Baylor Can’t Duck Rape Victim’s Federal Lawsuit

WACO, Texas (CN) – A Texas federal judge refused to dismiss a former Baylor University student-rape victim’s deliberate-indifference lawsuit against school trustees, former head football coach Art Briles and former athletic director Ian McCaw, though he pared some claims.

U.S. District Judge Robert Pitman denied Baylor’s motions to dismiss Jasmin Hernandez’s state negligence claim and a Title IX claim that the defendants’ bungling heightened the risk for all students.

Hernandez sued in April 2016, claiming school counselors told her they were too busy to see her after she was raped by former football player Tevin Elliott. Elliott was sentenced to 20 years in state prison in 2014 for the rape. Hernandez claims the school knew of at least six previous assaults Elliott committed against female students.

“‘Disturbing’ is an apt descriptor for allegations that defendants put the interests of the football team or the reputation of the university ahead of other students’ interest in not being sexually assaulted, ultimately leading to plaintiff’s own sexual assault by Elliott,” Judge Pitman’s 27-page order states.

Mounting accusations of rape by football players led trustees to order an external review by Philadelphia law firm Pepper Hamilton in 2015. The findings were damning, as Pepper Hamilton accused administrators of “directly discouraging” women from reporting sexual assaults and in one case retaliated against a woman for it. The fallout from the investigation claimed the jobs of Briles, McCaw and Baylor President Ken Starr.

Pitman wrote that he is “satisfied” Hernandez pled sufficient facts to state a plausible post-reporting sexual harassment claim.

“The court finds that plaintiff has plausibly alleged Baylor was deliberately indifferent to her report of sexual assault, thereby depriving her of educational opportunities to which she was entitled,” the judge wrote. “She also alleges that Baylor failed to adequately investigate her assault and failed to ensure she would not be subjected to continuing assault and harassment.”

Pitman did dismiss an intentional infliction of emotional distress claim and granted a motion to dismiss a Title IX claim that Baylor bungled her post-rape complaints due to the expiration of the statute of limitations. Pitman was not persuaded that her post-assault claim should be tolled.

“Plaintiff knew of her post-reporting injury, including her continuing vulnerability to Elliott’s presence on campus, in 2012,” Pitman wrote. “She also knew that Baylor had failed to intervene. Further, because she notified Baylor of her assault, plaintiff knew the university had actual knowledge of her assault and her continuing vulnerability to Elliott.”
It appeared in June 2016 that the parties were close to a settlement, as Baylor regents filed for a 30-day extension to its deadline for filing an answer.

Hernandez made explosive accusations against Briles that month, claiming he reneged on a promise to apologize to her for using her lawsuit as leverage in negotiating a buyout of his contract.

Her attorney, San Diego-based Alex Zalkin, said Friday they are happy his client will get to pursue her case.

“We’ll have an opportunity as well to expose publicly what really has gone on,” Zalkin told the Waco Tribune-Herald. “Even though we’ve all got a pretty good taste, it seems there’s probably much more behind the scenes that needs to be obtained and exposed.”

Baylor said it is reviewing the judge’s order.

“We understand that some of the plaintiff’s claims were dismissed, while other claims will be permitted to proceed,” Baylor said in a statement. “Baylor will not waver in its promise to continuously improve its processes and systems to respond to incidents of sexual violence or in its support for the well-being and safety of all students.”

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