Posted on December 11th, 2019
by Dr. Kathleen Conn
The Middle District Court of Pennsylvania has reconsidered its prior decision and granted Gettysburg College’s motion to dismiss a Title IX claim against the college.
The Title IX claim had been brought by a woman, Kelsi Kennedy, who alleged she was raped by three Gettysburg students at an alcohol-fueled party at a house owned by the Alumni Association of a former fraternity at the college. Kennedy was not a Gettysburg student, but was visiting her brother, a senior at Gettysburg.
In its August 6, 2019 decision, the court allowed Kennedy’s Title IX claim to proceed despite her non-student status. The court noted the use of the word “person” in the Title IX statute, and pointed out that the Supreme Court had interpreted Title IX to specifically extend protection from discrimination on the basis of sex to at least one important class of non-students, that is, employees of the educational institution. The court stated that status as a non-student of the educational institution where the sexual assault occurred “does not definitively preclude a non-student from raising a Title IX claim.”
For this conclusion, the Middle District Court had relied on a partial, truncated quotation from a First Circuit decision, Doe v. Brown University, which described the numerous ways non-student members of the public availed themselves of educational services at federally-funded institutions of higher education, e.g., accessing their libraries or attending campus educational events like lectures.
The August decision cited Title IX’s regulation 20 U.S.C. 1687 (2) (A), defining “program or activity” as “all of the operations . . . of a college or university . . . .” The court also pointed to the explanation in Davis v. Monroe County Board of Education, where the Supreme Court had required simply that the harassment occur “in a context subject to [the College’s] control.”
In its motion for reconsideration, Gettysburg College argued that, as a non-student, Kennedy did not have standing to pursue a Title IX claim.
However, the Middle District court on October 23, 2019 stood by its earlier decision, reiterating that status as a non-student did not necessarily [italics in the original] preclude a Title IX claim. The court cited to Doe v. Mercy Catholic Medical Center, in which the Third Circuit more clearly defined the parameters of an educational program or activity and ruled that medical residency programs are educational programs.
The court, as an aside, also noted that the relevant state of the law regarding non-students’ standing to bring Title IX claims is unsettled, especially in the Third Circuit.
The court, however, was persuaded by Gettysburg College’s argument that to sustain a Title IX claim, the plaintiff must allege that the sexual assault she suffered precluded her equal access to education programs or activities. Kennedy had alleged severe physical, emotional, and psychological damages as a result of the assaults she endured, but she never claimed denial of equal access to education.
In fact, Gettysburg asserted, Kennedy never claimed she had ever utilized or intended to utilize any educational program or activity at Gettysburg College.
Pointing to the same Mercy Catholic Medical Center decision as the Middle District Court used to support its ruling that non-student status is not dispositive in evaluating a Title IX claim, Gettysburg successfully convinced the court that Kennedy was not engaged in an educational program or activity at Gettysburg that led to her assault. She was merely a “social guest” at the college, visiting her brother, when she “decided to attend an off-campus party.” Therefore, she experienced no denial of access to any educational program or activity at Gettysburg for which Gettysburg was liable.
So What Does This Mean for Your College or University?
Kennedy’s claims of Title IX liability for Gettysburg College, Counts I and II of her complaint, were dismissed. Non-student status, per se, is not dispositive of a Title IX claim in the Middle District of Pennsylvania, but denial of equal access to a federally-funded educational program or activity is. Kennedy’s remaining claims for negligence against Gettysburg and against the Alumni Association are still viable at this point.
Kennedy maintained that both the college and the Alumni Association had both voluntarily assumed a security role, but failed to provide effective safety measures. These issues will continue to be considered. Also to be considered are the questions of alcohol and under-age drinking and excessive alcohol consumption at college-related events and the enforcement of anti-alcohol policies on campus.
Note: The author thanks Ben Pontz, Editor-in-Chief of the Gettysburgian, for alerting her to the October decision in this ongoing case.
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.
New Spin on Title IX Claim in M.D. PA Court
Posted on December 11th, 2019
by Dr. Kathleen Conn
The Middle District Court of Pennsylvania has reconsidered its prior decision and granted Gettysburg College’s motion to dismiss a Title IX claim against the college.
The Title IX claim had been brought by a woman, Kelsi Kennedy, who alleged she was raped by three Gettysburg students at an alcohol-fueled party at a house owned by the Alumni Association of a former fraternity at the college. Kennedy was not a Gettysburg student, but was visiting her brother, a senior at Gettysburg.
In its August 6, 2019 decision, the court allowed Kennedy’s Title IX claim to proceed despite her non-student status. The court noted the use of the word “person” in the Title IX statute, and pointed out that the Supreme Court had interpreted Title IX to specifically extend protection from discrimination on the basis of sex to at least one important class of non-students, that is, employees of the educational institution. The court stated that status as a non-student of the educational institution where the sexual assault occurred “does not definitively preclude a non-student from raising a Title IX claim.”
For this conclusion, the Middle District Court had relied on a partial, truncated quotation from a First Circuit decision, Doe v. Brown University, which described the numerous ways non-student members of the public availed themselves of educational services at federally-funded institutions of higher education, e.g., accessing their libraries or attending campus educational events like lectures.
The August decision cited Title IX’s regulation 20 U.S.C. 1687 (2) (A), defining “program or activity” as “all of the operations . . . of a college or university . . . .” The court also pointed to the explanation in Davis v. Monroe County Board of Education, where the Supreme Court had required simply that the harassment occur “in a context subject to [the College’s] control.”
In its motion for reconsideration, Gettysburg College argued that, as a non-student, Kennedy did not have standing to pursue a Title IX claim.
However, the Middle District court on October 23, 2019 stood by its earlier decision, reiterating that status as a non-student did not necessarily [italics in the original] preclude a Title IX claim. The court cited to Doe v. Mercy Catholic Medical Center, in which the Third Circuit more clearly defined the parameters of an educational program or activity and ruled that medical residency programs are educational programs.
The court, as an aside, also noted that the relevant state of the law regarding non-students’ standing to bring Title IX claims is unsettled, especially in the Third Circuit.
The court, however, was persuaded by Gettysburg College’s argument that to sustain a Title IX claim, the plaintiff must allege that the sexual assault she suffered precluded her equal access to education programs or activities. Kennedy had alleged severe physical, emotional, and psychological damages as a result of the assaults she endured, but she never claimed denial of equal access to education.
In fact, Gettysburg asserted, Kennedy never claimed she had ever utilized or intended to utilize any educational program or activity at Gettysburg College.
Pointing to the same Mercy Catholic Medical Center decision as the Middle District Court used to support its ruling that non-student status is not dispositive in evaluating a Title IX claim, Gettysburg successfully convinced the court that Kennedy was not engaged in an educational program or activity at Gettysburg that led to her assault. She was merely a “social guest” at the college, visiting her brother, when she “decided to attend an off-campus party.” Therefore, she experienced no denial of access to any educational program or activity at Gettysburg for which Gettysburg was liable.
So What Does This Mean for Your College or University?
Kennedy’s claims of Title IX liability for Gettysburg College, Counts I and II of her complaint, were dismissed. Non-student status, per se, is not dispositive of a Title IX claim in the Middle District of Pennsylvania, but denial of equal access to a federally-funded educational program or activity is. Kennedy’s remaining claims for negligence against Gettysburg and against the Alumni Association are still viable at this point.
Kennedy maintained that both the college and the Alumni Association had both voluntarily assumed a security role, but failed to provide effective safety measures. These issues will continue to be considered. Also to be considered are the questions of alcohol and under-age drinking and excessive alcohol consumption at college-related events and the enforcement of anti-alcohol policies on campus.
Note: The author thanks Ben Pontz, Editor-in-Chief of the Gettysburgian, for alerting her to the October decision in this ongoing case.
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.