Call to reinstate UA suit says campus panel erred

University of Arkansas students are shown on the lawn in front of Old Main on the campus in Fayetteville in this file photo.
University of Arkansas students are shown on the lawn in front of Old Main on the campus in Fayetteville in this file photo.

A campus panel at the University of Arkansas, Fayetteville failed to follow due process and university policy when it sanctioned a student for sexual misconduct, attorneys argued Friday in a court filing that asks for reinstatement of a lawsuit against the university.

UA policies and procedures were "out of step" with guidance issued in 2017 under Education Secretary Betsy DeVos, the 54-page legal brief states. Among other claims, the filing also states UA failed to follow its own policy regarding consent to sexual activity. In the brief, attorneys challenged cross-examination procedures and the standard of proof used in sexual assault cases handled by UA.

The appeal seeks reinstatement of a lawsuit filed in September under the pseudonym "John Doe" and dismissed in April by U.S. District Judge P.K. Holmes III.

"The University will file a response that will explain why the federal court was clearly correct to reject Doe's allegations and to dismiss his lawsuit," UA spokesman Steve Voorhies said in an email.

Doe's lawsuit argued violations of Title IX and due process when a three-person panel in April 2018 found him responsible for sexual assault in violation of UA policy, requiring him "to complete Title IX training, ten hours of community service and an online sexual violence accountability course."

Title IX is the federal law prohibiting sex-based discrimination at schools that receive federal funding. Federal authorities have said schools must react promptly and effectively to address sexual harassment and sexual violence.

The brief, filed in the 8th U.S. Circuit Court of Appeals, states the "district court's analysis repeatedly relies on a 'Dear Colleague' letter issued by the Department of Education's Office for Civil Rights in April 2011."

Yet the department withdrew that letter and "simultaneously released updated, interim guidance clarifying the constitutional concerns with the old guidance and the institutional processes propagated under it," the legal brief states.

"The University's policy and procedures for resolution of Doe's Title IX case were out of step with the applicable guidance, and the district court erred in relying on an earlier, rescinded guidance for its analysis," the brief states.

The September lawsuit described the sexual assault case as involving a "Jane Roe" and whether she was "intoxicated to the point of incapacitation" during a sexual encounter in October 2017.

The filing by "Doe" claims the panel's decision against him "reflects an improper shifting of the burden of proof -- by examining whether there was evidence of consent rather than examining whether there was evidence of lack of consent, as required by the policy" at UA.

The brief claims that whether "Roe" was incapacitated "does not conclude the inquiry, as the policy requires a separate finding that Doe was or should have been aware of the incapacitation." The court document states the campus panel "expressly found that this was not the case," yet found Doe responsible for sexual assault.

The court filing by "Doe" refers to the UA policy, but does not quote from it directly as it relates to consent. As stated on UA's website for its Sexual Assault and Sexual Harassment policy: "Physically or mentally incapacitated persons cannot give consent," and "Consent may be determined by whether the accused knew, or a reasonable person should have known, that the alleged victim was incapacitated."

The case came before the panel on appeal, as UA's Title IX coordinator had previously found "Doe" not responsible for sexual assault, the brief states. "Doe" in the court document claims the panel outcome was motivated by "gender bias" created by "federal and local pressure," including a "widely publicized protest" by "Roe."

The brief refers to UA not allowing "meaningful" cross-examination of "Roe."

"The importance of meaningful cross-examination in Title IX cases, where the findings often hinge solely on the respective credibility of the complainant and respondent, cannot be overstated," the brief states.

The filing also criticizes the use of a "preponderance of evidence" standard, as advised under the rescinded 2011 guidance. The 2017 guidance stated that schools could use a "preponderance of evidence" or a "clear and convincing" evidence standard.

"Due process required that the University utilize a higher standard than preponderance of the evidence. The life-altering consequences of being found guilty of sexual misconduct demand a higher standard of proof than the 50.01% associated with the preponderance of the evidence standard," the legal brief states.

The court document refers to "Doe" as being allowed to graduate from UA, noting that he was not expelled despite being found responsible for sexual assault.

"The University's 'sanctions' in this case leads to one of two conclusions: (1) either the University crafted a finding of violation against an innocent man but imparted only a light sentence in an attempt to appease all parties and avoid further scrutiny; or (2) the University does not take sexual assault seriously," the brief states.

Heather Zachary and Alec Gaines with Williams & Anderson PLC are listed as representing "Doe," as is Justin Zachary with Denton & Zachary, PLLC.

Metro on 06/22/2019

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