At 19 years old, Kevin was an undergraduate at Baylor University, and the school had not yet entered the national spotlight for its failures in responding to and investigating sexual assaults.
Kevin said he became a casualty of what he calls Baylor’s overreaching backlash to negative publicity about its failures, an overreaction he says started months before the board of regents publicly acknowledged the university’s shortcomings detailed in a nine-month investigation by Pepper Hamilton LLP.
Years behind schedule, administrators had recently implemented a Title IX office to oversee enforcement of federal laws intended to push back against discrimination, harassment and violence that limit educational access for women.
The Title IX Office, still in its infancy, found about nine months ago that Kevin had “nonconsensual sexual contact” with another intoxicated student at a party in March of 2015. He is about halfway through an 18-month suspension from school, back at home on the East Coast.
Kevin said he and a young woman made out and had their hands in each other’s clothes during a party. He said they were intoxicated, though not excessively, and he doesn’t think his punishment is fair.
“I definitely feel like I was treated poorly by Baylor,” Kevin said. “I feel like Baylor had made a lot of mistakes in how they were handling Title IX cases on both sides, and instead of taking responsibility and trying to address what was going on here, they decided it would be easiest to try to put the blame on a couple of people to try to sweep this under the rug so hopefully people will forget all about Baylor, no one will see it on the news again and this won’t be a big black eye on the university.”
The Tribune-Herald agreed not to use Kevin’s real name because he is concerned about reprisals from Baylor officials when he returns to school and fears the incident could affect his future.
The woman who administrators found Kevin had inappropriate contact with did not lodge the initial complaint against him. When asked by investigators, she said she did not remember what happened between her and Kevin.
After the university ruled against Kevin and his case reached the final level of appeals, the woman told officials she was in favor of his punishment.
Baylor Title IX officials, who first contacted Kevin in April 2015 as a witness to alleged sexual misconduct at a party he attended a month before, filed the complaint against him. It was based on what he told them while being assured he was being interviewed as a witness and was not in trouble.
Title IX officials judged Kevin guilty of a violation in September 2015, a month after revelations about how Baylor officials handled sexual misconduct complaints were aired in court during the sexual assault trial of former Baylor football player Sam Ukwuachu.
Investigators found Kevin in violation because they said the woman was too drunk to consent to their encounter. She told investigators she had no recollection of what happened.
Kevin’s encounter with the woman did not include intercourse or nudity and occurred in the living room of an apartment on University Parks Drive in front of 25 to 30 other partygoers, he said.
Attorneys, including Kevin’s lawyer, Vik Deivanayagam, say they have fielded more calls recently from Baylor students seeking help with Title IX complaints. They worry that the way Title IX guidelines are being applied now, especially in the wake of the Baylor sexual assault scandal, that students’ due process rights are being trampled and that they are not being afforded the presumption of innocence.
Kevin said he expressed reservations about cooperating with the investigation without consulting an attorney. But a Title IX investigator assured him everything would be fine and that he merely was being viewed as a witness in the other complaint, he said.
“Baylor is saying now, ‘Kick them out. Look, we are taking very strong action on this. Stop looking at us,’ ” Kevin said. “So from the beginning, I expressed that concern that I was going to be targeted because of this, and I was constantly reassured that wasn’t the case. The investigator even told me the funny thing is that if this were three years ago, this wouldn’t have happened, that I wouldn’t have had to deal with any of this.”
Pepper Hamilton found Baylor had failed at all levels to enforce Title IX protections and to properly investigate sexual assault and other sexual misconduct. Several women have shared stories of how university officials mishandled their case and engaged in what experts say was behavior that revictimized the women and could have contributed to a culture of silence about sexual assault.
As the university endures scrutiny of its new infrastructure, protocols and training on sexual misconduct, defense attorneys and others worry about its ability to remain fair to the accused.
“Everybody’s so scared now,” said Lisa J. Banks, a Washington, D.C., attorney with experience in Title IX issues. “Everybody’s so scared that there are going to be, I suppose, some individuals and administrators who are going to overreact and go too far in the other direction. But if these folks are properly trained on the law, and they understand what is worth pursuing and what is not, or what is needed to be pursued, then it’s going to be a lot easier. Right now I think there is a lot of ignorance about Title IX and what it means and what it doesn’t mean.”
Kevin said he feels he is living proof that Baylor now is overreacting and swinging the pendulum too far in the other direction.
“They are definitely going way overboard now because of all the negative attention Baylor has received, particularly with all the football players,” Kevin said. “I kind of feel I was made an example of. Now that they are in the spotlight, they are punishing people. It’s like, ‘We didn’t punish them before but we are now, so don’t worry about it.’ ”
Baylor spokeswoman Tonya Lewis said Baylor does not speak publicly about student cases, “even when those involved feel comfortable doing so.” But, she said Baylor’s Title IX process tries to protect the rights of both complainants and respondents and that Baylor’s Title IX coordinator and her team are “thoroughly trained.”
“These professionals respond to reports of interpersonal violence, investigate parties involved in these reports and provide for the needs of the complainants as the process unfolds. We also connect respondents with confidential resources if they need or want them,” Lewis said. “Both complainants and respondents have rights, and investigations are to be fair and equitable to all parties involved. . . . During the disciplinary process, both parties (complainant and respondent) have equivalent rights, including the opportunity to review and present evidence, to be accompanied by an adviser of their choice and to appeal.”
Banks said it can be difficult for universities to balance the rights of all involved.
“There’s a lot of discontent on both sides with the process because it’s not a perfect process,” she said.
“I’m not certain that it can be. I do think that universities are trying harder, as they should, to make sure that the accused also has a fair opportunity to clear their name and to explain why they are not guilty of what they’re accused of. But we are seeing more and more of the accused also turning around and suing the schools for various reasons, saying ‘you violated my rights. Now I have to leave the school, and I am now branded somebody who has committed sexual assault, which I never did.’ So it’s a really difficult thing, and I don’t envy schools having to do this because it’s a difficult process to go through and make sure everybody is fairly treated. But you have to do it.”
Kevin is contemplating filing a lawsuit against Baylor. He says his experiences with the Title IX complaint caused his 3.0 GPA to fall to 2.49, just below the threshold for academic probation. He failed courses while trying to answer the charges on his own, forcing him to drop his pre-med major.
He is now thinking about going to law school, he said, adding the process has made him interested in the law and helping people in similar situations.
Party and investigation
Kevin’s problems started in March 2015 when he went to a party and he started talking to a young woman. They shared mutual friends but had never spoken.
Both were drinking, but Kevin said neither was close to “black-out” level. They had a conversation and started kissing in the living room, he said. Plenty of other kids were around them, and they never went into a room alone, Kevin said.
As time progressed, both had their hands inside each other’s clothes, he said.
Later, the party moved to another location, and Kevin, the woman and others went to another apartment on University Parks Drive. It was at the second party that another woman reported that she was sexually assaulted.
At the end of the party, which was about 5 a.m., Kevin said the girl kissed him, said she had fun and would like to see him again. That is how they parted, he said.
Weeks later, Kevin got an email from the Title IX office. Investigators wanted to talk to him.
“They said, ‘You don’t really need an attorney. Nobody is mad at you right now. You didn’t do anything wrong. We are just concerned about what happened to this other person. Tell us what you saw.’ And I did the best I could to give a very accurate description of what happened that night,” Kevin said.
The investigators had already spoken to others at both parties and knew Kevin and the girl had been kissing in the living room.
They called Kevin in for a second meeting. He was studying for a chemistry final and he noted that the investigators were more serious this time and the focus was more on him, not the other incident.
The unwanted attention distracted him from his chemistry final, he said.
Kevin didn’t hear anything else that year and went home for the summer. Kevin returned to Baylor in the fall, a month after Ukwuachu had been convicted of sexually assaulting another Baylor athlete and Baylor’s shortcomings in handling sexual assault accusations were starting to become public.
As the scrutiny intensified, Baylor officials notified Kevin five months after the party that the Title IX office, not the woman he met at the party, was bringing a complaint against him.
“They said I could call witnesses. By this time, it was months after the parties. I am thinking, ‘Of my friends who are still at Baylor this year, which ones were sober enough to remember something eight or nine months ago?’ These kids are going to parties three days a weekend, every single weekend for months straight, and I am asking them to remember this party at this time we went to eight months ago.
“I was brought forth as a witness at first and now I am being charged. All these guys had contact with girls at the party and all those guys wanted no part of coming forward to help me because they were afraid the same thing would happen to them that happened to me,” Kevin said.
Title IX investigators sent notice to Kevin that he was being suspended — again while he was studying for an important chemistry final, he said.
“They caught me on two finals weeks. This time it was two days before my biggest chemistry final. They said I had 72 hours to write an appeal, that it was the only appeal they were going to look at and the only appeal they would consider. I was sitting in the library studying at the time, and they said I could not come back on campus or they would file criminal trespass charges against me. I said to myself, ‘I can either study for my chemistry final or I can never come back to Baylor.’ ”
As it turned out, Kevin wishes he had studied for his test. He flunked the final, which made him decide to change his major from pre-med to business.
Kevin found out too late that other students who were being investigated hired attorneys who were able to defer the Title IX process so they could focus on their studies.
Kevin hired Deivanayagam to help him appeal the suspension after he lost the first round of appeals at the review board level. Kevin appealed to Ken Starr, Baylor’s former president who lost his job in the fallout of the sexual assault scandal.
The appeal went to Interim President David Garland, who ruled June 15 that there was insufficient evidence to warrant overturning the previous decisions. In the final round of appeals, the woman wrote a letter to the president that she was in favor of Kevin’s prosecution, Deivanayagam said.
“Here is the real problem as far as the factual side of it,” Deivanayagam said. “If he had refused to cooperate as a witness in the other investigation, they wouldn’t have had any evidence that there was any sexual contact because the girl had no recollection and the witnesses could only say that they were groping each other. They couldn’t say if it was under clothes, over clothes or what. So it was his own admission that allowed them to say that any sexual contact occurred.”
Deivanayagam said investigators applied a double standard, asking why they were not filing charges on Kevin’s behalf since he also was drunk and the girl touched him in a sexual way. Only the review board asked Kevin if he wanted to lodge a complaint of his own against the girl, Deivanayagam said. Kevin declined.
Deivanayagam and other attorneys say the system is flawed and can create a dangerous potential of giving short shrift to the rights of the accused.
“I really felt that the sanction was not appropriate for the conduct,” Deivanayagam said. “And while I understand a larger picture that Baylor is trying to make sure that people that go to parties and drink and there is some sort of sexual contact, Baylor is trying to stop that. I think that is a good thing.
“I don’t think it is a bad thing to try to stop that kind of conduct. Obviously, when people drink, they make bad decisions. But the fact of the matter is in this particular case, there were a lot of bad decisions made by a lot of the parties involved. It seems to put a young man’s life on hold because of a poor decision. That doesn’t seem to be very fair.”
Despite the ordeal, Kevin said he is looking forward to returning to Baylor. He was so confident that he would win his appeal that he put down a year’s lease on an apartment.
Now he is working at a fast-food restaurant while his parents, who co-signed $80,000 worth of student loans for Kevin, are fending off notices to start repaying them now that he is not in school.
“People may not understand this after what I have been through and how I was treated, but I love Baylor,” Kevin said. “I want to return and get my degree. It is a good place to be. Some of my best experiences so far in my life have been at Baylor. It’s where I want to be.”
Tribune-Herald staff writer Phillip Ericksen contributed to this story.