United States District Court, W.D. Texas, Waco Division
PITMAN UNITED STATES DISTRICT JUDGE.
Jasmin Hernandez (“Plaintiff”), a former student
at Baylor University who was sexually assaulted by a fellow
student during her freshman year, brings this suit against
Defendants Baylor University (“Baylor”), (Second
Am. Compl., Dkt. 53, ¶ 1); former Baylor Head Football
Coach Art Briles (“Defendant Briles”),
(id. ¶ 2); and former Baylor Athletic Director
Ian McCaw (“Defendant McCaw”), (id.
¶ 3). Plaintiff seeks to hold Baylor liable under Title
IX of the Education Amendments Act of 1972 (“Title
IX”), which provides that “[n]o person in the
United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected
to discrimination under any education program or activity
receiving Federal financial assistance.” 20 U.S.C.
§ 1681(a); (Second Am. Compl., Dkt. 53, at 15). She also
seeks to hold Baylor, Defendant Briles, and Defendant McCaw
liable under the common law doctrines of negligence and
intentional infliction of emotional distress. (Id.
at 18, 22, 24).
stage of litigation, the Court considers only whether
Plaintiff's Complaint contains plausible factual
allegations that, assumed to be true, support a claim for
which relief could be granted.
STANDARD OF REVIEW
to Rule 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “To survive a
Rule 12(b)(6) motion to dismiss, a complaint ‘does not
need detailed factual allegations, ' but must provide the
[plaintiff's] grounds for entitlement to relief-including
factual allegations that when assumed to be true ‘raise
a right to relief above the speculative level.'”
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). That is, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “[A] motion to
dismiss under 12(b)(6) ‘is viewed with disfavor and is
rarely granted.'” Turner v. Pleasant, 663
F.3d 770, 775 (5th Cir. 2011) (quoting Harrington v.
State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th
proceeding further, the Court considers Plaintiff's
Request for Judicial Notice. (Dkt. 81). Plaintiff requests
that the Court, pursuant to Federal Rule of Evidence 201,
take judicial notice of the allegations contained in (1) the
Complaint and Jury Demand in Elizabeth Doe v. Baylor
University, No. 6:17-CV-27 (W.D. Tex.); and (2) the
Original Answer filed by Defendants Cary Gray, Ron Murff, and
David Harper in Colin Shillinglaw v. Baylor University et
al., No. DC-17-01225 (116th Dist. Ct., Dallas County).
Rule of Evidence 201 allows a court to take judicial notice
of an “adjudicative fact” if the fact is not
subject to reasonable dispute in that it is (1) generally
known within the territorial jurisdiction of the trial court;
or (2) capable of accurate and ready determination by resort
to resources whose accuracy cannot be questioned. Taylor
v. Charter Med. Corp., 162 F.3d 827, 829-30 (5th Cir.
1998) (indicating that, for a fact to be eligible for
judicial notice under Rule 201, it should be a
“self-evident truth that no reasonable person could
question, a truism that approaches platitude or
banality”). “A court may take judicial notice of
‘a document filed in another court . . . to establish
the fact of such litigation and related filings, ' but
generally cannot take notice of the findings of fact from
other proceedings.” Ferguson v. Extraco Mortg.
Co., No. 06-51453, 2007 WL 2493537, at *1 (quoting
Taylor, 162 F.3d at 829-830); see also Anderson
v. Dallas Cty., Tex., No. 3:05-CV-1248, 2007 WL 1148994,
at *3-4 (N.D. Tex. April 18, 2007), aff'd, 286
F. App'x 850 (5th Cir. 2008).
Plaintiff asks the Court to take judicial notice of more than
100 pages of documents, consisting primarily of allegations
made by other parties in other lawsuits. Those allegations
are not “adjudicative facts” within the meaning
of Federal Rule of Evidence 201, nor are they generally known
or beyond reasonable dispute. Accordingly, these facts are
not appropriate for proof by judicial notice. This position
is consistent with the law governing courts'
consideration of motions to dismiss. Dorsey v. Portfolio
Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)
(“Because the court reviews only the well-pleaded facts
in the complaint, it may not consider new factual
allegations made outside the complaint.” (emphasis
denied Plaintiff's request to take judicial notice of the
material described above, the Court proceeds to a summary of
the factual allegations made in the instant case.
Allegations Regarding Plaintiff's Assault and Reporting
enrolled at Baylor in the fall of 2011. (Second Am. Compl.,
Dkt. 53, ¶ 53). On April 15, 2012, she was sexually
assaulted by Tevin Elliott (“Elliott”) while
attending an off-campus party. (Id. ¶ 55). At
the time, Elliott was a player on the Baylor football team.
(Id. ¶ 27). Plaintiff immediately reported the
assault to the Waco Police Department. (Id. ¶
days after the assault, Plaintiff's mother reported the
incident to the Baylor Counseling Center and Baylor Student
Health Center. (Id. ¶¶ 59, 60). Staff at
both service providers allegedly responded that Plaintiff
could not receive treatment because the Centers were
“too busy” or “full.” (Id.).
A few days later, Baylor's Academic Services Department
also allegedly “refused to provide any
accommodations.” (Id. ¶ 61). During the
relevant time period, Baylor did not have a dedicated Title
IX coordinator. (Id. ¶ 68).
mother subsequently called Defendant Briles to inform him of
the assault; she allegedly received a return phone call from
a member of Defendant Briles's staff informing her that
the office had “heard of the allegations” and was
“looking into it.” (Id. ¶ 62).
Plaintiff's father also allegedly called Defendant
Briles's office “several times, ” but never
heard back. (Id. ¶ 63).
these reports, Plaintiff alleges, Baylor “did not take
any action whatsoever to investigate [her] claim.”
(Id. ¶ 64). Elliott was “allowed to
remain on campus” until transferring to another school
during the summer of 2012, thereby subjecting Plaintiff to
additional harassment by “making her vulnerable to an
encounter with Elliott . . . at any time at any place on
campus.” (Id. ¶ 65). As a result, she
alleges, she was “deprived of a multitude of
educational opportunities and/or benefits, including but not
limited to [a] significant drop in her grades, [b]eing placed
on academic probation as a result of her drop in grades;
[a]voidance of social activities on campus; [a]voidance of
certain areas of campus; [a] loss of her academic
scholarship; and [w]ithdrawal from Baylor
altogether.” (Id. ¶ 75).
Allegations Regarding Baylor's General Handling of
Reports of Sexual Assault
Complaint relies, in substantial part, on findings made by
the law firm Pepper Hamilton LLP as part of an investigation
the firm conducted into Baylor's handling of sexual
assault allegations between 2012 and 2016. (Id.
¶¶ 44-46). The “findings of fact”
released by the firm in May 2016 concluded that “the
University's student conduct processes were wholly
inadequate to consistently provide a prompt and equitable
response under Title IX.” (Id. ¶ 47-48).
“Baylor did not pursue [administrative] hearings in the
majority of reports [of sexual assault], ” the report
found, leading the university to “fail to take action
to identify and, as needed, eliminate a potential hostile
environment, prevent its recurrence, or address any effects
on the individual complainant or broader campus
community.” (Id. ¶ 51). The
investigations the university did conduct were “wholly
inadequate to fairly and reliably evaluate whether sexual
violence had occurred, ” and “[a]dministrators
engaged in conduct that could be perceived as
Allegations Regarding the Baylor Football Program and
to Plaintiff, Baylor has failed to address and actively
concealed sexual violence committed by its football players
for several years. (Id. ¶ 33).
Hamilton documented “specific failings within both the
football program and Athletics Department leadership,
including a failure to identify and respond to a pattern of
sexual violence by a football player, to take action in
response to reports of a sexual assault by multiple football
players, and to take action in response to a report of dating
violence.” (Id. ¶ 49). Specifically,
football coaches or staff allegedly were repeatedly and
directly informed of sexual assaults committed by football
players and did not report the misconduct. (Id.
¶ 52). Athletic staff instead “conducted their own
untrained internal inquiries, outside of policy, which
improperly discredited complainants and denied them the right
to a fair, impartial, and informed investigation.”
(Id. ¶ 52). Those reports “were not
shared outside of [the athletics department], ” and
“[f]ootball coaches and staff took affirmative steps to
maintain internal control over discipline of players and to
actively divert cases from the student conduct or criminal
processes.” (Id.). The university therefore
“missed critical opportunities to impose appropriate
disciplinary action that would have removed offenders from
campus and possibly precluded future acts of sexual violence
against Baylor students.” (Id.). Moreover, the
situation gave rise to an “overall perception that
football was above the rules and that there was no culture of
accountability for misconduct.” (Id.).
former member of Baylor's advisory board allegedly stated
that “Baylor officials have known about the larger
problem of sexual assaults committed by student-athletes for
several years.” (Id. ¶ 31). According to
that individual, male student-athletes at Baylor are
responsible for between 25 percent and 50 percent of all
reported assaults that occur at the university. (Id.
Allegations Regarding Defendants' Knowledge of Prior
Reports Involving Tevin Elliott
point prior to Plaintiff's sexual assault, an
unidentified female student allegedly informed Baylor Chief
Judicial Officer Bethany McCraw (“McCraw”) that
she had been sexually assaulted by Tevin Elliott
(“Elliott”). (Id. ¶ 27). McCraw
allegedly told the unidentified student that she was the
sixth student to report a sexual assault by Elliott, that
Defendant Briles was aware of the reports, and that
“there was nothing the school could do” for the
student absent a “court determination” that
Elliott had indeed assaulted her. (Id. ¶ 28).
Separately, McCraw, Baylor, and Defendant Briles were also
allegedly aware that Elliott was cited for misdemeanor sexual
assault in November 2011. (Id. ¶ 30).
IX of the Education Amendments of 1972 prohibits
discrimination on the basis of sex in all federally-funded
educational programs. 20 U.S.C. § 1681(a). Specifically,
No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or
activity receiving Federal financial assistance.
Id. When Congress first passed Title IX more than
forty years ago, it had two related objectives: first,
Congress wanted to prevent federal funds from being used to
support discriminatory practices; second, it wanted to
provide individuals “effective protection against those
practices.” Cannon v. Univ. Chic., 441 U.S.
677, 704 (1979); see also 118 Cong. Rec. 5730 (1972)
(statement of Senator Birch Bayh) (“The amendment we
are debating is a strong and comprehensive measure which I
believe is needed if we are to provide women with solid legal
protection as they seek education and training for later
careers. . . . As a matter of principle, our national policy
should prohibit sex discrimination at all levels of
education.”). When private universities like Baylor
accept funding through various federal programs, including by
enrolling students who receive federal funds to pay for their
education, they become subject to the requirements of Title
IX. See Nat'l Collegiate Athletic Ass'n v.
Smith, 525 U.S. 459, 466 (1999).
IX is enforceable through an individual's private right
of action and allows for the recovery of damages. Davis
Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526
U.S. 629, 639 (1999) (citing Cannon, 441 U.S. 607
and Franklin v. Gwinnett Cty. Public Schs., 503 U.S.
IX claims are commonly asserted in response to a
student's sexual harassment or assault. The Supreme Court
has held that sexual harassment within a school or school
program is a form of sex discrimination when the harassment
is so severe, pervasive, and objectively offensive that it
deprives the victim of educational opportunities or benefits
provided by the school. Davis, 526 U.S. at 650. A
school can be held liable for such harassment when it is
deliberately indifferent to harassment of which it has actual
knowledge. Id. This is true regardless of whether
the harasser is an employee of the school or another student,
but liability under this avenue is limited to circumstances
in which the school “exercises substantial control over
both the harasser and the context” in which the
harassment occurs. Id. at 645. This framework for
liability in sexual harassment cases ultimately serves as a
proxy for the showing of intentional discrimination that is
otherwise required for Title IX claims. Thus, while the
school is not itself committing the sexual harassment, it can
be said to be intentionally discriminating if it knows of
severe and pervasive sexual harassment occurring within its
control and, for example, does nothing. Gebser, 524
U.S. at 290.
instant case, Plaintiff alleges two types of Title IX claims.
First, Plaintiff alleges what might be considered a
“traditional” claim for sexual assault under
Title IX. She argues that she was sexually assaulted by a
peer at Baylor, that she reported her assault to the
university, and that Baylor's deliberately indifferent
response to that report deprived her of educational
opportunities and benefits provided by the school. The Court
will refer to this as Plaintiff's “post-reporting
Plaintiff alleges that even prior to her report of sexual
assault, Baylor's actual notice of the threat posed by
Elliott and other student-athletes and deliberate
indifference to that threat- manifested by the
university's alleged discouragement of reporting, failure
to investigate claims or punish assailants, and perpetuation
of a culture in which football players were protected from
allegations of misconduct-constituted actionable intentional
discrimination that substantially increased ...