The University of Cincinnati expelled a student, Tyler Gischel, after he had sex with a student who claimed she was incapacitated at the time. Gischel claims investigators ignored two critical aspects of his defense: that his accuser wasn't as drunk as she claimed, and that she might have been romantically involved with William Richey, the university police detective who handled the case.
Friends of the accuser, Jennifer Schoewe, even claimed she exchanged messages with the detective in which they proclaimed their love for each other. But Richey deleted his texts before officials could see them, and Schoewe refused to unlock her phone.
Now Gischel is suing Richey, the university, and the administrators who expelled him. Last week he won an important victory: Southern District of Ohio Judge Susan Dlott ruled that three aspects of his complaint should survive the university's motion to dismiss.
"Gischel presents plausible allegations that his ability to present a meaningful defense was thwarted in this case," says Dlott's decision.
The information presented by Gischel casts significant doubt on the allegation against him, and it makes a strong case that the university violated his due process rights. The police detective's conduct seems utterly reprehensible—so bad, in fact, that the judge is allowing Gischel to sue the officer in both his official and personal capacities. (Dlott dismissed the personal claims against other college officials but some of the official-capacity claims against them will also proceed.)
Gischel's lawsuit is different in some ways from other cases I've covered that were brought under Title IX, the federal statute that requires universities to adjudicate sexual misconduct. For one thing, both the accused and accuser are mentioned by name, freeing us from the convention of calling them John Doe and Jane Roe. Also, this wasn't just a Title IX case: Schoewe initially pursued criminal charges as well. But many of the other details will sound familiar.
Gischel and Schoewe met at an off-campus party on the night of August 22, 2015. "Witnesses described Schoewe as the most intoxicated person at the party," according to Judge Dlott's decision. Between midnight and 1:00 a.m., a group of people that included both Gischel and Schoewe went out for pizza. The lawsuit describes Schoewe as behaving in a manner that indicated sexual interest in Gischel: She both kissed him and grabbed his crotch.
Gischel and a friend attempted to walk Schoewe home, but the friend became separated from them. Around 3:30 a.m., Gischel informed the friend via text that Schoewe was either unwilling or unable to recall where she lived, and wanted to go home with him. Later, at Gischel's apartment, Schoewe "expressly consented to having intercourse," according to Gischel. They had sex, and then Schoewe left, intending to go to another party. By this point it was well after 4:00 a.m.
Sometime over the course of the next two days, Schoewe spoke with her boyfriend and mother about what happened. According to The Cincinnati Enquirer, she was in a five-year relationship with her boyfriend and had planned to lose her virginity on her wedding night. Her mother then called the University of Cincinnati Police Department and told Richey she was worried her daughter had been raped (a situation reminiscent of the infamous Drew Sterrett Title IX dispute, in which a mother read her daughter's diary and pressured her to file a sexual misconduct complaint). Schoewe subsequently reported the incident to the campus's Title IX office, and pursued criminal charges.
Richey handled the university's investigation. Concerns that Richey and Schoewe were somehow involved grew serious enough that the university conducted an internal investigation. Schoewe had posted a picture of herself on social media with the caption "my detective loves me," and her friends allegedly read damning text messages. Richey also gifted Schoewe a pendant to give her strength while she testified before the grand jury. The university eventually transferred him to a different division. (The College Fix has more about the investigation here.)
The court ordered Richey to make the text messages available, but he had already deleted them. Schoewe had the text messages, but she refused to unlock her phone for the authorities, and so the criminal charges against Gischel were dismissed.
The Title IX hearing was another matter. Gischel was denied the opportunity to directly cross-examine Schoewe; instead, he was told to submit questions to administrators who would pose these questions to Schoewe at the hearing. Gischel submitted 63 questions, but officials declined to ask Schoewe two of the most important ones: whether she had a romantic relationship with Richey and whether she had actually been incapacitated on the night in question. (Schoewe had claimed that she believed her incapacitation stemmed from the fact that she had been drugged, but no drugs were found in her system.)
On March 28, 2016, Gischel was found responsible for sexual misconduct and expelled from the university.
His lawsuit makes several noteworthy claims. He argues that the investigation reflects a gender bias against males, for instance, because the investigators did not care that Schoewe had kissed and grabbed him in a manner possibly inconsistent with Title IX. Dlott dismissed this aspect of the lawsuit because Gischel never made an issue of it—he did not file a Title IX complaint against Schoewe.
The lawsuit also impugns the federal government's interference in sexual misconduct disputes at the university. During the course of the investigation, Schoewe filed a federal complaint with the Education Department's Office for Civil Rights alleging a sexually hostile educational environment. It's easy to see why the specter of a federal investigation might have made administrators more eager to send a strong message and expel an accused abuser.
Dlott has allowed the following aspects of the lawsuit to proceed: a Title IX claim for erroneous outcome against Gischel, procedural due process violations committed by college administrators in their official capacities, and a malicious prosecution claim against Richey in his professional and personal capacities.
KC Johnson, a professor of history at Brooklyn College and expert on Title IX cases, has noted on Twitter that this is the 77th campus-due-process-related decision that's favorable to a student accused of sexual misconduct. It's a perfect example of why due process is so important—and the Obama-era effort to undermine it was so pernicious. This young man had a strong case to make that he wasn't guilty and that the investigation was prejudiced against him. He was denied the opportunity to make this case two years ago, and now the court has no choice but to relitigate the matter under fairer circumstances.