You are the owner of this article.

Judge releases opinion on former Marshall student's Title IX lawsuit

HUNTINGTON While the “court may have its own opinions about the appropriate actions” Marshall University should have taken against Joseph Chase Hardin, as a matter of law, Alicia Gonzales, in her lawsuit, did not establish the university was “deliberately indifferent” or “clearly unreasonable” in handling her Title IX case, ruled U.S. District Court Judge Robert Chambers.

Chambers dismissed Gonzales’ lawsuit against the university last week, but his opinion was not filed until Monday.

Gonzales filed the lawsuit against the Marshall University Board of Governors in January 2018.

In February 2016, Gonzales reported to the Marshall University Police Department that Hardin, now 22, sexually assaulted her in her dorm room on campus, and as required by federal law, the university began an investigation.

The lawsuit alleged that the university’s decision to allow Hardin to remain a student for months during a lengthy appeals process forced Gonzales to abandon her education at Marshall. She also alleged the university made mistakes during the investigation of the case.

Hardin was indicted in Cabell County on a charge of sexual assault, but in 2017 he entered a Kennedy plea to misdemeanor battery. On Friday, Cabell County Circuit Court Judge Alfred Ferguson revoked Hardin’s probation after he was indicted on four new charges of second-degree sexual assault involving Marshall students — though the alleged assaults did not take place on campus.

In order to ascribe liability to a university in Title IX cases, plaintiffs must demonstrate that the schools 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.”

In her lawsuit, Gonzales says the university acted with deliberate indifference in several instances, including a procedurally flawed appeals hearing.

Chambers writes while there are facts in the case, such as flaws in the hearing, that point to Marshall’s negligence, it is not the standard to demonstrate the university’s liability. And while the plaintiff may argue the university should have expelled Hardin from campus during the proceedings rather than ban him from campus, under law the court cannot second-guess the disciplinary actions of school administrators, Chambers wrote. A claim of what a school could or should have done differently is insufficient to establish deliberate indifference, he ruled.

Chambers also wrote that there is no evidence to support the university was deliberately indifferent before Gonzales left Marshall, so therefore she was not indirectly forced to leave the university.

In the response to Marshall’s motion for summary judgment, representatives for Gonzales state they have an expert witness in Title IX who would testify that Marshall did act unreasonably in light of the circumstances known, but there is no citation on record to support that assertion, Chambers said.

In a statement released Wednesday, university Senior Vice President for Communications and Marketing Ginny Painter said the university was satisfied with the court’s decision and had no further comment on the case.

Gonzales’ attorney, Amy Crossan, said she and Gonzales were disappointed that Gonzales will not have the opportunity to have a jury decide if Marshall complied with Title IX.

“It is distressing that Title IX case law sets such a low bar for compliance by a university to avoid liability, such that even if the university administration finds that a student was sexually assaulted by another student, yet does not expel the offending student, they can avoid liability,” she said.

“It took great courage for Ms. Gonzales to stand up to the university and seek to hold it accountable for its shortcomings in regards to how it handled her on-campus assault. It is a shame that a talented and brave young lady like Ms. Gonzales felt no other option than to leave Marshall University, as she would have made a great alumni and ambassador for the university and city. It is a shame that by leaving Mr. Hardin on campus, he now stands accused of sexually assaulting two other students, and Marshall has been the subject of negative nationwide media accounts.”

Crossan said they believe if the university had in 2016 a proper Title IX complaint process, Hardin would not have had the ability to commit the other assaults he is accused of.

Funerals for Saturday, August 24, 2019

Barron, Dennis - 11 a.m., Airborne Church, Martinsburg.
Baylor, Elizabeth - 1 p.m., Snodgrass Funeral Home, South Charleston.
Bonds Jr., Patrick - 1 p.m., King of Glory International Ministries, Charleston.
Burgess, Corey - 5 p.m., Aldersgate United Methodist Church.
Burns, Helen - 11 a.m., Stump Funeral Home & Cremation, Inc., Grantsville.
Caldwell, Gary - 6 p.m., Long & Fisher Funeral Home, Sissonville.
Casto, Carroll - 1 p.m., Raynes Funeral Home, Eleanor.
Casto, Roger - 2 p.m., Chapman Funeral Home, Winfield.
Duty, Fred - 2 p.m., Handley Funeral Home, Danville.
Fisher, Bernard - 2 p.m., Waybright Funeral Home, Ripley.
Gwinn, Lloyd - Noon, Church of Christ, Craigsville.  
Habjan, Nathan - 1 p.m., Wilson-Smith Funeral Home, Clay. 
Hall, Daniel - Noon, Witcher Baptist Church.
Hinkle, Ethel - Noon, Church of Christ, Craigsville.  
Hoffman, Bruce - 2 p.m., Foglesong - Casto Funeral Home, Mason.  
Kinder, Siegel - 1 p.m., Leonard Johnson Funeral Home, Marmet.
Kyler, Virgil - 11 a.m., Pleasant Grove Cemetery, Reedy.
Palmer, William - 1 p.m., Barlow Bonsall Funeral Home, Charleston. 
Raynes Sr., Steven - 1 p.m., Tyree Funeral Home, Oak Hill.
Truman, James - 2 p.m., Newton Baptist Church, Newton.
Turner, Keith - Noon, Full Gospel Assembly,  Huntington. 
Webb, Antoinette - 11 a.m., SS Peter and Paul Catholic Church, Oak Hill.
Wilson, Greg - Noon, Roach Funeral Home, Gassaway.
Withrow, James - 1 p.m., Cooke Funeral Home Chapel, Cedar Grove.