The University of Utah could have protected Lauren McCluskey from her attacker — but chose not to, her family’s attorneys say in new court filing

(Trent Nelson | The Salt Lake Tribune) Matt and Jill McCluskey at a news conference announcing the addition of former Utah Supreme Court Justice Christine Durham to their legal team, in Salt Lake City on Monday, Nov. 25, 2019.

Several employees at the University of Utah knew the man was harassing and extorting, even threatening and abusing, student track star Lauren McCluskey. And they had several opportunities to step in and stop him.

University staff could have removed Melvin S. Rowland from campus, called his parole officer, arrested him for any of the felony-level crimes McCluskey and her friends were alleging or, at the very least, helped her get a protective order. They could have, but they didn’t. And McCluskey was murdered two weeks after first reporting her concerns about him.

For that failure to respond — regardless of who her attacker was or why he was on campus — the school needs to be held liable, according to a new filing Monday from the attorneys representing McCluskey’s parents.

The argument is the latest in their lawsuit filed against the university in June and comes in response to the U. asking a judge to dismiss the case entirely.

“We offer many reasons to show that the University of Utah police, and other officials and staff at the university, could have prevented Lauren’s murder,” said her mom, Jill McCluskey, during an emotional news conference Monday about the new filing. “They did not believe her and were dismissive. … Now they’re hoping people will forget about Lauren.”

In addition to the legal response, the McCluskey family announced, too, on Monday that former Utah Supreme Court Chief Justice Christine Durham will join their legal team.

So far, a key argument in the case has focused on Title IX and what the anti-discrimination law says about liability at schools. And it’s why Rowland’s identity and his role on campus has become central.

The university asked a judge to dismiss the lawsuit in September, arguing that under the law, it had no obligation to step in because Rowland wasn’t a student or employee and McCluskey was the one who invited him to campus. As such, they say they had no control over the attacker.

The documents filed Monday by the family’s attorneys counter that, contending Title IX does not include any provision that limits liability “based on the harasser’s identity.” Instead, the university is required to provide protection when it knows about harassment and has the authority and ability to intervene, said attorney Jim McConkie. In this case, the school — including employees in the housing department and campus police — had several reports but did little to act on the information.

“Title IX requires schools to adequately respond to credible reports of sexual harassment and to take remedial action against the harasser, even if the harasser is not faculty, staff or another student,” the latest filing said.

The family’s attorneys point to a 1999 ruling by the U.S. Supreme Court that found a Georgia school could be held responsible for not stopping harassment when it impacted a student’s education and administrators failed to intervene when they had the opportunity.

A school could still be sued for the actions of “nonagents” — defined as visitors who are not employees or students — under Title IX, the court ruled, if the school had “adequate notice” of the problem and “control” to stop it.

“In this case, Lauren and her close associates and friends contacted university authorities in the campus police office and housing office over 20 times,” Durham added.

Durham continued by noting the university’s officers could have investigated Rowland and, if they had, might have found out he was on parole. Some of McCluskey’s allegations could have led to his arrest for violating the terms of his release. But U. police never realized he was recently released from prison. They also could have helped her by getting her a new dorm room or providing surveillance.

“The university had all kinds of avenues to explore,” she said. “It did precisely nothing with respect to any of those avenues."

Jill and Matt McCluskey filed their $56 million lawsuit against the university in June, alleging that campus police could have prevented their daughter’s killing. McCluskey, a 21-year-old student-athlete, was fatally shot outside her campus dorm on Oct. 22, 2018, by Rowland, a 37-year-old registered sex offender on parole whom she had briefly dated. He died by suicide hours later.

McCluskey had contacted campus police to report harassment — and his threats to release compromising photos of her. Many of those concerns were not taken seriously, independent investigators later found.

Her friends, too, told housing officials they were worried about McCluskey, had seen unexplained bruises on her arms and heard Rowland talking about bringing a gun to campus. But those reports never went anywhere. (The university said it isn’t liable because McCluskey didn’t directly report them herself.)

The latest filing, though, says that doesn’t relieve the university of its obligations. And it brings up new information, too, alleging that Rowland sexually assaulted McCluskey on the night she broke up with him, holding her hostage in her dorm room — and that was also reported to the staff.

It states: “The university knew about Lauren’s sexual abuse and harassment and dismissed her friends’ concerns that it could escalate into violence, even homicide."

McConkie said the new evidence has come up in recent months as people have reached out to his office. To include such information and recent news reports, the attorneys for the family have asked for permission to file an amended complaint, as well. Their claims also include constitutional violations for gender discrimination.

The university has faced criticism over the past year, including a walkout by students and a protest at a football game, for failing to take concerns from women seriously. Students have questioned whether police would help them and say the U. has victim-blamed with its response to McCluskey’s murder.

The U. responded with a statement Monday, saying that day “was a pivotal moment” that has led to improved safety on campus.

It added in its statement Monday that its motion to dismiss wasn’t meant to imply “Lauren McCluskey had any responsibility for the heinous actions of her murderer.” The school said it’s willing to settle the case out of court and reached out to the McCluskeys in July to start those discussions.

“Since then, the U. has researched and suggested six highly qualified potential mediators,” the statement says. “The family’s attorneys have said they will respond to the request for mediation in 2020.”

Durham said the McCluskeys are also open to a settlement as long as it includes “a systemic revolution” at the university and others nationwide for handling women’s safety. The changes the U. has already made are a good start, she added, but are nothing “without an acknowledgment to the degree to which the university failed and the depth of the systemic problems.”

The lawsuit “was a last resort for us,” said Jill McCluskey, "but now we intend to pursue it vigorously.”

Her husband, Matt, added: “We’re not interested in any personal profit or even vendetta. We just want to make the system safer for everyone, especially women. In doing so, it will honor the life of our daughter.”