A student found responsible for sexual misconduct by the University of Arkansas, Fayetteville was wrongly denied proper notice of the allegations against him, the student's attorney told judges Wednesday during oral arguments before the 8th U.S. Circuit Court of Appeals.
The arguments took place in St. Louis as part of an appeal, seeking to reinstate a lawsuit filed in September 2018 by "John Doe" against the university.
"Doe" claimed in the lawsuit that the school violated Title IX and his due process rights, but U.S. District Judge P.K. Holmes III last April dismissed the suit.
Heather Zachary, an attorney for "Doe," said a "deeply flawed and discriminatory process" led to "Doe" being found responsible for sexual misconduct by a disciplinary panel that, after an appeal, reversed an initial finding by the university's Title IX coordinator.
Court documents state that "Doe" was sanctioned and required "to complete Title IX training, 10 hours of community service and an online sexual violence accountability course."
Joe Cordi, associate general counsel for the university, argued that "Doe" had been given proper notice.
"The plaintiff had notice of what the allegation was that he was found responsible for. He absolutely had notice of that," Cordi said.
Under Title IX, sex-based discrimination is prohibited at schools receiving federal money, and schools are expected to investigate reports of sexual misconduct and sexual harassment. These proceedings are separate from any police investigation. Discipline at UA is based on the standard of whether a student is "more likely than not" to have violated campus policies against sexual misconduct.
"Doe," in the lawsuit, has alleged gender discrimination and also that UA violated his rights in part by not allowing meaningful cross-examination of the woman reporting the assault, identified as "Jane Roe."
Holmes, in his April 2019 order, stated "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."
The lawsuit serves as a challenge of sorts to a UA policy that does not allow for direct cross-examination of witnesses during sexual misconduct disciplinary hearings. The issue of due process has been raised in similar court cases elsewhere as the U.S. Department of Education under President Donald Trump has proposed regulations aimed at bolstering due process protections for students accused of sexual misconduct.
Much of the arguments on Wednesday focused on whether "Doe" received proper notice heading into the panel hearing given the case's outcome.
The panel found "Doe" responsible for misconduct after concluding that sexual contact occurred without consent.
Zachary argued that "Doe" had earlier been informed by the university that "Roe" had alleged sexual contact occurred while she was "incapacitated." The lawsuit refers to whether alcohol affected her decision-making capacity when the sexual contact took place in October 2017.
"In this case, where the university unilaterally limits itself to a certain set of facts, it cannot then expand back up to the general idea without some additional notice," Zachary said Wednesday.
The panel hearing took place after an appeal by "Roe" of an initial finding that "Doe" was not responsible for sexual misconduct. Cordi argued Wednesday that UA policy against sexual misconduct defines sexual assault as sexual contact without consent.
"The policy is clear. Consent can't be passive, it has to be active consent," Cordi said.
Metro on 01/16/2020