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    March 2017

    Liability for Student Sexual Assault: UE's Claims Say OCR and Title IX Are Not the Biggest Dangers

    Ever since the “Dear Colleague” letter (DCL) was issued in April 2011, higher education institutions have faced extraordinary pressure and significant costs to comply with its interpretation of Title IX requirements for addressing sexual violence. Under the new presidential administration, the Office for Civil Rights (OCR) may withdraw or stop enforcing the DCL and related guidance. Despite this possibility, United Educators (UE) strongly advises against scaling back efforts to combat campus sexual violence.

    OCR action to enforce Title IX is not the leading exposure in UE claims; most losses to date have been generated by litigation, including lawsuits and threats to sue, initiated by students. Regardless of what OCR does, student litigation will likely continue due to ongoing widespread publicity and student activism on campus sexual assault. This reality, with sexual assault’s negative effects on the entire community and the institutional mission, demonstrates that institutions should continue investing in effective sexual assault prevention and response measures.


    UE’s Loss Experience

    From 2011 to 2015, UE and our higher education members incurred losses—payments to claimants and defense costs—of nearly $31 million in claims from alleged victims (almost $22 million) and alleged perpetrators (nearly $9 million) of campus sexual assault. Notably, OCR matters were responsible for only 22 percent of the losses in victim claims and 4 percent in perpetrator claims.


    Limitations of Title IX

    An important reason for OCR’s relatively small impact on losses is that money damages for Title IX violations are available only through lawsuits filed in court. While OCR enforces Title IX administratively – e.g., by requiring institutions under review to revise their sexual assault policies and procedures -- it cannot award money damages. Yet even in litigation, Title IX plays a less significant role than might be expected because in court, where the standard of proof is more rigorous than in OCR actions, Title IX violations are hard to prove.  A plaintiff must show that the institution knew about the problem but was “deliberately indifferent,” meaning an official with authority to address sex discrimination ignored or refused to remedy it. However, institutions that must defend Title IX cases in court face considerable disruption and expense.  


    Beware of Negligence and Breach of Contract

    Students bringing litigation more often claimed negligence (for victims) or breach of contract (for perpetrators) rather than Title IX violations, likely because the Title IX standard is so difficult to meet.

    These claims are often more dangerous and costly for institutions than Title IX claims because they are usually easier for plaintiffs to prove. To establish negligence, for example, a student needs to show an institution breached its duty of care to the student, causing the student injury. Students in UE’s claims frequently alleged that, because they were negligently trained, employees who investigated or adjudicated sexual violence incidents made harmful mistakes. Although a plaintiff must establish what a reasonable duty of care means, this is a lower standard than establishing that an institution was deliberately indifferent to sexual assault.

    Similarly, perpetrators in particular frequently alleged breach of contract, rather than Title IX, to argue that institutions did not handle sexual assault allegations against them properly. Whereas Title IX would require a male perpetrator to prove that he was treated unfavorably based on his sex, a breach of contract claim may succeed if the student shows that the institution did not follow the its own published policies governing internal sexual misconduct. Institutions should take care to follow their policies and procedures and to train employees and students on their rights and responsibilities.

    Based on UE claims, higher education institutions do themselves a disservice if they focus narrowly on Title IX and OCR’s enforcement and disregard the higher risk of loss from student-initiated litigation. Student plaintiffs have various avenues to establish liability apart from Title IX, and those alternative legal theories may be easier to prove. Therefore, institutions should remain vigilant regarding campus sexual assault.


    Resources

    Review of Student-Victim Sexual Assault Claims With Losses

    By Hillary Pettegrew, senior risk management counsel

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