Court’s Approach to Title IX Deliberate Indifference Lawsuit Anything But Cavalier

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Summary of facts:

Erin Cavalier (Cavalier) and John Doe (Doe) were both freshmen at the Catholic University of America in the fall of 2012. On December 14, 2012, both Cavalier and Doe attended an on-campus party at one of the dorms. Cavalier drank two to three cups of wine, two to three shots of tequila, and a mixed drink of sprite and vodka that contained three shots of vodka, both before the party and within an hour of arriving at the party.

After leaving the party, Doe and Cavalier decide to walk back to Cavalier’s dorm where the two engaged in vaginal sexual intercourse. Midway through the sexual encounter, the condom broke, and Doe ceased penetration of Cavalier’s vagina. Doe informed Cavalier that the condom broke, told Cavalier that he would purchase the morning after pill for her the next morning, and then he left. Cavalier was later found on the dorm’s bathroom floor where she alleged to have been raped.

Cavalier framed her original complaint to Catholic University as non-consensual sexual contact because, contrary to his testimony that the condom broke, she alleged Doe refused to use a condom. Although she told investigators that she had been drinking heavily and couldn’t remember parts of the night, investigators focused solely on her framing of the allegations around consent and disregarded statements and evidence that suggested Cavalier’s incapacitation.

First responders found a used condom in Cavalier’s garbage the night of the incident. When asked about the condom, Cavalier stated that she guessed it was from her encounter with Doe. The panel subsequently[1] found Doe to be not responsible for a policy violation. Cavalier appealed this decision internally on the basis of procedural irregularities.[2] The appeal was denied and she then made a complaint to the Office for Civil Rights (OCR at the Department of Education), followed by this lawsuit in October of 2016, for which the court denied Catholic University summary judgment on Title IX in early 2021.

Significance:

Cavalier’s suit[3] alleged unlawful discrimination under Title IX[4].

Courts determine whether universities are liable for damages under Title IX by using a five-part test. The plaintiff must show: “1) that the University had “Actual Knowledge[5]” of the sexual harassment or discrimination; 2) that the University exercised substantial control over both the harasser and the context in which the known harassment occurred; 3) the sexual harassment complained of must be so severe, pervasive, and objectively offensive that it can be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school; 4) the university was unreasonable in its actions (deliberately indifferent) to the known acts of sexual harassment; and 5) when the university has not engaged in harassment directly, it may not be liable for damages unless its deliberate indifference subjects its students to harassment or makes them vulnerable to it.”

The court first addressed the aspects of Cavalier’s claims that did not reach deliberate indifference. First, the court found that the University was not clearly unreasonable in 1) the training it provided to the Title IX team, 2) the hearing it conducted, 3) the enforcement of the no-contact order, and 4) instituting an inequitable hearing process, because these allegations did not meet the five-part test used to determine institutional liability.

However, in determining whether the University’s response to the alleged rape was deliberately indifferent, the court agreed with Cavalier that a reasonable jury could find that the initial investigation into Cavalier’s complaint was clearly unreasonable on the ground that even though Cavalier consumed at least two shots of tequila, a glass of wine, and two to three shots of vodka the night of the alleged rape, and, more importantly, could not remember what had happened even immediately after the alleged rape occurred, investigators did not give serious consideration to the possibility that Cavalier was incapacitated. Although the University argued that investigators approached the issue in the manner that Cavalier framed her allegations; she believed she was raped because Doe did not use a condom, not because she was incapacitated, the court still found that a reasonable jury could find that the failure of the University to look beyond how Cavalier framed the allegations was clearly unreasonable.

The court was also persuaded that a reasonable jury could find that the University’s decision not to call for a hearing before August 2013, based largely on the investigator’s flawed reports, was also clearly unreasonable for similar reasons. The court reserved for trial the question of whether this deliberate indifference caused Cavalier to undergo further harassment or made Cavalier vulnerable to further harassment.

Key Takeaways:

  • Investigators should explore and investigate every angle of a complaint, regardless of how a party might frame their allegations. The complaint starts the investigation process but is not the sole determinant of its scope. All pertinent policies potentially violated should be part of the notice and charge that is provided to the parties.
  • Courts will continue to scrutinize investigations that fail to consider all relevant evidence within an investigation. While OCR has moved away from the express expectation for “adequate” or “thorough” investigations, those are still pertinent industry standards.
  • Decision-makers should consider the totality of all of the evidence and circumstances when making a policy violation determination. Courts may be skeptical of the reasonableness of decisions that lack such considerations. We could probably debate here whether flaws in Catholic’s approach were procedural, substantive, or some blend of both, but at the end of the day, complaints like this that allege failure to remedy are likely to hold a court’s attention.
  • Where a college conducts an investigation, holds a hearing, and an appeal, courts are rarely willing to find deliberate indifference, even if the alleged victim is disgruntled by the outcome. This court found a fairly unique basis within this suit to keep Cavalier’s claim alive, but her likelihood of success at trial will depend very much on her ability to prove that Catholic University’s actions subjected her to or made her vulnerable to continued harassment.

[1] The panel was made up of four employees of the University who had been trained by the Title IX Coordinator in Title IX and hearing procedures.

[2] Cavalier requested that the student who found her on the bathroom floor the night of the incident and the RA be allowed to testify to the panel. The panel declined this request. Cavalier also requested an expert witness to discuss the effects of alcohol and Adderall on the body, and that too was denied.

[3] The lawsuit in its entirety alleged the investigation and disciplinary process was “wholly inadequate, untimely, and biased,” that the University acted with deliberate indifference in its response to her complaint, which resulted in “severe, pervasive” harassment that deprived her of the educational opportunities or benefits that the University provided to its other students. Additionally, the suit alleged the University failed to enforce the no-contact order or otherwise to protect her “from further harassment by her rapist,” retaliation, and three tort claims under D.C. law.

[4] This analysis focuses only on the unlawful discrimination under Title IX portion of the suit.

[5] Actual knowledge means an official who at minimum has the authority to address the alleged discrimination and to institute corrective measures on the university’s behalf.

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