               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 16-3617
                      ___________________________

                                       K.T.

                     lllllllllllllllllllll Plaintiff - Appellant

                                         v.

Culver-Stockton College; A.B.; Lambda Chi Alpha Fraternity; Lambda Chi Alpha
                                Fraternity Inc.

                   lllllllllllllllllllll Defendants - Appellees

                                 ____________

    Women’s and Children’s Advocacy Project at New England Law Boston

                            llllllll Amicus Curiae
                                 ____________

                  Appeal from United States District Court
                for the Eastern District of Missouri - St. Louis
                                ____________

                           Submitted: April 5, 2017
                            Filed: August 1, 2017
                               ____________

Before SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.
                             ____________

SHEPHERD, Circuit Judge.
      K.T. brought a Title IX student-on-student harassment claim against Culver-
Stockton College after she was allegedly sexually assaulted by a Culver-Stockton
student on campus. The district court1 dismissed her complaint for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). We affirm.

                                          I.

       Sixteen-year-old K.T., a junior in high school, was invited by Culver-Stockton
College to visit campus as a potential recruit to the women’s soccer team. While
there, K.T. went to a party at an on-campus fraternity house, where she says she was
served alcohol before being physically and sexually assaulted by a fraternity member.
The alleged assailant was a student of Culver-Stockton College. According to K.T.,
the incident was reported to College authorities the same weekend of the party, but
the College did nothing other than cancel a scheduled conference with K.T. and her
parents.

       K.T. sued the College in federal court seeking money damages under Title IX
of the Education Amendments of 1972.2 The claim was couched in terms of student-
on-student harassment (or peer harassment), a theory first articulated by the United
States Supreme Court in Davis ex rel. LaShonda D. v. Monroe County Board of
Education, 526 U.S. 629 (1999). Davis held that a federally funded institution may
be liable for damages in a private Title IX action if its deliberate indifference to
known acts of peer harassment denied the victim access to educational opportunities
provided by the institution. Id. at 650. K.T.’s complaint stated that the College acted
with deliberate indifference toward sexual harassment on its campus by failing to (1)

      1
       The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
      2
       Though Culver-Stockton College is a private Christian school, it receives
federal financial assistance and is therefore subject to Title IX’s prohibition against
sex-based discrimination. 20 U.S.C. § 1681(a).

                                         -2-
take reasonable preventative measures such as supervising K.T. during her visit, and
(2) investigate and provide treatment for K.T. once the College received reports of
the alleged incident.

       The College moved to dismiss the Title IX claim under Federal Rule of Civil
Procedure 12(b)(6), arguing that K.T. failed to state a claim because she was not a
Culver-Stockton student when the alleged assault occurred. The College averred that
the student-on-student harassment doctrine, as its name suggests, applies only in
cases where a student sues her own school over harassment by a fellow student. In
support, the College quoted language from Davis that a funding recipient is not liable
under Title IX “unless its deliberate indifference subject[s] its students to
harassment.” Id. at 644-45 (alteration in original) (emphasis added) (internal
quotation marks omitted). The College further asserted that no federal court has
extended Davis’s holding to claims by non-students.

        The district court agreed with Culver-Stockton. In an order dismissing the
Title IX claim, the court first concluded that as a non-student K.T. could not bring a
Title IX claim against the College. Even if K.T. could bring such a claim, the district
court continued, she failed to plausibly allege that (1) an appropriate person at the
College had actual knowledge of previous incidents of similar harassment so as to
alert it to a substantial risk of further abuse, and (2) the College’s response to K.T.’s
allegations was deliberately indifferent and caused her to undergo harassment, made
her vulnerable to it, or subjected her to further discrimination. The court determined
that K.T. therefore failed to state a plausible claim under Title IX.3



      3
        In the district court, K.T. also brought an assault claim against the alleged
assailant, as well as assault and negligent supervision claims against the local
fraternity chapter and the fraternity’s national organization. After dismissing the Title
IX claim against the College, the district court declined to exercise supplemental
jurisdiction over the remaining state law claims.

                                          -3-
                                            II.

       The parties dispute whether K.T.’s status as a non-student precludes her from
asserting a Title IX harassment claim. Assuming arguendo that it does not, we find
no merit in K.T.’s appeal because her complaint failed to state a plausible claim to
survive dismissal under Rule 12(b)(6). Accordingly, we affirm.

                                A. Standard of Review

       We review the district court’s grant of a Rule 12(b)(6) motion to dismiss de
novo. Cox v. Mortg. Elec. Registration Sys., Inc., 685 F.3d 663, 668 (8th Cir. 2012).
To prevail, K.T. must allege more than “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The complaint must allege sufficient facts that, taken as true,
“‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when its factual
content “allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “We make this determination by considering only
the materials that are necessarily embraced by the pleadings and exhibits attached to
the complaint.” Cox, 685 F.3d at 668 (internal quotation marks omitted).

                     B. Title IX Student-on-Student Harassment

       Title IX provides that “[n]o person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). Where, as here, the plaintiff’s Title IX claim is
based on harassment, the school is liable in damages only where it is “(1) deliberately
indifferent (2) to known acts of discrimination (3) which occur under its control.”
Ostrander v. Duggan, 341 F.3d 745, 750 (8th Cir. 2003) (internal quotation marks


                                           -4-
omitted). Additionally, the discrimination must be “so severe, pervasive, and
objectively offensive that it can be said to deprive the victim[] of access to the
educational opportunities or benefits provided by the school.” Davis, 526 U.S. at
650.

                              i. Deliberate Indifference

       K.T. failed to plausibly allege that Culver-Stockton acted with deliberate
indifference. A funding recipient “may not be liable for damages unless its 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.” Davis, 526 U.S. at 644-45 (alterations in original) (emphasis added)
(internal quotation marks omitted); see also Shrum ex rel. Kelly v. Kluck, 249 F.3d
773, 782 (8th Cir. 2001) (“[D]eliberate indifference must either directly cause the
abuse to occur or make students vulnerable to such abuse.”).

       In her complaint, K.T. alleged that Culver-Stockton was deliberately indifferent
by failing to adopt practices to prevent sexual assault and also failing to investigate
and offer medical services to K.T. after it received reports of the alleged incident.
But the complaint identified no causal nexus between Culver-Stockton’s inaction and
K.T.’s experiencing sexual harassment. Rather, the complaint alleged that “as a direct
and proximate result of . . . [Culver-Stockton’s] failure to investigate and provide
guidance, counseling and treatment, . . . Plaintiff sustained substantial mental and
emotional distress and . . . [s]he currently suffers from post-trauma syndrome and
psychiatric overlay.” At most, these allegations link the College’s inaction with
emotional trauma K.T. claims she experienced following the assault. The complaint
does not, however, allege that Culver-Stockton’s purported indifference “subject[ed]
[K.T.] to harassment.” See Davis, 526 U.S. at 644. Thus, while K.T. was dissatisfied
with Culver-Stockton’s response, based on the allegations in the complaint the
response cannot be characterized as deliberate indifference that caused the assault.

                                          -5-
See, e.g., Shrum, 249 F.3d at 782. We therefore agree with the district court that K.T.
failed to adequately plead deliberate indifference.

                                ii. Actual Knowledge

       We also agree with the district court that K.T. did not plausibly plead that
Culver-Stockton had actual knowledge of discrimination. Citing Williams v. Board
of Regents of the University System of Georgia, 441 F.3d 1287, 1298 (11th Cir.
2006), vacated, 477 F.3d 1282 (11th Cir. 2007), K.T. argues that a plaintiff satisfies
the actual knowledge element simply by notifying the school that she was subjected
to a sexual assault. Because K.T.’s complaint stated that her assault allegations were
reported to Culver-Stockton one to two days after the fraternity party, K.T. argues that
she sufficiently pled actual knowledge.

       Contrary to K.T.’s contention, the actual knowledge element requires schools
to have more than after-the-fact notice of a single instance in which the plaintiff
experienced sexual assault. See, e.g., Plamp v. Mitchell Sch. Dist. No. 17-2, 565 F.3d
450, 454, 457 (8th Cir. 2009) (no actual knowledge of discrimination where a high
school student’s parents “immediately reported” a teacher’s sexual harassment of the
student). Rather, a plaintiff must allege that the funding recipient had prior notice of
a substantial risk of peer harassment “in the recipient’s programs,” see Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998), based on evidence such as
previous similar incidents of assault. In Ostrander, for instance, this court intimated
that actual knowledge may be established where the recipient has prior knowledge of
(1) harassment previously committed by the same perpetrator and/or (2) previous
reports of sexual harassment occurring on the same premises. 341 F.3d at 751.
Similarly, in Thomas v. Board of Trustees of the Nebraska State Colleges, this court
stated that a plaintiff must show that the school “had actual knowledge that [the
assailant] posed a substantial risk of sufficiently severe harm to students based on [the
assailant’s] previous known conduct.” 667 F. App’x 560, 562 (8th Cir. 2016) (per

                                          -6-
curiam) (emphasis added). Even in Williams—which K.T. misreads as favoring her
case—the Eleventh Circuit on sua sponte rehearing found that school officials had
actual knowledge of discrimination in part because they recruited the student-
assailant despite having “preexisting knowledge” of the student’s previous sexual
misconduct. 477 F.3d at 1293-94.

       K.T.’s complaint lacks any assertion that Culver-Stockton knew—prior to the
alleged assault on K.T.—that individuals in the College’s soccer recruiting program
faced a risk of sexual harassment. As the district court acknowledged, K.T. “makes
no factual allegations that the College was aware of invited high-school aged recruits,
visitors or College students being assaulted in similar circumstances, or that the
College was aware of any prior allegations of sexual assault by [the same alleged
perpetrator].” We therefore agree with the district court that K.T. failed to plausibly
allege that Culver-Stockton had actual knowledge of discrimination within the
meaning of a Title IX peer harassment claim.

         iii. Severe, Pervasive, and Objectively Offensive Discrimination

        By the language of Title IX itself, liability lies only where the plaintiff is
“subjected to discrimination under any education program or activity receiving
Federal financial assistance.” 20 U.S.C. § 1681(a) (emphasis added). The Supreme
Court in Davis interpreted this provision to “suggest[] that the behavior be serious
enough to have the systemic effect of denying the victim equal access to an
educational program or activity.” 526 U.S. at 652. “[I]n theory,” the Court
explained, “a single instance of sufficiently severe one-on-one peer harassment could
be said to have such an effect, [but] we think it unlikely that Congress would have
thought such behavior sufficient to rise to this level 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.” Id. at 652-53; see also Williams, 477
F.3d at 1297 (“[D]iscrimination must be more widespread than a single instance of

                                         -7-
one-on-one peer harassment.” (internal quotation marks omitted)). Rather, the
discrimination must be “severe, pervasive, and objectively offensive.” Davis, 526
U.S. at 651.

       K.T.’s complaint is limited to an allegation of a single sexual assault. Although
we are sympathetic to K.T.’s circumstances and agree that she has alleged
opprobrious misconduct on the part of the fraternity member, K.T.’s singular
grievance on its own does not plausibly allege pervasive discrimination as required
to state a peer harassment claim. See id. Accordingly, K.T.’s complaint lacks factual
content allowing us to conclude that either the alleged misconduct or Culver-
Stockton’s response to K.T.’s allegations had the required “systemic effect” such that
K.T. was denied equal access to educational opportunities provided by Culver-
Stockton. See id. at 652. The complaint therefore failed to state a claim of peer
harassment under Title IX.4
                                           III.

      For these reasons, we affirm the order of the district court granting Culver-
Stockton’s motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).
                      ______________________________




      4
        Because K.T. failed to adequately plead the elements of deliberate
indifference, actual knowledge, and pervasive discrimination depriving her equal
access to an educational program, we need not determine whether she sufficiently
alleged the element of Culver-Stockton’s “substantial control over both the harasser
and the context in which the known harassment occurs.” See Ostrander, 341 F.3d at
750.

                                          -8-
