Lose-lose at MSU

The student hearings proceeded — even though MSU police hadn’t completed the criminal investigation. Indeed, no charges resulted from the police investigation.

“We find that Mr. [redacted name] violated the sexual harassment policy by engaging in sexual intercourse with Ms. [redacted name] while she was incapacitated,” Amanda Garcia-Williams, institutional equity coordinator, wrote in a report on her investigation. “Mr. [redacted] knew or should reasonably have known of her incapacitation because of his role in supplying the alcohol to Ms. [name redacted]. This unwanted conduct of a sexual nature is sufficiently severe that a reasonable person would find that it created a hostile educational environment for Ms. [name redacted].”

That finding led to six months of administrative hearings and appeals, legal jousting in a circuit court, and the expulsion of the accused rapist from MSU. The accused in the case then transferred to the University of Michigan, and it is unclear, due to federal privacy laws, whether he disclosed his expulsion from MSU during the application process.

As a matter of policy, MSU does not routinely disclose disciplinary actions on transcripts. U of M relies on applicants to selfdisclose any discipline.

The case, as adjudicated at MSU with delays and non-judicial hearings, reflects the challenge many universities face in balancing the rights of the accuser and the accused. Even while a criminal investigation is pending, universities are obligated under federal law to proceed with student disciplinary investigations and hearings, or face lawsuits.

The student’s transfer and the length of time it took to act, as well as the delays in booting the student from MSU, have national sexual assault experts questioning MSU’s processes. City Pulse spoke with several experts on Title IX, but most declined to discuss their concerns on the record because they regularly work with victims. Most acknowledge there were issues with the disciplinary process and balancing the rights of the accuser and the accused. An attorney for the accused assailant argued in Ingham County Circuit Court that MSU’s disciplinary process violated his client’s due process rights as well as his right to remain silent.

All of this played out while the university was the subject of a Title IX investigation being conducted by the U.S. Department of Education Office of Civil Rights. That investigation was looking into specific complaints that the university had failed to adequately respond to allegations of sexual violence on campus. One complaint involved a woman who alleged she had been raped by two MSU basketball players. Such investigations can result in sanctions against the university, as well as mandated policy changes. MSU was one of 55 universities nationwide under investigation in May 2014. U of M was also under investigation.

“I would say that the [MSU] process flies in the face of the spirit of Title IX, which protects victims from harassment and allows a safe educational environment,” said Katherine Redmond, executive director of National Coalition Against Violent Athletes. “There is no reason that someone should be able to use appeals as a means of allowing extra time on campus. I question the school providing an exorbitant amount of appeals.”

Redmond’s organization works mostly with colleges and professional sports teams to address sexual violence among athletes. Redmond is an expert in the expectations of Title IX obligations.

Redmond said MSU’s lengthy appeals process is unique.

In this case, the accused was referred for disciplinary action by Garcia-Williams. The student requested a hearing before the university’s “Anti-Discrimination Board,” which comprises students, faculty and staff. The January hearing found the student had violated the sexual harassment policy and ordered him dismissed from the university, He appealed to the University Student Appeals Board. That body upheld the findings. He appealed again on Feb. 21 to Denise Maybanks, vice president of student affairs and services. On April 4, Maybanks informed the man his appeal had been denied and that he was dismissed from MSU “effective immediately.” In addition, he was warned in the letter that he was prohibited from any MSU property or events, and if he was found to violate that, could be subject to arrest for trespassing.

Shortly thereafter, the accused student hired East Lansing attorney George Brookover and sued the university for violating his due process rights and his Fifth Amendment rights against self incrimination, court records show. Specifically, Brookover argued that the investigation by Garcia-Williams improperly took his client’s silence into account while discounting a polygraph exam that showed the student had not supplied any illegal drugs to Ashley or engaged in sexual conduct without consent.

Brookover argues in the lawsuit that because his client was still under criminal investigation, forcing him to testify in a hearing could jeopardize his rights. Under MSU policy, only the accused student can question witnesses, or call witnesses. The accused in this case had hired another attorney, a criminal defense attorney from the Nichols Law Firm, to represent him. She was not allowed to question Garcia- Williams during the initial hearing.

Brookover also argued the disciplinary hearing violated his client’s rights to confront witnesses against him because only Garcia-Williams was called to testify.

The court issued a temporary restraining order that prohibited MSU from expelling the man during the last four weeks of the academic year. In June, with the year complete, the student dropped the lawsuit, and was expelled from MSU.

Brookover did not return calls seeking comment on this case.

MSU fought the lawsuit brought by the student. MSU spokesman Jason Cody declined to answer specific questions, citing federal privacy laws, but did answer general questions.

“The student judicial process is not a court of law and does not follow the same evidentiary procedures. Students can call whatever witness they want, though the witness has to have pertinent information to the incident,” wrote Cody in an email to City Pulse. “Again, lawyers/advisers play an advisory role only.”

Cody noted the university reviewed and implemented a new policy for students regarding sexual harassment and sexual violence in January of this year. The student hearing process remains substantially the same, with the exception that the decision to suspend or expel a student is now left solely in the hands of the vice president of student affairs.

Rick Fitzgerald, a spokesman for the University of Michigan —where the expelled MSU student transferred — said the university asks transfer and new students to disclose any previous disciplinary actions.

“If a prospective student discloses the violation during the admissions process, the student´s application would be reviewed by a committee, which makes a recommendation regarding admission,” Fitzgerald wrote in an email. “The committee may recommend that a student not be offered admission.”

And what does the committee take into account? Fitzgerald said he could not be specific in a “general context.”

“It does not uphold the spirit of Title IX again, which is to provide a safe learning environment free from harassment,” said Redmond.

Added Redmond, “Again, public K-12 schools have disciplinary issues on their transcripts that colleges review prior to accepting a student. Once the student enrolls in college it no longer applies? That makes no sense.”