Judge will rule later in Pierre hearing

 Judge rejects UD player Pierre’s bid to rejoin team

A federal judge on Monday shot down suspended University of Dayton basketball standout Dyshawn Pierre’s legal effort to immediately return to school.

Pierre was seeking a temporary restraining order in Dayton’s U.S. District Court that would have nullified the semester-long suspension imposed by UD. The school found Pierre violated university policy after a female student alleged unwanted sexual contact. The Montgomery County Prosecutor’s Office reviewed evidence from the April 23 incident and declined to pursue a criminal indictment.

“Pierre has not shown that refusal to issue an injunction would cause him to suffer irreparable injury,” U.S. District Court Judge Thomas Rose wrote. “Pierre had been suspended from school one month before filing suit. The significance of his delay in seeking an injunction is even greater because his suspension only lasts until the end of this semester.”

Pierre, UD’s leading returning scorer and rebounder, is eligible to apply for reinstatement Dec. 20 and play in the Flyers’ Dec. 22 game against Miami University.

His attorney, Peter R. Ginsberg, had challenged the fairness of the school’s University Hearing Board (UHB) process set against a nationwide debate over claims of sexual assault on college campuses and how schools investigate cases involving Title IX complaints.

“We are obviously very disappointed,” Ginsberg said Monday. “Universities should set examples of fairness and thoroughness and appropriate treatment of everyone. Dayton wholly failed in its obligations to Dyshawn and, in a very real sense, has failed in its obligation to the entire university community.”

Efforts late Monday afternoon to reach UD attorney Doreen Canton were unsuccessful.

Quoting case law, Rose wrote: “While the University’s sexual harassment resolution policies may not be ideal, the courts ‘will not interfere with a private university’s right to make regulations, establish requirements, set scholastic standards, and enforce disciplinary rules absent a clear abuse of discretion.’”

Rose’s decision noted that UD”s code of conduct prohibits sexual harassment and that the UHB determined that Pierre “was unable to demonstrate that he received any words or actions that indicated he had effective consent for sexual intercourse or sexual contact.”

Ginsberg said UD exhibited a clear abuse of discretion.

“I am most disturbed by the fact that the university placed the burden on Dyshawn to prove that he didn’t commit this act,” Ginsberg said. “The university has essentially hidden behind its argument that everyone should defer to its decision making. A person’s reputation, a person’s life in a real sense, is hanging in the balance.”

Ginsberg also argued that Pierre “does not have the ability to articulate and express himself verbally while under stress and pressure and the University should have allowed him ‘meaningful representation.’ “

Rose denied that argument, writing that Pierre didn’t bring the disability up until before an Aug. 26 appeal and that Pierre informing the school’s learning resources office doesn’t trigger an obligation for every department at the university.

Rose also ruled Pierre had every chance to fully participate in the hearing process.

“This is obviously a loss for Dyshawn, but we’re going to keep on fighting to clear Dyshawn’s name and hopefully to help the university understand how it should handle these matters,” Ginsberg said.

UPDATE @ 4:55 p.m. (Oct. 19): A federal judge has ruled against the temporary restraining order sought by suspended University of Dayton basketball player Dyshawn Pierre.

U.S. District Court Judge Thomas Rose, in his ruling released this afternoon, wrote that “Pierre has not demonstrated that he has a strong likelihood of success on the merits of his claims because he failed to ask for accommodation and because the process promised him and provided to him was fundamentally fair.

“As for the remaining factors to be considered, Pierre has not shown that refusal to issue an injunction would cause him to suffer irreparable injury.”

Pierre was suspended for the fall semester after university officials ruled that he violated the school’s code of conduct regarding sexual conduct after a female student filed a report claiming unwanted sexual contact. The Montgomery County Prosecutor’s Office reviewed the evidence and declined to pursue an indictment.

Pierre’s attorney had challenged the process and argued that Pierre’s absence from school and basketball this semester would cause irreparable harm. Pierre can return to school in late December.

UPDATE @ 3:10 p.m. (Oct. 15)

The hearing ended just after 3 p.m., and the judge will rule at a later date.

The hearing was held because Pierre’s lawyers filed a motion for temporary restraining order and preliminary injunction. If the judge rules in Pierre’s favor, he’d be able to re-enroll in school and rejoin the basketball team.

UPDATE@2:26 p.m.:

The Dyshawn Pierre hearing is underway. We have a reporting crew in the courtroom, and we will bring you the latest information as soon as the hearing is over.

UPDATE@1:25 p.m.:

University of Dayton basketball standout Dyshawn Pierre, who has sued the school for what he describes as an unfair process that “disrupted his education” and caused a “drastic blow to his reputation,” is scheduled to appear in Dayton federal court at 1:30 this afternoon for a motion hearing. Our reporters are at the courthouse and will update you on the hearing.

First report:

Currently, Pierre is not enrolled this semester at UD after another student accused him of a sexual assault that he denies happened, and county prosecutors say lacks sufficient evidence to merit criminal charges.

Pierre described his suspension as a “fundamentally unfair and defective internal process that deprived him of vital rights and protections and has resulted in a disruption in his education, a drastic blow to his reputation, and a potentially fatal interference with his dream to bring a national basketball championship to Dayton,” according to a statement released Wednesday by Pierre’s attorney Peter Ginsberg.

In response to the lawsuit, UD released the following statement: “The University of Dayton’s processes are in compliance with U.S. Department of Education requirements. The University does not comment on pending litigation.”

In response to a request under Ohio public records laws for records related to criminal allegations against Pierre, UD police provided 15 pages detailing an investigation into allegations that a sexual assault occurred on campus in the early-morning hours on April 23.

The investigation was reported in May and the investigation was concluded in June. It then was turned over to the Montgomery County Prosecutor’s Office. Prosecutor’s office spokesman Greg Flannagan said his office declined to press charges “due to insufficient evidence.”

The location of the incident is listed as a Caldwell Street residence hall. The heavily redacted report does not identify the suspect or three witnesses, but lists them as students.

Investigative records say the suspect and complainant were drinking at Timothy’s on Brown Street before going back to his campus residence.

There, the female claims, he pressured and sexually assaulted her while “she pushed at the suspect and told him to stop.”

Per the report, written by the investigating officer: “The complainant told me that, after a moment of silence, she told the suspect, ‘What just happened wasn’t okay.’ She said the suspect replied, ‘What. Are you calling this rape?’ The complainant told me that at that point she had not quite comprehended the gravity of what had taken place, so she told the suspect no.”

Specific details of what she alleges happened were redacted from the report.

His version of events differs: “At no time, did she by words or actions ever indicate that she was an unwilling participant,” he wrote in a statement.

“I never held her down so it was impossible for her to get away, or held her down in any way. I never told her to or demanded that she do anything,” he wrote in a statement. “Everything we did was totally consensual.”

The woman didn’t contact police directly, but told her friends who contacted the school’s Title IX coordinator.

“She said she did not, at this time, wish to file criminal charges against the suspect,” the report says. “Neither did she wish to see him go unsanctioned completely.”

As a result of missing the first semester, Pierre — the Flyers’ leading returning scorer and rebounder — may not return to school until December, meaning he would miss the first 10 games of the season.

Last month, Pierre’s attorney, Peter R. Ginsberg, said Pierre was innocent and would fight the university’s decision.

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