Court: District Court, W.D. Virginia; September 22, 2016; Federal District Court
Sarah Butters has filed a Title IX claim against James Madison University (JMU), alleging sex-based discrimination following a sexual assault by three male students during spring break in March 2013, which included video recording of the assault that was shared among other students. Butters asserts that JMU's response to her complaints about the assault and the video, including a formal complaint filed over nine months later, violated Title IX.
JMU seeks summary judgment, arguing the following: (1) the harassment was not severe or pervasive enough to create a hostile educational environment, (2) JMU was not deliberately indifferent or unreasonable in its response to her report, and (3) there is no evidence that the university's response led to further harassment or increased vulnerability for Butters. The court has reviewed the arguments and evidence from both parties and will grant JMU's motion for summary judgment.
Butters enrolled at JMU in fall 2010 and had inconsistent academic performance, withdrawing from most of her classes in Spring 2013 to work more hours due to financial stress. The trip to Panama City with fellow students was not officially sponsored by JMU, but intended for socializing.
On March 3, 2013, Butters spent the day at the beach with friends and consumed alcohol before visiting a condo where three male acquaintances—Jay Dertzbaugh, Nick Scallion, and Mike Lunney—were staying. She does not remember how she arrived at the condo or the bathroom, nor does she recall the assault. The next day, she learned from a friend about a video of her topless, which she had not previously known about. Butters questioned Dertzbaugh about the existence of the video, and he denied it. The video, approximately 90 seconds long, shows Butters topless and depicts at least three instances of the Assailants grabbing her breasts, but it does not clearly indicate whether the encounter was consensual or if she was too intoxicated to consent. After her trip, Butters discovered that the video had circulated among JMU students, and she took steps to halt its distribution, including asking friends to delete it. She met with the Assailants to discuss the situation, but until March 27, 2013, JMU was unaware of the assault or the video's circulation. Butters initially did not want to escalate the situation and hoped it would resolve itself.
On March 27, 2013, a friend of Butters contacted JMU sorority advisor Paula Polglase regarding an incident involving Butters. Polglase, also a JMU employee, met with Butters after consulting JMU’s counseling center and the Office of Judicial Affairs (OJA) about available resources. She informed Butters of her options, including counseling and reporting to OJA, but Butters expressed a desire for the situation to "go away." That same day, Butters’s sorority sister met with the Sigma Chi fraternity president, resulting in sanctions against three assailants, prohibiting them from fraternity events and contacting Butters. Polglase and other JMU employees were made aware of these sanctions.
On March 28, Polglase reported to Wendy Lushbaugh, Associate Director of Judicial Affairs, that Butters had been sexually assaulted and that the incident had been recorded and shared. They scheduled a meeting with Butters for March 29, which she canceled, but rescheduled for April 12. Polglase also informed JMU’s Title IX Coordinator, James Robinson, about the situation, noting that Butters was not ready to take action against the assailants.
During the April 12 meeting, Butters confirmed the incident and the circulation of the video. She requested that OJA proceed with the case based solely on the video evidence. Lushbaugh informed her that OJA could only proceed without her involvement if the video clearly depicted the assault, which included evidence of intoxication and lack of consent. If the video was not clear, Butters would need to provide a written statement to support the case.
Lushbaugh informed Butters that preparing the necessary paperwork and consenting to the process would exempt her from attending hearings, emphasizing the importance of allowing sexual assault victims to maintain control. Butters expressed fear of retaliation from Nicholas Scallion and other Assailants if she filed charges, and at the end of their meeting, she decided against filing a complaint, indicating she was not ready to endure the student conduct process yet was interested in moving forward without her involvement. She requested confidentiality regarding her meeting with Lushbaugh and did not recall whether she asked Lushbaugh to take action regarding the video evidence. Lushbaugh arranged for Butters to meet with a counselor and informed the Title IX Director about their meeting. Butters attended counseling sporadically and often canceled sessions due to discomfort.
On April 16, 2013, Polglase provided Lushbaugh and Bacon with a video, which they reviewed and determined was insufficient to proceed with a case against the Assailants without Butters' formal charges. Lushbaugh communicated this to Butters and later followed up via email and voicemail to check on her decision to file a complaint. Butters did not respond until May 6, when she expressed panic over whether OJA had contacted the Assailants, which Lushbaugh reassured her was not the case. Butters spent the summer away from campus and had no contact with the Assailants upon her return for the Fall 2013 semester. After returning, Lushbaugh reached out to Butters on September 6, 2013, for an update on her decision, but Butters did not reply until November 11, attributing her silence to a feeling of neglect.
Butters felt she had provided the necessary information to the Office of Judicial Affairs (OJA) to proceed with her complaint and was not ready to meet with James Madison University (JMU) at that time. On November 4, 2013, her father inquired about the status of her complaint, leading to communication between JMU officials Mark Warner and James McConnell, who referred the inquiry to Josh Bacon. Bacon called Butters’ father, explaining the policy and encouraging Butters to meet with OJA.
On November 11, 2013, Butters expressed her desire to schedule a meeting with OJA, which was set for November 18, but she canceled. Subsequent attempts to meet were unsuccessful due to her absence or delayed responses. On December 17, 2013, Butters indicated her readiness to file a complaint, and a meeting was arranged for January 6, 2014, which she again missed, leading to a rescheduling for January 10. At the latter meeting, she consented to the process and filed a complaint against her assailants.
JMU provided Butters with a support person, Liz Howley, who assisted her throughout the process. On January 15, 2014, JMU charged the three men with sexual assault and harassment, issuing a no-contact order, which Butters acknowledged was effective, although she claimed it did not prevent her from seeing the men. During the first level of hearings, Bacon found all three responsible for the charges. Unsatisfied with the proposed sanctions, Butters rejected the administrative decision.
A second level of hearings occurred on March 20, 2014, resulting in the Judicial Council imposing immediate expulsion of the men. All three men appealed, leading to separate appeal hearings on April 2, 2014, where Butters was accompanied by her support person and kept visually separated from the men throughout the proceedings.
The appeal board modified the sanctions against three men, resulting in the following: they would be expelled from James Madison University (JMU) upon graduation, barring any return to campus for any reason, including attending graduate classes or events, with violations leading to arrest for criminal trespass; they were prohibited from walking in graduation ceremonies; they could not contact Butters; they were restricted from the JMU campus except for classes and were barred from participating in JMU student clubs or organizations; and they were required to collaborate with the Office of Judicial Affairs (OJA) to create a 30-minute presentation on sexual assault for student organizations. These sanctions were approved by Warner on April 3, 2014, and communicated to Butters on April 9, 2014, which upset her as she desired different sanctions. During the OJA process, Butters was offered a chance to retroactively withdraw from her fall 2013 and spring 2014 classes but only withdrew from the latter, leading to the revocation of her financial aid due to unsatisfactory academic progress. She subsequently withdrew from all spring 2014 classes without payment or collection efforts from JMU, and she has not re-enrolled.
Regarding the legal standards for summary judgment, Rule 56 allows for summary judgment when no genuine issue of material fact exists, meaning the evidence, when viewed favorably to the non-moving party, could not lead a reasonable jury to rule in their favor. The non-moving party must provide specific facts indicating a genuine issue for trial, rather than relying on mere allegations. A mere factual dispute does not defeat a properly supported summary judgment motion; instead, significant probative evidence is required for a reasonable jury to rule for the non-moving party. The court concluded that the undisputed facts show JMU was not deliberately indifferent to known harassment within its control.
To recover damages under Title IX for peer-on-peer harassment, a plaintiff must demonstrate that an official with the authority to address discrimination had actual knowledge of the harassment and failed to respond adequately. The standard established in *Gebser v. Lago Vista Independent School District* and later applied in *Davis v. Monroe County Board of Education* requires that a school’s response be so inadequate as to constitute 'deliberate indifference.' This indifference is defined as a response that is clearly unreasonable given the known circumstances. Title IX does not mandate a remedy for peer harassment but does require a response that is not clearly unreasonable. Liability is limited to situations where the institution has substantial control over the harasser and the context of the harassment. Deliberate indifference must also result in the plaintiff undergoing harassment or becoming vulnerable to it.
In assessing JMU's response to the assault reported by Butters, the court examines two phases: the period from March 27, 2013, to January 10, 2014, before Butters filed a formal complaint, and the period after. During the initial phase, JMU employee Paula Polglase promptly spoke with Butters, informed her of available resources, notified the Title IX Coordinator, and arranged a meeting with Wendy Lushbaugh to discuss policies and support options. Butters expressed a desire for confidentiality and requested that the investigation proceed without her direct involvement.
Lushbaugh indicated that the Office of Judicial Affairs (OJA) would assess the video related to Butters's case to determine if an investigation could proceed without her formal consent. However, after reviewing the video, Lushbaugh and Bacon determined it was insufficient to advance the claim, requiring Butters to file a formal complaint for any disciplinary action against the accused individuals. Butters attended counseling sessions, and Lushbaugh continued to encourage her to file a complaint with OJA.
In her opposition, Butters argued that James Madison University (JMU) could have taken additional actions, citing testimony from Sirocky-Meck, which suggested that the Title IX department could have investigated without Butters's involvement, contacted the alleged assailants, and issued a no-contact order to protect her. She noted that OJA had the authority to adjudicate her complaint and enforce measures such as interim suspension or altering class schedules, even without a formal complaint or criminal charges.
However, the court identified three significant issues with Butters's claims: 1) she seemed to apply a 'best practices' or 'reasonableness' standard rather than the required 'deliberate indifference' standard for Title IX liability; 2) many proposed actions would conflict with Butters's confidentiality requests; and 3) some suggested actions were not feasible or warranted based on the case specifics.
The court emphasized the high standard for proving deliberate indifference, noting that mere negligence or failure to follow best practices is insufficient. It referenced prior cases, such as Jennings v. University of North Carolina, where inadequate responses to complaints showcased deliberate indifference, contrasting them with JMU's actions, which were deemed appropriate. Furthermore, it cited Ostrander v. Duggan and KF v. Monroe Woodbury Central School District, where courts found no deliberate indifference despite universities taking minimal actions in response to sexual assault complaints.
Many of Butters’s suggested actions for JMU would have conflicted with her request for confidentiality, which JMU aimed to uphold. The court finds that JMU's choice not to take disciplinary action against the Assailants without her participation does not demonstrate deliberate indifference. While the video evidence shows sexual contact, it does not confirm that the contact was non-consensual or that Butters was incapacitated; establishing a lack of consent would require Butters's personal account, particularly details about her intoxication and memory loss. JMU was justified in seeking Butters's consent to proceed, given her concerns about confidentiality. Lushbaugh emphasized the importance of allowing Butters to control whether to initiate an investigation, as she wished to remain anonymous and not involved in the process. Butters's request for JMU to act without her involvement became unfeasible due to the video’s ambiguity regarding consent. The case raises the question of whether a school’s requirement for a complainant to initiate formal proceedings, while wishing to remain confidential, amounts to deliberate indifference. Butters references the April 4, 2011 Dear Colleague Letter (DCL) from the Department of Justice, which advises schools on handling student-on-student sexual harassment, highlighting the necessity of obtaining the complainant's consent before investigations and outlining the steps schools should take to address complaints while respecting confidentiality, such as altering living or academic arrangements and providing support services.
Butters argues that JMU did not adhere to the guidance provided in the Dear Colleague Letter (DCL) regarding Title IX enforcement. The DCL establishes that schools must act when they know or should know of harassment creating a hostile environment, differing from the standard for private lawsuits, which requires actual knowledge and deliberate indifference. The court inquired about authority linking non-compliance with the DCL to deliberate indifference; however, the cases cited by Butters do not support this claim. Many courts have indicated that while adherence to the DCL can be a relevant factor, it does not alone indicate deliberate indifference. For instance, in cases like Ross v. University of Tulsa and Moore v. Regents of the University of California, courts ruled that failing to follow the DCL does not equate to deliberate indifference. Compliance with the DCL is informative but lacks independent legal force in evaluating whether a school's response was equitable. The court also noted a lack of clarity regarding a university's obligation to investigate sexual assault when the victim is unwilling to participate, referencing specific cases such as Roe v. St. Louis University, where the university's actions did not demonstrate deliberate indifference despite the victim's non-participation.
The court determined there was no deliberate indifference based on the plaintiff's expressed desire for confidentiality. In the case of Ross v. University of Tulsa, the plaintiff reported being raped by Swilling, a basketball player. Following this report, the university learned of prior allegations against Swilling. The court analyzed the university's response to an earlier incident involving another victim, Jane Doe 1, who reported being raped but did not formally accuse Swilling or wish to pursue a complaint, citing fear and a desire for privacy. Although the university's failure to investigate did not adhere to best practices, it was not deemed deliberately indifferent given the circumstances of Doe 1's report.
In contrast, Butters sought an investigation from James Madison University (JMU) but requested it be conducted without her involvement or a formal charge. The court found JMU's requirement for a formal complaint before proceeding with an investigation reasonable, especially given ambiguous evidence regarding consent. Butters' complaints about JMU’s failure to provide accommodations, such as class changes or different living arrangements, were undermined by the fact that she and the assailants did not share classes and lived off-campus. Additionally, there was no evidence she requested such measures. The court acknowledged that any interim measures taken by JMU had to balance Butters' concerns with the rights of the accused, referencing other cases that emphasized this balancing act.
A no-contact order was issued against a professor accused of sexually harassing the plaintiff following her formal complaint, but immediate discipline was not permitted under school policy. The court found no deliberate indifference despite the plaintiff encountering the accused on campus during her claim. James Madison University (JMU) referenced a no-contact order from Sigma Chi in March 2013 and its own order from January 2014 as protective measures for the plaintiff. Although JMU claimed these orders were effective, the plaintiff presented evidence to dispute this, stating she had no direct contact with the assailants after Spring 2013 but saw them multiple times during Fall 2013, primarily off-campus.
The plaintiff noted that the assailants continued attending fraternity events and lived in the off-campus house, despite claims of expulsion. While she tried to avoid them, they were present at social events related to her sorority during ongoing judicial proceedings. Complaints about these encounters were made to university officials, but the responses were limited. The court considered the plaintiff's encounters with the assailants in off-campus settings but ultimately determined that JMU's response did not constitute deliberate indifference. The plaintiff's reliance on prior cases was found unpersuasive by the court.
The court acknowledges that a university's failure to separate a victim from an attacker during a grievance process may indicate deliberate indifference, as illustrated in the case of Kelly. In that instance, after the plaintiff reported a sexual assault and filed a complaint, the university's committee acknowledged the violation but only required the attacker to take a leave of absence post-graduation. The plaintiff claimed that Yale did not provide academic support or alternative housing, which led her to secure housing independently after intervention from a professor. The court noted that the plaintiff did not assert that Yale was liable for the attack itself, as the university had no prior notice. Instead, she argued that the attacker’s presence created a hostile environment. The court found Yale's decision not to bar the attacker from classes not clearly unreasonable but expressed uncertainty about whether its lack of action to protect the plaintiff during the grievance process violated Title IX. The court denied summary judgment on her Title IX claim, suggesting that Yale's inaction regarding her requests for accommodations could indicate deliberate indifference. Additionally, the court highlighted that a reasonable jury might find the harassment sufficiently severe to hinder the plaintiff's educational access. Key distinctions were made between Kelly's case and the current one: Kelly and her attacker lived on-campus, while the plaintiff in the current case and her assailants lived off-campus. Furthermore, the current plaintiff had not filed a formal complaint until later, whereas Kelly had, and JMU responded with a no-contact order after the complaint was filed. The court noted that Kelly is not binding precedent and may not be directly applicable to the current case.
The court affirmed the district court's grant of summary judgment, determining that the school did not exhibit deliberate indifference towards a student who reported sexual harassment by her music professor. The school implemented several supportive measures, including a no-contact order, after the report. In contrast, the case of Patricia H. cited by Butters, which suggested that ongoing exposure to assailants could constitute harassment due to intimidation and fear, was deemed inapplicable. The court noted that Patricia H. was decided before the standards established in Gebser and Davis, which focus on deliberate indifference. Additionally, Butters acknowledged that she had no direct or indirect contact with her assailants post-report and did not encounter them within the university's control, undermining her claim of deliberate indifference.
Regarding JMU's response to Butters's formal complaint, which included an investigation, a no-contact order, and disciplinary action against the accused, the court found insufficient evidence for a jury to establish deliberate indifference. The school's actions, though not meeting Butters's expectations for punishment, were adequate in accordance with legal standards. The court referenced previous cases stating that a school’s efforts do not equate to deliberate indifference simply because a victim desires stronger measures, and plaintiffs lack the right to demand specific remedial actions.
The court affirmed the dismissal of a Title IX claim against a school district due to a lack of deliberate indifference after the district learned of sexual assaults against a high school student. Following the incidents, the district recommended an out-of-district program for the student, which was rejected by her and her parents, leading to the provision of individual tutoring instead. The student, Butters, raised concerns about the process, including the requirement for her to testify multiple times and the appeals process. However, the court indicated that whether the university could have implemented a more victim-friendly approach or adhered strictly to its policies was not relevant to the determination of deliberate indifference. The key issue was whether the university's response was "clearly unreasonable." Drawing on case law, the court concluded that no reasonable jury could find the university’s actions to be clearly unreasonable enough to constitute deliberate indifference. Consequently, the court granted the university’s motion for summary judgment, dismissing the case from the active docket. The court noted that while JMU found, by a preponderance of the evidence, that Butters had been sexually assaulted, she had not filed any criminal charges and acknowledged limitations in the evidence, such as the quality of a video related to the incident.
The court determined that the video in question does not definitively indicate whether the encounter involved consent, viewing the facts in a light favorable to the plaintiff. It deemed ambiguous the issue of consent, leading to the conclusion that James Madison University (JMU) could reasonably find the video insufficient to demonstrate that a sexual assault occurred. The court's denial of JMU’s motion to dismiss was partly based on the complaint alleging that the plaintiff, Butters, requested the defendants to cease the video's dissemination. The court noted that JMU’s inaction could be seen as deliberate indifference, potentially exposing Butters to further harassment. However, discovery did not reveal evidence of continued dissemination after JMU was informed.
Polglase, not affiliated with JMU's Office of Judicial Affairs (OJA), had not received Title IX training, though JMU’s Title IX Coordinator, Robinson, affirmed that training was conducted at all relevant times. Despite Butters claiming she wanted JMU to act against the assailants without revealing her identity, the evidence did not substantiate her request for JMU to halt the video's circulation. Butters highlighted that some assailants retained JMU email access. A commentator suggested that the deliberate indifference standard may facilitate ongoing gender inequality in educational settings.
The Derby Days event, organized by the Sigma Chi fraternity, was off-campus, and JMU argued it lacked authority over the fraternity's private property to manage the assailants’ participation or residency there. Additionally, the text references a case involving school district negligence concerning a teacher's inappropriate conduct towards students, underscoring issues of institutional responsibility and the psychological impact on victims.
