Court Affirms that Officials Weren’t Liable for Student-Athlete’s Rape

Sep 11, 2009

The Supreme Court of Alabama has affirmed a lower court’s ruling that a community college and several individual defendants were not liable under Title IX when one of the school’s basketball coaches raped a student athlete.
The incident leading to the litigation occurred in the early morning hours of March 6, 2004, when the 19-year-old plaintiff, identified as J.B., was raped in a motel room by one of her basketball coaches, Boris A. McCord, a long-time acquaintance, after an away game. McCord was an assistant coach “on a voluntary, part-time basis” at Lawson State Community College, where the plaintiff was a member of the women’s basketball team
The plaintiff sued Lawson State, pursuant to Title IX, and McCord’s alleged supervisors, namely, Dr. Perry Ward, Eleanor Pitts, and Aubrey Wiley, the president, the athletic director, and the head women’s basketball coach, pursuant to 42 U.S.C. § 1983, seeking compensatory and punitive damages. She specifically alleged that the supervisors had “’knowledge of the sexual and hostile education environment and sexual abuse and harassment to which J.B. and others were subjected at the hands of Boris McCord, and [that] their failure to respond and/or their inadequate response amounted to deliberate indifference,’ which indifference ‘had the effect of denying [J.B.] access to educational opportunities provided by the school.’ It further alleged that J.B.’s ‘rights to personal safety and bodily integrity [as] guaranteed by the Fourteenth Amendment … were violated when [Lawson State] and [the supervisors] failed to prevent Boris McCord from raping … her.’ Lawson State and the supervisors filed a joint motion for a summary judgment, asserting, among other things, qualified immunity as an affirmative defense to the § 1983 claims.” The trial court granted the motion, spawning J.B.’s appeal.
Upon review, the appeals court noted that McCord had a suspicious history, that he had allegedly touched S.P., a female student on the basketball team, “in a manner that made her feel uncomfortable during the middle of a practice drill.” The head coach claimed that she “strongly warned McCord that such conduct was not acceptable and would not be tolerated.”
A year later, during the 2003-2004 basketball season, McCord allegedly touched S.P. again, this time on the backside before a basketball game as she was standing on a weight scale. S.P. testified in a deposition that she confronted McCord and asked him if the touch was intentional, and he admitted that it was. She was angry and immediately expressed her anger to a number of her teammates. However, according to the testimony of S.P. and her teammates, neither she nor they reported the incident to any official for Lawson State.
Shortly, McCord formed a relationship with J.B., which was noticed by the administrators and investigated. Both parties, however, denied that the relationship was a sexual one.
At about the same time, Lawson State introduced a Student Handbook, which addressed sexual harassment. Specifically, it stated: “It is the policy of Lawson State Community College to maintain a learning and working environment that is free from sexual harassment. It shall be a violation of this policy for any member of the college’s staff to harass another staff member or student through conduct or communication of a sexual nature as defined below. It shall also be a violation of this policy for students to harass other students through conduct or communications of a sexual nature.” The handbook went on to define what constituted the offending behavior.
Complicating the case was the fact that J.B. “did not complain to anyone at Lawson State about her relationship with McCord,” according to the court. “On the contrary, according to J.B., she had come to regard McCord as a friend and ‘father figure,’ never felt that he had acted inappropriately toward her, and, until the night of March 5-6, 2004, never suspected that he might harm her. Nevertheless, on that night, McCord raped J.B. in his motel room after a Lawson State basketball game. He was subsequently convicted of the crime and sentenced to imprisonment for life plus 20 years.”
In reviewing J.B.’s appeal, the court noted that officers in their individual capacities may be liable for damages resulting from discretionary acts that violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982).
J.B., in particular, faulted Pitts for failing to conduct any investigation into the 2003 incident involving McCord and S.P. and to conduct an “investigation [of the] long-standing McCord/J.B. inappropriate relationship.”
Addressing the first argument, the court noted that S.P. never told Pitts or anyone else in the administration at Lawson State about the touching incident. Turning to the second, it noted that Pitts promptly investigated the incident.
Two of the instances of alleged misconduct were reported to the superintendent, who investigated the allegations. [*20] Similarly, in this case, the facts, when construed most favorable to J.B., show that S.P. complained to Pitts of an inappropriate touching by McCord and that Pitts adequately investigated the matter.
The plaintiff also argued that Pitts was liable for her decision not to intervene in her long-standing, personal relationship with McCord. “Although she undisputedly never complained to Pitts or anyone else about McCord until the event made the basis of this action, she now insists that Pitts should have interpreted McCord’s attentions as sexual harassment and should have unilaterally initiated the procedures for addressing sexual harassment set forth in the policy,” wrote the court.
“The policy in effect during the 2003-2004 academic year specifically excluded from the definition of sexual harassment ‘consenting or welcome sexual relationships.’ More to the point, J.B. testified that, although she and McCord were often together going to and from classes and basketball games, she did not consider the relationship to be sexual. On the contrary, she regarded McCord as a friend and ‘father figure.’ Thus, even if Pitts had initiated an investigation, it would, presumably, have floundered for lack of a complainant. For these reasons, we hold that Pitts was not deliberately indifferent to J.B.’s constitutional rights for purposes of imposition of liability, under either Title IX or § 1983. Because the Title IX claim against Lawson State is premised on Pitts’s alleged inaction, the trial court correctly entered a summary judgment in favor of both Pitts and Lawson State.”
The court also disbanded the argument that Wiley was liable, finding that “nothing in Wiley’s handling of the J.B./McCord relationship provides a basis for liability under § 1983. Therefore, the trial court correctly entered a summary judgment for Wiley.
J.B. v. Lawson State Community College et al.; S.Ct. Ala.; 1080316, 2009 Ala. LEXIS 158; 6/26/09


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