A federal judge has dismissed the claims of a former student athlete at Murray State University, who alleged, among other things, that the school was negligent when the head coach for women’s head track and field failed to report a sexual assault the student athlete suffered to the authorities.
In so ruling, the court found, among other things, that university officials were not deliberately indifferent toward the plaintiff and her claim.
The incident occurred in the fall of 2011 when Jazmine Moore was enrolled as a student at MSU and was also a member of the women’s track and field team. She alleged that on September 14, 2011, she was sexually assaulted by a male student while in her dormitory on campus. Approximately six weeks later, on October 28, 2011, She notified Jennifer Severns, MSU’s head coach for women’s head track and field, about the assault. Moore explained that her absence from mandatory team events was the result of the sexual assault. At the conclusion of the email, Moore asked Severns for information about available resources that could help her with the physical and psychological impacts of the assault. Three days later, on October 31, Severns responded to Moore, encouraging her to go to the Women’s Center on MSU’s campus. She also offered to schedule an appointment and accompany Moore during her visit to the center. They scheduled a time, but Severns had to back out because the date of the appointment coincided with a regional track and field competition. Moore ultimately went by herself on the scheduled date.
Severns never reported the sexual assault to the MSU Police Department and never followed up or otherwise inquired about Moore’s condition, according to the complaint. Moore self-reported the sexual assault to campus police on December 16, 2011.
Moore filed suit against MSU, alleging that Severns’s failure to report the sexual assault compromised physical evidence, witness statements, and Moore’s safety and security. Additionally, she claimed that she “suffered harm and damages in not being able to return and participate in [MSU’s] women’s track and field team and ultimately the [loss] of scholarship and ability to return to [MSU] as a full-time student.” She sought compensatory and punitive damages for her injuries.
Moore asserts three state and two federal causes of action: (1) negligence; (2) negligence per se; (3) failure to comply with the Michael Minger Act, KRS § 164.948 et seq.; (4) failure to comply with the Jeanne Clery Act, 20 U.S.C. § 1092 et seq.; (5) and failure to comply with Title IX, 20 U.S.C. § 1681 et seq. (Id. at pp. 5-12.) This action was originally filed in state court, but MSU removed to this Court pursuant to 28 U.S.C. § 1331 and § 1441.
MSU moved to dismiss the case, pursuant to Federal Rule of Civil Procedure 12(b)(6).
The court quickly ruled out the Clery Act claim, which “requires colleges and universities across the United States to disclose information about crime on and around their campuses,” writing that “there is no private right of action under that statute.”
Moore also failed to state a claim under Title IX, according to the court.
“In Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979), the Supreme Court held that Title IX was enforceable through a private right of action. The Court later decided that money damages are available in a private suit, Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992), and that, in the case of teacher-student sexual harassment, such damages are only recoverable where the school district has been ‘deliberately indifferent’ to the harassment, Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998). Finally, the Court held that student-on-student sexual harassment is actionable under Title IX. Davis v. Monroe Cnty. Bd. Of Educ., 526 U.S. 629, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999). But, as is the case with teacher-student sexual harassment, the entity receiving federal funds may only be held liable for student-on-student sexual harassment where it ‘acts with deliberate indifference to known acts of harassment in its programs or activities.’ Id. at 633.
“Summarizing Davis, the Sixth Circuit Court of Appeals held that in order to establish a prima facie case of student-on-student sexual harassment for the purposes of Title IX, the plaintiff must show:
“(1) that the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school, (2) that the funding recipient had actual knowledge of the sexual harassment, and (3) that the funding recipient was deliberately indifferent to the harassment. Soper v. Hoben, 195 F.3d 845, 854 (6th Cir. 1999) (citing Davis, 526 U.S. at 632-42).
“In the present case, there is no dispute that MSU is subject to Title IX; it is a recipient of federal funds. Furthermore, the type of sexual assault at issue here — an alleged rape — is the type so severe, pervasive, and objectively offensive that it could be said to deprive Moore of the educational opportunities and benefits provided by MSU. Id. at 855-56 (finding that a rape is that type of sexual harassment that fulfills the first element of the prima facie Title IX case). It is the second and third prongs of the Davis test at which Moore’s Title IX claim fails as a matter of law. Moore has not alleged that MSU had actual knowledge of sexual harassment prior to the assault and there are no allegations that the University was deliberately indifferent to additional incidents of harassment after the assault. In fact, the complaint contains no allegations that any further harassment occurred after the assault.
“The relationship between causation and deliberate indifference is vitally important in a student-on-student sexual harassment case and is the point on which this case turns. Under Title IX, plaintiffs do not seek to recover against the perpetrator of the harassment. Rather they bring suit against the entity receiving federal funds ‘for its own decision to remain idle in the face of known student-on-student harassment in its schools.’ Davis, 526 U.S. at 643. Relying on the text of Title IX, the Supreme Court held:
“[Title IX’s] plain language confines the scope of prohibited conduct based on the recipient’s degree of control over the harasser and the environment in which the harassment occurs. If a funding recipient does not engage in harassment directly, it may not be held liable for damages unless its deliberate indifference ‘subjects’ its student to harassment. That is, the deliberate indifference must, at a minimum, ‘cause [students] to undergo’ harassment or ‘make them liable or vulnerable’ to it. . . .
“These factors combine to limit a recipient’s damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Only then can the recipient be said to ‘expose’ its students to harassment or ‘cause’ them to undergo it ‘under’ the recipient’s programs. Id. at 644-45.
“The critical piece missing from Moore’s complaint is any allegation that she was ‘subjected’ to or experienced sexual harassment after notifying Severns about the assault occurring on September 14, 2011. Prior to that time, Severns did not have actual knowledge that Moore had experienced any form of sexual harassment, and even assuming, but not finding, that Severns was deliberately indifferent after gaining knowledge of the assault, there are no allegations in the complaint that her indifference ‘subjected’ Moore to harassment, ‘caused her to undergo’ harassment, or ‘made her liable or vulnerable to it.’ Id. at 645. Assuming that MSU was deliberately indifferent after receiving notice of the assault, Moore’s complaint is entirely silent and contains no allegation of how that indifference ‘subjected’ her to additional harassment.”
The court went on to note case law that “supports the proposition that Title IX liability arises only after the institution learns of harassment and is deliberately indifferent to it.
“In the present case, Moore alleges that she was sexually assaulted on September 14, 2011. She informed Severns of the assault on October 28, 2011. The complaint contains no allegations that Moore was subjected too or experienced further sexual harassment after October 28, 2011. Accordingly, even if MSU was deliberately indifferent to Moore, there are no allegations that the indifference caused her to experience further or additional harassment.”
Jazmine Moore v. Murray State University; W.D. Ky.; CASE NO. 5:12-CV-00178, 2013 U.S. Dist. LEXIS 33768; 3/12/13
Attorneys of Record: (for Jazmine plaintiff) Kimberly Lynn Bunton, LEAD ATTORNEY, Louisville, KY. (for defendant) Richard L. Walter, LEAD ATTORNEY, Boehl Stopher & Graves, LLP – Paducah, Paducah, KY.
