve Arana in the readmis- sion process. It maintains that the Chancellor therefore fol- lowed state law and cannot be deliberately indifferent. It may be true that the law did not require Arana’s participation, but it also did not seem to forbid it. Regardless, there is no need to decide whether a school can be deliberately indifferent when following state law. There is sufficient evidence apart from the exclusion of Arana from the readmission process that could lead a jury to conclude that the University unrea- sonably readmitted Cephus because of a desire to further the football program’s interests. That sufficient evidence is this: Although the initial inves- tigation spanned more than a year, the decision to readmit Cephus concluded within weeks, just in time for the start of the football season. The University contends that most of the legwork had been done during the initial investigation and Chancellor Blank needed to consider only a few pieces of new evidence. However, there is no escaping the fact that the time- line looks suspicious: Cephus’s petition for readmission came shortly before the football season commenced and demanded a favorable decision immediately. Layer on top of that influ- ential donors, fans, and the football program all making the same demand and one could reasonably conclude that Ce- phus’s readmission was meant to placate a growing chorus calling for just that result. For this reason, we disagree with the University’s argument that, ultimately, the true motive behind readmitting Cephus is inconsequential. A jury would be well within its rights to find the University was No. 22-2454 27
deliberately indifferent to known harassment simply to avoid angering key boosters and interest groups. Of course, it is pos- sible to view the evidence—particularly Chancellor Blank’s sworn testimony attesting to her nonmonetary motivations— and conclude that the Chancellor came to her conclusion in- dependent of these demands, but at this point we must make all reasonable inferences in favor of Arana. See Carmody, 893 F.3d at 401. Alongside the suspicious timing, the new evidence the University presents does not undermine its conclusions dur- ing the original Title IX investigation as much as the Univer- sity suggests. According to the University, critical to the Chancellor’s decision was a police interview with Complain- ant 1 where she described an interaction with Arana and Ce- phus: “[I said something] like we’re leaving, we’re going home, or something, and [Cephus] was like no, like come back in 20 minutes. And I was like what do you need 20 minutes for. And [Arana] was like sex.” But the University omits context that supports the conclusion that Arana was too intoxicated to provide consent. Complainant 1 continued: “[Arana] was like, her eyes were rolling to the back of her head. And he’s like come back in 20 minutes. He’s like get out of my room right now. And then I got mad at [Arana] and I was like are you really going to have sex with someone who just talked to me like that. And she was like not even respond- ing.” This context makes the evidence less convincing, sug- gesting the University presents it now as pretext. The same can be said about other evidence that the Chan- cellor alluded to in her readmission decision. The Chancellor highlighted testimony from witnesses who observed the two women before the incident; she noted their descriptions of the 28 No. 22-2454
women’s appearances ranged from “drunk” to “buzzed” to “black out.” But these witnesses’ observations, along with the Chancellor’s own belief that the women did not show “out- ward signs” of incapacitation in security footage captured be- fore they arrived at Cephus’s apartment, primarily addressed the outward appearance of the women and not their actual level of intoxication and resulting ability to consent to sex. This evidence, therefore, is most pertinent to a violation of the University’s prohibition against Second Degree Sexual As- sault, which requires actual knowledge of a person’s inability to consent—and was the charge the University already de- cided not to levy against Cephus. Their testimony is not as probative of the charge the University did initially find Ce- phus guilty of and vacated with the readmission—namely Third Degree Sexual Assault, which lacks a knowledge re- quirement. Indeed, Arana’s version of events that she drank heavily and was later unable to consent when alone with Complainant 1 and Cephus remains largely uncontradicted and supported by other evidence that the University had ac- cess to from the beginning. This includes texts Arana sent Complainant 1 the next morning asking if Complainant 1 was sure that Cephus and Arana had a sexual encounter and seek- ing details of the encounter. None of this is to say that a school can be held liable under Title IX simply because an official draws the wrong conclu- sion from a good-faith evaluation of the evidence. Even if a school wrongly concludes that harassment did not occur when the evidence shows that it did, it cannot be held liable under Title IX unless that decision was clearly unreasonable. See Gabrielle M., 315 F.3d at 824 (“[A]s long as the school’s re- sponse is not ‘clearly unreasonable,’ it cannot have acted with the requisite deliberate indifference to incur Title IX No. 22-2454 29
liability.”) (quoting Davis, 526 U.S. at 648–49). The decision to readmit Cephus was not clearly unreasonable solely because it may have been predicated on a mistaken reading of the ev- idence. We are even willing to accept the Chancellor’s charac- terization of the case as containing “ambiguity.” But because of the apparent weaknesses in the new evidence, coupled with the intense pressure the Chancellor was under to read- mit Cephus, a jury could decide to not credit the Chancellor’s testimony that donor money did not influence her and instead conclude that the University cited the new evidence as mere pretext to readmit a student because of a public pressure cam- paign. And sacrificing Arana’s interest in an educational en- vironment free from sex discrimination on the altar of the football program could be seen as clearly unreasonable by a jury. 10
10 The dissent posits that evidence of a pressure campaign is improper
and speculative. Post, at 51–53. We agree that a plaintiff cannot avoid sum- mary judgment based on ”testimony … speculating as to [the defendant’s] state of mind, or other intuitions, hunches, or rumors.” Widmar v. Sun Chemical Corp., 772 F.3d 457, 460 (7th Cir. 2014); FED. R. CIV. P. 56(c); FED. R. EVID. 602; see Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (collecting cases where testimony that adverse action was taken with discriminatory intent could not defeat summary judgment). There is a difference between speculative testimonial evidence and the circumstantial evidence here. Widmar, 772 F.3d at 460–62 (rejecting testimony claiming employer acted with discriminatory intent while reiterating that circumstantial evidence can establish impermissible motive). Arana does not rely on mere asser- tions of intent but points to letters from donors, news conferences, and an acknowledgment from the University that it was under pressure to read- mit Cephus. The dissent takes the Chancellor at her word that she tuned this pressure out. But that is not our call to make; it is a jury’s. See Norton v. Sam’s Club, 145 F.3d 114, 119 (2d Cir. 1998) (one “who discriminates is unlikely to leave a smoking gun … attesting to a discriminatory intent.” (cleaned)). And while the evidence of discrimination Arana presents is 30 No. 22-2454
No matter, the University believes it has an ace up its sleeve in the form of the no-contact order. The argument goes something like this: even if the school unreasonably readmit- ted Cephus, the University’s entire response was not clearly unreasonable because Cephus was directed not to contact Arana, providing her some modicum of safety. See C.S. v. Madison Metro. Sch. Dist., 34 F.4th 536, 543 (7th Cir. 2022) (en banc) (“[A] response does not have to be perfect or even suc- cessful.”). We are not in the business of scrutinizing every last disciplinary decision by substituting our judgment for that of school administrators. Gabrielle M., 315 F.3d at 825. Moreover, schools need not default to expulsion in response to accusa- tions of sexual harassment to avoid Title IX liability. Johnson v. N.E. Sch. Corp., 972 F.3d 905, 912 (7th Cir. 2020). We do not suggest that the University had to expel or maintain the ex- pulsion of Cephus in lieu of issuing a no-contact order. But even if a no-contact order was an appropriate response to the assault in this case, Arana submitted evidence that suggests the University had no interest in enforcing the order after Ce- phus’s readmission. If this evidence is credited, a jury could reasonably conclude that the University’s response to harass- ment was clearly unreasonable. 11
circumstantial rather than direct, that does not make it less probative. United States v. Rose, 12 F.3d 1414, 1417 (7th Cir. 1994). We draw, as we must, all reasonable inferences from this evidence in Arana’s favor, Kemp, 877 F.3d at 350, and leave for the jury the ultimate question of whether to credit those inferences or credit the Chancellor’s testimony and other evi- dence in the University’s favor. 11 This conclusion does not conflict with Johnson and C.S. as the dis-
sent suggests. Post, at 53, 55. We have made clear that the law does not require expulsion. Further, the dissent asserts that if the schools in those two cases avoided liability by telling the alleged assailant to avoid the No. 22-2454 31
The University points us to two facts showing it genuinely intended to enforce the no-contact order. First, it says that Ce- phus never violated the no-contact order after he was read- mitted. But that may be the result of Arana’s actions more than the University’s. Title IX’s protections would mean little if a school could avoid liability by relying on students to pro- tect themselves by curtailing engagement in educational op- portunities, the very result the law seeks to prevent. Second,
plaintiff but did not go so far as excluding the assaulter from school grounds then the University cannot be liable for doing the same here. But the dissent glosses over facts distinguishing those cases from the one be- fore us. The most significant one is the lack of evidence that the schools in those cases showed reluctance to enforce the disciplinary measures put in place (a no-contact order in Johnson, 972 F.3d at 908, and a verbal directive to cease the troubling behavior in C.S., 34 F.4th at 546). The dissent be- lieves that it can say for certain that the University did not express hesita- tion in enforcing the no-contact order and that it was positively the order, and not Arana’s own curtailment of her education, that prevented Arana and Cephus from seeing each other. We, on the other hand, recognize the conflicting evidence regarding the efficacy of the no-contact order. We may not usurp the jury’s role to resolve that conflict. See Runkel v. City of Springfield, 51 F.4th 736, 741–42 (7th Cir. 2022). Unlike the University, the school in Johnson was otherwise incapable of expelling the harassing student. Neither Johnson nor the student who raped her, Froschauer, cooperated with the school’s investigation, mean- ing that there was no way for the school to take greater disciplinary action as such action would have been unsupported by sufficient evidence. 972 F.3d at 909. Additionally, had the school expelled Froschauer, it would have risked violating the state court’s protective order specifically allow- ing him to attend classes. Id. at 909–10. The school therefore approved Johnson’s requested for a homebound learning exemption to avoid having classes with Froschauer. Id. at 909. While this did not eliminate the possi- bility that the two would cross paths at school, it indicates that the school did everything in its power to limit the students’ interactions because it felt it had a responsibility to do so. 32 No. 22-2454
the University points out that administrators met with Arana to hear her concerns about the continued enforcement of the no-contact order. But there is substantial disagreement about what happened at that meeting. A jury could infer a lack of interest in enforcing the order if it accepts Arana’s characteri- zation that the administrators simply told her to contact po- lice if she felt unsafe. This response could be seen as standing in marked contrast with the University’s prior proactive en- forcement of the no-contact order, especially considering that Cephus had, by then, already allegedly violated the order once before. And any lessened zeal at enforcing the no-contact order after Cephus’s readmission would be even more nota- ble, a jury could conclude, because Cephus had previously vi- olated the no-contact order at the very time and place one would expect him to be on his best behavior. A jury could ra- tionally conclude that Arana had reason to fear that someone who would violate the order at such a time and place might do it again, anywhere. A jury is of course free to accept the University’s framing that it was not dismissive of Arana and would have acted if there was a more acute threat. It is not our role, however, to decide the strength of competing evidence. That is a role for the jury to play, and we must allow it that opportunity. See Davis, 526 U.S. at 654 (“The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974))). VII At its core, the University’s arguments ask us to accept the parts of the record that suggest it acted reasonably while ig- noring the parts of the record that suggest otherwise. Whereas No. 22-2454 33
our dissenting colleague takes the University up on its pro- posal, we decline to do so at this stage of the proceedings as it is the role of the jury to weigh the evidence. We also decline to view each piece of evidence in isolation. When we view the following evidence holistically, we conclude that a reasonable jury could find for Arana: (a) the coordinated campaign to pressure the University to readmit Cephus, (b) the speed of the readmission decision relative to the start of the football season, (c) the decision not to wait for a transcript of the crim- inal trial, (d) the decision to not notify Arana or give her an opportunity to be heard prior to the readmission decision, (e) the differing charges and standards of proof at play in the criminal and disciplinary proceedings, and (f) the discrep- ancy between the University’s treatment of the no-contact or- der before and after readmission. Together, this evidence paints a portrait of an educational institution that, in a reason- able jury’s eyes, may have been deliberately indifferent to sex- ual harassment on its campus. Therefore, we REVERSE the district court’s grant of sum- mary judgment in the University’s favor and remand for fur- ther proceedings consistent with this opinion. 34 No. 22-2454
KIRSCH, Circuit Judge, dissenting. Title IX of the Education Amendments Act of 1972 bars federally funded schools from engaging in sex discrimination. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court rec- ognized that student-on-student harassment can amount to school-sanctioned sex discrimination. However, to eliminate any risk that schools would be held responsible for their stu- dents’ misconduct rather than for their own official decision to permit sex discrimination, the Court imposed a high bar for establishing liability that can only be met in certain limited circumstances. Section by section, the majority’s opinion erodes these carefully crafted limitations. The effect is the cre- ation of a new, practically limitless Title IX standard—one that would be unrecognizable to the Davis Court. Consider the limitations that schools only need to respond to peer harassment that occurs in their programs or activities and is so severe, pervasive, and objectively offensive that it has the systemic effect of denying the victim equal access to an educational opportunity or benefit. The Court expressly said in Davis that a single instance of harassment does not meet this standard. But the majority holds otherwise, dismiss- ing the language in Davis as mere dicta. To make matters worse, it does so in a case where the single instance of harass- ment did not even occur in the University of Wisconsin’s pro- grams or activities. The majority’s application of deliberate indifference is similarly difficult to comprehend. While it acknowledges that courts “are not in the business of scrutinizing every last disci- plinary decision by substituting our judgment for that of school administrators,” that is exactly what the majority does. Ante, at 30. Based on nothing more than speculation about the No. 22-2454 35
University’s motives and doubts that it made the right deci- sion to readmit Quintez Cephus, the majority holds that a jury could find the University’s response amounted to deliberate indifference. Even if there were an evidentiary basis for be- lieving the University’s readmission decision was made in bad faith—and there isn’t—nothing in the record suggests that its no-contact order was ineffective, let alone a clearly un- reasonable response to Isabelle Arana’s alleged assault. It is undisputed that following Cephus’s readmission, Arana never saw him again on campus, and the school never learned of any further contact between the two. No reasonable juror could find that the University’s response amounted to delib- erate indifference under these circumstances. Finally, a school isn’t liable under Davis unless its deliber- ate indifference subjects students to harassment. That means Arana must have experienced additional harassment as a re- sult of the University’s allegedly inadequate response. But the majority reads this limitation right out of Davis. Its strained interpretation—that a student need only be left vulnerable to the possibility of further harassment—provides no limit at all. When a school is deliberately indifferent to severe, pervasive, and objectively offensive harassment in its programs and ac- tivities, students are always left vulnerable to further harass- ment. If this requirement is to mean anything, it must mean something more than that. The majority cannot ignore Davis in favor of applying its own view of what the “appropriate balance” is between pre- venting harassment and subjecting schools to liability. Ante, at 18. I respectfully dissent. 36 No. 22-2454
I I accept Arana’s allegations and testimony as true at sum- mary judgment. See Osborn v. JAB Mgmt. Servs., Inc., 126 F.4th 1250, 1258 (7th Cir. 2025). But that “does not extend to draw- ing inferences that are supported by only speculation or con- jecture.” Id. (quotation omitted). A In late April 2018, Isabelle Arana’s father reported to the University of Wisconsin that Quintez Cephus had sexually as- saulted Arana at his off-campus apartment. The Dean of Stu- dents Office contacted Arana the same day, providing infor- mation about the University’s resources and rights for sexual assault victims. The Dean of Students Office also contacted Arana’s professors to inform them that Arana had been the victim of a sensitive crime and asked for their understanding in making academic accommodations. The day after, the Uni- versity’s Title IX Coordinator, Lauren Hasselbacher, emailed Arana information about support resources and potential protective measures at her disposal, such as no-contact direc- tives. The next day, Cephus was suspended from the football team indefinitely. Hasselbacher informed Arana a few days later that Cephus had been suspended from the team because he was the subject of a Madison Police Department criminal investigation. In response, Arana requested a no-contact or- der against Cephus and Danny Davis III (a fellow student and football player who was present the night of the alleged as- sault but later found not responsible for any misconduct). Hasselbacher issued no-contact orders to both Cephus and Davis the next day. The orders remained in effect indefinitely No. 22-2454 37
and required them to avoid all contact with Arana (emphases in original): After receiving allegations of sexual miscon- duct, I am issuing a No Contact Directive prohibit- ing you from having any contact with Isabelle Arana. Contact refers to any intentional words or actions including, but not limited to: tele- phone calls, text messages, instant messages, emails, Facebook, Twitter, or other forms of so- cial media …. If you have incidental contact, it is your responsi- bility to remove yourself from the situation as quickly as possible under the circumstances, to take means to separate, and to avoid further contact. Failure to do so could give reasonable inference of in- tentional, rather than incidental, contact and be a violation of this order.… Hasselbacher sent Arana copies of the no-contact orders the same day. Less than a month after issuing the no-contact orders, and after receiving more information from Arana and another stu- dent who also alleged that Cephus had assaulted her the same night as Arana, the University opened an official investiga- tion into Cephus. Hasselbacher issued Cephus a Notice of Charge informing him that he was under investigation for possible violations of the University’s policy against sexual assault and sexual harassment. It also reminded Cephus of his no-contact order. The Notice of Charge kicked off a Title IX investigation and disciplinary process against Cephus that spanned more than a year. 38 No. 22-2454
In late August 2018, the Dane County District Attorney’s Office filed criminal charges against Cephus. In light of the charges, Hasselbacher immediately reached out to Arana to ask if she had any concerns about returning to school or re- quests regarding her safety or academic accommodations. Ce- phus’s attorney demanded that the University delay the in- vestigation due to the criminal case against his client, but the University’s investigation pressed on. As the fall 2018 semes- ter approached, Hasselbacher also checked with the Dean of Students Office to ensure that Arana had no classes that would overlap with Cephus or Davis. When Arana’s father informed Hasselbacher that Arana had music class with Da- vis, an assistant dean went to the class to ensure he complied with the no-contact order. Hasselbacher immediately spoke with Arana’s attorney about the class overlap, apologized for the oversight, and asked whether Arana believed that Davis had made intentional contact with her. Hasselbacher also spoke with Davis’s attorney to discuss alternatives so that he and Arana would not be enrolled in the same class. Davis dropped the class that day. Hasselbacher presented her Final Investigative Report to the University’s Office of Student Conduct in October 2018. The decision whether to sanction Cephus based on the re- port’s findings was left to Assistant Dean Ervin Cox. Three weeks after receiving the report, Cox concluded that Cephus was responsible for sexual harassment and second- and third- degree sexual assault. Cox recommended expulsion. In January 2019, a three-member misconduct committee held a hearing on the findings and proposed sanction for Ce- phus. While waiting for the hearing to begin, Cephus walked toward Arana. Arana’s attorney perceived Cephus as walking No. 22-2454 39
in a threatening manner, so she stepped in front of him to pre- vent physical contact. Arana’s attorney reported the incident to an assistant dean at the hearing. The assistant dean imme- diately spoke to Cephus and reminded him that under the no- contact order, if he saw Arana, he needed to walk in the other direction and remove himself from the area. The committee unanimously found Cephus responsible by a preponderance of the evidence for third-degree sexual assault and sexual harassment. It also concluded that he was not responsible for second-degree sexual assault. By a 2-to-1 vote, the committee upheld the expulsion sanction. On March 13, 2019, Chancellor Rebecca Blank affirmed the committee’s findings and sanction recommendation, and Cephus was of- ficially banned from campus three days later. B On August 2, 2019, after a week-long criminal trial, a jury acquitted Cephus after 35 minutes of deliberation. Four days later, Cephus filed a petition seeking readmission to the Uni- versity. State law vested the readmission decision in the chan- cellor. See Wis. Admin. Code § UWS 17.18 (2016). The petition was 242 pages long, including exhibits. Cephus’s attorneys also sent the University a jump drive with approximately 70 video clips. After the petition was filed, Blank received many emails from alumni, donors, employees, students, and members of the public asking her to grant or deny Cephus’s petition for many different reasons. Several influential donors wrote to Blank urging her to readmit Cephus. Blank spoke with one of them, Ted Kellner, and told him what she told everyone else: that she appreciated his commentary and would make a decision after looking at the evidence. Blank testified that she was struck by the speed of the verdict, which 40 No. 22-2454
persuaded her that she needed to take the petition seriously and look at the additional evidence. Blank enlisted the Uni- versity’s vice chancellor for legal affairs and two other attor- neys from its Office of Legal Affairs to help her work on the petition. The vice chancellor tried to order a copy of the transcript from Cephus’s trial, but he was told by the court reporter that, even on an expedited basis, it would take at least several months to produce. Blank testified that it was not tenable to wait multiple months for the transcript. In her view, time was of the essence because the University was going to start soon, and if Cephus was going to be readmitted, she would make that decision within a month. She further explained that wait- ing was not a viable choice given the publicity the trial was getting and because the University had to respond in a timely manner to Title IX issues. On August 19, Blank granted Cephus’s petition. In her decision, she wrote that substantial amounts of information were not available to the University during the Title IX investigation and disciplinary proceedings, which affected the University’s prior findings. Specifically, she concluded that the evidence fell short of the preponderance of the evidence standard required to find Cephus responsible for third-degree sexual assault. Blank upheld the University’s finding of sexual harassment, however, based on Cephus’s admission in a police interview and at trial that he enlisted Davis to photograph Arana and the other complainant partially unclothed and without their consent. Blank reduced Cephus’s sanction from expulsion to a suspension effective from March 13 to the date of decision, thereby readmitting him for the fall semester. But Blank also determined that the No. 22-2454 41
no-contact order prohibiting Cephus from making any contact with Arana would remain in effect, and she warned that any additional misconduct would likely result in serious discipline. The University informed Arana of the reinstatement decision later that morning. In early September, the director of the University’s Threat Intervention Services met with Arana and her attorneys. Arana was terrified about Cephus being on campus and ex- pected the University to develop a safety plan. But although Arana and her attorneys expressed her fears about running into Cephus and other football players, they provided no in- formation about previous contact with any football players or statements by anyone on campus that could be construed as threats or harassment. Arana and her attorneys also did not indicate that Cephus had violated the no-contact order. Be- cause Arana provided no actionable information, the director concluded additional safety measures were not warranted at that time and advised Arana to call 911 if she felt threatened and to avoid Cephus if she saw him around campus. After Cephus returned to the University, he never tried to call, write, or contact Arana, and Arana never saw him on campus. No one else on campus ever said anything to Arana about what happened with Cephus. Arana continued to re- ceive support services and academic accommodations from the University. Following the fall semester, Cephus left the University to enter the NFL draft. II Title IX of the Education Amendments Act of 1972 pro- vides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the 42 No. 22-2454
benefits of, or be subjected to discrimination under any edu- cation program or activity receiving Federal financial assis- tance.” 20 U.S.C. § 1681(a). The statutory scheme gives admin- istrative agencies authority to enforce the guarantees of Ti- tle IX. Id. § 1682; see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 288 (1998). But in Cannon v. University of Chicago, 441 U.S. 677 (1979), the Supreme Court held that victims also have an implied right of action. Id. at 717. If a school engages in sex discrimination, it can be found liable for damages to the students it discriminated against. Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992). In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court clarified that student-on-student harassment can amount to school-sanctioned sex discrimination. Id. at 633. But to ensure that schools would only be held responsible for their own discriminatory practices, and not for the mis- conduct of their students, the Court placed significant re- strictions on when peer harassment could give rise to Title IX liability. Id. at 640–43 (imposing a “high standard” that creates liability only “in certain limited circumstances”). First, the school must have actual knowledge of actionable sexual har- assment in its programs or activities. Id. at 633, 650. Second, the school’s response must be clearly unreasonable in light of the circumstances, such that it amounts to deliberate indiffer- ence. Id. at 648. Third, the school’s deliberate indifference must subject its students to harassment. Id. at 644. A Schools do not have a duty to act under Davis unless they are aware of actionable sexual harassment in their programs or activities. Id. at 633. Sexual harassment is only actionable if it is “so severe, pervasive, and objectively offensive that it No. 22-2454 43
effectively bars the victim’s access to an educational opportunity or benefit.” Id. The majority says the alleged off- campus assault satisfies this standard. Ante, at 15–20. That conclusion is wrong twice over. First, unsupervised and unsponsored off-campus activity does not occur in a school’s programs or activities. Second, a single instance of sexual harassment is not sufficiently pervasive or widespread to have “the systemic effect of denying the victim equal access to an educational program or activity.” Davis, 526 U.S. at 652. 1 Start with the requirement that the harassment take place in a school’s programs or activities. Title IX only prohibits sex discrimination that occurs “under” “the operations of” a school receiving federal funds. 20 U.S.C. §§ 1681(a) & 1687. In Davis, the Court explained this means the harassment “must take place in a context subject to the school[’s] control” such that the school “exercises substantial control over both the harasser and the context in which the known harassment oc- curs.” 526 U.S. at 645. For example, the harassment in Davis took place during school hours and on school grounds— much of it in the classroom. Id. at 646. The Court recognized that the elementary school’s authority over its students in this context was “comprehensive,” “custodial and tutelary, per- mitting a degree of supervision and control that could not be exercised over free adults.” Id. (quotations omitted). Here, the alleged assault occurred in a privately owned apartment building in the middle of the night. Nothing in the record indicates the University exercised any supervision or control in this context, nor does Arana suggest she entered the apartment building to attend a University-sponsored pro- gram or activity. Instead, Arana argues that the University 44 No. 22-2454
had the authority to discipline Cephus for his off-campus mis- conduct because he was a student at the University and the school’s written policies permitted it to do so. While that may be true, it only establishes the University’s control over Ce- phus, not any control over the context in which the alleged assault occurred. Remember, Davis requires “substantial con- trol over both the harasser and the context in which the known harassment occurs.” Id. at 645 (emphases added). Absent any evidence of the latter, the alleged assault is not actionable har- assment. The Eighth Circuit reached the same conclusion in Roe v. St. Louis University, 746 F.3d 874 (8th Cir. 2014). Roe was raped during a private party in an off-campus apartment. Id. at 878– 79. She argued that “the University had disciplinary control over the rapist because he was a student and that universities may control certain off campus behavior due to the nature of the relationship between students and the institution.” Id. at 884. But the Eighth Circuit held that “a University must have had control over the situation in which the harassment or rape occurs” and “there was no evidence that the University had control over the student conduct at the off campus party.” Id.; see also Ostrander v. Duggan, 341 F.3d 745, 750–51 (8th Cir. 2003) (finding no control where the university “did not own, possess, or control” the off-campus premises where the al- leged assault occurred); accord Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 366 (6th Cir. 2012) (“When conduct occurs … off school grounds entirely, the school district has control over neither the harasser, nor the context.”) (quotation omit- ted). The majority largely avoids this issue. It says the Univer- sity waived this argument by merely alluding to it in a No. 22-2454 45
footnote in its opening brief before the district court. Ante, at 14. But the University did more than allude to this argument. It stated unequivocally that “[a]n off-campus sexual assault, without evidence of any on-campus harassment, cannot give rise to a Title IX claim,” and included case citations to support its view. Arana understood the University’s argument and addressed it in her response brief. That the district court did not consider the argument when it granted summary judg- ment is of no consequence. “We may affirm summary judg- ment on any ground supported by the record, as long as the parties adequately presented the issue before the district court and the nonmoving party had an opportunity to contest it.” King v. Hendricks Cnty. Comm’rs, 954 F.3d 981, 984 (7th Cir. 2020). The majority also says in a footnote that “the record has not been sufficiently developed to decide this fact-intensive issue.” Ante, at 14 n.5. For support, it points to evidence that the Ninth Circuit found relevant in Brown v. Arizona, 82 F.4th 863 (9th Cir. 2023), such as the fact that the school could dis- cipline its students for off-campus misconduct. Id. at 878. As an initial matter, much of the evidence the Brown court found relevant is already in the record, including the scope of the no-contact order and the University’s policies concerning off- campus misconduct. See id. at 878. But more fundamentally, both the majority and the Ninth Circuit’s decision in Brown err in conflating evidence of control over the harasser with evidence of control over the context in which the harassment occurs. The fact that a school can discipline students for off- campus misconduct bears on its control over the harasser, but it says nothing about the school’s control over particular off- campus environments. See id. at 887–89 (Rawlinson, J., dis- senting). Under the majority’s preferred approach, however, 46 No. 22-2454
a school would exercise control over every context in which two of its students interact, no matter how unrelated to its ed- ucational programs or activities, so long as its disciplinary policies gave it the authority to punish off-campus miscon- duct. That approach is incompatible with both the text of Ti- tle IX and Davis. Davis does not mandate that schools police the conduct of their students whenever and wherever it occurs. 526 U.S. at 644–45. School officials are only responsible for student mis- conduct in environments within their supervisory authority. Id. That includes settings like classrooms, school grounds, school buses, and other school-supervised or sponsored activ- ities that take place off campus. See Feminist Majority Found. v. Hurley, 911 F.3d 674, 713–14 (4th Cir. 2018) (Agee, J., con- curring in part and dissenting in part) (collecting cases). But it does not include unsupervised and unsponsored activities in a privately owned, off-campus apartment building. In that context, peer harassment neither occurs in a school’s pro- grams and activities nor is reasonably attributable to the school when it fails to act. 2 Even if we ignore the fact that the alleged assault did not occur in the University’s programs or activities, a single in- stance of peer harassment is not actionable under Davis. 526 U.S. at 652–53. Rather, the sexual harassment must be so se- vere, pervasive, and objectively offensive that it has “the sys- temic effect of denying the victim equal access to an educa- tional program or activity.” Id. at 652. While the Davis Court posited that “in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an ef- fect,” it found it “unlikely that Congress would have thought No. 22-2454 47
such behavior sufficient [given] the inevitability of student misconduct and the amount of litigation that would be in- vited by entertaining [such] claims.” Id. at 652–53. Accord- ingly, the Court decided that foreclosing liability for “claims of official indifference to a single instance of one-on-one peer harassment” would best “reconcile the general principle that Title IX prohibits official indifference to known peer sexual harassment with the practical realities of responding to stu- dent behavior, realities that Congress could not have meant to be ignored.” Id.; see also Gebser, 524 U.S. at 285 (explaining that the Court’s task is to infer how Congress would have ad- dressed the issue). The majority acknowledges this passage in Davis yet none- theless holds that the University can be held liable for a single instance of egregious harassment. Ante, at 15–19. To the ma- jority, the Court’s reasoning was merely dicta that we can dis- regard. Id. at 16. That is a remarkable proposition. Davis set out a comprehensive framework to limit the new cause of ac- tion the Court was creating. The Court’s discussion of con- duct that does not suffice to create liability is integral to un- derstanding how this framework should be applied. We are not entitled to ignore the Court’s determination of what Con- gress would have intended and decide for ourselves what the “appropriate balance” is between preventing harassment and subjecting schools to liability. Id. at 17. While the First and Fourth Circuits have similarly held that a single instance of peer harassment can be actionable, the persuasive force of their reasoning is limited by the fact that neither court mean- ingfully grapples with the relevant passage in Davis. The Fourth Circuit did not mention it in Doe v. Fairfax County School Board, 1 F.4th 257 (4th Cir. 2021). Id. at 273–74. And the First Circuit relegated it to a footnote in Fitzgerald v. Barnstable 48 No. 22-2454
School Committee, 504 F.3d 165 (1st Cir. 2007). Id. at 173 n.3. And neither decision suggests, as the majority now does, that the Court’s discussion was simply dicta. The majority says the Eleventh Circuit has taken a similar view. Ante, at 16–17 & n.6. But the two cases it cites both in- volved more than one instance of harassment, “markedly” distinguishing them from the “theoretical single incident mentioned in Davis.” Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1298 (11th Cir. 2007); Hill v. Cundiff, 797 F.3d 948, 973 (11th Cir. 2015) (quotation omitted). In fact, the Eleventh Circuit expressly stated in both cases that more than one instance of harassment is required to make out a Davis claim. See Williams, 477 F.3d at 1297 (“[G]ender discrimina- tion must be more widespread than a single instance of one- on-one peer harassment ….”) (quotation omitted); Hill, 797 F.3d at 972 (“To be severe, pervasive, and objectively offen- sive, the behavior must be serious enough to have a ‘systemic effect’ of denying equal access to an education. A ‘single in- stance of sufficiently severe one-on-one peer harassment’ can- not have such a systemic effect in light of ‘the amount of liti- gation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harass- ment.’”) (quoting Davis, 526 U.S. at 652–53). In a footnote, the majority says the Fourth and Fifth Circuits read Williams to permit Title IX claims based only on a single instance of pre- notice harassment. Ante, at 17 n.6. But those circuits were re- ferring to another passage in Williams that concerns a separate element of Davis claims: whether there needs to be additional instances of post-notice harassment. Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 343 (5th Cir. 2022) (citing Wil- liams, 477 F.3d at 1295–97); Fairfax Cnty. Sch. Bd., 1 F.4th at 273 (citing Williams, 477 F.3d at 1295–97). That is a different issue No. 22-2454 49
altogether from the threshold question of whether a single in- stance of pre-notice harassment is actionable under Title IX. The weight of authority confirms that the passage in Davis means what it says: a single instance of peer harassment is not enough to establish liability. See Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 620–21 (6th Cir. 2019); K.T. v. Culver- Stockton Coll., 865 F.3d 1054, 1059 (8th Cir. 2017); Williams, 477 F.3d at 1297–98; see also Davis, 526 U.S. at 677 (Kennedy, J., dissenting) (observing that the majority’s systemic intent re- quirement “exclude[s] the possibility that a single act of har- assment perpetrated by one student on one other student can form the basis for an actionable claim”). In Section V of its opinion, the majority goes on to explain how Arana’s alleged sexual assault had a systemic, concrete, and negative effect on her education. Ante, at 20–24. Because Davis categorically precludes finding that a single instance of harassment can have such an effect, I do not address this por- tion of the majority’s opinion, except to say I disagree that the facts in the record are sufficient to show the alleged assault “so undermine[d] and detract[ed] from [Arana’s] educational experience, that [she was] effectively denied equal access to [the University’s] resources and opportunities.” Davis, 526 U.S. at 651. B Apart from the lack of actionable harassment, the Univer- sity also isn’t liable under Davis because its response to the alleged assault did not amount to deliberate indifference. De- liberate indifference means the school’s response is “so unrea- sonable, under all the circumstances, as to constitute an offi- cial decision to permit discrimination.” C.S. v. Madison Metro. 50 No. 22-2454
Sch. Dist., 34 F.4th 536, 543 (7th Cir. 2022) (en banc) (quotation omitted); accord Davis, 526 U.S. at 648. This standard is inten- tionally high “to eliminate any risk” that a school will be held liable for the acts of others rather than its own decision to per- mit sex discrimination. Id. at 643 (quotation omitted). All it requires is that a school “respond to known peer harassment in a manner that is not clearly unreasonable.” Id. at 649. “This is not a mere reasonableness standard,” and courts are fully capable of deciding the question as a matter of law in appro- priate cases. Id. (quotation omitted). Our case law applying this standard has emphasized that Title IX neither grants plaintiffs the right “to make particular remedial demands,” id. at 648, nor “force[s] funding recipi- ents to suspend or expel every student accused of miscon- duct,” Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 825 (7th Cir. 2003). A school’s “response does not have to be perfect or even successful” to meet this stand- ard. C.S., 34 F.4th at 543. Instead, schools “‘continue to enjoy the flexibility they require’ in disciplinary decisions unless their response to harassment is ‘clearly unreasonable.’” Doe v. Galster, 768 F.3d 611, 619 (7th Cir. 2014) (quoting Davis, 526 U.S. at 648–49). “And we will not second guess a school’s dis- ciplinary decisions—even a school’s decision not to impose any disciplinary measures—so long as those decisions are not clearly unreasonable. Indeed, judges make poor vice princi- pals.” Johnson v. Ne. Sch. Corp., 972 F.3d 905, 912 (7th Cir. 2020) (cleaned up). The majority and I agree that the University’s response be- fore the readmission decision satisfies this standard, and that the University had the ability to revisit and reverse its prior disciplinary decision even if it ultimately reached the wrong No. 22-2454 51
conclusion. Ante, at 24–25, 28. We also agree that the Univer- sity did not need to maintain Cephus’s expulsion from cam- pus in lieu of continuing to enforce its no-contact order, which remained in place after Cephus was readmitted. Id. at 29. Nev- ertheless, the majority says a reasonable jury could find that the University was deliberately indifferent because there is evidence that it (1) acted in bad faith when it decided to read- mit Cephus, and (2) did not intend to enforce the no-contact order. That conclusion ignores the limits of our review under Title IX and is unsupported by the record. 1 The majority believes a reasonable jury could find that the University readmitted Cephus in bad faith. It says the timing of Cephus’s readmission was suspicious, there was intense pressure on Blank to readmit Cephus, and the new evidence included in Cephus’s petition did little to undermine the Uni- versity’s prior findings. So it concludes that a reasonable jury could find Blank’s reliance on this additional evidence was pretextual. The implication is that there is evidence Blank let Cephus back on campus to appease donors, the football pro- gram, and its fans. But the majority’s chain of inferences is not supported by the evidence and ignores the limits of our re- view under Title IX. Consider the majority’s suspicions about the timing of the University’s decision. The majority says that “the decision to readmit Cephus concluded within weeks, just in time for the start of the football season,” which “looks suspicious.” Ante, at 26. But the majority’s suspicion about timing is not evi- dence of anything. And oddly missing from its discussion is Blank’s sworn testimony about her legitimate motivations for proceeding swiftly, including her concern that the fall 52 No. 22-2454
semester was going to start very soon, and that the University needed to make a decision within a month to ensure that Ce- phus, if readmitted, would be able to start school on time. Nothing in the record suggests that Blank was lying or that she made her decision “simply to avoid angering key boosters and interest groups.” Id. at 26. “Personal knowledge can in- clude reasonable inferences, but it does not include speculat- ing as to [a school’s] state of mind, or other intuitions, hunches, or rumors.” Widmar v. Sun Chem. Corp., 772 F.3d 457, 460 (7th Cir. 2014). Next, the majority reasons that because the new evidence Blank considered “does not undermine” the University’s original findings “as much as the University suggests,” a jury could find the readmission decision was based on pretext. Ante, at 26. The majority is effectively saying that because the University did not make the “right” decision, there is a genu- ine dispute as to whether it made its decision in good faith. That is hard to square with the majority’s own acknowledge- ment that “a school [cannot] be held liable under Title IX simply because an official draws the wrong conclusion from a good-faith evaluation of the evidence.” Id. at 28. If the pri- mary evidence of pretext here is the fact that a reasonable jury could disagree with the conclusions the University drew from the evidence, the line between honest mistake and bad faith collapses. Such a close examination of the record also ignores the limits of our review under Title IX. Remember, “we will not second guess a school’s disciplinary decisions—even a school’s decision not to impose any disciplinary measures— so long as those decisions are not clearly unreasonable.” John- son, 972 F.3d at 912. The majority’s interrogation of the No. 22-2454 53
University’s readmission decision ignores this cautionary lan- guage, chiding Blank for relying on evidence that was “not as probative” and because additional context made certain evi- dence “less convincing.” Ante, at 28. In doing so, the majority applies something more akin to the “mere reasonableness standard” the Court expressly rejected in Davis. 526 U.S. at 649 (quotation omitted). 2 Even if the University’s readmission decision was made in bad faith, no reasonable jury could find that its overall re- sponse was so clearly unreasonable that it amounted to delib- erate indifference. The University’s investigation, discipli- nary proceedings, support for Arana, and no-contact order ef- fectively separated Arana and Cephus the entire time they overlapped on campus. The University issued a no-contact or- der to Cephus as soon as Arana requested one, less than a week after learning of her allegations. And the single time the University learned that Cephus might have violated his no- contact order at the January 2019 disciplinary proceeding, it immediately stepped in and warned him not to do so again. After his readmission, the no-contact order remained in effect, Cephus never tried to contact Arana, and Arana never saw him on campus again. The majority agrees that the University did not need to maintain Cephus’s expulsion in lieu of enforcing the no- contact order. Ante, at 29. And for good reason. We have regularly found that schools are not deliberately indifferent when they’ve taken similar steps to minimize contact between a victim and her assailant. See, e.g., Johnson, 972 F.3d at 909– 15; C.S., 34 F.4th at 545–48; cf. Lapka v. Chertoff, 517 F.3d 974, 983–85 (7th Cir. 2008) (reaching a similar conclusion in the 54 No. 22-2454
Title VII context). Instead, the majority says there is “evidence that suggests the University had no interest in enforcing the [no-contact] order after Cephus’s readmission.” Ante, at 30. Specifically, it references Arana’s meeting in September 2019 with the director of the University’s Threat Intervention Services, where, Arana says, the director advised her to call 911 if she felt threatened and to avoid Cephus if she saw him around campus. These statements do not reasonably suggest that the Uni- versity did not intend to enforce the no-contact order after Ce- phus’s readmission. Suggesting Arana call 911 if she felt threatened and avoid Cephus if she saw him (i.e., common- sense advice) does not indicate the University would have al- lowed Cephus to violate his no-contact order without conse- quence. Holding otherwise, as the majority does here, would permit a plaintiff to defeat summary judgment any time she harbors a subjective suspicion that her school will not enforce its disciplinary decisions. At summary judgment, we don’t credit speculative theories lacking evidentiary foundation. Widmar, 772 F.3d at 460. Significantly, neither Arana nor her attorneys provided any information, in the September meeting or afterward, about any violation of the no-contact order. “The standard set out in Davis is not satisfied by knowledge that something might be happening …. School administrators have actual knowledge only of the incidents that they witness or that have been reported to them.” Galster, 768 F.3d at 617–18. The only time Arana reported an alleged violation of the no-contact or- der was before Cephus’s expulsion, and the University acted swiftly in response. The director’s advice does not create a genuine dispute of material fact when it is undisputed that No. 22-2454 55
the University kept a no-contact order in place and never learned of any violation or further harassment by Cephus. We reached a similar conclusion in C.S. There, a middle school principal became aware that an employee had an inap- propriate grooming relationship with the student-plaintiff. 34 F.4th at 546. Near the end of the student’s seventh grade year, the principal told the employee to “limit the hugs and physi- cal contact with [the student], avoid interacting with her in private settings, and set strong boundaries in his relationship with her.” Id. at 546 (cleaned up). Unbeknownst to the princi- pal, the employee repeatedly and horrifically sexually abused the student during her eighth grade year. Id. We held that the principal’s response to known discrimination “was not so un- reasonable as to amount to deliberate indifference to discrim- ination.” Id. at 547 (quotation omitted). The principal’s discus- sion with the employee satisfied the district’s obligations un- der Title IX, we said, because the record showed the principal “reasonably believed she had succeeded in minimizing his physical contact with [the student], since she received no fur- ther reports raising new concerns.” Id. And because the prin- cipal had learned of nothing further that would indicate the employee was not going to heed the principal’s earlier warn- ing, there was no “obligation for [the principal] to take further action.” Id. at 547–48. Like the principal in C.S., the University had no obligation to take additional action when it never learned of any further interaction between Arana and Cephus. C Finally, even if a school is deliberately indifferent to ac- tionable harassment in its programs and activities, it still isn’t 56 No. 22-2454
liable under Davis “unless its deliberate indifference subjects its students to harassment.” 526 U.S. at 644 (cleaned up); see also id. at 640–41 (“The [University] itself must … subject per- sons to discrimination under its programs or activities in or- der to be liable under Title IX.”) (cleaned up). That means Arana must have experienced further harassment after her fa- ther notified the University about the alleged sexual assault. Kollaritsch, 944 F.3d at 622. The majority holds otherwise, concluding that the Univer- sity’s response only needed to put Arana at risk of further har- assment, even if none occurred. Ante, at 18–19. It relies on a statement in Davis which says that a school’s “deliberate in- difference must, at minimum, cause students to undergo har- assment or make them liable or vulnerable to it.” 526 U.S. at 645 (cleaned up). In the majority’s view, the use of the disjunc- tive “or” means students do not have to undergo further har- assment to make out a claim so long as they are made liable or vulnerable to it. When read in isolation, the majority’s in- terpretation of the clause “or make them liable or vulnerable to it” is plausible. But “the language of an opinion is not al- ways to be parsed as though we were dealing with language of a statute.” Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979). Instead, the Court’s opinion “must be read with a careful eye to context.” Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 374 (2023). With context, it is clear the Court was simply elaborating on what it means to “subject” students to harassment. See Da- vis, 526 U.S. at 645 (citing to dictionaries defining the term “subject”). And this requirement—that plaintiffs must be sub- jected to harassment—presumes that further harassment has actually occurred. See Kollaritsch, 944 F.3d at 628–29 (Thapar, No. 22-2454 57
J., concurring) (“To be ‘subjected’ to a harm, as a matter of ordinary English, requires that you experience that harm.”). The sentence the majority relies on merely provides two ways a school’s inadequate response can subject its students to fur- ther harassment. Its response “might (1) be a detrimental ac- tion, thus fomenting or instigating further harassment, or it might (2) be an insufficient action (or no action at all), thus making the victim vulnerable to, meaning unprotected from, further harassment.” Id. at 623 (majority opinion). But either way, there still must be further harassment. Id. at 622–23. In other words: The Davis Court described wrongful conduct of both commission (directly causing further har- assment) and omission (creating vulnerability that leads to further harassment). The definition presumes that post-notice harassment has taken place; vulnerability is simply an alternative pathway to liability for harassment, not a free- standing alternative ground for liability. [T]he vulnerability component of the … definition was not an attempt at creating broad liability for damages for the possibility of harassment, but ra- ther an effort to ensure that a student who expe- riences post-notice harassment may obtain damages regardless of whether the harassment resulted from the institution placing the student in a position to experience that harassment or leaving the student vulnerable to it. Zachary Cormier, Is Vulnerability Enough? Analyzing the Juris- dictional Divide on the Requirement for Post-Notice Harassment in Title IX Litigation, 29 Yale J.L. & Feminism 1, 23–24 (2017). 58 No. 22-2454
The Court in Davis went to great lengths to emphasize the “very real limitations” it put in place to narrowly circum- scribe the scope of Title IX liability for peer harassment. Davis, 526 U.S. at 652. And it warned against mischaracterizing its decision in ways that would “impose more sweeping liabil- ity.” Id. Yet that is exactly what the majority does. Its strained interpretation—that a student need only be left vulnerable to the possibility of further harassment—provides no limit at all. When a school is deliberately indifferent to severe, pervasive, and objectively offensive harassment in its programs and ac- tivities, students are always left vulnerable to further harass- ment. If that was all the Court intended, it would not have imposed the additional requirement that the school’s deliber- ate indifference must also subject students to harassment. The majority has thus effectively erased one of Davis’s “very real limitations” on liability. Id. The majority’s decision cannot be reconciled with the cau- tious approach the Court took in Davis. That caution reflects, in part, a concern regarding adequate notice. See id. at 640–41, 644–45. Schools are only liable under Title IX as a condition of receiving federal funds, “much in the nature of a contract.” Id. at 639–40 (quotation omitted). Title IX liability therefore rests on whether a school “voluntarily and knowingly accepts the terms of the ‘contract,’” which it cannot do if it is “unable to ascertain what is expected of it.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). To ensure that schools can “exercise their choice knowingly, cognizant of the conse- quences of their participation,” the scope of their potential li- ability under Title IX must be “unambiguous[].” Id. If nothing else, no one could say the sweeping liability the majority per- mits today arises unambiguously from the text of Title IX or Davis. No. 22-2454 59
III The facts in the record are insufficient to establish any of the three elements necessary to make out a claim under Davis. A single instance of off-campus sexual assault does not con- stitute actionable harassment. Regardless, the University comprehensively and immediately responded to it anyway. When the University learned of new evidence that under- mined its findings after Cephus’s acquittal, it reduced his punishment from expulsion to suspension. Although it va- cated its earlier sexual assault finding, the University still re- quired Cephus to avoid all contact with Arana. And after he returned to campus, Arana never saw him again. No reason- able juror could find the University’s response deliberately in- different. Even if one could, the University still isn’t liable in the absence of further acts of harassment. In holding other- wise, the majority establishes a new Title IX standard that is irreconcilable with Davis and practically limitless in scope. I respectfully dissent and encourage the full court to act swiftly to bring our circuit back into alignment with Davis.
Opinion
In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2454 ISABELLE ARANA, Plaintiff-Appellant, v.
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Appellee. ____________________
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:20-cv-00856-wmc — William M. Conley, Judge. ____________________
ARGUED FEBRUARY 14, 2023 — DECIDED JULY 11, 2025 ____________________
Before ROVNER, KIRSCH, and JACKSON-AKIWUMI, Circuit Judges.
JACKSON-AKIWUMI, Circuit Judge. This Title IX action arose from the University of Wisconsin-Madison’s decision to read- mit a star football player after expelling him for sexually as- saulting two female students. The player submitted a petition for readmission shortly after a state court jury, deliberating a different charge using a different standard of proof, found 2 No. 22-2454
him not guilty of sexually assaulting the women. According to the petition for readmission—submitted mere weeks be- fore the football season began—evidence developed at the state court trial cast doubt on the University’s conclusion, af- ter its own investigation, that the player committed sexual as- sault as defined by the student code of conduct. Under pres- sure from influential parties, and without hearing from the survivors of the alleged assault, the University Chancellor granted the petition. One of the women, Isabelle Arana, responded by filing this suit. She alleges the school was deliberately indifferent to the sexual harassment she suffered. The district court dismissed the case after granting the University’s motion for summary judgment. The court acknowledged a jury could conclude the University acted with deliberate indifference if it made its re- admission decision in response to public pressure. But the court rejected Arana’s argument that the harassment she suf- fered was actionable under Title IX because it deprived her of access to educational opportunities. We find, however, that there is a genuine dispute as to whether the harassment Arana experienced was so severe and whether the University’s re- sponse was so clearly unreasonable that it had a detrimental effect on Arana’s education. A reasonable jury could resolve these disputes in Arana’s favor and find for her on her delib- erate indifference claim. We therefore reverse the grant of summary judgment and remand the case for further proceed- ings. I Isabelle Arana enrolled at the University of Wisconsin’s main campus in Madison, Wisconsin, in 2017. She abruptly interrupted her studies and returned home to Chicago in No. 22-2454 3
April of the following year. A few days later, Arana’s father informed the University that Arana had been sexually har- assed and assaulted by two members of the University’s foot- ball team, Quintez Cephus and Danny Davis III, the day be- fore returning home. The following day, the University’s Title IX coordinator, Lauren Hasselbacher, emailed Arana. She informed Arana the University had insufficient information to initiate an in- vestigation and offered to speak with Arana to proceed. Within days, the Madison Police Department informed the school that Cephus was the subject of a criminal investigation. Cephus was then suspended from the football team. Around that time, Arana expressed interest in a no-contact order and the school issued one against both players. The directive ap- plied indefinitely, and violations could result in disciplinary charges. The University was initially proactive in enforcing the no- contact order. Hasselbacher herself emailed the Dean’s Office to check whether Arana shared a class with either Cephus or Davis. Hasselbacher learned that Arana and Davis were in the same music class and worked with other administrators to separate the two. Another woman (“Complainant 1”) later contacted the University, alleging that she too was assaulted by Cephus the same night as Arana. She provided a written account to Has- selbacher alleging that Cephus had sexually assaulted her and Arana after they refused his advances. According to Com- plainant 1, the two women had been drinking heavily before accompanying Cephus to his apartment. Complainant 1 said that Arana appeared unconscious during the interaction due 4 No. 22-2454
to her intoxication and that Cephus enlisted Davis to take re- vealing photos of the two women without their consent. Hasselbacher determined she had enough information to charge both Cephus and Davis with assaulting and harassing the women, and a formal disciplinary inquiry commenced. The investigation spanned four months, during which all par- ties were offered an opportunity to provide statements, pre- sent evidence, and meet with investigators accompanied by representatives of their choosing. The investigation culmi- nated in a report detailing the evidence collected. An assistant dean concluded that the evidence showed, more likely than not, that Cephus had committed Second De- gree Sexual Assault, Third Degree Sexual Assault, and Sexual Harassment, as defined by University policy. 1 The assistant dean recommended Cephus be expelled and set the matter for consideration before a “Nonacademic Misconduct Hearing Committee.” The parties were provided with all available ev- idence to review, and they and their representatives were af- forded the opportunity to appear before the committee. On the morning of the meeting, Cephus approached Arana in an attempt, according to Arana’s attorney, to intim- idate her. The attorney stepped between the two to defuse the
1 “Second Degree Sexual Assault” encompassed sexual contact or in-
tercourse with a person incapable of providing consent due to intoxication if the respondent had actual knowledge of the inability to consent. UNIVERSITY OF WISCONSIN-MADISON, POL’Y ON SEXUAL HARASSMENT & SEXUAL VIOLENCE, at 14 (2018). “Third Degree Sexual Assault” included “Sexual intercourse with a person without … consent.” Id. at 15. And “Sexual Harassment” consisted of “[u]nwelcome sexual advances, re- quests for sexual favors, and other verbal or physical conduct of a sexual nature [that] … creates a hostile environment.” Id. at 14. No. 22-2454 5
situation and reported the incident as a violation of the no- contact order. 2 A university official reminded Cephus of the no-contact order and warned that he must leave the area when coming into contact with Arana. The disciplinary committee found that, by a preponder- ance of the evidence, Cephus was responsible for two of the three charges: Third Degree Sexual Assault and Sexual Har- assment. Not only was Arana too intoxicated to consent to sexual intercourse, the committee ruled, she had also affirm- atively denied permission. The committee further found that Cephus sexually harassed Arana by creating, intentionally or not, a hostile learning environment. The committee, however, reversed the Second Degree Sexual Assault charge after con- cluding the evidence was insufficient to support a finding that Cephus knew the level of Arana’s intoxication. Cephus was nonetheless expelled based on the other two charges, a deci- sion he appealed to the University’s Chancellor, Rebecca Blank, and then to the Board of Regents. Both appeals were denied, and the investigation closed after more than twelve months. The assistant dean ultimately found Davis not responsible for sexual harassment and neither Davis nor Cephus respon- sible for taking nude photographs of Arana. While Davis ad- mitted to taking photographs of the women at Cephus’s
2 The University argues that this is hearsay because an assistant dis-
trict attorney’s deposition testimony described the event as conveyed to him by Arana’s attorney. We of course may not consider inadmissible hearsay. Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016). But the record includes Arana’s and her attorney’s sworn accounts of the event. So, we need not rely on the purported hearsay. 6 No. 22-2454
direction, there was not sufficient evidence to establish that the women were naked in the photos. After the school’s Title IX investigation, Cephus’s criminal case advanced to trial in the Dane County Circuit Court. Ce- phus faced a single charge of Second Degree Sexual Assault. WIS. STAT. ANN. § 940.225(2)(cm). Like the University’s policy on Second Degree Sexual Assault, to be convicted of the Wis- consin equivalent, the jury had to find that Arana was “under the influence of an intoxicant to a degree which renders that person incapable of giving consent” and that Cephus had “ac- tual knowledge” of Arana’s inability to consent. Id. But unlike the University decisionmakers, who only had to decide whether Cephus was guilty by a preponderance of the evi- dence, the jury had to find Cephus guilty beyond a reasonable doubt. In essence, the jury was asked to convict Cephus of a charge the school had already found not supported by the ev- idence under the school’s less stringent evidentiary standard. The jury did not convict. Following the acquittal, one juror said that surveillance videos shown at trial—purportedly showing that the women were not outwardly displaying signs of severe intoxication—were “important” because they showed “how the victims looked in [Cephus’s] eyes.” Once acquitted in state court, Cephus filed a petition for readmission with Chancellor Blank. Although the initial Title IX investigation had spanned months, Cephus expected a re- sponse in two days, noting that “with the passing of each day, [his] ability to attend a Division I university and participate in athletics is compromised if not completely eliminated.” The petition was based on new evidence purportedly de- veloped during Cephus’s criminal trial that he claimed called into question the University’s findings. Specifically, he cited No. 22-2454 7
surveillance video, testimony from witnesses about their per- ception of the women’s sobriety, and testimony that drew into question Complainant 1’s credibility. The petition included a thumb drive with clips of the surveillance videos and a depo- sition transcript of one of the witnesses. Because “[t]he press for time [did] not allow for preparation of the trial transcript,” however, Cephus “recount[ed] the [other] evidence at trial.” The University’s general counsel was charged with re- viewing all the evidence and submitting a written report iden- tifying the most pertinent evidence for Chancellor Blank’s consideration. Chancellor Blank rarely reviewed all the evi- dence, relying on her counsel to do so. The University’s coun- sel reached out to Cephus’s attorney about the trial transcript because the University believed “it to be an essential element in the chancellor’s review of [Cephus’s] petition.” The prose- cutor at the criminal trial later told the University it had to order the transcripts if it wanted to know what happened at trial. The University’s counsel declined, saying time was of the essence. Chancellor Blank would later agree, saying a de- lay was not “tenable given the publicity this trial was get- ting,” and Cephus deserved a response in a “timely” fashion, as it would not be fair for him to put his life on hold after a jury had acquitted him. The Chancellor’s team spoke to select individuals who had been at the trial, including Cephus’s attorney, who Uni- versity representatives conferred with multiple times. The University did not speak to Arana or any of her legal team, none of whom had been informed of the petition or given a chance to review the newly submitted evidence. At the same time, the University received input from other interested parties. High-level donors pressured the 8 No. 22-2454
University to readmit Cephus quickly. Within 48 hours of re- ceiving the petition, Chancellor Blank received letters from five donors who each had given at least $1,000,000 and possi- bly over $100,000,000 collectively to the University. The letter writing campaign was initiated by Ted Kellner, whose name adorned the University’s football buildings; he had recently made a significant revocable pledge to the University. The University also tracked fan sentiment, monitoring a social media hashtag referencing Cephus, which was often ac- companied by an image of Cephus on the football field with an inscription reading, “Wisconsin Don’t Delay, Let Cephus Play!” Many of the posts tagged Chancellor Blank personally in hopes she would see them. Chancellor Blank further heard from the football program. The team wrote a letter urging her to readmit Cephus. Dozens of players took part in a press conference staged by Cephus and his legal team, perceived by the Chancellor to be part of a pressure campaign for Cephus’s reinstatement. The team’s head coach publicly proclaimed he would welcome Cephus back given the opportunity. Eight days after the petition was filed, Chancellor Blank called Hasselbacher to inform her that she would readmit Ce- phus. Chancellor Blank said she faced a difficult situation where “both sides” might sue and she had to do what was right. She could not ignore the “fast and unequivocal jury de- cision” and though she “[did not] take lightly overturning process,” she “[did not] see much other choice.” Hasselbacher advised that the women should be given a chance to respond. No. 22-2454 9
But the University declined the advice, as it was not required to by law. 3 Five days later, Chancellor Blank readmitted Cephus by vacating the finding that he was responsible for Third Degree Sexual Assault (recall that this includes “[s]exual intercourse with a person without … consent” and the University had found that Arana was too intoxicated to consent and had af- firmatively denied permission). UNIVERSITY OF WISCONSIN- MADISON, POL’Y ON SEXUAL HARASSMENT & SEXUAL VIOLENCE, at 15 (2018). According to the Chancellor, various witnesses consistently reported that the women consumed alcohol, but descriptions of their intoxication varied between “drunk,” “very drunk,” “buzzed,” “tipsy,” “hammered,” “drunk but acting normal,” and “blacked out.” Regardless, Chancellor Blank believed the surveillance video corroborated that Arana did not “exhibit outward signs of incapacitation.” The Chancellor’s decision did, however, uphold the sex- ual harassment finding against Cephus. But her rationale var- ied from the Board’s, which relied on Cephus’s continued presence creating a hostile learning environment. The Chan- cellor, in contrast, cited Cephus’s admission to taking nude photos of the women without their consent. Because of this
3 The Wisconsin Administrative Code at the time explicitly required
that a complainant be notified of any change to the disciplinary outcome. WIS. ADMIN. CODE USW § 17.18 (2016). Chancellor Blank interpreted this to mean Arana should not be involved before a decision was made be- cause the code did not expressly provide for her participation. The Wis- consin Administrative Code was amended a few years later to ensure that “[if] enrolled as a student at the time of the petition, the complainant shall be provided opportunity to respond to the petition prior to the readmis- sion decision.” WIS. ADMIN. CODE USW § 17.18 (2021). 10 No. 22-2454
and Cephus’s history—including other incidents of harass- ment and lying during the police and University investiga- tions—the Chancellor kept in place the no-contact order. Chancellor Blank was to personally notify several interested parties of her decision, including Kellner, the donor who re- cently made the revocable pledge to the University (the rec- ord does not indicate how many of the parties she in fact no- tified). Arana returned to campus two weeks later for a new se- mester. Worried that the no-contact order would prove insuf- ficient because Cephus had previously violated it, Arana and her counsel met with the University’s Assistant Dean of Stu- dents and its Director of Threat Intervention Services hoping to develop a safety plan. In an about-face from their prior pro- active stance, the two University personnel rejected Arana’s concerns because they saw no actionable threat, and told her instead to try avoiding Cephus and to call 9-1-1 if she felt threatened. Feeling the University’s response left her on her own and fearful of encountering Cephus, Arana skipped classes, did not use the student union or communal study spaces, and avoided walking through parts of campus where she might run into Cephus. Arana also reduced her attendance at soror- ity events, opting to stay in her apartment or return home to Chicago on weekends. These changes required her to “work[] harder and longer hours to attain the same grades.” Believing her fear and anxiety would limit her ability to succeed, she transferred from advanced to easier courses. Although she had been on track to graduate in three years, Arana’s reduced courseload delayed graduation by a semester, which in turn delayed her matriculation into law school by a full year. No. 22-2454 11
In June 2020, Arana filed a Title IX lawsuit against the Uni- versity, alleging, in part, deliberate indifference to the sexual harassment that she experienced. Arana and the University filed cross motions for summary judgment. The University conceded that it had knowledge of sexual harassment: it never vacated its finding that Cephus had violated the school’s policy on sexual harassment. But it argued that it was not liable under Title IX because Arana could not prove that the school was deliberately indifferent to the harassment or that the harassment deprived her of access to educational op- portunities. The district court disagreed with the University’s argu- ment that a reasonable jury could not find the school deliber- ately indifferent to the harassment Arana suffered. The dis- trict court disagreed because the decision to readmit Cephus “appears to have been driven by at best a desire to avoid any arguable liability for having suspended and expelled Cephus in response to his acquittal on criminal sexual assault charges less than two weeks before, or at worst, a desire to get an im- portant player back on the football field in time for the open- ing of UW’s football season.” Doe v. Bd. of Regents, 615 F. Supp. 3d 877, 885 (W.D. Wis. 2022). But the district court agreed with the University that Arana could not show the harassment at the hands of Cephus deprived her of educational opportuni- ties. In support of its conclusion, the court cited Arana’s oth- erwise successful academic performance. The district court 12 No. 22-2454
therefore denied Arana’s motion and granted the Univer- sity’s. 4 Arana appeals the grant of summary judgment in favor of the University, arguing the district court erred in concluding no reasonable jury could find for her on all elements of her Title IX claim. II Title IX was signed into law over 50 years ago to protect individuals from discriminatory sex-based practices in edu- cation and to prevent federal resources from being used to support such practices. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998). To achieve this goal, the law prohibits recipients of federal funds from causing anyone to “be ex- cluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity” based on sex. 20 U.S.C. § 1681(a). This prohibition has been interpreted expansively to give the law “a sweep as broad as its language.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521 (1982). The Supreme Court later recognized that Title IX includes an implied private right of action, Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979), and that it permits schools to be liable not just for their own direct acts of discrimination, but also for indirect discrimination claims involving teacher-on-student sexual harassment if the school had actual notice of the har- assment and was deliberately indifferent to it, Gebser, 524 U.S. at 292–93. Shortly after, the Court extended Gebser’s holding
4 The district court also concluded that Arana could not prevail on a
claim that the University directly discriminated against her. Neither party challenges that holding. No. 22-2454 13
to cases involving student-on-student sexual harassment. Da- vis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999). Under Davis, a successful Title IX claim based on student- on-student harassment requires the plaintiff to prove the fol- lowing elements: First, the school or its officials had actual knowledge of sex-based harassment. 526 U.S. at 650; see also Jauquet v. Green Bay Area Cath. Educ., Inc., 996 F.3d 802, 808 (7th Cir. 2021). Second, the harassment was “so severe, perva- sive, and objectively offensive” as to deprive access to educa- tional opportunities or benefits. 526 U.S. at 650. Third, the school’s response was deliberately indifferent to the harass- ment. Id. III “We review de novo a district court’s decision on cross- motions for summary judgment, construing all facts and drawing all reasonable inferences in favor of the party against whom the motion under consideration was filed.” Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017). That means we are to construe the facts in favor of Arana and will affirm the district court’s decision only if “there are no genuine issues of mate- rial fact.” Id. On the other hand, if a reasonable jury, on the evidence presented, could return a verdict in favor of Arana on her Title IX claim, then we must reverse. See Carmody v. Bd. of Trs. of Univ. of Ill., 893 F.3d 397, 401 (7th Cir. 2018). We begin by determining what is within the scope of our review. The University’s motion for summary judgment fo- cused on two arguments: that Arana was not deprived of ed- ucational opportunities and that the University’s response was not so unreasonable as to constitute deliberate indiffer- ence. Before us, the University makes the following additional 14 No. 22-2454
arguments: one instance of sexual harassment cannot be con- sidered pervasive and the one instance of harassment is not actionable because it occurred at a private apartment, an en- vironment outside the University’s control. The University al- luded to the control argument in a footnote to its brief in sup- port of summary judgment but, as Arana points out to us, the University did not develop the argument until its summary judgment reply brief, thereby waiving the argument. O’Neal v. Reilly, 961 F.3d 973, 974 (7th Cir. 2020); see also Costello v. Grundon, 651 F.3d 614, 637 (7th Cir. 2011) (declining to affirm summary judgment on “alternative bases” that were “not raised in the district court until the filing of the reply”). 5
5 We disagree with our dissenting colleague that it is appropriate to
consider this line of argument. Even setting aside the fact that our caselaw counsels against considering an argument developed only in a reply brief on summary judgment, the record has not been sufficiently developed to decide this fact-intensive issue. And the issue is, indeed, fact intensive. Take, for example, the Ninth Circuit’s decision in Brown v. Arizona finding that a university had control over an off-campus housing facility where a football player sexually assaulted other students. 82 F.4th 863, 878–79 (9th Cir. 2023). This holding was based on several pieces of evidence. First, the university’s football program conditioned athletes’ ability to live off cam- pus on good behavior and had the authority to revoke the privilege. Id. at 878. Second, the university’s Student Code of Conduct explicitly stated that it “applie[d] to student conduct both on-campus and off-campus be- cause off-campus misconduct can affect student health, safety, and secu- rity as much as on-campus misconduct can.” Id. (cleaned). Finally, a no- contact order imposed in Brown “expressly applied both to on-campus and off-campus spaces.” Id. Even the Eighth Circuit case on which the dis- sent relies limited its holding to the facts before it. See Roe v. St. Louis Univ., 746 F.3d 874, 884 (8th Cir. 2014) (“We conclude that on this record ….). By contrast, the parties here have not developed the factual record to a suffi- cient degree. As such, we decline the University’s invitation, which our dissenting colleague accepts, to decide this issue for the first time without No. 22-2454 15
The University arguably also waived its contention that the harassment was not pervasive. Id. But Arana does not ar- gue that the issue was waived, instead addressing the argu- ment’s merits on appeal, and she thus waives any waiver ar- gument. Riemer v. Ill. Dep’t of Transp., 148 F.3d 800, 804–05 n.4 (7th Cir. 1998). We therefore begin by examining whether the harassment experienced by Arana was severe, pervasive, and objectively offensive. IV To constitute actionable conduct under Title IX, student- on-student harassment must be severe, pervasive, and objec- tively offensive. Davis, 526 U.S. at 633. The inquiry into whether harassment is actionable “depends on a constellation of surrounding circumstances, expectations, and relation- ships.” Id. at 651. The severity and objective offensiveness of rape and sexual assault are not, and cannot be, in doubt. See Baskervill v. Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir. 1995) (actionable conduct in the Title VII context includes “sexual assaults” and “other physical contact, whether amorous or hostile, for which there is no consent express or implied”); see also Vengalattore v. Cornell Univ., 36 F.4th 87, 103 (7th Cir. 2022) (“Because Title VII’s discrimination prohibition overlaps Title IX’s prohibition against sex discrimination in education pro- grams … we have … long interpreted Title IX by looking to … the caselaw interpreting Title VII.” (cleaned)). The re- maining question is whether the harassment suffered by Arana was pervasive.
the benefit of a developed record, full briefing, or a decision from the dis- trict court. 16 No. 22-2454
The University claims that the harassment was not perva- sive. As support, it cites language in Davis expressing skepti- cism that a single instance of harassment can form the basis of Title IX liability. The Court explained that severe, pervasive, and objectively offensive harassment will have a “systemic ef- fect” on a student’s education. Davis, 526 U.S. at 652. “Alt- hough, in theory, a single instance of sufficiently severe one- on-one peer harassment could be said to have such an effect” it found “it unlikely that Congress would have thought such behavior sufficient to rise to this level.” Id. at 652–53. Accord- ing to the University, our dissenting colleague, and two of our sister circuits, this conclusively means a victim of a single sex- ual assault can never recover under Title IX. Post, at 46; Kol- laritsch v. Michigan State Univ. Bd. of Trs., 944 F.3d 613, 620–21 (6th Cir. 2019); K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1059 (8th Cir. 2017). Reading Davis plainly and with complete deference to its authority, we disagree, and we join three of our sister circuits in doing so. While the Court in Davis expressed skepticism at the sufficiency of alternative facts not then before it, it did not mandate hand-counting harassment. Given the potential life- altering and lasting impact of sexual assault, it is entirely con- ceivable that an instance of harassment may be sufficiently se- vere and pervasive to “differ markedly from the rarely action- able, theoretical single incident mentioned in Davis ….” Wil- liams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1298 (11th Cir. 2007). For this reason, several of our sister cir- cuits—the First, Fourth, and Eleventh—have held that single incidents of harassment may create Title IX liability “if that incident were vile enough and the institution’s response, after learning of it, unreasonable enough to have the combined sys- temic effect of denying access to a scholastic program or No. 22-2454 17
activity.” Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172 (1st Cir. 2007); see also Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021) (“Even a single incident of sexual harass- ment, if sufficiently severe, can inflict serious lasting harms on the victim—physical, psychological, emotional, and so- cial.”); Williams, 477 F.3d at 1297–98; Hill v. Cundiff, 797 F.3d 948, 973 (11th Cir. 2015). 6
6 In truth, the dissent’s view that the Eleventh Circuit stands on the
other side of this circuit split is a legible one. Post, at 48–49. In Williams, the Eleventh Circuit considered whether a female university student who was sexually assaulted by several male students on a single night had experi- enced sufficiently pervasive harassment under Davis. 477 F.3d at 1297–98. The Eleventh Circuit ultimately found the assault pervasive despite “oc- curring in one room over two hours” because the assailants undertook a “continuous series” of harassing actions such as conspiring to commit the gang rape and each assaulting Williams. Id. Yet, when examined more closely, it is unclear whether Williams requires plaintiffs to present evidence that multiple instances of harassment occurred before a school had actual notice of the discrimination (“pre-notice harassment”). After all, Williams was assaulted over the course of a single evening. Id. at 1298. And rather than clearly stating that Williams had shown that she suffered more than one instance of pre-notice harassment, the Eleventh Circuit instead found that the assault differed “markedly from the rarely actionable, theoretical single incident mentioned in Davis.” Id. To this end, two of our sister circuits read Williams to permit Title IX claims where only a single instance of harassment is alleged. See Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 273 (4th Cir. 2021) (reading Williams to permit Title IX claims “even though the plaintiff alleged only a single incident of pre-notice harassment”); Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 342–43 (5th Cir. 2022). Even assuming the dissent’s reading of Williams is correct, applying the Eleventh Circuit’s logic to the record before us still supports our con- clusion that the harassment Arana experienced was pervasive. After all, Arana, like Williams, presents evidence that Cephus was a “ringleader 18 No. 22-2454
We agree and adopt this standard because it promotes the appropriate balance between Davis’s twin aims of preventing students from being “denied access to educational benefits and opportunities on the basis of gender,” 526 U.S. at 650, and only holding institutions liable for their “own failure to act,” id. at 645. It recognizes the reality that while a student would reasonably feel apprehensive and fearful regardless of their school’s response to a report of egregious harassment, that fear and apprehension casts a pervasive shadow across the student’s schooling where administrators respond in an un- reasonable manner. The University argues that even if a single assault were actionable, they are not liable because Davis said that Title IX liability only attaches where a school’s deliberate indifference “subjects its students to harassment.” 526 U.S. at 644 (cleaned). They read this language to mean that they are not liable because it is not as if they responded insufficiently while Cephus committed further acts of sexual harassment. This reading unduly narrows Davis. Just after the quoted lan- guage, Davis states that a school’s response “must, at a mini- mum, cause students to undergo harassment or make them lia- ble or vulnerable to it.” Id. at 645 (emphasis added). 7 Davis is
who lured the victim to his territory” and conspired with Davis to harass Arana by taking nonconsensual photographs of her. Williams, 477 F.3d at 1298. She also presents evidence that Davis penetrated her vagina several times. These events, as in Williams, occurred in a continuous series over the course of a single evening. Id. Like the Eleventh Circuit, we believe that these events “differ markedly” from the nonactionable single incident considered in Davis. 7 The circuits are split as to whether this means that a Title IX plaintiff
must show that the school’s deliberate indifference after receiving notice of student-on-student harassment resulted in further concrete acts of No. 22-2454 19
more inclusive than the University alleges and would extend liability to instances where a school’s response puts a student at further risk of harassment. We therefore hold that Title IX monetary liability can extend to a single pre-notice instance of egregious harassment where the educational institution’s re- sponse was clearly unreasonable under the totality of the cir- cumstances. 8 For her part, Arana has presented sufficient evidence (in- cluding her own and other witnesses’ prior statements to Uni- versity personnel and campus police) for a jury to conclude that the harassment she experienced on that April evening
harassment or simply left the student more vulnerable to future acts of harassment. See Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 342– 43 (5th Cir. 2022) (recognizing 4-3 split in favor of no requirement to show further post-notice acts of actual harassment while declining to take a po- sition). On one side of the split stand the Sixth, Eighth, and Ninth Circuits, holding that a school can be deliberately indifferent only when its actions result in a further incident of harassment. Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 621 (6th Cir. 2019); K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1058 (8th Cir. 2017); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). The other side of the split consists of the First, Fourth, Tenth, and Eleventh Circuits, which hold that a school’s ac- tions need only make harassment more likely. Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172 (1st Cir. 2007), rev’d on other grounds, 555 U.S. 246 (2009); Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021); Farmer, 918 F.3d at 1105; Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1295–97 (11th Cir. 2007). 8 The dissent casts this holding as a “strained interpretation” of Davis.
Post, at 35, 58. Yet, it is the dissent’s own interpretation that strains against Davis’s plain text. Our colleague presumes, without explanation, that Da- vis’s “context” compels a requirement of further harassment. Id. at X. But we, like the First, Fourth, Tenth, and Eleventh Circuits before us, find that the dissent’s formulation “overly distills the rule set forth by the Davis Court.” Fitzgerald, 504 F.3d at 172. 20 No. 22-2454
was sufficiently egregious as to be pervasive. Not only does she present evidence that Cephus sexually assaulted her, but that Cephus penetrated her vagina with his fingers and then his penis several times. She was unconscious throughout the assault. Cephus even enlisted Davis in between the assaults to help him take revealing photographs of her. We discuss the jury issue as to the insufficiency of the Uni- versity’s response infra in Part VI. V We next turn to Arana’s argument that the severe, perva- sive, and objectively offensive harassment that she suffered deprived her of educational opportunities and benefits, con- trary to the district court’s ruling. This relates to our inquiry into the severity of the harassment, as the harassment must, as outlined above, be severe enough to have “systemic ef- fect[s]” on the student’s education. Davis, 526 U.S. at 652–53. Put plainly, courts look to see whether the harassment “had a ‘concrete, negative effect’ on the victim’s access to education.” Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 821 (7th Cir. 2003) (quoting Davis, 526 U.S. at 654). In Davis, the Supreme Court explained that a drop in the plaintiff’s grades provided “necessary evidence of a potential link” between the harassment and the plaintiff’s education. 526 U.S. at 652. The Court did not, however, impose a thresh- old requirement that plaintiffs must demonstrate a decline in grades to succeed in a Title IX action. Indeed, courts have rec- ognized a variety of other suitable evidence demonstrates a “concrete negative effect.” Id. at 652; see, e.g., Gabrielle M., 315 F.3d at 823 (increased absenteeism); Wamer v. Univ. of No. 22-2454 21
Toledo, 27 F.4th 461, 471 (6th Cir. 2022) (changed course of study); Doe v. Sch. Dist. No. 1, 970 F.3d 1300, 1312–13 (10th Cir. 2020) (missed in-person instruction and socialization oppor- tunities); Farmer v. Kansas State Univ., 918 F.3d 1094, 1104–05 (10th Cir. 2019) (lost scholarship, withdrawal from extracur- riculars, and avoidance of campus areas without escorts). Arana, for her part, contends the district court misstated the law. Facially, the district court’s decision dismissed the idea that “proof of declining grades or absenteeism” was a prerequisite for Title IX liability. Doe v. Bd. of Regents, 615 F. Supp. 3d at 886. But the court nonetheless emphasized grades and absenteeism above all else. The court found it important that Arana continued participating in student groups and successfully graduated with a strong GPA in under four years. While mostly true, this characterization paints an overly rosy picture. The University recognized in its original Title IX investi- gation that sharing a campus with her assailant would create a hostile environment for Arana. Crucially, Arana has ex- plained over the course of this litigation how that environ- ment affected her education. Her anxiety prevented her from using certain campus resources. She skipped classes, did not use the student union or communal study spaces, and stayed away from certain parts of campus. Given these disruptions, she had to “work harder and longer hours to attain the same grades,” and transferred from advanced courses to easier courses. Ultimately, she graduated with good grades in only three and a half years, but she entered college expecting to graduate in three years based on credits carried from high school. That extra semester delayed her entry to law school by a year. Further, she reduced her attendance at sorority events, 22 No. 22-2454
choosing to return to Chicago many weekends rather than so- cialize. The University posits that, if anything, these effects are at- tributable to its readmission of Cephus and not the harass- ment he caused. See Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274–75 (4th Cir. 2021) (“[T]he main object of inquiry for this prong is the alleged sexual harassment, rather than the de- fendant’s response thereto. Indeed, the latter is relevant only to the issue of deliberate indifference.” (cleaned)). In support, the University marshals evidence that the effects Arana de- scribed did not begin right after the assault. This position ignores our caselaw finding that a victim of a violent assault is denied equal access when they graduate early with a limited diploma “rather than stay and complete the work needed for a full … diploma.” Doe v. Galster, 768 F.3d 611, 619 (7th Cir. 2014) (citing Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655 (2d Cir. 2012)). That reasoning applies in this context with equal strength where there is evidence that Arana struggled greatly after the assault and delayed her own graduation. See Doe, 1 F.4th at 275 (directing factfinders to “consider all of the surrounding circumstances … and an ap- propriate sensitivity to social context” when undertaking this inquiry). The University’s causal argument also stretches too far. For instance, in this case, the University’s decision forced Arana to share a campus with her assailant. It was this cam- pus environment that in part caused Arana’s struggles, and the environment was caused by the assault. True, one link in the causal chain was the University’s decision to readmit Ce- phus. This in no way detracts from the clear line one can draw between the assault and the detrimental effects Arana now No. 22-2454 23
describes. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020 (recognizing events often have multiple causes). If a jury were to find that the University’s readmission de- cision was clearly unreasonable, see infra Part VI, then it could appropriately rely on Arana’s testimony that she delayed her graduation, spent most of her time alone, or left campus en- tirely to find that the harassment and the University’s unrea- sonable response negatively affected her education in a con- crete way. The University appears to also question whether the hos- tile environment could have a systemic effect given Arana and Cephus overlapped for only one semester between his re- admission and his departure to pursue a professional football career. We see no reason to mandate an artificial threshold for the amount of time that need pass before an effect can be con- sidered systemic. Even if we did, we would not go so far as the University to categorically draw that line beyond one se- mester’s worth of harassment. We have no problem envision- ing that one semester’s interruption can adversely affect, or even completely derail, a student’s education. Arana’s asser- tions, if credited, establish as much. Fundamentally, the district court and University incor- rectly gauge the nature of education. To distill a student’s ed- ucation to “good” or “bad” academic achievements leaves “unanswered … the full spectrum of success that female stu- dents might have achieved” had they not been subject to dis- crimination and “excuse[s] discrimination because its victims are resilient enough to persist” in its face. Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 135 (4th Cir. 2022) (Keenan, J., concur- ring). A reasonable jury could rely on the dropped classes, changed courseload, and delayed graduation to find a 24 No. 22-2454
material impact on Arana’s academic performance, regard- less of whether her grades suffered. If Arana’s testimony is credited, the harassment she suf- fered ultimately left her unable to enjoy the full panoply of educational opportunities that made her classmates’ experi- ences enriching. This is sufficient to establish deprivation of educational opportunities because, after all, education is more than academics. 9 VI Where does this leave us? At this point a reasonable jury could conclude that Arana experienced severe, pervasive, and objectively offensive harassment after being sexually as- saulted and this fomented a hostile environment, having pro- found effects on her academic and social life. But the fact that Arana experienced harassment while studying at the Univer- sity of Wisconsin would not entitle her to damages from the University. Title IX imposes liability for “subject[ing],” Davis, 526 U.S. at 643, others to discrimination or making them “vul- nerable to it,” id. at 645, so “a recipient of federal funds may be liable in damages under Title IX only for its own miscon- duct.” Id. at 640. This means the University cannot be liable
9 As the Rape, Abuse and Incest National Network (“RAINN”) refer-
ences in its amicus brief, Chancellor Blank acknowledged the following in her remarks about returning to in-person instruction after the COVID-19 pandemic shuttered campus: “It is the connections and interactions that make UW-Madison a great university and that bring students here for a high-quality residential learning experience.” Brief for RAINN as Amicus Curiae at 17–18 (citing Chancellor Blank, Creating the New Normal: Return- ing to Campus, UNIVERSITY OF WISCONSIN: BLANK’S SLATE (Mar. 25, 2021), https://chancellor.wisc.edu/blog/creating-the-new-normal-returning-to- campus/). No. 22-2454 25
for the harassing conduct of Cephus unless its own deliberate indifference to the harassment subjected Arana or made her vulnerable to discrimination. See id. at 646–47. The University maintains that it was never deliberately in- different to Arana’s accusations of harassment because its “re- sponse was immediate, vigorous, and sustained.” It points to the ways the school supported Arana after she came forward with her allegations and how it expelled Cephus after a thor- ough investigation. But the adequacy of the University’s ini- tial Title IX investigation is not in dispute. Instead, Arana ar- gues that the school was deliberately indifferent when it re- admitted Cephus. The University believes that we cannot se- lectively examine one part of its response. What it seems to miss is that the challenged action, Cephus’s readmission, ef- fectively nullified the initial Title IX investigation. Regardless of how proper a school’s initial response, Title IX would be undone if a school could avoid liability by vacating a discipli- nary decision comporting with Title IX using a process that does not. The University insists that the Chancellor overturned the initial decision in response to legitimate changed circum- stances: a not guilty verdict and trial evidence showing Ce- phus was not responsible for sexual assault. This argument has a certain logic: A school should be able to make a good- faith evaluation of newly presented evidence that might change a prior disciplinary decision without running afoul of Title IX. Arana presents evidence, however, that suggests the University’s decision to readmit Cephus was not the product of a reasoned and good-faith reexamination but undue influ- ence. For instance, the University did not wait for the trial transcript, did not contact Arana about the new evidence or 26 No. 22-2454
to ask for other evidence from the trial, and yet it heard from numerous influential parties adverse to Arana’s interests. The University rightly points out that Wisconsin law did not require the Chancellor to involve Arana in the readmis- sion process. It maintains that the Chancellor therefore fol- lowed state law and cannot be deliberately indifferent. It may be true that the law did not require Arana’s participation, but it also did not seem to forbid it. Regardless, there is no need to decide whether a school can be deliberately indifferent when following state law. There is sufficient evidence apart from the exclusion of Arana from the readmission process that could lead a jury to conclude that the University unrea- sonably readmitted Cephus because of a desire to further the football program’s interests. That sufficient evidence is this: Although the initial inves- tigation spanned more than a year, the decision to readmit Cephus concluded within weeks, just in time for the start of the football season. The University contends that most of the legwork had been done during the initial investigation and Chancellor Blank needed to consider only a few pieces of new evidence. However, there is no escaping the fact that the time- line looks suspicious: Cephus’s petition for readmission came shortly before the football season commenced and demanded a favorable decision immediately. Layer on top of that influ- ential donors, fans, and the football program all making the same demand and one could reasonably conclude that Ce- phus’s readmission was meant to placate a growing chorus calling for just that result. For this reason, we disagree with the University’s argument that, ultimately, the true motive behind readmitting Cephus is inconsequential. A jury would be well within its rights to find the University was No. 22-2454 27
deliberately indifferent to known harassment simply to avoid angering key boosters and interest groups. Of course, it is pos- sible to view the evidence—particularly Chancellor Blank’s sworn testimony attesting to her nonmonetary motivations— and conclude that the Chancellor came to her conclusion in- dependent of these demands, but at this point we must make all reasonable inferences in favor of Arana. See Carmody, 893 F.3d at 401. Alongside the suspicious timing, the new evidence the University presents does not undermine its conclusions dur- ing the original Title IX investigation as much as the Univer- sity suggests. According to the University, critical to the Chancellor’s decision was a police interview with Complain- ant 1 where she described an interaction with Arana and Ce- phus: “[I said something] like we’re leaving, we’re going home, or something, and [Cephus] was like no, like come back in 20 minutes. And I was like what do you need 20 minutes for. And [Arana] was like sex.” But the University omits context that supports the conclusion that Arana was too intoxicated to provide consent. Complainant 1 continued: “[Arana] was like, her eyes were rolling to the back of her head. And he’s like come back in 20 minutes. He’s like get out of my room right now. And then I got mad at [Arana] and I was like are you really going to have sex with someone who just talked to me like that. And she was like not even respond- ing.” This context makes the evidence less convincing, sug- gesting the University presents it now as pretext. The same can be said about other evidence that the Chan- cellor alluded to in her readmission decision. The Chancellor highlighted testimony from witnesses who observed the two women before the incident; she noted their descriptions of the 28 No. 22-2454
women’s appearances ranged from “drunk” to “buzzed” to “black out.” But these witnesses’ observations, along with the Chancellor’s own belief that the women did not show “out- ward signs” of incapacitation in security footage captured be- fore they arrived at Cephus’s apartment, primarily addressed the outward appearance of the women and not their actual level of intoxication and resulting ability to consent to sex. This evidence, therefore, is most pertinent to a violation of the University’s prohibition against Second Degree Sexual As- sault, which requires actual knowledge of a person’s inability to consent—and was the charge the University already de- cided not to levy against Cephus. Their testimony is not as probative of the charge the University did initially find Ce- phus guilty of and vacated with the readmission—namely Third Degree Sexual Assault, which lacks a knowledge re- quirement. Indeed, Arana’s version of events that she drank heavily and was later unable to consent when alone with Complainant 1 and Cephus remains largely uncontradicted and supported by other evidence that the University had ac- cess to from the beginning. This includes texts Arana sent Complainant 1 the next morning asking if Complainant 1 was sure that Cephus and Arana had a sexual encounter and seek- ing details of the encounter. None of this is to say that a school can be held liable under Title IX simply because an official draws the wrong conclu- sion from a good-faith evaluation of the evidence. Even if a school wrongly concludes that harassment did not occur when the evidence shows that it did, it cannot be held liable under Title IX unless that decision was clearly unreasonable. See Gabrielle M., 315 F.3d at 824 (“[A]s long as the school’s re- sponse is not ‘clearly unreasonable,’ it cannot have acted with the requisite deliberate indifference to incur Title IX No. 22-2454 29
liability.”) (quoting Davis, 526 U.S. at 648–49). The decision to readmit Cephus was not clearly unreasonable solely because it may have been predicated on a mistaken reading of the ev- idence. We are even willing to accept the Chancellor’s charac- terization of the case as containing “ambiguity.” But because of the apparent weaknesses in the new evidence, coupled with the intense pressure the Chancellor was under to read- mit Cephus, a jury could decide to not credit the Chancellor’s testimony that donor money did not influence her and instead conclude that the University cited the new evidence as mere pretext to readmit a student because of a public pressure cam- paign. And sacrificing Arana’s interest in an educational en- vironment free from sex discrimination on the altar of the football program could be seen as clearly unreasonable by a jury. 10
10 The dissent posits that evidence of a pressure campaign is improper
and speculative. Post, at 51–53. We agree that a plaintiff cannot avoid sum- mary judgment based on ”testimony … speculating as to [the defendant’s] state of mind, or other intuitions, hunches, or rumors.” Widmar v. Sun Chemical Corp., 772 F.3d 457, 460 (7th Cir. 2014); FED. R. CIV. P. 56(c); FED. R. EVID. 602; see Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (collecting cases where testimony that adverse action was taken with discriminatory intent could not defeat summary judgment). There is a difference between speculative testimonial evidence and the circumstantial evidence here. Widmar, 772 F.3d at 460–62 (rejecting testimony claiming employer acted with discriminatory intent while reiterating that circumstantial evidence can establish impermissible motive). Arana does not rely on mere asser- tions of intent but points to letters from donors, news conferences, and an acknowledgment from the University that it was under pressure to read- mit Cephus. The dissent takes the Chancellor at her word that she tuned this pressure out. But that is not our call to make; it is a jury’s. See Norton v. Sam’s Club, 145 F.3d 114, 119 (2d Cir. 1998) (one “who discriminates is unlikely to leave a smoking gun … attesting to a discriminatory intent.” (cleaned)). And while the evidence of discrimination Arana presents is 30 No. 22-2454
No matter, the University believes it has an ace up its sleeve in the form of the no-contact order. The argument goes something like this: even if the school unreasonably readmit- ted Cephus, the University’s entire response was not clearly unreasonable because Cephus was directed not to contact Arana, providing her some modicum of safety. See C.S. v. Madison Metro. Sch. Dist., 34 F.4th 536, 543 (7th Cir. 2022) (en banc) (“[A] response does not have to be perfect or even suc- cessful.”). We are not in the business of scrutinizing every last disciplinary decision by substituting our judgment for that of school administrators. Gabrielle M., 315 F.3d at 825. Moreover, schools need not default to expulsion in response to accusa- tions of sexual harassment to avoid Title IX liability. Johnson v. N.E. Sch. Corp., 972 F.3d 905, 912 (7th Cir. 2020). We do not suggest that the University had to expel or maintain the ex- pulsion of Cephus in lieu of issuing a no-contact order. But even if a no-contact order was an appropriate response to the assault in this case, Arana submitted evidence that suggests the University had no interest in enforcing the order after Ce- phus’s readmission. If this evidence is credited, a jury could reasonably conclude that the University’s response to harass- ment was clearly unreasonable. 11
circumstantial rather than direct, that does not make it less probative. United States v. Rose, 12 F.3d 1414, 1417 (7th Cir. 1994). We draw, as we must, all reasonable inferences from this evidence in Arana’s favor, Kemp, 877 F.3d at 350, and leave for the jury the ultimate question of whether to credit those inferences or credit the Chancellor’s testimony and other evi- dence in the University’s favor. 11 This conclusion does not conflict with Johnson and C.S. as the dis-
sent suggests. Post, at 53, 55. We have made clear that the law does not require expulsion. Further, the dissent asserts that if the schools in those two cases avoided liability by telling the alleged assailant to avoid the No. 22-2454 31
The University points us to two facts showing it genuinely intended to enforce the no-contact order. First, it says that Ce- phus never violated the no-contact order after he was read- mitted. But that may be the result of Arana’s actions more than the University’s. Title IX’s protections would mean little if a school could avoid liability by relying on students to pro- tect themselves by curtailing engagement in educational op- portunities, the very result the law seeks to prevent. Second,
plaintiff but did not go so far as excluding the assaulter from school grounds then the University cannot be liable for doing the same here. But the dissent glosses over facts distinguishing those cases from the one be- fore us. The most significant one is the lack of evidence that the schools in those cases showed reluctance to enforce the disciplinary measures put in place (a no-contact order in Johnson, 972 F.3d at 908, and a verbal directive to cease the troubling behavior in C.S., 34 F.4th at 546). The dissent be- lieves that it can say for certain that the University did not express hesita- tion in enforcing the no-contact order and that it was positively the order, and not Arana’s own curtailment of her education, that prevented Arana and Cephus from seeing each other. We, on the other hand, recognize the conflicting evidence regarding the efficacy of the no-contact order. We may not usurp the jury’s role to resolve that conflict. See Runkel v. City of Springfield, 51 F.4th 736, 741–42 (7th Cir. 2022). Unlike the University, the school in Johnson was otherwise incapable of expelling the harassing student. Neither Johnson nor the student who raped her, Froschauer, cooperated with the school’s investigation, mean- ing that there was no way for the school to take greater disciplinary action as such action would have been unsupported by sufficient evidence. 972 F.3d at 909. Additionally, had the school expelled Froschauer, it would have risked violating the state court’s protective order specifically allow- ing him to attend classes. Id. at 909–10. The school therefore approved Johnson’s requested for a homebound learning exemption to avoid having classes with Froschauer. Id. at 909. While this did not eliminate the possi- bility that the two would cross paths at school, it indicates that the school did everything in its power to limit the students’ interactions because it felt it had a responsibility to do so. 32 No. 22-2454
the University points out that administrators met with Arana to hear her concerns about the continued enforcement of the no-contact order. But there is substantial disagreement about what happened at that meeting. A jury could infer a lack of interest in enforcing the order if it accepts Arana’s characteri- zation that the administrators simply told her to contact po- lice if she felt unsafe. This response could be seen as standing in marked contrast with the University’s prior proactive en- forcement of the no-contact order, especially considering that Cephus had, by then, already allegedly violated the order once before. And any lessened zeal at enforcing the no-contact order after Cephus’s readmission would be even more nota- ble, a jury could conclude, because Cephus had previously vi- olated the no-contact order at the very time and place one would expect him to be on his best behavior. A jury could ra- tionally conclude that Arana had reason to fear that someone who would violate the order at such a time and place might do it again, anywhere. A jury is of course free to accept the University’s framing that it was not dismissive of Arana and would have acted if there was a more acute threat. It is not our role, however, to decide the strength of competing evidence. That is a role for the jury to play, and we must allow it that opportunity. See Davis, 526 U.S. at 654 (“The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974))). VII At its core, the University’s arguments ask us to accept the parts of the record that suggest it acted reasonably while ig- noring the parts of the record that suggest otherwise. Whereas No. 22-2454 33
our dissenting colleague takes the University up on its pro- posal, we decline to do so at this stage of the proceedings as it is the role of the jury to weigh the evidence. We also decline to view each piece of evidence in isolation. When we view the following evidence holistically, we conclude that a reasonable jury could find for Arana: (a) the coordinated campaign to pressure the University to readmit Cephus, (b) the speed of the readmission decision relative to the start of the football season, (c) the decision not to wait for a transcript of the crim- inal trial, (d) the decision to not notify Arana or give her an opportunity to be heard prior to the readmission decision, (e) the differing charges and standards of proof at play in the criminal and disciplinary proceedings, and (f) the discrep- ancy between the University’s treatment of the no-contact or- der before and after readmission. Together, this evidence paints a portrait of an educational institution that, in a reason- able jury’s eyes, may have been deliberately indifferent to sex- ual harassment on its campus. Therefore, we REVERSE the district court’s grant of sum- mary judgment in the University’s favor and remand for fur- ther proceedings consistent with this opinion. 34 No. 22-2454
KIRSCH, Circuit Judge, dissenting. Title IX of the Education Amendments Act of 1972 bars federally funded schools from engaging in sex discrimination. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court rec- ognized that student-on-student harassment can amount to school-sanctioned sex discrimination. However, to eliminate any risk that schools would be held responsible for their stu- dents’ misconduct rather than for their own official decision to permit sex discrimination, the Court imposed a high bar for establishing liability that can only be met in certain limited circumstances. Section by section, the majority’s opinion erodes these carefully crafted limitations. The effect is the cre- ation of a new, practically limitless Title IX standard—one that would be unrecognizable to the Davis Court. Consider the limitations that schools only need to respond to peer harassment that occurs in their programs or activities and is so severe, pervasive, and objectively offensive that it has the systemic effect of denying the victim equal access to an educational opportunity or benefit. The Court expressly said in Davis that a single instance of harassment does not meet this standard. But the majority holds otherwise, dismiss- ing the language in Davis as mere dicta. To make matters worse, it does so in a case where the single instance of harass- ment did not even occur in the University of Wisconsin’s pro- grams or activities. The majority’s application of deliberate indifference is similarly difficult to comprehend. While it acknowledges that courts “are not in the business of scrutinizing every last disci- plinary decision by substituting our judgment for that of school administrators,” that is exactly what the majority does. Ante, at 30. Based on nothing more than speculation about the No. 22-2454 35
University’s motives and doubts that it made the right deci- sion to readmit Quintez Cephus, the majority holds that a jury could find the University’s response amounted to deliberate indifference. Even if there were an evidentiary basis for be- lieving the University’s readmission decision was made in bad faith—and there isn’t—nothing in the record suggests that its no-contact order was ineffective, let alone a clearly un- reasonable response to Isabelle Arana’s alleged assault. It is undisputed that following Cephus’s readmission, Arana never saw him again on campus, and the school never learned of any further contact between the two. No reasonable juror could find that the University’s response amounted to delib- erate indifference under these circumstances. Finally, a school isn’t liable under Davis unless its deliber- ate indifference subjects students to harassment. That means Arana must have experienced additional harassment as a re- sult of the University’s allegedly inadequate response. But the majority reads this limitation right out of Davis. Its strained interpretation—that a student need only be left vulnerable to the possibility of further harassment—provides no limit at all. When a school is deliberately indifferent to severe, pervasive, and objectively offensive harassment in its programs and ac- tivities, students are always left vulnerable to further harass- ment. If this requirement is to mean anything, it must mean something more than that. The majority cannot ignore Davis in favor of applying its own view of what the “appropriate balance” is between pre- venting harassment and subjecting schools to liability. Ante, at 18. I respectfully dissent. 36 No. 22-2454
I I accept Arana’s allegations and testimony as true at sum- mary judgment. See Osborn v. JAB Mgmt. Servs., Inc., 126 F.4th 1250, 1258 (7th Cir. 2025). But that “does not extend to draw- ing inferences that are supported by only speculation or con- jecture.” Id. (quotation omitted). A In late April 2018, Isabelle Arana’s father reported to the University of Wisconsin that Quintez Cephus had sexually as- saulted Arana at his off-campus apartment. The Dean of Stu- dents Office contacted Arana the same day, providing infor- mation about the University’s resources and rights for sexual assault victims. The Dean of Students Office also contacted Arana’s professors to inform them that Arana had been the victim of a sensitive crime and asked for their understanding in making academic accommodations. The day after, the Uni- versity’s Title IX Coordinator, Lauren Hasselbacher, emailed Arana information about support resources and potential protective measures at her disposal, such as no-contact direc- tives. The next day, Cephus was suspended from the football team indefinitely. Hasselbacher informed Arana a few days later that Cephus had been suspended from the team because he was the subject of a Madison Police Department criminal investigation. In response, Arana requested a no-contact or- der against Cephus and Danny Davis III (a fellow student and football player who was present the night of the alleged as- sault but later found not responsible for any misconduct). Hasselbacher issued no-contact orders to both Cephus and Davis the next day. The orders remained in effect indefinitely No. 22-2454 37
and required them to avoid all contact with Arana (emphases in original): After receiving allegations of sexual miscon- duct, I am issuing a No Contact Directive prohibit- ing you from having any contact with Isabelle Arana. Contact refers to any intentional words or actions including, but not limited to: tele- phone calls, text messages, instant messages, emails, Facebook, Twitter, or other forms of so- cial media …. If you have incidental contact, it is your responsi- bility to remove yourself from the situation as quickly as possible under the circumstances, to take means to separate, and to avoid further contact. Failure to do so could give reasonable inference of in- tentional, rather than incidental, contact and be a violation of this order.… Hasselbacher sent Arana copies of the no-contact orders the same day. Less than a month after issuing the no-contact orders, and after receiving more information from Arana and another stu- dent who also alleged that Cephus had assaulted her the same night as Arana, the University opened an official investiga- tion into Cephus. Hasselbacher issued Cephus a Notice of Charge informing him that he was under investigation for possible violations of the University’s policy against sexual assault and sexual harassment. It also reminded Cephus of his no-contact order. The Notice of Charge kicked off a Title IX investigation and disciplinary process against Cephus that spanned more than a year. 38 No. 22-2454
In late August 2018, the Dane County District Attorney’s Office filed criminal charges against Cephus. In light of the charges, Hasselbacher immediately reached out to Arana to ask if she had any concerns about returning to school or re- quests regarding her safety or academic accommodations. Ce- phus’s attorney demanded that the University delay the in- vestigation due to the criminal case against his client, but the University’s investigation pressed on. As the fall 2018 semes- ter approached, Hasselbacher also checked with the Dean of Students Office to ensure that Arana had no classes that would overlap with Cephus or Davis. When Arana’s father informed Hasselbacher that Arana had music class with Da- vis, an assistant dean went to the class to ensure he complied with the no-contact order. Hasselbacher immediately spoke with Arana’s attorney about the class overlap, apologized for the oversight, and asked whether Arana believed that Davis had made intentional contact with her. Hasselbacher also spoke with Davis’s attorney to discuss alternatives so that he and Arana would not be enrolled in the same class. Davis dropped the class that day. Hasselbacher presented her Final Investigative Report to the University’s Office of Student Conduct in October 2018. The decision whether to sanction Cephus based on the re- port’s findings was left to Assistant Dean Ervin Cox. Three weeks after receiving the report, Cox concluded that Cephus was responsible for sexual harassment and second- and third- degree sexual assault. Cox recommended expulsion. In January 2019, a three-member misconduct committee held a hearing on the findings and proposed sanction for Ce- phus. While waiting for the hearing to begin, Cephus walked toward Arana. Arana’s attorney perceived Cephus as walking No. 22-2454 39
in a threatening manner, so she stepped in front of him to pre- vent physical contact. Arana’s attorney reported the incident to an assistant dean at the hearing. The assistant dean imme- diately spoke to Cephus and reminded him that under the no- contact order, if he saw Arana, he needed to walk in the other direction and remove himself from the area. The committee unanimously found Cephus responsible by a preponderance of the evidence for third-degree sexual assault and sexual harassment. It also concluded that he was not responsible for second-degree sexual assault. By a 2-to-1 vote, the committee upheld the expulsion sanction. On March 13, 2019, Chancellor Rebecca Blank affirmed the committee’s findings and sanction recommendation, and Cephus was of- ficially banned from campus three days later. B On August 2, 2019, after a week-long criminal trial, a jury acquitted Cephus after 35 minutes of deliberation. Four days later, Cephus filed a petition seeking readmission to the Uni- versity. State law vested the readmission decision in the chan- cellor. See Wis. Admin. Code § UWS 17.18 (2016). The petition was 242 pages long, including exhibits. Cephus’s attorneys also sent the University a jump drive with approximately 70 video clips. After the petition was filed, Blank received many emails from alumni, donors, employees, students, and members of the public asking her to grant or deny Cephus’s petition for many different reasons. Several influential donors wrote to Blank urging her to readmit Cephus. Blank spoke with one of them, Ted Kellner, and told him what she told everyone else: that she appreciated his commentary and would make a decision after looking at the evidence. Blank testified that she was struck by the speed of the verdict, which 40 No. 22-2454
persuaded her that she needed to take the petition seriously and look at the additional evidence. Blank enlisted the Uni- versity’s vice chancellor for legal affairs and two other attor- neys from its Office of Legal Affairs to help her work on the petition. The vice chancellor tried to order a copy of the transcript from Cephus’s trial, but he was told by the court reporter that, even on an expedited basis, it would take at least several months to produce. Blank testified that it was not tenable to wait multiple months for the transcript. In her view, time was of the essence because the University was going to start soon, and if Cephus was going to be readmitted, she would make that decision within a month. She further explained that wait- ing was not a viable choice given the publicity the trial was getting and because the University had to respond in a timely manner to Title IX issues. On August 19, Blank granted Cephus’s petition. In her decision, she wrote that substantial amounts of information were not available to the University during the Title IX investigation and disciplinary proceedings, which affected the University’s prior findings. Specifically, she concluded that the evidence fell short of the preponderance of the evidence standard required to find Cephus responsible for third-degree sexual assault. Blank upheld the University’s finding of sexual harassment, however, based on Cephus’s admission in a police interview and at trial that he enlisted Davis to photograph Arana and the other complainant partially unclothed and without their consent. Blank reduced Cephus’s sanction from expulsion to a suspension effective from March 13 to the date of decision, thereby readmitting him for the fall semester. But Blank also determined that the No. 22-2454 41
no-contact order prohibiting Cephus from making any contact with Arana would remain in effect, and she warned that any additional misconduct would likely result in serious discipline. The University informed Arana of the reinstatement decision later that morning. In early September, the director of the University’s Threat Intervention Services met with Arana and her attorneys. Arana was terrified about Cephus being on campus and ex- pected the University to develop a safety plan. But although Arana and her attorneys expressed her fears about running into Cephus and other football players, they provided no in- formation about previous contact with any football players or statements by anyone on campus that could be construed as threats or harassment. Arana and her attorneys also did not indicate that Cephus had violated the no-contact order. Be- cause Arana provided no actionable information, the director concluded additional safety measures were not warranted at that time and advised Arana to call 911 if she felt threatened and to avoid Cephus if she saw him around campus. After Cephus returned to the University, he never tried to call, write, or contact Arana, and Arana never saw him on campus. No one else on campus ever said anything to Arana about what happened with Cephus. Arana continued to re- ceive support services and academic accommodations from the University. Following the fall semester, Cephus left the University to enter the NFL draft. II Title IX of the Education Amendments Act of 1972 pro- vides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the 42 No. 22-2454
benefits of, or be subjected to discrimination under any edu- cation program or activity receiving Federal financial assis- tance.” 20 U.S.C. § 1681(a). The statutory scheme gives admin- istrative agencies authority to enforce the guarantees of Ti- tle IX. Id. § 1682; see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 288 (1998). But in Cannon v. University of Chicago, 441 U.S. 677 (1979), the Supreme Court held that victims also have an implied right of action. Id. at 717. If a school engages in sex discrimination, it can be found liable for damages to the students it discriminated against. Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992). In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court clarified that student-on-student harassment can amount to school-sanctioned sex discrimination. Id. at 633. But to ensure that schools would only be held responsible for their own discriminatory practices, and not for the mis- conduct of their students, the Court placed significant re- strictions on when peer harassment could give rise to Title IX liability. Id. at 640–43 (imposing a “high standard” that creates liability only “in certain limited circumstances”). First, the school must have actual knowledge of actionable sexual har- assment in its programs or activities. Id. at 633, 650. Second, the school’s response must be clearly unreasonable in light of the circumstances, such that it amounts to deliberate indiffer- ence. Id. at 648. Third, the school’s deliberate indifference must subject its students to harassment. Id. at 644. A Schools do not have a duty to act under Davis unless they are aware of actionable sexual harassment in their programs or activities. Id. at 633. Sexual harassment is only actionable if it is “so severe, pervasive, and objectively offensive that it No. 22-2454 43
effectively bars the victim’s access to an educational opportunity or benefit.” Id. The majority says the alleged off- campus assault satisfies this standard. Ante, at 15–20. That conclusion is wrong twice over. First, unsupervised and unsponsored off-campus activity does not occur in a school’s programs or activities. Second, a single instance of sexual harassment is not sufficiently pervasive or widespread to have “the systemic effect of denying the victim equal access to an educational program or activity.” Davis, 526 U.S. at 652. 1 Start with the requirement that the harassment take place in a school’s programs or activities. Title IX only prohibits sex discrimination that occurs “under” “the operations of” a school receiving federal funds. 20 U.S.C. §§ 1681(a) & 1687. In Davis, the Court explained this means the harassment “must take place in a context subject to the school[’s] control” such that the school “exercises substantial control over both the harasser and the context in which the known harassment oc- curs.” 526 U.S. at 645. For example, the harassment in Davis took place during school hours and on school grounds— much of it in the classroom. Id. at 646. The Court recognized that the elementary school’s authority over its students in this context was “comprehensive,” “custodial and tutelary, per- mitting a degree of supervision and control that could not be exercised over free adults.” Id. (quotations omitted). Here, the alleged assault occurred in a privately owned apartment building in the middle of the night. Nothing in the record indicates the University exercised any supervision or control in this context, nor does Arana suggest she entered the apartment building to attend a University-sponsored pro- gram or activity. Instead, Arana argues that the University 44 No. 22-2454
had the authority to discipline Cephus for his off-campus mis- conduct because he was a student at the University and the school’s written policies permitted it to do so. While that may be true, it only establishes the University’s control over Ce- phus, not any control over the context in which the alleged assault occurred. Remember, Davis requires “substantial con- trol over both the harasser and the context in which the known harassment occurs.” Id. at 645 (emphases added). Absent any evidence of the latter, the alleged assault is not actionable har- assment. The Eighth Circuit reached the same conclusion in Roe v. St. Louis University, 746 F.3d 874 (8th Cir. 2014). Roe was raped during a private party in an off-campus apartment. Id. at 878– 79. She argued that “the University had disciplinary control over the rapist because he was a student and that universities may control certain off campus behavior due to the nature of the relationship between students and the institution.” Id. at 884. But the Eighth Circuit held that “a University must have had control over the situation in which the harassment or rape occurs” and “there was no evidence that the University had control over the student conduct at the off campus party.” Id.; see also Ostrander v. Duggan, 341 F.3d 745, 750–51 (8th Cir. 2003) (finding no control where the university “did not own, possess, or control” the off-campus premises where the al- leged assault occurred); accord Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 366 (6th Cir. 2012) (“When conduct occurs … off school grounds entirely, the school district has control over neither the harasser, nor the context.”) (quotation omit- ted). The majority largely avoids this issue. It says the Univer- sity waived this argument by merely alluding to it in a No. 22-2454 45
footnote in its opening brief before the district court. Ante, at 14. But the University did more than allude to this argument. It stated unequivocally that “[a]n off-campus sexual assault, without evidence of any on-campus harassment, cannot give rise to a Title IX claim,” and included case citations to support its view. Arana understood the University’s argument and addressed it in her response brief. That the district court did not consider the argument when it granted summary judg- ment is of no consequence. “We may affirm summary judg- ment on any ground supported by the record, as long as the parties adequately presented the issue before the district court and the nonmoving party had an opportunity to contest it.” King v. Hendricks Cnty. Comm’rs, 954 F.3d 981, 984 (7th Cir. 2020). The majority also says in a footnote that “the record has not been sufficiently developed to decide this fact-intensive issue.” Ante, at 14 n.5. For support, it points to evidence that the Ninth Circuit found relevant in Brown v. Arizona, 82 F.4th 863 (9th Cir. 2023), such as the fact that the school could dis- cipline its students for off-campus misconduct. Id. at 878. As an initial matter, much of the evidence the Brown court found relevant is already in the record, including the scope of the no-contact order and the University’s policies concerning off- campus misconduct. See id. at 878. But more fundamentally, both the majority and the Ninth Circuit’s decision in Brown err in conflating evidence of control over the harasser with evidence of control over the context in which the harassment occurs. The fact that a school can discipline students for off- campus misconduct bears on its control over the harasser, but it says nothing about the school’s control over particular off- campus environments. See id. at 887–89 (Rawlinson, J., dis- senting). Under the majority’s preferred approach, however, 46 No. 22-2454
a school would exercise control over every context in which two of its students interact, no matter how unrelated to its ed- ucational programs or activities, so long as its disciplinary policies gave it the authority to punish off-campus miscon- duct. That approach is incompatible with both the text of Ti- tle IX and Davis. Davis does not mandate that schools police the conduct of their students whenever and wherever it occurs. 526 U.S. at 644–45. School officials are only responsible for student mis- conduct in environments within their supervisory authority. Id. That includes settings like classrooms, school grounds, school buses, and other school-supervised or sponsored activ- ities that take place off campus. See Feminist Majority Found. v. Hurley, 911 F.3d 674, 713–14 (4th Cir. 2018) (Agee, J., con- curring in part and dissenting in part) (collecting cases). But it does not include unsupervised and unsponsored activities in a privately owned, off-campus apartment building. In that context, peer harassment neither occurs in a school’s pro- grams and activities nor is reasonably attributable to the school when it fails to act. 2 Even if we ignore the fact that the alleged assault did not occur in the University’s programs or activities, a single in- stance of peer harassment is not actionable under Davis. 526 U.S. at 652–53. Rather, the sexual harassment must be so se- vere, pervasive, and objectively offensive that it has “the sys- temic effect of denying the victim equal access to an educa- tional program or activity.” Id. at 652. While the Davis Court posited that “in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an ef- fect,” it found it “unlikely that Congress would have thought No. 22-2454 47
such behavior sufficient [given] the inevitability of student misconduct and the amount of litigation that would be in- vited by entertaining [such] claims.” Id. at 652–53. Accord- ingly, the Court decided that foreclosing liability for “claims of official indifference to a single instance of one-on-one peer harassment” would best “reconcile the general principle that Title IX prohibits official indifference to known peer sexual harassment with the practical realities of responding to stu- dent behavior, realities that Congress could not have meant to be ignored.” Id.; see also Gebser, 524 U.S. at 285 (explaining that the Court’s task is to infer how Congress would have ad- dressed the issue). The majority acknowledges this passage in Davis yet none- theless holds that the University can be held liable for a single instance of egregious harassment. Ante, at 15–19. To the ma- jority, the Court’s reasoning was merely dicta that we can dis- regard. Id. at 16. That is a remarkable proposition. Davis set out a comprehensive framework to limit the new cause of ac- tion the Court was creating. The Court’s discussion of con- duct that does not suffice to create liability is integral to un- derstanding how this framework should be applied. We are not entitled to ignore the Court’s determination of what Con- gress would have intended and decide for ourselves what the “appropriate balance” is between preventing harassment and subjecting schools to liability. Id. at 17. While the First and Fourth Circuits have similarly held that a single instance of peer harassment can be actionable, the persuasive force of their reasoning is limited by the fact that neither court mean- ingfully grapples with the relevant passage in Davis. The Fourth Circuit did not mention it in Doe v. Fairfax County School Board, 1 F.4th 257 (4th Cir. 2021). Id. at 273–74. And the First Circuit relegated it to a footnote in Fitzgerald v. Barnstable 48 No. 22-2454
School Committee, 504 F.3d 165 (1st Cir. 2007). Id. at 173 n.3. And neither decision suggests, as the majority now does, that the Court’s discussion was simply dicta. The majority says the Eleventh Circuit has taken a similar view. Ante, at 16–17 & n.6. But the two cases it cites both in- volved more than one instance of harassment, “markedly” distinguishing them from the “theoretical single incident mentioned in Davis.” Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1298 (11th Cir. 2007); Hill v. Cundiff, 797 F.3d 948, 973 (11th Cir. 2015) (quotation omitted). In fact, the Eleventh Circuit expressly stated in both cases that more than one instance of harassment is required to make out a Davis claim. See Williams, 477 F.3d at 1297 (“[G]ender discrimina- tion must be more widespread than a single instance of one- on-one peer harassment ….”) (quotation omitted); Hill, 797 F.3d at 972 (“To be severe, pervasive, and objectively offen- sive, the behavior must be serious enough to have a ‘systemic effect’ of denying equal access to an education. A ‘single in- stance of sufficiently severe one-on-one peer harassment’ can- not have such a systemic effect in light of ‘the amount of liti- gation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harass- ment.’”) (quoting Davis, 526 U.S. at 652–53). In a footnote, the majority says the Fourth and Fifth Circuits read Williams to permit Title IX claims based only on a single instance of pre- notice harassment. Ante, at 17 n.6. But those circuits were re- ferring to another passage in Williams that concerns a separate element of Davis claims: whether there needs to be additional instances of post-notice harassment. Roe v. Cypress-Fairbanks Indep. Sch. Dist., 53 F.4th 334, 343 (5th Cir. 2022) (citing Wil- liams, 477 F.3d at 1295–97); Fairfax Cnty. Sch. Bd., 1 F.4th at 273 (citing Williams, 477 F.3d at 1295–97). That is a different issue No. 22-2454 49
altogether from the threshold question of whether a single in- stance of pre-notice harassment is actionable under Title IX. The weight of authority confirms that the passage in Davis means what it says: a single instance of peer harassment is not enough to establish liability. See Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 620–21 (6th Cir. 2019); K.T. v. Culver- Stockton Coll., 865 F.3d 1054, 1059 (8th Cir. 2017); Williams, 477 F.3d at 1297–98; see also Davis, 526 U.S. at 677 (Kennedy, J., dissenting) (observing that the majority’s systemic intent re- quirement “exclude[s] the possibility that a single act of har- assment perpetrated by one student on one other student can form the basis for an actionable claim”). In Section V of its opinion, the majority goes on to explain how Arana’s alleged sexual assault had a systemic, concrete, and negative effect on her education. Ante, at 20–24. Because Davis categorically precludes finding that a single instance of harassment can have such an effect, I do not address this por- tion of the majority’s opinion, except to say I disagree that the facts in the record are sufficient to show the alleged assault “so undermine[d] and detract[ed] from [Arana’s] educational experience, that [she was] effectively denied equal access to [the University’s] resources and opportunities.” Davis, 526 U.S. at 651. B Apart from the lack of actionable harassment, the Univer- sity also isn’t liable under Davis because its response to the alleged assault did not amount to deliberate indifference. De- liberate indifference means the school’s response is “so unrea- sonable, under all the circumstances, as to constitute an offi- cial decision to permit discrimination.” C.S. v. Madison Metro. 50 No. 22-2454
Sch. Dist., 34 F.4th 536, 543 (7th Cir. 2022) (en banc) (quotation omitted); accord Davis, 526 U.S. at 648. This standard is inten- tionally high “to eliminate any risk” that a school will be held liable for the acts of others rather than its own decision to per- mit sex discrimination. Id. at 643 (quotation omitted). All it requires is that a school “respond to known peer harassment in a manner that is not clearly unreasonable.” Id. at 649. “This is not a mere reasonableness standard,” and courts are fully capable of deciding the question as a matter of law in appro- priate cases. Id. (quotation omitted). Our case law applying this standard has emphasized that Title IX neither grants plaintiffs the right “to make particular remedial demands,” id. at 648, nor “force[s] funding recipi- ents to suspend or expel every student accused of miscon- duct,” Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 825 (7th Cir. 2003). A school’s “response does not have to be perfect or even successful” to meet this stand- ard. C.S., 34 F.4th at 543. Instead, schools “‘continue to enjoy the flexibility they require’ in disciplinary decisions unless their response to harassment is ‘clearly unreasonable.’” Doe v. Galster, 768 F.3d 611, 619 (7th Cir. 2014) (quoting Davis, 526 U.S. at 648–49). “And we will not second guess a school’s dis- ciplinary decisions—even a school’s decision not to impose any disciplinary measures—so long as those decisions are not clearly unreasonable. Indeed, judges make poor vice princi- pals.” Johnson v. Ne. Sch. Corp., 972 F.3d 905, 912 (7th Cir. 2020) (cleaned up). The majority and I agree that the University’s response be- fore the readmission decision satisfies this standard, and that the University had the ability to revisit and reverse its prior disciplinary decision even if it ultimately reached the wrong No. 22-2454 51
conclusion. Ante, at 24–25, 28. We also agree that the Univer- sity did not need to maintain Cephus’s expulsion from cam- pus in lieu of continuing to enforce its no-contact order, which remained in place after Cephus was readmitted. Id. at 29. Nev- ertheless, the majority says a reasonable jury could find that the University was deliberately indifferent because there is evidence that it (1) acted in bad faith when it decided to read- mit Cephus, and (2) did not intend to enforce the no-contact order. That conclusion ignores the limits of our review under Title IX and is unsupported by the record. 1 The majority believes a reasonable jury could find that the University readmitted Cephus in bad faith. It says the timing of Cephus’s readmission was suspicious, there was intense pressure on Blank to readmit Cephus, and the new evidence included in Cephus’s petition did little to undermine the Uni- versity’s prior findings. So it concludes that a reasonable jury could find Blank’s reliance on this additional evidence was pretextual. The implication is that there is evidence Blank let Cephus back on campus to appease donors, the football pro- gram, and its fans. But the majority’s chain of inferences is not supported by the evidence and ignores the limits of our re- view under Title IX. Consider the majority’s suspicions about the timing of the University’s decision. The majority says that “the decision to readmit Cephus concluded within weeks, just in time for the start of the football season,” which “looks suspicious.” Ante, at 26. But the majority’s suspicion about timing is not evi- dence of anything. And oddly missing from its discussion is Blank’s sworn testimony about her legitimate motivations for proceeding swiftly, including her concern that the fall 52 No. 22-2454
semester was going to start very soon, and that the University needed to make a decision within a month to ensure that Ce- phus, if readmitted, would be able to start school on time. Nothing in the record suggests that Blank was lying or that she made her decision “simply to avoid angering key boosters and interest groups.” Id. at 26. “Personal knowledge can in- clude reasonable inferences, but it does not include speculat- ing as to [a school’s] state of mind, or other intuitions, hunches, or rumors.” Widmar v. Sun Chem. Corp., 772 F.3d 457, 460 (7th Cir. 2014). Next, the majority reasons that because the new evidence Blank considered “does not undermine” the University’s original findings “as much as the University suggests,” a jury could find the readmission decision was based on pretext. Ante, at 26. The majority is effectively saying that because the University did not make the “right” decision, there is a genu- ine dispute as to whether it made its decision in good faith. That is hard to square with the majority’s own acknowledge- ment that “a school [cannot] be held liable under Title IX simply because an official draws the wrong conclusion from a good-faith evaluation of the evidence.” Id. at 28. If the pri- mary evidence of pretext here is the fact that a reasonable jury could disagree with the conclusions the University drew from the evidence, the line between honest mistake and bad faith collapses. Such a close examination of the record also ignores the limits of our review under Title IX. Remember, “we will not second guess a school’s disciplinary decisions—even a school’s decision not to impose any disciplinary measures— so long as those decisions are not clearly unreasonable.” John- son, 972 F.3d at 912. The majority’s interrogation of the No. 22-2454 53
University’s readmission decision ignores this cautionary lan- guage, chiding Blank for relying on evidence that was “not as probative” and because additional context made certain evi- dence “less convincing.” Ante, at 28. In doing so, the majority applies something more akin to the “mere reasonableness standard” the Court expressly rejected in Davis. 526 U.S. at 649 (quotation omitted). 2 Even if the University’s readmission decision was made in bad faith, no reasonable jury could find that its overall re- sponse was so clearly unreasonable that it amounted to delib- erate indifference. The University’s investigation, discipli- nary proceedings, support for Arana, and no-contact order ef- fectively separated Arana and Cephus the entire time they overlapped on campus. The University issued a no-contact or- der to Cephus as soon as Arana requested one, less than a week after learning of her allegations. And the single time the University learned that Cephus might have violated his no- contact order at the January 2019 disciplinary proceeding, it immediately stepped in and warned him not to do so again. After his readmission, the no-contact order remained in effect, Cephus never tried to contact Arana, and Arana never saw him on campus again. The majority agrees that the University did not need to maintain Cephus’s expulsion in lieu of enforcing the no- contact order. Ante, at 29. And for good reason. We have regularly found that schools are not deliberately indifferent when they’ve taken similar steps to minimize contact between a victim and her assailant. See, e.g., Johnson, 972 F.3d at 909– 15; C.S., 34 F.4th at 545–48; cf. Lapka v. Chertoff, 517 F.3d 974, 983–85 (7th Cir. 2008) (reaching a similar conclusion in the 54 No. 22-2454
Title VII context). Instead, the majority says there is “evidence that suggests the University had no interest in enforcing the [no-contact] order after Cephus’s readmission.” Ante, at 30. Specifically, it references Arana’s meeting in September 2019 with the director of the University’s Threat Intervention Services, where, Arana says, the director advised her to call 911 if she felt threatened and to avoid Cephus if she saw him around campus. These statements do not reasonably suggest that the Uni- versity did not intend to enforce the no-contact order after Ce- phus’s readmission. Suggesting Arana call 911 if she felt threatened and avoid Cephus if she saw him (i.e., common- sense advice) does not indicate the University would have al- lowed Cephus to violate his no-contact order without conse- quence. Holding otherwise, as the majority does here, would permit a plaintiff to defeat summary judgment any time she harbors a subjective suspicion that her school will not enforce its disciplinary decisions. At summary judgment, we don’t credit speculative theories lacking evidentiary foundation. Widmar, 772 F.3d at 460. Significantly, neither Arana nor her attorneys provided any information, in the September meeting or afterward, about any violation of the no-contact order. “The standard set out in Davis is not satisfied by knowledge that something might be happening …. School administrators have actual knowledge only of the incidents that they witness or that have been reported to them.” Galster, 768 F.3d at 617–18. The only time Arana reported an alleged violation of the no-contact or- der was before Cephus’s expulsion, and the University acted swiftly in response. The director’s advice does not create a genuine dispute of material fact when it is undisputed that No. 22-2454 55
the University kept a no-contact order in place and never learned of any violation or further harassment by Cephus. We reached a similar conclusion in C.S. There, a middle school principal became aware that an employee had an inap- propriate grooming relationship with the student-plaintiff. 34 F.4th at 546. Near the end of the student’s seventh grade year, the principal told the employee to “limit the hugs and physi- cal contact with [the student], avoid interacting with her in private settings, and set strong boundaries in his relationship with her.” Id. at 546 (cleaned up). Unbeknownst to the princi- pal, the employee repeatedly and horrifically sexually abused the student during her eighth grade year. Id. We held that the principal’s response to known discrimination “was not so un- reasonable as to amount to deliberate indifference to discrim- ination.” Id. at 547 (quotation omitted). The principal’s discus- sion with the employee satisfied the district’s obligations un- der Title IX, we said, because the record showed the principal “reasonably believed she had succeeded in minimizing his physical contact with [the student], since she received no fur- ther reports raising new concerns.” Id. And because the prin- cipal had learned of nothing further that would indicate the employee was not going to heed the principal’s earlier warn- ing, there was no “obligation for [the principal] to take further action.” Id. at 547–48. Like the principal in C.S., the University had no obligation to take additional action when it never learned of any further interaction between Arana and Cephus. C Finally, even if a school is deliberately indifferent to ac- tionable harassment in its programs and activities, it still isn’t 56 No. 22-2454
liable under Davis “unless its deliberate indifference subjects its students to harassment.” 526 U.S. at 644 (cleaned up); see also id. at 640–41 (“The [University] itself must … subject per- sons to discrimination under its programs or activities in or- der to be liable under Title IX.”) (cleaned up). That means Arana must have experienced further harassment after her fa- ther notified the University about the alleged sexual assault. Kollaritsch, 944 F.3d at 622. The majority holds otherwise, concluding that the Univer- sity’s response only needed to put Arana at risk of further har- assment, even if none occurred. Ante, at 18–19. It relies on a statement in Davis which says that a school’s “deliberate in- difference must, at minimum, cause students to undergo har- assment or make them liable or vulnerable to it.” 526 U.S. at 645 (cleaned up). In the majority’s view, the use of the disjunc- tive “or” means students do not have to undergo further har- assment to make out a claim so long as they are made liable or vulnerable to it. When read in isolation, the majority’s in- terpretation of the clause “or make them liable or vulnerable to it” is plausible. But “the language of an opinion is not al- ways to be parsed as though we were dealing with language of a statute.” Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979). Instead, the Court’s opinion “must be read with a careful eye to context.” Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 374 (2023). With context, it is clear the Court was simply elaborating on what it means to “subject” students to harassment. See Da- vis, 526 U.S. at 645 (citing to dictionaries defining the term “subject”). And this requirement—that plaintiffs must be sub- jected to harassment—presumes that further harassment has actually occurred. See Kollaritsch, 944 F.3d at 628–29 (Thapar, No. 22-2454 57
J., concurring) (“To be ‘subjected’ to a harm, as a matter of ordinary English, requires that you experience that harm.”). The sentence the majority relies on merely provides two ways a school’s inadequate response can subject its students to fur- ther harassment. Its response “might (1) be a detrimental ac- tion, thus fomenting or instigating further harassment, or it might (2) be an insufficient action (or no action at all), thus making the victim vulnerable to, meaning unprotected from, further harassment.” Id. at 623 (majority opinion). But either way, there still must be further harassment. Id. at 622–23. In other words: The Davis Court described wrongful conduct of both commission (directly causing further har- assment) and omission (creating vulnerability that leads to further harassment). The definition presumes that post-notice harassment has taken place; vulnerability is simply an alternative pathway to liability for harassment, not a free- standing alternative ground for liability. [T]he vulnerability component of the … definition was not an attempt at creating broad liability for damages for the possibility of harassment, but ra- ther an effort to ensure that a student who expe- riences post-notice harassment may obtain damages regardless of whether the harassment resulted from the institution placing the student in a position to experience that harassment or leaving the student vulnerable to it. Zachary Cormier, Is Vulnerability Enough? Analyzing the Juris- dictional Divide on the Requirement for Post-Notice Harassment in Title IX Litigation, 29 Yale J.L. & Feminism 1, 23–24 (2017). 58 No. 22-2454
The Court in Davis went to great lengths to emphasize the “very real limitations” it put in place to narrowly circum- scribe the scope of Title IX liability for peer harassment. Davis, 526 U.S. at 652. And it warned against mischaracterizing its decision in ways that would “impose more sweeping liabil- ity.” Id. Yet that is exactly what the majority does. Its strained interpretation—that a student need only be left vulnerable to the possibility of further harassment—provides no limit at all. When a school is deliberately indifferent to severe, pervasive, and objectively offensive harassment in its programs and ac- tivities, students are always left vulnerable to further harass- ment. If that was all the Court intended, it would not have imposed the additional requirement that the school’s deliber- ate indifference must also subject students to harassment. The majority has thus effectively erased one of Davis’s “very real limitations” on liability. Id. The majority’s decision cannot be reconciled with the cau- tious approach the Court took in Davis. That caution reflects, in part, a concern regarding adequate notice. See id. at 640–41, 644–45. Schools are only liable under Title IX as a condition of receiving federal funds, “much in the nature of a contract.” Id. at 639–40 (quotation omitted). Title IX liability therefore rests on whether a school “voluntarily and knowingly accepts the terms of the ‘contract,’” which it cannot do if it is “unable to ascertain what is expected of it.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). To ensure that schools can “exercise their choice knowingly, cognizant of the conse- quences of their participation,” the scope of their potential li- ability under Title IX must be “unambiguous[].” Id. If nothing else, no one could say the sweeping liability the majority per- mits today arises unambiguously from the text of Title IX or Davis. No. 22-2454 59
III The facts in the record are insufficient to establish any of the three elements necessary to make out a claim under Davis. A single instance of off-campus sexual assault does not con- stitute actionable harassment. Regardless, the University comprehensively and immediately responded to it anyway. When the University learned of new evidence that under- mined its findings after Cephus’s acquittal, it reduced his punishment from expulsion to suspension. Although it va- cated its earlier sexual assault finding, the University still re- quired Cephus to avoid all contact with Arana. And after he returned to campus, Arana never saw him again. No reason- able juror could find the University’s response deliberately in- different. Even if one could, the University still isn’t liable in the absence of further acts of harassment. In holding other- wise, the majority establishes a new Title IX standard that is irreconcilable with Davis and practically limitless in scope. I respectfully dissent and encourage the full court to act swiftly to bring our circuit back into alignment with Davis.
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