The Ninth Circuit Recognizes Title IX Liability Based on “Pre-Assault” Conduct

Article here. Excerpt:

'At the end of January, the U.S. Court of Appeals for the Ninth Circuit issued an opinion holding that a university can be liable to a victim of sexual assault under Title IX based on the university’s handling of sexual violence on campus before the student was assaulted. See Karasek v. Regents of the Univ. of Cal., 948 F.3d 1150 (9th Cir. Jan. 30, 2020). In doing so, the Ninth Circuit became the first federal appellate court to recognize such a broad “pre-assault” claim under Title IX.

After the decision, commentators and practitioners quickly sounded the alarm. While concerns over recognition of a new theory of liability are understandable, they are likely overblown: based on case law from analogous contexts, the standard required to prove liability in these cases will be nearly impossible to surmount. The mere existence of a pre-assault claim, however, could drastically increase the discovery burdens faced by universities in Title IX cases because, all of a sudden, how the university handled prior complaints of sexual assault may now be relevant.
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Each student advanced a “typical” Title IX claim based on allegations that UC ‎‎violated the statute by failing, after her assault, to adequately investigate and respond to her complaint. ‎

But each ‎student also alleged an additional, novel claim—that UC violated Title IX by taking actions before their assaults occurred that increased the risk that they would be assaulted. The court referred to this latter claim as the “pre-assault” claim, because it sought to impose liability based on events occurring before the plaintiffs’ assaults to establish liability, not after.'