The 10th U.S, Circuit Court of Appeals has affirmed a ruling of a district court that a student who was raped by an athlete and subsequently sued the University of Tulsa, pursuant to Title IX, “did not show that the university acted with deliberate indifference” when it failed “to adequately investigate a prior rape report” involving the athlete.
The incident in question occurred on Jan. 27, 2014. Plaintiff Abigail Ross reported the alleged rape of her daughter to TU officials on Feb. 11, 2014. TU scheduled a disciplinary hearing for the alleged assailant, Patrick Swilling, Jr., based on the plaintiff’s complaint. After the plaintiff’s attorney allegedly advised TU that Title IX required it to conduct an investigation prior to any disciplinary hearing, TU vacated the hearing date and conducted a brief investigation. On March 24, 2014, TU Dean Yolanda Taylor conducted a hearing, during which the plaintiff and Swilling testified. Taylor found in favor of Swilling and ruled that he would not suffer any discipline or other consequences. Taylor did not consider reports of prior assaults by Swilling at his previous school, the College of Southern Idaho, in reaching her decision, according to the plaintiff. She further alleged that TU knew of “at least one, and as many as three prior allegations of sexual assault and misconduct perpetrated by Swilling and permitted Swilling to continue to attend TU.”
After the hearing, the plaintiff claimed that she became terrified of attending TU and withdrew from classes. In June 2014, TU announced that Swilling would continue to attend TU and would play for the football and basketball teams.
Ross made the following claims against TU:
(1) violation of Title IX, 20 U.S.C. § 1681(a), based upon TU’s deliberate indifference to prior sexual violence by Swilling and creation of a substantial risk that Swilling would sexually harass or assault other female students at TU;
(2) violation of Title IX, 20 U.S.C. § 1681(a), based upon TU’s deliberate indifference to the plaintiff’s report of rape, including conducting a “gender biased investigation of the plaintiff’s report of sexual harassment/rape by choosing to investigate the plaintiff’s consensual sexual history and refusing to investigate three prior reports of rape alleged to have been committed by Swilling” and failing to consider prior allegations during the disciplinary hearing;
(3) negligence per se, based upon TU’s violation of Title IX and its implementing regulations;
(4) negligence, based upon TU’s breach of a duty to protect the plaintiff;
(5) negligent supervision, based upon its failure to implement measures to adequately supervise Swilling; and
(6) intentional infliction of emotional distress.
In support of her claims, the plaintiff presented two theories to the district judge.
The first “involves what happened before the alleged rape: that the university acted with deliberate indifference by failing in 2012 to adequately investigate reports that Mr. Swilling had raped another student (J.M.).
“The second theory involves what happened after the alleged rape of Ms. Ross. After Ms. Ross reported the rape, the university conducted a student-conduct hearing. The purpose was to determine whether Mr. Swilling had violated university policy by raping Ms. Ross. By the time of the hearing, university officials had learned of prior reports of sexual harassment committed by Mr. Swilling. But these reports were excluded at the hearing. Ms. Ross alleges that exclusion of these reports constituted deliberate indifference on the part of the university.”
After the district court granted summary judgment to the university, the plaintiff appealed.
The 10th Circuit opined that “on the first theory, the dispositive issue is whether a fact-finder could reasonably infer that an appropriate person at the university had actual notice of a substantial danger to others. On the second theory, we must determine whether a reasonable fact-finder could characterize exclusion of the prior reports as deliberate indifference.
“We conclude that both theories fail as a matter of law. On the first theory, campus-security officers were the only university employees who knew about reports that J.M. had been raped. Based on Ms. Ross’s arguments, a reasonable fact-finder could not infer that campus-security officers were appropriate persons for purposes of Title IX. And on the second theory, there is no evidence of deliberate indifference by the University of Tulsa. The university excluded prior reports of sexual harassment based on a reasonable application of university policy. Thus, we affirm the award of summary judgment to the university.
Abigail Ross v. University of Tulsa; 10th Cir.; No. 16-5053, 2017 U.S. App. LEXIS 10835; 6/20/17
Attorneys of Record: (for plaintiff) John Clune, Hutchinson Black and Cook, LLC, Boulder, Colorado (Lauren E. Groth, Hutchinson Black and Cook, LLC, Boulder, Colorado, J. Spencer Bryan, and Steven J. Terrill, Bryan & Terrill Law, PLLC, Tulsa, Oklahoma, with him on the briefs). (for defendant) John David Lackey, Paul & Lackey, P.C., Tulsa, Oklahoma.
