March 2, 2020
9th Circuit Renders its Awaited Karasek Decision Delivering Good and Bad News for Institutions of Higher Education
by David R. Hunt – February 28, 2020
The Ninth Circuit made its latest pronouncement on institutional Title IX liability on Thursday, January 30, 2020, when it issued its awaited decision in Karasek v. Regents of the Univ. of Cal., ___ F3rd ____, 2020 U.S. App. LEXIS 2933 (9th Cir. 2020). The Ninth Circuit decision is important because it addressed the individual claims of three students regarding two student-on-student assaults and one faculty-on student assault, thus giving clarification on when such claims can give rise to potential institutional liability and, perhaps more significantly, the 9th Circuit expanded institutional liability for what the Court called a “pre-assault claim”, a claim alleging the deliberate indifference of the University of California at a policy level created an atmosphere that lead to the assaults on all three women.
As to the three individual claims, the Ninth Circuit stuck solidly to the Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998)/Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 640, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999) articulation of the need for actual knowledge and deliberate indifference for there to be institutional liability. Of significance regarding its upholding of the District Court’s grant of the Regent’s motions to dismiss and a motion for summary judgment on the three individual claims, the Court held: (1) delay in and of itself is not sufficient to demonstrate “deliberate indifference,” at least where the institution took interim steps to protect an alleged victim from further abuse; (2) that violation of the Department of Education’s 2011 Dear Colleague Letter (“DCL”) or even of the institution’s own policies regarding Title IX investigations does not per se establish deliberate indifference, though such a violation may be considered as a factor in the overall analysis; (3) confirmed that while the induvial cases contained facts the Court found troubling or it might disagree with, it was not to second guess the defendant institution; (4) while the lack of communication with the alleged victim of a sexual assault was “an inexcusable omission” it did not constitute deliberate indifference in light of the fact that the institution had imposed “arguably appropriate sanctions” against the alleged perpetrator; and (5) an inquiry into whether an alleged perpetrator was an employee of the institution and a determination that he was not and was thus not subject to the institution’s policies was indeed an “investigation” adequate under the circumstances.
The Court, however, expanded the law on the issue of what it called the “pre-assault claim.” Frankly, the Court took its prior relatively narrow 2010 decision in Mansourian v. Regents of the Univ. of Cal., 602 F.3d 957 (9th Cir. 2010) [the policy decision disbanding the women’s wrestling team was by definition institutional “policy” and did not require showing actual knowledge or deliberate indifference] and 7th Circuit’s again relatively narrow 2007 decision in Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (7th Cir. 2007) [knowledge with respect to the specific situation of football recruitment and its prior problems was actionable institutional policy in and of itself], and ran with them.
The Court held in Karasek that a plaintiff need not identify a specific policy or problem to allege a sufficient “pre-assault claim.” The Court stated the four elements necessary to state such a claim as follows,
. . . [A] pre-assault claim should survive a motion to dismiss if the plaintiff plausibly alleges that (1) a school maintained a policy of deliberate indifference to reports of sexual misconduct [footnote 5 omitted], (2) which created a heightened risk of sexual harassment (3) in a context subject to the school’s control, and (4) the plaintiff was harassed as a result.
Under this formulation of the test, the Court reversed the District Court’s grant of the Regent’s motion to dismiss the “pre-assault claim” and ordered the District Court reconsider its decision with the Court’s ruling in mind.
The Court may have given insight as to where it thinks the District Court should go on remand, however. It stated that it found “troubling” the allegations of the First Amended Complaint that the California State Auditor issued a 2014 report identifying consistent insufficiencies in the UC’s process. The Court also seemed further troubled by the “incongruity” between UC’s public statements and the UC’s Title IX Officer’s interview in the LA Times indicating that she could not imagine where the use of an “early resolution process” would be appropriate in situations regarding sexual assault and the fact that only two of five hundred cases reported to the UC in a five year period were resolved by formal process. (Karasek v. Regents of the Univ. of Cal., ___ F3rd ____, 2020 U.S. App. LEXIS 2933, 43-44 (9th Cir. 2020).)
The Court then kept the door open for possible further expansion stating in its footnote 5 at page 40 of its opinion,
We do not hold that deliberate indifference to reports of past sexual misconduct is the only form of pre-assault conduct that could result in an institution’s Title IX liability. Rather, we focus on the sufficiency of such allegations because they are what the FAC articulates. We do not have occasion to consider whether other forms of pre-assault conduct could amount to an official policy of deliberate indifference that is actionable under Title IX.
It seems likely that the UC will seek review of this decision by the United States Supreme Court. Until such time, however, institutions are stuck with the good and bad of the Ninth Circuit’s opinion.
 The Court noted that the 2011 DCL had been rescinded in 2013.
 It seems odd that the Court did not simply reverse the District Court’s grant of the UC’s motion to dismiss even though the Court had previously opined at p. 18 of its opinion that it reviewed the District Court’s decision on the motion to dismiss de novo.