W&L student expelled for sexual assault is allowed to proceed with his lawsuit

ROANOKE — Unhappy with a campus judicial proceeding that led to his expulsion following a sexual assault allegation, a former Washington and Lee University student will be allowed to contest the finding in a federal courtroom.

The student’s lawsuit against the school can go forward, a judge ruled this week.

 

U.S. District Judge Norman Moon wrote in an opinion that the allegations made in the lawsuit, if “taken as true, suggest that W&L’s disciplinary procedures, at least when it comes to charges of sexual misconduct, amount to a practice of railroading accused students.”

Identified in court records only as John Doe, the student cited several grounds for his assertion that an internal judicial process slanted to favor female accusers over male defendants resulted in his being wrongfully found to have had nonconsensual sex with a fellow student.

For one thing, he claims, a university administrator who handled the investigation in November recently had given a talk on campus about “regret equals rape,” or the argument that what first passes for a consensual sexual experience later can be called a rape by a woman who has second thoughts.

In alleging a rush to judgment by the Student Faculty Hearing Board, the student points out that the decision to expel him was made one day after the publication of a Rolling Stone story — since discredited — about an alleged gang rape at a University of Virginia fraternity house. The article prompted a national outcry against what it portrayed as UVa’s culture of indifference to rape victims.

“The negative impact of the Rolling Stone article on UVa influenced W&L’s decision to find the plaintiff responsible for sexual assault so as to avoid a similar fate,” the lawsuit alleges.

Doe has maintained that he and the student had sex that not only was consensual, but was initiated by her after they met at a party and wound up back in his room. His lawsuit states that she never complained about the sexual encounter, or a second one a month later, until after he began dating another woman later in the school year.

Filed in December in Lynchburg’s federal court, the case comes amid heightened awareness of sexual assaults on U.S. college campuses and how they are handled by in-house disciplinary systems. Such tribunals are governed by Title IX, a federal law that prohibits gender-based discrimination, harassment or assault against students at schools and universities that receive federal funding.

Critics say a push by the government to take the cases more seriously has compromised the rights of the accused, nearly all of them male.

There have been at least 75 lawsuits nationwide similar to the one filed against W&L that claim campus disciplinary systems are biased or otherwise flawed, according to A Voice for Male Students, an advocacy group.

Jonathan Taylor, founder and director of the organization, said many of the suits were filed after a 2011 directive from the U.S. Department of Education that colleges and universities crack down on sexual assault.

The schools were told to lower the standard for deciding such cases to a “preponderance of evidence,” which tips the scales in favor of the side with more than 50 percent of the proof. Previously, many schools had used a more rigorous “clear and convincing” burden of proof.

“It’s only now that people are coming to their senses and seeing what is happening behind closed doors,” Taylor said. “I think we will continue to see these lawsuits grow and grow.”

Lawyers for W&L have argued that the school’s process is sensitive to students who file complaints of sexual abuse — and that alone is not gender bias.

While declining to comment on specifics of the case, university spokesman Brian Eckert said Thursday that “we remain confident that we correctly follow our university policies and procedures that have been developed to be consistent with federal mandates.”

The judge’s 20-page opinion, released late Wednesday, allows Doe’s lawsuit to proceed toward a Nov. 16 trial date.

Although the judge denied a motion by W&L to dismiss the lawsuit in its entirety, he handed the school a partial victory by ruling that the student could not bring claims that he was denied due process and that the school breached a contract with him.

The remaining part of the lawsuit deals with the student’s challenge of the campus judicial system’s decision and its Title IX underpinnings. In his opinion, Moon wrote that Doe’s lawyers have presented “sufficient facts to cast doubt on the accuracy of the outcome reached in the proceeding against him.”

A key part of the case is based on public remarks made by Lauren Kozak, who handles sexual assault complaints as the school’s Title IX coordinator. According to the lawsuit, Kozak was speaking at a campus forum when she shared an article about changing views of sexual encounters fueled by alcohol and other influences, and how a woman can realize only later that what might have been consensual really was not.

“Is it possible that there is something between consensual sex and rape … and that it happens to almost every girl out there?” Kozak reportedly said in discussing the article.

In the audience that day was the student who would later accuse Doe of rape. According to the lawsuit, her decision to bring disciplinary charges against him was influenced by Kozak’s “regret equals rape” discussion.

The talk is “particularly significant because of the parallels” it has with Doe’s case, Moon wrote in his opinion. Although the details of what Kozak said may be contested at trial, the judge ruled that at this point in the proceedings her comments could be inferred as gender bias.

In court documents, W&L officials say Kozak denies advancing the “regret equals rape” sentiment and does not believe it to be true.

Doe’s lawsuit also accused Kozak of other procedural errors, such as denying him access to a lawyer as she investigated the sexual complaint filed against him and omitting details that favored his account in a report submitted to the Student Faculty Hearing Board.

In addition to seeking undisclosed monetary damages, the lawsuit asks that the board’s decision be reversed and that Doe be reinstated as a student at W&L.

Source: http://www.dailyprogress.com/news/state/w-l-student-expelled-for-sexual-assault-is-allowed-to/article_8494500c-3d0c-11e5-809b-5b306bab4710.html