ASU wrongfully expelled student accused of sexual misconduct, court rules

Rachel Leingang | Arizona Republic

Arizona State University relied on flawed findings to wrongfully expel a male student who was accused of sexual misconduct, the Arizona Court of Appeals has ruled.

The former student, named John Doe in lawsuits against the university, sued the Arizona Board of Regents, which oversees the universities, and several ASU staffers last year in local and federal courts.

He alleged he was denied due process when he was kicked out of the university after a female student he had sex with at a party said that she was too impaired to consent, that he had provided her with alcohol, and that he had used force during the act.

Last week, the appellate court ruled partly in Doe's favor and a federal court allowed part of Doe's lawsuit to proceed.

The case marks a rare instance of an Arizona court overturning the finding of a university's disciplinary investigation.

Doe's case could signal more lawsuits from students accused of sexual misconduct by Arizona universities. At other schools, similar lawsuits have sought class-action status as the Title IX process has faced scrutiny in some arenas.

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Doe said his educational and civil rights under the federal Title IX law were violated. Title IX is a federal civil rights law that is designed to prevent discrimination on the basis of gender in educational programs and activities.

The case is the latest example of a so-called "reverse-Title IX," where a male student files suit after a university sexual misconduct investigation. In recent years, lawsuits from mostly male students who claim they were wrongly accused or that their disciplinary processes were flawed have gained steam.

That trend has emerged as a type of backlash after the Obama administration called on universities in 2011 to treat claims of sexual misconduct more seriously or face the loss of federal funds.

Doe, like others who filed suit across the country, said the Title IX investigation process was biased against men.

The Court of Appeals said the finding that Doe gave the woman alcohol was likely true, but the claims of sexual misconduct were "not supported by substantial evidence" and that James Rund, who oversees student services at ASU and was the final decision-maker on the complaint, had "abused his discretion" when he concluded Doe had violated the code of conduct on those two matters.

The decision contradicted a Maricopa County Superior Court ruling that found the expulsion justified. The county court docket is sealed, so documents from that court are not available.

The appellate court remanded the case to ASU to "redetermine the appropriate sanction" for the alcohol violation.

In a statement, an ASU spokesman said the university was recently informed about the appeals court's decision.

"We are in the process of evaluating what steps may be taken next. At this time, the university has no further comment regarding this pending litigation," the spokesman said.

What the plaintiff alleges happened

Doe said the woman engaged in a consensual threesome with himself and another man in April 2016, but that she stopped the sex after it became physically uncomfortable.

The third person involved, allegedly videotaped part of the encounter and the woman objected. Doe and the woman argued, and Doe called her "dramatic," according to court documents.

The woman left the party and told a witness that Doe was upset with her because she wouldn't have sex with him anymore, court documents say.

The next day, the woman reported to the Tempe Police Department that she was too drunk to have consensual sex with the two men, the lawsuit says. She completed a physical examination. Tempe police investigated the claim, but Doe was not charged with any crimes.

The other man involved is not identified. It is not clear if he was an ASU student.

The woman reported the incident to the university five months later in September 2016, launching the disciplinary process at ASU. At that time, Doe said he was 15 credits short of graduating.

The county court issued a partial stay of the expulsion and allowed Doe to take online classes at ASU in spring 2018, the federal lawsuit states.

University processes detailed

Court documents in the state and federal cases provide insight into how ASU handles its disciplinary process and complaints from students, a process that's normally not subject to public scrutiny.

For instance, an ASU employee charged with investigating the female student's claims allegedly told the woman she wouldn't "go get" evidence, a federal court document says. Instead, the female student was tasked with providing the university with "whatever documentation you think is relevant.” Doe contended this showed the process was weighted toward the woman instead of a thorough, fair and independent investigation.

Rund relied mostly on the woman's own accounting of the event, the appellate court said. The woman had said she was "extremely drunk" and "was so intoxicated that she was unable to move or try to physically prevent the incident while it was occurring," the court documents said.

For Rund, that meant it was "more likely than not" that she was "incapacitated by alcohol to the point that she was unable to make informed, rational judgments."

But the appellate court decision, written by Judge Diane M. Johnsen, disputed that conclusion.

"A careful review of the record, however, focusing in particular on other statements by Complainant about the incident, shows that ASU failed to prove she lacked the capacity to make an informed choice to engage in sex with Respondent on the night in question. Rund's findings to the contrary are simply unsupported by substantial evidence," the ruling said.

Rund said the woman was unable to say no. The woman testified that she was not able to say the words "I don't want to have sex," the court noted. She also testified that she was "more drunk going out of the room than (she) was going in."

But the court said there were several instances that seemed to contradict her inability to say no, including her ability to tell the men to stop later in the incident.

"The only reasonable conclusion to be drawn from that admission is that if she was able to say she wanted to stop after some 20-25 minutes of sex, even though she was 'more drunk' at the end than when the sex began, she had the capacity to say no in the beginning," Johnsen wrote.

What comes next

Robert Carey, Doe's attorney, said his client is "grateful that someone finally looked at the facts and hopes that the ruling will protect others from an unfair, biased process and staff."

Because the woman is not identified, The Arizona Republic could not reach out to someone for a response on her behalf.

The appellate decision directs ASU to come up with a sanction for only the alcohol violation.

In federal court, U.S. District Judge Dominic Lanza allowed two of Doe's six claims to continue. The other four claims were dismissed, a filing from Dec. 26 shows.

On the federal front, Carey said he and Leonard Aragon, another attorney on the case, will now have the chance to "let a jury decide just how much ASU’s egregious, defamatory conduct harmed our client."

Reach reporter Rachel Leingang by email at rachel.leingang@gannett.com or by phone at 602-444-8157, or find her on Twitter and Facebook.

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