The University of California Regents moved to dismiss claims filed by three students who alleged that UC Berkeley’s delayed and insufficient response to their reports of sexual assault violated Title IX. The court denied the motion with respect to one student’s claims, allowing her case to proceed to the next stage of litigation. The motion was granted with respect to the other two students, but they were granted permission to amend their complaints to attempt to overcome the insufficient pleading that lead to the dismissal.

In all three matters, the court decided that the university could only be liable, if at all, for harm to the plaintiff that occurred after the reported incidents of sexual assault, not for the sexual assault itself. This is because institutional liability under Title IX requires that university officials have actual notice in advance of the risk of sexual violence, and in none of the three cases did the plaintiffs allege that the university knew beforehand that the assailant in question posed a threat. Yet, the university could still potentially be liable for harm suffered by the plaintiff caused by the university’s failure to adequately respond to their reports of sexual assault. For this to occur, the plaintiff must first allege that they university’s response amounted to deliberate indifference. Also, though the plaintiff need not allege that such indifference caused them to be re-victimized, they do need to allege that the university’s response impaired their education opportunities in some way, such as by leaving them vulnerable to further harassment or assault.

The first of the three plaintiffs reported to university officials that she was sexually assaulted by a fellow student on a club trip. She alleges in her complaint that the university did not contact her about her complaint for over 8 months and did not discipline the student with anything other than probation despite having found him responsible. However, she did not allege that the university’s failure to discipline the student rendered her vulnerability to further harassment. For this reason, the court dismissed her claim, but, as noted above, will allow her to amend the complaint. The court helpfully identified allegations that would be sufficient, including claims that she was made uncomfortable by subsequent encounters with the assailant, or that she had to alter her behavior out of fear of running into him.

The court also determined that the second plaintiff’s complaint failed, but for a different reason. This plaintiff claimed that the university was deliberately indifferent in its response to learning of her report that she was raped by another student but did not include details to establish the purportedly insufficient length of time taken by the university to respond to her complaint. She too may amend her complaint to include these details.

The third plaintiff alleged that she was sexually assaulted several times while working as an assistant to a graduate student conducting research in Alaska. The perpetrator was someone affiliated with the research center that hosts a university-affiliated academic program. Moreover, he is someone who regularly guest lectures on campus. The plaintiff alleged that she reported the incidents to the university officials who failed to undertake any kind of investigation or other response. As a result, she was forced to drop those classes in which she might encounter him as a guest lecturer. The court deemed these allegations sufficient to state claim of Title IX liability, so the university’s motion to dismiss was denied. The case will now proceed to the discovery phase of litigation, in which the plaintiff will have the opportunity to gather evidence needed to prove the allegations contained in her complaint.

Karasek v. Regents of the University of California, 2015 WL 8527338 (N.D. Cal. Dec. 11, 2015).