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Publication Date

11-17-2023

Abstract

Unfortunately, sexual misconduct remains a pervasive problem on college campuses throughout the country. While victims of sexual harassment and assault can report these incidents to their university, these institutions often fail to respond adequately. Investigations into the alleged misconduct are often unnecessarily delayed and school officials neglect to inform victims about the status of their cases. Even more troubling, institutions opt to impose informal sanctions on perpetrators without consulting victims. In such instances, students can hold educational institutions accountable for these deficiencies by suing under Title IX. This is easier said than done. Typically, a plaintiff must prove that their university acted with deliberate indifference in responding to their report. To do so, a plaintiff must show that the institution had actual notice of the reported misconduct. Courts often decline to find that the institution had actual notice, even when the school was aware of the perpetrator’s previous misconduct. A new theory of institutional liability from the Ninth Circuit poses a new avenue for plaintiffs suing universities under Title IX. Under the pre-assault theory, a plaintiff argues that their institution maintained a policy of deliberate indifference to sexual misconduct that heightened their risk of victimization. Thus, a plaintiff does not need to show that the school responded with deliberate indifference to a reported instance of sexual misconduct. This Note argues that the pre-assault theory presents a better approach to hold institutions accountable than the more typical post-assault theory of liability. Though not without its flaws, the pre-assault theory should be employed by victims across the country to hold their educational institutions accountable.

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