Federal Court of Appeals Decides Title IX Case


In February 2019, the Eighth Circuit Court of Appeals (the federal appeals court that includes South Dakota) found that Iowa State University was not deliberately indifferent to a student's Title IX claim.


Patrick Whetstone sexually assaulted Melissa Maher in March 2014. Both Maher and Whetstone were Iowa State University (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 issued a no-contact order that prohibited Whetstone from interacting with Maher. When Maher returned to ISU in the late summer of 2014, she discovered that Whetstone lived in a building close to her own. Maher 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.

Maher filed a Title IX action against ISU on September 9, 2016. 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.” The federal district court granted ISU’s request to dismiss the case. 


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.” Maher’s Title IX claim requires that she demonstrate that ISU was “(1) deliberately indifferent (2) to known acts of discrimination (3) which occurred under its control.”

In support of her claim that ISU acted with “deliberate indifference” to her Title IX claim, Maher alleged:

  • “It 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.

The court reiterated its earlier decisions that a school is “deliberately indifferent” when its “response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.” Further, “this clearly unreasonable standard is intended to afford flexibility to school administrators.”  The court also decided that “victims of peer harassment” do not “have a Title IX right to make particular remedial demands.”

In support of its decision to dismiss Maher’s claim, the court found:

  • Before 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. However, Maher declined both of those options, and dissatisfaction with the ISU’s response does not mean that ISU’s response can be characterized as deliberate indifference. 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; and
  • 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. Further, ISU instituted a no-contact order between Whetstone and Maher in May 2014, and there is no evidence that it was violated. Therefore, ISU was not deliberately indifferent after its investigative report concluded that Whetstone sexually assaulted Maher because ISU was not clearly unreasonable in light of the known circumstances.

To read the court's entire decision, click here.