2-3-20 Deliberate Indifference

What is an official policy of deliberate indifference? Ninth Circuit allows heightened risk claims under Title IX (Updated)

By Adam Wolkoff, Assistant Director, Student Conduct Institute

On January 30, 2020, the Ninth Circuit Court of Appeals joined the Tenth and Eleventh Circuits in recognizing the right of reporting individuals to bring “pre-assault” claims against their college or university for promoting an “official policy” of deliberate indifference to reports of sexual misconduct.

The Ninth Circuit has subsequently denied en banc review of its decision by a larger panel of judges, and, by order issued April 20, 2020, made two amendments to its January 30, 2020 decision that do not change the substance of SCI’s analysis, below.

While initial coverage of the decision focused on its potential for putting institutions “under a microscope,” little in the Ninth Circuit’s opinion should surprise Title IX and conduct professionals who have followed these issues over the past decade.

Effectively, the court has affirmed that a reporting individual has to meet a very high bar to prove deliberate indifference, and even serious flaws in the process will not meet the standard. But, as the Tenth and Eleventh Circuits determined back in 2007 (four years before the 2011 Dear Colleague Letter on Sexual Violence), the Ninth Circuit has held that, as a matter of law, an institution may be liable for Title IX damages where “the plaintiff plausibly alleges that (1) a school maintained a policy of deliberate indifference to reports of sexual misconduct, (2) which created a heightened risk of sexual harassment that was known or obvious (3) in a context subject to the school’s control, and (4) as a result, the plaintiff suffered harassment that was “so severe, pervasive, and objectively offensive that it can be said to [have] deprive[d] the [plaintiff] of access to the educational opportunities or benefits provided by the school.” Karasek v. Regents of Univ. of California, No. 18-15841, 2020 WL 1916749, at *13 (9th Cir. Apr. 20, 2020), citing Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (U.S. 1999).

Note that the Ninth Circuit initially laid out, in part, this four-part test in its January 30, 2020 decision, but it amended the test through its April 20, 2020 Order to better conform with the 1999 Davis analysis.

This brief will summarize the case and its impact, while highlighting its basic continuity with the mainstream of Title IX case law. Student Conduct Institute members can also learn more about this issue (and receive annual compliance credit) by checking out the Deliberate Indifference discussion in our Casebook and watching our online module on Title IX Liability for Deliberate Indifference at sci.suny.edu.

Case summary

In Karasek, three individuals who were sexually assaulted while undergraduates at the University of California, Berkeley, sued their institution under Title IX, claiming deliberate indifference in the response to their reports, which dated from 2012. They also argued that the institution was liable for creating a heightened-risk of harm to them by maintaining an alleged policy of deliberate indifference to reports of sexual misconduct. A federal district court in California dismissed their claims, and they appealed.

A panel of the Ninth Circuit Court of Appeals affirmed the lower court’s dismissal of these students’ individual claims against the institution. Broadly speaking, the Ninth Circuit affirmed that, while the institution may have acted improperly in responding to the reports, and may have violated its own procedures and those set forth in the 2011 Dear Colleague Letter, its failures did not make it liable for damages under Title IX. Lengthy (but justifiable) delays between the report and sanction did not amount to deliberate indifference, nor did institutional failures to impose interim protective measures or effectively communicate with the reporting individuals. While the panel found some of the institution’s decisions “can be questioned,” they did not rise to the level of a “clearly unreasonable” response sufficient to make it liable for damages under Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).

But the panel vacated the lower court’s dismissal of the plaintiffs’ claim of “pre-assault” liability, and remanded the issue for further proceedings. The Ninth Circuit announced its adoption of the theory, developed more than a decade earlier by the neighboring Tenth Circuit in Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1184 (10th Cir. 2007), that an institution could be liable under Title IX for failing to take reasonable measures to prevent sexual violence when the institution has prior knowledge of the risk sexual harassment and assault within a specific context under the institution’s control.

Yet the court offered a slightly more expansive view of the rule in Simpson, holding that institutional liability need not be limited to knowledge of risk within a specific context by a particular group of persons, like an athletic team, but could apply “in any context subject to the school’s control.” Karasek, supra, at *14.

Potential impact

While this holding suggests a more expansive view of liability than previously addressed, two factors may limit its scope. First, the allegations underlying this case may be highly-specific to the place and time of their occurrence, and may not find parallels in current Title IX practice. Second, in the dozen years since Simpson, courts have broadly applied its principles to a range of contexts beyond the athletic field, making the Ninth Circuit’s announced position something of a fait accompli.

As to the first point, the facts alleged in Karasek, if proven, would amount to clear violations of Title IX (and the Clery Act, although such claims cannot be vindicated through a private lawsuit). The plaintiffs allege that the institution funneled most sexual misconduct complaints through an informal process, to a point that the court deemed “inexplicable”: allegedly, “of the five hundred cases of sexual misconduct reported to UC’s Office for the Prevention of Harassment and Discrimination in 2012, only two were resolved through a ‘formal process.’ “ And, each one of the fourteen sexual misconduct complaints reported to the Center for Student Misconduct in 2013 were resolved through the informal resolution process. The court also reviewed allegations that the campus was sending these complaints to the informal process based on its position that sex offenses resolved through informal measures did not have to be reported under the Clery Act. This mishandling of complaints, combined with a state audit that identified a widespread pattern of failing to update reporting individuals of the status of complaints and investigations, and of failing to timely handle the matters, could show an official policy of indifference to sexual misconduct.

Secondly, this case sits within a fairly well-developed legal landscape. Outside the Ninth Circuit, courts have allowed a “pre-assault” claims to go forward in several contexts, pointing to an established trend in the case law. Its applicability to university athletics and recruiting is clear, as most recently shown in a lawsuit against Baylor University for maintaining “a separate system of discipline for the football team.” Lozano v. Baylor Univ., No. 6:16-CV-403-RP, 2019 WL 4742302, at *7 (W.D. Tex. Sept. 27, 2019). On athletics, see also, Doe v. Michigan State Univ., No. 1:18-CV-390, 2019 WL 5085567, at *9 (W.D. Mich. Aug. 21, 2019); Doe v. Univ. of Tennessee, 186 F. Supp. 3d 788, 807–08 (M.D. Tenn. 2016); J.K. v. Arizona Bd. of Regents, No. CV06-916-PHX-MHM, 2008 WL 4446712, at *17 (D. Ariz. Sept. 30, 2008); Williams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1293 (11th Cir. 2007).

This theory also now extends to institutional responses to known risks of sexual misconduct within campus organizations. Jones v. Pi Kappa Alpha Int’l Fraternity, Inc., No. 2:16-CV-7720-KM-MAH, 2017 WL 4074547, at *9 (D.N.J. Sept. 13, 2017), aff’d in relevant part, Jones v. Pi Kappa Alpha Int’l Fraternity, Inc., No. 17-3272, 2019 WL 1452938, at *7 (3d Cir. Apr. 1, 2019); Gruver v. Louisiana through Bd. of Supervisors of Louisiana State Univ. & Agric. & Mech. Coll., No. CV 18-772-SDD-EWD, 2019 WL 3281090, at *15 (M.D. La. July 19, 2019), appeal filed, 5th Cir., Aug. 19, 2019.

And a third group of successful “pre-assault” claims surround institutional failures to address patterns of intimate partner violence, holding that an institution’s knowledge of domestic and dating violence, and its failure to take action, can constitute deliberate indifference in violation of Title IX. Prasad v. The George Washington Univ., No. CV 15-1779, 2019 WL 2605095, at * 17  (D.D.C. June 25, 2019); Roohbakhsh v. Bd. of Trustees of Nebraska State Colleges, No. 8:17CV31, 2019 WL 3975377, at *12 (D. Neb. Aug. 22, 2019); Hall v. Millersville Univ., No. CV 17-220, 2019 WL 4242515, at *26 (E.D. Pa. Sept. 5, 2019) (in dicta).

To some extent, Karasek fits within a fourth group of claims, wherein an institution could be liable for deliberate indifference for its allegedly indifferent response to federal or state audits that identify deficient response procedures. While such claims have survived the motion to dismiss stage (which is Karasek’s current posture), they have not gone past the more exacting scrutiny of a motion for summary judgment. Compare, Tubbs v. Stony Brook Univ., No. 15 CIV. 0517 (NSR), 2016 WL 8650463, at *9 (S.D.N.Y. Mar. 4, 2016), and Tubbs v. Stony Brook Univ., 343 F. Supp. 3d 292, 320 (S.D.N.Y. 2018). Yet, given its unique allegations—that an institution steered nearly all sexual misconduct claims through an informal process—it may stand alone.


As we always advise, deliberate indifference case law is not the place to look for best practices, or even ethical ones. These cases must meet a very high standard to survive dismissal. Now, the Ninth Circuit, in accordance with several other appellate courts, has taken the position that where the institution intentionally violates Title IX by acting without regard to sexual misconduct complaints, it may be liable for creating a risk of sexual misconduct in any context within the school’s control. Yet institutions who follow their training in the law and best practice of student conduct and Title IX should not panic. The Ninth Circuit’s opinion follows from a dozen years of case law, and its underlying theory has long been an implicit, if not explicit, part of Title IX practice. Members can review our casebook and training module on Title IX Liability for Deliberate Indifference to learn more.