Higher education institutions in Florida face potential liability when students are sexually assaulted or sexually harassed when it can be proven that the university either failed to prevent it or failed to appropriately respond. back
Recently, the U.S. Department of Education’s Office for Civil Rights launched an investigation into Florida State University’s handling of a rape allegation involving a star football player, specifically examining whether the response may have violated federal Title IX laws. Under the 1972 statutes, both sexual assault and sexual harassment are forms of sex discrimination, and colleges and universities that accept federal funding must investigate these allegations both timely and impartially.
Non-compliance could result in a school having its federal funding revoked, though our Miami personal injury lawyers know this has never happened. However, it has on numerous occasions led to successful lawsuits filed by victimized students.
In order to prove liability under Title IX laws, plaintiffs have to show the school displayed deliberate indifference. As the recent case of Roe v. St. Louis University, et al., illustrates, this is not necessarily an easy threshold to meet. In order to be actionable, an institution’s deliberate indifference must have either caused the harassment (or assault) or made students vulnerable to it. There must be proof that the institution had a substantial amount of control over both the harasser (or attacker) and the context in which the harassment (or attack) occurs.
In defending itself, an institution must show that its response to known peer harassment or the potential threat of it was “not clearly unreasonable.”
That’s a relatively vague standard, and it’s been interpreted in different ways by different courts.
In the recent case against St. Louis University, a student athlete alleged that she was sexually assaulted by a fraternity pledge at an off-campus fraternity house party in the stairwell near the entrance. Both students would later admit to drinking alcohol that night. The male student told officials that the female student had invited him back to her room when they were dancing, that they left the party and ended up in the stairwell where they had consensual sexual intercourse.
The female student maintained the encounter was not consensual. Others had seen her crying at the party, and she told friends while there that she had been sexually assaulted. She later sent the male student a Facebook note, telling him she was aware of who he was and knew that he had sexually assaulted her.
Several days later, she informed one of her field hockey captains about the party and what had happened in the stairwell. The captain advised the student to tell the coach about the assault. She also asked if the police had contacted. They had not. A few days later, the field hockey captain reported the rape to the school’s assistant athletic director.
The assistant director called the student in for a meeting, after speaking with another school official to determine how to best handle the situation. The student reportedly told the assistant director she didn’t remember what happened and she didn’t want the incident reported to either police or her parents. She did not reveal that the attacker was a fellow student.
Several weeks later, the female student was removed from the team for failure to attend classes and keep her grades up. She then withdrew from the school, and at that point, the incident was reported to authorities. Criminal charges were not pressed due to a lack of evidence.
However, schools need not rely on a green light from prosecutors in order to launch their own investigations. In fact, they are required to do so regardless of the outcome of the criminal case.
Later, when the student and her parents sued the school, she alleged deliberate indifference. However, the U.S. Court of Appeals for the Eighth Circuit rejected her claim, finding that the school had not acted unreasonably, based on the circumstances.
Schools that are looking to avoid liability under Title IX should:
Adopt a strong sexual assault policy that includes meaningful efforts to educate students about the crime’s dynamics, effects and factors that allow it to continue. Prevention programs and crisis intervention assistance should be provided.
Ensure that there are policies in place that ensure school administrators are prepared to respond appropriately, should a sexual assault occur. A comprehensive policy can help the school comply with its legal obligations under Title IX.
Review responses to each and every sexual assault or harassment claim to see whether improvements can be made.
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