Legal Updates – December 2022


By:  Claire Sweetman

San Diego State University Opens Investigation into Football Team Months After Rape Claim Surfaces

On August 1, 2022, SDSU’s president, Adela de la Torre, announced that the school was conducting an investigation into allegations that a high school girl was raped by several football players at an off-campus party in 2021.[1] The alleged survivor, now 18 years old, said that she was raped by five football players at an off campus party on October 16, 2021 when she was 17 years old and intoxicated to the point of being in and out of consciousness.[2] According to the woman’s attorney, her friends had been searching for her at the party when she came out of the bathroom visibly upset and physically injured, and told them her recollection of what had occurred. The next day, she reported the incident to the San Diego police and underwent a rape examination at the hospital. She did not report the incident to SDSU.

However, several days following the incident, the university began to receive anonymous complaints from concerned students via the school’s anonymous reporting system. One complaint received from a student-athlete indicated that multiple football players had participated in the rape, and that members of the team would “know who did it.”[3]  The complaint also provided the name of one of the football players who participated in the rape, who was a senior, and indicated that the respondents were freshman. Another complaint received by the anonymous reporting system stated: “99% of the football players are aware of the 5-person rape so the rest of the student-athletes are left wondering why nothing is being done.”[4]

For almost nine months, the school did not investigate the allegations. According to the university, several factors contributed to its decision not to act. First, because the alleged assault occurred off-campus, current Title IX regulations do not require schools to investigate instances of sexual misconduct.[5] Second, the university said that the San Diego police asked the school not to investigate in order to protect the integrity of their own process.[6] Third, the survivor had requested confidentiality with the police. Therefore, the university did not have access to her name and had no way of contacting the survivor when the initial anonymous complaints were received.

However, the university could have chosen to investigate the allegation under the California State University systemwide policy for sexual misconduct.[7] A policy violation may be investigated whether it occurs on campus or not. Additionally, even though it is difficult to investigate sexual assault allegations without a known and participatory complainant, the university could have initially probed into the alleged respondent as well as members of the football team and coach.

In a message to the university community on August 1st, de la Torre announced that SDPD had given the school the go-ahead to launch its own investigation.[8] The university has also created a public-facing website that includes a timeline and FAQs about the matter.[9] However, in speaking with the San Diego Union Tribune, the survivor’s father said that he worries the initial inaction on the part of the university may have left others in danger. He said: “At what point do you put jeopardizing the investigation in front of the safety of your students?”[10]

Jane Doe v. Curators of the University of Missouri – Emotional Distress Damages in Title IX cases

In April 2022, the U.S. Supreme Court ruled that emotional distress damages are not recoverable under the discrimination provisions of the Rehabilitation Act of 1973 or the Affordable Care Act in Cummings v. Premier Rehab.[11] This ruling prompted Title IX administrators and scholars to question whether the Court’s decision would affect Title IX claims as well, because funding for each of the above statutes stems from the Spending Clause of the U.S. Constitution.[12] These Spending Clause statutes provide certain protections for individuals working or attending institutions that receive government funding. Protections include discrimination on the basis of race, color, national origin, sex, disability, or age.[13] Title IX specifically prohibits sex-based discrimination and harassment at educational institutions.

Indeed, later this summer, a Missouri federal court held in Jane Doe v. The Curators of the University of Missouri that plaintiffs in Title IX lawsuits may also not recover emotional distress damages. [14] This ruling will have a significant effect on those who experience sexual harassment and abuse. To survivors, the emotional impact of an assault can be at times even more damaging than the physical injuries. This impact can be lifelong and can affect a survivor’s ability to lead the life they want. Indeed, in Title IX cases, plaintiffs are particularly likely to seek emotional distress damages in an effort to be made whole again from their trauma.

The Missouri court’s ruling in Doe v. University of Missouri is likely to have a chilling effect on plaintiffs bringing Title IX actions based on the reduction in available damages. Additionally, attorneys will be less interested in pursuing Title IX claims on a contingency fee basis for the same reason. Accordingly, offenders will be less likely to be brought to justice.

However, some courts have taken a different approach. For example, a federal court in Indiana limited the Cummings decision to Sections 504 and the Affordable Care Act and allowed for emotional distress damages under Title IX.[15] It will be interesting to see how other courts interpret the Court’s decision in the upcoming months.


[2] Id.


[4] Id.







[11] Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562 (2022); chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/




[15] Doe & Roe v. Purdue Univ., et al., 4:18-cv-89, 2022 (N.D. Indiana July 20, 2022).