Thorpe v. Virginia State University
| Citation | 6 F.Supp.2d 507 |
| Decision Date | 08 May 1998 |
| Docket Number | No. Civ. 3:96CV975.,Civ. 3:96CV975. |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Sheronne THORPE, Plaintiff, v. VIRGINIA STATE UNIVERSITY, et al., Defendants. |
Eileen N. Wagner, Richmond, Virginia, for plaintiff.
Debra J. Prillaman, Richmond, Virginia, D. Judith Keith, Washington, D.C., for United States.
Allison P. Landry, Margaret A. Browne, Office of the Attorney General, Richmond, Virginia, for VA State Univ.
Sheronne Thorpe filed this action against Virginia State University ("VSU"), seeking redress of alleged violations of the Education Amendments of 1972, Pub.L. No. 92-318, Tit. IX, § 901 86 Stat. 373 (1972) () ("Title IX"). The Second Amended Complaint alleges that VSU intentionally discriminated against Thorpe by failing to afford her notice of the procedure to follow after Thorpe allegedly was raped by other VSU students. The notice and procedure which lie at the core of Thorpe's discrimination claim are found in regulations published by the Department of Education pursuant to its congressional authority to implement rules and regulations consistent with the objectives of Title IX.
Pursuant to Fed.R.Civ. P. 12(b)(1), VSU has moved to dismiss the action, asserting that the Eleventh Amendment affords VSU the benefit of sovereign immunity and thereby precludes the exercise of jurisdiction by this Court over this action. Notified that the constitutionality of Title IX was at issue, the United States elected to intervene to defend the statute. Thorpe and the United States oppose dismissal because, in their view, Congress has eliminated the States' Eleventh Amendment immunity for private actions seeking damages under Title IX. For the reasons set forth below, the motion to dismiss for lack of subject matter jurisdiction is denied.
On December 3, 1995, Thorpe, an 18-year-old student of VSU, and another female resident in Thorpe's all-female dormitory travelled across campus to an all-male dormitory to watch a movie in response to an invitation from Jovelle Tillman, a male VSU student and an acquaintance of Thorpe's companion. When Thorpe and her friend arrived at Tillman's dormitory, the resident assistant, whose responsibilities included insuring that admission of visitors into the men's dormitory was in accord with VSU policy, told Tillman to take the females "up the back way." In fact, VSU policy prohibited female visitors in the men's dormitory at that hour.
Thorpe entered a room crowded with VSU students and began watching a movie. The room belonged to Marcus Steele, a young man whom Thorpe did not know. Steele offered Thorpe a beer, but Thorpe declined the invitation. Shortly thereafter, Rodney Granger, another VSU student, introduced himself to Thorpe. The two then struck up a conversation during which Thorpe remarked that she liked the glow-in-the-dark star pattern on the ceiling of Steele's room. Granger asked Thorpe if she would like to wait for her companion in another room where he could show her a more intricate display.
Thorpe went to the other room with Granger, and again was offered a beer which she refused. Shortly thereafter, Steele entered the room and asked "How about a threesome?" Thorpe then requested Steele to leave, and told Granger that she felt uncomfortable waiting in the room for her companion. Granger left in search of Thorpe's friend. Thorpe also left the room, apparently to find her companion, but Thorpe was unsuccessful so she returned to collect her coat and purse with a view to returning alone to her dormitory. At that point, Granger, and then Steele, allegedly raped Thorpe in the presence of other male VSU students. After the attack, the group escorted Thorpe to the floor above where Thorpe's companion was waiting. The two females then left the men's dormitory.
Thorpe immediately reported the incident to the resident assistant in her dormitory who, in turn, notified campus police. After a police interview, Thorpe was admitted to the Southside Regional Medical Center where she received treatment and testing for rape trauma. Later that day, Thorpe filed charges of felony sexual assault against Granger and Steele. The male VSU students never denied that the sexual intercourse took place; instead, they asserted that it was consensual.1
On December 4, 1995, the day after the alleged sexual attacks, Thorpe met with Vice-President of Student Affairs Claud Flythe and two university psychologists.2 Flythe called the incident a tragedy, assured Thorpe that VSU "would take care of it," and stated that the guilty parties would be punished. Excused from final examinations by Flythe, Thorpe returned to her home in New York.
According to Thorpe, at no time after she reported the rape did VSU provide her with the VSU Student Handbook, the VSU Code of Student Conduct, or a Sexual Harassment Complaint Procedure, all of which, according to Thorpe and the United States, are required to be provided by the regulations implementing Title IX. As a result of these failures by VSU, Thorpe alleges that she concluded that the student rapists "would remain at large on the VSU campus and that her personal safety would be in jeopardy if she returned to school." (Second Am. Compl. ¶ 24.)3 Fearing for her personal safety, Thorpe did not return to VSU for the spring 1996 semester, or thereafter. Thorpe filed this action against VSU seeking declaratory relief and damages for violations of Title IX's implementing regulations.
Asserting Eleventh Amendment sovereign immunity, VSU has moved the Court to dismiss Thorpe's Title IX claim for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).4 As explained below, VSU's motion to dismiss is not well-taken.
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. Although its text literally bespeaks a limitation only on federal diversity jurisdiction under Article III of the Constitution, see Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court has interpreted the provisions of the Eleventh Amendment as imposing "a constitutional limitation on the federal judicial power established in Art. III," which is much broader than the text of the amendment. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); see Seminole Tribe, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990). More particularly, the Supreme Court has explained that the Eleventh Amendment stands "not so much for what it says, but for the [two-part] presupposition ... which it confirms [:] ... first, that each state is a sovereign entity in our federal system, and second, that `[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.'" Seminole Tribe, 517 U.S. at 54 (quotation mark omitted)(second alteration in original)(quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991) and Hans v. Louisiana, 134 U.S. 1, 13, 10 S.Ct. 504, 33 L.Ed. 842 (1890)); see also Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)("The [Eleventh] Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity.").
The immunity conferred upon the States by the Eleventh Amendment, however, is not absolute. The immunity may be foresworn if a State, by its own accord, waives its Eleventh Amendment protection and consents to adjudication of an individual's action in a federal forum. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); Taylor v. Virginia, 951 F.Supp. 591, 593 (E.D.Va.1996). Alternatively, Congress may abrogate the States' sovereign immunity if it unequivocally expresses the intent to do so, and acts pursuant to a constitutional provision bestowing upon Congress the power to pierce the shield of immunity provided by the Eleventh Amendment. See Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114; Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985); Taylor, 951 F.Supp. at 593.
It is undisputed that the Commonwealth of Virginia has not consented to suits of the sort brought by Thorpe. The issue raised by VSU's motion to dismiss for lack of subject matter jurisdiction, then, is whether Congress has abrogated the States' sovereign immunity for actions instituted under Title IX.
To determine whether Congress successfully has abrogated the immunity guaranteed by the Eleventh Amendment, it is necessary to apply the two-part test recently refined by the Supreme Court in Seminole Tribe. The threshold inquiry under that test is whether Congress unequivocally expressed its intention to abrogate the States' Eleventh Amendment immunity. See Seminole Tribe, 517 U.S. at 55, 116 S.Ct. 1114. If Congress has abrogated that immunity, the second question is whether, in so doing, Congress acted pursuant to a valid exercise of constitutional power. Id.
Congress may abrogate the States' Eleventh Amendment immunity from private actions in a federal forum only "by making its intention unmistakably clear in the language of the statute." Dellmuth v. Muth, 491 U.S. 223, 227-28, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989); see Atascadero, 473 U.S. at 242, 105 S.Ct. 3142; Taylor, 951 F.Supp. at 594...
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