United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
P.K.
HOLMES, III U.S. DISTRICT JUDGE
Before
the Court are Defendants University of Arkansas and Board of
Trustees of the University of Arkansas's (the
“University”) motion (Doc. 42) for summary
judgment, brief (Doc. 44) in support, statement of undisputed
facts (Doc. 43), and accompanying exhibits. Plaintiff
Elizabeth Fryberger filed a response (Doc. 50) in opposition,
a response to the University's statement of undisputed
facts (Doc. 51), and exhibits in support of her response
(Docs. 52 and 53). The University filed a reply (Doc. 54) and
a response (Doc. 55) to Fryberger's statement of
undisputed facts. The Court held a hearing on the motion on
July 23, 2019. After reviewing the record and considering the
parties' arguments at the hearing, the motion will be
GRANTED in part and DENIED in part.
I.
Background
A.
The Assault
In the
Fall semester of 2014, Elizabeth Fryberger was a student at
the University of Arkansas in Fayetteville and member of the
women's tennis team. Shortly after she arrived on campus,
she met Raymond Higgs, another student-athlete, through an
online dating app. Fryberger and Higgs had a consensual
sexual encounter on one occasion prior to October 20, 2014.
On the evening of October 20, Higgs went to Fryberger's
dorm room located at the Northwest Quads. Fryberger opened
the locked doors and allowed Higgs to enter her dorm,
escorted Higgs to her upstairs suite, and led him to her
private dorm room. At some point that night, Higgs sexually
assaulted Fryberger in her dorm room. After Higgs left her
room, Fryberger immediately contacted Dr. Michael Johnson,
the University's Director of Clinical and Sports
Psychology, and requested a meeting for the following day.
B.
The University's Response
The
next morning, October 21, 2014, Fryberger contacted Julie
Martin, a trainer for the women's tennis team, and asked
to be excused from practice that day. Fryberger confided in
Martin through a series of text messages and described the
assault. Martin excused Fryberger from practice. Martin
offered support and discussed Fryberger's options going
forward, such as reporting the assault to the police and
University administration. Martin then contacted Monica
Holland, the interim Title IX Coordinator, and reported
Fryberger's allegation of sexual assault. Martin
contacted Fryberger periodically in the days following the
assault to inquire about her well-being.
At noon
that day, Fryberger met with Dr. Johnson. Fryberger told Dr.
Johnson she had been the victim of a sexual assault. Dr.
Johnson provided counseling and treatment. Dr. Johnson told
Fryberger to make a follow-up appointment if she felt she
needed to meet with him again.[1]Fryberger acknowledges that Dr.
Johnson's therapy sessions were intended to help her cope
with being a victim of sexual assault.
Later
that same afternoon, Holland met with both Fryberger and
Martin. Holland and Fryberger discussed proceeding forward
with the University's disciplinary process and whether to
involve the University's police department. Holland asked
Fryberger whether Fryberger felt safe on campus, whether she
had any classes with Higgs, and discussed academic
accommodations and resources. The parties dispute whether
Holland discussed the possibility of a no-contact order and
whether Holland discussed the option of changing rooms during
that meeting. Holland testified at her deposition that both
topics were discussed, but Fryberger testified that she does
not recall those topics being discussed. Holland and
Fryberger also discussed having a forensic examination of
Fryberger performed at a hospital.
At 6:00
pm that evening, EmmaLe Anne Davis, a University victim
advocate, drove Fryberger to Willow Creek Women's
Hospital. At Willow Creek, a sexual assault examination was
performed. Fryberger and Davis then went to the University
police station and met with Captain Greg Foster
(“Captain Foster”)[2] of the University's police
department. Captain Foster interviewed Fryberger about the
assault. Davis was present during the interview. Captain
Foster also provided Fryberger with information for victims
of sexual assault, including a Crime Victim Information Sheet
with information on victim-assistance programs and counseling
services. Captain Foster told Fryberger he intended to speak
with Higgs the following day and would instruct Higgs not to
contact Fryberger. Captain Foster told Fryberger to contact
him if Higgs attempted to contact her. Later that same day,
the University's police department searched
Fryberger's room for evidence of the assault.
Captain
Foster met with Higgs the following day, October 22. Captain
Foster questioned Higgs about the night of the assault. Higgs
denied sexually assaulting Fryberger. Captain Foster twice
instructed Higgs not to contact Fryberger. Neither party
disputes the effectiveness of this verbal no-contact order.
Higgs directly contacted Fryberger only one time after his
discussion Captain Foster when he attempted to follow
Fryberger on a social media platform in May 2015.
On
October 22, Melissa Harwood-Rom, Dean of Students and Senior
Associate Vice Chancellor for Student Affairs, learned
Fryberger had reported a sexual assault. Harwood-Rom
instructed her administrative assistant, Marilyn J. Smith, to
email Fryberger's professors. Smith's email indicated
Fryberger would be absent from classes held on October 22
through October 24.
On
October 28, approximately one week after the assault,
Fryberger met with Mary Wyandt-Hiebert, Director of the
University's Office of Support, Training Advocacy, &
Resources. Wyandt-Hiebert discussed various resources
available to Fryberger. On October 29, the University's
police department concluded its investigation and Captain
Foster submitted the findings to the Washington County
Prosecutor's Office to determine whether charges should
be filed against Higgs.[3]
On
November 5, 2014, Fryberger emailed Holland and asked that
the University contact her professors about additional
absences. Holland forwarded the email to Nicole Ferguson, a
case manager in the Dean of Students Office. Ferguson
contacted Fryberger's professors the following day as
requested and indicated Fryberger was “having some
difficulty” and stated they were hopeful “she
will be able to work with you and make things up she may have
missed.” On November 8, 2014, Julie Fryberger,
Elizabeth Fryberger's mother, emailed various University
officials, including Wyandt-Hiebert, Holland, Ferguson, and
Ashley McNamara, an investigator for the Office of Student
Standards and Conduct. According to Julie Fryberger, her
daughter intended to return to Colorado on November 10 for an
unknown length of time. However, Julie Fryberger was clear
Fryberger was not dropping out of school and would be
returning at some point in the future. Julie indicated
Fryberger was “crying too much and everything reminds
her of what happened. After all she is still in the same
room.” (Doc. 42-17, p. 2). Julie Fryberger inquired
about the possibility of changing rooms upon Fryberger's
return.
On
November 10, 2014, Fryberger returned to Colorado. Holland
responded to Julie Fryberger's email, providing details
about changing Fryberger's room and offered to discuss
academic accommodations. Wyandt-Hiebert emailed Fryberger
directly to remind her of the University's resources and
indicated she would assist Fryberger in a room change. On
November 11, McNamara also emailed Fryberger about changing
rooms. On November 12, Fryberger emailed both Wyandt-Hiebert
and McNamara, indicating she considered changing her room a
“potential option.” On November 13,
Wyandt-Hiebert emailed Fryberger to address concerns
Fryberger was having about classes and other resources, and
provided assurances that she would assist Fryberger with a
victim impact statement that would be submitted to the
disciplinary panel reviewing the allegations against Higgs.
On
November 17, 2014, Fryberger emailed Holland about changing
her room. Fryberger asked about her living options in the
event she returned to school after Thanksgiving. Fryberger
asked, “Would [that] still be the quads?” Holland
indicated Fryberger could move to Maple Hill, a separate
residence hall, upon her return. Holland also told Fryberger
there would be other housing options after the Fall semester.
On November 18, Marilyn Smith, Harwood-Rom's assistant,
emailed Fryberger's professors inquiring about
Fryberger's academics. Specifically, she sought
information concerning Fryberger's status in her classes,
course requirements, and options for the semester. That same
day, Wyandt-Hiebert emailed Fryberger and offered to schedule
a meeting to address any ongoing questions or concerns.
On
November 19, Harwood-Rom convened a meeting with a Critical
Incident Response Team (“CIRT”) to assess options
to assist Fryberger with her coursework. At that meeting,
Harwood-Rom designated Ferguson to serve as the
University's primary contact with Fryberger in an effort
to simplify the line of communication between Fryberger and
the University. The CIRT team also discussed academic
accommodations, including the possibility of taking classes
remotely and extending time for tests.
In late
November, Fryberger retained the services of Laura Dunn, a
victim advocate adviser. Fryberger alleges she needed to
obtain the services of Dunn because no progress had been made
with respect to obtaining accommodations. On November 26,
Dunn emailed school administrators, including University
Chancellor David Gearhart, requesting “academic and
living accommodations” for the semester “that
will ensure she is able to continue her education free from
any ongoing hostile environment created by this campus sexual
assault.” Dunn's email suggests Fryberger was still
having some difficulty obtaining certain accommodations.
Fryberger does not dispute the University eventually provided
her with all the accommodations Dunn requested on her behalf.
C.
The Initial Hearing
Around
October 28, 2014, the University's Office of Student
Standards and Conduct (“OSSC”) began its own
investigation of the incident. Ashley McNamara, the
investigator for the OSSC, met with Fryberger on November 5,
2014. McNamara interviewed Fryberger as part of the OSSC
investigation and offered to have a written no-contact order
issued. Fryberger agreed and a written no-contact order was
issued and sent to Higgs. The order instructed Higgs to have
no contact with ...