UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 23-2939 ____________

ROSE MCAVOY,

Appellant

v.

DICKINSON COLLEGE ____________

Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No. 1-20-cv-01327) District Judge: Honorable David S. Cercone ____________

Argued: June 4, 2024 ____________

Before: CHAGARES, Chief Judge, CHUNG and FISHER, Circuit Judges

(Filed: August 16, 2024) Andrew T. Miltenberg Gabrielle M. Vinci [ARGUED] Nesenoff & Miltenberg 363 7th Avenue, 5th Floor New York, NY 10001 Counsel for Appellant Kimberly M. Colonna [ARGUED] McNees Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17101 Counsel for Appellee ____________

OPINION OF THE COURT ____________ CHAGARES, Chief Judge.

Rose McAvoy claims that Dickinson College (“Dickinson”) violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (“Title IX”), and breached its contract with her by failing to respond to and investigate her sexual assault claim in a timely and adequate manner. The District Court granted Dickinson’s motion for summary judgment, holding that McAvoy failed to produce sufficient evidence that Dickinson acted with deliberate indifference to her assault under Title IX and did not produce sufficient evidence of breach of contract damages. For the reasons that

2 follow, we will affirm.

I.

The highly fact-intensive nature of the claims in this appeal necessitates a detailed discussion of the factual background. Our description of the assault at the center of this case is taken from McAvoy’s statement to Dickinson, which is quoted verbatim in Dickinson’s final report of the incident.

A.

Dickinson is a private liberal arts college of about 2,100 students located in Carlisle, Pennsylvania.1 McAvoy began her studies as an undergraduate student at Dickinson in fall 2015. TS2 began at Dickinson two years later, in 2017. The two became friends through a shared interest in a cappella singing and theater.

On October 30, 2017, McAvoy and TS attended an evening school event together, then went for a walk and entered an empty room in a Dickinson building. The two began kissing and “making out.” Appendix (“App.”) 205. McAvoy initially reciprocated but became increasingly nervous and unsure, as TS lay on top of her. She asked him to stop and he

1 See Quick Facts, Dickinson College, https://www.dickinson.edu/homepage/1657/quick_facts [https://perma.cc/HRLR-W2P2] (last visited July 11, 2024). 2 Because TS did not participate in the appeal or in the District Court proceedings, we will identify him by initials only throughout this opinion.

3 did so; the two then lay on the floor together, cuddling and talking.

McAvoy tried to express to TS that she did not want to continue being sexually intimate. Although she thought she had made herself understood, the making out resumed and TS placed his hand on her breast. McAvoy removed his hand, but he continued to kiss her, then moved back on top of her and put his hand inside her shirt.

At some point, McAvoy stopped reciprocating. She kept trying to move TS’s hand away, but he lifted her shirt up anyway. McAvoy began to panic and felt like she couldn’t breathe. She started to try to say his name and something along the lines of “can we stop”; she eventually said “can we —” and TS stopped and she got out from underneath him.

McAvoy told TS that she liked him bu