Madeleine Barlow v. STATE OF WASHINGTON , DBA Washington State University

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M ADELEINE B ARLOW ,
Plaintiff-Appellant,
v.
S TATE OF WASHINGTON ,
DBA Washington State
University,
Defendant-Appellee.
No. 21-35397
D.C. No.
3:20-cv-05186-BHS
ORDER CERTIFYING
QUESTIONS TO THE
WASHINGTON
SUPREME COURT
Filed June 23, 2022
Before: Danny J. Boggs,* Andrew D. Hurwitz, and
Jennifer Sung, Circuit Judges.
Order
* The Honorable Danny J. Boggs, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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2 B ARLOW V . S TATE OF W ASHINGTON
SUMMARY**
Certification of Questions to State Supreme Court
In an appeal from the district court’s grant of summary
judgment to defendant State of Washington, d/b/a
Washington State University on Title IX and common law
negligence claims, the panel certified to the Washington
Supreme Court the following questions concerning the
negligence claim:
1. Does Washington law recognize a special
relationship between a university and its
students giving rise to a duty to use
reasonable care to protect students from
foreseeable injury at the hands of other
students?
2. If the answer to question 1 is yes, what is
the measure and scope of that duty?
In a concurrently-filed memorandum disposition, the
panel affirmed the district court’s summary judgment on the
Title IX claim.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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B ARLOW V . S TATE OF W ASHINGTON 3
COUNSEL
Meaghan Driscoll and Amanda M. Searle, Connelly Law
Offices PLLC, Tacoma, Washington; Philip A. Talmadge,
Talmadge/Fitzpatrick, Seattle, Washington; for Plaintiff-
Appellant.
Robert W. Ferguson, Attorney General; Brian J. Baker and
Brendan M. Lenihan, Assistant Attorneys General; Robert
W. Ferguson, Attorney General; Office of the Attorney
General, Olympia, Washington; for Defendant-Appellee.
Rebecca J. Roe, Schroeter Goldmark & Bender, Seattle,
Washington; Chloe M. Neely, Fierberg National Law
Group, Traverse City, Michigan; for Amicus Curiae
National Center for Victims of Crime.
ORDER
Madeleine Barlow appeals the district court’s grant of
summary judgment to defendant State of Washington, d/b/a
Washington State University (University) on her Title IX
and common law negligence claims. We have jurisdiction
pursuant to 28 U.S.C. § 1291. In a Memorandum Disposition
filed concurrently with this order, we affirm the district
court’s grant of summary judgment to the University on
Barlow’s Title IX claim. Barlow’s remaining negligence
claim turns on an important and unresolved issue of
Washington state law: whether a university owes a duty of
care to protect a student against foreseeable harm by another
student. Accordingly, we respectfully ask the Washington
Supreme Court to exercise its discretion to decide the
certified questions set forth below.

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I.
Before addressing the certified questions, we summarize
the relevant facts. Plaintiff Madeleine Barlow started college
as a freshman at the University’s main campus in Pullman,
Washington. Barlow had been on campus for only a few
days when she was raped by another student, senior Thomas
Culhane. Before Culhane raped Barlow, two students had
made complaints to the University alleging sexual
misconduct by Culhane at the University’s satellite campus
in Vancouver. The first student complained that Culhane
repeatedly made unwanted sexual advances toward her. The
second student complained that Culhane subjected her to
unwanted physical touching, and later complained that
Culhane continued to harass her. Because those complaints,
and the University’s actions in response, are at the center of
this appeal, we describe them in more detail below.
D.S. reported misconduct by Culhane about one year
before Barlow was raped.1 D.S. told officials at the
University’s Office of Equal Opportunity that Culhane sent
her unwanted pictures of his genitals and made sexual
innuendos online, and that he made every effort to sit next to
her in class. D.S. opted not to pursue a formal investigation
or file a police report. Instead, she asked that someone talk
to Culhane and tell him not to talk to her. A University
official, Helen Gregory, spoke with Culhane a few days later
and advised him that further unwanted interactions would
lead to sanctions greater than a “lecture.” The University
then closed D.S.’s case.
1 To protect the privacy of non-party students, we refer to them by
their initials.

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B ARLOW V . S TATE OF W ASHINGTON 5
The second student, Q.R., reported that Culhane had
subjected her to unwanted physical contact on a University-
sponsored surfing trip. The trip occurred just four days after
Gregory had spoken with Culhane. Culhane became
intoxicated during the trip, and during the car ride back to
Vancouver, Culhane sat uncomfortably close to Q.R. in the
back seat of a vehicle and touched Q.R.’s legs and thighs
even after Q.R. told him to stop. Q.R. reported the incident
to police and to the University about one month after D.S.’s
complaint. Like D.S., Q.R. initially declined to pursue a
formal investigation. Several months later, however, Q.R.
reported to the University that Culhane had continued to
harass her, including during another student recreational trip.
Q.R. then asked the University to open a formal Title IX
investigation.
The University began its investigation shortly thereafter.
Less than two months after the investigation began, Culhane
applied to transfer from the University’s Vancouver campus
to its main campus in Pullman. The University granted his
transfer request one week later. It was the University’s
policy to grant transfer requests as a matter of course, even
for students under investigation. The University would deny
a transfer request only if the student was barred from
registering, for instance if the student had been expelled.
When the University investigator informed Q.R. that
Culhane was transferring to the University’s main campus,
Q.R. warned the investigator that a transfer would not “fix
the problem,” and she expressed concern about the risk
Culhane posed on a campus with more dorms and more
access to alcohol.
The University subsequently found that Culhane had
violated its student conduct policy against sexual harassment
by nonconsensually touching Q.R. Before deciding what

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6 B ARLOW V . S TATE OF W ASHINGTON
sanctions to impose, student-conduct officer Adam Jussel
exchanged emails with Gregory and asked for more
information about the D.S. complaint. Gregory shared that
Culhane “has a hard time with appropriate social
boundaries” and did not recognize when he needs to “step
away from certain situations rather than forcing himself on
others.” Gregory also noted that Culhane’s misconduct
against Q.R. occurred only a few days after she had advised
Culhane to stop engaging in unwanted interactions. Jussel
ultimately imposed the following sanctions: (1) a nine-day
suspension; (2) an alcohol-dependency assessment; (3) an
educational assignment to write a research and reflection
paper; (4) disciplinary probation through graduation;
(5) writing of a reflective probation statement; and (6) no
contact with Q.R. for two years. In August 2017,
approximately two weeks before Culhane raped Barlow,
Jussel reviewed and rejected the first draft of Culhane’s
research and reflection paper because Culhane continued to
misunderstand the concept of consent, particularly when
someone lacks mental capacity to consent. Culhane was
instructed to rewrite the paper.
On August 19, Barlow, an incoming freshman, attended
an “apartment warming” party at Culhane’s off-campus
apartment and became extremely intoxicated. In the early
morning hours of August 20, after the other partygoers had
left or gone to sleep, Culhane repeatedly raped Barlow.
Barlow filed a Title IX complaint against Culhane. The
University investigated and ultimately expelled Culhane.
His expulsion was upheld in an administrative appeal. A
Washington state jury later convicted Culhane of second-
degree rape.
Barlow then sued the University, alleging common-law
negligence and a violation of Title IX. Barlow took no issue

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B ARLOW V . S TATE OF W ASHINGTON 7
with the University’s handling of her Title IX complaint.
Rather, she claimed that the University mishandled
supervising and sanctioning Culhane for his prior
misconduct against Q.R. and D.S., which she claimed put
her at an increased risk.
The University moved for summary judgment on all of
Barlow’s claims. The district court granted summary
judgment on Barlow’s negligence claim because it
concluded that the University did not owe Barlow a duty to
protect her from harm by Culhane.
II.
On Barlow’s appeal from the grant of summary
judgment in favor of the University, we must determine
whether, under Washington law, a university owes students
a duty to use reasonable care to protect them from
foreseeable injury by other students. Resolution of this issue
is necessary to our decision. Further, this critical issue of
state law is unsettled and has important public-policy
ramifications.
Washington law permits certification from a federal
court when, in the opinion of the court, “it is necessary to
ascertain the local law of [Washington] in order to dispose
of such proceeding and the local law has not been clearly
determined.” Wash. Rev. Code § 2.60.020.
The Washington Supreme Court has not addressed
whether a university owes a duty of care to its students to
protect them from foreseeable harm by other students. The
Washington Court of Appeals, however, has held that a
university is not in a special relationship with its students
and thus has no duty to protect students against third party
harm solely by virtue of the students’ enrollment status.

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Johnson v. State, 894 P.2d 1366, 1369–70 (Wash. Ct. App.
1995), rev. den. 904 P.2d 299 (Wash. 1995). The court
declined to extend precedent finding a special relationship
between primary and secondary schools and their students,
because college attendance is not mandatory, and “[c]ollege
students are adults and generally are not in the protective
custody of their parents.” Id. at 1369. The University argues
that a straightforward application of Johnson resolves this
case. We conclude, however, that Johnson does not resolve
the issues in this case, for the following three reasons.
First, in the 30 years since Johnson was decided, the law
on special relationships has shifted, as reflected in the
Restatement (Third) of Torts. Specifically, the Third
Restatement recognizes that all schools, including
universities, have a special relationship with their students
that gives rise to a duty to protect against third-party
conduct, a duty that is proportional to the scope of the
relationship. R ESTATEMENT (THIRD ) OF TORTS : P HYS . &
EMOT. HARM §§ 40(b)(5), cmt. l (2012). Other states have
adopted this approach and found a special relationship
between a university and its students. Helfman v. Ne. Univ.,
149 N.E.3d 758, 767–68 (Mass. 2020); Regents of the Univ.
of Cal. v. Superior Ct., 413 P.3d 656, 667 (Cal. 2018). Those
courts rejected the proposition that college students are fully
independent, noting that their “right to privacy and desire for
independence may conflict with their immaturity and need
for protection,” Helfman, 149 N.E.3d at 769–70 (citing
Dzung Duy Nguyen v. Mass. Inst. of Tech., 96 N.E.3d 128,
142 (Mass. 2018)), and that universities are heavily involved
in many aspects of student life by providing housing, food,
social, athletic, and cultural opportunities, id. at 769. While
the Washington Supreme Court has not adopted the Third
Restatement as it pertains to special relationships, it has
adopted several other sections of that Restatement. See, e.g.

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B ARLOW V . S TATE OF W ASHINGTON 9
Ruiz-Guzman v. Amvac Chem. Corp., 7 P.3d 795, 800
(Wash. 2000) (products liability); Jordan v. Nationstar
Mortg. LLC, 374 P.3d 1195, 1200 (Wash. 2016) (premises
liability); Volk v. DerMeerleer, 386 P.3d 254, 271–72
(Wash. 2016) (psychiatrist’s duty to warn of dangerous
patient).
Second, Johnson does not address whether a university
owes a duty when the university has a relationship with both
the victim and the bad actor because both are students. In
Johnson, the university had no apparent relationship with the
bad actor, 894 P.2d at 1368, whereas here, both Culhane and
Barlow were University students when Culhane raped
Barlow. In C.J.C. v. Corporation of Catholic Bishop of
Yakima, 985 P.2d 262, 276 (Wash. 1999), the Washington
Supreme Court concluded that a church owed a duty of
reasonable care to act affirmatively to prevent harm to
children of the congregation in view of the church’s
relationship to the plaintiffs, its relationship to the bad actor,
and the church’s knowledge about the bad actor. Even
assuming that the University’s relationship with Barlow
alone is not sufficient to give rise to a duty of care, it is
unclear whether the combination of the University’s
relationships with Barlow and Culhane could create a duty
to protect Barlow from Culhane.
Third, Johnson does not address the relevance of the
University’s knowledge of Culhane’s prior misconduct and
risk of future misconduct in addressing the existence of a
duty of care. In C.J.C., the court considered the church’s
knowledge of the risk of harm posed by the bad actor when
concluding that the church owed the plaintiffs a duty. Id.
Here, the undisputed evidence in the summary-judgment
record shows that, at the time of Barlow’s rape, the
University had investigated and sanctioned Culhane for

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sexual misconduct, and at least two University officials,
Jussel and Gregory, had found that Culhane lacked an
understanding of consent.
We recognize the burden that certifying a question
imposes on a state court. However, certification is
“particularly appropriate” where, as here, the issues of law
are not only unsettled but also have “significant policy
implications.” Centurion Props. III, LLC v. Chi. Title Ins.
Co., 793 F.3d 1087, 1089 (9th Cir. 2015) (internal quotation
marks and citation omitted). Public policy may be a
significant consideration when determining whether to
impose a duty under state law. See, e.g., C.J.C., 985 P.2d at
276 (considering “the strong public policy in favor of
protecting children against acts of sexual abuse”). Further,
resolution of the certified questions could have a significant
impact on Washington universities and students. Given the
significance of the policy issues implicated by Barlow’s
negligence claim and the unsettled state of the law, we
conclude that certification is the most appropriate course of
action.
ORDER
We respectfully certify to the Washington Supreme
Court the following questions:
(1) Does Washington law recognize a special
relationship between a university and its
students giving rise to a duty to use
reasonable care to protect students from
foreseeable injury at the hands of other
students?
(2) If the answer to question 1 is yes, what is
the measure and scope of that duty?

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B ARLOW V . S TATE OF W ASHINGTON 11
We do not intend the phrasing of those questions to
restrict the Washington Supreme Court’s consideration of
the issues. We acknowledge that the court may, in its
discretion, reformulate the questions. Broad v. Mannesmann
Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir. 1999);
Lenhardt v. Ford Motor Co., 683 P.2d 1097,1098 (Wash.
1984).
If the Washington Supreme Court accepts review of the
certified questions, we designate appellant Barlow as the
party to file the first brief pursuant to Washington Rule of
Appellate Procedure 16.16(e)(1).
The Clerk of Court is hereby ordered to transmit
forthwith to the Washington Supreme Court, under official
seal of the United States Court of Appeals for the Ninth
Circuit, a copy of this order and all relevant briefs and
excerpts of record pursuant to the Revised Code of
Washington sections 2.60.010(4), 2.60.030(2) and
Washington Rule of Appellate Procedure 16.16.
Further proceedings in this court on the certified
questions are stayed pending the Washington Supreme
Court’s decision on whether it will accept review and, if so,
receipt of the answer to the certified questions. The case is
withdrawn from submission, in pertinent part, until further
order from this court. The Clerk is directed to
administratively close this docket, pending further order.
This panel will resume control and jurisdiction upon receipt
of an answer to the certified questions or upon receipt of the
Washington Supreme Court’s decision to decline to answer
the certified questions.
When the Washington Supreme Court decides whether
to accept the certified questions (or orders briefing on the
questions), the parties shall promptly file a joint report

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informing us of the decision. If the Washington Supreme
Court accepts certification, the parties shall also promptly
file a joint status report notifying us when briefing has been
completed; when a date is set for oral argument before the
Washington Supreme Court; and when that Court has
rendered an opinion.
It is so ORDERED.
/s/ Mary H. Murguia
Chief Judge Mary H. Murguia
U.S. Court of Appeals for the Ninth Circuit

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