When we send our children off to college, we know that we can’t protect them from every possible scenario that may arise. We trust that we have equipped them with the necessary tools to act wisely and seek our counsel when they need it.
However, when it comes to the issue of campus sexual assault, parents have little control. We must trust that the university will do everything in its power to limit the potential for such incidents or, at the very least, respond swiftly and appropriately when an allegation is made. In fact, higher educational institutions that receive federal funding are legally bound to do so under Title IX.
Montgomery injury attorneys know, however, that proving a school failed in this regard can be a tough task. Plaintiffs are required to show that the institution acted with “deliberate indifference,” either to the threat of an assault before it happens or in response to an assault, after the allegation is made.
This is an especially important issue right now in Alabama for a number of reasons. First, April is national sexual assault awareness month. But beyond that, recent statistics show the problem is increasing on college campuses throughout Alabama. Campus-safety data culled by the National Center for Education Statistics (a branch of the U.S. Department of Education) reveals there were 35 cases of documented sexual assault at Alabama colleges in 2011. That’s 9 percent increase from a year earlier and it’s an eye-popping 52 percent increase since 2008.
Bear in mind, these are only the cases that are reported – and sexual assault is a vastly under-reported crime.
While the perpetrators of these crimes must be held accountable in the criminal system (and in some cases are ordered to pay restitution), colleges must also be held accountable when the institutional response has been inadequate. Sometimes, the response is so egregious that it hinders the criminal investigation and prevents an effective prosecution.
In order to prove that a school acted with “deliberate indifference,” the plaintiff has to show that the institution had substantial control over both the harasser/attacker and the context in which the harassment/attack occurred. Colleges can defend themselves from this allegation by showing that they responded in a manner that is “not clearly unreasonable.”
The recent case of Roe v. St. Louis University, et al., the U.S. Court of Appeals for the Eighth Circuit found that the student plaintiff had not met this burden.
According to court records, the plaintiff student had reportedly suffered a sexual assault at an off-campus fraternity house. Although she later revealed the assault to the coaches on her field hockey team, she insisted she did not want the matter disclosed to police or her parents. It was only after she had been removed from the field hockey team for failure to attend classes that she filed a police report regarding the assault.
Police launched a criminal investigation, but no charges were filed due to lack of evidence.
The plaintiff and her parents filed suit alleging deliberate indifference on the part of the school. However, the school maintained it acted appropriately by not reporting the incident to police because the coaches were respecting her request for confidentiality.
The district court granted a summary judgment in favor of the school, and that ruling was upheld by the appellate court.
We share this story not to discourage victims of sexual assault from pursuing third-party liability cases, but rather to underscore the fact that the case should only be entrusted to an experienced legal team.
Even in cases where alleging deliberate indifference may not be a viable an option, plaintiffs could alternatively establish liability with a possible claim of negligent security.
Call Allred & Allred P.C. at 334.396.9200.
Roe v. St. Louis University, et al., March 25, 2014, U.S. Court of Appeals for the Eighth Circuit
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