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Colter Peterson, KSL

Retired Utah Supreme Court justice to represent McCluskeys in lawsuit against University of Utah

By Dennis Romboy, KSL | Updated - Nov 25th, 2019 @ 3:01pm | Posted - Nov 25th, 2019 @ 10:25am


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MURRAY — A former Utah Supreme Court justice and longtime advocate for women wants a federal judge to allow the $56 million lawsuit the parents of slain student Lauren McCluskey filed against the University of Utah to move forward.

Christine Durham, who retired from the state’s high court after 35 years in 2017, has signed on as a lawyer for Matt and Jill McCluskey in the case. She is scheduled to argue against the U.’s motion to dismiss the lawsuit when it comes up for oral argument in U.S. District Court. The university maintains that McCluskey’s family does not have grounds to sue.

“The history of the treatment of Lauren McCluskey by university authorities in a period of grave danger and terror in her life is disappointing in the extreme, and in the end, led to her horrifying death,” Durham said at a press conference Monday.

Durham said the U. discriminated against McCluskey based on stereotypes about women who report sexual harassment and assault. The university repeatedly and consistently ignored its obligations under federal law and failed to take the steps it was legally required to take, she said.

“Those steps would almost certainly have prevented her violent death,” Durham said.

The McCluskeys’ attorneys also intend to amend the lawsuit they filed against the University of Utah in June, alleging a long history of discrimination against women in the campus police department, not only those who alleged sexual assault but in how it treated female employees, she said.

“What we believe is that there was an outdated and inappropriate and downright improper level of gender bias in that unit that manifested itself in many ways,” Durham said.

In a court filing Monday, the McCluskeys’ lawyers challenge the U.’s assertion that it cannot be liable under Title IX for failing to respond to sexual harassment, assault and violence committed on campus unless the perpetrator is faculty, staff or another student.

“That is not the law,” the the attorneys wrote, contending Title IX does not categorically draw a line based on the harasser’s identity.

“The university must prevent discriminatory treatment in situations where the discrimination is known and the university can exercise control. The university had ample (and repeated) notice of Lauren’s harassment,” according to the court filing.

Durham said the case would clarify how universities throughout the country apply Title IX.

McCluskey, 21, was shot and killed in October 2018 near her campus dorm by 37-year-old Melvin Rowland, a convicted sex offender who was on the Utah Sex Offender Registry at the time of the murder. The two had dated, but McCluskey broke things off when she found out Rowland had lied to her about his name and age.

Jill McCluskey wears a running pin with daughter Lauren's name on it during a press conference at the offices of Parker & McConkie in Murray on Monday, Nov. 25, 2019. (Photo: Colter Peterson, KSL)

McCluskey, a track athlete, called university police to report the harassment multiple times in the weeks before she was killed, and even called Salt Lake police. But campus police never conducted a full background check on Rowland, and at least one call that McCluskey made to the officer assigned to her case went to voicemail because the officer was not on duty.

The McCluskeys sued the U. in June, saying the university had not taken responsibility for the death of their daughter. The lawsuit alleges that university police and housing ignored McCluskey’s multiple reports of stalking, abuse, intimidation, dating violence and other behavior prohibited under Title IX. In addition, the suit claims the U. and its employees violated the equal protection clause of the 14th Amendment.

“It treated repeated reports of her sexual abuse and harassment with deliberate indifference and minimized the situation based on false and invidious gender stereotypes,” according to the McCluskeys’ motion.

Durham said the most egregious failure was that no one at the U. took McCluskey seriously.

In a motion to dismiss the lawsuit filed in September, the university argued that harassment perpetrated by someone who isn’t a student or employee of the university cannot be the basis for a Title IX claim against the school, as the university does not have “substantial control” over a person who isn’t affiliated with the university.

The U. also contends the lawsuit fails to demonstrate that university staff members’ actions were related to McCluskey’s gender, or that police Chief Dale Brophy’s alleged failure to train officers caused those officers to violate McCluskey’s constitutional rights.

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In fact, the motion argues, the lawsuit does not prove that staff members violated McCluskey’s “clearly established constitutional rights” at all.

An independent review panel found that the university and campus police made a number of mistakes in handling McCluskey’s case. The panel, however, concluded that it was impossible to say whether her death could have been prevented.

The U. has reached out to the McCluskeys’ attorneys to resolve the case out of court through mediation. Jim McConkie, another attorney for the family, said January is the soonest that would be addressed and settlement talks are not imminent.

Matt and Jill McCluskey, of Pullman, Washington, attended Monday’s press conference wearing winged shoe lapel pins in memory of Lauren. They said university administrators have never acknowledged any fault or responsibility for the death of their daughter.

Matt McCluskey, who now sports a winged shoe tattoo on his right calf, wouldn’t go so far as to say an acceptance of responsibility must be part of any agreement. But he and his wife are “very strongly insistent” that it is the right thing to do and it’s hard to imagine improvement in the culture on campus until it does, he said.

The McCluskeys said the lawsuit isn’t about a vendetta or money, and that they would not profit from in personally. Any money awarded in the case would go to the Lauren McCluskey Foundation to enhance campus safety, promote amateur athletics and animal welfare nationwide.

Jill McCluskey said it feels to her the U. just hopes that the issues will go away and people will forget about Lauren.

“As long as I have a voice, I will keep saying her name and I will keep trying to make change,” she said.

Matt McCluskey, center, and Jill McCluskey, right, parents of slain University of Utah student Lauren McCluskey, listen to former Utah Supreme Court Chief Justice Christine Durham, left, during a press conference at the offices of Parker & McConkie in Murray on Monday, Nov. 25, 2019. (Photo: Colter Peterson, KSL)

In addition to a scholarship in Lauren McCluskey’s name at the U., the couple has established a new scholarship at the University of Idaho, just eight miles from their home where Lauren practiced and competed as a teenager. The Human Society in Pullman also built a wing for cats in her name.

In an online question-and-answer response to the case posted last week, the U. said it did not claim in its motion to dismiss that it had no obligation to protect McCluskey from her attacker. The university also said nothing in the court filing intended nor should be read to suggest “victim blaming.”

“The U. does not believe that Lauren McCluskey had any responsibility for the heinous actions of her murderer,” according to the statement.

The university says it has completed nearly all of the 30 independent review committee’s recommendations and is investing nearly $6 million in safety improvements. Also, the police department has adopted new policies, procedures, protocols and trainings. The department is in the midst of hiring a new police chief after a nationwide search.

Durham, who has strong ties to the U., including her husband’s grandfather having served as its president and having taught at the law school herself, said she took on the case after a lot of thought and soul-searching.

“But even institutions, like people that we love, can disappoint,” she said.

Durham said she has spent a lifetime being concerned about the status of women and disadvantages they face, and domestic violence is at the top of the list.

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