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Shank v. Carleton College

United States District Court, D. Minnesota

January 9, 2017


          Barbara P. Berens, Erin K. Fogarty Lisle, and Carrie L. Zochert, BERENS & MILLER, P.A., for plaintiff.

          Sean R. Somermeyer and Jacqueline A. Mrachek, FAEGRE BAKER DANIELS LLP, for defendant.


          Patrick J. Schiltz United States District Judge

         Plaintiff Elizabeth Shank alleges that, while she was a student at defendant Carleton College (“Carleton”), she was raped by fellow students on two occasions. In this action, she brings various statutory and common-law claims against Carleton, including a claim under the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq. Carleton now moves to dismiss Shank's amended complaint.

         For the reasons that follow, the Court grants Carleton's motion in part and denies it in part. Specifically, the Court grants the motion with respect to Shank's Title IX claim insofar as that claim is based on the allegation that, by condoning underage and excessive drinking, Carleton was deliberately indifferent to an increased risk of sexual assault. The Court also grants the motion with respect to Shank's claim for intentional infliction of emotional distress, except insofar as that claim is based on the allegation that Carleton coerced Shank into a one-on-one meeting with one of her assailants. Finally, the Court grants the motion with respect to Shank's claims of negligence per se, social-host liability under Minn. Stat. § 340A.90, and breach of contract. The Court denies the motion in all other respects.

         I. BACKGROUND

         Shank's amended complaint alleges the following:

         A. The Rapes

         Carleton is a liberal-arts college in Northfield, Minnesota, with a total of about 2, 000 students. Am. Compl. ¶ 8. Shank attended Carleton from 2011 to 2015. Am. Compl. ¶ 7. During orientation week of her freshman year, Shank met Student One, another freshman who lived in her dormitory. Am. Compl. ¶ 77. Shank and Student One attended a party on campus where upperclassmen were serving liquor to underage students. Am. Compl. ¶¶ 80-82. Both Student One and Shank drank to the point of intoxication. Am. Compl. ¶ 83. After the party, Shank accepted Student One's offer to walk her back to their dormitory. Am. Compl. ¶ 83. Student One then violently raped Shank in her dormitory room. Am. Compl. ¶ 83.

         The second rape occurred during the spring of Shank's sophomore year. In April 2013, Shank attended an off-campus party sponsored by Carleton. Am. Compl. ¶ 188. Once again, upperclassmen provided alcohol to underage students (including Shank) at the party. Am. Compl. ¶ 189. After the party, Shank and some other students returned to campus and congregated in a room belonging to Student Two, a senior who lived in Shank's dormitory. Am. Compl. ¶ 191. Later in the evening, Shank became extremely dizzy and lost track of her surroundings after she accepted a drink from Student Two. Am. Compl. ¶¶ 193-94. Student Two then raped Shank. Am. Compl. ¶ 195.

         Shank experienced extreme mental, physical, and emotional trauma as a result of the rapes. Shank had been a National Merit Scholar and had graduated at the top of her high-school class, yet, after the rapes, she had difficulty completing many of her college classes and ultimately dropped several of them. Am. Compl. ¶¶ 54, 59, 94-95. Shank alleges that, although she disclosed the rapes to and sought help from a number of Carleton officials, Carleton's response was woefully inadequate. Among numerous complaints, Shank alleges that Carleton mishandled the disciplinary proceedings against her assailants, failed to impose adequate sanctions against them, and failed even to explain (much less to assist her with) such options as criminal prosecution, medical assistance, alternative housing arrangements, and academic assistance and accommodations. Am. Compl. ¶¶ 5, 88, 92, 93-95, 109-10, 213-14.

         B. Disciplinary Proceedings Involving Student One

         After the rape by Student One, Shank initially sought help from Carleton's on- campus health and counseling clinic. Am. Compl. ¶¶ 86-87. A counselor suggested that Shank could file a formal complaint. Am. Compl. ¶ 88. Shank did not do so. Some months later, someone filed a community-concern form-an informal document used to notify Carleton of misconduct-that identified Student One as the perpetrator of a rape. Am. Compl. ¶¶ 97, 99. The form did not identify Shank as the victim, but Student One was nevertheless furious with Shank. Am. Compl. ¶¶ 99-102.

         Carleton apparently learned that Shank was the victim of Student One because, after the community-concern form was filed, Carleton appointed Cathy Carlson (an associate dean of students) to be Shank's “sexual-misconduct support advisor.” Am. Compl. ¶ 106. As a sexual-misconduct support advisor, Carlson's role was to discuss Shank's options with her, help her to find appropriate support, and assist her during the complaint process. Am. Compl. ¶ 105. Shank confided to Carlson that she was afraid to file a formal complaint because Student One was already furious at her. Am. Compl. ¶ 111. Carlson advised her that, if she was afraid of Student One, she should not file a formal complaint but instead should permit Carleton itself to proceed as the complainant. Am. Compl. ¶¶ 113-14. Shank followed Carlson's advice. Am. Compl. ¶ 114. As a result, Shank inadvertently forfeited (or was erroneously denied) significant procedural rights, including the right to appear and speak at the hearing and the right to appeal. Am. Compl. ¶¶ 131, 133, 141. Instead, Shank was only able to submit a written statement about the rape. Am. Compl. ¶¶ 117-123, 131.

         Shank had difficulty composing her written statement. She advised Carlson that she was afraid to disclose many of the details of the rape and that she needed assistance to complete the statement. Am. Comp. ¶ 117-19. Carlson assured Shank that the statement was sufficiently detailed to ensure that Student One would be suspended or expelled. Am. Compl. ¶ 120. Despite this assurance, Shank intended to describe the rape in full at the hearing, but was unable to do so because she was not permitted to attend. Am. Compl. ¶¶ 123, 131. Further, although Carleton's formal complaint against Student One should have triggered an investigation, no investigator ever contacted Shank, and Shank is unaware of any other investigatory steps that Carleton may have taken. Am. Compl. ¶¶ 124-27.

         An adjudicatory panel determined that Student One had violated Carleton's sexual-assault policy. Am. Compl. ¶ 137. The panel did not suspend or expel Student One, however. Am. Compl. ¶ 138. As far as Shank is aware, the only sanction levied against Student One was an order prohibiting him from having contact with Shank. Am. Compl. ¶ 140. Shank's parents requested that Carleton file an appeal, but Carleton did not do so. Am. Compl. ¶¶ 144-45.

         The panel issued the no-contact order to Student One in the spring of Shank's freshman year. Am. Compl. ¶ 150. During the fall of her sophomore year, Shank frequently saw Student One around campus and learned that he had not yet been served with the no-contact order. Am. Compl. ¶¶ 147-48, 150. Shank's overwhelming fear of encountering Student One (and, later, Student Two) was a significant factor in her academic difficulties. Am. Compl. ¶ 212. Although Shank believed that she would feel less threatened if she knew about all of the sanctions imposed on Student One, Carleton refused to disclose them. Am. Compl. ¶¶ 149, 152. Instead, a Carleton official told Shank that she would have to meet with Student One if she wanted to learn the full outcome of the adjudication proceeding. Am. Compl. ¶ 153. Shank reluctantly agreed to the meeting, which took place in October 2012. Am. Compl. ¶¶ 160, 166.

         At the one-on-one meeting, Student One did not apologize or express any remorse. Am. Compl. ¶ 168. Instead, he emphasized his anger at Shank and pressured her to lift the no-contact order. Am. Compl. ¶¶ 168-69. Feeling terrified, Shank agreed. Am. Compl. ¶ 170. As a result, she continued to encounter Student One on campus throughout her remaining time at Carleton. Am. Compl. ¶ 171. In January of Shank's senior year, Shank asked that the no-contact order be reinstated, and Carleton agreed. Am. Compl. ¶ 176. Student One proceeded to violate that order the following month, with little response from Carleton. Am. Compl. ¶¶ 177-81.

         C. Disciplinary Proceedings Involving Student Two

         Two days after being sexually assaulted by Student Two, Shank reported the rape to Carlson, her sexual-misconduct support advisor. Am. Compl. ¶ 196. Carlson told Shank that she had previously heard Student Two's name in connection with sexual misconduct, but that no one had ever filed a formal complaint against him. Am. Compl. ¶ 197. Carlson discouraged Shank from filing a formal complaint because Student Two would be graduating in a couple of months. Am. Compl. ¶ 198. Noting that Shank herself was in danger of an academic suspension, Carlson advised Shank to focus on her classwork. Am. Compl. ¶ 199. Carlson also suggested that, if Shank could not cope with Student Two's presence on campus during his remaining months, she should take a medical leave or change her major to a less-challenging one. Am. Compl. ¶ 200.

         A few weeks later, Shank and several other students filed community-concern forms complaining of Student Two's sexually predatory behavior. Am. Compl. ¶¶ 201- 03. Carleton eventually prohibited Student Two from contacting Shank or the other complainants. Am. Compl. ¶ 204. Carleton did not take any other action against Student Two; he was allowed to remain on campus, and he was allowed to live in the same dormitory as Shank. Am. Compl. ¶¶ 205, 207-08.

         II. ANALYSIS

         A. Standard of Review

         In reviewing a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th Cir. 2008). Although the factual allegations need not be detailed, they must be sufficient to “raise a right to relief above the speculative level . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must “state a claim to relief that is plausible on its face.” Id. at 570.

         Ordinarily, if the parties present, and the court considers, matters outside of the pleadings, a Rule 12(b)(6) motion must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(d). But the court may consider materials that are necessarily embraced by the complaint as well as any exhibits attached to the complaint without converting the motion into one for summary judgment. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003). In this case, Carleton has submitted materials outside of the pleadings, but the Court has not considered those materials, and therefore the Court will not convert the motion into one for summary judgment.

         B. Title IX

         Shank brings a claim under Title IX, which prohibits sex discrimination by recipients of federal education funding. Specifically, Title IX provides, in relevant part:

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 . . . .

20 U.S.C. § 1681(a).

         The Supreme Court has held that a plaintiff who has been injured by student-on- student (or “peer”) sexual harassment may hold a funding recipient liable under Title IX. Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999).

         But the funding recipient can be held liable only for its own misconduct; it cannot be held vicariously liable for the misconduct of others. Id. at 640-41. To prevail on a peer- harassment claim, therefore, a plaintiff must establish that the recipient acted with deliberate indifference to acts of harassment of which the recipient had actual knowledge.[1]Id. at 646-47, 650. As applied in this context, the deliberate-indifference standard sets a very high bar for plaintiffs: A funding recipient is not liable unless it responded to acts of harassment in a manner that was “clearly unreasonable in light of the known circumstances.” Id. at 648. Victims do not ...

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