Two Occidental students had an extended Facebook chat for one day. The exchange was initiated by the female student and ended after she said she no longer wished to participate in the conversation. Later, she would tell school administrators that the male student stalked her, according to a lawsuit filed in California superior court. He was found responsible for stalking by Occidental and believed he would be barred from law school or medical school based on the finding.
The male student, who had known depression issues, overdosed on multiple prescription drugs and died. His family is now suing the school, the administrators who conducted the investigation, and their son’s accuser for the wrongful death of their son, as well as multiple charges that the school discriminated against their son because of his gender and denied him due process.
The male student, Davis Xu, was accused after the female student, identified as Stephanie Malter in publicly available court documents that were also posted online by professor K.C. Johnson, learned that he had called her a “b****” in a private conversation with another student, according to his family’s lawsuit.
Malter was reached for comment by The Daily Wire but declined to respond. It is believed she had not received notice of the lawsuit, as Occidental said in its response to a Daily Wire inquiry that it had not yet been served.
“The death of any student is a tragedy. Davis Xu’s death had a powerful impact on our community, and we deeply sympathize with the Xu family for their loss. We have not yet been served with the lawsuit. Occidental has been and remains committed to ensuring a fair process for all parties in college proceedings,” a spokesman for the school said in an email.
According to the family's Complaint, Xu and Malter met in a shared sociology class in September 2016. On September 20, 2016, according to court documents, Malter suggested the two become friends on Facebook and input her name in the application on Xu’s phone. For the next few days, the two exchanged messages pertaining to their sociology class.
Per court documents, on September 25, Malter messaged Xu at 7:12 a.m., responding to Xu’s message from the night before about connecting with a fellow classmate on the dating app Tinder. They then exchanged several back-and-forth messages about their sociology class and school work. The two then returned to their conversation about the fellow classmate, before Xu mentioned he was currently suing Brown University. Malter asked: “What happened with brown? If you don’t mind me asking,” according to the Facebook chat logs.
Xu explained that he was the subject of a Buzzfeed article about Brown, and that the Department of Justice (DOJ) and the Education Department’s Office for Civil Rights (OCR) agreed to look into his case.
The article Xu referenced was about how he was prevented from returning to Brown University after being put on medical leave for his depression. Xu had attempted to commit suicide at the time, and worked hard to be readmitted, only to be told repeatedly that he still didn’t have the “insight” to return to school.
Malter responded to Xu’s explanation by saying she didn’t know what OCR or DOJ were, according to the Facebook messages.
The two again returned to talking about the other classmate. After some more innocuous back-and-forth about dating styles in college, Xu wrote to Malter at 8:40 a.m. saying he wanted to ask her out. According to court documents, the following exchange took place:
Xu: please don’t take this the wrong way but (and this has nothing to do with her)... but
since we’re on this topic...
Malter: I 'm just not interested in people lol
Xu: i kinda was thinking of asking you out oh crap
Malter: Which is its own issue
Xu: really bad timing omg
Malter: Sorry man not really interested rn [right now] You're fine
Xu: i feel so dumb
Over the next several minutes, Xu continued to say he was embarrassed and the two discussed relationships again. Malter kept telling him he was “fine” and suggesting there were lots of “cool people around,” according to the messages.
Per the messages, Xu then brought up his ex-girlfriend, who he says was raped by her ex-boyfriend. Malter continued to respond to his messages, saying “People are so f***ed up” and telling Xu she wanted to be a criminal prosecutor.
After more messages on the subject, Malter said she needed to do school work and that she would “ball out for now.” Xu responded, “yeah sorry.” Malter responded back, “And I’ll see you later," according to the message log.
Xu then apologized yet again for asking her out.
“No i just thought you were really awesome even at first glance and smart from what you say in class personality matters more but i also have this weird thing for redheads idk sorry i will stop before I embarrass myself more go do work; i gotta do mine too,” he wrote, according to the logs.
Malter responded: “Yeah you should probably stop lol ton just gotta relax.”
According to court documents, Xu then sent her the Buzzfeed article he described earlier in case Malter was “interested in civil rights.” He again asked about the other classmate before saying he was about to pass out.
According to Facebook logs, their conversation lasted between 7:12 a.m. and 8:50 a.m. At 3:08 p.m., Xu reached out again to say he got an extension on a paper because he was about to go “into a bout of clinical depression again…”
Malter responded saying she was “not the person to talk to about this.”
Xu asked if it was because he “made things awkward earlier” but Malter said it wasn’t. Xu asked her not to read the Buzzfeed article.
At 3:15 p.m., Malter told Xu: “I didn't and I wasn't planning on it It's not my business I'd prefer it if you don't talk to me anymore.”
Xu responded 40 minutes later: “oh wow. um... i wasn’t expecting that actually but ok i respect that; you can unfriend me on fb. one final interjection: that was pretty rude to be honest and really hurt what I’m going through right now; please don’t do that to other people in the future. It’s offensive. [Xu’s professor] has depression. I have to block you; I’m sure you want the same,” the Facebook log stated.
No other message was sent after that.
Five days later, on September 30, Malter filed a complaint against Xu, alleging he had violated Occidental’s sexual harassment and stalking policies, according to the lawsuit.
Malter, according to court documents, told Occidental investigators she could have blocked Xu at any time, and wished she had; she said she felt when she said “Yeah you should probably stop lol ton just gotta relax,” she had clearly communicated that she did not want to talk to Xu anymore. According to court documents, Malter continued to communicate with Xu, however, and told investigators that his comments about his ex-girlfriend made her uncomfortable, even though she continued to respond to Xu and ask him questions about the situation. She also said his comments regarding Brown University made her uncomfortable, though again, she continued to engage with him, according to the lawsuit.
According to the lawsuit, once Malter told Xu she didn’t want to talk to him anymore, he sent that final message of explanation and didn’t contact her again.
Occidental informed Xu that he had been accused of sending Malter Facebook messages even after she asked him to stop. Though Xu insisted Malter only filed the complaint after she learned Xu had called her a “b****” to a third-party, he was investigated for stalking, his family claims in their lawsuit.
Occidental, which has been sued previously for unfair sexual misconduct hearings, dismissed many of Malter’s main claims against Xu. The investigative report stated that her “messages did not clearly indicate that she wanted to stop communication with Respondent [XU] until her last message,” and "Based on the preponderance of the evidence, we find that Respondent did not continue to contact Complainant after she clearly told him to stop communicating with her, aside from one Facebook message in which he stated that he and Complainant should unfriend each other on Facebook.”
The school also found that Xu “did not sexually harass Complainant based on her gender.”
Still, the school determined Xu “engaged in two (2) acts that caused MALTER to fear for her safety [(a) communicating to two other people on social media regarding MALTER, and (b) sending her a Buzzfeed article that described him having “drunken fights” with his ex-girlfriend], although [the Occidental investigator] concluded that MALTER’s emotional distress was ‘not substantial,’” the lawsuit claims.
According to court documents, Xu was found “not responsible” for violating the school’s sexual misconduct policy, but found “responsible” for stalking because he sent her the Buzzfeed article about his depression, which included a section that he and his ex-girlfriend got into some drunken fights, and that he called Malter a “b****” and a “certain redheaded a******” in a private conversation with a third party.
Malter claimed to Occidental investigators, according to the lawsuit, that she began to fear for her safety and feared what Xu would do to himself after she read the Buzzfeed article.
Xu was ultimately put on “disciplinary probation” for one year and was required to meet with a representative from the Office of Student Conduct each month during that time. Disciplinary probation is described by Occidental as a “potential loss of privileges, including, but not limited to, the ability to study abroad, be hired by an on-campus employer, move off-campus during junior year, and participate in College athletic programs.”
He was also required to complete an online prevention program, write a 1,000-word reflection essay and was barred from having any contact with Malter.
According to court documents, Xu was told he could appeal the finding. He sent an email to the school with the subject line: “What’s next” and asked why he was receiving such a harsh penalty. He noted in this email that he felt he would not be accepted into law school or medical school because of this mark on his disciplinary record.
When appealing to the school, he noted his severe depression, anxiety, panic disorder, and “significant suicidal ideation.” He also informed the school that he would not be able to graduate on time because he could no longer participate in independent study due to his punishment, according to the lawsuit.
Malter was also able to respond to Xu’s appeal, and did so on January 27, 2017, the lawsuit claims. Between February 16 and 18, Xu retained counsel and prepared to file a lawsuit against Occidental if his appeal was denied. Between February 19 and 24, Xu, his counsel, and Occidental discussed the complaint and appeal, according to the lawsuit.
On February 27, 2017, Xu died of “an accidental or intentional overdose of multiple prescription drugs.”
An article in the school newspaper quoted Occidental Director of Communications Jim Tranquada saying the school did not “yet know the circumstances surrounding Davis’ death.”
Mark Hathaway, attorney for Xu’s family, gave The Daily Wire a brief statement on the situation.
“The family is devastated and had hoped to avoid litigation,” Hathaway said.
Xu is not the only male student to die following what he and his family believed was an unfair adjudication process. Two months after Xu’s death in February 2017, University of Texas at Arlington student Thomas Klocke took his own life after being accused of typing homophobic slurs to a gay classmate.
Klocke said the classmate actually made sexual advances toward him, and insisted he did not do what he was accused of. He was found responsible and put on disciplinary probation for the rest of his college career and told he would have a mark on his record, even though the school acknowledged there was no evidence for their decision.
As with Xu, according to court documents, Klocke believed this mark on his record would keep him out of graduate school, and he took his own life. His parents are suing the school for his wrongful death.