The situation at the center of the lawsuit happened in fall 2014. The two plaintiffs in the lawsuit were student athletes at time — Justin Browning, a junior football player from Detroit; and Alphonso Baity, a Kentucky-native and junior on the school's basketball team. The two were also among the sliver of African-Americans at Findlay — just 1.7 percent of the school's 4,000 undergraduate population are black.
According to the complaint, Browning and Baity met a freshman girl, identified in court documents only as "M.K." The girl often visited the two student-athletes at the house they shared with two other friends that fall. The girl, the complaint alleges, was openly engaging in a sexual relationship with one of the roommates.
On September 20th, Findlay played Tiffin in football. After the game, the campus was lit up with partying, including a football player thrown down at the "Mascot House." Browning and Baity allegedly ran into M.K. at the festivities, and she eventually ended up back at their home.
In a group of paragraphs that make for hard reading, the complaint details how the girl allegedly had sex with first Browning, then Baity. Neither of them "coerced, threatened, forced, or otherwise made or threatened M.K. to perform any sex act or engage in any type of sexual activity or physical contact," the complaint states. M.K. never told either "'No,' 'Don't,' and/or 'Stop," and did not directly, indirectly, implicitly, or otherwise convey or communicate in any method or form her unhappiness, unwillingness, disagreement with, rejection of, or objection to engaging in physical contact, sexual activity(ies), and physical intimacy."
The complaint goes on:
Based upon the totality of the circumstances, it was the individual and collective impression of everyone in the house that evening – including those who had absolutely no alcohol to drink (Baity, [two other witnesses]) – that M.K. knew what she was doing at all times. She was in total command and control of her actions. In other words, she had the capacity to, and indeed did, voluntarily consent to all of the activity that occurred that evening.
In the days that followed, the complaint says M.K. told numerous people about her night at the house — but didn't claim she'd been sexually assaulted until October 1, when "M.K. made a false written and/or verbal report to the University" about the incident, according to the complaint.
What followed, however, wasn't the rigorous investigation demanded by Title IX regulations, the complaint says, but "a sham investigation in complete and utter disregard of the University’s policies and procedures." Investigators allegedly did not "interview or question M.K. about the alleged incident." Also witnesses were ignored — apparently for discriminatory reasons. Below:
There were three African-American males – Q.J., Z.W., and R.J. – who had personal knowledge and information regarding the events in question. Inexplicably, the University Defendants only interviewed Q.J. Upon information and belief, during Q.J.’s interview, he unequivocally stated that any sexual activity between Plaintiffs and M.K. was voluntary and consensual for all who participated. Z.W. and R.J. were not interviewed prior to Plaintiffs’ expulsion from the University, even though the University Defendants were aware of their names and that they had relevant knowledge. Upon information and belief, the University simply believed that, following Q.J.’s statement, and because of their race, ethnicities, and/or gender, the statements of Z.W. and R.J. would be biased in favor of Plaintiffs and contain no useful information. Not only was the refusal to interview Z.W. and R.J. racial discrimination against Plaintiffs during the sham-interview process, but it demonstrates intentional racial discrimination against Z.W. and R.J. This provides further evidence of the racial biases employed by the University Defendants during their sham investigation.
Also from the complaint:
In summary, all witnesses, including Plaintiffs, told the University that M.K. consented to the sexual activity. All witnesses told the University that M.K. had the capacity to consent to the sexual activity. Indeed, all witnesses told the University that, had he or she witnessed any form of abuse, he or she would have intervened to assist M.K. Because of past experiences, one of these female witnesses has a high vigilance for domestic violence situations and would not have hesitated to intervene.
All in all, the University Defendants’ total “investigation” lasted approximately 24 hours.
The lawsuit says Browning and Baity never had a hearing or were fully advised of their rights. Instead, they were quickly handed expulsion letters demanding they be off the campus by October 4.
The former UF students maintain that they were railroaded off campus without a proper investigation, then quickly smeared in media accounts following their expulsion. A subsequent criminal investigation into the sexual assault yielded no charges.
The two former students are now suing the school, its board, and various administrators for racial discrimination, gender discrimination under Title IX, and violation of due process and protection, among others. Their attorney, Michael R. Traven, did not return a call for comment yesterday. A school spokesperson, however, provided us with the following statement:
The University of Findlay is being sued by two former students who were dismissed for violations of University Policies following an investigation and appeal process. The University conducted this process with integrity and fairness. We will vigorously defend the process and our decision.
Campus rape and the administrative response to such allegations are two of the defining higher ed issues of our times. The Title IX lawsuits you see exploding like land mines across the country are reshaping campuses in their wake. It looks like the University of Findley has found itself in the middle of such a scuffle with a lawsuit recently filed in federal court — a legal action that's not over alleged sexual assault but dredges up accusations of administrative racism.