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Jackson v. Liberty University

United States District Court, W.D. Virginia, Lynchburg Division

August 3, 2017

Cameron M. Jackson, Plaintiff,
v.
Liberty University, et al., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON UNITED STATES DISTRICT JUDGE.

         Plaintiff is a former student and football player at Liberty University who was removed from the university following a determination that he had violated the school's Student Honor Code (“The Liberty Way) and its Sexual Assault, Harassment and Discrimination Policy (“Sexual Assault Policy”). Defendant Sarah Browning, a fellow Liberty University student at the time, accused Plaintiff of sexually assaulting her at an apartment following an off-campus party. Browning notified Liberty officials of the sexual assault approximately eleven months after it was said to have occurred, allegedly as a form of retaliation related to her expulsion from Liberty. Liberty University issued an allegedly defamatory press release after an initial investigatory committee found Plaintiff to have violated Liberty's policies. Eventually, Plaintiff was removed from Liberty with an annotation on his transcript that he was found in violation of the Sexual Assault Policy.

         Plaintiff asserts eighteen claims related to these events against Liberty, certain Liberty employees, and Browning. Generally, these claims are that Liberty improperly removed him using flawed processes, that the press release was defamatory, and that Browning acted improperly in bringing false accusations against him. The group of defendants including Liberty University and its employees has filed a motion to dismiss all claims against them except one under Title IX. Defendant Browning has filed her own motion to dismiss all claims against her. Eleven of the eighteen claims asserted will be dismissed.

         Specifically, Plaintiff's contract claims against Liberty will be dismissed because he does not allege the existence of an enforceable contract. Plaintiff's promissory estoppel claim is not recognized under Virginia law and will be dismissed. Plaintiff does not allege a legally cognizable duty that was violated, so his various negligence claims against Liberty and its employees will be dismissed. Plaintiff's declaratory judgment claim both fails to allege an underlying cause of action and has been waived by Plaintiff. Plaintiff's statutory conspiracy claim against Browning will be dismissed because he asserts only personal injury rather than injury to a business interest. Plaintiff's malicious abuse of legal process claim against Browning will be dismissed because there was no legal process issued in the events leading up to this action.

         Plaintiff's four defamation claims related to Liberty's press release will not be dismissed because the defamatory implication he asserts can be reasonably read from the document. Plaintiff's two defamation claims against Defendant Browning will be allowed to proceed, as Plaintiff has adequately pled that Browning's statements were malicious, and thus not qualifiedly privileged. Finally, Defendants have not moved to dismiss Plaintiff's Title IX claim.

         I. Facts as Alleged

         The controversy in this case revolves around a reported sexual assault committed by Plaintiff and his subsequent expulsion from Liberty University. In essence, Plaintiff asserts he did not commit sexual assault and that the Liberty-related defendants improperly handled the investigation into the incident and the resulting disciplinary actions.

         The alleged sexual assault at issue (“the Incident”) involved Plaintiff, a student on the Liberty University football team, and Defendant Sarah Browning, another student at Liberty University. For three to four months prior to the Incident, Plaintiff and Browning had been having a casual sexual relationship. (Dkt. 1-1 ¶¶ 31-32). In August 2015, there was a large, off-campus party attended by Browning, Plaintiff, and many other members of the Liberty football team. (Id. ¶¶ 37, 38, 41, 43). Over the course of the party, Browning approached several football players - including Plaintiff - and engaged in oral sex with them. (Id. ¶¶ 46, 48, 52, 53, 54, 55). Eventually, officers from the Lynchburg Police Department arrived and broke up the party. (Id. ¶ 56). In full view of these officers, Browning approached Plaintiff and a group of his friends and asked where they were going. (Id. ¶ 63). When Plaintiff responded that they were going to a friend's apartment, Browning asked to join them, indicating that she planned to be picked up by her friend in the morning from the apartment. (Id. ¶¶ 64, 65). Still in view of these police officers, Browning climbed unassisted into the vehicle and proceeded with Plaintiff to the apartment. (Id. ¶ 66).

         Later that night, Browning and Plaintiff had consensual sexual intercourse in the living room of the apartment. (Id. ¶ 73). Because the living room was only separated by a “privacy blanket, ” Chris Turner overheard and viewed portions of the intercourse, which, in his opinion, appeared to be consensual. (Id. ¶¶ 72, 74, 75, 76). Another individual, Spencer Cook, also walked into the living room and viewed Browning on top of Plaintiff in what appeared to be consensual sex. (Id. ¶ 77).

         The next morning, Browning was picked up by a friend, to whom she reported that she had “hooked up with pretty much every hot guy on the football team” and offered details of her reportedly consensual sexual encounter with Plaintiff. (Id. ¶¶ 81-84). Plaintiff and Browning continued to engage in a casual sexual relationship in the weeks and months following the Incident, including having sexual intercourse five to seven times, and engaging in two sexual acts in the week following the Incident. (Id. ¶¶ 85-87).

         Rumors began to circulate that Browning was gang-raped by several members of the Liberty football team on the night of the Incident. (Id. ¶¶ 88-90). Eventually, officials at Liberty University investigated the rumors and set up an interview with Browning to address them. (Id. ¶¶ 91-93). Prior to her meeting with these officials, Browning asked her friend Jane Doe: “Do you think I should say I was raped?” (Id. ¶ 97) The alleged motivation for this question was that The Liberty Way forbade consensual sexual intercourse, and thus claiming non-consent would have been a defense to accusations of engaging in sexual conduct. (Id. ¶¶ 94-95). However, Browning ultimately ended up denying the rumors in their entirety at the meeting. (Id. ¶ 98).

         Around the same time, Fall semester 2015, Liberty purportedly became aware that Browning was allegedly abusing illegal drugs. (Id. ¶ 100). In Spring semester 2016, Browning was forced to withdraw from Liberty. (Id. ¶ 106). Following her departure, Browning sent a message through the service Snapchat stating “Fuck LU! I can take down that whole football team.” (Id. ¶ 108).

         On July 13, 2016, Browning contacted Liberty's Office of Community Life to report that she had been raped on the night of the Incident. (Id. ¶ 110). Although her version of events at one point included being raped by eight individuals at the party, the allegations were later narrowed to only include being raped by three individuals - including Plaintiff - at the apartment. (Id. ¶ 111). As rumors of the reported rape began to spread, one of Plaintiff's teammates, T.J. Tillery, confronted Browning about inconsistencies in her story, to which she responded: “Yeah, I kept hooking up with [Plaintiff] afterwards, but I got in trouble for this, that, and the other. And, it's time for the football players to pay for something for once.” (Id. ¶¶ 113-14). Tillery, who at the time had an ongoing sexual relationship with Browning, explained Browning's motivation to other members of the football team as: “Basically, she's doing this because we don't get in trouble for anything.” (Id. ¶¶ 115, 118).

         Upon receiving Browning's claim, Liberty initiated an investigation under its established Title IX (20 U.S.C. § 1681 et seq.) procedures. (Id. ¶ 126). Throughout the investigation, Liberty relied on “cooperating witnesses, ” who were given immunity for their own honor code violations in exchange for their testimony. (Id. ¶¶ 128-29). Liberty eliminated individuals from its list of “suspects” if they cooperated, and proceeded only against Plaintiff and others who did not cooperate. (Id. ¶ 135). Plaintiff was never given the opportunity to review records or evidence being used against him, nor was he notified - as required by Liberty's policies - of his right to request copies of such evidence. (Id. ¶¶ 130-31).

         Plaintiff was not present at the final hearing for the investigation, held September 8, 2016, which concluded that he had violated the Sexual Assault Policy. (Id. ¶¶ 133, 141). The evidence at the hearing included written statements rather than live testimony, and the sources of information presented were all derived from Browning's account rather than from independent observation. (Id. ¶¶ 137-38). As a result of his adjudicated violation, Plaintiff was given the harshest punishment available under the Sexual Assault Policy - expulsion plus a transcript notation indicating he was removed for sexual assault. (Id. ¶ 142). Plaintiff immediately appealed the decision. (Id. ¶ 144).

         On September 12, 2016, Liberty issued a press release regarding the investigation that read in relevant part:

On July 13, 2016, Liberty University received a report of sexual assault . . . Liberty University has a process in place for handling reports of sexual harassment, discrimination and assault . . . Liberty University has followed that process in this case . . . As a result of the investigation and hearing held on September 8, 2016, two current students, Cameron Jackson and Kyle Carrington, and one former student, Avery James, were found responsible for violating the Student Honor Code and Liberty University's Policy on Sexual Harassment, Discrimination, and Assault. As part of the process, each of these students has the right to appeal the Conduct Review Committee's decision.

(Id. ¶¶ 150, 367). The press release was issued in an effort to make Liberty appear “tough” on issues of sexual assault. (Id. ¶ 158). Liberty felt the need to appear tough in order to attract the services of former Baylor Athletic Director Ian McCaw, who had resigned from that previous post after criticism of his handling of a sexual assault scandal at Baylor. (Id. ¶ 159). McCaw described himself as “uniquely sensitized” to sexual assault matters, and Liberty recognized that his hiring following Baylor's sexual assault scandal would come with heavy scrutiny related to their handling of sexual assault issues. (Id. ¶¶ 162, 165). Liberty was also motivated to issue the press release to preserve its reputation for upholding Christian values, or, as Defendant Dufort (Liberty's University Assistant Director of Title IX) put it:

[T]his isn't what we want for the college. I mean, we're Champions for Christ, you know? Not, ‘Oh, wow. Look at all that's going on here!' . . . When all this social media came out, we realized we had to do something about it, okay? We couldn't let the media get a hold of this and just do what they want because I'm a former police officer and I've seen how the media trashes a report.

(Id. ¶ 170). As a result of the press release, Plaintiff began to be harassed around campus. (Id. ¶¶ 175-77). Additionally, several witnesses emerged after the case gained publicity. (Id. ¶ 183).

         Plaintiff's appeal hearing was held on October 3, 2016. (Id. ¶ 196). Three witnesses (Corbin Jackson, Jordan Elliott, and Chris Turner) testified on behalf of Plaintiff. (Id.) They stated that Browning did not appear to be intoxicated (Corbin), that Browning seemed to be voluntarily and happily accompanying Plaintiff at all relevant times (Corbin, Elliott), that Browning's original “gang rape” allegations would have been implausible given the nature of the party (Elliot), and that the sexual intercourse sounded and appeared to be consensual (Turner). (Id. ¶¶ 196-99). Plaintiff also testified as to his version of the events, which he had not done at the initial hearing. (Id. ¶ 200). There were no independent witnesses on the other side, as they all merely testified to what Browning had told them about the Incident. (Id. ¶¶ 230-31).

         Plaintiff presented two grounds for his appeal. First, that the initial decision was procedurally flawed because he had not been given access to the evidence against him, and thus could not rebut such evidence at the initial hearing.[1] (Id. ¶ 204). Second, Plaintiff argued that new evidence had emerged in the form of: (1) new witnesses, (2) his testimony, and (3) a written statement by Browning denying that any sexual activity happened on the night of the Incident when confronted with the earlier rumors of a gang rape occurring at the Incident. (Id. ¶ 205).

         Plaintiff was unsuccessful in his appeal and was ultimately removed from Liberty with an annotation on his transcript for sexual assault. As a result of his expulsion and the annotation on his transcript, Plaintiff has been unable to gain admittance to another university nor further his once-promising athletic career. (Id. ¶¶ 240-43).

         Plaintiff also alleges the existence of a conspiracy between Browning and two of her friends, Jane Doe and Jane Roe. (Id. ¶ 249). As part of their conspiracy, the three agreed to target Liberty and its football team in retaliation for the perceived inequality in how the football team was favorably treated by Liberty University. (Id. ¶ 251). Soon after the appellate decision in Plaintiff's hearing, Jane Roe submitted allegations to Liberty about a substantially similar sexual assault by a Liberty football player that occurred at a different party several weeks after the Incident. (Id. ¶ 256). Approximately two weeks later, Jane Doe submitted similar allegations to Liberty. (Id. ¶ 259).

         Based on the foregoing facts, Plaintiff asserts the following causes of action:

I) Violation of Title IX by Liberty for depriving Plaintiff of due process and equal protection due to his gender. Specifically, Plaintiff alleges that various aspects of Liberty's Title IX resolution process are biased against males.
II) Breach of contract by Liberty for failing to comply with the terms of The Liberty Way and its Sexual Assault Policy.
III) Violation by Liberty of the covenant of good faith and fair dealing attached to the alleged contract in The Liberty Way and the Sexual Assault Policy.
IV) Promissory estoppel by Liberty based on Liberty's representation that it did not tolerate harassment and would give due process to students accused of violating its policies.
V) Negligence on the part of Liberty by improperly developing policies biased against males.
VI) Defamation by implication against Liberty for the publication of its press release implying that Plaintiff committed sexual assault.
VII) Defamation per se for the same conduct.
VIII) Declaratory Judgment reversing the outcome of the Title IX proceedings, removing the annotation from Plaintiff's transcript, and restoring his reputation, among other things.
IX) Negligence against Dean of Students Robert Mullin for failing to ensure that Plaintiff received a fair ...

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