Oberlin College is suffering financially and in enrollment after several years of negative publicity regarding racial, gender, anti-Semitic and social justice activism on campus.

I documented that history in September 2017, Radical fallout: Oberlin College enrollment drops, causing financial problems. Those financial and enrollment problems also more recently received attention at Inside Higher Ed.

Since September, the publicity has only grown worse for Oberlin.

It is embroiled in a bitter town-gown battle with a local bakery targeted by Oberlin students, faculty and administrators for alleged racial profiling of three black students arrested for shoplifting. Those arrests led to protests and a boycott against the bakery that continue despite the three students having pleaded guilty.

The bakery has filed a lawsuit against Oberlin and Meredith Raimondo, Vice President and Dean of Students. The lawsuit received national media attention, and I covered Oberlin’s awkward pushback in Oberlin College lashes out at Gibson’s Bakery, portrays itself as victim.

Additionally, an Oberlin professor recently resigned, according to the student newspaper, “amid multiple accusations of sexual misconduct toward students. One such former student has recently filed a Title IX report against him.”

Now there is another problem.

A male student who was expelled from campus in October 2016 for alleged sexual assault has filed a federal lawsuit against Oberlin. Though the lawsuit was filed in June 2017, it has not received any publicity. Yet the lawsuit contains allegations which, if proven, reflect that Oberlin’s system for adjudicating sexual assault accusations was fundamentally biased against males, at least during the 2015-2016 academic year.

This is a problem at other campuses we have covered dozens of times, the so-called kangaroo courts which serve as rubber stamps under pressure from Obama Education Department Office of Civil rights guidance. It’s a pressure that Betsy DeVos is starting to roll back in favor of protecting due process rights of the accused.

The following documents in John Doe v. Oberlin College, filed in the Northern District of Ohio, are referenced below:

Plaintiff’s counsel declined to comment on the lawsuit. Oberlin’s counsel did not respond to a request to comment.

The Encounter

The details of the sexual encounter and recriminations are all too familiar to anyone who has read the complaints being filed around the country regarding higher education sexual assault adjudications.

According to the Complaint, the encounter started as consensual by everyone’s account, including sexual intercourse. There were text messages and other evidence that at least at the start, both parties were on board. At some point, the female asked for intercourse to stop because she was experiencing physical discomfort from the intercourse, and the male stopped. At that point the male requested that the female perform oral sex on him, and she did.

The alleged violation of the campus code took place only on the issue of consent to oral sex, not the preceding intercourse and other sexual relatoins. Just prior performing oral sex, the female made a comment that she was “not sober.” That comment would become the central issue as to whether the female was “incapacitated” (and therefore unable to give true consent) under the Oberlin code and whether the male reasonably should have known that.

As in so many cases, the allegation of sexual assault was not made immediately, but only after a period of time. There was no claim of use of force during the female’s initial interactions with friends or interview with an investigator. At the hearing that would change, and she alleged the use of force to push her head down during oral sex.

From the Complaint, the encounter was in the early morning of February 28, 2015, and when it was over:

73. ….Mr. Doe and Ms. Roe then engaged in friendly small talk as they lay on his bed, after which Ms. Roe got dressed, collected her things, and left.

74. On March 9, 2016, Ms. Roe went to Meredith Raimondo and reported Mr. Doe for sexual assault….

109. Jane Roe told the investigator that, after leaving Mr. Doe’s room, she went to the room of a friend in the same dorm. Ms. Roe did not tell that friend that she had been assaulted. By her own testimony, she remembered telling that friend only that she was emotional and had had sex with Mr. Doe.

110. That friend testified that she received a text from Ms. Roe at about 3:00 a.m. and that Ms. Roe came to her room soon afterwards. The friend confirmed to the investigator that Ms. Roe never told her that Mr. Doe had assaulted her. She also confirmed that Ms. Doe exhibited no obvious outward signs of incapacitation, but rather seemed “intoxicated” to her, something she based only on her previous experience with Ms. Roe.

111. Specifically, this friend testified that Ms. Roe came to her room and expressed regret that she had chosen to hook up with Mr. Doe. In her words, Ms. Roe told her, “I can’t believe I was with [Mr. Doe]” and said she was “disappointed and upset that she had done something.” The friend explained to the investigator that she knew Ms. Roe had “hooked up” with Mr. Doe before and that it had been a “non-emotional connection.”

113. As the investigative report reveals, Ms. Roe would gradually increase the severity of her allegations as she retold the events of that night over the next several days. On Monday, February 29, Roe spoke to another friend about her night with Mr. Doe. She stated that she “had engaged in sexual activity with [Mr. Doe]” and that she “felt” she was “too intoxicated to consent.” This second friend did not testify that Ms. Roe claimed that Mr. Doe used any kind of force or that he pushed her head down as she performed oral sex on him. She also did not report that Ms. Roe conveyed to her any outward indications that would have indicated her level of intoxication to Mr. Doe.

Here are some excerpts from the Complaint framing the legal context of the encounter in terms of consent:

6. …. The panel concluded that, when John Doe asked Jane Roe to perform oral sex on him late one night, she was too intoxicated to consent, and John Doe should have known that. Yet Oberlin, like most every school in the country, does not punish all, or even most, drunken sex. Under Oberlin’s Sexual Misconduct Policy (the “Policy”), intoxication negates consent only when it reaches a level of “incapacitation,” which the Policy defines as a state “where an individual cannot make an informed and rational decision,” is “physically helpless” or lacks “awareness of consequences.” Policy at 20-21….

7. John Doe’s panel pointed to just a single piece of evidence to support its conclusion that Jane Roe was incapacitated—not tipsy, not just drunk, but incapacitated—when John Doe asked her to perform oral sex on him: Roe’s simple statement, “I am not sober,” which she made a minute before John Doe’s request….

8. Yet that statement, standing alone, does not mean its speaker is incapacitated….

9. But that statement did not occur in a vacuum. It occurred after (1) Jane Roe texted with John Doe for over 30 minutes setting up the encounter, asking if she could come to his place, all the while making just a single typo; (2) she walked to his dorm room unaided; and (3) they engaged in 45 minutes of talking, kissing, and vaginal intercourse—during which time, by Roe’s own admission, there were no external signs of her intoxication. After all of that, the panel concluded that her bare statement, “I am not sober,” should have conveyed to John Doe that Jane Roe was so drunk that she didn’t know what she was doing and wasn’t in control of herself.

100% Conviction Rate

The Complaint then goes on to put the accusation against the male student in the context of a campus campaign against “rape culture” and driven by feminist ideology:

11. But on another level, that decision unfortunately comes as no surprise at all: Jane Roe was a female student accusing a male student of sexual assault at Oberlin College. And Oberlin’s regime for investigating and adjudicating claims of sexual misconduct is rife with gender bias. In the words of Meredith Raimondo, one of the Policy’s architects and its chief implementer, it was designed to be a “survivor-centered process” and is inspired by her views on feminism. Its goal, she has said, is to eliminate “rape culture,” an undefined term whose chief characteristic at Oberlin—as evidenced by faculty resource guides, Oberlin’s Counseling Center, student opinion leaders, and at least some of its Title IX adjudicators—is an unwavering commitment to treat sexual assault allegations as true, even in the face of serious doubts.

12. And that is exactly what Oberlin has done: According to its Spring 2016 Campus Climate Report, it had found every single sexual assault respondent who went through its formal resolution process during that academic year responsible on at least one charge.

13. Jane Roe levied her allegations against John Doe the same semester that report came out. It was all but inevitable that John Doe would be found responsible. The fact that the panel could find John Doe responsible only by flaunting its clear definition of “incapacitation” and ignoring the obvious problems with Jane Roe’s credibility proves that other forces were at work. John Doe was found responsible, and expelled, because the same gender bias that motivated the drafting of the Policy and its implementation on campus demanded it.

The reference in the Complaint to adjudication comes from Oberlin’s own Spring 2016 Campus Climate Report, every case that went to a formal disciplinary process resulted in at least a partial finding of responsibility (emphasis added):

“The Title IX Team has received and reviewed over 100 reports of potential sex-based discrimination and harassment thus far in 2015–16. Consistent with past semesters, the most commonly reported concerns include sexual harassment, sexual assault, and/or intimate partner violence between students. Most parties making reports ask for various remedies but also request that the College take no disciplinary action against nor inform the responding party about the report, which the College honors to the extent that it is possible to maintain a safe and equitable learning and working environment. About 20 percent of all reports in 2015–16 were referred to full investigation, and if appropriate, formal investigation. The threshold to move to formal process was met in around half of investigations where the responding party was subject to a College process (some investigations relate to allegations made about individuals who have graduated, left employment with the College, or cannot be identified). When the threshold [to move to formal process] was met, findings of responsibility on all charges occurred in 70 percent of processes. In the remaining processes, the responding party was found responsible for some but not all of the conduct charges….”

The Complaint also details how federal pressure from the Obama administration Dept.of Education Office of Civil Rights contributed to the atmosphere fostering guilty findings:

48. Oberlin’s efforts to overhaul its sexual misconduct policy and procedures, by creating a complainant-centered process designed to combat “rape culture,” did not save Oberlin from public scrutiny of its handling of sexual misconduct claims. On November 24, 2015—just three months before the incident at the center of this lawsuit—Oberlin was notified that it was being investigated by the Education Department’s Office for Civil Rights (OCR) to determine whether it had violated Title IX in a recent sexual assault disciplinary proceeding.18 That investigation, OCR has explained, is not limited to the particular complaint that occasioned it, but is “a systemic investigation of the College’s policies, procedures, and practices with respect to its sexual harassment and sexual assault complaint process.”19 Oberlin’s status as a target of investigation was made freely available by OCR and was the focus of local media attention20 and it brought the College under intense scrutiny by OCR at the very time the College would investigate Jane Roe’s complaint.

51. The OCR investigation initiated at Oberlin in November 2015 brought Oberlin under the intense scrutiny of an Education Department that the college knew was primarily concerned with eradicating the perpetration of sexual violence by men against women. Oberlin knew that failing to appear to OCR during this investigation to be tough on sexual assault alleged by women against men risked substantial negative publicity and a loss of federal funding.

This 100% conviction rate is a central factual and legal allegation in the Complaint (emphasis in original):

54. And in every single case sent through the formal process, the respondent was found responsible on at least one charge:

When the threshold was met [for formal resolution], findings of responsibility on all charges occurred in 70 percent of processes. In the remaining processes, the responding party was found responsible for some but not all of the conduct charges.29

Oberlin, consistent with the “anti-rape culture” ethos instilled by the 2014 Policy, and distilled so purely by the school newspaper’s Editorial Board and the school’s Counseling Center, literally never told a complaining student, at the end of an adjudication process, “We don’t believe you.” The Oberlin employees who preside over hearings, and who judge appeals, have quite literally credited, at least partially, the allegations of every single student who came before them in the 2015-16 academic year, as of the date of this report.

55. Upon information and belief, the vast majority of the Oberlin students who bring sexual misconduct complaints are women, and the vast majority of the Oberlin students accused of sexual misconduct are men….

“Consent” Key to Finding of Responsibility

John Doe was found guilty and expelled from campus on the finding that Jane Roe did not give effective consent to oral sex due to intoxication and that John Doe was on notice from the point she said she was “not sober”:

148. On October 11, 2016, Oberlin issued a decision letter notifying the parties of the outcome of the hearing. It found Mr. Doe responsible for sexual misconduct because “the preponderance of the evidence established that effective consent was not maintained for the entire sexual encounter that occurred on February 28, 2016.”

149. As that language suggests, the panel did not conclude that consent was absent for the entire encounter.

150. Rather, the panel found there was not “effective consent” for the oral sex Ms. Roe performed on Mr. Doe.

151. It concluded that, after Ms. Roe told Mr. Doe she was “not sober,” he should have known she was incapacitated—not merely intoxicated, not just drunk, but incapacitated.

152. From that moment on, “the Reporting Party was incapacitated and not capable of giving effective consent when asked to perform oral sex.”

153. Based on that statement, and “the corroborating statements of” her friends about her intoxicated state, Ms. Roe “was incapacitated and not capable of giving consent when asked to perform oral sex.”

Many more details of the testimony and evidence were set forth in the Complaint.

Several causes of action were asserted including (Count I) Breach of Contract for violating Oberlin’s own contractual promises as to the handling sexual assault complaints; (Count II) Breach of the Covenant of Good Faith and Fair Dealing; (Count III) Violation of Title IX (20 U.S.C. § 1681); (Count IV) Negligence; and (Count V – Subsequently withdrawn) Negligent Infliction of Emotional Distress.

Motion to Dismiss

Oberlin has filed a Motion to Dismiss. The standard on a motion to dismiss is that the moving party (Oberlin) argues that even if the “well-pleaded” facts alleged are true, there is no legal claim upon which relief can be granted.

A motion to dismiss is not the place to dispute the facts; to the contrary, the moving party and the court must accept the facts alleged (but not the conclusions or speculation) as true and draw reasonable inferences in favor of the plaintiff. Indeed, Oberlin states in the first footnote to it’s Memorandum of Law:

1. While Oberlin strongly disagrees with many of the facts asserted by Plaintiff in his Complaint, for purposes of this Motion only, Oberlin accepts the truth of Plaintiff’s well-pleaded allegations.

Thus, we don’t really get a sense from the Motion to Dismiss which of the facts will be disputed.

But here is a summary from Oberlin’s Memorandum of Law setting forth the legal reasons Oberlin says there is no legal case:

STATEMENT OF ISSUES

I. Does Plaintiff John Doe state a claim for a violation of Title IX, 20 U.S.C. § 1681, when Plaintiff does not demonstrate that Defendant Oberlin College’s challenged conduct was motivated by sex-based discrimination?

II. Does Plaintiff state a claim for breach of contract against Oberlin for expelling Plaintiff after he was found to be responsible for committing sexual assault in accordance with Oberlin’s sexual misconduct policy when Oberlin fairly administered its policy?

III. Does Plaintiff state a claim for breach of the covenant of good faith and fair dealing when such a claim is not cognizable under Ohio law?

IV. Does Plaintiff state a claim for negligence when Oberlin’s only duties to Plaintiff are set forth in its written policies and sound in contract?

V. Does Plaintiff state a claim for negligent infliction of emotional distress when he does not allege that he was in danger of suffering physical harm?

The Motion to Dismiss focuses very heavily on the process, and how Oberlin’s process was sufficient, regardless of whether the result was correct. It is not for the Courts, Oberlin argues, to substitute their own judgment for those of the Oberlin adjudicators:

Plaintiff’s Complaint asks the Court to disregard this instruction and re-adjudicate private, internal administrative disciplinary processes, the result with which Plaintiff disagrees. In short, Plaintiff wants this Court to act as a policy maker and substitute its judgment for that of Oberlin. Courts, including those in this District, consistently refuse to assume this role. This Court should do the same and dismiss Plaintiff’s Complaint in its entirety. [pg. 6]

The Motion disputes that an alleged culture of pressure on sexual assault cases gives rise to a legal claim, and disputes that plaintiff has alleged enough facts to prove discrimination on the basis of sex, regardless of the statistics on conviction rate:

Plaintiff offers no allegations that, if believed, would demonstrate that Oberlin would have approached the sexual assault report at issue any differently if a female student, rather than Plaintiff, had been accused of sexual misconduct. [pg. 13]

Of interest, Oberlin defends its use of the “preponderance of the evidence standard”:

Plaintiff claims that Oberlin failed to apply the preponderance of the evidence standard because the Hearing Panel did not have sufficient evidence to find him responsible for sexual assault. See e.g., Compl. ¶ 182. To find a student responsible for sexual misconduct under the preponderance of the evidence standard, the Hearing Panel needed to decide only whether it is “more likely than not” that Plaintiff was “responsible for the alleged violation.” Policy, at 46.12 ….

Even Plaintiff’s one-sided account of Oberlin’s investigation and adjudication of Ms. Roe’s sexual misconduct report identifies a host of evidence from which the Hearing Panel could—and did—conclude that it is “more likely than not” that Plaintiff violated the Policy. See e.g., Compl. ¶¶ 121-124. ….

In a footnote Oberlin notes is was required to use that standard:

12 Notably, the DOE mandates that colleges and universities use the preponderance of the evidence standard of proof in disciplinary proceedings for alleged sexual misconduct. Pierre v. Univ. of Dayton, No. 15-cv-362, 2017 WL 1134510, at *8 (S.D. Ohio Mar. 27, 2017) (citing Russlynn Ali, Dear Colleague Letter, U.S. Dept. of Educ. at 11 (Apr. 4, 2011), available at https://www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201104.html.)

You can read the Opposition to the Motion to Dismiss in which, not surprisingly, plaintiff disputes many of the legal arguments made by Oberlin.

STATEMENT OF THE ISSUES

1. Whether Oberlin breached its contract with John Doe when (among other things) it concluded, based solely on Jane Roe’s statement, “I am not sober right now,” that he should have concluded she was “incapacitated”—which Oberlin defines as being so
“extremely drunk or extremely high” that she was “unable to control [her] body or no longer understand[] who [she was] with or what [she was] doing.”

2. Whether the following facts, among others, support a “minimal plausible inference of gender bias” when all reasonable inferences are drawn in their favor:

• That the chief architect of Oberlin’s Sexual Misconduct Policy (the “Policy”), Meredith Raimondo, has stated that she implements it “as a feminist committed to survivor-centered processes.”
• That Oberlin had come under “systemic investigation” by the Education Department’s Office for Civil Rights (“OCR”) for its handling of sexual assault just three months before Doe was charged.
• That Oberlin found every accused student put through its formal resolution process, all or most of whom were male, responsible for sexual misconduct in that same academic year.
• That Oberlin assigned Doe an advisor who would later retweet, just two weeks after Doe’s hearing: “To survivors everywhere, we believe you.”

3. Whether it is foreseeable that private colleges will have to discipline their students and that doing so carries significant consequences to them, such that they owe their students a common law duty of care in doing so.

4. Whether Oberlin adopted an unreasonable interpretation of its Policy in denying Doe’s appeal of the severity of his sanction.

Innocence Lost?

Oberlin’s Reply in support of the motion to dismiss counters the Opposition on points of law, but has this very curious and significant statement:

Plaintiff’s claims of innocence, however, are insufficient to survive Oberlin’s motion to dismiss when Plaintiff has failed to allege any facts upon which a reasonable fact finder could conclude that he was treated differently because of his gender…. Plaintiff was found responsible for engaging in sexual contact when it should have been clear that the other person was too intoxicated to consent. The central issue in regard to Plaintiff’s Title IX claim is whether Oberlin’s decision to find him responsible for violating its Policy resulted in a flawed outcome because of gender bias. The issue is not whether Plaintiff can point to evidence that supports his belief that he did not violate the Policy. [pg. 1]

And that’s the heart of Oberlin’s defense. Even if “John Doe” was innocent of the charge, Oberlin and other colleges in that situation argue that the male student shouldn’t be vindicated in court.

It may be successful, we’ll find out when the court rules.

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John Doe v Oberlin – Complaint by Legal Insurrection on Scribd