Federal Court says Title IX Covers Off-Campus Sexual Assault after University System Granted Multiple Transfers for Serial Offender
Doe v. Board of Supervisors of the University of Louisiana System
22-00338-BAJ-SDJ, 2023 WL 143171 (M.D. Louisiana, 2023)
By Dan Fotoples, J.D., M.A., Director of Content Development, TNG Consulting
Doe sued the University of Louisiana System (ULS) after discovering that ULS previously permitted the student who assaulted her to transfer repeatedly within ULS, despite being aware of numerous reports of – and an arrest for – sexual misconduct.
PROCEDURAL HISTORY
Doe filed suit alleging violations of Title IX. ULS filed a motion to dismiss Doe’s claims, arguing Doe failed to argue facts that, if true, could constitute a Title IX violation.[1]
SUMMARY OF FACTS
In September 2018, Doe was sexually assaulted while enrolled as a student at Louisiana Tech University (“Tech”). Her attacker, Daniel Silva, was also a Tech student and recent transfer from the University of Louisiana Lafayette (“UL Lafayette”). The first time Doe encountered Silva, he was helping an acquaintance with homework. Doe met Silva to study on three separate occasions – twice on campus and the third time at Silva’s apartment. At Silva’s apartment, Doe and Silva joined Silva’s roommates for a party in the living room. After consuming too much alcohol to drive home, Doe fell asleep in Silva’s bedroom. Throughout the night, Silva repeatedly sexually assaulted Doe.
After the assaults, Doe frequently encountered Silva on campus, which frightened and re-traumatized her. Doe did not immediately report the assault because she did not know Silva’s last name – she only knew him as “Daniel.” Doe made a report to Tech and law enforcement after she learned Silva’s full name. After Doe filed her report, Silva withdrew from school, and Tech informed Doe they would not investigate or pursue Doe’s report.
At the time of the assaults, Doe did not know that Silva had been reported for sexual misconduct on five prior occasions. Silva’s history of misconduct at UL institutions – and the knowledge of the danger he posed – began during his time at Louisiana State University (“LSU”). After two female LSU students reported Silva for rape, the university banned him from campus. Silva then transferred repeatedly between UL Lafayette and Tech, landing on academic probation after an arrest for rape. In total, despite five alleged assaults, a rape arrest, a campus ban, and academic probation, Silva was able to transfer repeatedly among LSU, UL Lafayette, and Tech. Even after Doe reported her rape to Tech, Silva transferred back to UL Lafayette and graduated with a clean academic record.
Doe became aware of Silva’s history and movements when USA Today published an article detailing Silva’s predatory misconduct and ULS’s failure to respond.
FINDINGS AND SIGNIFICANT ISSUES
Doe argued two variations of a Title IX claim. First, Doe’s “heightened-risk claim” alleged that, prior to her assault, ULS’s deliberate indifference to the threat Silva posed substantially increased her risk of being sexually assaulted by Silva. Second, Doe’s “post-reporting claim” alleged that ULS’s deliberately indifferent response to her own report deprived her of educational opportunities at Tech.
To successfully overcome the motions to dismiss and successfully plead a Title IX claim, Doe must identify facts supporting the following conclusions:
- ULS had actual knowledge of the harassment.
- Silva was under ULS’s control.
- The harassment was based on Doe’s sex.
- The harassment was so severe, pervasive, and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit.
- ULS was deliberately indifferent to the harassment.
ULS challenged the second, fourth, and fifth elements, but the court’s analysis of the second element is the primary takeaway from this case.
First, the court examined whether Silva was under ULS’s control when he sexually assaulted Doe. ULS asserted that Silva assaulted Doe at an off-campus apartment, so ULS had no control. Somewhat surprisingly, the court rejected that argument. In doing so, the court pointed to multiple other cases in which courts determined that off-campus sexual assault is actionable, especially if the university is aware of prior assaults by the same attacker.
The court highlighted the fact that Silva, as a university student at Tech and UL Lafayette, was subject to student codes of conduct, rules, and policies. Additionally, the first two times Doe met Silva, she met him in the library and another building on campus. The court asserted that “common sense dictates that Silva would not have been permitted access to these locations but for the fact he was a Tech student, which, Does alleges, ‘lent [Silva] a sense of credibility and trustworthiness.’”[2] The court continued, stating that those interactions – which should not have happened if ULS had properly handled Silva’s previous behaviors – led Doe to accept Silva’s invitation to study and socialize at his apartment. As a result, the court held the second element was satisfied. Ultimately, the court found in favor of Doe and denied the motion to dismiss.
KEY TAKEAWAYS
- The court’s analysis of the control element is the important point in this case. First, it highlights how courts sometimes deviate from the published federal regulations when establishing criteria for monetary damages that differ from administrative enforcement remedies. The current Title IX regulations generally do not extend Title IX to off-campus conduct in situations where there is no institutional control, but that is about Title IX’s policy reach, not necessarily the scope of its liability. Title IX case law and Title IX regulations do not always align. Title IX regulations were comparatively minimal until relatively recently, but the federal courts have been deciding Title IX cases for decades. Without regulations to guide the early development of Title IX case law, and the constantly changing nature of federal regulations, there are bound to be some differences. That said, Title IX practitioners must comply with both federal regulations and case law, and this case extends Title IX jurisdiction to some off-campus behavior, at least according to one court. It is unclear whether other courts will find this court’s decision relevant or persuasive. The facts here are quite unique, with an alleged serial rapist moving freely among state universities. As a result, this case may not upend long-held understandings of the control requirement of Davis v. Monroe County, but it does raise the question of whether the Supreme Court’s bright line control requirement may be confined to post-assault claims (which Davis was), rather than the pre-assault claims alleged here.[3] Logically, pre-assault claims are more analogous to negligence claims than to discrimination-based claims. It is more common in some applications of negligence law to consider the on-campus effect of off-campus threats as being potentially foreseeable.
- The proposed 2023 Title IX regulations foreshadow expanded off-campus jurisdiction for Title IX, so this court’s decision may be in closer alignment with the impending regulations than with existing regulations. Title IX practitioners should begin preparing for an expansion of Title IX jurisdiction. Are your systems and processes prepared for an increase in reports, investigations, hearings, and informal resolutions? Do you have adequate staffing to handle the increase? What training do you need to provide your faculty, staff, and students so they understand the regulatory changes?
- Revisit your admission and transfer policies and clarify your process to respond to inquiries about former students’ education records. Here, ULS clearly had no process in place, and it led to repeated assaults. Students depend on their colleges and universities to keep them safe, and the courts expect it too. Perhaps one unique lesson here comes from the court’s seeming view of ULS as some form of super-university. Although most courts view liability based on the actions of individual universities, where those universities are knit in to a system (especially a state-wide one), it may become more common for courts to view duties to protect as overarching across all the system’s entities, rather than siloed to each specific campus.
[1] The motions to dismiss also included statute of limitations and sovereign immunity questions, but this summary does not discuss those parts of the decision.
[2] 2023 WL 143171 at 9.
[3] 526 U.S. 529 (1999).