Thursday, January 08, 2015

Winston's victim files Title IX lawsuit against FSU

The woman who accused Florida State football player Jameis Winston of sexual assault has filed a lawsuit against the school for Title IX violations. This is not surprising news, and we would not be surprised to see additional legal action against various entities.

But dealing with the complaint at hand: this lawsuit does not (directly) involve Winston but rather how the school dealt with the reported allegations against him. The plaintiff is claiming deliberate indifference (i.e., the university knew of the situation and took no action) and a hostile educational environment.

FSU is already under investigation by OCR and those findings have yet to be issued. The goals of the lawsuit and OCR's investigation are not identical. OCR is not necessarily looking to nor needs to prove that the university acted with deliberate indifference. They will look at FSU's policies and procedures for their suitability and to see if the university acted in accordance with Title IX in investigating claims of sexual assault and harassment. They are not limited to looking only at the case involving Winston. It is possible that OCR's report could be helpful to the plaintiff's lawsuit, but I know of no timeline for the OCR investigation.

So the issue now is whether the plaintiff can prove both of her counts.  Deliberate indifference could be the more difficult if the court perceives that the school did something to address the issue. And FSU did do something--eventually. There was an investigation--albeit quite late--certianly outside the 6-month window in which an investigation is supposed to occur after someone at the university is notified. (FSU police knew the night of the incident in December 2012.) This shifts the consideration to "when" and "how" should be factored into a finding of deliberate indifference. The entanglements between members of the athletics department (one of whom gave Winston's lawyers the police reports about the assault before they even arrived at the prosecutor's office) and the Tallahassee Police could work in the plaintiff's favor. There was clearly a delay in the investigation for reasons that appear to be because Winston is a star athlete. Will this be read as deliberate indifference?

Also, the actions of university officials suggest attempts to suppress the victim's claims against Winston. (These actions contributed to the delay as well.) From the filing: 
Despite being on notice that two women had reported being raped by Winston, on November 12, 2013, FSU Dean of Students Jeanine Ward-Roof (“Ward-Roof”), who supervised Code of Conduct proceedings at FSU, emailed Chief Perry [FSU chief of police] and others at FSU stating that no disciplinary proceedings against Winston were going to take place.

This initial decision suggests the desire to suppress any information about the assault and lead to delay even further the Title IX-mandated investigation. To me, this reads "we know; we're not doing anything about it."

The delay and suppression hypothesis is reaffirmed by the following, also from yesterday's filing:
Despite FSU Police being on notice within an hour of the rape on December 7, 2012 and the FSU Athletics Department’s awareness of the rape in January 2013, the incident was never reported by either of those departments to FSU’s Title IX Coordinator.

There is an entire section of the complaint that details how FSU athletics department personnel in concert with the Tallahassee Police, worked to conceal the allegations and prevent an investigation. This section implicates football coach "Jimbo" Fisher in the cover-up, as well as other administrators and FSU's chief of police as noted in this passage:
Chief Perry also told Jeanine Ward-Roof, the FSU Dean of Students who supervised the Title IX Coordinator, the SRR Office and the Victim Advocate Program, what was going on. Ward-Roof informed Chief Perry in an email at 1:16 p.m. on November 12, 2013 about the second student accusing Winston of sexual assault and assured Chief Perry that an SRR Code of Conduct proceeding against Winston for raping Plaintiff would not move forward.
Thus, as of November 12, 2013, the FSU Administration had shut down any
investigation into either of the reports of sexual assault against Winston.

The above is just about the count of deliberate indifference. The second count is about the hostile educational environment created by FSU's indifference and non-compliance with its own policies and the law. The plaintiff was forced to leave school because of the trauma she suffered not just at the time of the rape but in the wake of revelations about her identity.
For Plaintiff, FSU became a sexually hostile environment where her rapist roamed free and could turn up at any moment, where she became the target of death threats and vilification campaigns, and where her rapist could act with such impunity that he posted a video of himself boasting of rape and stood shouting obscene sexual acts.FSU was deliberately indifferent to Plaintiff’s known sexual harassment and the sexually hostile education environment in which she suffered as a result of its failure to institute any accommodations for Plaintiff’s safety, including, but not limited to:
(i) excluding her assailant from campus; (ii) providing an escort for Plaintiff around campus;
(iii) requiring that her assailant not come within a certain distance of her; or (iv) excluding
her assailant from her residence hall and classrooms.

As a result of FSU’s deliberate indifference, Plaintiff was forced to leave
campus and lost her educational opportunities at the university.

She is suing for damages on both counts; amounts will be determined at trial.

In discussing the filing, Erin noted that the plaintiff may be able to show that the university did not follow its own policy about achieving consent. (The student conduct hearing transcript noted that Winston felt consent was given by the victim's moaning. Moaning does not fall under acceptable consent according to FSU's own definition.) This is not a Title IX issue and not included in the current filing, but Erin feels it could be added later as a breach of contract claim. 

So some questions:
How will FSU respond?
Will there actually be a trial? Will FSU settle?

They might think things are going their way given that they seem to have gotten Winston through his time at FSU earning a national championship in the process. But a trial is going to put a lot of administrators both within and outside the athletics department into the proverbial hot seat. And though I would love for a very public demonstration of the extent to which football controls the functioning of the university, I do not think FSU would like that too much. 

And finally, will Jameis Winston (who is not on trial here) ever have to answer more than three questions about the night in question?