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Lawsuit: Father fired after defending disabled son from campus kangaroo court

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DUE PROCESS: Drake University removed a trustee who defended his disabled son over a sexual assault accusation

When Tom Rossley was a teenager deciding which university to attend, he looked for a school that would take him away from home without being more expensive than the in-state tuition he would pay in Connecticut.

Rossley, who grew up with three siblings in an 1,100-square-foot house with one bathroom outside of Hartford, Conn., settled on Drake University in Iowa, because it allowed him to do just that.

“I was the guy who went there and for two years I cleaned toilets in the student union. But Drake University at the time opened my world, and the fraternity opened my world and I’m forever —” he told Watchdog, choking up before finishing, “I’m forever grateful, and that’s why I’ve always given back.”

After graduating, Rossley would eventually return to Drake as a member of the Drake Board of Trustees, where he served 23 years until he defended his disabled son from an accusation of sexual assault.

Rossley is now suing Drake after his fellow trustees voted to remove him because of his defense of his son. Rossley’s son, who is identified only as John Doe in court documents, and who appears to be a victim of sexual assault, is also suing Drake for gender discrimination in a separate lawsuit filed late last year.

What follows is a campus sexual assault investigation unlike any other, which has so many elements from other outrageous campus kangaroo-court fiascos it could have been written for an episode of Law & Order: Special Victims Unit. Sadly, for Rossley and his son, this nightmare was not written by Hollywood; it is their current reality.

John has multiple disabilities, including language-based learning difficulties, ADHD, anxiety and trouble with word retrieval (he takes longer to process questions and respond with articulate answers). He attended the Gow School for Dyslexia and Learning Disabilities in New York for half of eighth grade and all of ninth. He then transferred to a public high school in Chicago, where his disabilities and ADHD were accommodated. While taking the ACT in high school, John was provided extra time to complete the exam, due to his disabilities.

John is not visibly disabled, however, and was able to join a fraternity and make friends.

John noted his disabilities on his application to Drake. During his first two years at Drake, he attempted to get through his studies without accommodations, but needed them for the final two years.

But when he was accused of sexually assaulting a female student, he was given no accommodations to help him process the investigation and effectively defend himself, John and his father allege. In fact, Rossley says his son’s inability to articulately and quickly answer questions, and his lack of memory from the night of the alleged incident, were used by campus administrators to suggest he was guilty.

In their lawsuits, both Rossley and his son allege that John told investigators about his disabilities but no accommodations were provided, even though the school was aware of the disabilities provided classroom accommodations. The lawsuits allege this was a violation of the Americans with Disabilities Act.

‘Just giving him what he wanted’

The troubles began the evening of  Oct. 8, 2015. John, who takes multiple medications for his disabilities and also had been drinking at a house party, doesn’t remember much of the evening. Rossley says the medications alone have a “zombie” affect on his son.

John went to a bar off campus and saw his eventual accuser, referred to as Jane Doe in court documents. The two knew each other from the spring semester and would text or talk on the phone. They also shared some friends. John was a member of a fraternity and Jane would often visit the house.

On Oct. 8, the two had been drinking separately, but Jane texted John to see if he was at the bar just before she entered and the two saw each other. John says Jane flirted with him in the bar. He said he needed to leave since he had to work in the morning and offered to request Jane a “sober cab” — an option for drunk students to get a sober driver to take them home.

When John stood up from his stool at the bar, he says he felt the effects of his prescription medicines and alcohol. The rest of the night is spotty, as John says he “blacked out” at various times through the remainder of the night.

The two students got into the sober car, which drove them back to John’s fraternity, at Jane’s request. The driver would later say the two were “making out” in the back seat. The two arrived at the fraternity and went inside, but since there was nowhere to be alone, Jane suggested they go to John’s car for privacy. John vaguely remembers going to his car with Jane and getting into the back seat, where she initiated oral sex on him. John says in his lawsuit that he does not remember giving consent for oral sex, and was too incapacitated to have given consent.

Later, during the hearing, Jane would admit on the witness stand that she initiated oral sex on John without his consent, but said she did so because she thought she was “just giving him what he wanted.” Jane stopped performing oral sex because John could not maintain an erection due to his incapacitation. Jane said during the hearing that she then went into the fraternity house to vomit in a bathroom. She claimed during the hearing that she went inside to get away from John, though John says this would be impossible since she needed a security code to get inside, and that code was entered by John as the two entered together.

Rossley said he learned from investigation notes that some girls walking by the fraternity house that evening said they saw Jane stumble and John pull her into the fraternity house, which they claimed didn’t look right. One described John as “ethnic looking.” John is Hispanic, and was adopted by Rossley. Everyone involved in the investigation — the accuser, the investigator, the hearing board and the appeals board — is white, Rossley believes.

The next thing John says he remembers was lying on his loft bed as Jane stood on a chair next to him, saying she was leaving. John says he doesn’t remember if he had sexual relations with Jane other than the oral sex in the car, during which Jane did not ask for his consent.

Jane would claim that she had been in John’s room lying on a beanbag chair, and that they had sexual intercourse. Jane says she told John to stop, to which he replied, “Fine, I’ve got whiskey dick anyway.” Jane said she knew it was John by his short, stocky stature and said he was wearing a yellow condom.

During the investigation, John was asked what kind of condoms he owned. He mentioned two traditional brands. The investigator asked if he owned any novelty condoms and he said he didn’t. Rossley told Watchdog that Jane’s mention of the yellow condom was brought up during the hearing, but John’s claim that he didn’t own any was not.

Jane said she left the room to vomit again and texted a friend. She then went across the street by herself to the fraternity’s annex and got into bed with her male friend, who told her to leave (Drake University did not interview this friend). She then went to a different fraternity member’s room, whom she had a crush on, and got into his bed, where she remained until the next morning. John learned of this from his fraternity brothers.

At 3 a.m., John texted Jane to ask if she had gotten home safely. She texted him back, “All good, babe.” She appears to have texted this from the bed of another fraternity member.

After leaving the fraternity annex in the morning, Jane met with her friend who was not interviewed by Drake. She then contacted three more friends to discuss the night before. Only one of these friends was interviewed by Drake during the investigation, but all were referred to in the report. One of these friends went with Jane to the hospital for a sexual assault exam.

Jane said that during the exam she began to question whether she was right to assume she had been sexually assaulted. After an initial exam, she denied a rape kit. She provided no documentation from her hospital visit during the investigation or hearing. The school never asked for the results of the initial exam to even prove she went to the hospital.

‘An independent actor’

Drake hired outside investigator Mary Howell Sirna, a former sex crimes prosecutor, because John was the son of a trustee.  Sirna had just been hired by Iowa State University as their Title IX coordinator and Interim Director of the Office of Equal Opportunity. John alleges she lacked impartiality from the start. Drake also had Tricia McKinney, assistant director of campus public safety, help with the investigation.

Evidence of bias was apparent throughout the investigation. When John told investigators that he didn’t remember much of anything from the night in question, Sirna wrote across her notes (which were obtained by Rossley) the word “lie.”

When Rossley was first informed his son had been accused of sexual assault by his son’s fraternity president, he said he told the young man, “Send him to the wolves,” a statement that he says ended up in the investigator’s report. This was because, Rossley said, if his son had committed sexual assault against a woman, he should be punished. He says it was “hell” in the first few months after the accusation, “until we started reading things, processing information and questioning, and it became clear to us that this kid was being railroaded.”

Throughout the process, John and his father allege, Sirna and McKinney decided who to interview and who not to interview. The investigators failed to interview critical witnesses who were present on the night of the alleged assault. John’s roommate, for example, was in the room when the assault was alleged to have occurred, and said he did not hear or see any sexual activity. His testimony was not included in the report because the investigators claimed it was unreliable.

The investigators also failed to interview at least nine witnesses that could have provided crucial information about the night in question and the level of John and Jane’s intoxication and their interactions. The investigators didn’t interview Jane’s friend, whom she was with earlier in the evening, and the first person she spoke to after the incident. At the hearing, no testimony was allowed from the men Jane went to see directly after the alleged incident, even though they could have provided valuable insight into her level of intoxication and state of mind.

None of the interviews were recorded or transcribed verbatim. Sirna only included her summaries of what was said, and key information was omitted. John said during his interview that he woke up the next morning fully clothed, with his shoes on, but this information wasn’t in the investigative report. Sirna said during the hearing that she didn’t remember John telling her that.

Sirna wrote in the investigative report, obtained by Rossley: “Therefore, given that there are no eyewitnesses to the event, and respondent claims not to recall the event, we then must turn to the evidence provided by Complainant.” But there were eyewitnesses to the event, they just weren’t interviewed. Further, Jane’s claims were given credibility because John couldn’t remember, which should have clued in investigators that he was the more incapacitated individual.

When John was first told of the allegations against him, he said it sounded like what Jane had done to him in the car. He said Jane had actually sexually assaulted him in the car, because he did not consent to oral sex (Jane would admit to this during the hearing).

The investigation noted a discussion with John about his intoxication on the night of the alleged incident. “When discussing his own intoxication level on October 9, 2015 the Respondent indicated, ‘I was not in a state to be with her.”’ John then alleges Sirna asked him if Jane had taken advantage of him that night, to which he responded: “Yes, but no. I was not able to give consent that night.” John was then asked if Jane was able to give consent, and he responded: “She’s not as bad as I was.”

Despite John clearly indicating he had been the victim of sexual assault under Drake policy, no investigation was ever opened against Jane, even after she admitted in the hearing that she had committed sexual assault. After Jane said this during the hearing, and John told his parents, Rossley said the family gave each other high fives, thinking “he can’t get convicted when she just admitted to doing it to him.” Rossley was wrong.

John even attempted to initiate a sexual assault report against Jane for the sexual activity in the car, but the school deemed his report to be retaliatory and didn’t investigate despite clear evidence of a sexual assault. Nowhere in Drake’s policies does it state a sexual assault accusation can be ignored, even if administrators deem it to be retaliatory before they investigate.

John and Jane were allowed an adviser at the hearing, who could be an attorney. When the acting dean of students, Jerry Parker, learned that John had hired an attorney, he personally arranged for Jane’s own attorney and provided that attorney with all relevant documents from the investigation. He also allowed Jane to bring a second advocate to the hearing and reserved a private room for Jane’s mother and friends in the building where the hearing took place. John was not allowed to have a second advocate in the room, and his parents were not allowed in the building, they had to wait in a separate building.

Early in the process, Rossley realized his son was being mistreated by investigators, and began advocating for a fair process, such as disability accommodations. Rossley also contacted Parker to request an investigation into the sexual assault of his son by Jane. Parker responded by telling Rossley to “wait for the report; it’s very damning.”

Parker then made the surprising move to essentially become a co-complainant against John, with his own attorney and ability to call witnesses. Rossley told Watchdog that the hearing officer arbitrarily ruled that each party would have 10 minutes for opening arguments, 10 minutes for closing arguments, and five minutes for rebuttal. Because Parker became a third-party complainant, he was allowed these same provisions, meaning that in reality, the accusing side had 20 minutes for opening arguments, 20 minutes for closing arguments, and 10 minutes for rebuttal. When John asked for double time to even the playing field, he was denied.

During the hearing, Jane claimed to have a medical condition that prevented her from having vaginal sex easily. She claimed she was hurting after she left John, but the two men whose beds she entered after leaving John were barred from testifying. The first man told Jane to leave after she got on top of him in his bed. The second man would have said Jane showed no signs of incapacitation or pain, as she claimed during the hearing.

Jane provided no medical evidence of her condition, and wasn’t asked to by the hearing board. She also claimed to have kept the underwear she was wearing that night and could have had it tested, but again she was not asked to.

Rossley told Watchdog that during the hearing Jane presented a series of messages from John that were sent a week before the alleged sexual assault. He believes she did this to make it appear as though John had been stalking her. She conveniently left out her side of the conversation. Even though John presented the full conversation, without her responses deleted, she was not punished for lying during the hearing (or for admitting to sexually assaulting John).

Also during the hearing, Parker asked John, in reference to his own report that he did not consent to sexual activity with Jane in the car: “And you didn’t say no?” Such a question is usually considered victim blaming and would not be allowed to be asked of a female accuser.

When appealing the hearing’s decision to expel, John was informed that it was fine for Parker to have his own opening and closing arguments because the “University is an independent actor and dos not represent or take the side of either party.” This made no sense, since Parker represented Drake at the hearing and had stated in his notice of the hearing that he was “seeking the expulsion of [John]” and would “present the evidence against [John] to the hearing officer,” which is what he did.

John’s appeal failed, and he was expelled. John and Rossley tried to appeal to Drake President Earl Martin, but learned that he had been discussing the matter with Board of Trustee Chair Larry Zimpleman. Martin did nothing to restore John’s reputation.

‘Selective prosecution’

Rossley on multiple occasions attempted to reach out to his fellow trustees to ensure his son was treated fairly and to make sure the school was in compliance with the Americans with Disabilities act, but was ignored.

On April 7, 2016, Rossley emailed Parker and Zimpleman to once again raise concerns over the way his son had been treated. Rossley stated in the email that he found it “very interesting” that Parker and Zimpleman were not offended that investigators violated the ADA while investigating his son, excluded key elements of his son’s testimony from the investigative report and refused to investigate the sexual assault against his son.

No one responded to that email, so on April 26 Rossley emailed a letter to the trustees and select members of the faculty and administration, which again raised his concerns over his son’s investigation. Rossley stated in this letter concern for the school’s violation of the ADA. “Do we want to be known as a university that ignores [a] student’s disabilities when it comes to enforcing our policies and procedures?” he asked in the letter.

After again describing how the sexual assault on his son was ignored, Rossley asked, “Is this the kind of selective prosecution we as a Board are willing to own in the public domain? What effect will this have on our admission numbers from male students?”

Further, he said: “If Drake is selectively prosecuting only men for sexual assault, the University could have some substantial liability.” Rossley had learned after his son’s expulsion that Jane was bragging about John being the first student expelled for sexual assault.

Rossley says he received private emails and phone calls from several trustees after the April 26 letter expressing support. High-ranking members and Drake’s president, however, were not supportive. About eight hours after Rossley sent the letter, Board Chair Zimpleman sent an email to everyone on the email list, saying that no trustee should engage in “discussions of the issues” raised in Rossley’s letter.

Two days later, Rossley was approached by Zimpleman at Drake’s Annual Alumni Awards program. The two went to a private room where Zimpleman and David Miles, who chaired the trustees’ Board Affairs committee confronted Rossley. Rossley says the two told him to “stop this immediately.” Rossley told Watchdog he told the two that Drake has messed up his son’s investigation, and left the event in anger.

Rossley says that five days after this confrontation, he sent an email to Miles and Zimpleman saying he was “disassociating” himself from the case and would provide no further incident for the trustees. Despite this agreement, Zimpleman and Miles asked Rossley to step down as a trustee.

Rossley was the longest-serving trustee, having sat on the board for 23 years. He says the second longest-serving member had been on the board for 15 years. He was offered the option of taking a “leave of absence” until the situation with his son was resolved, but there was no option under the board’s bylaws to permit such an absence. Rossley says Zimpleman and Miles said they would “get it approved.” But Rossley was skeptical, so he declined to resign.

On May 20, 2016, Zimpleman, Miles and Board Chair-elect David Golder sent Rossley a letter asking him to resign as an active member of the board, and suggested Rossley had a conflict of interest stemming from his son’s issues with Drake. Board bylaws permit trustees to disclose conflicts of interest and abstain from votes that may have related to the conflict, which Rossley had agreed to do, so there shouldn’t have been further issue.

But in June 2016, members of the Board of Trustees began attempting to remove Rossley. Two-thirds of trustees needed to be present in order to vote to remove Rossley, but not enough showed up. Members of the Board then scheduled another vote on July 19. Rossley alleges in his lawsuit that Iowa State regulations were broken in order for the vote to be held, including being provided too few days notice of the vote, which was done over the phone, and not being informed in advance of the alleged cause required for his removal.

It was during this call that members voted to remove Rossley from the board. Rossley is suing for discrimination, breach of contract and retaliation, since the board’s stated reasons for removing him were due to his advocacy for his son.

Rossley also wondered to Watchdog if there was an employment claim, as even though he received no compensation as a trustee, he was given benefits such as liability insurance.

Watchdog attempted to contact every member of the Board of Trustees (where contact information was publicly available) for comment. Not one responded.

A spokesman for Drake would not comment on the specifics of the lawsuit, but said the school “disagrees” with Rossley’s depictions.

“Drake University takes seriously its commitment to provide a safe and productive educational environment for all of its students. This case is no exception,” the spokesman said. “After an initial review of the complaint filed by former trustee Tom Rossley, Sr., the University disagrees with the plaintiff’s depictions of the alleged actions of the parties involved.”

The Drake spokesman added: “There are clear differences of opinion about how this situation evolved, and we look forward to presenting a vigorous defense in court. In recognition of the University’s obligations under federal law and out of respect for the privacy of those individuals involved, no further comment will be offered.”

Rossley told Watchdog that he is challenging the school not just for his son, but to ensure all students at Drake are treated fairly and with respect.

“I stood up, not only for my son, but all the other kids — what about the kids who have no money and can’t fight this? Or who don’t have a parent who’s got the fortitude to stand up?” he said.

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