A federal judge from the Northern District of Oklahoma dismissed a claim of negligence brought by a former University of Tulsa (TU) student, who alleged that the university did not do enough to prevent her from being allegedly raped by one of its football players, Patrick Swilling, Jr.
The incident in question occurred on January 27, 2014. Plaintiff Abigail Ross reported the alleged rape to TU officials on February 11, 2014, and TU scheduled a disciplinary hearing for Swilling based on the plaintiff’s complaint. After Plaintiff’s counsel 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. The plaintiff 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 Plaintiff’s report of rape, including conducting a “gender biased investigation of Plaintiff’s report of sexual harassment/rape by choosing to investigate 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 Plaintiff;
(5) negligent supervision, based upon its failure to implement measures to adequately supervise Swilling; and
(6) intentional infliction of emotional distress.
TU moved to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6).
In weighing the arguments, the court zeroed in on the negligence per se doctrine. The following elements must be shown in order to establish a negligence per se claim: (1) the claimed injury is of a type intended to be prevented by the statute or regulation; (2) the injured party is a member of the class intended to be protected by the statute or regulation; and (3) the claimed injury was caused by the statutory or regulatory violation. Howard v. Zimmer, Inc., 2013 OK 17, 299 P.3d 463, 467 (Okla. 2013)
The court noted that in the instant case, the plaintiff’s claim for negligence per se is premised upon TU’s alleged violation of Title IX and its implementing regulations. “The plaintiff has not specified in her complaint or response brief which ‘implementing regulations’ TU allegedly violated. It is therefore unclear whether the plaintiff’s theory is that TU was negligent per se based upon its violation of Title IX’s non-discrimination mandate, see 20 U.S.C. § 1681(a), or its violation of some specific provision of Title IX’s regulatory scheme, see 34 C.F.R. § 106.1, et seq. “
The court first reviewed the nondiscrimination mandate that accompanies Title IX.
“The Supreme Court has held that Title IX may also be enforced through a private right of action for money damages, but only when the recipient of federal funds has actual notice of the alleged discrimination and responds with deliberate indifference to that discrimination. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998); see also Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 642, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999) (adopting same standard for student-on-student sexual harassment). Thus, while a private right of action exists, it requires more than mere negligence by school officials. See id. at 641.
Turning to the plaintiff’s argument around Title IX’s “implementing regulations,” the court found that the plaintiff “failed to identify any specific Title IX regulation that has been breached. This theory of negligence per se theory is insufficiently pled because TU does not have notice of what Title IX regulation is at issue.”
Abigail Ross v. University of Tulsa; N.D. Ok.; Case No. 14-CV-484-TCK-PJC, 2015 U.S. Dist. LEXIS 86375; 7/2/15
Attorneys of Record: (for plaintiff) John Spencer Bryan, LEAD ATTORNEY, Bryan & Terrill Law, PLLC, TULSA, OK; John Clune, LEAD ATTORNEY, Hutchinson Black and Cook LLC, BOULDER, CO; Steven James Terrill, LEAD ATTORNEY, Bryan & Terrill Law, PLLC, TULSA, OK. (for defendant) Amy Nicole Bennett, John David Lackey, John Richard Paul, LEAD ATTORNEYS, Paul & Lackey PC, TULSA, OK; J Patrick Cremin, Johnathan Louis Rogers, LEAD ATTORNEYS, Hall Estill Hardwick Gable Golden & Nelson (Tulsa), TULSA, OK.
