Eleventh Circuit Again Addresses UGA Gang Rape Case

Tiffany Williams alleges that in 2002, she was gang-raped by several members of the University of Georgia football and basketball teams. The athletes, Tony Cole, Brandon Williams and Steven Thomas, were indicted but not convicted of criminal charges. While they were suspended from their respective teams (after or near the end of their college careers), the university did not levy other sanctions against them because by the time judicial hearings were held, the athletes were no longer enrolled.

Williams brought charges under Title IX against the University of Georgia, the University of Georgia Athletic Association, and a number of individuals including the University President, the UGAA President, and the coach of the men's basketball team. A district court granted the individual and institutional defendants' motion to dismiss. But, last year, a three-judge panel of the Eleventh Circuit Court of Appeals partially reversed the district court, ordering it to reconsider plaintiff's Title IX claims against UGA and the UGAA.

In a rather unusual move, the same panel decided Friday to "vacate[] [this] prior opinion in its entirety" and substitute a new opinion in its place. By way of explanation, the panel says, "While the Court reaches the same result, we address certain claims more fully."

The newly substituted decision indeed reaches the same result and remands the Title IX claims against UGA and the UGAA to the district court. But the decision puts greater emphasis on the legal test for liability based on deliberate indifference. Interpreting Supreme Court decisions in Gebser and Davis, that panel states that institutional liability under Title IX for acts of sexual harassment requires (a) an act of discrimination against the plaintiff, (b) to which the University responded with deliberate indifference, which (c) exposed the plaintiff to further discrimination. The court clarifies that, if proven at trial, the fact that the university decided to recruit Cole (whom Williams alleges had orchestrated the rape) even though it had knowledge of his prior sexual misconduct constitutes an initial act of discrimination against Williams. Next, the fact that the University had not responded to suggestions by student-athletes that the UGAA needed to do a better job informing all student athletes of the sexual harassment policy would constitute deliberate indifference to that initial act of discrimination. Finally, this indifference exposed Williams to further discrimination, the alleged rape incident itself.

The court further clarifies that the rape incident itself is also (a) an act of discrimination, to which (b) the university responded with indifference, that (c) resulted in more discrimination.
The court agreed that the university's decision to wait until the alleged rapists were no longer enrolled to conduct a judicial hearing was an inadequate and indifferent response to the allegations of rape. This resulted in further discrimination against Williams because it effectively denied her an opportunity to continue to attend UGA.

As the newly-clarified decision emphasizes, the fact pattern in this case is not the typical deliberate indifference scenario because pattern of discrimination-indifference-discrimination occurs twice. I think the court probably felt it was important to clarify the separate liability theories in case Williams is unable to prove some of the alleged facts at trial. In that case, the trial court would still have to consider whether the other facts alleged established liability on their own.