College Title IX Procedures Under Microscope

Chadron State will be the subject of an external review of policies and procedures for addressing sexual misconduct on campus, while the state college system in Nebraska faces a lawsuit alleging similar wrongdoing.

June 2, 2020
 

The family of a student who ended her own life and a Nebraska state college that was aware she suffered relationship violence reached a $900,000 settlement described as “extraordinary” and “fantastical” by higher education law experts.

The lawsuit alleged that Chadron State College, a 3,000-student public college and part of the Nebraska State College System, or NSCS, received multiple notices from teammates and coaches that 19-year-old softball player Fatima Larios was being beaten by her boyfriend from 2014 to 2015, and the college did not adequately intervene or protect Larios from harm. Less than four months later, Larios committed suicide and her family searched for answers.

Now, more than three years of litigation have prompted a commitment from NSCS to review the college’s policies and procedures under Title IX of the Education Amendments Act of 1972, the law prohibiting sex discrimination at federally funded institutions, according to a statement from attorneys for the Larios family. But the review will take place as the college faces another lawsuit from a former student who claims officials failed to meet Title IX obligations again in 2016.

“This settlement ensures that her legacy will endure and that she will continue to help others while also making Chadron a safer and more welcoming community,” said a statement from the Larios family. “We miss Fatima every single day, but know she would be proud that other young women will be empowered, protected and supported by all that is now happening in her name.”

Saundra Schuster, a partner at TNG, a firm that provides sexual assault prevention and response consulting to colleges, and a founding member of the Association for Title IX Administrators, or ATIXA, called the college’s response to Larios’s abuse “egregious.” The college did not have a full-time Title IX coordinator around the time of Larios’s death in 2015, but employed Shelley Dunbar as both the coordinator and director of human resources for college employees, according to the Larios family’s lawsuit.

Dunbar sent Larios a “very legalistic sounding” letter, which stated it was the college’s obligation to reach out to her and notify her of the college’s resources after learning of her boyfriend’s abuse, but Dunbar did not encourage or compel Larios to seek help or take steps to protect her, said Schuster, who served as an expert witness for the family in their lawsuit against Chadron State. Dunbar also asked Larios’s softball coaches, who had “zero” training on matters of intimate partner violence, to talk to Larios about the abuse, another failure by the college, Schuster said.

“It was such an incredible series of missteps that allowed this situation to fall through the cracks,” Schuster said. “These were individuals who had some level of training. They disregarded their obligation, or it was just sloppy work.”

George Martin III, a partner at the law firm Baird Holm and lawyer for the state college system, said having Larios's softball coaches talk with her was a conscious decision by the college because of their close relationship. They were not trained on Title IX by ATIXA's standards, but they were the most qualified to deal with personal issues that arose on the team, Martin said.

Even full-time Title IX coordinators are not expected to be trained in risk assessment or carrying out a plan on their own to protect students who are stuck in dangerous situations, Schuster said. Part of ATIXA’s own programming for coordinators includes training them to know when “they’re in over their heads” and they should outsource help from community organizations, such as rape crisis centers or domestic violence shelters that are equipped to handle victims of intimate partner violence, Schuster said.

Peter Lake, director of the Stetson University Center for Excellence in Higher Education Law and Policy, said he believes the college fulfilled its obligation under Title IX to point Larios to its resources to support her, an offer she did not take up. Lake served as an expert witness on behalf of Chadron State, and he said during testimony that his analysis of the case showed “a lot of compassionate interaction attempting to connect with Fatima that did not work.” In an interview, Lake said Title IX legal matters do not come down to whether a college was “negligent,” or “being ideal,” but that they were “deliberately indifferent” to knowledge that a student was suffering abuse.

There is also no federal requirement for colleges to have a full-time Title IX coordinator, but rather regulations that mandate an employee perform the role of one, Lake said. Even guidance from the United States Department of Education during the Obama administration, which is known to have held colleges to a high standard of response under Title IX, recognized that smaller and lower-resourced colleges could function without a full-time coordinator, Lake said.

Chadron State has since hired a full-time Title IX coordinator and was in the process of doing so before Larios took her life, Martin said. He and the Larios family’s lawyer, Antonio Romanucci of Romanucci & Blandin LLC, acknowledged that the college’s Title IX issues did not lie within its written policy, which states that third parties can notify the state college system’s Title IX coordinators of misconduct, including dating violence, and that would mean the college has “notice” of the actions. Romanucci said that the Larioses’ lawsuit was based on how Chadron State staff members failed to execute the policy.

“Chadron had not one, not two, but three or four different notices that Fatima was suffering from some dating violence that should’ve instituted the Title IX policy in place,” Romanucci said. “Had it been engaged, then the policy would’ve fixed the issues that they were notified of.”

One of the terms of the Larios family settlement is for Chadron State to undergo external review of its Title IX policies and procedures for three years by Gina Maisto Smith, chair of the Institutional Response Group for the Cozen O’Connor law firm. According to the settlement agreement, the state college system will consider Smith’s recommendations for changes to the way Chadron State handles Title IX complaints. Martin said the practices at Chadron State, or those at the system’s other two campuses, have not changed as a direct result of Larios’s suicide or the lawsuit, but he said there is a possibility that the review will prompt modifications.

“All schools have an evolving policy, but ours hasn’t materially changed in the last several years,” Martin said. “It didn’t change after the settlement, it didn’t change because of the settlement, it didn’t change because Ms. Larios killed herself … Of course to the extent that we need to modify policies again, we will. That will be part of our ongoing review process.”

But as it conducts this review, the state college system will remain in Nebraska district court for another Title IX lawsuit filed by a female student in 2017, which will go to jury trial in October. The lawsuit alleges Chadron State did not adequately discipline a male student who was found responsible and admitted to sexually assaulting a female student in 2016.

Another part-time Title IX coordinator for the college, Anne DeMersseman, who served as both coordinator and director of human resources at the time, determined the male student “had an insufficient understanding of consent” and was “emotionally immature,” but did not find him dangerous to the campus, according to an opinion ordering a trial by Judge Joseph Bataillon for the U.S. District Court for the District of Nebraska. The male student was allegedly given reading materials, assigned to counseling sessions and ordered not to contact the female student, but he was not suspended or expelled for his actions, which Bataillon wrote “shows that the college arguably turned a blind eye to nonconsensual sexual encounters.”

“Although the college asserts it was unaware that the assailant was violating its ‘no contact’ order, college administrators could be viewed as willfully blind to that circumstance,” Bataillon wrote. “College officials had actual notice of the incidents and a reasonable juror could find that the college understated or trivialized the seriousness of the conduct.”

Maren Lynn Chaloupka, a lawyer for the female student suing Chadron State, declined to comment on the upcoming trial. Martin, who is also representing the college in the more recent lawsuit, said the two Title IX lawsuits within the last five years are “vastly different” and that Chadron State expects to prevail through the jury trial come October.

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