Monday, November 17, 2014

Court Dismisses Sexual Assault Case Against Northwestern

A federal district court in Illinois has dismissed a female student's lawsuit against Northwestern University that alleges the university did not adequately respond to her report of sexual assault by a professor.  The student claims that when she was a freshman, philosophy professor Peter Ludlow plied her with alcohol and took her to his apartment where he proceeded to kiss and grope her and sleep with her in his bed. The student reported this to another faculty member who informed a university official responsible for sexual harassment prevention. That official conducted an investigation and concluded that the student could not have consented to the professor's advances because she was intoxicated.  In her lawsuit against Northwestern, the student argues that, at that point, Ludlow should have been terminated.  The court, however, disagreed that Title IX required Northwestern to take that particular step. The legal standard for institutional liability in a Title IX lawsuit for damages is that the university respond to notice of sexual harassment with "deliberate indifference." Here, the university sanctioned Ludlow by putting him on leave, denying him a pay raise, prohibiting from having contact with the student in question and prohibiting his social contact  with students overall. Even though the university's response continued to cause the student "considerable grief," it did not qualify as deliberate indifference so as to give rise to liability. The court also denied a second claim that the university took retaliatory action against the student, finding no allegation that the adverse action the student alleged (namely, that she was rejected for a fellowship) was causally connected to her reporting the professor's assault.  Decision: Ha v. Northwestern Univ., 2014 WL 5893292 (N.D. Ill. Nov. 13, 2014).

Though the student's lawsuit against Northwestern has been dismissed, other litigation involving Peter Ludlow remains pending, including a a civil lawsuit that the student has filed directly against Ludlow under the Illinois Gender Violence Act.  Meanwhile, Ludlow has filed various lawsuits of his own.  In one, he sues the university alleging that it discriminated against him in violation of Title IX in the way it handled the investigation and sanctions in the student's case discussed above. This lawsuit also charges discrimination in the university's response to a second student's allegation of Ludlow's sexual misconduct. Ludlow's other pending lawsuit is against that second student for defamation.

The defamation case has raised concerns about the potential chilling effect that the threat of litigation could have on students' willingness to come forward and report sexual misconduct, especially when the accused individual is someone like a professor with the means and resources to respond with a lawsuit of his own.  One way universities could respond to this is to promise to indemnify those students who blow the whistle on sexual misconduct, meaning, that the university would defend them in court and cover any damages assessed.  While some worry this system could operate to let a student get away with filing a false claim of sexual misconduct, the argument in favor of indemnification posits that it's a far worse problem to allow the accused to leverage the fear of litigation to keep victims quiet. It does not appear that any institutions have such an indemnification policy, so it will be interesting to see if the example of Ludlow's defamation case against the student prompts any to adopt one.