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The Newest Pleading Under Title IX: Pre-Assault Claims

Posted on February 27th, 2020
by Dr. Kathleen Conn

The Ninth Circuit began the new decade of 2020 by defining and broadening the parameters of a relatively new pleading under Title IX.

Dubbed the “pre-assault” claim, successful pleading would hold colleges and universities liable under Title IX for policies and practices that encourage or make more likely sexual assaults of female students on their campuses.

The case, Karasek v. Regents of the University of California, was brought to the Ninth Circuit after the District Court of Northern California dismissed the claims of two female students, and granted summary judgment against a third female student, who alleged they were sexually assaulted while undergraduates at the University of California, Berkeley (UC Berkeley).  The students alleged their assaults were the direct result of the university’s deliberate indifference to pervasively lax Title IX policies and practices at Berkeley.

The Ninth Circuit affirmed the District Court rulings with respect to the three female students, but effectively created a new class of Title IX violations, much as the Supreme Court had defined sexual harassment as a Title IX violation in 1992.

Plaintiffs Sophie Karasek and Nicoletta Cummins alleged that they had been sexually assaulted at Berkeley because of Berkeley’s delays in responding to their complaints, lack of information about their rights in the proceedings, allowing sexual assaults to undergo informal resolution protocols, and failing to inform them of the outcome of their deliberations in a timely manner.

Aryle Butler, on the other hand, alleged that she was sexually assaulted while working as a research assistant to a Berkeley graduate student and living at the Wrangell Mountains Center in Alaska, a nonprofit study center not officially affiliated with Berkeley.

The Ninth Circuit dismissed Karasek’s and Cummins’ claims, stating that the court would not “second-guess the disciplinary decisions made by school administrators,” and the response of the institution must merely be “not clearly unreasonable.” Simply because the institution responds in a way that is “negligent, lazy, or careless” will not meet the high standard required for Title IX liability.

The court also ruled that Butler’s alleged harasser was not under UC Berkeley’s control, and therefore, granted summary judgment to Berkeley.

However, the Ninth Circuit changed course and said the “calculus shifts” when a plaintiff alleges that an institution’s “official policy” violates Title IX. In that case, the school has intentionally violated the statute. The usual Title IX requirement of actual knowledge of sexual misconduct and deliberate indifference to that knowledge no longer applies. Where an official policy of deliberate indifference to a known overall or generalized risk of sexual harassment pertains, actual knowledge of a specific sexual harassment incident is not required.

The Ninth Circuit continued, stating that a plausible allegation of such an official policy is sufficient to survive a motion to dismiss as a pre-assault claim if the following conditions are met: first, a school maintained a policy of deliberate indifference to reports of sexual harassment; second, the deliberate indifference created a heightened risk of sexual harassment; third, the context of the situation was subject to the school’s control; and finally, fourth, the plaintiff was harassed as a result.

In a footnote, the court acknowledged that deliberate indifference to reports of past sexual misconduct has not been the exclusive form of pre-assault conduct that could result in pre-assault Title IX liability, but that this was the allegation brought forth in this case. The court referenced a situation and ruling in the Tenth Circuit, Simpson v. University of Colorado Boulder, where a risk of sexual assault, specifically in the football recruiting program, was “obvious” and the university’s failure to remedy that risk in that specific program was sufficient to sustain a pre-assault claim.

The Ninth Circuit disagreed with the predicate requirement of risk in a specific school program, but generalized that the school’s official policy of deliberate indifference can be “in any context subject to the school’s control,” even to sexual misconduct occurring across campus. Especially damning for UC Berkeley, the court noted, was a report finding that of the 500 cases of sexual misconduct reported in 2012, only two cases were handled through the university’s formal process rather than the less stringent “informal resolution process.”

In addition, UC Berkeley’s policy did not require Clery Act reporting of sexual misconduct allegations dealt with by informal resolution.

So What Does This Mean for Your College or University?

The Ninth Circuit ultimately remanded the case to District Court on the sole issue of the viability of a pre-assault claim of Title IX liability for UC Berkeley. However, the court’s definition of the four factors of a pre-assault claim provides new clarity and breadth of definition of this type of Title IX liability for institutions of higher education that receive federal funding, and possibly, also for K-12 public institutions.

All educational institutions that receive federal funding would do well to consult with legal counsel to re-examine their Title IX policies and practices to avoid costly pre-assault lawsuits.

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.