HUNTINGTON — A notice of appeal has been filed in a Title IX civil lawsuit filed by a Marshall University student attacked on campus, claiming the university erred in allowing her attacker to remain on campus.
The case was appealed to the U.S. Court of Appeals for the 4th Circuit on Wednesday, one month after U.S. District Court of West Virginia Judge Robert Chambers dismissed the lawsuit against the university, stating Marshall had not erred in its handling of the case and allowing the perpetrator, Joseph Chase Hardin, to remain on campus. A complaint of what errors the plaintiff believes Chambers made has not yet been filed with the appellate court, however.
In February 2016, Gonzales reported to the Marshall University Police Department that Hardin, now 22, sexually assaulted her in her dorm room on campus. Hardin was indicted in Cabell County on a charge of sexual assault, but in 2017 he entered a Kennedy plea to misdemeanor battery. At the same time, the university held its own investigation.
The civil lawsuit filed in federal court alleged that Gonzales was forced to abandon her schooling at Marshall after the university allowed Hardin to remain a student for months during a lengthy appeals process. She also alleged the university had made mistakes during its investigation.
In his decision, Chambers wrote that while there are facts in the case like those flaws that point to Marshall’s negligence, it was not the standard to demonstrate the university’s liability.
In order to ascribe liability to a university in Title IX cases, plaintiffs must demonstrate that the school acted with “deliberate indifference” to known acts of harassment, which Chambers writes is a high bar and defined as a response by the school that is “clearly unreasonable in light of the known circumstances.”
Chambers wrote that a claim of what a school could or should have done differently is insufficient to establish deliberate indifference.
Chambers also wrote that there is no evidence to support that the university was deliberately indifferent before Gonzales left Marshall, therefore she was not indirectly forced to leave the university.
Marshall officials have said the university followed state law and federal regulations in its handling of Gonzales’ case, and did all it could to protect the rights of all parties involved in the case.
Hardin’s probation in the attack on Gonzales was revoked earlier this year, and he is currently serving a one-year incarceration at Western Regional Jail. His probation was revoked after an indictment charging him with four counts of first-degree sexual assault surrounding the alleged attacks of two 18-year-old women was returned by a grand jury.