University Sexual Harassment, Title IX, College Sexual Assaults must have Notice to Proceed

The case of Doe v. UNION COLLEGE, No. 1: 19-cv-284 (GLS/CFH) (N.D.N.Y. Mar. 5, 2020) arises as a result of longstanding policy and what the Plaintiff alleges as the indifference of the college the groups of raucous men that form fraternities but, in this particular case, the fraternity of TD Chi:

On or about September 3, 2017, plaintiff, having arrived early to campus for a pre-orientation leadership program, attended a party at the all-male fraternity TD Chi. (Am. Compl. ¶¶ 22-25, 28.) According to plaintiff, "TD Chi's parties are known by the entire College community to pose a significant risk to female students of sexual assault, harassment, and sexual violence," (id.¶ 28), and Union "permitted and condoned its all-male fraternities, including and especially TD Chi, to foster a social environment rampant with sexual violence and harassment towards women," (id.¶ 32).

College rape, college sexual assault and university indifference to college rape, college sexual assault and college discrimination matters often result in complaints and, here, a lawsuit against the entirety fraternity. Cory H. Morris, Esq. handles the complaints and defense of such matters, in New York and Florida, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA), and, specifically, Hostile Educational Environments.

Plaintiff appears to allege Title IX liability premised on University defendants' deliberate indifference based on both Union's official policy in her first cause of action, and on University defendants' response to plaintiff's allegations regarding the assault in her second cause of action.

The legal precedent and rule in this matter is cited by the court as the following:

Title IX provides a private right of action against a federally-funded education institution based on peer sexual harassment "where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities." Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999). To allege a Title IX claim arising from harassment, a plaintiff must allege three elements: (1) "sexual harassment. . . that is so severe, pervasive, and objectively offensive that it" deprived the plaintiff of "access to the educational opportunities or benefits provided by the school"; (2) the school had "actual knowledge" of the harassment; and (3) the school was "deliberately indifferent to the harassment." Id. at 650.

Indeed, nearly a decade ago, the court in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999) held that colleges, most receiving federal funding and the glut of students who attend receiving federal aid, cannot simply bury their heads in the sand to college rape, college sexual assaults. Through its progency, Davis has been extended to apply towards such indifference and hostile educational environment cases as the one here.

In this case, the Plaintiff alleges deliberate indifference in her amended complaint. The Court recites the Second Circuit standard for deliberate indifference in context of a Title IX sexual assault claim: A defendant acts with deliberate indifference both when its response to known harassment "is clearly unreasonable in light of the known circumstances, and when remedial action only follows after a lengthy and unjustified delay."Hayut v. State Univ. of N.Y.,352 F.3d 733, 751 (2d Cir. 2003)(internal quotation marks and citations omitted). "Deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it."Davis,526 U.S. at 645 (internal quotation marks, alterations, and citations omitted). "Only actual notice by an `appropriate person' who can rectify a violation of Title IX can support a claim under Title IX."Bliss v. Putnam Valley Cent. Sch. Dist.,No. 7:06-cv-15509, 2011 WL 1079944, at *5 (S.D.N.Y. Mar. 24, 2011)(citingGebser v. Lago Vista Indep. Sch. Dist.,524 U.S. 274, 290 (1998)).

While the Court agrees with the University (the Defendants) that the actions taken against the Plaintiff were not on the basis of her gender, the Court holds that " the complaint contains allegations that, taken together, support a plausible claim that University defendants were deliberately indifferent to her Title IX complaint." To support this finding, again in response to the University's motion to dismiss, the court takes careful note of the following as alleged by the University,

- instructing Plaintiff to file a formal Title IX complaint;

- meeting with a mandatory reporter who assisted Plaintiff;

- Plaintiff submitted a written statement;

- convening a conference;

- confronting the assaulter/accuser's statement;

- holding a hearing; and

rebuts these actions with the finding that "the panel allegedly failed to provide plaintiff with necessary hearing materials—which were provided to Roe—even after she made the panel aware of the fact that she did not have these materials....[and] Plaintiff also alleges that she was not provided an opportunity to submit an impact statement at this time, even though Roe was."

What about the notice of this fraternity? Should the University have known of its tendencies to take advantage, engage in sexual assault, intoxicate and rape women? To successfully claim that University defendants violated Title IX through a policy of deliberate indifference, plaintiff must establish that the school was "on actual notice that theirspecific policies and responses to sexual assault were deficient, and their subsequent failure to remedy these policies was the proximate cause of her sexual assault."Tubbs v. Stony Brook Univ.,343 F. Supp. 3d 292, 319 (S.D.N.Y. 2018). "[S]omething more than general knowledge of assaults campus-wide (i.e., some greater specificity) is required to satisfy the actual knowledge requirement."Tubbs v. Stony Brook Univ.,No. 15 Civ. 0517, 2016 WL 8650463, at *9 (S.D.N.Y. Mar. 4, 2016).

The Court claims that this is insufficient notice and dismisses the case. Even at the beginning, the pleading stages, of a sexual harassment, Title IX assault, Title IX rape case, the Plaintiff must plead that the university had actual notice.

Obtaining records and evidence of such notice, whether through subpoena, Freedom of Information Law, pre-action discovery, etc, may be necessary to obtain such documentation. Here the Court suggests that without such proof, or pleading, that such action will not be able to survive a motion to dismiss, as is the case here.

The case is Doe v. UNION COLLEGE, Dist. Court, ND New York 2020. Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA).