By Marie-Victoire Wickers, of Segal McCambridge
Current and former students of the University of Vermont (“UVM”) brought Title IX claims against several defendants, including UVM in Ware v. Univ. of Vt. & State Agric. Coll. Title IX generally prohibits discrimination based on sex in any education program or activity that receives federal financial assistance. The Plaintiffs allege that they were sexually assaulted while at UVM and that the university was deliberately indifferent to the risk of such assaults. The court partially granted the defendants’ motion to dismiss, filed under Rule 12(b)(6), which challenges the legal sufficiency of the claims. This article discusses some of the sport-related claims included in the Plaintiffs’ complaint and whether they survived the Defendants’ motion to dismiss.
Allegations
Plaintiffs claim that UVM was aware and chose to ignore a toxic culture within fraternities that included widespread sexual assault. Plaintiffs also allege that UVM knew about drug and alcohol abuse among student-athletes and had a history of covering up controversies, particularly within the basketball team, which was known for sexually predatory behavior. In addition to that, the Plaintiffs claim that Club sports hosted parties with dangerous alcoholic drinks and operated with little oversight, fostering an environment that encouraged sexual assault. In general, the Plaintiffs also argue that UVM’s Title IX policies were generally deficient and should have been improved.
The Question of Pre-Assault Title IX Claims
The first issue the court addressed was whether Title IX permits actions against universities for inaction. The Court emphasized that when deciding a motion to dismiss, it must accept the factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor.
The Defendants argued that Title IX does not allow for actions against universities for inaction despite known risks of sexual misconduct or that such liability should only be imposed in narrow circumstances. The Court noted that nothing in Supreme Court decisions on Title IX supports the notion that a recipient entity cannot be held liable for actions taken prior to an assault. The Court cited the Davis v. Monroe Cty. Bd. Of Educ., 526 U.S. 629, 648, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999) decision, in which the court explained that liability stemming from recipient actions resulting in third-party discrimination contemplates pre-assault liability. The Court concluded that Title IX aims to eliminate discrimination in education, including taking proactive steps to remedy discriminatory situations when the recipient entity is aware of danger, even before an assault occurs.
The Court then outlined what a plaintiff must allege to state a claim for pre-assault liability under Title IX. These requirements include that Plaintiffs must establish “(1) substantial control, (2) severe and discriminatory harassment, (3) actual knowledge, and (4) deliberate indifference.” (See Davis) The question of actual knowledge was particularly important in this decision. The Court found that actual knowledge can be established when the entity has an official policy of discrimination. Karasek v. Regents of the Univ. of Cal., 956 F.3d 1093 (9th Cir. 2020); For example, a school that pairs football recruits with female ambassadors to show them a good time is fostering an environment that creates a risk of sexual assault. The Court found that an entity can only be liable under Title IX for its own actions, and when an institution’s policy creates a heightened risk of sexual harassment, liability is properly imposed.
The Court found that Plaintiffs have plausibly stated that UVM maintained an official policy supporting a heightened risk of sexual assault on campus. The Court examined whether a general campus-wide policy of indifference to sexual assault could support Plaintiffs’ Title IX liability. Courts disagree on whether a general policy of indifference is sufficient. Some courts require allegations of misconduct in a specific context, while others have allowed complaints alleging campus-wide policies of indifference to survive motions to dismiss. Here, the court found that UVM’s deliberate indifference to campus conditions that created a substantial risk of severe and pervasive discrimination was adequately alleged. The plaintiffs pointed to multiple instances where regulatory entities recommended changes to UVM’s Title IX policies, which UVM either ignored or failed to publicize.
With regards to Plaintiff’s claims specific to the men’s basketball team, the Court found that the Plaintiffs’ allegations were not sufficiently specific to survive the motion to dismiss. The plaintiffs did not provide specific details about incidents of sexual misconduct involving the basketball team. or a Title IX claim to survive a motion to dismiss, the plaintiffs must show that a university official with the authority to address the alleged discrimination had actual knowledge of the misconduct. Plaintiffs mentioned that the basketball house was known for sexually predatory behavior and that another basketball player was accused of sexual misconduct, but they did not specify the nature of these incidents or provide concrete examples. Similarly, regarding club sports the Plaintiffs failed to provide detailed, specific allegations connecting UVM’s policies or actions to the alleged misconduct within club sports. Plaintiffs were also unable to demonstrate that UVM officials had actual knowledge of these issues. As a result, the judge dismissed these claims.
Negligence
Plaintiffs claim that UVM breached their duty of care owed to the Plaintiffs under Vermont negligence law. Vermont negligence law requires proof of these four elements: a legal duty owed by the defendant to the plaintiff, a breach of that duty, actual injury to the plaintiff, and a causal link between the breach and the injury. The Vermont Supreme Court has established that generally, there is no duty to control the conduct of another to protect a third person from harm. This includes universities, which do not owe a student a duty of care solely by virtue of the university/student relationship. However, a university may incur a duty if it foresees or could have foreseen an unreasonable risk of injury through reasonable investigation.
The plaintiffs argued that UVM had a duty to protect students from foreseeable sexual assault, particularly by male athletes and members of the Men’s Basketball team. They pointed to: (1) Posts on public forums documenting sexual misconduct within the Men’s Basketball team and UVM Athletics more broadly (2) Knowledge by a Coach that the Basketball House was a site for sexually predatory behavior and that at least one resident had previously acted inappropriately towards women; (3) A 2017 lawsuit against UVM centered on a sexual assault committed by a male club sports player.
The court dismissed the Plaintiffs’ negligence claims, finding that the allegations did not plausibly establish that UVM had specific knowledge of a foreseeable risk of harm to the plaintiffs. The court emphasized that generalized knowledge of inappropriate behavior is insufficient to expose an entity to liability. Instead, the Court explained that there must be knowledge of specific, similar acts or incidents of harm. Here, the plaintiffs did not provide sufficient specific evidence that UVM officials knew of a particular risk posed by the Men’s Basketball team or club sports that would necessitate a duty of care. The claims were deemed too vague to establish a legal duty based on specific knowledge of future risk.
Conclusion
The court’s decision in the UVM case underscores the stringent requirement for specific allegations in Title IX and negligence claims. Plaintiffs are required to provide detailed evidence of actual knowledge of risks or specific incidents to support their claims. The decision also clarifies that an entity can be liable under Title IX for its own actions when its policies create a heightened risk of sexual harassment. Such liability is properly imposed when an institution’s deliberate policies foster an environment conducive to harassment.
