Chadron State loss in Title IX jury trial surprised observers

Dec. 9, 2021, 4:27 p.m. ·

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In a rare federal court Title IX case, the jury in the Nebraska Federal District Court unanimously found Chadron State College failed in its responsibility to support a student who was raped on its campus in 2016. The court ordered Chadron State to pay $300,000 in damages to the victim.

Nebraska Public Media News Morning Edition host Jackie Ourada spoke with Elizabeth Rembert and Bill Kelly, the Nebraska Public Media reporters who covered the case from the beginning.

Jackie Ourada: Elizabeth, I'll start with you. After all your time listening in, were you surprised about the jury's decision?

Elizabeth Rembert: I of course am never comfortable looking into a crystal ball to make predictions about the future, but I thought that the college had a really good case that it had taken actions that lined up to its Title IX obligations. But in the end the woman's attorney, Maren Chaloupka, really emphasized to the jury that those actions didn't matter because her client did not feel safe on campus. And it seems like the jury really took that to heart.

Bill Kelly: I'd have to agree. I've learned never to try and second guess how a jury's going to decide the case, but because the burden of proof in this case was so high to establish what's called deliberate indifference, that the Jane Doe in this case had had a real challenge to present the jury. And in that regard, I was surprised also.

Ourada: Stepping back, what were the main facts of the case?

Kelly: This was a civil rights case under the rules of gender equity law, known as Title IX. At issue was whether Chadron State failed to provide a safe and equal learning environment for Jane Doe to get an education. That was the name that was used to protect her anonymity during the lawsuit. Specifically, did the college fail to fully investigate whether she was the victim of a sexual assault? Also she made the case that the college failed to adequately sanction the male student, the perpetrator who had twice assaulted Jane Doe.

Rembert: To me it seems like after days of arguments it all really boiled down to the fact that the college had done what they thought would check the boxes of their Title IX obligations. And they said that they had done what they thought would make the woman feel safe on campus, but she didn't feel safe. And then they didn't listen to her when she told them that, and they didn't listen to her when she told them what would have made her feel safe, which was banning the perpetrator from campus.

Ourada: There's a point to be made that she didn't feel safe even with the actions the college took. Can you get into that more?

Kelly: Jane Doe had to enforce the measures that the college put in place to protect herself and keep the perpetrator at bay. She had to live with the fact that in these last few months before graduation she might see him on this very small campus at any given time.

The college offered to provide a security escort, for instance, but she felt that treated her unfairly while the perpetrator could walk around without someone in uniform at his side. She had severe panic attacks even at the sight of her attacker. Also, she had to change the location of her job as an overnight security at the security desk, apparently, so the perpetrator wouldn't be inconvenienced with a change of his dorm room.

Rembert: Another point that the woman's lawyer and an expert witness made was that it seems like the college's actions after she reported the assault were really focused on keeping him on campus and also focused on his growth and development. They had him attend counseling, they had him read a book on masculinity and take a class on consent.

And a big moment that stood out to me in the courtroom was that in the pre-class assessment for that course on consent he scored a 90. The woman's attorney made the point that this clearly was a person who understood consent, and yet he still admitted that he had assaulted Doe without her consent. And so that seemed to go against the college's determination that he was not a threat, therefore should not be removed from campus, and that he was only clueless and immature, in their words.

Kelly: Another moment that stood out for me, there was security footage from the dorm where the attack took place that was presented into evidence. The rape occurs off camera, but it was brought out in testimony that the Title IX coordinator viewed this footage without consulting either Jane Doe as the victim or the perpetrator. She viewed it without any interpretation from either of them.

The point Jane Doe was making is, while the college viewed this as playful behavior that they saw in this silent footage, she was actually fighting off her attacker. And that may well have made an impression with the jury.

Ourada: So what are the lessons learned here?

Rembert: I spoke with Maren, the woman's attorney, earlier, and she said that she hopes that the things that the school will take away are that they need to listen to survivors of sexual assault and that they also need to take Title IX complaints and the protections under Title IX really seriously.

Ourada: What are the next steps in the case?

Kelly: (Following the recording of this interview, Chadron State stated there would be an appeal) If there is an appeal in the federal court system, that'll go to a three-judge (in the Eighth Circuit Court of Appeals). These cases have been very rare and there's a lot of new law, there are a lot of cases nationally that are showing up. Even if the facts of the case were very clear to the jury, as a matter of law it's likely to be challenged at the district level.

Rembert: I think that we could also see the next steps of this go beyond this specific woman and beyond Chadron State, because there are a couple suits against the University of Nebraska Lincoln in which 10 women are alleging that the school's Title IX office did not protect them after they suffered sexual assault. And no doubt those attorneys and those women are watching this verdict and thinking about what it means for their case.

Kelly: Definitely.