Judges Largely Dismiss Title IX Lawsuits Against Penn State, University of Nebraska

A federal judge also dismissed a lawsuit filed against the University of Northern Colorado by a student accused of sexual misconduct.
Published: May 23, 2022

Title IX lawsuits filed against two universities have been completely or largely dismissed by federal judges.

In Pennsylvania, U.S Middle District Judge Matthew Brann dismissed claims filed by Jennifer Oldham, a fencing club owner and coach in North Carolina, accusing the university and three individuals of trying to cover up sexual misconduct, reports Penn Live.

The lawsuit claimed on Dec. 12, 2017, Oldham sat next to Penn State’s then-assistant fencing coach George Abashidze on a flight from Portland, Oreg., to Chicago. During the flight, Oldham said Abashidze made numerous lewd comments to her, touched her legs, arms, and face without her consent, and repeatedly demanded that she have sexual relations with him. Oldham said Abashidze then sexually assaulted her, thrusting his hand between her legs.

Penn State launched an investigation and determined the allegations were true but that Abashidze did not violate any university policy. Abashidze was later fired on March 4, 2019, after being banned from USA Fencing activities for three years.

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On Friday, Brann dismissed the lawsuit in part because Oldham had no direct connection with Penn State or its fencing program. The 71-page opinion said Oldham cannot sue under Title IX because she has never been a student or employee of Penn State. It also ruled that her defamation claim fails because it does not specifically identify the circumstances under which the alleged statements were made.

Additionally, Brann dismissed claims of failure to train and supervise employees on sexual misconduct, negligence, and negligent infliction of emotional distress. He did give Oldham permission to file an amended complaint on the defamation and negligent supervision claims by June 3.

While much of the lawsuit was dismissed, Brann chastised the university for its handling of the sexual misconduct complaint given its history with the Jerry Sandusky case.

“We have seen this show before: a long-tenured, highly regarded Penn State athletic coach covering up alleged sexual abuse by an assistant coach. Some lessons should only need to be learned once,” he wrote. “That said, the particularities of the present case make it meaningfully different than its tragic, shameful precedent involving Jerry Sandusky.”

Majority of Title IX Lawsuit Against Univ. of Nebraska Dismissed

Similarly, on Wednesday, Chief U.S. District Judge Robert Rossiter Jr. dismissed much of a Title IX lawsuit filed against the University of Nebraska (UNL) claiming officials acted with “deliberate indifference” in responding to reports of rape and sexual harassment.

Filed in July 2020, the lawsuit alleged UNL officials failed to act in a timely manner because the accused were student-athletes, Journal Star reports. The lawsuit, which was filed by nine women, described instances of rape, sexual assault, sexual harassment, and stalking in addition to retaliation and continued harassment after the allegations were reported.

In his 35-page order, Rossiter said seven of the nine women failed to make a claim that met the standard required of Title IX lawsuits. He also said while UNL did not violate the students’ civil rights or subject them to harassment and retaliation, it did make missteps in investigating their claims.

Two of the women’s complaints are allowed to continue. Rossiter wrote that one of the women was stalked and harassed by an ex-boyfriend who was aided by a university employee who relayed a message to her despite the school issuing a no-contact order.

“These allegations are sufficient to allege (UNL) had ‘prior notice of a substantial risk of peer harassment … based on evidence [of] previous similar incidents of’ harassment,” he wrote.

The other woman reported a sexual assault to a professor and later filed a formal complaint which initiated a Title IX investigation in Nov. 2017. UNL offered the woman accommodations as required by federal law but Rossiter said the student who assaulted her and was in her doctoral program continued to harass her after she filed the complaint, causing her to drop out of the university.

“Such allegations are sufficient to show the discrimination was ‘so severe, pervasive, and objectively offensive’ such that it ‘deprived [her] of access to the educational opportunities … provided by the school,'” he wrote.

Judge Dismisses Lawsuit Filed Against UNC by Accused Student

On the other side of the coin, a federal judge ruled the University of Northern Colorado (UNC) afforded a student found responsible for sexual misconduct the level of procedural protections that the U.S. Constitution requires.

A UNC student reported an allegedly non-consensual encounter with Torrence Brown-Smith to UNC’s Title IX coordinator, according to The Gazette. Following an investigation, Brown-Smith was found to have violated UNC’s code of student conduct. The school rejected his appeal and suspended him for two years, preventing him from graduating in May 2020.

In the original version of the lawsuit, Brown-Smith said anti-male bias played a role in his suspension. U.S. Magistrate Judge Michael Hegarty dismissed the complaint but allowed Brown-Snith to refile. In the new lawsuit, filed in January 2022, Brown-Smith claimed UNC violated his right to due process and that the university “conducted a superficial investigation and hearing biased against” him without affording him basic procedural safeguards.

Although Hegarty ruled against Brown-Smith, he did state UNC’s process for investigating him was flawed.

“Plaintiff has failed to plausibly plead a constitutional violation and to state a claim,” he wrote in the May 10 order. “If the question was whether UNC’s procedures were perfect (or even best practice), the answer would be different.”

In his subsequent complaint, Brown-Smith said multiple parts of the investigation were “procedurally deficient.” In particular, UNC did not confirm his appointment with the hearing officer until 90 minutes prior, even though he was required to submit a list of witnesses or relevant information 24 hours before. Brown-Smith also said he was unaware that his meeting with the hearing officer would be the formal evidentiary hearing in his investigation.

The Colorado Attorney General’s Office argued procedures in a Title IX investigation do not have the same requirements of a civil or criminal trial, noting Brown-Smith knew the allegations against him, received notice of his hearing date, and had the chance to share his perspective with an investigator.

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