Karasek v. Regents of the Univ. of Cal.

• Citation: 500 F.Supp.3d 967
• Decision Date: 13 November 2020
• Docket Number: Case No. 3:15-cv-03717-WHO
• Parties: Sofie KARASEK, et al., Plaintiffs, v. REGENTS OF the UNIVERSITY OF CALIFORNIA, The, Defendant.
• Court: U.S. District Court — Northern District of California

500 F.Supp.3d 967

Sofie KARASEK, et al., Plaintiffs,

v.REGENTS OF the UNIVERSITY OF CALIFORNIA, The, Defendant.

Case No. 3:15-cv-03717-WHO

United States District Court, N.D. California.

Filed November 12, 2020

Signed November 13, 2020

Irwin Myron Zalkin, Alexander Solomon Zalkin, Devin Miles Storey, Ryan Marc Cohen, Sheila Lee Haddock, Pro Hac Vice, Zalkin Law Firm, P.C., San Diego, CA, for Plaintiffs.

Jerome Philippe Mayer-Cantu, Berkeley City Attorney's Office, Berkeley, CA, Sonya Una Sanchez, Karen Jensen Petrulakis, Margaret Louisa Wu, Charles Furlonge Robinson, University of California Office of the General Counsel, Oakland, CA, Elizabeth Suilin Pamela Douglas, Sara Nadine Taylor, Bradley S. Phillips, Munger, Tolles and Olson LLP, Hailyn Jennifer Chen, Attorney at Law, Los Angeles, CA, John B. Major, Munger, Tolles Olson LLP, San Francisco, CA, for Defendant.

ORDER ON MOTION TO DISMISS

Re: Dkt. No. 140

WILLIAM H. ORRICK, United States District Judge

INTRODUCTION

The plaintiffs in this case were sexually assaulted while enrolled at the University of California, Berkeley ("the University"). As relevant here, they brought two types of claims against the University under Title IX: "post-assault" and "pre-assault." A post-assault claim alleges that a school's response to a complaint of sexual misconduct violated Title IX; a pre-assault claim alleges that the school maintained a policy of deliberate indifference to sexual harassment that created a heightened risk of it and, ultimately, led to a plaintiff's particular harassment. After a long series of motions and orders, I eventually dismissed two of the plaintiffs’ post-assault claims and granted summary judgment to the University on the third. Those rulings were upheld on appeal. I also dismissed the pre-assault claims on the ground that the plaintiffs had not shown their theory of Title IX liability was viable. The Ninth Circuit vacated that decision and held that a pre-assault claim based on a school's alleged general policy of deliberate indifference was cognizable under Title IX. It remanded the case to me to determine, in the first instance, whether the plaintiffs’ pre-assault claims met the standard it laid out.

I GRANT IN PART and DENY IN PART the University's motion to dismiss for failure to state a claim. The plaintiffs have plausibly alleged that the University maintained a de facto policy of deliberate indifference toward sexual misconduct that created a heightened risk of harassment that was obvious. Plaintiff Sofie Karasek has also shown such a policy in the particular context—a school club—in which she was assaulted and she has plausibly alleged that this policy is causally linked to her assault. Her claim is adequately pleaded. Plaintiff Nicoletta Commins has not stated a claim because, on this record, there is no causal connection between the University's alleged policy—troubling as it allegedly is—and her assault. Plaintiff Aryle Butler has not stated a claim because a previous order in this case found that her assaults and harassment did not occur in a context subject to the University's control. I give Commins leave to amend the complaint, if she believes she can adequately allege causality.

BACKGROUND

I. FACTUAL BACKGROUND

Because this case is before me on a motion to dismiss, the facts here are drawn from the Fifth Amended Complaint ("FAC") [Dkt. No. 138]. Like the Court of Appeals, I remind the parties and others that these facts have not been established.

A. The Plaintiffs’ Assaults

Karasek, Commins, and Butler were sexually assaulted while enrolled at the University.¹ I have discussed the details of those assaults in several prior orders and will not repeat them here except as necessary to resolve the current motion. See, e.g. , Karasek v. Regents of Univ. of Cal. , 226 F. Supp. 3d 1009, 1015–24 (N.D. Cal. 2016), aff'd in part, vacated in part, remanded , 948 F.3d 1150 (9th Cir. 2020), opinion amended and superseded on denial of reh'g , 956 F.3d 1093 (9th Cir. 2020) ("Prior MTD Order"). The FAC and this motion concern only the University's alleged pre-assault liability, not its post-assault response. The University's response to the plaintiffs’ assaults in particular is, accordingly, not relevant to the plaintiffs’ current claims.

i. Karasek

Karasek was assaulted in February 2012 on a biannual trip with the Cal Berkeley Democrats Club (the "Club") while in her bed. FAC ¶¶ 39–42. She alleges that, on the same trip in 2008, the then-president of the Club assaulted another member; when that student reported the assault to the University's Police Department, she was told the University "could do nothing because the assault occurred off campus." Id. ¶ 36. In 2011, one member assaulted another at a different Club retreat; Karasek alleges that the University knew about the assault but did not respond in any way. Id. ¶ 37. Finally, Karasek alleges that "TH," the same student who sexually assaulted her, assaulted another student at this same retreat in 2011 and that the University knew and did not respond. Id. ¶ 38. Karasek claims that TH "never received any education from the University on prohibited sexual misconduct or the University's policies related to sexual misconduct." Id. ¶ 43.

ii. Butler

Butler was assaulted or harassed three times while serving as a research assistant to University PhD candidate and graduate student instructor ("GSI") Margot Higgins in summer 2012, beginning in June. Id. ¶¶ 109, 113, 119–125. The FAC alleges that Higgins was an agent of the University because she was a GSI but that she "has no recollection of receiving any training on sexual misconduct, including how to detect, prevent, or respond to sexual misconduct." Id. ¶ 111. Butler signed a work contract on University letterhead to serve as an assistant to Higgins at a facility in Alaska during that summer. Id. ¶ 113. Butler's assaulter, "John Doe," was a guest lecturer for the program Butler was a part of and sat on the board of the center where she worked. Id. ¶ 118–19. The plaintiffs allege that Higgins had "experienced John Doe engage in inappropriate conduct" and that his "inappropriate behavior was generally discussed among women at the" research facility. Id. ¶ 120. Higgins arranged for Butler to live at the facility. Id. ¶ 121. Doe assaulted Butler in the facility's dining hall in June 2012. Id. ¶ 122. Butler reported the assault to Higgins. Id. ¶ 123. Over the summer, Doe harassed and/or assaulted Butler twice more. Id. ¶ 124–25. Butler reported both incidents to Higgins. Id. ¶ 124, 126. When she returned to campus, Butler reported the incidents to the University. Id. ¶ 129.

iii. Commins

Commins was sexually assaulted in her apartment in January 2012 by another student, "John Doe 2." Id. ¶ 134. She alleges that Doe 2 did not "receive any formal education from the University regarding prohibited sexual misconduct, or the University's sexual misconduct policies." Id. ¶ 136. Commins reported the assault to the University Police Department, where she was told to report to the Berkeley Police Department. Id. ¶ 142. "Four days prior to John Doe 2's sexual assault of Commins, on January 16, 2012, John Doe 2 had physically assaulted two other students at a party at a University fraternity house"; the University charged him with violating the Code of Student Conduct. Id. ¶ 144. Alameda County filed a criminal complaint against him for the assault of Commins and he was eventually suspended through August 2015 and barred from campus. Id. ¶ 145, 183. After a series of proceedings discussed in prior orders, see Prior MTD Order at 1019–1024, Doe 2 was permitted to resume his studies in August 2015, by which time Commins had enrolled in graduate school at the University, FAC ¶¶ 188–91.

B. The University's Sexual Assault Policies

The plaintiffs allege that, in the relevant timeframe, "the University had in place multiple and contradictory policies for responding to allegations of student on student sexual assault." Id. ¶ 12.

i. Department of Education Guidance

In 2001, the Department of Education ("DOE") issued its Revised Sexual Harassment Guidance ("2001 Guidance"), laying out what it believed schools must do to comply with Title IX. Id. ¶ 5. On April 4, 2011, DOE published a Dear Colleague Letter ("DCL") that supplemented the 2001 Guidance. Id. ¶ 11.² The plaintiffs highlight several of the DCL's requirements:

• All persons involved in a complaint resolution process must be trained in handling complaints of sexual harassment or sexual violence;

• A school's grievance procedures must be prominently displayed on the school website, and widely distributed throughout campus in both print and electronic formats;

• A school must take immediate action to address a complaint of sexual harassment/assault, prevent its reoccurrence and address its effects;

• A school should notify the complainant of his or her options to avoid contact with the alleged perpetrator;

• When taking steps to separate a complainant and alleged perpetrator, a school should minimize the burden on the complainant;

• A school must inform a complainant of their right to file a criminal report and not discourage the complainant from doing so;

• A school must conduct their own investigation, and take immediate steps to protect the complainant and the school community at large;

• Although a school may need to delay the fact-finding portion of an investigation while the police are gathering evidence, the school must promptly resume and complete its fact-finding once the police department has completed its gathering of evidence, not after the ultimate outcome or the filing of any charges (usually three to ten calendar days);

• Grievance procedures may include voluntary informal mechanisms. However, the complainant must be notified of the right to end the informal process at any time and begin the formal stage of the complaint process. In cases involving allegations of sexual assault, mediation is not appropriate;

• A school must treat

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