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Lawsuit Alleging School Maintained A Policy Of Deliberate Indifference To Reports Of Sexual Misconduct That Created Heightened General Risk Of Sexual Harassment Can Survive Motion To Dismiss
Three female students were sexually assaulted while undergraduates at the University of California, Berkeley.
In February 2012 while attending an overnight trip with a student club, a student sexually assaulted Sofie Karasek. Karasek reported the assault to the club’s president who reported to a University official that the student assaulted Karasek and two other female club members. The University official discouraged the president from removing the alleged perpetrator from the club. However, after the alleged perpetrator assaulted another female club member, the president removed the alleged perpetrator from the club entirely.
In April 2012, Karasek and three other women met with University officials to formally report their assaults. Contrary to the University’s Sexual Harassment Policy, the officials did not inform Karasek of the options for resolving her claim, the range of possible outcomes, the availability of interim protective measures, or that the University would not actually investigate unless Karasek submitted a written statement. One month later, Karasek learned that one of the other victims submitted a written statement, so she also submitted a written report to the Center for Student Conduct.
The following month, a University official met with the alleged perpetrator, but no formal consequences resulted from that meeting. In the fall semester, the Title IX Director met with the alleged perpetrator for the first time and decided to resolve the complaint without a formal investigation. The University sent the alleged perpetrator an Administrative Disposition Letter stating he violated the University’s Student Code of Conduct and sanctioned the alleged perpetrator in October 2012.
Meanwhile, the University did not inform Karasek that it opted not to formally investigate nor that it informally resolved the complaint or sanctioned the alleged perpetrator.
In January 2012, an acquaintance of Nicolette Commins sexually assaulted her in her apartment. Commins reported the assault to the Student Health Center the next day and to the University’s Police Department. The University placed the acquaintance on interim suspension that only allowed the acquaintance on campus to attend his classes. Commins submitted an Incident Report Form to the Center for Student Conduct. Several weeks later, a University official met with Commins to discuss her allegations and intimated the University would not investigate until after the Berkeley Police Department finished its criminal investigation.
After the acquaintance was convicted of felony assault in October 2012, University officials began communicating with the acquaintance about the University’s investigation. The Title IX Director completed her investigation in January 2013, found the acquaintance violated the University’s Policy on Sexual Harassment and forwarded that finding to the University’s Center for Student Conduct.
The CSC began an informal investigation. Despite Commins’s stated preference for the University permanently expelling the acquaintance, the University only agreed to suspend the acquaintance until Commins completed undergraduate studies. The University sent the acquaintance an Administrative Disposition Letter informing him he violated the Code of Student Conduct and imposing sanctions. The Director emailed Commins to inform her of the outcome of the investigation, but she sent the email to an address that Commins never used to communicate with the University. Commins did not see the email, and she was not given an opportunity to appeal or contest the sanctions.
A year later, Commins requested the University continue to preclude the acquaintance from the University while she completed graduate studies, but the University declined the request.
During the summer of 2012, Aryle Butler worked as a research assistant in Alaska for a University graduate student. The student paid Butler directly, and Butler did not receive academic credit for her work. Butler lived at a facility unaffiliated with UC that hosted other educations programs.
Butler’s assailant, John Doe, was a part-time instructor for another education program. While Butler was alone in a common area, Doe sexually assaulted Butler. Butler reported the incident to the graduate student but stated she did not want the graduate student to do anything. After Butler reported a second incident, Doe again sexually assaulted Butler in a common area. Butler reported the incident to the graduate student who arranged for Butler to stay in her private cabin, not at the facility.
Butler first reported her assaults to the University in November 2012. She did not identify Doe. In February 2013, Butler again met with University officials but wanted to remain anonymous, fearing retaliation if she reported the assault. Ultimately, Butler disclosed where the assaults occurred, but did not disclose Doe’s identity.
Several months later, Butler told a University official she thought the University violated federal law, state law, and its policies regarding her report of sexual assault. The official explained the University’s policies would not apply unless Butler’s assailant was University employee. Butler then revealed the names of the facility, the graduate student, and the graduate student’s faculty advisor. Butler asked the official to research the education program to determine whether the University’s policies applied.
The official researched the program and found it had no connection to the University. Butler again met with the official and identified Doe as her assailant and as a guest lecturer at the University. The University did not take any further steps to investigate Butler’s claims. At a deposition, Doe confirmed he visits the University “once or twice a year,” and that he sporadically serves as a guest speaker. Doe estimated that he gives a guest lecture once “every year or two,” and that he had been on campus five or six times since the summer of 2012.
Karasek, Commins, and Butler sued the University under Title IX of the Education Amendments of 1972. The women alleged the University violated Title IX when it failed to respond adequately to their individual assaults. Additionally, the women alleged the University violated Title IX when it maintained a general policy of deliberate indifference to reports of sexual misconduct, which heightened the risk the women would be assaulted.
On the latter allegation, the women pointed to the University’s history of responding to reports of sexual misconduct. Specifically, the women described a 2014 report prepared by the California State Auditor detailing several deficiencies in the University’s handling of sexual-harassment cases between 2009 and 2013 and an administrative Title IX claim filed in 2014 by thirty-one women, alleging the University did not adequately respond to complaints of sexual assault since 1979. This is known as a “pre-assault claim.”
After multiple rounds of motions to dismiss, the trial court dismissed all but Butler’s Title IX claim, on which the trial court ultimately granted summary judgment to the University because there were no material facts in dispute. The trial court then entered judgment in favor of the University on all claims. The women appealed.
On appeal, the women argued Karasek and Commins adequately pleaded a Title IX violation based on the University’s response to their reports of sexual assault, Butler established a genuine issue of material fact as to whether the University violated Title IX in its response to her report, and the women adequately alleged that the University’s policy of indifference to sexual misconduct violated Title IX.
Title IX prohibits discrimination based on sex in education programs or activities receiving Federal financial assistance. An individual alleging a Title IX claim against a school must establish five elements: (1) the school must exercise substantial control over both the harasser and the context in which the known harassment occurred; (2) the individual must have suffered severe, pervasive, and objectively offensive harassment that deprived her of access to the educational opportunities or benefits provided by the school; (3) a school official with authority to address the alleged discrimination and institute corrective measures must have actual knowledge of the harassment; (4) the school acted with “deliberate indifference” to the harassment, such that the school’s response was clearly unreasonable; and (5) the school’s deliberate indifference must have subjected the individual to harassment.
The trial court dismissed Karasek’s and Commins’ claims for failing to adequately allege the fourth element—deliberate indifference. On Butler’s claim, the trial court found that she failed to demonstrate the first, fourth, and fifth elements—that the University controlled Butler’s assailant, acted with deliberate indifference, and caused Butler to undergo harassment. The Court of Appeals affirmed the trial court’s orders with respect to each of the individual claims.
Regarding Karasek’s complaint, the Court of Appeals found the eight and one-half months between the date when the University had actual notice of Karasek’s assault and when the student accepted the sanctions the University proposed did not constitute a deliberate attempt to sabotage Karasek’s complaint, especially because the University was not idle during those months even though it could have acted more quickly. Additionally, even though the University’s conduct was inconsistent with guidance from the U.S. Department of Justice (namely, a 2011 “Dear Colleague Letter” regarding sexual misconduct) and its own policies, this did not create deliberate indifference to Karasek’s complaint. The Dear Colleague Letter was “merely advisory” and was rescinded in 2017. The University’s noncompliance with its own policies was, at most, “negligent, lazy and careless.” Regardless, the University investigated the complaint, met with the assailant, and imposed appropriate sanctions. The University’s decisions regarding sanctions were not clearly unreasonable, but the Court noted the University’s lack of communication was inexcusable.
Regarding Commins’s complaint, the Court of Appeals found the thirteen months between the date Commins reported her sexual assault and the date the University imposed sanctions on the acquaintance did not constitute a deliberate attempt to sabotage Commins’s complaint. The University’s violation of the Dear Colleague Letter and its own policies did not establish deliberate indifference. The Court of Appeals found the University’s lack of communication was a significant failing and its decision to resolve Commins’s complaint informally without allowing Commins to testify or present evidence was troubling. However, the response was not deliberately indifferent even though the Court disagreed with how the University handled the complaint.
Regarding Butler’s complaint, the Court of Appeals found the University did not fail to investigate her complaint. Additionally, considering Doe was not a University employee and the assault did not occur on University-controlled property, it was unclear what protective measures the University could have imposed.
The trial court dismissed the pre-assault claim because it did not find any legal precedent for allowing the claim. However, the Court of Appeals found such a claim was a cognizable theory of Title IX liability, so it vacated the trial court’s dismissal of the claim.
Specifically, the Court of Appeals found a pre-assault claim can survive a motion to dismiss if an individual plausibly alleged (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 individual was harassed as a result. Here, the women did not need to allege the University had actual knowledge or acted with deliberate indifference to a particular incident of harassment, rather they just needed to allege facts demonstrating the four elements the Court of Appeals articulated above. The women did this by describing the 2014 California State Auditor report and other data showing how the University previously handled reports of sexual misconduct. Ultimately, the Court of Appeals directed the trial court to decide whether the women’s allegations were sufficient to survive a motion to dismiss under the above principles regarding the pre-assault claim.
Karasek v. Regents of the Univ. of California (2020) 948 F.3d 1150.