(CN) — The University of California must face claims it maintained a policy of “deliberate indifference” toward sexual assault which increased the risk of harassment on its campuses, a federal judge ruled Thursday.
Three women who were sexually assaulted while enrolled at the University of California, Berkeley, sued the statewide system in July 2015 claiming it failed to address their assaults as required under Title IX, a landmark federal law prohibiting sex discrimination in the education system.
Aryle Butler and co-plaintiffs Sofie Karasek and Nicoletta Commins accuse UC officials of failing to investigate their reports of sexual assault, or delaying investigations and handing down inadequate disciplinary action — all violations of Title IX.
Butler claims a colleague at UC Berkeley – identified only as John Doe – repeatedly groped her on a 2012 school trip at the Wrangell Mountains Center in Alaska, including an incident where the man pushed her against a table, inserted his hands into her underwear and massaged her genitals.
Commins says she was sexually assaulted in 2012 by a male classmate who performed oral sex on her and digitally penetrated her without her consent at her off-campus apartment. And Karasek says she was groped by a male classmate while asleep during a weekend trip to San Diego with the Cal Berkeley Democrats Club, also in 2012.
Three prior assaults took place during club activities within a four-year period and the university took no action despite being made aware of the attacks, Karasek says in the lawsuit.
A 2014 state audit of four California universities, including UC Berkeley, found officials had failed to adequately train faculty, staff and students on how to respond to and report sexual assault.
Under Title IX, the women filed both post-assault claims, addressing the university’s response to their reports, and pre-assault claims over what they call a policy of “deliberate indifference” toward sexual assault.
In 2016, U.S. District Judge William Orrick III dismissed with prejudice Commins and Karasek’s post-assault claims and granted the university summary judgment on Butler’s post-assault claim.
Orrick also dismissed the pre-assault claims, finding that although “the university could have treated them much better” the handling of the women’s reports didn’t rise to the standard of deliberate indifference — one of five elements a plaintiff must satisfy under Title IX to prevail.
This year, the Ninth Circuit affirmed dismissal of the post-assault claims but vacated Orrick’s decision on pre-assault claims.
The appeals court remanded the case with instructions to determine whether the women had adequately alleged pre-assault claims under Title IX.
The university again moved to dismiss the women’s lawsuit, arguing their claims are time-barred and that plaintiffs should have concluded that policies governing sexual assault investigations were inadequate when their own reports were mishandled.
In a 34-page order issued Thursday, Orrick rejected the university’s argument.
“My conclusion is reinforced by the university’s public statements about its process, which would lead many reasonable observers to believe its policies were adequate,” Orrick wrote. “While I do not hold that the university fraudulently concealed its policy, the university’s own behavior contradicts its position today that its students were on adequate notice to inquire further about a policy of deliberate indifference.”
Orrick ruled that the university’s use of an “informal process” to handle sexual assault reports and failure to adequately train the campus community on reporting assaults, as laid bare in the 2014 state audit, is enough to bolster plaintiffs’ claims of deliberate indifference.
“If, as the university’s own Title IX officer publicly claimed, the informal process is inappropriate to resolve sexual assault cases, the university’s use of that process can easily be described as indifferent to at least some reports of sexual assault,” Orrick wrote. “This conclusion is bolstered by the university’s alleged systemic failures to adequately inform incoming students about sexual misconduct and adequately educate staff who must handle the complaints.”
Attorneys for the university system argued that Karasek’s claim fails because her experience of sexual assault was not “sufficiently similar” to the three prior attacks at the club. They also argued the university was initially unaware of the incident because she reported the attack only to campus police.
But Orrick also rejected those arguments.
“As I have explained, the Ninth Circuit’s opinion requires that the harassment Karasek was subjected to be sufficiently ‘severe, pervasive, and objectively offensive.’ Here, she has adequately alleged that it was,” he wrote.
Orrick noted Karasek’s claims that she awoke at 3 a.m. to find her male attacker massaging her legs, back and buttocks.
“He continued to do so for approximately 30 minutes,” Orrick wrote. “The university has pointed to no case in which such egregious behavior was found to not be severe sexual harassment.”
But Orrick found Butler can’t plausibly allege that the university had direct control over “the context in which she was exposed to a heightened risk of harassment,” meaning her claims won’t advance.
Orrick dismissed Butler and Commins’ claims but only gave Commins the chance to amend her complaint within 20 days in order to address causality.
In a statement, UC Berkeley said it is reviewing the judge’s decision closely and is considering next steps. However, it noted the bulk of the claims have been dismissed and what’s left hasn’t been legally established.
The university said it remains committed to an environment free of sexual violence or sexual harassment for students, faculty and staff, and to responding promptly and effectively to reports of such conduct.
Irwin Zalkin of the Zalkin Law Firm, attorney for the plaintiffs, declined to comment at this time.
Orrick set a case management conference for Dec. 15.