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Judge: School’s sexual assault proceeding suggests ‘bias and inaccuracy’

Another judge has ruled that a school’s disciplinary proceeding against a student suspended for sexual assault was unfair, and has denied the school’s motion to dismiss a lawsuit filed by the student.

U.S. Magistrate Judge Craig Shaffer listed a litany of problems in Colorado State University-Pueblo’s proceeding against former student and football player Grant Neal, concluding the school’s Title IX officer, Roosevelt Wilson, likely erred in his investigation, which led to an erroneous finding of responsibility.

“Wilson’s alleged failures to (among other things) consider that Jane Doe told Wilson the sexual encounter was consensual, the physical or documentary evidence in which she consistently said the same thing, her motivation to not be disciplined by her department for her prohibited relationship with a football player …

Wilson’s failure to question any witnesses favorable to Plaintiff (e.g., Coach Wristen), and Wilson’s failure to identify to Plaintiff the witnesses against him before completing the investigation all suggest bias and inaccuracy in the outcome,” Shaffer wrote in his 58-page decision.

The decision came in a lawsuit brought by Neal and stemmed from an October 2015 sexual encounter with a fellow student, identified in court documents only as Jane Doe. Neal was a football player, while Doe was in the school’s athletic training program. As an athletic trainer, Doe was prohibited from entering into a relationship with Neal. The two did so anyway.

The difference between Neal’s case and dozens of other sexual assault accusations is that both Neal and Doe maintained the sex was consensual. It wasn’t Doe who made the accusation against Neal, but one of her peers, who noticed a hickey on her neck and asked Doe about it. Doe acknowledged she had sex with Neal, but gave no indication that it was not consensual. The peer reported the incident as rape to CSU-Pueblo’s director of athletic training anyway.

Doe found out about the accusation and texted Neal, saying she had to speak with him “AP after practice.” She also said she had “been running around all day talking to so many people, trying to make things right!!!” She also texted: “One of the other Athletic Training students screwed me over! … She went behind my back and told my AT advisor stuff that wasn’t true!!! I’m trying hard to fix it all.”

Neal met with Doe to figure out what was wrong. His lawsuit says Doe was crying, so he thought she was in trouble for sleeping with a football player. When Doe told him her peer had reported him for sexual assault, he began to record the conversation while he and Doe sat in his car.

Doe told Neal in the recording that she wasn’t raped. She also received a phone call from Dr. Roger Clark, the director of athletic training, and his wife. Jane told them over the phone “I’m fine and I wasn’t raped.” Neal had recorded this phone call and another between Doe and her mother where she asked her to clear the situation up with Clark. Neal says in his lawsuit that he and Doe returned to his home to engage in sexual intercourse again.

Doe allegedly maintained her story to Title IX Officer Wilson, telling him that Neal was “a good guy” and that he was “not a rapist, he’s not a criminal.” She even said the situation was “not even worth any of this hoopla!”

From this third-party accusation, however, an investigation ensued that would lead to Neal’s suspension that would last until Doe graduated.

In an interview with Reason‘s Robby Soave, Neal said he figured out early on in the investigation that he was going to be railroaded. A “no-contact” order had been put in place between the two students, but Doe was still texting and snapchatting Neal.

“I said, well, she’s snapchatted me, what do you want me to do? [Wilson] told me to open [the snapchat messages] and take a screenshot and send them to him, so I did that,” Neal said. [Wilson’s] email response back to me was, ‘You could be potentially be in complication with your no contact order for opening the snapchats that she sent you.’”

Wilson had told Neal to open the messages, and then told him he could be punished for doing so.

“That’s when I immediately knew,” Neal told Soave. “That’s when I really knew that the situation was above my control.”

Neal’s lawsuit also stood out because it was the first of its kind to include the U.S. Department of Education as a defendant, arguing that 2011 guidance from the Department’s Office for Civil Rights forced school’s to take such an extreme response to accusations of sexual assault.

Shaffer dismissed the federal government as a defendant, but granted Neal and his attorney, Andrew Miltenberg, the ability to amend the complaint in the future if they can prove directly that the 2011 guidance was responsible for Neal’s treatment. Shaffer also denied CSU-Pueblo’s motion to dismiss, meaning the case will continue.

Court rulings finding fault with school disciplinary processes are piling up, and at some point the Trump administration is likely to weigh in on the Obama-era guidance.

Part 4 of 4 in the series Due Process Wins

  1. Judge: Disparity in campus tribunal ‘enough to shock the Court’s conscience’

  2. Judge: Cornell caused ‘actual harm’ to student accused of sexual assault

  3. Judge: Accused students have right to cross-examination

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