And in case you were wondering how to pronounce Brzonkala, according to my expert down at the excellent Polish deli on Geary and 23rd in San Francisco, it's "Zhonkala." The "B" is silent, as in 'tomb.'
Noonan does a great job in "Narrowing the Nation's Power" (U.C. Press, 2002) of describing not only several of the now canonical cases on the new states rights, including Morrison, Boerne and Garrett, but sovereign immunity in Hans v. Louisiana, as well as in the marketplace (it's heavily discounted), and Ex Parte Young and the stripping doctrine, along with supporting references running the gamut from Marbury to Cohens to today.
Noonan, a Ninth Circuit judge, senior in status, I believe, and conlaw prof, uses fictional law clerks ("Harvardman," "Yalewoman," in discussion with a fictional federal appellate judge "Samuel Simple") to dramatize the conflicts and ironies while laying out the context and the trend, critically of the narrowing of national power by the conservative bloc on the Court.
Conlaw as it deserves to be written. Especially good for new teachers. Delicious.
-rs
sfls
To: Zietlow, Rebecca E.
Subject: Re: RE: Morrison
A little late: Here's what I have on the case, from a forthcoming book:
The case involved Christy Brzonkala, a student a Virginia Polytechnic Institute, and two players on Virginia Tech’s football team, Antonio Morrison and James Crawford. Brzonkala alleged that Morrison and Crawford had raped her, and that Virginia Tech protected its football program by covering up the rape and administering only a slap on the wrists to Morrison and no punishment at all to Crawford; Morrison said that he and Brzonkala had consensual intercourse, while Crawford said that he had nothing to do with whatever happened. Virginia Tech did basically side with the football players, but no court or jury ever determined the facts: Rehnquist’s opinion for the Supreme Court stopped Brzonkala’s claim against Morrison and Virginia Tech from going forward, and a grand jury in Virginia decided not to indict Morrison for sexual assault.
Brzonkala was walking with a friend outside her dormitory in September 1994, a few months after she started school at Virginia Tech, when Crawford and Morrison called to them from a third floor window of the dormitory, one floor above Brzonkala’s own room. She and her friend, who didn’t know either man at the time, went to their room. After about fifteen minutes of conversation, Crawford and Brzonkala’s friend left the room. According to Brzonkala, Morrison then “immediately requested intercourse.” When she refused, Morrison raped her. Crawford returned to the room and raped her too. And, again according to Brzonkala, Morrison then raped her a third time, after which he said, “You better not have any fucking diseases” and followed her to her room on the floor below. (Rehnquist’s report of the allegations omits the expletive.) Morrison’s story was different: They had had voluntary intercourse. So was Crawford’s: He had had nothing to do with any sexual intercourse
with Brzonkala.
In the months after the event Brzonkala stopped attending classes and attempted suicide by taking an overdose of thyroid pills. In October (or – again the facts are unclear – in January) she told her roommate that she had been raped, but gave no details. Although Morrison and Crawford lived only one flight above Brzonkala in the dormitory, she did not identify them as her attackers until February 1995. In April Brzonkala filed a complaint against the men under the school’s Sexual Assault Policy. She didn’t report the assault to the police because, she said, she thought prosecution would be impossible without physical evidence. Nor did Virginia Tech report it; the school’s policy was to report all violent felonies except sexual assault to the local police. Virginia Tech held a three-hour hearing, after which it took no action against Crawford because of lack of evidence. The Committee did find Morrison guilty of sexual assault and suspended him for two semesters. The dean of students rejected Morrison’s appeal.
That wasn’t the end of the matter, though. Morrison threatened to sue the university. His position was that he had been “convicted” of an offense that wasn’t included in the student disciplinary code. The school did have a sexual assault policy, formally released in July 1994, two months before the events, but the policy hadn’t been widely publicized, and it wasn’t printed in the Student Handbook. Virginia Tech’s officials were worried that Morrison’s suit might succeed. So, in July 1995, two Virginia Tech officials drove to Brzonkala’s home four hours from the school. They told her about Morrison’s lawsuit and that the school wasn’t willing to defend its actions. They said that the school would hold another hearing, where the prior disciplinary policy would be applied. According to Brzonkala, the school officials assured her that they believed her story, and that the new hearing was just a technicality. She said, though, that the new hearing was a sham: Morrison had access to the prior testimony, but she didn’t; Morrison was given enough time to get affidavits from supporters, and she wasn’t; and she was told that she couldn’t refer to Crawford’s participation because he had been acquitted in the earlier proceeding.
Morrison was convicted again, but this time of “using abusive language.” Though the formal offense was much less serious than the sexual assault, he once again was suspended for two semesters. This time his appeal was successful. The school’s provost upheld the conviction but reduced the punishment to “deferred suspension until graduation,” and a requirement that Morrison go to a one-hour educational session on acceptable behavior. The school didn’t inform Brzonkala that the suspension had been lifted and that Morrison would be returning to school in the fall. Brzonkala believed that the outcome was designed to protect the school’s football program.
Brzonkala sued Virginia Tech under one federal statute, and Morrison and Crawford under VAWA. Virginia Tech settled its suit by paying Brzonkala $75,000. ***
In 1996 Crawford was indicted for participating in a gang rape of another Virginia Tech student. He pleaded guilty to attempted aggravated sexual assault and received a suspended sentence of a year in prison. He lost his football scholarship and went back home to Florida. Morrison was suspended from the football team after he was involved in a bar fight. He spent one semester at Hampton University, then returned to Virginia Tech, where he graduated in 1999 with a degree in human nutrition, foods, and exercise. His lawyer explained Morrison’s difficulty in getting a job as an athletic trainer by referring to the lawsuit: “How’s he going to get hired by a college once people realize he’s the guy all the stuff has been written about? His good name has been completely trashed.” Brzonkala dropped out of Virginia Tech when she found out that Morrison would be returning there in the fall of 1995. She enrolled in a school in northern Virginia, but did not graduate. After moving to the District of Columbia, she began working as a waitress at a “yuppie” bar.
Sources: Facts of Brzonkala case: In addition to the reported opinions, my account relies on Ira J. Hadnot, “Supreme Court Weighs Power of States, Interests of Women in Rape Case,” Dallas Morning News, April 2, 200, p. 1-J; Jan Vertefeuille & Betty Hayden, “Tech Wants Rape Case Dismissed: Accuser Changed Story, School Claims,” Roanoke Times & World News, Jan. 20, 1996, p. C-1; Brooke A. Masters, “’No Winners’ in Rape Lawsuit: Two Students Forever Changed by Case that Went to Supreme Court,” Washington Post, May 20, 200, p. B-1; “The Brzonkala Case, “ Roanoke Times & World News, March 6, 1999, p. A-2; Michael Hemphill, “Brzonkala, Tech Reach Settlement in Lawsuit; U.S. Supreme Court Case Will Proceed,” Roanoke Times & World News, Feb. 26, 2000, p. A-1; Jan Vertefeuille, “Players Are Not Indicted; Ex-Tech Student to Pursue Rape Claim in Federal Suit,” Roanoke Times & World News, April 11, 1996, p. A-1.
Morrison was originally disciplined by the University but the sanctions against him were overturned in the University's appeal process. (those facts are described the Court in Morrison, or maybe in one of the lower opinions). I have heard anecdotally (or maybe I read it in a law review somewhere) that when Brzonkala turned up that fall and saw that Morrison was still in school, she dropped out and she now works cleaning motel rooms. I don;t know if Morrison was criminally charged. I think not, and I'd also like to know why not.
Rebecca E. Zietlow Charles W. Fornoff Professor of Law and Values
University of Toledo College of Law (419) 530-2872 [email protected]
Sent: Monday, February 09, 2004 4:31 PM
Subject: Morrison
One perplexing question that my students raise whenever I teach Morrison is why Christy Brzonkala did not file criminal charges against Morrison. Also, did Morrison simply get away with rape? That is, was he ever punished or held civilly liable? Morrison went on to play for the Chargers in the NFL, or so I'm told. How long did he play and what is he doing now. Did Brzonkala ever recover fully from being raped and from having no effective legal recourse to bring the perpetrator to justice? What is she doing now? I know Judge Noonan has a moving (if I recall correctly) chapter on this case, but I can't locate the book right now.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
Morrison was originally disciplined by the University but the sanctions against him were overturned in the University's appeal process. (those facts are described the Court in Morrison, or maybe in one of the lower opinions). I have heard anecdotally (or maybe I read it in a law review somewhere) that when Brzonkala turned up that fall and saw that Morrison was still in school, she dropped out and she now works cleaning motel rooms. I don't know if Morrison was criminally charged. I think not, and I'd also like to know why not.
(Another exchange from the Conlawprofs listserv)