Third Circuit Holds Universities Can Be Liable for Actions of Non-Students Under Title IX

By Laura Temme, Esq. on February 11, 2022

The Third Circuit Court of Appeals recently reversed and remanded a Title IX case involving a murder in a college dorm in Pennsylvania. The decision sets an important new precedent: A university may be held liable under Title IX for actions by non-students.

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Night Out Ends in Murder

On February 7, 2015, Millersville University freshman Karlie Hall went to a party at a fraternity house with her boyfriend, Gregorio Orrostieta. Orrostieta was not a student at Millersville, but visited Karlie often and stayed with her in her dorm room. The two reportedly had a tumultuous relationship; friends testified about several incidents where Orrostieta became violent with Karlie, including at the February 7 party.

In the early hours of February 8, Karlie's dormitory neighbors heard what sounded like a physical altercation occurring in her dorm room. The floor's resident assistant, Sara Wiberg, had been present for a previous incident in which she suspected a physical altercation between Orrostieta and Karlie, and had on more than one occasion brought in authorities to remove him from the dorm when he had refused to leave in violation of campus policy. Wiberg knocked on Karlie's door, but, hearing no response, did not investigate further.

It would later come to light that Karlie was dead, strangled by Orrostieta.

Karlie's parents sued the university, Wiberg, and the fraternity under several causes of action, including "deliberate indifference" under Title IX of the Education Amendments Act.

Title IX and Deliberate Indifference

Title IX (codified at 20 U.S.C. 1681) states that "no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

In Davis v. Monroe County Board of Education, the Supreme Court held that schools may be held liable for "deliberate indifference" to student-on-student sexual harassment. Under Davis, sexual harassment amounts to a Title IX violation where it is "so severe, pervasive, and objectively offensive" that it deprives the victim of access to educational opportunities. However, the Davis court also noted that "the harasser's identity is not irrelevant," and that deliberate indifference "makes sense as a direct liability theory only where the [school] has the authority to take remedial action." In other words, schools can only be accountable for what they could have foreseen and what they could have prevented.

Third Circuit Reverses Summary Judgment Order

In 2019, Judge Edward G. Smith of the U.S. Court for the Eastern District of Pennsylvania granted the university's motion for summary judgment. The university argued that while Title IX liability for sexual harassment had been applied for parties connected to the school ( such as a fellow student, visiting athlete, or guest speaker), no court had extended such liability to harassment by a third party that was unconnected to the school—as was Orrostieta. Judge Smith found that although there were genuine issues of fact at hand in the case, summary judgment was appropriate because the university lacked notice that it could be held liable for the actions of a non-student guest.

But the Third Circuit disagreed, finding that the plain terms of Title IX notify universities that they could face liability for intentional violations of the statute, and it is an intentional violation 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."

The Third Circuit pointed out that Millersville's Title IX policy required any reports of domestic or dating violence to be forwarded to the school's Title IX Coordinator. And while Wiberg did file such a report after the first incidence in which she had Orrostieta removed from campus, it was never forwarded. The court also pointed out that the school maintained policies about who was allowed on campus. For example, the university controlled who entered its residence halls by limiting access to those with a student ID and by requiring that visitors and students not assigned to a designated residence hall be escorted by a valid resident.

"The Court's holding [in Davis] was not based on upon the classification of the harasser as a student, guest, or other type of third party," Judge Nygaard wrote. "Instead, the Court's focus was on whether the [school] had control over the harasser and the context of the harassment."

The Third Circuit held that Millersville did not lack notice and that genuine issues of material fact exist on all other elements of the Halls' Title IX claim, and as such, remanded the case back to the District Court for further proceedings.

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