Important Title IX Decision Involves Unnamed Fraternity Parties

Tim Burke, Manley Burke LPA, tburke@manleyburke.com

The U.S. Court of Appeals has affirmed the denial of Kansas State University’s Motions to Dismiss in a consolidated case that will likely have a lasting impact in how colleges and universities handle claims of sexual assaults that happen at fraternity houses or at off-campus fraternity events.

Two students from Kansas State University (KSU) filed suits against KSU claiming, among other things, Title IX violations in the wake of two separate reports of sexual assault. The first plaintiff attended a fraternity party where she became intoxicated. A designated driver took her back to her dorm room. Sometime later, another student invited her to return to the party. That student picked her up and took her back to his room where they had consensual sex. When he left the plaintiff in the room, a second student emerged from hiding in a closet and assaulted the plaintiff.

The second plaintiff also attended a fraternity party at a location described as “a frequent k-state party location not far from campus .” After becoming intoxicated, a fraternity designated driver took her to his truck. Instead of taking the plaintiff back to her room, he assaulted her in the truck in front of multiple other students, some of whom recorded the assault and later posted the images to social media sites. He then drove the plaintiff to the fraternity house, took her to a room lined with beds, and assaulted her again. The plaintiff was then left in that room where a second student also assaulted her. Both plaintiffs reported their assaults to KSU and the local police.

The University’s refused to address the assaults since they took place “off campus” became the basis for the plaintiffs’ claims that KSU was in violation of Title IX because it was “deliberately indifferent” to their assaults.

The relevant provision in Title IX states:

[N]o person in the United States shall, on the basis of sex, be excluded from participation, be denied the benefits of, or be subject to discrimination under any education program or activity receiving federal financial assistance.

In its decision the Court of Appeals pointed to the Supreme Court’s decision in Davis v. Monroe County Board of Education, which set a precedent for Title IX violations almost twenty years prior. In Davis, the Court ruled that in order to be liable for a Title IX violation based on deliberate indifference, a funding recipient’s “deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it.”

The Plaintiffs argued that KSU’s deliberate indifference put them in the position of having to continue to attend school with their “student-rapists,” and that the fear of encountering their “student-rapists” or other students who knew of the assaults on campus caused them to withdraw from participating in educational opportunities or using KSU resources.

Both plaintiffs reported an ongoing inability to go to class, continued fear, and a withdrawal from campus life and educational opportunities. One of the plaintiffs reported self-destructive behavior including a dependence on alcohol and self-harm. The other’s grades “plummeted” so much so that she lost her academic scholarship.

KSU argued that in order to establish harm from KSU’s deliberate indifference, the plaintiffs had to prove that they endured “further actual incidents of sexual harassment.” The Court of Appeals quickly rejected that position and instead ruled, based in large part on the Davis decision, that the plaintiffs only had to establish that the deliberate indifference made them liable or vulnerable to further sexual harassment.

In considering whether or not the plaintiffs’ claims met that test, the Court of Appeals noted that “KSU’s deliberate indifference to [the plaintiffs’] reports of rape made them vulnerable to harassment by alleging that the fear of running into their student-rapists, among other things, caused them to struggle in school, lose a scholarship, withdraw from activities KSU offers its students, [and] avoid going anywhere on campus without being accompanied by friends or sorority sisters.”

The Court described what happened to the plaintiffs as “horrific,” and found that “KSU’s deliberate indifference caused them objectively to fear encountering their unchecked student-assailants on campus which in turn caused plaintiffs to stop participating in educational opportunities KSU offered.”

It is important to understand the procedural status in this case at the time of the decision. KSU filed a Motion to Dismiss, which was denied by the original trial court. That decision was appealed to the Court of Appeals. When considering a motion to dismiss from a defendant, courts must assume that all the facts in a plaintiff’s complaint are true. When a motion to dismiss is denied, as it was here, the plaintiffs must then prove the truth of those facts at trial. Unless the Court of Appeals decision is overturned by the U.S. Supreme Court, an unlikely event at best, or settled by the parties, the case will be referred back to the trial court for trial.

There can be little doubt that this decision may cause universities across the country to reexamine the way they respond to allegations of sexual assault. It should also be noted that the IFC  suspended the chapter involved in the second case because of an anonymous complaint of alcohol violations.

Relevant to the issues at hand in this case but not commented on in the Court’s decision are the new Title IX regulations recently proposed by the Department of Education. The proposed regulations appear to narrow the obligation of colleges and universities to investigate allegations of sexual misconduct to incidents alleged  to have happened on campus, but may still cover campus-related sites like fraternity houses, even if they are on private property.

¹Farmer v. Kan. St. Univ.,918 F.3d 1094 (10th Cir. 2019).

²Title IX, 20 U.S.C. §§ 1681–88.

³Davis ex. rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 644–45 (1999).

⁴The Court’s decision does not name either of the fraternities in whose houses the alleged assaults took place. Only one Greek organization is named, Chi Omega, because one of the plaintiffs was a member of that organization and noted relying heavily on her sorority sisters after the assaults.