Court To Hear Oral Arguments In Columbia Title IX Lawsuit
Written by Bwog Staff
Editor’s Note: This article describes and discusses details of sexual assault. All documents provided are Public Domain and come from the docket of the Southern District Court of New York.
According to the docket of the Southern District Court of New York, Defendant Columbia University and Plaintiff Amelia Roskin-Frazee will voice their oral arguments on August 8th regarding Roskin-Frazee’s lawsuit against the school. Though scantily covered by Spec and the New York Daily News, both the physical documents of Columbia’s most recent Motion to Dismiss Roskin-Frazee’s suit as well as Roskin-Frazee’s counterarguments against Columbia’s Motion remain unprovided and underreported. In this article, we will cover the full background to this case, the recent developments, and provide copies of all documents related to the suit.
Roskin-Frazee’s Complaint Against Columbia
Roskin-Frazee first provides a background to Columbia’s history of sexual assault, wherein the plaintiff alleges that Columbia “has a history of violating Title IX when responding to reports of sexual misconduct,” pointing to the 23 students in April of 2014 “filing administrative complaints with the Department of Education’s Office for Civil Rights (‘OCR’), alleging that COLUMBIA violated Title IX”; as well as the general history of Emma Sulkowicz and her “Carry That Weight” project; No Red Tape; and the protests against Dean Cristen Kromm in March of 2016. She further establishes the policies regarding Title IX and the University’s Gender-Based Misconduct Policy and Procedures For Students, which Columbia is alleged to have violated. These include standards of reporting any suspected incidents to the Gender Based Misconduct Office, the Office’s requirement to investigate “regardless of whether a complainant wishes to report the incident or not,” and the various accommodations intended to provide support and relief. These accommodations, specifically, include the moving of a student’s residence, the changing of a student’s schedule, the allowing of a student to withdraw from or retake a class without penalty, and the providing of tutoring or other academic assistance.
The specific incidents Roskin-Frazee’s complaint alleges to have occurred begin with an October of 2015 sexual assault in her Hartley dorm room. At the time, the doors to at least some of Hartley Hall’s suites did not automatically lock, leading Roskin-Frazee’s suite to leave their suite door unlocked. As a result, the plaintiff reports that an unidentified man gained access to her specific room and committed sexual assault against her. Roskin-Frazee claims in her complaint that she attempted to schedule an appointment with the Women’s Health department of Columbia’s Medical Services, but could neither schedule an immediate appointment online, over the phone, nor as a walk-in patient. Exasperated, Roskin-Frazee scheduled an appointment for “flu-like” symptoms, where she then claimed to be “experiencing genital pain,” only to be told that she “shouldn’t have such rough sex again.” As a result of her lack of treatment, Roskin-Frazee contacted Columbia’s Sexual Violence Response Hotline (SVR), where she claimed that the SVR representative advised her to contact the police, and commented that “even though Plaintiff is lesbian, she should have been on birth control.” The SVR Staff Advocate she was later connected to “was unaware of Plaintiff’s rights and options under Title IX or any ability to receive academic or housing accommodations.” Despite this, the Staff Advocate set up a meeting with Roskin-Frazee the next day.
As Roskin-Frazee was primarily concerned with moving out of Hartley, the Staff Advocate advised her of the process of moving out under Columbia’s policies. She would have 24 hours to move out from her room once Housing got back to her, she would receive no overt assistance from Columbia, she would be charged up to $500, and Columbia would need to inform her parents. “Given these onerous conditions placed on Plaintiff’s ability to move rooms, especially the fact that her parents would be notified, and likely have to be advised of her rape, Plaintiff was essentially forced to remain in the room in which she had been raped.” Roskin-Frazee also met with both Counseling and Psychological Services (CPS), who told her that CPS was only a temporary resource and allegedly did not inform her of any rights or resources she might have under Title IX, as well as Disability Services, where she indicated that she was suffering from PTSD and was seeking academic accommodations.
Roskin-Frazee also met with her academic advisor, and “Without explicitly saying that she was raped, Plaintiff strongly alluded to [her counselor] that Plaintiff had been raped.” Her counselor established a Wellness Report regarding her concerns, and Roskin-Frazee underwent a 5-minute “wellness check” with her Hartley RA. “Plaintiff’s RA then informed [the Office of Residential Life] via email that Plaintiff did not say anything about her meeting with [her counselor], and the case was closed without further investigation.” Finally, Disability Services (DS) reported back to Roskin-Frazee that for each accommodation sought, she would have to explain her symptoms and seek medical attention—requiring her therapist to contact Disability Services to confirm each request for accommodations. “Given the lengthy process required by DS, Plaintiff had to take it upon herself to seek immediate academic accommodations by meeting with her professors and reliving her rape story over and over again.”
Furthermore, Roskin-Frazee describes a December of 2015 meeting with Executive Vice President for University Life Suzanne Goldberg. In this meeting, which included several other student advocacy members, she reported to Goldberg that she had been raped as well as her experiences dealing with Columbia in the aftermath. According to her complaint, “Goldberg showed no interest in her story and did not even talk to Plaintiff to seek more information.”
Following this meeting, Roskin-Frazee reports that late at night, while entering her Hartley room, she experienced another, more brutal sexual assault, supposedly by the same assailant. The next day, she sought treatment at St. Luke’s, where “it was confirmed that Plaintiff suffered vaginal tearing, cuts to her wrists and thighs, and several bruises on her legs.” In January, a Case Manager from the Student Conduct and Community Standards (SCCS) office contacted Roskin-Frazee regarding an anonymous survey completed by Roskin-Frazee wherein she describes her sexual assaults. The employee “had reason to suspect that Plaintiff was the anonymous author of the survey.” In response, Roskin-Frazee “informed [the Case Manager] that she did not wish to ‘officially’ report her sexual assaults.” Within the next month, she reports in her complaint that the bulletin board of her Hartley floor had two notes posted on it, in the same handwriting, which made references to her sexual assaults.
Roskin-Frazee finally formally reported her sexual assaults on August 5th of 2016, about a month before her sophomore year would begin. She alleges that “COLUMBIA would not investigate her report unless
she was able to identify her assailant,” leading her to write an angry email response to SCCS. On September 8th, Columbia finally initiated an investigation. At a meeting with Public Safety regarding any safety accommodations she was requesting that year, she was asked “if Plaintiff still even wanted to be a student at COLUMBIA given her public writings criticizing COLUMBIA, and ‘how [Plaintiff] interacts with the COLUMBIA community.'” She was then offered a choice between moving out of her room to an off-campus apartment or having a lock installed on her suite door—and she chose the latter option. The investigation concluded on October 7th, 26 days after beginning. “Plaintiff was told that as part of the ‘investigation,’ the investigators had not interviewed anybody, did not review the swipe logs for her dormitory building for the nights of her respective sexual assaults, and could not review any security camera footage because the footage had been erased due to the length of time that had passed since Plaintiff’s assaults. Plaintiff was also informed that had COLUMBIA initiated an investigation at the time of her assaults, the security camera footage would have been available to the investigators.”
Generally, Roskin-Frazee alleges that Columbia violated its own policies in response to her reports of sexual assault and rape. Neither her counselor nor Suzanne Goldberg reported her sexual assaults to the Gender-Based Misconduct Office, Columbia did not initiate an investigation into her sexual assaults until almost a year after her first rape, and Columbia failed to work to accommodate her under their own policies. Many of these failures are also claimed to be in violation of the guidelines of the Dear Colleague Letter, “which specifically concerns peer-on-peer sexual harassment and sexual assault,” set out by the Office for Civil Rights, a division of the Department of Education. Specifically, Roskin-Frazee accuses Columbia of violations of Title IX, claiming that Columbia actively created a sexually hostile culture, deliberately was indifferent to her multiple sexual assaults, failed to respond to her first rape, “breached its duty by failing to take any measures whatsoever to protect Plaintiff from the foreseeable harm that she would be sexually assaulted again” in terms of the university’s responsibility as a landlord, and “was grossly negligent in failing to take any steps to protect Plaintiff despite the obvious danger that Plaintiff would be sexually assaulted again.”
Columbia’s Motion To Dismiss
Columbia claims that “[Roskin-Frazee’s] own recitation of the events establishes that the University responded appropriately when she reported them and is not liable under Title IX.” According to Columbia’s Title IX policies, students can report incidents to the Gender-Based Misconduct Office or to a variety of University employees, such as faculty members, coaches, or RAs. Under the provision that a student does not want to make a report, “a non-confidential resource will direct the student to confidential resources, which will not report without the student’s permission.” Such a request may limit Columbia’s ability to investigate and respond to such a a report, however. Furthermore, Columbia “does not limit the time for submitting a report of gender-based misconduct…[though its] ability to investigate and respond effectively may be reduced with the passage of time.” Finally, while Columbia recognizes that students may wish to speak out at “public awareness events,” including “survivor speak outs” and “other forums,” the fact that a student may discuss specific examples of “gender-based misconduct at such events is not considered a report to the University for purposes of triggering an investigation of a particular incident.”
Columbia’s motion first summarizes the two sets of incidents relating to Roskin-Frazee’s complaint. In reference to her sexual assaults, Columbia outlines how Roskin-Frazee can only describe her sexual assailant in “very general terms”—”a bit taller than ‘ 5’ 4’, “but not over 6’”, with “[s]ome wavy/body to hair,” and “[a] little heft, but not a ton.” Regarding the two notes posted on her Hartley floor’s bulletin board, which Roskin-Frazee alleges to consist of harassment, “the Plaintiff later told Columbia that she threw the notes away and did not make copies of them.”
Responding to Roskin-Frazee’s claim that “that Columbia received ‘actual notice’ of Plaintiff’s rape ‘as early as October 14, 2015 but no later than December 3, 2015,'” Columbia alleges that Roskin-Frazee did not actually make any report pursuant to Columbia’s Title IX policies until immediately before her sophomore year began. Although Roskin-Frazee had multiple contacts with Columbia officials about sexual assault and her own situation, “she repeatedly and adamantly refused to report the incident or to provide Columbia with any information necessary to identify the student who allegedly attacked her.”
Supporting this claim, Columbia includes a supposition of her reasoning for explicitly not reporting her sexual assaults as contained in a “blog post she published on the Huffington Post on June 6, 2016.” This blog post, entitled “Why We Don’t Report It” and published at the end of her first year, delineates a number of examples of sexual assault reports causing hardship to alleged victims. Roskin-Frazee includes appeals to the UVA-Rolling Stone sexual assault case and the Duke Lacrosse rape case (both of which have been legally discounted), claims that “our race, gender identity, sexual orientation, ability, or socioeconomic status makes us not worth fighting for,” worries that “if the police don’t believe us, we get arrested for ‘filing a false rape report,'” and references to the dismissals of Emma Sulkowicz and No Red Tape, among other examples. She claims that “Reporting rape, assault, or harassment is an act of bravery, but not reporting is an act of bravery also,” and ends her blog post by explaining that she won’t report her case “because it’s not best for me. Reporting is detrimental to my wellbeing, and I have no obligation to do anything after an assault that doesn’t have my best interests, and only [emphasis hers] my best interests, at heart.” Columbia also makes reference to another article Roskin-Frazee wrote in the Huffington Post entitled “Applying to Columbia as a Survivor,” explaining that “Some of [her] accommodation requests may have been based on a sexual assault that Plaintiff has said happened to her while she was still in high school.”
Columbia then specifically responds to Roskin-Frazee’s claims that SVR “commented that even though Plaintiff is lesbian, she should have been on birth control,” and that the hotline did not apprise her of Columbia’s Title IX procedures. Providing a (redacted) transcript of her SVR call, Columbia reveals that the SVR speaker said no such thing about birth control, and “did in fact inform Plaintiff of the many possible resources at her disposal…In fact, at Plaintiff’s request, the SVR representative contacted a staff advocate who connected with Plaintiff within an hour.” Columbia provides a similar response in reference to Roskin-Frazee’s claims regarding her visit to Medical Services. Providing a (also redacted) contemporaneous record of her appointment, Columbia emphasizes that Roskin-Frazee did not seek an appointment for “pain and injury to her genitalia,” and that “since Plaintiff did not report her alleged assault or any symptoms from her alleged assault to the physician who was treating her, there was no way for anyone to inquire about the alleged rape. Plaintiff offers no plausible explanation for why the physician would not have noted in the record that she was complaining of genital pain if that is what she had said.”
In relation to Roskin-Frazee’s visit to her academic advisor, Columbia provides the actual text of her email to said advisor, which states that she needed “help getting accommodations because of something I experienced, but I don’t want it to be reported; I just want access to resources/you to help work with my professors without doing reports, investigations, etc.” At her request, Roskin-Frazee’s academic advisor actually secured at least two academic extensions. Regarding the meeting with Suzanne Goldberg, Columbia emphasizes that “Plaintiff does not allege that she considered this discussion to constitute a ‘report’ of the rape pursuant to Columbia’s Title IX policies.” Indeed, Columbia points to her interactions with SCCS a month later to support the idea that Roskin-Frazee clearly insisted that she did not want Columbia to engage in an investigation. In response to SCCS contacting her after a Columbia employee contacted the office, Roskin-Frazee “again reiterated her desire not to ‘officially’ report her sexual assaults, and asked Columbia officials to ‘not contact me ever again.'”
When Roskin-Frazee finally reported the sexual assaults before her sophomore year began, Columbia’s SCCS—according to emails quoted in the document—responded in a way incongruent with Roskin-Frazee’s claims that “Columbia would not investigate her report unless she was able to identify her assailant.” Instead, the SCCS Associate Vice President acknowledged receipt of her report, assured her that “[a]lthough the respondent is an unknown affiliate of Columbia University, SCCS takes reports of such behavior seriously,” asked her to let SCCS know if she learned the identity of her assailant and wished to move the process forward, informed Roskin-Frazee that she can report her incident or file a formal complaint with Public Safety or the New York Police Department, and enclosed “a list of confidential and non-confidential opportunities for support and assistance within the Columbia community.” SCCS set up an immediate phone conversation to discuss the investigative process, and set up a further meeting in-person on September 8th when Roskin-Frazee returned to campus. On September 9th, she refused to meet with an SVR representative before discussing safety planning, provision of a campus escort, video footage review, and the ability to either have an automatic lock installed on her Hartley suite door or to move to a more appropriate residence. She chose to live in Hartley and have a lock installed.
On October 17th, Roskin-Frazee received the official investigation report from Columbia, to which she replied with an email critical of the investigation. In a response on October 24th, SCCS responded to each of Roskin-Frazee’s criticisms. First, according to Columbia, there was no way to identify the assailant due to her lack of details on his appearance and the passage of time from when video could have revealed any information on the assaults. Second, her request for an analysis of the “2000+ card swipes during the relevant time” would not have aided the investigation, as there was no way to match that information to her assailant. Third, the lack of investigations of anyone living on her floor was premised upon “the determination that interviews would not yield any useful information and on Plaintiff’s desire to protect her privacy.” Fourth, the Gender-Based Misconduct Office did not open a file after Roskin-Frazee’s email to her advisor because the email “not only did not contain information about gender-based misconduct that would have made a report appropriate under the circumstances, but specifically noted that she did not want to make a report.”
In summary, Columbia argues that all of the documents provided are covered by precedential procedure allowing documents integral to the claims made in the initial complaint by Roskin-Frazee. Furthermore, premised upon their explanation of events, Columbia claims that Roskin-Frazee failed to state a Title IX claim. In making clear that throughout her first year Roskin-Frazee did not want Columbia to investigate whatsoever, Columbia denies that the timing and nature of their response was “Clearly Unreasonable.” Columbia further denies that any accommodation that Rokin-Frazee reasonably requested was denied to her. In terms of State Law, Columbia claims that it did not hold any special responsobility to Roskin-Frazee in which Columbia was negligent. Columbia claims that it cannot be held responsible for not being able to find her assailant with the given information, especially when the New York District Attorney’s Office was unable to gather the same information. In fact, Columbia references a blog post—a response to a New York Daily News editorial—written by Roskin-Frazee on her own website, which states that the “Manhattan DA…was not able to provide me with the actual relief I required: academic, medical, and housing accommodations.” In terms of premises liability, Columbia refers to New York case law which states that “a landowner does not have a duty to protect a tenant from the conduct of another tenant… based on the sensible proposition that a landlord does not have the ability to keep other lawful tenants (as opposed to outsiders) off the premises.” Finally, Columbia dismisses Roskin-Frazee’s “Gross Negligence” claim for the same reasons as her “previous negligence claim.”
Roskin-Frazee’s Counterarguments To Columbia’s Motion To Dimiss
In arguing against Columbia’s motion, Roskin-Frazee claims that the inclusion of the majority of exhibits—i.e. the documents relating to Roskin-Frazee’s discussion with SVR, her medical records, her emails to her advisor, etc.—”effectively turns Defendant’s Motion to Dismiss into a one-sided Motion for Summary Judgement. What’s more, Defendant asks this Court to simply accept the credibility of Defendant’s submitted evidence, absent all process for ensuring the credibility of evidence.” In other words, Columbia’s Motion to Dismiss transforms a judgement of whether Roskin-Frazee’s complaint should be accepted by the Court into a hearing on the credibility of her complaint itself.
Roskin-Frazee then claims that all her efforts to gain effective accommodations to protect against any future assaults and to aid her in her academic and social life were dismissed by Columbia. She alleges, based on case law, that “the court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff.” Furthemore, because the scope of Title IX is intended to be interpreted as broadly as possible, Roskin-Frazee alleges that a jury must hear her claims that Columbia acted with “deliberate indifference,” as opposed to the court making a Summary Judgement predicated upon Columbia’s arguments. Finally, Roskin-Frazee argues against Columbia’s claim that it cannot, based on precedent, hold itself unaccountable in aiding her under its status as her landlord. She claims that her suite itself, as a private area which did not have a functioning or up-to-date locking mechanism, consists of an area where a third party intruder was able to enter illegally. Even if the intruder was a resident of Hartley Hall, according to Roskin-Frazee’s argument, Columbia still is accountable in defending her from future assault by such a non-suite resident.
According to these arguments, Roskin-Frazee requests that 14 of the 15 exhibits which Columbia has presented to the court be dismissed at this point in time.