On April 1, 2019, the U.S. Court of Appeals for the Third Circuit, in a “not precedential” decision written by Judge Julio Fuentes, affirmed in part and reversed in part a decision of the New Jersey District Court which denied a motion to dismiss a civil complaint alleging sexual assault and rape. Jane Jones v. Pi Kappa Alpha International Fraternity, Inc., et al., No. 17-3272. The principal basis for the reversal by the Third Circuit was its conclusion that Ramapo College of New Jersey and various of its officials, sued in their official capacities, were entitled to sovereign immunity. In so holding, the court placed significant reliance upon its earlier decision in Maliandi v. Montclair State University, 845 F.3d 77 (3d Cir. 2016).

As to plaintiff’s claim for damages against the school officials in their individual capacities, the Third Circuit agreed that under certain conditions, the individuals were entitled to qualified immunity. However, with respect to so much of the claim that individual defendants were liable under the doctrine of “deliberate indifference,” the court noted that the individual defendants-appellants had not raised the insufficiency of this claim in statement of issues on appeal or in their opening brief. The court then held that if an appellant failed to raise an issue in the initial brief, the issue was deemed waived and did not need to be addressed on appeal.