The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
REDACTED and AMENDED MEMORANDUM AND ORDER*fn1
This matter is before the court on defendant University of the Pacific's ("defendant" or the "University") motion for summary judgment, or alternatively, partial summary judgment with respect to plaintiff Jane Doe's ("plaintiff") complaint against it. This case arises out of plaintiff, a University women's basketball team member's alleged sexual assault by three members of the University's men's basketball team. Plaintiff's friends informed the University of the assault, and thereafter, the University provided support to plaintiff, investigated the incident, convened a disciplinary board hearing, punished the three male students based on the board's findings, expelling one student and suspending the other two, and precluded all post-suspension contact with plaintiff as well as limited interaction generally between the men's and women's basketball teams, due to tensions that had arisen between the teams after the incident.
By this action, plaintiff claims the University violated Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"), because it (1) did not prevent the assault (first claim for relief); (2) demonstrated "deliberate indifference" to sexual harassment in failing to respond appropriately to her complaint (second claim for relief); and (3) retaliated against plaintiff by instituting a policy limiting unsupervised social interaction between the men's and women's basketball teams (third claim for relief). Defendant moves for summary judgment, arguing that each of plaintiff's claims fail under Title IX's stringent standards: The University took steps to generally ensure the safety of its students, and plaintiff cannot establish the University's liability based on an alleged assault on another former female student which occurred a month prior to plaintiff's assault. Further, the University conducted a fair and impartial judicial hearing, pursuant to University procedures, and Title IX does not mandate a particular remedy as urged by plaintiff; the court cannot second-guess the severity of the punishment imposed by the University on plaintiff's assailants. Finally, defendant contends the University's decision to restrict the basketball players' unsupervised interactions does not constitute a disadvantageous retaliatory action sufficient to support a Title IX claim since the decision was designed to alleviate the rising tension among the players and to protect plaintiff from the wrath of players who did not believe her.
Plaintiff opposes the motion, arguing triable issues of fact remain as to each of her claims. The court heard oral argument on the motion on September 10, 2010. By this order, the court now renders its decision, granting defendant's motion in its entirety.
1. University Policies re: Sexual Harassment and Assault
The University is a private university that has approximately 6,700 students (graduate and undergraduate). (RUF ¶ 1.) It has a "zero tolerance" sexual harassment policy that includes the admonition that the University "will not tolerate behavior that undermines the emotional, physical, or ethical integrity of any community [student] member." (RUF ¶ 2.) Some of the behavior the sexual harassment policy specifically proscribes includes "harassment or bias acts," sexual harassment, and retaliation. (RUF ¶ 3.) One of the University's General University Policies is its Policy Against Sexual Assault which:
(1) applies when the alleged perpetrator or victim is a student;
(2) describes the procedures a student should follow when there is reason to believe "a violation has occurred and the perpetrator is a student;" (3) provides that "violations of [the] policy may result in sanctions up to and including dismissal or suspension from the University;" and (4) states that "[p]rosecution by the criminal justice authorities is not a requirement for the student judicial process to be initiated. (RUF ¶ 4.) The sexual harassment and sexual assault policies are part of the Student Code of Conduct and General University Policies which are contained in the student handbook, Tiger Lore. (RUF ¶ 5.) The University provides these policies to students at the mandatory new student orientation and during various University programs on sexual assault, and the policies are available online on the University's website. (RUF ¶ 6.)
The University presents a number of sexual assault prevention and alcohol education programs throughout the year to its student body. For example, at the mandatory new student orientation, new students participate with trained student leaders in facilitated discussions regarding the University's Policy Against Sexual Assault. During orientation, new students also attend an educational presentation called "The Way We See It," which addresses alcohol, sexual assault, and other challenging situations facing college students. (RUF ¶ 8.) Throughout the school year, the University also brings in nationally recognized speakers to address and educate the University's students on the effects of alcohol and drug use, sexual assault, and other risk factors for college students. These presentations are also made to discrete student groups such as members of the fraternities and sororities and student athletes. (RUF ¶ 9.) Additionally, all University-provided student housing complexes are staffed with Resident Advisors, who receive specialized training to address alcohol, drugs and sexual assault and are required to host educational programs on these topics for their student residents. (RUF ¶ 10.)
Specifically with respect to the University's Athletic Department, every year the University and the Athletic Department hold training sessions on sexual assault issues for students and student athletes. (RUF ¶ 11.) University employees, including the Athletic Director, receive sexual harassment training every two years. (RUF ¶ 12.) The University Athletic Director also attends training specifically on Title IX. (RUF ¶ 13.)
Finally, the University provides support to students who report that they have been a victim of sexual assault, including counseling with the University's professional Student Victim Advocate, medical treatment, if needed, and reassignment of housing or classes if requested by the student. (RUF ¶ 18.) The University's Student Victim Advocate is Maryann Pearson ("Pearson"). (RUF ¶ 14.) Pearson, who is certified in her field, is a former police officer who is on call 24 hours a day, seven days a week, to respond to sexual assault victims, advocate for victims and, generally, be a resource for victims throughout the reporting process. (RUF ¶s 15-16.)
Plaintiff alleges she was sexually assaulted on May 10, 2008. (RUF ¶ 19.) According to plaintiff, a men's basketball player, hereinafter referred to as "Student 1," offered her a ride to another party at campus housing. (RDF ¶ 19.) She asserts, however, that Student 1 did not take her to another party but instead to his campus apartment. (RDF ¶ 21.) Another men's basketball team member, hereinafter referred to as "Student 2," rode with Student 1 and plaintiff to the apartment. Once they arrived at the apartment, plaintiff states that Student 1 and Student 2 took off her clothes; Student 1 made her take his penis in her mouth, while Student 2 raped her from behind. Student 2 eventually stopped, and Student 1 then ejaculated into plaintiff's mouth. Plaintiff states she struggled to put her clothes back on, when a third member of the men's basketball team, hereinafter referred to as "Student 3," came into the apartment. Plaintiff describes that Student 3 forced her into a closet and ordered her to "suck [his] balls;" plaintiff states that she complied with his demands in order to end the situation; Student 3 ejaculated into her mouth and left, warning her not to tell anyone. (Id.)*fn3
After the incident, plaintiff told several friends about the assault,
identifying Student 1, Student 2 and Student 3 (sometimes collectively
referred to herein as "Respondent Students"), as her assailants. (RUF
¶s 20, 22.) One of plaintiff's friends tape-recorded with his
telephone, plaintiff's description of what happened to her.*fn4
(RUF ¶ 21.) Two days
later, plaintiff flew home to Colorado for summer recess without
reporting the assault to either the University or the Stockton Police
Department. (RUF ¶ 23.)
On May 12, 2008, plaintiff's friends told Alisha Valavanis ("Valavanis"), the Women's Assistant Basketball Coach, about the assault.*fn5 (RUF ¶ 24.) Coach Valavanis immediately informed the Head Women's Basketball Coach, Lynne Roberts ("Roberts"), of plaintiff's friends' report of the assault. (RUF ¶ 25.) One of plaintiff's friends played the tape recording for the coaches. (RUF ¶ 26.) Coach Roberts then telephoned plaintiff to check on her well-being. (RUF ¶ 29.) Later that night, Coach Roberts telephoned plaintiff's home and spoke to plaintiff's parents to make sure they were aware of the alleged assault. (RUF ¶ 30.)
Early the next morning, on May 13, 2008, Coach Roberts told Lynn King ("King"), the University's Athletic Director, about the assault, and King immediately contacted the Vice President of Student Affairs, Dr. Elizabeth Griego ("Griego"). (RUF ¶ 31.) That same morning, Griego met with King, Michael Belcher ("Belcher") (Director of the University's Public Safety Department), Coach Roberts, Coach Valavanis and Heather Dunn Carlton ("Carlton") (the University's Director of Judicial Affairs) to determine the next steps. (RUF ¶ 32.) Following the meeting, the University officials interviewed the students who reported the incident. (RUF ¶ 33.)
On May 14, 2008, the University issued a campus-wide safety alert of a possible sexual assault and reported the incident to the Stockton Police Department. (RUF ¶s 34-36.) Also on May 14, Griego and Coach Roberts attempted to speak with plaintiff by telephone. (RUF ¶ 37.) They did not speak with her that day, but did talk with her father. (RUF ¶ 38.) In that telephone call, and in subsequent correspondence dated the same day, the University inquired as to plaintiff's health, discussed the next steps that the University intended to take, and urged plaintiff to schedule a physical examination and to speak with the police. (RUF ¶ 39.) The University offered plaintiff sexual assault victim resources, including in-person or telephone counseling services, and suggested she take advantage of the University's Victim Advocate Program, which plaintiff ultimately did. (RUF ¶ 40.) In addition, in light of the seriousness of the reported assault, University officials advised plaintiff's parents that the University intended to convene a Judicial Review Board to consider plaintiff's allegations. (RUF ¶s 41-44.)
Despite the University's encouragement, plaintiff did not press criminal charges against any of her assailants. (RUF ¶ 45.) Nonetheless, the University, in accordance with its policies, initiated its independent judicial process. (RUF ¶s 41-47.)
3. University Judicial Review Board Proceedings
Pursuant to the University's Student Judicial Procedures, on June 6, 2008, the University sent written notice to Respondent Students, specifying their alleged violations of the Student Code of Conduct ("SCC") and the General University Policies ("GUP") and advising that an evidentiary hearing would begin on June 16. (RUF ¶ 47.) The University charged Respondent Students with violating four provisions of the SCC: (1) behavior which violates federal, state and local laws, General University Policies, Student Housing Policies, Fraternal Organization Policies and the University's Policy Against Sexual Assault and Harassment; (2) intentionally or recklessly causing physical or psychological injury or harm or causing reasonable apprehension of or threats of such injury or harm to any individual at a time or place within the jurisdiction of the Code; (3) knowingly making or delivering materially false or misleading written or oral statements to a University official; and (4) attempting, conspiring to commit, or aiding and abetting violations of the SCC. (RUF ¶s 48, 50, 52.) Respondent Students were also charged with violating GUP 8 which provides, in pertinent part, that: "All members of the University community shall be able to pursue their interests free from sexual assault or harassment. This policy pertains to incidents of sexual assault and sexual harassment between students or where the alleged perpetrator is a student[.]" (RUF ¶s 49, 51, 53.) The University also instructed Respondent Students that they could not have any contact with plaintiff and could come onto campus only as authorized by certain University officials. (RUF ¶ 54.)
Between May 13 and June 11, 2008, University officials conducted interviews of Respondent Students and various witnesses present on the evening of the assault. (RUF ¶ 55.) On June 10, with plaintiff's parents' permission, Carlton, the University's Director of Judicial Affairs, interviewed plaintiff by phone. (RUF ¶ 56.) Plaintiff told University officials that she felt reassured that the University seemed intent on going forward with the judicial proceedings regardless of whether she filed criminal charges. (RUF ¶ 57.) In preparation for the hearing, the Director of Judicial Affairs trained the Board members in the judicial procedures applicable to the hearing and on sexual assault issues, including showing them a PowerPoint presentation supplied by plaintiff's representatives. (RUF ¶ 61.)
On June 16, 2008, the University commenced the evidentiary hearing against Respondent Students. (RUF ¶ 59.) Under the University's Student Judicial Procedures, a student may be dismissed from the University only if found responsible for a violation based on clear and convincing evidence. (RUF ¶ 60.) As an accommodation to plaintiff, the University arranged for plaintiff to provide her testimony to the Board in a building across campus from where Respondent Students testified. (RUF ¶ 62.) At plaintiff's request, her testimony was not presented live to Respondent Students but instead was tape recorded and played for Respondent Students immediately following the completion of her testimony. (RUF ¶ 63.) Plaintiff concedes she appreciated these accommodations. (RUF ¶ 64.) During the hearing, Respondent Students had follow up questions for plaintiff but she refused to answer them. (RUF ¶ 65.)*fn6
Throughout the University's judicial process, Pearson provided counseling support to plaintiff. (RUF ¶ 66.) Plaintiff elected not to hear the testimony from Respondent Students or any other witness. (RUF ¶ 72.)*fn7
In all, the Board heard over 15 hours of testimony, from plaintiff, Respondent Students and nine other witnesses. (RUF ¶s 67-70, 74.) The Board also reviewed written statements provided by plaintiff, Respondent ...