By Brian G. Nuedling, of Jackson Lewis P.C.
A student-athlete’s claims of sexual assault and harassment tested the boundaries of a college’s obligation to investigate such allegations and implement a corresponding remedy.
In Hughes v. Missouri Baptist University,Plaintiff Kelly Faye Hughes (“Hughes”) enrolled in Missouri Baptist University (“MBU”) in the fall of 2016 and was member of the school’s volleyball team. During her freshman year, Hughes had an “on again-off again” relationship with Kendell Davis (“Davis”), who played for the MBU football team. In the fall of 2017, during a “Welcome Weekend” event at MBU on August 18, Hughes and Davis attended an off-campus party. Early the next morning, they returned to the campus, entered her vehicle (which was parked in a residence hall parking lot), and had sexual intercourse. According to Hughes, and prior to sexual intercourse, she twice asked Davis to stop. Hughes stated that she asked Davis to stop a third time, but that he continued on and had sexual intercourse with Hughes.
Later in the morning of August 19, 2017, Hughes shared the details of the sexual encounter with her roommates. However, she did not report the matter to an MBU official until August 31, 2017. Hughes made her report to an MBU athletic trainer a day after observing an athletic training office whiteboard that included a message requesting prayers for the “false allegations” against Davis. The athletic trainer immediately brought Hughes to MBU’s Office of Public Safety, where she gave a statement to Stephen Heidke (“Heidke”), MBU’s Director of Public Safety.
On September 1, 2017, Heidke reported Hughes’ allegations to Andy Chambers (“Chambers”), MBU’s Senior Vice President of Student Development and Associate Provost, who also served as MBU’s Title IX Coordinator. Later the same day, Hughes met with Davis for the first of three statements that he would provide during the investigation. Davis stated that Hughes had twice asked him to stop but that he became “confused” when they kept “making out.” Davis stated that Hughes “finally agreed to have sex.” During the meeting, Heidke directed Davis not to have contact with Hughes in any form. This instruction was repeated by Thomas Smith (“Smith”), MBU’s Director of Athletics, who told Davis not to have any contact with Hughes during the investigation and to cease any discussion about Hughes with his friends and teammates.
Also on September 1, 2017, Hughes reported the matter to MBU’s volleyball coach. The coach took Hughes to see Kimberly Grey (“Grey”), MBU’s Associate Dean of Students. Hughes provided similar information that she had reported to Heidke the previous day.
In the following days, Hughes traveled to Memphis to visit her sister and filed a Memorandum with the Memphis Police Department. Prior to her visit to Tennessee, Hughes had not received any guidance from MBU regarding contacting police. The MBU public safety officer did not report Hughes’ allegations to police.
Hughes met with several MBU officials during the investigation. This included a meeting on September 19, 2017, when Hughes met with Grey and provided the names of individuals she believed would have information relevant to the investigation. She also described several recent incidents of harassment by MBU football players who were friends with Davis. Following this meeting, Hughes made several complaints to MBU of harassment by other students. MBU responded to Hughes’ emails alleging harassment, but apparently no students were disciplined as a result of the complaints.
On September 25, 2017, MBU named Davis “Athlete of the Week.” On October 9, 2017, MBU selected Davis to pose for promotional materials for the school. Also sometime in the fall of 2017, MBU learned that Davis had contacted Hughes’ brother and stated that he was worried about her mental health and that she was “too skinny.” Davis was not disciplined for this contact.
On October 12, 2017, Chambers and Grey met with Hughes. Chambers advised Hughes that he could not find by a preponderance of the evidence that Davis had lacked Hughes’ consent or that Davis had violated MBU’s Policy on Sexual Assault and Relationship Violence. However, Davis stated that Davis’ conduct violated MBU’s Statement on Sexual Behavior and Resident Life Policy, since Davis had admitted engaging in sexual activity on campus, in violation of that policy. Chambers further told Hughes that she could be disciplined for violating the Statement on Sexual Behavior as well, but that he had decided against such punishment because he did not believe it was appropriate. Chambers and Grey met with Davis privately and advised him of the outcome of the investigation. As a result of the policy violations, MBU issued several sanctions, including placing Davis on disciplinary probation for the remainder of the fall 2017 semester, requiring his participation in MBU’s Restorative Justice Program, and suspending him from participating in MBU football team practices, games and other activities for approximately one week, from October 6, 2017, through October 12, 2017.
On October 12, 2017, following her meeting with Chambers and Grey, Hughes requested and received from the St. Louis County Circuit Court an Ex Parte Order of Protection against Davis. Five days later, the court issued an addendum to the Ex Parte Order, which allowed Davis to attend MBU and MBU-related activities, subject to the terms of the Order. While MBU undertook several measures to minimize the likelihood of contact between Hughes and Davis, Hughes later reported several incidents in October 2017 in which she believed that Davis had violated the Order. On October 30, 2017, the St. Louis County Circuit Court entered a Full Order of Protection against Davis. After the issuance of the Order, Hughes continued to report incidents of harassment by Davis and his friends.
Hughes completed the fall 2017 semester at MBU and then transferred to Carson Newman University for the spring 2018 semester.
On August 19, 2019, Hughes filed suit in the United States District Court for the Eastern District of Missouri, alleging that MBU violated Title IX of the Education Amendments of 1972 (“Title IX”) because it was deliberately indifferent to actual notice of sexual discrimination and sexual harassment (Count I); that MBU acted negligently by breaching its duty of care to Hughes to protect her from harassment on school premises (Count II): and that MBU breached contractual obligations owed to Hughes by failing to provide an adequately safe living and suitable educational environment (Count III).
MBU subsequently moved for summary judgment on all counts. The school asserted that (1) no reasonable jury could conclude that MBU was deliberately indifferent to actual notice of discrimination; (2) Hughes had not established that MBU owed a duty to protect her under Missouri law; and (3) Hughes had not identified an enforceable contract with MBU.
As to the claim under Title IX, the court noted that student-on-student sexual assault and sexual harassment constitute forms of sexual harassment under Title IX. The court further noted that Hughes would need to prove that MBU was (1) deliberately indifferent to (2) known acts of discrimination, (3) which occurred under its control. While some of the facts gave the court “pause,” the issue was whether MBU’s response was “clearly unreasonable,” not whether it was commendable or even adequate. The court found that viewing the facts even in the light most favorable to Hughes, no reasonable jury could find the response unreasonable. The court observed that Hughes’ belief that MU should have done more was not sufficient to create a triable issue. Accordingly, the court granted MBU’s motion for summary judgment as to Hughes’ Title IX claim of deliberate indifference.
As to the second claim of negligence, Hughes contended that MBU was negligent in responding to her claims of non-physical harassment by Davis and other students. The court found that Hughes had presented sufficient evidence that MBU had a duty of care to protect her against stalking and harassment by Davis. On that basis, the court denied MBU’s motion for summary judgment on that claim.
In ruling on Hughes’ breach of contract claim under Missouri law, MBU challenged this claim on the basis of whether Hughes had established the existence of a valid contract with identifiable and enforceable promises. The court found that Hughes was relying on student handbook provisions to effectively request that the court supervise MBU’s internal procedures for monitoring and disciplining its students. The court found that the handbook could not form the basis for such a claim and granted MBU’s motion for summary judgment.
 No. 4:19-cv-02372-AGF, 2021 U.S. Dist. LEXIS 96470 (E.D. MO. May 21, 2021).
 At that time, Heidke also served as a Title IX investigator for MBU.
 This policy served as MBU’s Title IX policy and was available to students in several locations, including on MBU’s website and in the Student Handbook. Among other things, the policy provided that students found responsible for sexual assault and certain other sexual misconduct could face a range of sanctions, including suspension or expulsion.
 The Statement of Sexual Behavior and Resident Life Policy prohibited students from engaging in acts of sexual intercourse on campus.