Kennedy’s Title IX Claim Dismissed, But Claims of Negligence and Failure to Act Linger in Suit Against Gettysburg College
By Benjamin Pontz, Editor-in-Chief
A federal judge has granted Gettysburg College’s motion to dismiss a claim that the college violated Title IX in its conduct relating to an alleged sexual assault that occurred at 343 Carlisle Street in October 2016. Two other claims against the college remain pending.
The alleged incident took place at the site of the former Phi Sigma Kappa fraternity house, which, at the time, was leased to students living off campus and is currently leased to the college for student housing. Phi Sigma Kappa’s charter was revoked after Gettysburg suspended the chapter for five years when a 2014 drug bust implicated more than two dozen students of the college.
Kelsi Kennedy alleges that she visited older brother, a Gettysburg student, the weekend of Oct. 22, 2016, attended a party at 343 Carlisle Street, and was drugged and raped. She sued the college for violating Title IX as well as the college along with the fraternity’s alumni organization (which owns the house) and several residents of the house for negligence and failure to address a known dangerous situation. She also sued her alleged rapists — Edward Carroll ’16 and two yet-unnamed John Does — for sexual assault and battery.
According to her claim, the residents of the house mixed a “juice bucket” containing vodka and Kool Aid and left the bucket unattended. She says she was served a drink that was “roofied” and then led to a small upstairs room at the house. From there, she says she was raped. A rape kit was administered at the time, but no arrests have been made and Gettysburg Borough Police has withheld its investigative materials from both Kennedy and from Gettysburg College, the claim alleges.
The Title IX Claim
On Aug. 6, 2019, Judge John E. Jones III of the Middle District of Pennsylvania ruled that plaintiff Kelsi Kennedy’s Title IX claim could move forward based on Kennedy’s assertion that the college had been “deliberately indifferent” to sexual violence occurring at the property, which could be construed as a context in the college’s control. Further, the Court rejected the college’s argument that Title IX applies only to students and employees of an institution, noting that the statute says “person.”
Gettysburg College moved for reconsideration and cited precedent from the Third Circuit Court of Appeals that defines “educational program or activity” more narrowly than Jones’ original ruling did, and the Court granted that motion. According to the Third Circuit in Doe v. Mercy Catholic Med. Ctr. (2017), for a program to be considered educational, it must have “features such that one could reasonably consider its mission to be, at least in part, educational.”
“We recognize,” that ruling states, “that creative minds could conceivably read the word ‘education’ in Title IX to ‘encompass every experience of life,’ . . . transforming Title IX into a remedy for any dispute in which someone is ‘potentially’ learning something . . . . We see no sign Congress intended as much.”
As such, factual considerations must guide a determination as to whether a program has educational characteristics. Among the features that could allow one to conclude that a program does is that “the entities offering, accrediting, or otherwise regulating a program hold it out as educational in nature.”View Fullscreen
Gettysburg College does advertise itself as a “residential campus” in which more than 90 percent of students live on campus in residence halls, special interest houses, apartment complexes, and fraternities, and it cites as one of its “high-impact learning experiences” that a “large number” of students participate in first-year seminars that make them part of a “living-learning community.”
Although the Title IX claim has been dismissed, college spokesperson Jamie Yates cited the ongoing litigation as the reason the college would not comment on whether it believes that, by branding itself a residential liberal arts college, promoting the town of Gettysburg in admissions materials, and sponsoring social activities, it places those aspects of the student experience under the umbrella of the college’s educational program, which would confer responsibilities under Title IX.
Dr. Kathleen Conn, an attorney with King, Spry, Herman, Freund & Faul LLC who has represented educational institutions in sexual harassment cases, said that social experiences are held out as part of the educational program, but only for students. As such, Conn argued, Kennedy’s claim that her deprivation of those experiences violated Title IX likely could not hold water.
“[U]se of the term ‘social guest’ precludes the argument that Gettysburg College advertises that social experiences are included in their educational programs,” Conn said in an email, “because those ‘social experiences’ are for the benefit of tuition-paying students, to round out their education. Kennedy then loses that argument because she was not one of those prospective students attracted to Gettysburg by the social aspect of its educational program.”
A revised claim filed Dec. 13, 2019 contains two remaining causes of action against Gettysburg College.
The first argues that the college knew or should have known “of the particular unfitness, incompetence or dangerous attributes of the residents of 343 Carlisle Street, Gettysburg, PA and did nothing to address the dangerous situation” and “could have, and should have, reasonably foreseen that the tenants, residents and guests at 343 Carlisle Street actions and failures to act created a risk of harm to Plaintiff and those similarly situated.”
As such, the claim argues, the college was “careless, reckless, negligent, and/or grossly negligent” and put Kennedy and others in harm’s way.
The second cause of action alleges that the college and its co-defendants, by failing to take safety and security measures, allowing a dangerous condition to exist, permitting the illegal furnishing of alcohol, and failing to monitor alcoholic consumption at the party, were negligent and that these failures are the “direct and proximate” cause of Kennedy’s injuries.
An attorney for Kennedy did not respond to a request for comment.
Gettysburg College responded in court with a wholesale denial of Kennedy’s substantive claims and asked the Court to dismiss them and “award Gettysburg whatever additional legal or equitable relief the Court deems appropriate.” Insofar as any liability exists, the college argued, it resides with the fraternity’s alumni association and the residents of the house.
“If Plaintiff suffered any of the damages alleged in her Complaint, which allegations are specifically denied by Gettysburg, then those damages were caused by these Codefendants, for which Gettysburg claims complete indemnification and/or contribution,” the college’s brief responding to Kennedy’s claims says.
The next step is for the case to proceed to discovery during which each side can request documents and other evidence from the other. At present, a trial is scheduled to begin in January 2021.
Editor’s Note: This article was edited on at 2:45 p.m. on Feb. 2 to clarify that the college asked the Court to “award Gettysburg whatever additional legal or equitable relief the Court deems appropriate,” which would include the college’s legal fees, among other possible avenues of redress. (-B. Pontz)