Court Says Duke's Response to Student Rape Was Not Deliberate Indifference

Last month a federal district court in North Carolina dismissed a Title IX claim against Duke University, which stemmed from the 2007 rape of a female student by a non-student that occurred at an off-campus party hosted by other students.  The plaintiff did not allege that the university should have protected her from the rape itself, but she did allege a number of examples of university conduct in the wake of the incident that contributed to an actionable hostile environment thereafter.  Some of those allegations relate to the academic accommodations the plaintiff did or did not receive, such as being denied in her request to complete the semester from home (she was granted a personal leave of absence instead) and that the university responded to her stated request to transfer to another university by informing her that she forfeited eligibility to re-apply to Duke at a later time (an apparently routine response, and one that was consistent with plaintiff's intentions anyway).  In what I would consider a noncontroversial aspect of the decision, the court rejected that these examples of Duke's conduct did not amount to deliberate indifference and serve as grounds for institutional liability. 

I do take issue, however, with the court's evaluation of Duke's conduct related to the investigation of the rape itself.  The plaintiff alleged that Duke turned the investigation over to the police, and that its decision not to re-open its own investigation was motivated by the fact that a large contributor to the university happened to be the person who owned the house where the party and rape took place.  The court reasoned that the absence of an investigation was not deliberate indifference because that itself did not cause further harm to the plaintiff, in the sense that she was not raped, assaulted, or harassed a second time because the university dropped the ball.  This seems like an overly-harsh application of the standard for institutional liability under Title IX, and one that conflicts with other decisions in similar cases.  For example, we blogged last year about a case against Arizona State, in which the plaintiff survived a motion to dismiss based on allegations both that the university failed to protect her from being raped at a fraternity house with a known reputation for sexual assault, AND, as in the Duke case, that university officials failed to properly investigate the rape once it had been reported.  To the second claim, it did not matter that the plaintiff in that case had not experienced a second instance of rape or harassment by the same fraternity due to the university's indifferent response.

It is also worth pointing out that Duke's response clearly defies the guidance provided by the Office for Civil Rights in its April 2011 Dear Colleague Letter, which states that it's not appropriate for universities to simply defer to police investigations.  It also states that "a single instance of rape is sufficiently severe to create a hostile environment" and defines a university's prospective obligation to take immediate action to "eliminate the [hostile environment], prevent its recurrence, and address its effects."  Granted, the standard for government agency enforcement is different from the standard courts use to determine institutional liability for damages, so Duke's failure to comply with the guidance letter does not have direct bearing on the court's decision.  But it is at least worth noting, however, that if Duke or any other university behaved today like Duke did in this case, OCR at least would have the grounds to bring an enforcement action.   

Decision: Rouse v. Duke University, 2012 WL 6681786 (M.D.N.C., Dec 21, 2012).