A Question of Authority

In an unusual sex-discrimination lawsuit, a federal judge barred the University of Virginia from having a hearing for a former student accused of rape, as a consequence of which his degree might be withheld, saying the institution might not have authority to punish him for the alleged incident that occurred off campus.

The former student, who is listed anonymously in court records, sued the university June 25. He requested officials not be allowed to hold the hearing in which his punishment would have been handed down for the rape that purportedly happened more than two years ago.

Three days later, in a remarkably speedy decision, U.S. District Judge Glen E. Conrad agreed with the accused student. Conrad partially granted a temporary restraining order to stop the hearing, writing that the student may have not have been afforded due process during the investigation. Conrad indicated that the university may not have power to discipline the student given the abnormal circumstances of the case. The accuser is not a student, but rather a woman entirely unconnected to UVA, and the alleged episode happened off the campus grounds.

Experts in Title IX of the Education Amendments of 1972 said that the university may have erred in pursuing proceedings against the student under the federal sex antidiscrimination law when its policies may not have applied. Instead, it could have brought more general conduct code violations against him.

“They might not have thought critically about it,” said S. Daniel Carter, president of Safety Advisors for Educational Campuses, which consults with universities about crime and Title IX.

But the public’s (and universities’) focus has been on Title IX. Education Secretary Betsy DeVos two years ago pulled guidance from the Obama administration that advocates credited with giving major protections for sexual assault survivors but critics said diminished due process rights for the accused.

In April 2017, the student met the victim -- Jane Roe in court filings -- off campus, and later they returned to his apartment, also not on campus, where they engaged in some form of sexual activity that the male student said was consensual. At the time, he was in his second year at the university.

Roe later reported to police that the encounter hadn’t been consensual. About a year later, August 2018, an officer with the Charlottesville Police Department reported to the university’s Title IX coordinator that he had been investigating the incident for more than a year but had failed to notify administrators there. The court records did not state why he had waited.

The university opened its own investigation as the new academic year began, when the student was in his final year at UVA and preparing to graduate in May 2019. Ultimately, after interviewing multiple individuals, investigators concluded that there was enough evidence for them to find that student had committed the rape in his apartment. Administrators told the student that his degree would be withheld until the case had been resolved.

The student argued, however, that the university didn’t have jurisdiction over the matter, per its Title IX policies. And indeed, the lawsuit has called into question whether the university’s rules apply. The policy only pertains to conduct that occurs on the campus, or property controlled by the university, or if it occurred within the scope of an “educational program,” such as an internship or study abroad program.

But it would also apply if the misconduct had “continuing adverse effects on or creates a hostile environment” for the campus, which Carter said the university will likely argue is the case. This means in the university’s view, that the student, even as an alumnus, would be a problematic presence for the institution, Carter said.

UVA spokesman Anthony de Bruyn provided a statement on the university’s behalf: “The university takes seriously any allegation regarding sexual assault or harassment. Allegations of sexual assault or harassment by or against university students are promptly and equitably addressed in accordance with the university's policy on sexual and gender-based harassment and other forms of interpersonal violence and its procedures for reports against students. The university intends to defend the integrity of its process in court and will have no further comment regarding the ongoing litigation.”

Carter said that the Clery Act (formally the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act) a federal law that requires universities to track and publicly disclose certain crimes, also prohibits sexual violence. The university could have written its sexual assault policies to comply with this law, which doesn’t have the same geographic limitations as Title IX, he said.

Carter said the university’s standards of conduct, in which it can punish students for physical assault, extend beyond the campus -- to the city of Charlottesville and Albemarle County.

“They’ve made it needlessly harder to pursue sexual violence charges,” Carter said.

Laura Dunn, founder of the law firm L. L. Dunn Law Firm, PLLC, and the advocacy group SURVJustice, said the case likely falls outside of Title IX.

Dunn noted that the student has since graduated, and had the university suspended him in the interim while it investigated, it would have had an easier time adjudicating the case and been assured jurisdiction. She said the university’s general conduct code only might apply.

“The question … becomes can UVA withhold his degree even if he has graduated pending the outcome -- my guess is the university thinks it may have an argument there, but it is not clear to me how it would pan out in litigation,” Dunn said.