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Staff photo-Rod Aydelotte

Baylor University and former football coach Art Briles each filed new motions this week to dismiss the civil rights lawsuit brought by former Baylor student Jasmin Hernandez.

The motions to dismiss claim an individual school employee cannot be sued under Title IX and that the statute of limitations has passed for Hernandez to file suit. Documents also claim a university can’t be held liable for criminal acts perpetrated by students against other students off campus.

Baylor and Briles had previously filed motions to dismiss in the case. This week’s filings are in response to Hernandez amending the lawsuit last month.

Irwin Zalkin, one of Hernandez’s lawyers, said he had not yet reviewed the new filings.

However, Zalkin said, Baylor cannot ignore the obligations that come with Title IX and then try to use a Title IX protection.

“You cannot act with unclean hands and then raise the statue of limitations,” Zalkin said.

Former Baylor football player Tevin Elliott raped Hernandez on April 15, 2012, while both were Baylor students. Elliott, who was on the football team at the time, was sentenced in 2014 to 20 years in prison. The lawsuit filed in March names Baylor, Briles and former Athletics Director Ian McCaw as defendants.

Hernandez, who has since left Baylor, alleges the university mishandled her case and those of three other women who reported they were sexually assaulted by football players. Her amended suit added a fourth woman, who alleges she was gang-raped by Baylor football players in 2011. It also adds findings of the nine-month investigation by the Pepper Hamilton law firm. The law firm outlined a “fundamental failure” by university officials at all levels to properly handle sexual assault allegations.

Starr was removed as president amid Baylor’s national sexual assault scandal and later resigned as chancellor after the investigation’s findings were announced. McCaw resigned after the school sanctioned him and placed him on probation.

Hernandez is the only woman identified by her real name in the lawsuit. The Tribune-Herald does not normally identify sexual assault victims, but Hernandez has given permission for her name to be used.

Baylor’s motions

Baylor’s motion to dismiss states that “although the University condemns Elliott’s reprehensible, criminal acts, dismissal is warranted because plaintiff has failed to state a claim for which relief can be granted.” The document also emphasizes Hernandez’s claims don’t meet time requirements.

“Further, while Baylor is concerned for the welfare of all of its students, it is well settled that institutions of higher education may not be held liable in damages for criminal acts perpetrated by students against other students at a private, off-campus party unaffiliated with the institution,” the document states.

“Thus, even if it were foreseeable that football players ‘could rape a fellow students after a party where alcohol was served,’ courts have been unwilling to make colleges liable for damages caused by third parties because the trade-off would be onerous restrictions on the freedom and privacy of students,” the document states.

Although Hernandez claims she was “entrusted” to Baylor’s care, the allegation is not supported by facts, according to the motion to dismiss.

Documents state that Baylor denies Hernandez’s version of events, including her allegation that the university was aware of six or seven other sexual assaults by Elliott before April 15, 2012. Documents continue that Hernandez’s complaint was filed nearly four years after the assault, past the statute of limitations for claims under Title IX, which is two years.

“The amended complaint shows that, in April 2012, Hernandez was aware of her own injury, was aware of Baylor’s alleged inaction and was never deceived into thinking she had not been assaulted,” according to the document.

It also states that even if there had been grounds to suspend Elliott before April 15, 2012, that would not have prevented him from attending an off-campus party.

Zalkin disagreed with Baylor’s claims that the statute of limitations began that early.

“The time when statute begins to run was when she discovered the football program had this epidemic problem,” he said, referencing the publication of an ESPN article.

Zalkin said the claim’s statute of limitations began when Hernandez learned ”of the policy of indifference of the university toward the sexual assault of women in the football program.”

Briles’ motions

Briles’ motion to dismiss states Hernandez’s complaints include few factual allegations against him and are full of hearsay, conclusions without supporting facts, and media reports.

“The essence of plaintiff’s complaint of negligence is that defendants had a duty to take reasonable measures to protect plaintiff as an adult student at Baylor University and to supervise, discipline or control the conduct of other adult university students, including one accused of prior multiple sexual assaults or incidents of sexual harassment, while socializing at a non-university organized or sponsored party . . . held off-campus at a private apartment complex,” the motion to dismiss states.

The document also states Title IX applies only to entities that receive federal funds. Title IX is a federal statute that prohibits gender discrimination in education programs that receive federal aid. Because individual university employees don’t receive the money, someone can’t state a claim against an individual, according to Briles’ motion.

Zalkin said there’s clearly a misunderstanding with the claim. He said Briles is not being sued under Title IX. There are multiple claims in Hernandez’s lawsuit, including a Title IX claim against the university and a negligence claim against Briles, McCaw and Baylor.

David Tekell, who is representing Briles, is out of the office and unavailable until Tuesday, his office staff said.

Hernandez’s lawsuit alleges Baylor officials knew of Elliott’s proclivity toward sexual violence and were indifferent and insensitive after she reported the sexual assault.

Briles’ response states it is established in Texas that, as a general rule, an individual has no legal duty to protect another individual from the criminal acts of a third person.

While Hernandez is suing for damages, the only expressed statutory remedy for a violation of Title IX is termination of funding, the motion to dismiss states.

Another Baylor football player, Sam Ukwuachu, was convicted of sexual assault last year. The school reached an undisclosed settlement with Ukwuachu’s victim before any civil lawsuit was filed in the case.

The school now faces three Title IX lawsuits, representing eight women.

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