United States District Court, D. Minnesota
ELIZABETH M. SHANK, Plaintiff,
CARLETON COLLEGE, Defendant.
Barbara P. Berens, Erin K. Fogarty Lisle, and Carrie L.
Zochert, BERENS & MILLER, P.A., for plaintiff.
R. Somermeyer and Jacqueline A. Mrachek, FAEGRE BAKER DANIELS
LLP, for defendant.
Patrick J. Schiltz United States District Judge
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.
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.
amended complaint alleges the following:
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.
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.
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.
Disciplinary Proceedings Involving Student One
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. ¶¶
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.
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.
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.
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.
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.
Disciplinary Proceedings Involving Student 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.
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. ¶¶
Standard of Review
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.
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.
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).
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).
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.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