Ross v. University of Tulsa
180 F. Supp. 3d 951
N.D. Okla.2016Background
- Abby Ross, a TU sophomore, alleged Patrick Swilling (TU basketball player) raped her on Jan 27, 2014; she reported to Tulsa Police and TU Dean of Students Yolanda Taylor; TU conducted an investigation and Taylor held a student-conduct hearing and found no violation; Ross left TU and sued under Title IX and Oklahoma tort law.
- Prior to Ross’s report, there were three prior allegations involving Swilling: a 2012 report at the College of Southern Idaho (CSI), a June 2012 on-campus report by "Jane Doe 1," and a 2013 incident where a student said Swilling entered her bedroom and left after being interrupted; TUCP (campus police) handled the 2012 call but did not create a formal report and did not notify Taylor at the time.
- TU’s Sexual Violence Policy and General Procedures (post-DCL revisions) generally bar consideration of prior complaints that did not result in a finding of responsibility and deem past sexual history irrelevant except where directly related; the DCL encouraged prompt investigation and use of the preponderance standard.
- Taylor presided over Ross’s March 2014 hearing, excluded consideration of prior allegations as “past sexual history,” redacted those references from materials, and rendered a no-violation decision after receiving investigative materials; outside counsel Cremin reviewed and edited Taylor’s draft decision letter.
- Ross’s Title IX theories: (1) TU had actual knowledge from prior accusations and was deliberately indifferent pre-assault; (2) TU was deliberately indifferent in handling Ross’s own complaint (allegedly a sham process). She also asserted negligence-based failure-to-protect and IIED claims; TU moved for summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior reports to TUCP constituted "actual knowledge" to an "appropriate person" creating Title IX liability for prior-accusation risk | Ross: TUCP officers (Downe/Timmons) were appropriate persons with authority; prior reports (2012/2013) put TU on notice of substantial risk | TU: 2012 report was to campus police who were not appropriate Title IX decisionmakers; report was vague and insufficient to show substantial risk | Court: A jury could find TUCP officers were "appropriate persons," but as a matter of law the 2012 report was too vague to show notice of a substantial risk; no Title IX liability on this theory |
| Whether TU’s handling of Ross’s 2014 complaint amounted to deliberate indifference (sham process) under Title IX | Ross: TU excluded prior allegations, curtailed witnesses, and manipulated process — a pre-decided/sham hearing that was deliberately indifferent | TU: TU investigated, suspended Swilling, held a hearing, and followed counsel and policy; process was not clearly unreasonable | Court: Although sham-process liability is cognizable, Ross offered insufficient evidence of pre-decision, intentional manipulation, or clearly unreasonable conduct; no Title IX liability on this theory |
| Whether TU owed a common-law duty to protect Ross (negligent failure to protect/ supervision) based on special-relationship/control over Swilling | Ross: TU controlled student status/housing, knew or should have known of Swilling’s dangerous propensities from prior reports, so a duty arose | TU: Universities do not generally owe such special-relationship duties; single vague report did not create knowledge or foreseeability | Held: No legal duty as a matter of law (control limited; knowledge insufficient; one report where victim refused to proceed is not enough) |
| Whether TU’s conduct supports IIED claim | Ross: TU’s process and refusal to consider prior allegations caused severe emotional distress deliberately or recklessly | TU: Process was not extreme, and it investigated and held a hearing; no intentional or outrageous conduct | Held: IIED fails — no evidence of intentional/reckless extreme conduct; summary judgment granted |
Key Cases Cited
- Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (U.S. 1998) (private damages under Title IX require actual notice to an appropriate official and deliberate indifference)
- Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (U.S. 1999) (Title IX deliberate-indifference standard for student-on-student harassment; response not "clearly unreasonable")
- Escue v. N. Okla. Coll., 450 F.3d 1146 (10th Cir. 2006) (elements for Title IX peer-on-peer liability and discussion of notice from prior complaints)
- Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238 (10th Cir. 1999) (Title IX imposes liability only where school’s own deliberate indifference caused denial of equal educational access)