Eighth Circuit Concludes that College is Not Liable for "Single Incident" of Sexual Assault

Recently, the Eight Circuit affirmed the dismissal of claims for institutional liability arising from a single incident of sexual assault. The plaintiff, a high school student, visited Culver-Stockton College as a potential recruit of the women's soccer program. While there, she attended a party at a campus fraternity. She alleges that she was served alcohol, and then sexually and physically assaulted by a fraternity brother while she was intoxicated. She reported the incident to campus authorities, but they did not engage in any kind of disciplinary response against the perpetrator.  A lower court dismissed the plaintiff's lawsuit against the college, a decision  that the Eighth Circuit recently affirmed on appeal.

Alarmingly, the Eight Circuit concluded that the reason the college was not liable for its failure to investigate and discipline the perpetrator was that the plaintiff alleged "only a single incident of sexual assault." This is  terrible mistake, and based on a strained reading of the Supreme Court's decision in Davis, in which the Court literally stated that harassment, to be actionable, had to be "severe, pervasive, and objectively offensive."  However, despite the missing "or" it is clear in the context of the decision overall, and especially in the context of the sexual harassment doctrine overall, that the Court did not mean to preclude liability based on a single-incident of misconduct that, like most forms of sexual assault, is properly considered "severe."

The Eighth Circuit opinion quotes the following sentence from the Supreme Court's decision in Davis as support for its conclusion:

"Although, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an effect, we think it unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment."

But the context of this sentence is important to understanding that the Court was not requiring multiple incidents of rape as a precursor to institutional liability.  It comes in the middle of the section of the opinion where the majority is refuting the dissent's concern that the opinion makes schools liable for things like teasing and name-calling. That is the "peer harassment" the Court means when it says "such behavior" does not rise to requisite level of severity to create the potential for institutional liability based on a single incident. Read in its proper context, this sentence does not require that more severe conduct such as sexual assault* occur multiple times in order to create the possibility of institutional liability.  Other lower courts have had no problem interpreting the Davis decision to mean exactly that. Some have said outright that a single incident of rape is sufficiently severe, and countless others have inferred it by concluding that an institution is potentially liable in cases involving a single incident of sexual assault or rape.

I actually think that the court could have provided, or at least entertained, a more sensible reason to support the same conclusion that the college is not liable, based on the fact that the plaintiff was not a student of the college. For liability to exist under Title IX in cases of peer harassment, it must be the case that the institution's indifference has the effect of depriving or impairing the plaintiff's educational opportunity provided by the institution in question. If this case had been about the college's pre-assault indifference (i.e., if the plaintiff had alleged that some prior incident, such as an incident involving the same fraternity, the same perpetrator, or other prospective student-athletes as victims, put the institution on notice of a substantial risk of sexual assault like the plaintiff's) then the fact that the plaintiff was sexually assaulted while participating in a recruitment program provided by the college would, I think, qualify.  But this is not a case about an institution's pre-assault indifference, it is only about the damages to the plaintiff that the college caused to the plaintiff by failing to investigate the incident after it occurred. I have no doubt that this inaction was distressing to the plaintiff, but since she was not a student at the college and was no longer participating in its recruiting program for prospective student-athletes, it is difficult to see how this harm interfered with her ability to participate in the educational opportunities provided to her by the college. (To be clear, however, this analysis only pertains to institutional liability for money damages. OCR has broader enforcement and can properly interpret Title IX to require institutions to address the harm to non-students in these circumstances.)

Even though there is a basis for reaching the same conclusion, I hope that an en banc panel reconsiders this opinion and corrects the erroneous "single incident" analysis -- before it creates confusion in the lower courts.

Decision: K.T. v. Culver-Stockton College, No. 16-3617 (8th Cir. 2017).

*Granted, depending on how broadly the institution defines "sexual assault," it is possible that not everything in this category should be considered "severe." But if that's the case here, the proper disposition is for a jury to decide, not for the case to be dismissed prior to such fact-finding.