A University of Louisville professor found by the university to have committed a sexual harassment violation against a student must be temporarily reinstated and allowed to question his accuser, a federal district judge ruled late last month.
While UofL fights the ruling, the professor’s attorneys told Insider Louisville they think his suit could impact how universities investigate sexual misconduct claims.
Chris Frost, a tenure-track biology professor, had been banned from campus since January after UofL determined he violated the school’s sexual harassment policy through an internal investigation, court documents show.
He was beginning to fight the decision when Arts and Sciences Dean Kimberly Kempf-Leonard barred him from campus and placed him on paid leave, according to court documents.
In a Jan. 28 letter, Kempf-Leonard recommended his termination at the end of June for “neglect of or refusal to perform [your] duty and/or immoral conduct.” She outlined three reasons for his dismissal: Hosting a party with alcohol available for students he knew or should have known were underage, providing alcohol to an underage student and “engaging in unwelcome, inappropriate physical conduct toward a student.”
Frost’s attorneys said in an interview his due process rights were violated during the employee relations investigation that sparked the termination. A letter to UofL was unsuccessful, so they sued in federal court in late March, asking for injunctions to reinstate him, clear his record and allow him to return to campus.
The suit names UofL, the two employees who investigated him for harassment and Kempf-Leonard.
A judge granted a temporary injunction in late May allowing Frost to return to UofL for now. Mary Eade, one of his attorneys, said Frost is “highly likely to succeed” in being permanently reinstated if the suit continues.
UofL appealed the court’s decision to the U.S. Court of Appeals for the Sixth Circuit. And on June 7, UofL filed a motion with the district court asking it to stay its injunction while the university appeals. UofL asserts faculty and students will be “irreparably harmed” if Frost is allowed to return to campus in its motion.
Colleges are obligated to create a “hostile-free learning environment,” and allowing Frost to be reinstated would likely cause sexual assault survivors to question whether UofL takes those complaints seriously, according to its filing.
UofL asserts Frost admitted to everything outlined in Kempf-Leonard’s termination letter — providing a student with alcohol and touching her when she was intoxicated. As such, his firing was based on his admissions and not solely on the outcome of the investigation, UofL says in its court filings.
UofL, per policy, does not comment on pending litigation outside of public court documents.
Eade and Frost’s other lead counsel, Gregg Hovious, would like to see UofL change its policy around investigating sexual misconduct. A court ruling could also have a “wide-ranging effect,” potentially establishing the precedent for other universities to do the same, they said.
Frost did not receive adequate notice of the allegations against him or who the witnesses were, his lawyers said. His due process rights were allegedly violated when he wasn’t allowed to cross-examine his accuser, the suit says.
UofL disagrees, saying they gave adequate notice of the allegations and gave him all process due under the law.
People accused of sexual misconduct should be allowed to cross-examine their accusers and witnesses, Frost’s lawyers contend. In situations like Frost’s — a “credibility contest” in which it is the accuser’s word versus the accused’s — cross-examination is the best way to “uncover the truth,” Eade said.
Sexual assault survivors and advocates tend to be against cross-examination because of its potential for re-traumatizing the victim. Eade said accusers would also be able to cross-examine, benefitting both sides.
“But these are serious allegations, capable of ruining the career of a faculty member,” she said.
Before the complaint against him, Frost appeared to advocate for fewer rights for those accused of sexual assault and harassment — not more.
In a September 2018 Facebook post — made halfway between the incident and when it was reported, and at the height of Brett Kavanaugh’s confirmation process — Frost wrote that men “just don’t get it.”
Sexual assault destroys victims’ lives, he wrote, and perpetrators are “just fine.”
“I’m actually okay with the notion of putting the shoe on the other foot for a while,” Frost wrote in the post obtained by Insider. “Why not presume guilt for accusations of sexual assault? Let’s let the perpetrators sweat out having their lives destroyed.”
When asked about the post, his lawyers said the post was based on the idea that Christine Blasey Ford, who accused Kavanaugh of sexual assault, was telling the truth.
“He also made the statement because he knows who he is. He is not a sexual harasser,” Eade wrote in an email to Insider. “As well, he made the statement before he was falsely accused and before he understood the ramifications of the public sentiment he had echoed. He no longer adheres to that statement.”
The January investigation report found Frost violated the school’s sexual harassment policy when he, a faculty member in charge of a biology lab, touched an underage student who drank too much at a party at his house.
Frost admitted to campus investigators he had a party with alcohol and touched a student, but recounts the incident as comforting a sick student and holding back her hair.
“He acted pursuant to a well known social contract of not allowing a woman to vomit into her hair and trying to help her nausea,” Eade said in an email, adding Frost did not sexually harass the student.
Jane Doe, a junior biology student, told campus investigators he rubbed her upper and lower back, plus pulled at her belt loops while she was intoxicated. She told others she thought he meant to get her drunk, according to the investigation report included in the lawsuit.
In July 2018, Frost invited students and faculty to his home for a summer potluck. Many of the students worked in Frost’s biology lab; a few, like Doe, were other students in the biology department. Guests could bring their own alcohol — Frost brought a six-pack of beer, according to court documents.
It is unclear whether Frost knew Doe was underage, but Kempf-Leonard wrote in his termination letter that he should have known.
Doe told campus investigators he offered her alcohol — first beer, later bourbon. Social gatherings, including ones with alcohol, are normal in academia, the suit says.
After drinking some at the party, Doe told friends she was going to stay at Frost’s alone for a bit to “sober up,” according to court documents. Frost then gave her bourbon, although the two’s statements differ on who poured what, who said what and who sat where.
According to court documents, Doe said she was sitting in a chair for one person when Frost tried to sit beside her. Frost said they sat across from each other the entire time, barring a hug he gave her for “emotional support.”
Soon after, she became sick, throwing up in the bathroom, both parties told campus investigators, the documents said. Doe said Frost began rubbing her back, including her lower back under her shirt, and pulling at her belt loops. Frost said he rubbed only her upper back and held her hair, and that her safety was his main concern.
Months later, Doe filed a complaint to UofL’s employee relations department, alleging unwanted, inappropriate physical contact. Then, two human resources employees began investigating, looking for evidence and talking to witnesses and Frost.
Six witnesses, including two who attended the party, corroborated her story in some way, according to court documents. Some said Doe had thought Frost was trying to get her drunk at the party. Others said she told them about the incident after it happened, saying he had touched her under her shirt and made her uncomfortable.
Of those six, all were female. Five were familiar with Frost. One also reported to campus investigators feeling uncomfortable around him, according to the investigation report.
Campus investigators determined Frost’s behavior was “unwelcome and unwanted,” and that Doe considered it “undesired and uncomfortable.”
Investigators found some of Doe’s and Frost’s claims could not be substantiated, but found enough admitted from both parties to reach a conclusion.
“To the extent of Dr. Frost’s behavior was unsolicited and unwanted, the reviewers conclude, based on a preponderance of the evidence, that a violation of the University’s Sexual Harassment Policy occurred,” the investigative report said.
In their motion for a stay, filed on June 7, UofL says students have already contacted the university to say they are uncomfortable working with Frost. UofL temporarily altered some students’ schedules to avoid working with Frost, the filing said.
UofL says they have allowed Frost to return to campus for various reasons when he requested it over the past semester. They’re comfortable continuing this set-up, they wrote. Frost has been on campus at least once since the May ruling, his attorneys said.
He does not teach summer classes, UofL’s response says, and is not scheduled to teach in the fall. Frost’s attorneys dispute that, saying he has been asked to teach two large undergraduate courses next semester. UofL’s course schedule does not show Frost as a professor for any biology courses.
Additionally, UofL fears the decision to allow Frost on campus will have a “chilling effect” with those who have been sexually assaulted or harassed.
“Students may never make complaints of sexual harassment against a faculty or staff member knowing they will be subject to rigorous cross-examination by their harassers,” UofL argues. “This potentially puts professors – who are inherently in a position of power – into a position where they can intimidate and threaten students further.”
The process to investigate sexual harassment reports differs between student versus student allegations and those against faculty. In Frost’s case, two employee relations employees handled the entire investigation, including writing the final recommendation.
One of Frost’s attorneys said the process is “vulnerable to bias, perhaps vulnerable to gender bias.” Both investigators in Frost’s case were female, the attorney noted. UofL’s report lacked “objective evidence,” the suit asserts.
In UofL’s Title IX process, which handles student-to-student allegations, live hearings are required. Witnesses can be cross-examined, as can accusers with their permission. A tribunal then decides if a violation occurred.
Last year, a Sixth Circuit Court decision ruled that universities must allow cross-examination, but the ruling applies to student cases. Frost’s attorneys said that ruling should also apply to cases involving faculty.
In November, UofL was in the process of changing their Title IX hearing procedure to include cross-examination to comply with the court ruling. When asked in June for an update on that process and to broadly discuss the difference in the two investigation processes, a UofL spokesman referred Insider to its sexual harassment policy.
UofL defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Investigators have to prove, through evidence and interviews compiled into a written report, a preponderance of evidence — that the incident more likely than not happened as described.
Frost’s due process rights were put at risk due to the investigation and its results, the suit asserts. He cannot be fired without cause, his lawyers said, citing university policy. UofL disagrees: Since Frost is tenure-track, but not tenured, he can be fired without cause.
Most of the charges brought in the suit fall under the 14th Amendment, which requires due process under the law. Frost asks for a trial and unspecified damages.