He said the decision to suspend the hearing had been considered for weeks and was not a direct result of a Monday letter sent by Gambill’s attorney, Henry Clay Turner, which demanded Thorp drop the charges Turner called “inappropriate, unconstitutional and utterly without merit.”
Thorp’s decision presents an unusual three-sided conflict the University faces in this case: to comply with federal mandates when allegations of retaliation are made against the University, while attempting to preserve the autonomy of the student-led honor system and the rights of those who bring complaints to the Honor Court.
The “Dear Colleague” letter, which Thorp said requires UNC to respond to Gambill’s retaliation claim, is a 19-page mandate released by the Department of Education in April 2011, calling for all federally funded campuses to update their sexual assault policies.
The letter also requires all universities to comply with Title IX of the Education Amendments of 1972. According to the letter, Title IX prohibits retaliation and requires that all school officials not only prevent retaliation, but also take strong responsive action if retaliation occurs.
“If there is an allegation of retaliation, the school can’t just dismiss it,” said Gina Smith, a consultant to UNC on its sexual assault procedures.
“There has to be responsive action to the allegation,” Smith said.
Thorp said based on this requirement, he concluded that the Title IX process required him to suspend the Honor Court proceeding.
“We decided we couldn’t review the allegations and have this Honor Court case going at the same time,” he said.
He said he could not comment on why both could not proceed together based on specifics of the case.
Thorp said UNC will be conducting the review in an internal process through the Equal Opportunity/Americans with Disabilities Act Office, a process he said is designated by the “Dear Colleague” letter.
He added that UNC might seek out another independent viewpoint, but that has not been determined.
“There are not any specific guidelines in the ‘Dear Colleague’ letter addressing how an investigation has to be done,” Smith said. “The review must be done in a fair and equitable way.”
He said there is no time-line for the review.
“This is a highly unusual situation,” Thorp said. “This is a difficult thing for me to ask the Honor Court to do — to put a case on hold.”
“But I am confident it is the right thing to do,” he said.
Thorp — like previous chancellors and other administrators — has refrained from interfering with honor system’s 100-year tradition of student self-governance.
Thorp has repeatedly denied any University involvement in the honor system decisions surrounding Gambill’s trial.
Henry Ross, deputy student attorney general for the honor system, said Thorp’s unusual assertion of authority does not infringe on the honor system’s autonomy.
He said Thorp only mandated that the hearing be postponed — which would still allow the Honor Court to hear the case at a later date.
“He hasn’t told the honor system how to decide this case,” Ross said. “The only thing that’s been asked is that the process be postponed.”
“It would be different if he asked for the charge to be dropped or if he decided the verdict of the case himself,” he added.
Thorp said he would not speculate on whether he might eventually drop the charges entirely.
Ross also said UNC’s Instrument of Student Judicial Governance states that the chancellor remains ultimately responsible for all matters of student discipline.
But the chancellor has typically granted the responsibility of student conduct policy to the honor system in the past.
“Thorp’s decision will allow the University to work on what’s happening with this case outside the honor system,” Ross said.
Gambill and her ex-boyfriend’s trial should have been just weeks away, after she was charged Feb. 22 with a conduct violation of the University’s Honor Code that claims she engaged in disruptive or intimidating behavior against her ex-boyfriend. No future trial date is in sight.
Neither Gambill nor her attorney could be reached for comment Tuesday.
John Gresham, an attorney with Tin Fulton Walker & Owen representing Gambill’s ex-boyfriend, said he anticipated Thorp might suspend the trial based on the seriousness of Gambill’s formal allegations of retaliation.
“My client was initially upset when I told him this would likely happen,” Gresham said. “But we understand why UNC would want to deal with these allegations,” he said.
“A prudent university would want to deal with allegations this serious,” he added.
Gresham said Thorp’s decision to postpone the process does not discredit his client’s complaint — and does not violate his rights.
“I think we will get our day in court,” Gresham said. “I don’t see postponing the case as being any major obstacle. If for some reason the University decided to curtail the proceeding, I would very much have a different reaction to the situation,” he said.
“Ms. Gambill is making allegations that there is not any basis for,” Gresham said. “I anticipate that is what the University will find.”
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