Discovery Rule Applies to Title IX Claims
The appellate court reversed and held that that the “discovery rule” applies in Title IX cases. The discovery rule provides that the statute of limitations clock only starts running when a plaintiff knows or should have known certain facts related to their injury. In so holding, the court explained that the discovery rule’s purpose is “to protect plaintiffs who, through no fault of their own, lacked the information to bring a claim.” Applying the discovery rule ensures that the plaintiffs whose injuries manifested later, or who could not discover facts because they were difficult to obtain, would still have a remedy, the court explained.
Likewise, the court reasoned that applying the discovery rule in the Title IX context is consistent with the statute’s remedial purpose to provide “relief broadly to those who face discrimination on the basis of sex in the American education system.” Further, the injury occurrence rule favored by the dissent, where a claim accrues at the moment of injury, would be at odds with this purpose.
Cover-Up Delays Claim Accrual by 20 Years
The appellate court also held that the plaintiffs had plausibly alleged that their claims did not accrue until the abuse allegations were publicized in 2018. Critical to the court’s analysis was when plaintiffs knew or had reason to know that Ohio State was “deliberately indifferent to sexual harassment.”
The plaintiffs alleged that Ohio State concealed the doctor’s abuse and Ohio State’s knowledge of it by destroying records, giving the doctor false performance reviews, and hiding complaints. While a few plaintiffs acknowledged that some Ohio State employees and students “joked” about the doctor’s examinations of male athletes, others plausibly alleged that they could not have reasonably discovered Ohio State’s concealment until the abuse allegations were made public in 2018.
The court also held that some plaintiffs likely did not know they were abused. The court explained that the plaintiffs plausibly alleged that experiencing distress and discomfort during a so-called “medical examination” did not mean that the students knew that they were abused. The court was persuaded by allegations that the doctor gave pretextual explanations to victims for his abuse, such as examining for sexually transmitted diseases, as well as by research showing that many victims do not realize they have been sexually abused at the time of an incident.
Decision Consistent with Statutory Purpose
Litigation Section leaders generally agree with the court’s analysis. “Applying the discovery rule to Title IX claims does not eliminate or undermine a viable statute of limitations defense,” states Allegra Lawrence-Hardy, Atlanta, GA, cochair of the Section’s Minority Trial Lawyer Committee. “It is consistent with the remedial intent of Title IX and our evolving understanding of the consequences of abuse, particularly abuse of minors,” she elaborates.
The court’s holding is also in line with other circuits addressing this issue. “The majority got this right,” opines Steven Finell, Santa Rosa, CA, member of the Section’s Appellate Practice Committee. “The court recognized that the circuits that had addressed this issue applied the discovery rule and that adopting the ‘injury occurrence’ rule would unnecessarily create a circuit split,” he added.
But other Section leaders have doubts about the plaintiffs’ claimed inability to discover their injury. “People in the various athletic departments were not only aware of some sort of injury at the time that it happened but were joking about the conduct of the doctor,” observes Jennifer L. Seme, Philadelphia, PA, cochair of the Section’s Trial Practice Committee. “This shows that there was knowledge much earlier on of the conduct. If the plaintiffs had exercised due diligence and spoke to an attorney at that time, who knows what would have happened?” she surmises.