A Texas Tech athlete, who joined the football team in January 2016, is asking a Lubbock court to reverse a decision by a Title IX hearing panel that found him responsible for violating the school's code of conduct by having sex with an incapacitated woman.

According to the lawsuit, the student filed an appeal following the Sept. 15 hearing that resulted in a two-semester suspension, but the university upheld its findings that the sexual assault occurred.

The student was accused of having non-consensual sex with an acquaintance who was visiting Lubbock the weekend of April 16, according to the civil lawsuit filed by the athlete Nov. 30 in the 99th Judicial District.

The lawsuit identifies the African-American, freshman football player under the pseudonym of "John Doe." He is suing Tech and university President Lawrence Schovanec, claiming his rights to due process were violated, and he is alleging there were "procedural and substantive errors that significantly impacted the outcome" of a Title IX hearing in which he was found responsible for sexual assault.

Students can appeal the outcome of Title IX hearings if they can show bias by the panel, the penalty was not commensurate with typical practices or if there is new information that wasn't available at the time of the hearing.

The student appealed the university's decision on Nov. 4, but the sanction was upheld and was followed by the lawsuit filed Nov. 30, according to a document provided by Tech.

This lawsuit marks a rare case where a university is being sued by a person found responsible for violating a Title IX policy.

"This is the first time we've been sued on one where they weren't happy with the resolution and they've actually taken that step, so it's really new for us," Ronny H. Wall, associate general counsel for the Texas Tech University System, said last month. "That's probably going to make us even more guarded (than) normal because we don't really know what we're in for."

The basis for the student's claim includes alleging the university used an unreliable method to determine if the complainant was incapacitated, accusing the panel of disregarding witness statements and alleging panel members responsible for determining the outcome of the hearing may have had a preconceived bias since he is an African-American male and the complainant was a white female.

A-J Media requested a copy of disposition letters for all students found responsible for violating Title IX between mid-February and December 2016. Disposition letters detail the name of the student, the university policy they were found in violation of and any punishment handed down. Tech released every letter during that time frame, except the one sent to "John Doe."

Instead of releasing the document, Tech sent a letter to Texas Attorney General Ken Paxton on Jan. 20, asking for an open records decision regarding the release of the letter, citing the school can withhold the letter since it is related to civil or criminal litigation where a state employee, such as Schovanec, is involved.

A-J Media sent a letter of appeal to Paxton on Feb. 3 requesting the disposition letter be released since the football player is a high-profile member of the community and therefore has waived his right to privacy.

According to a court document filed Jan. 31, the lawsuit has not been officially served on Tech and could be dismissed during a hearing next month if the suit is not served by March 3.

Lubbock attorney Fernando Bustos, who's represented clients in unrelated litigations involving Tech, said a plaintiff can hold off on serving a lawsuit as part of a legal strategy.

"It may be that either he's trying to negotiate something with Texas Tech before he serves them with the lawsuit, which would trigger their answer deadline, or there may be some administrative procedures he has to clear before he feels like the lawsuit can go on fully," he said. "Those might be some reasons why."

The university does not comment on pending litigation.

Lawsuit details

The football player filed the lawsuit anonymously to "protect the privacy interests of all parties involved in the underlying sexual assault complaint," according to a footnote in the lawsuit.

John Doe's attorney, Brian Roark, would not confirm nor deny the name of his client in this case.

"I am not going to comment on that one way or the other," Roark said in a phone interview with A-J Media.

Roark, whose website says his specialty includes criminal and administrative matters such as sexual assault and Title IX violations, has successfully represented University of Texas athletes who were expelled after alleged sexual assaults.

While Tech officials declined to comment on the lawsuit, Matthew Gregory, Tech dean of students, spoke with A-J Media in January about the Title IX process. He said the university is diligent about due process and makes sure no one individual is a decision maker regarding an allegation.

After a complaint is received, typically more than one person will review it so that no one individual can stop that complaint from moving forward, Gregory said. If there's enough information to support that a policy violation could have occurred, then investigators will begin talking to all parties involved, including any witnesses. Investigators also collect material through social media, documented evidence and police reports.

The sexual assault allegation against the football player was first brought to the attention of Tech officials by the woman.

Tech defines sexual assault as non-consensual sexual intercourse, with consent defined as "mutually understandable words or actions, actively communicated both knowingly and voluntarily, that clearly conveys permission for a specific activity."

One factor that prevents consent from being effective is incapacitation, which the school found was the case between the student and the woman.

Incapacitation occurs when an individual voluntarily or involuntarily lacks the ability to make informed, rational decisions due to "age, mental disability, cognitive disorder, sleep, unconsciousness, involuntary physical restraint, or alcohol and/or drug use," according to Tech.

The student in this case, however, alleges in the lawsuit that "witnesses from that night remember the (woman) being awake, alert, talking, walking and otherwise behaving like a person who had capacity to consent, at all times immediately leading up to (them) having sex."

It goes on to allege that the woman "willingly went into my room, orally consented to go into my room, and willingly began kissing on me - all signs of verbal and nonverbal consent."

The lawsuit does mention that the woman vomited at some point that night, but does not clarify if it was before or after intercourse.

The student's lawsuit questions the university's method in determining whether a person is incapacitated, alleging "new evidence is available which casts doubt on the scientific reliability of the 'intoxication scale' " used in the hearing.

If the case goes to trial, the student would like a forensic toxicologist to testify in court that the intoxication scale is "unscientific and unreliable as an investigative tool."

The intoxication scale used by Tech in the hearing called for witnesses to rate the woman's level of intoxication on a scale of one to 11, the lawsuit claims. The accused student answered with one because he thought the woman wasn't incapacitated.

He said the panel held his answer against him and "obviously believed (he) was intentionally trying to downplay" the woman's level of intoxication.

He points out at least six other witnesses had varying responses to the intoxication scale, ranging from "3 or 4" to "7 or 8."

Only one witness said the woman was "very intoxicated," while the others said she wasn't "hammered drunk," that "you could tell she had been drinking, but she could still manage to collect her thoughts," and that she "was not stumbling, slurring her words, or doing anything that would show outward signs of intoxication."

The lawsuit accuses the panel of taking only the woman's own account of her intoxication into consideration, saying "it seems illogical for (her) to say she was incapacitated and could not consent" but still be able to remember certain things from that night.

The student also alleges the panel ignored relevant witness statements in his favor, and instead, focused on his decision to have an attorney present and that the witness statements were taken at his attorney's office.

The student claims he hired an attorney to help him during a "trying time" because he not only faced a Title IX investigation, but possibly faced criminal charges. The lawsuit does not mention if criminal charges were filed.

Even when a student is found responsible for a Title IX violation that's also a crime, such as sexual assault, Gregory said it's up to the complaining party to determine if they want to press criminal charges. The only time the university would pursue charges against the victim's wishes is if the alleged perpetrator has a history of Title IX violations or if there is a threat to other students.

The football player states that the implication that the witnesses, some of whom were his teammates, would lie on his behalf to the panel because they are "friends" is "ridiculous, unfounded and false," since he knew them only three months or less, according to the lawsuit.

The student claims no witnesses, including the woman's friends, indicated she appeared to be sexually assaulted or claimed to be assaulted the following morning.

"(The woman's) text message the following morning is not consistent with her having been sexually assaulted, nor did she ask for help from any of the people at the apartment, including other women," the lawsuit states.

The student also alleged his rights were violated during the hearing because the woman appeared at the hearing via a Skype video call and not in person. He claims he was not able to view the woman's body language and demeanor and properly question her as a witness.

According to Tech's sexual misconduct policy, parties involved can cross-examine one another, but the questions are asked indirectly through the investigator.

Ultimately, the student's lawsuit contends the sex between him and the woman was consensual. He is asking for a permanent injunction requiring Tech to reverse the sexual assault finding against him and halt the enforcement of his ongoing suspension, as well as removing a permanent mark from his school transcript that shows an affirmative finding in a sexual assault disciplinary case.

Tech officials have said they are unsure if they will settle out of court or if the case will go to a civil trial.

(A-J Media reporter Gabriel Monte contributed to this story.)

sarah.rafique@lubbockonline.com

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