RECEWED
`THE STATE OF SOUTH CAROLINA 86 OCT 2 9 2815
`In The Court ofAppeals
`Court ofAP
`A
`A
`Peels
`
`*
`
`APPEAL FROM CHARLESTON COUNTY
`
`Court of Common Pleas
`
`R. Markley Dennis, Jr., Circuit Court Judge
`
`Appellate Case No. 2015001505
`
`John Doe 2 .......
`
`.....................................................................
`v.
`
`...................................... ..Appellant,
`
`The»Citadel .........................................
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`...... ..-. ......................................................................... ..Respondent.
`
`RECORD ON APPEAL
`
`VOLUME II OF IV
`
`W. Mullins McLeod, Jr.
`
`Jacqueline LaPan Edgerton
`McLeod Law Group LLC
`P.O. Box 21624
`_
`
`Charleston, South Carolina 29413
`
`(843)277-6655
`
`'
`
`Attorneys for Appellant
`
`M. Dawes Cooke, Jr.
`
`Randall C. Stoney, Jr.
`John W. Fletcher
`
`,
`
`Bamwell, Whaley, Patterson & Helms, LLC
`P.O. Drawer'H 3
`L
`'
`
`Charleston, SC 29402
`843-577-7700
`
`Attorneys for Respondent
`
`

`
`INDEX
`
`Order Denying Defendant’s [The Citadel] Motion for Summary Judgment, December 9,
`
`2014 .................................................................................................................................... ..3
`
`Form Order, June 5, 2015 ................................................................................................ ..70
`
`Order Granting‘ Defendant’s [The Citadel] Renewed Motion for Summary Judgment, July
`
`6, 2015 ............................................................... ., ............................................................. ..71
`
`Complaint, March 19, 2012 .............................................. .-. ............................................. ..84
`
`.............,..................................'...............106 .
`Answer, June 20, 2012 ....................................
`Hearing Transcript, April 18, 2014.............................................................
`............
`19
`
`Hearing Transcript, June 5, 2015 ................................................................................... ..l44
`
`g Notice of The Citadel’s Motion for Summary Judgment, March 6, 201.4 .......................l 71
`
`The Citadel’s Memorandum in Support of Motion for Summary Judgment, April 17, 2014,
`
`and all exhibits thereto ........... ..; ...... .; .................................................. .; ......................... ..176
`
`Doe 2’s Memorandum in Opposition to Motion for Summary Judgment, April 18, 2014,
`
`and all exhibits thereto ..................................
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`............................................................... ..478
`
`Doe 2’s Reply in Opposition to Motion for Summary Judgment, April 18, 2014, and all
`
`exhibits thereto .......................................
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`.................................................................... ..1335
`
`1 Doe 2’s Supplemental Response in Opposition to Motion for Summary Judgment, April
`
`18, 2014, and all exhibits thereto ..........
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`........;..............................................................1355
`
`The Citadel’s Supplemental Memorandum in Support of Motion for Summary Judgment
`
`‘Concerning the Existence of a Duty of Care, April 28, 2014, and all exhibits thereto .1535
`
`The Citadel’s Notice of Motion and Renewed Motion for Summary Judgment, April 24,
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`2015, and all exhibits thereto ............................................................
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`...........................1575
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`

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`Doe 2’s Memorandum in Opposition to Renewed Motion for Summary Judgment, June 4,
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`20l5,Land all exhibits thereto .................................... .. ...................... .L ......................... ..l 825
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`The Citadel’s Supplemental Memorandum in Support of Renewed Summary Judgment,
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`June 4, 2015, and all exhibité thereto ................................... .: ...................................... ..1s77
`
`

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`and prudence would have known that the intentional concealment of a child molester leads to the
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`reasonable foreseeability that children will continue to be sexually abused. Defendant’s own
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`expert, ‘Mr. Margolis, testified that he is not aware of any child sexual predator who stopped
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`molesting children without being arrested or dying, and he is not aware of any peer-review studies
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`that suggest a child molester willstop or decrease acts ofmolestation before being caught.
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`(E_xhibi_t
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`90 Gary Margolis Deposition, February 2014, p. l4:13- p. 15:4).
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`As such, The Citadel’s intentional and reckless conduct, or gross negligence, may be
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`inferred from the facts established in this case that show that The Citadel failed to exercise due
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`care that a person ofordinary prudence and reason would have in light ofthe probability of further
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`child sexual abuse by ReVille. _s_eg @, 134 S.E.2d at 251.
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`A. The Citadel’s Own Policies And Procedures Establish That It Violated The
`Standard Of Care Owed.
`
`The existence of ‘a duty is not to be oonfiised with the standards of care establishing the
`extent and nature ofthe duty in a, particular case. S_ee Madison ex rel Bgant, 638 S.E.2d at 656.
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`The standards of care are grounded in common law, statutes, regulations, or a defendant’s own
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`policies and guidelines, which allow a fact finder to judge whether a duty was breached or not. Q
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`“The precise extent and nature of that duty, which is grounded in relevant standards of care, and
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`whether the duty was breached must be determined by a jury.” Q, 638 S.E.2d at 659.
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`To establish liability, it is sufficient to establish that a defendant “should have foreseen his
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`negligence would probably cause injury to someone,” and “[h]e may be held liable for anything
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`which appears to have been a natural and probable consequence of his negligence.” Greenville
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`Memorial Auditorium, 391 S.E.2d at 548 (citing Childers v. Gas Lines lnc., 149 S.E.2d 761 (S.C.
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`1966)). Stated another way by the South Carolina Supreme Court: “[f]oreseeability is determined
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`by looking to the natural and probable consequences of the complained of act, although it is not
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`24
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`501
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`

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`necessary to prove that a particular event or injury was foreseeable.” Madison ex rel Bryant, 638
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`S.E.2d at 662 (internal citations omitted).
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`In addition, “the plaintiff must prove the defendant’s
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`negligence was at least one ofthe proximate causes ofthe injury.” l_(L (citing Hughes v. Children’s
`
`
`Clinic P.A., 237 S.E.2d 753, 757 (S.C. 1977)). Proxirnate causation usually is one of fact for the
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`jury, which may be resolved by either direct or circumstantial evidence.
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`I_d_. (citing , 149
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`S.E.2d at 765; McNair v. Rainsford, 499 S.E.2d 488, 497 (S.C. Ct. App. 1998)).
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`When The Citadel received the 2007 report ofchild sexual abuse, it failed to follow its own
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`policies and procedures.
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`The Citadel’s deviation from its own policies and procedures
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`demonstrates its lack of due care under the relevant circumstances. SE3 Peterson v. National
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`Railroad Passenger Cogmration, CSX, and Southco Sweeping and Maintenance, Co., 618 S.E.2d
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`903, 906 (S.C. 2005) (holding company’s deviation from internal maintenance policies admissible
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`to show breach of duty owed).
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`“In negligence cases, internal policies or self—imposed rules are often admissible as relevant
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`on the issue of failure to exercise due care.” Caldwell v. K—Mart Corp, 410 S.E.2d 21, 24 (S.C.
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`Ct. App. 1992) (citing Eastern Brick and Tile Co. V. U.S., 281 F. Supp. 216 (D.S.C. 1986)); se_e
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`a_1s_o Madison ex rel Bggant, 638 S.E.2d at 659 (citing with favor the following in holding that a
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`defendant’s own policies establish standards of care: Elledge v. Richland/Lexington School Dist.
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`F_i\;_e_, 573 S.E.2d 789, 793 (S.C. 2002) (holding evidence of industry safety standards relevant to
`establishing standard of care in negligence case); Tidwell v. Columbia 11)/A,_Gas & Elec. Co., 95
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`S.E. 109 (S.C. 1918) (holding relevant rules of defendant admissible in personal injury suit
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`regardless of whether rules were intended for employee guidance, public safety, or both because
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`violation of rules may constitute breach of duty of care and proximate cause of injury);
`\
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`Restatement (Second) of Torts § 285 (1965) (standards of conduct of reasonable man may be
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`25
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`502
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`established by statute, regulation, court’s interpretation of statute or regulation, judicial decision,
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`or as determined by trial judge or jury under facts ofcase)).
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`The Citadel’s own policies created the standard of care upon which to judge its actions of
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`concealing the report of child sexual abuse in 2007.
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`First, if The Citadel had conducted an
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`investigation and not a deliberate concealment of the 2007 sex abuse report, it would have taken
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`action in accordance, rather than in contradiction of; its own policies and procedures and federal
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`law. The school’s “Serious Incidents, Memorandum No. 39,” dated April 2000, directed that
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`“[s]erious incidents are unexpected occurrences directly or indirectly involving The Citadel, which
`require a response or action fipm the college administration; or which have the potential to
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`generate positive or negative publicity regarding the college.”
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`(Exhibit 91 Serious Incidents
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`Mego, p. 1). Among the non-exclusive list ofexamples ofserious incidents is “criminal activity.”
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`(I_d.). The policy directs that when criminal activity involving someone afiiliated with the Citadel
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`as a suspect or victim occurs,
`the “first member of the Citadel community learning of the
`occurrence” will report it to the Public Safety Department. (IQ, p. 9-10) (emphasis added).
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`The Citadel’s General Counsel has ‘testified that if the Serious Incident Policy was in
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`effect—and evidence establishes it was—it applied to him. (Exhibit 92 Brandenburg Deposition,
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`p. 261 :5-1 1). He also agrees that the.Serious Incident Policy required the executive assistant, Col.
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`Trez, to be notified of the 2007 report of child- sexual abuse and that Col. Trez actually did have
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`knowledge of the 2007 report. Mr. Brandenburg also stated that the policy required the President
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`to be notified, which also occurred. (Exhibit 93 Brandenburg Deposition, p. 263). Furthermore,
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`Mr. Brandenburg acknowledges that per the policy, Col. Trez was to report allegations of illegal
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`or immoral activities to the Department of Public safety. (Exhibit 94 Brandenburg Deposition, p.
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`264:5-17). No report to the Department of Public Safety was ever made.
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`"26
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`503
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`The Citadel also ignored its policy that no time limit exists to investigating sexual
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`misconduct issues that arise out of the camp and that “[r]egardless of validity of the violation, any
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`sexually inappropriate conduct reports concerning any camper or employee of the camp will be
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`turned over to the Citadel Public Safety Department and a thorough investigation will be
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`conducted.” (Exhibit 63 Summer Camp Official Camp Policies Regarding Sexual Misconduct
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`I_ss_ut=,_s) (emphasis added). Moreover, President Rosa’s public proclamation for the Citadel
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`community to report immediately “any criminal offense, suspected criminal activity, or other
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`emergency directly to Citadel Public Safety,” was completely ignored.
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`(Exhibit 64 A Message
`
`from the President, p. 1) (emphasis added).
`
`A
`
`The Citadel’s actions in telling ReVil1e to lay low and to leave Citadel employment with
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`no record of the sex abuse report also were in direct violation of the school’s policy that provided
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`specific consequences in the event an employee is accused of sexual misconduct.
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`(Exhibit 95
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`Employee Misconduct Policy). The consequences included not expunging molestation findings
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`from the employee’s record; not terminating any investigation in exchange for resignation by the
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`employee; providing factual and candid responses to inquiries by potential employers; and fully
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`cooperating with law enforcement. (LL); The Citadel failed to impose any of these consequences.
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`Additionally in 2007, The Citadel had disseminated policies against sex discrimination and
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`harassment that governed its actions in regards to the complaint of ReVille’s sexual abuse.
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`(Exhibit 96 Memorandum Number 4, August 15, 2005; Exhibit 97 Memorandum Number 51, June
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`30, 2000; and Exhibit 98 General Procedures for Conducting Formal Investigations of Sexual
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`Harassment Complaints).
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`In accordance with the Citadel’s own policies,
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`it should also have
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`reported the sex abuse complaint to the Citadel’s Title IX Coordinator. (Exhibit 97 Memorandum
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`Number 51, p. 13). The sexual assault policy also provides that “The Citadel will punish any
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`27
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`504
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`individual who is found to have committed a sexual assault,” and Mr. Brandenburg admits that
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`the 2007 complaint against ReVille constituted a sexual assault.
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`(Exhibit 99 Brandenburg
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`Deppsition, p. 265-266). He also does not _recall ever considering contacting The Citadel’s sexual
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`response coordinator. (Exhibit 100 Brandenburg Deposition, p. 267:5-8).
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`In sum, The Citadel failed to abide by the standard of care it itself created by its own
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`policies. Despite the clear policies and protocols available when the camper made The Citadel
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`aware of ReVi1le’s sexual abuse, The Citadel ensured that none were followed and that the child
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`sexual abuse instead was covered up. By its very own policies, The Citadel failed to exercise due
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`care.
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`B. Professional Standards for College And University Administrators Establish That
`The Citadel Violated The Standard Of Care Owed.
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`Furthermore, professional standards for college and university administrators establish that
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`The Citadel did not exercise due care in its response to the report of child sexual abuse.
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`S_e§
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`Elledge V. Richland/Lexington School Dist. Five, 638 S.E.2d at 792-794 (holding evidence of
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`industry standards related to playground equipment relevant and admissible to establish duty owed
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`by school district in negligence claim for student’s injury on playground equipment).
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`In that
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`regard, the “Report ofthe Special Investigative Counsel Regarding the Actions ofthe Pennsylvania
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`State University Related to Child Sexual Abuse Committed by Gerald A. Sandusky” (2012),
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`http://www.thefieehreportonpsu.com [hereinafter Freeh Report] is instructive to this case. As
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`shown by the facts, The Citadel’s actions taken in response to the 2007 ReVille child sexual abuse
`complaint mirror the “total and consistent disregard by the most senior leaders at Penn State for
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`the safety and welfare of Sandusky’s child victims.” (Freeh Report, p. 14).
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`28
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`The Citadel concealed ReVille’s sexual abuse, thereby allowing and supporting a child
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`sexual predator to continue harming children just as the leaders of Penn State did. The Citadel’s
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`administrators, to include President Rosa, have admitted to understanding that a sexual predator
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`has the potential for further assaulting additional victims.
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`(Exhibit 10] Rosa Deposition, Jan.
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`2014, p. l9:9—22). Like the Penn State leaders who concealed the details of sex abuse from the
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`Board of Trustees, President Rosa concealed the details of ReVi1le’s child sexual abuse from the
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`Board of Visitors. Furthermore, like President Spanier, President Rosa discouraged discussion
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`and dissent andpspecifically directed concealment of the 2007 complaint.
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`(Freeh Report, p. 16).
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`Like the Penn State leaders who allowed a pedophile to retire, “not as a suspected child predator,
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`but as a valued member of the Penn State Football legacy, with future visibility at Penn State,”
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`The Citadel allowed ReVille to leave Citadel employment, not marked as a child predator, but
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`rather with an unblemished record that allowed him continued employment with children in the
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`Charleston area. (Freeh Report, p. 17).
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`ReVille had future visibility at The Citadel, returning to campus numerous’ times to speak
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`to the Honor Committee, to incoming freshman, and in 2010 at the unveiling of the remodeled
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`Honor Court.
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`(Exhibit 22 ReVille Afiidavit, May 21, 2013, p. 3).i ReVille’s ties to the Citadel
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`included applying to be a foster parent with a photograph of himself wearing his Citadel jacket
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`and noting his experience with children as a camp counselor.
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`(Exhibit 102 ReVille Foster Home
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`Application). The Citadel’s leaders’ concealment of the sexual abuse by ReVille -from law
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`enforcement, the Board of Visitors, the Citadel community, and the public at large also allowed
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`the President and The Citadel to avoid negative publicity, very much the same as the Freeh Report
`concluded of Penn State leaders:
`l
`4
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`it is more reasonable to conclude that, in order to avoid the consequences ofbad publicity,
`the most powerful leaders at the University. . .repeatedly concealed critical facts relating to
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`29
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`506
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`Sandusky’s child abuse from authorities, the University’s Board ofTrustees, the Penn State
`Community, and the public at large...
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`(Freeh Report, p. 16).
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`In contrast, in investigating The Citadel’s actions taken in regards to the 2007 report,
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`Margolis Healy & Associates determined that seven factors excused The Citadel’s failure to
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`disclose the complaint of child sex abuse. (Exhibit 7 Investigation Into The Citadel’s Handling of
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`Allegations Involving Louis N. “Skip” ReVille Findings, p. 40).
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`Ilowever, the evidence in this
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`case renders the excuses inexcusable. First, the Citadel had numerous policies and protocols
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`available that advised The Citadel leaders to report the sex_abuse complaint to law enforcement;
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`however, President Rosa ensured that none were followed and that the complaint was instead kept
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`“close hol ” in the President’s Qfiice. Second, The Citadel leaders, to include President Rosa,
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`sufficiently understood their responsibilities for reporting pursuant
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`to the Clery Act, had
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`knowledge ofTitle IX, had hired a Title IX coordinator, and had personal experience dealing with
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`the Arpaio litigation.
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`Third, if anything, when the April 2007 complaint of child sexual abuse came into the
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`President’s Office, “key individuals” had a wealth of prior experience dealing with sexual abuse
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`that highlights the inexcusable manner in which the complaint was handled and, also, establishes
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`the intentional manner in which it was handled. TheCitadel’s leaders brought significant
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`experience and understanding of the machinations of child sex abuse to the table. Moreover,
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`President Rosa had led the Air Force Academy in a reform of a culture permeated with sexual
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`assault and harassment, bringing to the table himself a high level ofunderstanding of such criminal
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`activity. (Exhibit 103- Rosa Deposition, Jan. 2014, p. 9-10; 12).
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`Fourth,
`
`it
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`is inconceivable how The Citadel leaders could have held the opinion that
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`ReVille could not possibly have sexually abused children due to ReVille’s
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`superior
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`30
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`507
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`accomplishments at the Citadel. All knew that apparent upstanding individuals can be sexual
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`predators, directly evidenced in former counselor and cadet Arpaio. (Exhibit 104 Trez Demsition,
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`June 10, 2013, p. 106-107 and Exhibit 105 Lackey Deposition, April 10, 2013, p. 65:23-25 to 66:1-
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`16). Mr. Brandenburg even told ReVille, when he confronted him with the 2007 report of abuse,
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`“we thought we knew Arpaio.” (Exhibit 23 Brandenburg Deposition, p. 98:20-25).
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`Fiflh, as discussed, Citadel policies and protocol made clear that all sexual misconduct
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`allegations originating out of the camp were to be investigated by the Public Safety Department.
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`The camper interview made clear that the victim most of all wanted to ensure that ReVille did not
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`abuse any more children and that he came to the Citadel with the complaint so that The Citadel
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`could take action. The current age of the camper made no difference, and the fact that the camp
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`was closed did not negate that ReVille was a former Citadel counselor and the camper a participant
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`in the camp and the sexual abuse had. occurred in the Citadel barracks. The context ofthe allegation
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`in 2007 provides no excuse for The Citadel’s intentional cover up.
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`Furthermore, the Margolis Healy investigation failed to include interviews of the former
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`camper or his father who came forward in 2007 to The Citadel. (Exhibit 106 Margolis Deposition,
`p. 128:7-10). Mr. Margolis admits that it takes hearing from both sides “to gather the facts
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`necessary to make a decision.”
`
`(I_d., p. 128-129). Nonetheless, Margolis Healy issued its
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`conclusions despite omitting pertinent and relevant individuals from the investigation.
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`Its
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`investigation and conclusions do not excuse The Citadel’s conduct or relieve it from liability for
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`failing to exercise due care.
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`C. The Citadel Also Owed Plaintiff A Common Law Dug To Control The Conduct
`of Another And Doe v. Marion Does Not Control.
`
`Defendant incorrectly propounds that , 645 S.E.2d 245 (S.C. 2007) is the
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`31
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`controlling law in this case, where the Court held specifically that the child reporting statute did
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`not create a private cause of action against an individual for negligence per se for the failure to
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`report child abuse and that a doctor who treated a pedophile patient had no duty to warn future
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`vic.Lms of the patient’s predilection for child sexual abuse. The Citadel’s argument completely
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`ignores that (l) Plaintifi does not contend that The Citadel owed him a duty created under the
`child reporting statute and (2) that Doe v. Marion did not overturn the long established law in
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`South Carolina that provides exceptions to the rule that there is no general common law duty
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`to control the conduct of another or to warn a third person or potential victim of danger. Q0_e_v_.
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`Marion, 645 S.E.2d at 249 (citing with favor the recognized exceptions set forth in Faile V. S.C.
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`pDept. of Juvenile Justice, 566 S.E.2d 536, 546 (SC. 2002)). None of the exceptions applied in
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`Doe v. Marion; however, they do in this case.
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`Specifically, South Carolina recognizes the following five circumstances where the duty
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`to control the conduct of another or to warn a potential victim of danger exists: (1) where the
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`defendant has a special relationship with the victim; (2) where the defendant has a special
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`relationship with the injurer; (3) where the defendant voluntarily undertakes a duty; (4) where the
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`defendant negligently or intentionally creates the risk; or (5) where a statute imposes a duty on the
`defendant. Madison ex rel Bryant, 638 S.E.2d at 656.; Egg, 566 S.E.2d at 546. The Citadel owed
`a common law duty to Plaintiffbecause it negligently or intentionally created the risk ofReVille’s
`
`sexual abuse of Plaintiff; because federal statute imposed a duty on The Citadel not to conceal the
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`sexual abuse; because it had a 2 special relationship with ReVille; and because it voluntarily
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`undertook the duty to investigate the 2007 report of child sexual abuse.
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`D. The Citadel Negligently or Intentionally Created the Risk of SexualiAbuse of
`Plaintiff.
`
`Plaintiff anticipates that Defendant, as a governmental entity, will assert that it is not
`
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`509
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`
`liable for Plaintiffs injuries and damages under the statutory exception to the waiver of
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`governmental immunity for “an act or omission of a person other than an employee including but
`
`not limited to the criminal actions of third persons.” S.C. Code AI1n. § 15-78-60(20). However,
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`any argument The Citadel may put forth as to the exception is unpersuasive. The fact that ReVille,
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`asa third party, sexually abused Plaintiffdoes not affect the common law duty The Citadel owed
`to Plaintiff to not negligently or intentionally createlthe risk that ReVille would sexually abuse
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`Plaintiff. E Madison ex rel Bryant, 638 S.E.2d at 660 (holding facts that independent contractor
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`directly provided services to plaintiff or that third party committed criminal act against plaintiff
`
`did not afl°ect the govemment’s common law duty to plaintiff to exercise reasonable care in
`
`supervising and providing appropriate care to plaintiff).
`
`On point
`
`is the South Carolina Supreme Court’s decision in Greenville Memorial
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`Auditorium v. Martin, 391 S.E.2d 546, 547 (S.C. 1990), where the plaintiffclaimed that the public
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`auditorium was negligent in adequately securing and maintaining the premises during a concert
`
`where the plaintiff was injured by a bottle thrown by an unknown person from the balcony down
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`onto him. The Court held that the exception to the waiver of immunity for a loss resulting from
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`the act or omission of a person other than an employee did not apply, because Martin did not allege
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`the auditorium was liable because of the third party’_s actions. Q; S.C. Code § 15-78-60(20).
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`Rather, Martin’s complaint was that the auditorium was liable for its own negligence in creating a
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`reasonably foreseeable risk of such third party conduct, and the Supreme Court upheld the jury
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`verdict for the plaintiff:
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`[The auditorium] carmot successfiilly defend that [plaintiffs] injuries were caused by the
`wrongful criminal act of a third party, where the very basis upon which [the auditorium] is
`claimed to be negligent is that [it] created a reasonably foreseeable risk of such third party
`conduct.
`
`33
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`510
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`

`
`IQ at 547-548; §_e_e all Woodell v. Marion School District One, 414 S.E.2d 794 (S.C. Ct. App.
`
`1992) (holding school district may be liable for gross negligence in supervising plaintiff and
`
`another student where another student assaulted plaintiff; district’s liability is not because of the
`
`conduct of the other student).
`
`"Likewise, The Citadel is liable for its own negligence of creating a reasonably
`foreseeable risk of ReVille sexually abusing Plaintiff. Specifically, The Citadel’s deliberate
`
`concealment of its knowledge of ReVille as a child sexual abuser, which included directing
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`ReVille to “lay low” and leave The Citadel with no record of the 2007 complaint and included
`
`violation of its very own policies, created the reasonably foreseeable risk that ReVille would
`
`continue to sexually abuse boys. The evidence establishes that Citadel leaders, to include President
`
`. Rosa, had a wealth of experience dealing with sexual harassment and abuse and knew that sexual
`
`predators continue to abuse. The Citadel’s own expert confirms that ReVille had a propensity to
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`abuse victims within a discrete class of society, calling him a preferential child molester, and
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`opined to the reasonable foreseeability that ReVille would continue molesting boys once he left
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`"Citadel campus.
`
`(Exhibit 107 Margolis Deposition, p. 19-20; 188). Thus, The Citadel’s own
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`negligence allowed ReVille to stay in the Charleston community as a decorated Citadel alumnus
`
`and former employee and gain continued employment with children. The Citadel’s conduct
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`created the reasonably foreseeable risk of Plaintiffs abuse by ReVille, and The Citadel is liable
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`for its own conduct ofnegligently and intentionally concealing a known child sexual predator. fig
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`Madison ex rel Bgant, 638 S.E.2d at 656; F_a_il_e, 566 S.E.2d at 546.
`
`E. Title IX Imposed A Duty On The Citadel To Not Conceal The 2007 Report of
`Abuse.
`
`In South Carolina, the test for determining when a statute creates a duty of care and
`
`supports an action for negligence is (1) whether the statute’s essential purpose‘ is to protect from
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`34
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`511
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`the kind of harm the plaintiff has suffered and (2) whether the plaintiff is a member of the class of
`
`persons the statute is intended to protect. Ra reld, 374 S.E.2d at 914 (deriving test from
`comparison of Clifford v. Southern Railway, 69 S.E. 513 (S.C. 1910) and Hutto v. Southern
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`_ 84 S.E. 719 (S.C. 1915)). Accordingly, a statute may create a duty of care ofwhich the
`violation ofconstitutes breach in a negligence action, which thereby establishes negligence per se.
`
` , 374 S.E.2d at 915.
`
`The Citadel’s conduct in response to the 2007 report of child sexual abuse by ReVille
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`violated Title IX of the Education Amendments of 1972 [Title IX], codified at 20 U.S.C. §§ 1681
`
`et seq. and Title 34 Code of Federal Regulations Part 106. The essential purpose of Title IX is to
`eliminate, with certain exceptions, discrimination on the basis ofsex in any education program or
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`activity‘ receiving Federal financial assistance. 20 U.S.C. § 1681; 34 C.F.R. § 106.1. Title IX
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`bestows a remedial and affirmative action requirement on institutes of undergraduate higher
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`education to take such remedial action as necessary to overcome the effects of such discrimination.
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`34 C.F.R. § 106.3(a). Therefore, Title IX’s essential purpose to eliminate sex discrimination by
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`definition seeks to protect other individuals from the possibility of sex discrimination. For
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`eliminating known sexual discrimination, whether it be in the form of harassment or abuse,
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`prevents the future sexual harassment of other individuals. Accordingly, Plaintiff is a member of
`
`the class of persons Title IX is intended to protect.
`
`4 Under Title IX, an education program recipient of Federal financial assistance means “any
`State or political subdivision thereof, or any instrumentality of a State or political subdivision
`thereof, any public or private agency, institution, or organization, or other entity, or any person,
`to whom Federal financial assistance is extended directly or through another recipient and which
`operates an education program or activity which receives such assistance, including any subunit,
`successor, assignee, or transferee thereof.” 34 C.F.R. § 106.2(i). “Institutions” include those of
`higher education as defined by 34 C.F.R. § 106.2(1), (m), (n), and (0), which includes The
`Citadel as an institute of undergraduate higher education.
`‘
`
`35
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`512
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`

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`As far back as 2000, the Olfiice of Civil Rights [OCR] provided guidance to schools on
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`their obligations under Title IX in regards to complaints of sexual discrimination and harassment.
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`(Exhibit 108 Ex. 41 to Rosa Depgsition, “Revised Sexual Harassment Guidance: Harassment of
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`Students by School Employees, Other Students, or Third Parties”) (E Qsp “Dear Colleague
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`Letter,” April 4, 2011, http://www2.ed.gov/about/0ffices/list/ocr/letters/colleague-20l 104.htrr1l).
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`OCR highlighted that the United States Supreme Court in Gebser v. Lago Visa Indep. School Dist.,
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`524 U.S. 274 (1998), expressly afiirmed that the school must take remedial action to remedy the
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`effects of the harassment on the victim.
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`(Exhibit ‘108 Ex. 41 to Rosa Deposition, p. 66095).
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`Schools must “disseminate a policy against sex discrimination” and “adopt and publish grievance
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`procedures providing for prompt and equitable resolution of sex discrimination complaints,
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`including complaints of sexual harassment.” (Q).
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`The Citadel’s own expert, Mr. Margolis, also put forth a presentation highlighting the
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`requirements of Title IX, to include the definition of sexual harassment:
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`Sexual violence is a form ofsexual harassment prohibited by Title IX.
`-
`Sexual violence refers to physical sexual acts perpetrated against a person’s will or
`where a person is incapable of giving consent due to the victim’s use of drugs or
`alcohol
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`- An individual also may be unable to give consent due to an intellectual or other
`disability
`- May include rape, sexual assault, sexual battery, and sexual coercion.
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`(Exhibit 109 Margolis Healy PowerPoint, p. 7).
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`In 2007,) as discussed, The Citadel disseminated policies against sex discrimination and
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`harassment that governed its actions in regards to the complaint of ReVille’s sexual abuse.
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`(Exhibit 96 Memorandum Number 4, Exhibit 97 Memorandum Number 51, and Exhibit 98
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`General Procedures for Conducting Formal Investigations of Sexual Harassment Complaints).
`
`Title IX requires schools to designate at least one employee to coordinate compliance with the
`
`36
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`513
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`

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`regulations implementing Title IX.
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`(Exhibit 108 Ex 41 to Rosa Depgsition, p. 66100). Despite
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`President Rosa himself bringing in Janet Shealy as the Citadel’s Sexual Assault Response
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`Coordinator, neither he nor any other Citadel administrator referred the ReVille sexual abuse
`1
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`claims to her, per the explanation that she was there “to handle current cases.” (Exhibit 110 Rosa
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`Deposition, July 29, 2013, p. 29, 83). The Citadel did not refer the complaint to Ms. Shealy,
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`because it was covering it up.
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`Title IX also requires that if the school. knows, or even reasonably should know, of sexual
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`harassment, the school is responsible for taking immediate effective action to eliminate the hostile
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`environment and prevent its recurrence. (Exhibit 108 Ex. 41 Rosa Deposition, p. 66101). Even if
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`the school does not learn of the sexual harassment from the victim but from some other source, the
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`school violates Title IX if it fails to take ‘immediate and effective corrective action.” (Exhibit 108
`
`Ex. 41 Rosa Deposition, p. 66102). Defendant’s own expert stresses the requirement applies
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`whether the complaint comes hfirom the victim, a parent, or a third party.
`(Exhibit 111 Margolis
`Healy PowerPoint, p. 12). The OCR also highlights, “if harassment has occurred, doing nothing
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`is always the wrong response.” (Exhibit 108 Ex.