By Todd J. Krouner and Jessica Krouner
The headlines are replete with allegations of sexual assault perpetrated by college athletes on fellow students. The alleged perpetrators include recent Super Bowl MVP Peyton Manning, during his time at the University of Tennessee; Heisman Trophy winner Jameis Winston, during his time at Florida State;the captain of this year’s Ivy League champion Yale basketball team; a student athlete at Stanford; and members of the Baylor University football team, to name just a few.
Although the media focuses on athlete-assailants, the epidemic of peer-on-peer sexual assault on campus does not discriminate. A recent M.I.T. study confirms that nearly 20% of students report having been victims of sexual assault. This article examines remedies available to victims of sexual assault on campus under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681, et seq. (“Title IX”).
Title IX provides in pertinent part: “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.”
A Title IX violation subjects the entity to loss of federal funding, which to date has never occurred. In addition, the Supreme Court has recognized a private right of action for students under Title IX. Moreover, because the remedies of Title IX are directed at institutional recipients of federal funding, a private right of action under Title IX is limited to the institution, and not individuals.
Although Title IX does not explicitly mention sexual violence, the Supreme Court and the Department of Education’s Office of Civil Rights (“OCR”) have interpreted Title IX to protect against sexual harassment, including sexual violence, in the university setting. Rape constitutes a form of “sexual harassment” in the most extreme form, and “any allegations of rape or sexual assault reported on campus” must be investigated under Title IX.
Courts are recognizing liability of schools for student-on-student sexual assault. As a general rule, a defendant in a civil case is not liable for the criminal acts of a third party. However, where a school has actual notice of the violent propensities of the assailant, or retaliates against the victim of assault, liability may be imposed under Title IX.
In Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Supreme Court recognized the application of Title IX to a case where a teacher was accused of sexually harassing a student. However, the Court held that in order to prevail, the student had to demonstrate that the school district had “actual notice of, and [was] deliberately indifferent to, the teacher’s misconduct.” In Gebser, even though the teacher was caught having intercourse with the student, the Court affirmed the grant of summary judgment in favor of the school district.
Generally, a school would not be liable for the sexual assault of one student against another, however there are four cases that indicate that there can be liability in circumstances described as the “rape tolerant campus.” Where the plaintiff can demonstrate (a) a pattern of sexual assault, (b) about which the school has actual or constructive knowledge, (c) arising on school property or at a school-related function for which the school has some oversight and/or supervisory responsibility, the California Supreme Court held that the school could be held liable where it had actual notice of prior incidents.
In a 2010 Harvard Law Review article entitled “The Evolution and Limits of the Title IX Doctrine on Peer Sexual Assault” (the “Walker Article”), commentator Grayson Sang Walker lamented the “impossibly high bar for recovery” in cases of rape or sexual assault. To state a claim for rape or sexual assault at a university, the complainant must plead and prove: “(1) substantial control over the harasser and the environment in which the alleged harassment occurred; (2) actual knowledge of the alleged harassment, which be (3) ‘so severe, pervasive, and objectively offensive’ that it deprives [complainant] of equal access to educational programs and activities; and (4) deliberate indifference to the known acts of harassment, defined as a response that was ‘clearly unreasonable’ under the circumstances.”
The Walker Article cites cases involving college athletes, where schools paid substantial sums to settle claims arising under Title IX. The first case arose at the University of Georgia (“UGA”). Tiffany Williams, a UGA freshman, had consensual sex with Tony Cole, a UGA basketball player, in his room. Cole left the room, and Brandon Williams, a UGA football player, emerged from a closet and sexually assaulted Williams. Cole called one of his teammates, Steve Thomas, and told him that they were “running a train” on Williams, whereupon Thomas came to Cole’s room and raped Williams. Cole had arrived at UGA with a documented history of sexual assault. The assailants were each suspended from their respective teams when Williams accused them of rape. However, they were each reinstated within two weeks. The “prompt” hearing required of UGA under Title IX moved at a “glacial pace,” and did not convene for nearly one year, by which time two of the athletes had departed UGA, thus evading discipline. The UGA disciplinary panel eventually concluded that the athletes did not violate the university’s code in connection with the alleged rape. Williams sued UGA for $25 million, and recovered “an undisclosed six figure sum.”
The second case arose at the University of Colorado (“CU”). Lisa Simpson was a student at CU who agreed to host four CU football players at a party at her apartment. Simpson was raped in the presence of a group of players and recruits in her bedroom, while her friend, Anne Gilmore, was raped in the same room by three men. Simpson was intoxicated at the time, while Gilmore had passed out and was incapable of giving consent. A third woman was raped by two football players after leaving Simpson’s apartment. Simpson withdrew from CU. Four of the football players lost their scholarships, but were allowed to represent CU in the Fiesta Bowl the following month.
The district court granted CU’s motion for summary judgment. The Tenth Circuit reversed and remanded. The school and football coach had a history of indifference to allegations of prior sexual assault and the necessity to supervise the recruiting program. The Tenth Circuit ruled that the strictures of actual prior notice laid down in Gebser and its progeny did not apply to these facts, stating: “We find it significant in those cases there was no element of encouragement of the misconduct by the school district … Here, however, the gist of the complaint is that CU sanctioned, supported, even funded, a program (showing recruits a ‘good time’) that, without proper control, would encourage young men to engage in opprobrious acts.” The Tenth Circuit found adequate evidence of deliberate indifference to Title IX violations based on the football coach’s:
i. “general knowledge of the risk of sexual harassment and assault during college-football recruiting efforts;”
ii. actual knowledge of prior sexual assaults during recruiting efforts of which he was informed by the local prosecutor;
iii. permitting unsupervised recruiting efforts to show high school recruits “a good time;” and
iv. participation in a rape tolerant atmosphere for four years prior to the events in question.
The third case arose at Arizona State University (“ASU”). Darnell Henderson was a scholarship football player who was expelled from ASU’s “Summer Bridge” Orientation program in July 2003, for repeated acts of sexual misconduct. These included aggressive language, groping female students and exposing his genitalia. Henderson was the only student ever expelled in the history of ASU’s “Summer Bridge” Orientation Program. Despite knowledge of Henderson’s dangerous proclivities, he was reinstated in the same dormitory one month later without counseling, discipline or supervision.
In March 2004, he raped “J.K.,” a student who lived in the dormitory. The district court denied ASU’s motion for summary judgment based on questions of fact concerning the football coach’s behavior. By expelling Henderson, and permitting him to return, with knowledge of Henderson’s dangerous proclivities, ASU, through its football coach, demonstrated deliberate indifference to J.K.’s rights, and affirmatively enhanced her likelihood of being harmed. Once the district court denied ASU’s motion for summary judgment, the university “promptly settled with J.K.” for $850,000 and ASU’s promise to review its sexual harassment policies.
It was recently reported that the woman who was allegedly assaulted by Jameis Winston settled with Florida State University for $950,000. The University of Tennessee recently settled in the amount of $2.48 million with eight women who alleged that the university responded inadequately to their sexual assault claims.
As damages for victims of rape, all of these awards seem strikingly low. While the searing emotional distress on rape survivors is obvious, there is no indication that any of these survivors received any compensation for their economic loss or prospective impairment of earning capacity due to their likely permanent, partial psychological and cognitive disabilities.
Even where a university has no culpability for the sexual assault of one student by another, it may be liable for retaliating against a student who complains about such assault.
In Kelly v. Yale University, 2003 WL 1563424 (D. Conn. 2003), the district court denied Yale’s motion for summary judgment where a divinity student alleged that she had been raped by a fellow student. Kelly alleged that Yale violated Title IX by fostering a hostile environment and failing to take remedial action against her alleged rapist. The district court held that rape satisfied the severity of the harassment criterion; Yale had notice of the rape and therefore a duty to protect the complainant from harassment; and, the complainant raised a question of fact concerning Yale’s deliberate indifference to the harassment. The action reportedly settled for an unspecified amount approximately six months after the district court denied Yale’s motion for summary judgment.
Universities have a responsibility to protect their students from foreseeable dangers. When victims of sexual assault have the courage to complain, universities must have policies and procedures in place that protect the complainants from retaliation on campus. Title IX provides a remedy for victims of sexual assault where their schools fail them.
 Matt Rocheleau, MIT Survey Sheds Light on Sexual Assaults on Campus, Boston Globe, Oct. 27, 2014.
 Henrick, supra, note 2, at 55.
 Cannon v. University of Chicago, 441 U.S. 677, 717 (1979).
 See Fitzgerald v. Barnstable School Comm., 555 U.S. 246, 257 (2009).
 Stephen Henrick, Note, A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses, 40 N. Ky. L. Rev. 49 (2013) at 52 (citing OCR guidance).
 See Peterson v. San Francisco Comty. Coll. Dist., 36 Cal.3d 799 (1984).
 45 Harv. C.R.-C.L. L.Rev. 95, 110 (2010) (citation omitted).
 Williams v. Board of Regents of the University System of Georgia, 477 F.3d 1282, 1288 (11th Cir. 2007).
 Walker, supra, note 9, at 95.
 Williams, supra, note 11, at 1289.
 Walker, supra, note 9, at 124 (citation omitted).
 Simpson v. Univ. of Colo. Boulder, 500 F.3d 1171 (10th Cir. 2007).
 J.K. v. Arizona Board of Regents, No. CV 06-916-PHX-MHM, 2008 WL 4446712 (D. Ariz. 2008), *1-3.
 Walker, supra, note 9, at 126.
 Marc Tracy, Florida State Settles Suit Over Jameis Winston Rape Inquiry, New York Times, Jan. 25, 2016 (citing 2014 White House report finding costs to rape survivors of up to $240,000, exclusive of prospective impairment of earning capacity).
 Melissa Korn, University of Tennessee Settles Sex Assault Claims For $2.48 Million, Wall Street Journal, Jul. 6, 2016.
 See Laura Hilgers, What One Rape Cost Our Family, New York Times, Jun. 24, 2016.
Reprinted with permission from the “ISSUE DATE” edition of the “PUBLICATION”© 2016 ALM Media Properties, LLC. All rights reserved.