ASU's Reponse to Fraternity Rape Could Be Deliberate Indifference

This week, a federal district court in Arizona held that Arizona State University had to defend a lawsuit filed by a former student who was drugged and raped at a party at the Sigma Chi fraternity in 2008. The plaintiff alleges that the university's response to her report of the assault violates Title IX. In denying the university's motion to dismiss, the judge determined that the plaintiff's complaint properly alleged facts that could, if proven, provide the basis for a finding of liability against ASU. In particular, the complaint alleged an incident of harassment that was sufficiently severe, in that the plaintiff was drugged at a party and anally raped while she was unconscious. She suffered post-traumatic stress ultimately withdrew from ASU.

Also, the complaint sufficiently alleged that the university responded with deliberate indifference to harassment about which it had actual notice. This allegation actually takes two forms. First, the plaintiff alleged that an appropriate university official, the Director of Student Life - Judicial Affairs, was aware of prior incidents of sexual harassment involving the Sigma Chi fraternity and failed to take any action that could have protected the plaintiff or any other women from the risk that Sigma Chi would be the grounds for future similar incidents. Secondly, she alleged that university officials responded inadequately to actual knowledge of her own assault. When ASU campus police arrived at the emergency room where the plaintiff was being treated, they failed to give the necessary authorization for medical personnel to conduct a rape kit or authorize a nurse exam. Neither the campus police nor the university's judicial affairs investigated the incident other than to take plaintiff's statement. No one from Sigma Chi was even interviewed about the event.

This is an important decision because it allows the plaintiff to continue to press her claims not just that the university botched its response to her case, which seems pretty egregious to me, but to generally contest and shed light upon the university's culture of looking the other way about the bad behavior of a notoriously problematic fraternity. Known as a "party house," Sigma Chi had just the day before plaintiff's assault been put on probation for hazing and alcohol violations. Nor was this Sigma Chi's first offense -- the plaintiff alleged a five-year history of violations including aggression, intimidation, humiliation, and hostility toward women. If these claims prove true, mere probation seems like a mere slap on the wrist unlikely to offer meaningful protection to other students, satisfying the "deliberate indifference" requirement. That aspect of this case therefore has the potential to send the message to ASU and other universities that it doesn't pay to enable fraternities to provide the context for sexual harassment and assault.

One other observation: this is not the first time we've blogged about rape at ASU. An earlier case involving rape committed by a football player produced a settlement in 2009 that requires all the Arizona state universities to institute programs addressing issues of women's safety on campus. This obligation does not affect the Sigma Chi assault at issue in this case, which occurred prior to that settlement. But it does raise questions about the culture of sexual violence generally at ASU, and how that problem is being addressed both in and outside of the Greek system.

Decision is: Babler v. Arizona Board of Regents, Case 2:10-cv-01459-RRB (ordering denying defendant's motion to dismiss) (D. Ariz. Feb. 15, 2010) (no westlaw cite yet available)

Sexual Harassment Litigation Roundup

Here is a roundup of news related to Title IX cases involving sexual harassment and assault:

• A former student at Arizona State has sued the Board of Regents claiming that the university failed to adequately protect her from a rape that occurred at a fraternity house.

• A district court judge set aside a jury verdict in favor of a Michigan student, who had sued the school district over its response to other students' perpetration sexual and anti-gay harassment. The case had been reinstated by the 6th Circuit after the district court dismissed on summary judgment. But considering new evidence presented at the jury trial, the district court judge held that the harassment was not severe and pervasive, but typical of middle school students, and that the school responded adequately by investigating each incident of harassment and punishing the perpetrators. See Patterson v. Hudson Area Schools, 2010 WL 2670167 (E.D. Mich. July 1, 2010).
  

• A district court in Indiana dismissed a plaintiff's case stemming from peer harassment because there was no support for plaintiff's claim the abuse was motivated by his gender nonconformity, only his perceived sexual orientation (which is not covered by Title IX). Turpin v. Good, 2010 WL 2560421 (S.D. Ind., June 24, 2010).
  

• A district court in Illinois dismissed a case in which a student challenged the university's response to his complaints about a professor's weird and inappropriate statements about the plaintiff's hair (the professor said that his hair would be sexy on a lady, and that if the plaintiff was a lady, he would want to date him). The court held that this did not constitute harassment based on the plaintiff's sex. The court also considered the fact that the professor harassed male and female students equally to cut against the plaintiff's argument that the harassment was motivated by his sex. Milligan v. Bd. of Trustees, 2010 WL 2649917 (S.D. Ill. June 30, 2010).
  

• A district court in Wisconsin denied a university's motion for summary judgment in a case arising out of a resident advisor's alleged assault on the plaintiff, a student, in her dorm room at the University of Wisconsin-Parkside. The court agreed that the plaintiff's complaint contained sufficient allegations -- including that campus officials waited three days before calling the police -- that could allow a jury to find the university liability under Title IX. Albiez v. Kaminski, 2010 WL 2465502 (E.D. Wisc. June 14, 2010).
  

Breaking news: ASU settles

A case brought by a (now former) female student at ASU who was raped in 2004 has settled for $850,000--the second largest settlement in a sexual harassment case to date. The settlement also requires the Board of Regents to start a program at all the Arizona state universities to address issues of women's safety. The regents, of course, admit no liability.
This case kind of flew under the radar--at least compared to other cases like the Anson Dorrance/USC case and, of course, University of Colorado. A connection between the latter and the ASU case was lawyer Baine Kerr who represented the still unnamed victim in her civil suit against ASU. They argued that the university knew the football player who raped the victim was a threat, specifically a sexual threat to women and yet they let him remain in the football program and the dormitories after previous behaviorial issues.
Kerr and his client are stressing the importance of the forthcoming program. It appears to have played a large part in settlement talks.

Arizona State May Be Liable for Rape by Football Player

In April we posted about a pending Title IX case against Arizona State stemming from a rape committed by a football player, Darnel Henderson, against another student. The plaintiff, identified only as J.K., sued ASU, alleging that in light of university officials' actual knowledge of prior instances of sexual harassment committed by Henderson, they acted unlawfully with deliberate indifference in failing to supervise him or take other corrective action that would have prevented his act of rape against her.

Specifically, Henderson had been kicked out the Summer Bridge program (a transition program for incoming freshmen) for committing various acts of sexual harassment and other behavior problems. His behavior was so threatening to female residence hall staff members in Henderson's dorm that one actually resigned her position and another moved out on his account. Even though Henderson was expelled from the summer program, he was allowed to return to ASU as a student that fall and to join the ASU football team thanks to the intervention of the football coach, Dirk Koetter. Moreover, due to Koetter's policy that players live in on-campus housing, Henderson was assigned to the same dorm from which he had been expelled earier that summer. Notwithstanding subsequent instances of of behavior problems, Henderson receievd "no special supervision, monitoring, mentoring, counseling or guidance; a zero-tolerance plan [that had been promised by Koetter] was never implemented." In the spring of his freshman year, Henderson raped plaintiff J.K., who lived in the same dorm. Though criminal charges were not brought, ASU's internal investigation concluded that it was "more likely than not" that Henderson assaulted J.K.

In considering ASU's motion for summary judgment of J.K.'s claim that it violated Title IX, the federal district court rejected ASU's argument that it responded reasonably to Henderson's disruptive, sexually harassing behavior in the summer program. Even though Henderson was kicked out of the summer program, his expulsion was not reported to the Judicial Affairs Board as required, his return to ASU and to the football team was facilitated by the football coach, he was allowed to live in the dorms without supervision, and he was not disciplined by the football coach with a "three strikes" policy, as the coach had promised in securing Henderson's reentry to ASU. This response, said the court, is not clearly unreasonable as a matter of law, and thus J.K.'s case should proceed to trial.

The court also denied the football coach Dirk Koetter's motion for summary judgment, leaving open the possibility that a jury could find him liable to J.K. for his failure to discipline a player with known behavior problems as he had promised.

Decision is: J.K. v. Arizona Board of Regents, 2008 WL 4446712 (D. Ariz. Sept. 30, 2008).

What people are saying: Arizona State

Even as classes wind down and students head back from whence they came [unless you're on the softball team in which case you're headed back to campus to host a Super Regional (congratulations!)], the discussion at Arizona State over the recent athletic department cuts heats up.

The inevitable back and forth has begun. Unlike other institutions (ahem, JMU), ASU is not blaming Title IX for the cuts. As I said a week ago, school administrators have cited budget reasons for the cuts. And in keeping with federal law, ASU cut sports in a way that did not further disadvantage women. And some people see this (though this article cites equity as distribution of scholarships only). But others are talking vaguely about "interpretation." An interpretation that at least one guy thinks has become a "de facto quota system." Well no. ASU does is not in compliance with prong 1--which is what I assume he is referring to with the quota system comment. That means when a school chooses to comply with prong 2 or 3 (we're not sure which ASU cites) it cannot cut a viable women's team because it would result in (prong 2) not expanding the women's program or (prong 3) not meeting the interests and abilities of the underrepresented sex.
There is also evident a certain amount of fear about the future as the percentage of women attending college continues to grow. The "predicament of athletic directors...becomes ever more impossible" allegedly.
This sentiment and also this short piece, that initially seems to express support, indicates some problems in people's thinking. Erin's post yesterday about accounting practices addresses one of the issues briefly brought up: cost of adding women's teams. Athletic director Mark Brand noted to a reporter that the addition of women's soccer in 1996 and women's water polo in 2002 brought the department into compliance but "hurt the department economically" according to the article. Anyone want to guess the costs associated with recruiting and keeping an ASU football player versus a female soccer player? Or the costs of their respective facilities?
The commercial mindset (so intertwined with the patriarchal one) results in the idea that it's a "predicament" when women want to actually get their share of the resources of (some of which they pay for through tuition and fees) and benefits from an educational institution.
So when a male wrestler asks if not cutting a women's team is "a Title IX thing"? You can say, yes--it's also known as fairness. Isn't that one of things athletes are allegedly learning through sports--the concept of fair play?

Arizona State budget issues lead to cuts

In an effort to fully fund and support its student-athletes and sports teams, ASU has decided to cut three sports: men's tennis, wrestling, and swimming. ASU had been carrying 22 sports--quite a few for a big-time DI program. Now they are down to 20 (they are keeping men's diving which had been combined with the swim team). The decision seemed swift and firm--probably a good thing in stemming backlash--though signs indicate that an uproar is inevitable. The VP of Athletics decided that cutting teams was preferable to taking away bits and pieces from all teams. No one has ruled out the possibility of the cut teams raising enough money for endowments but in an effort to be fair to student-athletes and give them an opportunity to transfer, the department opted to announce the cuts before fundraising began.
No one at ASU has mentioned Title IX. And rightly so. But members of the local wrestling community have already spoken out and blamed Title IX.
Said one wrestling booster who was particularly irate because he had hoped that ASU would never use Title IX as an excuse to cut wrestling (they haven't, by the way), "all these schools have a book on how to drop sports."
I wonder if that book includes instructions on how to deal with all the anti-Title IX backlash.

ASU case under radar

Not too long ago we came across this post at the Huffington Post about a Title IX case at Arizona State University that we had never heard of despite its not-so-pleasant similarities to the case at University of Colorado. Ariela Migdal, in a piece about sexual assault and the campus climate, briefly mentions a case brought by a now former ASU student against the university but provides no details. The link to the ACLU, which has filed an amicus brief in the case, says more.
The woman was raped in her dorm room by a football player that the university had expelled because he was a "serial sexual harasser." But they re-admitted him and let him back in the dorms shortly after with no system in place to monitor his actions.
And that is all we have been able to find out about this case which began in 2003.
How ASU has saved itself from all the negative publicity other schools in similar situations have been subjected (or subjected themselves!) to is a mystery.
If we find out more about this one, we'll be sure to report on it.