A federal judge from the Northern District of Oklahoma has dismissed what was left of a claim brought by the mother of a Tulsa University (TU) student, who alleged that the university did not do enough to prevent her daughter from being raped by one of the school’s football players.
Last summer, the court dismissed the plaintiff’s negligence per se claim, which was based upon TU’s alleged violation of Title IX and its implementing regulations.
The incident in question occurred on January 27, 2014. Plaintiff Abigail Ross reported the alleged rape of her daughter to TU officials on February 11, 2014. TU scheduled a disciplinary hearing for the alleged assailant, Patrick Swilling, Jr., based on the plaintiff’s complaint. After the plaintiff’s attorney allegedly advised TU that Title IX required it to conduct an investigation prior to any disciplinary hearing, TU vacated the hearing date and conducted a brief investigation. On March 24, 2014, TU Dean Yolanda Taylor conducted a hearing, during which the plaintiff and Swilling testified. Taylor found in favor of Swilling and ruled that he would not suffer any discipline or other consequences. Taylor did not consider reports of prior assaults by Swilling at his previous school, the College of Southern Idaho, in reaching her decision, according to the plaintiff. She further alleged that TU knew of “at least one, and as many as three prior allegations of sexual assault and misconduct perpetrated by Swilling and permitted Swilling to continue to attend TU.”
After the hearing, the plaintiff claimed that she became terrified of attending TU and withdrew from classes. In June 2014, TU announced that Swilling would continue to attend TU and would play for the football and basketball teams.
Ross made the following claims against TU:
(1) violation of Title IX, 20 U.S.C. § 1681(a), based upon TU’s deliberate indifference to prior sexual violence by Swilling and creation of a substantial risk that Swilling would sexually harass or assault other female students at TU;
(2) violation of Title IX, 20 U.S.C. § 1681(a), based upon TU’s deliberate indifference to the plaintiff’s report of rape, including conducting a “gender biased investigation of the plaintiff’s report of sexual harassment/rape by choosing to investigate the plaintiff’s consensual sexual history and refusing to investigate three prior reports of rape alleged to have been committed by Swilling” and failing to consider prior allegations during the disciplinary hearing;
(3) negligence per se, based upon TU’s violation of Title IX and its implementing regulations;
(4) negligence, based upon TU’s breach of a duty to protect the plaintiff;
(5) negligent supervision, based upon its failure to implement measures to adequately supervise Swilling; and
(6) intentional infliction of emotional distress.
The court first examined the Title IX claims.
“Ross claims that TU exhibited deliberate indifference to the known risks posed by Swilling prior to her assault and then exhibited deliberate indifference to her own report of rape,” wrote the court. “Both are actionable theories of Title IX liability.” Escue v. N. Okla. Coll., 450 F.3d 1146 (10th Cir. 2006)
TU argued that Ross’s “prior accusations” theory fails because: “(1) the 2012 Report was not made to an appropriate person; (2) the 2012 Report was not sufficient to provide notice that Swilling posed a substantial risk; and (3) its conduct in response to the 2012 Report did not amount to deliberate indifference.”
The court noted that the 2012 Report was presented “to TU’s version of law enforcement, which works directly with Taylor’s office to investigate and combat campus violence and properly report instances of campus violence to the federal government. TU has created a system whereby (it) plays an integral role in receiving reporting and instituting corrective Title IX processes as they relate to sexual violence, even if (it) does not make the final disciplinary decisions against a student.” Thus, the court concluded that a jury could find that the report was made to an “appropriate person.”
The court reached a different conclusion on the question of whether the university was put on notice that Swilling posed a “substantial risk.”
The court noted that the previous victim “did not provide facts or details and was unwilling to accuse Swilling of any specific misconduct. While one report of sexual assault could in some instances be sufficient to put a school on notice that a student poses a substantial risk, this was not such a report. (It) was not sufficient to place TU on actual notice that Swilling posed a “substantial risk” of sexually assaulting other TU students.”
Lastly, on the question of “deliberate indifference,” the court sided with TU for four reasons:
“(1) TU conducted at least some investigation of the prior accusations;
(2) there is insufficient evidence of a “pre-decided” outcome;
(3) TU’s decision to exclude prior accusations from the hearing, while perhaps misguided, does not evidence deliberate indifference; and
(4) other alleged problems in the process are too minor to amount to deliberate indifference.”
Further, the court had no appetite for holding a university, such as TU, to a high standard with regard to its “Sexual Violence Policy,” citing the “civil liability standard outlined by the Supreme Court.”
That standard “does not require universities to behave perfectly or even very well,” it wrote. “It requires universities to respond to reports of peer-on-peer sexual violence in a manner that is not clearly unreasonable or deliberately indifferent. A possible misapplication of a school’s evidentiary policy, particularly where the school sought and received advice of outside counsel, is not ‘clearly unreasonable’ as a matter of law.”
Further, “although intentionally manipulated processes could create Title IX liability in some case, Ross does not have sufficient evidence of any purposeful manipulation of the hearing in favor of Swilling or other ‘clearly unreasonable’ conduct by TU.”
Abigail Ross v. University of Tulsa; N.D. Ok.; Case No. 14-CV-484-TCK-PJC, 2016 U.S. Dist. LEXIS 50804; 4/15/16
Attorneys of Record: (for plaintiff) John Spencer Bryan, LEAD ATTORNEY, Bryan & Terrill Law, PLLC, TULSA, OK; John Clune, LEAD ATTORNEY, Hutchinson Black and Cook LLC, BOULDER, CO; Steven James Terrill, LEAD ATTORNEY, Bryan & Terrill Law, PLLC, TULSA, OK. (for defendant) Amy Nicole Bennett, John David Lackey, John Richard Paul, LEAD ATTORNEYS, Paul & Lackey PC, TULSA, OK; J Patrick Cremin, Johnathan Louis Rogers, LEAD ATTORNEYS, Hall Estill Hardwick Gable Golden & Nelson (Tulsa), TULSA, OK.
