Justice Department argues for Title IX suit against UA; ex-student alleged 'deliberate indifference' after rape report

Posted: November 28, 2017 at 4:30 a.m.

U.S. Justice Department attorneys are backing the decision by a federal judge to allow a Title IX lawsuit against the University of Arkansas, Fayetteville to move forward.

After filing what's known as an intervenor brief Wednesday, the Justice Department is now a party in a dispute over whether a state university like UA can be sued for monetary damages under Title IX.

The university is asking a federal appellate court to dismiss a 2016 lawsuit filed by a former UA student alleging that the university acted with "deliberate indifference" when in 2014 she reported being raped by another student.

Title IX is the federal law prohibiting sex-based discrimination at schools receiving federal money. Federal authorities have said that under Title IX, schools must effectively address sexual harassment and sexual violence.

In the most recent legal brief, attorneys in the Justice Department's Civil Rights Division rejected arguments put forward by UA and Arkansas Attorney General Leslie Rutledge that sovereign immunity shields the university from a Title IX lawsuit seeking monetary damages.

Attorneys general from six other states -- all Republicans, from Arizona, Kansas, Louisiana, Nebraska, South Carolina and Texas -- joined Rutledge in a February filing asking for the suit's dismissal.

The lawsuit, filed in U.S. District Court in Fayetteville, alleges that UA improperly handled a campus disciplinary process, failed to properly train a disciplinary panel, 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."

The suit asks for damages, punitive damages, costs of litigation and "other relief" deemed proper.

UA asked to have the case dismissed, but U.S. District Judge P.K. Holmes III ruled "dismissal is inappropriate at this stage." The university then turned to the 8th U.S. Circuit Court of Appeals, with the case pending there.

Federal civil rights attorneys in the most recent filing cited what's known as the Civil Rights Remedies Equalization Act to argue that UA is not immune from the claim for damages.

The federal law, enacted in 1986, "conditions the receipt of federal funds on State's waiver of their Eleventh Amendment immunity from suit in federal court for violations of Title IX and other civil rights statutes," the court document states.

In its arguments, UA cited a 2011 Supreme Court decision, Sossamon v. Texas, that involved what's known as the Religious Land Use and Institutionalized Persons Act, or RLUIPA. The court found that a state's taking federal money did not constitute a waiver of sovereign immunity.

Federal civil rights attorneys said in the court document that the Sossamon "interpretation of RLUIPA provides no support for the University's claim of Eleventh Amendment immunity." UA "overlooks a critical distinction," the brief states, as, unlike the Religious Land Use and Institutionalized Persons Act, civil-rights law "expressly provides that States are subject to the same remedies, including damages, that are available in Title IX suits against non-state defendants."

Erin Buzuvis, a law professor at Massachusetts' Western New England University School of Law who writes frequently about Title IX, said in an email that arguments presented by UA and the state attorneys general, if they are to prevail, "would be a big deal for Title IX."

Fourteen nonprofit and advocacy organizations in March filed a legal brief arguing that a ruling in UA's favor "would strip millions of students of state universities and K-12 schools of the ability to meaningfully enforce their Title IX rights."

Mark Rushing, a UA spokesman, said the latest filing "is largely a restatement of arguments already presented," calling it "not unexpected for the Department of Justice to participate in a case involving the interpretation of federal statute."

George Rozzell, a Rogers-based attorney for the former student, declined to comment. A spokesman for Rutledge said the office had no comment Monday.

Metro on 11/28/2017


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