The Eighth Circuit recently affirmed the dismissal of a Title IX lawsuit by a sixteen-year-old high school junior who was visiting the college and alleged she was given alcohol and sexually assaulted at a college fraternity party.
Title IX is a federal statute that prohibits sexual discrimination, including sexual harassment and sexual assault, “on the basis of sex.” The Eighth Circuit’s ruling relied on traditional interpretations of the elements of a Title IX claim, but raised a separate interesting question.
The high school student, K.T., was invited to visit the Culver-Stockton College campus in Canton, Missouri as a potential women’s soccer team recruit. Her assailant was a student at the college and a member of an on-campus fraternity. After the assault, K.T. reported the weekend incident to college authorities as soon as classes resumed.
K.T. alleged that the college had actual knowledge of the incident after her report, but had been deliberately indifferent to the peer-peer harassment. K.T. argued that the college had failed to supervise her during her visit, and that they failed to investigate or provide treatment after she reported the incident to them.
The Court’s Findings
The district court dismissed her lawsuit for failure to state a claim, and the Eighth Circuit Court of Appeals affirmed the dismissal.
The Eighth Circuit relied on the 1999 U.S. Supreme Court decision in Davis v. Monroe County Board of Education, the seminal case outlining the three requirements to prove a Title IX claim against a federally financed educational institution.
The first requirement is that the institution must have actual knowledge of the harassment. Second, the institution must deliberately fail to act to stop the harassment, and finally, that the harassment must rise to the level of “severe, pervasive, and objectively offensive” such that the victim is deprived of access to an educational program or activity.
First, the Eighth Circuit ruled that the knowledge must be prospective, not an “after-the-fact” report. Actual knowledge, the court stated, could be inferred if the institution had knowledge of prior sexual harassment by the same perpetrator, or prior sexual harassment occurring on the same premises. The college had neither.
Prior to K.T.’s assault, the college had no knowledge of a danger to potential recruits to the soccer program. In addition, the court ruled, the college was not deliberately indifferent to K.T.’s report because deliberate indifference requires that the institution in some way caused the harassment. K.T. only reported that the college was liable for her emotional and mental anguish after the incident, not that they played any part in causing the assault.
Finally, the assault on K.T. was a single incident, and while the Davis ruling did allow that a single incident could be sufficient to rise to the level of severity required to deprive a victim of educational opportunity, the harassment experienced by K.T. was not pervasive.
But Who Can Sue on Title IX Grounds?
What is a very interesting question is one that the Eighth Circuit did not answer. Culver-Stockton College argued that only a student of the institution could sue the institution for violation of Title IX on the basis of peer-peer harassment. The college quoted Davis as stating that an institution does not violate Title IX “unless its deliberate indifference subjects its students [emphasis added] to harassment.”
In 2014, the White House Task Force to Protect Students from Sexual Assault compared the relationship between Title IX and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). Institutions of higher education that receive federal funds “must disclose accurate and complete crime statistics for incidents that are reported to Campus Security Authorities (CSAs) and local law enforcement as having occurred on or near the campus.”
The Clery Act requires that the sexual assault of a visiting student, a non-student of the college or university, must be listed on the crime report if reported to a CSA of the institution. Would the institution then have an obligation to the visiting student? If K.T. had reported her assault as a Clery Act crime, would Title IX protection apply?
Unfortunately, because the Eighth Circuit found that K.T. could not prove the elements necessary to hold Culver-Stockton College liable under Title IX, the court did not elaborate on the college’s argument that Title IX applied only to actual students of the institution they seek to hold liable.
In her suit in district court, K.T. had brought assault claims against her assailant and claims of assault and negligent supervision against the local fraternity and its national chapter, but the district court had declined to exercise jurisdiction over these state law claims.
However, it does seem reasonable that when a college invites a young student to their campus, that student should not be left so completely unsupervised that she ends up drinking alcohol underage at a fraternity party and sexually assaulted. Even if not a successful Title IX claim, K.T.’s situation points to the need for supervision and chaperoning of any visiting students to a college or university campus.
If you have any questions on Title IX, please consult your legal counsel, or one of the attorneys at KingSpry.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.