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ASU should not have expelled student accused of sexual misconduct, court says

The Arizona Court of Appeals ruled the University did not have enough evidence of wrongdoing to remove the student

20170914 asu charter stock

A student rides past the ASU Charter sign on the Tempe campus on Thursday, Sept. 14, 2017.

ASU wrongfully expelled a student who was accused of sexual misconduct, a unanimous three judge panel ruled earlier this week, citing a lack of evidence used by the University in the expulsion. 

The case dates back to April 2016, when the former student, listed in court documents as John Doe, said that the woman participated in consensual sex with him and another man, and that the woman eventually stopped the encounter.

The woman reported the incident to the Tempe Police Department the next day, claiming she was unable to consent because she was impaired. 

Five months after the incident the woman filed a report with the ASU Police Department, and the Dean of Students Office accused Doe of violating the ASU Student Code of Conduct regarding sexual misconduct and providing alcohol to someone underage. 

Following an investigation by the University, Doe was expelled. 

Doe appealed the decision to the University Hearing Board, and in May 2017 the board determined that Doe should be expelled for sexual violence. The Maricopa County Superior Court ruled the expulsion was justified but said Doe would be able to take courses online in spring 2018. 

The appellate court ruled on Dec. 24 that there was not substantial evidence to determine whether Doe violated § F(23) of the ABOR Student Code of Conduct, prohibiting sexual misconduct. 

According to the court's decision, "ASU failed to prove (the Complainant) lacked the capacity to make an informed choice to engage in sex with Respondent on the night in question." 

The court has returned the case to ASU to "redetermine the appropriate sanction," with the only violation being providing alcohol to an underaged person. 

Robert Carey, lead counsel on the cases, said the ruling was satisfactory but there is still more work to be done. 

"I don’t know what the impact of this case will be until we see what ASU does. I’ve never seen anything like how they treated this kid," Carey said. 

This case is another in a trend of male students filing lawsuits following sexual misconduct investigations by universities. In these types of cases, the students allege that the investigations are biased against men, and therefore violate their protections under Title IX. 

These type of lawsuits came after the Obama administration in 2011 pushed for universities to take sexual violence on campus more serious and further investigate claims made, or risk the loss of federal funding. 

Carey said ASU's investigation process shows a deeper issue of how the University treats those who have been accused, but not proven guilty, of misconduct.  

Carey said he is taking other legal measures, including a breach of contract case in state court, against ASU.

"The University has to take a hard look at this," he said. "What I expect to see when we look further into this is a sad story."

A spokesperson for the University said in a statement that ASU is "in the process of evaluating what steps may be taken next," and "at this time, the University has no further comment regarding this pending litigation."

Reach the reporters at and and follow @kiaraquaranta and @ReinhartKatelyn on Twitter. 

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