SAN FRANCISCO (CN) – A federal judge on Wednesday said he will likely toss a lawsuit accusing the University of California of failing to investigate a former UC Berkeley student’s reports of sexual assault, putting an end to the three-year-old case.
Although U.S. District Judge William Orrick III acknowledged university officials should have done a better job of handling plaintiff Aryle Butler’s complaints, he concluded Butler likely can’t prevail under Title IX’s strict standards because the university has no affiliation with the assailant and the assaults occurred off-campus.
“What happened to Ms. Butler at Wrangell Mountains Center is appalling, and I don’t understand why anyone who could have done something about it wouldn’t have had their hair on fire to do it,” Orrick said. “But there is no claim because Berkeley didn’t have control over John Doe; there was no official relationship.”
Butler and two of her UC Berkeley classmates sued the University of California in July 2015 for mishandling their reports of sexual assault. They claimed university officials failed to investigate their reports or delayed investigations, and meted out inadequate discipline, in violation of Title IX, a federal law that prohibits sex discrimination in the education system.
Butler claims a colleague who occasionally guest-lectured at UC Berkeley repeatedly groped her while working as a summer research assistant at the Wrangell Mountains Center in Alaska in 2012.
She says during one of the assaults, the perpetrator – identified only as John Doe – approached Butler in the dining hall from behind, pushed her against a table, inserted his hands into her underwear and massaged her genitals. During another assault, she says, Doe pressed her against a kitchen counter and rubbed her breasts underneath her clothing.
After returning to campus, Butler reported the assaults to university officials. But instead of investigating, she says, they asked if she had rebuffed the perpetrator and lectured her on false reporting of sexual assaults.
In December 2016, Orrick dismissed with prejudice Title IX claims by Butler’s co-plaintiffs Sofie Karasek and Nicoletta Commins, finding that although “the university could have treated them much better” the handling of the investigations didn’t rise to the standard of “deliberate indifference,” one of five elements a plaintiff must satisfy under Title IX to prevail.
Deliberate indifference requires showing that a school’s handling of a sexual assault was “clearly unreasonable” and constituted “an official decision not to remedy the violation,” a standard the Supreme Court set in 1999’s Davis v. Monroe County Board of Education.
Commins was sexually assaulted in 2012 by a male classmate who performed oral sex on her and digitally penetrated her without her consent at Commins’ off-campus apartment.
The assailant was convicted of felony assault for the attack and sentenced to five years’ probation. In response, the university suspended him, placed him on disciplinary probation and assigned him a reflective writing assignment.
Karasek was groped by a male classmate while asleep during a weekend trip to San Diego with the Cal Berkeley Democrats Club, also in 2012.
The university placed him on disciplinary probation and sent him to mental health classes and drug and alcohol counseling.
But Orrick allowed Butler’s Title IX claim to proceed, finding that Butler’s allegation that Doe was “frequently” on campus as a guest lecturer created “a sufficient showing of substantial control over John Doe to withstand a motion to dismiss.”
Exercising “substantial control” over both an assailant and the context in which the assault occurs is another of the five elements that must be satisfied under Title IX, also established in Davis.
Orrick, however, said on Wednesday that it had come to light since his 2016 ruling that Doe lectured at the UC Berkeley campus only once or twice a year while Butler was a student there, concluding that the university had no official relationship with Doe and thus no control over him.
Jeslyn Everitt, the university’s attorney with Munger, Tolles & Olson in San Francisco, echoed Orrick’s conclusion and said the university’s sexual misconduct policies can’t be applied to Doe because there is no relationship. The Wrangell Mountains Center, which is not affiliated with the university, has its own sexual misconduct policy, she added.
Butler’s attorney Irwin Zalkin of Zalkin Law Firm in San Diego countered that the university did in fact have a relationship with Doe because its professors invited Doe to guest-lecture on campus.
Zalkin argued that courts have allowed Title IX cases to proceed where there is a nexus between off-campus conduct and an on-campus hostile environment, something “we have here” because UC Berkeley failed to take steps to ensure that Butler wouldn’t encounter her assailant on campus. Such steps could have included requiring that the Title IX office be informed every time Doe lectured on campus, so that Butler would know which areas of campus to avoid, Zalkin said.
According to Zalkin, Butler changed her major because her major’s department was housed in an area of campus where Doe would likely be.
“He actually was on campus several times following her report; her fears weren’t unfounded,” Zalkin told Orrick. “To suggest there was no ability whatsoever to mitigate [the hostile on-campus environment] is not the case.”
Orrick appeared unconvinced.
“The circumstances you describe are too attenuated,” he said. “But I will [review] one more time.”