Experts: Cases Similar To McCluskey Family Lawsuit Against U Of U Rarely Won, But Raise Awareness | KUER 90.1

Experts: Cases Similar To McCluskey Family Lawsuit Against U Of U Rarely Won, But Raise Awareness

Sep 27, 2019

Civil rights lawsuits like the one the family of a slain University of Utah track star Lauren McCluskey filed this summer against the school are rarely won, legal experts say. 

But for the McCluskey family, campus safety became a necessary conversation to bring up in court after the University of Utah President Ruth Watkins said their daughter’s death wasn’t preventable. 

In the $56 million lawsuit,  the family alleges that the university, its campus police force and student housing staff failed to protect McCluskey, 21, during the days leading up to her Oct. 22 murder. 

Matt McCluskey, Lauren’s father, said in an interview Friday with RadioWest’s Doug Fabrizio that there seems to be a broken culture in those departments at the university.

“The culture is if a young woman comes in with a specific complaint, fear, they are not being taken seriously,” Matt McCluskey said. “I know that’s the case for Lauren. I suspect that’s the case for others.”

McCluskey’s comments come a week after the university filed a motion to dismiss the lawsuit. Since asking for dismissal, the university has been criticized by its student government who said the motion wrongly blamed the victim. 

The Utah Attorney General’s Office, which is representing the university, said its legal defense doesn’t mean the school is ignoring its responsibility to student safety. 

“It was not meant to, and did not, blame the victim, dismiss the important issue of campus safety, or minimize in any way the terrible tragedy of Lauren McCluskey’s death,” the Utah Attorney General’s Office said Friday in a statement.

The university is committed to becoming a model for safer campuses, Bill Warren, the institution’s chief marketing and communications officer, said Friday during an appearance on Radiowest. 

“That is our sole objective at this point," he said. 

‘Minimal Efforts’ From Schools

One of the allegations that the family’s civil rights lawsuit makes is that the university failed to take any meaningful action despite multiple reports that Lauren McCluskey, her family and her friends made to staff and campus police regarding the stalking and harassment of the college senior by her ex-boyfriend Melvin Rowland, 37. 

“Consequently, the university failed to meet its obligations and violated Title IX,” the lawsuit states, referring to the section of law that protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.

Under Title IX, victims of crimes such as stalking, sexual harassment and dating violence can file a lawsuit in federal court if their college is not complying with its Title IX obligations. 

But in order to make a successful argument that an institution has violated its Title IX obligation, plaintiffs must prove that an institution acted with “deliberate indifference” by turning a blind eye and letting the events play out, said Erin Buzuvis, a professor at Western New England University who researches discrimination, with a focus on Title IX. 

“Title IX provides for liability of the school or university if the school knew if the student who was assaulted or harassed under the threat or faced that risk of harassment occurring,” Buzuvis said. 

Deliberate indifference, however, is a high standard that’s often hard to prove. 

“Often times, schools, colleges, universities get away with making a minimal effort because judges can look at (a case) and say it wasn’t complete indifference,” Buzuvis said. 

The university has argued in court that the school cannot be sued under Title IX for Lauren McCluskey’s death. The argument is that Rowland was not affiliated with the campus and, therefore, the university had no “substantial control” over him. 

Whether a university has control in cases of sexual assault or harassment can depend on whether the incident happened on campus, Buzuvis said. She added that plaintiffs can also argue that institutions are in control of their campus police force. 

Even with those possible arguments, Title IX cases where the alleged perpetrator is not affiliated with the accused institution are typically dismissed in courts across the country. The university cited five failed cases involving a non-student in its motion to dismiss. 

Lawsuits Rarely Successful, But Raise Awareness

One of these cases involved the death of an 18-year-old freshman at Millersville University. The student was assaulted and murder on Feb. 5, 2015, in her dorm room by her boyfriend, who did not attend the Millersville, Penn. institution. The U.S. District Court for the Eastern District of Pennsylvania ruled in favor of Millersville University and other defendants in the case earlier this month. 

Colby Bruno, senior legal counsel for the Victim Rights Law Center, a Boston-based nonprofit which provides legal services to rape and sexual assault victims, knows firsthand how hard it can be to successfully argue these types of cases in court. 

The chances of winning a case like the McCluskey’s lawsuit against the school is slim. But the media attention and the conversations around campus safety that it can start can be significant despite what courts may rule, Bruno said. 

“If a case like this is publicized, other schools can learn from it and learn what not to do,” she said. “And even though the deliberate indifference is high standard, if there’s enough public outrage — and some pressure — maybe the family will be able to reach a settlement.”

If successful in the lawsuit, the McCluskey family has said it would donate the $56 million in damages to a foundation it opened in honor of their daughter. The foundation aims to support charitable work in campus safety, amateur athletics and animal welfare. 

“The university must pay a large amount so that they realize it is in their interest to believe women and act with urgency when their female students ask for help,” Lauren’s mother, Jill McCluskey, said in a June press conference.