University sexual misconduct policies can reach a broad range of actions. A female student recently sued her former university after it charged her with violations of the Code of Conduct for what occurred after she was allegedly drugged and sexually assaulted.
According to the court’s order, which recited the facts in the light most favorable to the plaintiff, the campus police at an Indiana university received a report of a partially nude woman. An officer found the plaintiff, disoriented and wearing just a jacket. The officer contacted EMS and the plaintiff was taken to the hospital. EMS and the hospital staff thought she had been given a “date rape drug” and sexually assaulted.
The university charged the plaintiff with three violations of its Code of Conduct, alleging she had engaged in: lewd, indecent or obscene conduct or conduct that violated the Sexual Misconduct Policy; actions that endangered herself or others or the academic process; and unauthorized possession and use of alcohol.
According to the court’s opinion, learning of the charged violation “significantly increased [her] trauma and stress” as the plaintiff was recovering from the assault.
The plaintiff’s attorney informed the University that the plaintiff was a victim of sexual assault and explained that participating in the Judicial Conference would be traumatizing. Her attorney asked to delay the Judicial Conference so they could provide verification from the hospital that the plaintiff had been drugged without her consent and assaulted. Although the attorney had contacted individuals at the university with the authority to take corrective measures, they did not respond.
The plaintiff received notice of a Judicial Conference related to the alleged violations. The Assistant Director of the Office of Student Conduct (“Assistant Director”) and the Sexual Misconduct Investigator (“Investigator”) denied the plaintiff and her attorney access to the documents mentioned in the letter. When they did give access, the university would not allow the plaintiff or her attorney to copy or photograph the documents and threatened criminal charges if they did so.
At the Judicial Conference, the plaintiff disclosed what happened when she was assaulted. She also stated that she had a medical-forensic examination to collect evidence of the sexual assault. She asked for dismissal of the charges because she had not violated the Code of Conduct.
The Assistant Director and Investigator denied her request, but offered to pardon her through the university’s amnesty process instead. They claimed her drug test had been negative, so she had not been given a date rape drug. The hospital had told the plaintiff it did not perform a test for a “date rape drug” because the half-life of such drugs was so short it was hospital policy not to test for them.
The amnesty offer was conditioned on the plaintiff’s participation in an alcohol treatment program. According to the opinion, the university police department had access to the plaintiff’s blood alcohol content by coercing the hospital to violate HIPAA. The opinion stated the university should not have had access to the protected health information and the hospital agreed it had violated the plaintiff’s HIPAA rights. The Assistant Director and Investigator refused to dismiss the charges unless she allowed the university police department to investigate the sexual assault, instead of an outside police agency. The plaintiff alleged that the way she was treated showed its discriminatory beliefs that she was a criminal, had engaged in wrongdoing, or was somewhat responsible for what happened based on “her color, race, and/or gender. . .” The court noted that both the Assistant Director and the Investigator had the authority to take corrective measure, but chose not to do so.
The charges against the plaintiff were ultimately dismissed.
The plaintiff filed suit against the university and a number of individuals in their official capacity for violations of Title IX, Title VI, and Sections 1981 and 1983, as well as intentional infliction of emotional distress. The case was removed to federal court, and the defendants moved to dismiss the case for failure to state a claim.
Title IX
A university may be held liable for the actions of its employees under Title IX if their deliberate indifference subjects students to harassment. To succeed on a deliberate indifference claim, the plaintiff must show that a university official with authority to take corrective action to stop the discrimination must have actual knowledge of discrimination in the university’s programs and that the official’s response constituted deliberate indifference to discrimination showing an official decision by the university not to remedy the Title IX violation.
The court concluded the plaintiff’s amended complaint failed to state what educational program or benefit the plaintiff was deprived of. The plaintiff had not alleged any change in her academic status resulting from the university’s actions, and in fact had referenced a “stellar academic record” and “matriculat[ing] to law school.”
The plaintiff argued the university’s actions “left a permanent mark on her record,” which would have to be provided with her bar application. The court pointed out, however, that she raised this argument in her response, but had not alleged it in the Amended Complaint. The court concluded the plaintiff’s amended complaint failed to support a reasonable inference the university excluded her from an educational program and dismissed the Title IX complaint.
The court also dismissed the plaintiff’s Title VI claim alleging discrimination on the ground of race, color, or national origin, for the same reason.
Sections 1981 and 1983
The plaintiff sought injunctive relief ordering the defendants to institute and carry out equal protection and eradicate the effects of unlawful practices, ordering the university to provide the state police or other appropriate law enforcement the evidence it collected relating to the plaintiff’s sexual assault, and ordering the university to “expunge” certain evidence and preserve evidence relating to the plaintiff’s sexual assault. The defendants argued the plaintiff lacked standing, she did not have a constitutional right to part of her request, and she had not alleged a continuing injury that could be redressed by the university’s expunging or preserving the evidence.
The court concluded the plaintiff did not have standing for her first request because she was not a current student nor had she alleged she intended to re-enroll. She therefore did not face a real and immediate threat of injury if the university failed to provide equal protection to students.
The court also denied her other two requests, noting that she had not alleged how the university’s failure to investigate the alleged sexual assault or possession of the evidence violated federal law. She also had not explained how the university’s possession of the records and evidence related to an ongoing violation of her rights or how injunctive relief would remedy that. The court therefore dismissed the Section 1981 and 1983 claims.
Intentional Infliction of Emotional Distress
The court then focused on the plaintiff’s IIED claim. A plaintiff alleging IIED must plead the defendant’s “extreme and outrageous conduct” caused the plaintiff severe emotional distress, intentionally or recklessly. Rihm v. Hancock Cnty. Libr.
The defendants argued the plaintiff had not alleged a prima facie case for IIED because she had not alleged they intended to cause her emotional distress. The defendants also argued she had not alleged conduct that rose to the level of extreme and outrageous conducts beyond decency.
Considering previous cases, the court concluded the defendants’ failure to investigate the plaintiff’s sexual assault did not rise to the level of extreme or outrageous that would support an IIED claim. The court concluded that the plaintiff had made only a “threadbare recital of the elements of an IIED claim. . .” The plaintiff’s allegations discussed the affect of the defendants’ actions on the plaintiff, but did not state any intent or recklessness to cause emotional distress. The court noted that the plaintiff had to alleged that the conduct intentionally or recklessly caused harm, not just that the conduct was intentional or reckless. The court also dismissed the plaintiff’s IIED claim.
Dismissal without Prejudice
Although the defendants argued for dismissal with prejudice, the court determined the plaintiff should have an opportunity to amend her complaint again after considering the arguments made by the defendants in the current motion to dismiss. The court dismissed the Title IX and Title VI claims against the individual defendants with prejudice, but dismissed the other claims without prejudice, giving the plaintiff 14 days to amend the complaint.
Contact a School Discipline Attorney
This case shows how even an apparent victim of sexual assault can face disciplinary action. A student accused of any type of sexual misconduct should consult a knowledgeable Washington Title IX defense attorney right away to protect their rights during the investigation and any resulting disciplinary proceeding. Call Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation.