When does a non-student have a valid claim against an educational institution under Title IX? A recent case from the Sixth Circuit Court of Appeals, Arocho v. Ohio University, reiterates the factors that courts may consider. These issues are not settled law across the country, so educational institutions should work with legal counsel closely when a complaint is received from a non-student. The Arocho case is a good reminder that a non-student’s mere presence on campus may not be sufficient to attach Title IX liability to the educational institution, even for a school-sponsored event or activity.

Arocho involved a high school student who was sexually assaulted by an Ohio University employee while participating in a career day at the University through her high school. The main issue before the Sixth Circuit was whether the non-student sufficiently alleged discrimination under an “education program or activity” of Ohio University, as necessary to have a valid Title IX claim in court.

It has long been clear that a complainant need not be an enrolled student to have a private right of action against an educational institution for alleged deliberate indifference. Arocho is a good reminder that the applicability of Title IX to a non-student is a very case-specific determination that must consider all factors of the relationship between the non-student and the educational institution.

Here are some key takeaways:

• If an educational institution makes services available to the public, such as university libraries, computer labs, vocational resources, campus tours, public lectures, sporting events, and other activities, a non-student who reports sexual assault to the institution may have a valid claim that they were denied benefits of an “education program or activity” if the non-student’s complaint alleges that they participated or would have participated in any of those programs or activities.
• A non-student also may be found to be denied the benefits of “an education program or activity” if the non-student lives in student housing, pays the educational institution for the housing, a dining plan, and student fees, has access to the educational institution’s resources, and intends to enroll in the institution or otherwise make use of its programs and activities for students or non-students.
• Merely being sexually assaulted on campus, even by an employee using university resources, may not be enough to allege discrimination under an “education program or activity.” In Arocho, the non-student alleged that she attended a career day at Ohio University and was sexually assaulted by an employee during work hours at work-related locations. Because the career day was not alleged to have any “educational requirements,” the court found the relationship with Ohio University too attenuated for Title IX liability to attach.

As noted previously, this case arose out of one jurisdiction. A court in another jurisdiction could apply the law differently to similar facts. Lawsuits also are only one way that a party can challenge a school’s response to a report of sexual harassment. Other considerations are equally important, including how OCR would respond and how a response might look to the public. Educational institutions should seek the advice of legal counsel before responding to a report of sexual harassment by a non-student to consider all of the relevant factors before making a decision.