Reply Brief for Plaintiff-Appellant, Jane Roe v. Marshall University Board of Governors

Marshall does not dispute that Jane Roe’s experience as a student there was marred by fellow-student John Doe’s repeated sexual harassment. Doe’s harassment of Roe escalated on September 3, 2022, when he sexually assaulted her at a Marshall-football-watch party near campus. Instead of supporting Roe to confront the assault’s aftermath or the lingering on campus hostile environment, Marshall punished her, pretextually shuffling her through an investigation riddled with procedural deficits, in an attempt to cover its tracks. Marshall argues it isn’t liable because it lacks control over all off-campus sexual assaults. But it undermines itself by admitting it exercised control over the off-campus context at issue here to punish Roe, purportedly for underage drinking. It also ignores its control over the harassment that pervaded its campus—the hostile environment inhibiting Roe’s access to the full benefits of education at Marshall. And though it chose not to, it had enough control to remedy Roe’s educational harms. Marshall argues it was not deliberately indifferent because it also punished Doe and instituted an interim no-contact order. But its conduct was clearly unreasonable because it did not tell Roe whether the no-contact order remained effective following its investigation into her, address Doe’s prior sexual abuse, or offer Roe supportive measures, all while punishing her. Marshall also denies that its response was retaliatory. It asks this Court to ignore binding precedent about what it means to engage in protected activity and what counts as a materially adverse action. And it refuses to engage with the facts showing its real reason for punishing Roe was her protected activity and its proffered reason for punishing Roe, underage drinking, was pretextual. The evidence shows that Marshall deviated from its procedures to punish Roe, did not investigate other students that it knew were drinking underage, and maintained per se retaliatory policies in its student-conduct office. Across the board, Marshall accuses Roe of taking creative license with the facts. But it’s Marshall that asks this Court to flip the summary-judgment standard on its head. Applying that standard properly—that is, viewing the facts and drawing reasonable inferences in Roe's favor—this Court should reverse the district court’s grant of summary judgment and remand for trial.