TRAVERSE CITY — A local law firm is hopeful that a recent opinion in two campus assault cases will have a far-reaching effect on Title IX claims.
Jonathon N. Fazzola is the Traverse City attorney representing Tessa Farmer and Sara Weckhorst, who were both raped while students at Kansas State University.
The women separately filed lawsuits against KSU, claiming that the university took no action after they reported their assaults, violating their rights under Title IX by making them vulnerable to further sexual harassment and discrimination by their assailants, who were students there.
The university had filed a motion to dismiss the case, arguing that no further incidents took place regarding the two women. The motion was denied by the district court and was appealed to the U.S. Court of Appeals 10th Circuit, which upheld the lower court’s decision.
The opinion, written by the Honorable David M. Ebel, reaffirms a 1999 Supreme Court decision that a person does not have to be raped again in order for the university to be in violation of Title IX — they just have to be made vulnerable to further harassment and assaults.
“What would the point of Title IX be then?” Fazzola said. “What ends are we achieving?”
Within days of the decision, it was used to argue a similar Michigan State University case in which four students claimed their Title IX rights were violated.
“Almost the first words out of the attorney’s mouth were to bring up the opinion in our case,” Fazzola said. “We’re hopeful that this opinion becomes instructional for cases around the country.”
Title IX, passed in 1972, prohibits discrimination on the basis of sex in any education program or activity that is receiving federal funds. That discrimination includes sexual harassment, rape and sexual assault.
“The courts have said after the school knows about the sexual assault or harassment under Title IX, schools can’t be deliberately indifferent to it,” Fazzola said. “In other words, they can’t turn a blind eye.”
After an assault is reported, educational institutions will often issue a “no contact” order between the victim and the alleged assailant while an investigation is being done, Fazzola said.
In the Farmer and Weckhorst cases, KSU did not, he said.
Fazzola, 38, is with the Fierberg National Law Group, which has offices in Traverse City, the District of Columbia and Colorado. The firm, founded by Douglas E. Fierberg, represents victims in hazing, gun violence and campus sexual assault cases across the country.
A 2010 graduate of the University of Michigan Law School, Fazzola joined the law firm in 2016.
The Farmer and Weckhorst cases stem from sexual assaults that took place in 2014 and 2015 at fraternities connected with KSU.
Both women claim that while they were not assaulted again, KSU’s inaction caused them to have to continue attending school with their rapists, which deprived them of educational opportunities available to all KSU students.
The facts of the assaults, which are not disputed, are laid out in Ebel’s opinion.
Farmer had sex at a fraternity house with a student she knew from high school. Afterward a student she did not know came out of a closet in the room where he had been hiding and raped her.
Weckhorst was raped in a truck by a student who offered her a ride home while several students watched, taking video and photos that were later posted on social media. The student raped her several times before taking her back to his fraternity and leaving her naked in a “sleep room,” where another student later raped her.
Farmer, after reporting the rape, began missing classes, withdrew from school activities, became depressed and attempted suicide. Weckhorst was afraid and hyper-alert, becoming panicky and terrified of every man who passed her on the sidewalk.
The two women claim that by not investigating the rapes KSU sent a message to fraternity members that students can rape other students without fear of repercussion.
Both women were intoxicated when they were raped, one to the point of blackout. But Fazzola said rape is one of the only violent crimes in which the victim may be seen as at fault. It’s a ridiculous notion, he said.
“If a person is drunk and passed out do they deserve to be beat up? If someone comes into their room and beats them up are they responsible?”
Between 20 percent and 25 percent of female college students will be the victim of rape or attempted rape; more than half will not report the incident, according to the U.S. Department of Justice.
Only about 2 percent of all sexual assault accusations reported to police turn out to be false, which is the same rate of false reporting as other violent crimes, according to the DOJ.
In addition to Title IX cases, the Fierberg law firm currently has five hazing death cases and another three where students had significant injury — two of which were near death — as a result of hazing. The firm also represents families of students killed in mass shootings.
“These are compelling cases representing real people with the opportunity to make the law better,” he said.
Clients often tell Fazzola that they just want to make sure that what happened to them does not happen to anyone else or to anyone else’s child.
The job is extremely fulfilling, he said.
“It’s being able to help real people on a daily basis who have gone through some of the most horrible things you can imagine and helping them to achieve accountability, justice and reform.”