Here is a summary of recent judicial decisions in cases alleging institutional liability for sexual assault under Title IX.
A student at the University of California at Santa Barbara was drugged at an off-campus party and then raped by a fellow student. Three months later, she withdrew from school after being put on academic probation. She sued the institution under Title IX, first challenging its failure to conduct an investigation or disciplinary proceedings and for making statements capable of dissuading her from seeking such recourse. For example, one campus official told that plaintiff that university investigation might interfere with an ongoing criminal one. Confusingly, the court concluded that the university’s “delay” does not constitute deliberate indifference giving rise to Title IX liability. Calling it a delay suggests that the university eventually got around to conducting an investigation though it did not. Nevertheless the court interpreted the university’s conduct to be possibly negligent, but not clearly unreasonable if it really thought that conducting it own investigation would hamper law enforcement.
The court also rejected the plaintiff’s argument that the university’s failure to provide her with any housing or academic accommodations was deliberate indifference. The plaintiff argued that, “”[t]he mere presence on campus, without any restrictions, of the student that sexually assaulted [her]” placed her in a sexually hostile environment” and did not try to help her reduce her courseload so that she could stay academic standing. But the plaintiff’s claims fail because did specifically ask for accommodations. Therefore, the university’s failure to offer them, while possibly negligent, was not “deliberately indifferent.”
This decision seems to me to set the bar for deliberate indifference unduly high. The university is alleged to have done literally nothing in response to the plaintiff’s report of sexual assault. Doing nothing ought to at least create the possibility of a deliberate indifference finding by a jury. Additionally, this case starkly illustrates the difference between judicial and administrative standards for Title IX liability. So much of what the plaintiff alleges directly contravenes the Department of Education’s requirements in the Dear Colleague Letter. But as the court itself (correctly) reminds, violations of Title IX regulations do not necessarily give rise to liability for damages because the standards courts used for that purpose is a much stricter, deliberate indifference standard.
Moore v. Regents of the Univ. of California, 2016 WL 2961984 (N.D. Cal. May 23, 2016)
The University of Tennessee is being sued by a group of plaintiffs who allege that while they were students, they were sexually assaulted by male student athletes on the basketball and football teams. They claim that the university is liable for the sexual assaults that athletes committed against them because the university’s indifference to a known pattern of sexual misconduct by athletes put them at risk of being assaulted as well. Additionally, they claim that the university is liable under Title IX for mishandling their own reports of sexual assault, and one plaintiff alleges that she was retaliated against for participating in the investigation of one of the other plaintiff’s assaults. Last month, the federal court in Tennessee substantially denied the university’s motion to dismiss these claims. The court was not persuaded by the university’s argument that the plaintiffs did not allege that the university had actual notice of past sexual misconduct by their assailants in particular. Here the university is not alleged to have ignored a general risk that some students will harass some students, which would not, of course, be actionable. Instead, the complaint alleges that the university was “put on notice of a specific and concrete pattern of an ‘inordinate’ number of sexual assault allegations against members of specific teams within the UT Athletic Department and also allege that such a pattern may be directly related to the culture within the Athletic Department.” This is an adequate allegation of notice and deliberate indifference, according to the court. In fact, it goes beyond “indifference” and alleges that the university’s own actions in facilitating a culture of sexual assault are to blame for their assaults, which is a basis for potential liability in itself.
Doe v. University of Tennessee, 2016 WL 2595795 (M.D. Tenn. May 3, 2016)
In 1999, the plaintiff was a freshman at Oregon State when she was drugged and raped at a party in an off-campus apartment that was connected to members of the football team. The plaintiff later learned that her assailant was not a student, but the cousin of a football player named Calvin Carlyle, who was visiting from out of town. Fifteen years later, the plaintiff discovered that Carlyle himself had raped another female student in the same apartment one year prior to her own rape, and that he had merely been suspended from one game as a result. The plaintiff then sued Oregon State, alleging that the university was liable for her rape committed by the cousin because it had been deliberate indifferent to the first rape committed by Carlyle. The court dismissed this claim, however, noting that the plaintiff’s assailant (the cousin) was not a student and that the assault did not take place on campus. Given both of those factors, the university did not have power over the situation and cannot therefore be liable. The plaintiff also alleged that the university was deliberately indifferent to her own reported rape, but this claim was barred by the statute of limitations, which in Oregon is two years.
Samuelson v. Oregon State University, 2016 WL 727162 (D. Or. Feb. 22, 2016).