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Doe v. Haskell Indian Nations University

United States District Court, D. Kansas

July 18, 2017

Jane Doe H., Plaintiff,
Haskell Indian Nations University, et al., Defendants.



         Plaintiff Jane Doe H. attended Haskell Indian Nations University in Lawrence, Kansas from 2014 to 2016. Haskell is a unique federally-owned university, providing tuition-free higher education to members of recognized Indian Nations.[1]Doe brings the present action against Haskell, the United States, the Secretary of the Department of Interior, and two individual Haskell officers and one Haskell employee.[2]

         The plaintiff alleges in her complaint that she was subjected to a sexual assault by two male students at a dormitory in November of 2014. After an investigation, the male students were criminally charged. (Dkt. 1, ¶¶ 16-18). Haskell provided plaintiff counseling and support for the next sixteen months, and the complaint identifies no actions by defendants during that period which support her claims for relief. (Id., at ¶¶ 21-22).

         On March 31, 2016, the complaint alleges that plaintiff experienced a physical altercation with a third male student. The male student reported that plaintiff assaulted him. Plaintiff alleges that university officers pressured the male student to file Title IX charges against her, even though the officers did or should have known that she was the victim of the altercation. (Id., at ¶¶ 26-27).

         University administrators issued an order to plaintiff that she should have no contact with the male student. Plaintiff alleges that the she was constructively expelled and banned from campus without any additional investigation. (Id., at ¶¶ 32-33). Plaintiff alleges she was not allowed any opportunity to oppose this decision prior to the constructive expulsion. Plaintiff withdrew from the university and did not engage in any subsequent appeal or procedural opposition to the administrator's actions. Plaintiff filed the present action on October 24, 2016.

         In the complaint, the plaintiff raises three claims against the Secretary, Haskell, and the United States: (Count 1) that she was subjected to a hostile educational environment at Haskell in violation of Title IX; (Count 2), that they violated her rights under Title IX by retaliating against her; and (Count 6), that they violated her rights under the Rehabilitation Act by constructive expelling, even though they knew she was mentally traumatized by the 2014 assault. Against the individual defendants, plaintiff brings Bivens claims for (Count 3) deprivation of due process, [3] (Count 4) violation of her equal protection rights, and (Count 5) violated her privacy rights by providing copies of her Haskell records, without a subpoena, to defendants' counsel during the June, 2016, trial of the students involved in the alleged 2014 assault.

         All of the defendants have moved to dismiss the action. Citing U.S. Dep't of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605-06 (1986), the government[4] argues that the plaintiff's claims against it are precluded by sovereign immunity, and alternatively that plaintiff's Title IX and Rehabilitation Act claims are inapplicable, since Haskell is not an institution receiving federal assistance within the meaning of those statutes. The individual defendants argue that plaintiff's claims are not appropriate Bivens actions, and alternatively that defendants are protected by qualified immunity. All defendants argue that, even if plaintiff's claims are otherwise properly before the court, her allegations fail to support the claims presented.

         The plaintiff responds to the government's argument by contending that it has misapprehended Paralyzed Veterans, and focuses on the Court's reference in that case to its earlier decision in Grove City College v. Bell, 465 U.S. 555 (1984). According to the plaintiff, Paralyzed Veterans merely held that a private entity (an airline) receiving an indirect benefit from federal airport construction assistance, was outside the reach of Section 504 of the Rehabilitation Act. She contends that Grove City, which involved student financial assistance under Title IX, is the more relevant decision.

         In Paralyzed Veterans, the Court rejected an argument by the plaintiffs that Grove City supported their position by distinguishing the nature of the federal assistance in the earlier decision:

This argument confuses intended beneficiaries with intended recipients. While we observed in Grove City that there is no “distinction between direct and indirect aid” and that “[t]here is no basis in the statute for the view that only institutions that themselves apply for federal aid or receive checks directly from the Federal Government are subject to regulation, ” we made these statements in the context of determining whom Congress intended to receive the federal money, and thereby be covered by Title IX. 465 U.S., at 564, 104 S.Ct., at 1217. It was clear in Grove City that Congress' intended recipient was *607 the college, not the individual students to whom the checks were sent from the Government. It was this unusual disbursement pattern of money from the Government through an intermediary (the students) to the intended recipient that caused us to recognize that federal financial assistance could be received indirectly. While Grove City stands for the proposition that Title IX coverage extends to Congress' intended recipient, whether receiving the aid directly or indirectly, it does not stand for the proposition that federal coverage follows the aid past the recipient to those who merely benefit from the aid. In this case, it is clear that the airlines do not actually receive the aid; they only benefit from the airports' use of the aid.

477 U.S. at 605-06.

         The court finds that Grove City does not support an exercise of jurisdiction over the plaintiff's claims in the present action. First, in Grove City the Court had stressed the distinct nature of the federal assistance in question - Basic Education Opportunity Grants (BEOGs) which were made payable to students but which inevitably flowed into the defendant college's financial aid program. “The BEOG program was designed, not merely to increase the total resources available to educational institutions, but to enable them to offer their services to students who had previously been unable to afford higher education.” Grove City, 465 U.S. at 573. The Court determined under the circumstances of the case that the government could enforce Title IX's certification requirements, but only against the college's financial aid program, not against the college itself:

It is true, of course, that substantial portions of the BEOGs received by Grove City's students ultimately find their way into the College's general operating budget and are used to provide a variety of services to the students through whom the funds pass. However, we have found no persuasive evidence suggesting that Congress intended that the Department's regulatory authority follow federally aided students from classroom to classroom, building to building, or activity to activity…. We conclude that the receipt of BEOGs by some of Grove City's students does not trigger institution-wide coverage under Title IX. In purpose and effect, BEOGs represent federal financial assistance to the College's own financial aid program, and it is that program that may properly be regulated under Title IX.

Id. at 573-74.

         In the present case, the financial assistance provided by the federal government is far more indirect than in Grove City. Haskell is a unique national institution of higher learning for Native Americans. It provides a tuition-free education for members of indigenous Nations, and any federal assistance takes the form of Pell Grants or other assistance for limited expenses, such as books and lodging, which students may otherwise incur.

         More importantly for present purposes, Grove City involved an effort by the government to enforce Title IX's certification requirement against a private college. As a result, the decision provides no guidance as to whether Congress has waived the federal government's sovereign immunity as to actions for monetary damages arising under Title IX.

         “The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress.” Block v. North Dakota, 461 U.S. 273, 287, (1983). Such a waiver of sovereign immunity must be “unequivocally expressed” in statutory text. See, e.g., Lane v. Peña, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996); United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Any ambiguities in the statutory language are to be construed in favor of immunity. United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995). If there is any doubt, waiver will not be found because waiver cannot be implied, assumed, or based upon speculation, surmise, or conjecture. United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969).

         By separate statute, Congress has explicitly stated that “[a] State shall not be immune under the Eleventh Amendment of the United States from suit in federal court” for violations of Title IX and Section 504 of the Rehabilitation Act. 42 U.S.C. § 2000d-7(a)(1). See, e.g., Franks v. Ky. Sch. for the Deaf, 142 F.3d 360, 363 (6th Cir. 1998) (“Congress successfully abrogated the states' Eleventh Amendment immunity from Title IX lawsuits”). But Congress has not explicitly waived sovereign immunity by the federal government for such actions.

         Thus, “Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act, and the False Claims Act do not waive the sovereign immunity of the United States.” Wije v. Texas Woman's Univ., No. 4:14-CV-571-ALM-CAN, 2015 WL 9872534, at *8 (E.D. Tex. Dec. 22, 2015), report and recommendation adopted, No. 4:14-CV-571, 2016 WL 231151 (E.D. Tex. Jan. 19, 2016) (as to his claims under “Title IX of the Education Amendments of 1972 [and] Section 504 of the Rehabilitation Act … against the United States Department of Education … Plaintiff has not satisfied his burden to demonstrate the immunity of the United States has been (or could have been waived) here”).

         In Lane, 518 U.S. at 192, the Supreme Court concluded that “[t]he clarity of expression necessary to establish a waiver of the Government's sovereign immunity against monetary damages for violations of § 504 is lacking.” The Court stressed that Congress explicitly waived federal sovereign immunity in 29 U.S.C. § 791 for Rehabilitation Act cases charging disability in employment discrimination under Section 501. In contrast, in the remedies provision for Section 504 cases,

Congress decreed that the remedies available for violations of Title VI would be similarly available for violations of § 504(a) “by any recipient of Federal assistance or Federal provider of such assistance.” 29 U.S.C. § 794a(a)(2). This provision makes no mention whatsoever of “program[s] or activit[ies] conducted by any Executive agency, ” the plainly more far-reaching language Congress employed in § 504(a) itself. Whatever might be said about the somewhat curious structure of the liability and remedy provisions, it cannot be disputed that a reference to “Federal provider[s]” of financial assistance in § 505(a)(2) does not, without more, establish that Congress has waived the Federal Government's immunity against monetary damages awards beyond the narrow category of § 504(a) violations committed by federal funding agencies acting as such-that is, by “Federal provider[s].”

Id. at 192-93.

         The Court also rejected the plaintiff's argument resting on earlier decisions such as Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992) recognizing an implied right of action under Title IX against the recipients ...

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