News and Commentary

DUE PROCESS DENIED: Judge Dismisses Accused Students’ Lawsuit, Claims School President Had ‘Absolute Immunity’ When He Trashed Football Players

   DailyWire.com

A district court judge in Minnesota has dismissed a lawsuit from 10 former University of Minnesota football students who claimed they were denied due process when their former school found them responsible for sexually assaulting a female student.

The case dates back to 2015. The remaining football players announced they would boycott practicing and playing until the suspended members were reinstated. Senior player Drew Wolitarsky said the team had unanswered questions and defended his teammates from the allegations. A few days later, the team gave up their boycott.

The players had been accused of taking turns to sexually assault a woman at a party. The accuser acknowledged to police that at least some of the sexual activity “may have been consensual.” Videos provided to police showed that she was “lucid, alert, somewhat playful and fully conscious; she does not appear to be objecting to anything at this time.”

Police declined to charge the players, but the university went ahead with its own investigation. The Minnesota Equal Opportunity and Affirmative Action Office (EOAA) recommended five of the players be expelled, four others be given a one-year suspension, and one player be given probation. An eleventh player was not found responsible and received no punishment.

The punished students sued UMinn, alleging their due process rights were violated and the university defamed them. The students claimed the school acted with bias against them because of their race and gender. Because one student had been cleared, their due process claims were weakened, said history professor and author K.C. Johnson. The defamation and racial discrimination claims, he said, “seemed strong.”

After the students were suspended, UMinn president Eric Kaler made several statements to the media that the players claimed defamed them.

For example, in one of his statements, Kaler claimed the students’ suspension was “different from any conduct code” but nevertheless justifiable because “the University of Minnesota will not change our values or our code of conduct for the sake of a bowl game.” He had also stated that “young women feeling safe during campus life” was “more important than any single athletic team.”

The students claimed in their lawsuit that Kaler made more press statements after the redacted report prepared against the players was published by a media outlet. The players alleged that he claimed “there is no due process when it comes to athletic suspensions” and ‘[y]ou don’t have a constitutional right to play a football game,” according to court documents reviewed by The Daily Wire.

Judge Donovan W. Frank argued Kaler had “absolute immunity” in making these statements.

The students were given the option to accept punishment through an informal resolution but declined, opting instead for a formal hearing. As is often the case, this did not go well for them as the university made it all but impossible for them to defend themselves. For example, the students were denied separate hearings and gave each player little time to present his defense. In addition, each player was only interviewed during the school’s investigation for 15 to 20 minutes while the accuser was interviewed six times.

The players, according to their lawsuit, were denied copies of communications between Kaler, another administrator and the school’s EOAA. Kaler and this administrator were not allowed to be called as witnesses. Further, the accuser and another administrator were allowed ex parte contact with the hearing panel. Finally, the players were not allowed to bring up negative inferences from the fact that the accuser refused to hand over her sexual assault exam to school investigators.

Judge Frank dismissed the case with prejudice, meaning the players cannot amend their complaint. He argued that other courts had found that bias against accused students (who are almost exclusively male) does not constitute bias against men, even though other courts have found differently. He also faulted the students for not being able to produce an example of an accused female who was treated better than they were (because female students are rarely, if ever, the accused).

Further, even though the students pointed out that white accused students were treated more favorably, Judge Frank dismissed their racial discrimination claim because the example students were not “similarly situated … in all relevant respects.” So, because a white university employee was treated differently, their claim was rendered invalid. Even the white football player who was found not responsible didn’t count as evidence of racial bias to Frank.

It’s a setback for student due process rights, even as many other accused students have received favorable rulings in recent years.