A federal judge ruled Wednesday that a former female student’s report of sexual assault against three former Michigan State basketball players was just one event and not enough to establish that she had been subjected to “systemic” harassment by the university.
In dismissing the lawsuit filed in April 2018 by Bailey Kowalski, U.S. District Judge Paul Maloney cited a recent federal appeals court ruling in a separate case that raised the pattern of evidence needed to establish a claim under Title IX. The ruling is a reconsideration of his previous decision in August 2019 to allow Kowalski’s case to proceed.
Maloney wrote that Kowalski “was the victim of an incident of actionable sexual harassment” and that she had told officials at MSU about the incident. But under the precedent set by the appeals court, that wasn’t enough, he wrote, citing the higher court’s ruling.
“Title IX requires ‘systemic’ harassment,” Maloney wrote. “This means that the student-victim must unfortunately suffer ‘at least one more [further] incident of harassment, after the school has actual knowledge and implements a response,’ to state a claim.”
The December 2019 appeals court ruling has been a deciding factor in other Title IX cases within the jurisdiction of the U.S. Court of Appeals for the Sixth Circuit, which includes Michigan, Ohio, Kentucky and Tennessee.
In her lawsuit, Kowalski alleged that on April 12, 2015, she met the basketball players at an East Lansing bar about a week after the team lost in the Final Four. She said she was later taken to one of the men’s off-campus apartments, where the players allegedly took turns sexually assaulting her in a bedroom, according to the complaint. Kowalski also said in the lawsuit that she believed she might have been drugged.
She said she awoke a few hours later on a couch, caught a taxi back to her dorm room and contacted university counseling center staff about a week later. She alleged that, after telling a counselor that basketball players were involved, the staff discouraged her from notifying the police.
Her lawsuit alleged that the university violated Title IX requirements and Kowalski’s rights by failing to follow normal reporting and investigative procedures when athletes were involved, actively discouraging victims from filing reports and not notifying them of reporting and confidentiality options.
“I was intimidated, and I was told that I was going to be swimming with some really big fish,” Kowalski said at a press conference in April 2019, in which she revealed her identity. “I’ll never forget that phrase and the immediate feeling of despair and isolation.”
The basketball players are not named in the lawsuit. In June 2019, the university’s Title IX office issued a report that said the players were not responsible for sexual misconduct. School investigators questioned Kowalski’s credibility because she possibly misidentified one of the three players. Two players told investigators they had sex with her, but it was consensual, and they named a third player who was not the one Kowalski had identified.
Under the appeals court ruling, in order to establish a Title IX complaint, four elements had to exist: “an incident of actionable sexual harassment, the school’s actual knowledge of it, some further incident of actionable sexual harassment and that the further actionable harassment would not have happened but for the objective unreasonableness (deliberate indifference) of the school’s response,” Maloney wrote. He wrote that Kowalski met only the first two.
While Kowalski’s Title IX complaint included reports of other women having been assaulted by MSU athletes, those incidents — and the university’s handling of them — do not count toward her claim because they didn’t happen to her, the judge wrote.
Maloney wrote that the appeals court made clear, “a claim cannot be premised on a school’s failure to address the risk of sexual harassment based on past incidents of sexual harassment against students other than the plaintiff.”
Kowalski’s attorney Karen Truszkowski said Thursday that, “although the ruling is a disappointment, it is not unexpected based upon the ruling from the Sixth Circuit. This was not decided on the merits of the case and it does not mean the court is saying this did not happen.”
A spokesperson for Michigan State declined to comment on the decision.
In August 2019, before the appeals court ruling in the other case changed how lower courts can rule, Maloney had denied MSU’s request to dismiss Kowalski’s case, writing that her allegations “render plausible her claim that MSU maintained official policies that left her and other female students vulnerable to sexual assault by male athletes.”
“Plaintiff has sufficiently pleaded that MSU allowed reports of sexual assault to be handled ‘off-line’ by the Athletic Department and outside the normal channels of Title IX investigations,” he wrote in 2019. “Similarly, the attempts to cover up or otherwise obfuscate the university’s handling of sexual assault reports made against male athletes, the attempts to conceal the names of prominent male athletes when mentioned in police reports, and the attempts to discourage female victims from reporting their own assaults all tend to show that sexual assaults by male athletes were handled in ways that would minimize scrutiny and potential punishment for such acts.”
Kowalski’s report has also been under review by the Michigan attorney general’s office for about a year since Ingham County and Lansing Township law enforcement officials agreed to refer the case to the state for a criminal investigation. A spokesperson for the attorney general’s office said Thursday that the case is still under investigation.