Doe v. Bd. of Supervisors of Univ. of La. Sys.

650 F.Supp.3d 452

Jane DOE v. BOARD OF SUPERVISORS OF the UNIVERSITY OF LOUISIANA SYSTEM, et al.

CIVIL ACTION NO. 22-00338-BAJ-SDJ

United States District Court, M.D. Louisiana

Signed January 10, 2023

Donald J. Cazayoux, Jr., John Lane Ewing, Jr., Cazayoux Ewing, LLC, Baton Rouge, LA, Chloe M. Neely, Pro Hac Vice, Monica Beck, Pro Hac Vice, The Fierberg National Law Group, PLLC, Traverse City, MI, for Jane Doe.

Brandon DeCuir, Linda Law Clark, Monica E. Gant, DeCuir, Clark & Adams, LLP, Baton Rouge, LA, Catherine Saba Giering, Andrew Blanchfield, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Board of Supervisors of the University of Louisiana System.

Christine S. Keenan, Elizabeth Bailly Bloch, Mary Kathryn Gimber, Eric Ray Miller, The Kullman Firm, Baton Rouge, LA, for Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.

Joy C. Rabalais, Grant R. Schexnailder, Homer E. Barousse, III, Jordan John Henagan, Kelly Elizabeth Heinen, Borne, Wilkes, & Rabalais, L.L.C., Lafayette, LA, for Lafayette City-Parish Consolidated Government.

RULING AND ORDER

BRIAN A. JACKSON, UNITED STATES DISTRICT JUDGE

Plaintiff was raped in September 2018, when she was a student at Louisiana Tech University. Her attacker—known to her only as "Daniel"—was also a Tech student, having recently transferred from University of Louisiana Lafayette ("UL Lafayette"). At the time, Plaintiff did not know that "Daniel" was a sexual predator who had been reported for rape and other sexual misconduct on five prior occasions.

Allegedly, however, the Defendants knew "Daniel's" identity—Victor Daniel Silva—and his past. The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("LSU") allegedly knew of Silva because Silva began his college career at LSU, and was banned from LSU's Baton Rouge campus after two female LSU students separately reported him for rape.

The Board of Supervisors of the University of Louisiana System ("ULS")—which supervises both UL Lafayette and Louisiana Tech—allegedly knew of Silva because after his stint at LSU, Silva transferred repeatedly between UL Lafayette and Tech, and was placed on academic probation after he was arrested for rape.

The Lafayette City-Parish Consolidated Government ("LCG") allegedly knew of Silva because during Silva's time at UL Lafayette, three separate women—two UL Lafayette students and one local community college student—reported him for sex crimes to the Lafayette Police Department ("Lafayette PD" or "LPD").

Federal law requires publicly-funded universities to immediately and effectively investigate reports of sexual assault to eliminate the threat and prevent its reoccurrence. Louisiana law requires coordinated intervention among public universities and local law enforcement to identify and remove sexual offenders from college campuses. Yet, despite five alleged assaults, a rape arrest, and banishment from LSU, Silva was not suspended, expelled, criminally prosecuted, or even meaningfully investigated. Instead, in the face of new allegations, Silva was allowed to transfer repeatedly among LSU, UL Lafayette, and Louisiana Tech. Even after Plaintiff reported her rape to Louisiana Tech—Silva's sixth alleged assault—Silva transferred back to UL Lafayette and graduated with a clean academic record.

Defendants' knowledge of Silva came to light for the first time in May 2021, when USA Today published a damning article detailing Silva's predatory sexual misconduct and Defendants' failure to respond to the same.¹ One year later, Plaintiff filed this lawsuit alleging violations of Title IX of the Education Amendments of 1972, 20 U.S.C § 1681, and negligence. Now LSU, ULS, and LCG each move to dismiss Plaintiff's claims, arguing that they are implausible, untimely, or otherwise not actionable. (Doc. 22, Doc. 23, Doc. 40). Plaintiff opposes Defendants' Motions. (Doc. 24, Doc. 31, Doc. 41). For reasons set forth below, LSU's Motion must be granted because the Eleventh Amendment requires Plaintiff to pursue her state law negligence claim against LSU in state court, not here. ULS's Motion and LCG's Motion will each be denied, in full.

I. BACKGROUND

The following allegations are drawn from Plaintiff's Complaint (Doc. 1) and documents referenced therein,² or are otherwise subject to judicial notice, and are accepted as true for present purposes.

A. Statutory and regulatory framework

i. Title IX

Title IX prohibits discrimination on the basis of sex at all federally funded universities. 20 U.S.C. § 1681(a). Its purpose is two-fold: "to prevent federal funds from being used to support discriminatory practices," and "to provide individuals 'effective protection against those practices.'" Lozano v. Baylor Univ., 408 F. Supp. 3d 861, 879 (W.D. Tex. 2019) (Pitman, J.) (quoting Cannon v. Univ. Chic., 441 U.S. 677, 704, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)). Universities that accept federal funding—by, for example, enrolling students who receive federal funds to pay for their education—are subject to the requirements of Title IX. Id. (citing NCAA v. Smith, 525 U.S. 459, 466, 119 S.Ct. 924, 142 L.Ed.2d 929 (1999)).

In 2001, the U.S. Department of Education ("DOE") issued its Revised Sexual Harassment Guidance ("2001 Guidance"), setting out Title IX's "compliance standards" for determining whether federally funded universities "recognize and effectively respond to sexual harassment of students."³ The 2001 Guidance incorporates relevant federal caselaw, statutes, and implementing regulations, and remained in effect at all times relevant to this dispute.⁴ Several provisions of the 2001 Guidance are relevant here (for reasons soon to become clear):

• "Sexual harassment of students can be a form of sex discrimination covered by Title IX." (2001 Guidance at p. 1).

• Title IX's protection extends to "all of the academic, educational, extra-curricular, athletic, and other programs of the school, whether they take place in the facilities of the school, on a school bus, at a class or training program sponsored by the school at another location, or elsewhere." (Id. at pp. 2-3).

• Upon receiving notice of sexual harassment, a school must take "immediate effective action to eliminate the hostile environment and prevent its recurrence." (Id. at pp. 12). "These steps are the school's responsibility whether or not the student who was harassed makes a complaint or otherwise asks the school to take action." (Id. at p. 15)

• Notice of sexual harassment may come from "indirect ... sources such as a member of the school staff, a member of the educational or local community, or the media." (Id. at p. 13). If a school learns of harassment through such means, the school must consider "the source and nature of the information; the seriousness of the alleged incident; the specificity of the information; the objectivity and credibility of the source of the report; whether any individuals can be identified who were subjected to the alleged harassment; and whether those individuals want to pursue the matter" to determine the appropriate response. (Id. at p. 18)

• Schools must provide grievance procedures providing for prompt and equitable resolution of complaints of sexual harassment. (Id. at p. 14)

• A grievance procedure cannot be prompt or equitable unless students know that it exists, how it works, and how to file a complaint. Thus, the procedures should be accessible, easily understood, and widely disseminated. (Id. at p. 20)

• Concurrent police investigations into potential criminal conduct involving sexual assault "may not be determinative of whether harassment occurred under Title IX and do not relieve the school of its duty to respond promptly and effectively." (Id. at p. 21).

• "If harassment has occurred, doing nothing is always the wrong response." (Id. at Preamble p. iii (emphasis added)).

ii. Act 172

On October 20, 2014, the Louisiana Governor's Office issued Executive Order No. BJ 2014-14 ("EO 2014-14"), entitled "Uniformity of Policies Related to the Crime of Sexual Assault."⁵ EO 2014-14 expressly acknowledged that "sexual assault is a horrendous crime that creates physical and emotional damage to victims," and that Louisiana's public universities had implemented piecemeal measures for reporting and preventing sexual assault, resulting in an "outdated" and "fractured approach to this critical issue." EO 2014-14 mandated that the "Louisiana Board of Regents coordinate uniform policies and best practices among the public postsecondary education institutions to implement measures to address the reporting of sexual assault on their campuses, the prevention of such crimes, and the medical and mental health care needed for these victims."

Eight months later, on June 23, 2015, the Governor signed into law Act 172, the "Campus Accountability and Safety Act." La. R.S. § 17:3399.11 (2015), et seq.⁶ Act 172 codified EO 2014-14's mandate that public universities establish "uniform policies" to address and prevent sexual assault, defined sexual assault to include "any sexual assault offense ... and any sexual abuse offense" under Louisiana law, acknowledged universities' duty to comply with Title IX, and required universities to develop and implement "training" consistent with the requirements of Act 172 and Title IX for "each individual who is responsible for resolving complaints of reported sex offenses or sexual misconduct policy violations."

Additionally, Act 172 set forth coordination and reporting requirements among public universities and local law enforcement agencies. Specifically, Act 172 states:

F. Inter-campus transfer policy:

(1) The Board of Regents' Uniform Policy on Sexual Assault shall require that institutions communicate with each other regarding transfer of students against whom disciplinary action has been taken as a result of a code of conduct violation relating to sexually-oriented criminal offenses.

(2) The Board of Regents' Uniform Policy on

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