Federal lawsuits vs. Art Briles, Baylor can proceed, judge rules

A federal judge in Texas ruled Friday that a civil case against former Baylor football coach Art Briles over negligence claims made by a former female student who was raped by football player Tevin Elliott can go forward.

U.S. District Judge Robert Pitman also ruled Friday that Jasmin Hernandez could proceed in her Title IX and negligence claims against Baylor University and her negligence claim against former athletic director Ian McCaw.

Briles, McCaw and Baylor had asked the court to dismiss Hernandez's claims against them, and certain parts of her case were thrown out, but the judge upheld enough of her argument to allow her case to proceed against all three parties.

In his ruling on Briles and McCaw, Pitman wrote, " 'Disturbing' is an apt descriptor for allegations that (Briles and McCaw) put the interests of the football team or the reputation of the university ahead of the students' interest in not being sexually assaulted, ultimately leading to Plaintiff's own sexual assault by Elliott."

Pitman also makes comparisons in his ruling to another court case involving a Boy Scout assistant scoutmaster who was convicted of molesting middle-school-aged boys. He notes that McCaw -- in his filing -- argued that the facts in that case "are much more specific and disturbing," to which Pitman wrote, "With respect to which case contains more disturbing facts, the Court -- though it agrees with Defendant McCaw that allegations of child abuse are horrifying -- cannot agree with the suggestion that the facts alleged in the instant case are not equally so."

Hernandez was the first former Baylor student to file a federal Title IX lawsuit against the university for its indifference toward her allegations of sexual assault. She claimed Baylor officials ignored Elliott's history of assaults, failed to protect her and other women and failed to provide her with help after the assault.

Hernandez's lawsuit, which was filed March 30, 2016, overcame several arguments by the defendants that time had run out for her to file a claim. Pitman, much as he ruled in a prior Title IX case involving Baylor, determined that too much time had passed on one part of her claim -- that Baylor violated her Title IX rights by not assisting her directly after her assault. But he noted that it wasn't until January 2016 that Hernandez "first knew that, based on her allegations, Baylor could have stopped or prevented her assault," and therefore her claim that the university put her at a heightened risk of assault to begin with was certainly within the time frame to proceed. Hernandez learned about Baylor's obligations under Title IX through her participation in an Outside the Lines story on Baylor's handling of sexual assaults that ESPN aired Jan. 31, 2016, in which she was identified by the pseudonym "Tanya."

Pittman wrote: "Baylor's alleged failure to address and active concealment of sexual violence committed by its football players, including Tevin Elliott, was a form of discrimination. Baylor's alleged knowledge of the need to supervise Elliott and protect female students plausibly constitutes deliberate indifference. Finally, Baylor's alleged deliberate indifference plausibly created an environment in which football players could sexually assault women, including Plaintiff, with impunity."

Briles' attorney, Mark Lanier, said he was pleased the court threw out Hernandez's claim of intentional infliction of emotional distress against all three defendants -- with the judge noting there was "overlap" with her other claims. Lanier wrote in a text message, "We note that the negligence claim remains because the judge is simply saying the plaintiff should have a day in court. The judge hasn't passed on any real liability, and we look forward to now developing the truth."

McCaw's attorney did not immediately respond to an emailed request for comment. Baylor University issued this statement: "Baylor University is reviewing the Court's ruling on the motions to dismiss. We understand that some of the Plaintiff's claims were dismissed, while other claims will be permitted to proceed. Baylor will not waver in its promise to continuously improve its processes and systems to respond to incidents of sexual violence or in its support for the wellbeing and safety of all students."

Last month, Pitman ruled that a Title IX lawsuit filed against Baylor involving 10 women -- including one who alleged a football player raped her -- could proceed in court, allowing attorneys to start requesting records from Baylor and conducting interviews.

That lawsuit was initially filed June 15, 2016, and includes 10 plaintiffs -- identified as Jane Does 1 through 10 -- whose reports of sexual assault range from 2004 to 2016. All but one of them allegedly happened in housing owned or operated by Baylor. Each woman has said that she reported her assault to someone at Baylor, such as the counseling center, Baylor police, university medical personnel or another campus office, and was met with "indifference and inadequate response." They say they were denied their rights under Title IX, the federal gender equity law that requires universities to investigate and address complaints of sexual violence.

Pitman has been assigned to all six lawsuits filed against Baylor, and the university has filed motions to dismiss in all but the two most recently filed.

Elliott, a former Baylor defensive end from Mount Pleasant, Texas, was convicted in January 2014 on two counts of sexual assault and sentenced to 20 years in prison for attacking Hernandez at an off-campus party on April 15, 2012. She reported the assault to Waco police and a sexual assault nurse a couple of hours after it happened. She and her mother went to Baylor's police department a couple of days later, but officers told them they couldn't help because the assault occurred off campus. Baylor officials also declined to provide her with counseling and academic assistance, according to the lawsuit.

Hernandez's mother and father both said they called Briles' office, but he never returned their phone calls. Her attorney alleged that Briles' former attorney, Ernest Cannon, contacted him the day before Hernandez's mediation session with Baylor officials in June, and said that Briles "promised" to attend the session "to support Jasmin ... and help her, and to apologize to her and her family," Zalkin told Outside the Lines in June. However, Briles reached a financial settlement with Baylor the next day, and he failed to show up at Hernandez's mediation. Hernandez and her attorneys failed to reach a settlement with Baylor officials through mediation.

"[Briles] used the threat of helping Jasmin in her lawsuit against Baylor as leverage to negotiate his wrongful termination claim against Baylor," Zalkin said in a statement in June. "He doesn't care about victims. He never cared about victims. He's using victims. He used them to help build up his football program, and now he's using Jasmin to leverage more money out of Baylor."

Within weeks of Hernandez's assault, Baylor officials suspended Elliott from the football team and later expelled him. His criminal trial revealed that three other women claimed Elliott had raped them, including one report made just weeks before the assault against Hernandez. Outside the Lines reported in February 2016 that Baylor officials also were aware of an alleged attempted assault about two months earlier against a local community college student, for which Elliott received a misdemeanor citation in 2011.

Baylor has been at the center of nationwide attention over its handling of sexual assault allegations and investigations for nearly a year, including several that involved athletes. The scandal led to the demotion and then resignation of former university president and chancellor Kenneth Starr, the firing of Briles, the suspension and then resignation of McCaw, and the firings of multiple athletic department employees.