Doe v. University of Kentucky
Filing
12
MEMORANDUM OPINION AND ORDER: Defendant's 5 Motion to Dismiss for Failure to State a Claim is DENIED. Signed by Judge Joseph M. Hood on 8/31/2016. (STC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JANE DOE
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Plaintiff,
v.
UNIVERSITY OF KENTUCKY
Defendant.
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Action No. 5:15-cv-00296-JMH
MEMORANDUM OPINION
AND ORDER
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This matter involves allegations by Plaintiff, “Jane Doe,”
that Defendant, the University of Kentucky, violated Title IX of
the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et
seq., following her alleged on-campus, student-on-student sexual
assault in October 2014. [DE 1]. Defendant has moved the Court to
dismiss the Complaint, or alternatively, to abstain from this
matter [DE 5]. Plaintiff responded to the motion [DE 9], Defendant
replied [DE 10], and the motion is ripe for decision.
Having
reviewed the pleadings, and being otherwise adequately advised,
the Defendant’s motion will be denied.
I.
FACTUAL BACKGROUND
Plaintiff reported she was forcibly raped by another student
(“Student
B”)
on
October
2,
2014,
in
her
dorm
room
on
the
University of Kentucky (the “University”) campus.1 On October 3,
2014, the University issued a “no contact order” to Student B,
suspended him from the University, and convened a hearing panel on
October 8, 2014, to initiate a student disciplinary proceeding
against Student B.
At the October 8, 2014 disciplinary proceeding, the hearing
panel
found
University
Student
B
responsible
Administrative
Regulation
and
in
§
6.2:
violation
Policy
on
of
the
Sexual
Assault, Stalking, and Relationship Violence (“A.R. § 6.2”), and
the University provided notice of the decision by the hearing panel
to Plaintiff. On October 15, 2014, Plaintiff states she withdrew
from her dual enrollment at the Bluegrass Community and Technical
College (“BCTC”) and the University, due to the emotional trauma
from the assault.
Prior to the hearing, Student B turned himself in to the
custody of local law enforcement, pending criminal charges arising
from the same incident. Student B requested a one-day continuance
of the student disciplinary proceeding because he was in state
custody on the schedule hearing date.
1
The hearing panel denied
Sometime after the alleged assault, a pair of students visited Plaintiff’s
dorm room to inquire if she was raped. Also, two comments were posted on a
picture that Plaintiff had uploaded to her Instagram account. Specifically, the
social media comments stated, “Your ex got arrested for rape charges”, and
asked, “Dnt [sic] u [sic] know him?” These facts, while not determinative of
the outcome, are listed here to be considered among the various facts Plaintiff
has pled.
2
his request, and consequently, Student B was not present for his
student disciplinary proceeding on October 8, 2014.
Student B
appealed the decision of the hearing panel to the University
Appeals Board (the “UAB”). The UAB issued a written ruling on
December 4, 2014, finding violations of Student B’s due process
rights by the hearing panel and setting aside the hearing panel’s
decision.
At a second hearing on December 18, 2014, a hearing
panel again found Student B in violation of A.R. § 6.2.
On December 28, 2014, Student B filed an appeal of his second
hearing,
and
in
a
February
9,
2015
opinion,
citing
the
inadmissibility of recorded testimony introduced at the second
hearing, the UAB reversed the decision of the second hearing panel
and
ordered
a
third
hearing
for
March
26,
2015.
Meanwhile,
Plaintiff had begun classes in the spring semester at a different
BCTC campus but “[t]he notice of a third hearing caused Jane Doe’s
mental health to deteriorate further and was so time consuming
that” she withdrew from classes again on March 12, 2015 [DE 1,
Comp. ¶ 32].
At
the
third
hearing
the
panel
again
found
Student
B
responsible for violating A.R. § 6.2. Asserting a number of errors
by the hearing panel in the third disciplinary proceeding, Student
B appealed the hearing panel’s decision of the third hearing panel.
In its June 9, 2015 ruling the UAB determined Student B was
improperly prohibited from whispering with his advisor at the third
3
hearing, among other procedural violations.
The record does not
reflect that the University took any further action in this matter
after the June 9, 2015 UAB opinion.
Plaintiff filed this action
on October 1, 2015, seeking injunctive relief and damages.
II.
STANDARD OF REVIEW
In ruling on Defendant’s Rule 12(b)(6) motion, the Court must
“construe
the
complaint
in
the
light
most
favorable
to
the
plaintiff, accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Jones v. City of Cincinnati,
521 F2d 555, 559 (6th Cir. 2008). The Court is not bound to accept
as true “recitals of the elements of a cause of action, supported
by mere conclusory statements[.]” Ashcroft v. Iqbal, 556 U.S. 662,
678. “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting
Twombly,
550
U.S.
at
570).
“A
claim
has
facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556).
III. TITLE IX DAMAGES
Plaintiff
alleges
she
suffered
a
loss
of
educational
opportunities, financial harm, and emotional distress as a result
of the University’s poor handling of the allegations against
4
Student B.
In Davis, Next Friend of LaShonda D. v. Monroe County
Bd. of Educ., 526 U.S. 629, 639 (1999), the Supreme Court held
that a school district’s “failure to respond to student-on-student
harassment in its schools can support a private suit for money
damages” against the school.
The defendant concedes sovereign
immunity is abrogated for Title IX claims against the University
for injunctive relief and money damages [Def.’s Mem. Supp. Mot.
Dismiss, pg. 16-17, DE 5-1].
See Franks v. Kentucky Sch. for the
Deaf, 142 F.3d 360, 363 (6th Cir. 1998)(holding that “. . .
Congress made its intention to abrogate the states' Title IX
immunity unmistakably clear, and it had the authority to do so
pursuant to Section 5 of the Fourteenth Amendment . . .” where a
student sued a school district for failure to take action that
could have prevented her rape by another student.)
The defendant
argues that to the extent Plaintiff makes any claims that are
outside of this abrogation of immunity under Title IX, those claims
against the University are barred by Eleventh Amendment sovereign
immunity.
Upon review of the Complaint it appears the plaintiff
does not make any such claims.
There are three prima facie elements for a Title IX claim
arising
from
student-on-student
sexual
harassment:
(1)
the
harassment is so severe, pervasive, and objectively offensive that
it deprives the Plaintiff access to educational opportunities or
benefits provided by the university; (2) the funding recipient had
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actual knowledge of the sexual harassment; and (3) the funding
recipient was deliberately indifferent to the harassment. Soper v.
Hoben, 195 F.3d 845, 854 (6th Cir., 1999) (summarizing the holding
in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999)).
The
parties do not dispute that the University of Kentucky is a
recipient of federal funding and financial assistance for purposes
of 20 U.S.C. § 1681 (a).
Sexual assault of the violent nature described in plaintiff’s
complaint "obviously qualifie[s] as being severe, pervasive, and
objectively offensive sexual harassment that could deprive [the
victim] of access to the educational opportunities provided by her
school" Soper, 195 F.3d 845, 855 (6th Cir. 1999).
Thus, Plaintiff
has satisfied the first element of a Title IX claim as it relates
to the assault.
To demonstrate Defendant’s actual knowledge of the harassment
in a case based on a sexual assault, a plaintiff may show the
university
had
preexisting
knowledge
of
the
harasser’s
prior
misconduct. See, e.g., Williams v. Bd. of Regents of the Univ.
System of Georgia, 477 F.3d 1282, 1293 (11th Cir. 2007) (finding
that the defendants' "preexisting knowledge of [the harasser]'s
past sexual misconduct"--committed against people other than the
plaintiff--"is relevant when determining" whether the plaintiff
had stated a claim under Title IX). Plaintiff does not allege that
anyone
at
the
University
possessed
6
any
actual
knowledge
of
misconduct by Student B prior to October 2014.
The University
admits it had actual knowledge of the alleged rape of Plaintiff
when she reported it on October 2, 2014 and all of Plaintiff’s
claims relate to the University’s actions after the alleged rape.
The most difficult question before the Court, however, is
whether the University’s actions, as set forth in Plaintiff’s
Complaint, sufficiently demonstrates deliberate indifference on
behalf
of
the
University
to
withstand
Defendant’s
motion
to
dismiss.
Defendant responded immediately to Plaintiff’s allegation of
sexual assault by issuing a no contact order and suspending Student
B the day after Plaintiff reported the assault. Additionally,
Defendant scheduled the first disciplinary hearing just six days
after the reported assault to determine whether Student B’s conduct
violated A.R. § 6.2.
It was at this point, however, that the University’s handling
of this matter took a dramatic downhill turn.
It is undisputed
the University bungled the disciplinary hearings so badly, so
inexcusably, that it necessitated three appeals and reversals in
an
attempt
to
remedy
the
due
2
process
deficiencies.2
The
This is not the first time that the Court has been made aware of Constitutional
deprivations in the University’s student disciplinary proceedings. See Doe v.
Hazard, 152 F.Supp.3d 859, (E.D. Ky. Jan. 2015). While those deprivations have
been corrected by the University’s internal appellate process, the Court
suggests it is time for the University to get its act together. The Court hopes
the University’s General Counsel, his staff, and the many lawyers at the college
of law can somehow come up with a procedure that does not result in multiple
7
disciplinary hearings were plagued with clear errors, such as
conducting a hearing without Student B’s presence, and refusing to
allow Student B to whisper to an advisor during the proceeding (as
only two examples of several obvious errors), that resulted in
multiple appeals spanning months, profoundly affected Plaintiff’s
ability to obtain an education at the University of Kentucky (the
Court suspects this lengthy process profoundly affected Student B
as well).
The facts, up to and including the third UAB decision, are
insufficient to show “deliberate indifference” on the part of the
University.
indifference
“[A] plaintiff may demonstrate defendant's deliberate
to
discrimination
‘only
where
the
recipient's
response to the harassment or lack thereof is clearly unreasonable
in light of the known circumstances.’
Vance v. Spencer Cty. Pub.
Sch. Dist., 231 F.3d 253, 260 (6th Cir. 2000).
The Court agrees
with Defendant that Student B has a right to due process and a
procedurally
sound
disciplinary
hearing.
Although
it
was
a
protracted process due to the errors in the hearings, the facts
pled show the University took significant action and did not act
with deliberate indifference regarding Plaintiff’s sexual assault
allegations during the three hearings and appeals.
appeals on blatant constitutional deprivations in disciplinary hearings in the
future.
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The Court holds, however, that Plaintiff has pled sufficient
facts to render her claim of deliberate indifference plausible on
its face regarding the University’s actions—or, more accurately,
lack of action—after the third appeal decision.
According to
Plaintiff’s October, 10, 2015 Complaint and January 27, 2016
Memorandum in Support of Plaintiff’s Response to the Motion to
Dismiss, the University had not scheduled a fourth disciplinary
hearing as of those dates.
The University has not offered any
explanation for its failure to schedule a fourth hearing (at least,
as of January 2016) or otherwise bring this matter to a final
resolution.
Even if the University viewed this lawsuit as a bar
to scheduling the fourth disciplinary hearing, that does not
explain the four months between the third UAB decision and the
filing of the Complaint in this case, in which the University
apparently took no action.
According to Defendant, this matter is
still a pending disciplinary proceeding at the University [Def.’s
Mem. Supp. Mot. Dismiss, p. 19, DE 5-1].3
Plaintiff alleges, upon information and belief, that the
failure to schedule a fourth hearing is because the University is
hesitant to interrupt Student B’s football schedule at his new
school.
Viewing these allegations as true, as the Court must in
evaluating a Rule 12(b)(6) motion, Plaintiff has pled “sufficient
3
It is ironic that the University would not delay Student B’s disciplinary
hearing for one day when he was in jail, yet allow it to languish for so long
after the third reversal.
9
factual matter” to render the legal claim plausible: that the
University was deliberately indifferent to her complaint of sexual
assault on campus by failing to take any action (for whatever
reason) after the third appeal to conclude or finalize this matter.
See Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 194950, (2009).
Failing to take any action to conclude this matter is
“clearly unreasonable.”
Vance at 260.
IV.
ABSTENTION
Defendant briefly argues in its motion that pursuant to
Younger v. Harris, 401 U.S. 37 (1971), this Court must abstain
from proceeding with this case. The Court disagrees and holds
Younger abstention does not apply in this circumstance.
Younger requires the Court to abstain from enjoining state
civil proceeding where a pending proceeding is akin to a criminal
prosecution or implicates a state’s “interest in enforcing the
orders and judgements of its courts.” Sprint Communications, Inc.
v. Jacobs, 134 S.Ct. 588 (2013); Huffman v. Pursue, Ltd., 420 U.S.
592 (1975); Pennzoil Co. v. Texaco Inc., 481 U.S. 1 (1987). The
Younger doctrine only includes: (1) state criminal prosecutions;
(2) civil enforcement proceedings; and (3) and “civil proceedings
involving certain orders that are uniquely in furtherance of the
state courts’ ability to perform their judicial functions.” New
Orleans Public Service Inc. v. Council of the City of New Orleans,
491 U.S. 350, 367-368.
The University’s disciplinary process is
10
a quasi-judicial proceeding akin to a criminal prosecution.
See
Doe v. Hazard, 152 F.Supp.3d 859, (E.D. Ky. Jan. 2015) (in which
this Court provides a detailed analysis of this issue where
Plaintiff requested injunctive relief to enjoin the University of
Kentucky from continuing its disciplinary action).
The Younger abstention doctrine applies when, “there are
state proceedings that are (1) currently pending; (2) involve an
important
state
plaintiff
with
interest;
an
adequate
and
(3)
will
opportunity
provide
to
raise
the
federal
his
or
her
constitutional claims.” Habic v. City of Dearborn, 331 F.3d 524,
530
(6th
Cir.
2003).
Based
on
the
uncontroverted
facts
in
Plaintiff’s Complaint, the Court finds the disciplinary hearing is
currently pending (and Defendant admits the same).
The proceeding
involves important state interests: enforcement of the school’s
sexual assault policy and safeguarding Student B’s due process
rights.
It is the third element of Younger abstention, however, in
which this case does not neatly fit.
It is not the “federal
plaintiff” (Jane Doe) in this case who would raise constitutional
challenges to the proceedings, but the accused.
It is clear that
Student B has the opportunity to raise constitutional challenges
to the University disciplinary proceedings, as he has already done
so several times and prevailed.
have
any
constitutional
claims
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It appears Plaintiff does not
that
could
be
raised
in
the
disciplinary proceeding, as the rights afforded the accused are
not extended to victims, and her claims in this matter are against
the University for monetary damages arising out of its actions,
not the alleged assault by Student B.
The Court concludes that the facts of this case do not fit
into the framework of Younger abstention.
Plaintiff requested
“[i]njunctive relief to be determined at trial requiring UK to
comply with federal law under Title IX.”
[DE 1, Comp. pg. 11].
The Court is hesitant to intervene at this juncture; however,
because Plaintiff has not requested immediate preliminary relief,
the issue of whether injunctive relief is appropriate may be
decided at a later time.
For the reasons stated above, the Court
will deny Defendant’s motion to dismiss Plaintiff’s claims for
equitable relief.
V.
CONCLUSION
The Court being sufficiently advised, and for the foregoing
reasons, IT IS ORDERED that Defendant’s Motion to Dismiss [DE 5]
is DENIED.
This the 31st day of August, 2016.
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