Next steps in McCluskey family lawsuit

Lauren McCluskey’s tragic murder in October 2018 was a pivotal moment for the University of Utah. This institution is committed to improving and to reducing the likelihood of such a tragedy happening again on campus. There is no end to this work, as the U will always need to be focused on and addressing safety. Transformation of a campus culture is neither an easy nor a quick process, but it is one to which the U is fully committed. Many of the changes made at the university to date have involved policies, personnel, processes and physical improvements. The university has more work to do to build an institutional culture that gives all members of the campus—and community stakeholders—confidence and trust in its ability to listen, support and respond appropriately.

In the coming days, attorneys for Lauren McCluskey’s family are expected to file a response to the U’s motion to dismiss their lawsuit. The FAQ below is intended to keep our campus community informed on what is happening in the lawsuit.

Background

In June 2019, attorneys for Lauren McCluskey’s family sued the University of Utah in federal court. The lawsuit seeks a $56 million judgment against the university, some of its employees and the state.

The lawsuit filed in federal court alleges the university violated aspects of Title IX and the Equal Protection Clause of the 14th Amendment in its handling of Lauren McCluskey’s case.

The family’s attorneys have also filed a separate Notice of Claim with the Utah Attorney General’s Office seeking damages of $56 million for wrongful death and negligence under state law.

In these situations, the Utah Attorney General’s Office represents the university. In September, the Attorney General’s Office, acting on behalf of the U, filed a motion to dismiss the lawsuit—a standard initial response in legal proceedings of this nature.

The purpose of a motion to dismiss is to address the legal theories presented by the plaintiffs in their pursuit of a monetary judgment. The federal court applies current legal standards to the plaintiff’s facts as alleged in their complaint. Filing a motion to dismiss does not preclude the U and the state from seeking a negotiated resolution of the lawsuit, and representatives from the AG’s Office continue to do so on the U’s behalf.

The motion filed on behalf of the university, which reflects current federal law prohibiting a monetary judgment in a case like this, is posted in its entirety online.

Why is the Utah Attorney General’s Office defending the U in this lawsuit?

Under Utah law, the Utah Attorney General’s Office engages in litigation on behalf of the U. The Utah State Division of Risk Management, which provides liability insurance coverage to the U, approves and pays settlements and judgments against the state, including the university. Claims covered by the Division of Risk Management are litigated by the Attorney General’s Office. Settlements over $1 million also require the approval of the governor and the Utah Legislature.

What is the process leading up to a decision from the judge handling the case?

Once a lawsuit is initiated, lawyers for both sides have the opportunity to respond to each other’s filings and the legal arguments raised. In this case, lawyers for the McCluskey family filed a lawsuit and then lawyers for the university filed a motion to dismiss the lawsuit. Next, lawyers for the family are expected to file a memorandum opposing the U’s motion—and potentially an amended complaint that raises new arguments—explaining why the case shouldn’t be dismissed; that is likely to happen by the end of November. The U will then have an opportunity to file a reply memorandum, likely by the end of December.

The judge hearing the case will then schedule oral arguments. After that hearing, the judge will make a ruling in the case. Timing for issuing a ruling is at the discretion of the court, but is likely at some point in 2020.

Is the U willing to resolve the case out of court?

Yes. In July 2019 the U reached out to the family’s attorneys to express interest in resolving the case out of court. Since then, the U has researched and suggested six highly qualified potential mediators. The family’s attorneys have said they will respond to the request for mediation in 2020.  Any resolution that includes the payment of money to the family must also be approved by the State Division of Risk Management and its insurance partner, and, depending on the amount, the governor or the legislature.

Did the U use “victim-blaming” language in its motion to dismiss?

None of the statements in the motion were 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.

Did the U claim that it had “no obligation to protect McCluskey from her attacker” in the motion to dismiss?

No. The U has always acknowledged its moral and ethical duty to protect its students and to do its best to create a safe environment for the campus community. The U has invested significant resources over the past three years to improve campus safety.

The language used in the motion reflected the specific legal theories advanced by the family in support of a monetary judgment—that the university violated Title IX or that the university or its employees violated the 14th Amendment to the U.S. Constitution.

Why does the university have its own police force?

The U has its own police force to provide local, campus-centric security—something we believe would be lost if policing were integrated into a larger outside law enforcement entity. A university-governed campus police department, overseen by a campus chief safety officer and police chief, is a national best practice for a campus of our size. The U intends to continue investing in its police force through new leadership, additional training and expanded resources. National searches for a chief safety officer and a police chief with extensive experience in higher education are currently underway.

How has the University of Utah taken accountability and responsibility since the murder of Lauren McCluskey?

In addition to completing virtually all of the 30 recommendations from the independent review commissioned after Lauren’s murder, the U is investing nearly $6 million in safety improvements recommended by a campus safety task force or proposed by campus entities. Additionally, an extensive set of policies, procedures, protocols and trainings have been put in place by the Department of Public Safety to ensure the U is following best practices and responding in a timely manner. More than 60 percent of the employees of the Department of Public Safety are new hires and many have come from surrounding law enforcement agencies, bringing with them years of experience. New hires include individuals with specific expertise in interpersonal violence, including a victim-survivor advocate. Officers have received Lethality Assessment Protocol training and trauma-informed interviewing training—and will continue to receive regular training in these areas. The U is close to naming a chief safety officer, a new position that will add a holistic perspective on campus safety and will have oversight responsibility for the Department of Public Safety.

Currently, the University of Utah Department of Public Safety responds immediately in emergency, time-sensitive situations, including those involving sexual violence, assault or harassment, any time of day or night. In cases that involve intimate partner/interpersonal violence, the department’s victim-survivor advocate is available and on-call 24/7.

The department gives high-priority status to all cases involving instances of sexual violence, assault or harassment—including reports, for example, of past incidents. These cases receive collective attention from department personnel and are responded to on a high-priority basis—often sooner than 12 hours.

Since last year, the department has followed a protocol requiring an assigned investigator to respond within 24 hours to all other types of victim complaints, such as property theft. At a minimum, this requires the investigator to contact the victim to let the person know she or he has been assigned to the case.

The department tracks and keeps logs on its case responses to ensure investigators and officers are following these protocols. These are audited on a monthly basis.

In addition, as part of a new grant from the Office on Violence Against Women, university police and other campus entities will have access to community partners with expertise in best practice responses.

Is the university abiding by its zero tolerance policy for any officers who repeatedly fail to take effective action?

The Department of Public Safety is giving all officers training and support that will enable them to do their jobs well. It has made clear there is an expectation of accountability and high performance. The detective sergeant runs audits on all cases monthly to see that expectations are being met. This includes a face-to-face meeting with investigators, where they are held accountable to see that they are meeting expectations. Appropriate action is taken when officers do not comply with policy, procedures, protocols, and practices.

What has the U done to improve campus safety since Lauren McCluskey’s murder?

The U has made significant changes to practices, policies, personnel and physical infrastructure. The university has completed virtually all items identified by the independent review team enlisted in 2018, as well as additional recommendations from the campus safety task force. These include requiring specific trainings for various entities on campus, clarifying reporting structures, revising policies, and holding all employees accountable for strict compliance with these policies. Significant and meaningful work is taking place and is making our campus safer.