United States District Court, W.D. Virginia, Lynchburg Division
Cameron M. Jackson, Plaintiff,
Liberty University, et al., Defendants.
K. MOON UNITED STATES DISTRICT JUDGE.
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.
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
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.
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
Facts as Alleged
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.
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).
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).
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.
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).
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.
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).
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).
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).
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
(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).
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.
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. (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).
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).
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).
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
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
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 ...