Title IX Sexual Assault Cases and Extraterritoriality

From today's decision by Judge Paul Maloney (W.D. Mich.) in Doe v. Calvin Univ.:

In 2020, Plaintiff Jane Doe attended Calvin University in Grand Rapids, Michigan. Calvin University offered a study abroad program in the Philippines with Silliman University, a private university in Dumaguete, Philippines. Silliman University selected some of its students to serve as "buddies" for the Calvin University students. Near the end of the program, the students attended a dinner on the Silliman campus. After the dinner, the Silliman students invited the Calvin students to a local bar and club. One of the Silliman students laced or spiked Plaintiff's drink and later escorted her back to the hotel where he sexually assaulted Plaintiff.

Plaintiff sued under, among other things, Title IX, and Calvin defended by arguing "that Title IX does not apply outside of the United States." No, said the court: "Plaintiff pleads deliberate indifference in the administration of the program, a claim based on Calvin University's conduct in the United States."

For her Title IX claim, Plaintiff pleads that Calvin University was responsible for establishing and implementing polices and procedures concerning the security and safety of students, including adequate supervision, staff training and education of the program participants relevant to the risks of sexual assault and harassment. Plaintiff pleads that Calvin University's conduct amounted to deliberate indifference by, among other things, (1) maintaining outdated and inadequate sexual assault and harassment policies, (2) failing to provide adequate training and guidance for staff concerning the study-abroad programs, (3) failing to provide adequate orientation for students in the study-abroad programs which were necessary for protection against sexual assault and harassment, and (4) failing to require the implementation of safety protocols during the study-abroad program….

Title IX provides that "[n]o person in the United States shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, …." … Our Supreme Court has held that an entity receiving federal funds may violate Title IX through an administrative enforcement scheme that amounts to deliberate indifference. Circuit courts, including the Sixth Circuit, have recognized as viable a Title IX "before" claim, based on the deliberate indifference that occurred before a student-on-student incident….

Neither the Supreme Court nor any circuit court has determined whether Title IX applies to incidents that occur outside the United States. Interpreting a different statute, the Supreme Court noted a "longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." Morrison v. National Australia Bank, Ltd. (2010). The majority of district courts have found that Title IX does not apply to incidents outside of the United States. The only district court to reach the opposite conclusion issued its opinion before Morrison…. The Court concludes that Title IX does not rebut the presumption against extraterritorial application….

The conclusion that Title IX does not apply to events that occur outside of the United States does not provide Defendant any relief. Plaintiff pleads a before or pre-assault claim based on a policy of deliberate indifference. (Defendant's conduct or lack of conduct giving rise to Plaintiff's Title IX claim occurred in the United States….

Congratulations to Allison Elizabeth Sleight (Thacker Sleight, PC), who represents Doe.