McKAY, Circuit Judge.
Plaintiffs, Ms. Angela Morse and Ms. Stacy Handley, filed an action against Defendants, the Regents of the University of Colorado [University], a recipient of Title IX federal funding, claiming that while they were enrolled as students in the University of Colorado's Reserve Officer Training Corps [ROTC] program they were subjected to acts of gender bias and harassment which created a sexually hostile educational environment. They allege that the acts creating a sexually hostile environment were committed by a fellow student who acted in his capacity as a higher-ranking cadet in the ROTC program. Plaintiffs also allege that when they reported the harassment to a superior ROTC officer he retaliated against them by denying them further opportunities in the ROTC program, and by subjecting them to other acts of sexual harassment. Plaintiffs assert that they reported the harassment to University representatives and that the University did not adequately respond to the allegations of harassment.
Plaintiffs assert that the facts alleged establish valid claims against the University for violation of Title IX of the Educational Amendments of 1972, codified at 20 U.S.C. §§ 1681-1688. They also claim that the University denied their due process rights in violation of 42 U.S.C. § 1983, conspired to deny Plaintiffs' civil rights in violation of 42 U.S.C. § 1985, and violated state law by breaching University equal-employment and affirmative-action policies.
The University replied to Plaintiffs' complaint with a motion to dismiss, arguing that it is not liable for the acts of members of the ROTC because they are not agents of the University, i.e., the University does not exercise control over them. See Appellee's Br. at 9. Plaintiffs filed a brief in response to the motion to dismiss, attaching affidavits and other documents to support their contention that the University was liable for the harassment. See Appellants' App. at 9. The district court granted the University's motion to dismiss the Title IX claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the failure to state a claim upon which relief can be granted, and denied Plaintiffs' motion to amend their complaint to include the United States Department of the Army as a defendant. See id. at 136-42. The district court dismissed the state breach-of-policy claim and the section 1983 claim for lack of jurisdiction based on Eleventh Amendment immunity. See id. at 141-42. The district court dismissed Plaintiffs' section 1985 claim because the University is not considered a "person" for the purposes of that section. See id. at 142.
We review the grant of a motion to dismiss for failure to state a claim de novo. See Seamons v. Snow, 84 F.3d 1226, 1231 (10th Cir.1996). In reviewing a decision on a motion to dismiss, we accept the factual allegations in the complaint as true and we resolve all reasonable inferences in the plaintiff's
The district court analyzed Plaintiffs' Title IX claim under the test stated by this court in Seamons v. Snow. Seamons held that to state a Title IX claim, a plaintiff must establish:
See 84 F.3d at 1232. In dismissing Plaintiffs' Title IX action, the district court adopted the view that institutional liability under Title IX is governed by agency principles. The district court dismissed the claim because it concluded that Plaintiffs had not alleged facts showing how members of the ROTC program were agents of the University, and it believed that any such allegation "would likely be inaccurate." Appellants' App. at 139.
In its order dismissing the case, the district court does not mention the documents submitted by Plaintiffs to support their assertion that the University is liable for their harm. Although the district court did not explicitly exclude the affidavits and documents, it appears that the court did not consider them in reaching its decision. If, in the process of reaching its decision, the court did consider the University's contention that it had no authority over the alleged harassers, the court should also have examined the documents filed by Plaintiffs in response to that argument. Because the district court clearly ignored Plaintiffs' responsive documents and decided the case pursuant to Rule 12(b)(6) rather than converting the University's motion into a Rule 56 motion, we limit our review to an examination of the pleadings, and the reasonable inferences to be drawn therefrom, to determine if they have stated a cause of action under Title IX. See Childers v. Independent Sch. Dist. No. 1, 676 F.2d 1338, 1340 (10th Cir.1982).
The Supreme Court clarified Title IX law in Gebser v. Lago Vista Independent School District, ___ U.S. ___, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). Gebser clearly rejects the theories of vicarious liability and agency liability as bases for institutional liability in Title IX teacher-student sexual harassment cases. See id. 118 S.Ct. at 1997 ("[W]e conclude that it would `frustrate the purposes' of Title IX to permit a damages recovery against a school district for a teacher's sexual harassment of a student based on principles of respondeat superior ...."); see also Smith v. Metropolitan Sch. Dist. Perry Township, 128 F.3d 1014, 1027 (7th Cir.1997) (rejecting agency standard of institutional liability in Title IX cases), cert. denied, ___ U.S. ___, 118 S.Ct. 2367, 141 L.Ed.2d 736 (1998) (No. 97-1541). After rejecting the agency theory of institutional liability, the Court held that a school district is liable under Title IX for sexual harassment perpetrated by a teacher only when an official of the district has actual notice of the misconduct. See Gebser, ___ U.S. at ___ - ___, 118 S.Ct. at 1999-2000. An educational institution's liability is predicated on its "deliberate indifference" to notice of misconduct in an institutional program. Gebser, ___ U.S. at ___, 118 S.Ct. at 1999.
Under the holding in Gebser, plaintiffs may proceed on a claim under Title IX if they have sufficiently alleged that: (1) they were subjected to quid pro quo sexual harassment or subjected to a sexually hostile environment; (2) they brought the situation to the attention of an official at the educational
In context and read as a whole, Plaintiffs' pleadings state a Title IX claim. The conclusion that the University is liable for the acts of two ROTC members is reasonably inferred from the pleadings in part because the complaint properly names the University, a Title IX recipient, as the party liable for Plaintiffs' harm. See, e.g., Floyd v. Waiters, 133 F.3d 786, 789 (11th Cir.1998), petition for cert. filed (U.S. Apr. 20, 1998) (No. 97-8906). Construing the complaint in favor of Plaintiffs, see Seamons, 84 F.3d at 1231-32, the pleadings allege that the ROTC program is a University-sanctioned program and that a fellow student acting with authority bestowed by that program and an ROTC officer responsible for administering that program committed acts forbidden by Title IX. Plaintiffs allege that they reported the harassment to a University dean and to the University Affirmative Action Officer, either or both of whom presumably would have the "authority to address the alleged discrimination and to institute corrective measures on the [University's] behalf." Gebser, ___ U.S. at ___, 118 S.Ct. at 1999. The complaint may reasonably be read to assert that the University failed to exercise any authority that it possessed over actors within the ROTC "course of study" by not taking "any remedial action" in response to notice of alleged sexual harassment within a University program.
Id. (internal citation omitted). To reach the conclusion that the principles articulated in Zentgraf do not apply to the University's ROTC program, we would have to examine the structural composition of the University's ROTC program, a factual inquiry not appropriate at this stage of the proceedings.