On June 20, the U.S. Court of Appeals for the 10th Circuit affirmed a pre-trial summary judgment in favor of the University of Tulsa in a Title IX lawsuit filed by a student alleging she was raped by a fellow student. The plaintiff, Abigail Ross, alleged distinct theories of the university’s deliberate indifference. Under Title IX, the U.S. Supreme Court has held that a college or university is deemed “deliberately indifferent” to the acts of student-on-student sexual misconduct only where the institution’s response, or failure to respond, is clearly unreasonable in light of known circumstances.
In a Title IX civil lawsuit, a plaintiff suing alleging liability of a college or university for a sexual misconduct incident often pleads claims based upon two different time periods. The first period focuses on events before the incident where a school had notice of a “heightened risk” of sexual misconduct. The second period focuses on the college or university’s response after its actual notice of the incident.
Before the court, Ross first argued that before the alleged rape, the university acted with deliberate indifference by failing to adequately investigate prior reports of rape by the same alleged perpetrator. Secondly, Ross claimed the university had acted with deliberate indifference in its response by excluding from a disciplinary hearing a prior report of sexual misconduct by the alleged perpetrator. Viewing the evidence in a light most favorable to Ross (as is required at the summary judgment stage of review), the court ruled that Ross failed to show the university’s deliberate indifference before and after the incident.
Ross’ first theory—prior to the incident
Ross contended the university failed to adequately investigate earlier reports that the alleged perpetrator had raped another student, “J.M.” Campus security received reports of this incident from two football players and J.M., but dropped the matter purportedly at J.M.’s behest. As the first step in its Title IX analysis, the court concluded that a jury could infer that campus security had actual notice of the incident and were thus aware of a substantial risk to individuals on campus.
The court then considered whether campus security acted with deliberate indifference. Despite, J.M.’s refusal to bring criminal charges or file a student-conduct complaint, it was determined that campus security knew that further investigation was necessary to determine the alleged perpetrator’s danger to others. The court cited Office for Civil Rights guidance that investigations should be pursued even when alleged victims fail to report sexual harassment or cooperate in an investigation. Consequently, they determined that a reasonable fact-finder could find that 1) the presence of an alleged perpetrator on campus would pose a substantial risk to others, and 2) campus security acted in a clearly unreasonable manner in discontinuing the investigation.
Such findings, however, are not dispositive of liability, as Title IX requires an institution to have actual notice through an “appropriate person,” who, at a minimum, is an official with authority to take corrective action to end the discrimination. Ross argued that a campus security officer should be deemed an “appropriate person” because the university’s policies 1) require campus security to automatically report sexual assaults to the Office of Student Affairs, thus initiating a corrective process, and 2) authorize campus security to receive sexual violence complaints.
The Court disagreed, finding that merely passing on a report of sexual harassment to someone authorized to take corrective action is not itself corrective action. If the court had held otherwise, it would have expanded Title IX liability beyond Supreme Court precedent, turning the deliberate-indifference standard into wide-ranging vicarious liability. Taken to a far extreme, Ross’ argument would wrongly create Title IX vicarious liability where a ministerial employee such as an assistant to the Dean of Students receives a report and makes a negligent clerical error by failing to report it to the dean.
Ross’ second theory—after the incident
When the university held its hearing on Ross’ complaint, the respondent had not been previously found responsible for any acts of sexual misconduct. The university’s policy permitted consideration of prior acts only if there had been a separate hearing, trial or similar proceeding that resulted in a finding of responsibility. Consequently, the hearing officer did not consider reports of the respondent’s alleged sexual misconduct toward other students.
The Court cited OCR guidance indicating it “may be helpful” for schools to consider evidence of prior acts when there has been a finding of responsibility. Such guidance, however, does not recommend use of prior reports in the absence of a finding of responsibility, so the university’s evidentiary rule conformed to such guidance.
Ross argued that the application of the evidentiary rule at the hearing was unreasonable because the university did not properly investigate the respondent’s alleged prior acts. Her argument failed because such investigation alone would not have been permitted in the hearing because the university policy required a prior adjudication of responsibility. Ross subsequently refined her argument to contend the university should have adjudicated the respondent’s responsibility before holding its hearing on Ross’ complaint.
In addition to this argument’s untimeliness, this argument failed as a matter of law because prior to Ross’ report only campus security knew about the J.M incident and by the time other university officials became aware, J.M. had left the university and declined to participate in a student-conduct hearing. Ross also attempted to introduce the accounts of two additional alleged victims of the respondent, but the university was completely unaware of such incidents because one refused to file a complaint and the other did not attend the university. As such, the court found that the university did not act “clearly unreasonably” in declining to adjudicate the respondent’s responsibility for these alleged prior acts.
The court’s ruling demonstrates the high evidentiary hurdles that a plaintiff must clear to hold a college or university liable under Title IX for student-on-student sexual harassment. The opinion is particularly significant in its analysis of when a report of sexual harassment reaches an “appropriate person” with authority to take corrective action.
Here, the court did not address explicitly whether the manner in which a campus safety investigation is conducted could constitute corrective action for purposes of the Title IX liability analysis due to, among other reasons, Ross’s failure to present evidence as to whether campus security had arrest powers or an investigation itself may constitute a corrective action. Under the facts of a different case, it is conceivable that an investigation could implicate factual questions of whether campus security may be deemed to be “appropriate persons” from whom liability may be imputed to the college or university.
Further, the Ross ruling shows the challenging evidentiary issues regarding character evidence or prior bad acts that arise in sexual misconduct disciplinary hearings. Policies must be carefully drafted and implemented to delineate precisely whether such evidence may be considered, if at all and under what circumstances. The evidentiary line of demarcation between evidence relevant to the incident and inadmissible evidence concerning other acts may not be easily defined.
Jeremy J. Wolk is a partner in Nixon Peabody LLP’s Business & Finance department. He developed this article with Steven M. Richard, a counsel in the firm’s Higher Education Litigation group.
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