Doe v. Bd. of Regents

JANE DOE 7, Plaintiff, v. BOARD OF REGENTS, SOUTHEAST MISSOURI STATE UNIVERSITY, et al., ^[1] Defendants.

No. 1:20-CV-00172 JAR

United States District Court, E.D. Missouri, Southeastern Division

May 5, 2022

MEMORANDUM AND ORDER

JOHN A. ROSS UNITED STATES DISTRICT JUDGE

Plaintiff Jane Doe 7 was a freshman at Southeast Missouri State University (“SEMO”) in August 2016 when she was raped by a fellow student on campus. Plaintiff alleges the response to her sexual assault was deliberately indifferent and deprived her of access to educational benefits or opportunities provided by SEMO. She asserts claims under Title IX of the Education Amendments Act of 1972, 20 U.S.C § 1861(a) (“Title IX”) and 42 U.S.C. § 1983: violation of Title IX based on SEMO's deliberate indifference to sexual harassment and hostile environment (Count I); violation of Title IX based on SEMO's failure to accommodate, provide interim safety measures, and/or prevent retaliation (Count II); violation of Plaintiff's right to personal security and bodily integrity under 42 U.S.C. § 1983 by both SEMO and SEMO Department of Public Safety Officer Jyothi Dirnberger (“Dirnberger”) (Count III); and violation of Title IX based on SEMO's gender discrimination in education (Count IV). (Amended Complaint (“AC”), Doc. No. 30). Plaintiff seeks compensatory damages, statutory interest, attorneys' fees and costs.^[2] This matter is now before the Court on the parties' cross-motions for summary judgment. Plaintiff moves for summary judgment on her Title IX claims against SEMO (Doc No. 40); Defendants move for summary judgment on all of Plaintiff's claims (Doc. No. 44). The motions are fully briefed and ready for disposition.

I. Facts^[3]

SEMO, a state university located in Cape Girardeau, Missouri, is a federally funded education program under Title IX. In August 2016, Plaintiff was a freshman at SEMO. On the night of August 27, 2016, she and a friend attended an off-campus fraternity party. In the early morning hours of August 28, 2016, Plaintiff left the party and took a sober car back to campus. There Plaintiff encountered a male student unknown to her who offered to take her to her dorm room. The male student was later identified by SEMO Department of Public Safety (“DPS”) Officers as Jordan Huerta (“Huerta”). Instead of going back to Plaintiff's room, however, Huerta took her to his room where he raped her. After the assault, Huerta took Plaintiff back to her dormitory.

Upon returning to her dorm room, Plaintiff told her roommate she had been raped. Her roommate called the Residence Advisor who in turn called campus police. DPS Officer Dirnberger and DPS Officer Sergeant Anthony Cooper responded to the call. Officer Dirnberger took Plaintiff's statement and then went with Plaintiff to the hospital for a rape kit test. At that time, Plaintiff advised Officer Dirnberger she did not want to press criminal charges because she was afraid of the perpetrator.^[4] While at the hospital, Plaintiff met with SEMO crisis counselor Donna St. Sauver who arranged outside counseling services for Plaintiff and gave Plaintiff the option to meet with her the next day. Plaintiff saw St. Sauver a few times.

By the end of the day on August 28, 2016, DPS investigators had identified Huerta as Plaintiff's assailant but according to Plaintiff, neither SEMO nor DPS informed her of Huerta's identity. (When Plaintiff was informed of Huerta's identity is a disputed issue of fact.) Once identified, SEMO issued a verbal no-contact order to Huerta. After August 28, 2016, Plaintiff had no further contact with Officer Dirnberger.

On August 29, 2016, Dr. Randy Carter, then Assistant Dean of Students overseeing SEMO's Office of Student Conduct, met with Huerta and his mother. Huerta was issued a Letter of No Contact, ^[5] which he signed.

On September 6, 2016, Plaintiff noticed Huerta sitting behind her in her dormitory cafeteria and recognized him as her assailant. The facts surrounding this incident are disputed. According to Plaintiff, Huerta followed her to the mail room while pointing and laughing. SEMO asserts that Huerta never spoke to Plaintiff and that there was no physical contact between the two. In any event, Plaintiff contacted DPS who immediately responded and investigated. Thereafter, SEMO gave Huerta “the option to move off-campus” after “people started getting word that he may be the accused student” and he did move into a different dormitory on the other side of campus.

During the relevant time period, SEMO had a policy for handling Title IX sexual assault cases involving its students entitled “Guidelines for Defining and Adjudicating Sexual Assault Cases Involving Students.” The policy was published on SEMO's website.

SEMO's policy provided information regarding the rights and responsibilities of both the accused student and the complainant (sometimes referred to as the victim); reporting and resource options; as well as confidentiality information. Students found responsible for sexual assault or sexual misconduct face a range of sanctions, including suspension or expulsion.

SEMO's policy set out the steps to be followed in the process of a Student Conduct investigation as follows:

(1) Upon receipt of a complaint by the Office of Student Conduct, both DPS and SEMO's Title IX Coordinator are notified.^[6]

(2) Determine if available resources (mental health/medical) have been made available to the complainant.

(3) Determine if a law enforcement investigation is occurring.

(4) If the complainant intends to remain anonymous, then a “Reluctant Witness Letter” is provided to the student (through Counseling and Disability Services or other office if necessary). If the complainant wishes to pursue a University and/or criminal case, explain the process and again make sure that the complainant is briefed on available resources.

(5) Contact accused student and initiate “Letter of No Contact” and make any other necessary modifications in his/her living, classroom, or campus circumstances. Complete any other interim measures that are necessary and explain the student conduct process to the accused student.

(6) Interview complainant, accused student, and any other witnesses.

(7) Contact Title IX Coordinator via email and provide summary of fact finding -determination is made about Official Charge Letter.

(8) (If applicable) Charge Letter is sent to accused student and judicial conference is arranged. Case reports and information are read, explained, and/or discussed with accused student and complainant.

(9) Hearing is scheduled and completed with the Administrative Panel for sexual assault and sexual misconduct cases. Complainant may appear in person, via speaker phone, or may choose not to appear. Complainant may provide a victim impact statement to be read by hearing panel prior to sanctions being imposed.

(10) Results of hearing are given in writing to accused student as hearing concludes.

(11) Results of hearing are provided to complainant in writing via email.

(See generally Doc. No. 42-19). SEMO's Title IX Coordinator is charged with “making sure that the process is followed appropriately and that both the rights of the complainant and the accused student are protected in the process.” (Id.).

SEMO's policy further provides that student victims have the right to be notified of available counseling or student services as well as options for changing academic and living situations if such changes are “reasonable available”; the right to make a victim-impact statement to the hearing board; the right to a campus restraining order or notice against trespass; and the right to have a complaint of sexual misconduct responded to quickly and with sensitivity by campus police and member of the Office of Student Conduct.

Among the rights of the accused are the right to protection under the Family Educational Rights and Privacy Act; the right to notice of charges and procedural information; the right to have access to and to examine all records and evidence in the case; the right to maintain academic work through reasonable accommodations; the right to rebut the testimony of adversarial witnesses; and the right to an advisor.

Also during the relevant period, incoming SEMO students and their parents received a letter from the Dean of Students concerning the Student Code of Conduct. Incoming students were also required to complete the My Student Body and First STEP programs, and an orientation course entitled SE 101, which SEMO asserts covered Title IX, sexual harassment, sexual misconduct, and methods of reporting incidents of sexual assault. Plaintiff disputes that these programs addressed Title IX or students' rights after a sexual assault on campus.

The parties dispute when Plaintiff was contacted by SEMO officials following the assault. According to Defendants, Kasey Fraser-Smith, a Title IX investigator with the Office of Student Conduct, first met with Plaintiff on September 15, 2016 to discuss the student conduct process and again on October 25, 2016 to interview her regarding the assault. Plaintiff does not remember meeting with Fraser-Smith on those dates and asserts that Fraser-Smith first reached out to her on October 10, 2016.

On November 1, 2016, Fraser-Smith met with Huerta and his mother to discuss SEMO's judicial and hearing process. Huerta declined to be interviewed without an attorney present. On November 14, 2016, Fraser-Smith sent a charge letter request to Sonia Rucker. Rucker issued a formal charge against Huerta for violations of student conduct on November 18, 2016. The charge was emailed from Fraser-Smith to Huerta; Plaintiff was not copied on the email. Huerta voluntarily withdrew from SEMO before the student conduct hearing set for December 1 2016, and SEMO...