Education: Student sues Marshall University after harassment at off-campus party

Where a student sued Marshall University after she was sexually harassed, but the conduct happened at a private, off-campus residence unconnected to any university-sponsored program, organization or event; the university had no prior knowledge of the off-campus post-game party and the university did not  exercise any supervision or control over the location or those present, the university prevailed on the deliberate indifference claim.

Background

The events underlying this appeal arose from a series of events that occurred after a September 2022 football game when a Marshall student sexually assaulted plaintiff Jane Roe at an off-campus residence. The litigation primarily concerns the University’s response, after it was informed of the assault incident by the Huntington police.

Roe’s federal court complaint alleged that the University’s insufficient response to Roe’s report of sexual harassment amounted to deliberate indifference. Second, Roe alleged that the University had retaliated against her for reporting Doe’s assault and sexual harassment, in that Marshall had disciplined her for underage drinking after she had voluntarily participated as a witness in Doe’s investigation.

The district court granted summary judgment to the University on both claims.

Deliberate indifference

A plaintiff alleging a Title IX claim on the basis of sexual harassment must demonstrate: (1) that the educational institution receives federal funding; (2) that the plaintiff “was subject to harassment based on her sex”; (3) that “the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity” and (4) “there is a basis for imputing liability to the institution.” Marshall challenges liability solely on the fourth element, contending that there is no basis for imputing liability to the University.

Several courts have recognized that Title IX liability can extend to off-campus conduct when the educational institution sponsors, supervises or otherwise exercises substantial control over a setting where sexual harassment has occurred. Likewise, some courts have extended liability off-campus when the educational institution regulates the relevant locations and enforces disciplinary rules.

Liability may also attach where the harassment occurs on school-controlled property or during school-sponsored events, such as on a school bus or field trip. Nevertheless, various courts have declined to impose Title IX liability where sexual harassment incidents occurred at locations outside the educational institution’s oversight, particularly when the institution lacked notice of prior misconduct.

Here, the sexual assault by Doe of plaintiff Roe occurred at a private, off-campus residence unconnected to any University-sponsored program, organization or event. Marshall had no prior knowledge of the off-campus post-game party, nor did it exercise any supervision or control over the location or those present.

Although Roe later advised the university of the incident, Marshall had no opportunity to intervene or prevent the assault on Roe. And while Roe reported Doe’s behavior during the student conduct investigation, the university had no prior knowledge of that behavior. The district court did not err in awarding summary judgment to Marshall on Roe’s deliberate indifference claim.

Retaliation

Roe’s retaliation claim fails at the third step of the burden-shifting framework, as she cannot show that Marshall’s proffered reasons for disciplining her were pretextual. Indeed, Roe conceded in the district court proceedings that the University had a legitimate, nonretaliatory reason for charging her under the Student Code. That is, she admitted that she had violated the Code’s prohibition against underage drinking.

Roe offers several contentions on appeal that she contends point to Marshall’s retaliatory motive. But none of those examples carry much weight. Like the district court, this court is satisfied that the University was entitled to summary judgment because Roe did not produce sufficient evidence for a reasonable jury to conclude that its stated reason for the charge against Roe — that she confessed to underage drinking — was false, or that retaliation for her complaint against Doe was the real reason for Marshall’s decision to charge her.

Affirmed.

Concurring opinion

Quattlebaum, J., concurring:

I concur in the majority opinion. I write separately only about the part  of the opinion that addresses Roe’s Title IX retaliation claim. In that section, the majority affirms the district court by applying the well-known burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), concluding that no genuine issue of material fact exists for that retaliation claim. That approach accurately follows and even quotes Fourth Circuit cases. But with respect, I believe those cases misconstrue McDonnell Douglas.

Roe v. Marshall University Board of Governors, Case No. 24-1669, July 31, 2025. 4th Cir. (King), from SDWVA at Huntington (Chambers). Gregory Bowe for Appellant. Perry W. Oxley for Appellee. VLW 025-2-295. 23 pp.