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A Closer Look at Jane Doe vs. Syracuse University

We obtained copies of the complaint and pre-answer motion to dismiss filed in Jane Doe vs. Syracuse University, John Wildhack, & John Desko. This is the first in a series of posts & podcasts on what we’ve found out about the case so far. 

Thurgood Marshall United States Federal Courthouse... Photo by Erik McGregor/LightRocket via Getty Images

Over the course of the last few days numerous reports appeared that a federal lawsuit was filed on August 30th by Jane Doe against Defendants Syracuse University, Director of Athletics for SU John Wildhack, and former Syracuse men’s lacrosse head coach John Desko.

The allegations in Doe’s complaint revolve around events before and after an alleged late night on-campus event that was classified as a domestic incident (hereinafter “April Incident”) between Jane Doe and former Syracuse men’s lacrosse player Chase Scanlan following Syracuse’s 21-9 loss to North Carolina on April 17th.

The events at Syracuse in and around the April Incident were indisputably the biggest off the field event of the 2021 season and led to a cascade of stories over the next few weeks.

Given the sensitive nature of the charges and Family Court, there have been few news reports about Scanlan’s matter since it was transferred in June.

One recent update comes from an August 12th Syracuse.com article. The article referred to a recent status hearing and noted that “prosecutors described the deal they reached for how Scanlan could avoid jail time or a criminal conviction.”

However, the August 12th article also noted that “An attorney for a woman accusing former Syracuse men’s lacrosse star Chase Scanlan of domestic violence hinted Thursday that he was aware of ‘certain facts and circumstances’ that could mean Scanlan will face additional criminal charges” and that “more information will come to light in the near future, but he would not say what or when.”

Syracuse officials have been tightlipped about what happened this past spring.

On April 29th in a press conference before Syracuse’s May 1st game versus Notre Dame, former men’s lacrosse head coach John Desko announced that it was his decision to reinstate Scanlan on April 26th, stated that Scanlan would not be traveling with the team for their upcoming game versus Notre Dame, and declined to provide further comment due to federal student privacy laws. A Syracuse spokesman declined to comment on the Scanlan situation that same day for similar reasons.

On May 11th, Inside Lacrosse posted an article that speculated that recent Title IX regulations played a role in Scanlan’s initial suspension and subsequent reinstatement; specifically the final rule, which was changed under former President Donald Trump's Department of Education:

“That rule was delivered on May 17, 2020, adding more power to the guidance of the prior three years, which — broadly speaking — emphasized the rights of ‘respondents’ to complaints (another way to refer to people that were accused in a complaint). The new regulations both increased the burden of proof and level of due process necessary to impose disciplinary measures.”

Additionally, the posted noted:

“Simply put, legal experts tell IL that it appears clear that both the team and coaching staff would have preferred an immediate suspension from April 20 running through May 9 and beyond, but were told they could not do so because of a relatively new, very powerful legal rule.”

Interestingly, the post also included this segment:

“Sources familiar with Scanlan’s Title IX case at Syracuse tell IL that when the attackman was first notified by the coaching staff in the wake of the April 17 incident, he was not told that he was suspended, rather informally told that he was not to come to practice. A source says that Scanlan learned of his suspension via media reports, and when he inquired as to why he was suspended, he was told that he violated COVID protocol. Concurrently, he met with the Title IX office about the April 17 incident.”

We aren’t Title IX experts and some of the things written online and on social media in the weeks after the April Incident only caused us to have more questions about, among other things, what happened this past spring at Syracuse, who knew about it, how SU officials responded, and if there were any signs that should have alerted people to a potential problem.

Nevertheless, we were pessimistic about ever getting transparency or more context. As a private university, Syracuse is under no obligation to provide records via an open records request.

However, after a few months of inactivity, a lot more information has become available.

Indeed, almost immediately after Plaintiff’s complaint was filed, attorneys for Defendants Syracuse University, John Wildhack, and John Desko filed a motion to dismiss Plaintiff’s complaint for failure to state a claim upon which relief can be granted.

We obtained copies of the complaint filed by Jane Doe and Defendants’ motion to dismiss and intend to examine what’s been filed so far in a series of posts & podcasts. We will review new information as it becomes available.

One note, in addition to the complaint, Plaintiff also filed a motion for permission to proceed using a pseudonym.

Defendants’ motion to dismiss noted that: “Until such time as it is determined whether Doe may proceed using a pseudonym, the University will not use the actual names of any students in this proceeding. Defendants refer to the male student who allegedly harassed and assaulted Doe as ‘John Roe.’”

The motion to proceed under a pseudonym was granted on September 1st permitting Plaintiff to proceed anonymously. The Text Order states that, “The parties are directed to refer to the plaintiff as ‘Jane Doe’ in this litigation, and to refrain from filing, on the public docket, any pleading or document that reveals the name or other personal identifiers of the plaintiff.”

The remainder of this post will mainly focus on Plaintiff’s four Title IX claims and Defendants’ motion to dismiss as it relates to those claims.

Plaintiff’s Title IX Legal Claims

Plaintiff’s four Title IX legal claims are against Syracuse University only.

Plaintiff’s first two Title IX legal claims against SU are for deliberate indifference.

DELIBERATE INDIFFERENCE

Plaintiff’s first claim is that Defendant SU acted with deliberate indifference to Plaintiff’s January 2021 report of alleged sexual harassment.

Plaintiff alleges that she sustained harassment that was “so severe, pervasive and/or objectively offensive that it deprived her of access to educational programs and opportunities, including the health, educational, and athletic career benefits that Plaintiff would have enjoyed as a Division I athlete at Defendant SU, but for the sexual harassment.”

Additionally, Plaintiff alleges that because she & Scanlan were enrolled students of SU and lived in student dorms maintained by SU, that the alleged harassment Plaintiff endured “was subject to Defendant SU’s control and Defendant SU could have taken remedial action.”

Plaintiff further alleges that by January 4, 2021 “employees with authority to address the alleged sexual harassment and institute corrective measures had actual knowledge of the sexual harassment sustained by Plaintiff and failed to adequately respond, despite Defendant SU having independently been put on notice since September 12, 2020, of Scanlan’s prior violent behavior against his own teammates.”

Regarding the September 12, 2020 allegation, in the General Allegations portion of the complaint, Plaintiff alleges that “On September 12, 2020, Scanlan engaged in a physical altercation with other members of the SU Men’s Lacrosse Team, striking two of his teammates in the face. This incident was reported to the entire SU Men’s Lacrosse Team Coaching Staff, including Defendant Desko, and Scanlan was temporarily suspended from the SU Men’s Lacrosse Team.”

Plaintiff alleges in her second deliberate indifference claim that, among other things, Defendant SU acted with deliberate indifference to Plaintiff’s report of domestic violence with regard to the alleged April Incident and by failing to properly investigate the circumstances and threat to Plaintiff both on that date and in the weeks that followed.

Deliberate indifference is a high bar to meet. Defendants’ motion to dismiss contends that Plaintiff's complaint fails to meet this threshold because, among other things, Defendants attest that Syracuse didn’t act unreasonably to Plaintiff’s reports of alleged harassment.

Defendants’ motion cites case law that states that deliberate indifference means that a Title IX funding recipient may potentially be liable in certain circumstances if it can be proven that it had actual knowledge of severe harassment or discrimination, and that its response was clearly unreasonable in light of the circumstances or the response occurred following a lengthy and unjustifiable delay.

You can read more about the important 1999 Supreme Court case, Davis vs. Monroe County Board of Education, that the Defendants cited in their motion to dismiss in this NY Times article.

Aside from the memorandum in support of its motion, Defendants motion to dismiss also includes 25 exhibits, many of which are ostensibly emails, correspondences, and other forms of communications between SU officials, Plaintiff, Plaintiff’s relatives, and others, which they contend demonstrate that SU robustly & timely responded to Plaintiff’s reports of alleged harassment, and was in complete congruence with what is required under Title IX.

HOSTILE ENVIRONMENT

Plaintiff’s next Title IX claim is hostile environment. Plaintiff alleges that SU “actively created and/or condoned and/or was deliberately indifferent to a culture of sexual harassment and domestic violence against women.”

Plaintiff alleges, among other things, that SU’s failed to adequately discipline Scanlan, didn’t properly investigate Plaintiff’s reports of alleged harassment by Scanlan, and failed to accommodate her interests in staying at SU and instead encouraged her to leave the University.

Defendants’ motion to dismiss contends, among other things, that Plaintiff fails to meet the hostile environment standard for an educational facility, which is deliberate indifference, because it attests that Defendant SU responded “promptly and vigorously” to Doe’s reports of alleged misconduct.

RETALIATION

Plaintiff’s last Title IX claim is for retaliation. Plaintiff alleges that she engaged in a protected activity when she reported the alleged harassment and that her engagement in the protected activity was "closely followed by adverse action, treatment, and conditions by Defendant SU.”

With regards to the retaliation claim:

  • Plaintiff alleges that a SU official made comments that she could potentially lose her scholarship money if she left the school in a “nasty way” or by “burning bridges.”
  • Plaintiff alleges that a newly named Syracuse women’s lacrosse head coach tried to dissuade her from staying at Syracuse by implying that Plaintiff should not remain at SU if she didn’t feel safe.
  • Plaintiff further alleges that in the same conversation she was asked if she was contemplating legal action on matters related to the events of this past spring against the school.

Defendants’ motion to dismiss contends, among other things, that Plaintiff fails to meet the standard for retaliation because none of Plaintiff’s examples of purportedly retaliatory conduct meet the standard of having “had any adverse or negative effect on [Doe], her education, or her lawsuit.”

This concludes our first look at Doe v. Syracuse University et al. We are going to do a podcast on our initial reactions to Plaintiff’s complaint & Defendants’ motion to dismiss and will release it soon.

Regarding the case, the last entry on the docket is a September 1st Text Order from the court adjourning the Rule 16 conference set for 11/30/2021 and the 11/23/2021 deadline for the submission of a joint Civil Case Management Plan without date. The hearing and deadline “will be reset, if deemed necessary, after disposition of the motion to dismiss.”

Plaintiff’s response to Defendants’ motion should be coming in the next 2-3 weeks.