Ruling Finds Title IX Liability for Non-Student Actions


Millersville University in Pennsylvania was given advance notice that it could be held liable under Title IX “for its willful disregard of known sexual harassment perpetrated by a non-student guest,” a federal appeals court ruled the last week.

The decision revives a lawsuit brought by the parents of Karlie Hall, a student murdered in her dorm in 2015 by her boyfriend, who did not attend college.

Ruling in favor of Halls, a three-judge panel of the United States Court of Appeals for the Third Circuit reversed the district court’s decision, which had ruled that the university had not been notified that she could have been held liable under Title IX, the law that prohibits gender discrimination in federally funded educational institutions, for the violence perpetrated by a non-student guest.

“The clear terms of Title IX inform recipients of federal funding that they may face monetary liability for intentional violations of the law,” the Third Circuit ruling states. “Furthermore, it is an intentional violation of Title IX terms for a funding recipient to act with willful indifference to known sexual harassment when the recipient exercises substantial control over the context in which the harassment occurs and the harasser, even if it is a third party. .”

Jim Davy, an attorney who represented the Hall family, said the decision “affirms important protections for students in states that are in the Third Circuit and beyond, where if you go to a school and the school knows you are facing harassment or dating violence or other gender-based violence and they have the ability to do something about it, they have to do something about it.

“They can’t just excuse all liability by saying the harassment was done by a third party,” Davy said. “When you consider the many third-party interactions that occur on K-12 schools and college campuses, this is a very important decision that will protect students’ rights in the future.”

Janet Kacskos, spokesperson for Millersville, said the university is “thoroughly reviewing the opinion of the Third Circuit and consulting with our attorneys on it.”

She said the university “continues to mourn the loss of Ms Hall, and our deepest condolences go out to her family and loved ones.”

The lawsuit largely focuses on Millersville’s inability to act — at least on the facts presented in the Third Circuit’s ruling — in response to an October 2014 domestic violence incident at Hall’s dorm in which Hall was injured by her boyfriend, Gregorio Orrostieta.

Although a college police officer responded, the officer did not initially file a report; an incident report was not filed until after Hall was murdered by Orrostieta several months later.

In addition, a report of the incident submitted to the Title IX office by Hall’s resident counselor was reportedly filed by Millersville’s Title IX deputy coordinator, in violation of university policies.

Although Millersville’s Title IX policy required that victims of domestic or dating violence be contacted, Hall was never contacted by anyone in Millersville after the resident counselor’s report was submitted, according to the ruling. The ruling also notes that Millersville had other policies outside of Title IX to control a guest’s whereabouts, including policies requiring guests to log in and the ability to issue a restraining order. intrusion.

Hall was killed in her room at Bard Hall, an on-campus dormitory, on the night of February 7, 2015. According to the ruling, Orrostieta killed Hall by “strangulation and multiple traumatic injuries” and potentially sexually assaulted her. Orrostieta was convicted of third degree murder in Hall’s death and sentenced to 20 to 40 years in prison.

In finding that the district court erred in concluding that the university could not be held liable under Title IX for the actions of a non-student, the Third Circuit court cited a Supreme Court case of 1999, Davis v. Monroe County Board of Education.

“The Supreme Court clarified in Davis that a funding recipient may be held liable for acts of sexual harassment committed by persons other than students,” the Third Circuit concluded. “Although Davis only concerned willful disregard of known student-to-student harassment, the Court’s decision was not based on the classification of the harasser as a student, guest, or other type of third party…Instead of this, the Court focused on whether the funding recipient had control over the harasser and the context of the harassment since the funding recipient cannot “subject” students to discrimination under Title IX only if he controls the harasser and remains deliberately indifferent to the actions of the harasser.

The appeals court found that Millersville’s own Title IX policies in place at the time of Hall’s listing “envisage that Title IX liability may result from the actions of third parties such as ‘visitors’ like Orrostieta.”

The appeals court also cited guidance from the Department of Education’s Office of Civil Rights that third-party harassment is covered by Title IX, and the appeals court disagreed with the statement. the district court’s interpretation, which had interpreted the OCR guidelines to mean that colleges were only warned that they risked being held liable for harassment by third parties when the harasser was invited by the university, as in the case of a teacher or a guest athlete.

The appeals court further considered Millersville’s argument that a ruling in favor of the Halls “will open the floodgates and subject universities to undue liability under Title IX for” anyone’s conduct on campus resulting in the disruption or outright destruction of a student’s pursuit of his or her education, “” as the college put it in its brief.

“While we recognize that this is a valid policy concern, the Supreme Court’s decision in Davis excludes Millersville concern,” the Third Circuit ruled. “To be liable under Title IX, the university should have ‘substantial control over the harasser and the context in which the known harassment occurs’… Additionally, the university should be aware of the harassment and, ultimately responding in a way that is “clearly unreasonable”… We don’t think it’s likely that a university has substantial control over a random third party who roams an open campus and harasses students, nor that a university has substantial control over all aspects of a campus open to the public…Even if the university had such control, however, if the university is not made aware of third party harassment or responds d “in a manner that is not patently unreasonable, she will not be held liable. Simply put, there is a high bar for establishing liability for willful indifference under Title IX, and our position today does not much for lowers r this bar.

Alexandra Brodsky, staff attorney at Public Justice, a nonprofit legal defense group that joined the Women’s Law Project in filing an amicus brief in support of the Halls, called the decision “a clear recognition that the schools have an obligation to respond to known sexual relationships”. harassment that occurs under their control, regardless of the identity of the harasser. There is no categorical exemption to Title IX protections if the harasser is the student’s own guest.

“I don’t want to exaggerate, in the sense that I don’t want to say this is some sort of expansion of the law, because I think that’s been the state of the law for a long time,” Brodsky said. “But it’s always helpful for a court to explain the contours of the law so clearly.”

Jake Sapp, chief compliance officer and deputy Title IX coordinator at Austin College in Texas, and an attorney who studies Title IX, said he thinks the ruling could potentially expand liability for universities.

“The court specifically cites that there is an argument that will open the floodgates, allowing liability for any random third party that comes onto campus,” Sapp said. “The court says, ‘No, they have to enroll under Title IX,’ but then they find that the school had control because they had the ability to issue a no trespassing order. – but the school also has the ability to issue a no trespassing order against anyone who comes onto campus. I think this potentially expands institutions’ liability based strictly on the fact that the line of practice of substantial control is a bit gray in this case.

“It’s not necessarily the opening of the valves,” Sapp added, “but it raises the question of what is the controlling factor for control.”


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