Phoebe Suy | Staff Writer
While welcoming a new president this summer, Baylor’s recent sexual assault scandals continue to follow the university. In addition to the filing of the latest in a series of lawsuits against Baylor and the settlement of a previous suit in the span of four months, the university was ordered in a third existing lawsuit to release underlying information from the Pepper Hamilton investigation.
Baylor hired Pepper Hamilton law firm in fall 2015 to conduct an independent review of Baylor’s institutional response and compliance to Title IX of the Education Amendments of 1972. The nine-month investigation ultimately found that Baylor failed to implement Title IX and the Violence Against Women Reauthorization Act of 2013 (VAWA). Pepper Hamilton provided Baylor with 105 recommendations, all of which have been structurally completed as of May 2017.
HERNANDEZ LAWSUIT SETTLED
One of five Title IX lawsuits against Baylor was settled on Aug. 15.
Plaintiff Jasmin Hernandez settled with the university and requested to dismiss former Baylor Head Football Coach Art Briles and former Athletic Director Ian McCaw as defendants, according to her lawyer Alexander Zalkin.
In March 2016 Hernandez filed the lawsuit against Baylor accusing the university of acting “with deliberate indifference towards Hernandez’s reports of rape to several different Baylor departments,” the complaint stated.
According to court documents, Hernandez was raped twice by Tevin Elliott, a former Baylor football player, in April 2012.
In 2014, Elliott was sentenced to 20 years in prison for two counts of sexual assault.
Given the nature of sexual assault cases, victims often go by pseudonyms such as Jane Doe. Zalkin said he believes Hernandez’s decision to go public was very courageous.
“Her decision to do that really exemplifies her motivation for bringing this lawsuit, which was really to try to bring attention to the issue of sexual misconduct on campus at Baylor, and really, nationwide,” Zalkin said. “By going public, I think she really accomplished that.”
When asked in a March 2016 video press release if she felt justice was served after Elliott’s conviction, Hernandez said she felt that Baylor did not play a part of that justice.
“The city of Waco and then the state of Texas have allowed some justice to occur. But in regards to Baylor, I don’t think justice has been done in regards to their interaction with me as a student,” Hernandez said in the video.
This settlement does play a part in remedying that, Zalkin said.
“We certainly feel that justice, some measure of justice, has been served. Jasmin brought this lawsuit to effect change and she’s accomplished that and some. So, you know, in that regard, justice has been served,” Zalkin said.
Zalkin said as part of the settlement, the details were confidential. Baylor declined to comment.
MOST RECENT TITLE IX LAWSUIT
In May Baylor was served its latest Title IX lawsuit. It accused the university of failing to provide sexual assault victims with legally mandated support systems and denying them educational opportunities.
The plaintiff, named in the lawsuit as Jane Doe, was a student-athlete on the women’s volleyball team in February 2012 when the alleged sexual assault took place. According to the court document, Doe said she was gang raped in an off-campus residence by a group of Baylor football players – at least four and as many as eight.
Early spring 2013, Doe said she attended a few sessions at the Baylor Counseling Center. The filing states that when Doe informed her counselor of the sexual assault, the counselor cited statistics about the number of women who decide not to report sexual assaults in an apparent effort to persuade Doe to do the same. According to Doe, the counselor mentioned neither Title IX nor her rights or options.
The lawsuit states that McCaw and the football chaplain were informed of the sexual assault but failed to report the sexual assault to anyone outside of the Baylor football program. Lack of Title IX training was cited as the reason.
Doe also asserted in the court filing that Baylor’s failure to properly investigate and/or address her allegations of sexual assault contributed to a hostile educational environment that prevented herself and other female students from accessing educational opportunities. Doe specifically cited attending classes with two of her accused rapists as such an environment.
In a statement released by Baylor following the lawsuit filing, the university stated it had “been in conversations with the victim’s legal counsel for many months in an attempt to reach an amicable resolution.”
“As this case proceeds,” the statement said, “Baylor maintains its ability to present facts – as available to the University – in response to the allegations contained in the legal filing.”
On June 27, Baylor moved to partially dismiss certain claims in Doe’s complaint, citing that the plaintiff’s claim expired in spring 2015 at the latest.
“The plaintiff’s complaint shows that she knew for at least three years that nothing had been done to investigate her claim or help her,” the dismissal motion said.
Title IX claims in Texas are subject to a two-year statute of limitations. In the court motion, Baylor contended that the statute of limitations in this case began when the plaintiff became aware that she had suffered an injury or had sufficient information to know that she had been injured.
The lawsuit is currently in litigation and both the plaintiff and the defendant declined further comment.
EXISTING LAWSUIT DEVELOPS
Baylor is also involved in another Title IX lawsuit in which the plaintiffs, 10 anonymous women, accused the university of mishandling their sexual assault reports.
U.S. District Judge Robert Pitman ordered on Aug. 11 that Baylor produce “all materials, communications, and information provided to Pepper Hamilton as part of the investigation.”
Communications between Baylor and Pepper Hamilton were once protected by the attorney-client privilege, but Pitman’s court ruled that Baylor waived that protection when it repeatedly released findings and conclusions made by Pepper Hamilton.
“Would it be fair to allow Baylor to protect remaining undisclosed details regarding the Pepper Hamilton investigation when it intentionally, publicly and selectively released certain details of the investigation, including attorney-client communications?” the court order stated. “The Court concludes, with respect to materials covered by the attorney-client privilege, that it would not.”
“Baylor recognizes this is a complex order, and the university appreciates the court’s ruling that attorney work product privileges continue to apply in this case,” Fogleman said in a statement. “All of the work product and related materials prepared by Pepper Hamilton are currently protected from discovery, with the provision of the university being required to produce a detailed log of certain work product and to identify witnesses who were interviewed. Baylor continues to express concerns regarding the protection of students’ personal records, specifically the desire of many students – who are unrelated to this case – that their identities remain anonymous and their information confidential.”
The trial for this case has been set for October 2018.
Correction: August 24, 2017, an earlier version of this story cited out of date statistics regarding the implementation of Pepper Hamilton’s recommendations.