Education Programs and Activities Transcend Enrollment, Especially if Marketed as Such

By: Mandy Hambleton, Director of Content Development, TNG Consulting

Doe v. University of Kentucky, No. 19-5126 (6th Cir. 2020)


Doe filed an initial suit against the University of Kentucky (“University”) in October 2015 and subsequently filed multiple amended complaints asserting that the University responded to Doe’s alleged sexual assault by a University student with deliberate indifference in October 2014 in violation of Title IX. The District Court granted summary judgment for the University and concluded that Doe lacked standing because she “failed to show she was either a [University] student or participating in any of the [University]’s educational programs of activities,” at the time of the alleged sexual assault. Doe appealed the District Court’s decision.


  • Doe attended Bluegrass Community and Technical College (“Community College”), which at the time of the alleged sexual assault, was “an entity that was wholly owned, governed, and managed by the University.”
  • Students who chose to live on campus at the Community College, including Doe, were housed in University residence halls.
  • Both parties agreed that “living on campus contributes to learning and leads to more academic success.”
  • Doe paid various fees to the University for access to facilities, services, and activities.
  • Doe asserted that she planned to enroll at the University in the future, and the University offered two programs which allowed Community College students to transfer to or earn credits toward a degree at the University.
  • Doe alleged that a University student sexually assaulted her while she was living in University-owned housing on October 2, 2014.
  • Doe reported the sexual assault to both University police, and the University investigated the allegations.
  • Following the investigation, the University held four different disciplinary hearings.
  • The respondent was found responsible at each of the first three disciplinary hearings. Each of those determinations was subsequently appealed and overturned by the University’s appeal board for procedural defects.
  • The responding student was found not responsible as a result of the fourth disciplinary hearing.
  • Doe discontinued her enrollment and moved out of University housing on October 15, 2014.


  • Citing Davis and the Sixth Circuit’s own 2019 decision in Kollaritsch, the Court emphasized that “previous courts have spoken in terms of student-on-student sexual harassment.”
  • The District Court found that Doe did not have standing because she was not a “student” at the University. The Circuit Court disagreed.
  • Although Doe was not enrolled in University courses, she was living in University housing and was also paying student fees for access to various University facilities, services, and activities.
  • In its reversal, the Court cited (1) the University’s own written materials related to the educational nature and benefits of residing in student housing as espoused by the Office of Residence Life, and (2) Kentucky’s statutory arrangement for facilitating the transfer of students from community colleges to public universities, thus supporting Doe’s assertion of an intent to transfer to the University as realistic.
  • Further, citing Horner, the Court stated, “Congress has made clear its intent to extend the scope of Title IX’s equal opportunity obligations to the furthest reaches of an institution’s programs. We will not defeat that purpose by recognizing artificial distinctions in the structure or operation of an institution.”


  • The 2020 Title IX regulations specify that “a complainant must be participating in, or attempting to participate in, the recipient’s education program or activity at the time of filing a formal complaint.” The preamble for the regulations explains by way of example, “a complainant who has left school because of sexual harassment but expresses a desire to re-enroll if the recipient appropriately responds to the sexual harassment, is ‘attempting to participate’ in the recipient’s education program or activity.” Thus, all recipients (schools and colleges that receive federal funding) must be thorough in their initial assessment of complaints to determine the complainant’s relationship to the recipient at the time of the filing of the complaint. Attempting to split hairs or rely on technicalities about who “owns” or “operates” a specific facility or function of the recipient may not absolve a recipient of its responsibilities under Title IX.
  • Had Doe filed her complaint after withdrawing from her courses at the Community College and moving out of University housing, it is reasonable to believe, and likely that a court would find, that Doe was still “attempting to participate” in the University’s education program or activity if she had not enrolled at another institution prior to signing a formal complaint, and evinced her intention to enroll eventually at the University.