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story.lead_photo.caption University of Arkansas students are shown on the lawn in front of Old Main on the campus in Fayetteville in this file photo. ( NWA Democrat-Gazette file photo / David Gottschalk)

FAYETTEVILLE -- A legal question raised by a University of Arkansas, Fayetteville attorney in a court filing Monday proposes that an appellate court review a Title IX lawsuit against the university before a jury trial scheduled for March.

A review could make a trial "unnecessary," the filing states, while a response Tuesday by the former student suing UA claims "the controlling issue of law is not unclear" and that the case is "ripe for trial."

In the lawsuit, filed in 2016, the former student claims the school acted with "deliberate indifference" after her October 2014 report that she was sexually assaulted in her dorm room by another student.

Title IX prohibits sex-based discrimination at schools receiving federal funding. Under guidance from the U.S. Department of Education, schools are expected to investigate student complaints of sexual misconduct.

On Monday, UA stated in court documents that it's a legal question as to whether a Title IX lawsuit claiming "deliberate indifference" must include a claim that further harassment took place after a school received "initial notice of the problem."

An appeal in the case would go to the 8th Circuit Court of Appeals. The court documents filed Monday cite a previous ruling from the 8th Circuit in an unrelated case, claiming that the ruling is relevant to the pending lawsuit.

"While courts in some jurisdictions have allowed Title IX plaintiffs to plead and prove only that they became 'more vulnerable' to harassment, other courts, including the Eighth Circuit, require that they plead and prove actual further harassment by the offending student," states the court brief filed Monday, which cites a 2017 8th Circuit ruling in the case K.T. v. Culver-Stockton College.

The former student, in a court filing Tuesday, claims the university "again overstates K.T.'s application to the issue presented," and that the November order by U.S. District Judge P.K. Holmes III "squarely addressed" UA's position on the issue.

Holmes in November ruled that the case could move forward to trial. His ruling came after University of Arkansas Office of General Counsel attorneys had filed a motion seeking summary judgment in favor of the university.

The university filing Monday states that Holmes' order in November "rejected the notion that there must be another sexual assault (or other form of actionable sexual harassment) following University's initial notice of the problem."

The motion by the university attorney asks that Holmes amend his November order to certify it "for immediate appeal."

If the 8th Circuit rules that "further harassment" is required for a Title IX claim, the university "would prevail against Plaintiff's remaining Title IX claims as a matter of law and a trial would be unnecessary," states the brief, submitted by Joe Cordi, an associate general counsel for the university.

George Rozzell, the attorney for the former student, submitted the response Tuesday, which asked that the court deny the university's motion for appellate certification.

Mark Rushing, a UA spokesman, said in an email, "Everything the university has to say at this time is included in the motion and brief."

Josh Richards, a Philadelphia attorney specializing in higher-education issues, said Title IX remains an emerging area of law. Richards is not involved in the case and said he has not done work for UA.

"This is a case where the areas of law are still getting shaken out," said Richards, an attorney with Saul Ewing Arnstein & Lehr LLP. Only "over the past five years or so" has there been heavy litigation of Title IX claims like in this case, he said.

Richards said that if what's known as an interlocutory appeal is filed by the university, the 8th Circuit would have discretion over whether to take on the case at this stage.

Campus sexual-misconduct investigations are separate from any police investigations.

UA uses a preponderance-of-evidence standard, meaning that disciplinary findings are based on whether misconduct is more likely than not to have occurred. After the report of rape in this case, a university disciplinary panel found a student responsible for sexual misconduct.

Holmes, in allowing the lawsuit to move forward, wrote in November about how UA handled an appeal filed by the student.

The panel had recommended immediate expulsion, but after the appeal, a letter issued by UA -- which officials later said had been issued by mistake -- "delayed his expulsion date until after he graduated," Holmes stated in his November ruling.

The initial appeal decision letter imposed restrictions on the sanctioned student, ordering him to stay off campus for a minimum period of three years or until the student found by the campus panel to have been assaulted was no longer enrolled.

The former student suing UA "alleges the decision communicated in the first letter to [the sanctioned student] confused her, impacted her mental health, and caused her to question whether [the sanctioned student] was still allowed on campus," Holmes stated in his ruling.

The university issued an updated appeals decision letter that made expulsion effective back to the date that the disciplinary panel was convened.

But based on the "misleading nature" of the original electronic notice and the university's "arguable reluctance to provide accommodations, a jury could find it was reasonable for [the plaintiff] to question whether [the sanctioned student] was in fact expelled, even after the second letter," Holmes wrote.

Holmes wrote: "The ultimate question for the jury is whether the University's deliberate indifference following [the student's] report of sexual assault left her with an objectively reasonable belief that she remained vulnerable to harassment so severe, pervasive, and offensive that it deprived her of equal access to the educational benefits and opportunities provided by the University. Because a reasonable jury could make such a finding, the University's motion for summary judgment will be denied."

Metro on 01/08/2020

Print Headline: UA proposes review of lawsuit; ex-student says school acted with 'deliberate indifference' after sexual assault report

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