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Alleged double standard at W&L advances suit

A Lynchburg federal judge will allow a  lawsuit against Washington & Lee University to go to a jury because a discipline committee may have applied different credibility standards to an accuser and the accused in a sexual misconduct case.

U.S. District Judge Norman K. Moon last month cleared the way for a trial on whether W&L discriminated against a male student on the basis of sex in violation of Title IX. Moon applied recent guidance from the 4th U.S. Circuit Court of Appeals on the standard for such Title IX claims. In the same opinion, however, Moon granted summary judgment and ended a separate claim that the school retaliated against the male student after the student’s lawyer sent an inquiry to the school.

The judge’s April 17 decision is Doe v. Washington & Lee University (VLW 021-3-200).

Suspension imposed

Like most colleges and universities, W&L has policies governing sexual conduct by students. It also has a 10-member Harassment and Sexual Misconduct Board, or HSMB, to adjudicate cases of
sexual misconduct.

In the case in Moon’s court, Roe reported  she was sexually assaulted by Doe, the plaintiff in the federal lawsuit. The HSMB decided Roe’s account of the March 10, 2017, incident was credible, while Doe’s was not. The university suspended Doe for one term and twice denied his applications for reinstatement.

Doe sued alleging sexual discrimination in the way the HSMB analyzed the competing versions of the incident. He also claimed the school’s reinstatement denials were retaliation for his involving a lawyer.

‘Personal rule’ cited

The incident involved late-night intercourse between two college friends who had both been drinking, according to Moon’s summary of the facts. Doe, the male student, had reportedly consumed a
bottle of wine and had smoked marijuana on that Friday night. Roe, the female student, reported she drank four glasses of wine with a pizza meal.

Both had been involved in separate activities earlier in the evening, the opinion said. Roe, in fact, had engaged in intercourse with another friend. She reported in the investigation that she was interested in a relationship with that friend.

Later that evening, Doe persuaded her to come to his apartment and the two watched Netflix on his computer until Roe became sleepy. Roe did not contest she performed oral sex on Doe. Doe said he asked her to stop because he “thought it was weird” after she had expressed hesitation about intercourse. Eventually, they both took off clothes, Doe put on a condom and intercourse occurred.

Doe contended Roe was an “enthusiastic participant.” Roe claimed she had been firm in saying “no” and that intercourse occurred after she fell asleep.

Roe told the HSMB panel that she had a “personal rule” that she had full sexual intercourse only if she is interested in a relationship with her partner, and she had never been interested in that type of relationship with Doe.

The panel deemed Rose’s explanation credible and found inconsistencies in Doe’s account.

‘Taking her word’

Addressing the sex discrimination claim, Moon invoked an April 2 ruling of the Fourth Circuit in Sheppard v. Visitors of Va. State Univ. (VLW 021-2-123) that a plausible claim requires allegations that the university discriminated against the student “on the basis of sex.” Doe had shown a genuine issue of material fact on that issue, Moon concluded.

Moon perceived “starkly different treatment” of Roe’s and Doe’s testimony on the issue of sexual boundaries. He said a jury could find that the HSMB followed its policy in accepting that a female student could draw boundaries but did not follow the same policy or treated as doubtful that a male student could credibly follow the same boundaries.

The panel seemed to overlook that Roe had engaged in intercourse with her other friend the same night, Moon said.

“Nor did the panel ask Roe at the hearing whether she was interested in a relationship with Witness A,” the judge continued. The panel was just “taking her word” about her personal rule “without any kind of validation or questioning,” Moon wrote.

A reasonable jury could find the panel applied materially different standards on the basis of gender in its assessment of the competing narratives, Moon concluded.

Retaliation claim rejected

Moon said the claim of retaliation was undermined by the length of time between the letter from Doe’s lawyer, identifying the lawyer as “litigation counsel,” and the adverse actions by the school.

Roughly five months and 13 months passed between the letter and the two denials of reinstatement, Moon said. “That is too long, without more, to provide a basis for causation,” the judge wrote.

Trial is scheduled for May 17-20 in Lynchburg federal court.

Doe is represented by Patricia Hamill of Philadelphia, who has represented multiple students who challenged their schools’ administrative discipline. Local counsel is David G. Harrison on Roanoke.

W&L is represented by R. Craig Wood of Charlottesville and other lawyers with McGuireWoods LLP.