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Tulsa facing Title IX lawsuit

Monday, August 18, 2014
A lawsuit filed in federal court Monday alleges that the University of Tulsa failed to protect a student from one of its prominent basketball players who has a history of facing sexual assault allegations.

The lawsuit, filed on behalf of Abigail Ross, a sophomore at Tulsa, states that basketball player Patrick Swilling Jr. raped her in January. It outlines three prior alleged incidents involving Swilling, from a woman who reported in 2012 that he raped her while the two were students at the College of Southern Idaho, a woman at Tulsa who reported a sexual assault to campus security, and a woman who said Swilling tried to sexually assault her before friends intervened.

"Despite its knowledge of at least one, and as many as three prior allegations of sexual assault and misconduct perpetrated by Swilling, TU undertook zero investigation of his conduct and permitted Swilling to continue to attend TU," the lawsuit states. "... TU was deliberately indifferent to the substantial risk that Swilling would sexually harass other female students at TU. As a result of TU's deliberate indifference, Plaintiff was subjected to extreme sexual harassment in the form of rape by Swilling."

Ross' lawsuit comes amid growing national focus on Title IX issues. Title IX is a federal gender equity law that, among other requirements, sets the rules for how schools must investigate incidents of sexual assault or violence. The law provides protection for women and men and covers how schools must provide support for the students involved.

The U.S. Department of Education is investigating more than 70 colleges and universities for their handling of what is commonly known as Title IX complaints. Those complaints go to the department's Office for Civil Rights, where director Catherine Lhamon said the problem of repeat offenders is something her department sees in its own investigations.

"There are serial perpetrators," she said. "And we need to stop their capacity to do harm."

This year, President Barack Obama established a White House task force to address sexual assaults among college students, and last month, members of the U.S. House and Senate introduced bipartisan bills designed to crack down on colleges that fail to act.

"Outside the Lines" has been investigating the Swilling allegations and college administrators' handling of them for several weeks as part of a larger examination of Title IX and sexual assault issues.

The first reported incident came in 2012 and involved Lexi Mallory, a sophomore at the College of Southern Idaho in Twin Falls. Mallory's mother alerted college officials to an allegation that Lexi had been raped when she sent an email to College of Southern Idaho men's basketball coach Steve Gosar on Jan. 6, 2012. "Prior to Christmas break, Patrick Swilling raped my daughter," the sophomore's mother wrote before going into details.

The email explains that her daughter did not go to police because "she just wanted it to go away and not to become some big horrible news story."

It would have been a story locally, if for no other reason than the Golden Eagles basketball team was 14-1 at the time and the defending champion of the National Junior College Athletic Association, but also because the alleged rapist carried a big name's legacy as the son of former New Orleans Saints linebacker Patrick Swilling Sr., the NFL Defensive Player of the Year in 1991 and a member of the College Football Hall of Fame. The younger Swilling had transferred to the College of Southern Idaho from Saint Joseph's University in Philadelphia after he violated the student code of conduct there for allegedly stealing a laptop.

At the start winter break in December 2011, Mallory and Swilling made plans to watch a movie, Mallory told "Outside the Lines" in April. Swilling was lying on her bed when he pulled her in and started touching her butt and panties, Mallory said, before she swatted his hand away.

"He pulled out a condom, and I was like, 'That's not why I invited you over here,'" she said. She said he got on top of her and she couldn't move her arms or legs.

"He kind of was like, 'You know you wanted it. Why are you flirting with me? You know, I thought this is what you wanted.' I was like, 'No. You're my ex's teammate. That's not, that's not OK,'" she said.

"I thought saying 'no' once was enough, but clearly it wasn't."

When Mallory's mom wrote Gosar, she said she would respect her daughter's wishes not to go to police, but she wanted the college to address the incident because she feared for her daughter's safety and wanted to "fight for her rights."

Gosar's response came in a two-sentence email the next day: "Our college and campus policies don't allow us to handle 'internally' matters of this nature. I am forwarding your email to the authorities who will be contacting you shortly to help you pursue this further if that is your and [Lexi's] wishes." Gosar forwarded the email to athletic director Joel Bate, and Bate called College of Southern Idaho president Jerry Beck, who told "Outside the Lines" that he agreed with the decision to let the city police handle the allegation.

"We don't have people who are trained in dealing with that type of thing," said Beck, who retired last summer.

But the College of Southern Idaho had what's known as a Title IX coordinator, someone whose job is to investigate gender equity complaints, including cases of sexual assault.

That coordinator is Monty Arrossa, and he said the first time he heard about Mallory's alleged assault was when "Outside the Lines" made a public records request this year for documents related to Swilling. Arrossa said the former president never informed him or the former dean of students.

"We should have contacted the student. We should have investigated this," he said. "Because that's our policy."

It's also federal law.

Beck, the former president, said he was aware of Title IX and that he believed at the time that he satisfied the need for an investigation because "an investigation was conducted by the city police on behalf of the college." But the law doesn't allow for that and requires a college to investigate regardless of what a law enforcement agency does or doesn't do.

Mallory ultimately recanted her story to police but told "Outside the Lines" she did so only because the investigation had become too traumatic for her and she was intimidated after learning that Swilling had hired an attorney.

"That fact pattern is enormously distressing to me," said the Department of Education's Lhamon after hearing some details of how the Idaho college responded. "That people are coming forward and saying that there's something wrong, that shouldn't have happened, and that the school says that, 'We can't handle that.' Those are the bad old days. We should not be living there today."

Mallory said she constantly worried about running into Swilling on the small, tight-knit campus and dropped out of school after winter break. She assumed that because he was a basketball player, "If we would have signed up for the same class, I would either have to stay in class with him or switch my schedule. ... I didn't want to risk it."

The college's Title IX coordinator Arrossa said it was "devastating" to hear Mallory had dropped out.

"The whole crux of Title IX is to keep a student whole and keep them safe and secure in their academic endeavors," he said.

Mallory has yet to finish her degree. She moved to Boise, where she works in retail and cares for her infant son. She was holding him in the kitchen one day in March when her mother called her with some news.

"I immediately fell to the ground," Mallory said.

Her mother told Mallory that a detective in Tulsa, Oklahoma, was investigating a report of a rape of a student at the University of Tulsa -- and Swilling was the suspect.

After finishing up at the junior college, Swilling had enrolled at the private, Division I university in northeast Oklahoma to play for new head coach and retired NBA player Danny Manning.

On Feb. 11, 2012, Tulsa student Abigail Ross filed a complaint with campus security that Swilling had raped her in his apartment two weeks earlier. On Feb. 18, she filed a report with Tulsa city police and a petition for a protection order in which she described what happened after she went over to Swilling's apartment.

In addition to filing the reports with the school and police, Ross' family retained the counsel of prominent Title IX attorney John Clune, who is also representing the woman who accused Florida State football player and Heisman Trophy winner Jameis Winston of sexual assault.

Tulsa campus security forwarded its reports to the Office of Student Affairs on March 17, followed by a hearing with both students, but Ross' lawsuit alleges that Tulsa fell short in its investigation because officials did not take into consideration prior allegations against Swilling and still has not investigated other claims. Had officials done that, the lawsuit states, Ross likely wouldn't have been assaulted and wouldn't have had to drop out of school because she didn't feel safe on campus with Swilling.

The lawsuit states that the university wouldn't issue a "no contact" order to prevent Swilling from interacting with Ross, but officials did say she could have a campus security escort. Clune said that after Ross ran into Swilling at the university's fitness center and got scared, she called for an escort, "and they said, 'Can't you just take the shuttle?'"

"Outside the Lines" spoke to another former University of Tulsa female athlete -- who has since graduated and asked that her name not be published -- and she said Swilling sexually assaulted her in the summer of 2012 and that she reported it to campus security but did not follow through with law enforcement. She refused to answer any further questions, saying she wanted to put the incident behind her, and in a text message to a reporter wrote, "He knows what he has done and who [he] has done it to."

It's unknown whether Tulsa investigated her report, but the woman said no one from the university ever talked with her about it.

Swilling was suspended from the team by Manning on Feb. 12, 2014, because of the Ross investigation. Six weeks later, Tulsa dean of students Yolanda Taylor cleared Swilling.

Taylor was provided with information about the sexual assaults reported by Mallory and the former Tulsa female athlete, but she made a point in her March 31 ruling to say that she was not using any "prior sexual history" to make her determination. Instead, she decided based largely on a series of text messages between Ross and Swilling before the incident in which she said Ross wasn't clear enough that she didn't want to have sex.

"You noted that as you lay on Mr. Swilling's bed, 'he rolled over, grabbed your rear end and said you have a big butt for a white girl,'" Taylor wrote in her letter to Ross. "You stated this made you feel uncomfortable and caused you to scoot away from him and off the bed. However, in a text message dated January 20, 2014, Mr. Swilling made a similar statement, 'I didn't know white girls had ass like that,' and you responded with, 'Haha thanks.'"

The last finding Taylor cited was that Swilling said Ross made him "pinky promise" that he would not tell anyone the two of them had sex, and his description of linking pinkie fingers and kissing a thumb was how Ross' friend described how Ross typically performed a "pinky promise."

"Based on the inconsistencies in your testimony, I have determined there is insufficient evidence" to show Swilling was at fault, Taylor wrote to Ross.

In late April, the Tulsa district attorney's office declined to press charges against Swilling. His attorney, Corbin Brewster, said Ross' allegations were not credible.

"Everyone who analyzed the credibility of those accusations came to the same conclusion," Brewster said. "Patrick Swilling Jr. has consistently and firmly denied all of the accusations of sexual assault against him. ... Two independent and thorough investigations resulted in the same conclusion: The accusations were not credible. ...

"If anything is newsworthy about this situation, it is the sad fact that false accusations of sexual assault can be devastating to the person accused. Patrick had to withdraw from classes last semester due to the stress and demand of responding to the false accusations."

Swilling is waiting to be cleared academically by the NCAA so he can play football for Tulsa this fall. Ross withdrew from Tulsa in the spring and moved home.

University of Tulsa officials declined an interview request from "Outside the Lines" to discuss Swilling's case. The College of Southern Idaho is mentioned in the lawsuit but is not named as a defendant.

College of Southern Idaho Title IX coordinator Arrossa told "Outside the Lines" several weeks ago the way the Swilling allegations were handled has prompted the school to review its policy and start mandatory Title IX training for key faculty and staff members, including athletic department staff and coaches.

"This has been a good exercise for us because it made us look at our policy," he said. "This won't happen again."

Nicole Noren, a producer in ESPN's enterprise/investigative unit, contributed to this report.

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