Controversy Grows over UNC’s Response to Sexual Assault Claim

The controversy surrounding the University of North Carolina at Chapel Hill's (UNC's) response to a student's allegation of sexual misconduct shows no signs of abating. In fact, it may just be getting started, as a new report from the Daily Tar Heel focusing on the accused student's experience in UNC's judicial system casts further doubt on UNC's ability to handle sexual assault allegations in a way that respects the rights of students—whether the accuser or the accused. 

Last week, I discussed the threat to the First Amendment presented by the student-run Honor Court's decision to levy a formal charge against student Landen Gambill, who has publicly criticized the university's response to her report that she was sexually assaulted by a fellow student. The Honor Court has charged Gambill with violating one of UNC's speech codes, apparently on the basis of her criticism of the school's sexual assault procedures and its handling of her allegations. 

But freedom of expression isn't the only right threatened by UNC's campus judiciary. An article published in yesterday's Daily Tar Heel contains troubling claims from the accused student as well, regarding UNC's failure to protect his rights to both privacy and due process. 

Caitlin McCabe and Liz Crampton report that according to his attorney, the accused student was immediately and indefinitely suspended after Gambill filed charges against him by UNC's "emergency evaluation and action committee," headed by Melinda Manning, the former assistant dean of students. Prevented from offering a defense, the accused student was instead required to undergo a psychological evaluation before he could appeal this suspension: 

"It's important to note that even though there might be an initial decision to remove a student, he or she always has a right to appeal at any time," Manning said. "And they can do so repeatedly." 

But John Gresham, an attorney at Tin Fulton Walker & Owen who is representing Gambill's ex-boyfriend, said his client's appeal rights were met with unnecessary stipulations. 

"He was told he could appeal but that he was first required to have a psychological evaluation completed," Gresham said.

Manning said though the committee often asks suspended students to undergo a psychological evaluation, it is never required in order to appeal a case.

Gresham said that when his client went to receive his psychological evaluation conducted by UNC's Counseling and Psychological Services, it was clear that the evaluation served as more of an interrogation. 

"There were questions asking him about whether he coerced Ms. Gambill into having sex with him and how he felt about having sex with her," Gresham said. "The majority of the time was spent not following standard protocols for psychological evaluations."

Gresham said his client, who was uncomfortable with the questions, failed to complete the evaluation.

He withdrew from the University three days later.

"He withdrew because there wasn't anything he could do," Gresham said.

In addition to being indefinitely suspended and required to undergo a psychological evaluation as a condition of appealing this suspension, the accused student also claims that his evaluation was made available to Gambill as evidence prior to the hearing:  

Manning said the findings of any psychological evaluation are only intended for the use of the emergency committee.

But Gresham said the incomplete psychological evaluation was initially included as evidence in both files for the University Hearings Board trial.

"I've been told that Ms. Gambill was read pertinent portions of his medical evaluation and was able to respond to them prior to the trial," Gresham said. "A complete violation of my client's rights."

Last May, the accused student was found guilty of verbal harassment but was cleared of two counts of sexual misconduct. However, his readmission to UNC didn't occur until nearly seven months later: 

He said his client faced a series of roadblocks for readmittance, even after the sexual assault case was adjudicated.

"It took him from May 29, 2012, to December 5, 2012, to regain readmission to the University," Gresham said.

He said the process was delayed by requirements that were added sporadically, such as more psychological tests.

Manning, who Gresham said recused herself on June 7, 2012, said the emergency committee - which is not affiliated with the honor system - can prolong readmission until the committee feels that a student is no longer a threat and is healthy enough to return.

The accused student reports that he has faced threats as a result of the publicity surrounding his case and Gambill's advocacy and that he has been diagnosed with post-traumatic stress disorder. 

It's important to note, however, that yesterday's report does not suggest that Gambill is being prosecuted for speech beyond her public statements and criticism of the university. As discussed in last week's blog entry, the code under which Gambill is being prosecuted is constitutionally suspect, and her public statements do not rise to the level of actionable harassment. The fact that Gambill's advocacy has made the student's return uncomfortable does not necessarily mean that such advocacy loses protection under the First Amendment, by which UNC is both legally and morally bound. Of course, the threats that the accused student reports receiving may not be protected, but there is no indication that Gambill herself is making such statements. UNC should prosecute any students making true threats against the accused student; it should not prosecute Gambill for criticizing the school.  

Above all else, yesterday's story makes clear that UNC's ability to fairly, impartially, and promptly adjudicate allegations of sexual assault should be seriously questioned. Neither party in this sad case appears to have been even remotely well-served by UNC's disastrous process. To review: Gambill—who is currently facing a charge of violating UNC's speech code, apparently for her criticism of UNC's policies and practices—was so disappointed with UNC's response to her claim of sexual assault that she joined more than 60 others in filing a complaint with the Department of Education's Office for Civil Rights (OCR). Meanwhile, the student she accused of sexual assault was immediately and indefinitely suspended without an opportunity to defend himself, forced to undergo psychological evaluations that were wrongfully disclosed, and had to wait nearly seven months before he could resume his studies after being cleared of two serious charges against him. Today's story notes that the accused student was found guilty of "verbal harassment"—but given the way UNC has handled the rest of the proceedings, would anybody be surprised if the speech deemed harassment actually fell short of the standard for peer-on-peer sexual harassment established by the Supreme Court of the United States in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)? 

Based on the information publicly available thus far, UNC seems to be determined to provide clear and convincing evidence that universities simply aren't equipped to properly handle sexual misconduct cases.