A judge has dismissed a Kansas Consumer Protection Act lawsuit by two women who said they were sexually assaulted in campus housing after the University of Kansas falsely represented such facilities as safe.
Douglas County District Court Judge Kay Huff dismissed the suit because the plaintiffs lack standing, according to an order filed Friday.
James and Amanda Tackett initially filed the lawsuit in March 2016. Three more plaintiffs later joined the suit: the Tacketts’ daughter Daisy Tackett; James McClure; and McClure’s daughter Sarah McClure.
Daisy Tackett and Sarah McClure, both former KU rowing team members, said they were sexually assaulted by the same man at KU’s Jayhawker Towers apartments, where both women lived. Tackett said the man raped her in October 2014, and McClure said he sexually assaulted her in August 2015.
Both women reported the assaults to KU in fall 2015, and after an investigation by the KU Office of Institutional Opportunity and Access, KU found the man responsible for the assaults and banned him from campus in spring 2016. Both women left KU in 2016.
To have standing under the Kansas Consumer Protection Act plaintiffs must be consumers, specifically a party to the contract for purchase, the judge wrote in her order. Huff dismissed the parent-plaintiffs in the case, saying that even though they paid for tuition and board, the students themselves signed the contracts with KU.
As for the student-plaintiffs, Huff dismissed them, saying that though they are parties to a contract they lack standing because they are no longer enrolled at KU or seeking readmission.
To seek prospective relief under the law, plaintiffs must show a continuing injury or “certainly impending” threat of injury, as opposed to one that is speculative, Huff said. She said the lawsuit failed to show the women were in danger of being wronged again.
“In this case, plaintiffs have knowledge of what they characterize as deceptive acts, which eliminates any present or imminent threat of future injury to them,” Huff wrote in the order. “...Plaintiffs have no current or anticipated future involvement with KU but request prospective relief, including an injunction ordering defendant KU to cease making representations to current and prospective students and to the public as to the safety and security of on-campus housing.”
The lawsuit was an unusual application of the Kansas Consumer Protection Act to campus sexual assault reports.
The plaintiffs accused KU of repeatedly representing to them and other prospective and current students that university residence halls were safe and secure when, in fact, campus housing for years had been home to “a known, persistent and growing problem of instances of sexual assault,” according to the suit.
The suit asked the court to order KU to cease representing its dorms as safe until they were “demonstrated” to be, and order KU to give up money earned as a result of the deception, potentially through restitution to affected families.
“In addition to the horrific assault of our daughter, we are concerned for the safety of all students at KU," Amanda Tackett said in a written statement when the suit was filed. "We believe there are many more victims of on-campus crimes in the dorms. Had we known this, we would not have considered KU as an option.”
The consumer protection act lawsuit is one of three related lawsuits against KU.
Daisy Tackett and Sarah McClure, as Jane Doe 7, also filed separate Title IX lawsuits against the university. Those lawsuits remain pending in federal court. Title IX is the federal law prohibiting sex-based discrimination in education, including sexual violence.
KU spokeswoman Erinn Barcomb-Peterson said Friday that the university was pleased the judge dismissed the consumer protection lawsuit initially filed by James and Amanda Tackett.
“The safety and well-being of our students is of the utmost importance,” Barcomb-Peterson said, in an e-mailed statement. “As we’ve said from the beginning, the Tacketts’ lawsuit is baseless, and we are pleased the court agreed and dismissed the suit. Looking ahead to Ms. Tackett and Ms. McClure’s ongoing federal lawsuits, we are confident the courts will find we’ve fulfilled our obligations to both women.”
Kansas City, Mo., attorney Dan Curry, who represents the Tacketts and McClures in all three lawsuits, said Friday afternoon that he and the families did not consider the matter finished.
"We respectfully disagree with the opinion of the court," Curry said. "We intend to appeal."
Sarah McClure's federal lawsuit, in addition to other accusations against KU, also includes similar arguments under the consumer protection act. While a federal judge recently dismissed a portion of McClure's lawsuit, the consumer protection arguments are among those that will be allowed to proceed in court in that case.