By Lauren McCoy, J.D., Assistant Professor and Program Director, Sport and Fitness Administration, Winthrop University
In February 2021, the United States District Court for the Western District of New York in Posso v. Niagara University[1] adopted a Magistrate Judge’s Report and Recommendation to deny Niagara University’s (Niagara) motion to dismiss in part, allowing pre-and post-assault claims of deliberate indifference under Title IX to proceed. This motion stems from a case involving three current and former members of Niagara’s women’s swimming and diving teams alleging sexual harassment and bullying by members of the men’s swimming team. A fourth plaintiff added in October 2019 was not a member of the swim team but was assaulted and harassed by a male swimmer. Under the amended complaint, the plaintiffs alleged violations of Title IX for unequal treatment and gender-based harassment along with negligent administration of a Title IX program, common-law negligence, and breach of contract. The plaintiffs consented to drop the claims for Title IX negligent administration, common-law negligence, and breach of contract after Niagara’s motion to dismiss was filed.
These claims of gender-based harassment stem from a history of verbal and physical misconduct by members of the men’s swimming and diving team. The men’s and women’s swimming and diving teams at Niagara are listed as separate programs but share a coach and function as a single co-ed team. While most of the abuse was verbal, including using derogatory names to refer to female swimmers and sexual innuendos, there were physical abuses as well. Jane Doe-2, who was not a member of the swimming team, was assaulted by a male swimmer in 2018. These abuses were reported to the swimming and diving coaches, the athletic director, the Title IX coordinator, and the Dean of Students without any remedial action or formal investigations into the harassment. Doe-2, after reporting the assault and asking about the Title IX process, was told “it would be difficult on her if she filed a formal complaint[2] .” She was encouraged to use a mutual no-contact order and no other disciplinary action was taken against the swimmer even though he continued a pattern of attempting to intimidate Doe-2 by being near her while on campus.
A college or university is liable under Title IX for deliberate indifference in response to peer-to-peer sexual harassment. According to the U.S. Supreme Court in Davis v. Monroe County Board of Education, a plaintiff must allege that the college was deliberately indifferent and had actual knowledge of sexual harassment that was so severe and pervasive that it deprived the plaintiff of access to educational opportunities[3] . This requirement typically is interpreted by courts to require clearly unreasonable behavior in response to sexual harassment, putting a high burden of proof on the plaintiff.
In responding to Niagara’s motion to dismiss, the Court relied on Karasek v. Regents of the University of California[4] and Simpson v. University of Colorado Boulder[5] , to establish that a university can be liable under Title IX due to an official policy of deliberate indifference that increases the risk of sexual harassment within a particular group or possibly campus-wide[6] . The plaintiffs in Simpson, for example, were sexually assaulted by football players and high school football recruits during recruiting events that were sanctioned by the university and where female ambassadors were tasked with showing the recruits a good time. The ensuing lack of control or response to previous claims of abuse here established the University of Colorado’s indifference to sexual misconduct. Both courts in Simpson and Karasek acknowledged that a university’s policy of deliberate indifference does not automatically provide a plaintiff with causation for their assault because Title IX does not require removal of all sexual misconduct to avoid liability.
These cases highlight that continual indifference can lead to constructive or actual knowledge of the risk of sexual misconduct based on the danger allowed to continue without reproach. The Court found enough evidence here for the plaintiffs to argue that Niagara had knowledge of the history of sexual misconduct associated with the male swimmers. Accordingly, that knowledge could allow a jury to conclude that Niagara’s failure to address the misconduct was enough to establish an official policy of deliberate indifference prior to a specific assault. Finally, the Court concluded that there was evidence of actual knowledge sufficient to establish deliberate indifference under Title IX consistent with Davis due to the number of Niagara employees who were made aware of sexual misconduct and their lack of response could be clearly unreasonable under the circumstances.
While this case was referred to the Magistrate Judge for further proceedings, it could signify a new precedent for defining deliberate indifference under Title IX in the Second Circuit. Actual knowledge does not specify that it needs to direct knowledge of the incident at issue before a university’s actions could be defined as deliberately indifferent. Should a university establish a pattern of indifferent behavior, it could lead to liability without direct knowledge of a specific incident. This may require schools to be more consistent in addressing sexual harassment in programs or activities, especially for those that are repeatedly subject to Title IX complaints.
[1] Posso v. Niagara University¸19-CV-1293-LJV-MJR (W.D.N.Y Feb. 10, 2021).
[2] Id. at 8
[3] Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999).
[4] Karasek v. Regents of the University of California, 948 F. 3d 1150 (9th Cir. 2020).
[5] Simpson v. University of Colorado Boulder, 500 F.3d 1170 (10th Cir. 2007).
[6] Posso v. Niagara University at 13.
