The Department of Justice recently filed a Statement of Interest in Thomas v. Bd. of Regents of the University of Nebraska, a case pending in the United States District Court for the District of Nebraska asserting peer harassment and retaliation claims under Title IX. Following a motion to dismiss and opposition briefing, DOJ (with co-signature from Department of Education attorneys) filed a Statement of Interest, seeking to “explain the legal standards governing peer sexual harassment and retaliation claims for damages under Title IX.” The Statement of Interest stakes out a number of DOJ positions on unsettled or areas of split authority under Title IX and provides a valuable guide for how the current administration interprets Title IX.
DOJ Analysis of Post-Assault Claims
The Statement of Interest explains that post-Davis case law instructs courts to group peer sexual harassment cases as “post-assault” or “pre-assault.” Notably, while the United States Supreme Court has recognized “post-assault” claims, only one Circuit Court has expressly recognized the so-called “pre-assault” claims that DOJ seems to suggest are commonplace. See Karasek v. Regents of Univ. of Cal., 956 F.3d 1093 (9th Cir. 2020). Nevertheless, because the plaintiffs’ allegations in Thomas deal only with the response to complaints of sexual misconduct—as opposed to events leading up to alleged sexual misconduct—DOJ’s statement in Thomas deals only with post-assault claims. DOJ has taken the following notable positions:
DOJ Analysis of Peer Retaliation Claims
DOJ takes the position that peer retaliation is actionable under Title IX under certain circumstances. The Statement of Interest highlights that both the Fourth and Tenth Circuits have recognized that students who suffer retaliation by their student peers may bring claims for damages under Title IX when the institution knows of the retaliation and responds to it with deliberate indifference. “When a student reports sexual assault or other sexual harassment and the school is deliberately indifferent to subsequent peer retaliation sparked by the report, the school should compensate the student subject to the retaliation for any resulting denial of educational opportunity and emotional distress caused by the school’s deliberate indifference.” Statement of Interest at 18.
A copy of the DOJ’s Statement of Interest can be found here. The authors will continue to closely monitor developments in this area.