By: Paula Lavigne (ESPN Staff Writer)
In a court filing Friday, the U.S. Department of Justice accused the University of Nebraska of “erroneously” misapplying, conflating and misreading Title IX sex discrimination laws in regards to nine former female students who filed a lawsuit that includes accusations against at least five athletes at the school.
In a 24-page “statement of interest” — essentially an amicus brief — Justice officials state that the university is citing the wrong standards and adopting an unnecessarily restrictive definition of what it means to suffer harassment and discrimination under Title IX.
It is rare for the nation’s top law enforcement agency to take such an action in a university sex discrimination case. Federal officials filed a statement of interest in a 2016 Title IX sexual assault lawsuit against Kansas State University and a 2010 Title IX claim against Quinnipiac University regarding equal opportunity for women in sports.
Sometimes “statements of interest” are used to communicate federal policy intentions on civil rights matters that extend far beyond the case at hand. For example, in the Nebraska filing, the agency rejects controversial Title IX precedent set recently by another federal court and makes several broad statements about what constitutes discriminatory acts in Title IX sexual assault and violence claims.
Over the past several months, DOJ attorneys have interviewed plaintiffs in the Nebraska case and other interested parties, sources told ESPN. Representatives from the DOJ did not immediately respond to requests for comment.
The Nebraska reports came to the attention of federal investigators after nine women sued the university in July 2020 in the U.S. District Court for the District of Nebraska alleging violations under the Title IX gender equity law, as well as racial discrimination, negligence and lack of due process; some of those non-Title IX claims have been withdrawn.
The university said in a statement on Friday: “We remain confident of our legal position and are pleased that the vast majority of claims were dropped by the plaintiffs. Beyond that, we cannot comment on pending litigation.”
In the lawsuit, Nebraska officials state that the judge should dismiss the women’s complaint because the women couldn’t claim the university knew that the alleged perpetrators — all male students — posed a risk to them before they were assaulted or harassed. But the DOJ filing states that the university is wrong, noting that the women allege only that Nebraska knew about their reported sexual assaults and harassment after they happened.
Nebraska also argues that the women’s claims fail because they do not allege that the school’s “deliberate indifference caused them to be harassed again by the same harassers,” and that a single instance of sexual misconduct isn’t enough to prove discrimination. But the DOJ states that, depending on the nature of the claim, the law doesn’t require someone be assaulted multiple times and/or by the same attackers.
In the filing, the DOJ cites a 2019 ruling by the U.S. Court of Appeals for the Sixth Circuit that it states sets up an “absurd” requirement “inconsistent with Title IX’s goals.” That appeals court ruling, which states that students must be sexually harassed or assaulted at least twice before a school can be held liable, has forced the dismissal of several recent Title IX lawsuits, including one in February involving three former Michigan State basketball players.
The DOJ’s statement in the case provides a boost to the plaintiffs because it states the law applies to their pattern of claims, although the DOJ states it takes no position on whether the plaintiffs’ specific allegations back up those Title IX claims.
Plaintiff’s attorney Karen Truszkowski said the filing “lends support to our argument that there is an inherent issue in the Title IX office with the way that they respond to Title IX claims [and] supports our response that this complaint should not be dismissed.”
The women stated in the initial lawsuit that the school mishandled complaints of sexual assault and harassment, including reports involving accusations against at least five Nebraska athletes. They also allege that school officials made errors in investigations of some of the women’s reports and did not provide academic help in cases in which the incident or resulting trauma interfered with their studies.
Two of the football players referenced in the lawsuit are Katerian LeGrone and Andre Hunt, who were expelled from Nebraska in April 2020 after Title IX investigators found them responsible for having sexually assaulted a female student. They were also criminally charged, and in April, a jury found LeGrone not guilty. Hunt pleaded guilty to a reduced misdemeanor charge of providing false information to law enforcement.
Hunt and LeGrone were the subject of multiple other separate reports of alleged sex offenses, although none of those resulted in criminal charges. One of the plaintiffs, former Nebraska volleyball player Capri Davis, alleged that the two men had groped her at a party and later retaliated against her for having reported them to Title IX.
According to the lawsuit, the university did not promptly or properly investigate the groping allegation or reported retaliation and did not find Hunt or LeGrone responsible for either. Davis played for Nebraska’s top-10-ranked volleyball team until fall 2019, when she transferred to Texas.
According to the lawsuit, Davis said she transferred because of the school’s handling of the groping report, as well as an incident in which she said university communications staff advised her to publicly address a false rumor that she was pregnant with the child of a different football player. She said she didn’t receive support from the university in dealing with the harassment that came from that incident.
The filing notes that Nebraska seeks to dismiss all of the plaintiffs’ claims of retaliation “by misapplying the Title IX case law” in saying retaliation by other students doesn’t count. But the DOJ attorney states, “retaliation by a student’s peers, and not just retaliation by the school itself, can support a claim for damages under Title IX” where a school knows about the retaliation “and responds with deliberate indifference.”
The judge in the lawsuit has yet to rule on Nebraska’s request to dismiss. The university has until July 7 to respond to the latest filing.