Lawsuit claims male ASU student was improperly expelled for sexual misconduct

Rachel Leingang | The Republic | azcentral.com

An unnamed male university student is suing the board that oversees Arizona's three public universities and several Arizona State University employees after he was expelled from ASU for alleged sexual misconduct.

The man, listed in court documents as John Doe, filed the lawsuit May 29 in U.S. District Court in Arizona.

The lawsuit alleges Doe, who was a junior student-athlete at ASU in April 2016, was unfairly kicked out of the school after university officials decided a woman he had a threesome with at a party was too impaired to consent to sex and he had used force during the act.

Neither the woman nor any other witnesses to the alleged incident are named in court documents.

The first listed defendant in the case is the Arizona Board of Regents, which oversees the universities.

The lawsuit also lists six people associated with ASU’s disciplinary process as defendants, including James Rund, the senior vice president of educational outreach and student services; Craig Allen, Kathleen Lamp and Andrew Waldron, the members of the University Hearing Board at the time of the investigation; Kendra Hunter, the senior associate dean of students and Tara Davis, the ASU employee in charge of investigating the woman’s claims.

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The plaintiff is represented by attorneys Robert Carey and Leonard Aragon of the Phoenix firm Hagens Berman Sobol Sharpiro.

Doe claims his educational and civil rights under the federal Title IX laws 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.

He also alleges violations of due process and equal protection under the Arizona and U.S. Constitutions, breach of contract, gross negligence, defamation, false light and intentional infliction of emotional distress.

Doe will seek monetary damages in an amount to be determined at trial, the lawsuit says. He wants records associated with the disciplinary actions destroyed by ASU. He is seeking to reverse and expunge the expulsion, and he wants to return to ASU to finish his education.

Doe has asked for a trial by jury.

Doe claims the ASU investigation resulted in an "erroneous outcome" that was motivated by gender bias against him.

"Only an anti-male bias to find for the female complainant and against the male respondent can account for the University’s finding," the lawsuit claims.

Doe further alleges ASU has "demonstrated a pattern of inherent and systematic gender bias and discrimination against male students accused of misconduct."

ASU said it has not been served with the complaint yet, and added that the university generally doesn't comment on pending litigation.

Lawsuits like this are typically handled by the state’s risk management division, with legal representation provided by the attorney general or, sometimes, private counsel, ASU said. Unless there’s a conflict of interest, all of the defendants are usually represented by the same attorney, the university said.

The regents did not immediately respond to a request for comment on the lawsuit.

What the plaintiff claims happened

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

The third person involved allegedly videotaped part of the act and the woman objected. Doe and the woman argued, and Doe called her dramatic.

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

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 did not charge Doe with any crimes.

The woman reported the incident to the University in September 2016, which set off a disciplinary process at ASU. At that time, Doe says he was 15 credits short of graduating.

ASU's dean of students found Doe had violated the University's policies by engaging in sex when the woman was incapacitated and providing alcohol to a minor (the woman). Doe says he did not provide any alcohol to her, though they were drinking.

He was subsequently expelled from ASU and banned from attending other universities operated by the Arizona Board of Regents, meaning he could not attend the University of Arizona or Northern Arizona University.

Doe appealed the dean of students' decision to the University Hearing Board. In May 2017, the board found ASU had not properly established that the woman was incapacitated, but that Doe had used force in the encounter. The hearing board concluded Doe should be expelled for "sexual violence," the lawsuit says.

The case was then referred to ASU’s Senior Vice President for Educational Outreach and Student Services for a final ruling. He reversed that board's finding that the woman was incapacitated and upheld the board's claim of sexual violence, meaning Doe remained expelled.

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Doe sued ABOR in Maricopa County Superior Court last year over his expulsion. That case is still ongoing, the lawsuit claims.

The case is under seal, according to a search of Superior Court records. Robert Carey, the unnamed student's attorney, said he requested the seal "because the young man has been stigmatized and humiliated enough.

“If you put a name to the allegations, some people will believe something happened,” Carey said in an email. “Given that the facts show she was lucid and the university didn’t allege sexual violence and the complainant didn’t claim sexual violence, he should remain anonymous."

The court issued a partial stay of the expulsion and allowed Doe to take online classes at ASU in Spring 2018, the lawsuit says.

"Still, Doe remains short of the credits needed for graduation — which has been delayed over 18 months — and his reputation and economic interests have been forever tarnished for the University’s actions," the lawsuit says.

Doe alleges university officials charged with investigating the woman's allegations of sexual misconduct didn't properly request documents or other materials to fully vet the woman's claims. ASU also made no effort to interview the other male involved in the incident, the lawsuit says.

Doe should have faced a fair, impartial disciplinary process, the lawsuit contends.

Instead, the school "intentionally, willfully, recklessly or with callous and deliberate indifference to Doe’s constitutional rights" did not provide adequate notice or fairness in the investigation into the woman's claims, the lawsuit says.

Plaintiff: Reputation damaged

The expulsion damaged the man's career and educational prospects, the lawsuit claims.

"Doe suffered public humiliation and suffered significant embarrassment by being precluded from completing his degree and continuing his collegiate athletic career," the lawsuit says.

The charge of sexual violence and using force wasn’t initially something the woman or University claimed in the hearing process, Carey told The Arizona Republic.

Instead, the sexual violence charge came out of nowhere, Carey said, and the man had no opportunity to rebut it before the hearing board. The first Doe and his attorney heard of the charge was at the ruling, Carey said.

“It’s a kangaroo court and it’s a joke,” Carey said.

The school should have gathered all available evidence to investigate the claims, but instead it relied on the woman to bring forth what she considered relevant, Carey said.

The case seeks to correct what’s been a “travesty” for the young man involved, Carey said.

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