Several United States Courts of Appeals have made it clear in litigation that a non-student, e.g., a visitor or guest, at a college and/or university campus who is sexually assaulted on campus by a student (or students) of the institution cannot sue the institution under Title IX.
But what about a student who is sexually assaulted by a non-student on the campus? Does that prohibition of a Title IX lawsuit go both ways? Surprisingly, the Third Circuit ruled that it does not…
On January 11, 2022, the Third Circuit Court reversed the district court’s grant of summary judgment to Millersville University after student, Karlie Hall, was murdered in her dormitory room by her non-student abusive boyfriend, Gregorio Orrostieta, who was Karlie’s guest at her dorm.
The Third Circuit ruled that a Title IX lawsuit is appropriate only when a recipient of federal funding exercises substantial control over the context of the harassment and the harasser, even if the harasser is a third party. Therefore, Orresteria’s status as a non-student did not matter. However, material facts were in dispute as to whether the university was deliberately indifferent to sexual harassment, and therefore, summary judgment was not appropriate.
The Third Circuit description of Millersville’s substantial control of the context of the harassment was clear: the sexual harassment and murder occurred in Karlie’s on-campus dorm room. Karlie and Orrostieta had been in an abusive dating relationship since before Karlie entered Millersville, and that abuse continued. One night after Karlie and her boyfriend attended an on-campus party, Karlie’s roommate saw her crying, but Karlie explained she had had a verbal fight with Orrostieta. The resident assistant Sara Wiberg (RA) for Karlie’s floor also noticed Karlie’s crying, and both Karlie’s roommate and the RA heard Karlie scream “Ow,” When the RA knocked on the door, Orrostieta responded and admitted that “things had gotten a little physical” when he attempted to force himself into bed with Karlie. Karlie told the RA she wanted Orrostieta to leave. The RA had to call Millersville police to help remove him. Officer Liddick of the Millersville police finally arranged for Orrostieta’s removal from campus, but although the officer took notes on the incident, he did not forward his incident report to his supervisor until after Karlie’s murder.
RA Wiberg made a report of domestic or dating violence, but when she forwarded her report to the Assistant Title IX Coordinator and the Millersville Area Coordinator, neither administrator took any action. Concerned about Karlie, her roommate reported the incident to her mother who repeatedly telephoned Millersville officials to report her daughter’s concerns. She was told that Millersville needed a complaining witness. Karlie and Orrostieta continued their relationship on campus, until one night at the end of the Winter break in February 2015, residents of Karlie’s dorm heard a disturbance and Karlie’s screams for help. RA Wiberg knocked on the door but heard nothing and did not pursue the matter. That night Orrostieta strangled, traumatized, and possibly sexually assaulted Karlie. Orrostieta was later found guilty of third-degree murder.
But Orrostieta was not a student of Millersville. How did the University exert substantial control over a non-student?
The Third Circuit took note of Millersville’s internal policies controlling who was allowed on campus and especially in dormitories: check in procedures, rules for guests about length of stays, and the ability to remove guests and issue “No Trespass Orders” barring guests from campus entirely.
The court also noted the Department of Education’s Office for Civil Rights’ 1997 publication, “Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties.” The court acknowledged that courts are no longer under the same OCR standards, but that this guidance should have given Millersville notice that non-students can be harassers under Title IX.
Karlie’s parents argued that Millersville had substantial control over Orrostieta and the context in which Karlie’s murder occurred. The Third Circuit agreed, but found material facts in dispute regarding whether Millersville was deliberately indifferent to the reports of dating violence. Therefore, the Third Circuit reversed the district court’s grant of summary judgment to Millersville and remanded the case back to district court.
So What Does This Mean for Your College or University?
The Third Circuit acknowledged that OCR guidance documents are not the applicable standard in 2022. They are superseded by the 2020 Title IX Regulations. However, the 2020 Regulations also require that for Title IX liability to attach to the institution, the institution must have substantial control over the context in which the sexual harassment occurs and substantial control over the alleged harasser, identified in the 2020 Regulations as the “respondent.” Respondent is defined simply as “an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.” No language in the 2020 Regulations specifically states that the respondent must be a student of the institution.
On the other hand, in the 2020 Title IX Regulations, the alleged victim of sexual harassment, identified as the “complainant,” must be “participating in, or attempting to participate in the education program or activity of the recipient in which the complaint is filed.” Therefore, Title IX liability is not a two-way street: a complainant of the institution must be a student or intending to be a student of the institution, whereas a respondent does not necessarily have to be a student of the institution.
The clear message of the Third Circuit is that Institutions must secure their campuses such that their students or prospective students are protected, on the campus, in campus buildings, and in any other buildings controlled by student organizations that are officially recognized by the institution. Dormitories must especially be secure, with rules enforced for guests. Students must lock their dorm rooms, and must report any disturbances, with consequences for not complying. Health Center staff, counselors, RAs, and all students must be taught to recognize dating and domestic violence, and the immediacy of reporting all evidence, and even suspicions of such behaviors to the Title IX Coordinator. The consequences of reports languishing unreported can be severe, as the Hall case demonstrates, for both students, their families, and their institutions.
If you have any questions, please consult with your legal counsel or one of the higher education attorneys at KingSpry.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.