IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA JANE DOE,
Plaintiff, vs. BOARD OF TRUSTEES OF THE NEBRASKA STATE COLLEGES, a Political Subdivision of the State of Nebraska,
Defendant.
8:17CV265
MEMORANDUM AND ORDER
This matter is before the Court on the defendant Board of Trustees of Chadron State College motion to certify an interlocutory appeal under 28 U.S.C. § 1292(b), Filing No. 207. This is an action for hostile environment gender discrimination under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"). The matter is set for trial on September 27, 2021. Defendant Chadron State argues, as it did in an earlier motion to reconsider the by the recent Eight Circuit Court of Appeals decision in Shank v. Carleton College, 993
F.3d 567 (8th Cir. 2021). The College contends Shank requires a Title IX plaintiff to show that she suffered a discrete instance of sexual harassment causally connected to a ce and plaintiff Jane Doe never suffered any sexual harassment after she reported a fellow student sexual assault
against her. In order on the motion to reconsider, the Court rejected that premise, finding the Shank 8:17-cv-00265-JFB-CRZ Doc # 210 Filed: 07/26/21 Page 1 of 6 - Page ID # 4378 summary judgment deci Filing No. 202, Memorandum and Order at 11-12. Further, this Court stated, Shank does not adopt or state any new proposition of law, it merely restates the position the Eighth Circuit adopted in Culver-Stockton on the necessity of a t harassment or assault. Id. at 8. The College now argues that the questions of whether
Shank requires a post-report assault and when the college had notice under Title IX qualify for interlocutory review under 28 U.S.C. § 1292(b). Under 28 U.S.C. § 1292(b):
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order. Id. That statute (1) the order must involve a controlling question of law; (2) there must be a substantial ground for a difference of opinion; and (3) the certification must materially advance the ultimate termination of the White v. Nix, 43 F.3d 374, 377 (8th Cir. 1994) (quoting Paschall v. Kan. City Star Co., 605 F.2d 403, 406 (8th Cir. 1979). The party requesting certification bears the heavy burden of demonstrating that the case is an exceptional one in which immediate appeal is warranted. Id. at 376 should onal burdens that such appeals place on both the courts and the litigants. Union Cty. v. Piper Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008) (quoting White, 43 F.3d at 376). 8:17-cv-00265-JFB-CRZ Doc # 210 Filed: 07/26/21 Page 2 of 6 - Page ID # 4379
contends that if Shank applies It points to an ostensible circuit split on the question of whether Title IX requires post-report sexual harassment. Compare K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1058 (8th Cir. 2017) ( knowledge element requires schools to have more than after-the-fact notice of a single
; Shank, 993 F.3d at 573 ; I. L. v. Houston
Indep. Sch. Dist. 776 Fed. Appx. 839, 840 (5 th
Cir. 2019) (finding as a matter of law that performing an immediate internal investigation, turning over a potential criminal investigation to the police, placing a strict no-contact order on the offending student (that was largely successful in preventing contact with the victim and preventing further sexual harassment) after report of an unwanted sexual contact did not amount to deliberate indifference) (unpublished opinion); Kollaritsch v. Mich. State Univ. Bd. of Trustees, 944 F.3d 613, 621 (6th Cir. 2019) cert. denied, 141 S. Ct. 554 (2020) ( at least one more (further) incident of harassment, after the school has actual knowledge and Hill v. Cundiff, 797 F.3d 948, 972 (11th Cir. 2015) (stating single instance of sufficiently severe one-on-one peer harassment
cannot have such a systemic effect in light of the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment. (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 652-53 (1999)); 8:17-cv-00265-JFB-CRZ Doc # 210 Filed: 07/26/21 Page 3 of 6 - Page ID # 4380
with Doe v. Fairfax Cty. Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021) may be held liable under Title IX if its response to a single incident of severe sexual
harassment, or the lack thereof, was clearly unreasonable and thereby made the plaintiff more vulnerable to future harassment or further contributed to the deprivation of the Farmer v. Kan. State Univ., 918 F.3d 1094, 1103-04 (10th Cir. 2019) (stating that once a college has actual knowledge of sexual harassment that is severe, pervasive and objectively offensive enough to deprive a student of access to the educational benefits and resources the college offers, it cannot, acting with deliberate indifference, turn a blind eye to that harassment it is sufficient for the deliberate indifference to make the plaintiff vulnerable to further harassment or assault); Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 173 (1st Cir. 2007), rev'd on other grounds, 555 U.S. 246 (2009) (finding actionable conduct if the deliberate indifference made the plaintiff vulnerable to further harassment or assault); Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1297 (11th Cir. 2007) (same); S.S. v. Alexander, 177 P.3d 724, 740 (Wash. Ct. App. 2008) lack of appropriate discipline of rapist, minimizing the effects of her rape, treating the victim equally with the rapist in the mediation process, allowing her rapist's denial of wrongdoing to be accepted at face value at the mediation, keeping the matter out of the public eye to avoid negative publicity, offering only a repeated mediation as an alternative remedial measure, discouraging [the plaintiff] from filing a police report, top administrators not notifying the own police force of the report of a violent sex crime, repeatedly suggesting that [the plaintiff] leave her job with the football program while her rapist would remain, wearing [the plaintiff] down until she believed that further complaints would be 8:17-cv-00265-JFB-CRZ Doc # 210 Filed: 07/26/21 Page 4 of 6 - Page ID # 4381
futile, a decision not to investigate or cause to be investigated her rape report, and in the absence of a proper investigation questioning her truthfulness when she
expressed dissatisfaction with the results of the mediation an indication of deliberate indifference; though the college was not liable for the sexual assault itself because it was did not receive notice of the assault until after it took place, it was liable for the post-assault situation). The defendant argues an interlocutory appeal will materially advance the ultimate termination of the litigation in that it will render a trial unnecessary. The plaintiff opposes the motion. interlocutory appeal should be denied. The Court does not afford such an expansive
reading to Shank. See Filing No. 202, Memorandum and Order at 6-8. For the reasons stated in its earlier opinion, the Court finds the Shank case is inapposite. Id. at 9. This is not an action that involves a lack of actual knowledge, a single incident, or emotional trauma alone. See id. at 2-3. This case involves the factual determination of whether the to an assault caused a deprivation of educational benefits and opportunities. Id. at 3. The Court stands by its earlier opinions and finds that this action should proceed to trial. See Filing No. 202, Memorandum and Order at 7-13; Filing No. 135, Memorandum and Order at 9-11.
The Court earlier orders do not involve a controlling question of law as to which there is substantial ground for difference of opinion. See Filing No. 202, Memorandum and Order at 7 ( he Shank decision relies on and cites the standards announced in Davis, 526 U.S. at 648, and Culver-Stockton, 865 F.3d at 1058-59, both of which were considered by this Court and cited in its summary judgment opinion. . The 8:17-cv-00265-JFB-CRZ Doc # 210 Filed: 07/26/21 Page 5 of 6 - Page ID # 4382
standard in the Eighth Circuit is that college deliberate indifference subject[s] its students to harassment. That is, the deliberate
indifference must, at a minimum, cause [students] to undergo harassment or make them liable or vulnerable to it. Culver-Stockton, 865 F.3d 1057 (quoting Davis, 526 U.S. at 644-45). Further, an interlocutory appeal would not advance the ultimate resolution of the plaintif claim but would further delay it. Factual disputes remain to be determined. This action has been pending for over four years, discovery is complete, and the matter is set for trial in the near future. Generally, court of appeals have jurisdiction over appeals from final decisions of the district courts. 28 U.S.C. § 1291. An appeal after a resolution on the merits and a final judgment is a better way to proceed and serves the purpose of preventing piecemeal appeals, promoting efficient judicial administration, and otherwise and avoiding the obstruction of just claims. See 2 Fed. Proc., L. Ed. § 3:132; Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1712 (2017) (quoting McLish v. Roff, 141 U.S. 661, 665 666 (1891)). The Court does not want to
further delay the trial of this case and has no desire to disturb the rule of finality in this case. Accordingly, IT IS ORDERED (Filing No. 207) is denied.
Dated this 26th day of July 2021.
BY THE COURT: s/ Joseph F. Bataillon Senior United States District Judge 8:17-cv-00265-JFB-CRZ Doc # 210 Filed: 07/26/21 Page 6 of 6 - Page ID # 4383