Roe v. Marshall Univ. Bd. of Governors

668 F.Supp.3d 461

Jane ROE, Plaintiff, v. MARSHALL UNIVERSITY BOARD OF GOVERNORS, Defendant.

CIVIL ACTION NO. 3:22-0532

United States District Court, S.D. West Virginia, Huntington Division

Signed April 5, 2023

Casey E. Waldeck, Jonathan Zak Ritchie, Ryan McCune Donovan, Hissam Forman Donovan Ritchie, Charleston, WV, for Plaintiff.

Perry W. Oxley, Eric Salyers, James Jarrod Jordan, Oxley Rich Sammons, Huntington, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant's Motion to Dismiss. ECF No. 6. For the following reasons, the Motion is DENIED.

I. BACKGROUND

Plaintiff Jane Roe is a twenty-year-old junior at Marshall University. Compl. ¶ 6, ECF No. 1. Defendant Marshall University Board of Governors ("Marshall") is the governing body which governs Marshall University, a West Virginia institute of higher education located in Huntington, West Virginia. Id. ¶ 7. As an institution which receives federal funding, Marshall has an Office of Equity Programs, with a Title IX Coordinator, which is responsible for handling student complaints of sexual harassment and assault. Id. ¶ 8.

On September 3, 2022, Ms. Roe was alleged violently sexually assaulted by fellow Marshall student John Doe. Id. ¶¶ 12-14. At the time of the assault, Ms. Roe and Mr. Doe were watching a Marshall football game at a friend's off-campus apartment. Id. ¶ 12. Ms. Roe reported the assault to the Huntington Police Department, and Mr. Doe was arrested and charged. Id. ¶¶ 15-16.

The Complaint asserts that the Huntington Police Department "sent its report of the September 3, 2022 incident to Marshall University, which referred the matter to the Title IX Office and the Office of Student Conduct." Id. ¶ 18. Thereafter, Ms. Roe avers that she was lured into meetings with Michaela Arthur, the Assistant Director of Student Conduct at Marshall University, under the guise of providing "witness" information concerning the sexual assault. Id. ¶¶ 19-22. Believing that she was providing testimony concerning the sexual assault, Ms. Roe provided Ms. Arthur with an array of information concerning the incident. Id. ¶¶ 22-27. Ms. Roe asserts that she was not represented by counsel at these meetings, was not informed of her right to counsel, and was not told that she was the subject of the investigation, rather than Mr. Doe. Id. ¶¶ 21-22, 25-28.

In a meeting on October 24, 2022, Ms. Arthur purportedly informed Ms. Doe that she was being charged with violating Marshall's policy against underaged drinking. Id. ¶ 31. Again, Ms. Doe was apparently not informed of her right to counsel. Id. ¶ 32. Rather, she was allegedly pressured to accept a "voluntary resolution" of probation, in exchange for waiving her rights to future proceedings, without being informed of the adverse consequences of accepting such a resolution. Id. ¶¶ 33-35. After accepting the voluntary resolution under pressure, Ms. Roe was given a probationary status which she will be required to disclose for seven years to any future educational institutions. Id. ¶¶ 36-39.

While Ms. Roe was allegedly penalized for discussing the sexual assault, in contrast, the Complaint asserts that Mr. Doe remains a student at Marshall. Id. ¶¶ 40, 47. The Complaint asserts that Marshall's Title IX office declined to open an investigation into Mr. Doe, despite having actual knowledge of the incident. Id. ¶¶ 40-44. Ms. Roe believes that this is due to Marshall's position that "the Title IX Office did not have jurisdiction over the incident solely because it occurred off campus." Id. ¶ 45. Ms. Roe's counsel has repeatedly requested records and information concerning the incident from Marshall's Title IX Coordinator, Debra Hart, and has yet to receive a response from Marshall or Ms. Hart. Id. ¶ 46.

Accordingly, Ms. Roe has brought suit under Title IX of the Education Amendments of 1972. See 20 U.S.C. §§ 1681-1688. Her one-count Complaint alleges Marshall's deliberate indifference towards its obligations to her under Title IX to investigate the assault. Id. ¶¶ 49-63. On December 13, 2022, Defendant filed the instant Motion to Dismiss. ECF No. 6. The matter has been fully briefed, see ECF Nos. 11-13, and is now ripe for resolution.

II. LEGAL STANDARD

To survive a motion to dismiss, a complaint must contain "a short and plain statement of the claim showing [the plaintiff] is entitled to relief." Fed. R. Civ. P. 8(a)(2). While the facts alleged in the complaint need not be probable, the statement must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). 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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). In considering the plausibility of a plaintiff's claim, the Court accepts all factual allegations in the complaint as true. Id. Still, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted).

Determining whether a complaint states a plausible claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. If the court finds from its analysis that "the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.' " Id. (quoting, in part, Fed. R. Civ. P. 8(a)(2)). Nonetheless, a plaintiff need not show that success is probable to withstand a motion to dismiss. Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ("[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.").

III. DISCUSSION

The instant Motion presents a very narrow issue to the Court: whether a plaintiff can have plausibly alleged a Title IX deliberate indifference claim against a university where the alleged act of student-on-student sexual harassment occurred in a location over which the university did not exercise control. For the reasons articulated below, the Court finds that Plaintiff has plausibly alleged an incident of sexual harassment¹ over which Marshall University could have had "substantial control" over the students, the context, and the circumstances in which the sexual harassment occurred, regardless of the location of the incident.

Title IX provides that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). The Supreme Court has held that Title IX authorizes private suits for damages in certain circumstances. See Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992); see also Cannon v. Univ. of Chi., 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). The Court has also found "deliberate indifference" claims alleging liability for institutional inaction regarding student-on-student harassment to be cognizable under Title IX. Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 653-54, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999).

To state a deliberate indifference claim under Title IX, Ms. Roe must show that

(1) she was a student at an educational institution receiving federal funds, (2) she was subjected to harassment based on her sex, (3) the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity, and (4) there is a basis for imputing liability to the institution.

Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007).

Marshall only contests the final element of this standard, arguing that there is no basis for imputing liability against it, due to the off-campus location where the alleged incident of sexual harassment occurred. Mem. of Law in Supp. of Mot. to Dismiss at 5. An educational institution's liability is limited to "to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs." Davis, 526 U.S. at 645, 119 S.Ct. 1661. Further, Davis held that "recipients of federal funding may be liable for 'subjecting' their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school's disciplinary authority." Id. at 646-47, 119 S.Ct. 1661. The Supreme Court's language has been read by at least one circuit court as requiring a sufficient "nexus between the out-of-school conduct and the school." Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1122 n.1 (10th Cir. 2008) (citing Davis, 526 U.S. at 645, 119 S.Ct. 1661).

Marshall does not refute Ms. Roe's argument that both students were under the school's "disciplinary authority" at the time the sexual assault occurred, or that Marshall exercised substantial control over the harasser. See Reply to Pl.'s Resp. to Def.'s Mot. to Dismiss at 3-4. The Court therefore finds that the parties only dispute whether the control over the context in which the known harassment occurs requires control over the location in which the incident occurred. Accordingly, the Court begins its analysis with an examination of the plain meaning of the relevant regulatory language. See Kisor v. Wilkie, — U.S. —, 139 S. Ct. 2400, 2415, 204 L.Ed.2d 841 (2019).

A recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the

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