September 17, 2019
Higher Education Alert
Higher Education Alert
Author(s): Steven M. Richard
In Title IX lawsuits concerning alleged stalking, the questions of when actual notice occurred and whether a response was timely and proper are the vital determinations.
Stalking complaints present challenges in the compilation of evidence during an investigation (such as acquiring text messages or building security videos) and implementation of appropriate interim measures (such as class or housing accommodations and no contact orders). Threat assessments often entail evolving considerations impacting and altering the scope and timing of responsive measures.
In a recent ruling, the United States Court of Appeals for the Eighth Circuit affirmed a judgment in favor of Logan University d/b/a Logan College of Chiropractic (“Logan”) in a suit brought by two former female students who claimed that the university failed to protect them against a stalking and harassing male student. The two plaintiffs, who ultimately left the university because of their disagreement with its responsive actions, asserted Title IX and state premises liability and negligence claims in their suit. Affirming a judgment in Logan’s favor, the Eight Circuit’s three-justice panel ruled unanimously that both students’ Title IX claims failed as a matter of law. One student’s Title IX claim failed because she could not prove that Logan had actual knowledge of the alleged harassment, while the other’s claim failed because the university’s responsive actions after receiving notice were not clearly unreasonable. The panel split on whether the students were entitled to a trial on their state law claims, with the majority holding in Logan’s favor that summary judgment was proper. Pearson v. Logan University, No. 18-2764 (8th Cir. Sept. 4, 2019).
In September 2015, Morgan Pearson (“Pearson”) enrolled at Logan. On December 8, 2015, she reported to a dean that a male student, FS, often appeared in the university library where she worked and stared at her, and he similarly made her feel uncomfortable in a chemistry lab. She also reported that FS once pressed himself against her in a cadaver lab. The dean conveyed Pearson’s allegations to another dean and the Title IX coordinator, Shelley Sawalich (“Sawalich”).
During a December 9 meeting, Pearson recounted her allegations to Sawalich, provided the names of witnesses, and stated that she was “terrified of being raped.” Pearson acknowledged Sawalich’s assessment that the November incident in the cadaver lab may have been an accident. Sawalich viewed Pearson’s report to constitute alleged harassment and stalking, advising the student that she was required to investigate FS’s conduct. Sawalich gave Pearson the option to remain anonymous, which the student elected. Sawalich was unable to commence her investigation before the university’s holiday recess, but requested that Pearson provide a written statement by December 14.
Pearson did not submit her written statement until December 21, which detailed FS’s habit of showing up in her presence, as well as sending her harassing test messages. She reported that FS, who is in his early thirties, suggested that they could study and drink together, which troubled Pearson who was underage and did not drink. Pearson’s complaint did not mention the incident in the cadaver lab. Sawalich acknowledged the receipt of the statement later that day, indicating that she would meet with FS after the holiday break and that Logan’s ability to investigate could be limited by Pearson’s desire for anonymity.
In January 2016, Sawalich met with FS twice to explain the complaint against him by another student who wished to remain anonymous. FS denied any inappropriate behavior. Sawalich, who preserved Pearson’s anonymity, instructed FS on Logan’s anti-retaliation policy. Shortly thereafter, Pearson emailed Sawalich requesting an update and indicating that she still felt unsafe on campus. Sawalich informed Pearson that FS denied the allegations and that she had not yet interviewed any witnesses to preserve Pearson’s anonymity.
On February 1, Pearson complained to a Logan senior administrator about Sawalich’s handling of the investigation. A few days later, Pearson met with the administrator and Sawalich and elected to drop her anonymity to allow Sawalich to proceed with the investigation. They agreed that FS would be instructed to stay out of the library and have no contact with Pearson.
During February, Sawalich conducted the investigation. She met with a freshman student named Kirsten Kilpatrick (“Kilpatrick”), who reported that she was subjected to harassing conduct by FS at the start of the academic year, including his request for her phone number followed by frequent text messages. While Kilpatrick described FS as “creepy,” she had not previously complained of his behavior and did not report any ongoing harassment.
Sawalich instructed FS that he was prohibited from the library and having any contact with Pearson. Sawalich also requested that Pearson provide the text messages referenced in her written statement. Pearson reported that there were “countless” times that she told FS to leave her alone, which he ignored. Pearson later informed Sawalich that she was unable to retrieve the requested text messages.
In early March, Pearson completed the investigation report, which she forwarded to Pearson, FS, and Logan’s Honor Council, which was responsible for adjudicating Pearson’s complaint. The Honor Council met after reviewing the report, Sawalich’s interview summaries, and the responses to the report by Pearson and FS. On March 11, the Honor Council concluded that there was insufficient evidence to hold FS responsible. Upon notification of the decision, Sawalich instructed Pearson and FS to have no personal contact going forward.
After Pearson filed an appeal, the appeals officer stayed her decision, affording Pearson time to attempt to obtain phone records showing the text messages that FS sent her. As the appeal ensued, Sawalich reminded Pearson to report any violation of the no-contact order and offered her the opportunity to switch to another work-study position outside of the library. Pearson notified the appeals officer that she could not obtain the text messages. The appeals officer affirmed the result, finding that the “process outlined in [Logan’s Harassment Policy] was followed and all evidence provided was reviewed by the Honor Council.”
Subsequently, Pearson and Kilpatrick transferred to another university. Both sued Logan asserting Title IX and state law premises liability and negligence counts, claiming that the university failed to adequately respond to their complaints against FS’s stalking and harassing conduct. Logan moved for summary judgment, which the district court granted entirely. Logan and Pearson appealed to the Eighth Circuit.
In a Title IX lawsuit alleging student-on-student sexual harassment, the United States Supreme Court held in Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274, 290-91(1998), that a defendant university will only be liable where it acted with a deliberate indifference to a known act of discrimination which occurred under its control. The Eighth Circuit ruled that Kilpatrick’s Title IX claim failed because Logan had no knowledge of the alleged harassment, namely frequent texts dating back several months earlier, until Kilpatrick disclosed her allegations during the investigation of Pearson’s complaint. In fact, during the interview, Kilpatrick mentioned that she “was fine now.” Her after-the-fact notice of the limited interaction was insufficient to satisfy Title IX’s actual knowledge requirement.
Regarding Pearson’s reporting of alleged stalking, the Eighth Circuit focused on the Title IX deliberate indifference analysis. A school can be held to have been deliberately indifferent when its response to harassment or lack thereof was clearly unreasonable in light of the known circumstances. A student’s dissatisfaction with a school’s response does not mean that the school acted with deliberate indifference.
The undisputed evidence showed that Logan promptly and properly investigated Pearson’s reporting of the alleged stalking. Although the accused student was ultimately held to be not responsible, Logan instituted a continuing no contact order and gave Pearson the option to change her work-study position. Pearson did not subsequently report any no-contact order violation and did not accept the alternative employment option.
Pearson contended that Sawalich unreasonably delayed the investigation by not contacting witnesses until after Pearson dropped her desire for anonymity. The Eighth Circuit disagreed, noting that the Title IX Coordinator acted reasonably out of respect and within the scope of the student’s desire for confidentiality. After Pearson allowed her name to be disclosed, Sawalich proceeded promptly with the investigation, which included instructions to FS to stay out of the library and have no contact with Pearson.
The Eighth Circuit found no deliberate indifference in the Honor Council’s process and determination. The panelists received not only Sawalich’s investigative report, but also the Title IX Coordinator’s summaries of her interviews and the parties’ responses to the report, allowing the panelists to weigh all available evidence. The panelists were trained on Title IX and acted within their discretion. As further evidence of the lack of deliberate indifference, the appeals officer gave Logan the chance to submit text messages referenced as part of her complaint.
The Eighth Circuit panel split 2–1 regarding the plaintiff’s state law claims of premises liability and negligence. The analysis differed on whether a college has a legal duty to protect its students, focusing particularly on whether a special relationship exists where “one party entrusts another for protection and relies upon that party to provide a place of physical safety.” Under Missouri law, a special relationship can be found where a university is aware of a person’s violent tendencies or where incidents of violent crimes are sufficiently numerous to constitute notice. The majority found that Pearson and Kilpatrick failed to prove the existence of a special relationship under either scenario. A dissenting justice found that Pearson’s reporting presented sufficient facts that she was subjected to a consistent pattern of harassment. Viewing the evidence in a light most favorable to the plaintiffs, the dissenting justice concluded that it established, just barely, the existence of the university’s legal duty to protect the students against FS’s conduct.
Reports of alleged stalking raise dynamics of student relationships that present vexing evidentiary and remedial challenges for administrators. The Title IX Coordinator and responsible university officials must analyze carefully the alleged underlying course of conduct to identify the risks and prevent escalation, while protecting the rights of the accused to a prompt and equitable investigation and determination. Each reported incident must be documented and evaluated carefully to determine whether prior responsive measures require modification during the course of an investigation, particularly stricter prohibitions against contact and adjustments of class schedules or housing accommodations.
Campus awareness promoting the identification and reporting of stalking is vital to ensure proactive preventative and remedial efforts. Colleges and universities must have cohesive supportive and conduct systems to respond promptly to alleged stalking, which may also be subject to a concurrent criminal investigation. While a complainant’s request for anonymity may limit the school’s ability to investigate, it does not prevent the obligation to do so and minimize any hostile environment to the fullest extent possible.
As the Eighth Circuit’s ruling evidences, deliberate indifference is a high evidentiary requirement for a litigant to prove in a Title IX lawsuit challenging a school’s response. In Title IX lawsuits pertaining to stalking complaints, documentation of precisely what the school knew and when will shape the judicial determination of whether the school’s responses (particularly interim measures) were reasonable in light of the known circumstances. Documentation regarding the conducting and evaluation of a complete and careful threat assessment will often be vital evidence in the defense of a Title IX lawsuit.
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