Current Status Pending: Title IX, Deliberate Indifference, & Non-Student Offenders

Maddie Xilas

Associate Editor

Loyola University Chicago School of Law, JD 2023

With the Biden administrations new proposed Title IX regulations set to be published in April of this year, attorneys and advocates alike have been left to speculate as to what changes the Department of Education (ED) will propose. Among this speculation, is a narrower question: will ED, in their proposed Title IX regulations, finally state directly that universities can be held liable for deliberate indifference to known sexual harassment perpetrated by a non-student guest? At this point, any answer to this threshold inquiry would be speculative, but there are a few indicators that suggest the answer may be yes.

The plain language of Title IX

The question of whether a university can be held liable for deliberate indifference to known sexual harassment perpetrated by a non-student guest is surprisingly difficult to answer. However, in its plain language, Title IX is broad in scope:

No person [emphasis added] in the United States 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”.

Clearly, the above language does not suggest that Title IX complaints can only be opened when respondents are students. In fact, as advocates have suggested, the broadness of the protection afforded under Title IX lends itself to the argument that the status, as a student or non-student, of either the complaint or the respondent, should not matter. Yet courts, in attempting to answer the question of whether a respondent must be a student for a plaintiff to make a claim of deliberate indifference, have largely relied on other arguments. Thus, while the plain language itself may not be directly relied upon in arriving at a conclusion that Title IX should be expansive in scope, it does certainty leave room for that conclusion.

Prior ED Title IX guidance

Previous Title IX guidance may also sway ED. A now rescinded 2014 Question and Answer document directly addressed the question of whether a school can be held liable for deliberate indifference to a situation involving a non-student respondent. In this document ED conceded that even in a situation where a school’s ability to take direct action against a perpetrator may be limited, “the school should still take steps to provide appropriate remedies for the complaint, and, where appropriate, the broader school population.”

In their new regulations, ED could look to this Q&A in support of the notion that schools have previously been, under Title IX guidance, expected to take action in response to a complaint about a non-student respondent. Further, ED may use this document to argue that the underlying purpose of Title IX is to protect the greater school population, as well as the complainant. A purpose that quite clearly aligns with expanding the scope of Title IX proceedings.

Case law & Hall v. Millersville

While the plain language and prior ED guidance alone may not convince ED to make clear in their new regulations that universities can be held liable for deliberate indifference to known sexual harassment perpetrated by a non-student guest, recent case law might. In January 2022, the U.S. Court of Appeals for the Third Circuit decided  Hall v. Millersville University. A three-judge panel found that a university receiving federal funds can be held liable under Title IX, “for its deliberate indifference to known sexual harassment perpetrated by a non-student guest.” Hall is a landmark case. No other federal appeals court has ruled on the issue, making it a critical first decision that directly affects a student-complainant’s ability to hold a university accountable, regardless of whether their abuser was affiliated with the school.

Though the importance of Hall is without question, attorneys and scholars have observed that the rule in Hall is well aligned with previous case law. For example, in a recent interview with Inside Higher Ed, Alexandra Brodsky, a staff attorney at Public Justice, a nonprofit which filed an amicus brief in support of the Third Circuit’s ultimate conclusion, made clear that she believes, “this has been the state of the law for a long time.”

The Third Circuit Court of Appeals seems to agree with Brodsky, highlighting in its’ decision that several U.S. Supreme Court cases have indicated that complainants can hold universities liable under Title IX for deliberate indifference, even if the assailants are not students. The court explained that Gebser v. Lago Vista Indep. Sch. Dist., put universities on notice that they could be held liable if they had knowledge of sexual harassment committed by a teacher and were deliberately indifferent to that knowledge. Moreover, the Third Circuit emphasized that another SCOTUS case, Davis v. Monroe County Board of Education, which delineated that schools, “may be liable for acts of sexual harassment by individuals other than students” if they had “control over the harasser and the context of the harassment.” Thus, it is clear that Hall represents a codification of what was likely already the prevailing viewpoint regarding potential liability of a university for deliberate difference of harassment, even if the assailant is a non-student.

Concluding thoughts

While there are no promises in the world of Title IX regulations, the broad plain language of Title IX, prior ED guidance, and newly minted combination of appellate level precedent supported with previously established Supreme Court level case law provides ED with strong arguments if they are in fact interested in codifying what case law already suggests regarding non-student respondents. Hopefully ED, in seeing this, will take the opportunity to finally resolve at least one part of the non-student complainant/respondent standing issue, making it clear to universities that they must attempt to protect students, regardless of the status of their assailants.