Judge dismisses Title IX case against Haskell, says federal discrimination law does not apply to unique school

Action ends bulk of court litigation stemming from alleged 2014 dorm rape

The campus of Haskell Indian Nations University.

A federal judge has dismissed the bulk of a Title IX lawsuit against Haskell Indian Nations University, brought by a woman who accused two fellow students of raping her on campus.

Key to the decision: Title IX doesn’t apply to Haskell — a federal school — the same way it does to other universities, the judge ruled.

The dismissal all but puts an endcap on the last of several court cases — two criminal cases and one other civil case — that stem from the same incident that reportedly occurred nearly three years ago in a Haskell dorm.

The defendants in the lawsuit are Haskell, the United States, the U.S. secretary of the Department of the Interior and three Haskell administrators, including President Venida Chenault.

Judge Thomas Marten on July 18 dismissed the lawsuit filed in U.S. District Court in Kansas by the alleged rape victim under the name Jane Doe H. The judge did, however, grant the woman’s request to add a Privacy Act claim against the federal government, which will move forward without the rest of her original claims.

“We are disappointed in the dismissal of the Title IX claims, but we respect the Court’s Order,” the woman’s attorney, Dan Curry, of Kansas City, Mo., said, in an email to the Journal-World. “The government’s position was that the students at Haskell do not have the same rights as the students attending KU, or K-State or UMKC. The United States argued that Haskell students should have fewer rights. We disagree and will continue to press the argument.”

A sign at the entrance to Haskell Indian Nations University is shown Friday, Aug. 5, 2016.

Curry said the case would continue under the newly admitted privacy complaint, which alleges Haskell administrators unlawfully released the woman’s private records to parties outside the school during the course of criminal court proceedings.

Haskell spokesman Stephen Prue declined to comment on the lawsuit, referring any statements to a representative of the Bureau of Indian Education in Washington, D.C. The representative did not respond to a message early this week.

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

But in a previous motion to dismiss the lawsuit, the federal government argued that Haskell can’t be sued under Title IX because, unlike most colleges, instead of receiving federal assistance it’s actually a federal agency.

Haskell is one of only two institutions of higher education operated by the federal Bureau of Indian Education. The other is Southwestern Indian Polytechnic Institute in Albuquerque, N.M.

“Haskell is a unique national institution of higher learning for Native Americans,” Marten wrote in his order dismissing the case. “It provides a tuition-free education for members of indigenous Nations, and any federal assistance takes the form of Pell Grants or other assistance for limited expenses.”

The judge sided with the government’s argument regarding Title IX — specifically citing a 2000 executive order by then-President Bill Clinton.

“The government argues that the plaintiff’s claims against it are precluded by sovereign immunity, and alternatively that plaintiff’s Title IX and Rehabilitation Act claims are inapplicable, since Haskell is not an institution receiving federal assistance within the meaning of those statutes,” Marten wrote.

The Clinton order prohibits a wide range of discriminatory actions in “federally conducted education and training programs and activities,” according to Marten’s ruling.

Haskell is a federally conducted education program and thus subject to the provisions of that order, Marten wrote.

Though separate and different from Title IX, the Clinton order provides remedies for people allegedly wronged by violations of it.

The order provides due process rights for people receiving “federally conducted education,” namely through complaints lodged with whatever federal agency violated the order, Marten wrote. Following investigation, findings are given to the federal agency in charge of that education program for consideration of “corrective or remedial action.”

Future filings in the remaining portion of the Jane Doe H lawsuit will be under the woman’s true name.

Citing emotional suffering from the sexual assaults, the plaintiff had requested to be allowed to continue proceeding with the case under the pseudonym Jane Doe H. However, the judge on July 18 also denied that request, directing her to proceed using her own name.

The plaintiff in the case said two male students raped her in an on-campus dorm in November 2014 and that Haskell — in opposition to Title IX — allowed an unsafe environment, treated her unfairly and retaliated against her after she reported the incident to school and law enforcement authorities.

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.

Other Haskell cases

Counselor lawsuit

In November a Haskell counselor dropped her federal Title IX lawsuit against the school. Angelina Adams had alleged that she faced retaliation from Haskell administrators for advocating the rape victim’s Title IX rights. Her attorney, also Curry, said in November that Adams instead filed a whistleblower complaint with the U.S. Office of Special Counsel, a federal investigative and prosecutorial agency with authority over the federal Whistleblower Protection Act, among other areas.

Galen Satoe trials

Galen Satoe

The Douglas County District Attorney’s Office said in May that prosecutors decided not to pursue a third criminal trial against Galen Satoe, one of two men accused of raping the woman in 2014 in the dorm room the men shared.

Satoe was acquitted of one felony attempted aggravated sodomy charge, but juries in his two criminal trials were unable to reach unanimous decisions on the remaining charges: two felony counts of rape, one felony count of aggravated criminal sodomy and one felony count of attempted rape.

Jared Wheeler conviction

Jared L. Wheeler

In November 2016 Jared Wheeler pleaded no contest and was convicted of a single felony charge of aggravated battery and was sentenced to two months in jail and two years of probation. He originally faced two felony counts of rape and one felony count of aggravated criminal sodomy. Wheeler’s first and only trial also ended with a hung jury in June 2016.

Federal investigation

Haskell also remains under investigation by the U.S. Department of the Interior Office of the Inspector General, office spokeswoman Nancy K. DiPaolo confirmed Friday. It is not clear what the office is investigating, and DiPaolo declined to share details about the category of the investigation or what allegations were being looked into.

The U.S. Department of the Interior Office of the Inspector General investigation of Haskell was first reported in 2016, after former Haskell instructor Theresa Milk told the Journal-World she filed a nepotism complaint with the federal office. She complained that the university’s president, Chenault, improperly promoted and supervised her own son, Joshua Arce.