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University of California Facing Title IX Suit Based on “Pre-Assault” Conduct

Three female students at the University of California, Berkeley filed a lawsuit alleging that they had been sexually assaulted while students at the school. These women asserted that the University violated Title IX by failing to respond to their individual assaults, and that the school maintained a policy of “deliberate indifference” to sexual misconduct reports.
The federal district court dismissed each of the women’s individual claims as well as the claim arising out of the school’s general response to sexual misconduct. On appeal, the Ninth Circuit Court of Appeals reinstated the claim against the school for “pre-assault” claims of deliberate indifference, holding that it was a cognizable theory of liability under Title IX. Under this theory, an institution can be held liable where a) a school maintained a policy of deliberate indifference to reports of sexual misconduct 2) which led to a heightened risk of sexual harassment 3) in a context subject to the school’s control, and 4) the plaintiff was harassed as a result. There need not be an allegation that the institution acted with “deliberate indifference” to a particular incident of harassment.
In the lawsuit, a 2014 report was cited that had reviewed the UC’s approach to sexual misconduct complaints. This report found the institution’s approach had failed to adequately inform students about what to expect during investigations, that it had failed to provide regular updates on the status of its investigation to students, and did not complete the investigations in a timely manner. Additionally, the complainants were not informed about the outcome of investigations and subsequent disciplinary action. UC Berkeley’s use of an “early resolution process” in all but two of five hundred cases of misconduct, rather than a formal process, was also criticized by the court. The avoidance of using a formal process allowed the school not to report the offenses to any agencies maintaining statistics. The circuit court did caution that Title IX does not require the school to “purge its campus of sexual misconduct to avoid liability” or to guarantee that none of its students would misbehave.