Title IX / College Discipline Practice - Warshaw Burstein LLP | Posso v. Niagara University, Docket No. 19-CV-1293-LJV-MJR, 2021 U.S. Dist. LEXIS 25782 (W.D.N.Y. Feb. 10, 2021)
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  • Posso v. Niagara University, Docket No. 19-CV-1293-LJV-MJR, 2021 U.S. Dist. LEXIS 25782 (W.D.N.Y. Feb. 10, 2021)
    Three female students on Niagara University’s (“Niagara”) swim team filed this lawsuit against Niagara alleging breach of contract, negligence, and violations of Title IX.  The claims arise out of an alleged official policy of deliberate indifference related to sexual harassment on the swim team.   Plaintiffs Nastassja Posso, Jaimi Rolf, and Jane Doe-1 were members of the swim team and alleged that male swimmers repeatedly physically and verbally harassed female swimmers.  Despite bringing the harassment to the attention of the head swimming coach, the diving coach, the associate athletic director, and the athletic director, no remedial measures were taken.  There was little supervision over the swimmers, and the swimmers were left to impose their own discipline and rules, putting the male swimmers in a position to exert power and control over the women.  Additionally, Jane Doe-2, a female student who was not on the swim team, was allegedly sexually assaulted by a male swimmer.  When she reported the incident to Niagara’s Title IX office, the Title IX coordinator allegedly discouraged Doe 2 from filing a formal complaint and mislead Doe 2 about the options available to her.  Niagara filed a motion to dismiss which the Magistrate Judge denied with respect to Doe-2’s pre-assault claim, granted with respect to Doe-2’s post-assault claim, and granted with respect to Rolf’s breach of contract claim.  Niagara objected to the Report and Recommendation (“R&R”) denial of its motion.  Plaintiffs did not object to the findings against them, with Doe-2 intending to file an amended complaint.  The Court affirmed the findings of the R&R.

    To survive a motion to dismiss, a plaintiff bringing a student-on-student sexual harassment Title IX claim must allege that: (1) a federally-funded educational institution (2) was deliberately indifferent to and (3) had actual knowledge of (4) sexual harassment that was so severe, pervasive, and objectively offensive that it could be said to have deprived the plaintiff of access to the educational opportunities or benefits.  A pre-assault claim argues the university should be liable under Title IX for a policy of deliberate indifference to a heightened risk of sexual harassment known to exist within a particular group or context, and possibly beyond that.

    The Court acknowledged Niagara’s concern of permitting pre-assault liability without context-specific notice.  However, Doe-2 did more than make a general allegation of sexual misconduct on campus or object to inadequacies in the university's reporting and response policies.  Doe-2 alleged that her assailant was a part of the swim team, a group that had a known history of sexual harassment.  Niagara knew about the heightened risk of sexual assault by male swimmers, and its systemic failure to intervene is what led to her assault.  This was shown by allegations that male swimmers engaged in overtly sexual conduct, such as sexualized language meant to degrade, objectify, and harass the female swimmers.  There were also instances of physical violence against female swimmers, such as holding a female swimmer’s head under the water until she struggled to breathe.  This culture of sexual harassment was ignored by Niagara for at least two years, and it forms the basis for Doe-2’s pre-assault claim.

    The Court also noted that whether Doe-2 post-assault claim met the applicable standard was a close call.  However, because Doe-2 did not object to the R&R and planned to file an amended complaint, the Court did not address the merits of her post-assault claim.
    CATEGORY: Sexual Assault