Court: K-State has ‘substantial control’ over greek houses, must investigate rape reports

Anderson Hall and the grand lawn open up to the rest of campus as the sun sets on Aug. 9, 2016. (File Photo by Evert Nelson | The Collegian)

A federal judge in Kansas said Kansas State has a duty under Title IX to investigate reports of student-on-student sexual assault at off-campus greek houses and events, but not at off-campus apartments.

U.S. District Judge Julie Robinson, in court documents signed Monday, dismissed portions of Title IX lawsuits by current and former K-State students against the university, but also allowed other portions to continue through the court process.

Two lawsuits against the university were filed in April 2016 by Sara Weckhorst and Tessa Farmer, both seniors in social work. In November 2016, Crystal Stroup, a former K-State student, filed to join Weckhorst’s lawsuit.

The court dismissed two of Weckhorst’s and Farmer’s claims: violation of the Kansas Consumer Protection Act and negligence; however, the violation of Title IX claims will continue through the court.

Title IX is a federal statute that protects against sex-based discrimination at federally-funded education institutions. There are four ongoing Title IX investigations by the U.S. Department of Education regarding how K-State handles sexual assault reports.

Off-campus apartments

The addition of Stroup’s amendment to Weckhorst’s lawsuit was denied by the court because Stroup’s reported rape was at an off-campus apartment.

The court stated:

“The alleged sexual assault of Ms. Stroup occurred at a private off-campus apartment, and not in relation to any fraternity event. Under these circumstances, the Court cannot find that KSU had ‘substantial control’ over the context of the assault.”

In a statement on Tuesday, K-State said the court’s reasoning validates PPM 3010, the university’s policy governing investigation of reports of sex discrimination.

“The Court explained that Title IX requires the university to respond to reports of sexual violence that occur within K-State’s education programs and activities,” the statement said. “The Court rejected the notion that K-State itself must conduct an investigation of all reported acts of sexual violence between students regardless of location and connection to K-State’s programs and activities. PPM 3010 aligns with these rulings.”

Jeff Morris, K-State vice president for communications and marketing and acting vice president for human capital services, said in an email the university will have no further comment beyond the statement.

Off-campus greek housing

The court stated that K-State may have a “duty to adhere to the mandate of Title IX,” even when reports of sexual assault involve greek housing and events.

The court said:

“The Court simply finds that Plaintiff has presented plausible allegations in this case that KSU had substantial control over the fraternity (a KSU student organization) and the alleged assailants, thereby triggering a duty to adhere to the mandate of Title IX — that is, respond to Plaintiff’s report of rape in a way that was not deliberately indifferent or ‘clearly unreasonable.'”

The court said the university has “substantial control” over fraternities:

“The fraternity allegedly is a KSU student organization, is supervised by a faculty adviser, is overseen by KSU’s Office of Greek Affairs, is subject to KSU rules specifically applicable to fraternity parties and events, and was suspended by the KSU (Interfraternity Council) for conduct at the party where Plaintiff was assaulted. Thus, the Court is convinced that KSU has substantial control over the alleged assailants and the context in which the alleged assaults at Pillsbury Crossing and the fraternity house occurred.”

The court said it would not dismiss the Title IX violation claims in the lawsuits because there were plausible allegations that, “KSU had substantial control over both the alleged assailants and the context of the alleged assaults, and that KSU’s alleged deliberate indifference made Plaintiff liable or vulnerable to further harassment or assaults.”

The university disagreed with the court in its statement:

“The Plaintiffs alleged that K-State had substantial control over private fraternities and their off-campus, private fraternity houses sufficient to consider those fraternities part of K-State’s programs and activities. In reaching this ruling, the Court did not make any factual findings concerning these allegations about the Greek system; instead, the Court simply recited the plaintiffs’ unproven allegations. The university is confident the evidence will demonstrate that K-State did not have substantial control over the context of the alleged sexual assaults.”

Jack Ayres, junior in chemical engineering and student body president-elect, said he has read the university’s statement, but not the court documents. He and Olivia Baalman, junior in computer science and vice president-elect, will meet to go over the court documents on Friday with Heather Reed, assistant vice president for student life and a Student Governing Association adviser.

The court also said it agreed with K-State in that the Department of Education’s “Dear Colleague” letters “do not carry the force of law.”

Redacted letter

The court also ordered the redaction of portions of a letter included in the lawsuits by Danielle Dempsey-Swopes, the former senior investigator for the Office of Institutional Equity to the U.S. Department of Education Office for Civil Rights.

The letter includes a specific example from Dempsey-Swopes of university administrative staff instructing her to not investigate an off-campus sexual assault.

“Each time I have received off-campus assault complaints, the general counsel staff informed me that I should not investigate, that the university has no Title IX obligation regarding off-campus occurrences where the university has no control, and that I would extend the liability of the university too far,” Dempsey-Swopes wrote. “Most importantly they claim, such complaints do not fall within the jurisdiction of the university policy.”

Dempsey-Swopes’ letter then described the internal workings of the Office of Institutional Equity after Farmer’s report of rape by a K-State student at a K-State fraternity house.

“Gill … directed me to ‘stall’ and to deliberately delay (for at least a week and as long as possible) taking any action in response to the report,” Dempsey-Swopes wrote in the letter. “On Wednesday, Aug. 27, 2015, Mr. Gill came to my office upset because he believed I had begun work on the Aug. 24 report. He reiterated that he wanted me to continue to ‘stall and delay any investigatory action in response.'”

Gihring’s case

Stroup’s filing alleged that her rape by Jared Gihring, a former K-State student, at an off-campus apartment in 2015 would have never happened if K-State had properly investigated Weckhorst’s rape at an off-campus fraternity party by Gihring in 2014.

Gihring was charged with the rape of Weckhorst on April 26, 2014, and rape and sodomy of Stroup on Oct. 6, 2015, according to documents from the Riley County District Court filed Oct. 24. Both rape and sodomy are felonies.

On Jan. 3, Gihring plead “not guilty” to all three charges. At the time, hearings were scheduled for March 17.

K-State filed to add Gihring and a second student, identified as “J.F.,” as defendants in Weckhorst’s and Farmer’s lawsuits against the university.

The court said that K-State sought to add Gihring and J.F. because, “KSU argues that resolution of this action in the absence of J.F. and (Gihring) would impede their ability to protect their interests.”

The motion was denied by the court.

If found guilty, Gihring faces between 12 and 54 years in prison for each felony, based on Kansas sentencing guidelines.

Jason Tidd graduated from Kansas State University's Miller School of Journalism and Mass Communication in May 2017. He was the spring 2017 editor-in-chief, fall 2016 news editor and spring 2016 assistant news editor. While at K-State, Jason played baritone in the Pride of Wildcat Land marching band.