Judge Rules That Title IX and Negligence Claims Can Continue Against Baylor

May 26, 2017

A federal judge from the Western District of Texas Has ruled that a Title IX claim filed by a Baylor University student, who was raped by one of the university’s football players, can continue against the university. It also ruled, in denying the defendants’ motion to dismiss, that the plaintiff’s negligence claims against the school’s former athletic director and its former head football coach can also continue.
Jasmin Hernandez enrolled at Baylor in the fall of 2011. On April 15, 2012, she was sexually assaulted by Tevin Elliott while attending an off-campus party. At the time, Elliott was a player on the Baylor football team. The plaintiff immediately reported the assault to the Waco Police Department.
Two days after the assault, the plaintiff’s mother reported the incident to the Baylor Counseling Center and Baylor Student Health Center. Staff at both service providers allegedly responded that the plaintiff could not receive treatment because the Centers were “too busy” or “full.” A few days later, Baylor’s Academic Services Department also allegedly “refused to provide any accommodations.” During the relevant time period, Baylor did not have a dedicated Title IX coordinator.
The plaintiff’s mother subsequently called Head Football Coach Art Briles to inform him of the assault. She allegedly received a return phone call from a member of Briles’s staff informing her that the office had “heard of the allegations” and was “looking into it.”
Despite these reports, the plaintiff alleged that Baylor “did not take any action whatsoever to investigate the claim.” Elliott was “allowed to remain on campus” until transferring to another school during the summer of 2012, thereby subjecting the plaintiff to additional harassment by “making her vulnerable to an encounter with Elliott . . . at any time at any place on campus.” The plaintiff’s grades suffered and she ultimately withdrew from school.
The plaintiff sued, claiming, among other things, that Baylor and the individual defendants, Briles and Athletic Director Ian McCaw, were negligent because they knew that Elliot was a predator and did nothing to stop him.
The plaintiff also alleged two types of Title IX claims. First, she alleged what might be considered a “traditional” claim for sexual assault under Title IX. She argued that she was sexually assaulted by a peer at Baylor, that she reported her assault to the university, and that Baylor’s deliberately indifferent response to that report deprived her of educational opportunities and benefits provided by the school. The court referred to this as the plaintiff’s “post-reporting claim.”
Second, the plaintiff alleged that even prior to her report of sexual assault, Baylor’s actual notice of the threat posed by Elliott and other student—athletes and deliberate indifference to that threat—manifested by the university’s alleged discouragement of reporting, failure to investigate claims or punish assailants, and perpetuation of a culture in which football players were protected from allegations of misconduct—constituted actionable intentional discrimination that substantially increased the plaintiff’s risk of being sexually assaulted. The court will refer to this as the plaintiff’s “heightened-risk claim.”
Addressing the first claim, the court found that the plaintiff “plausibly alleged Baylor was deliberately indifferent to her report of sexual assault, thereby depriving her of educational opportunities to which she was entitled.”
Regarding the second claim, the court concluded that the plaintiff pled facts, “if assumed to be true, that are more than sufficient to allow a plausible inference that Baylor was deliberately indifferent to sexual harassment—of which it had actual knowledge—that 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. See Davis, 526 U.S. at 650. Baylor’s alleged failure to address and active concealment of sexual violence committed by its football players, including Tevin Elliott, was a form of discrimination. Baylor’s alleged knowledge of the need to supervise Elliott and protect female students plausibly constitutes deliberate indifference. Finally, Baylor’s alleged deliberate indifference plausibly created an environment in which football players could sexually assault women, including the plaintiff, with impunity. That vulnerability—or heightened risk—plausibly constitutes harassment under Title IX.”
Next, the court looked at the plaintiff’s state law claims for negligence against each of the defendants. To show negligence in Texas, a “plaintiff must produce evidence of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by that breach.” Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). Whether a legal duty exists is therefore a threshold question; if there is no duty, there can be no liability. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999).
Critical to the court’s determination with regard to the negligence claim against Baylor was Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287 (Tex. 1996). In that case, two employees at a regional Boy Scout council learned from a scoutmaster of complaints that an assistant scoutmaster, Melvin Estes, had been molesting some of the middle-school aged boys in the troop. When the council employees questioned the scoutmaster further, he refused to tell them the names of the boys who had made the complaints and stated that the allegations came from a boy who was known to lie. Based on that information, the council neither relayed the allegations to local law enforcement nor conducted any further investigation. Shortly thereafter, when a church wanted to start its own troop, one of the council employees who knew of the allegations against Estes introduced Estes to the church without informing it of the allegations. The church ultimately selected Estes as its scoutmaster, and he subsequently molested or attempted to molest one of the boys in that troop. Estes was eventually sentenced to 20 years imprisonment for sexual abuse of a child.
“Here, Baylor is alleged to have put Elliott in an environment where it knew or should have known that he was particularly likely to continue his pattern of sexual assault,” wrote the court. “Pursuant to the allegations in the complaint, this environment consisted not only of the broader campus community, but also the athletic department and, more specifically, the football team. Like the Boy Scout council in Golden Spread, Baylor is alleged to have had far more information about Elliott’s history of sexual assault than did the plaintiff and other students. Baylor also allegedly had some ability to control Elliott, given the authority it had over him as a student and football player. The court therefore concludes that Plaintiff has plausibly alleged a claim for negligence against Baylor.”
The court also sided with the plaintiff in her negligence claims against Briles and McCaw, finding that they “may have had a separate and independent duty to act with reasonable care.”
Jasmin Hernandez v. Baylor University, et al.; W.D. Tex.; 6:16-CV-69-RP, 2017 U.S. Dist. LEXIS 54255; 4/7/17
Attorneys of Record: (for plaintiff) Alexander S. Zalkin, LEAD ATTORNEY, PRO HAC VICE, The Zalkin Law Firm, P.C., San Diego, CA; Devin M. Storey, Irwin M. Zalkin, Ryan M. Cohen, LEAD ATTORNEYS, The Zalkin Law Firm, P.C., San Diego, CA; Susan E. Hutchison, Hutchison & Stoy, PLLC, Fort Worth, TX. (for defendant Art Briles) Danny L. Van Winkle, LEAD ATTORNEY, PRO HAC VICE, Tekell, Book, Allen & Morris, LLP, Houston, TX; David G. Tekell, LEAD ATTORNEY, Tekell & Atkins, LLP, Waco, TX; Michael Patrick Morris, LEAD ATTORNEY, PRO HAC VICE, Tekell, Book, Matthews & Limmer, L.L.P., Houston, TX. (For defendant Ian McCaw) Thomas Phillip Brandt, LEAD ATTORNEY, Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX; Stephen D Henninger, Fanning, Harper, Martinson, Brandt & Kutchin, P.C., Dallas, TX. (for defendant Baylor University) Lisa Ann Brown, LEAD ATTORNEY, Thompson & Horton LLP, Houston, TX.


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