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Judge approves Title IX suit against university for saying women can’t consent to threesomes

Relevant that Arizona State was under Title IX investigation

Consenting to a threesome is evidence of incapacitation?

An odd statement, but that’s Arizona State University’s rationale for kicking a male student out of school, he claims.

In a tentative ruling Monday, U.S. District Judge Dominic Lanza allowed the unnamed athlete’s lawsuit against the public university to continue on Title IX grounds, citing the threesome claim among other plausible allegations.

ASU found that “John Doe” violated its code of conduct for sexual misconduct and alcohol violations. It investigated him following a threesome with “Jane Roe” and another male student, with Jane claiming she had been too drunk to consent to sex.

The linchpin of John’s Title IX argument is that the university reached an “erroneous outcome” on his culpability, “motivated by gender bias because [John] was a male athlete,” Lanza wrote.

According to the judge, ASU did not challenge John’s arguments that the disciplinary hearing against him was inaccurate, but rather that he failed to properly connect the allegedly faulty outcome and gender bias.

MORE: ASU expelled student athlete for ‘sexual violence’ without charging him

“Although this issue presents a close call, the Court concludes [John’s complaint] contains just enough case-specific, non-conclusory allegations of gender bias” to survive the university’s motion to dismiss, Lanza wrote.

ASU was among the universities under federal investigation for Title IX procedures in the wake of the Obama administration’s well-known “Dear Colleague” letter on campus sexual assault proceedings, according to the suit.

Lanza cited two rulings from the 6th U.S. Circuit Court of Appeals, which are not binding on his court, that together suggest a university under Title IX investigation may have been induced into discriminating against males in order to preserve its federal funding.

These help flesh out the less specific guidance from the 9th Circuit, which binds Lanza’s court, he said.

It’s not clear when Lanza will issue a final ruling. The hearing on the motion to dismiss appears to have been rescheduled to Dec. 18.

He released the tentative ruling “to allow the parties to focus their argument on the issues that seem salient to the Court and to maximize their ability to address any perceived errors in the Court’s logic,” Lanza wrote.

No rational woman would have a threesome because it’s ‘outrageous’

John alleges that when Jane’s allegations came to the attention of the university, the lead official emailed her colleagues that swift action must be taken “because [John] was a male athlete—a collegiate wrestler.”

Kendra Hunter, senior associate dean of students, oversaw the investigation and was a member of the Dean’s Review Committee “that issued the disciplinary decisions and sanctions on appeal and before” the University Hearing Board and James Rund, senior vice president of educational outreach and student services. John identifies Rund as “ASU’s final arbiter on student misconduct issues.”

According to John, Rund classified the threesome including John and Jane as “outrageous behavior” to which a rational adult would not consent. This amounts to gender bias, John argued, because Rund “did not characterize the men’s decision to engage in three-way sex as ‘outrageous.’”

Judge Lanza found it notable that the ASU defendants “do not address this argument” in their filings. Beyond Hunter and Rund, the defendants are the Board of Regents, hearing board chair Crag Allen and members Kathleen Lamp and Andrew Waldron, and Office of Student Rights and Responsibilities Senior Coordinator Tara Davis.

The alleged procedural irregularities in the university’s investigation were the most determinative factor for Lanza in allowing the suit to continue.

Davis allegedly told Jane that “as soon as I have the green light, I will charge Doe with sexual misconduct,” even though John had not been interviewed and corroborating evidence had not been collected yet. She further told Jane that she would not “go get” evidence and that it was the accuser’s choice “to provide us with whatever documentation you think is relevant.”

MORE: University educates students on ‘negotiating successful threesomes’

When Davis met John, she changed her story, calling herself “a neutral, third party investigator” whose job was to “collect information—anything I can get,” according to John.

At a later point in the investigation, Davis lied to John, stating that one of Jane’s written submissions did not contain new evidence. It actually had “substantial” new evidence, the accused student said, and he sent a letter addressing them within a day of learning them.

By that point, however, the Dean’s Review Committee had already met and decided to expel John. “The Committee violated its own procedural rules by issuing the expulsion letter without considering Doe’s response to the new evidence discussed in Roe’s final written submission,” Lanza wrote, citing John’s allegations.

The seventh and final irregularity cited by the judge: The hearing board “sustained the sexual misconduct finding under an ‘impermissible force’ theory,” which was not “properly disclosed” to John and also “conflicted” with Jane’s police statements and the “uncontradicted testimony” of John’s expert.

John was not so fortunate on his due process argument. Lanza found it was barred by qualified immunity, which protects government officials including public university administrators in certain situations.

In order to overcome qualified immunity, John would have to show that ASU officials violated a statutory or constitutional right that was clearly established at the time. But he did not cite, and Lanza has not found, an Arizona court ruling that established the state constitution “guarantees a constitutional right to a university education.”

MORE: Title IX investigation clears Michigan State players of threesome rape

IMAGE: dotshock/Shutterstock

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About the Author
Connor Ellington is a double-longhorn at the University of Texas School of Law. He has a bachelor's degree in philosophy and government. He is a member of the Federalist Society, the Young Conservatives of Texas, and the Texas Review of Law and Politics. In addition to writing for The College Fix, Connor is a law clerk at the Law Offices of Tony McDonald.

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