In January, the U.S. Court of Appeals for the Third Circuit affirmed that Title IX provides adequate notice to federal funding recipients of their responsibility to respond to known sexual harassment if they have control over the context and harasser, even when the harasser is a third party.
The Court of Appeals ruled that Millersville University, a public institution in Pennsylvania, could be liable for deliberate indifference to known sexual harassment by a non-student guest. The case arose from the murder of a female student in her dorm room by her non-student boyfriend. The non-student’s months-long pattern of abusive behavior leading up to the murder was well-known and reported to individuals on campus who had some authority to take corrective action, including a campus police officer who failed to file an incident report involving the non-student until after the student’s murder. While the Deputy and Area Title IX Coordinators received actual notice, they did not forward any of the reports to the Title IX Coordinator as required by their policy.
The District Court granted summary judgment in the university’s favor, holding that Millersville lacked adequate notice that it could be liable under Title IX for its deliberate indifference to known sexual harassment when it was perpetrated by a non-student guest. However, the Court of Appeals reversed the lower court’s holding, determining that Millersville did in fact have such notice.
The Court of Appeals stated that Title IX’s plain terms put federal funding recipients on notice that they may face monetary liability for intentional violations of the statute. The court also noted that OCR guidance materials frequently explain that sexual harassment by third parties could result in liability for the institution. The court remarked that the record showed Millersville both knew and intended for its Title IX policy to apply to non-student visitors and third parties, and that the university relied on its other policies to remove the non-student from campus on several occasions.
Substantial control over third parties
Accordingly, the court determined, it is an intentional violation of Title IX for an institution to act with deliberate indifference to known sexual harassment where the recipient exercises substantial control over both the context of harassment and the harasser, including non-student third parties.
The court explained that the Supreme Court’s landmark decision in Davis v. Monroe highlighted that a recipient’s control of the harasser and context is not dependent on a specific classification of the harasser. In Davis, the Supreme Court observed that “the regulatory scheme surrounding Title IX has long provided funding recipients with notice that they may be liable for their failure to respond to the discriminatory acts of certain nonagents…The common law, too, has put schools on notice that they may be held responsible under state law for their failure to protect students from the tortious acts of third parties.”
Based on this analysis, the Third Circuit reasoned, “The Supreme Court made clear in Davis that a funding recipient may be liable for acts of sexual harassment by individuals other than students…[T]he Court’s holding was not based upon the classification of the harasser as a student, guest, or other type of third party. Instead, the Court’s focus was on whether the funding recipient had control over the harasser and the context of the harassment…”
The Third Circuit commented that establishing liability for deliberate difference under Title IX is a high bar and that their decision did little to lower that bar:
We do not think it is likely that a university would have substantial control over any random third party who wanders onto an open campus and harasses students, nor is it likely that a university would have substantial control over all aspects of a campus which is open to the public. Even if the university had such control, however, if the university is not made aware of the third-party harassment or responds in a manner that is not clearly unreasonable, it will not face liability.
According to the court, however, in this case there was sufficient evidence to raise a general issue of material fact as to whether Millersville exercised substantial control over the non-student guest and the context in which the harassment occurred. Among other supporting details, the record showed that the university maintained guest policies for its dorms and relied on these policies to justify exercising control over the guest when removing him from the dorm on multiple occasions. The university also had the ability to issue no trespass orders to keep third parties off campus.
While this case was decided in the Third Circuit, the court’s decision serves as a valuable reminder for schools and universities to respond promptly to any and all reports of sexual harassment, regardless of whether the harasser is a third party, and to make sure to follow the Title IX regulations and your own policies and procedures in responding to and addressing allegations of sexual misconduct.
As always, please feel free to contact our Title IX attorneys if you have any questions about your institution’s obligations under Title IX.
*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.