(Editor's note: This story has been updated. An earlier version incorrectly reported that a magistrate judge rejected Southern Illinois University Edwardsville's motion to dismiss, and misidentified a defendant as an SIUE employee. The Record regrets the errors).
BENTON - A lawsuit claiming a university and staff members did not respond adequately to a rape allegation by a student has been dismissed following a motion by defendants.
But a college student who alleges she was raped inside her campus accommodations can move forward with her suit against one of the individual defendants - Ashley Cox - which the university states is, and was, not an employee.
Magistrate Gilbert Sison, however, also ruled that plaintiff Bailey Reed may refile her complaint by Oct. 25.
Bailey Reed has alleged the university and three staff members "engaged in a course" of gender discrimination and violated her constitutional rights following the alleged October 2017 sexual assault.
Staff, it is alleged, attempted to persuade Reed to drop the allegation, then investigated and ultimately found in favor of the alleged attacker, Sison's order noted.
The plaintiff argues that the college failed to investigate her alleged attacker's actions, failed to discipline him, and failed to "adequately train and supervise" staff members involved following the claimed assault.
Cox's motion to dismiss centered on the overarching argument that Reed failed to state a claim, that her complaint was dealt with under Title IX provisions on gender discrimination, and the defendant was not a "state actor."
Sison found there was a "plausible" claim for relief, noting the Supreme Court has said Title IX is not the "exclusive mechanism" to tackle gender discrimination and is not a substitute for filing a suit, and that the defendant was a state employee.
The action has its roots in an exchange between the plaintiff and another SIUE student in which the pair exchanged "friendly" and "flirty" messages, which included one where the alleged attacker asked: "Do you think I'm respectful?" She replied, "From what I know, I think you're a great guy."
Shortly after, he invited himself over to her accommodation. Although the plaintiff did not invite him, she did not object as she liked him, the complaint states.
The plaintiff signed the fellow student into the building, and allowed him to come to her apartment. Once in the apartment, the male student is alleged to have grabbed her. They kissed, but she quickly told him she did not want to have sex, according to the complaint.
"He ignored her and picked her up and threw her onto her bed. He proceeded to sexually assault her despite Reed repeatedly telling him 'no' and crying," her complaint states.
Later, after discussing the situation with a friend and her mother, she went to Anderson Hospital to report she had been raped.
The defendant in the present action to dismiss was assigned to liaise with the student, but allegedly told her she worked for Call for Help, a rape support organization with links to the university. The plaintiff stated she found out the defendant worked directly for the university via an Internet search a year after the alleged assault. The university denies she was ever an employee.
It is alleged that defendant Cox told Reed that she did not have to report the rape. Reed alleges she wanted to do so and went to the university police department. The defendant allegedly described how difficult the criminal case would be and asked again whether she wanted to move forward with the criminal complaint.
The university allegedly then told Reed the university's Title IX office would be informed of the situation, but no one called her.
The Title IX office investigated the complaint then, 100 days after the sexual assault was reported, ruled in favor of the attacker, finding that the plaintiff liked him, enjoyed his attention, had been "flirty," did not act like a rape victim and that her timeline was confused.
Reed appealed to the sexual harassment panel, which overturned the decision,according to the court filing, which also detailed how the SIUE chancellor reversed the panel's decision, and the board of trustees refused an appeal on procedural grounds.