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Jane Doe v. Blackburn College

February 24, 2012


The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED Monday, 27 February, 2012 09:39:57 AM Clerk, U.S. District Court, ILCD


This matter is before the Court on the Motion for Summary Judgment (Motion) of Defendant Blackburn College (Blackburn). See d/e 118. For the reasons that follow, Defendant's Motion is GRANTED with respect to Plaintiff's claims under Title IX of the Education Amendments of 1972 (Title IX) (20 U.S.C. § 1681). Further, the Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claims.


On January 17, 2011, Plaintiff, Jane Doe, filed her First Amended Complaint for Damages (d/e 10) (Amended Complaint). The Amended Complaint alleges both federal and state law claims stemming from a sexual assault of Plaintiff by an unidentified person while she was a student at Blackburn. Plaintiff's federal claims are brought under Title IX. The Amended Complaint alleges two counts under Title IX, one alleging sexual harassment and one alleging sex discrimination. The count alleging sexual harassment alleges Blackburn is liable under Title IX because of Blackburn's deliberate indifference in failing to protect Plaintiff before and after the sexual assault. The count alleging sex discrimination is similar to the sexual harassment claim in that it also alleges Blackburn discriminated against Plaintiff by allowing her to be sexually harassed and telling her that Blackburn could not protect her. The only real difference in the two counts is that the sex discrimination count also alleges Blackburn failed "to establish an appropriate grievance procedure for sexual assault and steps to correct it."

The ultimate questions, with respect to the Title IX claims, are whether Blackburn is liable under Title IX for its: (1) failure to prevent the sexual assault or (2) unreasonable response to the sexual assault. Therefore, the Court will set forth the undisputed facts that are relevant to the time period up to and including the sexual assault and after the sexual assault. Those undisputed facts are as follows.

A. Facts Leading up to and Including the Sexual Assault of Plaintiff

Blackburn is a small college with about 600 students in Carlinville, Illinois.

Plaintiff began taking classes at Blackburn in 2000 and lived off campus. Plaintiff received a copy of Blackburn's student handbook, which was included with an academic calendar known as the "B Book." The B Book provided Blackburn's Security Policies and Procedures and directed students who desired information regarding crime statistics on campus to Blackburn's website. Additionally, the B Book set out Blackburn's harassment policy and its grievance procedures for complaints of sexual harassment.

Blackburn has a Security Department, and Randy Ober was the Director of Security at Blackburn during Plaintiff's tenure as a student. Blackburn used student security workers who were typically criminal justice majors chosen because of their interest in criminal justice. In 2001-2002 Blackburn had no monies budgeted for the Physical Plant Maintenance Department for Security and its actual expenditure was $1,097. In 2002-2003 Blackburn's requested operating budget for the Physical Plant Maintenance Department for Security was $2,700. In 2003-2004, an operating budget for the Physical Plant Maintenance Department for Security of $4,275 was requested but only $2,403 was approved.

Mr. Ober and the Security Manager, Assistant Manager, and Department Crewheads were responsible for the day-to-day operations of the Security Department in 2004. The Security Manager met daily with Mr. Ober to discuss what had occurred the evening before, upcoming special events, scheduling, and any problems. The Security Manager, Assistant Manager, Crewheads, and Mr. Ober also met weekly. Mr. Ober conducted training for the security staff, including training regarding locking and unlocking buildings, special event security, escort services for students, patrolling the campus, responding to fire alarms, use of the Security Department's radio and telephone, and administering breathalyzer tests. Security personnel were also given Blackburn's Campus Security Guidelines. In 2004, the year of Plaintiff's assault, there were fourteen students working in security for Blackburn. In addition to the Security Department, the Student Life Department also shared responsibility for security.

While not alleged in her original Complaint or Amended Complaint, Plaintiff discusses in her submission to the Court on summary judgment "an issue" she had with Jake Miller, a psychology professor at Blackburn. Plaintiff alleges Professor Miller told her that he was "dying" to kiss her one day after class. Plaintiff's last class with Mr. Miller was in the Spring of 2003, making her last class with him in May 2003. Mr. Miller had never done anything inappropriate previously, and after Plaintiff laughed at his suggestion, he "kind of backed down" and "nothing ever happened."

Plaintiff alleges that she went to Jeff Aper, the Provost, and told him that Mr. Miller had been inappropriate in the classroom and had wanted to kiss her. Plaintiff testified that Mr. Aper said that another student had to complain before the situation would be pursued. Plaintiff does not know if Mr. Aper spoke to Mr. Miller. Mr. Aper recalled a female student, who wished to remain anonymous, telling him that there was an issue with Mr. Miller allegedly saying that he was dying to kiss the student. Mr. Aper told Mr. Miller that a student who wished not to be identified had reported unacceptable behavior on his part and he had to discontinue any behavior of that type immediately. According to Mr. Aper, Mr. Miller was shocked and apologetic. Plaintiff had no further issues with Mr. Miller. Plaintiff asserts that Angie Behne, another student, had the same type of problem with Mr. Miller, but Plaintiff did not recall the nature of Ms. Behne's allegation. Plaintiff is not aware of Ms. Behne making any complaints regarding Mr. Miller, but she alleges that she told Mr. Aper that there had been an issue with another student, while not identifying the student.

Plaintiff also alleges instances of sexual misconduct, of which Blackburn was aware, that occurred on campus in the year leading up to the assault of Plaintiff. On October 20, 2003, a girl working for a pizza delivery service reported being sexually harassed when the dorm room to which she was supposed to deliver had a message reading "Pizza girl-Don't knock come in-Will you get naked for my buddies for an 8-ball of cocaine." One month later, on November 3, 2003, Mr. Ober made a complaint with the Carlinville police department that a male "prowler" was on campus trying to get a female working in a lab by herself to unlock the door by telling her he was not going to kill her.

A police report indicates a rape occurred by a known individual in a dorm room in February 2004. The victim chose not to press charges and requested that only Mr. Ober know of the incident and that no paperwork regarding the incident be given to Blackburn or anyone else.

On May 21, 2004 a Blackburn student reported a stalker to the Carlinville police department. The victim of the stalking knew the stalker. Moreover, she reported that Blackburn security had records of other stalking incidents involving the stalker. The stalker, an ex-student, had previously been arrested for trespassing on Blackburn property on March 11, 2004.

On September 2, 2004, two weeks before Plaintiff was raped, a Blackburn student reported being sexually assaulted on Blackburn's campus. The victim of this assault was able to identify her alleged attacker.

On September 30, 2004, the Illinois State Police interviewed a female student who indicated that she had been assaulted on August 29, 2004 in an area behind Olin Science Building.*fn1 The victim of the August 2004 assault had not previously reported the assault. The victim could not recall details or a description of the assailant and stated that she threw away all of her clothing and undergarments after the assault.

On September 16, 2004, Plaintiff was sexually assaulted on Blackburn's campus between 8:30 p.m. and 9:00 p.m., after leaving the library to get fresh air around 8:20 p.m. As Plaintiff walked past the old art building while smoking a cigarette she heard a man's voice, but did not recall what she heard the man say. Later, between 8:30 p.m. and 9:00 p.m., Plaintiff alleges that she was walking on the Physical Plant road when a man came up behind her at the bottom of a small hill just past the Physical Plant and struck her with a blunt object in her right eye. After hitting Plaintiff, the assailant dragged her to a wooded area on the side of the hill and sexually assaulted her. The Physical Plant building was approximately 500 to 700 feet from the location where the assault occurred.

2. Facts Occurring Immediately After the Sexual Assault of Plaintiff and During the Months that Followed

After the assault, Plaintiff went back to her car and called her friend Amanda Matthews. They decided to go to the apartment of Amber Daulbaugh, the women's basketball coach. Once there, they called Chief David Haley of the Carlinville police department, who is also Plaintiff's family friend. Chief Haley discussed Plaintiff's options with her and told her that he thought she should have a rape kit completed. Ms. Daulbaugh contacted Robert Weis, the College Counselor, who lived in the same apartment complex. Mr. Weis holds a masters degree in counseling, and his duties include providing education and training regarding rape and harassment and counseling victims of rape and harassment.

Pursuant to Blackburn's procedures, Mr. Weis notified the school's professional on duty that evening, Dennis Blanchard (Director of Resident Life), regarding the reported assault. Mr. Weis and Mr. Blanchard discussed that there had been a reported sexual assault on campus, that Mr. Weis would assess the situation with Plaintiff, and that Mr. Blanchard would see what needed to be done on campus to coordinate with the Carlinville Police Department. Mr. Weis then went to Ms. Daulbaugh's apartment, where Plaintiff, Chief Haley, Ms. Matthews, and Ms. Daulbaugh were present. After making certain Plaintiff was comfortable with him accompanying them, Mr. Weis went with Plaintiff, Chief Haley, Ms. Daulbaugh, and Ms. Matthews to the Carlinville Police Department where Plaintiff was dusted to see if the assailant's fingerprints could be located.

After going to the police station, Mr. Weis accompanied Plaintiff and the others to campus so that Plaintiff could identify where the assault occurred. Mr. Ober learned about the assault from Zach Spaur, the Security Manager, and went to the Security office at around 10:45 p.m. to meet with Dennis Blanchard, Officer Kevin Naugle of the Carlinville Police Department, and Mr. Spaur. Officer Naugle, Mr. Ober, Mr. Spaur, and Mr. Blanchard met Plaintiff, Chief Haley, and Carlinville Police Detective Gary Sanson between 11:30 p.m. and 11:45 p.m. on the road where Plaintiff alleges that she was taken so that Plaintiff could identify the site of the assault. Mr. Ober stayed on campus with the local police until 2:30 a.m. on September 17, 2004. After leaving campus, Plaintiff, Ms. Daulbaugh, Ms. Matthews, and Mr. Weis went to the hospital to have the rape kit completed and then returned to Carlinville.

On September 17, 2004, Mr. Ober spoke with security staff to see if they had noticed anything unusual the prior evening. Mr. Ober completed a Field Report regarding the assault.

The results of the rape kit did not identify any semen, and the only DNA identified belonged to Plaintiff. The identity of ...

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