Doe v. Brown University: Non-Students and the Limits of Title IX Liability

In a case that raises a number of interesting questions, a federal judge in Rhode Island recently held that a student at one school could not bring a Title IX action against another school following her sexual assault by some of the latter school’s students. In Jane Doe v. Brown University, the court granted Brown University’s motion for judgment on the pleadings, holding that because the plaintiff was not a Brown student, Title IX did not permit the plaintiff to pursue her Title IX claim against the university.

The conduct ascribed to the Brown students is despicable. The plaintiff, a Providence College student, was at a Providence bar with friends when she was allegedly drugged by three members of Brown’s football team, taken by them back to their dormitory, and sexually assaulted.  Providence police found references to rape on the students’ cell phones as well as explicit photographs taken of the plaintiff at the time of the assault.  Furthermore, laboratory tests of the plaintiff’s hair detected the presence of two drugs commonly used to incapacitate rape victims.

After Ms. Doe made “several requests,” Brown finally agreed to conduct an inquiry pursuant to its student disciplinary code, but not under its Title IX standards. Two years later, after Ms. Doe was once again compelled to make “repeated inquiries” as to the status of Brown’s investigation, she was informed that Brown “never completed the inquiry concerning her assault and abandoned any disciplinary action against the three Brown students.”  The decision provides no explanation for Brown’s lack of investigatory vigor.

In filing suit against Brown and two of its administrators, Ms. Doe claimed that Brown’s failure to respond to her assault in a meaningful manner left her fearing for her safety as the Brown students in question had “free range of Providence” and were not prohibited from being near her or contacting her. Consequently, she did not feel safe either on the Providence College campus or in Providence itself, which, in turn, resulted in “a hostile education environment” that substantially interfered “with her access to educational opportunities or benefits” at Providence College, ultimately resulting in her withdrawal from school.

In her lawsuit, Ms. Doe argued that Title IX prohibits gender-based discrimination against any “person,” as opposed to any “student”; thus, Title IX was intended to protect all persons coming within the school’s control, including “guests on campus.” While it was clearly not Ms. Does’ wish to be on Brown’s campus, crediting her definition of “guest” could by extension be construed to apply to anyone who happened upon campus, whether voluntarily or involuntarily, whether bidden or unbidden.  In fact, the court characterized her as asserting that so long as one is a student somewhere, then that student is entitled to the protections of Title IX everywhere.

Brown responded that Ms. Doe did not receive any educational benefits from Brown and was thus not entitled to Brown’s Title IX protections. The court ultimately agreed, noting that Ms. Doe was not a Brown student, and that Brown had no control or influence over Providence College’s educational programs.  Thus, “Brown’s acts or failures to act could not have prevented her from getting an education at Providence.”  In support of its decision, the court cited Title IX’s legislative history, which provides that Title IX was intended to address, in relevant part, “discrimination in admission to an institution [and] discrimination of available services or studies within an institution” (emphasis added by court).

The court’s reliance upon precedent was a bit more wobbly. It sweepingly asserted that “the case law holds that the protection of Title IX is generally limited to students attending the offending school,” but went on to note that “the issue of a school’s liability under Title IX to a non-student has been adjudicated in only one published opinion that the Court or the parties could find” (emphasis added).  That trial court opinion, in K.T. v. Culver-Stockton College, was subsequently appealed to the United States Court of Appeals for the Eighth Circuit, which declined to address whether a non-student had standing to bring a Title IX claim.  Instead, the Eighth Circuit held that even if K.T. did, because the school had no prior basis for anticipating such a sexual assault, it was not deliberately indifferent, which is a requisite element of a Title IX claim.  In other words, if the school only had after-the-fact knowledge of sexual harassment, it could not be found liable for it.

One wonders whether the Eighth Circuit’s rationale in K.T. might have proven a better basis for the Doe court’s decision than the latter’s blanket finding that a student is, as a matter of law, precluded from bringing a Title IX lawsuit against a school she does not attend.  For example, what if the Brown students in question had a prior record of sexual misconduct, Brown had the same less-than-robust response, and as a result of the students’ continued presence on campus, they were able to sexually assault Ms. Doe?  Would the court still hold that her consequent trauma was not Brown’s problem despite the fact that Brown had notice of the students’ history and that the Brown students assaulted her in a Brown dormitory on the Brown campus?

The court’s reluctance to make Brown universally liable for its students’ transgressions with non-students is understandable, but Doe had unique circumstances, specifically the two schools’ geographical proximity in conjunction with the assault having been initiated in a Providence bar that both schools’ students apparently frequented.  If Ms. Doe were a student in Chicago and simply been visiting Providence when the assault occurred, it would be difficult to draw a causal link between the students’ ongoing enrollment at Brown and her education almost 1,000 miles away.  Brown and Providence College, however, are less than three miles apart, and both her fear of encountering her alleged attackers again and that fear’s adverse effect on her ability to remain in school are understandable.

Faced with these facts, the Doe court could have adopted the Eighth Circuit’s approach, side-stepping the question as to whether Brown could be held liable by a non-student under Title IX and simply determining whether Brown had been deliberately indifferent to the possibility of such an attack.