ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, March 7, 1996 TAG: 9603070054
SECTION: VIRGINIA PAGE: C-3 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
Virginia Tech urged a federal judge Wednesday to dismiss a lawsuit by former student Christy Brzonkala, arguing that it contains no facts proving the university discriminated against her.
Tech's lawyers argued that the lawsuit fails to show gender discrimination in the way the university handled Brzonkala's allegation that two football players raped her in September 1994.
Chief U.S. District Judge Jackson Kiser did not decide Wednesday during the defense's pretrial motion to dismiss, but gave the attorneys two weeks to file briefs.
Brzonkala has no standing to bring suit because she left Tech after one of the players, Tony Morrison, was allowed to return to campus, Tech attorney Kay Heidbreder said.
Brzonkala's allegations that she was treated differently from the players during campus hearings because she is female are wrong, Heidbreder said. She was treated differently because she was considered a witness, the attorney said. The accused were entitled to due process because they could have suffered serious penalties if found guilty.
As it turned out, both players were allowed to remain in school and members of the football team.
Tech hearing officers found Morrison guilty of sexually assaulting Brzonkala and suspended him for two semesters. Morrison appealed and lost, but won a second hearing on technical grounds. He was again suspended for two semesters for "using abusive language" toward her, but had his punishment reduced to probation by the provost.
The hearing officers found there was insufficient evidence against the second player, James Crawford, who was Morrison's roommate.
Brzonkala maintains that Morrison got special treatment by the university because he is a football player.
She has filed suit against the university, the two players and Cornell Brown, another football player who provided an alibi for Crawford at his campus judicial board hearing.
Morrison admitted having sex with her but told hearing officers it was consensual, Brzonkala's lawsuit says. Crawford denied having sex with her.
Tech has now taken the position that what actually happened between the three students may never be determined, but that the university recognizes Brzonkala's "pain and suffering."
"Virginia Tech strongly denies violating Christy Brzonkala's civil rights in our handling of her complaint," Tech said in a statement. "Brzonkala is free to return to the university at any time." Brzonkala lives in Fairfax.
Morrison's attorney, David Paxton, joined Tech in arguing that the claims against the school should be dismissed. He also urged the judge to declare unconstitutional the Violence Against Women Act of 1994, a federal law being used for the first time by Brzonkala. Paxton argued that Congress exceeded its power in enacting the law.
The law allows victimized women to sue if they can show that the violence against them was motivated by their gender, rather than simply being a random act.
"The purpose is to try to deal with hate crimes," Paxton said. "It doesn't mean that every rape would be a violation of the statute. And if it [does], then it's clearly unconstitutional."
Brzonkala's lawsuit attempts to show a pattern in Morrison's behavior toward women by including a comment he allegedly made several months after the incident. Another student reportedly heard him say that he liked to get "girls" drunk and have sex with them.
Paxton denies that Morrison made the statement, but said if he did that it was made too long after the alleged rape to prove motivation. "Isolated, stray remarks" generally aren't considered relevant in discrimination cases, he said.
"It simply may be a preference, if it can be proved," Paxton said.
"Now why would someone have a preference for drunk women?" Bernice Sandler asked. "Because they're vulnerable and you can take advantage of them."
Sandler, a senior scholar in residence at the National Association for Women in Education, authored the first study of gang rape on campuses in 1985. Her work was cited by Brzonkala's lawyer, Eileen Wagner, after court. Wagner claims rapes by student athletes are a national trend and may even be a initiation rite on some football teams.
Reached at her Washington, D.C., office, Sandler said the largest number of publicized rapes on campus are committed by fraternity members, with athletes second.
LENGTH: Medium: 85 lines ILLUSTRATION: PHOTO: (headshot) Brzonkala.by CNB