“I don’t think its saying indifferent.”
What do you mean? The phrase is used 39 times in the newly released document.
Hanna, my response was to other posters. “I don;t think it’s saying it’s fine to be deliberately indifferent.” Not at all.
And liability is otherwise and initially referred to as financial.
“Damages as relate to indifference,” “not to be indifferent,” “cases using a reasonbable standard rather than under the deliberate indifference standard,” (not limiting a college’s response to the deliberately indifferent standard.)
I will revisit my impression.
“Generally, the liability standards of actual knowledge and deliberate indifference are also appropriate in administrative enforcement of Title IX, where a recipient’s federal funding is at stake if it fails to comply with Title IX, because such standards are premised on holding recipients [colleges] accountable for responding to discrimination of which the recipients know and have control.”
So, Hanna, is this correct:
“Deliberately indifferent” is a term of art that we shouldn’t use our intuition to try to understand.
The proposed regulations spell out what an institution is supposed to do. If an accuser alleges that the institution failed to do what it was supposed to do, the accuser can sue for damages. To get damages, the accuser would have to prove that the institution was “deliberately indifferent,” which is a high bar to clear.
If this is true, I can see why activists are upset. It’s useless to specify what an institution must do in case of an accusation, if they don’t have to do it.
@“Cardinal Fang”, that matches my understanding. But it’s broader than you stated. The deliberate indifference standard wouldn’t just be applied in lawsuits. It would even be applied in complaints about a university’s behavior directly to the Office of Civil Rights/the Department of Education.
I welcome a practicing lawyer to correct me on this if I am reading it wrong…
I’m hoping a practicing lawyer or two could step in here. Lawyers on this board have helped me understand several issues.
Hopefully a lawyer will answer, but from what I’ve read if the college or uni offers confidential services/support (counseling, class changes, etc.) they will have greater protections from a charge of “deliberate indifference” Campus Safety website says:
@“Cardinal Fang”: Is the question about what constitutes “deliberate indifference”? If so, you may want to look at Farmer v. Brennan, 511 U.S. 825 (1994), where SCOTUS spent some time explaining what it meant. Essentially, it’s equivalent to the gross negligence standard (meaning, more than just failure to take care, but less than acting with knowledge). The party needs to disregard an excessively high risk of the bad thing happening.
I read the summary of Farmer v. Brennan. I think it says that under the deliberate indifference standard, an entity is not liable if they did not know about the possible harm. If the entity knew about a possible risk, but failed to alleviate it, then the entity can be liable, but if the entity should have known about the risk but didn’t, then they’re not liable.
In this context, the new regulations say that a school is liable only if the allegation is reported to the school’s Title IX coordinator, or to someone who has the “authority to institute corrective measures on behalf of the recipient.” It further says that if the accuser reports to someone who is bound to bring the complaint to someone who has the authority to act, but who does not bring the complaint to the authorities, then the school is not liable.
In other words, if I report an accusation to the assistant dean, who is required to report it to her boss the dean, but doesn’t report it, then the school doesn’t have any duty to do anything. This is a perverse incentive. Schools can conveniently bury accusations and then not do anything. The person who has the authority to act can make it difficult for her underlings to bring accusations to her.
@“Cardinal Fang”: My understanding is that the DOE had not yet issued regs. Is there a basis for thinking a school is not liable unless they report the reports? That would be a pretty weird provision.
Fang, if you haven’t stumbled on these here’s a press release from JD Supra and I section from the National Law Review:
The National Law Review
@momofthreeboys: Do you know if anything requires the written notice of the right to file a complaint to include the fact that schools need not investigate without one?
read the summary of Farmer v. Brennan. I think it says that under the deliberate indifference standard, an entity is not liable if they did not know about the possible harm. If the entity knew about a possible risk, but failed to alleviate it, then the entity can be liable, but if the entity should have known about the risk but didn’t, then they’re not liable.
No. That’s notwhat Farmer says. I’ve read the whole thing and this isn’t my first time. While it does not require taking an action for the express purpose of causing harm it requires more than that an entity “should have known of a possible risk.” Instead under the Farmer definition a party must objectively know of a substantial risk of harm. That’s a much higher standard than “ should have known of potential risk”
Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 1978 (U.S.Wis.,1994)
@Demosthenes49 , The proposed regs have been released for notice and comment: https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf
@maya54, when I said under the deliberate indifference standard “If the entity knew about a possible risk, but failed to alleviate it, then the entity can be liable,” I meant the entity could be liable, but depending on other circumstances might not be liable. But if the entity didn’t know about the possible risk, then they wouldn’t be liable. I could have phrased it better. You are quite right.
I am concerned that institutions can avoid any responsibility to act by preventing the relevant people from finding out about an allegation. If I, a student, report my accusation to someone who I know is responsible for forwarding that accusation to the relevant person, I ought to be able to rely on the person actually doing it. My college shouldn’t be able to shirk its responsibility and then say, “Oh, sorry, paperwork you know, and he was so busy, nothing to be done here, it’s not our fault.”
As far as the college having to know about a “substantial risk of harm,” it seems to me that is included in the definition of conduct that requires action. That is, the victim of the sexual misconduct has to be forced to give up a college benefit or service, or submit to unwanted sexual conduct to get it; or they have to be experiencing severe and pervasive sexual harassment; or they have to have been a victim of a criminal sexual assault. Failing to act in any of those situations, it seems to me, poses a de facto substantial risk of harm. I don’t see how a college could admit the accuser falls into one of those categories, and yet assert there is no substantial risk of harm if the college fails to act. The substantial risk of harm is the student having to submit to the attacker to get the college benefit, or the student being deprived of access to their education, or a sex criminal remaining in the student body, unpunished and free to commit more crimes.
@Demosthenes49, I don’t think the written notice about the right to file a complaint includes the fact that the school need not investigate without one. Here’s the relevant text:
quote For institutions of higher education, a recipient is not deliberately indifferent
when in the absence of a formal complaint the recipient offers and implements supportive
measures designed to effectively restore or preserve the complainant’s access to the
recipient’s education program or activity. At the time supportive measures are offered,
the recipient must in writing inform the complainant of the right to file a formal
complaint at that time or a later date, consistent with other provisions of this part.
[/quote]
“Not deliberately indifferent” is the safe harbor.
It sounds like a uni must offer supports whether or not the complainant decides to file a formal grievance to qualify. I am not seeing a requirement to investigate without a formal grievance from a complainant. I will see if I can find anything else from a reputable source. This seems sensible to me and I doubt many unis would change existing mandatory reporting structure and if someone reported a concern the uni would reach out to the student with available support but would not initiate a formal investigation without the cooperation and formalized complaint from an alleged victim.
@“Cardinal Fang”: Actually, looks like schools are required to provide that information to new students. See § 106.8©. I still think that information should be provided at the time though, and I expect I will make a comment to that effect. You can’t assume people will remember their orientation materials at any time later than 24 hours after reading them.
I agree about the information to new students. An incoming freshman doesn’t expect to be assaulted, and she’s not going to remember the exact details of reporting months or years later if she wants to report. She should be warned, at the time she opts for an informal instead of a formal complaint, that her school won’t investigate.
The answer to that is college students are adults, who are customers of the same business a college. The business should be responsible for what happens on their facilities, but not what happens outside their facilities or the scope of official school events. It makes no more sense to have the college investigate what happens at an off campus apartment, than it does it does to expect the landlord of an off campus apartment to investigate what happens on campus.
Both instances should be investigated by law enforcement. The school can act based on law enforcement results.