Karasek et al v. Regents of the University of California, The

Filing 164

ORDER ON 156 MOTION TO DISMISS by Judge William H. Orrick. (jmdS, COURT STAFF) (Filed on 4/14/2021)

Case 3:15-cv-03717-WHO Document 164 Filed 04/14/21 Page 1 of 22

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SOFIE KARASEK, et al.,

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

Plaintiffs,

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ORDER ON MOTION TO DISMISS

v.

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Re: Dkt. No. 156

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United States District Court
Northern District of California

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REGENTS OF THE UNIVERSITY OF
CALIFORNIA, THE,
Defendant.

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While she was enrolled at the University of California, Berkeley (“the University”),
plaintiff Nicoletta Commins was sexually assaulted by a person who had previously been sexually
inappropriate and aggressive. Commins alleges that the University systemically failed to educate
its students about sexual assault and appropriate sexual interactions. This failure, she argues,
violated Title IX because it constituted a policy of deliberate indifference to sexual harassment
that created an obvious risk of it and led to her assault. If the University had provided sexual
misconduct education, she asserts that she would not have engaged in the later interaction during
which he assaulted her.

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The University moves to dismiss. Although the law on this issue is new, evolving, and not
yet firmly settled, Commins has plausibly pleaded a claim to overcome a motion to dismiss. The
motion is denied.

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BACKGROUND
I.

FACTUAL BACKGROUND
I have discussed the factual background of this case in many previous orders. Here, I

include only those facts relevant to the current motion.

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A. The University’s Alleged Sexual Misconduct Failures

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Commins alleges that the University took or failed to take a number of actions that amount

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to or relate to policies of deliberate indifference to sexual misconduct. Many of Commins’s

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claims about the University’s broad policies are based on an audit performed by the California

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State Auditor that was published in June 2014. See Sixth Amended Complaint (“SAC”) [Dkt. No.

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151] ¶ 19; California State Auditor, Rep. No. 2013-124 Sexual Harassment and Sexual Violence

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(2014), https://www.auditor.ca.gov/pdfs/reports/2013-124.pdf (the “Audit”). That Audit

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examined four California universities’ sexual misconduct policies and responses, including the

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University’s.
This is the second motion to dismiss this claim after appeal. See Karasek v. Regents of

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United States District Court
Northern District of California

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Univ. of California, No. 3:15-CV-03717-WHO, 2020 WL 6684869, at *5 (N.D. Cal. Nov. 12,

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2020) (“Prior Order”). Most relevant to the first motion on her claims is the University’s alleged

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policy of resolving sexual assault claims. That alleged policy was the primary focus of the Prior

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Order. As I described it there,

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The Audit found that the University “resolved 76 percent of Title IX complaints from
students using the [informal] early resolution process.” [Audit] 53. Given “significant
procedural differences between the formal and informal processes,” the Audit found that
universities should have, but did not, always clearly communicate to complainants about
those differences. Id. Indeed, the Audit used a case from the University as an example of
how the informal process could lead to improper handling of complaints. Id. 53. The
University was, for example, “unable to demonstrate that [it] consistently informed
students of what to expect as the university investigated their complaints and how to report
retaliatory harassment.” Id. at 55. It also failed to “provide regular updates” to
complainants and “consistently complete investigations in a timely manner.” Id. at 57, 61.

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The plaintiffs also allege that the University systemically “underreported the amount of
sexually violent incidents that occurred on campus” prior to their enrollment. [Fifth
Amended Complaint] ¶ 25. Additionally, they allege that, in all of the cases reported to the
[Center for Student Conduct] in 2013, “no formal hearings were held,” meaning that all
were resolved informally. Id. ¶ 26. Despite this, in February 2014, Denise Oldham, the
University's interim Title IX officer, stated to the Los Angeles Times that she could not
“imagine a situation where” using the informal resolution process for sexual assault cases
“would be appropriate.” Id. ¶ 31. The plaintiffs allege that “at least three witnesses were
told by Oldham that the [Office for Prevention of Harassment and Discrimination] handles
approximately 500 cases per year and that of the 500 cases handled in 2012 only two were
resolved through a formal process.” Id. ¶ 32.

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The University, the plaintiffs assert, “consciously and intentionally” used the informal
process to “avoid the reporting requirements” under the Jeanne Clery Disclosure of
Campus Security Policy and Campus Crime Statistics Act (“Clery Act”), 20 U.S.C. §
1092(f)(1)(F)(i). Id. ¶¶ 32–33. They claim that the University “takes the position that if the
matter is resolved informally, it is not required to report the offense as mandated by the
Clery Act.” Id. ¶ 33.
Prior Order, at *4–*5.
The University’s alleged deficiencies in educating students about sexual misconduct are

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most relevant to Commins’s current theory. The Audit’s high-level finding was that the

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universities “must do more to appropriately educate students on sexual harassment and sexual

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violence. Specifically, universities should ensure that incoming students receive this education as
close as possible to when they first arrive on campus, as well as provide refresher training to all

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Northern District of California

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continuing students at the university on a periodic basis.” Audit 15; see also id. 27. It also found

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that the content of that education “could be improved,” but did not single out the University as it

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did for San Diego State University. Id. The Audit developed five categories by which it would

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assess “training and informing students”; the University received “no concerns identified” in four

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and received “some concerns identified” for distributing copies of its sexual harassment policy to

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all students at orientation. Audit 16–17. It further found that the University did not “consistently

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provide[] [sexual harassment and violence] education to freshmen at their summer orientations

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during the five years we reviewed,” but did provide it at “various times” throughout the school

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year. Id. 27.

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This failure to consistently provide timely education, the Audit found, was particularly

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significant to student safety because the first six weeks of the fall semester are a “red zone” in

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which students are at increased risk of sexual assault, potentially because they are thrust into a

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social situation that is unfamiliar. Id. The Audit faulted the University for failing to have

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“processes to ensure that all incoming students receive the education.” Id. 29. The University

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does not have consequences for students who fail to attend these trainings, and its own data

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showed that “only 52 percent of incoming students attended the education it provided for the 2013

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– 2014 academic year.” Id. The Audit concluded that the University’s educational failings “put[]

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the safety of their students at risk.” Id. 30.
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Commins also alleges that the University is deficient in other ways that are not causally

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linked to the assault. One is in adequately training faculty and staff, including those who are

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primary contacts for complaints of sexual misconduct. See id. 17–26. These failures create a risk

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of “mishandling” students’ reports of sexual misconduct. See, e.g., id. 15. In addition, Commins

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asserts that the University maintained multiple, contradictory policies for reporting sexual

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misconduct, including which office had investigatory responsibility. See SAC ¶¶ 11–18, 178. She

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claims that the University failed to adhere to federal Title IX guidelines. Id. ¶ 180.

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B. John Doe 2’s Assault of Commins
Commins was sexually assaulted in January 2012 while enrolled at the University. SAC ¶
107. The assaulter, “John Doe 2,” was another student at the University. Id. Commons alleges

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Northern District of California

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that, “[p]rior to the sexual assault, [she] was very inexperienced with intimate, sexual

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relationships.” Id. ¶ 109. After Commins invited Doe 2 to her apartment, he “began aggressively

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forcing Commins to engage in sexual behavior that she did not consent to.” Id. ¶¶ 113–14. As she

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describes it, “[w]ithout Commins’ consent, John Doe 2 performed oral sex on Commins, tried to

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coerce Commins to perform oral sex on him by forcibly pushing her head towards his genitals and

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getting on top of Commins and rubbing his penis on Commins [sic] face as she turned away, and

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digitally penetrated Commins.” Id. ¶ 114.

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At some point before Doe 2 assaulted Commins, they “encountered” each other at a party

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at his fraternity and “engage[d] in light sexual activity.” Id. ¶ 112. Doe 2 “was very aggressive

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with Commins.” Id. She “was able to end the encounter, claiming that her friends were looking

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for her.” Id. She alleges that “[b]ecause the University provided her with no training or

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education, at the time, Commins did not understand that this behavior was not appropriate, and

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could be indicative of a dangerous individual.” Id. According to her, “[h]ad she been given

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appropriate training and education related to sexual misconduct, Commins would have recognized

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John Doe 2 as a dangerous individual and would not have continued any sexual relationship with

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him following their initial sexual encounter.” Id. ¶ 184. The University’s alleged failure to

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educate “prevented Commins from understanding the nature of acceptable sexual conduct, as well

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as the nature and extent of consent.” Id. ¶ 183. She further alleges that she “would have been
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empowered to stop” the assault if she had been educated. Id. ¶ 185.
She alleges (on information and belief) that “at no time prior to her sexual assault did the

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University provide Commins with any training or education related to safe, sexual conduct,

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including but not limited to, what type of sexual conduct is appropriate, the nature and extent of

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consent, and how to identify warning signs related to potentially dangerous circumstances or

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individuals.” Id. ¶ 110. She similarly alleges that Doe 2 was not given any such education either.

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Id. ¶ 111. Although Commins was “not comfortable with John Doe 2’s conduct,” she states that

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“she did not fully appreciate the wrongfulness of his conduct in the moment” because of the

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University’s alleged “fail[ure] to provide her with any training related to appropriate sexual
conduct.” Id. ¶ 115. She also alleges that Doe 2 “did not understand that what he did was wrong”

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in the immediate aftermath of the assault and that his behavior “was consistent with someone who

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believed that he had just engaged in a normal, appropriate sexual encounter rather than someone

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who had just sexually assaulted a friendly acquaintance.” Id. ¶ 116. Commins further contends

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that Doe 2’s fraternity had a reputation as the “date rape” fraternity, but that she was unaware of

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that reputation and would not have gone there or invited Doe 2 over had she known. Id. ¶ 122.1
The focus of the current claim is on the University’s pre-assault conduct, not its post-

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assault response as in earlier phases of litigation. In brief, Commins reported the assault to the

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University’s police department who referred her to the Berkeley Police Department. See id. ¶ 119.

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Doe 2 was later charged with felony sexual assault. Id. ¶ 123. The University placed him on

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interim suspension but allegedly failed to inform Commins about it or the hearing on it. Id. ¶¶

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124–25. After that hearing, Doe 2 was allowed to be on campus to attend classes and get to and

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from them, which Commins alleges she was not informed about. Id. ¶ 126. Commins reported the

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assault to the University in February 2012 and a series of post-reporting events occurred that were

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the subject of earlier orders.

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Doe 2 is alleged to have physically assaulted two other students four days prior to his sexual
assault of Commins, which the University is alleged to have known about and charged him with
conduct violations for. See SAC ¶ 121. Commins’s theory of pre-assault Title IX liability does
not turn on those actions.
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II.

PROCEDURAL BACKGROUND

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Three plaintiffs, Sofie Karasek, Aryle Butler, and Commins, filed this action in California

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state court and the University removed it in August 2015. Dkt. Nos. 1, 1-1. After a lengthy series

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of motions and orders that I have discussed in previous orders, I eventually granted the

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University’s motion to dismiss Karasek and Commins’s claims and motion for summary judgment

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on Butler’s. On appeal, the Ninth Circuit affirmed my rulings on the plaintiffs’ post-assault

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claims. Karasek v. Regents of Univ. of California, 956 F.3d 1093, 1105–12 (9th Cir. 2020)

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(“Karasek”). That court reversed my ruling on the pre-assault claims, holding for the first time

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that “such a claim is a cognizable theory of Title IX liability.” Id. at 1112. It remanded the case to

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me to determine whether the plaintiffs had adequately pleaded pre-assault claims.
The plaintiffs amended the complaint, narrowed to the pre-assault claim. In the Prior

United States District Court
Northern District of California

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Order, I granted in part and denied in part the University’s motion to dismiss the plaintiffs’ claims.

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I denied the motion to dismiss Karasek’s claim, finding it adequately pleaded. Prior Order, at *21.

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I dismissed Butler’s claim with prejudice because it was foreclosed by my summary judgment

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order. Id., at *12. And I dismissed Commins’s claim with leave to amend because, while she

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adequately alleged many elements of a pre-assault claim, she had not plausibly pleaded causation.

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Id., at *19. Commins amended her claim in the SAC and the University again moves to dismiss.2

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LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint

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if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to

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dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its

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face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible

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when the plaintiff pleads facts that “allow the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citation omitted). There must be “more than a sheer possibility that a defendant has acted

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unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a plaintiff

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Karasek’s claims were not dismissed, are unaltered in the SAC, and are not challenged here.
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must allege facts sufficient to “raise a right to relief above the speculative level.” See Twombly,

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550 U.S. at 555, 570.
In deciding whether the plaintiff has stated a claim upon which relief can be granted, the

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Court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the

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plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court

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is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of

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fact, or unreasonable inferences.” See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.

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2008).
If the court dismisses the complaint, it “should grant leave to amend even if no request to

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amend the pleading was made, unless it determines that the pleading could not possibly be cured

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United States District Court
Northern District of California

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by the allegation of other facts.” See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In

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making this determination, the court should consider factors such as “the presence or absence of

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undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous

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amendments, undue prejudice to the opposing party and futility of the proposed amendment.” See

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Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989).

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DISCUSSION

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Title IX provides that “[n]o person in the United States shall, on the basis of sex, be

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excluded from participation in, be denied the benefits of, or be subjected to discrimination under

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any education program or activity receiving Federal financial assistance.” 28 U.S.C. § 1681(a).

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Under Title IX, victims of sex discrimination have a private right of action against those recipients

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of federal funds for their alleged Title IX violations. Cannon v. Univ. of Chicago, 441 U.S. 677,

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709 (1979).

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In Karasek, the Ninth Circuit held that a pre-assault claim can lie against a recipient of

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federal funds. Such a claim alleges an “intentional[] violat[ ion of] the statute.” Karasek, 956

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F.3d at 1112 (quoting Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629,

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650 (1999)). The court laid out four elements to plead a successful pre-assault claim: “(1) a school

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maintained a policy of deliberate indifference to reports of sexual misconduct, (2) which created a

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heightened risk of sexual harassment that was known or obvious (3) in a context subject to the
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school’s control, and (4) as a result, the plaintiff suffered harassment that was so severe, pervasive,

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and objectively offensive that it can be said to have deprived the plaintiff of access to the

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educational opportunities or benefits provided by the school.” Id.

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I.

As an initial matter, the parties disagree about what policy is at issue. The answer to this

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question governs analysis of the merits and the statute of limitations. I address it first.
A. The Policy Analyzed in the Prior Order

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The Prior Order found that the plaintiffs had adequately alleged a “de facto policy of

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THE POLICY AT ISSUE

deliberate indifference to reports of sexual misconduct.” See Prior Order, at *12–*14.3 In
particular, the plaintiffs alleged—supported by the Audit—that the University often used the

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Northern District of California

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“informal” sexual misconduct resolution process that its own Title IX official said would not “be

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appropriate” for resolving sexual assault claims. Id., at *13. Despite this, the University was

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alleged (and found in the Audit) to have used that process in the vast majority of cases. Id. There

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are, according to the Audit, “significant procedural differences between the formal and informal

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processes.” Id. (quoting Fifth Amended Complaint [Dkt. No. 138] ¶ 53). As I explained,

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One key difference is that, when the University employed the informal process, it could
not demonstrate to the Auditor that it “consistently informed students of what to expect as
the university investigated their complaints and how to report retaliatory harassment.”
And it failed to “provide regular updates” to complainants and “consistently complete
investigations in a timely manner.”

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Id. (internal citations omitted). These problems and others, the Audit found, “led to mishandling

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of complaints and placed student safety at risk.” Id., at *17. Because of this allegation and others,

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the Prior Order went on to find that the policy “created a heightened risk of sexual harassment that

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was known or obvious.” Id.

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I also explained that this alleged de facto policy was, as pleaded, not mere negligence or
laziness. Instead, the University is alleged to utilize the informal process to avoid reporting

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The Prior Order also found that the University was adequately alleged to maintain such a policy
with respect to “reports of sexual misconduct within the [Cal Berkeley Democrats] Club,” the
context in which Karasek was assaulted. See Prior Order, at *15–*16. That alleged policy is
unrelated to Commins’s claims.
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requirements under the Clery Act. Id., at *5, *14. This “alleged Clery Act motive, taken as true,

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elevates [the systemic use of the informal process] from mere ‘carelessness or ‘negligen[ce]’ to

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behavior that is intentional.” Id., at *14. As I explained, “[i]f, as the University’s own Title IX

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officer publicly claimed, the informal process is inappropriate to resolve sexual assault cases, the

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University’s [alleged] use of that process can easily be described as indifferent to at least some

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reports of sexual assault.” Id.
Finally, I found that several other actions and inactions by the University “plausibly

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indicate[] University officials’ deliberate indifference.” Id., at *13. The plaintiffs alleged that

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“the University failed to adequately educate students about sexual misconduct on campus.” Id.
They alleged that “faculty and staff—including those who are the points of contact for sexual

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Northern District of California

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misconduct reports—were inadequately trained in how to respond to complaints of sexual

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assault.” Id. “[T]he University’s alleged systemic failures to adequately inform incoming

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students about sexual misconduct and adequately educate staff who must handle the complaints,” I

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explained, “bolstered” the allegation that University officials’ indifference was deliberate. Id., at

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*14.

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B. The Policy Commins Alleges
In the present motion, the University argues that Commins’s amended allegations now rely

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on a different policy than the one previously found to be adequately pleaded. It interprets

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Commins to allege a “policy of deliberate indifference based on the University’s failure to provide

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a specific type of ‘safe, sexual conduct’ training.” Motion to Dismiss (“Mot.”) [Dkt. No. 156] 2.

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Commins resists this characterization, arguing that “[i]n the SAC, Ms. Commins did not alter or

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add to any of the allegations that this Court found plausibly alleged a timely claim that UC

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maintained a policy of indifference to sexual misconduct that was known or obvious.” Opposition

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to the Mot. (“Oppo.”) [Dkt. No. 160] 2. Far from alleging a new policy, Commins argues that she

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“has consistently alleged that UC, in addition to its other systemic deficiencies, broadly failed to

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train or educate its students with respect to sexual misconduct.” Id. She asserts that the only

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meaningfully changed allegations relate to causality, in line with the Prior Order that permitted her

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to allege facts demonstrating a causal link between the challenged policy and the assault.
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It is true, as Commins says, that the deficiencies in student education that she alleges are

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not all that different from the educational deficiencies that the plaintiffs previously alleged. They

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are also supported by the same Audit findings. But I agree with the University on the broader

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point that the Prior Order did not find that these deficiencies in student education and training

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about sexual misconduct were, on their own, policies that met Karasek’s pre-assault standard. As

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explained above, the crux of the Prior Order’s findings was the alleged policy of using the

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informal resolution process. Prior Order, at *13–*14. That policy, not any others, was allegedly

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motivated by Clery Act reporting requirements, plausibly rendering it deliberately indifferent. Id.

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That policy was what I found to have plausibly created a heightened risk of sexual harassment that
was known or obvious. Id., at *17. And that policy was the primary focus of the Ninth Circuit’s

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Northern District of California

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concern. Karasek, 956 F.3d at 1113.

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It makes sense that that policy was the subject of previous analysis, because it is the policy

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that the plaintiffs proffered in their previous motions as satisfying the pre-assault standard. For

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instance, in discussing the timeliness of their claims, the plaintiffs argued, “Plaintiffs here had no

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reason to investigate whether UC had a policy of discrimination against women who reported

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sexual misconduct…” Dkt. No. 142 at 4 (emphasis added). In asserting that the statute of

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limitations was tolled because of fraudulent concealment, they represented that,

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Plaintiffs allege that (1) the University underreported the amount of sexual misconduct
committed on campus prior to their enrollment; (2) UC publicly stated that it would always
use a formal resolution process for reports of sexual assault, when in practice, it resolved
the vast majority of sexual assault complaints using an informal resolution process; and (3)
UC resolved sexual assaults using an informal resolution process in order to avoid its
obligation to publicly report incidents of sexual misconduct pursuant to the [Clery Act].

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Id. at 5 (internal citations omitted). In defining the policy at issue, the plaintiffs quoted the Ninth

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Circuit, whose description largely centered on the policy addressed in the Prior Order. Id. at 12.

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The plaintiffs’ brief then went on to describe the alleged policy of using the informal resolution

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process. Id. at 12–13.

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To be sure, the Prior Order, the Ninth Circuit, and the plaintiffs also referenced the alleged

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failures to educate students, but to varying degrees and for different purposes. At several points in

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their brief, the plaintiffs referenced failures to educate. See, e.g., id. at 18. But they almost always
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did so packaged with the other policy deficiencies. See, e.g., id. at 19 (“It is foreseeable that

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maintaining deficient sexual misconduct policies, failing to train students and faculty, failing to

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meaningfully punish perpetrators of sexual misconduct, actively concealing the breadth of sexual

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misconduct on campus, failing to meaningfully enforce policies, and lying to the public about

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enforcement of policies would lead to sexual assaults to be committed on campus.”). The

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plaintiffs never attempted to show that failures to educate students, standing alone, would

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constitute a policy of deliberate indifference. The only allegation they argued in briefing that was

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indicative of deliberate indifference was the Clery Act motive. Id. at 13.

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The Prior Order also referenced deficiencies in education and training. But it did so to
support a finding of an adequate inference of deliberate indifference, not that an alleged failure to

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Northern District of California

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educate students was alone a policy of deliberate indifference that created a heightened risk of

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sexual harassment. See Prior Order, at *13 (“The FAC’s allegations—supported by the Audit—

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also show that the University failed to adequately educate students about sexual misconduct on

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campus, which plausibly indicates University officials’ deliberate indifference.”) (emphasis

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added); id., at *14 (“This conclusion [about an inference of indifference] is bolstered by the

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University’s alleged systemic failures to adequately inform incoming students about sexual

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misconduct and adequately educate staff who must handle the complaints.”) (emphasis added); id.

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(“[T]he plaintiffs here do not rely solely on educational deficiencies, as I explain above [in

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contrast to a cited case].”). The Ninth Circuit only referenced educating students once, in passing;

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the bulk of its discussion focused on the investigatory deficiencies and, to a lesser extent, staff

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training for handling misconduct complaints. See Karasek, 856 F.3d at 1113–14.

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Finding that a pre-assault claim can be predicated solely on a failure to educate students
would be an expansion of Karasek. As the court explained,
We do not hold that deliberate indifference to reports of past sexual misconduct is the only
form of pre-assault conduct that could result in an institution’s Title IX liability. Rather,
we focus on the sufficiency of such allegations because they are what the FAC articulates.
We do not have occasion to consider whether other forms of pre-assault conduct could
amount to an official policy of deliberate indifference that is actionable under Title IX.
Id. at 1112 n.5 (emphasis added). Some failures to educate students about sexual assault will lead

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to viable Title IX claims, as I discuss later. But I did not reach that conclusion in the Prior Order;

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its discussion of student education was for a much more limited purpose. The policy at issue there

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was one of deliberate indifference “to reports of sexual misconduct.” Prior Order, at *12;

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Karasek, 856 F.3d 956 at 1113.

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Commins’s theory has now narrowed. She does not argue that there is causality between

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her assault and the alleged policy of using the informal resolution process. Nor does she allege

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that there is a link between staff mishandling of complaints (which the Audit found to create a

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heightened risk) and her assault. Instead, her theory of causation is: (1) the University failed to

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adequately educate her about sexual misconduct and (2) the University failed to maintain a policy
that “could have led Doe 2 to recognize that his behavior during their first sexual encounter was

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Northern District of California

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wrong.” Oppo. 16–17.

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13

C. “Mix-and-Match” Approach to Title IX Claims
Commins appears to argue that she can show one policy is deliberately indifferent but

14

another caused the assault. See, e.g., Oppo. 7–8 (“Her SAC not only alleges that UC failed to train

15

its students on sexual misconduct (although that would be enough under the Ninth Circuit’s

16

standard), but also realleges all the allegations contained in her FAC related to UC’s broad

17

systemic failure to respond reasonably to sexual misconduct on campus.”). The University aptly

18

describes this as a “mix-and-match” approach to a Title IX claim. Reply 5. I previously rejected a

19

similar argument that she could illustrate causality from what she termed the University’s general

20

“systemic failures in responding to sexual misconduct on campus.” Dkt. No. 142 at 17; see also

21

Prior Order, at *19 (addressing this argument).

22

This is not a viable theory of causation. A Title IX pre-assault plaintiff must show that her

23

harassment occurred “as a result” of the policy of deliberate indifference that created a heightened

24

risk of harassment that was known or obvious. Karasek, 956 F.3d at 1112. A plaintiff cannot

25

allege that a school had such a policy but that a different policy caused the assault. Commins must

26

show that the only policy she contends is causally connected to the assault—the alleged failure to

27

educate students about sexual misconduct—was deliberately indifferent and created a heightened

28

risk of sexual harassment that was known or obvious.
12

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1

II.

STATUTE OF LIMITATIONS

2

The University argues that Commins’s amended claim is untimely. It is not persuasive.

3

A motion to dismiss based on a statute of limitations can only be granted when its running

4

“is apparent on the face of the complaint.” Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997

5

(9th Cir. 2006) (internal quotation marks and citation omitted). “Title IX claims are subject to the

6

applicable state statute of limitations for personal injury actions.” Stanley v. Trustees of

7

California State Univ., 433 F.3d 1129, 1136 (9th Cir. 2006). California’s relevant personal injury

8

statute of limitations is, and was at all relevant times, two years. CAL. CIV. P. CODE. § 335.1; see

9

Stanley, 433 F.3d at 1136.

10

In the Prior Order, I explained that there was a split among district courts in this Circuit

United States District Court
Northern District of California

11

(and elsewhere) about when a Title IX pre-assault claim accrues and, therefore, when the statute of

12

limitations is triggered. That issue is governed by federal law and “[t]he standard federal rule is

13

that this accrual occurs when the plaintiff has a complete and present cause of action.” Prior

14

Order, at *7 (citing Wallace v. Kato, 549 U.S. 384, 388 (2007)) (internal quotation marks

15

omitted). The “touchstone for determining the commencement of the limitations period is notice:

16

a cause of action generally accrues when a plaintiff knows or has reason to know of the injury

17

which is the basis of his action.” Stanley, 433 F.3d at 1136 (internal quotation marks omitted). I

18

joined those courts that have held that a pre-assault claim accrues “when the plaintiff knows or has

19

reason to know of the school’s policy of deliberate indifference that created a heightened risk of

20

harassment.” Prior Order, at *8. I rejected the University’s position that the claim automatically

21

accrues when a plaintiff is assaulted. Id. I incorporate that portion of the Prior Order here. The

22

University accepts that this dispute is now governed by the accrual standard I previously laid out.

23

See Mot. 9 n.3.

24

Commins first argues that this debate is foreclosed by the Prior Order. Oppo. 21. Not so.

25

The Prior Order held that the plaintiffs’ claims were not barred by the statute of limitations (at the

26

motion-to-dismiss stage) because plaintiffs plausibly would not have known of the alleged policy

27

of deliberate indifference until the Audit was published, but Commins now alleges that the policy

28

of deliberate indifference is in student education alone. The University contends that Commins
13

Case 3:15-cv-03717-WHO Document 164 Filed 04/14/21 Page 14 of 22

1

must have known or reasonably should have known of the educational deficiencies when she was

2

assaulted “because she necessarily knew at that time what training she had or had not received

3

prior to the assault.” Mot. 9.
The University’s statute of limitations argument fails. While Commins would know what

4
5

education she did and did not receive at the time of the assault, the relevant inquiry is into when

6

she did learn or should have learned of the alleged policy of the University. Prior Order, at *8. At

7

this stage, I cannot determine that she necessarily would reasonably have known about the

8

University’s alleged systemic failures to educate its students about sexual misconduct until the

9

Audit was published. The University’s argument is premature and cannot be granted on a motion
to dismiss.

11

United States District Court
Northern District of California

10

III.

12

PRE-ASSAULT CLAIM
The University does not dispute that Commins has adequately alleged that the heightened

13

risk (and assault) occurred in a context subject to its control or that the assault was sufficiently

14

severe harassment. It argues that Commins’s claim must be dismissed because it does not allege a

15

policy of deliberate indifference that created a known or obvious heightened risk of sexual

16

misconduct and because she again does not adequately allege causation.

17

Commins first argues that all inquiries except causation are barred by the law of the case

18

doctrine. Oppo. 6–7. “Under the law of the case doctrine, a court is generally precluded from

19

reconsidering an issue previously decided by the same court, or a higher court in the identical

20

case.” Ingle v. Circuit City, 408 F.3d 592, 595 (9th Cir. 2005). That doctrine does not foreclose

21

the University’s arguments. As explained, Commins now alleges that the assault was caused by a

22

separate policy than the one that the Prior Order held adequate. As a result, the Prior Order did

23

not decide the issue. I proceed to why Commins’ claim satisfies the pre-assault standard.

24

A. Policy of Deliberate Indifference that Created a Heightened Risk

25

Karasek held that a cause of action existed when “a school maintained a policy of

26

deliberate indifference to reports of sexual misconduct.” Karasek, 956 F.3d at 1112 (emphasis

27

added). But the court was also clear that “[w]e do not hold that deliberate indifference to reports

28

of past sexual misconduct is the only form of pre-assault conduct that could result in an
14

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1

institution’s Title IX liability. . . . We do not have occasion to consider whether other forms of

2

pre-assault conduct could amount to an official policy of deliberate indifference that is actionable

3

under Title IX.” Id. & n.5. As the court explained, a school’s “official policy” can violate Title

4

IX. Id. Such a policy is an “intentional[] violat[ion of] the statute.” Id. (quoting Davis, 526 U.S.

5

at 642). If a school intentionally (or with deliberate indifference) adopts a policy of systemically

6

failing to adequately educate students about sexual misconduct, that would seem to be just as

7

much an “intentional” act as a policy of ignoring reports of sexual misconduct.4
Deliberate indifference is a relatively high standard. It requires that conduct be “more than

8

negligent, lazy, or careless.” Oden v. N. Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 2006).

10

Cases from the post-assault context teach that the policy must be “an official decision by the

11

United States District Court
Northern District of California

9

recipient not to remedy the violation.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290

12

(1998). In the pre-assault context, “[a] school need not have had actual knowledge of a specific

13

instance of sexual misconduct or responded with deliberate indifference to that misconduct before

14

damages liability may attach.” Karasek, 956 F.3d at 1112.

15

Commins has adequately alleged a policy of deliberate indifference to sexual harassment

16

that created an obvious heightened risk. She asserts that the University adopted a de facto policy

17

by which a significant number of students were never educated on sexual harassment and

18

violence. As the Audit found, approximately half of the University’s students had no record of

19

such training in one academic year (though not the precise academic year in question). Audit 29–

20

30. The failure to educate such a large percentage of the student body about any of the

21

fundamentals of sexual misconduct would plausibly create an obvious risk: an increase in sexual

22

misconduct. See id. That obvious risk plausibly shows deliberate indifference, provided that

23

Commins can ultimately show that University officials were or should have been aware of it.
In the last round of briefing, the University relied on Doherty v. Emerson Coll., No. 1:14-

24
25

CV-13281-LTS, 2017 WL 4364406 (D. Mass. Sept. 29, 2017), to attempt to show that the

26

plaintiffs’ allegations were insufficient. That was not a pre-assault case even though there was

27
28

4

The University does not argue that alleged failures to educate about sexual misconduct are
categorically not actionable under Karasek.
15

Case 3:15-cv-03717-WHO Document 164 Filed 04/14/21 Page 16 of 22

1

reference to pre-assault conduct. Prior Order, at *14. But, as I explained, “the court there found

2

that the school’s educational programs were sufficient to show it was not deliberately indifferent.

3

The University makes no attempt to compare those educational programs with its own and, in any

4

case, the plaintiffs here do not rely solely on educational deficiencies.” Id. (internal citation

5

omitted).

6

Doherty is a more useful comparator for education-based allegations standing alone.

7

There, the plaintiff argued that “the alcohol-and sexual-assault-related education and training

8

Emerson provided to its students were so inadequate as to demonstrate a deliberate indifference to

9

her sexual assault.” Doherty, 2017 WL 4364406, at *8. The court found, however, that “[t]he
undisputed evidence establishes that Emerson provided all students with information about sexual

11

United States District Court
Northern District of California

10

assault risks, alcohol risks, and resources available related to such risks,” so the deficiency was at

12

most in failing to expressly link alcohol use and sexual assault. Id. That is different from this

13

case: Commins alleges that not all students—far from it—were given education and training about

14

sexually appropriate behavior and consent. The Audit supports that allegation.

15

The University has not pointed to any case in which allegations about an educational

16

institution under Title IX as substantial as those here merited dismissal on the pleadings. It turns

17

to a group of cases from the Section 1983 context against entities that were not educational

18

institutions. Commins responds that those cases are entirely irrelevant. See Oppo. 8. I disagree.

19

In formulating the Title IX deliberate indifference standard, the Supreme Court noted that

20

“[c]omparable considerations” undergirded its adoption of the standard in the Section 1983 and

21

Title IX contexts. Gebser, 524 U.S. at 291. It later described itself as having “employ[ed] the

22

‘deliberate indifference’ theory already used to establish municipal liability under [Section] 1983.”

23

Davis, 526 U.S. at 642.

24

The plaintiffs cite Stilwell v. City of Williams, 831 F.3d 1234 (9th Cir. 2016), and several

25

non-binding cases to argue that Title IX and Section 1983 are distinct. Stilwell highlights many of

26

the differences between those causes of action, such as who can be sued and the substantive rights

27

and protections of the statute. But in terms of the deliberate indifference element, the Supreme

28

Court was clear in Gebser and Davis that Title IX deliberate indifference is drawn from the
16

Case 3:15-cv-03717-WHO Document 164 Filed 04/14/21 Page 17 of 22

1

Section 1983 cases. Stilwell also discussed the differences in liability: “a Title IX plaintiff can

2

establish school district’s liability by showing that a single school administrator with authority to

3

take corrective action responded to harassment with deliberate indifference, whereas a plaintiff

4

stating a similar claim via § 1983 for violation of the Equal Protection Clause by a school district

5

or other municipal entity must show that the harassment was the result of municipal custom,

6

policy, or practice.” Stilwell, 831 F.3d at 1243–44. In a Title IX pre-assault case, though, it is the

7

school’s policy that is at issue, in a way reminiscent of Section 1983.

8

While Section 1983 cases can be helpful, there is no principled reason for simply grafting

9

them onto this context. A municipality’s alleged failure to train its employees leading to alleged
constitutional violations is distinct from a university’s alleged failure to educate its students

11

United States District Court
Northern District of California

10

leading to alleged sexual harassment. The dynamics, duties, and risks are distinct. Although the

12

institution’s level of blameworthiness must, under both standards, be the same, there is no

13

principled reason that precise factual requirements of the one should be imported wholesale into

14

the other.

15

Moreover, the University’s Section 1983 cases are quite different from this one and do not

16

compel dismissal. Flores v. County of Los Angeles, 758 F.3d 1154 (9th Cir. 2014), and related

17

district court cases, dealt with what is required to hold a municipality liable for its failure to train

18

police officers. In such cases, “the inadequacy of police training may serve as the basis for § 1983

19

liability only where the failure to train amounts to deliberate indifference to the rights of persons

20

with whom the police come into contact.” Flores, 758 F.3d at 1158 (quoting City of Canton v.

21

Harris, 489 U.S. 378, 388 (1989) (internal quotation marks omitted)). Accordingly, the

22

municipality must have “disregarded the known or obvious consequence that a particular omission

23

in their training program would cause municipal employees to violate citizens’ constitutional

24

rights.” Id. (internal quotation marks and alteration omitted). Here, the risk of sexual assault from

25

failing to give any sexual misconduct education to such a large portion of the student body makes

26

the harm plausibly “obvious” and makes it plausible that University officials disregarded that risk.

27
28

In Flores, the plaintiff alleged that she was sexually assaulted by a sheriff’s deputy (while
he was on the job) and sued the County on a theory that the assault was caused by its failure to
17

Case 3:15-cv-03717-WHO Document 164 Filed 04/14/21 Page 18 of 22

1

train deputies. Id. at 1156–57. The court gave a number of reasons to dismiss that claim. First, it

2

held there was no pattern of similar violations in the past. Id. at 1159. Second, it held that the

3

risks from the failure to train would not be “patently obvious” even without proof of a past pattern.

4

Id. at 1159–60. The court explained that “[t]here is . . . every reason to assume that police

5

academy applicants are familiar with the criminal prohibition on sexual assault, as everyone is

6

presumed to know the law.” Id. at 1160. Third, Flores held that the claim was not plausible on its

7

face for largely the same reason. Id. I previously cited this portion of Flores in discussing

8

Commins’s allegations because they were conclusory under the pleading standard. Prior Order, at

9

*19. Now that Commins has fleshed out her theory, Flores does not require dismissal. The
situation as alleged at the University is different from the one in Flores. While any incoming

11

United States District Court
Northern District of California

10

student will likely know that sexual assault is illegal, the entire reason that University sexual

12

assault education is necessary is that the students will not necessarily know when certain behavior

13

crosses the line or how to respond to it. That is precisely what Commins alleges here: that she

14

reasonably did not recognize that Doe 2’s initial behavior was a threat. SAC ¶¶ 110, 115. That is

15

unlike the police academy cadet who carries out the assault being assumed to be aware of the law

16

surrounding sexual misconduct.

17

Nor does Connick v. Thompson, 563 U.S. 51 (2011), require dismissal. Connick involved

18

a failure of a government to train its own employees (there, prosecutors) in the law. The situation

19

of a University adequately educating students is fundamentally different. As Commins has

20

plausibly argued, and the Audit supports, a failure to educate students about sexual misconduct

21

can put their safety at risk. Connick held that the municipality must be on notice that the harm that

22

would result is “highly predictable” absent the training. Connick, 563 U.S. at 64. At the motion-

23

to-dismiss stage, I agree with Commins that it is plausibly “highly predictable” that students will

24

be harassed on campus if a large proportion of them are not given education in sexual misconduct.

25

The University counters that its behavior was, at worst for it, negligent or careless and that

26

there is no allegation showing deliberate indifference. But as its own cases make clear, deliberate

27

indifference can exist when a defendant “recognize[s] an unreasonable risk” and acts anyway,

28

intentionally exposing the plaintiffs to that risk. Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th
18

Case 3:15-cv-03717-WHO Document 164 Filed 04/14/21 Page 19 of 22

1

Cir. 2011) (internal quotation marks and alteration omitted). It is likely that if a university fails to

2

ensure that a large percentage of its students receive adequate sexual harassment education, sexual

3

harassment will predictably occur. The reason such trainings are necessary is that many students

4

will not be aware, as Commins alleges she was not, of the warning signs of inappropriate sexual

5

behavior. As the Audit found, the University’s failures to educate students—separate and apart

6

from any other alleged failures—put student safety at risk.
The University also argues that Commins insists on one specific type of training, training

7

in “safe, sexual conduct.” See Mot. 10–15. Commins’s theory is broader. She argues that the

9

University did not train many students (including her) in even the fundamentals of sexual

10

violence, appropriate sexual behaviors, and consent. And the University contended at oral

11

United States District Court
Northern District of California

8

argument that there is no allegation that it was aware that so many students were not being

12

educated. But the Audit shows that its own collected data reflected this; at this stage, Commins is

13

entitled to the reasonable inference that the University plausibly was aware of this.

14

B. Causation

15

The parties disagree over the unsettled question of what standard applies for causation in a

16

Title IX pre-assault case. The University argues it should be but-for and proximate cause;

17

Commins argues that the policy need only be a substantial factor in the harassment. This is a

18

distinction with little difference.5

19

The parties treat the substantial factor test as being a lower standard than proximate

20

cause—the plaintiffs even say it is lower than but-for causation. That misunderstands their

21

relationship. “Under [the but-for] standard, a plaintiff must demonstrate that, but for the

22

defendant's unlawful conduct, its alleged injury would not have occurred.” Comcast Corp. v.

23

Nat’l Ass’n of African American-Owned Media, 140 S. Ct. 1009, 1014 (2020). “Proximate cause”

24
25
26
27
28

In the Prior Order, I declined to reach this question because I found that Karasek’s claim was
adequately pleaded under both standards and Commins’s was not adequately pleaded under either
(though I reminded the parties of the Supreme Court’s recent decision that but-for causation is
generally the “default” form for federal statutes). Prior Order, at *18; see also Barnett v. Kapla,
No. 20-CV-03748-JCS, 2020 WL 7428321, at *17 & n.16 (N.D. Cal. Dec. 18, 2020) (declining to
reach the question on similar grounds).
5

19

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1

or “legal cause” ensures that there is some causal link between the act and the harm that is not “so

2

attenuated that the consequence is more aptly described as mere fortuity.” Paroline v. United

3

States, 572 U.S. 434, 445 (2014). “The doctrine of proximate cause serves merely to protect

4

defendants from unforeseeable results of their” actions. Pac. Shores Properties, LLC v. City of

5

Newport Beach, 730 F.3d 1142, 1168 (9th Cir. 2013).
As the Ninth Circuit and Restatement of Torts make clear, the substantial factor inquiry is

6
7

just an aspect of the proximate cause test. In Pacific Shores, the Ninth Circuit laid out the

8

standard for proximate cause and, while doing so, explained that “plaintiffs can demonstrate

9

causation by proving that the defendant's wrongful conduct was a ‘substantial factor’ in bringing
about the harm in question.” Id. The Restatement (Second) of Torts explains that an actor’s

11

United States District Court
Northern District of California

10

conduct is the “legal cause”—i.e., the proximate cause—“of harm to another if . . . his conduct is a

12

substantial factor in bringing about the harm.” Restatement (Second) of Torts § 431; accord id. §

13

435 (intertwining the standards).

14

Commins is incorrect in asserting that she must show something less than but-for

15

causation. And the University is wrong that the substantial factor test displaces usual tort

16

principles of causation; it is part and parcel of them. Although the University seeks to present

17

proximate cause as a high bar, the reality is that proximate cause is “often explicated in terms of

18

foreseeability or the scope of the risk created by the predicate conduct.” Paroline, 572 U.S. at

19

445. At this stage, the question is (1) whether Doe 2’s assault of Commins plausibly would not

20

have occurred if the University had properly educated her (but-for causation) and (2) whether the

21

risk to Commins was a plausibly foreseeable risk of the University’s policy (legal causation).6
The Ninth Circuit has cautioned that “[c]ausation is an intensely factual question that

22
23

should typically be resolved by a jury.” Pac. Shores, 730 F.3d at 1168. Commins alleges that,

24

had she received education from the University in what constitutes sexual assault or misconduct,

25

she would have been able to “understand” that Doe 2’s behavior at the fraternity party (prior to the

26

assault) was “not appropriate.” SAC ¶ 112. She would not have invited Doe 2 over later had she

27
28

6

Different jurisdictions might adopt different causation principles; here, I discuss only the general
common-law understanding because that is what the parties focus on.
20

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1

been properly educated and the assault would not have occurred. Id. ¶¶ 183–84. These allegations

2

are sufficient at this stage; it is plausible that the assault would not have occurred “but for” the

3

failure to educate. And the “foreseeable” risk, see Reynaga Hernandez v. Skinner, 969 F.3d 930,

4

942 (9th Cir. 2020), of failing to train new students about sexual misconduct is that they will be

5

less able to understand the dynamics of it when it occurs, and less knowledgeable about possible

6

responses.7

7

The University responds that this link is “speculative” and “based on inference.” Mot. 17–

8

20. But what Commins alleges is precisely why universities conduct sexual harassment education

9

in the first place. The University claims that Commins advances the following attenuated causal

10

chain:
(1) she would have received and paid attention to “safe, sexual conduct” training at some
earlier point; (2) she would have remembered that training months (or years) later when
she met Doe 2; (3) she would have, based on that training, recognized Doe 2 as a
potentially dangerous individual based on a single encounter; and (4) she would have made
the decision to avoid a relationship with Doe 2 and therefore would have avoided her
assault.

United States District Court
Northern District of California

11
12
13
14
15

Mot. 17. But many of these so-called “inferences” are reasonable and should be drawn in a

16

plaintiff’s favor at this early stage. Commins is entitled to the reasonable assumption that she

17

would have paid attention to sexual misconduct training if the University had given it and would

18

have remembered it. Doe 2’s behavior was unacceptable, so it is plausible that Commins would

19

recognize it for what it was if she had been educated in how to do so. And the final alleged

20

inference requires no speculation because Commins affirmatively pleads it. The University’s

21

arguments are premature; they do not show that allegations are not adequately pleaded at this early

22

stage. See Pac. Shores, 730 F.3d (“Juries are expected to rely on their common sense in resolving

23

questions of causation. Indeed, it is jurors’ common experience of living on a populated planet

24

that renders them at least as reliable, if not more so, than a single judge at assessing issues of

25

causation.”) (internal quotation marks and citation omitted).

26
27
28

7

Because this theory of causation is viable, there is no need to address two other proposed
theories of causation: (1) that Doe 2’s behavior would have been different had the University
properly educated him and (2) that Commins would have known how to prevent the assault in the
moment if she had been educated.
21

Case 3:15-cv-03717-WHO Document 164 Filed 04/14/21 Page 22 of 22

The University invokes the “policy implications” of these causation arguments. It worries

1
2

that “any individual assaulted on campus at the same time as Commins might have a potential

3

pre-assault Title IX claim for money damages against the University, based on nothing more than

4

the University’s failure to provide a narrow and specific type of training.” Mot. 20. Relatedly, it

5

argues that,

6

The same logic might render all manner of claims viable, because there is almost always
some additional training that a plaintiff can claim would have prevented harm. For
example, a plaintiff could claim that the University’s failure to provide physical selfdefense training led to an assault, or claim that the failure to provide training on healthy
relationships led to an abusive relationship, in which context an assault later occurred
(even without any specific allegation of how exactly such trainings would have prevented
the assault).

7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15

Id.
The University attacks a straw man. I do not conclude that Commins’s claim survives
because of the failure to give “a narrow and specific type of training.” Her claim survives based
on the alleged (and, in the Audit, established) failure to provide any sexual misconduct training to
a significant portion of students, which plausibly and obviously placed students at risk and caused
her harm.

16
17
18
19

CONCLUSION
The motion to dismiss is DENIED.
IT IS SO ORDERED.
Dated: April 14, 2021

20
21
22

William H. Orrick
United States District Judge

23
24
25
26
27
28
22