In rare court filing, Justice Department says UNL misapplying Title IX case law

By: Lori Pilger

The Department of Justice says the University of Nebraska-Lincoln misunderstands the legal theories brought by nine women, all former or current students, and “misapplies the case law” in their Title IX lawsuit filed last year.

In April, the school asked a federal judge to dismiss the case, which alleges its investigations and responses into sexual misconduct and harassment were insufficient.

“Dismissal is the appropriate response to a case in which a plaintiff alleges deliberate indifference but in reality simply disagrees with the outcome reached by the school,” UNL’s attorneys Susan Sapp, Lily Amare and Bren Chambers said in a brief.

UNL’s attorneys argue the women failed to state plausible Title IX claims for damages under case law governing peer sexual harassment claims, in part because UNL didn’t have knowledge that the harassers posed a substantial risk of sexual harassment prior to the alleged assaults and because a single instance of sexual misconduct cannot qualify as “severe and pervasive” harassment.

But, in a rare filing Friday, Assistant U.S. Attorney General Brigid Benincasa of the Civil Rights Division of the Department of Justice said, to the contrary, case law makes clear a single rape or sexual assault can meet the standard. And the women’s claims involve UNL’s response after the assaults.

While the DOJ took no position on whether the allegations state plausible Title IX claims for damages, Benincasa said the DOJ was submitting the statement, similar to an amicus brief, to explain the legal standards governing peer sexual harassment and retaliation claims for damages under Title IX and how they apply to the claims in this case.

“The United States has a significant interest in the proper interpretation of Title IX and in ensuring that federally funded schools meet their Title IX obligations to provide a safe, nondiscriminatory learning environment by responding appropriately to reports of sex discrimination,” Benincasa wrote.

She said UNL was mistakenly conflating the distinct standards for post-assault claims, which focus on how a school responds after learning of a sexual assault, and pre-assault claims, which focus on what the school knew before a sexual assault.

Because the women are alleging post-assault claims, about UNL’s response to the reports, they need only allege that UNL had a “deliberately indifferent response” that made them vulnerable to potential further harassment, Benincasa said. Not that they were harassed a second time by the same harasser, as UNL argues.

In a statement Monday, a UNL spokeswoman said “We remain confident of our legal position and are pleased that the vast majority of claims were dropped by the plaintiffs. Beyond that, we cannot comment on pending litigation.”

In it the nine plaintiffs are alleging that they were raped, sexually assaulted, sexually harassed and/or stalked by other UNL students, and that after the misconduct was reported, six of them faced retaliation or harassment from their peers.

Five say UNL failed to investigate the reported retaliation and harassment, including harassment that led to a serious physical assault of one of the plaintiffs.

On Monday, their attorney, Karen Truszkowski, said she acknowledges that this was an important development and was appreciative of the DOJ’s guidance, which could be instructive nationally. 

The allegations initially came to light in April 2020 when a Title IX lawsuit was filed against the NCAA in Michigan on behalf of students at UNL and Michigan State University.

Now, there are separate lawsuits against the universities in each state. 

At least some of the incidents in the Nebraska case name Husker student-athletes as victims and allege other athletes, who are not named, of wrongdoing.