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  • A former student alleges that three players raped her in 2015 and the school discouraged her from reporting it, giving Michigan State another legal issue to handle as the Larry Nassar case fallout rages on.
By Michael McCann
April 13, 2018

Michigan State’s treatment of reported sexual assaults has come under national scrutiny in the wake of the Larry Nassar scandal, and the university now faces a new lawsuit brought by a student who says that three basketball players raped her in 2015. As first reported by ESPN’s Paula Lavigne, the student—who is identified by the pseudonym Jane Doe—contends that Michigan State and the three players violated Title IX and the Equal Protection Clause of the Constitution.

The players, who are no longer Michigan State students, are not named in the complaint. However, in an accompanying filing, Doe mentions that each “went on to play professional basketball.” This fact suggests that each of the accused former players had prominent roles with the Spartans.

The alleged incident and its aftermath

Doe’s complaint was filed by attorneys Karen Truszkowski and Julie Jacot in the U.S. District Court for the Western District of Michigan and will be presided over by Judge Paul Maloney. It retells what is described as a horrific evening on Saturday, April 11, 2015.

At the time, Doe was a freshman studying sports journalism. That evening she and her roommate went to Harper’s, a popular college bar in East Lansing. After midnight, members of the Spartans’ men’s basketball team—who had recently been eliminated in the Final Four by Duke—also arrived at Harper’s.

One player noticed Doe in the bar. He then approached her and asked if he could buy her a drink. She said yes, which led the player to inquire if Doe would like to meet the “other guys” on the team. As a sports journalism major, Doe reasoned that it would be sensible for her to interact with players. Her complaint stresses that “at no time” did she have any “romantic interest” in any of the players.

While Doe spoke with other basketball players, one asked her if she would like to visit his apartment so that she could attend a “party” there. She accepted. One player then drove Doe and a teammate to an off-campus apartment. Upon arriving Doe realized there was no party. Instead, only a few people were there.

Doe then began to feel physically unwell. She emphasizes that she did “not have a lot to drink” that night. Inexplicably, she felt discombobulated and unable to control her hands, saying she couldn’t even type a text message. She also felt unusually hungry and thirsty. Doe believes these symptoms suggest that she was drugged. Date rape drugs are known to cause physical weakness and confusion, which lead to an inability to provide informed consent to sex.

One player then pulled Doe into a bedroom and told her “you are mine for the night.” Doe, however, was able to leave the bedroom. When Doe returned to the living room, another player asked if he could show her “basketball memorabilia” in his adjacent bedroom. She agreed. Instead of showing Doe memorabilia, the player threw Doe down on the bed and then raped her from behind. Two other players then came into the room and took turns raping Doe.

A few hours later, Doe woke up on a couch in the player’s apartment. She took a cab back to her dorm room, where her roommate had been looking for her. Doe was “distraught, traumatized and crying.” Doe did not immediately report the incident to the police, but eight days later she visited the Michigan State University Counseling Center, where she told a counselor about the rape.

According to Doe, the university counselor initially seemed sympathetic but that demeanor “completely changed” when Doe revealed that the rapists were “notable” basketball players. At that point, Doe recalls the counselor abruptly altering the process in which she received information. Without explaining why, the counselor announced that a third person—another member of the counseling center—would need to join the conversation.

The two counselors, Doe says, then began to discourage her from pursuing the matter further. They told her that she would face an “uphill battle that would create anxiety and unwanted media attention.” They further explained that she was not alone—prominent Michigan State athletes had sexually assaulted other female students. Yet they used this point not to engender empathy but instead to relay an admonishment. They warned her that other victims who sought justice often experienced “unwanted media attention” and heightened emotional trauma. The counselors advised Doe that her best strategy was not to seek criminal charges or file a lawsuit but simply to look within herself and come to grips with what had happened. Doe says the counselors also failed to advise her to seek a sexually transmitted disease test or a pregnancy test. They also neglected to mention her rights under Title IX and related law. For instance, Doe could have sought a “no-contact order” that would have prohibited the players from visiting her dorm.

Fearful of what might happen if she spoke with law enforcement, Doe declined to report the incident to the police. Doe also did not seek assistance from the Michigan State University Sexual Assault Program for another 10 months. In the meantime, she felt traumatized, depressed and sought psychiatric treatment. She withdrew from her courses in the fall 2015 semester. While Doe returned to school in 2016, she continues to suffer from depression, anxiety, panic attacks and insomnia.

The university context of Doe’s alleged sexual assault

Doe asserts that her treatment by Michigan State officials illuminates a dangerous environment for female students: When they are sexually assaulted by well-known football and basketball players, they are allegedly discouraged from reporting those assaults.

Further, Doe contends that Michigan State officials enable dangerous players by taking measures to “conceal” those players’ names in police records. She also claims those officials attempt to impede credible probes by placing investigations into the hands of coaches and other persons who not only lack relevant expertise but also possess obvious conflicts of interest. This dynamic only further empowers players, who become less fearful of potential repercussions.

Doe also cites the fact that Michigan State has provided the backdrop for a bevy of other sexual misconduct investigations. She writes that the school “is under investigation by the Michigan Attorney General, the NCAA, the Michigan Legislature, United States Congress and Senate, the Federal Department of Education Office of Civil Rights, and the Department of Education Federal Student Aid Division.” This web of examinations arguably underscores Doe’s assertion that Michigan State places female students in unsafe settings.

Breaking down Doe’s legal arguments

Doe’s complaint features two claims against Michigan State. First, she argues that Michigan State violated Title IX of the Education Amendments Act of 1972. While Title IX tends to attract the most attention when applied to college sports, it more generally prohibits sex discrimination in any education program that receives federal financial assistance (Michigan State, like the vast majority of American colleges, falls into that group). To that end, Title IX commands that a student’s sex cannot be used to exclude him or her from participating or receiving educational benefits, including those that relate to student safety.

In cases of student-on-student harassment, Title IX demands that plaintiffs plead enough facts to show the school engaged in “deliberate indifference.” The deliberate indifference standard compels Doe to establish that Michigan State offered a clearly unreasonable response to her mistreatment. Courts have noted that a finding of deliberate indifference requires more than proving that the school was sloppy or disorganized. Likewise, Doe would not prove deliberate indifference by persuading a court that Michigan State should have punished the players—Title IX does not compel schools to implement any specific disciplinary sanctions. Instead, Doe must show Michigan State harmed her through obvious and knowing indifference: school officials knew about what happened and then looked the other way.

In addition, Doe must show that the harassment she suffered was so severe, pervasive, and objectively offensive that it deprived her—and, by extension, other female Michigan State students—of access to the educational opportunities or benefits provided by the school. Doe, who withdrew from classes due to the emotional trauma and psychological distress caused by the incident, asserts that Michigan State knowingly adopts a different and less scrutinizing approach to probing allegations of sexual assault when prominent male student-athletes are implicated. This is shown, Doe maintains, through the school’s use of alternative reporting and investigative procedures. For instance, Doe charges that the athletic director and coaches are entrusted to conduct investigations that ought to instead be handled by trained and neutral experts. Doe also highlights that Michigan State counselors knowingly “discourage and dissuade students who had been sexually assaulted from seeking assistance and protection.”

In addition, Doe contends that Michigan State violated her rights under the Equal Protection Clause of the Fourteenth Amendment. As a public university, Michigan State must ensure that its students are accorded the same rights. Claims for violations of constitutional rights are brought under the federal statute 42 U.S.C. § 1983, which Doe invokes in her complaint.

To advance an Equal Protection claim, Doe must offer enough facts that would establish she was a victim of intentional and purposeful discrimination. As mentioned above, Doe believes that such discrimination occurred when she was discouraged from reporting the incident because it would jeopardize the careers of prominent basketball players. She also stresses that she was intentionally not notified of protections under Title IX and other laws.

Michigan State’s likely defenses

From a public relations standpoint, Michigan State has already responded to the lawsuit—and in doing so it triggered more controversy. On Wednesday, the university offered a detailed and arguably invasive statement denying most of Doe’s allegations. The university did not name Doe, but it denied that its counselors discouraged Doe from either filing a Title IX complaint or contacting the police department. The school’s repudiation of Doe’s claims has sparked criticism. For instance, victim’s rights advocate Brenda Tracy told the Detroit Free Press, “I don’t know how anyone on campus would trust the university enough to go to their counseling center or to report an assault. They would just think the university is going to out them.”

On Friday, interim president John Engler (who joined Michigan State in January) apologized for the level of detail initially offered by the school. In the statement, posted on the university’s website, Engler also reiterated a desire “to assure the campus community that MSU employees are acting lawfully and following reporting protocols, following appropriate treatment protocols, and are not discouraging reporting.”

In the weeks ahead, Michigan State will answer Doe’s complaint and deny her core allegations. As the litigation develops, Michigan State will offer several defenses.

For starters, Michigan State will offer a very different depiction of the facts. The school’s statements this week offer a preview of those arguments. In court filings, Michigan State will portray interactions between Doe and university officials in a favorable light. For instance, Michigan State will assert that Doe’s recollections of conversations between herself and university counselors are factually inaccurate and misleading, and that Doe wasn’t discouraged from reporting the incident. If Michigan State possesses contemporaneous notes from the meetings that advance a narrative favorable to the university, it would have an advantage.

Michigan State will insist that it takes sexual assault allegations seriously, countering Doe's assertions by arguing it responds to allegations by launching credible investigations. As to Doe’s specific claims about sham investigations, the university’s statement on Wednesday claims that neither the team nor the athletic department knew about her situation and thus never investigated it.

Michigan State will likely also argue that Doe hasn’t alleged sufficient facts to show deliberate indifference or violations of the Equal Protection Clause. To that end, Michigan State will cite past decisions where courts refused to find deliberate indifference on the basis of a school’s failure to follow its internal policies and procedures. The university will also stress that it was under no legal obligation to punish the players in any way. Michigan State might acknowledge that its handling of Doe’s harassment was debatable or even below average, but such an acknowledgement would not be an admission of legal wrongdoing: Doe must show Michigan State engaged in actions that amount to intentional discrimination against Doe.

Lastly, Michigan State is poised to claim it is immune from the Equal Protection claim under the doctrine of “Qualified Immunity.” The school will probably cite the Eleventh Amendment, which generally prohibits lawsuits against state agencies—including public universities—unless expressly waived.

The NCAA investigation into Michigan State complicates the university’s decision-making

The NCAA recently launched an investigation into how Michigan State handled the allegations against Nassar. While the investigation will obviously focus on how university leaders addressed concerns related to Nassar and his treatment of female athletes, it is possible that the investigation could—intentionally or unintentionally—extend into other aspects of how Michigan State addresses claims of sexual violence. Such findings could impact Doe’s claims.

Similarly, hundreds of women have sued Michigan State and USA Gymnastics over Nassar-related claims. If such litigation leads to pretrial discovery, current and former Michigan State officials would have to offer sworn testimony and share various records, including emails and texts. This process could expose Michigan State practices that relate to Doe’s claims against the school.

Also, as noted above, multiple entities are investigating Michigan State, from federal and state agencies to law enforcement entities. Some or all of these investigations could uncover materials that might advance claims by Doe and others.

With the prospect of substantial financial liability and NCAA penalties, Michigan State (and its insurance companies) might seek to resolve these various matters out of court. One way to do that would be to pursue financial settlements and commit to institutional changes that would prevent future misconduct. Settlement negotiations, however, are sensitive, and discussion of money as a remedy can itself cause controversy. To that point, on Friday during an MSU board meeting, a Nassar sexual assault victim named Kaylee Lorincz asserted that she rejected settlement offers from Engler on grounds that he (allegedly) focused on monetary amounts rather than on the kinds of structural changes she seeks. The alternative approach to reaching settlements is the university defending itself on multiple fronts and risking the prospect that one front builds on the other. We’ll soon discover which path Michigan State takes.

Michael McCann is SI's legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O'Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.

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