United States: Hall v. Millersville University: Third Circuit Clarifies Title IX Liability For Third Party Conduct

On January 11, 2022, the U.S. Court of Appeals for the Third Circuit issued a precedential opinion in Hall v. Millersville University. The Third Circuit reversed the district court's grant of summary judgment for Millersville University, and found that federal funding recipients may be held liable under Title IX even when the harassment is committed by third parties completely unaffiliated with the recipient. The Court relied on U.S. Supreme Court decisions holding that funding recipients could be liable under Title IX where the recipient was aware of harassment and had authority to address it, but remained deliberately indifferent.

BACKGROUND

Plaintiffs John and Jeanette Hall sued Millersville University pursuant to Title IX after their daughter, a student at Millersville, was murdered in her dorm room by her boyfriend, a non-student guest. The student had invited the boyfriend into her dorm room. The University had previously removed the boyfriend from campus for violent behavior against the student.

The district court granted summary judgment, reasoning that the University lacked notice it could face liability under Title IX for the actions of a non-student guest. On appeal, the Third Circuit disagreed and concluded that the University did have notice that it could be liable under Title IX for its deliberate indifference to known sexual harassment by a third party. The Third Circuit also pointed to the University's own policies, which were intended to be binding over third parties on campus.

THIRD CIRCUIT DECISION

The Third Circuit recited the elements of Title IX liability as: (1) a recipient received federal funds; (2) sexual harassment occurred; (3) the recipient exercised substantial control over the harasser and the context in which the harassment occurred; (4) the recipient had actual notice of the harassment; (5) the recipient was deliberately indifferent to the harassment; and (6) the harassment was so severe, pervasive and objectively offensive that it deprived the student of his or her access to educational opportunities provided by the school. The Third Circuit then discussed a few of these elements.

With respect to the University's control over the harasser and the context in which the harassment occurred, the record showed that the harassment occurred in the dormitory and that the University maintained guest policies establishing rules for overnight guests. Further, the University had removed the harasser from the dorm on at least two occasions prior to the murder – once at the student's request, and a second time when the harasser was caught on campus during the winter break. Further, the University had the ability to issue "no trespass orders."

On the other side of this issue, the record also contained evidence of the University's lack of control, including that the "no trespass orders" had not proven effective and that the student bypassed the University's guest policies, for example, by allowing her boyfriend to enter through a rear entrance without signing in. Given this competing evidence, the Third Circuit concluded that there was a genuine dispute of material fact on the issue of the University's control, and was best left for the jury.

As to the University's suggestion that it lacked notice that it could be liable under Title IX for the actions of non-student harassers, the Third Circuit noted that Millersville's Title IX policy applied to non-students, defined sexual harassment to include intimate partner/dating violence, and required that incidents of harassment be reported to the Title IX Coordinator. The school's policy stated that it covered the "conduct of employees, students, visitors/third parties, and applicants." Thus, there was evidence that the University had notice that third party conduct could trigger Title IX liability.

On whether an appropriate person at the school had "actual notice" that this particular student was suffering harassment, as required by Title IX, the Court found that based on the record, a jury could reasonably find that appropriate persons at Millersville had actual notice of the harassment in this case. A resident assistant ("R.A.") had made a written report to the Title IX Coordinator documenting an earlier violent incident between the student and her boyfriend, which resulted in the University removing the boyfriend from the dormitory. Additionally, another student's mother reported to the University police that the student had a black eye from the boyfriend. These factual allegations established a genuine dispute as to whether Millersville had actual notice of the harassment.

With respect to deliberate indifference, the Third Circuit recited that, "to avoid liability a funding recipient must simply respond to known harassment in a manner 'that is not clearly unreasonable.'" The Third Circuit pointed to evidence in the record that suggested the University may have failed to follow its own Title IX policy and that no one from either the University police or the Title IX Coordinator's office reached out to the student after the R.A.'s report. The Third Circuit concluded, "Certainly, Millersville's inaction in response to these reports raises a genuine issue of fact best left to the jury." The Court noted that it is still "a high bar to establish liability for deliberate indifference under Title IX, and our holding does little to lower that bar."

On causation, the Court explained that the question is not whether Millersville's alleged deliberate indifference caused the student's murder, but whether deliberate indifference resulted in her being excluded from participation in, denied the benefits of, or subjected to discrimination under Millersville's education program. Summary judgment was inappropriate on this element because there was some evidence that the student rarely left her room and often missed class.

ANALYSIS

In short, Hall v. Millersville directs federal funding recipients to act reasonably to protect their students from harassment. This may include, for example, following school policies and affirmatively reaching out to offer support services any time the school is made aware of possible harassment.

Unlike disciplining a student accused of sexual harassment, which now requires a written formal complaint according the federal regulations effective August 2020, schools need not wait for a formal written complaint before offering supportive measures to students affected by possible harassment. Services to preserve or restore equal access to the college's programs do not require an investigation or a finding of responsibility.

Supportive services regularly offered by institutions of higher education can include, among other individualized non-disciplinary approaches: assistance with finding counselors and domestic assault support services; changing locks; providing campus escorts; making adjustments to class and/or work schedules; housing relocations; deadline extensions; leaves of absence; increased security; no-contact orders; and creating safety plans. It is unclear from the Third Circuit opinion what measures were offered to the Millersville student or whether any supportive measures might have assisted her.

Federal funding recipients may find it helpful to review their policies related to sexual harassment, make appropriate updates, and offer training to students and staff. Ensuring that these policies are understood and followed by recipient staff is an important part of a recipient's Title IX approach.

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