By Daniel Werly, Foley & Lardner LLP
The United States District Court for the Northern District of Florida (Case No. 4:15cv235-MW/CAS) has denied Florida State University Board of Trustees’ (“FSU”) Motion to Dismiss Plaintiff Erica Kinsman’s Title IX lawsuit against the University. Kinsman alleges (both in this lawsuit and in a separate lawsuit against current Tampa Bay Buccaneer and former FSU quarterback Jameis Winston (M.D. Fl. No. 6:15-cv-696-ACC-GJK) that Winston raped her at an off-campus apartment in Tallahassee, Florida. She claims that FSU failed to investigate the alleged sexual abuse properly and failed to respond to the reported assault thus denying her of educational benefits.
Despite FSU’s pleas to the contrary, the court found that Kinsman sufficiently alleged facts, assumed to be true, in order to maintain a claim under Title IX (28 U.S.C. §§ 1681-88). In order to plead a violation Title IX for student-on-student harassment, Kinsman is required to show that: (1) FSU is the recipient of federal funds (this was not disputed); (2) an “appropriate person” must have actual knowledge of the harassment; (3) FSU acted with “deliberate indifference of known acts of harassment…”; and, (4) the harassment was severe, pervasive, and objectively offensive.
First, FSU argued that its head football coach Jimbo Fisher and associate athletic director were not “appropriate persons” under Title IX. The court dismissed this argument, finding that while these individuals were not per se “appropriate persons”, it is plausible the facts will show that these individuals had enough authority over Winston to take corrective action. The court similarly found that Kinsman adequately plead facts to support that Jimbo Fisher and/or the associate athletic director had actual knowledge of her identity and that she was a FSU student and the identity of the accuser.
Next, FSU argued that it was not deliberately indifferent and unreasonable to the alleged harassment because it immediately provided Kinsman with a victim advocate who explained how to change a class shared with Winston and informed Kinsman of the student disciplinary process. The court rejected this argument because the underlying facts did not appear in the complaint, which stated that no one at FSU offered any safety precautions. Interestingly, the court stated that if these facts bear out, “there is some support for the general proposition that such a response might not be clearly unreasonable.” In other words, FSU may be able to achieve dismissal on these grounds at a later date once the facts are more developed.
Finally, the court strongly disagreed with FSU’s argument that that Kinsman being on campus with Winston an additional ten months was not serious enough to constitute severe or further discrimination. In describing the trauma involved when a rape victim encounters her attacker, the court stated that “it does not require mental gymnastics” to determine that this was further discrimination.
FSU also argued, with regards to Kinsman’s claims that she was harassed on social media, that it cannot be held liable for the actions of third parties because it cannot control their actions. Kinsman refuted this argument by stating that if FSU police would have taken action when the incident took place, Winston “would have been removed as a threat to [her] long before ever suiting up to play football in a Seminoles jersey,” thereby reducing the likelihood of social media harassment. The court noted that at least one other court held that similar third-party harassment is not itself actionable but punted on dismissing these allegations by stating that this harassment may bear on the severity of the other claims.
While the court determined that the suit may proceed at this stage of litigation, it also identified several troubling issues with Kinsman’s allegations. Moving forward as the facts develop in discovery, expect the key issues in this case to include: (1) whether Jimbo Fisher and/or the associate athletic director have adequate authority to take corrective action; (2) whether FSU’s actions of providing a victim advocate was sufficient to show that its actions were not unreasonable; and, (3) whether FSU’s actions caused the social media harassment Kinsman endured.
