Appeals court dismisses suit of student who says UK mishandled sexual assault cases
A federal appeals court backed the dismissal of a Title IX suit filed against the University of Kentucky by a student who said UK mishandled one of two rape allegations and failed to protect her.
Three judges from the Sixth Circuit Court of Appeals in Cincinnati ruled Monday that the student’s case lacked enough evidence to prove that the university neglected to protect her, upholding an earlier lower court decision to dismiss the 2017 case without a jury trial.
The ruling was issued days after U.S. Education Secretary Betsy DeVos handed down new federal regulations for how public universities handle similar Title IX hearings. UK officials said they were still early in the process of reconfiguring their hearing process — for the second time in three years — to match those required by DeVos’ regulations, which take effect on Aug. 14.
Generally, DeVos’ new rules provide more protections for those accused of sexual assault, such as the allowance for the cross-examination of witnesses and the requirements for live hearings — provisions which UK largely already provides.
The attorneys representing the student — referred to as Jane Doe in the lawsuit — said they were disappointed that the case was never presented to a jury. It’s unclear whether they will pursue further legal action.
“While we respect the court’s ruling we are disappointed that the court decided to apply its own opinion of what is or is not reasonable under the circumstances and deny our client the opportunity to have her claims heard in court,” attorneys Tad Thomas and Lindsay Cordes wrote in a joint statement. “The 7th Amendment gives both parties the right to trial by jury. We believe the law is clear that the decision in this matter should have been one left to a jury and not a judge.”
UK spokesperson Jay Blanton said in a statement that university officials were pleased with the ruling.
“Any member of the university community who reports being a victim of sexual misconduct can expect the university to respond with steps to prevent any further harassment,” Blanton said. “The university issued no-contact orders between the students and promptly and thoroughly investigated these reports by reviewing documentary evidence, questioning the accuser and the accused, and interviewing other student-witnesses. The university is pleased that both the trial court and the Sixth Circuit recognized the university fulfilled its obligations.”
The suit argued that UK acted with indifference in following its own rules and hearing policies. But the federal ruling, authored by Judge Alice Batchelder, said Jane Doe’s suit did not prove the university’s indifference as Title IX office employees investigated every instance of alleged violation of the no-contact orders.
According to the lawsuit, Jane Doe was raped twice by a different man each time. The first alleged assault came in August 2016 from a man — referred to in the lawsuit as John Doe — who she said shared many of the same social circles and settings.
After UK’s Title IX investigators began to look into the case, the university issued a no-contact order between the two. But Jane Doe reported that John Doe had once followed her home from class, came near her at a tailgate party and habitually studied near her in a library, forcing her to go to the library only between midnight and 8 a.m.
For a later session by the sexual misconduct hearing board in 2017, both sides were allowed to bring two support persons, the lawsuit said. Those persons could be attorneys, but those attorneys could not speak or argue for their client in the hearing setting, the suit said.
John Doe was represented by Lexington attorney Jim Lowry, who argued on his behalf and cross-examined the student witnesses brought before the panel, the suit stated. Jane Doe was represented by UK Dean of Students Nicholas Kehrwald, who failed to object to Lowry being included, Doe argued. According to the suit, John Doe was exonerated by the hearing board, and Jane Doe filed an internal university appeal, which was denied.
Jane Doe was allegedly sexually assaulted a second time by a male student in October 2016; the lawsuit called that man James Doe. UK police and the university’s Title IX office investigated the incident, and 180 days after the alleged assault, James Doe was expelled, having been found at fault at a misconduct hearing for which he failed to appear.
During the investigation, Jane Doe said that James Doe continued to attend classes they shared, despite emails from the university’s Title IX office telling him to change sections, the opinion stated.
Jane Doe’s suit failed to show that UK’s response to the allegations of rape was unreasonable or that the response caused her further sexual harassment, Batchelder wrote in the court’s opinion.
“She does assert that John Doe stared at her, stood by her at a party, followed her home, and sat near her in the library. She similarly alleges that James Doe stared at her during their shared classes,” Batchelder wrote. “Nothing about these allegations, however, suggest sexual harassment, let alone sexual harassment that is of a severe, pervasive, and objectively offensive nature.”
The ruling comes at a time when UK officials are working quickly to change the rules for these hearing processes in time to align with DeVos’ August deadline.
A university committee tasked with considering and recommending rule changes — which had been meeting for a year in anticipation of DeVos’ announcement — returned from a pandemic recess last week to begin to formulate a recommendation for the UK administration, said Jennifer Bird-Pollan, the committee’s co-chair and senate council chair.
This story was originally published May 21, 2020 at 1:03 PM.