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In an unusual decision, the U.S. Court of Appeals for the Ninth Circuit issued a ruling siding with Washington State University on a Title IX sexual assault claim filed by a former student, while asking the Washington Supreme Court to settle two questions regarding a related negligence claim.
The case, Barlow v. State of Washington, centers on Madeleine Barlow, who was a freshman at Washington State University in Pullman in 2017 when she said senior Thomas Culhane raped her at an off-campus party. She filed a Title IX complaint against Culhane, who had faced prior sanctions for unwanted sexual contact. The university investigated and expelled Culhane. A Washington State jury later convicted him of second-degree rape.
Barlow then sued the university for “common-law negligence and a violation of Title IX,” according to the ruling, alleging that the university failed to properly supervise and sanction Culhane after two other women previously reported him for sexual misconduct. That put her at an increased risk, she alleged.
The university moved for summary judgment on Barlow’s claims, which the district court granted. On the negligence claim, it concluded that the university “did not owe Barlow a duty to protect from harm by Culhane.”
Barlow appealed the lower court’s ruling. The appeals court affirmed the lower court’s grant of summary judgment on the Title IX claim. But on the question of negligence, it determined that it needed more information to decide—namely, “whether, under Washington law, a university owes students a duty to use reasonable care to protect them from foreseeable injury by other students,” the decision reads.
The appeals court noted that the Washington Supreme Court had not addressed that point, and asked it to certify two questions:
First, “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?” And if so, “what is the measure and scope of that duty?”
The appeals court stayed further proceedings on the case until the state Supreme Court responds.
(This story has been updated with the correct name of the university; it's Washington State University, not the University of Washington.)
