Title IX and Official Policy Liability: Maximizing the Law’s Potential to Hold Education Institutions Accountable for Their Responses to Sexual Misconduct

Published: Erin E. Buzuvis, Title IX and Official Policy Liability: Maximizing the Law’s Potential to Hold Education Institutions Accountable for Their Responses to Sexual Misconduct, 73 OKLA. L. REV. 35 (2020).Title IX, the federal statute that prohibits sex discrimination in education, plays a key role in institutional accountability for sexual misconduct that is perpetrated by a school’s students, faculty, and staff. The Supreme Court has confirmed that Title IX includes an implied right of action for money damages when the institution had actual notice that sexual harassment had occurred, or was likely to occur, and responded to that threat with deliberate indifference. But the deliberate indifference standard has proven to be a high and unpredictable bar for plaintiffs. For this reason, many institutions required the threat of government enforcement—issued in the form of the Department of Education’s 2011 “Dear Colleague Letter”—to begin to address and improve their policies and practices for preventing and responding to sexual misconduct. Recently the Department of Education has incorporated the judicial deliberate indifference standard into its own regulations for enforcing Title IX. As a result, both judicial and administrative enforcement of Title IX may soon converge into the same generous standard that puts very little pressure on institutions to proactively or reactively respond to sexual misconduct on their campuses and in their communities. By responding only minimally to sexual misconduct, an institution can easily avoid committing deliberate indifference, while at the same time steering clear of the ever-present threat of litigation by respondents and individuals disciplined for sexual misconduct.In light of this concern about unidirectional litigation pressure, this Article seeks to highlight a lesser-known Title IX theory of liability with the potential to promote institutional accountability for sexual misconduct official policy liability. Simpson v. University of Colorado was the first case to recognize that educational institutions are liable under Title IX not only for indifferent response to the sexual misconduct of those under their control but also for sexual misconduct caused by their official policies. But this alternative theory of liability has not been widely utilized by plaintiffs’ lawyers, and the majority of judicial decisions that have considered it have found it not to apply. Two lower courts recently countered this trend by denying motions to dismiss claims of official policy liability against both Baylor University and the University of Tennessee. In both cases, plaintiffs sought damages for sexual assault experienced at the hands of other students and claimed that their universities’ official policies of indifference to sexual misconduct caused the assault. After analyzing the decisions in those cases, this Article explores the potential of official policy liability as a tool for maximizing Title IX’s potential to promote institutional accountability, even in an era characterized by lax regulatory enforcement and litigious respondents.