In something close to a first-of-its-kind decision (in a similar case filed against Holy Cross, the judge sided with the university; comparable cases against Vassar and St. Joe’s remain pending), U.S. District Court judge Arthur Spiegel has upheld much of the lawsuit filed by former Xavier basketball player Dez Wells against the university. A gender discrimination and libel case based on an allegation of rigged procedures against Wells will go forward.
To review the allegation: after what he claimed was an incident of consensual sexual intercourse, Wells was accused of sexual assault. In a mere 27 days from accusation to judgment, the university concluded that Wells was “responsible for rape” after a process in which Wells couldn’t cross-examine his accuser and was deemed a rapist based on a preponderance-of-evidence threshold. All this occurred while Cincinnati authorities determined that there was no basis to pursue criminal charges; prosecutor Joseph Deters deemed the Xavier process “fundamentally unfair.”
In the Wells case, “justice” was swift–and unjust. So Wells filed a federal lawsuit, claiming gender discrimination and libel, and urging the court to overturn the result of Xavier’s disciplinary tribunal, called the UCB. One advantage universities have in these sorts of proceedings is that unjustly expelled students often will shy away from filing a lawsuit, since the mere act of going to court will make public that their former school branded them a rapist. But in Wells’ case, he already had been subjected to taunting behavior from opposing crowds–including, most shamefully, from Duke students, who should know something about procedural improprieties and rape allegations–because of the highly-publicized nature in which Xavier handled the claims.
Judge Spiegel’s order (which you can read here) denied Wells’ request to vacate the UCB decision, but solely on procedural grounds (he cited a statute-of-limitations problem). Wells had conceded as much in his final pre-order filing. Spiegel also dismissed another claim, against Xavier president Michael Graham, for technical reasons.
On the nine other claims, however, Judge Spiegel allowed the lawsuit to proceed–taking, as he must at this stage of the case, Wells’ factual assertions as true. On Wells’ Title IX claims, the order held that Wells’ allegations plausibly showed that Xavier was “reacting against him, as a male, to demonstrate to the OCR that [university officials] would take action, as they had failed to in the past, against males accused of sexual assault.” Spiegel noted that the university ignored warnings from the prosecutor that the sexual assault claim was unfounded, and deemed Wells a rapist anyway.
By far the most interesting section of Judge Spiegel’s decision came in his discussion of Wells’ libel claim–which is based solely on Xavier having publicly stated that the university dismissed Wells for having committed a “serious violation of the Code of Student Conduct.”
Stepping outside a summary of the back-and-forth claims between Wells and Xavier, Spiegel made his opinions about Xavier’s judicial process quite clearly known.
Normally, the judge observed, “judicial and quasi-judicial proceedings are entitled to an absolute privilege, so as to encourage witnesses to speak the truth.” But not in this instance, as “it appears to the Court that the UCB here, a body well-equipped to adjudicate questions of cheating, may have been in over its head with relation to an alleged false accusation of sexual assault.” For this reason, and given that Xavier denied Wells the right to an attorney and the right to cross-examine his accuser, it’s at least plausible to credit Wells’ claim that the entire process was “invalid.”
A federal judge suggesting that a major university’s sexual assault process might–in its very nature–be “invalid.” Remarkable.