Title IX Reporting Requirements Debated at Sixth Circuit

CINCINNATI (CN) – A former softball player at Kent State University urged the Sixth Circuit on Wednesday to revive her case against the school and officials she accuses of covering up her alleged rape at the hands of a baseball player who was also the son of the softball coach.

Kent Hall at Kent State University in Kent, Ohio. (Photo via Pacificboyksu/Wikipedia)

Lauren Kesterson sued the university and her former softball coach Karen Linder in February 2016, and claimed Linder’s son Tucker raped her when the two were freshmen in 2012.

Kesterson said shame kept her from immediately reporting the assault, but she eventually confided in her coach the following spring that she had been raped.

According to the complaint, Linder failed to report the assault as required under Title IX, the federal law prohibiting sexual discrimination in education. Following an investigation by the university, she resigned in August 2015.

Tucker Linder left Kent State before his senior year after being prevented from registering for classes, while Kesterson graduated in 2016.

Interim softball coach Eric Oakley was later added as an additional defendant in the case.

U.S. District Court Judge Sara Lioi granted the defendants’ motion for summary judgment last year, finding that the university not only responded appropriately to Kesterson’s rape allegation, but that coach Linder was not an “appropriate person” for Kesterson’s initial complaint.

Although Kesterson argued her coach could have made things easier after she became aware of the assault, like urging her to file criminal charges or rescheduling practices to avoid contact with her alleged assailant, Lioi refused to impose liability on the university.

“Because Linder lacked the authority to address and institute corrective measures on behalf of Kent State, she does not qualify as an ‘appropriate person’ for purposes of Title IX notice,” the judge wrote.

Lioi, a George W. Bush appointee, also found the university’s response to Kesterson’s complaint – which came more than a year after she told her coach – was not deliberately indifferent under Title IX standards, noting that officials “acted quickly and decisively” and Linder was asked to resign four days after Kesterson met with a Title IX coordinator.

Kesterson’s First Amendment retaliation claim against Linder was also dismissed and the former coach was granted qualified immunity, with Lioi finding that she would not have assumed that failing to report a single incident that occurred over a year prior would be considerate deliberate indifference.

At Wednesday’s hearing in the Sixth Circuit, attorney Ashlie Sletvold of the Chandra Law Firm argued on behalf of Kesterson and disputed Lioi’s finding that Linder was not an “appropriate person” under Title IX.

“It is about who is in a position to help [the victim],” Sletvold told the panel, “whether or not they have a mandatory reporting duty.”

The attorney said Kent State has admitted that Linder had “some ability” to provide assistance to her client, which Sletvold claimed is sufficient to render her an “appropriate person” for reporting purposes.

U.S. Circuit Judges Jeffrey Sutton and Raymond Kethledge, both George W. Bush appointees, sympathized with Sletvold but continually pressed her for a legal precedent to support her position.

“To all of us,” Sutton said, “[Linder’s actions] are inherently wrong … but that’s not the same as saying there’s a legal case.”

Sletvold told Sutton that Linder lacked the authority to refuse to follow the university’s policy regarding reporting procedures.

“Policy is not law,” Kethledge responded.

Attorney Tom Houlihan argued on behalf of Kent State University, telling the panel his client acted appropriately when Kesterson finally made her complaint to the school’s Title IX office.

Houlihan argued that because Linder could not take “official action on behalf of the university,” she was not an appropriate person under Title IX’s standards.

Attorney Lisa Critser argued on behalf of Linder, and asked the panel to affirm Lioi’s decision to grant her client qualified immunity.

Critser cited Linder’s actions after being told about the alleged assault, which included calling Kesterson’s mother and urging her to receive counseling, and also said the school’s policy gave the coach “some discretion” in how to proceed with the information.

“[The policy says] promptly report it,” Kethledge responded. “Where is the discretion?”

The attorney answered by telling Kethledge it was Linder’s belief that because Kesterson did not want to press charges, she also did not want it reported to school officials.

During Sletvold’s rebuttal, the judges once again focused on the appropriate person standard for Title IX cases.

Kethledge told the attorney that it seems “inescapable that we must apply the appropriate person standard.”

“We’re still stuck with the issue of who that person is,” Sletvold answered.

U.S. Circuit Judge Jane Stranch, appointed by Barack Obama, also sat on the panel. No timetable has been set for the court’s decision.

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