Judge calls Fenves’ statement ‘absurd’ in UT sexual assault suspension

Update 12:30 p.m. A University of Texas student who is suspended for sexual assault will not be able to attend the school in the upcoming fall semester.

U.S. Judge Sam Sparks declined to rule on the man’s motion for a temporary injunction Friday, saying he first wants to hear from UT President Gregory L. Fenves.

For more of the judge’s reaction to the lawsuit, visit our premium coverage at MyStatesman.com

Fenves did not appear at Friday’s hearing, just days after UT was served with the lawsuit that says the president should not have overruled a hearing examiner who found no sexual assault had taken place.

Sparks said he’s busy but will find time to hear arguments before the start of the spring semester.

The judge had some pointed words for Fenves, calling a paragraph from the president’s letter explaining his decision “absurd.” Fenves had written that “someone who is intoxicated cannot give consent to sexual activity because they are incapacitated.” UT’s lawyers admitted that portion of Fenves’ ruling was poorly worded, but said it did not reflect the basis of his decision.

Sparks also questioned why Fenves overruled the hearing examiner.

“It would appear the hearing is just a facade if the president makes the decision,” Sparks said.

The man’s attorney, Brian Roark, released a statement following the hearing: “The hearing today was preliminary for the judge to hear from the parties and narrow the issues as the lawsuit moves forward. We were encouraged by comments made from all participants in the hearing and look forward to proceeding on the merits.”

UT’s attorney Sean Flammer declined to comment.

10:30 a.m. A suspended University of Texas student who sued the school for how it handled his sexual assault investigation will ask a federal judge on Friday to let him enroll for the upcoming fall semester.

John Doe, as the man is named in court documents, wants a preliminary injunction that, if granted, would freeze his suspension while the lawsuit is pending. He filed the suit on Monday saying UT president Gregory L. Fenves unfairly sided with his accuser.

Fenves is not expected at Friday’s hearing.

A university hearing officer ruled that no sexual assault had taken place when the students had sex in April 2016 after her sorority’s formal. They both had been drinking. UT records included in the court file say the woman agreed to have sex with him, but filed a complaint against him days later.

In April, UT president Gregory L. Fenves overruled the hearing officer’s decision, and suspended the man for five semesters.

In paperwork explaining his decision that the woman was too intoxicated to consent to sex, Fenves cited testimony from a witness who attended the formal. “While parties may disagree as to whether intoxication and incapacitation are synonymous, certainly, someone described as: ‘incredibly intoxicated, no longer coherent, at a point where she needed to be taken home away from the event because she couldn’t form sentences,’ meets the definition of incapacitated.”

UT’s attorney had asked to delay Friday’s hearing, but U.S. Judge Sam Sparks said this is the only opportunity for the court to review the matter.

Classes at UT begin on Aug. 30.

This is a developing story; check back for updates

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