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September 27, 2016

Penn student claims racial bias in university's handling of sex assault case

Plaintiff says in lawsuit: 'Sham' investigation breached contractual obligations leading to his expulsion from Ivy League school

Courts Lawsuits
University of Pennsylvania campus Thom Carroll/PhillyVoice

The Quadrangle at the University of Pennsylvania.

A black student at the University of Pennsylvania has filed a civil lawsuit against the trustees of the Ivy League school contending its investigation of a recent sexual assault allegation displayed unfair racial bias against him.

The 51-page lawsuit, filed Friday in the U.S. District Court for the Eastern District of Pennsylvania in Philadelphia, claims the university's Office of the Sexual Violence Investigator violated the school's sexual violence policy in its handling of a June 8 encounter between the plaintiff, identified as John Doe, and a white female student identified as Jane Roe.

On the night of June 7, the plaintiff claims he, Roe and a mutual friend attended a bar near their off-campus residences. At approximately 1:45 a.m. on June 8, the three moved on to a members-only bar where Doe paid admission and the friend purchased a round of beers. When Roe expressed her wish to leave, it was discovered she and Doe lived close to one another, and Doe offered to walk her home.

The events that culminated in a sexual encounter between the undergraduates are disputed by the plaintiff, as is the fairness of Penn's judicial process. Jane reported the incident on June 8 to Penn's Women's Center, then to the college's Special Services Department in the Division of Public Safety and finally to the Special Victim's Unit of the Philadelphia Police Department.

A university investigative team found Doe engaged in sexual intercourse without Roe's consent, violating the school's sexual violence policy, and he was expelled from Penn with a permanent record of the violation on his transcript.

Doe is not charged criminally with sexual assault by Penn police or Philadelphia police.

When matters of this nature are not resolved by the final report, the investigative team is bound to submit its findings, including exhibits and interview summaries, to a hearing panel comprised of university faculty members and a non-voting administrator.

The plaintiff argues that the investigative team's final report and the university's disciplinary process have been "irreparably tainted" and that the matter requires resolution in court.

Among the lawsuit's eight counts against the university, Doe claims the investigative team violated its own contractual and legal obligations to him outlined in documents used as the foundation for the school's internal disciplinary procedures

In light of his version of the events, presented in the lawsuit, Doe argues that the university exercised racial prejudice in its determination that Roe did not consent to their sexual encounter. 

The university's sexual violence policy defines consent as follows:

Consent is an affirmative decision to engage in mutually agreed upon sexual activity and is given by clear words or actions. Consent may not be inferred from silence, passivity or lack of resistance alone. Furthermore, consent to one form of sexual activity does not imply consent to other forms of sexual activity, and the existence of a current or previous dating, marital or sexual relationship is not sufficient to constitute consent to additional sexual activity. Assent shall not constitute consent if it is given by a person who because of youth, disability, intoxication or other condition is unable to lawfully give his or her consent.

Sexual assault, including but not limited to rape, is defined by the policy as follows:

Any physical sexual contact that involves the use or threat of force or violence or any other form of coercion or intimidation;

Any physical sexual contact with a person who is unable to consent due to incapacity or mental or physical impairment. "Incapacity" or "impairment" include but are not limited to being under the influence of alcohol or drugs or being too young to consent.

In addition to Doe's objection to certain factual findings of Penn's investigation, his lawsuit claims the investigation failed to provide him with adequate notice of the allegations against him, did not adhere to the nondiscriminatory principles and contractual promises of Penn's educational mission and negligently failed to comply with its own policies and procedures.

The lawsuit comes during a month in which Penn's campus, led by a group of young activists both inside and outside the Greek life system, became the center of a national debate about the overarching "rape culture" prevalent at American universities. Hundreds of fliers posted on the West Philadelphia campus condemned an offensive email sent to undergraduate women by an unaffiliated fraternity, inviting them to a party that encouraged tight, revealing clothing and compliant promiscuity.

In response to the protest, more than 900 members of sororities at Penn signed a letter in solidarity against students and administrators who remain "complicit in rape culture" at the University of Pennsylvania and beyond.

Doe's lawsuit claims that these pressures – including a belief Penn doesn't take "sufficiently seriously the complaints of female students about alleged sexual assaults by male students" – create an institutional bias against men.

The lawsuit further argues the university's preponderance-of-evidence standard to prove sexual misconduct is less stringent than the standards applied in other cases involving prohibited and unlawful student conduct.

At one point, the lawsuit references a critical open letter written by Penn Law professors who questioned the fairness of the disciplinary procedures adopted by the university in 2015.

Doe seeks compensatory damages in excess of $75,000 in addition to prejudgment interest, attorneys' fees, expenses, costs and any other appropriate relief.

Contacted Tuesday, the University of Pennsylvania told PhillyVoice it does not comment on pending litigation.