No. 22-1814 ___________________________

Jane Doe

Plaintiff - Appellee

v.

Board of Trustees of the Nebraska State Colleges, a Political Subdivision of the State of Nebraska

Defendant - Appellant

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19 Civil Rights and Survivor Advocacy Organizations

Amicus on Behalf of Appellee(s) ____________

Appeal from United States District Court for the District of Nebraska - Omaha ____________

Submitted: January 11, 2023 Filed: August 15, 2023 ____________ Before KELLY, ERICKSON, and STRAS, Circuit Judges. ____________ ERICKSON, Circuit Judge. The Board of Trustees of the Nebraska State Colleges (“NSCS”) appeals from a jury verdict finding it acted with deliberate indifference after Jane Doe (“Doe”) was sexually assaulted while attending Chadron State College (“Chadron”). We reverse and remand with directions that the district court enter judgment in favor of NSCS and vacate the award of Doe’s attorney fees. I. BACKGROUND

During the time frame at issue, Doe worked as a campus security officer in a complex with three linked dormitories (Andrews Hall, Kent Hall, and High Rise). In May 2016, Anthony Ige visited Doe while she was at work in Andrews Hall and stole her drink. Doe followed Ige to his room where Ige groped her and tried unsuccessfully to prevent her from leaving. Later in the evening Doe returned to Ige’s room, and he sexually assaulted her.

After the assault, Doe met with Robin Bila, a counselor at Chadron. Doe was circumspect during her conversation with Bila, reporting that she had an “incident” with Ige (which she preferred not to detail) and expressing concerns about sexually transmitted diseases and consent. Doe told Bila that she did not want to report Ige to the police. Bila provided information to Doe and complied with Doe’s wishes not to report the assault. Doe did not report the incident to anyone else.

Throughout the summer Ige taunted Doe, although Doe did not report this conduct to Chadron. In September 2016, Ige took Doe’s phone while she was working in Andrews Hall and headed to the basement. Doe followed, and Ige groped her in the stairway and sexually assaulted her in a bathroom. The next day, Doe missed an appointment with Bila. Bila texted Doe and then went to Doe’s apartment. When Doe came to the door, she was distressed and disheveled. Bila brought her to the nurse’s office. Doe told Bila that Ige had once again assaulted her. Bila informed Doe that she could file a Title IX complaint and that she could go to the hospital for medical treatment. Doe initially did not report Ige to the police, but she changed her

-2- mind, and the incident was reported. Doe met with a police officer who reviewed security footage with her.

Ige was never charged; however, Chadron initiated Title IX proceedings. Chadron’s Title IX policy includes two stages. In the first stage, the Title IX coordinator consults with NSCS’s general counsel and decides whether further investigation is warranted. If investigation is warranted, the Title IX coordinator determines, after the investigation, whether sexual misconduct occurred, and provides a recommendation to Chadron’s vice president responsible for student affairs, who has ten days to decide whether the second stage—disciplinary proceedings—should be initiated. At the time of this incident, Anne DeMersseman served as Chadron’s Title IX coordinator. Once DeMe