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story.lead_photo.caption University of Arkansas students are shown on the lawn in front of Old Main on the campus in Fayetteville in this file photo. ( NWA Democrat-Gazette file photo / David Gottschalk)

FAYETTEVILLE -- A federal district court ruling allows a lawsuit to move forward that claims the University of Arkansas, Fayetteville acted with "deliberate indifference" to a student's report of rape.

A former UA student filed the Title IX lawsuit in 2016 in U.S. District Court in Fayetteville. Her case makes claims about the university's response to her October 2014 report that she was sexually assaulted in her dorm room by another student.

The ruling Monday by U.S. District Judge P.K. Holmes III comes after University of Arkansas Office of General Counsel attorneys filed a motion seeking summary judgment in favor of the university.

Holmes used the word "misleading" four times in his 22-page opinion to describe communication from UA to the student now suing the university.

But he dismissed several claims in her lawsuit, including "pre-assault" allegations that UA should have done more to keep the alleged assailant from campus given his history, which included an arrest and a previous suspension.

Mark Rushing, a UA spokesman, said attorneys will bring "facts at trial." A jury trial in the case is scheduled for the week of March 9.

"The university agrees with the court's dismissal of a significant portion of the claims in this case," Rushing said. "With regard to the remaining allegations, the facts at trial will show that the university promptly assisted [the plaintiff], thoroughly addressed the alleged misconduct, and expelled the other student even though no criminal charges were ever filed against him."

Title IX prohibits sex-based discrimination at schools receiving federal funding. Under guidance from the U.S. Department of Education, schools are expected to investigate student complaints of sexual misconduct.

Campus proceedings are separate from any police investigations. UA uses a preponderance of evidence standard, meaning that disciplinary findings are based on whether misconduct is more likely than not to have occurred.

Holmes, in allowing the lawsuit to move forward, wrote about how UA handled an appeal filed by the student after a campus disciplinary panel found him responsible for sexual misconduct.

"The issue is not with the ultimate decision of the appeal -- that decision favors [the plaintiff]. The problem is instead with the University's handling of the appeal and the contents of its original decision and subsequent communications with [the plaintiff]," Holmes wrote.

The three-person campus disciplinary panel recommended immediate expulsion. After the appeal, UA in a letter -- which officials later said had been issued by mistake -- revised the expulsion sanction to be imposed on the student.

"In essence, the University agreed with the panel's decision ... but it delayed his expulsion date until after he graduated," Holmes wrote.

Two UA officials, G. David Gearhart, at the time UA's chancellor, and Daniel Pugh, at the time the university's vice provost for student affairs, considered the appeal, Holmes' opinion states.

The initial January 2015 appeal decision letter -- which UA officials have said was sent in error -- imposed restrictions on the sanctioned student, ordering him to stay off campus for a minimum period of three years or until the student found by the campus panel to have been assaulted was no longer enrolled.

"A reasonable jury could easily find that delaying expulsion until after graduation is not expulsion at all," Holmes wrote.

He also wrote that "the Court is concerned with the notice to [the plaintiff] which outlined the appeal resolution, as that notice appears to be misleading."

Holmes, in the opinion, states that, after the appeal, an electronic notice provided to the student now suing UA "made no mention of the decision to delay the expulsion."

Only after an advocate, Laura Dunn, wrote the university seeking clarification did a university attorney, in a letter, give the effective date of the expulsion, Holmes states in the opinion.

"A reasonable jury could conclude that the first letter was not sent in error and the University originally decided to allow [the sanctioned student] to remain on campus until he graduated. A reasonable jury could further conclude that the University intentionally withheld knowledge of that decision from [the plaintiff]," Holmes wrote.

The former student suing UA "alleges the decision communicated in the first letter to [the sanctioned student] confused her, impacted her mental health, and caused her to question whether [the sanctioned student] was still allowed on campus," Holmes states.

The university, in an updated decision letter, made the expulsion effective back to the December 2014 date of the campus panel hearing, Holmes wrote. The university "still maintains that the January 29 letter was sent in error," Holmes wrote.

Holmes states the university's position as being that the student now suing the university "had nothing to fear after it issued the second letter."

But "the Court disagrees," Holmes wrote, as the student alleging a violation of Title IX "testified as to the heavy toll the University's actions took on her mental health." Based on the "misleading nature" of the original electronic notice and the university's "arguable reluctance to provide accommodations, a jury could find it was reasonable for [the plaintiff] to question whether [the sanctioned student] was in fact expelled, even after the second letter," Holmes wrote.

Holmes, in dismissing "pre-assault" claims, outlined the expelled student's history, which included him grabbing a knife and threatening another male student in a 2009 dining hall argument and also a dispute with a girlfriend. There was also a report that involved him pointing to his waistband and saying "this is for you," which resulted in a call to police and an arrest, according to the judge's opinion.

Holmes wrote that the university "investigated each incident and responded with a sanction it deemed appropriate," and that the sexual assault in question took place more than two years after the student's previous suspension.

The student suing the university withdrew from three courses in the spring 2015 semester but otherwise completed the semester at UA. However, she did not return as a student after spring 2015.

Holmes wrote: "The ultimate question for the jury is whether the University's deliberate indifference following [the student's] report of sexual assault left her with an objectively reasonable belief that she remained vulnerable to harassment so severe, pervasive, and offensive that it deprived her of equal access to the educational benefits and opportunities provided by the University. Because a reasonable jury could make such a finding, the University's motion for summary judgment will be denied."

Following the reported sexual assault, a prosecutor reviewed the case but declined to file criminal charges. The person accused of sexual assault told authorities the sexual encounter was consensual.

In October, the student suing the university filed a civil lawsuit against the expelled student in Washington County Circuit Court.

The lawsuit seeks unspecified damages and cites Arkansas Code Annotated 16-118-107, which allows victims of felony crime to sue for damages. The lawsuit alleges the expelled student engaged in sexual contact by forcible compulsion.

George Rozzell, the attorney representing the student suing the university, declined to comment.

Metro on 11/20/2019

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