Haskell Stadium

The U.S. federal government has asked a court to dismiss a Title IX lawsuit against Haskell Indian Nations University, saying Title IX doesn’t apply to the unique government entity that is Haskell.

The lawsuit was filed in October 2016 by a former Haskell student — named in the suit as Jane Doe H — who said two male students raped her in an on-campus dorm in November 2014 and that Haskell allowed an unsafe environment, treated her unfairly and retaliated against her after she reported the incident. Both men were criminally charged with rape and expelled from Haskell.

Jane Doe H’s civil suit, filed in U.S. District Court in Kansas City, Kan., names several defendants: Haskell, the United States of America, U.S. Secretary of the Department of the Interior Ryan Zinke, and three Haskell administrators including President Venida Chenault.

Federal attorneys representing the defendants filed a motion to dismiss the case on Wednesday.

Key among arguments for dismissing the case is an assertion that Haskell can’t be sued under Title IX because unlike most colleges, it’s actually a federal agency.

Haskell is one of two institutions of higher education operated by the federal Bureau of Indian Education.

Title IX is the federal law that prohibits sex-based discrimination in education. Related federal guidance requires universities to investigate, adjudicate and attempt to prevent sexual harassment, including sexual violence, on their campuses.

The USA, Department of the Interior and Haskell are one and the same — they are all the federal government — the motion to dismiss Jane Doe H’s lawsuit argues.

Title IX states that it applies to “any education program or activity receiving Federal financial assistance,” therefore it does not apply to Haskell, according to the motion. “Activities wholly owned by, and operated by or for, the United States, cannot fairly be described as receiving Federal ‘assistance,'” the motion says.

Even though Jane Doe H pointed out in her lawsuit that Haskell has represented that it abides by Title IX, the motion to dismiss says that is “of no consequence.”

“Federal agencies and federal programs do not have the discretion to choose, expressly or by implication, to be subject to Title IX, or for that matter, any other federal law,” the motion says.

The woman alleged in her suit that Haskell allowed the environment that led to her rape, because no-alcohol and curfew policies weren’t being enforced. She also said that, as she struggled to stay in school through lengthy criminal trials against both men, Haskell administrators treated her unfairly and retaliated against her by “effectively” expelling her after she got into a physical altercation with a different male student the following school year.

The motion to dismiss says that, in addition to being based on federal laws that don’t apply to Haskell, the woman’s lawsuit fails to state a plausible claim that the school was deliberately indifferent to sexual harassment or sexual violence.

“There are simply no allegations suggesting a causal connection between Plaintiff’s protected activity (an alleged sexual assault) and the allegedly adverse action (her “effective” expulsion or the disclosure of records),” according to the motion. “There is certainly no temporal proximity between the events as they occurred more than sixteen months apart.”

Attorneys writing the motion to dismiss on behalf of the federal government are Kansas-based U.S. attorney Thomas Beall and assistant U.S. attorney Brad Bailey.

Kansas City, Mo., attorney Dan Curry is representing Jane Doe H. Curry also represents two former University of Kansas rowers who are suing KU under Title IX, alleging the university failed to properly handle their cases after they reported being sexually assaulted on campus by the same man, a football player.

The two former Haskell students Jane Doe H accused of raping her, though not named in the Title IX lawsuit, are Jared Wheeler and Galen Satoe.

There have now been a total of three mistrials in their Douglas County District Court cases.

Earlier this month, at the conclusion of Satoe’s second trial, a jury could not agree on guilt for rape charges, and a mistrial was declared. Satoe’s first trial ended in August 2016 after jurors could not agree on a verdict.

After his criminal trial last summer also ended with a hung jury, Wheeler pleaded no contest in November 2016 to a single felony charge of aggravated battery.