Campus discipline at heart of University of Tennessee lawsuit

Monday will mark exactly three years to the day a former University of Tennessee student reported to campus officials she had been raped by a varsity basketball player in his dorm room after being invited to watch an afternoon movie.

She reported the incident to university police, underwent a rape exam, and told her story again to campus officials. The basketball player invoked his right to counsel when questioned by police.

What happened next, as she waited for the university to take action, is the subject of a sweeping lawsuit filed last week that is challenging the university's system of disciplining student athletes and asking a federal court to intervene to end it.

It would take five months before an administrative law judge appointed by UT Chancellor Jimmy Cheek determined the player, Yemi Makanjuola, violated student codes of conduct “by sexually assaulting” the woman, according to an order obtained by The Tennessean.

University policy calls for investigations to be complete in 60 days in most cases.

Makanjuola declined to show up at the hearing. Makanjuola denied the allegations at the time through his attorney, Don Bosch, a former UT student athlete, law graduate and member of the Athletics Board.

The woman had no attorney.

At the hearing the administrative law judge asked the female student, an 18-year-old freshman, if she was being "vindictive in any way."

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Makanjuola’s eventual punishment: indefinite suspension, the discipline recommended by the university.

By then, Makanjuola had completed the academic semester and transferred to the University of North Carolina Wilmington, rendering the punishment irrelevant. Makanjuola has since transferred to Southern Illinois University Edwardsville, where he is on the basketball team.

When Makanjuola was granted a release in 2013, then-coach Cuonzo Martin said: “Yemi is leaving Tennessee on good terms. He's respected by his teammates and coaches, we all appreciate the work he's put in during his time here, and I'm confident that he'll be successful."

COMPLETE COVERAGE: University of Tennessee sex assault lawsuit

Neither the sexual assault allegation nor an order of protection the victim ultimately obtained in a Knox County Circuit Court were mentioned in the university's news release about Makanjuola leaving UT. The Knox County District Attorney declined to prosecute, citing insufficient evidence.

Makanjuola on Friday declined to comment on the advice of his personal counsel, said Doug McIlhagga, executive director for university marketing and communications at Southern Illinois University Edwardsville.

Sweeping sex assault suit filed against University of Tennessee

The woman who accused Makanjuola is named as “Jane Doe 1” in the lawsuit filed against the University of Tennessee on Tuesday. The lawsuit does not identify her by name and The Tennessean does not identify people who say they are sexual assault victims. She is one of six unnamed women in the lawsuit who accuse the university and its top administrative and athletics officials of fostering a dangerous student culture that both enables sexual assaults by athletes then steers those athletes to choose an unusual on-campus discipline process that is biased against victims who step forward.

The lawsuit singles out UT’s student discipline process as “a deliberate rule and policy decision by UT to allow perpetrators of sexual assaults, particularly varsity football and basketball players, to delay and altogether avoid sanctions and discipline for sexual assaults.”

An attorney for UT said in a statement Friday that since 1974, the university, like every state agency, has been required by state law to adhere to the Uniform Administrative Procedures Act, or UAPA.

"Thus, the implication that the UAPA is a process created by the University of Tennessee and reserved for student-athletes is ludicrous," the statement from university attorney Bill Ramsey said.

"Before suspending or expelling a student for misconduct, the University of Tennessee complies with the contested case provisions of the UAPA, which provide constitutionally guaranteed due process to students accused of misconduct.  Other states have state laws similar to the UAPA and offer contested case hearings to students accused of misconduct."

The account of Jane Doe 1 is outlined in the lawsuit. It is also contained in a University of Tennessee Police Department report, university disciplinary reports and incident reports at the Volunteer Hall dormitory obtained through public records requests by The Tennessean, Knox County court filings and a series of interviews conducted by The Tennessean with the woman over the phone and in-person since March 2015.

The five-month delay in the Makanjuola case came at a devastating cost to the woman, she said. For the first month, she attended a "swarm of meetings," she told The Tennessean. But for months little happened. She became depressed and anxious.

Nearly a year after reporting the incident, the woman got word her 3.12 GPA was .08 points below the requirement of her UT nursing school program. The woman's therapist wrote a letter to the university on her behalf, explaining her academics had suffered because of post traumatic stress disorder. The University of Tennessee dis-enrolled her, the lawsuit said. Because her therapist was on staff at UT, she lost access to ongoing counseling.

Such delays, according to lawyers for former female students who allege they were raped by athletes, are deliberate, allowing students accused of sexual assault to avoid or delay a disciplinary hearing until after their academic or athletic season is over.

UT’s system gives students accused of misconduct three options.

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A student can choose to have an administrative hearing, in which a student admits to the offense and accepts university sanctions.

A second option allows students to air their case before a disciplinary board panel. Law students from the University of Tennessee School of Law are appointed to represent students.

The third option allows students to choose to have their case considered by an administrative law judge. It's a proceeding that is governed by state law, known as the Tennessee Uniform Administrative Procedures Act, which gives certain rights to the accused but not the accuser. The accuser has the right to evidentiary hearings, including deposing the accuser. An attorney represents the university's interests.

The administrative law judge is appointed by UT’s Chancellor Jimmy Cheek, who also considers any potential appeals.

Athletes, said Jenny Wright, a former director of student judicial affairs who oversaw student discipline between 2011 and 2013, were most likely to choose the administrative law judge. Graduate students accused of academic dishonesty were also more likely to choose the process, she said.

And it was typical in cases involving students facing potential criminal charges outside of the university, she said.

"It was often used as a way to put cases on hold from the students' or attorneys' point of view if there were underlying criminal charges," she said. "It would take longer."

Public colleges and universities in Tennessee stand alone in the way they adjudicate claims of sexual assault, according to Brett Sokolow, president and CEO of the National Center for Higher Risk Management, which serves as a consultant on student discipline policies to colleges and universities.

“It’s a very unusual approach and certainly it’s the only system in the country I’m aware of that uses it,” Sokolow said.

“The easiest way is to say if there’s a right to cross examine and it’s only given to one party but not both, then you have unfairness. If there’s a right to discovery given to one party but not both, then you have unfairness. So to look at these two simple elements and realize they only protect the accused person, not the person bringing the accusation.”

A more typical process, said Sokolow, would be to have an investigation, potentially a hearing, and have that determined internally by college administrators who have significant training in the matter and who are not applying formal due process, they’re applying informal due process.

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Campus hearings have no legal authority to determine whether a sexual assault crime occurred. Under federal Title IX rules, however, campuses must determine if sexual discrimination took place. Sexual discrimination includes sexual assault under those rules.

Under those rules, campuses must follow a disciplinary process that meets federal requirements, which include that schools provide a fair and balanced disciplinary and investigation process, protect alleged victims from harassment and that schools "take immediate and effective steps to respond to sexual violence," a 2011 letter from the federal Office of Civil Rights to colleges and universities said.

Some plaintiffs have sued universities saying their implementation of Title IX policies discriminates against those accused of sexual assault. At the University of Texas-Austin, students have filed a lawsuit claiming the system is biased against them and doesn't provide them proper due process.

Two such lawsuits filed by athletes accused of sexual assault have cleared early legal hurdles, including one at the University of Tennessee-Chattanooga.

Other lawsuits, like the one filed by the UT plaintiffs, say the school’s policies discriminate against victims of sexual assault.

Reach Nate Rau at 615-259-8094, nrau@tennessean.com or on Twitter @TNNateRau. Reach Reach Anita Wadhwani at 615-259-8092, awadhwani@tennessean.com or on Twitter @AnitaWadhwani.