In two separate cases, courts recently rejected universities' efforts to dismiss Title IX lawsuits early in the litigation:
First, a federal court in Virginia refused to dismiss a Title IX lawsuit (which we earlier blogged about here) against James Madison University to challenge the university's response to reports by the plaintiff that she had been sexually assaulted by fellow students on a spring break trip to Florida, who then posted a video of the incident. The court agreed that the plaintiff's allegation that the university's response was deliberately indifferent because it refused to address the video unless the plaintiff filed a formal complaint was a sufficient basis for liability. Waiting for a student to file formal complaint to take any action might be an appropriate response in circumstances where the allegations are vague or uncertain, but here, there was no such uncertainty due to the video evidence. Additionally, the plaintiff's harassment was ongoing as long as the video was still being disseminated. For these reasons, a jury could view the university's failure to take action about the video without a formal complaint as deliberate indifference. Having so determined, the court did not need to consider whether the university's decision to punish the assailants with "expulsion upon graduation" was also an example of deliberate indifference. But I suspect this issue will be relevant as the litigation in this case continues. Of note, OCR is also investigating possible Title IX violations arising out of this same matter. Butters v. James Madison University, 2015 WL 6825420 (W.D. Va. Nov. 6 2015).
In the second case, UCLA failed to convince a federal court to dismiss a case filed by a female graduate student who alleged the university failed to adequately respond to reports of sexual harassment by a male professor. UCLA argued that the student was not subject to any further harassment after she had complained about the professor (the plaintiff disputed this). However, court noted, the plaintiff is not required to show further harassment as a way of demonstrating the university's deliberate indifference. "The Court agrees with plaintiffs that placing undue emphasis on whether further harassment actually occurred to gauge the responsiveness of an educational institution would penalize a sexual harassment victim who takes steps to avoid the offending environment in which she may again encounter the harasser." Takla v. Regents of the Univ. of California, 2015 WL 6755190 (C.D. Cal. Nov. 2, 2015).