Abigail Ross, who sued the school in August 2014, accused TU of failing to properly investigate Patrick Swilling, whom she says raped her in his campus apartment in 2014. Swilling had been accused of sexually assaulting another victim, referred to as J.M. in Ross’s complaint, in 2012.
The school refused to address Swilling’s past sexual assault accusation during his disciplinary hearing, and Swilling was handed no consequence outside of being suspended from the school’s basketball team.
The Tulsa Federal Court dismissed Ross’s claims in April 2016. U.S. District Judge Terence Kern found the decision not to use Swilling’s previous accusation at his hearing might have been “misguided,” but was not inherently unfair.
“Although intentionally manipulated processes could create Title IX liability in some case, Ross does not have sufficient evidence of any purposeful manipulation of the hearing in favor of Swilling or other ‘clearly unreasonable’ conduct by TU,” Kern wrote.
Tenth Circuit Judges Paul Kelly, David Ebel, and Robert Bacharach affirmed on Tuesday, finding the school had followed its own policies throughout Ross’s ordeal, and that the 2012 accusation lost some of its power because it had not been made to an appropriate Title IX official.
“Campus security officers were the only university employees who knew about reports that J.M. had been raped,” Bacharach wrote for the 10th Circuit panel. “Based on Ms. Ross’s arguments, a reasonable fact-finder could not infer that campus security officers were appropriate persons for purposes of Title IX. …
“Based on Ms. Ross’s arguments, a reasonable factfinder could not conclude that the campus security officers had authority to take corrective action. In the absence of such authority, Ms. Ross’s first theory fails as a matter of law.”
The panel agreed with the trial court that the school had the right to exclude prior reports of sexual harassment from Swilling’s hearing because he had not been found guilty of the 2012 incident. Bacharach’s ruling cites standards set by the U.S. Department of Education’s Office for Civil Rights.
“This guidance indicates that it ‘may be helpful’ for schools to consider evidence of prior acts of sexual harassment when there has been a finding of responsibility,” the opinion states. “This guidance does not recommend use of prior reports in the absence of a finding of responsibility. …
“When the university conducted the hearing on Ms. Ross’s complaint, Mr. Swilling had not been found responsible for any acts of sexual harassment. As a result, the hearing officer did not consider reports of Mr. Swilling’s other acts of sexual misconduct.”
Thus, the panel concluded: “Ms. Ross’s second theory also fails, for it was not clearly unreasonable for the university to apply its policy excluding evidence of other sexual harassment in the absence of a prior finding of responsibility.”