Board of Regents overturns student expulsion

Photo by Tyler Meuter

On Monday, Jan. 4, 2016, “John Doe A” and Tech were notified that the discretionary review committee of the Board of Regents (BOR) of the University System of Georgia had reversed the decision of President G.P. “Bud” Peterson to expel Doe. Doe was expelled from Tech six months ago after being found responsible for violating of the Student Sexual Misconduct Policy and is currently pursuing an injunction against the university to overturn his expulsion.

The allegations against Doe were first reported to the Office of Student Integrity (OSI) on April 15, 2015, by fellow Tech student “John Roe.” Roe alleged that Doe had sexual relations with him when Roe was incapacitated and unable to give consent. The incident had taken place in an off-campus house almost a year earlier on April 30, 2014, at Doe’s residence after the Marching Band’s annual roving performance during finals week. Doe and Roe are members of the GT Marching Band and brothers of Kappa Kappa Psi and have hooked up once prior to the alleged incident. Both students admitted to consuming alcohol the night of the
alleged incident.

Throughout the course of the night, the pair discussed potentially hooking up again through Facebook Messenger; however, there were varying accounts of the contents of the messages. Doe alleged in his official complaint that when Roe showed the conversation to Peter Paquette, assistant dean of students and the director of OSI, the messages were “radically edited versions” that created a false impression of the conversation. Doe also alleged that Roe had contacted him two months prior requesting that he delete all of their Facebook messages, to which Doe complied. Paquette noted in his final investigation report that he reached out to Doe with information from Georgia Tech Cyber Security on how to retrieve his texts and messages and followed up on progress a few days later. According to its policy, Facebook will not recover copies of the deleted messages unless served with a subpoena in the context of a criminal lawsuit. The messages from Roe were accepted as evidence for the final investigative report.

In both the final investigative report and Doe’s complaint, it was stated that Doe met with Paquette at 9 a.m. on May 1, 2015, to review Paquette’s investigative report and respond to the charges. However, in the filed complaint, it was noted that Doe was scheduled for a counseling session at 10 a.m. in the same building — an appointment that Paquette was aware of — leaving Doe with only an hour to review the 13-page document detailing the charges against him, summaries of all the witness statements, and Paquette’s findings regarding the investigation. No identities of witnesses were provided to Doe, and there is no recording or transcript of the witness statements. Paquette’s final report was released on May 13, 2015, and found Doe in violation of the Non-Consensual Sexual Intercourse provision of the Student Code of Conduct.

Doe is being represented by Andrew T.  Miltenberg, a lawyer based in New York City, and Jonathan E. Hawkins, a lawyer located in Atlanta with all inquires deferred to Miltenberg. Miltenberg was profiled in New York Magazine as “an advocate and resource for some of the thousands of male students who are accused of sexual misconduct on college campuses every year” and has as acted as an adviser to over 60 students in their college hearings. His highest profile-case was defending Columbia student Paul Nungesser after his classmate Emma Sulkowicz accused him of sexual assault in the spring of 2012.

Miltenberg expressed concern over Tech’s single-investigator process, particularly in the fact that Paquette conducted his interviews ex parte.

“One of the guiding principles of this country, … as far as the judicial system, is the full and fair opportunity to be heard and to face your accuser. [When] you realize that you’re really taking away from someone and their future, I think we have to rethink this idea that you’re not able to have an open hearing or at least confront the accuser,” Miltenberg said.

One of Miltenberg’s biggest issues with how the case was handled was how Roe was able to file a report more than 11 months after the incident happened.

“How do you really test the credibility and strength of the charges a year later? … . You certainly better make sure that everyone’s memories and recollections are sharp when you have that hearing … . The only way … is to have some sort of limit on the time during which complaints can be made.”

Tech’s current Code of Conduct states that concerns need to be brought forward within 30 days of discovery; however, the Sexual Misconduct Policy does not set a statue of limitations
as it is based on a trauma-informed approach to investigating in the effort not to re-victimize the complainant.

On June 9, 2015, Doe received notice that the Sexual Misconduct Appellate Committee decided to overturn the original decision. It is the Board of Regent’s policy that either party may file an appeal with the Institute President within five business days of the Appellate Committee’s decision, which means that Roe needed to file the appeal by the end of June 16, 2015. Roe’s parents filed an appeal on June 17, 2015, which Doe’s complaint argued was “procedurally improper” as Institute’s procedures require the students themselves to prepare and file their appeals. The appeal was also filed a day late. President Peterson still accepted the appeal and made the final decision to uphold Paquette’s decision on July 23, 2015, stating that “[he] found not compelling reason to change Dean Paquette’s original decision.”

Doe then filed an appeal to the BOR, whose committee vacated the decision and remanded the case back to Tech on Oct. 15, 2015, with no further explanation. On Nov. 10, 2015, Doe was contacted by Burns Newsome, the Director of Compliance Programs that the Appellate Committee had recommended that the original decision by Paquette be upheld. President Peterson adopted the committee’s decision on Nov. 30, 2015, upholding the decision. Doe then filed another appeal to the BOR on Dec. 4, 2015, as well as a motion for preliminary injunction on Dec. 15, 2015, in hopes to expediently reverse the decision for expulsion before classes started on Jan. 11, 2016. At the time, the BOR was not expected to meet again in 2015. On Dec. 29, 2015, the aforementioned discretionary committee determined that “there was insufficient evidence to support the decision” and that President Peterson’s decision was “erroneous.” Six days later, the BOR’s Committee on Organization and Law met but did not modify the decision, allowing Doe to return to Tech. Doe’s motion for a preliminary injunction is ongoing.

Tech refused to comment on the ongoing litigation. In Tech’s response to John Doe’s motion for preliminary injunction, the lawyers for the university argued that “[Doe’s] request for injunctive relief is moot” as the complaint and motion were originally filed when Doe’s appeal to the [BOR] was still pending but now has been heard and overturned. The response also states that Doe “has failed to state a vaild claim for a violation of his due process rights” and was given several opportunities to provide his account of events and any evidence to Paquette, a committee, President Peterson and the BOR. The document also notes that “there’s no allegation that [Doe] wasn’t given opportunity to provide his own statements or evidence to the decision maker of witnesses he believed to have value.”

When asked for his final thoughts on how his client’s proceedings were handled, Miltenberg stated that “it really is a monument to everything that is wrong with the current climate of sexual assault hearing.”