          United States Court of Appeals
                      For the First Circuit

No. 17-1941

                            JANE DOE,

                      Plaintiff, Appellant,

                                v.

 BROWN UNIVERSITY in Providence in the State of Rhode Island and
          Providence Plantations, JONAH ALLEN WARD, and
                   YOLANDA CASTILLO-APPOLLONIO,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

       [Hon. John J. McConnell, Jr., U.S. District Judge]


                              Before

                  Torruella, Lynch, and Kayatta,
                          Circuit Judges.


     Wendy Murphy, with whom Patrick T. Jones, Audrey R. Poore,
and Jones Kelleher LLP were on brief, for appellant.
     Thomas R. Bender, Associate Counsel, Office of General
Counsel, Brown University, with whom Steven M. Richard and Nixon
Peabody LLP were on brief, for appellees.
     Jenna M. Labourr and Washington Injury Lawyers, PLLC, on brief
for amici curiae Equal Means Equal, National Coalition Against
Violent Athletes, Allies Reaching for Equality, and Faculty
Against Rape, in support of appellant.
July 18, 2018
            TORRUELLA, Circuit Judge.        In November 2013, Jane Doe

("Doe"), then a freshman at Providence College, was sexually

assaulted by three students of Brown University ("Brown") on

Brown's campus.       After Doe reported the assault to the local

authorities in the City of Providence, Brown notified Doe that it

would conduct an inquiry to determine whether the students had

violated Brown's Code of Student Conduct.                Doe alleges that

eventually, Brown abandoned the investigation and did not initiate

any disciplinary action against the three Brown students.                Doe

then initiated this action seeking damages and equitable relief

against Brown under Title IX of the Education Amendments to the

Civil Rights Act of 1964.      20 U.S.C. § 1681 et seq.        The district

court granted Brown's motion for judgment on the pleadings, and

Doe now appeals that decision.         For the reasons explained below,

we   find   that   Doe's   complaint   did   not,   on   its   face,   allege

sufficient facts for a plausible Title IX claim against Brown, and

therefore affirm the district court's grant of Brown's motion for

judgment on the pleadings.

                              I.   Background

A. Factual Background

            Because this case was decided on a motion for judgment

on the pleadings, we take the well-pleaded facts from the complaint

and draw all reasonable inferences in the plaintiff's favor.


                                    -3-
Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 137, 140

(1st Cir. 2016).

          On November 21, 2013, Doe, a freshman at Providence

College,1 was socializing with some friends at a bar in Providence,

Rhode Island.      While at the bar, Doe was drugged "against her

knowledge and will," transported by taxi to a Brown dormitory, and

sexually assaulted by three males over an extended period of time.

The assailants were all Brown students and members of Brown's

football team.   Doe received medical treatment at a Massachusetts

hospital shortly thereafter.

          On February 3, 2014, Doe reported the sexual assault to

the Providence Police Department.      A Brown University Police

officer was present while Doe gave a statement to the Providence

Police.   Between February and May 2014, the Providence Police

executed several search warrants for the dorm rooms and cell phones

of the Brown students suspected of assaulting Doe.      The seized

cell phones revealed text messages between the Brown students that

referenced rape and contained explicit images of Doe, taken at the

time of the alleged sexual assault.

          On June 19, 2014, Brown University notified Doe that she

had a right to file a complaint pursuant to Brown's Code of Student


1  Providence College is not affiliated with Brown University, and
Doe has not claimed that she was a Brown student.


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Conduct, but mentioned nothing regarding Doe's right to file a

Title IX complaint.             Doe then explicitly requested that Brown

investigate        her   sexual    assault   following     Title     IX   standards.

However, Brown insisted that it would only conduct an inquiry under

the Code of Student Conduct.             As a result, on October 11, 2014,

Doe   filed    a    complaint      against   Brown   with    the     Department   of

Education's Office for Civil Rights ("OCR").2

              In June 2016, after Doe had repeatedly requested an

update on the status of Brown's inquiry, Brown responded that it

never   completed         the     investigation      and    had    abandoned      any

disciplinary action against the three Brown students.                         On an

unspecified date, Doe withdrew from Providence College out of fear

for her safety and well-being while on the Providence College

campus and in the general Providence area.               This fear, she alleges,

was a direct result of Brown's inactions regarding her sexual

assault, including Brown's failure to discipline the suspected

assailants.

B. Procedural Background

              Doe    filed      suit   against   Brown     seeking    compensatory

damages and equitable relief under Title IX.3                 In her complaint,


2  Doe's OCR complaint was accepted for investigation and remains
pending.
3  Doe also asserted two state law claims under the Rhode Island
Civil Rights Act, R.I. Gen. Laws § 42-112-1, and Rhode Island's

                                          -5-
Doe alleged that Brown had violated Title IX when it acted with

deliberate indifference after Doe's sexual assault by failing to

provide her a prompt, equitable, and effective response and redress

as Title IX requires.     She also alleged that Brown failed to

enforce Title IX in the response to and redress of sex-based

violence about which it knew or should have known, thereby creating

a hostile environment prior to Doe's sexual assault.      As a direct

result of Brown's actions or inactions, Doe claims to have suffered

substantial   interference   with     her   access   to   educational

opportunities or benefits, ultimately causing her to withdraw from

Providence College.

          Brown moved for judgment on the pleadings, see Fed. R.

Civ. P. 12(c), and after a hearing, the district court granted

Brown's motion.    Doe v. Brown Univ., 270 F. Supp. 3d 556, 563

(D.R.I. 2017).    The district court found that "Doe's status as a

non-student [of Brown], regardless of her allegations that the

Court accepts as true, removes her from Title IX's private-cause-

of-action umbrella of protection."    Id.




Equal Protection clause, R.I. Const. art I, § 2, against Brown
University and certain Brown officials.     However, the district
court dismissed these claims without prejudice after declining to
exercise supplemental jurisdiction over them. Since then, Doe has
refiled the state law claims in state court.


                                -6-
                           II.      Discussion

          "We review a district court's grant of judgment on the

pleadings de novo."    Mongeau v. City of Marlborough, 492 F.3d 14,

17 (1st Cir. 2007).    In doing so, "we take the well-pleaded facts

and the reasonable inferences therefrom in the light most favorable

to the nonmovant (here, the plaintiff)."         Kando v. R. I. State Bd.

of Elections, 880 F.3d 53, 58 (1st Cir. 2018).           This Court "will

affirm a dismissal or judgment on the pleadings if the complaint

fails to state facts sufficient to establish a 'claim to relief

that is plausible on its face.'"           Gray v. Evercore Restructuring

L.L.C., 544 F.3d 320, 324 (1st Cir. 2008) (quoting Trans–Spec Truck

Serv. v. Caterpillar Inc., 524 F.3d 315, 320 (1st Cir. 2008)).           We

are, of course, "not bound by the district court's reasoning but,

rather, may affirm the entry of judgment on any ground made

manifest by the record."       Kando, 880 F.3d at 58.

          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).     The   Supreme   Court   has

recognized an implied "private right of action to enforce [Title

IX's] prohibition on intentional sex discrimination," see Cannon

v. Univ. of Chi., 441 U.S. 677, 690-993 (1979), which includes


                                     -7-
actions for monetary damages by private persons and "encompasses

intentional       sex   discrimination     in    the   form    of   a     recipient's

deliberate indifference."          Jackson v. Birmingham Bd. of Educ., 544

U.S. 167, 173 (2005).          While the Court has recognized that this

right of action extends to students and employees, it has never

expressly restricted it to those two categories of plaintiffs.

See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281

(1998); North Haven Bd. of Ed. v. Bell, 456 U.S. 512, 520-21

(1982).     In fact, the Court has stated that "Title IX . . . broadly

prohibits    a     funding   recipient     from    subjecting       any    person    to

'discrimination' 'on the basis of sex.'"                  Jackson, 544 U.S. at

173.     Sexual harassment, moreover, "can constitute discrimination

on the basis of sex under Title IX."              Gebser, 524 U.S. at 283.

             A recipient of federal funding can be liable under Title

IX if "its deliberate indifference 'subjects' its students to

harassment."       Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 644

(1999)     (brackets      omitted).      To     succeed   in   bringing       such   a

"deliberate indifference" claim, a plaintiff must show that (1)"he

or   she    was    subject    to   'severe,       pervasive,    and       objectively

offensive' sexual harassment"; (2) "the harassment caused the

plaintiff     to     be    deprived   of      educational      opportunities         or

benefits"; (3) the funding recipient was aware of such harassment;

(4) the harassment occurred "in [the funding recipient's] programs


                                       -8-
or activities"; and (5) the funding recipient's response, or lack

thereof, to the harassment was "clearly unreasonable."    Porto v.

Town of Tewksbury, 488 F.3d 67, 72-73 (1st Cir. 2007).

          Doe dedicates a number of pages of her brief to arguing

that based on Cannon's four-part test,4 she has a private right of

action against Brown under Title IX.   See Cannon, 441 U.S. at 689-

709.   Doe further argues that the district court erred when it

found that she had no right to sue Brown because Brown lacked any

"authority or capacity to take corrective action on behalf of Doe

with regard to her education at Providence College."     According

to Doe, because Title IX imposes liability when "the [funding]

recipient exercises substantial control over both the harasser and

the context in which the known harassment occurs," Davis, 526 U.S.

at 645 -- which Doe alleges is the case here -- her complaint

should have been allowed to proceed.   We, however, do not need to

reach these arguments in light of our conclusion that the district

court's judgment on the pleadings was correct, albeit on other



4  Cannon's four part test considers: (1) whether the statute in
question was enacted for the benefit of a special class of which
plaintiff is a member; (2) whether the legislative history provides
any indication of congressional intent to create a private remedy;
(3) whether recognizing a private remedy would frustrate the
underlying purpose of the statue; and (4) whether recognizing a
private remedy would be inappropriate because the subject matter
involves issues better addressed by the states. 441 U.S. at 689-
709.


                               -9-
grounds.     Rather, this case turns on whether Doe's complaint, on

its face, pleads sufficient facts to establish a plausible claim

for relief under Title IX.        And it does not.

             Section 1681(a)'s text, prohibiting that any person "be

excluded from participation in, be denied the benefits of, or be

subjected    to   discrimination       under   any    education    program    or

activity,"     indicates   that    a     person      may   be   "subject[]    to

discrimination under" a funding recipient's education program

without necessarily being "excluded from participation in" or

being "denied benefits of" that program.               20 U.S.C. § 1681(a).

The Supreme Court confirmed as much in Bell. See 456 U.S. at 520-

21.   There, when the Court determined that "Title IX proscribes

employment discrimination in federally funded education programs,"

id. at 535–36, it found that "[e]mployees who directly participate

in federal programs or who directly benefit from federal grants,

loans, or contracts clearly fall within the first two protective

categories" of Title IX, that is, "excluded from participation in"

and "denied the benefits of." Id. at 520-21.                In addition, the

Court found that "a female employee who works in a federally funded

education program is 'subjected to discrimination under' that

program if [for example] she is paid a lower salary for like work,

given less opportunity for promotion, or forced to work under more

adverse conditions than are her male colleagues."               Id. at 521.   In


                                    -10-
other words, the "subject to discrimination under" clause captures

situations other than where a person has been "excluded from access

to" or "denied the benefits of" an educational program.                               The

"subject to discrimination under" clause covers situations where

a   person       --    while      participating      in    a    funding    recipient's

educational program or activity -- has inferior access to or is

less able to enjoy the benefits of a particular educational program

relative to members of the opposite sex.

             Thus, Bell implies that, in order for a person to

experience       sex       "discrimination       under    an   education    program   or

activity," that person must suffer unjust or prejudicial treatment

on the basis of sex while participating, or at least attempting to

participate,          in    the   funding   recipient's        education    program   or

activity.        That a potential Title IX plaintiff seeking relief for

being "subjected to discrimination under" an education program

must   be    a    participant,        or    at    least    have   the     intention    to

participate, in the defendant's educational program or activity

seems logical since the "discrimination" that Title IX prohibits

is not the acts of sexual assault or sexual harassment in and of

themselves, but rather the differential treatment by a funding

recipient of persons of a particular sex who are taking part or

trying to take part in its educational program or activity but are

suffering acts of sexual harassment or assault that undermine their


                                            -11-
educational experience.   Cf. Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 80 (1998) ("We have never held that workplace

harassment . . . is automatically discrimination because of sex

merely because the words used have sexual content or connotations.

'The critical issue, Title VII's text indicates, is whether members

of one sex are exposed to disadvantageous terms or conditions of

employment to which members of the other sex are not exposed.'"

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1998)

(Ginsburg, J., concurring))).5     And here is where Doe's complaint

is lacking.

          In   her   complaint,   Doe    alleged   that   she   suffered

interference with her access to educational opportunities to the

point where she had to withdraw from Providence College, and argued

that "[n]othing in Title IX jurisprudence requires that a Plaintiff

must suffer interference with educational opportunities at the

offending institution."   But we have to disagree.

          Not only did the Supreme Court suggest in Bell that the

scope of Title IX's "subject to discrimination under" clause is

circumscribed to persons who experience discriminatory treatment

while participating, or at least attempting to participate, in



5  As we have noted before, "[w]e may turn to Title VII for guidance
on Title IX claims." Doe v. Trs. of Bos. Coll., 892 F. 3d 67, 92
n.18 (1st Cir. 2018).


                                  -12-
education   programs    or   activities   provided   by   the   defendant

institution,6 cf. 456 U.S. at 520-21, but Davis also supports this

proposition, cf. 526 U.S. 629, 650-52.      In Davis, while discussing

the circumstances under which schools may be liable for their

deliberate indifference to student-on-student sexual harassment,

the Court stated that

     [F]unding recipients are properly held liable in damages
     only where they are deliberately indifferent to sexual
     harassment, of which they have actual knowledge, that is
     so severe, pervasive, and objectively offensive that it
     can be said to deprive the victims of access to the
     educational opportunities or benefits provided by the
     school.

Id. at 650 (emphasis added).        The Court then emphasized this

limitation by explaining that a Title IX damages claim is available

when the harassment "so undermines and detracts from the victims'

educational experience, that the victim-students are effectively


6  We clarify, though, that a victim does not need to be an enrolled
student at the offending institution in order for a Title IX
private right of action to exist. Members of the public regularly
avail themselves of the services provided by educational
institutions receiving federal funding.         For example, they
regularly access university libraries, computer labs, and
vocational resources and attend campus tours, public lectures,
sporting events, and other activities at covered institutions. In
any of those instances, the members of the public are either taking
part or trying to take part of a funding recipient institution's
educational program or activity. In the case before us, however,
Doe failed to allege that she had availed herself of any of Brown
University's educational programs in the past or that she intended
to do so in the future. She did not plead that Brown University's
alleged deliberate indifference to it prevented her from accessing
such resources at Brown.


                                  -13-
denied   equal      access        to    [the]        institution's      resources      and

opportunities."         Id. at 651.        The Court further stated that "the

provision    that       the   discrimination          occur   'under     any   education

program or activity' suggests that the behavior be serious enough

to have the systemic effect of denying the victim equal access to

[the] educational program or activity."                   Id. at 652.

             Doe's complaint alleged that she suffered "substantial

interference      with    her     access     to      educational      opportunities    or

benefits"    as     a    direct     result      of    Brown's       alleged    deliberate

indifference.           But   her      complaint       did    not    allege     that   she

participated or even would have participated in any of Brown's

educational programs or activities.                    Even accepting all of Doe's

well-pleaded facts as true, her complaint contains no factual

allegation as to how Brown's deliberate indifference "deprive[d]

[Doe] of access to the educational opportunities or benefits

provided by [Brown]."           Davis, 526 U.S. at 650.               Therefore, Doe's

complaint, on its face, fails to establish that she has been

"subjected to discrimination under [Brown's] education program or

activity."     20 U.S.C. § 1681(a).             Finding no plausible claim under

Title IX in Doe's complaint, we must affirm the district court's

grant of Brown University's motion for judgment on the pleadings.




                                           -14-
                           III.   Conclusion

           Like the district court before us, we also recognize

that Doe's complaint contains very serious allegations of sexual

assault   on   a   university's   campus.      However,   because   Doe's

complaint failed to allege sufficient facts for a plausible Title

IX claim against Brown, we affirm the judgment of the district

court.

           Affirmed.




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