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Penn State retroactively redefined ‘consent’ after accused student won a new hearing: lawsuit

No restraining order from judge, but university agrees to reschedule hearing

When Pennsylvania State University found a male student responsible for sexual misconduct, it said he had coerced a female student into sex by “cajoling” her.

A high-ranking official questioned the finding, asking if the hearing panel had correctly applied the university’s consent definition.

The taxpayer-funded institution then retroactively changed its consent definition and scheduled another Title IX hearing, according to a lawsuit filed last week.

“John Doe” claims that PSU violated his Fourteenth Amendment right to due process and Title IX right to “equal treatment.” The university is liable under the “erroneous outcome” theory of Title IX, he argues, because its gender bias led to the incorrect finding against him.

It’s just PSU’s latest appearance before U.S. District Judge Matthew Brann, who allowed a due-process lawsuit to continue against PSU last fall. He ruled that its practice of conducting “paper-only” investigations “raises constitutional concerns.”

Brann also issued a temporary restraining order against PSU in a similar lawsuit two years ago, though that was in response to a concluded Title IX investigation where the student faced suspension or expulsion.

Only an ‘unreasonable amount’ of cajoling is prohibited?

The accused student is temporarily protected from a new Title IX hearing, which was scheduled for Tuesday. In a Tuesday letter to Brann, John’s lawyer said the parties agreed to reschedule the hearing for a later date.

That agreement followed a telephone conference among the parties and judge on Monday. Brann apparently didn’t grant the temporary restraining order that John had sought against PSU.

The university had argued in a Sunday brief against John’s motion that the Tuesday hearing would have simply used a “clarifying definition” of coercion, rather than changing the definition outright. It said “cajoling” itself was not coercive, but an “unreasonable amount” of cajoling would be.

MORE: Brann blasts PSU for not asking rape accuser for evidence

Cajoling remains unmentioned in PSU’s consent definition on its sexual-misconduct policy page as of Tuesday night. The College Fix asked the university to confirm whether it changed the definition this month, as John alleged.

A spokesperson responded Tuesday night: “It is a general practice of the university to not discuss pending litigation.” The pending litigation does not prevent the university from answering a question about a policy change, however.

Brooklyn College Prof. KC Johnson, who closely tracks Title IX litigation, predicted John would have a tough time getting a temporary restraining order in the middle of a Title IX proceeding.

Johnson told The Fix that Brann had actually sided with PSU in the most recent prior case: The judge said it didn’t need to allow cross-examination in Title IX hearings, and refused to let the accused student amend his lawsuit to allege misconduct by the investigator.

Invited herself to his room for a ‘nap’

PSU changed its sexual misconduct proceedings in 2015 even as it kept all other disciplinary proceedings the same, according to the lawsuit.

It removed the hearing board, cross-examination and clear-and-convincing evidence standard. The university switched to an “investigative model” where one official interviews parties and witnesses, determines which evidence is “relevant” and “appropriate,” and is immune to challenge from the parties.

A “case manager” from the Office of Student Conduct then reviews the investigative packet and recommends charges and sanctions if the packet “reasonably supports” a violation. The policy does not define “reasonably supports,” according to John.

The lawsuit notes the disparity between sexual misconduct and all other PSU proceedings when it comes to an accused student’s options to challenge findings and sanctions.

For the former, a Title IX Decision Panel hears the student’s challenge. It consists of three university employees “under the control” of OSC’s senior director, who use the lower preponderance standard of evidence. The panel chair decides which questions to ask from each party to the other, excluding those that are not both “relevant” and “appropriate” (undefined) in the chair’s opinion.

For the latter, which often deal with “far less serious matters,” a five-person panel with two students hears challenges.

MORE: PSU expels student who says his accuser forced herself on him

John and “Jane Roe” were both accepted into a PSU honors program and got to know each other before school started in fall 2017. Their “mutual flirting” via text message started the following January, according to the suit.

She invited herself to his room to “nap,” stayed after he left for class, and “cuddled” with John when he returned. At that point they discussed sexual intercourse, sexually transmitted diseases and their sexual histories, including Jane’s five sexual partners from the past month.

Perhaps spurred by her disclosure that she was likely to transfer in the fall, over the next several hours Jane got over her reluctance to start a “friends with benefits” arrangement with John.

She invited him to come to her empty dorm room after midnight, and they started “consensual kissing and fondling,” according to John. Jane asked him to digitally penetrate her but complained that it “hurt,” at which point he stopped. But she asked him to stay and handed him a condom.

Six months later she accused him of nonconsensual sexual activity, but their recollections of the night – including difficulty finding a comfortable sexual position – did not significantly differ, according to John.

The afternoon after their failed intercourse, Jane texted him an apparent question about the STD testing she had asked him to get, and continued to send him flirtatious texts. He didn’t respond because his phone was broken.

A footnote claims that Jane changed her story about their first intercourse attempt, telling the investigator that she “tried to get away” and that John “picked her up” and forced her to straddle him. He denied the new story.

Lawsuit accuses Penn State of changing “consent” definition during Title IX proceeding by The College Fix on Scribd

Accuser allowed to give ‘ad hoc explanation’ of contradictory statements

The lawsuit accuses Karen Feldbaum, interim OSC director, of misrepresenting the standard she used as case manager to evaluate the investigative report for the Title IX panel. She has been named in multiple Title IX due-process lawsuits against PSU.

Feldbaum used a “plausibility” standard to judge that John engaged in nonconsensual acts with Jane, according to John. That is “significantly weaker” than the “reasonably supports” standard laid out in PSU policy, which Feldbaum claimed to have used.

John laid out his concerns with PSU’s process in an April 10 letter, two days before his panel hearing. He protested to Feldbaum that he wasn’t allowed to call witnesses, cross-examine anyone or retain an “active” representative, which are crucial to resolving “he said/she said” allegations.

The accused student also objected that Feldbaum had effectively removed his presumption of innocence by telling the panel, which is “under the auspices” of OSC, that she believed he was responsible. PSU never responded, the suit claims.

The panel hearing was also stacked against John, he argues. Jane was allowed to provide “new information” in explicit violation of hearing rules: her “ad hoc explanation of the
meaning of her texts and prior statements to the investigator” that were “unfavorable and contradictory” to her allegations.

She also claimed that previously undisclosed witnesses would verify her claims. Neither John nor the investigator were allowed to respond to this illicit information, and the panel chair dismissed his objection by claiming that Jane was simply “sharing her testimony.”

The panel only asked Jane seven of the 40 questions that John posed to her, the suit says. It refused to ask her to explain “statements she made to her medical providers that directly contradicted” the investigative report, even though she mentioned them in her testimony.

‘Two squinting face with tongue emojis’ means no

The panel found John responsible for nonconsensual intercourse and non-intercourse acts, with a “conduct suspension” through the fall 2019 semester among other sanctions.

Even though Jane asked him to use a condom, the panel found that John used “flattery” to get Jane to have sex. This amounted to “cajoling” and “pressure,” which is prohibited “coercion,” nullifying her verbal consent.

At this point, Title IX Coordinator Chris Harris stepped in to ask the panel to “clarify” its findings. It had not explained how John’s behavior amounted to coercion and why the panel credited Jane over John as credible.

Three weeks later, after John had already submitted an appeal, Harris shared his memo to the panel and its response to him with John.

The chair cited the text messages where Jane invited John to her dorm room, claiming they showed his “persistence” in trying to sleep with Jane. (Her texts indicate that Jane was worried about losing John as a friend and appearing promiscuous if they slept together. She explicitly told him she was “tempted.”)

MORE: Brann finds PSU’s Title IX procedures raise ‘constitutional concerns’

John had twice told Jane she was “beautiful,” with “two wink emojis,” and that he could be “both” her friend and sex partner. Jane responded with “two squinting face with tongue emojis” and said she wouldn’t have sex, because it “ruins friendships.”

She expressed her “lack of desire” for him in both her texts and her behavior after she invited John to her dorm room, according to the chair. The panel believed Jane was credible because she gave specific details of their interaction that were consistent throughout the investigation.

John was not credible because he could not give “nearly any details regarding the incident” yet claimed he was not intoxicated when it happened. The panel didn’t believe him, the chair said.

PSU acted outside of its own policies in multiple ways after the panel reached its conclusion, John claims. There was no provision for Harris’s intervention with the panel, Feldbaum’s “hold” on John’s appeal, or the panel’s offer to edit its report in line with Feldbaum’s “adjustments.”

‘Too much pressure’ is prohibited, but ‘seduction’ is fine

Harris’s intervention with the panel was not enough for Danny Shaha, assistant vice president of student affairs, who requested a review of the decision.

Citing the full record of the investigation, a recording of the hearing and post-hearing documentation, Shaha told the designated appeals officer that the university’s “coercion” definition may have been misinterpreted in John’s case.

But he didn’t reverse the findings. Instead, Shaha (below) asked Associate Dean for Undergraduate Education Alan Rieck to convene a new hearing board, and promised him that Harris and the Office of Student Conduct would “clarify the definition of coercion and related concepts” to the new panel.

When Rieck did this and said Jane would be allowed to present her allegations at a scheduled hearing, he violated yet another PSU policy, John claimed. Appeal officers like him are only allowed to sustain, modify or reverse the original decision, not convene new hearings.

Six days before the scheduled hearing July 23, John was shocked to receive a new “coercion” definition, which he believes was “retrofitted” to find him responsible in the new hearing.

Coercion is not actually defined in the policy that remains live on PSU’s website. The copy given to John takes several paragraphs to define coercion, echoing the chair’s rationale to Harris for the panel’s decision:

“Coercion” is an unreasonable amount of pressure to engage in sexual activity. Coercion is more than an effort to gain consent, or persuade, entice, or attract another person to engage in sexual activity. …

When determining if an individual’s behavior constitutes coercion, context is everything. For example, seduction is reasonable, and coercion as unreasonable. Seduction is welcomed sexual advances that may initially be rebuffed but where the object of the pressure ultimately wants to be convinced to engage in sexual activity or welcomes the activity, or a reasonable person would perceive it so.

Coercion, however, is the point where the pressure is or becomes objectively unwelcomed and unreasonable, or the point when a person concedes to sexual activity due to the use of words or behavior that causes or threatens to cause severe emotional distress and/or psychological harm.

To decide if a student used “too much pressure” to convince another student to have sex, the coercion definition lays out a four-factor test for adjudicators: duration, frequency, isolation and intensity.

Dragged-out proceeding keeps him from accepting transfer offers

John accused PSU of actively harming his attempt to move on with his academic career by dragging out the proceeding.

Rieck never responded to his petition to reverse the findings, among other officials who didn’t answer John’s communications, he claimed. Shaha’s intervention letter was not given to him for six days, in spite of the fact that John had “several transfer applications to other universities pending with looming deadlines,” he told Feldbaum May 30.

He has already lost an offer from the University of Miami and may lose his last remaining open acceptance, to Arizona State, owing to PSU’s glacial pace. An academically gifted student, John is stuck as long as “the disciplinary action remains open.”

A footnote discloses that John “withdrew his spring registration” after PSU told him that he would be punished immediately if found responsible mid-semester. That would mean he’d lose his tuition payment for the term.

PSU’s restrictions on John’s defense in the proceeding, and its suddenly revised consent definition, violate his constitutional due-process rights, he argues.

John accused the university of slanting Title IX investigations against both him and men in general.

He said the investigator “failed to explore clear discrepancies” such as medical reports that contradicted Jane’s statements to the investigator. The panel also “engaged in gender stereotyping” by believing Jane’s explanation of her texts while judging him for waiting to “provide a statement until he could review [the] investigative packet.”

As a practical matter, PSU forces males to “prove that affirmative consent was present through each and every moment of a sexual interaction,” which flips the burden of proof.

“The totality of circumstances” shows that PSU “has demonstrated a pattern of inherent and systematic gender bias and discrimination against male students accused of misconduct,” John said.

MOREDid Penn State ignore Brann’s order by pledging to retry student?

IMAGE: Zerbor/Shutterstock

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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