The opportunity to study abroad is wonderful experience for most students. But bad things can happen there as well as here, and when they do, who is liable?
In 2020, Plaintiff Jane Doe attended Calvin University in Grand Rapids, Michigan. Calvin University offered a study abroad program in the Philippines with Silliman University, a private university in Dumaguete, Philippines. Silliman University selected some of its students to serve as “buddies” for the Calvin University students. Near the end of the
program, the students attended a dinner on the Silliman campus. After the dinner, the Silliman students invited the Calvin students to a local bar and club. One of the Silliman students laced or spiked Plaintiff’s drink and later escorted her back to the hotel where he
sexually assaulted Plaintiff.
Notably, plaintiff isn’t suing the student who sexually assaulted her, or the university that made him a “buddy” to a foreign student, but her own college in Michigan. The reason seems obvious, that the only school subject to jurisdiction in the United States was her own, Calvin University. Calvin’s motion to dismiss was grounded in the extraterritorial commission of the acts that allegedly harmed the student.
Defendant insists that Title IX does not apply extraterritorially and requests dismissal of the Plaintiff’s Title IX claim.
Neither the Supreme Court nor any circuit court has determined whether Title IX applies to incidents that occur outside the United States. Interpreting a different statute, the Supreme Court noted a “longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” Morrison v. National Australia Bank, Ltd., 561 U.S. 247, 255 (2010) (internal quotation marks omitted; quoting EEOC v. Arabian American Oil, Co., 499 U.S. 244, 248 (1991)); see RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325, 335 (2016) (referring to the “cannon of statutory construction know as the presumption against extraterritorialty”). The majority of district courts have found that Title IX does not apply to incidents outside of the United States.
Case dismissed? Not quite.
Plaintiff pleads that Calvin University’s conduct amounted to deliberate indifference by, among other things, (1) maintaining outdated and inadequate sexual assault and harassment policies, (2) failing to provide adequate training and guidance for staff concerning the study abroad programs, (3) failing to provide adequate orientation for students in the study-abroad programs which were necessary for protection against sexual assault and harassment, and (4) failing to require the implementation of safety protocols during the study-abroad program.
Based upon the allegations that the “deliberate indifference” was based on Calvin’s failures prior to going abroad, The failures alleged happened in the United States in advance of the trip, and the plaintiff is not alleging that Calvin was responsible for the conduct that occurred in the Philippines, but their failure to adequately prepare their students for what might befall them abroad and implement “safety protocols” in preparation for the trip.
Judge Paul Maloney held that that motion to dismiss was directed at the wrong issue.
A careful reading of the complaint, which Plaintiff makes clear in her response, establishes that Calvin University has misconstrued the claim. Plaintiff pleads deliberate indifference in the administration of the program, a claim based on Calvin University’s conduct in the United States. The Court will, therefore, deny the motion to dismiss.
What remains curious about this suit, however, isn’t that the court correctly noted that the defense motion was misdirected toward the low-hanging fruit defense, extraterritorial application of Title IX, but that lack of any causal connection between Calvin’s failings as alleged by plaintiff and the conduct that allegedly cause her harm in the Philippines. What aspect of Calvin’s pre-trip preparation or safety protocols were necessary to make Jane Doe aware of the fact that if she goes out drinking with local students, one may slip a drug into her drink?
Is there something unique about what happened here that it required Calvin to warn her against it, or is this an obvious and pervasive threat that could happen anywhere with anyone, and that any modestly sentient being should know that it’s a possibility and guard against it? Should Calvin have instituted some rule with Silliman University that students were not permitted to go to a bar with their local “buddies”? Should there have been an adult chaperone with students in the study abroad program at all times to babysit them and protect them from the ordinary risks of living in modern society?
Had Calvin’s pre-trip preparation program reminded its female students of all the potentially bad things that could happen when one is outside one’s home, would it have caused an epiphany that the Calvin students should not go drinking with their new buddies lest someone slip plaintiff a roofie? Should the other students from Calvin have kept their eyes on plaintiff so that her buddy couldn’t spirit her away and rape her? Probably, but did they need Calvin to explain that to them? Was that not basic knowledge that any budding adult, old enough to go on a study abroad program, drinking in bars, should have already known based on common existence and experience?
Unfortunately, Calvin focused its motion to dismiss on the most obvious “hole” in the plaintiff’s case, that the conduct that caused the harm occurred by a student from a foreign university in a nation beyond our borders. But if plaintiff is going to stretch to find some conduct on the part of Calvin that occurred within the jurisdiction of the court, then it still needs to allege a causal connection between the “deliberate indifference,” if that’s what it was, and the harm suffered. Being a student in an American university subject to Title IX does not mean that students are absolved of all responsibility for their conduct or that the university is an insurer of their never suffering the harms that might befall anyone.
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