Side Out to Temple in Constitutional Law Case Brought by Volleyball Player
A federal judge from the Eastern District of Pennsylvania has handed a legal victory to Temple University, which was sued by one of its student athletes, who claimed the university violated her civil rights by not protecting her from another student athlete, who allegedly attacked her.
In essence, the court found that Temple University’s action prior to and after the incident did not rise to a level that would make it liable for the perceived injustices experienced by the plaintiff.
The plaintiff was Emily Frazer, who attended Temple in January 2010 on a full athletic scholarship to play volleyball. The other student athlete, and subsequent individual defendant in the litigation was Andrew Cerett, who was attending Temple on a full scholarship as a punter for the football team during that same time period.
Frazer lived in Temple’s dormitory building, which has controlled access. That is, every Temple dormitory building is equipped with electronic card readers, and each dormitory resident has a student identification card that when swiped, grants access only into their own dormitory building. When visiting another dormitory, guests must sign in and be granted access by security staff and then escorted by one of the dormitory residents. Security is required to retain a guest’s identification until the guest signs out and leaves the building.
From August 2010 to May 2012, Frazer lived on the fifth floor of the Cecil B. Moore dormitory building with two roommates. Cerett lived on the same dormitory floor as the plaintiff with his roommate, Adam Metz, from August 2010 to December 2010, when Temple moved Cerett out of the dormitory. Frazer and Cerett dated briefly, on and off from August 2010 until January 2011.
On January 17, 2011, Frazer ended her relationship with Cerett. At approximately 10 PM on the evening of January 21, 2011, Cerett entered the lobby area of the plaintiff’s dormitory building visibly intoxicated to the dormitory security, according to the court. Contrary to established security protocols and procedures, the dormitory security did not ask Cerett for identification or require him to sign in and/or identify the guest he was visiting. Cerett walked past security uninterrupted and took the elevator to the plaintiff’s floor.
One thing led to another, and the couple engaged in a loud argument, punctuated by Cerett’s threats of violence. Campus police were called and Cerett was taken into custody.
A disciplinary hearing before the University Student Conduct Board (Board) pertaining to the January 21, 2011 incident was scheduled for February 18, 2011. In the meantime, Cerett was permitted to remain on campus pending the hearing. During that period, the court noted that Cerett repeatedly followed Frazer, sat outside of her dormitory building, and on one occasion, followed her into the cafeteria and stood directly beside her while she conversed with a fellow student. Fraser informed the University of Cerett’s conduct but no corrective measures were taken, according to the court.
During the disciplinary hearing, Cerett was found in violation of various sections of the Student Conduct Code and suspended until August 29, 2011.
Frazer continued to participate on the Temple volleyball team. But in May 2012, she was removed from the volleyball team and her scholarship was revoked. After a grievance procedure, 50 percent of her scholarship was reinstated. However, she was not permitted to return to the volleyball team.
Central to Frazer’s claim was that Temple “was aware of previous incidents by Cerett against other students, that he had psychological and anger issues, and that he had threatened to harm himself,” yet the school did not take action.
On January 11, 2013, Frazer filed a civil rights action asserting various federal and state law claims against Temple, Cerett, and Allied Barton Security Services, LLC (Allied Barton). The federal causes of action asserted against Temple are: civil rights claims under 42 U.S.C. §1983 for violating the plaintiff’s substantive due process and equal protection rights guaranteed by the Fourteenth Amendment; illegal seizure in violation of the Fourth Amendment; creating a hostile educational environment and retaliation in violation of Title IX, 20 U.S.C. §1681; and violation of 20 U.S.C. §1092(f) (the Clery Act). The state law causes of action asserted against Temple are: negligence, intentional infliction of emotional distress, and violations of the Pennsylvania constitution.
Temple moved to dismiss on March 22, 2013, pursuant to Federal Rule of Civil Procedure 12(b)(6).
The court first examined the §1983 claim. To succeed, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999); Morrow v. Balaski, 719 F.3d 160, 165-66 (3d Cir. 2013).
The court continued: “In order to state a §1983 claim against Temple, Plaintiff must allege facts to demonstrate: (1) the deprivation of a constitutional right; and (2) that such deprivation arose out of an official policy or custom of Temple. With these legal principles in mind, this court addresses each of Plaintiff’s §1983 claims below.”
On the first point, the court highlighted case law, which supports the fact that Temple “generally has no constitutional obligation to prevent private, student-on-student violence, i.e., Cerett’s alleged assault of the plaintiff.”
Turning to the plaintiff’s Fourth Amendment claim, the court found Frazer’s complaint “completely devoid of any factual allegations to support an intentional ‘seizure’ of her by Temple within the meaning of the Fourth Amendment. The plaintiff’s complaint does not allege that Temple, through any of its agents, at any point, physically restrained her or used its authority in any way to confine her.”
As for the plaintiff’s Title IX hostile education environment claim, the court concurred that the Supreme Court has recognized that “a public school student may bring suit against a school under Title IX for student-on-student sexual harassment. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999).
“To recover under the statute in such a case: a plaintiff must establish sexual harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim students are effectively denied equal access to an institution’s resources and opportunities. Id. at 651. A plaintiff must also allege facts showing that the school acted ‘with deliberate indifference to known acts of harassment in its programs or activities.’ Id. at 633.”
Frazer was tripped up on this claim by the fact that she did not allege “facts showing that Temple had actual knowledge of any sexual harassment by Cerett. Therefore, Temple could not have acted with deliberate indifference.”
The plaintiff’s Title IX retaliation claim was similarly lacking in factual support. “The plaintiff has not alleged any such antagonistic conduct or animus occurring between the time she allegedly reported Cerett’s conduct and the time she was removed from the volleyball team,” wrote the court. “Absent such allegations, this court finds that the plaintiff has failed to plead facts sufficient to suggest a causal connection between the plaintiff’s protected activity and Temple’s alleged retaliation.”
Emily Frazer v. Temple University, et al.; E.D. Pa.; CIVIL ACTION NO. 13-2675, 2014 U.S. Dist. LEXIS 76562; 6/5/14
Attorneys of Record: (for plaintiff) Jason P. Kutulakis, Lead Attorney, Abom & Kutulakis, Carlisle, PA. (for defendant) Karen P. Gaster, Paul J. Sopher, Lead Attorneys, Rubin Fortunato & Harbison, P.C., Paoli, PA; Maria V. Martin, Lead Attorney, Rubin & Associates, P.C., Paoli, PA.
