Emma Gallimore Jan. 25, 2016, 10:19am


STATE COLLEGE - A Penn State University student recently obtained a temporary injunction on due process grounds that will keep him enrolled after he was accused of sexual misconduct and suspended.

The unnamed student is a senior at Penn State and is in the country on a student visa. His suspension, which was part of Penn State’s response to the allegations, could have invalidated the terms of his visa and may have led to deportation.

The student is suing the university, President Eric Barron and Senior Director of the Office of Student Conduct Danny Shaha, alleging that Penn State's disciplinary process violates his due process rights under the 14th Amendment.

U.S. District Judge Matthew Brann, of the Middle District of Pennsylvania, granted the temporary restraining order after the case was filed in October.

“The judge’s decision did require him to evaluate the plaintiff's claim that he was denied due process,” said Samantha Harris, Director of Policy Research at the Foundation for Individual Rights in Education

“That doesn’t mean anything necessarily about the underlying complaint.

“What this means for universities generally is that … sexual abuse, sexual misconduct is a serious allegation and it needs to be taken very seriously. And part of taking it seriously is ensuring that all parties are protected.”

Like any publicly funded University, Penn State is subject to Title IX of the Education Amendments, which prohibits discrimination on the basis of sex in any education program or activity.

Title IX lists sexual harassment, rape, and sexual assault as types of discrimination. So universities must create grievance procedures that enable students to report complaints. Though the investigation may include a hearing, one is not required.

When a woman reported to police that the student and other members of his fraternity had engaged in oral sex and other sexual conduct with her sister while the sister was too intoxicated to provide consent, the university assigned a Title IX investigator and ordered the suspension of the student.

Penn State’s process does not include a hearing. Instead, the special investigator compiles evidence and serves as a fact-finder for a decision-making panel. The panel decides whether there has been a policy violation and what the school’s response will be.

This is a fairly new process for Penn State. In the past, complainants and the accused had to engage in a hearing before a disciplinary panel. The university changed the process in an attempt to gather information while minimizing the stress that a hearing might cause.

“The fact that the student is allowed to stay on campus doesn’t’ mean that the university can’t take other measures to ensure the complainant’s safety,” Harris said.

"The University could issue no contact orders, change class schedules, or adjust living arrangements to minimize possible contact between the complainant and the student.”

The student’s attorney, Andrew Shubin, said in a statement, “Doe filed this lawsuit to protect himself from deportation and so that he can finish his studies, not to make any sort of political statement,” .

The case is still pending. The two sides submitted a confidentiality agreement in December. A possible preliminary injunction will be the subject of a hearing in March.

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Penn State University
University Park
State College, PA 16801

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