Submitted: January 15, 2019
from United States District Court for the Southern District
of Iowa - Des Moines
GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
GRUENDER, CIRCUIT JUDGE.
Maher appeals the district court's grant of Iowa
State University's ("ISU") motion for summary
judgment. She argues that her action is not barred by the
applicable statute of limitations and that ISU was
deliberately indifferent. We affirm.
Whetstone sexually assaulted Maher in March 2014. Both Maher
and Whetstone were ISU students at the time. Maher reported
the assault to ISU, and ISU began an investigation after
Maher identified her assailant in May 2014. ISU subsequently
issued a no-contact order that prohibited Whetstone from
interacting with Maher.
Maher returned to ISU in the late summer of 2014, she
discovered that Whetstone lived in a building close to her
own. Maher, her parents, and her roommate met with ISU
administration to discuss a housing change on August 20,
2014. At that meeting, ISU explained that it could not move
Whetstone until the investigation and hearing process
concluded. ISU presented at least two alternative housing
arrangements for Maher. She declined both. On September 19,
2014, ISU's investigative report concluded that Whetstone
sexually assaulted Maher. Maher withdrew from ISU shortly
after. On July 22, 2015, an administrative judge found that
Whetstone was responsible for violating ISU's Code of
Conduct and expelled him.
filed a Title IX action against ISU on September 9, 2016. 20
U.S.C. § 1681(a). She argued that she was "excluded
from participation in and denied the benefits of the
educational programs at ISU as a result of ISU's response
to the sexual assault." ISU filed a motion for summary
judgment, which the district court granted. The district
court concluded that Maher's claim was time barred by
Iowa's two-year statute of limitations because it accrued
on August 20, 2014, the day ISU administration met with
Maher, her parents, and her roommate to discuss the housing
situation. The district court also held that Maher
had not raised a material question of fact as to whether ISU
was deliberately indifferent and that she had not
"demonstrated a genuine issue of material fact as to
whether ISU engaged in severe, pervasive, and objectively
offensive discrimination against Maher because of her
sex." Maher appeals, arguing that her action was not
time barred and that there is a genuine dispute as to a
material fact-whether ISU was deliberately indifferent.
review a district court's grant of summary judgment de
novo, viewing the evidence in the light most favorable to the
nonmoving party." Ridenour v. Boehringer Ingelheim
Pharm., Inc., 679 F.3d 1062, 1065 (8th Cir. 2012).
"[A] court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a).
assume, without deciding, that Maher's claim survives
Iowa's statute of limitations. Thus, we consider
Maher's Title IX claim on the merits. Title IX requires
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). Maher's Title
IX claim must demonstrate that ISU was "(1) deliberately
indifferent (2) to known acts of discrimination (3) which
occurr[ed] under its control." K.T. v.
Culver-Stockton College, 865 F.3d 1054, 1057 (8th Cir.
2017). We conclude that there is no genuine dispute as to
whether ISU was deliberately indifferent.
argues that "[i]t wasn't until [ISU] refused to move
the man it admitted raped Maher and offered no comparable
housing that . . . . [ISU] was deliberately indifferent to
Maher." In other words, Maher argues that ISU's
handling of the housing situation became deliberately
indifferent only after ISU's investigative report
concluded that Whetstone sexually assaulted Maher. A school
is deliberately indifferent when its "response to the
harassment or lack thereof is clearly unreasonable in light
of the known circumstances." Davis Next Friend
LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629,
648 (1999). "This clearly unreasonable standard is
intended to afford flexibility to school
administrators." Estate of Barnwell by and through
Barnwell v. Watson, 880 F.3d 998, 1007 (8th Cir. 2018)
(internal quotation marks omitted). "[V]ictims of peer
harassment" do not "have a Title IX right to make
particular remedial demands." Davis, 526 U.S.
the conclusion of ISU's investigative report, ISU had
offered Maher at least two reasonable housing alternatives
that would have resolved Maher's objection to the housing
situation: a converted housing den or a room at the Memorial
Union Hotel. But Maher declined both of those options, and
dissatisfaction with the school's response does not mean
the school's response can be characterized as deliberate
indifference. See Ostrander v. Duggan, 341 F.3d 745,
751 (8th Cir. 2003). After ISU's investigative report
concluded that Whetstone sexually assaulted Maher, there was
no reason for ISU to think that Maher's dissatisfaction
with its proposed housing alternatives would have changed.
while Maher's preference was that ISU move Whetstone, it
was not deliberately indifferent for ISU to wait to take such
action until the hearing process concluded because ISU was
respecting Whetstone's procedural due process rights.
See Keefe v. Adams, 840 F.3d 523, 535 (8th Cir.
2016) (explaining that when conduct "that leads to an
adverse academic decision is of a disciplinary nature, due
process may require . . . procedural
protections."); Davis, 526 U.S. at 649
("[I]t would be entirely reasonable for a school to
refrain from a form of disciplinary action that would expose
it to constitutional or statutory claims."). Further,
ISU instituted a no-contact order between Whetstone and Maher
in May 2014, and there is no evidence that it was violated.
Thus, there is no genuine dispute that ISU was deliberately
indifferent after its investigative report ...