Expelled Student's Case Against Xavier Survives Motion to Dismiss

A male basketball player who sued Xavier University after he was expelled for sexual assault prevailed recently in a preliminary ruling when a federal district court denied Xavier's motion to dismiss his Title IX claim.  Dezmine Wells, whose case we have blogged about before,  alleges that he was expelled based on false accusation of rape by his female resident advisor.  He claims that the university failed to conduct a fair and adequate hearing because it had recently been under investigation by the OCR for two other cases in which the university failed to adequately respond to female students' charges of sexual assault, and is presently bound by a resolution agreement with the agency to improve its policies and procedures for handling such cases.  Wells believes that, as a result of this negative attention, Xavier used him as a "scapegoat" to distance itself from its earlier lapses. 

The court determined that Wells's allegations under Title IX were adequate to allow his case to proceed to the discovery phase.  In key part, the opinion reads:

Plaintiff's Complaint puts Defendants on adequate notice that he contends they have had a pattern of decision-making that has ultimately resulted in an alleged false outcome that he was guilty of rape. Whether Plaintiff can unearth adequate evidence to support such claim against further challenge remains to be seen. His Complaint, however, recounts Defendants having rushed to judgment, having failed to train [] members [of the disciplinary hearing board], 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 court also allowed Wells's case to proceed on a second Title IX  theory: that the university violated Wells's rights under Title IX because it was "deliberately indifferent" to the defects in his hearing, about which the university had actual notice. Regardless of what the facts in this case turn out to be, this aspect of Wells's claim is, in my opinion, based on a misinterpretation of Title IX case law. The actual notice/deliberate indifferent test is the test courts use for institutional liability when the underlying discrimination is not caused directly by the institution.  It is only properly used in cases where the plaintiff has been the victim of harassment and assault at the hands of a student, employee, or some other relevant third party, and alleges that the university should have but didn't intervene. It is confusing and unnecessary to use a deliberate indifference theory in a case like this one, where the alleged discrimination was committed directly by the university.

The court also refused to dismiss Wells's claim of libel at this preliminary stage.

Wells v. Xavier Univ., 2014 WL 972172 (S.D. Ohio Mar. 12, 2014).

Grand Jury Won't Press Charges Against Xavier Student Expelled for Sexual Assault

The University of Montana, which we blogged about earlier today, was not the only university in the news this week in a story involving athletes and sexual assault.  A grand jury in Ohio decided not to file charges against Dezmin Wells, a former Xavier student and basketball player who had been expelled for sexual assault.  This decision raised questions about whether Xavier should reinstate the player, which the university has declined to do. In a press release, the university defended the disciplinary procedure that it used to determine Wells's expulsion as compliant with Title IX requirements on how universities' should respond to sexual assault.  The "preponderance of evidence" standard that universities must use in student disciplinary cases is actually stricter than the "probable cause" standard a grand jury uses to decide whether charges should be pressed, so University's decision is in some sense inconsistent with the grand jury's.  On the other hand, the University pointed out that the rules of evidence also differ -- that due to evidentiary rules designed to protect defendants in criminal cases, the grand jury might not have been able to hear all of the evidence than the university conduct board did.  Of course,  both the conduct board and the grand jury's proceedings are confidential, so we're not likely to find out exactly what that evidence could have been.

OCR Investigates Xavier University's Handling of Sexual Assault

In response to a complaint filed by a former student, the Department of Education's Office for Civil Rights is investigating how Xavier University handled that student's accusations of sexual assault directed at another student. Kalyn Burgio, the complaining student, alleged to the university that she was assaulted by Sean Marron in March of 2009. The incident occurred in the several-week period after Marron was had been found responsible by the university for a similar assault against another student, but before he was required to leave campus to serve his suspension.

Burgio alleges that when she reported the incident, the Dean of Students encouraged her to drop the charges in exchange for a promise from Marron that he would leave campus voluntarily. According to Brett Sokolow, a legal expert on campus sexual assault who was quoted in the article linked above, such a conversation, which amounts to the university negotiating on behalf of the accused, would not only be highly inappropriate, but retaliatory and a violation of the victim's civil rights. Such a deal also reportedly violated Xavier's disciplinary procedures, which allow the accused to waive a hearing only if he accepts responsibility for the charges.

Burgio further alleges that the university's disciplinary procedure, which did result in a finding that Marron was responsible for sexual assault against, was nevertheless procedurally flawed and biased toward protecting the university's reputation and accommodating the accused. She alleges that Xavier failed to inform her of her rights to file criminal charges, unduly delayed the disciplinary proceeding, and denied her academic accommodations. In addition, Marron was again allowed to finish the semester before his sentence of expulsion took effect.

This investigation is reportedly one of 30 open investigations being pursued by the Office for Civil Rights, and one of 40 complaints received by the agency since the beginning of 2011. The number of complaints has nearly doubled that of prior administrations, and is likely due to OCR's efforts to clarify universities' responsibilities to protect victims civil rights in the wake of sexual assault, efforts that have included a recent Dear Colleague letter and a couple of high-profile settlements.

Professors Survive Summary Judgment on Employment Discrimination Claim

Today a federal court in Ohio paved the way for trial in an employment discrimination case filed by two female former professors at Xavier University. The plaintiffs alleged that they were terminated from Xavier University because of their sex and age and in retaliation for filing a complaint against the department chair. In support of their sex discrimination claim, the plaintiffs alleged that while they were terminated, a male professor who had supported and collaborated with them in their complaint against the chair, was not. The federal court denied the Xavier's motion for summary judgment on their discrimination and retaliation claims (and the plaintiffs' attempt to win on the retaliation claim on summary judgment) after determining that a jury could find in their favor. The plaintiffs' Equal Pay Act claim will also proceed to trial so that a jury can determine in fact whether the plaintiffs were paid less than other faculty members for discriminatory reasons.

Decision: Finch v. Xavier University (S.D. Ohio, Feb. 10, 2010).