Karasek v. Regents of the University of California, No. 15-cv-03717-who, 2015 Wl 8527338 (n.d. Cal. Dec. 11, 2015): the Victimization of Title Ix

JurisdictionUnited States,Federal,California
CitationVol. 96
Publication year2021

96 Nebraska L. Rev. 772. Karasek v. Regents of the University of California, No. 15-cv-03717-WHO, 2015 WL 8527338 (N.D. Cal. Dec. 11, 2015): The Victimization of Title IX

Karasek v. Regents of the University of California, No. 15-cv-03717-WHO, 2015 WL 8527338 (N.D. Cal. Dec. 11, 2015): The Victimization of Title IX(fn*)

Chelsea Avent


I. Introduction .......................................... 773

II. Understanding Title IX in the Context of Sexual Assault ............................................... 777
A. How Davis v. Monroe County Board of Education Advanced Title IX ................................. 777
B. The Deliberate Indifference Standard Under Title IX and How Courts Are Inconsistently Applying What Is Required as "Further Harassment" ........ 779

III. Karasek v. Regents of the University of California ...... 783
A. Karasek ........................................... 784
B. Commins .......................................... 785
C. Butler ............................................ 786

IV. The Northern District of California Correctly Interpreted the Further Harassment Requirement of Title IX Cases ........................................ 787

V. The Dear Colleague Letter as an Appropriate Future Requirement .......................................... 791

VI. Conclusion ............................................ 797


In recent weeks, all around the country, parents dropped their children off at college. They're worrying about whether they'll make friends, how they'll do in their classes, if they'll be happy. And in the back of every parent's mind, they're also worrying, "Will my daughter be alright?" They may not know the statistics: that one in five women will be sexually assaulted during her college career. One in five. And for transgender and bisexual women, it's even worse: one in four transgender students experience sexual assault in college. For bisexual students, it's one in three. They may not know those statistics, but deep down, they know.

It's inexcusable. It's unacceptable. It has to stop.(fn1)


There is a problem throughout America's college campuses: the grave mishandling of sexual assault investigations. In one study, thirty percent of male college students "admitted they would commit rape if they were sure they could get away with it. This figure jumped to 58% when the wording of the question was changed from 'commit rape' to 'force a woman to have sex.'"(fn2)

A span of recent, highly publicized cases of college sexual assaults has led to a national outrage, not just at the perpetrators of the assaults but at the criminal justice system and its participants, the universities and administrators, and the highly prevalent rape culture that normalizes sexual violence.(fn3) Many cases have sparked conversation around legislative change, such as the controversial Stanford sexual assault case, where twenty-year-old, Olympic-hopeful swimmer Brock Turner was released after serving half of his six-month jail sentence(fn4) for the rape of an unconscious Jane Doe behind a dumpster after a fraternity party.(fn5) The outrage after the lenient sentence of Brock Turner led California policy makers to amend the state's sexual assault statutes, which previously created a legal loophole for offenders whose victims were intoxicated or unconscious.(fn6)


This debate reaches much further than states' sexual assault statutes and the criminal justice system, and has become an issue of what universities should be doing, if anything, to protect their students. Some argue that universities should leave these matters to the criminal justice system.(fn7) But others are steadfast that administrative processes are not only necessary to increase campus safety but are required by law.(fn8)

College campuses provide a unique setting for sexual violence, where it is common and even traditional to witness overt displays of sexual violence.(fn9) Students are exposed to conduct such as "rape chants" by fraternity members shouting "No means yes, yes means anal!"(fn10) or banners displaying sayings like "she called you daddy for 18 yrs, now it's our turn" and "Rowdy and fun. Hope your baby girl is ready for a good time."(fn11)

One in five women and one in sixteen men are sexually assaulted while attending college.(fn12) However, more than ninety percent of sex-


ual assault victims on college campuses do not report the assault,(fn13) which is higher than the national average of between sixty-six and seventy-four percent of sexual assaults going unreported.(fn14) Nationally, rape is one of the most underreported crimes.(fn15) There are many explanations for the low reporting rates of college sexual assaults, with the most common being knowing the assailant, fear and shame, uncertainty that there is sufficient evidence to prove the sexual assault occurred, and fear the assailant will not be punished.(fn16)

The existence of rape culture on college campuses surpasses student behaviors and seeps into universities' response to sexual-violence reports. A study at the University of Virginia revealed that since 1998, "183 people ha[d] been expelled for honor-code violations like cheating, but none ha[d] been kicked out for sexual assault."(fn17) This illus-


trates that universities might be more willing to discipline students if a student plagiarizes a paper than if a student sexually assaults another student. As of June 2016, 195 colleges were under investigation by the U.S. Department of Education for how they handle sexual assault reports.(fn18)

This Note focuses on the Northern District of California in Karasek v. Regents of the University of California,(fn19) its interpretation of Title IX's "deliberate indifference" standard, and the "further harassment" requirement that some courts have imposed for Title IX sexual harassment claims.(fn20) Part II provides a social and legal background of Title IX and the possible remedies available to survivors(fn21) of sexual assault. Part II also provides what is required under the deliberate indifference standard under which Title IX claims are analyzed. Part III sets forth the facts behind Karasek v. Regents of the University of California. Part IV argues that the Northern District of California correctly interpreted the further harassment requirement under the deliberate indifference standard in Karasek by taking into consideration the purpose of Title IX. Finally, in Part V, this Note concludes that even though the Northern District of California correctly interpreted the further harassment requirement, universities should be held to the standard set forth in the Dear Colleague Letter promulgated by the Department of Education Office for Civil Rights as a matter of public policy.



Title IX is the federal act that prohibits gender discrimination in education.(fn22) Title IX was first passed in 1972 to address gender inequality in educational programs. While many people only associate Title IX with school-based athletics, Title IX broadly applies to all educational programs or activities.(fn23) Title IX has developed significantly since 1972.

Title IX, codified at 20 U.S.C. §1681, provides in relevant part 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."(fn24) Congress authorized an administrative enforcement for Title IX, allowing federal departments or agencies to promulgate rules, regulations, and orders to enforce § 1681.(fn25) Compliance with these rules, regulations, and orders "may be effected . . . by any . . . means authorized by law," including the termination of federal funding.(fn26) Title IX provides victims of sex discrimination with a private right of action against recipients of federal education funding.(fn27) Sexual harassment is a form of discrimination for the purposes of Title IX.(fn28)

Title IX is "broadly worded," and the U.S. Supreme Court has held that discrimination "covers a wide range of intentional unequal treatment; by using such a broad term, Congress gave the statute a broad reach."(fn29) But, schools cannot be held vicariously liable for sexual discrimination committed by teachers or other students.(fn30)

A. How Davis v. Monroe County Board of Education Advanced Title IX

The U.S. Supreme Court first held in Davis v. Monroe County Board of Education that student-on-student sexual harassment can amount to harassment under Title IX.(fn31) But the Court limited its holding so that a school may be liable for monetary damages under


Title IX "only for its own misconduct"; that is, the school may be liable only when it "subjects" students to harassment.(fn32) In Davis, a mother brought a Title IX suit against the Board of Education based on the continuous sexual harassment her fifth-grade daughter was subjected to by a male student in the class.(fn33) The other student consistently made vulgar comments, touched her inappropriately, and displayed sexually suggestive conduct toward the daughter.(fn34) The mother and the daughter continually reported the incidents to both the teacher and the principal, but the student was never disciplined.(fn35) The only action taken by the school occurred three months after the harassment began, when the school permitted her to change seats in the classroom so she did not have to sit next to the other student.(fn36) While the Court of Appeals for the Eleventh Circuit dismissed the plaintiff's complaint because student-on-student harassment did not provide for a private cause of action under Title IX,(fn37) the Supreme Court reversed, holding Title IX may provide a private right of action...

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