What Is an Institution's Title IX Responsibility When Assailant's Victim Attends Another School?

Two items on my radar this week both address the question of an institution's legal obligations under Title IX to discipline one of its own students for sexual misconduct directed at a student of another university.

First, a recent decision of the First Circuit Court of Appeals affirmed the dismissal of a former Providence College student's case against Brown University, in which she challenged the sufficiency of Brown's response to her report of having been sexually assaulted by three Brown football players. Title IX requires plaintiffs who assert a claim for money damages on the deliberate indifference theory to prove “substantial interference with her access to educational opportunities or benefits.” The plaintiff argued that she satisfied this requirement because she withdrew from Providence College as a result of the sexual assault and Brown's allegedly insufficient response. But, the appellate court concluded that the fact she was not a student at Brown disqualified her from satisfying this requirement. The court read the Supreme Court's prior Title IX caselaw to require that the plaintiff must suffer sex discrimination "while participating, or at least attempting to participate, in the funding recipient's education program or activity." This nexus is "logical" according to the court because the "'discrimination' that Title IX prohibits is not the acts of sexual assault or sexual harassment in and of themselves, but rather the differential treatment by a funding recipient of persons of a particular sex who are taking part or trying to take part in its educational program or activity but are suffering acts of sexual harassment or assault that undermine their educational experience."  Doe v. Brown Univ., 2018 WL 3454469 (1st Cir. July 18, 2018)

It is not surprising that a court would limit a university's liability to a student seeking to impose liability for money damages. Title IX's status as a Spending Clause statute means that a university's primary compliance obligation is owed to the government, in exchange for federal funding. Students who are harmed as a result of an institution's Title IX violations are considered third-party beneficiaries of this arrangement. According to the Supreme Court, universities aren't necessarily on notice of the fact that taking government money makes them liable for damages to third parties, so it has limited such liability to situations in which the university intended the harm (or its deemed equivalent, deliberate indifference). For this reason, there are tougher liability standards in court cases than in situations where the government is enforcing Title IX.  In this spirit, I can understand why a court would not want to make a university financially liable for any sexual misconduct committed by its student anywhere in the world that happens to affect the victim's education. But, just because a university isn't liable financially to another university's student, doesn't mean that the government can't impose that requirement as part of its enforcement authority. 

And maybe, the government is considering doing just that?  According to this story in Inside Higher Education, OCR is investigating a case about a student from University of Tennessee-Chattanooga, who was sexually assaulted, off campus, by a student from University of Alabama-Birmingham. The victim filed a complaint with the assailant's institution, which found that the assailant had twice had nonconsensual sex with the victim. But when the assailant appealed, his two-year suspension was reduced to one year. When the victim appealed that decision, UAB reversed the original decision in its entirety, on grounds that it lacked jurisdiction to punish a student for off-campus misconduct that did not create adverse affects or a hostile environment for someone on campus.The fact that OCR is investigating this matter suggests that it thinks its at least plausible that the victim's complaint adequately alleges a Title IX violation by UAB. If that is indeed how OCR resolves the matter, universities might have a Title IX responsibility to adequately discipline their own students for sexual harassment and sexual misconduct against other students -- though its failure to do so could only be addressed by government enforcement rather than in the courts (at least in jurisdictions that follow the First Circuit's approach).

Two other points that are worth mentioning about these kinds of cases: there is little doubt that a university *could,* if it wanted to, have a code of conduct that prohibits its students from engaging in misconduct off campus that results in harm to other people who are not students of the university. The cases in this post are addressing whether a university *must* take jurisdiction over the subset of misconduct that falls under Title IX, sexual harassment and sexual assault.  The second point that's clear is that the victim's student's university has a Title IX obligation to respond to the threat of sexual misconduct that is posed to its own student, even if the source of that threat is another university's student. However, a university does not have power to discipline another university's student, so often the best it can do is bar the offending student from campus (which is apparently what UTC did).   

Campus Sexual Harassment, Sexual Assault Litigation Roundup

In two recent judicial decisions, courts refused to grant university's motions to dismiss Title IX cases in which the plaintiff alleged that the university did not adequately respond to his or her report of sexual harassment or assault.

• In the first case, a federal court in Illinois allowed a male medical student to continue to litigate his case against Northwestern University, in which he alleges that the university did not adequately respond to his report of sexual harassment by a male professor.  The professor, the plaintiff alleges, made suggestive comments and retaliated against the plaintiff in various ways for refusing his sexual advances. The court agreed that the allegations in the plaintiff's complaint satisfy the legal standard for liability under Title IX, and thus cannot be dismissed without continued litigation.  The plaintiff alleges a sexist double standard in Northwestern's policy of not investigating reports of incidents that were two years old, the time frame that lapsed between the professor's misconduct and the plaintiff's report to the university's sexual harassment office. Because the plaintiff's complaint included an example of a female complainant's case that was investigated even though the harassment was similarly out of date,  it could, if proven, subject Northwestern to liability under Title IX. The court also denied the university's motion to dismiss the plaintiff's retaliation claim, in which he alleged that the university continued to take adverse action against him after and because of his reporting of the professor's harassment.  Yap v. Northwestern Univ., 2015 WL 4692492 (N.D. Ill. Aug. 6, 2015).

• Similarly, a federal court in Florida denied Florida State's motion to dismiss the Title IX case filed by  Erica Kinsman, who alleges that the university did not adequately respond to knowledge of her report that quarterback Jameis Winston raped her in 2012.  Though FSU disputes the allegations in the complaint, the judge ruled that it is possible that a jury could find truth in Kinsman's claims that appropriate university officials had actual notice of Kinsman's report by January of 2013, and that they did not initiate an investigation for eleven months, which would satisfy the standard of institutional liability under Title IX.  The judge set a trial date for July of 2016, though it is possible of course that the case could settle before then, or that FSU could file and prevail on a motion for summary judgment after the discovery phase which allows the parties to gather evidence. 

Also, there were developments in three disciplined-student cases worth noting.

• A federal court in Virginia denied Washington and Lee University's motion to dismiss a male student's claim that the university violated Title IX when it expelled him for sexual assault.  The court agreed that the plaintiff's complaint contained sufficient allegations that would, if proven, constitute a violation of Title IX under the "erroneous outcome" framework.  At this early stage of litigation, a plaintiff in an erroneous outcome case must (1) cast doubt on the accuracy of the university's finding against him; and (2) allege specific facts that can establish gender bias as a motive. Here, the plaintiff alleged numerous procedural violations that resulted in evidence favorable to him being excluded from the disciplinary panel's consideration. He also alleged that gender bias could be attributed to the Title IX officer who presented the case against him, as evidenced by her public endorsement of the idea that "sexual assault occurs whenever a woman has consensual sex with a man and regrets it because she had internal reservations that she did not outwardly express."  Because the plaintiff's case "parallels of the situation it describes and the circumstances under which Plaintiff was found responsible for sexual misconduct" and because the Title IX officer wielded "considerable influence" in the proceedings, it is possible, the judge reasoned, for a jury to find evidence of gender bias.  This is a rare outcome in that disciplined-students' Title IX claims do not usually survive the university's motion to dismiss -- usually because of insufficient allegations of gender bias. Doe v. Washington and Lee Univ., 2015 WL 4647996 (W.D. Va. Aug. 5, 2015).

• And, a state court judge in Tennessee reversed a decision by the University of Tennessee at Chattanooga to expel a male student and wrestler Corey Mock for sexual assault.  In that case, a female student reported to the university that Mock had had sex with her while she was unconscious.  A disciplinary panel initially determined that there was not enough evidence to find Mock responsible, but this decision was overturned on an appeal within the university.  The court took issue with the university's ultimate decision, which it interpreted as requiring Mock to prove he had obtained consent rather than requiring the complainant to prove he hadn't. Though the court's decision was based on state administrative law, not Title IX, the outcome is consistent with what is required of universities under Title IX.  Even though a complainant does not have to have overwhelming evidence (only a preponderance) that consent did not occur, it is still the complainant's burden to prove that consent did not occur.  

• A superior court judge in Los Angeles reinstated plaintiff Bryce Dixon to the University of Southern California while his case against the university is pending.  Dixon, a football player, is challenging the university's decision to expel him for sexual assault stemming from a sexual encounter with a female trainer that he claims was preceded by implied consent, though a university disciplinary panel found otherwise.