August 18, 2015

August 18, 2015 | Commentary on Legal Issues, Rule of Law

Why Any Male Student Should Think Twice Before Applying to Washington & Lee University

This should terrify any parent whose son is about to head off to college or is presently matriculating anywhere in the Ivory Towers of academia.

The fundamental lack of due process and oppressive tactics used by university administrators at Washington & Lee University (W&L) should lead any family to keep their sons from applying to the university. Male students at Washington & Lee risk serious consequences if they engage in an entirely consensual sexual relationship with a female student who later is convinced to “regret” what she did, or who becomes jealous if the male student starts a relationship with someone else. That is exactly what happened in this case.

The story related to Federal District Court Judge Norman K. Moon, in a civil suit filed by a male student under an assumed name to protect his identity, reads like Kafka’s The Trial.

The student, “John Doe,” is suing W&L for money damages, claiming that his expulsion violated Title IX (the federal law prohibiting sex discrimination in education) and due process, and was a breach of contract. Plaintiff Doe’s key factual allegations, recounted in Judge Moon’s written opinion, are as follows:

John Doe met “Jane” at an off-campus party where they talked, danced, and made out — a not uncommon occurrence among college students. While both of them drank at the party, Jane admitted she was neither incapacitated nor blacked out. At John’s invitation, Jane accompanied him back to his room. After talking for a while, Jane told John “I usually don’t have sex with someone I meet on the first night, but you are a really interesting guy.” She then took “off all her clothing except her underwear and led [John] to his bed, at which point she took John’s clothes off.” They proceeded to have oral sex, followed by sexual intercourse, including at one point where Jane switched positions “so that she was ‘on top.’” Jane never asked John “to stop or advise[d] him she did not want to have sex.” In fact, after they were done, they made out again and then Jane spent the night in John’s room.

When John drove Jane home the next day, they exchanged phone numbers. According to a witness statement prepared by the university, Jane spoke to one of her friends about the encounter that day, telling her friend she had sex and stating she “had a good time last night.” She did not suggest “that anything nonconsensual happened.” Jane and John became friends on Facebook and exchanged suggestive messages where it was clear that Jane did not regret what happened; in fact, a month later she had sex with John again that she “characterized later as consensual,” according to the court.

The facts show that what occurred was not only entirely consensual, but that Jane was more than just a willing participant. Jane continued to go to parties at John’s fraternity, where witnesses saw them interacting in an entirely unremarkable, normal manner. That is, until Jane saw John kissing another female “and left the party early, upset.” It became “public knowledge” that John and this other female “were an exclusive couple.”

Jane subsequently spent a summer break “working at a women’s clinic that dealt with sexual assault issues.” She applied to be a Peer Counselor at W&L, presenting as her qualification research she had done on “gray rape” through a Google search. She was apparently “happy to know that there was ‘some tangible definition’ for what she claimed to have experienced” and “she presented her desire to ‘voice [her] story.’” Gray rape is a newly coined term that, according to Cosmopolitan, refers to sex that falls somewhere between consent and denial.

Jane got upset when she applied for a study abroad program in Nepal and saw that John was also one of the applicants.  She talked to a “therapist” on the “evolution about how she felt about” her sexual encounters with John. Most significantly, she attended a presentation by W&L’s Title IX compliance officer, Lauren Kozak, on her article “Is it Possible That There Is Something In Between Consensual Sex and Rape … And That It Happens To Almost Every Girl Out There?”  Ms. Kozak’s thesis is that “regret equals rape”; that even if a sexual encounter is entirely consensual, if the woman later regrets what she did, the sexual encounter was actual rape. Jane then filed a sexual assault claim against John that was investigated by — you guessed it — Lauren Kozak.

Ms. Kozak notified John that he needed to meet with her and the Associate Dean of Students, Jason Rodocker, within six hours, without telling him why. When John showed up at the meeting and was told what it was about — without being shown the actual complaint — he asked whether he could consult a lawyer. Kozak told him he could not be represented by a lawyer, that the school “won’t talk to them,” and that no lawyer could participate in the investigation. Kozak wouldn’t allow John to postpone the meeting, overrode his expressed desire not to be interviewed without a lawyer, and told him if he didn’t participate immediately, she would submit her investigative report without his side of what happened.

John submitted to the unrelenting pressure and told Kozak what happened. At the end of the interview, she forced him to sign a pledge agreeing not to discuss the investigation with anyone and not to retaliate against Jane. She also asked him for a list of his witnesses. Of the four names he provided, Kozak did not even try to speak to two of them because she said “they already had enough facts.” Even with the very biased and incomplete manner in which Kozak and Rodocker summarized the witness statements, it is clear from reading them that Jane Doe engaged in consensual sex with John — there was no evidence of an assault.

An example of how Kozak slanted the witness statements was her omitting the second half of the crucial statement Jane made to John the night they had sex the first time: Kozak wrote only that Jane had said she usually does not have sex with someone the first time she meets them, leaving entirely out of her summary that Jane then said “but you are a really interesting guy.”

One of the key statements to what is behind this miscarriage of justice came from Jane Doe’s old roommate, who said Jane never told her she thought of it as a sexual assault until after Jane had “worked at a women’s clinic.” And W&L refused to consider the fact that Jane subsequently had sex with John a second time.

The Dean of W&L, Tammi Simpson, told John that if he transferred to another school he would not be formally charged, a bizarre tactic to take for someone supposedly concerned about sexual assault. When he refused, John was formally charged and a hearing was held.

John was given a list of possible members of the court who would hear the case and told he had to immediately voice any objections, with absolutely no information on their backgrounds or potential biases. As a result, he was unable to object to the inclusion of Professor David Novack, who has produced such memorable works as “The Gender Conundrum and Date Rape: The Potential Significance of Dimensions of Power” and “Rape Nullification in the United States: A Cultural Conspiracy.”

John was told he could not discuss the hearing with anyone other than his family, thus foreclosing having legal representation at the hearing. He was refused permission to record the hearing. No direct testimony by witnesses was allowed; only the “summaries” of their statements made by Kozak and Rodocker were presented. Jane was seated behind a partition where John was not allowed to see her or to even question her directly.

John had to submit written questions to the tribunal, which was presided over by Dean Simpson, and they would submit them to Jane only if they thought the questions were relevant. And the questions were not submitted in their actual form; they were instead paraphrased by the tribunal. Moreover, the tribunal refused questions that it thought “would cause [Jane] emotional distress.” Neither Dean Simpson nor the other members of the tribunal had any apparent concern over the emotional distress of John Doe over a false accusation.

Jane Doe’s testimony was full of inconsistencies. Early in the hearing, she described John as “disrespectful, dishonorable, and having treated her as though she was worthless.” But when asked later in the hearing what kind of connection she had with John, “she said that it was great and [John] was smart, interesting, sweet, and genuinely interested in her.” The tribunal, however, “did not question Jane Doe about these inconsistencies.”

Despite the overwhelming evidence of consensual sex, Jane’s inconsistent and conflicting claims, and the blatant falseness of the claim made against John, he was expelled from W&L by a vote of 3 to 1. No explanation was given for the decision, other than the claim that the preponderance of the evidence showed John did not have effective consent. John’s appeal to the University Board of Appeals lost by a 2 to 1 vote, again without any detailed explanation.

The Lawsuit to Vindicate His Rights

Following his expulsion, John filed a Title IX lawsuit, claiming among other things that the investigation and hearing “occurred in an environment that created pressure for the university to punish male students for sexual misconduct.” He blamed the May 1, 2014 announcement by the U.S. Department of Education that universities could lose federal funding if they fail to address problems with sexual violence on campus. This was prominently mentioned by W&L when it announced the appointment of Ms. Kozak as the Title IX officer. In fact, only two weeks after the tribunal voted to expel John, W&L issued a press release entitled “A Time to Examine, Affirm Our Commitments” in response to what turned out to be the false Rolling Stone article about a rape at the University of Virginia that also never occurred.

The court dismissed John’s claim for violation of his right to due process because the Fifth Amendment applies to a private university like W&L only under very limited circumstances. It also dismissed his state law contract claim because the university code did not constitute a contract in Virginia law. One can argue with the dismissal of either of these claims, given the heavy regulation of colleges by the Department of Education and given the relatively weak bargaining position of students, who are asked to assent to the code as a condition of enrollment.

However, the court refused to dismiss John’s claim under Title IX. In this case, the judge held that John has produced sufficient facts to “cast doubt on the accuracy of the outcome reached in the proceeding against him.” John’s allegations, 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.’”

In fact, under the totality of the circumstances shown by John, “including the alleged flaws in the proceedings and statements made by W&L officials, [John] has plausibly established a causal link between his expulsion and gender bias.”  Specifically, a reasonable jury could find that ”[b]ias on the part of Ms. Kozak [caused] the outcome of John Doe’s disciplinary hearing due to the considerable influence she appears to have wielded in those proceedings.” Further, given the pressure W&L was under from the government to convict male students of sexual assault, “a reasonable fact finder could plausibly determine that [John] was wrongly found responsible for sexual misconduct and that this erroneous finding was motivated by gender bias.”

This case is not over even though it should be. The court’s refusal to grant W&L’s motion to dismiss the case means it will go to trial — unless W&L’s lawyers are smart enough to convince the university to pay John a very large settlement.  Because given the facts as related in Judge Moon’s order, John Doe has a very good chance of beating W&L at trial. It appears highly likely that a jury will determine that W&L administrators conducted a one-sided, discriminatory, and unjust hearing of the allegations lodged against John Doe.

Not only should W&L dismiss every university official who was involved in this profound miscarriage of justice, they should also implement basic due process rights for individuals accused in any disciplinary proceeding, as described by a group of Harvard professors last year. That means being entitled to legal representation and detailed knowledge of the charges made against you; to present evidence and cross examine witnesses directly including the accuser; to record and memorialize the proceedings; and to receive a detailed verdict that explains the basis for any findings. The burden of proof should be on the accuser and should require proving an assault occurred beyond a reasonable doubt, not on a mere preponderance of the evidence.

Being convicted for something you didn’t do is a profound injustice. The effects on an individual being expelled from a university for sexual assault are profound and can be long-lasting. And no university should convict a student in a kangaroo court that tramples on basic due process rights, as W&L did in this case.

Until all of these changes are made, any lawyer advising any family would tell them only one thing — you should be extremely careful about allowing your son to apply to or attend Washington & Lee University.

- Hans von Spakovsky is a Senior Legal Fellow at The Heritage Foundation

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

The piece originally appeared on PJ Media