“We’ve Got You Covered” – Qualified Immunity Provides Protection to University’s Title IX Investigators

Haellie Gordon, ^[1] Fraternal Law Partners, hgordon@manleyburke.com

On December 22, 2022, the Kentucky Court of Appeals reaffirmed the protection of university employees and officers performing investigations of misconduct, such as Title IX investigations, under qualified immunity.[1]

Loandrea Dahmer was a student at Western Kentucky University (WKU) and an active participant in the Student Government Association (SGA).[2] Upon her election to president of the SGA during the 2017-2018 school year, Dahmer and other female members experienced “disrespect and hostility” from numerous male SGA members.[3] Initially, this involved several male members’ refusals to call female leaders by their titles, as well as continuous interruptions by the males when females were speaking.[4] Dahmer eventually brought up these issues to WKU’s Coordinator of Sexual Assault, but Dahmer declined to make a formal complaint. However, Dahmer did request that WKU’s Coordinator of Sexual Assault speak with the SGA regarding Title IX.[5] Shortly thereafter, WKU’s Assistant General Counsel and Title IX coordinator reached out to Dahmer regarding any potential inappropriate gender-based behavior she experienced, but Dahmer failed to respond.[6]

In the following months, the misconduct escalated, as male members began making gender-based comments towards Dahmer, derogatory and hostile messages about Dahmer circulated among male SGA members, and several SGA members attempted to impeach Dahmer and another female executive board member.[7] It was not until February 2018 that this misconduct was officially reported via a formal complaint to WKU’s Title IX Office.[8]

During this time, Dr. Charles L. Pride, who was also WKU’s Director of Student Activities, Organizations, and Leadership, oversaw the SGA. When Dahmer sought Pride’s help with the ongoing mistreatment she endured, Pride acted protectively of the male SGA members and made inappropriate comments to Dahmer while in his office.[9] Pride’s misconduct was also reported as part of Dahmer’s formal Title IX complaint.

WKU’s investigation ultimately found no violation of Title IX, but did find violations of the University’s Student Code of Conduct, and that Pride acted inappropriately. Based on these findings, the students were forced to resign from their SGA positions, and Pride stepped down from his role as faculty advisor to the SGA.[10]

In August 2018, Dahmer filed an action alleging WKU violated Title IX and 42 U.S.C. § 1983 in its handling of her harassment claims, along with several claims against WKU employees individually. The Court found that (1) WKU was not subject to liability under 42 U.S. § 1983; (2) the individual WKU employees were entitled to qualified immunity for discretionary acts involving the enforcement of Title IX; and (3) Dahmer failed to show that Pride violated a clearly established constitutional right. Dahmer has since filed an appeal, which is pending before the Sixth Circuit Court of Appeals.[11]

In March 2021, Dahmer filed a very similar, but separate, action in the Warren Circuit Court, asserting a variety of claims against WKU, WKU’s President (Caboni), WKU’s Assistant General Counsel and Title IX Coordinator (Anderson), and Pride. In September 2021, the trial court granted the Defendants’ motion for summary judgment and dismissed Dahmer’s claims against WKU and the individual employees. Dahmer then appealed the dismissal of her negligence claims against Caboni, Anderson, and Pride individually. Dahmer’s main argument was that the trial court erred in finding the Defendants were entitled to qualified immunity.[12]

On appeal, the Kentucky Court of Appeals affirmed the trial court’s decision. Determining the applicability of qualified immunity to the named defendants boiled down to whether the employees were performing ministerial duties or discretionary acts by conducting Title IX investigations. Ministerial duties include those acts that do not involve the employee’s own judgement and ultimately give the employee “no choice but to do the act.”[13] Discretionary acts, on the other hand, are considered “good faith judgement calls made in a legally uncertain environment and involve personal deliberation, decision, and judgement.”[14]

While Dahmer insisted that the enforcement of Title IX is merely a “ministerial duty,” as it only requires an application and enforcement of established policies, the Court did not find this argument to be persuasive.[15] Instead, the Court held the investigation process involved far too much discretion in the initiation, investigation, and final judgment to be considered ministerial. The Court concluded that “the enforcement of general supervisory duties is often considered a discretionary function, particularly where the school officials are only responsible for investigating misconduct when brought to their attention.”[16]

The Court noted there was no evidence that any Defendant knew what occurred in SGA prior to the February 2018 report. Further, despite Anderson being aware of potential issues within SGA, the Court agreed that there was no direct reason to investigate until the February 2018 complaint, reaffirming the discretionary nature of the investigative process.[17]

This case provides clarity as to what constitutes a “discretionary act” within higher education, and consequentially, where the limits of qualified immunity lie. These are important distinctions for fraternal organizations and their members to note, especially in the context of Title IX investigations that are considered “discretionary.

[1] Haellie Gordon is a legal intern at Manley Burke and is a second-year law student at the University of Cincinnati.

[1] Dahmer v. W. Ky. Univ., No. 2021-CA-1244-MR, 2022 Ky. App. Unpub. LEXIS 757 (Ct. App. Dec. 22, 2022).

[2] Id. at *1.

[3] Id.

[4] Id. at *2.

[5] Id.

[6] Id. at *2–3.

[7] Id. at *3–4.

[8] Id. at *4.

[9] Id. at *1–2.

[10] Id. at *4–5.

[11] Id. at *5.

[12] Id. at *6–7.

[13] Id. at *10.

[14] Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001).

[15] Dahmer, 2022 Ky. App. Unpub. LEXIS at *12.

[16] (Emphasis added.) Id. at *13.

[17] Id.