Federal Court Allows “Official Policy” Claim Based on Pre-Harassment Inaction

Vander Pas v. Board of Regents of the University of Wisconsin System

No. 21-CV-1148-JPS (E.D. Wis., May 2022)

By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG

Vander Pas, a former undergraduate and graduate student at the University of Wisconsin-Whitewater (UWW), reported repeated sexual harassment by the husband (“Hill”) of a senior member of the University’s leadership. Vander Pas experienced ongoing sexual harassment from Hill at UWW events over the course of several years. Part of Vander Pas’s claim rests upon UWW’s alleged history of deliberate indifference to sexual harassment and assault, including but not limited to numerous reports of Hill sexually harassing female students.

PROCEDURAL HISTORY

Vander Pas sued the Board of Regents of the University of Wisconsin System (”the Board”) for violations of the Equal Protection Clause, Due Process Clause, and Title IX. The Board moved to dismiss all counts. Vander Pas did not dispute dismissal of the Equal Protection and Due Process claims, so the court granted dismissal on those counts, leaving only the alleged Title IX violation.

SUMMARY OF FACTS

Vander Pas enrolled as a first-year undergraduate student in Fall 2009. In December 2009, the University hired a new provost. Vander Pas held a variety of student leadership positions within the University and the community, leading her to attend many UWW events. In December 2012, Vander Pas met the provost’s husband, Hill, at a party. Vander Pas alleged that Hill had a reputation in the UWW community as a man who frequently initiated unwanted physical contact with UWW female students and employees. At the party, Hill told Vander Pas she was a “very pretty girl.”[1]

Vander Pas was unable to avoid Hill at UWW events and gatherings until her graduation in Spring 2013. He continued to make comments such as “you are a beautiful woman,” “that dress fits you just right,” “I don’t know why you are with him,” and “there are other guys who would like to have a chance with you.”[2]

In May 2015, UWW announced the provost’s promotion to Chancellor. The University of Wisconsin’s President appointed Hill as Associate of the Chancellor, an academic staff position.

In Fall 2015, Vander Pas re-enrolled at UWW to pursue an MBA and continued to hold student leadership positions. After a UWW meeting in October 2015, Vander Pas encountered Hill at a coffee shop. He initiated a “full-frontal hug” of Vander Pas without her consent. During the hug, Vander Pas reported that he forced his hand down her skirt and grabbed her buttocks underneath her clothing. Thereafter, Hill hugged and winked at Vander Pas. At a banquet, he repeatedly put his arm around Vander Pas without her consent, even though the Chancellor was standing next to them.

Additionally, Vander Pas alleged many other examples of Hill’s conduct toward others, arguing it shows a “pattern of predatory sexual harassment and assaultive behavior.”[3]

  • In Fall 2015, Hill initiated unwanted hugs with a UWW student (“Jane Doe 3”), during which he grabbed her waist or lower back to pull her closer. Hill also kissed Jane Doe 3 and grabbed her buttocks during events at the Chancellor’s home. The Executive Director and Associate Director of the UWW University Center referred to Jane Doe 3 as Hill’s favorite, ensuring Jane Doe 3 worked events if Hill attended.
  • In 2015, Hill initiated unwanted hugs with a UWW employee (“Jane Doe 4”). At one point, Hill put his hands on her face and leaned in for a kiss. When Jane Doe 4 turned her head, Hill kissed her cheek and whispered to her. In February 2018, Hill put his hand on Jane Doe 4’s lower back and whispered, “You look really good.”[4] In April 2018, Hill grabbed Jane Doe 4’s knee at least three times while she sat between Hill and the Chancellor at an event.
  • In 2016, Hill initiated hugs with a graduate student working in the Chancellor’s office (“Jane Doe 2”), including kissing her on the neck without consent and making comments such as, “Damn you look good today.” On one occasion, Hill initiated a 10-20 second hug, asking, “How long can we do this?” before kissing her neck and slapping her buttocks.[5] In August 2016, Hill told Jane Doe 2 that “ugly women only get love past 1:00 a.m.,” which was overheard by the Chancellor’s Executive Assistant and the Director of Marketing and Media Relations. They both laughed and did not report the incident, despite being mandatory reporters under University policy.
  • Another employee encouraged women in her office to avoid Hill, eventually speaking to Human Resources about whether she could instruct her employees not to meet with Hill alone. Neither the employee nor Human Resources reported the concerns to the Title IX Coordinator.

In May 2017, following a complaint by Jane Doe 3 to the UWW Dean of Students, the Board hired a private investigator to investigate Hill’s conduct. The investigator concluded the complaint could not be substantiated and the Title IX Coordinator told the Chancellor to tell Hill to “watch his actions and spirits around students.”[6] Vander Pas alleges that the University did not follow its policy to provide interim measures during the investigation. Following the investigation, Human Resources ordered Hill to undertake sexual harassment counseling, but Vander Pas asserts there is no record showing that Hill underwent counseling. In 2018, Hill sought an exemption from the mandatory sexual harassment awareness training and UWW granted his request.

In 2018, Jane Doe 4 reported Hill’s conduct to the Title IX Coordinator. The Title IX Coordinator replied, “If it’s any consolation, you aren’t the only one.”[7] The Title IX Coordinator did not take any further action, but the Board eventually hired another investigator when Jane Doe 4 made yet another report of Hill’s conduct. Vander Pas alleges UWW failed to assess the allegations or implement interim measures again.

As the second investigation began, Vander Pas heard of Hill’s suspension from campus pending the outcome. However, Hill was at a UWW gala in April 2018. At the event, Hill winked at Vander Pas and made finger gun gestures at her. Two months later, on June 12, 2018, the investigator found Hill had engaged in conduct creating a hostile work environment. The President of the University of Wisconsin System banned Hill from campus soon thereafter on June 22, 2018. The President terminated Hill’s appointment and prohibited him from attending events on campus. The UWW community was not notified of the ban until September 14, 2018.

On September 19, 2018, UWW commenced a third investigation into Hill. The publicity from the third investigation led to several more reports about Hill. The third investigation concluded that there was credible evidence that Hill sexually harassed employees and students.

Vander Pas had dropped out of the MBA program, alleging she had suffered physical and emotional injuries including insomnia, low energy, muscle tension, PTSD, and major depressive disorder.

FINDINGS AND SIGNIFICANT ISSUES

Vander Pas asserted two theories of liability for her Title IX claim. The first theory is that the Board violated Title IX by “maintaining a general policy of deliberate indifference to reports of sexual harassment, which increased the risk that [Vander Pas] would be assaulted.”[8] The second theory is that Board violated Title IX by “failing to adequately respond to [Vander Pas’s allegations of] sexual harassment and the sexual harassment of other students and employees.”[9]

Although the Seventh Circuit had not yet adjudicated a “pre-assault” or “official policy” claim under Title IX, the court in this case decided to recognize an “official policy” claim as a distinct, cognizable theory of liability under Title IX. To state a Title IX official policy claim, a plaintiff must allege that:

  1. A school maintained a policy of deliberate indifference to reports of sexual misconduct,
  2. Which created a heightened risk of sexual harassment that was known or obvious,
  3. In a context subject to the school’s control, and
  4. As a result, the plaintiff suffered harassment that was so severe, pervasive, and objectively offensive that it can be said to have deprived the plaintiff of access to the educational opportunities or benefits provided by the school.[10]

The Board’s argument rests upon the first element, arguing that Vander Pas’s allegations fail to add up to an official policy of deliberate indifference because the allegations do not support an “unwritten custom, practice and policy.”[11] In its analysis, the Court noted that a failure to act, where it reflects a deliberate or conscious choice, may constitute such a custom, practice, or policy. A policy is rarely deliberately indifferent on its face. However, a plaintiff may avoid dismissal by creating an inference that the University condoned the misconduct of their employees in the application of the policy.

Here, the court found that Vander Pas had created such an inference. Vander Pas provided at least four examples of UWW mishandling sexual assault or harassment reports and of mandatory reporters failing to report, all prior to her own harassment and assault. Additionally, Vander Pas provided numerous examples of UWW’s mishandling of sexual assault or harassment reports occurring during the same timeframe as her harassment and assault. Finally, Vander Pas provided the results of three different investigations into Hill and his banning from campus, including the failure of UWW to inform the campus of Hill’s ban until three months after it took place. Additionally, UWW was undergoing a Department of Education investigation based on its mishandling of sexual assault or harassment complaints at the time of the court’s opinion in mid-May 2022.

Turning to the post-assault claim, to succeed Vander Pas must allege that the Board is a recipient of federal funding and acted with deliberate indifference to known acts of sexual harassment. Regarding Hill’s conduct prior to May 2017, when Hill’s behavior was first reported, the Board argued that there were no known acts of sexual harassment. Regarding Hill’s conduct after May 2017, the Board argued it had not been deliberately indifferent. The court pushed back, concluding that Vander Pas adequately pled facts to claim post-notice harassment, and that discovery and further proceedings were necessary to determine whether UWW had acted with deliberate indifferent to known acts of sexual harassment. Accordingly, the Court denied the Board’s motion to dismiss.

KEY TAKEAWAYS

  • Federal courts continue to recognize “pre-assault” claims based on the failure to address patterns and cultures of sexual harassment. This case joins with a few others challenging the notion that Title IX liability is based solely on a recipient’s after the fact response and remediation to notice of sexual harassment. If a recipient institution ignores or misapplies its policies, and in doing so creates an atmosphere that condones harassment or creates a hostile environment, the institution may be liable. Liability may attach regardless of the stature of the offender(s), whether they are senior officials, faculty members, or students. Title IX Coordinators must focus on prevention and climate, and guard against any perception that some employees are “untouchable.”
  • Mandated reporters’ failure to report Title IX incidents or allegations to the Title IX Coordinator may open a school or institution up to liability, especially if the failure to report is systemic. All employees should receive training on their reporting responsibilities, ideally at the start of each academic year. Their reporting responsibilities should be clear, and expectations should be uniform. When in doubt, employees should report, and recipients should hold employees accountable for failure to report.
  • If allegations involve a high-ranking official at a school or institution, recipients should consider outsourcing the entire process to third-party Title IX experts. Doing so will help mitigate or negate inappropriate influence, conflicts of interest, or bias in the process, as well as any perception of impropriety. Engaging a third-party to investigate and/or adjudicate such allegations could positively impact climate, too, as it shows commitment to an equitable process regardless of the individuals involved.
  • Failing to adhere to school, district, or institutional Title IX policy invites courts to take a closer look at institutional practices, opening the door to liability. For those who read these summaries frequently, you probably notice a familiar takeaway recommending recipients follow their published policies and procedures. If recipients conscientiously build compliant policies and procedures, when a report comes in, just follow your rules.

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[1] No. 21-CV-1148-JPS (E.D. Wis., May 2022) at 3.

[2] Id.

[3] Id. at 4.

[4] Id. at 5.

[5] Id.

[6] Id. at 7.

[7] Id.

[8] Id. at 9.

[9] Id.

[10] Karasek v. Regents of the University of California, 956 F.3d 1093 (9th Cir. 2020).

[11] Monell v. Dep’t of Soc. Servs. Of N.Y., 436 U.S. 658 (1978).