FAYETTEVILLE -- An appeal notice filed Monday seeks to reverse a federal district judge's dismissal of a lawsuit alleging the University of Arkansas, Fayetteville wrongly sanctioned a student for sexual misconduct.
The lawsuit, filed under the pseudonym "John Doe" in September, challenged the way UA resolves sexual assault cases in campus hearings.
Nationally, the U.S. Department of Education is aiming to bolster due process protections for students accused of sexual misconduct. Advocacy groups for survivors of sexual assault have criticized various aspects of the department's proposed regulations.
"John Doe" claimed UA violated his rights in part by not allowing meaningful cross-examination of the woman reporting the assault, "Jane Roe."
But U.S. District Judge P.K. Holmes, in his April 3 opinion and order, stated UA's "investigation and resolution process included Doe every step of the way and allowed him multiple opportunities to further develop the record and ensure that Roe was adequately questioned."
Heather Zachary, an attorney representing "Doe," said in an email that the case "is important not only to our client but also to the protection of the rights for all students in the Eighth Circuit," referring to the 8th U.S. Circuit Court of Appeals.
"We have identified significant appealable issues of both fact and law," Zachary said.
In a statement, UA spokesman Mark Rushing said: "We respect the plaintiff's right to appeal, but we believe the U.S. District Court decided correctly in this matter and anticipate that the 8th Circuit will affirm the ruling. The university treated both parties fairly and correctly under the university's policies and under the law."
The lawsuit claimed UA failed to follow its Title IX policy.
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.
Unlike in a criminal court, the University of Arkansas uses a preponderance of evidence standard to determine if a student is responsible for misconduct.
The lawsuit stated "Doe" was a UA senior 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."
Since 2011, "hundreds of lawsuits" have been filed by students accused of sexual misconduct at their schools, Josh Richards, a Philadelphia-based attorney with Saul Ewing Arnstein & Lehr LLP who is not involved in this case, said in an email.
"What rights exactly are guaranteed by the Constitution to accused students -- what 'due process' means in this context -- is a matter that remains largely unsettled under the law and is being actively litigated by students and schools all over the country," said Richards, who specializes in higher-education issues. He said he has not done work for the University of Arkansas.
Attorneys for "John Doe" are Zachary and Alec Gaines with Williams & Anderson PLC, and Justin Zachary with Denton & Zachary PLLC.
Heather Zachary, in an email to the Democrat-Gazette, referred to recent Education Department changes.
In 2017, under Education Secretary Betsy DeVos, the department withdrew earlier guidance issued to schools on how to investigate and settle complaints of campus sexual misconduct. The guidance had been issued under the administration of President Barack Obama.
In place of the Obama-era guidance, the Education Department issued an "interim Q&A" to help advise schools on how to handle such student complaints. Then, in November, the new proposed regulations were published.
"Although the [federal] district court cited to the 2011 guidance several times in the opinion, the 2017 guidance was not mentioned," Heather Zachary said.
Holmes, in his opinion and order, stated: "UA's current procedure strikes an appropriate balance by including the accused in the process during the investigation and appeals hearing, while protecting potential victims from being traumatically cross-examined by the accused."
Holmes stated that "Doe" was "able to submit cross-examination questions to the panel to be asked of Roe, and the hearing panel members were able to ask probing questions of Roe and other witnesses to resolve factual and credibility issues in the case."
Richards, the higher education attorney not involved with the case, said Holmes' opinion is a "direct repudiation of the theory" in part of the Education Department's proposed regulations. The regulations are more detailed than the 2017 guidance.
Metro on 04/23/2019
Print Headline: Appeal calls to reinstate sex-case suit against UA