The Department of Justice (“DOJ”) recently filed a statement of interest in a Title IX case, co-signed by attorneys for the Department of Education. The case was filed against a university by several female students and former students who alleged they had been the victims of sexual misconduct by other students. The plaintiffs alleged the misconduct had been reported to the university. Some alleged they were subject to peer retaliation or harassment after reporting, and some of those plaintiffs alleged the university failed to investigate the reported retaliation. The plaintiffs further claimed that the university’s deliberate indifference in its responses to the reports led to a hostile environment that deprived them of educational benefits.
In its motion to dismiss the plaintiff’s claims, the university cited Davis v. Monroe County Board of Education. According to the DOJ, the university misapplied the law of that case and others by confusing the standards for “post-assault” claims and “pre-assault claims.”
According to the statement of interest, the university argued that the plaintiffs’ claims did not meet the standards set forth in Davis and other Title IX cases. The DOJ argues that case law has distinguished post-assault claims from pre-assault claims and this case involved only post-assault claims. According to the government’s statement of interest, to pursue a post-assault claim, the plaintiff must allege the university had actual knowledge of sexual harassment that was “severe, pervasive, and objectively offensive” to the extent that it prevents the plaintiff from accessing an educational opportunity. Additionally, the plaintiff must allege the university responded with deliberate indifference. A response is deliberately indifferent if, as a result of the response, the plaintiff underwent additional harassment or became more vulnerable to additional harassment.
The DOJ countered the university’s arguments for dismissal, contending the university was applying the pre-assault standard to post assault claims. The DOJ argued the plaintiffs pleading a post-assault clam only had to allege the university had actual knowledge of the reports of sexual misconduct made on behalf of the plaintiffs and not of the alleged harasser’s prior risk of sexual harassment. The DOJ further argued the plaintiffs in a post-assault claim do not have to allege they were subjected to additional harassment by the same harassers. Case law has held that a single instance of rape or sexual assault can be severe and pervasive. The DOJ also argued the plaintiffs did not have to allege the harassers had been motivated by hostility toward their gender because the Eighth Circuit recognized sexual harassment as discrimination based on sex. Finally, the DOJ took the position that peer retaliation can support a Title IX claim.
The DOJ’s statement of interest gives some insight into the DOJ’s and the Department of Education’s position on the standards applicable to post-assault claims. Additionally, the government’s display of interest in this case could lead schools to be more aggressive in their response to reports of sexual misconduct to avoid claims of deliberate indifference. Given the current legal landscape for Title IX cases, it is more important than ever for students accused of sexual misconduct to have the guidance of experienced Washington Title IX defense counsel throughout the investigation and disciplinary processes. Call (206) 622-6562 to schedule a consultation with Blair & Kim, PLLC.