Campus Due Process Litigation Tracker

Doe v. Arizona Board of Regents, No. 1 CA-CV 18-0784 (Ariz. Ct. App. Dec. 24, 2019)

School type: Public
State: Arizona
Federal Circuit: Ninth
Decision primarily favorable to: Student
Stage of litigation: Other

The court overturned Arizona State University’s expulsion of a student for sexual misconduct, finding that ASU’s decision that the student had engaged in sexual misconduct was unsupported by substantial evidence. The court upheld ASU’s finding that the student had violated the conduct code by furnishing alcohol to a minor.

Plaintiff was expelled from ASU for sexual misconduct after a female accuser brought a complaint stemming from a threesome that took place after the parties had been drinking. She alleged that she was incapacitated during the sexual encounter. The Dean of Students found Plaintiff responsible for sexual misconduct and ordered his expulsion. Plaintiff then requested a hearing pursuant to ASU procedure, and the hearing board was unable to determine whether the complainant was incapacitated, citing conflicting evidence. However, the board found Plaintiff responsible for sexual misconduct by force. The final decisionmaker, senior VP James Rund, upheld the finding of force but also concluded that there had been incapacitation as well.

A decision is supported by substantial evidence if there is “any relevant evidence from which a reasonable mind might draw a conclusion.” On the question of the complainant’s incapacitation, the court found that while the complainant herself testified that she was excessively intoxicated, “no one else from the gathering” corroborated the complainant’s account. Moreover, the court found, the complainant’s own statements to the police and during the hearing belied her claim of incapacitation and memory loss: “although Rund cited her testimony that she could not remember how she became undressed in the bedroom, Complainant recounted what happened in the bedroom in great detail to police the next afternoon and again during the hearing.”

Ultimately, the court found that “the undisputed evidence of what happened in the bedroom is that Complainant was not too intoxicated to actively participate in at least 20 minutes of strenuous sex.”

The court also held that the finding of force was not supported by substantial evidence. Most importantly, “there was no evidence that Complainant ever asserted that Respondent and Participant used violence, threats, intimidation or weapons to compel her to have sex with them.” Rather, the university relied on the fact that the accuser complained of pain and discomfort during the sex to infer that it must have been forcible, but “those statements do not suggest Respondent forced Complainant to have sex.” Rather, the court found, “Although this evidence does not describe a comfortable sexual experience, it does not support the conclusion that Respondent used force to compel Complainant to have sex.”

Although Plaintiff also brought due process claims in connection with the sexual misconduct adjudication, the court declined to consider those because it had already ruled that the sexual misconduct finding was unsupported by the evidence. The court remanded the case to ASU to determine the appropriate sanction for the alcohol violation.