A federal judge from the District of Oregon has dismissed the claim of a student athlete, who was raped at an off-campus party and subsequently sued Oregon State University (OSU) and Head Football Coach Mike Riley, alleging violations of Title IX and 42 U.S.C. § 1983.
Central to the court’s ruling was the fact that Kristen Samuelson was raped at an off-campus party by “an assailant who was neither a student nor an associate of the university.
“… Because OSU lacked meaningful control over either the location of Ms. Samuelson’s assault or the attacker himself, the Title IX claim is dismissed. Because no state official in Mr. Riley’s position at the time would reasonably have been on notice that they were liable for an off-campus sexual assault by a non-student, the 1983 claims against Mr. Riley are dismissed.”
The incident occurred in 1999 when Samuelson was a freshman at OSU. The next day, the plaintiff claimed she woke up to see a number of OSU jerseys on the wall. She reported the sexual assault to a counselor at OSU’s Student Health Services. The counselor allegedly told the plaintiff that: “maybe the plaintiff had said ‘yes’; ‘these things are hard to prove;’ it would be blamed on the plaintiff, the plaintiff should not have been drinking; gave her meeting times for Alcoholics Anonymous, and then had no further contact with the plaintiff, and upon information and belief, took no further action. No one else from OSU contacted the plaintiff thereafter about the assault or, upon information and belief, took any other action either.
“OSU’s sexual assault counselor’s words, inaction, and blame, caused the plaintiff to feel even more shame, humiliation, and emotional distress than she had felt after being assaulted, was dissuaded from seeking any further help from OSU, and consequently did nothing more to hold her perpetrator accountable for his crime,” according to the complaint.
“During this time, OSU failed to take corrective action to end the hostile educational environment the plaintiff experienced because of the rape and ensure the plaintiff’s full and equal access to educational benefits and opportunities.”
Fifteen years after the incident, on November 14, 2014, Samuelson read an Oregonian article describing a “similar sexual assault” of another student that would have pre-dated Samuelson’s assault by a year, according to the court. “Ms. Samuelson learned Brenda Tracy had been raped on June 24, 1998 by two OSU football players and two other men. The incident surrounding the rape of Ms. Tracy occurred in the same apartment in which Ms. Samuelson was raped. Like Ms. Samuelson, Ms. Tracy was drugged. Like Ms. Samuelson, Ms. Tracy reported the rape to OSU’s sexual assault counselor. Calvin Carlyle, an OSU football player, was alleged by Ms. Tracy to be one of her assailants. Ms. Samuelson later learned her attacker was Calvin Carlyle’s cousin.”
After reading the article, Ms. Samuelson realized that OSU essentially ignored a brutal rape of one of its students and failed to take any corrective action.
“She also discovered in the winter of 2014 and early 2015, after Ms. Tracy made her report, [OSU’s sexual assault counselor] and other OSU officials failed to take corrective action, including (a) end the hostile and sexually violent culture toward women permitted by OSU’s football program, (b) create and implement more effective sexual assault prevention policies, (d) prepare and present training programs for students, coaches and faculty about consent and [*5] appropriate sexual conduct, (e) investigate sexual assault allegations impartially and comprehensively, (f) engage law enforcement, (g) craft discipline commensurate with the severity and frequency of the acts of sexual harassment and violence by OSU’s football players and their associates, and (h) have ongoing emotional, psychological, and educational on-campus support and off-campus resources for sexual assault victims.”
She further alleged that she did not discover “until the winter of 2014 and early 2015 that OSU had actual knowledge of the risk of rape by student athletes and thus that it was foreseeable that female students would be raped in the future, and that OSU had failed to reevaluate its sexual assault prevention policies and procedures, training, investigation methods, football culture and system for supporting students who had been raped, and had failed to create and implement more protective and supportive and rehabilitative methods, policies, and practices.”
The plaintiff alleged, in her lawsuit, that OSU “had actual knowledge of the hostile culture toward women permitted by OSU’s football program and history of sexual assaults and harassment towards women by OSU’s football players. OSU also had actual knowledge of the substantial risk that Carlyle would associate with other sexually violent males who would sexually harass OSU’s female students at his apartment based upon prior conduct by Carlyle and his associates.”
Furthermore, the school “was deliberately indifferent to reports of rape and sexual misconduct by (a) failing to investigate reports of rape and sexual misconduct by Ms. Tracy and Plaintiff properly, (b) failing to notify law enforcement of Plaintiff’s rape, (c) discouraging Plaintiff from reporting the sexual assault to law enforcement, (d) minimizing or covering up the discriminatory import of Ms. Tracy’s and Plaintiff’s reports of sexual assault to OSU, and (e) continuing to use ineffective methods to address sexual assaults of OSU’s female students.”
Turning to Riley, she alleged due process and Equal Protection claims under Section 1983, claiming that he made no effort or a minimal effort “to reform the football team’s hostile and sexually violent culture towards women by, such as, advocating for more protective sexual assault prevention policies, disciplining assistant coaches who ignored or suppressed reports of sexual misconduct by players, training players about consent and appropriate sexual conduct with women, and disciplining players in a manner that was commensurate with the severity and frequency of instances of sexual harassment by OSU’s football players.”
In examining the Title IX claim, the court focused on Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998) and Davis v. Monroe Oily. Bd. of Educ., 526 U.S. 629, 643, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999) in assessing a recipient’s liability under Title IX for deliberate indifference.
“The reasoning in Davis and Gebser bars her Title IX claim,” wrote the court. “Advance notice and the ability to take corrective action remain prerequisites for recipient liability in Title IX sexual harassment actions. Here, Ms. Samuelson’s harasser drugged Ms. Samuelson at an off-campus party. OSU had no control over an off-campus party at an apartment that simply happened to be located in the same city as the university. And Ms. Samuelson’s rape occurred not on campus, where the OSU might exert some control over the comings and goings of students or guests, but at another off-campus apartment. … (B) ecause OSU lacked any control over the harasser or the context of the harassment, it is not liable under Title IX.”
Next, the court turned to Samuelson’s § 1983 due process claims that Riley violated her Constitutional right to be free from bodily harm and Equal Protection claim. The key determination for the court was whether the “danger creation” exception would pierce Riley’s qualified immunity protection.
The court found that Samuelson’s arguments fell “well short” of what is necessary.
“Mr. Riley did not drop Ms. Samuelson off at the off-campus party or take the drug-filled beverage from Calvin’s cousin and hand it to Ms. Samuelson,” wrote the court. “There is no allegation Mr. Riley ever met or even heard of Calvin’s cousin before the filing of this action. Although Ms. Samuelson argues Mr. Riley only suspended Calvin one game after Ms. Tracy’s rape, Calvin did not rape Ms. Samuelson. Because there is no allegation of an affirmative action by Mr. Riley increasing the risk that Ms. Samuelson would be sexually assaulted by Calvin’s cousin, Mr. Riley is entitled to qualified immunity.” That same lack of involvement sufficiently bolstered Riley’s defense against the Equal Protection claim.
Kristin Samuelson v. Oregon State University and Mike Riley; D. Ore.; Case No. 6:15-cv-01648-MC, 2016 U.S. Dist. LEXIS 20991; 2/22/16
Attorneys of Record: (for plaintiff) Katherine R. Heekin, LEAD ATTORNEY, M. Diana Fedoroff, The Heekin Law Firm, Portland, OR. (for defendants) J. Michael Porter, Miller Nash Graham & Dunn LLP, Portland, OR.
