722 F.Supp.3d 379
D. Vt.2024Background
- Four current/former UVM students (Ware, Partin, Harting‑Smith, Sommer) allege they were sexually assaulted and that UVM and administrators responded inadequately; plaintiffs assert Title IX, First and Fourteenth Amendment, VPAA, negligence, breach of contract, and related claims.
- Plaintiffs allege systemic problems at UVM: repeated OCR/DOE/Clery scrutiny, student protests, a private audit finding opaque Title IX procedures and delays, and a pattern of under‑ or mis‑reporting and over‑reliance on informal resolution.
- Fact patterns: Ware (assault by basketball player Lamb; pressured into informal resolution by athletics staff and Title IX personnel); Partin (alleged drugging at off‑campus fraternity event and later dorm rape; delayed Title IX follow‑up); Harting‑Smith (assault by student, later issued a mutual no‑contact order she alleges was retaliatory/misapplied); Sommer (alleged assault by repeat offender Weiland; UVM previously investigated him).
- Plaintiffs allege both pre‑assault liability (UVM maintained policies or practices that created heightened risk, e.g., derecognizing fraternities that continue to operate off‑campus) and post‑assault deliberate indifference (failures to investigate, misleading complainants, and pressure to use informal resolution).
- Court procedural posture: Defendants moved to dismiss the amended complaint; the court grants the motion in part and denies it in part, allowing many federal and state claims to proceed to discovery while dismissing some narrower theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Title IX allows "pre‑assault" liability for institutional policies/practices that create heightened risk | UVM's longstanding failures, audits, OCR/DOE scrutiny, and fraternity/athletics practices show an official policy of deliberate indifference that made assaults foreseeable | Title IX should not impose liability for generalized inaction or where institution responded adequately when given notice; require narrow circumstances | Court: Pre‑assault liability is viable; adopted Karasek framework for official‑policy pre‑assault claims and found plaintiffs plausibly pleaded campus‑wide and fraternity (derecognition) theories but not mens' basketball, club sports, or repeat‑offender theories as pleaded |
| Post‑assault Title IX deliberate indifference (Ware, Partin) | UVM had actual notice and officials pressured Ware into informal resolution and failed to timely follow up with Partin, amounting to clearly unreasonable response | UVM contends it respected complainants' choices and did not act with deliberate indifference | Court: Denied dismissal as to Ware and Partin; post‑assault deliberate indifference claims survive at pleading stage |
| Title IX retaliation (Ware, Sommer) | Alleged protected activity (reporting/public speech) led to adverse actions: pressure, smear, denial of references | UVM contends actions were not school‑related adverse actions or lacked causation; some asserted actions relate to Title IX process only | Court: Retaliation claims survive for Ware and Sommer (motion denied) though some specific acts (e.g., positive coverage of athlete) lacked causation |
| VPAA (Vermont Public Accommodations Act) — exhaustion and adequacy of investigation | Plaintiffs say UVM had actual notice and failed to promptly investigate or follow VPAA procedures (Ware, Partin); Sommer declined formal process after prompt outreach | UVM argues it satisfied statutory duties or plaintiffs failed to exhaust remedies | Court: Ware and Partin's VPAA claims survive; Sommer's VPAA claim dismissed for failure to show UVM had notice before her Instagram post or that exhaustion/futility was shown |
| Procedural due process (§1983) — deprivation of property/liberty (education, scholarship) | Plaintiffs allege deprivation of protected educational interests (withdrawal, scholarship loss) without adequate process | UVM says plaintiffs received adequate process or lacked protected property interests | Court: Plaintiffs plausibly allege protected interests and inadequate process (pressure, misinformation); due process claims survive; qualified immunity denied pending further briefing |
| First Amendment (Harting‑Smith) — NCO, prior restraint, retaliation | NCO was content‑based prior restraint or retaliatory imposition restricting speech | UVM argues NCO is content‑neutral safety/procedural measure narrowly tailored to de‑escalate and allowed alternatives | Court: NCO is content‑neutral and survives intermediate scrutiny; First Amendment retaliation claim dismissed (no adverse‑action showing) |
| State torts (negligence, NIED, breach of contract) | Plaintiffs assert common‑law duties to protect and to reasonably investigate; breach caused harms and emotional distress; contract claims invoke UVM policies | UVM argues no duty, statutory/process remedies exclusive, or lack of particularity/waiver | Court: Negligence claim narrowed — survives for fraternity‑related foreseeability and for mishandling of Ware and Partin Title IX complaints; NIED survives only to extent tied to negligence that caused physical assault (e.g., Partin); breach of contract claims survive in part (e.g., Ware consent/selection of informal process, Partin resource/response claims) |
Key Cases Cited
- Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (schools liable under Title IX only when an official with authority has actual knowledge and is deliberately indifferent)
- Davis v. Monroe County Board of Education, 526 U.S. 629 (Title IX deliberate indifference standard; liability when response is clearly unreasonable and causes students to be subjected to harassment)
- Karasek v. Regents of Univ. of California, 956 F.3d 1093 (9th Cir.) (articulated "official policy" pre‑assault Title IX standard applied by this court)
- Simpson v. University of Colorado Boulder, 500 F.3d 1170 (10th Cir.) (official‑policy pre‑assault Title IX liability where institution sponsored activity created heightened risk)
- Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (§1983 and Title IX are complementary; Title IX not exclusive remedy)
- Reed v. Town of Gilbert, 576 U.S. 155 (content‑based speech restrictions are presumptively unconstitutional)
- Radwan v. Manuel, 55 F.4th 101 (2d Cir.) (athletic scholarship can be a protected property interest for due process analysis)