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9th Circuit Amends Title IX Liability Considerations

April 21, 2020

A panel of appeals court judges amended a previous opinion on the liability of colleges and universities for “pre-assault claims,” or the argument that inadequate Title IX policies created a “heightened risk” of sexual misconduct. The judges changed the language in their ruling to be more specific and in line with past United States Supreme Court opinions.

The January decision in the U.S. Court of Appeals for the Ninth Circuit, which encompasses Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, established a “test” for pre-assault claims under Title IX, the law prohibiting sex discrimination at federally funded institutions. Those who make such claims must prove that “a school maintained a policy of deliberate indifference to reports of sexual misconduct” and “created a heightened risk of sexual harassment in a context subject to the school’s control.” Proof must also be provided that the person who filed a claim of sexual misconduct “was harassed as a result” of the policy, according to the original opinion.

The panel’s decision sent a lawsuit against the University of California system’s Board of Regents back to district court to be heard with regard to this test. The lawsuit was filed by a former University of California, Berkeley, student. But after a lawyer for the regents wrote a petition for the case to be reheard in the Ninth Circuit, the court amended the language of the test, clarifying that the “heightened risk of sexual harassment” must be “known or obvious” to the institution, and as a result, the complainant must have suffered harassment “so severe, pervasive, and objectively offensive” that they were deprived “access to the educational opportunities or benefits provided by the school.”

The regents’ petition was filed in March and explicitly argued for the amendment and suggested the test outlined in the January opinion did not provide a requirement for institutions to have “actual knowledge” that policies increase risk of sexual misconduct to be held liable, according to the petition. The petition also said the test would allow “lower level harassment” resulting from lax policies to be used as a claim, when the Supreme Court has said Title IX liability applies when harassment is “severe, pervasive, and objectively offensive.”

“These flaws in the panel’s decision are not merely academic. They will meaningfully impact scores of Title IX funding recipients throughout the Ninth Circuit, including hundreds of colleges and universities, and many more high schools, middle schools, and elementary schools,” the petition said. “They will now find themselves exposed to damages under Title IX whenever their official acts or omissions may have arguably increased the risk of sexual misconduct, even if they were unaware of that risk.”

While the Ninth Circuit panel agreed to these language changes, it denied the regents’ petition for the former Berkeley student’s case to be reheard in front of the appeals court, according to the April 20 opinion. The amendment will, however, influence how the case is determined by judges in the U.S. District Court for Northern California, San Francisco, who will use the newly established test to further review the student’s claims.

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Greta Anderson

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