Title IX of the Education Amendments of 1972 (Title IX) is enforceable through an individual’s private right of action, which has given rise to two general avenues for sexual discrimination claims in litigation. The first avenue concerns an alleged official policy of intentional discrimination by a recipient of federal education funding, which has typically arisen in matters of admissions, scholarship administration or athletic programming. The second avenue has typically applied to claims of sexual harassment or assault, where the primary elements are: (a) actual knowledge that a student has faced sexual misconduct in the institution’s program and activities and (b) deliberate indifference with respect to addressing the sexual misconduct that the institution knows is occurring.
Increasingly, plaintiffs are relying upon both avenues in Title IX lawsuits seeking redress for sexual misconduct. As noted above, plaintiffs typically assert the institution responded with deliberate indifference after they reported the sexual misconduct. Plaintiffs are also asserting concurrently that before their initial reports of the sexual misconduct the institution engaged in an official policy of discrimination posing a heightened risk to students. This alert addresses a recent judicial ruling analyzing such expansively pled Title IX claims. Jane Does 1–10 v. Baylor Univ., Case No. 6:16-CV-173-RP (W.D. Tex. March 7, 2017).
Ten plaintiffs, identified as Jane Does 1 through 10, allege that, while each was a student at Baylor University between 2004 and 2016, she was sexually assaulted by another student. Plaintiffs assert that, after each sought assistance and protection from Baylor, the university acted with deliberate indifference. Plaintiffs also contend that Baylor’s responses reflected a practice of mishandling reports of peer sexual assault and chilled student reporting. Baylor moved to dismiss the claims, characterizing plaintiffs’ allegations as “an amalgam of incidents that involved completely different contexts, offenders and victims,” and arguing that “evidence of a general problem of sexual violence is insufficient.” Federal District Court Judge Robert Pittman analyzed the plausibility of plaintiffs’ “post-reporting” and “heightened risk” Title IX claims.
Plaintiffs’ complaint alleges that Baylor was deliberately indifferent to their reports of sexual assault, thereby causing them further sexual assault or harassment or creating a hostile educational environment. Baylor raised three primary arguments that plaintiffs’ post-reporting allegations were insufficient to state a claim for liability, each of which the court rejected.
First, Baylor argued that plaintiffs failed to allege that an “appropriate person” obtained “actual knowledge” of the sexual misconduct. Each plaintiff alleges that she reported her sexual assault to a Baylor office established by the university specifically to provide services and support to students, such as the police department or counseling center. The court found it to be plausible that such personnel either were “appropriate persons” under Title IX or communicated plaintiffs’ reports to an “appropriate person.”
Second, Baylor argued that allegations of non-compliance with regulatory and administrative guidance from the Department of Education (DOE), which plaintiffs reference in their complaint, are insufficient to establish deliberate indifference. The court agreed that an alleged failure to comply with certain DOE guidelines cannot, alone, demonstrate deliberate indifference. The court, however, stated generally that DOE regulations may be consulted when assessing the appropriateness of a school’s response to sexual assault reports. The court, however, offered no specific analysis regarding the applicable weight or review when referencing DOE regulations or guidance documents in litigation.
Third, Baylor argued that plaintiffs have not stated plausible allegations that they were subjected to further harassment after their reporting, especially for those individual plaintiffs who do not allege any specific instances of subsequent assault or harassment. While noting that allegations of further assault or harassment are necessary for a claim under Title IX, the court ruled that “to subject” a student to harassment “a school need only make the student vulnerable to that harassment.” The court concluded that each plaintiff adequately alleges Baylor’s failure to investigate her reporting of an assault and ensure that she would not thereafter be subjected to continuing assault and harassment. This Title IX analysis, however, is not universally accepted in federal district courts nationally. There is a split of authority with several opinions holding that a plaintiff must plead “further harassment” actually occurred after the school was on notice of the initial harassment.
While finding the Title IX claims to be plausibly supported, the court still dismissed four of ten plaintiffs’ “post-reporting” claims because they fell outside of the two-year statute of limitations applicable to this case. The other six plaintiffs will be allowed to proceed with their “post-reporting” claims.
Heightened risk claims
Plaintiffs allege that Baylor’s handling of reports of sexual assaults created a heightened risk of sexual assault throughout the university’s student body. Specifically, plaintiffs allege the university knew of and permitted a “campus condition rife with sexual assault,” that sexual assault was “rampant” on campus, that the university mishandled and discouraged reports of sexual assault and that its response to these circumstances “substantially increased” the risk that plaintiffs and others would be sexually assaulted.
The court acknowledged the potential for “near constant liability” for schools due to the prevalence of sexual assault among college-aged individuals. Consequently, to succeed under a heightened-risk claim, the court concluded that plaintiffs must demonstrate the misconduct complained of was “not simply misconduct that happened to occur [at the school] among its students,” but “was in fact caused by an official policy or custom of the university.” Liability cannot be based, for example, solely on a school’s “failure to promulgate and publicize an effective policy and grievance procedure for sexual harassment claims.” This “heightened risk” analysis is not universally applied, as other courts have been unwilling to broaden Title IX claims to encompass an alleged general risk that was not specific to a university-controlled context.
The court found that plaintiffs have pled plausible claims that Baylor’s alleged policy or custom of inadequately handling and even discouraging reports of peer sexual assault created a heightened risk of sexual assault. Particularly, the court based its ruling on allegations that the university (1) misinformed victims of sexual assault as to their rights under Title IX, (2) failed to investigate reported sexual assaults, (3) discouraged those who reported sexual assaults from naming their assailants or otherwise coming forward and (4) reported to DOE that no assaults took place on campus during time periods relevant to plaintiffs’ claims.
The court allowed all ten plaintiffs to move forward with their “heightened risk” claims, including those raising incidents more than two years before the commencement of the litigation. Plaintiffs claim that they had no reason to know of the causal connection of all of the incidents until spring 2016 when media reports surfaced regarding several sexual assaults on the Baylor campus. The court concluded that, while it is plausible that the plaintiffs were aware of their heightened risk claims when their assaults occurred, it is also plausible that they had no reason to further investigate those claims until the media reports surfaced. As a result, when the case was filed in June 2016, plaintiffs acted within the applicable two-year limitations period.
The court’s ruling in Does 1–10 v. Baylor arose in an initial stage of the litigation, the adjudication of Baylor’s motion to dismiss the complaint. Given the procedural posture, the court had to accept the truth of plaintiffs’ well-pled factual allegations and determine only whether plaintiffs have pled plausible Title IX claims for relief. The ruling allows the litigation to proceed to discovery for the development of a factual record, where both sides will fully define the support for their respective positions and the university may move for a pre-trial disposition via a summary judgment motion.
This ruling offers an important signal to colleges and universities regarding the potential for expansively pled and litigated claims in a Title IX lawsuit. When defending against a Title IX lawsuit, a college or university must recognize that its response to a particular reported incident may not be analyzed solely in isolation, but in connection with other temporally connected or similarly arising incidents. As a sound defense strategy, a college or university should establish early in the litigation, either through pre-trial rulings or conferences with the court, the precise scope of the applicable claims and permissible discovery. This is particularly important where Title IX causes of action plead alleged and disputed theories of intentionally discriminatory policies pre-dating the harassment or assault directed at the plaintiff.
Further, Baylor has moved to certify the ruling for an interlocutory appeal to the Fifth Circuit, contending that it has far-reaching implications for the university and schools nationally. Particularly, Baylor seeks immediate appellate review of two legal issues. First, Baylor challenges the court’s decision to permit plaintiffs’ claims based on a “heightened risk” of sexual assault, contending that the ruling implicitly and incorrectly assumes that such claims do not require allegations that the educational institution exercised substantial control over the context and the assailant at the time of the sexual assault. Second, even if a “heightened risk” theory is cognizable, Baylor maintains that the court applied an overly broad statute of limitations analysis in allowing claims dating back over a decade.
Federal district courts are addressing diverse Title IX claims in sexual misconduct cases. Their rulings have varied in the evolving Title IX litigation landscape and require a careful analysis of the particular nuances of each case. Title IX issues will soon reach the federal appellate courts with more regularity and, if splits in analysis continue, likely the United States Supreme Court for ultimate determination.
- The plaintiffs in the Baylor lawsuit alleged both Title IX and state law claims. This alert focuses on the Title IX claims. [Back to reference]
- Title IX has no express limitations period. Consequently, the court applied the two-year general personal injury statute of limitations period under Texas law to the Title IX claims. Tex. Civ. Prac. & Rem. Code § 16.003(a). [Back to reference]