This week’s case brings us to the campus of Union College over in scenic Schenectady, New York, a little north of Albany, and two hours east from Syracuse. Founded in 1795, Union’s ranking in the 2020 edition of Best Colleges was #45 among National Liberal Arts Colleges. Its tuition and fees are $57,324. The motto of Union College is, “Unity in necessary matters, freedom in doubtful matters, charity for all.” 1798 graduate, Joshua Forman, was the Founder of Syracuse, New York; 1870 graduate, Solomon Deyo, was the engineer in charge of constructing the first New York City Subwayline; 2003 graduate, Ben Schwartz, played Jean-Ralphio Saperstein on Parks and Recreation.
In the 19th century, Union College became the “Mother of Fraternities“, as three of the earliest frat organizations were established there. We will be discussing Union’s Theta Delta Chi Fraternity (a/k/a the Thumpers). The prosecution team in the famous Lizzie Borden case was “headed” by a Thumper: Hosea M. Knowlton, (Tufts 1867). In the trial of the century of that era, before a jury of twelve men, the prosecution opened the state’s case when the lawyer carelessly threw Lizzie’s blue frock on the prosecution table during his speech, revealing the skulls of Andrew and Abby Borden. The sight of her parents’ skulls, according to the media at that time, caused Lizzie to fall “into a feint that lasted for several minutes, sending a thrill of excitement through awe-struck spectators and causing unfeigned embarrassment and discomfiture to penetrate the ranks of counsel.” Lizzie was found NOT GUILTY in that case.
After 175 years as a traditional all-male institution, Union College began enrolling women in 1970. (Peace, Love, Woodstock).
Back to the Future at Union College:
On September 3, 2017, a female student, having arrived early to campus for a pre-orientation leadership program, attended a party at the all-male fraternity Theta Delta Chi. At some point, she asked a male senior student at Union, where the bathroom was located. After escorting her to the bathroom and waiting for her, the two began a conversation.
They then decided to go to THE male student’s apartment, where they smoked marijuana on the terrace. The female soon felt unwell. The male led her into his bedroom where he sexually assaulted the female. The incident was reported to the school, which at first did nothing. The female reported it to the school again, this time with her mother. An investigation, of sorts, was initiated, which found that there was no need for action against the male assailant. The case was closed.
The female student sued the school. Here is the testimony of the people involved:
TESTIMONY OF JANE DOE
Q. How were you affected by the marijuana that you smoked?
A. I immediately felt the effects of the pot; it hit me hard and very quickly, unlike anything I ever had. I was confused, dizzy, and just uncoordinated.
Q. What did you do next?
A. I asked John if it would be okay to lay down on the bed in his room. He brought me over, but then he got in bed right next to me.
Q. And did John do anything to you on the bed?
A. I was really out of it and he just started to touch my breasts and put his hands down my pants.”
Q. How did you respond?
A. I couldn’t push him away, I just didn’t have the ability and coordination to do that. I tried and I was repeatedly telling him “No!” And he stopped for a minute, but it was to take his clothes off.
Q. What did John do after he removed his clothes?
A. He raped me.
Q. What did you do after John assaulted you?
A. I got an Uber and went home and went to bed.
Q. You didn’t go to the police or to the hospital?
A. I just wanted to go to sleep.
Q. What did you do the next day?
A. When I woke up, I didn’t remember what happened. And then it hit me: I remembered. I took a shower and then I went to the college’s human resources department and I spoke with Kelley, Union’s Title IX Coordinator. I reported to Kelley that I had been sexually assaulted the night prior, and identified John as the rapist.
Q. What did Kelley do or say in response?
A. Kelley told me to contact the College’s Wicker Wellness Center. She did not take any further steps to investigate my complaint or to report it to the proper authorities.
Q. When you spoke with Kelley for the first time, we are talking about September 3?
A. Yes, sir. And nothing more was said or done until I went back to Kelley with my mother.
Q. And when was that?
A. January 16, 2018.
Q. Why did you go back in January?
A. The whole time I was suffering with debilitating anxiety and depression, and living in constant fear of John being on the same campus. So, I decided to meet with the Title IX Office with my mother. So we met with Kelley and Williams, who was the director of campus safety.
Q. What was the response the second time?
A. This second time around, I was provided with the policy, and Kelley explained the process of filing a Title IX complaint and the potential avenues for relief available to me.
Q. Did the school do anything further with respect to the investigation?
A. Yes. Following the meeting, the school issued a “No Contact Order” between me and John. Then they asked me to provide them with a written statement regarding the complaint.
Q. Did you do that?
A. I did. And Kelley informed me that she had assigned two investigators to investigate my complaint. Strangely, they interviewed me AFTER they interviewed John and some people at the frat party first.
Q. Was there a hearing conducted by the school?
A. Yes. It was brought before a panel that was consisted of the associate dean of students, two faculty members, the director of residential life, and a sophomore student.
Q. Did you testify at that hearing?
A. They asked me questions for an hour and a half. And they kept on referencing materials that I was not given before the hearing. They were supposed to give them to me before the hearing. I kept asking, but they never gave them to me.
Q. Did the panel make a determination?
A. On May 22, 2018, I was informed that panel found John “not responsible” for the rape by a vote of 3-2.
Q. And that was it?
A. That was it.
CROSS-EXAMINATION OF JANE
Q. You stated that you did not go to the police or to the hospital after this occurrence, right?
A. That’s right. I was drugged.
Q. Well, you were able to use your phone to get an Uber, right?
A. I did.
Q. You did that on your own? I mean, John didn’t help you, did he?
A. No. John had done enough. I ordered the Uber.
Q. You were able to order the Uber, but you couldn’t call 911 to report to the police what happened?
A. I just wanted to go home.
Q. And the next day, the first thing you did was take a shower, right?
Q. And then, according to what you told us before, you went to the school and spoke with Kelley, correct?
A. That is accurate.
Q. And you went to Kelley because you wanted John punished for what he did, right?
A. Yes, and to prevent it from happening again to someone else.
Q. To prevent it from happening again. I see. But instead of taking steps to preserve any biological evidence of the rape, that certainly would have at least established that you had physical relations with John, you took a shower, right?
A. I was disgusted. Yes.
Q. And instead of going to the hospital where any biological evidence of the rape could have been captured and preserved, you went to complain to the school, right?
A. Well, I wasn’t hurt. Physically hurt. I was emotionally hurt.
Q. And, as you said, nothing was done by the school from September up until you went back again in January, right?
A. That is right?
Q. And you got a No Contact Order, right?
A. Yes. That happened.
Q. But isn’t it true that John had not even attempted to contact you from September up until January?
A. Not that I’m aware of.
Q. I just want to take you back to the night of the party at the frat house. When you arrived at that party you had already consumed, before you got there, one or two shots of straight vodka, right?
A. I believe that is correct?
Q. Well, is it correct or not?
A. It is correct.
Q. Pre-gaming, right?
Q. And before you left with John, while at the party, you had consumed about two full cups of beer, isn’t that true?
Q. Nothing further.
TESTIMONY OF THE SCHOOL
Q. Jane had submitted her written statement regarding her Title IX complaint to the school?
Q. And then you provided that statement to John, correct?
Q. And he was then provided with an opportunity to submit a rebuttal?
A. Yes. And he did submit a rebuttal denying any wrongdoing.
Q. By the way, that was in direct contravention of the school’s policy, which states: “The Respondent will not be allowed to see the Complainant’s Statement until after the Respondent has filed [his or her] statement in response to the original Complaint Form.” Is that an accurate?
A. If that is what it says. Yes.
Q. Would you like to see it?
Q. It is true that despite informing the panel that she had not been provided with any materials, Jane was questioned for one and one-half hours, during which time the panelists repeatedly referenced the materials.
A. Jane did not need them. But the answer to your question is, no.
Q. And John was provided with the complete hearing packet of documents at the start of the conference?
A. Yes, he was.
Attorney for the College
Your Honor, we are defending against two claims here: First, the deliberate indifference to Jane’s complaint; and, second, the school’s breach of contract with Jane, by failing to comply with the school’s policy.
But a review of the policy reveals that Union complied with the directives in the policy in efficiently and equitably resolving Jane’s sexual assault complaint. Jane’s dissatisfaction with the outcome is an insufficient basis to state a claim for deliberate indifference or breach of contract. Your Honor, this case must be dismissed.
Attorney for Jane
May it please the Court: Title IX provides a private right of action against a federally-funded education institution based on peer sexual harassment where the college acts with deliberate indifference to known acts of harassment in its programs or activities. It could not have been made clearer: that is exactly what happened to Jane.
Theta Delta Chi’s parties are known by the entire College community to pose a significant risk to female students of sexual assault, harassment, and sexual violence, and Union permitted and condoned its all male fraternities, including and especially the Thumpers, to foster a social environment rampant with sexual violence and harassment towards women. It is a disgrace and it is illegal.
Moreover, Your Honor, the College breached an agreement to resolve Jane’s allegations of sexual misconduct in a manner consistent with the terms of the Policy. The record is clear: The college did not follow the rules in place that Jane was required to follow and that the college was required to follow.
RULING OF THE JUDGE
A defendant acts with deliberate indifference both when its response to known harassment is clearly unreasonable in light of the known circumstances, and when remedial action only follows after a lengthy and unjustified delay. No reasonable explanation was provided by the college as to why in September nothing was done by the school. And I will note that Kelley is a mandatory reporter – who did not report.
Additionally, the college breached its contract with Jane by failing to properly investigate and adjudicate her Title IX complaint, the terms of which are found in the policy.
I find for Jane in this matter and damages will be assessed by a jury.
Jane wins, and someone will pay. But not her assailant. John is not even a party to the lawsuit.
Lessons for all parties in this case. But the legal lesson is that school’s have to take claims of sexual misconduct seriously and follow school protocol carefully.