UA response in rape case judge’s focus

FORT SMITH — A twohour court hearing Tuesday in a lawsuit against the University of Arkansas, Fayetteville focused on the response by campus officials to a student’s report of rape.

The woman suing the university in federal district court reported the rape as a 19-year-old student in October 2014 and, in her lawsuit filed in 2016, claims that UA acted with “deliberate indifference.”

The hearing followed a motion seeking a summary judgment for the university.

U.S. District Judge P.K. Holmes III — who at times openly disagreed with attorneys on both sides of the case — said Tuesday that it would take some time to rule on the motion in what he called “one of the oldest cases on my docket.”

A university attorney Tuesday defended steps taken by campus officials.

“Several individuals on the campus responded to help” the student who reported the rape, said Joe Cordi, associate general counsel, arguing that those efforts showed that there was no “deliberate indifference.”

Under Title IX law, schools must investigate complaints of sexual misconduct, federal authorities have said. These proceedings are separate from any police investigation.

Title IX prohibits sexbased discrimination at schools receiving federal funding.

Schools also should provide interim measures as appropriate for students after reports of sexual misconduct, such as restrictions on contact between parties involved in a reported assault, changes in housing locations, and academic extensions of time or other adjustments, federal authorities have said.

George Rozzell, an attorney for the student suing UA, said there was a “constant state of disarray” in the university’s response from October 2014 through mid-February the next year, citing a lack of follow-up for some interim measures.

Rozzell also said the former student was “living with fear” before ultimately choosing to leave UA, in part because of the university’s handling of the disciplinary case against the student accused of rape.

Holmes questioned Cordi about how findings from an appeal — part of the UA campus disciplinary process — were communicated to the former student.

The appeal followed a UA campus disciplinary panel’s decision to find the student accused of rape to be responsible for sexual misconduct. The panel expelled him.

But on appeal, the decision seemingly was changed to allow him to graduate. Then, after questions about the appeal decision were raised by a reporter with the Huffington Post news site, UA officials said the initial appeal decision had been issued by mistake.

Holmes questioned Cordi about an email sent by a student conduct official, Rachel Eikenberry, to the former student now suing UA. Holmes said the email, sent before the initial appeal decision was rescinded, did not explain that the expulsion date had been delayed.

“I sure think this email is misleading,” Holmes said about the message from Eikenberry.

Rozzell argued in the hearing that the later-rescinded appeal decision greatly affected the student now suing the university, as she feared she might again encounter the person found responsible in her rape case.

He said the university initially declined to release the appeal decision and released it only after being pushed to do so by an advocate with legal training, Laura Dunn.

Without advocacy, “I argue today that mistake would have never been uncovered or changed,” Rozzell said.

Cordi argued that the “key thing” was that the student found responsible for misconduct was not allowed on university property, and that this was communicated in Eikenberry’s email.

“It is not deliberate indifference. It was a mistake,” said Cordi, calling it “something we corrected.”

Holmes said whether the decision was a mistake or changed because of “heat” from the Huffington Post, “it doesn’t matter.”

Holmes said what matters is whether the UA actions resulted in “further vulnerability” to discrimination for the student suing the university.

The lawsuit also argues that UA should have done more to protect the former student given that the expelled student had previous run-ins with campus police.

But Holmes said the earlier behavior did not involve sexual assault.

“I don’t think the pre-assault claims have any viability,” Holmes said, a reference to legal arguments in the case.

No witnesses spoke at the hearing, but the woman suing the university was in attendance with family members. She had traveled from Colorado.

“This has been the past five years of my life,” she said after the hearing, calling it important to be there for a key event in the case.