A second federal civil rights complaint has been filed against the University of Kentucky, this time for its handling of a high-profile sexual assault case.
The case involves former UK football player Lloyd Tubman, who was accused of rape by a former girlfriend in October 2014. A grand jury declined to indict him on charges of first-degree rape, but three UK panels have found him responsible for sexual misconduct and expelled him from campus, according to the complaint.
Tubman, a redshirt freshman last fall, has appealed after each ruling and has been granted a fourth hearing, which has not yet been scheduled.
The plaintiff, identified only as Jane Doe, said that because UK has allowed Tubman to continue to appeal the decisions against him, she is being re-victimized over and over again. She is asking the U.S. Education Department's Office of Civil Rights to intervene in her case.
In continuing the appeal process, the woman said in the complaint, "the University of Kentucky has condoned, permitted and engaged in a hostile environment against the victim of a sexual assault."
The Herald-Leader does not generally identify victims of alleged sexual assault.
Tubman no longer plays for UK and has not attended classes since October 2014; media outlets have reported that he now plays for Trinity Valley Community College in Athens, Texas. Athletics officials at Trinity Valley did not respond to requests for comment; nor did Tubman's Lexington attorney, Jim Lowry. Tubman himself did not respond to requests for comment on social media.
UK officials said Thursday they had not received notice of the complaint from federal authorities and would have no comment. After this story was first published online Friday afternoon, UK General Counsel William Thro issued a statement saying "the university must provide due process to an individual facing expulsion or a lengthy suspension."
"Due process includes the right to appeal an adverse ruling of the hearing panel," Thro said. "Refusing to allow an individual to appeal an adverse decision of a hearing panel would clearly violate that individual's due process."
The Office of Civil Rights does not comment on individual cases, but did confirm that UK is among 141 colleges and universities under investigation by the office.
Another Title IX complaint against UK was filed in April, but no details of that case have been made public.
Federal civil rights investigations can result in a variety of sanctions against universities. For example, the federal office closed a four-year investigation Monday of the University of Virginia, finding that it did not deal promptly with some sexual assault cases and created a hostile environment for victims. Under an agreement, university officials agreed to implement a new system for tracking cases, better training on the school's procedures and, according to the Washington Post, "ensuring that agreements with groups such as fraternities and sororities clearly state that sexual violence is prohibited."
The Herald-Leader was given a copy of the latest complaint against UK by Louisville attorney Elizabeth Howell, who said her client wished to bring attention to the issue of continued appeals and the negative effects they have on victims. The complaint does not name Tubman, but Howell confirmed he is the alleged assailant.
The university hearing process is required under new rules of Title IX — the federal guarantee of equal access to education regardless of gender — that went into effect last fall.
These Title IX hearings, which must take place within 60 days of a complaint, are decided based on a preponderance of evidence, which means a violation was more likely to have been committed than not. Grand juries issue indictments based on probable cause, which means there is enough evidence to continue legal proceedings. At trial, a jury must decide whether a person is guilty beyond a reasonable doubt.
Experts say Title IX hearing decisions often differ from criminal cases because of the different standards.
According to police reports and the civil rights complaint, Doe called police after Tubman allegedly assaulted her in her dorm room about 11:30 a.m. on Oct. 2, 2014. Both sets of reports said Tubman bit and beat Doe during the assault and the complaint said he threatened to end her life. The 911 call began two simultaneous investigations, one by UK police and one by UK's Office of Student Affairs.
Later in the day on Oct. 2, Doe asked if she needed a lawyer, but said she was informed that the university would be her lawyer, according to the complaint. Doe said she also was harassed on social media, but she said a UK police officer told her to ignore them.
UK held a panel hearing on Oct. 8. Panel hearings are staffed by faculty and administrators who are trained in sexual assault policies and issues. According to the complaint, Tubman did not attend because he was at a court proceeding. Tubman was booked by Lexington police on Oct. 7.
On Oct. 8, the panel found Tubman responsible for sexual misconduct and permanently suspended him from UK, the complaint said. Doe, meanwhile, withdrew from classes.
Tubman appealed to the University Appeals Board on Oct. 20, saying his absence from the hearing violated his due process. Doe was not notified of the appeal until Dec. 4, according to the complaint.
A second panel hearing was held Dec. 18. Doe did not attend, she said, because two employees from UK's Violence Intervention and Prevention Center told her it could compromise the ongoing criminal investigation. On Dec. 22, the panel found Tubman responsible and again expelled him from campus.
A week later, he appealed again, saying that Doe's absence meant she could not be questioned by Tubman or his representative. UK granted that appeal.
In her complaint, Doe said she was not informed of the appeal until Feb. 14 and was not given a copy of it until March 4.
On Feb. 11, 2015, a Fayette County grand jury declined to indict Tubman after hearing three days of evidence.
UK held a third hearing on March 26.
"Jane Doe felt she had to participate in the third hearing because UK wanted respondent to return to the university to play football and would take any opportunity to find him not responsible," the complaint says.
Doe participated via telephone. The panel found Tubman responsible for the third time. This time, the complaint says, Tubman was suspended only through 2020 and was required to take anger management classes.
Tubman appealed again, on the grounds that two police officers testified together during the third hearing and that Tubman's adviser was not allowed to whisper to him, the complaint says.
UK decided to grant another hearing, which has not yet been scheduled.
Campus sexual assault proceedings are becoming an increasingly thorny problem for universities because the Office of Civil Rights has not yet made a determination on how many appeals should be allowed, said Gretchen Hunt, staff attorney for the Kentucky Association of Sexual Assault Programs.
"Around the country, advocates are really wanting the Office of Civil Rights to weigh in on appeals because defense attorneys are abusing the process with endless appeals," Hunt said. "It's extremely traumatic for victims — these grievance proceedings are supposed to be prompt and equitable, and if they keep pursuing it until they get the answer they want, it's counter to what Title IX suggests."
Advocates recommend that universities create policies that allow only one appeal "because it defies reason that you could appeal forever," Hunt said. "The university could amend its policy right now because of this case, and the current impact on other students who will see this case and say I'm never going to pursue mine."
Howell, Doe's attorney, said she is concerned about her client's health, safety and education, which she has not been able to pursue because of the mental anguish of continued appeals. Doe has also received anonymous threatening phone calls, Howell said.
"My client has courageously fought for her right to discrimination-free education in the commonwealth of Kentucky," Howell said. "Though her perpetrator has been found responsible for sexual misconduct in accordance with the Student Code of Conduct, UK has nonetheless needlessly subjected her to trauma again and again through its endless appeals process. "
Title IX rules are contained in each school's Code of Conduct, which students agree to obey when they enter an institution. That protects schools from liability if a student doesn't like the outcome of a grievance process, experts said.
Still, Fayette Commonwealth's Attorney Ray Larson said the two-track process of criminal charges and Title IX investigations in sexual assault cases will continue to cause confusion because criminal and disciplinary tracks can end so differently.
"I think this whole thing has a lot of issues that will have to be sorted out," he said.