By Jenna Fitzgerald | Editor-in-Chief
After almost four hours of deliberation Monday afternoon, the jury has yet to reach a verdict in the Title IX and negligence trial brought by former Baylor student Dolores Lozano against the university.
Lozano’s complaint centers on three alleged instances of physical assault by her ex-boyfriend, former Baylor football player Devin Chafin. She claims the university’s campus culture created a heightened risk for her assault, and its employees failed to properly handle her reports.
Deliberation is the culmination of five days of testimony and a legal process that has endured for more than seven years. Lozano initially filed the lawsuit in 2016 against Baylor, former head football coach Art Briles and former athletic director Ian McCaw. However, Judge Robert Pitman dismissed the claims against Briles and McCaw on Friday.
Prior to deliberation, both the plaintiff and the defendant gave their 45-minute closing arguments.
Lozano’s attorney, Zeke Fortenberry, began by searching for a singular statement that “embodies the essence” of what was going on at Baylor at the time of the alleged assaults. He eventually decided on something McCaw said on the stand while discussing the Margolis-Healy Report.
“It’s bad,” Fortenberry said. “It’s like [BUPD] Chief [Jim] Doak is running a 1980s police operation.”
Returning to the point he made on the very first day of testimony, Fortenberry remarked on how the football team’s newfound success meant it got away with conduct issues.
“We know that in the years that preceded the assault on Dolores Lozano, … football players were taking advantage of women time and time again, and nobody was doing anything about it,” Fortenberry said. “That is deliberate indifference.”
Although Briles and McCaw were dismissed, Fortenberry said the men’s testimony still gave the jury a chance to hear about the university’s lack of Title IX training, which contributed to the disciplinary problem.
“The point is, we wanted you to hear from them,” Fortenberry said. “We wanted you to hear from the coach’s mouth, from the athletic director’s mouth about what they knew, what they didn’t know and whether or not they were trained.”
Turning to damages, Fortenberry argued there must be some amount of compensation for Lozano’s physical impairment, disfigurement, physical pain and mental anguish — and even Baylor’s expert witness, Dr. Jeff Temple, said the cost of such medical care is not zero.
“This trial’s been a long trial, and it’s been nine years since it happened,” Fortenberry said. “And throughout it all, Dolores has remained tough, strong, vulnerable. Do you think it’s easy for her to get on the stand and talk about the decision she made to terminate her pregnancy? To detail her ‘alleged’ assaults? To put up with that type of absurdity time and time again? … But she’s resilient. She’s not wallowing on her floor. … But just because she has a great job doesn’t mean she’s not damaged.”
Fortenberry concluded by imploring the jury to “put a stop to the Baylor way looking the other way” and to “treat Dolores better than Baylor did.”
“Her treatment is just like the treatment the Board of Regents condemn,” Fortenberry said. “When they’re a victim, call them a victim. When it’s an assault, call it an assault.”
In response, Baylor attorney Julie Springer told the jury that “no matter how loud and how indignant and how self-righteous” Fortenberry was in his closing argument, his claims could not be considered evidence.
“We are not engaging in victim-blaming when we come here in this court and defend against the claims that Ms. Lozano brought,” Springer said. “This is not a medical office. This is not the Counseling Center. This is not a police department.”
Springer then noted that there is “a real factual dispute” about what happened between Lozano and Chafin on the three dates, and both testimonies must be weighed. She argued that Chafin was more in line with the evidence, and she questioned how Lozano was “too embarrassed about her bruises to go to tumbling practice” but was “willing to go to South Padre and wear a swimsuit.”
“Mr. Chafin gave you heartfelt testimony,” Springer said. “He does not stand to gain anything from testifying in this case. That was raw emotion describing what happened on March 6. And what happened, the photos, were more consistent with his description.”
Springer also returned to the statement she made the very first day of testimony, clarifying that this case is a matter of domestic violence rather than sexual assault — and, as such, is the result of uniquely personal circumstances.
“I told you at the beginning of this case that Baylor would accept responsibility for the failings in the Findings of Fact,” Springer said. “But I also told you that this case was not like the cases in the findings. … Baylor did not look the other way. Baylor looked directly at Ms. Lozano, and they offered her support.”
Despite consulting with Baylor employees and Waco PD, Lozano chose not to obtain a protective order, not to obtain a contact order, not to pursue criminal charges and not to pursue student conduct charges.
“She can’t make those choices and then turn around and try to hold Baylor responsible,” Springer said.
Springer concluded by telling the jury not to get distracted from the case at hand.
“It’s Ms. Lozano who has wanted you to look the other way — at the findings, at the other football incidents, at everything but her own case — because in this case, Baylor got it right,” Springer said. “They looked directly at her and offered her help.”
Beyond Title IX and negligence claims, another question is the statute of limitations, which requires individuals to file a claim within two years of the related incident. Although Lozano’s alleged assaults occurred in March and April 2014, she didn’t file her lawsuit until October 2016 — putting her outside the required timeframe.
“She certainly knew her injury, and she certainly knew the causal connection between Baylor and what happened to her,” Springer said.
However, Fortenberry said the statute of limitations is “like a Hail Mary” for the defense, and it doesn’t apply here because Lozano wasn’t aware her experience was part of a widespread problem until the publication of the Findings of Fact on May 26, 2016.
“[If she was lying], she could’ve just jumped on the bandwagon and said he raped her,” Fortenberry said. “She’s been consistent about the three separate assaults.”
Ultimately, Fortenberry said Lozano “didn’t get what she bought” at Baylor.
“Ian McCaw was suspended and demoted and resigned for not doing what he was supposed to be doing. Then they paid his settlement,” Fortenberry said. “Art Briles was suspended with intent to fire because he did things wrong, and they gave him a settlement. Devin Chafin had a laundry list of criminal convictions, and they gave him free tuition. So when Baylor finds these men who misbehave and break the rules, they reward them. … But when a woman is assaulted … and they fail to do anything, they say they got it right.”
Jury deliberation will continue at 9 a.m. Tuesday.
