The University of Oregon is re-evaluating its student conduct code in light of federal law governing investigation and discipline in sexual misconduct cases.
The UO review included hiring an outside expert who in December recommended code improvements, UO documents show.
The UO student code is likely to govern the UO's investigation of the three men's basketball players who had sexual encounters with a female college student in March.
A complaint was filed over that incident, so federal law requires that the UO conduct its own investigation.
"A criminal investigation does not relieve a school of its independent obligation to conduct its own investigation -- nor may a school wait for a criminal case to conclude to proceed," according to a report released in late April by the White House Task Force to Protect Students From Sexual Assault.
Students whose offenses are not prosecutable under criminal law because the "beyond a reasonable doubt" standard is too hard for prosecutors to prove may still be held to account under the student conduct code with its lesser "preponderance of evidence" requirement for determining culpability.
UO officials say that, because of federal student confidentiality rules, they cannot discuss anything about -- or even the existence of -- any investigation regarding the basketball players.
UO President Michael Gottfredson said Tuesday in an email to the campus: "The university has rigorous internal conduct processes that we follow when we receive a report such as this, as well as legal processes and a moral commitment to our students."
The student conduct code is the subject of controversy on campus.
The UO Coalition to End Sexual Violence, which includes law, psychology and sociology professors, contends that the conduct code is written -- and administered -- in a way that is stacked against the accuser and fails to sufficiently hold perpetrators to account.
"We've got one (student) expulsion in four years. We've got people writing some essays (as discipline). We've got suspensions, but of course those individuals come back," said Jennifer Freyd, a psychology professor and member of the coalition.
Last fall, the UO hired Allen Groves, dean of students at the University of Virginia, to fly to Eugene and review the UO's student conduct policies and procedures for compliance with federal Title IX gender equity requirements.
Groves spent two days in Eugene in late September; his final report was dated Dec. 16. The university paid him $4,305, including airfare.
Groves lauded the university for a "significant effort recently devoted to addressing the issue of sexual misconduct," but found some weaknesses.
Federal law requires the school to "swiftly undertake an investigation, with the goal of completion in 60 days," according to the report. In the case of the basketball players, the incident occurred on March 8, but the UO did not begin its investigation right away out of deference to police, officials said.
Groves wrote that it's unclear who at the UO is in charge of investigating allegations of sexual misconduct. The UO policy says the director of student conduct and community standards is responsible, but Groves found evidence that the director doesn't enter a proceeding until after the investigation.
Groves highlighted several features of the UO student conduct code that he said give accused students more control over the proceedings. The accused decides whether the case should be made in front of an administrator or in a hearing before a panel; the accused has the right to personally question the complainant; and the accused gets an attorney paid for by the Associated Students of the University of Oregon, but the accuser does not, Groves found.
Another concern: Federal rules are clear that the school apply the "lowest evidentiary standard (preponderance of the evidence) when adjudicating claims of sexual misconduct," Groves wrote.
The preponderance of evidence standard requires a hearing panel or administrator to decide whether it was more likely than not that the alleged violation took place.
The UO applies the lower standard when determining whether or not a student has violated the policy. But for meting out the most severe penalty, expulsion from the UO, the code requires "clear and convincing evidence" that the alleged act took place. That standard requires a finding that the act was highly probable or reasonably certain.
Groves' University of Virginia is on the list of 55 colleges and universities under investigation by the Office of Civil Rights for its handling of sexual misconduct, said Carol Stabile, UO Women and Gender Studies professor. Under pressure, that university changed its standard in sexual misconduct cases from clear and convincing to preponderance of evidence.
Under the UO's existing rules, the UO could suspend a student for as long as a decade using the preponderance of evidence standard, UO spokeswoman Rita Radostitz said.
But the UO is changing its conduct code so that it can expel a student under the preponderance of evidence standard, she said.
That proposal is before the UO Senate, she said.
The UO's student conduct code is meant to be educational as well as disciplinary, according to the code. Its aim is to create a place where "the rights, safety, dignity and worth of every individual are respected," the code says.
The UO's policy requires that students obtain "explicit consent" before touching another student sexually. The permission has to be voluntary and clearly communicated through statements and/or acts unmistakable in their meaning, Groves wrote.
"Consent given to one form of sexual activity does not negate the obligation to obtain explicit consent to other sexual activity," he wrote.
The March 8 events between the female college student and the three basketball players took place over several hours and included extensive sexual contact, according to the 24-page police report.
The female student told police that, early in the incident, she was trying to hold onto her shorts because the men kept pulling them down. She told police she said "stop, don't" during the incident. She said the men were persistent and did not stop when she said she did not want to do anything. The players said they believed she consented to all the acts and stopped when she started to cry, the report said.
For the basketball players to be within the bounds of the UO student conduct code, "they had to get consent from her, verbal or by some conduct, for every single act they did -- not just one act but every single one when they went further and further," UO law professor Caroline Forell said.
"It's hard for me to imagine these young men got consent for everything they did -- verbal or clear consent. That's sexual assault for (UO) purposes," Forell said.