Arkansas Attorney General Leslie Rutledge on Monday filed a legal brief supporting the University of Arkansas in arguing that the state's sovereign immunity should force a federal appellate court to dismiss a former student's Title IX lawsuit against the school.
The attorneys general from six other states -- Arizona, Kansas, Louisiana, Nebraska, South Carolina and Texas -- joined in the filing from Rutledge's office.
The former student filed a lawsuit last year in U.S. District Court in Fayetteville alleging that UA acted with "deliberate indifference" when in 2014 she reported being raped by another student.
The lawsuit states that the university violated Title IX, the federal law that prohibits sex-based discrimination at schools that receive federal funding. Federal authorities have said that under Title IX, schools must promptly and effectively address sexual harassment and sexual violence.
The Rutledge filing, like a Jan. 30 brief from attorneys for UA, cites sovereign immunity. The legal concept for states goes back to the U.S. Constitution. Questions of sovereign immunity in part involve whether governments and government employees should be shielded from lawsuits.
The case against UA "presents an important legal issue about states' sovereign immunity from monetary damages," Judd Deere, a Rutledge spokesman, said in an email.
"The question of whether the federal government has expressly revoked a state's immunity from monetary damages in Title IX cases has far reaching implications on Arkansas's sovereignty and our taxpayer dollars," Deere added.
Other Title IX lawsuits filed elsewhere by students or former students at times resulted in high-profile settlements, such as when Florida State University in 2016 announced a $950,000 settlement.
The former UA student's lawsuit names UA-Fayetteville and the UA System's board of trustees as defendants.
Allegations include that UA improperly handled a campus disciplinary process, failed to properly train a disciplinary panel that heard the case and did not implement policies to clarify "the procedure for trainers, coaches and student-athletes to follow when a student-athlete is the victim of sexual assault."
Her lawsuit seeks punitive and other damages, attorney's and expert fees and "other relief of which this Court deems just and proper."
Attorneys for UA sought to have the case thrown out, but U.S. District Judge P.K. Holmes III in November ruled that "dismissal is inappropriate at this stage," with UA turning to the 8th U.S. Circuit Court of Appeals.
Erin Buzuvis, co-founder of Title IX Blog and a law professor at Western New England University School of Law, said in an email that the involvement of seven states' chief legal officers "signals that states are using the case as the context for a coordinated effort to push back on the federalization of civil rights."
Rutledge and the six other attorneys general are Republicans. Buzuvis described their involvement as pushing for a "'states' rights' approach to government that would prefer less federal power over the states."
The most recent filing notes that the court's decision "will be controlling authority" for two of the states joining in what is known as an amicus curaie, or friend of the court, brief. The 8th U.S. Circuit Court of Appeals hears cases from Arkansas and Nebraska, one of the states that joined in the brief, as well as five other states.
Buzuvis has said that courts in the past have rejected state universities' arguments for sovereign immunity in several Title IX cases. However, the UA appeal cites a 2011 Supreme Court decision, Sossamon v. Texas, in which the court found that a state taking federal money did not constitute a waiver of sovereign immunity to private suits for money damages under the Religious Land Use and Institutionalized Persons Act. The case did not involve Title IX.
In the brief, Rutledge's office argued that while there is a "constitutional principle" that a state receiving federal funds may consent to being sued, there must be more to establish consent than simply participating in a federal program.
"More specifically, spending-clause legislation does not exact a waiver of damages immunity unless 'Congress has given clear direction that it intends to include a damages remedy,'" the brief states, citing the Sossamon case. "Title IX contains no such clear direction."
Metro on 02/07/2017