The U.S. Department of Education’s Office for Civil Rights (OCR) has made clear that it expects colleges and universities to follow its directives for compliance with Title IX as set forth in OCR’s various “Dear Colleague Letters” (DCLs). Failing to comply with OCR’s directives in DCLs risks an administrative finding that an institution is not in compliance with Title IX. However, a recent court ruling holds that an institution’s failure to comply with DCLs does not necessarily mean the institution has acted with “deliberate indifference” to sexual misconduct—the level of fault a plaintiff must show to recover money damages from an institution in a civil lawsuit premised on a violation of Title IX.

In Karasek v. Regents of the University of California, three women alleged the University of California, Berkeley violated Title IX by failing to adequately respond when they reported sexual assaults. The women sought money damages under Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), which holds that victims of sexual misconduct can recover money damages against an institution that has actual knowledge of sexual misconduct and is deliberately indifferent to it. Among other things, the plaintiffs argued that, because the university failed to comply with several directives from OCR’s April 4, 2011, DCL, this amounted to per se deliberate indifference to their sexual assaults and other acts of sexual misconduct.

In an order issued on Dec. 11, 2015, a federal district court in California rejected the plaintiffs’ argument that DCLs set the standard of “deliberate indifference” for civil liability. According to the court, the DCLs’ requirements are targeted at administrative enforcement and are “obviously broader than the scope of liability for private causes of action for money damages under Title IX.” In other words, the court held that the failure to comply with directives in a DCL does not necessarily establish “deliberate indifference” to sexual misconduct for purposes of civil liability. However, it noted “[t]here are undoubtedly situations in which a school’s conduct in violation of a DCL also amounts to a clearly unreasonable response under Davis.”

What This Means to You

Given the proliferation of DCLs and increasingly onerous administrative directives from OCR, Karasek’s holding provides some comfort to institutions that are threatened with civil litigation premised on a failure to comply with a DCL. According to Karasek, the standard of “deliberate indifference” a plaintiff must show to recover money damages is not satisfied merely because an institution failed to comply with a DCL; instead, a plaintiff must continue to show that the institution had actual knowledge of sexual misconduct and gave a “clearly unreasonable” response to it.