Ruling finds Title IX liability for actions by nonstudents (2023)

Millersville University in Pennsylvania was given prior notice that it could be held liable under TitleIX “for its deliberate indifference to known sexual harassment perpetrated by a non-student guest,” a federal appeals court ruled last week.

The ruling revives a lawsuit filed by the parents of Karlie Hall, a student murdered in her dorm room in 2015 by her boyfriend, who did not attend the university.

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In ruling in the Halls’ favor, a three-judge panel from the U.S. Court of Appeals for the Third Circuit reversed the holding of the district court, which had ruled the university lacked notice that it could have been held liable under TitleIX, the statute that prohibits sex-based discrimination in federally funded educational institutions, for violence perpetrated by a nonstudent guest.

“TitleIX’s plain terms notify federal funding recipients that they may face monetary liability for intentional violations of the statute,” the Third Circuit ruling states. “Moreover, it is an intentional violation of TitleIX’s terms for a funding recipient to act with deliberate indifference to known sexual harassment where the recipient exercises substantial control over the context in which the harassment occurs and the harasser, even if they are a third party.”

Jim Davy, an attorney who represented the Hall family, said the ruling “confirms important protections for students in states that are in the Third Circuit and beyond, where if you’re going to a school and the school has knowledge that you’re facing harassment or dating violence or other sex-based violence and they have the ability to do something about that, they have to do something about it.

“They can’t just excuse any responsibility by saying the harassment is happening by a third party,” Davy said. “When you consider the many third-party interactions that happen on K-12 schools and college campuses, this is a really important decision that will protect student rights going forward.”

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Janet Kacskos, a spokeswoman for Millersville, said the university is “thoroughly reviewing the Third Circuit’s opinion and consulting with our attorneys on this matter.”

She said the university “continues to mourn the loss of Ms. Hall, and our deepest sympathies remain with her family and loved ones.”

The lawsuit centers largely on Millersville’s failure to act—at least according to the facts as presented in the Third Circuit ruling—in response to an October 2014 domestic violence incident in Hall’s dorm room during which Hall was injured by her boyfriend, Gregorio Orrostieta.

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Although a university police officer responded, the officer did not initially file a report; an incident report was only filed subsequent to Hall’s murder by Orrostieta several months later.

Furthermore, a report on the incident submitted to the TitleIX office by Hall’s resident adviser allegedly was filed away by Millersville’s deputy TitleIX coordinator, in violation of the university’s policies.

Although Millersville’s TitleIX policy required victims of domestic or dating violence to be contacted, Hall was never contacted by anyone at Millersville following submission of the resident adviser’s report, according to the ruling. The ruling also notes that Millersville had other policies outside TitleIX to control the comings and goings of a guest, including policies requiring guests to sign in and the ability to issue a no-trespass order.

Hall was killed in her room in Bard Hall, a dorm on campus, on the night of Feb.7, 2015. According to the ruling, Orrostieta killed Hall through “strangulation and multiple traumatic injuries” and potentially sexually assaulted her. Orrostieta was convicted of third-degree murder in Hall’s death and sentenced to 20 to 40 years in prison.

In finding that the district court erred in concluding the university could not be held liable under TitleIX for the actions of a nonstudent, the Third Circuit court cited a 1999 Supreme Court case, Davis v. Monroe County Board of Education.

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“The Supreme Court made clear in Davis that a funding recipient may be liable for acts of sexual harassment by individuals other than students,” the Third Circuit found. “Though Davis concerned only deliberate indifference to known student-on-student harassment, the Court’s holding was not based upon the classification of the harasser as a student, guest, or other type of third party… Instead, the Court’s focus was on whether the funding recipient had control over the harasser and the context of the harassment since the funding recipient can only ‘subject’ students to discrimination under TitleIX if it has control over the harasser and remains deliberately indifferent to the harasser’s actions.”

The appeals court found that Millersville’s own TitleIX policies in place at the time Hall was enrolled “contemplated TitleIX liability could result from the actions of third parties such as ‘visitors’ like Orrostieta.”

The appeals court also cited guidance from the Department of Education’s Office for Civil Rights stating that harassment by third parties is covered by TitleIX, and the appeals court disagreed with the interpretation of the district court, which had interpreted the OCR guidance to mean that colleges only were on notice they faced liability for harassment by third parties when the harasser was invited by the university, such as in the case of an invited professor or athlete.

The appeals court further addressed Millersville’s argument that ruling in favor of the Halls “will open the floodgates and subject universities to unwarranted liability under TitleIX for ‘anyone’s on-campus conduct resulting in the disruption or outright destruction of a student’s pursuit of her education,’” as the college put it in its brief.

“While we recognize that this is a valid policy concern, the Supreme Court’s holding in Davis forecloses Millersville’s worry,” the Third Circuit ruled. “To be liable under TitleIX, the university would have to have ‘substantial control over both the harasser and the context in which the known harassment occurs’… Moreover, the university would have to know of the harassment and ultimately respond in a manner that is ‘clearly unreasonable’… We do not think it is likely that a university would have substantial control over any random third party who wanders onto an open campus and harasses students, nor it is likely that a university would have substantial control over all aspects of a campus which is open to the public… Even if the university had such control, however, if the university is not made aware of the third-party harassment or responds in a manner that is not clearly unreasonable, it will not face liability. Put simply, there is a high bar to establish liability for deliberate indifference under TitleIX, and our holding today does little to lower that bar.”

Alexandra Brodsky, a staff attorney at Public Justice, a nonprofit legal advocacy group that joined with the Women’s Law Project in filing an amicus brief in support of the Halls, called the ruling a “clear recognition that schools have an obligation to respond to known sexual harassment that happens within their control regardless of the identity of the harasser. There are no categorical exemptions from TitleIX’s protections if the harasser is the student’s own guest.”

“I don’t want to overstate it, in that I don’t want to say this is some kind of expansion of the law, because I think that has been the state of the law for a long time,” Brodsky said. “But it’s still always helpful to have a court explain the contours of the law in such a clear way.”

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Jake Sapp, chief compliance officer and deputy TitleIX coordinator at Austin College in Texas, and an attorney who studies TitleIX, said he believes the ruling may potentially expand universities’ liability.

“The court specifically cites that there’s an argument this will open the floodgates, allowing liability for any random third party that comes on campus,” Sapp said. “The court says, ‘No, they have to fit within the framework of TitleIX,’ but then they find that the school had control because they had the option to issue a no-trespass order—but the school also has an ability to issue a no-trespass order against anyone who comes on campus. I think it does potentially expand liability for institutions strictly based on the fact that the line of exercising substantial control is grayed a little bit from this case.”

“It’s not necessarily the floodgates opening,” Sapp added, “but it does beg the question of what is the dispositive factor for control.”


What is the possible consequence of noncompliance with Title IX? ›

The ultimate penalty for non-compliance with Title IX regulations is the withdrawal of federal funds, including monies earmarked for student loans.

What did the final rule under Title IX added to the definition? ›

Definition of Sexual. Harassment for Title IX. Purposes. The Title IX Final Rule: Addressing Sexual Harassment in Schools. The Final Rule requires a K-12 school to respond whenever any employee has notice of sexual harassment, including allegations of sexual harassment.

What is the personal liability under Title IX? ›

In practice, Title IX ensures that a student's (or applicant's) status is not influenced by his or her gender, as well as providing equal access to sports and other school-sponsored activities. When a school violates Title IX provisions, certain parties may be held liable for discrimination.

How do you beat Title IX case? ›

Let's briefly consider some common strategies that can be useful in a Title IX dispute.
  1. Obtain Supportive Witness Testimony. ...
  2. Undermine Legitimacy of Complainant. ...
  3. Secure Conflicting Evidence on Social Media. ...
  4. Negotiate with the School or Complainant. ...
  5. Contact Binnall Law Group, PLLC for Title IX Defense Guidance.
Nov 29, 2019

What is one of the consequences for non compliance? ›

Non-compliant businesses are also at serious risk of security breaches, loss of productivity, reputational damage and more. The cost of non-compliance is estimated to be over three times higher than the cost of compliance.

Which of the following can be consequences of non compliance? ›

The Consequences Of Non-Compliance

Such consequences include punitive fines, criminal proceedings, damaged reputations, and sanctioning – all crystal clear motivations to justify AML compliance efforts. All the consequences listed above can lead to serious damage to an organization's credibility and performance.

What is the final rule of Title IX quizlet? ›

Title IX prohibited sex discrimination in educational institutions receiving federal funds from the United States government. It outlawed sex separate physical education classes and stated that schools had to provide either equal sport teams for girls or let the girls try out with the boys.

What is the burden of proof in a Title IX case? ›

In a Title IX case, the burden of proof and of gathering evidence does not fall on either the complainant or the accused, but instead, it falls on the school. That is not to say that the school must side with one party, or that the parties cannot gather evidence and make arguments on their own behalf.

What are the three components of Title IX? ›

Title IX Compliance – Part I: The Three-Prong Test
  • Substantial Proportionality or.
  • History & Continuing Practice of Program Expansion or.
  • Full & Effective Accommodation of Athletic Interests.
Feb 8, 2022

What is the personal liability rule? ›

Being "personally liable" means that a plaintiff who wins a court judgment against your business can satisfy it out of your personal assets, like your bank account, home, or automobile simply because of your status as an owner of the business.

What is an example of individual liability? ›

Some examples of common personal liability claims are: Medical bills that result from a visitor's injury at your home. Legal expenses resulting from lawsuits that seek to recover damages that are potentially covered by the policy. Bodily injury or property damage that results from your negligent acts or omissions.

What is an example of personal liabilities? ›

A personal liability is any debt owed to financial institutions or other individuals. Examples of personal liabilities include home loans, credit card debt, and student loans.

What is beyond a reasonable doubt in Title IX? ›

What is the “beyond a reasonable doubt” standard of evidence? “Beyond a reasonable doubt” is the standard of proof that applies in a criminal trial. It is a very high standard of proof that is significantly greater than the preponderance of the evidence standard and is NOT used in BYU Title IX investigations.

What is the punishment for non-compliance? ›

Imprisonment up to one year or fine Rs. 50,000 to Rs. 1 lakh or with both.

What is the penalty for non-compliance? ›

Imprisonment for Non-Compliance: If a company does not comply with the provisions of Section 148, then the officers in default shall be punishable with imprisonment for a term which may extend up to one year or with fine which shall not be less than Rs. 10,000/- but which may extend up to Rs. 1,00,000/- or with both.

How would you deal with non-compliance? ›

Addressing Non-compliance
  1. taking all allegations seriously;
  2. investigating allegations efficiently and in a timely manner;
  3. assessing the facts objectively and impartially; and.
  4. taking adequate corrective measures and sanctions, in case an allegation is substantiated.

What are examples of non-compliance issues? ›

Unsafe working conditions, wage garnishment, and improper remuneration for work hours and overtime are all instances of non-compliance of your business .

What are some examples of non-compliance? ›

Examples include the perpetration of a fraud resulting in significant financial losses to investors, and breaches of environmental laws and regulations endangering the health or safety of employees or the public.

What is an action for non-compliance? ›

Actions for noncompliance are one or more time-ordered actions that are taken by a policy to help protect devices and your organization.

What is the final rule? ›

A final rule, in the context of administrative rulemaking, is a federal administrative regulation that advanced through the proposed rule and public comment stages of the rulemaking process and is published in the Federal Register with a scheduled effective date.

What is the Title IX common rule? ›

On June 23, 1972, the President signed Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq., into law. Title IX is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity.

What is the three prong test for Title IX? ›

These factors of sufficient interest, ability, and competition must exist before a school is required to add a team under test three.

How do you prove burden of proof? ›

Depending on the jurisdiction and type of action, the legal standard to satisfy the burden of proof in U.S. litigation may include, but is not limited to: beyond a reasonable doubt in criminal law. clear and convincing evidence in fraud in will disputes. preponderance of the evidence in most civil cases.

What is burden of proof in liability claims? ›

The burden of proof is a legal standard that requires parties to provide evidence to demonstrate that a claim is valid. Three levels of the burden of proof, "beyond a reasonable doubt," a "preponderance of the evidence," and "clear and convincing" determine the level of evidence required for a claim.

What is the clear and convincing standard for Title IX? ›

The “clear and convincing evidence standard” means that the information presented in support of the alleged Title IX violation is substantially more likely to be true than untrue (substantially greater than 50%).

Which of the following is not covered by Title IX? ›

Title IX does not cover the single-sex admissions policies of elementary, secondary, (other than vocational schools), or private undergraduate schools.

What are the elements of a Title IX retaliation claim? ›

Applying Jackson, courts have recognized the following elements to support a claim for Title IX retaliation: (1) a person engaged in protected activity, (2) the school took a materially adverse action against that person, and (3) that there was a “but-for” causal connection between the protected actively and the ...

What are the four principles for establishing liability? ›

The Four Elements of a Tort
  • The accused had a duty, in most personal injury cases, to act in a way that did not cause you to become injured.
  • The accused committed a breach of that duty.
  • An injury occurred to you.
  • The breach of duty was the proximate cause of your injury.

What are the three principles of liability? ›

(a) A third party can be liable to pay damages. (b) Plaintiff assumes and accepts the risks. (c) Damage occurs without injuries. (d) The defendant cannot take any defences.

How do you avoid personal liabilities? ›

5 Ways Business Owners Can Avoid Personally Liability for The Debts of Their Business
  1. Create Separate Bank Accounts. ...
  2. Talk to an Accountant / Bookkeeper. ...
  3. Set Up a Company Credit Card. ...
  4. Set Up an Online Presence Separate from Your Own. ...
  5. Keep Corporate Records.
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What is the difference between liability and personal liability? ›

Premises liability claims are about unsafe conditions on someone's property. Personal liability is about someone's own actions. In either case, you might deserve compensation if someone else was careless.

What is the most common form of liability give an example? ›

Current liabilities

They're the most common type of business liability. Examples of current liabilities include: Wages owed to employees. Interest payments for short-term credit purchases.

What are seven examples of liabilities? ›

Some examples of current liabilities that appear on the balance sheet include accounts payable, payroll due, payroll taxes, accrued expenses, short-term notes payable, income taxes, interest payable, accrued interest, utilities, rental fees, and other short-term debts.

What is liabilities and give three examples? ›

Liabilities are any debts your company has, whether it's bank loans, mortgages, unpaid bills, IOUs, or any other sum of money that you owe someone else. If you've promised to pay someone a sum of money in the future and haven't paid them yet, that's a liability.

What is an example of a personal asset vs liability? ›

The property you purchase is a long-term asset that you can grow in value over the years you own it. The cost of the property is spread out over time instead of one year. On the other hand, the mortgage for the property is a liability in your books. The mortgage loan is a long-term debt you owe to a lender.

What were the consequences of Title IX? ›

A recent article in the New York Times found that there are lasting benefits for women from Title IX: participation in sports increased education as well as employment opportunities for girls. Furthermore, the athletic participation by girls and women spurred by Title IX was associated with lower obesity rates.

What would happen if educational institutions failed to comply with Title IX? ›

Title IX Violations

When an educational institution fails to uphold its Title IX responsibilities, it can lose federal funds for violating the law. OCR can also require corrective action and the U.S. Supreme Court paved the way in 1992 for victims to sue institutions for financial restitution and attorney fees.

What are the consequences of non-compliance with reporting procedures? ›

Reputational damage

A non-compliance issue can put a company in a bad light. The brand value and reputation can take a serious hit based on the severity of non-compliance. This can also lead to further loss of opportunities.

What are the consequences of non-compliance with the Code of Ethics? ›

There can be severe consequences for organizations and individuals who do not comply with regulations and ethical standards. Organizations can face financial penalties, loss of licenses or contracts, and damage to their reputation. Individuals can face criminal charges, financial penalties, and job loss.

What is the average settlement for Title IX? ›

That wasn't the case 10 years ago.” Settling complaints from alleged victims in court cost colleges and universities an average of $350,000 in the years following the Obama guidance, and some settlements reached $1 million, UE reported in an analysis of Title IX claims from 2011 to 2015 at 1,600 institutions.

What is an example of a Title IX violation? ›

Sexual abuse or assault, battery, or coercion. Unwanted sexual contact that stops short of rape or completed rape. Use of force or manipulation of unwanted sexual activity. Physical acts where a person is incapable of giving consent or is against a person's will.

Can violation of Title IX result in lose of federal funding to the institution? ›

Anonymity is maintained and institutions are prohibited from retailing against any complainant. Is there a penalty for Title IX non-compliance? Yes! Schools can lose federal funds for violating the law.


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