SAN FRANCISCO (CN) – Expressing resignation that the law doesn’t allow for more leeway to hold schools accountable for how they investigate campus rapes, a federal judge on Thursday tossed accusations by two female students at the University of California, Berkeley, who claimed the university didn’t do enough under Title IX to address their sexual assaults.
U.S. District Judge William Orrick dismissed the students’ claims without leave to amend, finding they hadn’t shown – despite repeated attempts – that the way the university handled their sexual assaults rose to the standard of “deliberate indifference” needed to make their case under Title IX, a 1972 federal law that prohibits gender discrimination in the education system.
However, Orrick ordered the university to file a response to a third student within 20 days.
To state a claim under Title IX, a school’s handling of a sexual assault must be “clearly unreasonable” and constitute “an official decision not to remedy the violation,” a standard set by the U.S. Supreme Court in Davis v. Monroe County Board of Education.
“If it was my decision to make, based on the allegations I would have acted differently,” Orrick wrote in a 31-page ruling issued Thursday. “The ‘deliberate indifference’ standard is difficult to meet, but it is the law under Title IX.”
The first student, Sophie Karasek, was groped while asleep by a male classmate during a weekend trip to San Diego with the Cal Berkeley Democrats Club in 2012.
Karasek said the university didn’t tell her she had to file a written complaint to start an investigation and that it took eight months to respond to her complaint after she finally made one – when her perpetrator was set to graduate.
The university placed the perpetrator on disciplinary probation and sent him to mental health classes and drug and alcohol counseling.
The second student, Nicoletta Commins, was raped by a male assailant who performed oral sex and digitally penetrated her without her consent at her apartment, also in 2012.
The university placed the assailant on interim suspension but ultimately allowed him to continue taking classes as long as he left campus after they were over.
Later that year, the assailant was convicted of felony assault for the attack on Commins and was sentenced to five years probation. In response, the university suspended him, placed him on disciplinary probation and assigned him a reflective writing assignment.
Commins accused the university of relying on an informal disciplinary process and not allowing her to present evidence against her assailant, and of failing to tell her she could appeal its decision.
Orrick, however, previously ruled that while those factors belied negligence and carelessness on the school’s part, they weren’t sufficient for establishing Title IX liability.
To remedy their claims, Karasek and Commins accused the school in their fourth amended complaint of violating its sexual harassment policy, interim sexual misconduct policy, sexual misconduct policy and code of student conduct in the way it handled the assaults.
On Thursday, Orrick found that the school had violated those policies.
“I agree with plaintiffs that, at some point, a decision to act contrary to established policy seems clearly unreasonable,” he wrote.
But the university’s response to the assaults didn’t amount to an official decision “not to remedy the violation,” the judge ruled
“I disagree with his interpretation,” Alex Zalkin, an attorney for the plaintiffs, said in an email Friday.
The initial complaint included another plaintiff, Aryle Butler, who was groped repeatedly while on assignment at UC Berkeley’s Wrangle Mountain Center in Alaska in 2012.
Despite reporting the assaults to university authorities after she returned to campus, they never followed up, instead asking her if she ever rebuffed the assailant and lecturing her on the false reporting of sexual assaults, according to the complaint.
Orrick allowed Butler’s claims to proceed in a December 2015 ruling.
Zalkin is with The Zalkin Law Firm in San Diego.
The university is represented by Bradley Philips of Munger Tolles & Olson in Los Angeles. He did not respond to a request for comment.