In July, Collegiate Comment reported on the growing number of court decisions in various jurisdictions that are refusing to recognize causes of action under Title IX brought by individuals sexually assaulted at colleges and universities.
These rulings require that to sustain a Title IX cause of action, the victim of the assault and the alleged perpetrator must both be enrolled at the same federally-funded educational institution where the sexual violence had occurred, and the complainant must be taking advantage of the educational opportunities and benefits of the institution. Notable among these decisions defining the parameters of a Title IX claim was Doe v. Brown University.
In the Brown University lawsuit, the plaintiff was a female student from Providence College in Rhode Island. While socializing in a bar in Providence with friends, she was drugged and abducted to a dormitory at Brown University, where she was raped by three male football players from Brown University. The First Circuit Court of Appeals affirmed the opinion of the district court denying her Title IX claim against Brown University, stating that Doe had never attempted to, nor had she intended to, access the educational opportunities or benefits at Brown. Therefore, although the court was sympathetic to her serious allegations, the court ruled that as a non-student of Brown University, Doe had no Title IX claim against Brown University.
However, a recent decision in the District Court for the Middle District of Pennsylvania, Kennedy v. Gettysburg College, relying on a truncated footnote from the Brown University decision, ruled differently. Although merely a denial of a motion to dismiss, and therefore early in litigation, the Kennedy decision may signal an impending split among the circuits in the ever-evolving complexity of Title IX case law.
Kelsi Kennedy was visiting her brother at Gettysburg College in Gettysburg, Pennsylvania, where she attended a party at a fraternity house on the Gettysburg campus. She alleges she was handed a drink at the party which incapacitated her, and that she was subsequently sexually assaulted by one or more Gettysburg students. An examination and rape kit analysis at the local hospital found bruises and three different semen samples on Kennedy.
Kennedy brought several charges against Gettysburg College, including a Title IX complaint. Gettysburg argued that since Kennedy was not a student, and since the sexual assault did not occur in the context of an education program or activity, Kennedy could not assert a Title IX claim. The Middle District Court of Pennsylvania disagreed, and went so far as to state, “Thus, Ms. Kennedy is correct that the state of the law today does not definitively preclude a non-student from raising a Title IX claim.”
The court then quoted from a footnote, Footnote 6, from Doe v. Brown University:
We clarify, though, that a victim does not need to be an enrolled student at the offending institution in order for a Title IX private right of action to exist. Members of the public regularly avail themselves of the services provided by educational institutions receiving federal funding. For example, they regularly access university libraries, computer labs, and vocational resources and attend campus tours, public lectures, sporting events, and other activities at covered institutions. In any of those instances, the members of the public are either taking part or trying to take part of a funding recipient institution’s educational program or activity.
However, Kennedy’s Middle District Court opinion quoted only part of Footnote 6, and failed to quote the critical language in the final sentence from the footnote in Brown:
In the case before us, however, Doe failed to allege that she had availed herself of any of Brown University’s educational programs in the past or that she intended to do so in the future. She did not plead that Brown University’s alleged deliberate indifference to it prevented her from accessing such resources at Brown.
In fact, like Doe, Kennedy was not availing herself of any educational services provided by Gettysburg College. Kennedy was at a fraternity party where alcoholic drinks were being served to underage and clearly intoxicated persons, and she accepted a drink from someone who was serving as a bartender.
However, perhaps Kennedy’s most cogent argument was that Gettysburg College “operated, controlled, managed, and maintained” the property where the assault occurred, and that the College was aware of past incidences of drinking, rapes and sexual assaults at the premises, and did not intervene. Therefore, Kennedy argued, the College was deliberately indifferent to prior sexual violence, and this indifference ultimately led to her assault.
At this argument, the Kennedy court introduced a qualifying footnote of its own: “We of course express no opinion as to the ultimate viability of Ms. Kennedy’s claims, which we assume will be vigorously litigated. Our ruling is simply that she has tendered factual allegations sufficient to withstand the instant motion to dismiss.”
So What Does This Mean for Your College or University?
If Kennedy’s argument, that Gettysburg College’s knowledge and deliberate indifference to drinking and sexual activity at fraternity parties at federally-funded colleges and universities caused her to be sexually assaulted, prevails as this case travels through the courts in Pennsylvania and perhaps beyond, many college and university officials will have to take serious notice.
Both underage and legal consumption of alcoholic beverages is rampant on college and university campuses, and the alcohol party culture has been steadfastly ignored by institutional officials in many, if not the majority of, colleges and universities, for a number of reasons specific to each institution.
Nevertheless, the Kennedy decision is one to watch as it proceeds through the federal courts.
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.