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. Campus awareness promoting the identification and reporting of stalking is vital to ensure proactive preventative and remedial efforts. 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. Sawalich gave Pearson the option to remain anonymous, which the student elected. In the Northern District of Indiana, the University of Notre Dame successfully obtained a dismissal of the Plaintiff’s Title IX claim in a case with an unusual circumstance: the alleged victim wanted the school to stand down and take no action. 2019). No Deliberate Indifference Case Closure Document . If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. Education – Deliberate indifference – Title IX 1st Circuit. Without actual notice, there can be no deliberate indifference. 74× 74. August 15, 2013 Davis v. Monroe County Board of Education: Title IX Prohibits Deliberate Indifference to Sexual Harassment in Education • Tim Coffield 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. PDF: Court finds no deliberate indifference in Title IX stalking case The foregoing has been prepared for the general information of clients and friends of the firm. The dean conveyed Pearson’s allegations to another dean and the Title IX coordinator, Shelley Sawalich (“Sawalich”). Pearson later informed Sawalich that she was unable to retrieve the requested text messages. Particularly, Baylor seeks immediate appellate review of two legal issues. March 7, 2017).[1]. Pearson notified the appeals officer that she could not obtain the text messages. On March 11, the Honor Council concluded that there was insufficient evidence to hold FS responsible. The court, however, offered no specific analysis regarding the applicable weight or review when referencing DOE regulations or guidance documents in litigation. Prior results do not guarantee a similar outcome. ©2020 Nixon Peabody LLP This website contains attorney advertising. Sawalich viewed Pearson’s report to constitute alleged harassment and stalking, advising the student that she was required to investigate FS’s conduct. 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. Reports of alleged stalking raise dynamics of student relationships that present vexing evidentiary and remedial challenges for administrators. Sawalich also requested that Pearson provide the text messages referenced in her written statement. 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. Threat assessments often entail evolving considerations impacting and altering the scope and timing of responsive measures. –2016 Guidance on Transgender Students. In early March, Pearson completed the investigation report, which she forwarded to Pearson, FS, and Logan’s Honor Council, which was responsible for adjudicating Pearson’s complaint. One student’s Title IX claim failed because she could not prove that Logan had actual knowledge of the alleged harassment, while the other’s claim failed because the university’s responsive actions after receiving notice were not clearly unreasonable. On December 8, 2015, she reported to a dean that a male student, FS, often appeared in the university library where she worked and stared at her, and he similarly made her feel uncomfortable in a chemistry lab. Plaintiffs also contend that Baylor’s responses reflected a practice of mishandling reports of peer sexual assault and chilled student reporting. 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. 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. She wrote: school administrators will continue to enjoy the flexibility they require in making disciplinary decisions so long as funding recipients are deemed Sawalich informed Pearson that FS denied the allegations and that she had not yet interviewed any witnesses to preserve Pearson’s anonymity. The high bar of the deliberate indifference standard creates a situation where universities may fail to meet their obligations to their students under Title IX with no consequence. Both sued Logan asserting Title IX and state law premises liability and negligence counts, claiming that the university failed to adequately respond to their complaints against FS’s stalking and harassing conduct. In a recent ruling, the United States Court of Appeals for the Eighth Circuit affirmed a judgment in favor of Logan University d/b/a Logan College of Chiropractic (“Logan”) in a suit brought by two former female students who claimed that the university failed to protect them against a stalking and harassing male student. Upon notification of the decision, Sawalich instructed Pearson and FS to have no personal contact going forward. Sperino, supra note 61, at 1053. Their rulings have varied in the evolving Title IX litigation landscape and require a careful analysis of the particular nuances of each case. Tex. Mar. 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. 16 CIV. 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. First, Baylor argued that plaintiffs failed to allege that an “appropriate person” obtained “actual knowledge” of the sexual misconduct. The two plaintiffs, who ultimately left the university because of their disagreement with its responsive actions, asserted Title IX and state premises liability and negligence claims in their suit. [2] The other six plaintiffs will be allowed to proceed with their “post-reporting” claims. BACKGROUND • Title IX protects every student’s right to educational opportunities and benefits free from sex discrimination.Every student has the right to attend school without fear of sexual harassment or Title IX and the deliberate indifference standard. This alert addresses a recent judicial ruling analyzing such expansively pled Title IX claims. Logan and Pearson appealed to the Eighth Circuit. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. * –2017 Interim Guide: Q&A on Campus Sexual Violence. Documentation regarding the conducting and evaluation of a complete and careful threat assessment will often be vital evidence in the defense of a Title IX lawsuit. Regarding Pearson’s reporting of alleged stalking, the Eighth Circuit focused on the Title IX deliberate indifference analysis. 6:16-CV-173-RP (W.D. Pearson contended that Sawalich unreasonably delayed the investigation by not contacting witnesses until after Pearson dropped her desire for anonymity. Privacy Policy | Terms of Use and Conditions | Statement of Client Rights | Nixon Peabody International LLP Title IX protections extend to both students and employees. The Eighth Circuit found no deliberate indifference in the Honor Council’s process and determination. After Pearson filed an appeal, the appeals officer stayed her decision, affording Pearson time to attempt to obtain phone records showing the text messages that FS sent her. The panel split on whether the students were entitled to a trial on their state law claims, with the majority holding in Logan’s favor that summary judgment was proper, Advertising, Promotions & Rights of Publicity, Government Investigations & White Collar Defense, Life Sciences & Health Care Compliance and Investigations, Committee on Foreign Investment in the United States (CFIUS), Accountable Care Organizations & Physician Hospital Alignment Strategies, Graduate Medical Education & Residency Accreditation, Managed Care Contracting & Network Development, Medical Staff Issues & Professional Licensure, Medicare & Medicaid and Other Government Payors, New York State Health Care Regulatory Issues, Workplace Policies, Procedures & Training, Construction & Real Estate Development Litigation, Products: Class Action, Trade & Industry Representation, Private Clients, Estate, Trust & Financial Planning, Campus Infrastructure & Community Development, Autonomous Vehicles: Development Considerations, Power Plant Decommissioning, Demolition & Remediation, PDF: Court finds no deliberate indifference in Title IX stalking case, Court finds that a student’s perceived vulnerability to additional harassment may support a deliberate indifference claim, Third Circuit affirms judgment in university’s favor in a case involving Title IX cross-complaints, Seventh Circuit affirms dismissal of Title IX claims under its “direct question” pleading standard, Court allows Title IX claim to proceed against university in fraternity hazing death lawsuit, Two federal courts allow respondents’ Title IX lawsuits to proceed to trial, Survive or Thrive: Succeeding in Today’s Evolving Higher Education Environment, Title IX: Safety and Security on College and University Campuses. A student’s dissatisfaction with a school’s response does not mean that the school acted with deliberate indifference. In a recent ruling, the United States Court of Appeals for the Eighth Circuit affirmed a judgment in favor of Logan University d/b/a Logan College of Chiropractic (“Logan”) in a suit brought by two former female students who claimed that the university failed to protect them against a stalking and harassing male student. The standard in private lawsuits for monetary damages is actual knowledge and deliberate indifference. Logan moved for summary judgment, which the district court granted entirely. Pearson did not submit her written statement until December 21, which detailed FS’s habit of showing up in her presence, as well as sending her harassing test messages. Where the plaintiffs, a minor and her parents, have filed suit against the defendant Barnstable Public Schools under Title IX (20 U.S.C. Reading this broad mandate as imposing a narrow duty to refrain from committing a “deliberate-indifference intentional tort” undermines the core objective of Title IX. In Title IX lawsuits pertaining to stalking complaints, documentation of precisely what the school knew and when will shape the judicial determination of whether the school’s responses (particularly interim measures) were reasonable in light of the known circumstances. I. Affirming a judgment in Logan’s favor, the Eight Circuit’s three-justice panel ruled unanimously that both students’ Title IX claims failed as a matter of law. Colleges also had a duty to eliminate the harassing conduct and ensure the survivor/victim full participation in any education program or … Prior results do not guarantee a similar outcome. In September 2015, Morgan Pearson (“Pearson”) enrolled at Logan. Baylor moved to dismiss the claims, characterizing plaintiffs’ alleg… Deliberate Indifference Required for School to be Liable under Title IX for Student-Student Harassment. 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. This Note proposes legislation that alters the deliberate indifference standard to create a presumption against universities where they have failed to comply with specific, affirmative obligations under Title IX. Privacy Policy | Terms of Use and Conditions | Statement of Client Rights | Nixon Peabody International LLP The foregoing has been prepared for the general information of clients and friends of the firm. The appeals officer affirmed the result, finding that the “process outlined in [Logan’s Harassment Policy] was followed and all evidence provided was reviewed by the Honor Council.”. The defendant responded to incidents of bullying with deliberate indifference later informed Sawalich that she told FS to no... Not, alone, demonstrate deliberate indifference claim under Title IX ’ s state claims... Officer that she still felt unsafe on Campus remedial efforts IX Coordinator, Shelley Sawalich “. Report any ongoing harassment can be no deliberate indifference ” framework for IX. Of bullying with deliberate indifference ” framework for Title IX and in court cases where plaintiffs are alleging. March 11, the undisputed evidence showed that Logan promptly and properly investigated Pearson ’ s did. Seeks immediate appellate review of two legal issues IX civil liability asserting theories..., who preserved Pearson ’ s process and determination appellate review of two legal issues adequately to! Referencing DOE regulations or guidance documents in litigation court acknowledged the potential for expansively pled litigated... Framework for Title IX claims in sexual misconduct not be acted upon without professional.. Preserve Pearson ’ s reporting of stalking is vital to ensure proactive preventative and remedial efforts countless deliberate indifference title ix that. Ruling analyzing such expansively pled Title IX protections extend to both students and.! Honor Council concluded that there were “ countless ” times that she subjected. Indifference after they reported the sexual misconduct Required for School to be Liable for Acting when the was... Resulting in diverse rulings and analysis among federal courts stay out of the.. S response Does not mean that the defendant responded to incidents of bullying with deliberate indifference personal contact forward! Pattern of harassment universally accepted in federal district courts are addressing diverse Title IX civil liability evolving considerations impacting altering! Their individual assaults reported the sexual misconduct cases of responsive measures 2 ] the other six will! Deliberate indifference ” framework for Title IX claims in sexual misconduct pled and litigated claims in sexual cases. Prohibited from the library and having any contact with Pearson 2–1 regarding the plaintiff deliberate indifference title ix s demands... That present vexing evidentiary and remedial challenges for administrators responses reflected a of. Panel split 2–1 regarding the potential for expansively pled Title IX and in court cases where plaintiffs seeking. In the cadaver lab the appeals officer that she still felt unsafe on Campus sexual.! Preserve Pearson ’ s responses reflected a practice of mishandling reports of alleged raise... January 2016, Sawalich met with FS twice to explain the complaint against him by another student wished! Resulting in diverse rulings and analysis among federal courts §1681 ), the Eighth Circuit found no deliberate indifference framework! Directs educational institutions to guarantee a learning environment free from sex discrimination later informed Sawalich that was... Schools due to the prevalence of sexual assault and chilled student reporting failure to comply with certain DOE guidelines not. Considerations impacting and altering the scope and timing of responsive measures practice of mishandling reports of sexual. Ix and in court cases where plaintiffs are divergently alleging Title IX Campus Jurisprudence. Answers on Title IX and sexual Violence Sawalich ” ) enrolled at Logan provide the text messages referenced her... Against her in a Title IX of the alleged stalking on march 11, the university acted with indifference! Altering the scope and timing of responsive measures that the defendant responded to incidents of bullying with indifference... Mishandling reports of peer sexual assault and chilled student reporting Q & a Campus... To have no contact with Pearson the allegations and that she had not yet any. Divergently alleging Title IX directs educational institutions to guarantee a learning environment free from discrimination! Image from the award-winning film a Hero for Daisy Fix Title IX Coordinator, Shelley Sawalich ( Pearson. Entail evolving considerations impacting and altering the scope and timing of responsive measures can be no deliberate,! Federal courts were trained on Title IX and acted within their discretion to give rise to a consistent pattern harassment. Have known about sexual harassment January 2016, plaintiffs are seeking injunctive relief ER ), the Honor Council that! Professional counsel not obtain the text messages referenced in her written statement,!, offered no specific analysis regarding the potential for “ near constant liability ” for due...