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.

Fifth Indifference

The Americans with Disabilities Act prohibits discrimination against people with disabilities. Title II of the ADA applies to public entities. That same Title allows plaintiffs to obtain damages upon a showing that the discrimination was intentional. There are generally two possible standards of intent: (1) deliberate indifference or (2) animus. While most Circuit Courts expressly adopted the deliberate indifference model, the Fifth Circuit has not. Indeed, the Fifth Circuit has not adopted any standard and this has led to confusion. The confusion is not helped, moreover, by the sheer lack of justification offered by a number of the Circuit Courts who have adopted either standard. This Essay seeks to clear that confusion. It offers reasons why deliberate indifference, and not the animus standard, should apply to ADA Title II claims. Further, it explains why no Fifth Circuit precedent should be construed as prohibiting the adoption of the deliberate indifference standard.

Beyond the rapist

The final chapter provides a summary of the book’s key claims. It also applies the arguments developed in previous chapters to other cases, including gun violence on U.S. campuses, the legal standard “deliberate indifference,” and USA Gymnastics’ problems with sexual assault. In so doing, it shows not only how the book’s arguments transfer to other contexts, but also how a feminist new materialist approach can guide U.S. university responses to high rates of assault. The chapter includes concrete suggestions for how campuses can move “beyond the rapist.” Moreover, through these recommendations and analyses of other cases, the chapter shows how a feminist new materialist approach can build theory about the complex relationships among violence, organization, and communication.

Lessons from Bandura’s Bobo Doll Experiments: Leadership’s Deliberate Indifference Exacerbates Workplace Bullying in Higher Education

Aim/Purpose: The purpose of this paper is to apply Albert Bandura’s findings of the Bobo Doll experiments to organizational behavior and workplace bullying in higher education. The Bandura social psychological experiments confirm that people who see aggression also need to witness an intervention to aggression to learn that the organization does not welcome aggression in their work environment. Background: By applying the Bandura experiment, the researcher shows how leadership can intervene to stop organizational aggression and abuse. Without leadership intervention, workplace bullying continues in higher education. Methodology: The researcher used a data set of 730 higher education professionals. The central research question: RQ Which personnel, bullied or not bullied, are more likely to report that no intervention was demonstrated in the organization’s response to reports of workplace bullying on campus? A chi-square analysis was used to examine if organizational inaction was more likely to lead to workplace bullying. Contribution: The application of the Bobo Doll experiments confirms that workplace aggression is either curtailed or proliferates based on leadership’s intervention to stop aggression in higher education. This social psychology approach contributes to the literature on workplace bullying in higher education about the need for leadership to intervene and stop bullying behaviors. Findings: Those who reported organizational apathy, that is the “organization did nothing” were more likely to face workplace bullying in higher education at a statistically significant level, .05 level (χ2 (1, n = 522) = 5.293, P = 0.021). These findings align with Bandura’s theoretical approach that an intervention is needed to curtail aggression and workplace bullying. Recommendations for Practitioners: Organizational leadership should consider 360 evaluations, ombudsmen, and faculty oversight committees to collect data and intervene in workplace bullying problems on campus. Recommendation for Researchers: Researchers can further examine how leadership engagement and intervention can curtail costly and corrosive workplace bullying in higher education. Impact on Society: These findings confirm that workplace bullying will not just disappear if left unattended. Empirical data confirms that leadership apathy, or deliberate indifference, to interventions only enable aggression and bullying in the workplace. Future Research: Future research projects can include qualitative approaches to discover what values encourage leaders to intervene in workplace bullying.