The University of Utah’s response to the lawsuit filed by the parents of Lauren McCluskey: Dismiss everything

(Jeremy Harmon | The Salt Lake Tribune) Lauren McCluskey's parents, Matt and Jill McCluskey, hug some of their daughter's teammates after a vigil at the University of Utah on Wed. Oct 24, 2018. McCluskey was killed on campus on Monday.

The University of Utah is asking a judge to dismiss the lawsuit filed against it by the parents of slain track star Lauren McCluskey, suggesting that — “no matter how heartbreaking” — its officers had no obligation to protect McCluskey from her attacker.

In court papers filed late Friday, the school’s attorneys argue that her killer wasn’t a U. employee or student and had no connection to the university, so it is not responsible for his actions. And, they add, he was often on campus only because McCluskey had, at times, willingly invited him to her dorm room.

“[Liability for this] would require that schools be guardians of every student’s safety from any act of relationship violence, no matter where the act arises or who perpetrates it,” the university’s filing concluded.

The motion to dismiss the case is the first response to come from the school since McCluskey’s parents filed the $56 million civil rights lawsuit in June alleging that campus police could have prevented their daughter’s killing. The response suggests that the U. intends to fight the allegations, at least for now, rather than settle. The school is being represented by the Utah Attorney General’s Office.

Chris Nelson, the university’s spokesman, declined to comment further on that and said he’d let the court document speak for itself.

The university’s response largely focuses on the man who attacked McCluskey. The student-athlete had briefly dated Melvin S. Rowland, a 37-year-old registered sex offender on parole, before breaking up with him when she discovered he was lying about his name, age and criminal history.

Shortly after ending the relationship, McCluskey contacted campus police several times to report that he had begun harassing her and threatening to release compromising photos of her. He extorted her to pay him $1,000, she told officers.

Many of those concerns were not taken seriously, investigators found. A detective didn’t investigate the case until after McCluskey was killed on Oct. 22. And an officer that she had talked to hours before her murder never relayed to anyone that she was worried about Rowland coming to campus.

The U.’s motion, though, noted: “Rowland walked onto campus not at the university’s invitation, but to harm Ms. McCluskey.” And, they said, they couldn’t have stopped that.

Particularly because he was not affiliated with the U., it added, the school is not liable for the domestic violence and only he is the “actual perpetrator” of the crime; to hold the university accountable would be “unprecedented and unwarranted.”

It adds that campus has 50,000 employees and students and sees more than one million visitors a year. There are hundreds of buildings and 1,500 acres of space.

“The university had no more control over Rowland than it has over any other member of the public at large,” it added.

McCluskey’s parents strongly dispute that and believe the university had a responsibility to help their daughter when she asked police there for protection. In a statement Saturday morning, Jill McCluskey wrote: “A flaw in that argument is that the university has a campus police force with police powers. Police can exercise control over a felon on parole.”

And, she noted, because she lived on campus, her daughter’s only access to police was the U.’s department; if officers there cannot help when a student is in danger — regardless of who the attacker is — they shouldn’t have a police force.

In fact, Lauren McCluskey had twice called Salt Lake City police’s dispatch line to report her concerns when she felt the university’s officer weren’t listening. And she was both times referred back to the campus department.

The family’s lawsuit claims that Lauren’s death was avoidable and accuses the university and staff there of failing to respond. It was filed against the officer and detective assigned to the case, as well as the school’s Police Chief Dale Brophy and officials in the housing department. It also names the state, which funds the public school.

The biggest thrust of their complaint is that the U. failed in its obligation to follow Title IX, the federal law that requires schools to swiftly investigate reports of sexual violence and provide services to individuals who report discrimination. It also prohibits gender violence. The family had said that police and other university officials didn’t prioritize Lauren’s concerns because she was a woman.

The university responded that, in order to qualify for protection under the law, the harassment has to be committed by someone affiliated with the school— an employee or a student. Rowland was neither. So the U. had no control over him.

Additionally, the university claims its staff members should be granted immunity. The family’s lawsuit, the motion argued, doesn’t provide enough evidence to prove that anyone at the school discriminated against McCluskey based on her gender. And — though staff may have under-reacted to her concerns— no one showed “deliberate indifference.”

“None of the university staff members had sufficient information, or the ability in most cases, to prevent Rowland’s contact with Ms. McCluskey,” it noted.

McCluskey’s friends had told housing officials that Rowland had talked about bringing a gun to campus. But the staff never passed that information on to police.

Still, the university argued that McCluskey never brought up those concerns, herself, with housing staff and never asked that Rowland be banned from the dorms — where she had invited him to stay on several occasions.

Jim McConkie, the attorney representing the McCluskey family, said by filing this motion, he believes the university is saying that it “bears no responsibility for the murder of Lauren McCluskey.” He added: “This simply is not true.”

He added that McCluskey and her friends asked for help more than 20 times. And each time they reported allegations against Rowland that could have been felonies — including stalking and blackmailing. But police never discovered Rowland was on parole for felony sex abuse, though he could have been sent back to prison for violating the terms of his release.

The university, in its response, said that while the police department may have had some deficiencies, it had trained its officers and fulfilled its obligations there.

It wrote: “A terrible tragedy, no matter how heartbreaking, does not necessarily compel legal liability.”