Wednesday, February 2, 2022

Third Circuit: University can be held liable for harassment by non-student guest under Title IX

The Third Circuit issued an interesting opinion analyzing a university's potential liability under Title IX for sex discrimination and harassment against a student by a non-student guest. The case is Hall v. Millersville University, et al. The underlying facts are horrific. A student was murdered in her dorm room by her non-student boyfriend. The precedent here, however, applies to Title IX, which covers sex discrimination and harassment more broadly (and ordinarily far short of murder).  

Several of the elements of a Title IX claim warrant little attention: the university received federal funds, sexual harassment occurred, and the harassment deprived the victim of her access to educational opportunities. The remaining elements required some in-depth analysis, which I will only briefly touch on:

Not official use.
The university can be held liable for the non-student's conduct if it "exercised substantial control over the harasser and the context in which the harassment occurred." In concluding that the university exercised such control, the Court noted the university's guest policies, ability to remove people from the premises, and ability to issue "No Trespass Orders."

The university must also have had knowledge of the harassment. Here, it is undisputed that a resident assistant (RA) had reported prior violence in the dorm that had left the student with a black and blue eye. The non-student harasser (i.e. murderer) had been removed from the dorm on multiple occasions. The roommate's mother had also reported concerns to the police. 

Finally, the university must have showed "deliberate indifference" to the harassment. Here, the university got the harasser out of the dorm when it received notice of an incident, which it argued was sufficient to meet its burden. The Court saw it differently:

The record shows that after receiving [the] report, neither Millersville’s Deputy Title IX Coordinator nor its Area Coordinator ensured the report was received by Millersville’s Title IX Coordinator, as they were required to do under Millersville’s own Title IX policy. Moreover, the record reveals Millersville did not reach out to [the victim] after the October 4th incident, and that it did not take any action in response to [the victim's roommate's mother's] calls other than to tell her nothing could be done without a complaining witness. 

Ultimately, the Court concluded that summary judgment was inappropriate here and remanded the case back to the district court where it will presumably be on track for a trial. 

This case will likely cause universities to re-examine how they respond to sexual harassment against  students by non-students. 

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