Sexual Assault on Campus

The basics of modern Title IX litigation.

Written by Sean Flammer

Flammer Sexual Assault

In the past several years, federal courts have experienced a wave of litigation arising out of alleged student-on-student sexual assaults at universities.1 As a litigator for state universities, I dealt with close to two dozen of these cases. Most of these suits involve plaintiffs asserting Title IX causes of action against their universities, though many also assert due-process challenges. This article will focus only on the Title IX causes of action typically asserted. The law is developing quickly, with new opinions coming out sometimes multiple times a month.


The Typical University Process
A general outline of the typical process is helpful in understanding the basics of this area of law. Every university is different. But typically, a student (usually called the “complainant”) files a complaint reporting that he or she was sexually assaulted by a fellow student. University policies prohibit a range of prohibited behaviors, including stalking, sexual harassment, and sexual assault. University investigators investigate whether the person accused—called the “respondent”—violated the school’s policy. The investigators typically meet with the complainant, the respondent, any relevant witnesses, and receive text messages or other evidence submitted. This student conduct investigation is separate from any criminal investigation.

During the investigation, the university may implement interim measures designed to limit the extent to which the students encounter each other. If the students share the same class or dorm, for example, the university may alter a student’s schedule or move a student to a different dorm.

Typically after the investigation, if the university believes the respondent violated the university’s policy, the respondent has a hearing before a hearing officer or panel of officers, who are usually staff or faculty members.2 At the hearing, a university investigator or staff member informs the hearing officer of the evidence supporting a disciplinary violation and the respondent puts on evidence, cross-examines those testifying against the respondent, and makes a statement to the decision-maker. Usually the respondent can have an adviser during this process, including attorneys. Historically, the attorneys were not permitted to speak during the hearings, but new Title IX regulations promulgated by the U.S. Department of Education that went into effect on August 14, 2020, allow attorneys to question witnesses and conduct cross-examination in some cases.

After the hearing, the decision-maker decides by a preponderance of the evidence whether the respondent violated the university policy and—if the answer is yes—typically issues sanctions. Most universities allow some mechanism for the respondent to appeal.


Respondent-side Lawsuits
The majority of Title IX suits in this context are brought by respondents found to have violated their school’s sexual assault policies. The U.S. Court of Appeals for the 5th Circuit has not dealt with these issues extensively yet and courts often rely on out-of-circuit district courts for guidance. Other courts have recognized two different applicable Title IX causes of action—“erroneous outcome” claims and “selective enforcement” claims.3

Erroneous Outcome Claims
Courts that have adopted an erroneous-outcome cause of action under Title IX require a plaintiff to prove two elements: (1) that the disciplined student was innocent and wrongly found to have committed the offense and (2) that gender was a motivating factor in imposing discipline.4 To prove the second element—sex bias—the plaintiff may point to “statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making that also tend to show the influence of gender” or “statements reflecting bias by members of the tribunal.”5 A plaintiff must adduce evidence that the university “discriminated against him or her because of sex; that the discrimination was intentional; and that the discrimination was a ‘substantial’ or ‘motivating factor’ for the [university]’s actions.”6

Courts have dismissed erroneous-outcome claims where the university disciplinary decision was based on evidence and a credibility determination.7 Thus, a dispute about consent, for example, will be insufficient alone to support an erroneous outcome claim.

Selective Enforcement Claims
A selective enforcement claim is one where the plaintiff asserts that “regardless of the student’s guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student’s gender.”8 In other words, the plaintiff must adduce evidence that a comparator “was in circumstances sufficiently similar” to the plaintiff and was treated more favorably because of sex.9

Complainant-side Lawsuits

The most common claim asserted by complainants is the deliberate-indifference claim. The essence of these suits is that the university was deliberately indifferent to the report of sexual harassment and the reporting student suffers ongoing harassment as a result or is made more vulnerable to it.10 A university that receives federal funds may be liable for its response to student-on-student sexual harassment/assault if the university:

(1) had actual knowledge of the harassment,
(2) the harasser was under the defendant’s control,
(3) the harassment was based on the victim’s sex,
(4) the harassment was “so severe, pervasive, and objectively offensive that it effectively bar[red] the victim’s access to an educational opportunity or benefit,” and
(5) the [defendant] was deliberately indifferent to the harassment.11

These cases usually turn on the deliberate-indifference element. The law requires that the university “respond to known peer harassment in a manner that is not clearly unreasonable.”12 For damages liability to attach, the university’s “response, or lack thereof, to the harassment must be ‘clearly unreasonable in light of the known circumstances.’”13 The 5th Circuit has stated that this standard “is a high bar, and neither negligence nor mere unreasonableness is enough.”14

It is also crucial that the university have actual notice of the alleged harassment/assault. The U.S. Supreme Court concluded that an educational entity cannot be held liable under respondeat superior, for example.15 Instead, the educational entity must have actual notice. “Actual notice … is critical because ‘it is the deliberate failure to curtail known harassment, rather than the harassment itself, that constitutes the intentional Title IX violation.’”16 TBJ


1. See Doe v. Brown Univ., 166 F. Supp.3d 177, 180 (D. R.I. 2016) (referring to “wave” of cases).
2. The U.S. Department of Education released new regulations in May 2020 that went into effect on Aug. 14, 2020, detailing university procedures applicable in certain cases alleging student-on-student sexual assault. See 34 C.F.R. § 106.
3. See Klocke v. Univ. of Tex. at Arlington, 938 F.3d 204, 210 (5th Cir. 2019) (analyzing Title IX claim through this framework); Plummer v. Univ. of Houston, 860 F.3d 767, 777 (5th Cir. 2017) (analyzing but not explicitly adopting erroneous-outcome and selective-enforcement causes of action).
4. See Plummer at 777.
5. Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994).
6. Doe v. W. New England Univ., 228 F. Supp. 3d 154, 186-190 (D. Mass. 2017) (stating what is required at the pleading stage and dismissing case).
7. See, e.g., Klocke at 211 (affirming summary judgment where decision-maker had significant evidentiary basis to find respondent responsible); Haidak v. Univ. of Mass. at Amherst, 299 F. Supp. 3d 242, 270 (D. Mass. 2018) (granting summary judgment where decision was “supported by substantial evidence and involved a credibility determination”); Pacheco, WL 2017 2670758, at *16 (granting summary judgment where “investigation panel made its decision by reviewing the statements and weighing the witnesses’ credibility” and there was no evidence that decision was influenced by gender); see also Doe v. Univ. of Denver, 2018 WL 1304530, at *11 (D. Colo. Mar. 13, 2018) (“That the investigators ultimately found Ms. Doe’s story to be more credible does not demonstrate that they ‘failed to consider’ exculpatory evidence.”).
8. Yusuf at 715.
9. See Klocke at 213 (affirming summary judgment where plaintiff could not demonstrate that a similarly situated comparator was treated more favorably); Plummer at 778 (affirming dismissal of selective-enforcement claim); see also Yu v. Vassar Coll., 97 F. Supp. 3d 448, 480-481 (S.D. N.Y. 2015) (granting summary judgment on selective-enforcement claim because plaintiff could not demonstrate that “a female would be subject to more lenient sanctions”); Gudgel v. Del Mar Coll., 2018 WL 472829, at *2 (S.D. Tex. Jan. 17, 2018) (granting summary judgment on selective-enforcement claim where male student “fail[ed] to show that Defendant treated any similarly situated female student more favorably under similar circumstances.”); Schaumleffel v. Muskingum Univ., 2018 WL 1173043, at *17 (Mar. 6, 2018) (“Plaintiff, here, has failed to assert any allegations that a female student was not disciplined by Muskingum after a complaint was filed similar to the allegations made against Plaintiff in this case. Therefore, Plaintiff’s conclusory allegations are insufficient to maintain a claim for selective enforcement under Title IX.”).
10. A growing number of plaintiffs are asserting a “heightened risk” claim, whereby the plaintiff alleges that the institution had an official policy of deliberate indifference. In such claims, the plaintiff asserts that “(1) a school maintained a policy of deliberate indifference to reports of sexual misconduct, (2) which created a heightened risk of sexual harassment (3) in a context subject to the school’s control, and (4) the plaintiff was harassed as a result.” Karasek v. Regents of Univ. of Calif., 956 F.3d 1093, 1112 (9th Cir. April 20, 2020) (quotations and citations omitted); Davis, as Next Friend LaShonda D v. Monroe Cty. Bd. of Educ., 526 US 629, 644-645 (1999); and see also Lozano v. Baylor Univ., 408 F. Supp. 3d 861, 882-883 (W.D. Tex. 2019) (denying motion to dismiss on heightened-risk claim).
11. See Sanches v. Carrollton-Farmers Branch Indep. School Dist., 647 F.3d 156, 165 (5th Cir. 2011).
12. Davis Next Friend LaShonda D at 648-649 (1999); Sanches at 167-168.
13. Sanches at 167.
14. Id.
15. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 280 (1998).
16. Lopez v. Regents of Univ. of Calif., 5 F. Supp. 3d 1106, 1122 (N.D. Cal. 2013).

is an assistant general counsel to the University of Texas System Administration. He is a former litigator. Flammer’s views are personal and are not the views of any state entity, including the UT System or any of its component institutions.

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