Federal Court Denies University’s Motion to Dismiss Title IX Claim Arising from Off-Campus Conduct

In a recent case, a female student of a Louisiana university sued multiple parties as a result of an off-campus rape by another student who had been accused of multiple prior sexual assaults and rapes.  A Louisiana federal court denied the university defendants’ motion to dismiss, finding the university had substantial control over the context of the assault even though it occurred off-campus.

According to the court’s opinion, the plaintiff was raped in 2021 while a student at the university. She did not know the last name of her attacker at the time.  A national newspaper reported on the accused student’s alleged sexual misconduct and the defendants’ failure to act.  The plaintiff filed suit for Title IX violations and negligence against the Board of Supervisors of the university the accused student previously attended, the Board of Supervisors of the university she attended with the accused student, and the local city-parish government.

The accused student had previously been banned from another university’s campus in Baton Rouge (“First University”) after two female students of that university separately reported him for rape. He subsequently transferred repeatedly between the university attended by the plaintiff (the “University”) and another university (“Second University”) under the same Board of Supervisors.

According to the plaintiff’s complaint, the First University did not inform the Second University of reports the accused student had raped two women on campus in separate incidents, his arrest for second degree rape, or his ban from campus.

The Second University learned of the arrest when the Dean of Students received an email from an administrator of the previous university with an article about the allegations.  The dean did not start an investigation, but placed the accused student on disciplinary probation, requiring behavior management classes.

Between November 2016 and June 2018, two other students of the Second University and a local community college student reported the accused student to the local police for sexual misconduct.  The police did not inform the Second University of those reports, even though it had legal requirements to do so.

The accused student was then allowed to transfer to the University attended by the plaintiff.  The transfer papers did not mention his disciplinary probation.  The plaintiff’s rape occurred just a month after the transfer.

According to the plaintiff’s complaint, the accused student invited her to study at his apartment.  After they studied, they joined his roommate and a group in the living room.  The plaintiff had several shots, and the accused student encouraged her to keep drinking after she told him she was “incredibly drunk.” She ultimately agreed to spend the night because she was not fit to drive home.  She alleged the accused student repeatedly sexually assaulted and raped her while she was in and out of consciousness.

She told several people over the next few days, but did not initially report the incident to the administration or law enforcement because she “was afraid” and did not know the assailant’s last name.

About 12 weeks later, she saw a sorority group chat about a student who had sexually assaulted women that included a photo and the name of the accused student.  She then reported the incident to the Title IX coordinator.  The Title IX coordinator informed the plaintiff she had been receiving calls about the accused student and was waiting for someone to make an accusation.  They then reported the assault to the university police lieutenant. She also reported to the local police.

The University administration informed her that the accused student withdrew after she filed the report, so they would not be investigating or pursuing the report.

The defendants moved to dismiss the plaintiff’s case.

The plaintiff asserted a heightened-risk claim against the Board of Supervisors for the University and the Second University.  She alleged it showed deliberate indifference after receiving actual notice of the threat of the accused student by not investigating or meaningfully discipling him after his arrest.  She also alleged that the University’s failure to prevent him from transferring there substantially increased her risk of being sexually assaulted.

She also alleged a “post reporting claim,” asserting that the University was deliberately indifferent to her report when it failed to investigate or discipline him after he transferred back to the Second University, depriving her of participating in the educational opportunities at the university.

To prove her Title IX claims, the plaintiff must show that the University had actual knowledge of the harassment, the accused student was under the University’s control, the harassment was based on sex, it was severe, pervasive, and objectively offensive enough to effectively prevent her from accessing an educational opportunity or benefit, and the University was deliberately indifferent.

The University argued it did not have control over the accused student because the assault of the plaintiff occurred off-campus.  To show the defendant had control over the assailant, the plaintiff must show it exercised substantial control over him and over the context where the sexual harassment occurred.

The court noted that there was no authority supporting the University’s argument, since the case it cited was vacated and set for en banc review.  There was, however, significant case law that off-campus sexual assault is actionable, especially if the University has actual notice of previous assaults by the same student.

The court concluded that the plaintiff had established the University’s control over the accused student, who had been a student at two universities overseen by the same Board of Supervisors.  The court further concluded that she had established the University’s control over the context.  She alleged that the University allowed the accused student to transfer there with a clean academic record even though it knew about his arrest.  She met him on campus to study, where she also met his roommate and saw him helping another female student with her homework.  She agreed to go to his apartment to study based on her observance of these events.  The accused student’s apartment was “in an apartment complex known to house [University] students.” The court pointed out that as a student, he was subject to the University’s code of conduct and policies.  Additionally, he would not have had access to the on-campus locations where the plaintiff initially met him if he had not been a student.

The court determined the allegations created a “plausible basis” for a conclusion the University had substantial control over “the context.” The court acknowledged that further evidentiary development would allow it to determine the extent of the University’s control.

The court granted the First University’s motion to dismiss the negligence claim, concluding that because it was an arm of state government, the negligence claims against it must be brought in state court.  The court denied the other defendants’ motions to dismiss.

The court’s analysis of the University’s control over the accused student could be applied broadly, suggesting a school could face potential liability for nearly any off-campus assault when the parties are two students who met on campus.  The case further suggests that a school may face liability for accepting a student who has previously been accused of sexual assault.

If you are facing an accusation of sexual assault or sexual harassment at school, having a skilled Washington Title IX defense attorney on your side as soon as possible can help you protect your rights.  Call Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation


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