A recent decision by the U.S. Court of Appeals for the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Northern Mariana Islands, Oregon, and Washington) concluded that a university may be held liable for "pre-assault" Title IX liability if a sexual assault occurred as a result of events that occurred before the assault. The court acknowledged that it would be difficult to allege facts that establish "a causal link" between the sexual harassment or assault, on the one hand, and the increased risk of sexual harassment caused by a university's policy of deliberate indifference to known sexual misconduct across campus, on the other hand.
The court also pointed out that its ruling does not require a university "to purge its campus of sexual misconduct to avoid liability ... [and] is not responsible for guaranteeing the good behavior of its students. To illustrate, the court laid out the four elements of a Title IX "pre-assault" claim:
To meet this burden of proof, the plaintiffs in Ninth Circuit case alleged that a state auditor's 2014 report found a history of deficiencies in the university's handling of sexual harassment and sexual violence between 2009-2013, that included insufficient training of faculty and staff on how to respond to and report incidents. The auditor's report also recommended education programs on sexual harassment and sexual violence for students when they arrive on campus and annual training for all continuing students at least annually.
The legal underpinnings of the Ninth Circuit's decision were laid out by the U.S. Supreme Court in Davis v. Monroe County Board of Education, which established that there are two situations in which a private litigant may recover monetary damages for a school's intentional violation of Title IX: (1) if the school received actual notice that sexual harassment or violence had occurred and its response was "clearly unreasonable under the circumstances," and (2) an incident involving sexual harassment or violence occurred as a result of the school's official policy or "decision to remain idle in the face of known student-on-student harassment in its schools," which increased the risk to its students. [Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)].
Under the first standard of Title IX liability, there must be actual notice of the sexual harassment incident, giving the school an opportunity to address it before liability for "deliberate indifference" can be imposed. In those situations, the school's intentional violation isn't based on an affirmative institutional policy or decision; it's based on the school's response after an incident occurs. In the second type of Title IX violation, notice and an opportunity to either investigate or stop the harassment is not required — the school's policy or decision is the intentional act.
In a 2005 decision, the U.S. Supreme Court held that the right to sue for money damages under Title IX also includes retaliation claims in a case where a school fired a high school athletics coach after he complained about sex discrimination in athletics funding for the girls' basketball team. In that case, the school's retaliatory firing was an intentional decision that violated Title IX. [Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005)]
The Ninth Circuit is not the first circuit to apply "pre-assault" liability under Title IX. In 2007, the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) held that a university violated Title IX when a university's official policy was to ignore the "obvious" risk of sexual assault in its football recruiting program that paired recruits with female "Ambassadors" and in which some recruits were "promised an opportunity to have sex," and there was evidence that the coaching staff encouraged it. Thus, the court concluded that the university's failure to provide supervision and guidance to the player-hosts when the likelihood of sexual misconduct was so obvious amounted to deliberate indifference and violated Title IX. [Simpson v. University of Colorado Boulder, 500 F.3d 1170 (10th Cir. 2007)]
While the Ninth Circuit recognized that it's easier to establish liability when the risk of sexual harassment is a "specific problem in a specific program," the court concluded that when the facts establish all four elements set forth above, a "school's policy of deliberate indifference extends to sexual misconduct occurring across campus." Therefore, the court allowed the students' pre-assault Title IX violations to proceed to the discovery stage of litigation.
Nonetheless, this decision expands a university's potential liability for "pre-assault" Title IX violations at a time when new Title IX regulations are expected to narrow "post-assault" Title IX liability. As the state auditor's report points out, prevention education is a valuable campus safety and risk management tool that also promotes a culture of respect.