Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 1 of 23 PagelD 169 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION ERICA KINSMAN, Plaintiff, CASE NO. :15-cv-00016-GAP-KRS. ve ispositive Motion ‘THE FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES, Defendant. DEFENDANT'S MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW Defendant The Florida State University Board of Trustees (“the Board” or “FSU"), by and through the undersigned counsel, hereby respectfully moves this Court to dismiss Plaintiff's (“Kinsman”) Complaint under Federal Rule of Civil Procedure 12(b)(6) because the Complaint fails to state a claim upon which relief can be granted. For the reasons more fully explained in the incorporated Memorandum of Law, the Board respectfully requests that the Court dismiss the Complaint.Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 2 of 23 PagelD 170 Preliminary Statement and Factual Background* FSU in this case finds itself in the unusual and unwelcome position of being adverse to a former student and alleged sexual assault victim, Erica Kinsman, It is critical that the University community have full confidence in FSU's commitment to the safety and well- being of every one of its students. Accordingly, should this case proceed beyond this Motion to Dismiss, the University looks forward to demonstrating the record of extensive assistance the FSU Victim Advocate Program provided to Kinsman, most of which she has omitted from her Complaint. But the Court does not need proof of this extensive care for and support of Kinsman to resolve this case: even accepting as true the allegations of the Complaint with no further facts, FSU is not liable to Kinsman under Title IX. Far from being deliberately indifferent to Kinsman, PSU provided her the services of its confidential Victim Advocate Program within hours of her alleged sexual assault and continuously thereafter, Compl. $7 53, 61, 64, 88, DE. 1, and @ University victim advocate informed Kinsman of the school’s student- disciplinary process, id. 461. Title IX officials at FSU leamed of Kinsman’s alleged assault by Winston only days before the rest of the world, when the media broke the story of Kinsman’s allegations in November 2013, which is consistent with her failure to allege that she ever spoke with any FSU official outside of the Victim Advocate Program prior to August 6, 2014. Id. § 101, 129. Regrettably, the media’s reporting of Kinsman’s allegations led to an Intemet and social media backlash—harassment that FSU did not cause, in an environment that FSU could not control. Id. {{] 112-13, Kinsman left the University "PSU accepts the allegations in the Complaint as true solely for purposes of the MotionCase 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 3 of 23 PagelD 171 when the news broke. id. $113. At the same time, the State Attorney for Tallahassee conducted an investigation that resulted in a decision in December 2013 not to charge Winston. Id $114, Having waited for the law enforcement investigation to conclude, FSU reviewed the record from that investigation, attempted unsuccessfully to interview Winston, and reached its own conclusion that the record did not support student-disciplinary charges at that time. Id. $9] 118-20. After a great deal of correspondence between Kinsman’s attorneys and the University, id. § 122-26, Kinsman gave a Title EX interview in August 2014, id. 129. FSU then convened an investigative hearing, presided over by retired Florida Supreme Court Justice Major Harding, which included live testimony from Kinsman and Winston. Id. 41135. Justice Harding concluded that the preponderance of the evidence did not support a finding that Winston had assaulted Kinsman, Id. Nothing about FSU’s handling of this matter was unreasonable—much less clearly unreasonable, which Kinsman must prove to survive this Motion to Dismiss. Kinsman’s Complaint is remarkable in many ways. She does not all Winston as her assailant to anyone at FSU other than her confidential victim advocate before the media broke the story of her alleged assault, causing her to leave the University. She does not allege that FSU denied her a single request for remedial action. And—having seen her claims of an assault rejected by both the State Attomey and @ University-appointed hearing officer—she seeks from this Court a third bite at the apple, essentially asking this Court to serve as a student-disciplinary appeal board. When her Complaint is stripped of its rhetorical flourish and legal conclusions, its failure to allege that FSU's deliberateCase 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 4 of 23 PagelD 172 indifference caused her any harassment is clear, so Kinsman’s Complaint should be dismissed, MEMORANDUM OF LAW Standard of Review Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a complaint whenever the plaintiff fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P, 12(bX6). To withstand a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Bell Adl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, “a complaint must present sufficient factual matter, accepted as true, to ‘raise a tight to relief above the speculative level.” Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 708 (11th Cir, 2014) (quoting Twombly, $50 U.S. at 555). Although @ court must accept well-pled allegations as true at this stage, a court should not accept as true legal conclusions or threadbare recitals of the elements of a cause of action. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), Moreover, a court must read the complaint “as 2 whole,” without “parsfing] and read{ing] in isolation the allegations in the complaint.” Rosky ex rel. Wellcare Health Plans, Inc. v. Farha, No. 8:07-CV-1952-T-26MAP, 2009 WL 3853592, at *2 (M.D. Fla. Mar. 30, 2008). Title IX Title IX provides, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Sexual harassment is “discrimination” in the school context under Title LX, whichCase 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 5 of 23 PagelD 173 allows recovery of money damages for student-on-student harassment “in certain narrow circumstances.” Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 P.3d 1282, 1293 (Ith Cir. 2007); see also Davis v. Monroe Cnty. Bd. of Edue., $26 US. 629, 633 (1999). Ina student-on-student sexual harassment case, a plaintiff must prove four elements. First, the defendant must be a Title IX funding recipient. Williams, 477 F.3d at 1293. ‘This element is undisputedly satisfied in this case. ‘Second, an appropriate school official must have actual knowledge of the harassment. Id, Because Title IX requires this actual knowledge be of “known student-on-student harassment in its schools,” this standard necessarily requires that the school official must know that both the vietim and the alleged assailant are students, Davis, $26 US. at 641 (emphasis added). Otherwise, the school official could not possibly know of “studen-on- student harassment.” Id. (emphasis added), Moreover, the actual knowledge must belong to an “appropriate person,” who is, “at a minimum, an official of the recipient entity with authority (0 take corrective action to end the discrimination.” Williams, 477 F.3d at 1293 (internal alterations omitted) (quoting Gebser v. Lago Vista Indep. Sch. Dist., 324 U.S. 274, 290 (1998), In other words, “the official with notice of the harassment must be ‘high enough up the chain-of-command that his acts constitute an official decision by the schoo! district itself not to remedy the misconduct.” Doe v. Sch. Bd. of Broward Cnty., Fla,, 604 F.3d 1248, 1255 (11th Cir, 2010) (quoting Floyd v. Waiters, 171 F.3d 1264, 1264 (11th Cir. 1999)). Third, the defendant must have acted with “deliberate indifference” to known acts of harassment, Deliberate indifference “is an exacting standard.” Id. at 1259. It is met “onlyCase 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 6 of 23 PagelD 174 where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.” Davis, $26 U.S. at 648. Or put another way, it requires a plaintiff to show “an official decision by the recipient not to remedy the violation.” Gebser, 524 U.S. at 290; see also Murrell v. Sch, Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1246 (0th Cir. 1999) (“That standard makes a school district liable only where it has mede a conscious decision to permit sex discrimination in its programs 2), Deliberate indifference is therefore a high bar—negligence ot gross negligence falls far short of it. See, €.g,, Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334, 344 (11th Cir. 2012); Baynard v. Malone, 268 F.3d 228, 236 (4th Cir. 2001). Importantly, this erate indifference must subject the plaintiff to further harassment, Davis, 526 U.S. at 644, Thus, “a Title IX plaintiff at the motion to dismiss stage must allege that the Title IX recipient's indifference to the initial discrimination subjected the plaintiff to further discrimination.” Williams, 477 F.3d at 1296; see also Hill v. Madison Cnty. Sch, Bd, 957 F. Supp. 2d 1320, 1332 (ND. Ala. 2013) (“I]t must be the deliberate indifference of the [school] that is the causation of the harassment suffered by the vietim.”). Fourth, the discrimination must have been “so severe, pervasive, and objectively offensive that it effectively barred the victim's access to an educational opportunity or benefit.” Davis, 526 U.S. at 633, Put differently, the discrimination must “be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity.” Id, at 652 (emphasis added). ‘The Supreme Court has cautioned that courts in Title IX student-on-student sexual harassment cases “should refrain from second-guessing the decisions of schoolCase 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 7 of 23 PagelD 175 administrators.” Davis, 526 U.S. at 648. The Court also stressed that Title IX does not give victims of peer harassment “the right to make particular remedial demands.” Jd. Rather, “the recipient must merely respond to known peer harassment in a manner that is not clearly unreasonable.” Ié ‘The Complaint Fails to State a Cla ‘The Complaint contains no allegation that FSU itself directly harassed Kinsman, As the Supreme Court has explained, “ Jf a funding recipient does not engage in harassment ireetly, it may not be liable for damages unless its deliberate indifference ‘subjects’ its students to harassment.” Id, at 644. Kinsman alleges that FSU subjected her to three distinct forms of harassment: (1) being at school with Jameis Winston between January 10, 2013 (when she allegedly recognized him as her assailant) and November 14, 2013 (when she allegedly left campus), e.g., Compl. $63, D.E. 1; (2) being threatened on social media after the media on November 13, 2013, first reported news of her allegations against Winston, e.g, id. § 112; and (3) as a result of her alleged fears for her safety, being forced to leave FSU on November 14, 2013, and being unabie to return, e,g., 113. Kinsman has not, however, stated a claim under any of these theories of liability.” 2 Winston’s alleged assault cannot be harassment for which PSU is legally responsible. Kinsman never alleges that FSU was aware that Winston posed a threat to Kinsman or anyone at FSU or even that Winston had any record whatsoever of posing a threat. Davis ». Monroe Cnty. Bd. of Fue , 526 U.S. 629, 641 (1999) (holding that Title IX requires actual knowledge of “known studentonestudent harassment in it schools” (emphasis added)Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 8 of 23 PagelD 176 A. FSU is not liable for any alleged harassment caused by Kinsman’s having to be on campus with Winston. FSU cannot be liable for this alleged harassment for three distinct reasons. 1, No appropriate person at FSU had actual knowledge of Kinsman’s allegation until November 2013. FSU cannot be liable for Kinsman’s having to be on campus with Winston after the alleged December 7, 2012, assault, because the allegations of the Complaint show that no appropriate person at FSU had actual knowledge of the assault until November 8, 2013, when FSU Police Chief David Perry received the report of the Winston investigation from the Tallahassee Police and shortly thereafter shared it with the University official overseeing the school’s Title IX and student-disciplinary functions. Compl. §f[ 95, 101, D-E. 1. Kinsman’s initial report to the FSU Police on the night of the assault could not have given FSU actual notice because at that time Kinsman claimed not to know her alleged assailant’s identity. Id. 49 48, 50. Afier allegedly leaming her assailant’s identity on January 10, 2013, Kinsman shared that information with the Tallahassee Police, id. {| $7, but she does not allege sharing it with the SU Police or with any PSU administrator. Kinsman does allege that, on January 17, 2013, she discussed with victim advocate Kori Pruett that her perpetrator was a football player at FSU. Jd. 461, But the Complaint itself acknowledges that FSU’s Vietim Advocate Program is confidential and exempt from any reporting requirement, Id. { 68. And Kinsman never alleges that she directed any victim advocate to report her allegation to any other official at FSU.? * Kinsman alleges in Paragraph 116 that Melissa Ashton told Patricia Carroll that Kinsman wanted the Title IX investigation and SRR proceedings to move forward in “the fall 2013 semester.” Compl. § 116, D.E. 1. But howhere in the Complaint does she ever allege that she ever made this known. For instance, she never alleges ‘when she made this known (whether before or after the media reported her allegations) or to whom she made itCase 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 9 of 23 PagelD 177 Indeed, strikingly absent from the Complaint is any allegation that Kinsman herself reported her alleged assault—or the harassment she allegedly experienced as a result of being, on campus with Winston after the assault—to any appropriate person at FSU. Instead, Kinsman’s theory of FSU’s actual notice hinges entirely on her allegation that football coach Jimbo er and S Associate Athletics Director Monk Bonasorte in January 2013 learned from the Tallahassee Police that “Winston was suspected in a rape investigation.” Id. 172. But for at least two reasons, this allegation is insufficient to establish actual knowledge on the part of FSU First, although it that Title IX liability only attaches for known student= on-student sexual harassment, Kinsman does not—and cannot—allege that: Fisher and Bonasorte knew that Winston’s alleged victim was an FSU student, much less that they knew the actual i ‘ntity of Winston’s alleged victim. This is a telling omission from a Complaint that is so lengthy, detailed, and carefully crafted. Second, even construing the Complaint as alleging that Fisher and Bonasorte knew that Winston's alleged victim was an FSU student, neither is an “appropriate person” under Title IX. Kinsman does not—and cannot—allege that either Fisher or Bonasorte has any authority over FSU’s student conduct or Title IX processes. See Gebser, 524 U.S. at 290 (providing that an “appropriate person” is an official who has “authority to take corrective action to end the discrimination”), Alleging that those men have “control over students on the football team” is not enough, Compl. § 76, D.E. 1; sports-related discipline has nothing to known, Because the Complaint must be read as whole, this single allegation cannot overeome the lack of any pparicular factual allegations anywhere else in the Complaint about her meetings with victim advocetes. See fRosky ex rel Wellcare Health Plans, Inc. v. Farha, No. :07-CV-1952-T-26MAP, 2009 WL 3853592, at #2 (M.D. Fla. Mar. 30, 2009),Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 10 of 23 PagelD 178 do with the types of di ine through which a university remedies sexual harassment (e.g. academic accommodations, no contact orders, residential changes, suspension, or even expulsion), see, e,g., DeCecco v. Univ. of S.C., 918 F. Supp. 2d 471, 492 (D.S.C. 2013) (“To the extent [the plaintiff] relies on notice to [the head coach] as notice to USC, she fails to satisfy Title 1X°s actual notice requirement for several reasons. First, notice to [the head coach] is not notice to USC (for Title IX purposes) because [the head coach] had, at most, limited supervisory responsibility over [the assistant coach]. This limited authority is not enough in light of Gebser{ and] Davis... .” (internal citation omitted)); Ross v. Corp. of Mercer Univ., 506 F. Supp. 2d 1325, 1352 n.43 (M.D. Ga. 2007) (reasoning that “in a typical Title IX case, an appropriate individual might be a University President, a high school superintendent, or the chairman of an appropriate board of education and not a teacher, coach or employee” because these latter types of school officials do not have “the authority to fix ‘certain ‘ypes’ of discrimination” (emphasis in original)). Nor can Fisher’s and Bonasorte’s alleged reporting obligations make them “appropriate persons” in the Title IX sense. See Compl. § 76, D.E. 1, The Complaint alleges that “ail FSU employees must report student-on-student sexual misconduct to the Dean of Students Department.” Jd. {81 (emphasis added). Surely any theory that would convert every) FSU employee into an “appropriate person” necessarily fails the standard set out in Davis and its progeny. Indeed, it is quite telling that the Complaint faults Fisher and Bonasorte for failing to comply with their “duties to report and refer the rape accusations against Winston to appropriate university officials is added). One of the purposes of the “actual 10Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 11 of 23 PagelD 179 notice by an appropriate person” standard is to ensure that Title IX liability attaches only when a plaintiff can show that there has been “an official decision by the recipient not to remedy the violation.” Gebser, $24 U.S. at 290. Even accepting as true Kinsman’s allegation that Fisher and Bonasorte failed to follow FSU’s own reporting requirement, that alleged failure hardly constitutes an official decision by FSU on whether and how to remedy any harassment being suffered by Kinsman, Even if FSU had actual knowledge before November 2013, its response was not deliberately indifferent. Even assuming appropriate officials at FSU had actual knowledge of Kinsman’s assault as early as January 2013, the allegations of the Complaint show that FSU was not deliberately indifferent to Kinsman’s alleged assault. The Complaint itself alleges that FSU responded to Kinsman’s alleged assault by placing Kinsman in the care of its Vietim Advocate Program. Within hours of the alleged assault, a vietim advocate, Sarah Groff, met Kinsman at Tallahassee Memorial Hospital. Compl. 53, D.E. 1, Then, another vietim advocate, Kori Pruett, who would work with Kinsman through most of 2013, took over cating for Kinsman. Pruett met with Kinsman on January 17, 2013, February 7, 2013, October 25, 2013, and made a follow-up counseling center appointment for Kinsman on. November 4, 2013. Jd. $f] 61, 64, 88. During their first meeting, Pruett explained the student-disciplinary process to Kinsman and explained Kinsman’s options for changing classes. Jd. 61. Kinsman makes much of the fact that she allegedly was not told about other options, see, e.g, id. $f 62, 66, but these allegations merely attempt to mask @ glaring omission: Kinsman never alleges that she requested eny specific accommodation or other nCase 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 12 of 23 PagelD 180 action (Including @ specific request to initiate a disciplinary investigation of FSU denied. ‘That it was not “clearly unreasonable” for FSU to respond to Kinsman’s alleged assault through the services of the Victim Advocate Program is confirmed by the recommendations of the April 2014 White House report Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault.* That report emphasizes that universities must “give survivors more control over the process” of responding to their assault, and it identifies providing a confidential vietim advocate as a “key ‘best practice” toward achieving that goal. Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault 3, 11, White House Task Force to Protect Students from Sexual Assault, April 2014.5 The report observes, “If victims don’t have a confidential place to go, or think a schoo! will launch a full-scale investigation against their wishes, many will stay silent.” Id at 11, Closely mirroring what the Complaint says FSU’s victim advocates did for Kinsman, the report adds that an advocate should “help get a vietim needed resources and accommodations, explain how the school’s grievance and disciplinary process works, and help navigate the process.” Id Ultimately, the report counsels that “[tJhere is no one-size-fits-all model of victim care. Instead, there must be options.” Jd. at 12. As a matter of law, it could not possibly have been clearly unreasonable for FSU to have followed a White House-endorsed best practice in giving Kinsman the services of a victim advocate, “The Court may of course take judical notice of this White House report. See, eg., BI. Prodtuce Co. v. Robert A. Johnson Sales, Ine, 354 F. Supp. 24 284, 285 (S.D.N.Y. 2004) (“Courts have frequenty taken judicial notice ‘fofficial government reports as being “capable of accurate and ready determination by resort to sourees whose accuracy cannot reasonably be questioned," (quoting Fed. R. Evid. 201(b) and citing Tex. & Pac, Ry. Co. ¥ Pottorff 291 US, 245, 254 n4 (1934). > Available at hetp:/wow.whitchouse.govistes/defeult/fles/docs/report O.pd. 12Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 13 of 23 PagelD 181 informing Kinsman of the student-disciplinary process, and deferring to Kinsman’s informed decision not to initiate that process between January and November 2013, when she left campus. 3. Merely being on campus with Winston is not harassment under ‘Title IX. Kinsman has not alleged that, during the period between the alleged assault and her departure from campus in November 2013, she was subjected to harassment “so severe, pervasive, and objectively offensive that it can be said to [have deprived her] of access to the id by the school.” Davis, 526 U.S. at 650. The educational opportunities or benefits provi Complaint alleges that Kinsman saw Winston from across the room on the first day of class and at one midterm exam, Compl, $f] 55, 65, D.E. 1, but otherwise the Complaint contains no * allegation that Kinsman had any direct contact with Winston or with any of his friends or associates. Indeed, the only harassment the Complaint alleges during this period is Kinsman’s fear of the possibility of seeing Winston, Accepting as true the allegations of Kinsman’s Complaint, FSU would in no way her assailant the trauma an assault vietim might feel at the thought of seei Nonetheless, Kinsman’s own allegations belie the notion that she was suffering harassment so “severe, pervasive, and objectively offensive” as to deny her the opportunities or benefits of an education at PSU. Even if Kinsman alleges that others at the University should have initiated disciplinary proceedings on her behalf, Kinsman herself does not allege seeking any protection from Winston or discipline against him. Kinsman acknowledges in the Complaint ‘that she chose to remain enrolled in the one class that she and Winston shared, and that she indeed kept going to class (the educational opportunity of being at FSU) through the rest of 13Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 14 of 23 PagelD 182 her time at FSU, And the allegations in the Complaint make clear that Kinsman ultimately Jef campus in November 2013 because of the aftermath of the media’s exposure of her allegations, not because of any fear of Winston himself. See id. $9 112-13. ‘ FSU is aware of one case in the university setting in which the court held that “a reasonable jury could conclude that further encounters, of any sort, between a rape victim and her attacker could create an environment sufficiently hostile to deprive the victim of access to educational opportunities provided by a university.” Kelly v. Yale Univ., No. CIV.A. 3:01-CV-1591, 2003 WL 1563424, at *3 (D. Conn, Mar. 26, 2003). But the facts in Kelly are easily distinguishable from those alleged here. In contrast to what Kinsman has alleged, the victim in Kelly lived in the same dormitory as her assailant, and “she repeatedly requested academic and residential accommodations after the assault. She related to administrators the discomfort and fear that she would fee! if she encountered [the assailant].” Id. at *4 More fundamentally, taken as a bright-line rule, the holding in Kelly conflicts with the Supreme Court's teaching in Davis, ‘The Davis Court stressed that its holding did not require schools to engage in any particular disciplinary action to avoid liability under Title IX and that a Title IX plaintiff does not have the right to make particular remedial demands. See Davis, $26 U.S. at 648. But if simply being on the same campus as one’s assailant without any specific request for accommodation necessarily constitutes “severe, pervasive, and objectively offensive harassment” for Title IX purposes, then expulsion would be the only remedy. Davis plainly forecloses such a result. See id. (“We thus disagree with respondents’ contention that, if Title IX provides a cause of action for student-on-student harassment, 4Case :15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 15 of 23 PagelD 183 nothing short of expulsion of every student accused of misconduct. involving sexual overtones would protect school systems from liability or damages.” (internal quotation mark omitted). B. FSU is not liable for any harassment caused by alleged social media threats directed at Kinsman. As her second form of alleged harassment, Kinsman claims that she was subjected to social media threats and epithets after the media in November 2013 broke the story of her allegations against Winston. See Compl. { 112, D.E. 1. FSU concedes that exposure to such comments can constitute harassment that is sufficiently severe for purposes of Title IX. See, eg, MS. ex rel. Hall v, Susquehanna Twp. Sch. Dist., No. 1:13-CV-2718, 2014 WL 4273300, at *14 (M.D. Pa, Aug. 29, 2014) (recognizing that being called “whore” and “slut” is sufficient harassment under Title IX to survive a motion to dismiss). Here, however, cled her to the harassment she Kinsman does not allege and cannot establish that FSU subj allegedly endured through social media, Kinsman does not—and of course cannot—allege that FSU itself threatened her in any way. Rather, Kinsman alleges that, “[iJn the wake of an ensuing media frenzy, [she] was relentlessly vilified and threatened on the Internet and in FSU football-friendly quarters, and her and her family’s personal and work addresses were published on the Internet, along with false slurs on [her] character and threats on her life." Compl. { 21, D.E. 1 Even if these allegations are true, the holding of Davis is cle indifference makes sense as a theory of direct liability under Title IX only where the funding recipient has some control over the alleged harassment.” Davis, 526 U.S. at 644, Indeed, Davis emphasized the Court’s intent to “limit a recipient's damages liability to circumstances 15Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 16 of 23 PagelD 184 wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.” Jd, at 645. Here, of course, FSU controls neither the Internet nor the vicious trolls who allegedly used it to harass Kinsman. Kinsman’s attorneys admitted as much in their February 21, 2014, letter to FSU, when they told FSU that Kinsman did not envision any disciplinary proceeding against Winston that “could eliminate the . .. extreme third party harassment” that Kinsman had suffered after her allegation was reported by the media, See Ex, A (letter from John Clune and Baine Kerr to Carolyn Egan dated Feb. 21, 2014) (emphasis added); see also infra note 4 (discussing why this letter may properly be considered by the Court at the motion to dismiss stage). As a matter of law, Kinsman also cannot establish that any alleged deliberate indifference on FSU’s part increased her exposure to the likelihood of being subjected to this form of harassment. Although this Court must accept Kinsman’s factual allegations as true, it may not accept Kinsman’s purely speculative assertions. See Simpson, 744 F.3d at 708. Kinsman’s Complaint hypothesizes that, had FSU investigated Winston earlier, “Winston would have been removed as a threat to [Kinsman] long before ever suiting up to play football in a Seminoles jersey, and [Kinsman] would be on campus progressing toward an FSU degree.” Compl. {| 146, D.E. 1. Yet Kinsman’s own Complaint acknowledges that & State Atomey investigation and a University investigative hearing (presided over by retired Florida Supreme Court Justice Major Harding) both resulted in the conclusion that Winston should not be charged with assaulting Kinsman, /d. $4 114, 135. Only rank speculation supports Kinsman’s theory that an earlier investigation would have reached a different result imposing a sanetion on Winston, derailed his college football career, and rendered Kinsman’s, 16Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 17 of 23 PagelD 185 assauit allegations un-newsworthy. Thus, Kinsman cannot establish that PSU's alleged deliberate indifference could have been the proximate cause of any harassment she suffered through social media and the Intemet. C. FSU is not liable for Kinsman’s alleged exclusion from school, Kinsman’s third and final form of alleged harassment consists of not being able to return to school at FSU. Compl. $113, D.E. 5 Davis, 526 U.S. at 631 (recognizing that “physical deprivation of access to school resources” can constitute discrimination under Title IX). Yet, read as a whole, Kinsman’s own Complaint demonstrates that her inability to return has not been caused by FSU’s alleged deliberate indifference. In fact, as the letters referenced and quoted in the Complaint and attached here show,° FSU has worked diligently to try to investigate Kinsman’s claim, take her statement, and resolve the situation. First, FSU’s actions in November and December 2013, after the media first reported Kinsman‘s allegations and during the pendency of the State Attorney investigation, were not © See Ex. A (letter ftom John Clune and Baine Kerr to Carolyn Figan dated Feb. 21, 2014); Ex. B (letter from Melissa Nelson and Scott Caims to John Clune and Baine Kerr dated Mar. 15, 2014); Ex, C (letter from John Clune and Baine Kerr to Melissa Nelson dated Mar. 25, 2014); Ex, D (letter from Melissa Nelson to John Clune deted Mar, 31, 2014); Ex. F (letter from John Clune and Baine Kerr to Melissa Nelson dated Apr. 1, 2014). Each of these letters is cited (and some are even quoted) in the Complaint, See Compl. 9§ 122-26, DE. 1. ‘Therefore, the Court may consider them at this stage. See Fin. Sec. Assur, Inc. v. Stephens, Inc., S00 E34 1276, 1284 (1th Cir. 2007), Here, not only are the three letters sent by Kinsman’s counsel quoted in the Complaint (emo of which expressly reference the letrs sent by FSU"s counsel that are not quoted), but they are integral to Kinsman’s claim thet FSU was deliberately indifferent to her allegations because the letters show the communications between the parties as FSU tried to investigate her claims and find 2 way for her to return to school, Moreover, the contents of these letters cannot be disputed, as Kinsman’s lawyers either wrote or received each letter. Courts regularly consider letters attached to a motion to dismiss when a plaintiff has quoted from the letter in the complaint but has failed to attach the letter. See, e.g GFF Corp. v: Associated Wholesale Grocers, inc, 130 F.3d 1381, 1384-85 (10th Cir. 1997); Langer v. George Washington Univ. 498 F Supp. 24 196, 202 n.1 (D.D.C. 2007); Natural Res. Council of Maine v. Int'l Paper Co., 424 F. Supp. 24.235, 247-48 (D. Me, 2006); Katz ». Odin, Feldman & Pitleman, P.C, 332 F, Supp. 2d 909, 913 n3 (E.D. Va. 2008); Pilchman v. Dep't of Def, 154 F. Supp. 2d 415, 419 n.2 (E-D.N.Y. 2001). Although the March 15 and March 31 letters from FSU's counsel are not quoted, they are specifically referenced in the Complaint and in the quoted letters from Kinsman’s counsel, so fairness demands that they be considered alongside the leters from Kinsman’s counsel because these letters were part ofthe same dialogue. 7Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 18 of 23 PagelD 186 clearly unreasonable. Kinsman left schoo! less than twenty-four hours after her allegations against Winston became public. Compl. 113, D.E. 1. After learning of the allegations, FSU officials met on November 15 and November 25. Jd. $110, 111. During this time, State Attorney Willie Meges was investigating the allegations, see id 4 104, and he ultimately determined that no charges should be brought against Winston, id. $114, During this time, FSU was aware of the situation and monitoring it. Id. $110, 111. Under similar circumstances, a court has held that it was not “objectively unreasonable” for a school to hold off on its own investigation while a school was monitoring a pending criminal investigation. See Seats v. Kaskaskia Coll. Cmty. Coll. Disi. No. 501, No. 07-CV-843-JPG, 2008 WL 5235980, at *7 (S.D. Il. Dee. 15, 2008). Second, after the State Attomey concluded his investigation, FSU began its own investigation in January 2014, right as the new semester was starting. See Compl. | 118, D.E. 1. FSU reviewed the materials from the Tallahassee Police Department. Jd. FSU also attempted to interview Winston, who declined to answer questions. Id. {| 120. Notably, Kinsman refused to give FSU a statement—a convenient omission from her Complaint, but point that is evident from the letters she cites in her Complaint. Id. ff 122-26. Based on FSU's investigation, it determined that it could not bring charges agi nst Winston at that time—the exact same result that the Tallahassee Police and the State Attomey had reached. FSU left open the possibility of revisiting that decision, however, should additional information come to the school’s attention, See Ex. B. Third, in her Complaint, Kinsman specifically references (and even quotes) multiple letters exchanged between Kinsman’s new Colorado-based lawyers and FSU. These letters 18Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 19 of 23 PagelD 187 leave no doubt that PSU was far from “clearly unreasonable” in its actions related to holding, a disciplinary hearing on Kinsman’s allegations against Winston. ‘The earliest lester cited the Complaint is dated February 21, 2014. Compl. § 122, DE. 1; see Ex, A, Two things from that letter stand out. First, Kinsman’s counsel acknowledges in the letter that, “over the winter break,” FSU inquired of Patricia Carroll (Kinsman’s then-attomey) whether Kinsman wanted to pursue a student-disciplinary hearing, Ex. A. The letter explicitly acknowledges that Carroll demurred: Tunderstand from Ms. Carroll that you inquired sometime over the winter holiday break as to whether Ms. Kinsman was interested in pursuing a disciplinary hearing regarding Mr. Jameis Winston’s conduct on December 7, 2012. Ms. Carroll has indicated that she responded that your inquiry was likely too late but that she would discuss with her client, i. Second, the February 21 letter from Kinsman’s attorneys includes these remarkable sentences: Mr. Kerr and [ have discussed with Ms. Carroll and Ms. Kinsman and it is hard to envision any scenario where any result of a disciplinary action could eliminate the hostile education environment and extreme third party harassment suffered by Ms. Kinsman. In fact, if Mr. Winston were found by a conduct board to have sexually assaulted Ms. Kinsman, and he were ultimately suspended or expelled, Ms. Kinsman would likely be in greater danger than if the conduct board ruled against her. a. This letter demonstrates that, as of February 21, 2014, Kinsman had not only declined a student-diseiplinary hearing, but had in fact communicated that holding such a hearing would be both pointless and potentially harmful to Kinsman. Accordingly, Kinsman cannot now complain that the timing of her hearing had anything to do with her alleged inability to 19Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 20 of 23 PagelD 188 return to FSU, Indeed, the letter implicitly concedes that it was the “national media attention” and the resulting public outery—not FSU’s actions—that kept Kinsman from returning to school. See Compl. $f 108, 112, D-E. 1 Another letter cited in Kinsman's Complaint—a letter dated April 1, 2014¢— evidences Kinsman’s dramatic and unexplained about-face on the issue of a student disciplinary hearing. See Ex. E. That letter shows Kinsman’s attomey demanding a hearing and indicating that she would cooperate—but only after FSU filed charges against Winston. Coupling the state of the record before FSU as alleged in Kinsman's Complaint—ineluding a State Atomey’s decision not to charge Winston and Kinsman’s own earlier rejection of a student-disciplinary hearing—and the demands of basic fairness and due process 10 a potentially accused student, it could not have been “clearly unreasonable” for FSU to wish to interview Kinsman directly before deciding whether to further investigate Winston. See Davis, 526 US. at 649 (“[I]t would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims.”) As for FSU’s correspondence to Kinsman, the Complaint cites a letter ftom FSU to Kinsman’s attorneys dated March 31, 2014. That letter clearly expresses FSU willingness to meet with insman for the purpose of obtaining information to consider in connection with, the decision whether to initiate disciplinary proceedings. Specifically, the letter says: In any event, the University acknowledges Ms. Kinsman’s offer to supplement the record with additional information pertaining to her allegations concerning Mr. Winston, Ms. Kinsman may provide that information in any format she desires, including in writing or through @ phone or Intemet conversation. An in-person meeting is usually the most, effective means of gathering information, and the University’s Title IX personnel would weleome such a meeting with Ms, Kinsman. If Ms. Kinsman is willing to meet in person with the University’s Title IX 20Case 6:15-cv-00016-GAP-KRS Document 35. Filed 03/09/15 Page 21 of 23 PagelD 189 personnel, we will arrange for the meeting to occur at a time and place of Ms. Kinsman’s choosing, including at a reasonable location outside of Tallahassee. This accommodation should wholly alleviate any concerns for Ms. Kinsman’s safety. Please let us know how you would like to proceed and we will coordinate with the appropriate departments to ensure that this information exchange ‘oceurs as soon as possible and in an environment in which Ms. Kinsman feels sate. Ex. D. Finally, the Complaint also indicates that FSU tried to have Kinsman give a statement on May 20, 2014, when Kinsman was on campus for the Student Conduct Code hearings of Chris Casher and Ronald Darby, but Kinsman’s delay in responding to the offer made coordinating the interview that day impossible, Compl. 128, D.E. | Fourth, Kinsman finally gave an interview to FSU on August 6, 2014. Id. § 129. ‘This was Kinsman’s first statement to anyone at FSU outside of the Victim Advocate Program since the night of the alleged assault (when Kinsman claimed not to know the identity of her assailant) PSU held an investigative hearing based on Kinsman’s allegations on December 2, 2014, 1d. 4135. The hearing officer (former Florida Supreme Court Justice Major Harding) determined that the evidence was insufficient to warrant Student Conduct Code charges against Winston—or in other words, that « preponderance of the evidence did not support a finding that inston raped Kinsman. Jd, Thus, Justice Harding reached the same conclusion as every prior investigation, FSU’s attempts to investigate and hold a hearing are far from deliberately indifferent, Just like the victim advocates’ care of Kinsman before she left Tallahassee, FSU's conduct 21Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 22 of 23 PagelD 190 since the media reports of November 2013 cannot be described as “an official decision by [FSU] not to remedy” the situation, Gebser, 524 U.S. at 290, or “a conscious decision to permit sex discrimination,” Murrel, 186 F.3d at 1246, Therefore, FSU was not deliberately indifferent such that its conduct subject Kinsman to the further harassment of being excluded from school. Conclusion For the foregoing reasons and authorities, Defendant respectfully submits the Court should dismiss the Complaint pursuant to Rule 12(b)(6) for failure to state a claim, McGUIREWOODS LLP By__4/ Scott §_ Cairns Scott S. Caims (FL Bar No. 0037729) [email protected] Carlos Muiiiz (FL Bar No. 0535001) [email protected] Melissa W. Nelson (FL Bar No. 01 [email protected] 50 N. Laura Street, Suite 3300 Jacksonville, Florida 32202 (904) 798-3200 (904) 798-3207 (fax) 853) Attorneys and Trial Counsel for Defendant The Florida State University Board of Trustees 22Case 6:15-cv-00016-GAP-KRS Document 35 Filed 03/09/15 Page 23 of 23 PagelD 191 CERTIFICATE OF SERVIC! 1 HEREBY CERTIFY that on March 9, 2015, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic, filing to the following: David B. King, Esquire ‘Thomas A. Zehnder, Taylor F. Ford, Esquire King, Blackwell, Zehnder & Wermuth, P.A. P.O, Box 1631 Orlando, FL 32802-1631 [email protected] [email protected] ford @kbzwlaw.com Baine Kerr, Esquire John Chine, Esquire Lauren . Groth, Esquire Hutchinson Black and Cook, LLC 921 Walnut Street, Suite 2 Boulder, CO 80302 [email protected] [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiff Eriea Kinsman s/ Scott S. Cairns ‘Attorney str301598 23Case 6:15-cv-00016-GAP-KRS Document 35-1 Filed 03/09/15 Page 1 of 9 PagelD 192 DEFENDANT THE FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES MOTION TO DISMISS EXHIBIT A Erica Kinsman v, The Florida State University Board of Trustees ‘United States Distriet Court for the Middle Distriet of Florida ‘Case Nout 6:15-ev-16-0rl31KRS.Case 6:15-cv-00016-GAP-KRS Document 35-1 Filed 03/09/15 Page 2 of 9 PagelD 193 HutchinsonBlackaniCook ‘Attorneys at Law Jotn Clone chanebsbouléecom February 21, 2014 ‘Via E-mail and United States Mail ‘Ms. Carolyn Egan Office of the General Counse] Suite 211 Westcott Building 222 South Copeland Street Tallahassee, Florida 32306 RE: Representation of Erica Kinsman and your inquiry ‘Dear Ms. Egan: Our office has been retained by Ms. Kinsman to assist her with her legal rights under Title 1X of the Education Amendments as weil as other matters pertaining to her rape at Florida State University in 2012. Please direct all further communication regarding this matter to either myself or Mr. Baine Kerr of our firm. Ms. Patricia Carroll is also counsel for Ms. Kinsman but to facilitate commitnications, please use me as your primary point of contact. understand ftom Ms. Carroll that you inquired sometime over the winter holiday break as to whether Ms. Kinsman was interested in pursuing a disciplinary heating regarding Mr. Jameis Winston's conduct on December 7%, 2012, Ms. Carroll has indicated that she responded thet your inquiry was likely too late but that she would discuss with her client, As you are aware, since the time that Florida State University Police Department leamed, of this assault, fifteen months have passed. When that report was originally made, Mr. Winston ‘was relatively unknown outside of his college football world. Since that time, Mr. Winston’s accomplishment in athletics bas launched him into heightened celebrity status. This increase in status Was so significant that when the news broke about Ms. Kinsman’s report to FSU Police, she ‘was the subject of repeated death threats, her sorority received bomb threats, and someone slashed the tires of a car belonging to her sorority sister. Since that news, Mr. Winston's celebrity has ‘grown to even greater proportions due to further athletic endeavors. While Ms. Kinsman remains enrolled at FSU, these events have forced her to leave campus and her friends due to grave fears for her personal safety. Mr. Kerr and I have discussed the matter with Ms. Carroll and Ms. Kinsman and it is hard to envision any scenario where any result of a disciplinary action could eliminate the hostile education environment and extreme third party harassment suffered by Ms. Kinsman. In fact, if ‘921 Wainut St, Suite 200, Boulder, CO 80302 | Tel (303) 442-6514 | Pax (303) 442-6593 | Toll Free (600) 303-6514 ‘worwhbebouldercomCase 6:15-cv-00016-GAP-KRS Document 35-1 Filed 03/09/15 Page 3 of 9 PagelD 194 Ms. Carolyn Egan February 21, 2014 Page 2 of 2 ‘Mt. Winston were found by a conduct board to have sexually assaulted Ms. Kinsman and he was ultimately suspended or expelled, Ms. Kinsman would likely be in greater danger than if the conduct board ruled against her. This is the harm caused and exacerbated by FSU’s one year plus delay in responding. If you think otherwise, that a disciplinary sanction of Mr. Winston would somehow alleviate the hostile educational environment, it would be very important for you to explain that to us. As you are aware, the school’s obligation under Title IX is not necessarily to convene a ‘conduct bord hearing, but to respond promptly and effectively to sexual harassment and assault. ‘Ms. Kinsman remains willing to cooperate and is open to hearing the school’s thoughts as to what response the school believes would address the harassment and allow her to re-enzoll in classes at Florida State. She cannot however, subject herself to any process that would only decrease her safety on campus. Additionally, as you are no doubt aware, two other students, Chris Casher and Ronald Darby, have admitted to criminal conduct in committing voyeurism and video voyeurism. This ‘behavior constitutes both sexual harassment and also criminal behavior which is prohibited in your school’s Code of Conduct. Mr. Casher even went so far as to state that he watched the behavior, vvideo recorded it, and then entered the room to attempt to have sex with Ms. Kinsman despite not having her consent to do so. Ms. Kinsman expects that you will proceed agsinst these students accordingly and in a timely fashion, ‘Their swom confessions to this conduct are attached to this letter so I trust that you don’t need Ms. Kinsman to put herself in further harm's way for the school to address this harassment and bring code of conduct charges against them. Perhips Mr, Winston will corroborate their account of voyeurism when you interview him as a part of your investigation that has been reported in the media. Please keep us apprised of these proceedings and any charges that are brought by the school. ‘We look forward to your response. ICChip Ce: Patricia A. Carroll (Via email)Case 6:15-cv-00016-GAP-KRS Document 35-1 Filed 03/09/15 Page 4 of 9 PagelD 195 srareoesonwn ! cousrrorion i AFFIOAVIT OF RONALD OARGY. : { rOULDONNN ery have ber rgd thie bby ee thefalinng c andet i 4. yma eral ry, om yee ae a defen ony 2 onocunters ah me wc Curnow ety, eae ne 1 pm whe swat ing tw ona hace ha, apres Othe fcuienas pring na, ar roche noha seg ter trnatogohane invite, Misncn md hia Set wet ener 2 sons ste Shige onl ect lre Poadeon endeevl alvee tinea htop aecied sheet on of a taceas ‘omer nh wafessne entre wtetb Mentejnen hee the th 4, es cea ou apatite se owed lane eprnet nd som 5 hancsand ih pt went instr Tetons wee cnn oeensondesonen, Tea totic endo conan way roe owen 5. “Srveconae prin oen cece Dor heaping ve ee i ek sox Orncenieda tater Began hoeae eo, Neoer Benen tevin toenras at Cee inne fod gh tooo re her cerns lead ttn em ot dct ne hr ine Srnec het rind he heya ete wry ncn, Heomned me cy create fenton os 7 erro teh pnont rd wet ease my see Ales eaig thayaprinat wnat ston gt nia ke. fovolench emf 1 nnmcnter', rss event Manes rn Asa os ee ppd i Sutmartondon wba lh. lst nd te otenes Soret pment itaom pevedibon oh, Ms senen tenn enemas eso hcl me eon “ypenanigemion RenaiaDetoy Som o a bscrhed before is Peay ofNevemdet 201, Aan proved the Ioming aan: . op eeeCase 6:15-cv-00016-GAP-KRS Document 35-1 Filed 03/09/15 stro oRwA counts ON Page 5 of 9 PagelD 196 _ABHOANTT OF CHRISTOPHE CASHIER |VOAMSOFHE (CHRIS ASHER, rey hvingbeen dy shorn and fies bec vate he ebowing wre 2 Mya os Caner, Ham over Wyearin age. tama eisnt aon Cay 2h Deceni 62017, | wert wn ona Do’by anaes Wieson 0 Fabel, We anved wound 1190 pm. mea mie ema with onde ha Secane sto me ad aid Hf laped fut, end responded iat i ay foot she semed mor inttestes Wand ave mc er eephone manter ‘wert off angstarted miging wih ether paope athe cc. 3. Wms James Winson Roralé Daa an | cde lave Potbey' andthe same Blane eal at ze ne her eephne umber somes us ue Yh dis, Tire emsle wanted to leve with vst ‘ecb and viwaly loved nessel. She wassolntnated. Se was abe tohovea convetatn wth She was not sug oe ambi. She was wna cll phone Wry ange hr Hed ain. (When we veda Legacy ts, st ol ut Uh cab a oflowed anes fobs apartment ais evecare gi wenn sede. The door was ped shu bu coud not shalt waybecane 1a broken. Theis were on, 1 nce ve coer wa pay open leotedveugh he opting an we could set Neg reise They had been the rom a ew mlntes before Lwlineies Nerang tim orale. ama was ache ‘he doe with hs hands on ips wie se was aon ot Min ner nes. tnesse hen hth ae 8c tne’ ith of nd lyon the be. Jomals nd the lode leo began avin ercoue, Asa {oka bowed nite eam ro ernbaras aml, The ge yd ate, "gl ea” She $v f te bed ‘ana turned othe ig ac ed toe the dace ould ar har ering Woh soe. Shi never (neat atshe war ot» wig panto. om what ssw se was arnore tit wig pean 1a approxiatey 20min, wert omy beeruon. Meuse nee atthe et ebvng er were ting teach ther na Hlesdy mane, Op November 13, 201.t was hieewd by Monta ordan As resto! hs ine she grep INS sietemon based on wnt oiher, Tisisa ue se accmte Statement. Ms. ordanhas prevented the face 381 ese thm to ht. The Hatemai olviry, | derstand tal Ma eeéan orien Schl of ourself mee nse, 1 fy umn nib’ seer unui res taner ora 1g and sscibed belare me he 13" day of eewrber 013. AMAN! provided he elon entelon Sys f— ery i NorwayCase 6:15-cv-00016-GAP-KRS Document 35-1 Filed 03/09/15 Page 6 of 9 PagelD 197 Tallahassee Police Department —oresiteen 12:20 Incident Report cone suinenrs [aetna aan oien aera rarer pene Semana fy aren oa tas aaa fone lesa sees 3.1 [Bascom emer nore ‘Woe ance Se paren Yar “custo gees Fone rs caso was lela suspended satus borause praatie eayes could rot bo eclabiaed given the coatenng ssiements beeen what the vel id ha ond and what wos feponted to pete. kr accion, the vicin was uniting 1a pursue crrnal chaos matte, need om ies 9 Sd the acted not moe statuary techs 1 proseculeal feviow (domeste reid neers he case was nol cuted othe Ofce of the Slate Ahorney. My Sergeant ane Levtenan ware bon aware Prd in agreemen wit tes decor tn Febtuary 2013, Fray Rapemlince rs ey the Otic oie Site Aomey ol te cae oto Sole purpoue ol making them aware in cae they ere to vaceiverenutas for nformation. Aer eiscussing the case ai lergl, | wae a8kod by ASA [Capetonan ta sor De the Yoport eating othe case, Jo Noveroor 15,2013, ASA Gappleman plovdod tw Tallehnsne Poze Deparment scanned copies ol"wors sonar powded 1 he cles by aise The stalemens were yped documents thal eas had wight) mumbered adress me ght: overs. The atstemerte are consent in inv account sommiy te Htosnte lay the foto graphs, (6) ich 1 Winston. Cashur and Datoy wort te Patoeiys and anv around 1:06em._ Whi (Rae eitaae 20 Bind ar fee : ssctesarese — co —Case 6:15-cv-00016-GAP-KRS Document 35-1 Filed 03/09/15 Page 7 of 9 PagelD 198 Tallahassee Police Department sre 208202820, Incident Report ome esauvcoe 65 a TORTS Eagan Sea WTO. 2. As winsion Casneron3 Dary a, te blonde frale gt non ak wit then (necrsing to Ceaher, she loved Nese. The siatementsinGiented the lems mas nol wor ated ane eas ale fa eary an a convertion, 3, When hey nied a the aparimert the female fotowed Winston roti boom. 1 4 The deor mas ped ese bt wa pari apennecate was bowen 15 Cashor anc Dary watered ashe emai percime era ex on Winstan wough Wistar broken 1 bedioom doer. They than sau Ne femate ana Winston engage In orl Sea. As ajohe Gasher wer na i ite vom. tn vesponse te fale Lis Hien gel out She the gol p and dosed te door and ted Jol etait. enor lo the alloreets here were no ndeeavors that the femsle was ool weting petal 6. Approximately 20 minute oar the lomai el with Winslonon ts seco. ASA Cappteman sexed tn we att Lo reinlerwow he victim and et ends, She also asked hal re ile Case and OarUy 28 wok should be noled ial Gosher was nol ay intencewe die fone iar me vic advised sho was arian wi him and did vol boheve he mas part when he incident ook place. Aadaonaty, Cathar ck no moe he describ he vet provided for fe Subet eho she said ented te oom, Jon November 14, 2019, Iv, Osdar and I van! othe Moore Ahi Ot in an stem io locate and irenview Datby and Casher. Asis common practice, covet mas made wih FSUPD fo acs them we rere gong io been canaus ve condvet felons roaring ah investi, uponcur arsival at ihe Moove Arete Cerver, we wore met by Merk Bonasore. According to Bonasone, te Psa Stata Urversly Police Deparnen Nac bean requesies to diac! a aw enlereamen cies oe ote toy wate soaing fe conta foatbn layers regarding the Invesigavon, Bornean then sated he belrad Janeen had ready arranged lags representa fr ICasnor and sty. write we were presen, Bonasore made phone comac al wh he sacbwns Atoney Jansen, Fotowing ine prove cat, Sonasone normed ve Int barby had cine an etoiney bul hal Cae: ned not. Bonasorte Nadia summian Cashar to tre Mose Att Cent, Bonasare ten slated he wows be Caster erpiecenaino. Borasoce Is not an atoray so we explaned ha 19 ore! lo pect be integrity ol he case, he would nol be alowed to be present, Wo than explained i! Cash wished to | nace legal representation he could ecqaest an acrsey and th inarwen wd be e-sehedved far 8 wiven Case astued, | erated ohio tat he was us a winess in the case, bu was st atowes to ove on atrney Ie wiehed. 380 expahd Vit we could schodulo te niewew aller eae 10 Jataw hen Yo consul ar atarrey the wehe. Cashier sisted Me ce! nol aa an allorsay ANd consented! free tans eC teres act ena : Baie inet oa Semcon aa 1 aoeCase 6:15-cv-00016-GAP-KRS Document 35-1 Filed 03/09/15 Page 8 of 9 PagelD 199 Tallahassee Police Department —oaveisen osname Incidenk epost emer mai TCaahaT HTAT he, Uap ART WINTON Won TO PIDAIY SD AGET A AON HE Sistas Pe TS blonde female Ibete but cannes remember het name. Aer geti'y he ahone rurnber he went ofthe ako some other peopie. Leer ine evering he saw me same Tema lake 10 Wiseon, Ashe, Datby and Winsion were leaving, he lem go! io the ca wit hem, Cashor sited ihe fale repeatedly wed to cab Rye Fine co Pat sho COU Rang Ou mis Casher, However, appareny i nt speak thal person. once wack at mew apartmart (Cathar and Winston ware rogrenals) he lemale ans Winsion went eto Wrstons bedroom. Ae! abou 10 minutes Casher and Darby eeeked in ihe toom an the erate peering oral sex on Winslon. Cachet stale ihe door te Winslons room was Broken ane rot ach closed. lew minute are walched asthe lemale end Wirsion removed bir Own oting and cred onthe bed and began Wo engage in sexual avy. Cash sales he wen nto me room 0 aao i the female west engage in sera! actviy with Him a rl (az has naDpened wit ner females he ane Vonaton rave bought back to tN apartment); However, th lame sew hm 2 oa mo ga out. Ale wh ster, Cashersialed be ied 10 G00 ape Weston and ee female Rowavor, when in tamale saw fe she aga tide f eave. The female hen (ined ofthe Fah and wert with Winton oT balvoom. [Coshor sated 2 ite wie ler he ears Wislon an the ler leave and get on Winstons scot, casmars etatemonts cing Ine invriew ware consicien| wih th slatoment pvises the pose by ory Jansen” The ony cscreparey nas when Casher ated Ne men me ihe 20m 0 Supe Wiosian- Vien asked abouts Bserepancy. Cashes stated he ch ndeed go nia the 100 1 19 Bonzeons sata he woud cartel Darby fo opin he name of is Atoeey ar then Hel us naw 80 thal we cal tlow-up wah an nerve Jon November 16, 2013, Weston conserte 1 proving @ ONA sample a a Buca! feneek cal) exam, Batre making Wineiot avaiablo 6 prove ihe snd, Jansen again wate, he wa nol gang 0 afow Wirgion tote miewiewed by peice i 2 rent dated Novernber 19,2013. the FOLE Biciogy Sector groves ne analy of her : compara o! Winstons Succal gab wat he DNR relerereein te pom cated Nog 27,2012, Recerang wo he repan, the paral iagn ONA poi rm Se ces unaerea! Matched he DNA olde of Winston. Winton was excluded as the source a he DNA rot rom te vm’s sons ord ould rote ei fladad o exchaded a eens 1 he freign DNA prada ‘ecovored tam the etavs fae (buted on te ined nate of Ihe pelle octanes War toe vices (3 23 leave town for severa days on 2 pe-schoduled, werk ilated wip 10 anther pat ol estate, ereor, iv, Osbornsnlervawod Darby and wingss Jenna Wersberq, Mosberg was the ndvs9) who rst contacted FSUPO. These iets ook place on Nowerbas 15.2013. Seo ln. Oxban's \sopplomen fr delals. Soh Gakiwn resnteniowred winess Bra Hey h my aseres, See her [nusploment for deta. lon November £2. 2019. Gxbern agvsed be atonpled iocomacl wines Monique Kessler eoereeasiae = : Seton nt sins nae econ eae é aoeCase 6:15-cv-00016-GAP-KRS Document 35-1 Filed 03/09/15 Page 9 of 9 PagelD 200 1 Tollahassee Police Department —owesinnee nian | Incest Report toes torte Hl 5 ! [RSSTe Tbr TOGO She WOOT TESS TS CST Fit BAEK Bacau SHS WHE MUNG PRSREET | speahin wth investigators wih Une Offce ol Re Sal lowey. The Caner of hal inlarcew bas nok been svares wh tls agency iy action, t wes made aware thal ASA Capplernan scheduled an apcoinment to speak wit te victim's stomey tart morning. tne, Osborn and requetied (obo precem al tat meeting bul Out raquoet wae dened. Tho vicim was afer nvernewedby members al the Ollie othe State Novos {ve specie duns lta inieniew have rot een shared wit ns agency Px. 1 request ol te Oice othe Sale Atomey. the ood and une samples ken wom we vm were sari Os. Galtier, wan ine Unwvesiy of loeda i addon analyss, Dt, Goldberg cont ied ihe fing of he FOLE tt hat are were no chugs found \wtinasces Darby and Marcus Jorsan [te percon sh whom the vile ehared ks: eariarin he righ, voliay sued Bucoal swabs f be comaird withthe unin leit DNA pce the cums shone. ina ropon deted November 22,2013, bat men were exeudad ae poate sree fo mat toregn ONA pote. \unesé Cashes wes conaced to spe Ihe would woluarey provide a buccal awa to comaste agains! me foreign DNA prite fours an he vm's shor, Cathe ately sated he would meete prove Le seme. Iv. Osborn nas later contacted by Casher's Atoney, Adam Elis. ls aosiaes he waned hie toeviow he face ol fe case betore desing wheter Re Would ats" Cathet pomds 8 sainpe. The Olfce othe State Alemey served a seaich warrant abr a DNA sample hors Cash, Jr Becembe: 5, 2013, received the FOLE epor regarding ine comaarcon cl Casher’s DNA sample a he oher ims provousty sabres cis cae0. Casts gage nae excudd ao the source ot ie foreign ONA located on he vis shor, underwear, 2nd lace, |The previously unidenied sample found one vcs sons was determined tabeong toa known acquasnance efihe vicim, Jamal Reberts” Ove lo concas veiced by e vcs anny tha ihe blond stad wich shamed a crue cl not actaty Gotan tthe vit, be State Atorseys Oe recuesiad inate ood simple be re-svbmited or beod typing. Tne FOLE vepones aaned on Sccenters, 210 conned he and lat uted dE al bong Deven, Faint Shes a i [Seen ae JOHNS 2rd atone Pc bn ech : aCase 6:15-cv-00016-GAP-KRS Document 35-2 Filed 03/09/15 Page 1 of 5 PagelD 201 i DEFENDANT THE FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES MOTION TO DISMISS EXHIBIT B Erica Kinsman v. The Florida State University Board of Trustees ‘United States Distriet Court for the Middle Distriet of Florida ‘Case Nou: 6:15-ev-16-Or-31KRSCase 6:15-cv-00016-GAP-KRS Document 35-2 Filed 03/09/15 Page 2 of 5 PagelD 202 Mecidrevonds Bank of Amar et ‘SO Nod Crue Stet ‘ae 3300 ‘acsonyle, FL 32202-3661 Prone 904.796.3200 Foe 9047983207 wep towed onaegusasiee | MAcGUIREVVOODS onctrempirenticn pester March 15, 2014 ‘M14 E-mail and U.S. Mail Blaine P. Kerr, Esquire John C, Clune, Esquire Hutchinson Black and Cook LLC 921 Walnut Street ‘ Suite 200 Boulder, CO 80302 CONFIDENTIAL RE: Erica Kinsman Dear Messrs. Kerr and Clune: Florida State University has retained McGuireWoods LLP to represent its interests regarding any claims asserted by your client, Erica Kinsman. We ask that you address all future communications from you and your co-counsel regarding Ms. Kinsman to our attention, Ms, Kinsman remains welcome personally to avail herself of any University resources or services she desires, As has always been the case, the University wants to ensure that Ms. Kinsman has the full benefit of the University’s programs, resources and activities, and we stand ready to work with you in that regard. ‘The University’s general counsel has forwarded to us your letters of February 21, 2014 regarding Ms. Kinsman. It is unclear from those letters whether you are requesting any particular action regarding Ms. Kinsman or simply indicating that a claim will be asserted in the future. We are unaware of any basis you might have for suggesting that the University has legal liability in connection with Ms. Kinsman, Contrary to the insinuations of your letter, the University did not delay in acting on this matter. Indeed, since Ms. Kinsman first reported an off-campus alleged sexual assault to the Florida State University Police Department on December 7, 2012, the University has done everything possible under the circumstances to address her needs; to ensure that she has full access to the University’s programs, resources, and activities; and to comply with its obligations under applicable laws, In particular, in the immediate aftermath of the alleged assault, the University promptly. engaged a victim advocate to assist Ms. Kinsman. From that moment on, the ‘tar | At | liane | rasa {hata | weasel | Oteago | uate | soon | Leden ‘as Anges Ne Von | era Fang [Sag Recmond | pore Cone (WaseemCase 6:15-cv-00016-GAP-KRS Document 35-2 Filed 03/09/15 Page 3 of § PagelD 203 Confidential March 15, 2014 Page 2 Victim Advocate Program (on behalf of the University) has provided Ms. Kinsman extensive, ongoing support, including but not limited to arranging multiple and significant academic and social accommodations for her as well as advising her on steps she might take to avail herself of the remedies available to her ‘As you well know, throughout the period following the alleged assault, the University has labored under numerous constraints in its effort to help Ms, Kinsman, Fist, although fully advised that the University stood ready to investigate and take action-on het allegations, Ms. Kinsman made an informed decision not to avail herself of the University’s formal sexual misconduct complaint process. Instead she chose to confine her communications to the Vietlm Advocate Program. Second, and relatedly, Ms. Kinsman chose to eventually reveal the identity of her alleged assailant only to the victim advocate, mowing that the victim advocate was obligated to keep that information confidential from others at the University absent a specific waiver of confidentiality. Finally, the University received from your co-counsel, Patricia Carroll, an unequivocal directive that no one from the University have contact with Ms. Kinsman, Ultimately, after nearly an entire year of ongoing confidential communication between Ms. Kinsman and the Victim Advocate Program, it was the media that disclosed the alleged assailant’s identity and, in the process, broadly publicized Ms. Kinsman's allogations. In response, the University took further steps to protect Ms. Kinsman’s idet and her well-being. And, although it was still handicapped by the absence of direct participation by Ms. Kinsman, the University took steps to investigate the alleged assault. Because you have indicated that Ms. Kinsman now seeks notification of the results of that process, we have enclosed here the University’s February 10th letter summarizing the current status of the University’s investigation. As the enclosed document indicates, the Title IX investigator has left open the possibility of receiving any additional information that anyone may wish to provide her. To be clear, the University could not provide this information to your client previously because of Ms. Carroll's clear instruction that no one from the University have contact with Ms. Kinsman. Please be advised that you may not Aisclose to any other person the confidential information in the enclosed document, as it constitutes student record Information protected under the Family Education Rights and Privacy Act Finally, as to students Ronald Darby and Christopher Casher, the University is, reviewing the allegations contained in your February 21st letter and would like to better understand your client's position regarding her potential participation in an investigation and any related proceedings. Specifically, the University would like to explore—either through you or with Ms. Kinsman directly—both Ms. Kinsman’s willingness to provide aéditional information or otherwise participate in the complaitit resolution process, and potential steps the University can take to address Ms. Kinsman's related concerns.Case 6:15-cv-00016-GAP-KRS Document 35-2 Filed 03/09/15 Page 4 of 5 PagelD 204 Confidential March 15, 2014 Page 3 Since Ms. Kinsman's arrival in 2012, Florida State has wanted Ms, Kinsman to succeed and feel welcome on campus, as it does with all students, The University's actions in this matter have confirmed Florida State's commitment to Ms. Kinsman’s health, safety, welfare and academic success. Consistent with its demonstrated care for Ms. Kinsman to date, the University remains willing to support Ms. Kinsman in her pursuit ofa degree from Florida State. We look forward to hearing from you. Sincerely, terra W ho Melissa W. Nelson Scott S. Cairns MWN/sj Enclosure cc: Carolyn Egan, General Counsel, Florida State University w/ enclosure (via E-mail) ss029esaCase 6:15-cv-00016-GAP-KRS Document 35-2. Filed 03/09/15 Page 5 of 5 PagelD. 205 DEFENDANT THE FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES MOTION TO DISMISS ENCLOSURE OMITTED PURSUANT TO THE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT 20 U.S.C, § 1232g Erica Kinsman v, The Florida State University Board of Trustees Unlted States District Court, Middle Distriet of Florida Case Noi 6:15-ev-16-Orl-31KRS.Case 6:15-cv-00016-GAP-KRS Document 35-3 Filed 03/09/15 Page 1 of 3 PagelD 206 DEFENDANT THE FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES MOTION TO DISMISS EXHIBIT C Erica Kinsman v, The Florida Staie University Boord of Trustees ‘United States District Court for the Middle District of Florida ‘Case Nox 6:15-cv-16-OrlSIKRSCase 6:15-cv-00016-GAP-KRS Document 36-3 Filed 03/09/15 Page.2 of 3 PagelD 207 HutchinsonBlackaniCook Attorneys at Law John ¢, Chine imeocboutecan ‘March 25, 2014 MIA EMAIL AND VS MAIL Melissa W. Nelson. MoGuire Woods Bank of America Tower 50 North Laura St Suite 3300 Jacksonville, FL 32202-3661 [email protected] ‘Re: Brica Kinsman/ Florida State University. Dear Ms, Nelson: ‘Thank you for your lefter of March 15, 2014 and your inquiry into Ms. Kinsman’s willingness to participate in FSU disciplinary matters. Although this request unfortunately comes fifteen months after FSU learned of her assault, she ‘remains willing to provide information in any investigation if sufficient protections for her safety are in place and the ‘process is compliant with Title EX. ‘As stated in our letter of February 21, 2014, Ms. Kinsman is unable to attend classes: or otherwise be on or neat campus dus to threats against her life and well-being. It would, be especially unreasonable to expect het to appear in person on campus for interviews or a Code of Conduct hearing in light of these dangers. Title IX, as you know, requires the University to protect. students like Ms. Kinsman from further sexual harassment or retaliation. Sce Dear Colleague Letter, pp. 4 and 15-17, Although we requested, in our February 21st letir, information about how the University proposed to protect Ms, Kinsman, no such information hes been forthcoming, Ms. Kinsman of ‘course cannot return even briefly-to the Tallahassee area, much fess to her classes and residence, so long as the perpetrators of her sexual assault, their friends, teammates, and flerce supporters remain in the area and unrestricted, It is incumbent on the University to conduct proper investigations and hearings in ways that fully safeguard Ms, Kinsman, This can be accomplished without her coming to Tallahassee, however. For example, meetings and hearing can be held in other locations or telephonically, or by Skype or Google*. 921 Weleut St, Suite 200, Boulder, CO 80302 {Tel (303) 442-6514 | Fax (303) 442-659 Toll Free (800) 303-6514 ‘worwhbeboulder.comCase 6:15-cv-00016-GAP-KRS Document 35-3 Filed 03/09/15 Page 3 of 3 PagelD 208 Melissa W. Nelson March 25, 2014 Page 2 of 2 Itis apparent font your Jetter that no actual investigation into the rape has taken place. ‘The meeting with Mr. Winston and the Associate Athletic Director on January 23, 2014, with no. notice to, or similar miceting with, Ms. Kinsman, not only failed to rise to the level of an investigation, the meeting itself violated Title IX. . See’Dear Colleague Letter p11. Contrary to suggestion in your letter, Mr. Winston could have readily been identified within minutes of notice of the assault to the University on December, 7, 2012, and his identity was in any case known fo.the University in short order thereafter. Also contrary to your letter’s assertions, Ms. Kinsman did not make “an informed decision not to avail herself of the University's formal sexual misconduct complaint process.” Indeed, whe asked about participating in a formal ‘process she unequivocally agreed, Moreover, the directive to communicate with Ms. Kinsman ttirough her counsel in no way prevented such communication or “handicapped” the investigation. Finally, youir letter asked about Ms, Kinshian’s participation in an investigation and related proceeding regarding Msors. Casher and Darby.” First, she is willing to provide information. under the same needed safeguards set forth above for the Winston investigation and hearing. Second, the criminal misconduct of these gentleman has been admitted by them. The record is already replete with mose than sufficient information for severe Code of Conduct sanctions. As you are aware, FSU’s obligations under Title IX belong to the school and are not a burden to be placed on a rape victim. Ms. Kinsman will provide further information as needed for any safe and Title IX compliant process the school initiates but will wait, as she has for fifteen months, for the schoo] to act in compliance with their obligations. Please keep Ms. Kinsman apprised, through us as her counsel, as the investigation and disciplinary proceedings progress. ‘Very Truly Yours, Baine P. Kerr John C, Clune ICChip Ce: Patricia CarrollCase 6:15-cv-00016-GAP-KRS Document 35-4 Filed 03/09/15 Page 1 of 3 PagelD 209 DEFENDANT THE FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES MOTION TO DISMISS EXHIBIT D Erlea Kinsman v. The Florlda State University Board of Trustees United States District Court for the Middle District of Florida, Case No. 6:15-ev-16-Orl-SIKRSCase 6:15-cv-00016-GAP-KRS Document 35-4 Filed 03/09/15 Page 2 of 3 PagelD 210 Mcaurowoods sank a arate ove SD Nh Las eae ‘Suet Jie 12208 3681 hone $04 79 320 Sv SOR BENG? “eevnanegsrencodcom hateanneees | MCGUIRE VVOODS oenrsienti pce March 31,2014 Via: E-Mail and US. Mait John ¢. Clune Hutchinsow Black‘and Cook LLG ‘921 Walnut Street Suite 200 Boulder, CO 80302 Confidential Re: Brica Kinsman Dear Mr. Chime: Thank you for your March 25, 2014 letter; Ab the outset, there {s.r busis for any suiggéstion that the University’s téatmient of Ms. Kinsman and its response to: her allegations have failed to comply with Title IXor any other‘ applicable law. Moreavas, your assertion that Ms. Kinsman previously sought-to participate.in the University’s disciplinary Proves is refuted by the record inthis shatter; indeed, she affirmatively declined to de so, In any event, the University acknowledges Mis; Kinsman's offer to supplement de record with additional information pertaining to her allegations concerning Mr, Winston, Ms, Kinsman may provide that information in any format she desires, inéluding it writing of through plione, or Internet. coxiversation, An inepetson méeting is usually the most effective means of gathering information, and the: University’s Title IX personnel would welcome such a meeting with Ms. Kinsman. If Ms. Kinsman {s-willing to.rneet in-person with the University’s Title IX personnel, we will arrange for the meeting to pccur at a: time and place of Ms. Kinsman's choosing, including af a reasonable location outside of Tallahassee, ‘This accommodation should wholly alleviate any concertis for Ms, Kinsman's safety, Please let us know how you would like to proceed and we'will cdordiriate with the ‘appropriate departments to ensure that. this information, exchange occurs.as soon ax possiiie and in an environment in which Ms. Kingman feels safe. The University will carefully evaluate aay information ptovided and keep you fully apprised of ts response. _Aka [Aoi | ire mehr aot | Neg ‘wp Neto Nena ahrch Ble | ema ho Cer sn [ncupmae) Lecon aCase 6:15-cv-00016-GAP-KRS Document 35-4 Filed 03/09/15 Page 3 of 3 PagelD 211 Confidential March 31, 2014 Page 2 Finally, enclosed herein is a separate letter from the University’s Daan of Students Department pertaining to Messrs. Casher and Darby. We also enclose-a copy of the Student Conduct Code, which outlites the ‘procedites' applicable to: these charges and Ms. Kinsman’s rights under the Student. Conduct Code as a complainant, Specifically, Ms. Kinsman (s entitled to-attend.an information session, at’ which time she can view all. the materials related to the case and receive further information regarding the disciplinary: process. As you will note, these procedures provide for a variety of means by which Ms: Kinsman can participate tn this process, We are available to discuss:in. further detail the options: available to Ms, Kinsman, ‘We look forsvard to:your response. {noerly, “felare elissa W, Nelson, MWN/sj 1 ce: Carolyrt Egan, General Counsel (w/o Enclosures} Patricia Carroll, Esquire (w/a Bnglosures) ‘sssuzee2Case 6:15-cv-00016-GAP-KRS Document 35-5 Filed 03/09/15. Page 1 of 2 PagelD 212 DEFENDANT THE FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES MOTION TO DISMISS EXHIBIT E Erica Kinsman v. The Florida State University Board of Trustees United States Distrlet Court for the Middle District of Florida ‘Case No. 6:15-cv-16-Orl31KRS.Case 6:15-cv-00016-GAP-KRS Document 35-5 Filed 03/09/15 Page 2 of 2 PagelD 213 HutchinsonBlackandCooku. Attorneys at Law John C. Quine luneohbcbouldercom April 1, 2014 VIA EMAIL AND US MATL Melissa W. Nelson McGuire Woods Bank of America Tower 50 North Laure St, Suite 3300 Jacksonvitle, FL 32202-3661 [email protected] [Ret Erica Kinsman/ Florida State University Dear Melissa: ‘Thank you for your letter dated March 31, 2014, Please kocp us posted on the progression ofthe disciplinary maters against Messrs. Casher and Darby. Although the credibility oftheir delayed input on “consent” is highly suspicious, I'm sure you would agree that this type of behavior furthers a sexually hostile environment at Florida State and rust be treated seriously by the University What is conspicuously missing though is disciplinary charges against Mr. Winston. It is now fifteen months since Ms. Kinsman provided a report to Florida State University Police Depertmont about being raped. ‘The identity ofthe offender is known to FSU and the sebool is aware thatthe accused student i still under the contol of and enrolled at Florida State University. Furthermore, my client has repeatedly expressed her willingness o cooperate withthe University. Ms. Kinsman has provided detailed eccoonts of her assault to Florida State University Police Departiment, Tallahassee Police Department, and the State’s Attoruey’s Office. She has also submited to 1 sexual assault examination at Tallshassee Memorial Hospital. All of those reconts are readily available online and are no doubt already in your possession. You have recently provided a lettr to us that indicated that, by contras, the offender is refusing to cooperate with FSU's invest If charges against Mr. Winston are forthcoming, please advise. If they are not, perhaps you can explain why that is. Sincergye, {le — Baine P. Kerr John C. Clune 921 Wialnat St, Suite 200, Boulder, CO 80302 | Te! (303) 442-6514: Fax (308) 442-6893 |Tll Frse(800) 303-6514 ‘worwhbeboalder com scenip (Ce: Patricia Cerroll