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Title IX lawsuit: Rhodes College enjoined from enforcing student's expulsion

Jun. 14, a judge in the Tennessee Western District Court made a first-in-the-nation ruling by granting a former Rhodes College student’s request to enjoin Rhodes from enforcing its decision to expel him pending the outcome of his lawsuit. The Court ruled that at private institutions:

"In cases involving sexual misconduct, an accused student must have the right to cross-examine adverse witnesses. To adequately assess credibility, which concerns both the accused and the accuser, there must be some form of live questioning of the accuser in front of the fact-finder; written statements of the accuser will not suffice. Even more, the accused, specifically, has the right to confront his or her accuser through cross-examination, via an agent or otherwise."

The lawsuit concerns violations of Title IX for gender discrimination and breach of contract. The Plaintiff, identified only as John Doe, was a senior at Rhodes College set to graduate in May 2019. He was also a member of the Sigma Alpha Epsilon (SAE) fraternity and played football for the college. In Feb. 2019 Rhodes sent an email alert to all students, faculty, and staff that a sexual assault was reported on campus. The Memphis police department also came to question students on campus. Doe and another football player were investigated by the Title IX department.

According to the lawsuit, Rhodes’ Title IX investigator, Emma Davis, interviewed fourteen witnesses. Not one witness with personal knowledge was able to corroborate that the female student was sexually assaulted; the only evidence supporting the alleged assault were statements made by the victim to her friends while she was incapacitated and intoxicated. In an interview with the Title IX investigator, the victim stated that she recalled a female student being present while the assault was happening. However, when the investigator interviewed this female student, she did not ask about the allegations against her, according to the lawsuit.

On Apr. 5 Rhodes charged Doe and the other football player with violations of Rhodes College’s sexual misconduct policy. A hearing was held on the matter on Apr. 17. Both accused male students appeared and denied wrong doing. The victim of the alleged assault did not attend or participate in the hearing and was not subject to any questioning by the decision panel or subject to cross-examination of any kind.

No witness testimony supported the victim’s contention through any form of direct evidence. The only testimony that related to Doe and the second male student’s conduct towards the victim was that they attempted to help her and that they contacted her friends to come and pick her up. No testimony placed the two male students alone with the victim. The only testimony placing Doe alone with the victim indicated they were alone for five minutes after a friend was contacted to pick the victim up. Every witness who was present at the SAE party testified that they were regularly in the presence of the victim and nothing happened, according to the lawsuit.

Before this order was given, Rhodes argued that two courts within the district recently held that a plaintiff’s allegations that constitutional due process was violated because a university did not allow cross-examination does not stand when the claim is made through a breach of contract claim against a private university. However, the Court found these recent cases to be distinguishable from the one against Rhodes, since Doe’s lawyers, Brice Timmons and Megan Arthur, argued that the claim regarding cross-examination, invokes due process concerns under Title IX, not a breach of contract theory.

Rhodes’ decision “relied on testimonial evidence and statements of the victim given prior to the hearing,” according to the court order. Rhodes’ decision “necessarily involved credibility determinations as to the witnesses before it because the testimony of different witnesses contradicted each other with regard to Plaintiff’s guilt.”

The Court noted that the nonappearance of the victim to the alleged assault “appears to be a significant denial of due process.” Because of this, the Court found that Doe “presents facts sufficient to cast some articulable doubt on the accuracy and reliability of the disciplinary proceeding’s outcome and satisfies the first consideration of an erroneous outcome claim under Title IX.”

After conducting its analysis of the appropriateness for injunctive relief, the Court granted Doe’s request that it enjoin Rhodes from enforcing its decision to expel Doe pending the outcome of this suit. The Court noted that Doe provides “facts sufficient to demonstrate a substantial likelihood of a particularized causal connection between the flawed outcome and gender bias.” The Court also found “that the public attention caused by the protests and social media posts of Culture of Consent apparently lodged at fraternity members (which are necessarily male) at Rhodes that play for the school’s football team, may have put pressure on [Rhodes College] to confirm that it took sexual misconduct allegations seriously.”

An evidentiary hearing has been set for Jul. 10 before Judge Fowlkes.

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