Righting an Old Wrong

A South Carolina jury awarded a former Clemson University student $5.3 million on defamation and civil conspiracy claims last week, the result of a five-year legal battle stemming from unfounded charges of sexual misconduct in 2015.

The lawsuit was against three individuals—not Clemson. But campuses across the country took note.

“That’s a chilling award,” said Peter Lake, Charles A. Dana Chair and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law. “That kind of award, if it stands and isn’t remitted in some way, is very impactful on college business and insurance operations. I would assume that every college in South Carolina is meeting this week to talk about the implications of this. And what’s going to start happening, if you get more of these verdicts, is more Title IX systems will be literally supervised by attorneys. Colleges will have teams of lawyers.”

Andrew Pampu filed the lawsuit in 2017, alleging that his Clemson classmates Colin Gahagan and Erin Wingo, as well as Wingo’s father, David, sought to “defame, harass, abuse and punish” him following a consensual sexual encounter between him and Erin Wingo in 2015, when they were first-year students.

After the encounter, Erin Wingo filed a Title IX complaint against Pampu, alleging she had been sexually assaulted while under the influence of alcohol.

But according to Pampu’s complaint, Wingo had been pursuing him and initiated the sexual contact the night in question, which happened to be his birthday, Oct. 25. Friends reported that Wingo was not intoxicated, and she remembered the encounter well enough the next morning to text Pampu and say, “don’t tell [Colin Gahagan, her on-again, off-again boyfriend] what happened.”

It was only after Gahagan found out about their hookup that Wingo claimed she had been incapacitated at the time. Gahagan reportedly told her, “If you don’t remember, then it’s rape.”

The two began calling Pampu a “rapist” to their friends.

Clemson’s investigation found Pampu guilty of sexual misconduct and suspended him for one semester. When he appealed, his suspension was extended another 12 months.

While the appeal was pending, David Wingo sent a letter to Pampu’s fraternity, Phi Delta Theta, advising the national headquarters of Pampu’s alleged misconduct and pending disciplinary action, in violation of the Family Educational Rights and Privacy Act. Pampu was subsequently expelled from the fraternity.

Then, in January 2017, Gahagan texted Pampu, admitted he had conspired with Erin Wingo on the false rape charge and acknowledged that she had in fact pursued him romantically.

“You’re innocent. I lied in that hearing. Erin wanted to have sex that night,” he wrote.

Pampu sued Clemson for violations of Title IX and the due process clause of the 14th Amendment, settling with the university in 2019 for an undisclosed sum and the removal of the disciplinary citation from his transcript.

The jury trial that concluded last week included the depositions of 23 witnesses, approximately 10,000 pages of documents and 14 discovery motions, according to Pampu’s lawyer, Kimberly Lau of Warshaw Burstein LLP.

“The truth, quite literally, prevailed here,” Lau said. “The jury sent a message that our society doesn’t condone making false allegations of sexual assault, accusing someone of criminal activity when that did not, in fact, occur, because it can be damaging; it can lead to irreparable damages. It’s hard to undo.”

Susan Porter, the lawyer for defendants Erin Wingo and David Wingo, said the case is not closed.

“We are disappointed with the verdict, especially due to several decisions the judge made excluding evidence of our defenses, including any mention of the University’s Title IX investigation, administrative hearing, decision, and subsequent appeals,” Porter wrote in an email to Inside Higher Ed. “We are filing post-trial motions and appeals.”

One of the most significant motions argues that “the court committed reversible error by admitting evidence of damages resulting from the investigation, but not the investigation itself,” said Jake Sapp, chief compliance officer and deputy Title IX coordinator at Austin College. “I think this is a pretty clear-cut example of why the procedural and substantive due process provisions of the [former education secretary Betsy] DeVos Title IX regulations are so important on college campuses. One of the requirements in the new regulations is that all inculpatory and exculpatory evidence has to be reviewed and at least shown—meaning evidence that tends to show the respondents’ guilt, but also their innocence. An allegation in this case was that all the evidence of inconsistency in Erin’s story and all the evidence of Andrew’s innocence was ignored by the college. But all of the evidence that would show Andrew’s guilt was accepted and relied upon by the institution.”

For Pampu, the verdict marked the end of a long nightmare.

“For seven long years, I carried a burden of accountability that was not mine to bear,” he said in a statement. “By the Grace of God and with the support of my loving family and counsel, I was somehow able to persevere throughout the adversity and fight for the truth. I feel incredibly thankful for all members of the jury in Pickens, South Carolina, who chose to end this nightmare for me. I hope that the favorable verdict gives hope to many other young men who are in a position similar to mine.”

In an email to Inside Higher Ed, Joe Galbraith, associate vice president of communications at Clemson University, wrote, “Clemson University is not a party to this lawsuit, therefore has no comment on this case.”

Future of Title IX

Though this wasn’t a Title IX case per se, it stems from a Title IX investigation and has implications for the ever-evolving federal legislation barring discrimination on the basis of sex in federally funded education.

Kathleen Conn, of counsel for King, Spry, Herman, Freund & Faul, noted that the Pampu case started in the Obama era, when the Title IX regulations were “murkier,” and it moved slowly because there was no statute of limitations on filing a complaint.

“The Obama regulations wanted to protect the victims, and they succeeded,” Conn said. “But in the 2020 regulations, there are protections for the complainant but also many more protections for the respondent. Today’s Title IX regulations would have given this young man much more protection, much more due process, more opportunity for his adviser to confront witnesses.”

The 2020 regulations sparked another important change in the way campus Title IX offices are run, Sapp noted: “There has been a major switch from advocate administrators to compliance administrators.”

He expects the Biden administration to reveal more changes to Title IX regulations in the next month or two, which are likely to expand the definition of “sex” to include “gender and gender identity and sexual orientation,” Sapp said.

Lake believes that the current Title IX regulations leave institutions vulnerable to a host of problems, including potential defamation.

“Because, by law, you have to collect narratives. You must collect all relevant evidence that includes, and very likely will include, defamatory matter. And then you have to republish that material to a decision maker and others. And then it may become the basis of other actions by an institution. So, you’re the clown at the dunk tank at the circus while they throw the ball,” he said. “It’s lose, lose, lose on any table you play.”