This lawsuit raises troubling allegations about how university investigators may omit exculpatory evidence, exaggerate vague and subjective evidence favoring complainants, and ignore leads that could provide exculpatory evidence when students are accused of sexual assault. It also presents a high-stakes race by the accused student to prevent the school from continuing with the internal appeal via a recent motion for a temporary restraining order. We have added this lawsuit to our Title IX Lawsuits Database.

Sheldon v. University of New Mexico was filed on September 21^st in U.S. District Court for the District of New Mexico after the school found Skyler Sheldon responsible for sexual assault but before his hearing on appeal. He alleges three counts of declaratory relief, due process, equal protection, and Title IX. He has also filed an injunction seeking to enjoin UNM from proceeding with the Sept. 26 hearing. Sheldon is suing the University itself and the following Individual Defendants: Title IX Coordinator Angela Catena, Hearing Officer Ben Zinke, and Title IX Compliance Manager Michelle Sanchez.

The Incident on April 24^th, 2021

Per the complaint, Skyler Sheldon was a student in his senior year at UNM. Having a 3.7 GPA, he was on track for graduating Magna Cum Laude. While attending a party he encountered Betty Smith (a pseudonym), an old high school acquaintance. Betty was attracted to Sheldon and made several romantic overtures toward him, which he partially returned. Near the end of the party, Betty abruptly grabbed him by the arm and pulled him outside to a car driven by her friend Gwen Delmargo-Lewis who proceeded to drive them to Skyler’s dorm.

Along the way, Betty made out with and performed fellatio on Skyler in the backseat, well within Gwen’s view. Betty apologized to Gwen for this when she dropped them off at Skyler’s dorm. Upon Gwen leaving, however, Skyler quickly realized he left his keys in his friend Wesley’s car. While waiting for Wesley to arrive, Betty again performed oral sex on Skyler in the bushes.

When Wesley arrived, he awkwardly discovered that Betty was performing oral sex on Skyler and quickly let them in to the dorm. Betty offered that they engage in a threesome. Wesley declined and left. The pair then went to Skyler’s bedroom where they engaged in sexual intercourse. The following morning, Wesley and Skyler drove Betty back to her house, and Betty messaged Skyler via SnapChat about having a wonderful evening.

Betty met up with her friends later that day. They asked her about bruises that she had from the night before – apparently from sex with Skyler. Her friends pressed her for more information, but Betty said she “could not remember much about having sex the previous night.”

Her friends further pressured Betty to go to a clinic, where she “explained her loss of memory to her friends as possibly due to being drugged” but declined to be tested for drugs. She also “told her friends that she did not want to report Skyler to the police because he may be innocent and that he may not have sexually assaulted her.”

The Report

Nearly a year later, on March 4^th, 2022, Betty told Dr. Stephen Bishop, Director of the International Studies Institute at UNM, that Skyler raped her last year. Of course, Dr. Bishop was a mandatory reporter, so he reported this to Title IX Coordinator Angela Catena.

UNM’s Title IX Office repeatedly reached out to Betty to inform her of her options and encouraged her to proceed with an investigation. Betty repeatedly refused to respond, however, so Catena told her they would soon have to “close the file.” Betty communicated with others at UNM, such as the Women’s Resource Center. In May, the Center’s Director “emailed Sanchez and informed Sanchez that Betty did not wish to participate in UNM’s Title IX process.”

Betty never made a formal complaint. She was also “counseled at length about obtaining a restraining order to keep Skyler away from her” but never sought one. Regardless, Title IX Compliance Manager Michelle Sanchez initiated an investigation two months later, in July 2022.

UNM’s Investigation

Among other deficiencies, the complaint alleges the following flaws with UNM’s investigation:

1. UNM’s investigation was untimely; a Title IX complaint must be filed within 180 days of the alleged incident (31 CFR § 28.610).
2. UNM does not have jurisdiction under 34 CFR § 106.45 because a formal complaint was not filed.
3. UNM failed to provide sufficient notice of the grievance process. In particular, UNM did not inform him as required under 34 C.F.R. § 106.45(b)(2)(i) that he may acquire the services of an attorney and that he may inspect and review evidence.
4. Despite interviewing Gwen, UNM’s investigative report failed to include Gwen’s observation of the sexual activity in the backseat of her car or Betty’s apology for having performed it.
5. UNM interviewed Wesley but failed to include anything about Betty’s offer for a threesome or Wesley’s discovery of Betty performing oral sex on Sheldon.
6. UNM interviewed irrelevant witnesses, such as “Betty’s mother, Betty’s boyfriend, and Betty’s best friend from high school,” none of whom were present on the night of the alleged incident.
7. UNM informed Betty that she would be able to review “all evidence in the file.” UNM must do the same for respondents under 34 C.F.R. § 160.45(b)(2)(i)(B). Despite Skyler’s requests, UNM failed to provide him with key evidence such as a UNM Police report and videos. Skyler sued in state court to retrieve this information (Case No. D-202-CV-2022-05171).
8. UNM failed to inquire why Betty had “informed UNM’s Police Department that she did not want to get Skyler into any trouble, she just did not want to see him on campus.”
9. UNM’s investigative report emphasized vague and subjective information by “highlighting in great detail Betty’s purported psychological fear of Skyler and the impact it had on her school.”

The “Hearing”

For some unexplained reason, the parties both agreed to forgo a live hearing. Instead, UNM reviewed the investigative report and “arguments on paper” on December 22, 2022. Three months later, on February 23^rd, Skyler received UNM’s decision: he was found responsible for sexual harassment and assault, and his punishment would be expulsion.

Skyler appealed. UNM then provided audio and video evidence that was not provided before the “hearing.” The videos, however, were without sound.

Who authorized the formal complaint is a question plaguing this investigation. Per 34 CFR 106.30(a), a “formal complaint means a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation of sexual harassment.”

Skyler’s attorney requested evidence such as UNM emails circulated during the investigation. The complaint asserts that none of the emails provided evidence of formal approval of the complaint, nor “any indication that a formal complaint had been filed, or any indication that Betty elected to proceed with a formal investigation.”

Curiously, twenty pages into the complaint and after mentioning all of the above, we hear for the first and only time that Betty claimed she had an alcohol-induced blackout. We are not told whom Betty told this to or when. Alcohol is mentioned nowhere else in the complaint, including any references to UNM’s pre-appeal determinations. This is also relevant because on appeal, UNM denied Skyler’s request to include the testimony of an expert witness, Dr. David Ley, regarding alcohol-fueled impairments.

Skyler anticipates that Betty will not testify at the hearing, which will “deny Skyler his constitutional due process right to cross examine her about the fundamental flaws in her claim that Skyler sexually assaulted her.”

This raises a few questions. Wasn’t Betty’s claim open for cross-examination in the initial live hearing that the parties jointly refused? Wouldn’t Gwen have been a good target for cross-examination, given that her observations of the two making out in her backseat and Betty’s apology to her were not (per the complaint) sufficiently explored in the investigative report?

It is also not apparent in the complaint that Betty introduced any new evidence on appeal that would make cross-examination more necessary than it would have been during an earlier live hearing. Almost axiomatically, it is easier to win in the school’s initial determinations than it is to win on appeal, and it is easier to win on appeal than it is to win a lawsuit. This being the case, if cross-examination is critically important on appeal when new evidence is rarely introduced and schools generally only review alleged flaws in their procedures, why wasn’t cross-examination more important during the opportunity for a live hearing?

At the risk of belaboring, it seems odd to forgo the opportunity to cross before the school’s initial findings, only to lose and then insist it is of critical importance on appeal when no new inculpatory evidence appears to be introduced by the school or the alleged victim. Perhaps there is something I am missing here, or perhaps we will learn more as the lawsuit develops.

The Temporary Restraining Order

Update: Judge Kea Riggs declined to issue the TRO and has ordered briefing on a preliminary injunction.

We will be following this case closely and updating our database accordingly.