By ASHE SCHOW (@ASHESCHOW) • 1/6/16 2:34 PM
Two students expelled for campus sexual assault are suing their university, alleging racism played a role in their case.
The two accused students, identified in the lawsuit as Justin Browning and Alphonso Baity, II, are both African-American. They were accused by a white woman, identified in the lawsuit only as M.K., after an encounter at a party.
Browning and Baity were expelled despite the fact that every witness interviewed corroborated the accused students' story, and that witnesses came forward to say that M.K. bragged about the encounter as a consensual act. Not only were they expelled, but the expulsions came just two days after the accusation was filed, and campus procedures regarding sexual assault accusations were not followed.
The two students are suing the University of Findlay in Ohio, which has a student population of more than 5,000. Of that total, just 3 percent were African-American in the fall of 2014, when the case took place. This percentage is slightly higher than the surrounding city of Findlay, which has an African-American population of just 2 percent.
Every university employee who handled the accusation was white. In addition to the usual claims of gender discrimination, violation of due process and breach of contract that are common among accused students suing their schools, Browning and Baity's lawyers are including two counts of racial discrimination.
I've read and reported on numerous lawsuits by accused students — and every one has been stunning. So you'll have to believe me when I say this one is the most incredible I have ever seen.
In the fall of 2014, Browning and Baity were roommates at a campus-owned house, along with two other men. M.K., the accuser, became friends with all four, and frequented the home numerous times in the first months of the school year.
On Sept. 20, 2014, the roommates and some other friends, along with M.K., attended a house party together. The lawsuit alleges that M.K. appeared to drink from a Gatorade bottle, but did not appear intoxicated at all throughout the night.
Also from the Washington ExaminerAt the party, M.K. hugged Baity (who did not drink at this party) and asked where Browning was. When she found him, she took his phone and entered her number, then led him to the dance floor where the two danced and kissed. M.K. asked Browning to leave the party with her, and the two returned to Browning's residence along with two other friends.
The friends talked when they got back to the residence, but after a few minutes, M.K. and Browning went to Browning's room and engaged in sexual activity. The lawsuit makes sure to detail the activity and the consent provided by M.K. The lawsuit claims that "Browning never coerced, threatened, forced, or otherwise made or threatened M.K. to perform any sex act or engage in any type of sexual activity or physical contact." It also says M.K. never told Browning "no" or "stop" and gave no indication, whether directly, indirectly or implicitly, that she did not consent.
"To the contrary, M.K. affirmatively consented to the sexual activity(ies) by saying 'yes,'" the lawsuit says. "At all times, M.K. initiated all sexual activity and physical contact of a sexual or intimate nature with Browning, and physically and verbally encouraged and voluntarily consented to such contact and interaction."
These same descriptions are used to describe the sexual encounter M.K. had with Baity that evening.
When Baity returned to the house later that evening, he found M.K. and Browning engaged in sexual activity in his room. He entered to retrieve a phone charger. When she saw Baity, M.K. suggested he join in the activity, according to the lawsuit. Baity agreed and he and M.K. engaged in sexual activity while Browning remained on his own bed.
Baity left the room and joined his friends and roommates in the living room. Soon after, M.K. left the room without clothes on, and laughed about needing to vomit, though she didn't. She remained naked and sat on the couch to talk with everyone.
At some point M.K. returned to the bedroom with Browning and again engaged in sexual activity. Again, the lawsuit claims the acts were consensual and that M.K. initiated.
Throughout all of this, the roommates and friends heard sounds coming from the bedroom that indicated consensual sexual activity.
M.K. left in the morning and returned to her dorm, where she discussed the previous night with other women in the dorm, including the resident assistant. According to at least one of these women, M.K. bragged about the evening and her sexual activity with Browning and Baity. M.K. never suggested any sexual assault took place.
Around that same time, M.K. also told another of her friends about the sexual activity with Browning and Baity; again, she was bragging. She even interacted with Baity and his friends in the days following the encounter.
Yet 10 days later, M.K. would accuse Browning and Baity of sexual assault.
The university has a duty to investigate sexual assault accusations due to a reinterpretation of Title IX, the federal statute banning sex discrimination. The university claims to provide a "prompt, fair and impartial investigation and resolution to all alleged incidents of discrimination prohibited by Title IX." The school also says it will conduct its investigation within 60 days of receiving a complaint. Two days certainly falls under that timeframe, but given the seriousness of the charges (sexual assault by two men on the same night), two days seems an implausible timeframe to find two students responsible.
The university's investigation policy also mentions hearings, but none were ever held. The lawsuit also claims neither Browning nor Baity received specifics about the allegation against them.
The university didn't even interview M.K. about her report, nor did it follow up on any of the witnesses M.K. named in her report, according to the lawsuit. The university didn't seek video evidence alluded to by M.K. in her report.
The university did interview one of Browning and Baity's African-American roommates. They did not interview their other two African-American witnesses. The students believe this is due to the university believing that "because of their race, ethnicities, and/or gender" the statements of the other two African-American witnesses "would be biased in favor of Plaintiffs and contain no useful information."
The lawsuit claims this was racial discrimination against the two accused students as well as the two other African-American witnesses.
As evidence for this discrimination, the lawsuit notes that the school interviewed the two white women who were present at the house the night of the encounter. The accused students believed these women were chosen as witnesses because the school thought they would side with the white female accuser.
They didn't, however, as the two women corroborated the accused students' version of events. The lawsuit alleges that the women's refusal to side with the accuser led to retaliation against them by the university. One of the female witnesses was terminated from her work-study job and took another position with the university. The other female witness was threatened with expulsion. She was saved when her mother called the school.
Further, the university appeared to try and bring up Baity's past sexual history by interviewing a woman he previously dated (who was not present on the night in question). This, too, did not turn out well for the university, as the woman said that Baity was always respectful with her and never forced or coerced her into sex. She also said he was never violent or abusive.
Despite witnesses corroborating the accused students' side of the story, Browning and Baity were expelled two days later.
No recordings or transcriptions exist of any interviews conducted by the university. In a bizarre procedure, two administrators would interview a witness and take separate notes, then one of the two would create a "summary" statement and combine the notes. The original, separate notes would then be discarded.
On Oct. 3, 2014, two days after M.K. filed her complaint and 13 days after the sexual encounter, Browning and Baity received expulsion letters. Each student was allowed to appeal the decision within 72 hours, and even though they were forced to move back home (each lived outside of Ohio), they filed their appeals within the time allowed.
Yet before the 72-hour period ended, and before the appeals were heard and decided upon, the university sent out a campus-wide email naming Browning and Baity and announcing their expulsion for sexual assault.
One of the original women M.K. bragged to saw the email and was disgusted. She contacted her resident adviser (who had also heard the boasting) to discuss the false accusations. Her resident adviser told her to leave it alone because the matter was closed.
Browning and Baity's appeals were both denied (how could they not be, when the entire campus already believed they were guilty?). They each received the same letter about their finalized expulsion — only the names were changed.
Another friend of M.K. who had heard her boasting sent an email to the university after the final expulsion letters were sent. This friend told the university that M.K. had bragged about the consensual sexual activity. Two days later — and now a week after the accused students had first been expelled and forced off campus — the university interviewed this friend of M.K. The friend again said that M.K. had bragged about the evening and that everything had been consensual.
The same day this friend was interviewed, one of the other African-American roommates who had been present but not interviewed previously, was finally interviewed by the university. He, too, corroborated the accused students' version of events. He also mentioned to the university that videos of the night in question existed, but the university never attempted to locate these videos.
The accused students were led to believe that M.K. also went to the police with her accusation but that no charges were filed after a police investigation. Neither student has been charged with a crime.
The students allege racial discrimination in their lawsuit, and note that the only other students expelled from the university for sexual assault were other African-Americans, each accused by white women. The students also claim in their lawsuit that university officials have said the school's policy is to find in favor of female accusers.
In an email to the Washington Examiner, the University of Findlay defended itself against accusations that it conducted an unfair investigation.
"The university conducted this process with integrity and fairness," wrote Joy Shaw, the school's media relations coordinator. "We will vigorously defend the process and our decision."