In an unusual decision, the U.S. Court of Appeals for the Ninth Circuit issued a rule seeking title IX sexual harassment filed by a former student with the University of Washington, while Washington asked the Supreme Court to settle two questions about a related negligence. Claim
The lawsuit, Barlow v. Washington State, centers on Madeleine Barlow, who was a freshman at Pullman’s Washington University in 2017 when she alleged that senior Thomas Culhen raped her at a campus party. He filed a Title IX complaint against Kulhan, who had previously faced a ban for having unwanted sex. The university investigated and expelled Kulhan. A Washington state jury later found her guilty of second-degree rape.
Barlow then sued the university for “general-law negligence and violation of Title IX,” according to the verdict, alleging that the university failed to properly supervise and approve of Kulhane when two other women had previously reported him for sexual misconduct. This puts him at increased risk, he complained.
The university moved for a brief verdict on Barlow’s claim, which the district court granted. In its claim of negligence, it concludes that the university “did not hold Barlow responsible for protecting Kulhan from harm.”
Barlow appealed the lower court’s decision. The appellate court upheld the lower court’s summary judgment on the Title IX claim. But on the question of negligence, it determined that it needed more information to make the decision – for example, “Under Washington law, a university student has a responsibility to take reasonable care to protect potential students from potential harm by other students,” the decision reads.
The Court of Appeals noted that the Washington Supreme Court did not address that point and asked it to substantiate two questions:
First, “Does Washington law recognize a special relationship between a university and its students that gives rise to a duty to use reasonable care to protect students from unintentional injuries to other students?” And if so, what is the measure and scope of that responsibility? “
The appellate court has adjourned the proceedings of the case till the State Supreme Court responds.