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There Is No “One Free Rape” Rule Under Title IX, NWLC Argues in Amicus Brief to Tenth Circuit

Today we and Baker Hostetler LLP filed an amicus brief in the Tenth Circuit, on behalf of almost 30 groups, in a case involving the rapes of two female students at Kansas State University. Sara Weckhorst and Tessa Farmer were raped by male students at fraternity events and reported their rapes to K-State, who refused to take any action to help them (citing the fact that the rapes occurred off-campus, even though the law requires the school to address the hostile environment that resulted on campus).  K-State then tried to have the female students’ court claims dismissed.

Fortunately, the district court sided with Sara and Tessa, ruling that their case could go forward.  But K-State appealed, and their argument on appeal is not only wrong but offensive.  The University claims that it is not liable for its actions because Sara and Tessa were by chance not raped or harassed again by their assailants (not because of any action taken by the school); therefore K-State claims that it did not “subject” them to discrimination in violation of Title IX.

K-State’s argument is based on an incorrect reading of the Supreme Court’s decision in Davis V. Monroe County Board of Education, a case I am proud to have worked on back in 1999.  In that case, the Supreme Court held that a school is monetarily liable for student-on-student sexual harassment when its response to known sexual harassment is “deliberately indifferent”, or clearly unreasonable under the circumstances.  That’s because when a school fails to respond to sexual harassment (which includes sexual assault) of its students, it subjects those students to the discriminatory and hostile educational environment that results.  In Sara and Tessa’s case, that included living in constant fear of their attackers, having to suffer harassment from other students about the rapes, and their academic difficulties that resulted from the trauma of the rapes.

We know that sexual assault harms its victims physically, emotionally, academically and financially.  When it happens in the school context, it interferes with students’ ability to access and benefit from their education.  That’s why Title IX requires schools to promptly take action to address sexual assault and remedy the effects on its victims through counseling and academic accommodations, for example.  The law certainly does not require a student to endure further harassment or assaults before she can bring a Title IX claim against her school for its lack of response to her initial sexual assault.  There is no “one free rape” rule – that would be perverse and undermine the very purpose of the law, which is to eliminate sex discrimination in education.