Allegheny College sued by student expelled for sexual misconduct

A former male student who was expelled in spring 2015 on the grounds of sexual misconduct has filed a Civil Action Complaint against Allegheny College alleging that the college discriminated against him on the basis of gender during the investigation of the reported incident.

The Civil Action Complaint, which was filed on Feb. 3, 2017, in the United States District Court of the Western District of Pennsylvania, claims that John Doe, who was granted permission by the court to proceed under a pseudonym, has been unable to enroll in other esteemed colleges and universities because of the responsible verdict rendered against him during the allegedly unfair investigation.

“The implementation of the Disciplinary Procedures was motivated by and premised on archaic assumptions and stereotypical notions of the sexual behavior of male and female students,” John’s attorneys wrote in the complaint.

John’s expulsion was the result of an investigation into an alleged violation of the college’s Article IV, non-academic conduct. The investigation was prompted by a complaint filed against John in December 2014 by a female student, referred to as Jane Doe in the lawsuit, who alleged that she was raped by him on Sept. 26, 2014.

“When the college subjected John to disciplinary action, it did so in an arbitrary and capricious manner, violated its own policies, procedures and guidelines, and discriminated against him based upon his male gender,” the complaint reads.

The complaint alleges that both Katie Pope, the college’s Title IX coordinator at the time of the investigation, and Joe Hall, assistant dean of students, broke several college policies throughout the proceedings.

Allegheny, the complaint claims, violated its own policies by withholding case materials from John.

“No details surrounding the nature of the allegation beyond being characterized as ‘non-consensual sex’ was provided until just a few days before the appeal hearing on March 24, 2015,” the complaint reads.

Allegheny violated its own policies by denying John a copy of Jane’s complaint

— Civil Action Complaint

The complaint alleges that John had began requesting more information on Jan. 22, 2015, more than two months prior to the appeal hearing. The complaint claims that during a meeting on that same day, “Investigator Hall informed John that he would be required to provide a statement before Allegheny would provide any more information to him.”

The college’s Compass Student Handbook reads, “During a disciplinary conference, the student(s) is permitted to have access in the office to the information related to the incident, to respond to the information and call relevant and necessary witnesses.”

The student handbook also later specifies in part four of its “Policy Against Discriminatory and Sexual Harassment” that both parties “will be provided equal access” to the relevant case materials.

In 2011, the OCR  released the “Dear Colleague Letter” which serves as a guide for institutions who receive federal funding, such as Allegheny, and wish to maintain that funding by being in compliance with Title IX of the Education Amendments Act of 1972.

The letter specifies that both parties must have “an equal opportunity” to review information that will be used at the hearing and to present relevant witnesses and evidence.

In addition to claiming that Hall and Pope denied John access to the case file before he made his official statement, in full and in writing, the complaint also contends that they denied John’s community support representative proper access to materials.

The student handbook states in subsection B of section one in Article IV that an accused student is permitted to be accompanied by a community support person.

“A Community Support Person is a person chosen by a student to serve in an advisory capacity during his/her involvement in the student conduct system,” the Compass reads.

The complaint filed against the college alleges that John’s chosen community support person willingly signed a confidentiality agreement prepared by the college, but then was denied meaningful access to the case file during their meeting with Hall and Jacquie Kondrot, who is the current associate dean of students but was serving as the deputy Title IX coordinator at the time.

“On the date and time set for reviewing the investigative file, Deputy Coordinator Kondrot and Investigator Hall prohibited John’s community support representative from reviewing any portion of Allegheny’s investigative file,” the lawsuit claims.

Furthermore, the complaint alleges that Kondrot and Hall prohibited John from taking detailed notes about the information contained in the file.

“In fact, Deputy Coordinator Kondrot threatened to destroy John’s notes if, in her judgement, they were ‘too detailed,’” the complaint reads.

The 2014-2015 student handbook does state in Article IV that incident reports and information related to the investigation cannot be removed from the office, but there are no specific guidelines for how note-taking is to be done.

The complaint alleges that after the meeting in which John was apparently denied note-taking privileges, and when his support person was supposedly denied access to the case file, Hall imposed “arbitrary deadlines” with “unreasonable notice,” which resulted in John not having an adequate opportunity to prepare his defense.

The meeting referenced above, according to the lawsuit, took place on March 3, 2015. The suit then alleges that Hall informed John via email that he would have until noon the following day to provide any additional information.

Allegheny failed to interview, and refused to allow testimony from a key witness that proved that Jane’s allegation was false and made in an effort to manipulate Allegheny’s policy.

— Civil Action Complaint

The complaint claims that after John requested an extension until the following Monday to provide his response, Hall denied his request and required his response be submitted by 9 a.m. on March 5, 2015. Then, according to the complaint, Hall informed John on the following day, March 6, that he had concluded John was responsible for participating in non-consensual intercourse, and that he would be expelled from the college.

“Investigator Hall denied John the opportunity to fully and fairly respond to Jane’s claim and Allegheny’s investigation,” the complaint claims. “Thus, Investigator Hall ensured that Allegheny’s investigation would be incomplete and one-sided.”

The college officially does not place any limit on the possible duration of any investigations, according to part five of the college’s “Policy Against Discriminatory and Sexual Harassment.”

The 2014-2015 Compass handbook reads, “The investigation shall be completed as promptly as possible and in most cases, in less than 60 working days from receipt of the original complaint. However, some investigations may not be completed in this timeframe due to the nature and extent of the allegations or other extenuating circumstances.”

In the days following Hall’s adjudication decision, John submitted an appeal. A hearing was then scheduled with the Campus Life and Community Standards Board for March 24, 2015.

The complaint alleges that during the appeal hearing, “Allegheny failed to interview, and refused to allow testimony from a key witness that proved that Jane’s allegation was false and made in an effort to manipulate Allegheny’s policy.”

John emailed both Pope and Hall the day prior to the hearing, according to the complaint. In the email, he allegedly told them about a witness who came forward and claimed that she had a conversation with Jane “in which Jane disclosed her motive for falsely accusing John of rape.”

The transcript of the email John sent to Hall and Pope, which is provided in the complaint, describes a conversation John’s investigator had with the key witness, who is described as “Jane’s friend.”

In the email, the witness spoke of how Jane admitted to the sexual encounter, but never specified whether or not it was consensual. The transcript of the email then claims the witness said “[Jane] is upset because [John] will not talk to her anymore,” and “she doesn’t want to leave Allegheny, so the only way to get him out was to claim that he raped her and press charges.”

The transcript of the email alleges that the witness felt compelled to come forward with the information because “she feels that [Jane] is wrong and falsely accused [John].”

The “Dear Colleague Letter” which the OCR sent to schools receiving federal funding reads, “Throughout a school’s Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses and other evidence.”

Allegheny’s own Compass handbook states that, during a hearing, “the student is permitted and encouraged to bring relevant and necessary witnesses to the hearing.”

Despite these provisions set forth by both the federal government and Allegheny, the complaint contends that neither Hall nor Pope ever responded to John’s email regarding the witness. It additionally claims that Hall failed to interview her, and that Pope denied John’s request to have her testify before the panel at the appeals hearing.

The complaint claims “The hearing convened by Coordinator Pope was gender-biased, incomplete, fundamentally unfair to John, and denied John even minimal due process protections.”

The College has punished John with its most severe sanction – expulsion and a permanent record of the alleged violation – with no credible evidence and as a result of a process that contains virtually no procedural safeguards for accused students and is permeated with gender bias.

— Civil Action Complaint

It then outlines several alleged steps taken that prevented John from properly making his case. For example, the suit claims that during John’s period of questioning, he was only allowed to write his questions down one at a time to have them read by Pope herself, some of which she refused to ask, and that in between the time it took John to write questions, Pope encouraged others to ask questions, therefore breaking his line of questioning and preventing any continuity in his examination.

The “Dear Colleague Letter” suggests, “[The Office for Civil Rights] strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.” This is advised to avoid possible trauma or intimidation conflicted on the accuser by the perpetrator, but there are no guidelines set forth about how to still conduct questioning fairly.

Additionally the complaint claims that Hall spoke to the panel about his opinion in regards to the credibility of Jane’s witnesses, whereas John was denied such a liberty.

The complaint alleges that in Jane’s original written statement, she claimed she was raped in John’s room behind his door, which he blocked by furniture and other barriers. At the hearing, according to the complaint filed, “John established through his questioning that Jane left the room on two occasions to go to the restroom and that Jane passed the room for the resident assistant on both occasions and did not report an assault or leave the residence hall when she was able to do so.”

The same line of questioning revealed that after the alleged rape, Jane still chose to return to spend the following night in bed with John, according to the complaint. The suit then claims, “When it became apparent that the allegation of rape or sexual intercourse by force or threat of force was not supported by the uncontested facts, Coordinator Pope announced to the panel in the course of John’s questioning of Jane that this case was about John ‘coercing’ Jane, despite nothing in the record that supported this theory.”

The complaint alleges that John was eventually told he was asking “too many questions.”

The 2014-2015 Compass states, “An audio tape recording is made of the hearing and retained by the Assistant Dean of Students pending an appeal.”

After the hearing upheld the expulsion, John proceeded to submit an appeal to James Mullen, the president of the college, on March 28, 2015. The complaint claims that in the appeal, John wrote of how “Hall failed to interview [the key witness] whose information cast grave doubt upon Jane’s claim and proved Jane’s motivation to fabricate her claim.”

It then goes on to contend, “John also explained that Coordinator Pope prevented [the witness] from testifying before the committee.”

Furthermore, the complaint says John submitted two accompanying addendums to his appeal. The first claimed Pope allegedly injected her own personal bias and “changed the nature of Jane’s allegation when information favorable to John called into question Jane’s credibility.”

The second addendum supposedly provided relevant information by a new witness which the suit says “demonstrated that Jane is ‘a liar’ and continued to display pictures of herself with John in her dorm room, even after the hearing before the committee.”

Despite the appeal, Mullen upheld the committee’s decision, and the sanction of expulsion.

In the complaint, John is requesting that the disciplinary record which he has been issued by the college be removed and that he be provided with a notarized statement confirming the college’s findings on the case have been expunged from his record. Additionally, John is requesting to be re-enrolled at Allegheny and be awarded $75,000 in compensation.

The complaint was submitted by Paul J. Susko and J. Timothy George, John’s attorneys. When asked if he would like to comment, Susko replied, “I really cannot comment on the case itself.”

Additionally, when asked about the rate at which lawsuits are being filed against colleges and universities by students who believe they have been wrongly expelled, Susko said, “They’ve become a lot more common since the ‘Dear Colleague Letter’ came out.”

On Dec. 6, 2014, approximately two weeks before Jane submitted her report about the alleged rape, Mullen sent an email to the college community to let them know that the U.S. Department of Education’s Office for Civil Rights was placing Allegheny under review for its handling of sexual assault investigations.

The Campus reported at the time that Allegheny was one of 94 colleges under review by the OCR. There are now 227 colleges under similar reviews.

“It’s very detailed, it’s almost like an audit … everything associated with every case will be sent to OCR for their review,” said Executive Vice President and Chief Operating Officer of the College at the time, Sue Gaylor.

Coordinator Pope admonished John in the presence of the panel that he was asking ‘too many questions’.

— Civil Action Complaint

In a press release from the U.S. Department of Education on May 1, 2014, prior to Allegheny being placed under investigation, the OCR said, “As with all OCR investigations, the primary goal of a Title IX investigation is to ensure that the campus is in compliance with federal law.” It said that colleges were being placed “under investigation for possible violations of federal law over the handling of sexual violence and harassment complaints.”

“Anything that is happening right now is not going to be affected by the outcome of this review,” Pope said at the time Allegheny came under investigation of the OCR.

John’s lawsuit claims, “The complaint, filed under Title IX, generated media coverage which included criticism of Allegheny’s administration and staff.”  

The “Dear Colleague Letter” also states that schools must lower their standard in adjudication to the preponderance of the evidence, which it describes as “more likely than not that sexual harassment or violence occurred.”

It states that schools who use the “‘clear and convincing standard,’ (i.e. it is highly probable or reasonably certain that the sexual harassment or violence occurred),” which is a higher standard of proof, may have their federal funding terminated.

The Disciplinary Report compiled and revised by Hall in September 2016, is a report that details the data relating to sanctions administered by the college in regards to non-academic conduct.

The report specifies that there were no expulsions due to non-academic conduct violations in the two academic years prior to the OCR’s investigation, but there were five expulsions in the 2013-2014 academic year, and two in the 2014-2015 academic year. Furthermore, there were 16 suspensions given between fall 2013 and spring 2015, compared to only seven given between fall 2011 and spring 2013.

The spike in expulsions administered was not due to higher reporting rates because during the two academic years preceding the beginning of the investigation of Allegheny by the OCR, there were 21 more total sanctions given compared to the two years after.

The complaint filed by John’s lawyers alleges that schools that receive federal funding, such as Allegheny, must “be compliant with Title IX and thereby avoid a loss of federal funding.”

“We’re not able to speak about open cases,” said Eileen Petula, the current executive vice president and chief operating officer of the college when asked about the pending lawsuit.

In an earlier version of this article, it was reported that a “guilty verdict” was rendered against Doe by the College. The term used by the college is “responsible verdict.” Updated Feb. 23, 2017, 5:04 p.m.