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Below is an article featured in the San Francisco Chronicle today about an interesting case my office is involved in. This case addresses issues of safety on campus, specifically Title VI and Title IX of the Civil Rights Act of 1964:
The University of California is asking a judge to toss a federal lawsuit by parents who say UC is responsible for the death of their daughter and her young son, who were in a car driven by the daughter’s drunken boyfriend last year when he slammed it into a tree.
The suit, Lopez vs. UC Regents, is not focused on details of the crash of May 18, 2012, which happened six days after Milanca Lopez, 22, graduated from UC Berkeley with a bachelor’s degree in social welfare. The driver, Jose Lumbreras, is serving six years in prison for vehicular manslaughter while intoxicated.
Instead, the suit says UC failed to take legally required steps to investigate and protect Lopez after she reported to her housing director that Lumbreras was abusing her and her son, Xavier Chevez, 6. The three lived in Lopez’s apartment in University Village.
UC says the Lopez family hasn’t proved that the regents or Cephas John, a housing coordinator at UC Berkeley, knew about an abusive situation or, if they did, that they could have prevented the tragedy. Judge Edward Chen is scheduled to hear the dismissal arguments at 1:30 p.m. Nov. 14 at U.S. District Court in San Francisco.
Scrutiny of system
Regardless of its outcome, the case raises questions about how the university handles allegations of violence from students and whether UC complies with federal laws requiring swift, attentive responses to complaints.
The case comes as the state auditor is looking into how UC and California State University address students’ allegations of abuse. Lawmakers gave the audit priority status in August after UC students testified that they have been discouraged from reporting sexual abuse and that their claims are often met with skepticism. Nine UC Berkeley students and alumni have similar complaints against UC pending with the U.S. Office for Civil Rights.
Lopez’s parents, Margarita and Medardo Lopez, who live in Hawthorne (Los Angeles County), say their daughter and grandson would still be alive if John had properly followed up on a call Milanca Lopez made to John weeks before her death.
“This is a feminist case. It’s about the right to be safe on campus,” said Joel Siegal, the attorney representing the Lopez family. “It’s about the university following policies and procedures.”
UC takes a profoundly different view.
“Because a college or university has no special relationship with its students, its employees do not owe students a duty to protect them from injuries that other students cause,” UC says in court papers prepared by the law firm Lombardi, Loper & Conant in Oakland.
The family’s lawsuit rests heavily on an e-mail received by Lopez’s mother, Margarita Lopez, in March. It was from John, who oversaw Milanca’s housing at UC Berkeley from her arrival in 2007 until her death. At the time, Milanca was preparing for graduate school at UCLA, and John was helping arrange the move.
His e-mail, responding to a request from Margarita for recollections of her daughter, called Milanca “a truly exceptional person” and praised her success at overcoming the difficulties of being a single parent while earning a degree.
But John also said in the e-mail that Milanca phoned him sometime before May 7, 2012, “about a domestic violence incident” and that when he returned her call, she “assured me that everything’s OK.”
Mandate to report
The problem, according to the lawsuit that names John, the regents and Lumbreras as defendants, is that John was a ‘security authority’ mandated to report such matters to the police and to the Title IX officer of the campus.
Title IX is the federal law intended to protect students from sex discrimination.
“There’s an acknowledgement that college students don’t want to call the cops or authorities,” Siegal said. “So lots of people are mandated as security authorities. As a graduate teaching assistant, Lumbreras himself may have been a security authority.”
The university argues that there is no connection between the fatal car crash and whether John reported the alleged abuse.
“Ms. Lopez’s and Xavier’s deaths from Lumbreras’ drunk driving were not reasonably related to any failure by Mr. John to protect her from domestic violence by him,” UC argues. And “even if the drunk-driving accident was a foreseeable consequence of his purported failure to protect her,” the court papers say that “Mr. John did not owe a duty to protect Ms. Lopez from Lumbreras’ domestic violence.”
‘Cry for help’
The family says UC has it wrong.
If Lopez’s “cry for help” had been reported, UC would have begun an investigation and intervention that might have altered events so that she wouldn’t have gotten in the car with Lumbreras on May 18, Siegal said.
The suit also cites an array of domestic violence incidents: neighbors who said they had to protect Lopez and her child when Lumbreras was drunk. That he forced the child to witness sex. And that he went on a drunken rampage in her apartment as she and Xavier took refuge with neighbors.
“We’re not just talking about a 22-year-old woman. We’re talking about a 6-year-old,” Siegal said. “The university invited the 6-year-old to live on campus, then failed in their obligation to protect him.”
The suit, which also accuses Lumbreras of wrongful deaths, seeks unspecified financial damages.
The Lopez case is only the most extreme example of a climate of mistrust about sexual violence that exists across the UC system.
Title IX and the federal Clery Act specify how universities must respond to allegations of sexual violence and other gender-related crimes.
The state audit will look at how UC and CSU report sexual assaults, whether students are discouraged from reporting them, what prevention efforts exist, and at other areas of compliance.
Meanwhile, posters have been appearing across the UC Berkeley campus featuring students in revealing clothing with such captions as “My dress is not a yes.”
The Cal Consent Campaign by the student government features men as well as women.
Jessica Felber v. Regents of the University of California
First, I would like to express Kudos to my legal colleague, Ken Marcus, for the honor recently bestowed upon him by The Forward newspaper, as being one of the fifty most influential policy makers in the country. Ken is the founder and director of The Brandeis Center. www.Brandeiscenter.com Two years ago, Ken asked me to serve on the legal advisory board of the Center, a position which I still proudly hold. The Center is directed to protect the civil rights of students throughout the United States. Ken recognized my work representing Plaintiffs in the case filed in the United States District Court, for the Northern District of California, Jessica Felber v. Regents of the University of California.
The issue of protecting students’ rights on campus and in schools throughout America is an important issue and one that is dear to my heart. As a parent of two young children in school, I recognize the importance of having active and engaged school administrators who work effectively to stop school bullying, bigotry, harassment and discrimination, be it discrimination based on race, sex, religion or sexual orientation discrimination.
In this Blog, let me give one example of how an effective school dealt with the problem. We have all heard of Yale University, and we know that it is a world class institution. My oldest bother actually received his PhD in sociology from Yale, and I was fortunate enough to visit the Campus often during his tenure.
Yale, like many universities, has an active ‘Greek’ presence on campus featuring many Fraternities and Sororities. One of the Fraternities had a rather obnoxious (and illegal) practice. It seems that new pledges to the Fraternity, were required to chant, “No means yes, and yes means …”. One does not have to have a PhD in sociology or law to understand the offensive and dangerous quality of requiring male students to chant this on campus. Such an action, in my view, is violative of Title IX of the Civil Rights Act, is offensive and obnoxious to women students and is illegal. Fortunately, Yale, as a world class institution recognized that the actions of this Fraternity were offensive and violative of the law. The Fraternity was censored and punished.
Recently, The Office of Civil Rights of the Department of Education, entered into a “voluntary resolution agreement” to end the investigation of claims of discrimination against Yale on behalf of students complaining against that offensive Fraternity. The OCR worked their mandate to assure that an educational instution has an environment and culture in which all students feel safe and well supported.
Many people have asked me whether the court can be an effective tool in stopping school bullying and bigotry in the classroom, whether that bigotry arises from discrimination based on race, sex, national origin or sexual orientation.
Recent decisions of the Ninth Circuit and other Federal courts clearly confirm that students who complain about hostile environments at their schools based on race, sex, or sexual orientation in that their school administration demonstrates “deliberate indifference” under Title IX and Title VI have actions available to them Montiero v. The Tempe Union H.S. Dist. (9th cir 1998) 158 F. 3d 1022, 1032- 1035; Flores v. Morgan Hill USD (9th Circuit 2003) 324 F. 3d 1130; Vance v. Spencer County Pub. School dist. (6th Cir. 200) 231 F. 3d. 253, 262 and Jones v. Indiana Area School district (W.D. Pa. 2005) 397 F. Supp 2nd. 628, 644-46. This line of cases followed the Supreme Court decision of Davis v. Monroe County Bd. of Education (1999) U.S. 629 649 which defined a “reasonable standard for the test of deliberate indifference” At least one Federal court has expressed that deliberate indifference is a fact-laden question for which bright lines are ill suited. Tesoria v. Syosset Central Sch. district (E.D.N.Y.) 2005) 382 F. Supp 2d 387 399.
In the case of Jessica Felber v. The Regents of the University of California, I argued at the Federal court that,
“…It is not denied that the content of the “checkpoint” demonstrations is hate speech equal in legal odiousness to use of the “N” word, or similar racist and sexist expressions. The Defendant does not deny that the entire MSA/SJP checkpoint presentation is a racist “passion play” of the worst sort which, like the notorious anti-Semitic performances of Oberammergau, Bavaria, portray Jews as blood thirsty and treacherous villains….” Oberammergau, James Shapiro (2000) at page ix.
However, unlike Oberammergau Passion Play, which is performed in a traditional stage setting, The Regents have allowed the MSA/SJP to present their racist performance in the middle of an important campus cross road, Sproul Plaza, and to include interaction confrontation and violence against students who, like these Plaintiffs, did not choose to buy a ticket in order to experience the performance.
The moral of this is that we must be vigilant to have schools which are free of bullying, and racism. And yes, the courts can be effective in stopping that bullying.