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Questions of due process, equal protection arise in federal lawsuit over UMass officials’ handling of sexual misconduct case

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Tuesday, December 29, 2015
AMHERST — In a federal lawsuit filed this fall against the University of Massachusetts Amherst and six of its officials, a male former student has joined other plaintiffs around the country in claiming that a school’s disciplinary process for handling claims of sexual assault violated his civil rights.

Disciplinary proceedings against the plaintiff and former student, Kwadwo Bonsu, began after a female student accused him of sexually assaulting her at an off-campus Halloween party in 2014.

A UMass disciplinary board eventually found Bonsu “not responsible” for any sexual misconduct — but not before he was kicked out of his dormitory, barred from attending classes and prohibited from seeking the advocacy of a lawyer in his hearing, according to the suit. The board did find him responsible for breaking the terms of his pre-hearing probation — a violation that led to his suspension in April.

The suit, filed in U.S. District Court in Springfield in late September, comes at a time of increased scrutiny over the way colleges and universities handle allegations of sexual assault, including punishments handed down to students after they are found responsible, but not criminally guilty, for misbehavior. In Bonsu’s case, the university investigation continued after Amherst police declined to pursue criminal charges against him.

But legal experts say inquiries into claims of wrongdoing in a campus setting don’t begin and end with law enforcement.

In fact, colleges and universities are mandated to have sexual misconduct investigatory procedures in place under the federal Title IX statute. Passed in 1972, the law prohibits discrimination on the basis of gender by educational institutions that accept federal funding.

While Title IX has historically been cited as a basis for lawsuits filed against universities by victims of sexual assault, it is increasingly being cited by those accused of sexual misconduct.

‘Meaningful hearing’

Bonsu’s lawsuit is the second filed against UMass in the last two years by male former students who allege that, because they are men, the school mishandled allegations of sexual misconduct brought against them. A similar case filed last year against the university by a man identified in court documents only as “John Doe” was dismissed by a federal judge in July.

A suit against Amherst College was settled out of court in January, and another against the private school was recommended for mediation by a federal judge earlier this month. Other schools named as defendants in suits filed this year include the University of California, James Madison University and Brown University.

In a central claim of the most recent suit against UMass, Bonsu alleges he was deprived of due process after he was suspended without a “meaningful hearing.” He failed to attend the disciplinary hearing after trying unsuccessfully to reschedule it due to an illness, and he claims officials rejected evidence he supplied to prove his innocence.

Bonsu, a former chemical engineering major who lives in Maryland, also claims that UMass denied him equal protection under the law because of his gender — arguing that while both he and the woman agree that she was the one who initiated the sexual encounter, only Bonsu was investigated for misconduct because he is a man.

Named as defendants in the suit are: Patricia Cardoso, assistant dean of students; David Vaillancourt, associate dean of students; Enku Gelaye, vice chancellor of student affairs and campus life; Louis Ward, senior associate dean of students; and Jonathan Connary, assistant dean of students.

Bonsu’s Hatfield attorney, Brett D. Lampiasi, is asking the court to order UMass to immediately repeal his client’s suspension and seal his disciplinary records. He is also requesting monetary damages.

In an interview with the Gazette, Lampiasi said the university’s rush to investigate and punish Bonsu for the allegations brought against him resulted in an unfair and flawed process that was “inconsistent with the law of the United States.”

“I think what’s really sad is this could all have been avoided if somebody at UMass with any say in the disciplinary process put on the brakes for a second,” he said.

UMass spokesman Daniel J. Fitzgibbons said the university does not comment on pending litigation.

“I can’t comment on the specific case,” he said. “We do follow rules of due process in all of our student conduct reviews and that’s laid out very specifically in the code of student conduct.”

‘Consensual to a point’

According to court records, Bonsu met a female student at an off-campus party on Oct. 31, 2014. The two agree they had a sexual encounter, according to the filing.

The woman later wrote in a letter to UMass officials that after performing oral sex on Bonsu she indicated verbally and with her body language several times that she wanted to leave because she was “uncomfortable.”

“What happened between us was consensual to a point, and when I was no longer enthusiastically participating was when he should (have) stopped,” the woman wrote in the letter, which is included in court filings. Bonsu said the interaction was consensual, according to the documents.

The woman wrote that she wanted consequences for Bonsu to be as “moderate as possible given the shades of grey this incident is colored with.”

The woman filed a complaint with Amherst police and the UMass dean of students’ office in November 2014. While police declined to pursue criminal charges against Bonsu, the university launched an investigation into the woman’s claims, according to court documents.

“She describes a consensual sexual encounter and the Amherst police read it that way,” Lampiasi said.

The woman in February went to court to ask for a harassment prevention order against Bonsu, and was granted one on an emergency basis. Two weeks later a judge declined to continue the order permanently — which Lampiasi said was partly a result of a letter Amherst Police Chief Scott Livingstone wrote to the judge.

“I find this to be one of the most startling facts of the case,” Lampiasi said. He said in his work representing hundreds of clients, he has never seen a letter from a law enforcement officer supporting someone facing disciplinary action.

“Yet UMass barrels ahead like a freight train bent on essentially kicking this kid out of school,” he said.

Campus restrictions

In the letter, which was supplied to the Gazette by Lampiasi, Livingstone wrote: “I was able to affirm to Bonsu, that based on our agency’s investigation, and the request of the victim, criminal charges are not being sought against Mr. Bonsu. This case is considered closed by Amherst police.”

The university’s information-gathering efforts included the statement submitted by the woman, interviews with the woman and Bonsu, and interviews with a friend of the woman and a friend of Bonsu, according to documents.

After the interviews and prior to the April hearing, Bonsu was placed under a set of restrictions by UMass officials in January. He was banned from all but one of the university’s dining halls, barred from the campus center and told not to contact the woman, according to court documents. He was also prohibited from discussing the case with anyone but an “advocate” of his choosing, who could be anyone but an attorney.

The university tightened the pre-hearing restrictions against Bonsu two separate times in February, according to the suit: once after the woman told officials Bonsu sent her a Facebook friend request — which he denied, supplying records he said proved he did not contact her — and again after Bonsu requested help on the case from the student advocacy group Student Bridges. The Student Bridges member Bonsu contacted forwarded his email — which named the woman who had accused him — to other people in the group’s listserv, according to the suit. As a result, Bonsu was banned from campus and kicked out of his university housing.

A place for process

Erin E. Buzuvis, a professor at the Western New England University School of Law, said there is a higher standard of proof in criminal trials than in university proceedings.

“Due process is a sliding scale,” she said. “Generally speaking, the more that’s at stake, the more procedural protection you get before the government can deprive you of your rights.”

In a criminal court, “what’s at stake is considered to be the most important thing — your liberty — you could go to jail,” said Buzuvis, who studies Title IX as part of her research and is co-founder of the Title IX Blog.

Because of that, prosecutors are required to prove criminal wrongdoing beyond a reasonable doubt. And rape cases are tough to prosecute, because a key element — consent — often cannot be verified by forensics, Buzavis said.

“If the police say there’s no grounds to go forward, all they’re saying is we don’t think there’s enough evidence beyond a reasonable doubt,” she said.

But at a university, the evidentiary standards are more akin to a civil trial, in which the accused can be found responsible due to a “preponderance of evidence,” Buzuvis said. And while being suspended or expelled from school are not minor punishments, they are not as liberty-depriving as a jail sentence.

“Simply saying we’re not 99 percent sure doesn’t rule out that you might be between 51 and 99 percent sure,” she said.

Punishment rendered

After UMass officials scheduled Bonsu’s disciplinary hearing for April 2, Lampiasi contacted the university to reschedule the hearing because Bonsu was recovering from an illness, according to court documents.

But an associate dean “refused to reschedule” the hearing to address three charges — sexual harassment/misconduct and two counts of “failure to comply with direction of university officials,” according to documents.

The hearing board found Bonsu not responsible on the sexual misconduct charges, but responsible on both counts of not complying with officials’ directions due to allegedly contacting the woman via Facebook and reaching out to the member of Student Bridges.

Bonsu was suspended from UMass until May 2016, permanently banned from university housing, required to participate in four to six counseling sessions to address decision-making skills, and prohibited from contacting the woman, documents show.

He unsuccessfully filed an appeal of the decision shortly after the board issued its finding. But the board “provided no findings of fact in support of its recommendations,” leaving Bonsu unable to craft a meaningful appeal, his lawyer argues. Bonsu’s lawyer alleges that the board violated the university’s own rules by failing to complete that document.

Bonsu applied to several other universities last summer, but was denied admission in each case because of his disciplinary record, according to court documents.

Lampiasi said he recognizes that UMass needs to be sensitive in dealing with allegations of sexual assault, but it must do so with a sound process that considers the rights of all involved.

“UMass repeatedly says we’re going to do it our way — we don’t care what the law enforcement officials are doing,” he said. “We’ve invented our own process and we’ve decided to make UMass more like North Korea than the United States in terms of the level of due process we’re going to allow.”

Community standards

UMass and Amherst College are among dozens of institutions across the country being reviewed by the federal government regarding their compliance with Title IX’s requirements around sexual violence. Representatives from U.S. Department of Education’s Office of Civil Rights visited UMass in April as part of that inquiry, which UMass officials have said is a compliance review not triggered by any specific complaint.

Saundra Schuster, a partner at the National Center for Higher Education Risk Management in Ohio, said university proceedings play another important role — maintaining community standards.

Like any community, such as a workplace, universities are made up of people who create sets of rules to ensure a safe and effective operation of the community, said Schuster, who disclosed that she has in the past worked for the University of Massachusetts system.

“If someone violates that policy or regulation, then the community has a responsibility of addressing it,” she said. “The community can say your behavior was so egregious that you can’t be part of our community anymore.”

In the event that such a breach of community standards coincides with criminal behavior, Schuster said, universities don’t “stand back” as the legal process plays out. “That just puts everybody in the community at risk,” she said.

Lampiasi, Bonsu’s attorney, said he believes there’s a pattern at UMass of male students being treated differently than female students when it comes to allegations of sexual misconduct.

“I don’t think UMass is carrying out the mission of Title IX — which is to have a fair, non-arbitrary, non-gender-biased system in place,” he said.

Chris Lindahl can be reached at clindahl@gazettenet.com.