A former ASU student who sued the Arizona Board of Regents claiming the University violated Title IX — a federal civil rights law enforced by the U.S. Department of Education that prohibits discrimination based on gender in educational programs receiving government funding — may be able to bring his case to a federal jury trial after over four years since filing the lawsuit.
The anonymous student, who is called John Doe, was expelled from the University in 2016 for sexual misconduct and giving alcohol to a minor. Subsequently, he filed three lawsuits, two in state courts and a federal lawsuit claiming ABOR violated his civil rights granted in Title IX, and that several ASU students and employees violated his constitutional rights to due process and equal protection.
Doe in court documents has based his argument on an analysis that shows “statistical disparities in the treatment of males” in ASU’s disciplinary proceedings from 2012 to 2017.
Lance Kaufman, whom Doe used to conduct the statistical analyses, found that in cases involving alleged violations of ASU's sexual misconduct and/or alcohol policies, males were found guilty in 66% of cases and females were found guilty in 62% of cases.
In addition, Kaufman found that for sexual misconduct cases, in 29% of the 98 cases when the complainant was female, the student determined as guilty was given a “significant sanction,” which could range from expulsion to degree ramifications; in the 11 instances when complainants were male, none of the students determined as guilty faced a significant sanction for violating sexual misconduct policy.
While the lawsuit in Arizona’s Court of Appeals reversed Doe's suspension on the bases of force and incapacitation, U.S. District of Arizona Judge Dominic Lanza denied an order for summary judgment from ABOR in the federal lawsuit on Aug. 30. A granted summary judgment would have established that there was no dispute over the facts and therefore no need for a trial.
On Sept. 13, ABOR’s representation filed a motion of reconsideration in an effort to get the judge to reverse his decision, and no later than Oct. 12, Doe’s lawyers may submit a response to the motion.
If Lanza denies the motion, this case could be one of the few Title IX lawsuits filed by a student to go to a jury trial. As a result, it would be possible Doe could receive monetary compensation for attorney fees in addition to loss of income damages, as his prospects in wrestling were hindered by the expulsion.
KC Johnson, a history professor at Brooklyn College, said usually motions to reconsider are not granted, which would leave the amount of money Doe would receive up to a jury.
“If ASU wins, the jury issues a finding in ASU’s favor and he gets nothing,” said Johnson, who specializes in U.S. political, diplomatic and legal affairs. “If he wins, the jury issues a verdict saying that ASU discriminated against him on the basis of gender, and then they reward damages. The jury can reward whatever damages it desires, as long as they have some basis for it.”
This is not the first time ASU has been sued by a male student for violating Title IX. In 2014, David Schwake, an ASU alumnus, was suspended for allegedly inappropriately touching a female student with whom court documents say he had an "on-again off again" relationship. Under claims that ASU "conducted a one-sided investigation,” Schwake sought $20 million in damages and injunctive relief a year later.
READ MORE: ASU male graduate can use Title IX in sexual misconduct case against him
Due to the ruling in Schwake v. Arizona Board of Regents, there was precedent that allowed Doe to file monetary damages.
ASU Media Relations, the ASU Police Department and ABOR declined requests for comment, citing that they do not comment during ongoing litigation. ABOR’s representation and the Office of General Counsel, ASU’s department handling its legal affairs, did not respond to requests for comment.
Case background
In April 2016, Doe, another male student and a female student, who is referred to as Jane Roe in court documents to protect her identity, had a three-way sexual encounter at an off-campus party. Before the encounter, which was recorded on the other male student’s phone, an eyewitness said Roe had several shots of vodka. She was 19 years old at the time.
The next day, Roe filed a report with the Tempe Police Department, where she said she “was so intoxicated that she was not able to move or try to physically prevent the incident while it was occurring” and “she never gave consent for the sexual intercourse with (Witness 1) or (Doe) and that she did not want it to happen.”
Roe did not file any criminal charges against Doe but reported the incident to ASU PD almost five months later, Lanza wrote in his summary judgment opinion.
By the end of September 2016, Doe had received an email stating he was on an interim suspension due to potential violations of ASU's alcohol policy, sexual misconduct policy, and surreptitious recording policy.
Kendra Hunter, ASU’s associate dean of students at the time, identified Doe and the male student as “ASU wrestling students.” Johnson said the suspension ruined Doe’s prospects to pursue a career in wrestling, and Doe used this to advocate for damages.
“It appears to be undisputed in the most recent filings that if he had gotten a degree from ASU, he probably (could have) had a career as a wrestling coach,” Johnson said. “So I think his argument is, look, this ASU decision, which the state court has now said was wrong, kind of cost me what my preferred career was going to be.”
Curtis Owen, a wrestling coach from Chandler High School testified that “Doe had the skill and athleticism to be one of the best wrestlers in the country at the college level and beyond,” according to an order filed on Aug. 30.
In addition to damages to his career prospects, Doe filed “state-law claims for breach of contract, gross negligence, intentional infliction of emotional distress, and false light invasion of privacy,” the opinion says. Some of these claims were dismissed by the Court in a Dec. 2019 order.
Johnson said usually universities settle their cases when they lose a motion to dismiss, and that ASU did this in the Schwake case. However, in this case, ASU is straying from the norm.
“It's possible that ASU was saying, 'We get these lawsuits, we don't want to develop a reputation as a school that just sort of caves and so we’ll fight,'” Johnson said.
Johnson said this case has the potential to have “national significance,” as universities across the country would watch how ABOR defends ASU in court.
While men are usually not seen as victims under Title IX, Johnson added that these lawsuits act as a “reminder that doing these things fairly benefits all parties” when it comes to universities handling future sexual assault cases.
Edited by Wyatt Myskow, Logan Stanley and Greta Forslund.
Reach the reporter at awaiss@asu.edu and @WaissAlexis on Twitter.
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Alexis Waiss is an assignment editor and senior reporter, covering breaking news and writing long-form stories. Alexis worked on SP's politics desk for a year, where she reported on the Legislature, higher education policy, student government, the city of Tempe and stories highlighting social justice. She previously worked as a fellow for the Asian American Journalist Association's VOICES program.
