By RYAN J. FOLEY
Associated PressJanuary 2, 2015
IOWA CITY, Iowa — Iowa State University's decision to kick a basketball player off the team for alleged sexual misconduct should be upheld by the state Supreme Court, national groups representing rape victims and college administrators say.
The case of former Cyclone guard Bubu Palo has "critical implications" nationally for whether colleges can use internal disciplinary policies to enforce stricter standards in regards to sexual misconduct than criminal law, the groups told justices in a brief filed this week. Those policies are necessary to comply with federal law and to combat the epidemic of sexual assault on campuses, the Victim Rights Law Center and Student Affairs Administrators in Higher Education argued.
Criminal charges against Palo were dropped, but Iowa State is appealing a judge's ruling that found there wasn't evidence that Palo violated its sexual misconduct policy. A decision is likely months away.
Palo and a friend were charged with sexual assault after a female student told police that they took turns raping her in an off-campus residence in May 2012. Palo maintains his innocence, arguing that the sex was consensual.
Prosecutors dropped the charges, citing inconsistencies in the evidence. Iowa State conducted a separate disciplinary hearing. An administrative judge found Palo, now 23, didn't violate a school policy that prohibits unwelcome nonconsensual sexual behavior and requires clear affirmative consent.
ISU President Steven Leath disagreed, concluding on appeal that Palo violated the policy and removing him from the team before the 2013-2014 season. The Board of Regents upheld Leath's decision, saying Palo initiated sex with the woman after she had been assaulted by his friend.
Palo rejoined the team in January following a court order staying his suspension but sat on the bench the rest of the season and graduated in the spring. In August, Judge Steven Oeth threw out the university's discipline, questioning the accuser's credibility and finding no substantial evidence of nonconsensual sex.
The friend-of-the-court brief argues that Oeth erred because his ruling "amounted to a substitution of criminal law standards for ISU's own policies." It argues he relied on a criminal law that prohibits sex "by force or against the will of the other person," not the affirmative consent standard required by the university.
Federal laws require universities to investigate sexual assault allegations under procedures that are different than criminal law, the brief noted. For instance, they must give equal rights to the accuser and the accused and use a "preponderance of the evidence standard" — 51 percent weight in favor of one side or the other, not the beyond a reasonable doubt of criminal cases.
Universities are under "enormous pressure to get it right in responding" to reports of sexual violence and must follow those procedures, which also help create a positive learning environment, the groups wrote.