Washington and Lee University has to turn over sexual misconduct hearing records to the attorneys of a former male student suing the university for anti-male discrimination, according to recent filings.  

The former student, who was suspended from the university after being found responsible for non-consensual sexual penetration, first filed the federal lawsuit against the university in April 2019 in the U.S. District Court in Lynchburg. 

[Washington and Lee denies it acted with anti-male bias in 2017 sexual misconduct case]

In March 2020, U.S. Magistrate Judge Robert Ballou granted the plaintiff’s motion to compel Washington and Lee University to provide records from 10 sexual misconduct proceedings unrelated to the plaintiff’s case. The university had initially declined to do so due to concerns that the release would “invade on the privacy of the students who provided testimony in these reports.” 

Title IX is a federal law that applies to educational institutions that receive federal funding. It prohibits gender and sex discrimination, including sexual harassment and sexual assault of students and employees.

“These individuals have divulged intimate details of private sexual encounters to the investigators and, later, to the hearing panel members, solely for the purpose of resolving these private matters within the University context,” attorneys for the university wrote in a March 13 filing. 

Attorneys for the university said in the March 13 filing that redacting names and limiting access to attorneys is not enough to protect the privacy of the students involved, arguing that handing over the records could decrease sexual misconduct reporting on campus. 

“W&L is a small community, with approximately 2000 students,” the filing reads. “The details in these reports are often enough for a community member to know who is described in the reports even if no names are provided.”

Ballou ruled that the university’s concerns “are properly addressed by redacting the names of all students involved in those proceedings and restricting access of these records to ‘Attorneys Eyes Only.’” 

In the original lawsuit, the plaintiff accused Washington and Lee University of anti-male discrimination, retaliation, negligence and breach of implied contract. The judge granted permission for the former student to proceed with the lawsuit under the pseudonym John Doe but the Ring-tum Phi accessed documents that revealed the plaintiff as former student Anthony Ruvo. 

In his original complaint, the male student alleged he had a consensual sexual encounter with a female student, referred to as Jane Roe, and that she made a false accusation against him in 2017. A three-member Harassment and Sexual Misconduct Board unanimously found the student guilty of non-consensual sexual penetration and suspended him for the subsequent fall term. Ruvo has not since been reinstated.

In February, the plaintiff’s claims were dismissed, except for the anti-male discrimination claim under Title IX. Washington and Lee did not move to dismiss the Title IX claims. After a motion hearing in November 2019 and a discovery conference over the documents at hand in January, the trial date was set for September. 

On May 15, citing complications working remotely stemming from the novel coronavirus, attorneys for both the plaintiff and the university requested to push the trial date back to November 30, 2020. As of May 17, the judge has not yet approved the new trial date, according to the court docket.

“State stay-at-home orders and social-distancing requirements have made it difficult for the parties to complete discovery in this case,” the joint filing reads. “The parties have conducted depositions remotely, where possible. However, the parties believe it would serve their interests and the interests of the Court to conduct certain key depositions in person, and that it will be safer to do so later in the year than the current trial schedule will allow.”

Micah Schwartz, one of the attorneys with McGuireWoods law firm representing Washington and Lee, declined to comment. Attorneys representing the plaintiff did not respond immediately to a request for comment.

Starting in July 2019, the plaintiff made multiple requests for all documents related to sexual misconduct hearings and appeals since 2009 as part of his Title IX claims of anti-male discrimination, and Washington and Lee University declined to provide them. Instead, according to a March 13 filing, the university provided a summary chart including all disciplinary proceedings involving student sexual misconduct since the 2008-2009 school year, with the following information included:

• academic year of the case,
• type of misconduct alleged,
• charges brought against the respondent,
• names of the investigators,
• date of the hearing,
• names of the hearing panel members,
• the hearing board’s verdict,
• sanctions imposed by the hearing board,
• date of the appeal,
• names of the appellate panel,
• outcome of the appeal, including final sanctions, and
• gender of the complainant and respondent.

The university said in its response filed on March 13 that the information was included for 34 different cases. 

On March 25, Ballou granted the plaintiff’s motion for the university to produce the underlying investigation report and decision letters from 10 specific cases from the chart, with redacted student names and access for only attorneys involved in this case. 

“John must have access to W&L investigation reports and written decisions in other cases to determine whether W&L has engaged in a pattern of decision making against men when it has adjudicated cases similar to his own,” the plaintiff’s attorneys wrote in a March 3 filing. 

The plaintiff requested documents starting in 2009 because those documents coincide with changes in the U.S. Department of Educaton’s 2011 guidance that “exerted substantial pressure on schools to protect women from campus sexual assault by making it easier to find men responsible,” according to the plaintiff’s March 3 filing. 

“W&L experienced additional pressure to protect women as a result of a 2015 OCR investigation into W&L’s [handling] of a female’s reported assault in 2014,” the plaintiff’s attorneys wrote in the motion to compel filing. 

For the plaintiff’s claims to stand, he has to show “facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding, “a particularized causal connection between the flawed outcome and the gender bias,” and “that a similarly situated respondent of the opposite sex was treated more favorable than the plaintiff,” the magistrate judge wrote in his March 25 decision.

Virginia courts require plaintiffs to identify a “specific comparator,” Ballou wrote in the March 25 decision.

In its response filed March 13, the university declined to provide the records from the 10 cases that the plaintiff requested. 

“The Plaintiff seeks some of the most sensitive information W&L possesses: the intimate, and at times graphic, accounts of sexual encounters provided by several of W&L’s students, including alleged sexual assault victims, accused students, and various witnesses,” the filing reads. “These documents would provide marginal, if any, value to Plaintiff’s case because they do not involve any of the parties to this case. The Court should prevent this needless invasion of students’ privacy and deny Plaintiff’s motion to compel.”

Ballou argued against the university’s second point.

“The material John Doe seeks is substantially relevant to his claims under both an erroneous outcome and selective enforcement theory that W&L intentionally mistreated him due to ‘institutional gender bias’ manifested through the actions of investigators and decisions by hearing panel members,” Ballou wrote in the March 25 decision. “The content of investigative reports and hearing decision memos relating to allegations of similar sexual misconduct relates directly to his Title IX claims in a level of depth and detail which the W&L summary chart simply does not provide.”

Ballou highlighted one of the 10 cases, the only one in which a female student was accused of sexual misconduct. He said that file was relevant as “a comparator under the selective enforcement theory advanced by John Doe.” 

Ballou ruled that Washington and Lee University had 14 days to produce the investigative reports, including appendices, and hearing panel decision letters from the 10 cases that the plaintiff requested, according to the motion to compel filing. The documents redacted names of students and were restricted for viewing by attorneys only, according to the motion to compel filing.