The University of Washington knew about the sexual misconduct of one of its male students. He went on to rape a freshman just a few days after she arrived on campus. These are the chilling facts. But the Ninth Circuit would not rule on whether the University owed her the duty of care for foreseeable harm that would permit a suit for Title IX and common law negligence. Instead, they sent the question back to the Washington Supreme Court to answer a set of questions that could cause a reversal of a summary judgment decision in favor of the university.

Ninth Circuit Court of Appeals Circuit Judges Danny J. Boggs, Andrew D. Hurwitz, and Jennifer Sung issued an Order Certifying Questions to the Washington Supreme Court on June 23. The questions are:

1) Does Washington law recognize a special relationship between a university and its students giving rise to a duty to use reasonable care to protect students from foreseeable injury at the hands of other students?

2) If the answer to question 1 is yes, what is the measure and scope of that duty?

Plaintiff Madeline Barlow sued Washington State University (WSU) after she was raped by a senior named Thomas Culhane. If this fact doesn’t send chills down the spine of all college freshman and their parents, the behavior of WSU officials adds to the tragedy.

Two students at a different WSU campus, a satellite in Vancouver, had made complaints to the University’s Office of Equal Opportunity (OEO) about Culhane’s unwanted sexual advances, physical touching, and sexual harassment of two different female students The OEO knew also he sent pictures of his genitals and sent other “sexual innuendos” online.

The first harassed student elected to not file a police report. Instead, she reported him to a university official who spoke with Culhane and told him that sanctions would occur if his behavior continued. The second student was touched by him during a car ride on a University-sponsored trip. She did file a police report as well as a complaint with the University. Her complaints opened a formal Title IX investigation. Two months later, Culhane applied to transfer to Pullman. He was accepted and “it was the University’s policy to grant transfers as a matter of course, even for students under investigation,” unless the student was expelled.

The Vancouver official told Culhane that transferring would not “fix the problem,” but a list of sanctions recommended by another WSU official did not follow Culhane to the Pullman campus. Just as school started both he and Barlow attended a party at his new apartment. She got drunk and he repeatedly raped her. She filed a Title IX complaint.

The American Association of University Women explains that Title IX of the Education Amendments of 1972 prohibits sex discrimination in education. It states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” It clearly advises that sexual harassment and sexual violence are forms of sex discrimination under Title IX.

After his assault on Barlow, Culhane was expelled and later convicted of second-degree rape. Barlow then sued WSU for negligence and violating Title IX due to its “mishandled supervising and sanctioning” of Culhane which put her at increased risk.

The University moved for summary judgment, and the district court granted it for all of Barlow’s claims. It ruled that the “University did not owe Barlow a duty of care to protect her from harm by Culhane.”

The Ninth Circuit began its non-authored memo by explaining that the question before the court was “whether, under Washington law, a university owes students a duty to use reasonable care to protect them from foreseeable injury by other students.” It noted that this question is unanswered under Washington State law and decided that local law must be “ascertained” in order to dispose of the proceeding.

It also noted that although the Washington Supreme Court has not ruled on the issue, the Washington Court of Appeals in 1995 held that “a university is not in a special relationship with its students and thus has no duty to protect students against third party harm solely by virtue of the students’ enrollment status.”

Apparently this decision is based on the facts that college attendance is not mandatory and college students are adults, not in the custody of their parents. The Ninth Circuit said that Johnson v. State, the 30-year-old precedent cited by the Court of Appeals “does not resolve the issues in this case.” They note that the law on special relationships has shifted since then and that other states, such as California, have adopted a more inclusive approach because college students are still immature and need protection.

In addition, the cited precedent does not address cases where both the victim and the perpetrator are students, and the dual relationship could give rise to an increased duty of care. Finally, the precedent did not speak to “the relevance of the University’s knowledge of Culhane’s prior misconduct and the risk of his future conduct.”

The Ninth Circuit then called for certification of the two questions to resolve the unsettled law. They also said that the resolution would have “significant policy implications” as well as an impact on universities and students in the state.

As Barlow’s case travels back to her home state, students wishing to enroll in Washington universities might want to follow the upcoming ruling by the Washington State Supreme Court before they pack their suitcases.