Title IX / College Discipline Practice - Warshaw Burstein LLP | <em >Doe v. Baylor Univ.</em >, 2018 U.S. Dist. LEXIS 169710 (W.D. Tex. Sep. 29, 2018)
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  • Doe v. Baylor Univ., 2018 U.S. Dist. LEXIS 169710 (W.D. Tex. Sep. 29, 2018)
    Four Jane Doe plaintiffs alleged that while they were students at Baylor University they were sexually assaulted by another student, and when they reported their assaults to Baylor, the school provided little to no assistance in response to their reports.  The Jane Does alleged that Baylor discouraged victims from reporting their assaults; failed to adequately investigate assaults; misled and lied about options for reporting and accommodations; and obstructed access to medical and mental health treatment.
    For example, one of the plaintiffs alleged she was raped by another Baylor student in March 2016.  When she met with the Title IX office, she was advised that reporting to the police would mean a 5-year investigation which could derail her plans to study abroad, and that “if her assailant graduated prior to the conclusion of a police investigation, the University would not be able to punish him.”  Based on this advice, Doe chose to only file a complaint with the Title IX office.  After he complaint was filed, her assigned investigator went on vacation, leaving the case untouched for a week.  Doe requested academic support and counseling from the Title IX office to help her deal with the panic attacks and anxiety she was experiencing as a result of the assault.  The office referred Doe to an outside counselor who did not take her insurance, and who Doe could not afford; the office did not refer her to the Advocacy Center which offered free counseling.  Doe went from being a Dean’s List student to failing several courses and losing her scholarship following the assault.  In response to her struggles, the Title IX office encouraged Doe to “move on, push through, and to get over it.”  Eventually, Doe’s assailant was found responsible but the sole consequence for her assailant was a no-contact order for the duration of his time at Baylor.  When Doe appealed the decision, Baylor suspended her for three months.
    The court denied Baylor’s motion to dismiss, holding that the facts alleged were sufficient to support a Title IX claim for deliberate indifference and the existence of a policy of intentional discrimination that substantially increased the risk of being sexually assaulted.  For the deliberate indifference claim, Plaintiffs needed to show Baylor failed to respond to known peer harassment in a manner that was not clearly unreasonable.  The allegation that Baylor responded to reports of sexual assault by discouraging Plaintiffs from reporting their assaults, misleading them about their options, and obstructing access to medical and mental health treatment constituted a clearly unreasonable response by Baylor.  In determining whether Baylor’s response subjected Plaintiffs to further harassment, the court followed Davis, which defined “subject” as making a student vulnerable to harassment.  This meant even the Plaintiffs who did not allege specific incidents of harassment after they reported their assault could bring a claim that they were subjected to further harassment.  Where a student withdraws from the University, they can still argue the school continued to subject them to discrimination because they were effectively denied the opportunity to continue to attend the school.
    In order to succeed on the intentional discrimination claim, Plaintiffs needed to show they were harmed by Baylor official policy of discrimination.  In support of this claim, Plaintiffs alleged that “high-level, policy-setting Baylor employees and officials did not cause any change in the sexually hostile environment at the University even after receiving detailed, numerous reports of sexual assault.”  Drawing analogies to municipal cases, the court held there was sufficient evidence to support the allegation that Baylor’s mishandling of sexual assault reports was the result of an official policy or custom, and that this policy created a “heightened risk of sexual assault throughout the university’s student body.”
    CATEGORY: Discrimination