Fraternity Rape Title IX Claim Against Brown Survives Motion to Dismiss

The federal district court in Rhode Island recently denied Brown University's motion to dismiss a Title IX claim in which a female student alleges Brown is liable for damages as a result of the university's response to her having being drugged and raped at a fraternity. According to the plaintiff,  called Jane Doe in the case, one student ("Smith") mixed her drink; later on, another student ("Jones") had sex with her while she was incapacitated. The next morning, Doe received medical treatment at the university health center. At Doe's request, the health center sent out samples of her blood and urine for drug testing at the local hospital, which was how she discovered she had been dosed with the date-rape drug, GHB. The university initiated three disciplinary proceedings: against Jones, Smith, and the university's local chapter of the Phi Kappa Psi fraternity. But when university-retained medical expert concurred with Smith's expert that the hospital's drug testing had been faulty, the university responded by dropping the charges against Smith and the fraternity. (Jones had already been found "not responsible," and Doe's appeal was denied.)

Doe's subsequent lawsuit against Brown included several claims that the district court dismissed in response to a motion by Brown.  But the court retained the Title IX claim and allowed it proceed to the discovery phase of litigation because Doe's allegations, if proven, could be sufficient to convince a jury that Brown is liable under Title IX.  Specifically, Doe alleged that Brown was responsible for the fact that the hospital's drug test was later undermined because university officials continued to send the blood and urine samples "to a laboratory incapable of conducting definitive tests for date-rape drugs – despite Brown's knowledge that other female students reported being drugged at campus events." This allegedly allowed Brown to frame the decision to drop the case against Smith as a matter of insufficient evidence, and hide the fact that it was actually doing it as a favor for Smith's father, a university trustee.  Doe alleges that Brown's actions exonerating the fraternity and the two students led to harassment from other students, including a leaflet campaign by the fraternity, that the university did not address.  

Universities often succeed at dismissing Title IX claims like this one because the standard that plaintiffs must satisfy -- that the university's response amounted to deliberate indifference -- is a difficult one to meet, particularly when the university engaged in some kind of disciplinary response. I think the plaintiff succeeded here in getting over that preliminary hurdle because cover ups like the one she alleged here in favor of the trustee's son, are easy to see as "deliberate."  It will be interesting to see if the parties continue to litigate or whether they settle now that plaintiff has the opportunity to amass evidence in support of the allegations she has made.

Decision: Doe v. Brown University, 2018 WL 443504 (Jan. 16, 2018).

Alpha Chapter distributed leaflets to the University community that disclosed confidential information regarding Doe's allegations

JANE DOE, Plaintiff, v. BROWN UNIVERSITY; PHI KAPPA PSI, INC.; JOHN SMITH; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER PRESIDENT R.H.; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER SECRETARY 1; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER PRESIDENT J.P.; & PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER SECRETARY 2, Defendants., No. CV 16-562 WES, 2018 WL 443504, at *4 (D.R.I. Jan. 16, 2018)

Alpha Chapter distributed leaflets to the University community that disclosed confidential information regarding Doe's allegations

JANE DOE, Plaintiff, v. BROWN UNIVERSITY; PHI KAPPA PSI, INC.; JOHN SMITH; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER PRESIDENT R.H.; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER SECRETARY 1; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER PRESIDENT J.P.; & PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER SECRETARY 2, Defendants., No. CV 16-562 WES, 2018 WL 443504, at *4 (D.R.I. Jan. 16, 2018)

Without this evidence, according to Doe, Brown had an easier time convincing the campus community and general public that its reason for discontinuing its disciplinary process concerning Smith was a lack of evidence, and not in furtherance of a secret design to drop the case as a favor to Smith's father, a University trustee – a decision that was at least curious given that Brown officials had found in the proceedings against Alpha Chapter that Smith had spiked Doe's drink.

JANE DOE, Plaintiff, v. BROWN UNIVERSITY; PHI KAPPA PSI, INC.; JOHN SMITH; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER PRESIDENT R.H.; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER SECRETARY 1; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER PRESIDENT J.P.; & PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER SECRETARY 2, Defendants., No. CV 16-562 WES, 2018 WL 443504, at *4 (D.R.I. Jan. 16, 2018)