The Utah attorney general’s office defends its motion to dismiss the McCluskey lawsuit

It's a standard response to a lawsuit, and nothing more.

It’s not a blanket statement about how the University of Utah feels about track star Lauren McCluskey’s killing, they say. And it’s not a statement about how the U. police see their job.

That’s what the Utah attorney general’s office said in a Friday afternoon statement as it waded into the controversy surrounding a $56 million lawsuit lodged against the university by McCluskey’s parents.

The university has faced criticism this week — including from its own students — after it filed a motion asking a judge to toss the suit. In response, student leaders condemned the administration in a resolution, which went on to criticize how it handled fears reported by McCluskey, denied responsibility after her killing and created an atmosphere in which students worry campus police won’t protect them.

The attorney general’s office is tasked with representing the university and other government entities in court. On Friday, it defended its decision to ask a judge to dismiss the lawsuit filed by Jill and Matt McCluskey and the arguments they relied upon.

They said filing a motion to dismiss a lawsuit is a “common response” in these circumstances.

They targeted their Friday statement to McCluskey’s attorneys, who last week said that the University of Utah’s filing took the position that “every claim and every concern expressed in Lauren McCluskey’s complaint is without merit.”

The attorney general’s office disagreed with that assessment, saying the legal filing simply argued the school’s position that neither Title IX nor the U.S. Constitution permits monetary lawsuits when campus police or staff do not prevent a student from being harmed.

"This does not mean that the University did not listen to the concerns expressed by the McCluskey family, or that it is not taking responsibility for its students’ safety," the statement reads. "Since Lauren’s death, University representatives have repeatedly met with the McCluskeys and many other campus constituents, and the University has taken specific steps to make the campus safer and to ensure its police officers are more responsive to potential relationship violence, including restructuring the campus police department and providing training to its police officers."

The Friday statement also said the university’s response to the lawsuit “was not meant to, and did not, blame the victim, dismiss the important issue of campus safety, or minimize in any way the terrible tragedy of Lauren McCluskey’s death.”

McCluskey, a 21-year-old student-athlete, was fatally shot outside her campus dorm on Oct. 22 by Melvin S. Rowland, a 37-year-old registered sex offender on parole whom she had briefly dated. He died by suicide hours later.

(Trent Nelson | The Salt Lake Tribune) Photos of Lauren McCluskey on display as It's On Us Utah hosts a celebration of McCluskey's life at the University of Utah in Salt Lake City, Friday Oct. 26, 2018.

She had contacted campus police several times in the weeks before to report harassment — and his threats to release compromising photos of her — after ending their relationship on Oct. 9. Many of those concerns were not taken seriously, independent investigators found, and the department had failed to train officers how to recognize the warning signs for escalating domestic violence.

McCluskey's parents argue in the lawsuit that campus police could have prevented their daughter's killing.

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 then-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.

The U.'s motion reads: "There is no clearly established constitutional requirement that a university protect its students from sexual harassment perpetrated by visitors to campus who are not under university control.”

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 argued.

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 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.

The school’s legal response has left some of its students angry. Besides the student governments’ resolution, two U. students created an anonymous Instagram account where students have shared their concerns about McCluskey’s killing and their thoughts on the U’s response. Some students plan to wear purple to the U.'s homecoming game Saturday — a color often used to represent domestic violence victims.