SALT LAKE CITY (CN) — After two years of legal proceedings, a federal judge in Utah has dismissed a Title IX lawsuit brought against two universities on Friday, ruling the schools can only be held liable for rape in cases which they have substantial control over the accused rapist and the context of the assault.
The order handed down from U.S. District Judge David Barlow on Friday parallels proceedings in Utah criminal courts this month, where former University of Utah linebacker Sione Lund, 23, is facing charges for rape and sodomy for the same assault.
In 2021, a sophomore student from Utah Valley University sued her university along with the University of Utah and the Utah System of Higher Education, claiming the schools’ Title IX offices sent her away after she was raped by Lund.
According to the victim’s initial complaint — who’s lawyer confirmed she is comfortable with using her name publicly as Marissa Root — Utah Valley knew of her assault since September 2019, while the University of Utah knew since October 3, 2019. Meanwhile, the Utah System of Higher Education had notice as well, and yet neither institution investigated the assaulted nor aided, according to Root.
“More egregiously, the U of U told plaintiff that their obligation was to the football player, not her, and that her best option (without knowing all of the circumstances of plaintiff’s incident, only that it involved a football player from the U of U) was to go through their alternative dispute program. Further, the U of U dissuaded Plaintiff from reporting the assault to the police,” according to Root's December 2021 complaint.
Root’s university was even less helpful, apparently telling her that it couldn’t help her because Lund wasn’t a student, or someone living on campus and recommended that she report the incident to Utah’s Title IX office to “scare” the football player from “actually violently raping someone.”
Lund was allowed to stay on Utah’s football team until March 2020 when the school learned the police were investigating. Nonetheless, the institutions themselves are still off the hook when it comes to how they respond to students’ reports of rape due to precedents of the U.S. Supreme Court and the Tenth Circuit.
As explained by Barlow in his decision on Friday, the Supreme Court has “made it clear that in a private suit for damages, a plaintiff alleging deliberate indifference under Title IX must show that the defendant had substantial control over the harasser and the context of the harassment.”
The judge added the Supreme Court explained that deliberate indifference — Root’s primary cause of action — “makes sense as a theory of direct liability under Title IX only where the funding recipient has some control over the alleged harassment.”
“In examining Title IX, the court found that ‘[t]he statute’s plain language confines the scope of prohibited conduct based on the recipient’s degree of control over the harasser and the environment in which the harassment occurs,” Barlow wrote. “As a result, the Supreme Court concluded: ‘These factors combine to limit a recipient’s damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.’”
He further added that the Tenth Circuit has found that a recipient or school’s invited guests participating in its programs or activities may be within its control or “disciplinary authority.” Therefore, the statute requires that the harassment must occur under the operations of a funding school and while under the district’s control.
“In plaintiff’s opposition to UVU’s motion to dismiss, plaintiff does not point to any fact allegations that would make it plausible that UVU had substantial control over the harasser or the context of the harassment. Instead, plaintiff seemingly cedes the point,” Barlow wrote, later explaining that her attacker was not a student and that the assault occurred at his residence off-campus.
“Because the second amended complaint does not make it plausible that UVU had substantial control over both the harasser and the context of the harassment, the claim against UVU must necessarily fail as a matter of law,” Barlow wrote. "Therefore, it is dismissed.”
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