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

COA
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MADELEINE BARLOW,
Plaintiff-Appellant,
v.
STATE OF WASHINGTON, DBA
Washington State University,
Defendant-Appellee.
No. 21-35397
D.C. No. 3:20-cv-05186-BHS
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted April 12, 2022
Seattle, Washington
Before: BOGGS,** HURWITZ, and SUNG, Circuit Judges.
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 state-law negligence claims. We have jurisdiction pursuant to 28
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
JUN 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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U.S.C. § 1291. We review de novo a district court’s grant of summary judgment.
Karasek v. Regents of Univ. of Cal., 956 F.3d 1093, 1104 (9th Cir. 2020). We
affirm the summary judgment dismissing Barlow’s Title IX claim. In a companion
published order, we certify to the Washington State Supreme Court the remaining
dispositive question of state law before us, namely whether the University owed
Barlow a duty in negligence. We summarize the facts underlying this case in that
order.
Barlow asserts what we have referred to as a “pre-assault” claim under Title
IX. Id. at 1111–12 (recognizing pre-assault claim as a cognizable theory of Title IX
liability). To prevail on a pre-assault claim, Barlow must show that (1) the
University maintained a policy of deliberate indifference to reports of sexual
misconduct1 (2) that created a heightened risk of sexual harassment that was
known or obvious (3) in a context subject to the University’s control, and (4) as a
result, Barlow suffered severe, pervasive, and objectively offensive harassment
that deprived her of access to the educational opportunities or benefits provided by
the University. Id. at 1112. Deliberate indifference requires more than mere
1 In Karasek we noted that a defendant’s policy of deliberate indifference to
reports of sexual misconduct was not necessarily the only type of policy that could
give rise to Title IX liability but declined to speculate as to what other policies
might be actionable. 956 F.3d at 1112 n.5. Because Barlow only takes issue with
the adequacy or inadequacy of the University’s policy for responding to reports of
Culhane’s past sexual misconduct, we also decline to so speculate.

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negligence, laziness, or carelessness. Oden v. N. Marianas Coll., 440 F.3d 1085,
1089 (9th Cir. 2006).
Under Title IX, both a pre-assault claim and an “individual claim” include
an element that involves “deliberate indifference,” but the required showings are
somewhat different. For an individual claim, the focus is on whether the university
responded with deliberate indifference to an instance of harassment of which the
university had actual knowledge. See Karasek, 956 F.3d at 1105. For a pre-assault
claim, however, the focus is on whether the university maintained an official or de
facto policy of deliberate indifference to reports of sexual misconduct or an
obvious risk of sexual misconduct. Id. at 1112–13. Because a pre-assault claim
requires a showing that the university intentionally violated Title IX by its own
policy, there is no requirement that the university have actual knowledge of a
specific instance of sexual misconduct. Id. at 1112.
Here, although Barlow brought a pre-assault claim, her evidence and
arguments focus primarily on the University’s investigation and discipline of
Culhane. Viewed in the best light, Barlow’s evidence at most shows that the
University policies that permitted Culhane to transfer campuses were deficient; the
evidence does not show that the University maintained those policies despite a
known or obvious risk of sexual misconduct. On this record, no reasonable jury
could conclude that the University was, as a matter of policy, deliberately

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indifferent to reports of sexual misconduct. Cf. Simpson v. Univ. of Colo. Boulder,
500 F.3d 1170, 1184 (10th Cir. 2007) (denying summary judgment for university
where evidence could support findings that university refused to modify football-
recruiting program despite obvious risk of sexual misconduct); Karasek v. Regents
of Univ. of Cal., 500 F. Supp. 3d 967, 985 (N.D. Cal. 2020) (allegations regarding
university’s use of informal process in high percentage of sexual misconduct cases
and motive for doing so were, if true, sufficient to establish a de facto policy of
deliberate indifference toward sexual misconduct on campus).
We therefore affirm the district court’s grant of summary judgment on
Barlow’s Title IX claim.
AFFIRMED in part.

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