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A federal court opinion could put the policies and procedures of colleges and universities in California and the western U.S. under a microscope for their ability to prevent sexual assault.

An institution can be held liable for “pre-assault” claims, which allege that its policies for enforcing Title IX are inadequate, create an environment of “heightened risk” of sexual misconduct and lead a complainant to be harassed or assaulted, the U.S. Court of Appeals for the Ninth Circuit declared in a ruling Thursday. The federal law prohibits discrimination based on sex at institutions that receive federal funding and requires them to investigate reports of sexual misconduct.

Three former students who allege they were assaulted at the University of California, Berkeley, in 2012 initially brought a case against the University of California system’s Board of Regents in 2015 for Berkeley's handling of their individual complaints. When the case was dismissed in district court, the women appealed.

While many of the recent federal court decisions on Title IX have focused on the rights of respondents, the Ninth Circuit opinion is “a big win for victims’ advocates,” especially if other appeals courts follow suit, said Peter Lake, director of the Law Center for Excellence in Higher Education Law and Policy at Stetson University.

The ruling by the three-judge panel of the Ninth Circult referenced a 2014 California State Auditor report of Berkeley’s processes under Title IX. The report found that from 2009 to 2013, Berkeley did not notify or give regular updates to parties involved in investigations of sexual misconduct, did not complete investigations in a timely manner and did not “sufficiently educate” staff and students on sexual misconduct prevention, which led cases to be mishandled and compromised student safety, according to the Ninth Circuit opinion.

Berkeley’s use of an “early resolution process” that addressed complaints of sexual assault without formal investigations also came under fire in the court’s opinion. It is standard for institutions to pursue early resolution or mediation between the complainant and respondent only in cases of sexual harassment and when both parties are in agreement, said Jake Sapp, deputy Title IX coordinator and compliance officer at Austin College, in Texas.

The former Berkeley students asserted that only two of the 500 cases of sexual misconduct reported to the university in 2012 were resolved in a “formal process” and that they were coerced into early resolution by the university. This was allegedly done so Berkeley did not have to report assaults under the Clery Act, which requires institutions to disclose crimes on their campuses, according to the students’ lawsuit.

Berkeley was ordered by the U.S. Education Department's Office for Civil Rights to revise its Title IX policies after a 2014 investigation by the agency. The university subsequently “enacted many new policies, procedures and services over the last few years,” according to a February 2018 statement from the university.

But the opinion could open other colleges and universities in the California system and elsewhere in the states covered by the Ninth Circuit -- Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington -- to lawsuits that challenge the effectiveness of their Title IX policies, Lake said.

Contrary to other federal court opinions that address an institution’s “deliberate indifference” to or inaction on a report of sexual misconduct after the fact, the Ninth Circuit’s opinion discusses what is known as “before theory,” Lake said.

“If your state system does some analysis and finds inadequacies in terms of response, that’s something that they will take more seriously,” Lake said. “This is a different kind of argument: that the policies themselves shut the door before anyone is able to provide notice.”

The door is now open for plaintiffs to argue “before theory” in the Ninth Circuit. The opinion creates a broader standard than a similar case, Simpson v. University of Colorado, which said that colleges can be liable if there is knowledge of sexual misconduct in a specific program, said Brett Sokolow, president of the Association of Title IX Administrators. That case was decided by the U.S. Court of Appeals for the 10th Circuit, which covers Colorado.

"It may be easier to establish a causal link between a school’s policy of deliberate indifference and the plaintiff’s harassment when the heightened risk of harassment exists in a specific program," the Ninth Circuit opinion said. "But we will not foreclose the possibility that a plaintiff could adequately allege causation even when a school’s policy of deliberate indifference extends to sexual misconduct occurring across campus.​"

The Ninth Circuit ruling did note that Title IX does not require California “to purge its campus of sexual misconduct to avoid liability” and that “a university is not responsible for guaranteeing the good behavior of its students.”

Sokolow believes most of the higher education institutions in California already hold a high standard for Title IX processes and will be unsurprised by this “progressive” opinion in the Ninth Circuit. But colleges and universities elsewhere might now look more closely at their admissions policies for “special admits” or transfer students, such as athletic scholarship recipients, for histories of sexual misconduct.

“It’s going to not only put individuals in the Ninth Circuit on alert but Title IX administrators across the nation,” Sapp said.

Andrew Miltenberg, a lawyer who represents students accused of sexual assault, said the hope is that colleges do not become “overly concerned” with pre-assault claims and pursue cases that are not strong enough for investigation and disciplinary measures against accused students.

“The hope is that universities will heed this and take measures to ensure that both Title IX complainants and respondents are treated fairly, equitably and given the due process protections that they deserve,” Miltenberg wrote in an email.

The case will now return to the U.S. District Court for the Northern District of California, which will decide whether to proceed with the claims against the Board of Regents based on the appeals court’s new standard.

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