At the end of January, the U.S. Court of Appeals for the Ninth Circuit issued an opinion holding that a university can be liable to a victim of sexual assault under Title IX based on the university’s handling of sexual violence on campus before the student was assaulted. See Karasek v. Regents of the Univ. of Cal., 948 F.3d 1150 (9th Cir. Jan. 30, 2020). In doing so, the Ninth Circuit became the first federal appellate court to recognize such a broad “pre-assault” claim under Title IX.
After the decision, commentators and practitioners quickly sounded the alarm. While concerns over recognition of a new theory of liability are understandable, they are likely overblown: based on case law from analogous contexts, the standard required to prove liability in these cases will be nearly impossible to surmount. The mere existence of a pre-assault claim, however, could drastically increase the discovery burdens faced by universities in Title IX cases because, all of a sudden, how the university handled prior complaints of sexual assault may now be relevant.
The Karasek case began in the summer of 2015. Three female students sued the University of California, Berkeley (“UC”) over separate, unconnected assaults that each of them allegedly suffered while engaged at various extracurricular activities at the school.
One student alleged that while on a trip with a campus political club she woke in the middle of the night to find a male student massaging her thighs and buttocks. Another alleged that a school teammate rubbed his genitals on her face without permission and tried, among other things, to coerce her into performing oral sex. The third student alleged that, while completing research in Alaska, a part-time instructor touched her various times: once putting his hand down her pants; and at other times, rubbing her shoulders, touching her hair, and grabbing her breasts.
The “Pre-Assault” Claim
Each student advanced a “typical” Title IX claim based on allegations that UC violated the statute by failing, after her assault, to adequately investigate and respond to her complaint.
But each student also alleged an additional, novel claim—that UC violated Title IX by taking actions before their assaults occurred that increased the risk that they would be assaulted. The court referred to this latter claim as the “pre-assault” claim, because it sought to impose liability based on events occurring before the plaintiffs’ assaults to establish liability, not after.
To support this “pre-assault” claim, the students alleged facts that, if true, suggested UC had for a long time turned a blind eye to reports of campus sexual assault. They alleged, for example, that:(1) UC underreported the amount of sexual violence that occurred on campus in the years’ prior to their enrollment; (2) the California State Auditor issued a report in 2014 finding that UC had resolved the vast majority of Title IX complaints “in a generally inadequate manner;” and (3) UC deliberately resolved a majority of sexual assault complaints informally, to avoid its statutory obligation to report the assaults to the government—even though UC’s Title IX officer had publicly stated that only formal processes should be used. All of these things, plaintiffs’ said, promoted a campus culture of tolerance toward sexual violence, which made it more likely that they would be assaulted.
The district court dismissed the pre-assault claim on the pleadings because it lacked sufficient support in the case law.1 The Ninth Circuit reversed. The appellate court found that a school need not have actual knowledge of or respond with deliberate indifference to a particular incident of sexual misconduct to be liable under Title IX. Instead, it said, a plaintiff can state a Title IX claim based on a university’s conduct occurring prior to the misconduct at issue if the plaintiff alleges that:
(1) a school maintained a policy of deliberate indifference to reports of sexual misconduct, (2) which created a heightened risk of sexual harassment (3) in a context subject to the school’s control, and (4) the plaintiff was harassed as a result.
The court strongly indicated that the plaintiffs’ allegations regarding UC’s longstanding failure to respond adequately to sexual misconduct complaints and deliberate choice to channel those complaints to an informal resolution process were sufficient to describe a “policy” that could give rise to pre-assault liability.
The court did not, however, provide much clarity on the other three elements, other than to say that they required proof of “a causal link” between the university’s policy of deliberate indifference and the plaintiffs’ particular assaults. The court did not indicate whether the students’ allegations in this particular case met that standard, but instead sent the case back to the district court to decide that question.
The Likely Fallout
The Ninth Circuit’s recognition of the pre-assault theory of liability under Title IX is certainly noteworthy—no other federal appellate court has recognized such a theory outside of a specific problem in a specific university program. Nonetheless, for several reasons, recognition of the claim is unlikely to meaningfully increase universities’ exposure to Title IX liability.
First, the Ninth Circuit’s decision is only binding on lower federal courts in California, Oregon, Washington state, Nevada, Idaho, Montana, and Arizona. Courts in other locales will no doubt find the Ninth Circuit’s opinion persuasive; however, they can still reject the pre-assault theory of liability.
Second, the Ninth Circuit’s articulation of the standard for proving a pre-assault Title IX claim will make the claim exceptionally difficult to prove. Although the court articulated a pre-assault claim in four elements, the claim really breaks down into a showing of two main points: an official policy and causation.
Proving a policy of deliberate indifference will be difficult, although not impossible. Obviously, no university has an official policy amounting to deliberate indifference to the problem of sexual assault. However, borrowing law from the civil rights context, a “policy” can also include widespread “customs” if they are sufficiently widespread and ingrained to count as official action.2 Thus, UC’s longstanding practice of resolving sexual misconduct complaints through an informal process—even though not formalized in any written policy—could amount to a “policy” of deliberate indifference required to satisfy the first element of a pre-assault claim.3
Proving the requisite “causal link” between a university’s deliberate indifference and the victim’s assault seems even more difficult. At least one appeals court has discovered that link in a narrower context—but only in a case involving particularly egregious facts. In Simpson v. University of Colorado Boulder,4 two women challenged an athletics recruiting procedure that paired female “ambassadors” with college football recruits. Under this procedure, the recruits were promised not only a “good time” but also, often, an “opportunity to have sex.” Because the women presented evidence that the coaching staff not only knew of the procedure but also encouraged it, the U.S. Court of Appeals for the Tenth Circuit court held that the plaintiffs had established a causal link between the university’s informal policy and their particular assaults.5
But where Simpson addressed a very specific “policy” within a specific university program, it is difficult to imagine how a university’s response to the general problems of sexual assaults occurring across the range of university activities could be deemed to cause a later assault. A victim seemingly would have to show that the university’s known lack of investigation or enforcement into sexual misconduct (or subpar investigation or enforcement) either (1) factored into the assailant’s decision to commit the assault or (2) allowed an assailant to remain on campus or otherwise in a position to commit further assaults. Proof of the former will likely be impossible to discover simply because it would require an admission by an assailant about his motives. Proof of the latter would obviously be limited in cases involving repeat offenders.Of course, just because a claim is difficult to prove does not mean that litigants (in this case, students) will not try. And, a student who alleges a pre-assault claim that manages to survive a motion to dismiss will undoubtedly argue that evidence regarding all past sexual misconduct complaints made at a university—and the university’s handling of those complaints—is relevant to establishing the university’s “policy of deliberate indifference.” The time, cost, and administrative burden of collecting, reviewing, and producing these documents is the real risk to universities from the Ninth Circuit’s recognition of a pre-assault claim. Whether, and how, the courts develop a mechanism to protect universities from such burdens is another point to observe going forward.
1. Karasek v. Regents of the Univ. of Cal., 226 F. Supp. 3d 1009, 1027 (N.D. Cal. 2016); Karasek v. Regents of the Univ. of Cal., 2015 WL 8527338 (N.D. Cal. Dec. 11, 2015).
2. E.g., Bd. of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 404 (1997) (“[A]n act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.”).
3. This rule, of course, raises some obvious questions: does deliberate indifference mean turning a blind eye to many sexual assaults, or just a few? What about ignoring Title IX regulations? Does that count as “deliberate indifference”? The courts will have to provide answers.
4. 500 F.3d 1170 (10th Cir. 2007).
5. Id. at 1173 (“In our view, the evidence presented to the district court on CU's motion for summary judgment is sufficient to support findings . . . that the alleged sexual assaults were caused by CU's failure to provide adequate supervision and guidance to player-hosts chosen to show the football recruits a ‘good time’ . . . .”).
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