Tennessee State Court Overturns Campus Sexual Assault Finding.

Another state court has overturned a university’s decision to expel a student following a finding that the student had sexually assaulted another student.  This case, Mock v. University of Tennessee at Chattanooga, was the subject of a bit of media attention.  The expelled student was a wrestler and his father, the former wrestling coach at the University of North Carolina, was outspoken in the media in defense of his son.

In a Memorandum and Order Judge Carol L. McCoy (Chancery Court of Davidson County, Tennessee) found that UTC’s decision that Corey Mock was responsible for sexual assault and his expulsion were arbitrary and capricious.  On this basis Judge McCoy reversed the UTC’s sexual assault finding and Mock’s expulsion.

Mollie Morris, another UTC student, accused Mock of sexual assault.  She alleged that she did not consent to sex and Mock was aware she was unable to consent due to alcohol/chemical impairment.  Following a hearing a UTC Administrative Law Judge (ALJ) dismissed the charges on the basis that UTC had not proven by a preponderance of the evidence Morris was unable to consent to sex.  The ALJ also found that Mock was unaware of Morris’ incapacitation.

Based on the petition for reconsideration, the ALJ changed its decision and found that Mock engaged in sexual misconduct and ordered Mock’s dismissal from UTC.  Mock appealed this revised order to the UTC Chancellor.  The UTC Chancellor found that Mock had violated the UTC Student Code and ordered Mock’s expulsion.

In overturning the Chancellor’s findings and order to expel Mock, Judge McCoy found that the Chancellor had improperly shifted the burden of proof under the UTC student code to require Mock to prove that he had acquired Morris’ consent (improperly applying a “yes mean yes” standard), when in fact UTC had the burden of proving that Mock sexually assaulted Morris.  Judge McCoy indicated that to require an accused student to affirmatively prove consent is flawed and untenable if due process is to be afforded to the accused student.

Judge McCoy placed heavy emphasis on the ALJ’s initial findings that Morris was not so impaired that she could not consent and that two acts by her demonstrated her consent to sex with Mock–taking off her bra and helping position him so they could have sex. Judge McCoy found that the Chancellor did not make any finding that Morris did not consent to sex and the substantial credible evidence (as found in the initial ALJ decision) did not support a finding by the Chancellor that Mock had sexually assaulted Morris.

I am not really sure what to make of this case as far as a national impact.  However, I do question whether this case, following the case in San Diego, could represent an emerging trend where courts will become more willing to interject themselves in sexual assault disciplinary decisions by institutions of higher education. Additionally, the plaintiff’s counsel also based his action upon state administrative law theories and stayed clear of gender based claims to contest UTC’s actions   I would like to know what others think, is this a trend or an aberration and will plaintiff’s case make greater use of state administrative law theories in state courts?

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