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Sexual Assault Survivor Can't Sue Feds for Failing to Investigate

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By Casey C. Sullivan, Esq. on March 27, 2015 1:01 PM

A former University of Virginia undergrad who was allegedly sexually assaulted while a student has lost her suit against the U.S. Department of Health and Human Services and the Department of Education for mishandling her complaints against the University.

The plaintiff, suing as Jane Doe, had complained to the agencies that UVA's failure to take action regarding severe sexual harassment and misconduct against her violated Title IX. The departments took no significant action on her complaints, Doe alleged, leading to her lawsuit.

Taking on Campus Sexual Assault

Doe's lawsuit comes amidst renewed scrutiny over how universities respond to claims of sexual assault and harassment. An undergraduate at Columbia, for example, has repeatedly made headlines for carrying her mattress with her across campus as, she says, a performance art piece and protest against the university's alleged mishandling of her sexual assault claims. The Obama administration opened a federal inquiry into 55 colleges' handling of sexual assault claims, last May.

According to her complaint, Doe reported an incident of sexual harassment and assault to UVA, who investigated and determined the matter "in favor of the offender." Doe complained to DOE and HHS's Offices of Civil Rights, saying that UVA had failed to promptly investigate and destroyed or withheld evidence, among other failings. Both agencies responded to her complaint, but did not complete their investigations.

Need the Right Defendants and the Right Claims

The court, in an opinion by Judge Beryl Howell, noted that, while sexual harassment and misconduct are serious issues, it could only act on cases which presented the "right defendants on valid and legally cognizable claims," which Doe had not done.

Doe had sought a writ of mandamus for the completion of an investigation into her complaints by a date specific. Mandamus, the court explained, was a drastic remedy, requiring that the defendant have a clear duty to act. While the DOE and HHS regulations require them to engage in "prompt investigations," they do not require prompt resolutions, nor do they establish a "clear right" that would justify mandamus.

The court also found Doe's claim under the APA to be barred, as an impermissible "back door" attempt to reach UVA through the federal agencies. Since plaintiffs have an implied right of action under Title IX , they are precluded from seeking remedies against enforcement agencies under the APA. While the plaintiff had argued that she sought to challenge the agencies' lags and lapses, not UVA's policies, the court found that argument disingenuous, since any action by the agencies would be taken with regard to UVA's policies themselves.

Finally, the court rejected Doe's claims about the effect of recent amendments to the Violence Against Women Act and their impact on Title IX.

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