No student should have to attend school each day with the fear of sexual assault overshadowing their educational experience. Federal and state law requires instructive institutions to maintain environments that are free from sexual discrimination, vigilant in identifying signs of abuse, and ready to respond in the event of sexual assault.
If you fear that your school is unsafe from incidents of sexual assault due to inadequate policies, negligent enforcement, complaint processes that go nowhere, and a pervasive culture of permissiveness, you may be able to file a lawsuit to hold that institution liable.
California Students Can Sue Universities for Pre-Crime
According to a landmark ruling by the U.S. Court of Appeals for the Ninth Circuit, California students can sue their universities for pre-crime sexual assault. In January 2020, the Ninth Circuit heard an appeal by three former University of California, Berkeley (UC Berkeley) students who claimed the university violated Title IX by maintaining “a general policy of deliberate indifference to reports of sexual misconduct,” and thereby creating “a heightened risk” of sexual violence for their students.
Federal Law Regarding Sexual Harassment
California colleges are expected to create and enforce policies according to Title IX of the Education Amendments Act of 1972, a federal law which states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
The January 30, 2020 ruling opened the door to pre-assault claims, meaning that institutions can be held liable for Title IX policies and procedures even before a sexual assault occurs. Based on the ruling, to state a Title IX claim arising from student-on-student or faculty-on-student harassment or assault, the litigating plaintiff must assert that:
- The school exercised substantial control over the perpetrator and the context for assault.
- The harassment was so severe it deprived the plaintiff of educational opportunities.
- A school official with authority to address the complaint had actual knowledge of it.
- The school acted unreasonably, with deliberate indifference to the harassment.
While the panel affirmed the lower court’s dismissal of the students’ individual claims against the institution, the Ninth Court vacated the dismissal of the plaintiffs’ claim regarding pre-assault liability and remanded the issue for further proceedings.
How UC Berkeley Violated Title IX
The three-panel judge ruling referenced a 2014 California State Auditor report of UC Berkeley’s Title IX processes, which found the school didn’t provide updates on pending investigations, resolve complaints in a timely manner, or provide staff sexual misconduct prevention training from 2009 to 2013.
Berkeley’s early resolution process coerced students into an informal process that lacked thorough investigation so the school could avoid having to report the crimes on their campuses, as required by the Clery Act of 1990. Only two of the 500 reported assaults were formally handled outside this early resolution process, according to the former students’ claim. The U.S. Education Department’s Office for Civil Rights ordered UC Berkeley to revise its Title IX policies following the 2014 investigation, but the enactment of new policies, procedures, and services was significantly delayed. These inadequacies led cases to be mishandled and compromised student safety, according to the Ninth Circuit’s opinion.
What the Pre-Assault Liability Means for Schools and Students
Proving a school acted unreasonably, with deliberate indifference to harassment is not always easy. In the past, the courts have found some delays and inactions to be reasonable. However, now that there’s a theory of “before” or “pre-assault” liability, there will be increased scrutiny on a college’s response to sexual harassment or violence, particularly when the state system has conducted analysis and provided guidance.
According to the Ninth Court: “It may be easier to establish a causal link between a school’s policy of deliberate indifference and the plaintiff’s harassment when the heightened risk of harassment exists in a specific program, but we will not foreclose the possibility that a plaintiff could adequately allege causation even when a school’s policy of deliberate indifference extends to sexual misconduct occurring across campus.”
Title IX does not require a school to “purge its campus of sexual misconduct to avoid liability,” nor does it make a university responsible for “guaranteeing the good behavior of its students.” However, colleges would be wise to take measures to ensure that Title IX complaints are taken seriously, with stronger communication protocols, due process, and fair treatment of complainants.
Laws Against Sexual Assault on College Campuses
There are laws in place designed to protect students from sexual assault on college campuses.
- California Senate Bill 967 passed in 2015, making it necessary for partners to obtain and maintain affirmative consent during a sexual encounter. This “yes means yes” law requires both parties to give their authentic, uncoerced, voluntary, and ongoing affirmative consent every step of the way during a sexual encounter. If one of the parties is intoxicated, passed out, or otherwise silent, consent can’t be automatically implied. Consent may also be revoked at any time. The law also requires schools to adopt a “preponderance of evidence” standard—meaning someone has committed sexual assault if there’s a greater than 50% likelihood of guilt.
- One year later, Assembly Bill 2654 mandated schools to provide a written policy on sexual harassment and information regarding the complaint process; this information must be easily accessible on the school’s website. Colleges must also provide resources and remedies to handle on and off-campus incidents.
- In 2017, the amount of funding to enforce Title IX in UC schools increased from the previous limit of $67,000 set in 2013 to $1.6 million. Assembly Bill 1896 passed in 2018, providing a right to confidentiality when speaking with college counselors.
If a school has failed to act on claims of sexual assault on campus, you may be able to file a civil lawsuit.
What to Do if You Have Fears of Sexual Assault on Campus
You have a fundamental right to feel safe on campus. Here’s what you can do about it:
- If you have been physically assaulted, contact emergency authorities and seek immediate medical attention.
- If you are being harassed based on your sex, gender, or sexual orientation, contact your school’s Title IX Coordinator to file a complaint. Keep copies and detailed notes of all correspondence, including dates, times, and names. We recommend keeping a dedicated folder and calendar pertaining to your Title IX proceedings.
- If you feel your school has failed to adequately investigate your claim or protect other students from similar harassment, you may also file a complaint with the U.S. Department of Education’s Office for Civil Rights, which is the federal agency tasked with Title IX enforcement.
You are not required to speak with local law enforcement, but you are certainly able to file a report if you have been physically assaulted in some manner. If their investigation uncovers significant evidence of wrongdoing, the perpetrator could be arrested, tried by the state district attorney, and given a punitive criminal sentence.
DISCLAIMER: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog or on this website should be construed as legal advice from Lewis & Llewellyn LLP. Neither your receipt of information from this website, nor your use of this website to contact Lewis & Llewellyn LLP creates an attorney-client relationship between you and the firm or any of its lawyers. No reader of this website should act or refrain from acting on the basis of any information included in, or accessible through, this website without seeking the appropriate legal advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s jurisdiction.