But university policy has a lower standard of guilt in determining that Pierre engaged in sexual activity without consent, as defined by the university: “Effective consent is granted when a person freely, actively, and knowingly agrees at the time to participate in a particular sexual act with a particular person.”
"Ultimately, there is no material factual dispute between the plaintiff and the accused," Rose wrote in his ruling. "Plaintiff was asked what gave him to understand he had consent, and he could articulate none beyond the amorphous 'her general body language.'"
“The University Hearing Board could reasonably find this was not ‘mutually understandable words…or actions demonstrat(ing) a willingness to participate in a mutually-agreed-upon activity at every stage of…sexual activity,’” Rose wrote, quoting university policy.
UD officials declined to comment on the ruling, saying they will let the court filings speak for themselves.
Pierre’s attorney, Peter Ginsberg of New York, said his client hasn’t decided if he will take further legal action against the school.
“I’m very disappointed,” he said. “A young man’s reputation has been tarnished by false accusations, and (the University of) Dayton abrogated its responsibility for fully and fairly investigating.”
“(UD’s) rationale at the hearing that it did enough to satisfy its legal burden, doesn’t mean they did enough to satisfy its obligation to Dyshawn and to notions of fairness.”
UD’s sexual misconduct policy is largely guided by federal Title IX laws, which Ginsberg and others say have forced universities to set up unfair judicial proceedings to zealously pursue sexual assault allegations or else face scrutiny and threatened funding cuts from the federal government.
But sexual assault victim advocacy groups say having a university system in addition to the criminal system increases the chances perpetrators of sexual misconduct will face some consequences.
A federal judge ruled Friday that Pierre’s suspension from the University of Dayton will remain in place until Dec. 20. The ruling came after Pierre and his attorneys filed lawsuit in an attempt to force the university to lift the suspension before Dec. 20.
Dayton men’s basketball fans have wondered for four months whether senior forward Dyshawn Pierre will return to the Flyers.
Coach Archie Miller confirmed Thursday that Pierre will come back to UD and the team Dec. 20 when his suspension ends. What hasn’t been decided and what won’t be decided until then or in the days that follow is if Pierre will play this season.
Miller will meet with Pierre and his family Dec. 20 to gauge where Pierre is at mentally and physically. He doesn’t think it will take long to figure out whether Pierre will be able to contribute this year.
“If it’s feasible, (he’ll play),” Miller said. “If not, he’ll sit out a year.”
Pierre will come back to Dayton as a full-time student. Miller wants Pierre to be able to focus on the academic side of things, too, when he comes back. If he doesn’t play this season, Miller said he will still be able to practice with the team and travel with the team. Miller said he didn’t know if Pierre would be on the bench for the first game after his suspension, a home game against Miami on Dec. 22.
Pierre has missed so many practice (43 by Miller’s count) and eight games and counting (10 by the time of Dec. 20), Miller doesn’t know how ready he will be to play right away. If it turns out it’s going to take him weeks or more to get back into the rotation, he and the Flyers might decide not to waste his final year of eligibility on a season that might see him play half the games.
Pierre’s final year would be delayed a year, and he would be playing with the same group of players next year. The Flyers (7-1 after beating Vanderbilt 72-67 on Wednesday) have proven they can win without Pierre, but their ceiling is definitely higher with a 1,000 point scorer in the mix.
Pierre has worked out on his own in Whitby, Ont., but it’s hard to replicate what the Flyers do in practice.
“No one can replicate what we do in practice every day,” Miller said. “We also have to understand practicing gets you to games. That’s the whole deal. I will say I think Dyshawn has done a nice job (staying in shape) while he’s been home.”
Pierre will have a say in whether he tries to play this year, Miller said, but it will also be an agreement between he and the coaches.
“I’m sure any 19 or 20-year-old is probably champing at the bit,” Miller said.
Pierre was suspended in September after allegations of a sexual assault. No charges were filed.