Campus Sex Assault Case Sends Warning to Indifferent Colleges

Welcome back to Opening Argument, a column where I dig into disputes lower courts are wrestling with and unpack complicated litigation. On tap today, a look at the scope of liability for sexual harassment on college campuses.

Karlie Hall was a freshman at Millersville University in Pennsylvania when her boyfriend strangled her to death in her dorm room in 2015. Seven years later the college is still fighting claims it could have done more to protect her.

Because Hall’s boyfriend wasn’t a student at the school, Millersville University said her parents couldn’t hold the school liable for failing to better protect their daughter, but the U.S. Court of Appeals for the Third Circuit shot down that defense last month. It appeared to be the first time an appeals court has ever ruled a school could be held liable for not taking action when a student is being sexually harassed by a guest.

How much responsibility schools have under Title IX of the Civil Rights Act to protect students against sexual harassment like dating violence, and in which contexts they must act, is something courts across the country have been grappling with.

Where exactly do you draw the line?

Michael Baughman, a partner in Troutman Pepper’s Higher Education Practice Group, said it would be quite a burden if schools have to regulate the conduct of any visitor on campus.

“That is a somewhat unique holding and creates a slippery slope,” he said.

But to sue a school for monetary damages under Title IX, you have to prove a school had actual knowledge of the sexual harassment, that it had the authority to try and control it, and that it was deliberately indifferent to the situation.

Jim Davy, who represented Hall’s parents in their suit against Millersville, said it’s a high bar that requires the school to almost affirmatively decide not to do anything.

“The reason this came out the way it did was they got so many reports and did absolutely nothing at all,” he said.

What’s interesting is schools actually have to do very little to avoid these types of lawsuits.

Erin Buzuvis, a law professor at Western New England University School of Law, said in an email there’s a wide range of responses that a school could have that’s more than doing nothing that would protect it from liability.

“Schools routinely avoid liability under the deliberate indifference standard by taking some action aimed at addressing the threat, even if it turns out that they were not successful in protecting the student from the harm,” she said.

And the U.S. Court of Appeals for the Ninth Circuit just gave schools on the west coast even more protection.

The court on Jan. 25 affirmed a lower court’s decision to toss out a lawsuit a former student brought against the University of Arizona for not taking action to stop a football player from sexually abusing her. Because the assaults had occurred off-campus, the appeals court said it wasn’t a situation the University of Arizona could control.

In Hall’s case though, the Third Circuit noted Millersville maintained policies for controlling who was allowed on its campus and could have banned Hall’s boyfriend.

“Universities, I would hope, like this one actually already have in many cases the policies that advocates like myself would want them to have,” said Margaret Zhang, former staff attorney at the Philadelphia-based Women’s Law Project, who submitted a friend-of-the-court brief on behalf of 33 public interest groups supporting the Halls.

“The important thing is realizing that it’s not enough just to have the words on paper, but it’s important to actually implement those policies and investigate potential sex-based harassment once they have that actual knowledge,” she said.

Millersville has pushed back against claims that it did nothing. In court filings, the school said the resident assistant intervened in a dispute between Hall and her boyfriend in the dorm four months prior, asked the boyfriend to leave, and called campus police, who escorted Hall’s boyfriend off the property.

Even if it had issued a no trespass order, Millersville said those aren’t ironclad. Choosing not to take that approach might have been a mistake, but it doesn’t amount to deliberate indifference.

In a statement to Bloomberg Law, a spokeswoman for Millersville University said the school continues to mourn the loss of Ms. Hall, and its deepest sympathies remain with her family and loved ones.

“At this time we are thoroughly reviewing the Third Circuit’s opinion and consulting with our attorneys on this matter as we consider our options,” the statement went on to say.

The school has already asked the Third Circuit’s full panel of judges to review the decision, arguing it puts schools at risk of being sued under Title IX whenever anyone who interacts with a student on campus is accused of misconduct.

Though the Third Circuit tried to quash those concerns in its decision, saying it’s unlikely the school would have substantial control over every third party who wanders onto an open campus, Millersville said the court has already “stretched existing law beyond recognition.”

But if schools already have policies in place that allow them to step in when a student is being harassed by a visitor to the campus, is it such a bad thing to hold them liable if they don’t?