A federal court in Kansas decided earlier this month that Kansas State University potentially violated Title IX when it failed to investigate two students' reports of having been raped while attending parties at off-campus fraternity houses. The university argued in support of its motion to dismiss two plaintiffs' separate lawsuits that the fraternity house was not a "program or activity" of the university to which Title IX applies. But the court disagreed, distinguishing a fraternity house from other non-university housing or settings on the basis of the "substantial control" the university exhibits over the fraternity. In particular, the university regulates fraternities' conduct and authorizes its parties. In fact, in this case, the university used one of the plaintiff's report of rape as grounds to penalize the fraternity for alcohol violations. Other indicia of the nexus of control include the university-hired staff members who provide service and support to fraternities and sororities, and the university's recognition of fraternities and sororities on its website as student organizations. Notably, the court reached its decision that Title IX extends to sexual misconduct taking place at off-campus fraternity houses without extending any deference to OCR's 2011 Dear Colleague Letter, which also interprets Title IX in similar fashion. So even if OCR changes or withdraws the Dear Colleague Letter, such potential future changes in OCR policy will not affect this aspect of the ruling.
These decisions are only preliminary ones that allow the cases to proceed to the discovery phase of litigation. The plaintiffs will still have to prove that the university had notice of their rapes and responded with deliberate indifference. However, it seems undisputed that each notified the university and the university did not respond at all. Maybe the university will try to appeal the lower court's decisions not to dismiss, but otherwise my prediction is that the parties settle.
The two decisions are:
Weckhorst v. Kansas State Univ., No. 16-CV-2255-JAR-GEB, 2017 WL 980456 (D. Kan. Mar. 14, 2017).
Farmer v. Kansas State Univ., No. 16-CV-2256-JAR-GEB, 2017 WL 980460 (D. Kan. Mar. 14, 2017)
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