Penn settles lawsuit with student who accused the U. of mishandling sexual misconduct case

Penn has settled a lawsuit with a former student who took legal action to protest the University's handling of a sexual misconduct investigation last year. 

According to court documents, Penn agreed to pay the student accused of rape an undisclosed amount after he sued the school on grounds that the University's investigation violated his civil rights.

The student, known as John Doe in court documents, was accused of sexual assault by another student, Jane Roe, in June of 2016. Penn opened an investigation against Doe, tried him before a three-person hearing panel, and found him responsible for sexual misconduct. Doe, who was a senior at the time, was given a two-year suspension.

Doe, who is black, claimed that Penn breached its contract with him by not handling the investigation fairly. He also argued that Penn discriminated against him based on his race and gender, violating Title IX, which protects against sex-based discrimination in schools. 

In September, John Padova, a district court judge for the Eastern District of Pennsylvania, ruled that the court would move forward with three of Doe’s claims. The claims included that Penn had not provided a thorough and fair investigation, that Penn had not properly trained members of the hearing panel that adjudicated his case, and finally, that Penn had failed to protect him from gender discrimination under Title IX.

If the case had moved forward, Doe’s lawyers would have been able to subpoena documents surrounding the incident and more broadly research Penn’s adjudication process. However, since the case has been settled, Penn's adjudication process will not be examined by lawyers. 

Experts say that universities facing lawsuits of this kind often make settlements to avoid legal scrutiny of their inner workings.

“You will often see that these cases will settle shortly after the plaintiff wins a motion to dismiss precisely because the school does not want to expose the grubby interworking of its sexual misconduct process,” said Justin Dillon, a lawyer who specializes in Title IX issues.

University spokesperson Stephen MacCarthy declined to comment on Nov. 27, citing a University policy of not commenting on litigation.

Doe's allegations and how the University reacted

Doe argued in his complaint that Penn’s investigation — which is supposed to “include interviews of the complainant and respondent, interviews of witnesses and review of documentation, physical evidence, and any other relevant evidence” — may have been faulty because the Office of the Sexual Violence Investigative Officer did not adequately question inconsistencies in Roe’s story or explore whether she would have been motivated to exaggerate parts of her account.

In Padova's ruling, he cited Doe's original complaint, which stated that the office, led by Deborah Harley, did not obtain video recordings of the bar or of Doe and Roe’s walk home. Padova's ruling also found that the office did not interview the student who accompanied Roe to the Penn Women’s Center, Special Services Department in the Division of Public Safety, and the Philadelphia Police Department's Special Victims Unit. 

Andrew Miltenberg, a lawyer who specializes in Title IX issues, said sexual violence investigators at universities can influence hearing panels to reach a particular outcome by presenting the investigative reports in a certain way.

"The investigators tend to act as the gatekeeper of information for the panel, not the collector of information — either overemphasizing certain evidence that is inculpatory evidence, or deemphasizing or relegating to a footnote evidence that tends to be exculpatory," he said.

However, in their response to Doe's original complaint, University administrators directly addressed this concern by pointing out that at Penn, the sexual violence investigator and the adjudicating panel have disagreed on certain verdicts. 

Joann Mitchell, Penn's senior vice president for institutional affairs and chief diversity officer, noted in an unsworn declaration that in three of the four cases Penn has adjudicated in the past two years, the investigator and panel reached different conclusions or recommended different sanctions.

Doe, whose counsel Patricia Hamill declined to comment for this story, also alleged that Penn breached its obligation to properly train members of the hearing panel that tried his case.

He pointed to a document called “Sexual Misconduct Complaint: 17 Tips for Student Discipline Adjudicators” that Penn uses to train hearing panel members, alleging that the materials teach adjudicators to presume that the accused student is guilty.

Doe cited the guide’s warning that perpetrators may have “positive attributes such as talent, charm, and maturity,” but that these qualities are “generally irrelevant to whether the respondent engaged in nonconsensual sexual activity," and that a “typical rapist operates within ordinary social conventions to identify and groom victims.”

Matt Kaiser, a lawyer who has encountered similar guides in cases at other universities, said these guides can encourage panel members to assume the accused student is guilty, endangering the possibility of a fair outcome.

"It’s hard to imagine what an analog to that could be in a criminal justice context," he said.

A developer of the guide did not respond to requests for comment.

Doe's third claim — that Penn discriminated against him because of his gender, violating Title IX — was grounded in what he saw as a process that was fundamentally unfair to accused students, who are typically male. 

But Daniela Nanau, a civil rights lawyer who has worked on campus sexual misconduct cases, said it is rare for university adjudication processes to actually be biased against men.

"Most courts who have reviewed these cases have not sided with the students," Nanau said. "To demonstrate that a disciplinary process is infected by gender bias requires more than just pointing to the outcome by a disgruntled student who doesn't like it."

Doe's case demonstrates larger issues within sexual assault adjudication processes

On Penn’s campus, the sexual assault adjudication process has long been contentious — while students have mobilized many times in support of stronger protections for victims, some law professors have questioned the policies’ lack of due process for accused students. 

In a 2017 report released by the Foundation for Individual Rights in Education critiquing due process protection in disciplinary procedures at America's top universities, Penn's sexual misconduct policy received a failing grade of only 3 out of a possible 20 points for protecting due process. According to the report, Penn also does not include an explicit presumption of innocence for accused students.

“What we’ve seen in many institutions — the military, the church, universities, fraternities — is that the institution has some interest in protecting its own reputation,” said Cari Simon, a lawyer who specializes in school violence law. “[This] can lead to that institution choosing to sweep sexual violence under the rug.”

But for Felice Duffy, a lawyer who has defended students on both sides of sexual misconduct cases, protecting victims and allowing due process for respondents are not mutually exclusive.

"This is really about fairness and due process and being thorough, and I am a huge believer that sexual assault on college campuses is a problem," Duffy said. "No matter which side I've represented, this process hasn't been that great."