Tuesday, November 07, 2017

Plaintiff in Title IX Marquette Lawsuit Complained to Office for Civil Rights

We have blogged about former Marquette student Jane Doe (a pseudonym) who is suing Marquette for the treatment she received following her alleged rape (and also for Marquette’s failure to properly punish the accused rapist before the alleged rape).

We declined to draw any firm conclusions about the case, since many of the people involved refused to talk about it. We did note the implausibility of a concerted conspiracy against her in the College of Nursing, where she claims she was badly mistreated and eventually forced to leave Marquette.

In addition to filing a lawsuit, Doe filed a complaint with the Department of Education’s Office for Civil Rights, which that office received on July 7.

Here is the statement that Doe provided the OCR.

On a form asking what she wanted from Marquette, Doe responded:
I request censure for MU and acknowledgement that corrective action has occurred preventing other students from enduring this treatment. Because I was forced to withdraw from MU, I would like help in entering other schools. I should also receive reimbursement for tuition and related expenses (including legal expenses).
The narrative she supplied OCR mostly recounts the same claims she made in the Complaint in the Title IX lawsuit, with an exception or two. A key claim in the Complaint is that Marquette’s Department of Public Safety discouraged her reporting the alleged rape to Milwaukee police. A fuller account of her claims is given in the narrative.
I told my parents, who went with me to report the assault to MU department of public safety (MU DPS). The MU DPS told me and my parents to think long and hard about reporting to Milwaukee Police because if they don’t charge him, he would find out and possibly act out against me; Did I really want him to know that I have reported him; I should think long and hard about this before calling the police. At this time, the DPS officers were aware of [redacted] and status with Marquette.

Even though MU discouraged us from [redacted] my parents and I did not think that was the right to to do. We reported to Milwaukee Police Department.
If this account is accurate, officers at Public Safety blundered badly. Note, however, that had they encouraged her to report the rape, the outcome would have been the same. She would have faced the investigation of her case by the Milwaukee Police, the long-delayed trial of her accused rapist, rape charges against her filed by her accused rapist (in apparently reprisal) and so on. So it will be difficult, in her lawsuit, to prove that any damages followed from this alleged blunder by DPS officers.

Office for Civil Rights Responds

The Office for Civil Rights judged her complaint under two rubrics: (1) Discrimination, and (2) Retaliation.

The complain based on discrimination was dismissed, based on the fact that she was late filing the complaint. The letter from Dawn Matthias (OCR team leader) said:
You informed OCR that you did not file your complaint within 180 days because you were afraid the University would retaliate against you. However, this is not an acceptable basis for a waiver of the 180-day filing requirement.

Because your allegation of discrimination is not timely and OCR finds no basis for granting a waiver, OCR is dismissing this allegation effective the date of this letter.


The Office for Civil Rights likewise dismissed the claim of retaliation, saying:
Although you contend that the Associate Dean who denied your grade appeals was aware of your report of sexual assault, you did not provide information suggesting that the Associate Dean’s stated reasons for denying the grade appeals were false or illegitimate. In light of the protracted amount of time between the protected activity and adverse action, and the lack of any indications of possible retaliation, OCR finds that you have not stated a prima facie case of retaliation and is dismissing this allegation.


It might seem that all this is damning for Jane Doe’s lawsuit against Marquette. But it’s not quite so simple. There is no evidence the Office for Civil Rights actually investigated the case. The passage quoted above implies that Doe’s complaint about retaliation was dismissed based merely on the fact that she herself presented no convincing evidence. Several documents from the OCR file were withheld from this blogger (based on privacy concerns) and Lauren Skerrett of the Office for Civil Rights declined to say whether any of them contained more evidence or investigative reports. But the meticulously written letter from Dawn Matthias indicates no additional evidence or investigation, and the redactions in that letter are too minor to conceal such.

But the bottom line has to be that Doe’s case is rather weak. The notion that her alleged rapist should have been suspended or expelled before he raped her only makes sense if his treatment was egregiously lenient, and we don’t know that it was. Further, even guys who are terrible jerks and deserve some punishment aren’t typically likely rapists.

The actions of DPS officers, if they really did discourage reporting a rape, were grossly unprofessional. But it’s hard to see how that changed anything in her subsequent experiences. And evidence of intentional mistreatment by multiple people in the Nursing College is missing.

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