College Athlete Accused of Sexual Assault Under Title IX Takes on School & U.S. Government
By Ellen J. Staurowsky, Ed.D., Professor, Sport Management
Overview
Since the issuance of a “Dear Colleague” letter in 2011 by the United States Department of Education Office for Civil Rights (DOE-OCR) clarifying obligations college and university officials have under Title IX of the Education Amendments Act in handling sexual harassment and assault cases, numerous lawsuits have been filed by male students alleging that they have been subjected to gender bias, defamation, bad faith dealings on the part of university administrators and committees, denied due process, and wrongly investigated for sexual encounters that they believe were consensual (examples include John Doe v. Brown University et al., 2015; John Doe v. University of Chicago et al., 2016; and, Montague v. Yale University et al., 2016). In April of 2016, a former football player and wrestler who had majored in pre-med at Colorado State University-Pueblo (CSUP), an NCAA Division II institution, contributed to that litigation trend by filing a complaint in the U.S. District Court for the District of Colorado alleging gender bias stemming from a flawed investigative process triggered by a complaint from a third-party who had indirect knowledge of a sexual encounter between Neal and a female student, referenced in the suit as Jane Doe. This suit is distinguished from others in this line, however, because it not only attempts to call into question the administrative processes followed by CSUP and its officials but also seeks to cite the Department of Education’s Title IX “directive” (what others refer to as “guidance”) as a cause for Neal’s wrongful investigation and subsequent suspension from the school.
Allegations Leading to CSUP’s Actions Against Grant Neal
At the time Grant Neal was accused in the fall of 2015, he was a sophomore student at CSUP majoring in pre-med biology with a 3.67 cumulative grade point average (GPA). His goal was to become an orthopedist. As a successful multi-sport athlete, he competed on both the football and wrestling teams, earning recognition in his first-year as a Regional 2 freshman player of the year in football. Under NCAA Division II scholarship rules, which are based on partial-scholarship allocations, Neal was awarded athletic scholarships for both football and wrestling. His achievements in the pre-med program also garnered him two academic scholarships as well.
According to the lawsuit, Neal and Jane Doe became friends in the fall of 2014. Both were new to the University at that time, with Neal being in his first year and Doe having transferred from another institution into the athletic training program (AT program). Inclinations to pursue a romantic relationship were put on hold because of a rule barring athletic trainers from fraternizing with the athletes they worked with. Their attraction, however, did not abate and in the second year, intensified. On Sunday, October 25, 2015, they consummated their relationship with what Neal and Doe both claim was consensual sex.
The next day, observing a hickey on the neck of Jane Doe and asking about it, another female athletic trainer (who would eventually become the on-campus complainant) learned that Doe and Neal had had sex. Jane Doe’s classmate in the athletic training program allegedly assumed in error that Doe had been taken advantage of by Neal.
This third-party report was then shared with the director of the athletic training program who spoke with another athletic training faculty member (who happened to be his wife) and ultimately shared it with the CSUP’s Title IX officer. Realizing that these conversations were happening, Jane Doe sought to speak with Neal, expressing her concern about the events that were unfolding. For Neal’s part, understanding the magnitude of being accused of sexual assault and facing the prospect of being characterized as a rapist, he recorded his conversation with Doe as they sat in her car and debriefed on some of what she had learned that day. Doe explained to Neal that she attempted to rectify whatever miscommunication had led to the misunderstanding. As stated in the complaint, “The audio recording revealed the friendly and genuine rapport between Plaintiff and Jane Doe. Further, unaware that she was being recorded, Jane Doe clearly stated to Plaintiff that he did not engage in any inappropriate or harmful behavior and that he did not rape her” (p. 21). The recording substantiated that in the course of the conversation between Neal and Doe while they were in the car, the athletic training director and his wife called her, wherein Doe is on tape as having assured them that “I’m fine and I wasn’t raped” (p. 21). Doe went on to contact her mother, explained the situation, and asked her mother to call the athletic training director to help in clearing up the matter.
The athletic training director’s wife, who was also a member of the faculty, allegedly elected to investigate the incident herself, asking Jane Doe along with two other female athletic training students to lunch to discuss the situation. During that lunch, they are reportedly to have “…reached a consensus evaluation that Plaintiff had engaged in misconduct…” (p. 23). *
CSUP’s Processes Questioned on the Basis of Fairness & Impartiality
The fairness and impartiality of CSUP officials are challenged in Neal’s complaint on several fronts. First, the chain of reporting features an account from a third-party who was a peer of Jane Doe’s in the AT program who did not have first-hand information about a sexual encounter the parties describe as consensual. Second, the athletic training director allegedly reported an unsubstantiated claim to the Title IX coordinator. And third, the Title IX coordinator appears to have failed to consider the nuance of the facts underlying the account presented, meaning that Jane Doe’s initial account of what had happened, may have opened the door for her classmate to assume the worse and been motivated by Doe’s desire to avoid getting into trouble for breaking the AT Program’s prohibition against fraternization and pursuing a relationship with an athlete.
Within two days of the first sexual encounter between Neal and Jane Doe (a second one would occur after the relationship became known to a number of people), interviews with the parties and witnesses were done by the Title IX officer. Following those interviews, Neal was given written notice that he was being investigated for a violation of CSUP’s Code of Student Conduct (2015-2016) including the policy pertaining to sexual misconduct which defines Non-Consensual Contact and Non-Consensual Intercourse. According to the lawsuit, this notice, which allegedly did not provide Neal with specifics of the exact charges against him, was issued despite Jane Doe telling the Title IX coordinator that “our stories are the same and he’s a good guy. He’s not a rapist, he’s not a criminal, it’s not even worth any of this hoopla!” (p. 25).
CSUP defendants are also accused in the lawsuit of operating under a presumption that Neal was in fact guilty. As represented in the complaint, the Title IX coordinator is alleged to have made an effort to intimidate Neal, to ask him outright three times whether he had raped Jane Doe, and remarked upon the culture of the football team as contributing to the incident at hand. Prior to the conclusion of the investigation and before Neal was issued a notice of alleged wrongdoing, he was in a meeting that the Title IX coordinator arranged with the football team on November 7, 2015. The female counselor asked to address the team is believed to have mentioned Neal by name in an illustrative example of the difference between consensual and non-consensual sex, raising questions regarding the violation of his privacy and confidentiality rights. In sum, Neal argues that the University violated its own policies regarding the right of all students to have access to a fair process by requiring him to prove his innocence rather than the defendants fulfilling their obligation to prove his guilt.
Several weeks later, on November 17, 2015, Neal was given an interim suspension until the investigation was completed. During that time, his liberty to freely move around campus was limited and he was restricted to attending class and going to the library only for the purpose of completing class related assignments. Otherwise he was not permitted to be on campus nor participate in football. He was also required to have no contact with Jane Doe. According to University policy, the decision to impose an interim disciplinary measure was to be done only in limited circumstances where there was a demonstrated necessity “to protect the safety, security, and/or integrity of a Complainant, the University, and/or any members of its community” (Neal v. Colorado State Univerity-Pueblo et al., 2016, p. 27). Neal contends that this step was unwarranted and unjustified, offering further evidence of the bias brought to bear in his case.
On December 3, 2015, Neal was notified that in less than 24 hours from that time an “informal” hearing would be held. The notice consisted of what is described in the lawsuit as a general reference to CSUP’s policy on sexual misconduct and vague reference to an example of an action that would constitute a violation of the policy. In the estimation of Neal, the notice lacked sufficient substance and detail to allow for him to reasonably prepare or respond to the charges being made against him. The hearing on December 4, 2015, conducted before the Director of Diversity and Inclusion, became an opportunity for Neal to review the 14-page investigative report submitted by the Title IX coordinator.
Denied an opportunity to have a copy of the report, Neal had difficulty remembering details afterwards that might have helped in his defense. Further, while reviewing the report, he alleges that information was taken out of context or partially described in such a way that it favored a finding that a sexual assault occurred. He further asserts that the content of the report placed undue weight on hearsay drawn from interviews with witnesses who lacked independent knowledge of what had occurred, like the AT program director and his wife.
Beyond the alleged bias of witnesses who may have had a conflict of interest in believing that they were protecting the interests of one of their own students in the AT program and failing to realize that Jane Doe may have felt pressure to moderate her accounts so as to ensure that she did not jeopardize her own academic future, Neal argues that CSUP denied him his rights as guaranteed to all students under CSUP’s Sexual Misconduct Policy. According to the policy, a student accused of sexual misconduct is to be afforded the right to have witnesses speak on their behalf, to offer documentary evidence, and the opportunity to challenge or question the witnesses and evidence put forward on behalf of the person allegedly harmed. He alleges that he did not have an opportunity to call his own witnesses nor to challenge witnesses or evidence supportive of the complainant because he was denied the opportunity to have a copy of the investigative report until after not only the hearing, but his appeal, was over.
On December 18, 2015 the University issued a finding that Neal had engaged in “non-consensual sex with the Complainant”, a factual issue given that it was Jane Doe’s fellow AT classmate who was the complainant and not Jane Doe herself. The decision suspended Neal from the campus until Jane Doe’s graduation or departure from the campus and it placed a number of other requirements on his ability to return to campus, among them confirmation that he enrolled in and completed a six-week educational course or counseling session dealing with the issue of sexual assault/victimization and that he abide by the stipulations of a no-contact order of indefinite duration.
Misapplication of the Preponderance of the Evidence Standard of Proof
In accordance with the 2011 Dear Colleague letter, CSUP Code (2011) describes the burden of proof in sexual misconduct cases as being a preponderance of the evidence standard which considers “whether it is more likely than not that a Respondent committed the alleged violations” (p. 12). Neal argues that based on the available evidence, he was not afforded a fair reading under that standard. He noted that undue weight was given to the accounts provided by three individuals who relied on hearsay and CSUP administrators accepted those accounts at face value without consideration for credibility in order to support a pre-determined narrative that was biased toward the accused. He further challenges CSUP administrators with disregarding “…overwhelming physical evidence tending to exculpate Plaintiff, including a voice recording of Jane Doe stating nothing improper had occurred, hand written letters, snap chats, numerous text messages and a subsequent sexual encounter less than 24 hours after the alleged Incident” (Neal v. Colorado State University-Pueblo, et al., 2016, p. 41). In effect, contrary to the conclusion that the evidence was suggestive that Neal had more likely than not sexually assaulted Jane Doe, the evidence supported a conclusion that the sexual encounter between them was consensual.
Administrative Procedures Act Provides Neal Remedy for Harms Resulting from Agency Action
Neal argues that his loss of educational opportunity and the reputational harms he has sustained as a result of being disciplined for sexual misconduct are the result of pressure brought to bear on the University by the U.S. Department of Education to find male students accused of misconduct guilty. Under the Administrative Procedures Act (APA), Neal hopes to establish a general cause of action that will allow the DOE’s implementation and enforcement of the 2011 Dear Colleague letter to be challenged on the basis that its provisions were not subject to the APA’s requirements for notice and comment regarding rulemaking. Neal positions himself as an aggrieved party who was adversely affected by the actions of a federal agency ill-served by policies adopted by CSUP in compliance with the 2011 Dear Colleague Letter.
The U.S. Department of Education has issued three guidance documents to schools receiving federal financial assistance regarding to assist in addressing issues associated with sexual harassment and sexual assault, which have long been recognized as behaviors violative of Title IX’s prohibitions against sex discrimination and barriers to full access to educational opportunity. One was in 1997, another in 2001, and a third in 2011. In this challenge to the U.S. Department of Education, Neal alleges that the 2011 letter reduced the latitude schools have to formulate their own policies regarding the investigation of sexual misconduct, limiting them to a single investigator model where administrators serve in multiple and conflicting roles that rob those accused of due process, and impose a preponderance of the evidence standard that sets a low bar for determining guilt. Neal disputes the characterization of the 2011 Dear Colleague Letter as a guidance document that offers interpretations of existing rules and argues instead that its authoritative language is intended to convey an intention that the document is binding and inserts new rules that have not been properly vetted.
As evidence supporting the impact of the guidance provided by the DOE to the University that it felt compelled to follow upon threat of losing federal financial assistance, Nealpoints to a change in the Student Code of Conduct regarding cross-examination of the parties. In 2010-2011, the Student Code of Conduct allowed for questions to be suggested by both Respondents and Complainants “to be answered by each other or by witnesses”, a section in the 2015-2016 Code made clear that the student’s right to a hearing “…should not be construed to allow direct cross-examination of witness” (Neal v. Colorado State University-Pueblo et al., 2016, p. 48).
Key Questions Raised in Neal
In the end, among the key questions raised in Neal is whether his rights under Title IX and the Fourteenth Amendment were violated if in fact he was not accorded due process, was not afforded a fair and impartial investigation, and was barred from access to equal protection through improper administration of University guidelines and procedures cloaked in a veil of gender bias toward male students. Did CSUP fail to conduct a fair and impartial investigation? Were CSUP administrators in breach of contract for failure to afford Neal a proper hearing and failing to notify him of the nature and extent of the charges against him? Was the preponderance of the evidence standard appropriately applied in this case? Were Neal’srights to privacy and confidentiality appropriately protected by the University? Was Neal denied the opportunity to offer up his own witnesses and given the opportunity to challenge witnesses who testified against him? Did the U.S. Department of Education surpass their authority by issuing Title IX guidance in the form of the 2011 Dear Colleague Letter that undermined the requirements for notice and comment as set forth in the Administrative Procedures Act, resulting in harms to Neal?
As this case continues, these and other questions will be explored. In Part II of this series, the defenses put forward by Colorado State University-Pueblo and the U.S. Department of Education will be examined. And in Part III, an attempt on the part of a group called the Equal Rights Advocates to submit an amicus brief in support of the U.S. Department of Education and the court’s denial will be reviewed.
Footnote
*In an interview on ESPN’s The Sporting Life Podcast hosted by Jeremy Schaap on August 19, 2016, ESPN reporter Tom Farrey talked about an interview he had with Grant Neal. The issue of non-consensual sex, according to the information shared by Farrey, stems from a moment during the first encounter between Neal and Jane Doe where she indicated that she did not feel comfortable having unprotected sex because she was not on birth control. Neal claims that he abided by her wishes, stopped, and put on a condom before they continued. A similar account is reported by Brian Maas (2016), a CBS local news reporter in Denver. It is Neal’s belief, based on these interviews, that CSUP determined that the moments between Neal responding to Jane Doe’s statement and his actual response constituted a non-consensual act.
References
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CSUP. (2011). Sexual misconduct policy. Pueblo, CO: Colorado State University Office of Judicial Affairs. Retrieved from http://www.csupueblo.edu/StudentLife/StudentConduct/Documents/Sexual-Misconduct-Policy.pdf
John Doe v. Brown University (2015)
http://boysmeneducation.com/wp-content/uploads/2015/10/Complaint-Brown-University-filed-2015-4-13.pdf
Jack Montague v. Yale University, Angela Gleason, & Jason Killheffer. (2016). Retrieved from https://assets.documentcloud.org/documents/2858146/Jack-Montague-Statement-and-Lawsuit-Against-Yale.pdf
Maas, B. (2016, July 12). CSU Pueblo asks for dismissal of controversial lawsuit. CBSlocal.com. Retrieved from http://denver.cbslocal.com/2016/07/12/csu-pueblo-asks-for-dismissal-of-controversial-lawsuit/
Nazzaro, A., & Thorp, A. (2016, August 31). Why a male student achttps://chicagomaroon.com/2016/08/31/why-a-male-student-accused-of-sexual-assault-is-suing-the-university-under-title-ix/cused of sexual assault is suing the University under Title IX. The Chicago Maroon. Retrieved from
Schaap, J. (2016, August 19). The Sporting Life Podcast. Interview with Tom Farrey regarding Grant Neal. Retrieved from http://www.espn.com/espnradio/play?id=17348038
Staff. (2016, April 19). In first-of-its kind lawsuit, student athlete wrongfully accused of sexual assault sues Obama Administration and CSU Pueblo for violating Title IX gender discrimination law. Press release. Retrieved from http://www.prnewswire.com/news-releases/in-first-of-its-kind-lawsuit-student-athlete-wrongfully-accused-of-sexual-assault-sues-obama-administration-and-csu-pueblo-for-violating-title-ix-gender-discrimination-law-300253845.html
Smith, M. (2016, July 19). Trial starts in student’s suit against Brown University in sexual assault case. Providence Journal. Retrieved from http://www.providencejournal.com/news/20160719/trial-starts-in-students-suit-against-brown-university-in-sexual-assault-case
United States Department of Education Staff. (1997). Sexual harassment guidance 1997. Washington, DC: U. S. Department of Education Office for Civil Rights. Retrieved from http://www2.ed.gov/about/offices/list/ocr/docs/sexhar01.html
United States Department of Education Staff. (2001). Revised sexual harassment guidance 2001. Washington, DC: U.S. Department of Education Office for Civil Rights. Retrieved from http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html
