By Bob Unruh at WND.com
A federal judge has ruled that a series of claims by a student-athlete against his school will go to trial after he was branded a rapist during a campus hearing even though a local prosecutor who investigated said the case should be dropped.
A ruling from U.S. District Judge Arthur Spiegel rejected the request by Xavier University to toss the entire case. It ordered a trial on claims by Dezmine Wells regarding breach of contract, intentional infliction of emotional distress, libel through injury to his personal reputation, his profession reputation and with malice, negligence and discrimination.
The school released only a statement on the dispute.
“We’re pleased that the court dismissed a number of the claims at this point,” the university said. “The court’s decision was based solely on the facts as alleged by Mr. Wells and his lawyers in their amended complaint, as is required by court rules at this early stage in the litigation. After the actual facts are disclosed to the court, we are confident that the result will vindicate Xavier.”
Catherine Sevcenko, an attorney, commented on the website of the Foundation for Individual Rights in Education that Wells was expelled for sexual assault “in spite of the local prosecutor’s public statements that the evidence did not support the accuser’s allegations.”
“The underlying theory of Wells’ case is that Xavier used him as a scapegoat to prove to the Department of Education’s Office for Civil Rights (OCR) that it was cracking down on sexual assault claims after OCR investigated the university for violations of Title IX in 2012,” she said.
WND has reported several times on the federal campaign to have campus disciplinary boards determine guilt based on a preponderance of the evidence, which is far lower that the “beyond a reasonable doubt” in America’s criminal justice system.
A high-profile case that has been used to illustrate the problems created by the lower standard is the case of student Caleb Warner from the University of North Dakota in Grand Forks.
Warner was found guilty of sexual assault by a campus court in 2010, despite the facts established at the time by city police. Officers not only refused to charge him in the case but also alleged his accuser made a false report. Police issued a warrant for her arrest.
Even so, the university process found Warner guilty, and it took 18 months. During that time, Warner not only was banned from the UND campus but also from all college campuses in the state.
In the Wells case, on which the judge ruled this week, court documents outline the scenario: Wells was part of a “truth or dare” game on July 7, 2012, with other students, including his upper-class female resident adviser.
“Plaintiff alleges that during the game his resident adviser exposed her breasts, removed her pants, gave him a ‘lap dance,’ and kissed him several times. He further alleges that later in the evening, the resident adviser invited him to her room, where she asked him whether he had a condom, and where they both willingly engaged in a sexual encounter. Plaintiff alleges multiple witnesses who saw the resident adviser shortly thereafter indicated her demeanor was completely normal.”
However, the adviser later claimed to campus police Wells raped her but said she did not want to press charges, court records show. They also indicate the Hamilton County prosecuting attorney investigated, allegedly doubted the rape accusations against plaintiff, and “attempted to communicate his doubts to defendant … who did not answer messages.”
Despite the circumstances the “University Conduct Board” held a hearing, announced Wells was responsible for a “serious violation” and said he would be expelled.
The statement said: “The Xavier University Conduct Board (UCB), made up of faculty, students and administrators, found Xavier sophomore and basketball player Dezmine Wells responsible for a serious violation of the Code of Student Conduct. The punishment for the violation is expulsion from the university.”
The judge added, “Moreover, in plaintiff’s view everyone knew the statement referred to alleged sexual assault so that at the very minimum it qualified as libel … by implication.”
He explained that the complaint “recounts defendants having rushed to judgment, having failed to train UCB members, having ignored the prosecutor, having denied plaintiff counsel, and having denied plaintiff witnesses. These actions came against plaintiff, he contends, because he was a male accused of sexual assault.”
The final decision will rest with the trial court, but the judge noted that the UCB “may have been in over its head with relation to an alleged false accusation of sexual assault. Such conclusion is strongly bolstered by the fact that the county prosecutor allegedly investigated, found nothing, and encouraged [Xavier] to drop the matter.”
Explained Sevcenko: “FIRE has been arguing that university judiciaries are ill-equipped to handle such serious allegations for years, starting with the case of Caleb Warner. Warner was expelled from the University of North Dakota for sexual assault, a decision the school refused to reconsider after the police issued a warrant for his accuser’s arrest for filing a false police report.”
She said any college administrator “will tell you, school disciplinary hearings are not designed to be the strict equivalent of a criminal trial.”
“But branding someone a rapist without the benefit of meaningful due process protections betrays the fundamental principles of justice. And because courts are often very deferential to internal school disciplinary procedures, when a sitting judge nevertheless publicly casts doubts on those internal procedures, it would be foolish to ignore the possibility that serious reform may be needed.”
WND reported last month that there was a high level of concern because of the Obama administration’s efforts to have such campus cases decided on a “preponderance” of evidence.
FIRE accused the Department of Education of engaging in “bait-and-switch” tactics in a series of negotiating sessions intended to hammer out the fine print of the rules that flow from the 2013 reauthorization of the Violence Against Women Act.
FIRE said the lower standards for a conviction, which are not acceptable in criminal courts, were pushed again at the second of three sessions for the rule-making talks.
“Several negotiators have been explicit about their desire to insert language requiring that campus judiciaries use the preponderance of the evidence standard when deciding sexual harassment and sexual assault cases,” warned FIRE Legislative and Policy Director Joe Cohn.
“This effort to circumvent congressional intent is galling – not only because doing so is clearly beyond the negotiators’ authority under the Negotiated Rulemaking Act, but also because Congress explicitly rejected requiring the ‘preponderance’ standard when passing VAWA reauthorization.”
The rule-making process is part of the effort to implement the VAWA, but FIRE said the Department of Education wants to impose the “preponderance” standard for guilt in criminal cases. That would mean individuals could be branded criminals simply because an adjudication process determines they are more likely guilty than not.
The foundation explained that participants in the rule-making were supposed to negotiate regulatory changes made by VAWA to campus safety and security reporting requirements in the Jeanne Clery Act, which mandates that colleges accepting federal funding publicly disclose information about campus crime.
FIRE said the Department of Education was trying to expand its reach by “addressing issues relating to campus discipline which cannot fairly be categorized as campus safety and reporting requirements.”
FIRE said early drafts of the law had language that would have required the “preponderance” standard, but that language intentionally was removed by Congress.
The draft rules, however, proposed by the bureaucracy, “circumvent congressional intent by including a provision that states, ‘an institution’s disciplinary proceedings are prompt, fair, and impartial if the proceedings … comply with guidance issued by the U.S. Department of Education’s Office for Civil Rights.’”
“In other words,” said FIRE, “the draft regulations would effectively codify use of the preponderance of the evidence standard in campus hearings, despite such a requirement having been considered and rejected by Congress.”
Schools: University of North Dakota Cases: National: Violence Against Women Act Reauthorization University of North Dakota: Accuser Is Criminally Charged with Lying to Police, But School Refuses to Reopen Misconduct Case