Despite ‘Shameful’ Rape Response, OSU Cleared

"OSU's deliberate indifference was intended to protect its fundraising efforts, which were heavily dependent on donors' positive regard for OSU's football program and the image of a safe campus, and consequently OSU subjected plaintiff to a hostile educational environment so severe, pervasive, and objectively offensive that it effectively barred her access to educational opportunities and benefits," Samuelson said in her lawsuit.

The U.S. Supreme Court in 1999 extended liability for Title IX recipients for "deliberate indifference" to teachers who harass students to include school indifference to student-to-student harassment in situations where the school has control over the venue of the harassment and prior knowledge that the harasser is dangerous.

But the court said it did not seek to hold Title IX recipients liable for a student's misconduct. Rather, it sought to hold schools "liable for their own decision to remain idle in the face of known student-on-student harassment."

Samuelson said that directly applied to her situation.

But Judge McShane found that Samuelson's case did not fall into that category because the school had no control over the off-campus party where she was drugged and because her attacker was the cousin of an OSU student, not a student himself.

"OSU does not exercise control over every adult who happens to visit Corvallis. There are no allegations that OSU had any contact at all with Ms. Samuelson's harasser, or that the harasser ever set foot on school property," McShane wrote.

McShane also rejected Samuelson's claims against coach Riley.

Even if Riley knew about Calvin Carlyle's rape of Tracy and "generally allowed a sexually violent culture to exist in the football program," as Samuelson claimed, he did not actively put Samuelson into a dangerous situation with either Carlyle or his cousin, McShane found.

"Mr. Riley did not drop Ms. Samuelson off at the off-campus party or take the drug-filled beverage from Calvin's cousin and hand it to Ms. Samuelson," McShane wrote.

"There is no allegation Mr. Riley ever met or even heard of Calvin's cousin before the filing of this action. Although Ms. Samuelson argues Mr. Riley only suspended Calvin one game after Ms. Tracy's rape, Calvin did not rape Ms. Samuelson. Because there is no allegation of an affirmative action by Mr. Riley increasing the risk that Ms. Samuelson would be sexually assaulted by Calvin's cousin, Mr. Riley is entitled to qualified immunity."

Samuelson's attorney, Katherine Heekin, told Courthouse News that the school's attorneys skewed her argument.

"OSU's lawyers focused on 'How can we have control over a non-student in a non-campus location?'" Heekin said. "They made it seem like anywhere, anytime a student is raped the university is on the hook. But that's not what we were arguing. There is a connection between Brenda Tracy's rape, which the school knew about, and the later rape of Kristin Samuelson.

"They let a culture of sexual violence proliferate," Heekin said. "Had they addressed the culture properly and revisited their own policies on how they deal with rape victims, then we wouldn't have a Title IX claim. But we do.

"The school has to know that this is the deliberate indifference piece. Title IX claims require actual knowledge of sexual harassment and deliberate indifference to it. They had knowledge of Tracy's rape and they didn't change the culture and they didn't re-evaluate their policies and procedures in dealing with victims."

McShane dismissed Samuelson's lawsuit without leave to amend, finding that her reasoning would create a dangerous precedent.

"Ms. Samuelson's theory would extend municipal liability discussed in Canton well beyond the municipal officer's own use of deadly force," McShane wrote. "Instead, Ms. Samuelson's theory would render the municipality liable for the use of deadly force by an associate of an off-duty officer."

Riley, now head football coach for the University of Nebraska, did not return calls for comment on whether the "culture of sexual violence" Samuelson reported has changed.

But Oregon State's approach to handling sexual assault has improved, according to Steve Clark, vice president for university relations and marketing at Oregon State.

"Responses are substantially different at OSU, as they are across the nation," Clark said. "What is different now than in 1999 is that we do have a very complete, well-staffed Title IX office that has investigators fully evaluating in a timely way survivor reports. We have an advocacy center that can help a survivor navigate the many resources on campus, whether it's for the student health center, counseling and the court system.

"In the late 1990s, universities did not enforce their codes of conduct off campus. That's different today. But in this case, we still would not be able to enforce codes of conduct against a non-student."

Heekin said she and Samuelson are deciding whether to appeal.

"I have the sense that the law is evolving in this area because there is lots of discussion about this issue right now in our culture," Heekin said.

"This kind of case is why lawyers at times will argue for an extension of law.

"Do people view the Constitution as stuck in time or as a living breathing document? In the same way that society evolves and views about appropriate conduct change, laws adjust. Sometimes that happens in legislature - like states reevaluating the statute of limitations for rape - and sometimes the case law evolves. So the question now is, do we appeal, saying Judge McShane's analysis as applied to our case is in error, or do we argue that the law should be extended to reflect reality?"

Heekin said the Ninth Circuit would be a better venue in which to argue for the law to change. While district courts must apply the law as it is, federal appeals courts can apply the law as they think it should become, she said.

"Public discourse might create a different review in appellate court," Heekin said. "But more often than not, you won't find a district court going out on a limb, saying, 'This is how things should be.'"

However, Heekin added: "Before there were decisions for equal rights, there were decisions affirming unequal rights."

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