Tiffany Williams v. Board of Regents

We sua sponte grant rehearing in this case, vacating our prior opinion filed on March 9, 2006, published at 441 F.3d 1287 (11th Cir.2006), in its entirety and substitute the following opinion in its place.1 While the Court reaches the same result, we address certain claims more fully.

The primary question in this appeal is whether petitioner, a student at the University of Georgia, alleged facts sufficient to withstand defendants’ motion to dismiss her Title IX claim based on student-on-student sexual harassment.

Background

Here, as alleged in her complaint,2 at approximately 9:00 p.m. on January 14, 2002, Tiffany Williams (“Williams”), then a student at the University of Georgia (“UGA”), received a telephone call from UGA basketball player Tony Cole. Cole invited Williams to his room in McWhorter Hall, the main dormitory for student-athletes on the university campus. Shortly after Williams arrived at Cole’s room, the two engaged in consensual sex. Unbeknownst to Williams, Brandon Williams, a UGA football player, whom Williams did not know, was hiding in Cole’s closet. Cole and Brandon had previously agreed that Brandon would hide in the closet while Cole had sex with Williams. When Cole went to the bathroom and slammed the door behind him, Brandon emerged from the closet naked, sexually assaulted Williams, and attempted to rape her.

As Brandon was sexually assaulting Williams, Cole was on the telephone with Steven Thomas, Cole’s teammate, and Charles Grant, Brandon Williams’s teammate. Cole told Thomas and Grant that they were “running a train” on Williams.3 Thomas came to Cole’s room, and Cole allowed Thomas to enter the room. With Cole’s encouragement, Thomas sexually assaulted and raped Williams.

Williams returned to her dormitory at approximately 11:00 p.m., called Jennifer Shaughnessy, and asked Shaughnessy to come to her room. When Shaughnessy arrived, Williams was visibly upset and crying. Williams explained what had hap*1289pened in Cole’s room, and Shaughnessy told Williams that she had been raped and should call the police. Williams told Shaughnessy that she did not want to call the police because she was afraid. While Shaughnessy was with Williams, the telephone rang. The caller identified himself as Steven Thomas, and Williams immediately hung up. Thomas had never called Williams before that night. Minutes later, Thomas called again. Williams said that she was afraid to answer the telephone, therefore, Shaughnessy answered. Thomas immediately asked, “Why did you hang up on me?” When Shaughnessy said “Hello,” Thomas asked, “Is Tiffany there?” Shaughnessy told Thomas that he had the wrong number, and she hung up.

Williams then called her mother, who notified UGA Police of the incident that occurred in Cole’s room. UGA Police arrived at Williams’s room shortly after 1:00 a.m. on January 15 and arranged for Williams to have a sexual assault exam performed. Later that same day, Williams requested that UGA Police process the charges against Cole, Brandon Williams, and Thomas. After filing her complaint with UGA Police, Williams permanently withdrew from UGA.

UGA Police conducted an investigation, as part of which, the police obtained Cole’s telephone records. The records show that Cole called Williams’s dorm room several times in the days immediately following the incident and Williams’s withdrawal. Within forty-eight hours of the incident, UGA’s Chief of Police notified UGA’s Director of Judicial Programs of the incident and provided her with a written explanation. On April 17, 2002, a lieutenant from UGA Police provided the Director of Judicial Programs with additional information about the investigation. Several of the individuals who spoke with UGA Police supported Williams’s allegations.

The actions of Cole, Brandon Williams, and Thomas constitute sexual harassment under the Sexual Harassment Policy of the University of Georgia. The policy applicable in January 2002, however, provided that “[sjexual harassment between students, neither of whom is employed by the University should be treated as a disciplinary matter and should be reported to the Office of Student Affairs” and not dealt with under the Sexual Harassment Policy. Cole, Brandon Williams, and Thomas were charged with disorderly conduct under UGA’s Code of Conduct. Additionally, their coaches suspended them from their sports teams after an Athens-Clarke County grand jury indicted them in early April 2002.4 A UGA judiciary panel, consisting of one staff member and two university students, held hearings almost a year after the January 2002 incident and decided not to sanction Cole, Brandon Williams, or Thomas. By the time of the hearing, Cole and Brandon Williams no longer attended UGA. Thomas left UGA in September 2003. The three also faced criminal charges, but a jury acquitted Brandon Williams, and the prosecutor dismissed the charges against Cole and Thomas.

Williams’s complaint also alleges that defendants James Harrick, former head coach of UGA’s men’s basketball team, Vincent Dooley, Athletic Director of the University of Georgia Athletic Association (“UGAA”), and Michael Adams, President of UGA and UGAA, were personally involved in recruiting and admitting Cole *1290even though they knew he previously had disciplinary and criminal problems, particularly those involving harassment of women, at other colleges.

While coaching the men’s basketball team at the University of Rhode Island (“URI”), Harrick recruited Cole to attend URL When Cole could not gain admission to URI, Harrick helped Cole gain admission to the Community College of Rhode Island (“CCRI”). Cole was eventually dismissed from CCRI after allegations that in December 1999 and February 2000 he sexually assaulted two part-time employees of the college’s athletic department by groping the women, putting his hands down their pants, and threatening them when they rejected his advances. Cole pleaded no contest to criminal charges of misdemeanor trespass in connection with the two sexual assaults.5

Furthermore, while attending Wabash Valley College (“WVC”) in Mount Carmel, Illinois, Cole was dismissed from the basketball team because of disciplinary problems, including an incident in which he whistled at and made lewd suggestions to a female store clerk. Adams, Harrick, and Dooley knew of the incident when they recruited and admitted Cole. By the time Cole was dismissed from WVC, Harrick was at UGA and again recruited Cole. Because Cole did not meet UGA’s standards for admission, Harrick requested that Adams admit Cole through UGA’s special admissions policy. Adams is the sole decision maker when admitting an applicant under the special admissions policy. Cole was admitted to attend UGA on a full scholarship.

Finally, Williams alleges that UGA officials received suggestions from student-athletes that coaches needed to inform the student-athletes about UGA’s sexual harassment policy. Despite Adams’s and Dooley’s duties to ensure student-athletes’ compliance with UGA’s policy, UGA and UGAA failed to ensure that the student-athletes received adequate information concerning UGA’s sexual harassment policy applicable to student-athletes and failed to enforce the policy against football and basketball players.

Williams brought suit against: (1) UGA, the Board of Regents of the University System of Georgia (“Board of Regents”), and UGAA for violation of Title IX; (2) Adams, Harrick, and Dooley as individuals and in their official capacities as UGA and UGAA President, former head basketball coach, and Athletic Director of UGAA for violation of 42 U.S.C. § 1983; (3) UGA and the Board of Regents for violation of 42 U.S.C. § 1983; and (4) Cole, Brandon Williams, and Thomas for state law torts. She also sought “injunctive relief ordering the defendants to implement policies, and procedures to protect students like Plaintiff from student-on-student sexual harassment prohibited by Title IX.”

UGA, UGAA, the Board of Regents, Adams, Harrick, and Dooley all filed motions to dismiss Williams’s claims. Williams then moved to amend her complaint, adding additional factual allegations to support her claims, providing a more specific request for injunctive relief, and requesting declaratory relief against UGA, UGAA, and the Board of Regents. For various reasons we discuss later, the district court dismissed Williams’s Title IX and § 1983 claims, denied her requests for declaratory and injunctive relief, and denied in part and granted in part Williams’s *1291motion to amend her complaint. The district court also declined to exercise supplemental jurisdiction over Williams’s state law claims. In sum, the district court dismissed all the claims.

Williams now appeals. After a thorough review of the record and the benefit of oral argument, we reverse the district court’s decisions to dismiss Williams’s Title IX claims against UGA and UGAA and to deny Williams’s motion to amend her complaint. In all other respects, we affirm the district court.

Standard of Revieio

We review de novo the district court’s order granting the defendants’ motion to dismiss, McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718, 722 (11th Cir.2002), taking the facts alleged in the complaint as true and construing them in the light most favorable to the plaintiff. Covad Commc’n Co., 299 F.3d at 1276 n. 2. “A motion to dismiss is only granted when the movant demonstrates ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir.1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

We generally review the denial of a motion to amend a complaint for an abuse of discretion, Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1300 (11th Cir.2003), but we review questions of law de novo. United States v. Alaboud, 347 F.3d 1293, 1296 (11th Cir. 2003).

Discussion

Williams raises four issues on appeal — ■ whether the district court erred in: (1) denying Williams’s motion to amend her complaint; (2) dismissing her Title IX claims; (3) dismissing her § 1983 claims; and (4) dismissing her claim for injunctive relief.

I. Whether the District Court Erred in Denying Williams’s Motion to Amend Her Complaint

Williams argues that the district court erred in denying her motion to amend her complaint to file claims for a declaratory judgment against UGA, the Board of Regents, and UGAA. In her first amended complaint, Williams sought declaratory judgments “that defendants [sic] application of its sexual harassment policy to Tiffany Williams was unconstitutional as it denied her equal protection of the laws” and “that defendants [sic] application of its sexual harassment policy to other similarly situated female students who are sexually harassed by other students denies equal protection of the laws.” Williams’s first amended complaint also contained additional factual allegations. At the time Williams filed her first amended complaint, the Board of Regents, UGA, Adams, and Dooley had filed a motion to dismiss; only Thomas had filed an answer.

Federal Rule of Civil Procedure 15(a) states that “[a] party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served.” Fed.R.Civ.P. 15(a). For purposes of this Rule, a motion to dismiss is not a responsive pleading. Chilivis v. SEC, 673 F.2d 1205, 1209 (11th Cir.1982). If the case has more than one defendant, and not all have filed responsive pleadings, the plaintiff may amend the complaint as a matter of course with regard to those defendants that have yet to answer. Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir.2000).

Here, the clerk of the district court refused to file Williams’s first amended com*1292plaint until Williams obtained the consent of the opposing parties or leave of court. Williams then filed a motion seeking permission from the court to file her first amended complaint. Apparently believing that Williams could not amend her complaint as a matter of course, the district court analyzed her first amended complaint under another provision of Rule 15(a). The district court permitted Williams to amend her complaint to include additional factual allegations but rejected as futile her claims for declaratory judgments.

The district court erred in failing to allow Williams to file her first amended complaint as a matter of course. When Williams attempted to file her first amended complaint, Thomas was the only defendant who had filed a responsive pleading. Williams’s first amended complaint included additional claims against UGA, the Board of Regents, and UGAA, none of whom had filed a responsive pleading. Therefore, Williams had the right to amend her complaint as a matter of course.6

UGAA argues that we should affirm the district court’s holding as it applies to UGAA because the sexual harassment policy was not its policy and it lacks the authority to change the policy should the plaintiff prevail. We also reject this argument because it mimics the argument we just rejected. UGAA’s argument is simply that Williams’s amended complaint is futile, but as we stated, the district court lacked the discretion to make that determination at that time.

II. Whether the District Court Erred in Dismissing Williams’s Title IX Claims

Williams argues that the district court erred in dismissing her Title IX claims against UGA, the Board of Regents, and UGAA. The district court concluded that Williams’s claims failed because she was unable to meet the deliberate indifference requirement of the Title IX cause of action.

This case presents a factually distinct scenario from our and the Supreme Court’s precedents. In each of those cases, the defendant did not learn about the alleged harasser’s proclivities until the alleged harasser became a teacher or a student at the defendant’s school. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (student); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (teacher); Hawkins v. Sarasota County Sch. Bd., 322 F.3d 1279 (11th Cir.2003) (student). Here, however, Williams has alleged that Adams, Dooley, and Harrick knew about Cole’s past sexual misconduct when they recruited him and gained his admission to UGA. *1293Furthermore, UGA and UGAA knew about student-athletes’ suggestions that the athletic coaches should inform student-athletes about the applicable sexual harassment policy. Although, a Title IX recipient cannot be held liable for misconduct that occurred before the alleged harasser was affiliated with the recipient, as we explain later, Adams, Dooley, and Har-rick’s preexisting knowledge of Cole’s past sexual misconduct and the student-athletes’ suggestions are relevant when determining whether Williams alleged facts sufficient to survive the defendants’ motion to dismiss her Title IX complaint.

Title IX states, in pertinent part: “No person ... 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). Although Title IX does not expressly permit private enforcement suits, the Supreme Court has found an implied private right of action for individuals to enforce the mandates of Title IX. Cannon v. Univ. of Chi., 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). The Court also has held that private individuals can obtain monetary damages. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).

“ ‘[SJexual harassment’ is ‘discrimination’ in the school context under Title IX” and in certain narrow circumstances, a plaintiff may be able to recover for student-on-student harassment. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). A plaintiff seeking recovery for a violation of Title IX based on student-on-student harassment must prove four elements. First, the defendant must be a Title IX funding recipient. Floyd v. Waiters, 133 F.3d 786, 789 (11th Cir.), vacated on other grounds, 525 U.S. 802, 119 S.Ct. 33, 142 L.Ed.2d 25 (1998), reinstated, 171 F.3d 1264 (11th Cir.1999). Second, an “appropriate person” must have actual knowledge of the discrimination or harassment the plaintiff alleges occurred. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). “[A]n ‘appropriate person’ ... is, at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination.” Id. Third, a funding recipient is liable for student-on-student harassment only if “the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities.” Davis, 526 U.S. at 633, 119 S.Ct. 1661. In considering this element, we analyze the conduct of the funding recipient, not the alleged harasser; we do this to ensure that we hold the funding recipient liable only if the funding recipient’s deliberate indifference “subjected” the plaintiff to discrimination. Id. at 640-41, 119 S.Ct. 1661. Therefore, we will not hold a funding recipient liable solely because a person affiliated with the funding recipient discriminated against or harassed the plaintiff. Hawkins v. Sarasota County Sch. Bd., 322 F.3d 1279, 1284 (11th Cir.2003). Fourth, the discrimination must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Davis, 526 U.S. at 633, 119 S.Ct. 1661.

A. Title IX Claims Against the Board of Regents

As an initial matter, we hold that the district court properly dismissed Williams’s Title IX claim against the Board of Regents. Even if we construe Williams’s initial complaint and first amended complaint broadly and construe all the allegations in her favor, we cannot *1294find any allegations that an “appropriate person” with the Board of Regents had “actual knowledge of discrimination in the recipient’s programs and fail[ed] adequately to respond.” Gebser, 524 U.S. at 290, 118 S.Ct. 1989. Williams alleged that the Board of Regents appointed Adams and ceded substantial control over UGA to him. Adams, however, is not a member of the Board of Regents, and Williams failed to allege that Adams has authority to take action to change the policies of the Board of Regents. In the absence of any allegations that an appropriate person with the Board of Regents had actual knowledge of the acts that Williams alleges constitute discrimination, Williams’s Title IX claim against the Board of Regents cannot survive a 12(b)(6) motion to dismiss. United States v. $121,100 in U.S. Currency, 999 F.2d 1503, 1507 (11th Cir.1993) (holding that an appeals court can affirm for any reason supported by the record, even if not relied upon by the district court).

B. Title IX Claims Against UGA and UGAA

Turning to the Title IX claims against UGA and UGAA, for the reasons that follow, we hold that the district court erred in dismissing those claims.

1. Are UGA and UGAA Title IX Funding Recipients?

As to the first element, the parties agree that UGA is a funding recipient properly subject to Title IX liability. Although UGAA disputes that it is a funding recipient, we believe that Williams has presented sufficient facts at this stage to show that we should treat UGAA as a funding recipient. Here, Williams has alleged that UGA, a funding recipient, has ceded control over one of its programs, the athletic department, to UGAA and provided extensive funding to UGAA. Notably, the Court has not resolved whether this is sufficient to make an entity a funding recipient subject to Title IX liability. NCAA v. Smith, 525 U.S. 459, 470-71, 119 S.Ct. 924, 142 L.Ed.2d 929 (1999); see also Alston v. Va. High Sch. League, Inc., 144 F.Supp.2d 526, 531 (W.D.Va.1999). We are persuaded, however, by the analysis of the Western District of Michigan, noting that if we allowed funding recipients to cede control over their programs to indirect funding recipients but did not hold indirect funding recipients liable for Title IX violations, we would allow funding recipients to receive federal funds but avoid Title IX liability. Cmtys. for Equity v. Mich. High Sch. Athletic Ass’n, 80 F.Supp.2d 729, 733-34 (W.D.Mich.2000). We hold that Williams’s complaint sufficiently alleges this element, and we leave for the discovery process and the district court to determine whether to treat UGAA like a funding recipient.

2. Did an Appropriate Person Have Actual Knowledge of the Alleged Harassment or Discrimination?

As to the second element, we agree with Williams that an “appropriate person” at both UGA and UGAA had actual knowledge of the harassment. According to Williams, Adams, the President of UGA and UGAA, and Dooley, the Athletic Director of UGAA, had actual knowledge of the three forms of discrimination or harassment that Williams allegedly faced: (1) Cole’s recruitment and admission despite his past misconduct at several other schools; (2) the January 14, 2002 incident involving Cole, Brandon Williams, and Thomas; and (3) the discrimination that Williams faced as a result of UGA’s failure to respond adequately to her allegations against Cole, Brandon Williams, and Thomas. Additionally, Williams has sufficiently alleged — and Adams and Dooley do not dispute' — that Adams and Dooley had *1295authority to take corrective measures for UGA and UGAA to end the alleged discrimination. Thus, we must turn to the final two elements of a Title IX cause of action.

3. Were UGA and UGAA Deliberately Indifferent to the Alleged Discrimination ?

The Davis Court held that funding recipients are deliberately indifferent “only where the recipient’s response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648,119 S.Ct. 1661. As the defendants note, the Court also stated that district courts can identify a funding recipient’s “response as not ‘clearly unreasonable’ as a matter of law” and dispose of the claim on a motion to dismiss. Id. at 649, 119 S.Ct. 1661. Nevertheless, we believe that Williams has alleged sufficient facts in her complaint to demonstrate that UGA and UGAA were deliberately indifferent to the alleged discrimination and that the district court erred in concluding that the response was “not ‘clearly unreasonable’ as a matter of law.”

The factual distinctiveness of this case is most relevant when determining whether UGA and UGAA were deliberately indifferent to the alleged discrimination. In Gebser, the Supreme Court adopted the deliberate indifference standard for determining when a Title IX recipient would be liable for teacher-on-student harassment, Gebser, 524 U.S. at 290-91, 118 S.Ct. 1989, and in Davis, adopted the same standard for determining liability for student-on-student harassment. Davis, 526 U.S. at 633, 119 S.Ct. 1661. Prior to Gebser, the Court adopted the deliberate indifference standard when determining a municipality’s liability “for claims under § 1983 alleging that a municipality’s actions in failing to prevent a deprivation of federal rights was the cause of the violation.” Gebser, 524 U.S. at 291, 118 S.Ct. 1989 (citing Board of Comm’rs of Bryan County. v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). In adopting the deliberate indifference standard in Title IX cases that do not involve allegations of discrimination resulting from the Title IX recipient’s official policy, the Gebser Court noted that “comparable considerations” — namely, to impose liability only for official decisions by the defendant not to remedy the violation and not for the independent actions of employees — supported the use of the deliberate indifference standard in both Title IX and § 1983 municipality liability cases. Id. at 290-91,118 S.Ct. 1989.

In the municipality liability context, this circuit has held that a plaintiff can show deliberate indifference by proving that “the municipality knew of a need to ... supervise in a particular area and the municipality made a deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350-51 (11th Cir.1998). This precedent guides our decision here to the extent that we deal with a scenario that is factually distinct from Gebser, Davis, and Hawkins, but we stress that Title IX has important requirements for establishing deliberate indifference that cannot be scuttled simply because the plaintiff can meet the standard applicable to municipality liability cases.

First, Title IX requires that the plaintiff prove that the deliberate indifference occurred in response to discrimination she faced. Davis, 526 U.S. at 633, 119 S.Ct. 1661. Second, as Davis requires, a Title IX recipient “may not be liable for damages unless its deliberate indifference ‘subject^]’ its students to harassment.. That is, the deliberate indifference must, at a *1296minimum, ‘cause [students] to undergo’ harassment or ‘make them liable or vulnerable’ to it.” Id. at 644-45, 119 S.Ct. 1661 (citing Random House Dictionary of the English Language 1415 (1966)) (defining “subject” as “to cause to undergo the action of something specified; expose” or “to make liable or vulnerable; lay open; expose”); Webster’s Third New International Dictionary 2275 (1961) (defining “subject” as “to cause to undergo or submit to: make submit to a particular action or effect: EXPOSE”). Based on the Davis Court’s language, we hold that a Title IX plaintiff at the motion to dismiss stage must allege that the Title IX recipient’s deliberate indifference to the initial discrimination subjected the plaintiff to further discrimination.

As stated earlier, Adams, Dooley, and Harrick’s decision to recruit Cole and admit him through UGA’s special admission process was a form of discrimination that Williams suffered. According to Williams, Adams, Dooley, and Harrick knew at that point of the need to supervise Cole for two reasons. First, UGA and UGAA officials had received suggestions from student-athletes that UGA and UGAA ensure that athletic coaches inform their athletes about the sexual harassment policy applicable to student-athletes. Second, and more importantly, Williams alleges that Adams, Harrick, and Dooley knew about Cole’s past sexual misconduct. Nevertheless, even with its knowledge of the need to inform its student-athletes about the applicable sexual harassment policy and of Cole’s past sexual misconduct, UGA and UGAA failed to adequately supervise Cole. Williams’s allegations of UGA and UGAA’s failures are sufficient at this stage to establish deliberate indifference under our municipality liability precedent. But to satisfy our Title IX precedent, Williams must go further and sufficiently allege that the deliberate indifference subjected her to further discrimination.

Williams meets the Title IX standard through her allegations regarding the January 14 incident. UGA and UGAA’s failure to inform its student-athletes about the applicable sexual harassment policy and failure to supervise its student-athletes subjected Williams to this further harassment and caused Williams to be the victim of a conspiracy between Cole, Brandon Williams, and Thomas to sexually assault and rape her. By placing Cole in a student dormitory and failing to supervise him in any way or to inform him of their expectations of him under the applicable sexual harassment policy, UGA and UGAA substantially increased the risk faced by female students at UGA.

Furthermore, viewing the evidence in the light most favorable to Williams, UGA acted with deliberate indifference again when it responded to the January 14 incident.7 Although UGA Police seem to have performed a thorough investigation, UGA failed to provide an adequate response. Within forty-eight hours of the incident, UGA had a preliminary report providing details about the incident, and by April 2002, had a full report, including information about interviews with suspects and witnesses, from UGA Police. Nevertheless, UGA waited another eight months before conducting a disciplinary hearing to determine whether to sanction the alleged assailants. By that point, two of the alleged assailants no longer attended UGA. *1297The fact that the disciplinary panel ultimately decided not to sanction the alleged assailants is immaterial because it fails to explain why UGA waited almost eleven months to take corrective action, especially considering the fact that UGA Police’s report provided substantial evidence corroborating Williams’s version of the January 14 incident. To the extent that UGA argues that it waited so long because of the pending criminal trials against the assailants, this argument also fails because: (1) the pending criminal charges did not affect UGA’s ability to institute its own procedures; (2) the criminal charges were an ineffectual means to prevent future attacks at UGA while the charges were pending; and (3) the disciplinary proceedings were not instituted for another four months after Brandon Williams’s acquittal and the dismissal of charges against Cole and Thomas.

Once again, UGA’s deliberate indifference was followed by further discrimination, this time in the form of effectively denying Williams an opportunity to continue to attend UGA. Although Williams withdrew from UGA the day after the January 14 incident, we do not believe that at this stage her withdrawal should foreclose her argument that UGA continued to subject her to discrimination. In light of the harrowing ordeal that Williams faced on January 14, her decision to withdraw from UGA was reasonable and expected. Viewing the evidence in the light most favorable to Williams, UGA failed to take any precautions that would prevent future attacks from Cole, Thomas, Brandon Williams, or like-minded hooligans should Williams have decided to return to UGA, either by, for example, removing from student housing or suspending the alleged assailants, or implementing a more protective sexual harassment policy to deal with future incidents.8 Considering what had already occurred, UGA’s failure was inexplicable and discriminatory.

Even though “[a] university might not ... be expected to exercise the same degree of control over its students that a grade school would enjoy,” Davis, 526 U.S. at 649, 119 S.Ct. 1661