By Ashley R. Lynam or Kacie E. Kergides
A series of procedural missteps and policy failures led to the tragic murder of a college student on the campus of Millersville University in 2015. Almost seven years later, the parents of the victim won a significant victory in the Third Circuit, which recently found the school could be held liable under Title IX for its deliberate indifference to sexual harassment perpetrated by a non-student guest. The decision, discussed in detail below, is part of a growing national trend holding colleges and universities responsible, both under Title IX and tort law claims, for the safety of their students.
Karlie Hall was murdered in her Millersville University dorm room by her then-boyfriend, Gregorio Orrostieta, in 2015. Hall was a student at the school. Orrostieta was not. Orrostieta was, however, a frequent visitor to the campus and subject to the terms of a guest policy maintained and enforced by the school.
Orrostieta’s aggressive and often violent behaviors towards Hall were known to and documented by various university actors. For instance, in the fall of 2014 Orrostieta was removed from Hall’s dorm room by a resident advisor, and later removed from campus by the police. However, campus police failed to complete an incident report per school policy. Hall’s resident advisor drafted her own incident report but university administration failed to forward it the school’s Title IX coordinator as required by school policy. These facts, and others, formed the basis of Halls’ argument that the school acted with deliberate indifference to known sexual harassment on campus.
Millersville University argued successfully to a lower court that it could not be held liable for the actions of a non-student guest on campus because it lacked notice that deliberate indifference to sexual harassment, if perpetrated by a non-student guest, could result in Title IX liability. Millersville cited an absence of precedent for such a specific finding in both the Third Circuit and Supreme Court.
The Halls appealed to the Third Circuit, arguing that the plain language of Title IX put Millersville on sufficient notice of liability under these circumstances. The Third Circuit agreed, relying on both the plain language of Title IX as well as Supreme Court precedent. In Davis v. Monroe County Board of Education, 526 U.S. 629, for example, the Supreme Court explicitly held that Title IX proscribes sexual harassment with sufficient clarity to satisfy the notice requirement of the Spending Clause, and that damages liability exists where the Title IX funding recipient exercises substantial control over the harasser and the context in which the known harassment occurs. Although Davis involved actions between two students, the Supreme Court holding contemplates control as the standard of application of Title IX liability, which Millersville indeed exercised over Orrostieta, even as a non-student guest, through its various policies.
It is worth noting that Millersville’s Title IX policy at the time was atypically broad in application, covering “all areas of Millersville operations, programs, and sites, and include[d] the conduct of employees, students, visitors/third parties, and applicants.” However, even under current Title IX regulations and more narrowly tailored policies, colleges and universities should expect the level of control exercised by the institution over the parties to serve as the primary point of analysis in liability decisions.
Perhaps more importantly, this holding is a part of a greater trend, pushed forward by well-reasoned and creative attorneys and increasingly receptive courts to hold schools at all levels responsible for the safety and well-being of their students.
As colleges and universities prepare for the anticipated Biden administration changes to Title IX regulations promised to come in April of 2022, this decision serves as a poignant reminder for institutions to abide by their own policies. Consistency in policy procedure and implementation are of paramount importance to avoid creating a triable issues of fact and liability for the institution.
