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Lawsuits against community college that targeted student athletes for Title IX complaints may proceed

Court sides with former students, denies qualified immunity to senior college administration officials.
Garden City Community College former president Dr. Herbert Swender

Garden City Community College former president Dr. Herbert Swender on June 12, 2018, during a GCCC Board of Trustees meeting. Swender’s contract was terminated in August 2018 after an investigation by the Faculty Senate accused the president of “bullying, intimidating and harassing students, employees and volunteers.” (Photo courtesy of Josh Harbour)

Intimidation, harassment, and blackmail are just a few of the stunning allegations levied against Garden City Community College and certain college administrators in two separate lawsuits filed recently. Now, after rulings from a federal district court, those suits will proceed.

The U.S. District Court for the District of Kansas denied motions filed by GCCC to dismiss separate lawsuits that allege senior college officials, including former President Herbert Swender, retaliated against student athletes Shaney Tiumalu and Elizabeth Everett, and student athlete host mom Antonia Douglass, after they accused the college of violating their civil rights under Title IX, the federal statute that prohibits discrimination based on sex in federally funded educational programs.

Last year, FIRE wrote about the settlement of another case against GCCC, where Swender had threatened faculty and staff against speaking to the media and even went so far as to conduct a search of their cell phones in an attempt to root out critics. Swender’s contract was terminated in August 2018 after an investigation by the Faculty Senate accused the president of “bullying, intimidating and harassing students, employees and volunteers.”

The new lawsuits include fresh allegations of misconduct during Swender’s tumultuous tenure at the community college and should serve as a cautionary tale to academic leaders who believe they have the singular authority to abridge the rights of their students. 

Shaney Tiumalu, for example, alleges that GCCC misled her into believing she was awarded a scholarship that did not exist through “deceptive and unconscionable practices and misrepresentations and then billing her for more than $13,000,” according to the court’s order authorizing her lawsuit to proceed. Her accusations sparked a Title IX investigation, after which, the lawsuit alleges, Swender orchestrated a “fake blackmail” complaint against Tiumalu and reported her to the police, who visited the student at her dorm room “to scare her.”

Excerpts from a lawsuit involving a student athlete and Garden City Community College.

Pattern of deception and intimidation

Trouble began over confusion regarding Tiumalu’s supposed “full ride” scholarship to play volleyball for the college, and whether that scholarship paid for just tuition or room and board as well, as she was led to believe. However, as a member of the Kansas Jayhawk Community College Conference, it was against conference rules for GCCC to offer athletic scholarships that included room and board to athletes in any sports, according to court documents.

During her first year as a Broncbuster at GCCC, from fall 2016 to spring 2017, Tiumalu lived on campus and was not billed for room and board. She briefly left the dorms at the end of the spring 2017 semester and returned in June to find student housing at odds with the athletic department over the terms of her scholarship. That’s when things got strange.

In the first of many bizarre events, Tiumalu was instructed to vacate the dorms and live at the private residence of Athletic Director John Green over the summer while the college decided what to do about her scholarship. She was urged to stay quiet about her living arrangements. Tiumalu returned to the dorms for the fall 2017 semester and was told of a plan to “help her pay her bill,” which involved taking cash from her volleyball coach, delivering it to the college’s business office, and bringing back a receipt. 

Throughout all of this, Tiumalu was assured multiple times by her coaches that the conditions of her scholarship would be honored. However, after returning from winter break in 2018, Tiumalu discovered she was no longer enrolled in classes and had an outstanding bill of $8,500 for room and board.

Fearful for her academic future, Tiumalu wrote a letter on January 25, 2018, describing the unusual circumstances surrounding her “full ride” athletic scholarship, including living off campus at the athletic director’s residence. Although the lawsuit does not identify the original recipient of Tiumalu’s letter, human resources at GCCC received a copy of her letter, which triggered a Title IX investigation. A copy of her letter was also sent to the Kansas Jayhawk athletic conference, which initiated its own investigation into GCCC.

After this, Tiumalu’s lawsuit accuses the college administration — at the direction of then-president Swender — of launching a campaign of retaliation and intimidation against her. While inside the college’s administration building attempting to resolve the outstanding bill for room and board, she “noticed that GCCC President Herbert Swender and HR Director Clouse were watching them, circling them and ‘staring [them] down.’” Then, according to the lawsuit, an “unidentified person” contacted the Garden City Police Department and reported that Tiumalu was attempting to “blackmail or extort” the college: 

That same day, Detective Freddie Strawder, an employee of GCPD and an adjunct criminal justice instructor at GCCC, along with another officer visited plaintiff in her dorm room. Plaintiff did not engage in a meaningful discussion with them because she felt threatened by two officers coming to her dorm room. At the time, she believed that President Swender had sent the officers to her dorm to “scare her”...After contacting plaintiff, Detective Strawder talked with two GCCC instructors who knew plaintiff and warned them to “watch how involved they were with students [like plaintiff] who had issues” because “it could get them drawn into trouble themselves.” Detective Strawder filed a police report about the incident, dated May 15, 2018. GCPD then dropped its investigation.

Jailed for speaking out

Around the same time, GCCC student Elizabeth Everett faced similar retaliation after filing a Title IX complaint, according to a separate lawsuit

From the fall semester of 2017 through spring of 2018, Everett alleges that “her cheer coach Brice Knapp had sexually harassed her,” and that in February of 2018, “a fellow cheer squad member Henry Arenas blackmailed her and demanded that she perform sexual acts with him or he would publicly release a compromising party picture of her.”

The lawsuit alleges that Knapp “had been the subject of several prior sexual harassment complaints involving cheer women, and GCCC’s Athletic Director . . . John Green knew about these complaints.”

Everett says she was “denied educational opportunities because she could not participate in extracurricular activities; lost friends and was held up to public contempt and ridicule; and suffered extreme emotional distress that affected her grades and overall wellness.”

When Green called Everett into his office for an “unsanctioned Title IX hearing,” which included Knapp, “Everett texted Antonia Douglass, a host mom for GCCC student athletes, for help.” Everett left with Douglass shortly after the host mom arrived, and was urged to speak out about “the cheer squad’s sexual harassment issues.”

When Everett filed a Title IX complaint, the lawsuit alleges that GCCC “started to retaliate against Everett,” which included an anonymous phone call to the police reporting Everett for making a “criminal threat against a peer” in a text exchange. Everett was subsequently arrested by GCPD on May 10 and charged with “making a criminal threat and causing terror, evacuation or disruption.”

Everett spent a terrifying night in the GCPD jail, during which time, “unknown individuals with access to the jail brought Everett’s accuser through the jail, where the peer taunted her from outside her cell . . . Detective Freddie Strawder, a GCPD employee and an adjunct criminal justice instructor at GCCC, admitted in his official police report that the GCPD lacked probable cause to arrest Everett for her text.”

FIRE submitted a public records request to GCPD asking for “Any police reports or records relating to the May 10, 2018, arrest or charges against Elizabeth Everett.” The documents provided by GCPD appear to have been almost fully redacted, as the pages are largely blank and contain few details of the allegations against Everett.

Like Tiumalu, Everett’s lawsuit asserts that Swender, “with the support of the Trustees and the GCCC Campus Chief of Police Rodney Dozier, directed someone at GCCC to call Detective Strawder” to intimidate her. However, neither student appears to have been aware that the other was facing similar retaliation for a Title IX complaint.

Spying on students

On May 8, 2018, a faculty whistleblower notified the college’s Board of Trustees of Tiumalu’s ordeal. The board hired an independent investigator, who did not interview Tiumalu, but did submit a report that contained “false or unsubstantiated assertions” regarding Tiumalu, according to her lawsuit against GCCC. The board then made the report public “without effectively redacting her identity, private records, and information.”

The Board of Trustees later called for an investigation into Everett’s Title IX complaint, and that report also contained, Everett alleges, “misstatements of fact and fraudulent findings.”

This is when things go from bad to worse. According to information obtained by FIRE through a Kansas Open Records Request, on May 10, 2018, someone named “K. Dee King” submitted a public records request for the emails of 20 individuals at the college, including correspondence between Tiumalu, Everett, and several other students at GCCC. In the event of a public records request for student information, the college is legally obligated to review the requested materials to determine if releasing them would violate the Family Educational Rights and Privacy Act, or FERPA, which regulates access to education records. Tiumalu’s lawsuit alleges the request for emails was “fake” and really an attempt to give university officials cover to dig through students’ email accounts, likely as “a fishing expedition concerning individuals who might be termed ‘critics’ of the president.”

Garden City Community College former president Dr. Herbert Swender
Garden City Community College former president Dr. Herbert Swender (center) listens as faculty president Phil Hoke expresses concerns of Swender’s leadership on May 8, 2018, during a GCCC Board of Trustees meeting. (Photo courtesy of Josh Harbour).

After Tiumalu spoke to the media about her ordeal, members of the board all but endorsed the president’s actions. They “expressed frustration with plaintiff’s lawsuit,” which some board members claimed “harmed the college financially,” and further insinuated that plaintiffs like Tiumalu are “bad people” who are “essentially pariahs in the Garden City community.”

In her complaint, Tiumalu claims actions and comments by GCCC officials had “damaged her athletic and professional career, economic standing and reputation in the community,” and she was unable to graduate because GCCC’s deception and delays left her six credit hours short. For the next year, GCCC continued to send her bills for room and board totaling more than $13,000. 

Likewise, Everett claims she was “denied educational opportunities because she could not participate in extracurricular activities; lost friends and was held up to public contempt and ridicule; and suffered extreme emotional distress that affected her grades and overall wellness.”

GCCC asked the court to dismiss both lawsuits on grounds that the plaintiffs “failed to sufficiently plead the facts” to support their claims as well as “mistat[ed] alleged facts.”

Ultimately, the court sided with the students. In denying the motions to dismiss, the court also denied qualified immunity not only to former president Swender, but also to the trustees, finding that in endorsing the former president’s actions, they failed to defend the students and should have known that their speech was protected. 

As FIRE reported last year, GCCC recently settled another lawsuit for $87,500 for violating freedom of speech and more when Swender threatened faculty and staff not to speak to the media. If the current lawsuits progress in a similar fashion, GCCC may once again pay a hefty price for infringing civil liberties.

FIRE has long argued that college students are deserving of the same rights on campus as they are afforded in public life away from campus, and that academic leaders who abuse their authority by violating well-established student rights must be held accountable. FIRE will continue to monitor lawsuits against GCCC as they progress through the courts.

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