By Ellen J. Staurowsky, Ed.D., Professor, Department of Sport Management, Drexel University
In March of 2016, former Big 12 rower, Daisy Tackett filed a complaint against the University of Kansas (KU) asserting multiple violations of Title IX following her alleged sexual assault by a former football player, referred to in the complaint as John Doe G. In brief,
Tackett argues that KU subjected her to a hostile educational environment because of the severe, pervasive, and objectively offensive harassment she experienced from John Doe G. in a residence hall that Tackett asserts was known to be an unsafe environment for students that had had a long history of previous incidents of the kind that affected her. Tackett asserts that there was intentionality on the part of KU to place football players in the Jayhawker Tower so that they would receive less supervision and with the knowledge that there was a greater likelihood that sexual misconduct would occur. Citing numerous other KU failures, including not properly training staff to respond appropriately to sexual assaults through prevention and education as well as investigation and disciplinary actions, Tackett alleges that KU officials were deliberately indifferent to her and that she suffered retaliation believed to have been directed at Tackett by John Doe G and the KU rowing coach (Staurowsky, 2016).
In September of 2016, following the filing of an amended complaint by Tackett, the University of Kansas moved to dismiss contesting some of the facts put forward by Tackett and arguing that the University was neither deliberately indifferent to her situation nor did parties engage in retaliation against her in violation of Title IX. KU argues that Tackett’s complaint should be dismissed because it fails to state a plausible claim. They further argue that the case is built on various “conclusory and vague events” that do not warrant consideration. In seeking dismissal, the University defends its position by noting that civil liability pertains in Title IX cases only when it is established that the recipient of federal funds has received actual notice of alleged discrimination and after notice, has acted with deliberate indifference. The defendants note that “Schools cannot be held vicariously liable for acts of sexual harassment or violence committed by teachers or students on campus” (University of Kanas response, September, 2016, p. 17, para. 1).and that under Title IX, administrators are required to respond after actual notice but are not compelled to follow a particular disciplinary course of action, demonstrating that whatever course is chosen is reasonable to the circumstances.
Responding to the notion that KU had actual notice, the defendants argue that while the incident was tragic, the institution is not liable for the actions of John Doe G. Citing the timeline, KU points out that Tackett was allegedly assaulted a year before she came forward with a complaint to the University and that past knowledge of other sexual assaults on campus is not sufficient to establish institutional liability under Title IX. The University argues that the links Tackett attempts to make between general reports of campus assaults required by the Clery Act ought not to be brought to bear as evidence that the University knew of a potential that a sexual assault would occur between these two specific students. In turn, the University states the actions of one football player cannot be amplified to an assumption that all football players are a threat to the community. “If so, the University could be held liable simply for providing a co-educational institution, which the Tenth Circuit has rejected” (University of Kansas response, September 2016, p. 20, para. 2).
In support of the contention that the University was responsive to Tackett’s allegation that she had been raped by a football player, they offer that reporting protocols were followed leading to Tackett meeting with the Office of Institutional Opportunity and Access (OIA), an investigation was subsequently undertaken that resulted in the effective expulsion of the accused student. When Tackett expressed discomfort after seeing her alleged assailant on campus and reporting that to the OIOA, she was given an escort and a no contact order was issued.
The University’s defense of the allegation that Tackett’s coaches created a hostile environment for her and her teammates may have merit but is also confusing as represented in both the complaint and the response. Conduct described by Tackett as falling under hostile environment included racially insensitive remarks by the head coach as well as the head coach’s warnings to athletes that they were “fat”. If accepted as true, the defendants point out that racial comments fall outside of the purview of Title IX, which deal solely with sex discrimination. They also challenge whether references to the weight of athletes is inappropriate in a sport where the weight of rowers is a consideration. While claims regarding what the coach said have been denied by the coach, a meeting to air grievances by the team is said to have resolved these issues, thus defeating the plaintiff’s efforts to argue that such statements were sufficiently pervasive, severe, and persistent.
The question of whether Tackett was retaliated against by her alleged assailant and coaches is also disputed in the University’s response. Given the steps the University took to issue a no contact order against the alleged assailant and arrangement for an escort to accompany the plaintiff around campus, the University argues that they took active steps to educate the alleged assailant about the inappropriateness of retaliation and to prevent it from occurring. The University further argues that many of the issues cited by the plaintiff, including the coach’s decision to exclude her from a rowing trip, were not reflective of efforts to retaliate against her after being sexually assaulted but logical outcomes based on the plaintiff’s expressed desire to leave the program and row elsewhere. According to the response, “After giving notice that she was no longer interested in being on the team, Plaintiff cannot claim that her subsequent failure to be selected when a spot on the training trip opened up is somehow retaliatory.”
From the defendant’s perspective, Tackett first fails to state a claim because the institution’s record of investigating the incident, providing an escort, issuing a no contact order, and effectively expelling the alleged assailant demonstrate that the institution was not deliberately indifferent to Tackett’s plight. Second, the University further argues that Tackett’s assertion that a hostile environment was created by the head coach as a result of racial comments and commentary about the weight of athletes, if even covered under Title IX, would not have been objectively severe, pervasive, and persistent enough to meet the standard. Third, the University challenges the veracity of the plaintiff’s claims regarding retaliation. And fourth, the University argues that the institution cannot be held liability for retaliation when the plaintiff fails to establish that there was deliberate indifference.
As this case proceeds, other related issues have arisen, two of particular note. The first was what happened to John Doe G. Identified in news accounts as former KU football long snapper Joshua Goldenberg, he left KU in March of 2016 (the same month as Tackett’s filing). He was listed on the football team roster at Indiana State University in August of 2016 but was released from the team following inquiries regarding his alleged misconduct at Kansas. There is the appearance that Goldenberg’s former special teams coordinator at KU, Gary Heyman, brought Goldenberg with him when he took a new position at Indiana State. When ISU’s athletic communications director, Libby Roerig, was contacted about Goldenberg’s removal from the team, she emailed “…the upper administration of the athletics department and football team recently learned more information about Goldenberg and after a review, decided it was best for him to focus on obtaining his degree. Steps have been taken to ensure this situation is not repeated. Because of privacy limitations, the University will not release further details” (Williams, Newell, & Scoby, 2016, para. 12).
And shortly after Tackett moved forward with her complaint, a former teammate, Sarah McClure also filed a complaint against the University of Kansas. She too alleges that Goldenberg sexually assaulted her and that the university violated Title IX in Jane Doe 7 v. University of Kansas (2016).
References
Axson, S. (2016, October 21). Two ex-Kansas rowers accused a football player of sexual assault. They feel the university failed them. SI.com. Retrieved from http://www.si.com/college-football/2016/10/19/university-kansas-title-ix-sexual-assault
Daisy Tackett v. University of Kansas. Case No. 2016 — CV — 00116. Retrieved from http://www.brownandcurry.com/wp-content/uploads/2016/03/3.21.16-File-Stamped-Petition.pdf
Daisy Tackett v. University of Kansas. (2016, September). In the United States District Court for the District of Kansas. Case no: 2016-cv-2266-JTM-GEB.
Jane Doe 7 v. University of Kansas. (2016). Case no.: 2016-CV-000166. Retrieved from http://www.brownandcurry.com/wp-content/uploads/2016/04/Petition-court-stamped.pdf
Mitchell, C. (2016, September 13). A breakdown of open sexual assault-related lawsuits against the University. The University Daily Kansan. Retrieved from http://www.kansan.com/news/a-breakdown-of-open-sexual-assault-related-lawsuits-against-the/article_0f85c970-79e8-11e6-a8fa-d3af0840a133.html
Staurowsky, E. J. (2016, April). Tackett v. University of Kansas: Holding schools accountable under Title IX and consumer protection. Sport Litigation Alert.
Williams, M. R., Newell, J., & Scoby, A. (2016, August 26). Former KU football player accused of sexual assault by two rowers is removed from Indiana State roster. The Kansas City Star. Retrieved from http://www.kansascity.com/sports/college/big-12/university-of-kansas/article98208707.html
