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The Other Oberlin College Case – Expelled “John Doe” Appeal Involving 100 Percent Conviction Rate

The Other Oberlin College Case – Expelled “John Doe” Appeal Involving 100 Percent Conviction Rate

Appellant John Doe: “And in that same time period, from August 2015 through February 2016, Oberlin convicted 100% of the respondents it sent through its formal resolution process, the vast majority of whom, if not all, were men”

While everyone has been focused on Gibson’s Bakery v. Oberlin College, it’s worth revisiting another lawsuit against Oberlin College which we have extensively covered but it below the media radar. Once again, the alleged conduct of then Title IX Coordinator, now Dean of Students, Meredith Raimondo was part of the case.

In John Doe v. Oberlin College, an expelled male student who had been found responsible for sexual assault in a campus disciplinary hearing sued, alleging a seriously flawed hearing process as well as discrimination on the basis of sex because the process allegedly was biased against men. We covered the allegations, and the motion to dismiss filed by Oberlin, in Lawsuit: Oberlin College sexual assault hearing process rigged, 100% conviction rate:

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:

The facts alleged were pretty gruesome at many levels, involving as so many of these cases do, two drunk students. The dispute and the hearing turned on whether the female student was deemed “incapacitated” under Oberlin policy. In that prior post I described the allegations:

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.

The lawsuit was dismissed even though the student demonstrated a likelihood the disciplinary decision was wrong, for reasons discussed in my post, Male student lawsuit against Oberlin College dismissed despite possibly flawed sexual assault disciplinary decision:

In the Order (pdf.)…, the Court ruled that plaintiff, though having cast doubt on the correctness of the disciplinary panel ruling against him, had failed to allege facts showing such error was due to discrimination against men. Accordingly, the Court dismissed the federal claims with prejudice, but dismissed related state law claims (which might not require such a causal connection to sex discrimination) without prejudice. That means that John Doe can bring the state law claims in state court (and of course, can appeal the dismissal to the 6th Circuit Court of Appeals.).

Here is the key portion of the Order on the correctness of the disciplinary panel ruling:

With respect to the first prong of the erroneous outcome standard, the court, drawing all reasonable inferences in favor of Plaintiff, finds that his accusations create “some articulable doubt” as to the accuracy of the hearing board’s decision in the present case. Here, Plaintiff points to the length of the investigation in this case (120 days) as being excessive and without explanation. Oberlin’s Policy states that investigations typically will be completed within twenty days. Plaintiff further argues that third-party testimony from Jane’s friends present that night indicates that there were no outward signs of Jane’s intoxication that a stranger could recognize. Plaintiff also alleges there are inconsistencies between Jane’s Investigation Testimony and her Hearing Testimony regarding the circumstances surrounding the oral sex. In the investigative interview, Jane stated that Plaintiff asked her to perform oral sex. However, in the hearing, Jane testified that Plaintiff grabbed her neck and forced her to perform oral sex. Plaintiff maintains that the hearing board based its entire decision on a single piece of evidence to support their conclusion that Jane was incapacitated, her statement that “I am not sober.” In addition, Plaintiff also alleges that the hearing board improperly applied its own definition of incapacitation outlined in the Policy. The only issue here is whether Plaintiff has met his pleading burden, and these allegations indicate that he has. See Doe v. Univ., of Cincinnati, No. 1:16CV987, 2018 WL1521631, at *5 (S.D. Ohio Mar. 28, 2018) (finding that the plaintiff pleaded sufficient facts to cast articulable doubt where he was not allowed to confront and question Roe through the panel which would have undoubtedly aided the truth-seeking process and reduced the likelihood of an erroneous deprivation); Miami Univ., 882 F.3d at 592 (same where the plaintiff alleged unresolved inconsistency in Roe’s statement, unexplained discrepancy in hearing panel’s finding of fact, and alleged use of an erroneous definition of consent).

The Court, however, found insufficient allegations of a causal connection to sex discrimination:

With respect to the second prong of the erroneous outcome standard, the court finds that Plaintiff has not alleged facts showing “a ‘particularized…causal connection between the flawed outcome and gender bias.’” Miami Univ., 882 F. 3d at 593 (citing Cummins,  62 Fed. App’x. at 452 (quoting Yusuf, 35 F.3d at 715.)) The Sixth Circuit explains that, “[s]uch allegations might include, inter alia, statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making that also tend to show the influence of gender.” Miami Univ., 882 F.3d at 594 (quoting Yusuf, 35 F.3d at 715). In an effort to show this particularized causal connection, Plaintiff asserts: (1) gender bias pervades the entire adjudication process, illustrated in part by comments made by Dr. Raimondo, (2) Campus Climate Statistics for 2015–2016 show gender bias, and (3) the Dear Colleague Letter and the OCR Investigation created an environment ripe for such gender bias. The court finds that, taken together, these assertions are insufficient to meet Plaintiff’s pleading burden.

… This case show how hard it is to prevail even when the correctness of the underlying disciplinary decision is in doubt. That is why having a fair process with due process protections is so important. There is no assurance that a bad college disciplinary decision that ruins the life of an innocent accused will be reversed by the courts.

The case now is on appeal to the 6th Circuit Court of Appeals, and is fully briefed. Here are the briefs (embedded at bottom of post also):

Here’s how John Doe frames the issues for appeal in his Brief:

1. Did the district court err in concluding that Mr. Doe failed to plead facts supporting a plausible inference that his expulsion from Oberlin College was motivated in part by gender bias, as required to state an “erroneous outcome” claim under 20 U.S.C. § 1681(a) (commonly referred to as Title IX)?

2. Did the district court, after refusing to exercise supplemental jurisdiction over Mr. Doe’s state law claims, err in dismissing Mr. Doe’s state law claims where Mr. Doe separately pled diversity jurisdiction?

Here are excerpts from John Doe’s Summary of Argument:

The district court fundamentally erred in concluding that Mr. Doe failed adequately to plead that his expulsion by Oberlin was motivated by gender bias. Mr. Doe pled evidence of gender bias from multiple significant sources, evidence that exceeds what this Court found sufficient in its two published decisions on the matter, Doe v. Miami University, 882 F.3d 579 (6th Cir. 2018), and Doe v. Baum.

He pled that Oberlin, at the very time it was drafting and first implementing the Policy, was under nationwide pressure from OCR to zealously prosecute claims of sexual assault brought by women against men or risk the loss of its federal funding, RE 21-2, Amended Complaint, PageID #484-85, ¶ 49-50, evidence that the Miami University court found probative of gender bias, 882 F.3d at 594. Then in November of 2015, just four months before Mr. Doe would be charged, OCR targeted that pressure directly upon Oberlin, initiating a “systemic investigation” into Oberlin’s Title IX enforcement regime that remained open throughout the entirety of Mr. Doe’s disciplinary proceeding, RE 21-2, Amended Complaint, PageID #483-84, ¶ 48, evidence even more probative of gender bias given its intensity. See Baum, 903 F.3d at 586; Doe v. Cummins, 662 Fed. Appx. 437, 453 (6th Cir. 2016) (targeted pressure from OCR investigation more probative of gender bias than nationwide pressure). And in that same time period, from August 2015 through February 2016, Oberlin convicted 100% of the respondents it sent through its formal resolution process, the vast majority of whom, if not all, were men, RE 21-2, Amended Complaint, PageID #486-87, ¶¶ 54-55,—further powerful evidence of gender bias. Miami Univ., 882 F.3d at 593.

But most importantly of all, less than a year before she charged Mr. Doe, Meredith Raimondo, who spearheaded the drafting of Oberlin’s Sexual Misconduct Policy, oversaw its implementation, and trained Mr. Doe’s hearing panelists on how to evaluate consent and incapacitation, openly stated that she “come[s] to this work as a feminist committed to survivor-centered processes,” and furthermore that gender considerations affect the way she thinks about consent in “grey area” cases like Mr. Doe’s that do not involve the most extreme kinds of allegations. RE 21-2, Amended Complaint, PageID #488, ¶ 59. Mr. Doe’s expulsion, when there was no evidence showing how he could have known that Ms. Roe was incapacitated, is exactly the result one would expect when a hearing panel is trained to evaluate consent and incapacitation informed by gender bias.

Taken together, that is powerful evidence of gender bias, and it is evidence the district court largely failed to address….

Oberlin College, in its Brief, reframes the issues on the appeal as follows:

The first issue presented by this appeal is whether the District Court properly dismissed Plaintiff-Appellant John Doe’s erroneous outcome Title IX claim where the Amended Complaint failed to allege any operative facts to support his speculative and conclusory assertions that the outcome of his disciplinary proceedings was caused by a bias against his male gender.

The second issue presented by this appeal is whether the District Court erred by declining to exercise supplemental jurisdiction over Mr. Doe’s breach of contract and negligence claims under Ohio law and by dismissing those claims without prejudice when Mr. Doe pled both federal question and diversity jurisdiction.

Here are excerpts from Oberlin College’s Summary of Argument:

After an extensive investigation and a full hearing, Oberlin found that Mr. Doe sexually assaulted Ms. Roe in the early morning hours of February 28, 2016, in violation of Oberlin’s Policy. Oberlin expelled Mr. Doe due to his misconduct. Mr. Doe has sought to improperly litigate the findings against him by alleging that the outcome of his disciplinary proceedings was caused by a bias against his male gender, in violation of Title IX, 20 U.S.C. § 1681. As a general rule, “‘courts should refrain from second-guessing the disciplinary decisions made by school administrators.’” Doe v. College of Wooster, 243 F.Supp.3d 875, 885 (N.D. Ohio 2017)(quoting Davis v. Monroe Cnty. BOE, 526 U.S. 629, 648 (1999)). As this Court well knows, colleges and universities have come under fire for both failing to respond to allegations of sexual assault aggressively enough and, as in this lawsuit, for enforcing their own policies consistent with federal mandates. Accordingly, courts, including this one, recognize that “school-disciplinary committees are entitled to a presumption of impartiality, absent a showing of actual bias.” Doe v. Cummins, 662 Fed.Appx. 437, 449 (6th Cir. 2016) (citation omitted).

In this case, Mr. Doe claims that his disciplinary process, based in part on the findings of fact by an outside legal expert who served as a neutral investigator, and the decision by the hearing panel to find him responsible for violating Oberlin’s Policy, was clearly erroneous. The District Court correctly determined that Mr. Doe’s claims of innocence were insufficient to survive Oberlin’s motion to dismiss when Mr. Doe failed to allege any facts that plausibly demonstrated Oberlin found him responsible due to gender bias.

Mr. Doe was found responsible for engaging in sexual contact when it should have been clear that the other person was too intoxicated to consent. The issue is not whether Mr. Doe can point to evidence that supports his belief that, under the preponderance of the evidence standard, he did not violate the Policy. The central issue in regard to Mr. Doe’s Title IX claim is whether he has plead sufficient allegations to raise a plausible inference that Oberlin’s decision to find him responsible for violating its Policy resulted in a flawed outcome due to gender bias.

In his Reply Brief, John Doe focused heavily on Raimondo’s alleged conduct:

If Oberlin had its way, schools would literally be able to discriminate openly, with impunity, so long as they masked their bias in any particular proceeding or refrained from discriminating in every single case. Under Oberlin’s theory, a plaintiff’s case should be dismissed even if a school’s president, or Dean of Students, or Title IX Coordinator openly declared that its facially neutral sexual misconduct policy would be applied in a discriminatory manner, so long as no one said anything exhibiting bias in a given proceeding. Schools could openly instruct adjudicators to rule against every male, or to apply heightened standards to them, and those who are punished would have no recourse so long as no administrator in the proceeding said anything overtly biased….

Raimondo’s declaration that gender considerations affect her views on consent in grey area cases cannot be evidence of gender bias simply because she leaves open the possibility that not all respondents will be convicted…. Here, the link between gender bias
outside the proceeding and individual adjudications is straightforward: Ms. Raimondo has gendered views on how to analyze consent, and she trained everyone at Oberlin on how to analyze incapacitation and consent. That is a direct line into the adjudicators’ decisionmaking here, and her bias need only have plausibly affected the decision in part.

The evidence of gender bias within Mr. Doe’s proceeding is just as straightforward: Mr. Doe’s panel analyzed incapacitation and consent in ways not explainable by the evidence. That not only is evidence of bias on its own, it also shows just how plausible it is to infer that Ms. Raimondo’s biased views informed Oberlin’s training. That conclusion is only confirmed by the 100% conviction rate she presided over and the fact that she did so against the backdrop of so much government pressure. The Amended Complaint, for all of those reasons, overwhelmingly states an erroneous outcome claim.

It’s not clear if or when this will be argued. Most likely a decision will come early next year.

This is a case that potentially has broader implications for students than the Gibson’s Bakery case. But like the Gibson’s Bakery case, few people other than us are paying attention — but they will pay attention if the appeals court reverses.

[Featured Image Photo credit: Legal Insurrection Foundation]

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John Doe v. Oberlin College – 6th Cir – John Doe Brief by Legal Insurrection on Scribd

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John Doe v. Oberlin College – 6th Cir – Oberlin College Brief by Legal Insurrection on Scribd

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John Doe v. Oberlin College – 6th Cir – John Doe Reply Brief by Legal Insurrection on Scribd

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Comments

I have always wondered why if both students were drinking it’s always the male student taking advantage of the female student

    maxmillion in reply to Aggie9595. | August 17, 2019 at 9:48 pm

    I’ve wonder that more than once myself.

    RodFC in reply to Aggie9595. | August 17, 2019 at 10:11 pm

    Until the first male student sues for violation of rights under the equal protection clause.

    randian in reply to Aggie9595. | August 17, 2019 at 10:41 pm

    Criminal courts do the same thing. The woman can lose agency if intoxicated, but the man can’t, hence the man is always responsible for what happens.

    puhiawa in reply to Aggie9595. | August 17, 2019 at 10:51 pm

    It is not. It is made up feminist law that has absolutely no basis in reality. In fact it is often a weapon or an insurance policy if the “victim” was dating another.

    MarkS in reply to Aggie9595. | August 18, 2019 at 10:22 am

    I wonder about the logic that contends that she is sober enough to consent to intercourse, but at the same time too intoxicated to consent to a blowjob, where she is the active participant!

    Antifundamentalist in reply to Aggie9595. | August 19, 2019 at 11:19 am

    The implication is that women are inferior to men, since a drunk man has both the capacity (and apparently the sole obligation) to determine that his female companion is incapacitated, regardless of what she has to say at the time. Personally, I find it infuriating. Eventually, if this mindset isn’t curbed, we are going to come around full circle to find that women can’t be allowed out of the house without a chaperone.

I have always wondered why if both students were drinking it’s always the male student taking advantage of the female student

    fscarn in reply to Aggie9595. | August 17, 2019 at 10:39 pm

    Good point. Doesn’t that only reinforce the gender stereotypes.

    They’re applying, adversely, a negative presumption against males. After all, we’re told, gender is only a social construct.

Brave Sir Robbin | August 17, 2019 at 9:53 pm

Non-consensual sex is sexual assault or even possibly rape. Such actions are criminal and need to be referred to law enforcement. Failure to do so is rather problematic both from an ethical and potentially legal point of view. The college is not a law enforcement entity or court. Its assertions that someone raped or sexually assaulted another is also potentially defamatory. The college is stating this as a matter of fact resulting from an internal investigation and taking action upon its findings. They can expel anyone they want at any time for any reason, but making defamatory accusations in the process is a problem, as is failure to report a serious crime to law enforcement if they believe such an incident has occurred. In both instances, the college is behaving irresponsibly. The fact the college does not refer these alleged assaults to law enforcement shows they do not take them seriously or an extreme moral turpitude.

    Consider that the college’s lady-in-waiting Raimondo has asked the local police and judge abdicate their authority and transfer it to her. There is no need for her to deal with a lesser legal system than hers. Her benevolent vigilante justice will handle everything perfectly.

    JD Nobody

Q: What’s the difference between Oberlin College and North Korea?

A: In North Korea, if you’re charged with an offense you actually have a reasonable chance of acquittal.

Diversity is not a virtue. Oberlin, repent and sin no more. Lose your Pro-Choice quasi-religion.

That Meredith Raimondo character is involved in all these underhanded, ugly, rather smelly things.

She’s fortunate to have a fall-back profession, haunting houses,

https://i2.wp.com/www.powerlineblog.com/ed-assets/2019/06/Screen-Shot-2019-06-13-at-9.03.27-PM.png?resize=300%2C294&ssl=1

Understand that every male that goes to this nuthouse, was planning to SJW someone else. They all knew they were there for baby sitting, misbehaving and getting straight As for being alive.

Good to see the worm turn. A decade too late IMO.

Jonathan Cohen | August 18, 2019 at 7:41 am

Thanks for calling attention to this case. It sounds to me like the original court finding against the plaintiff was part of the gender bias itself.

There is a political movement in this country that is based on the idea that membership in various groups entitles members of such groups to preferential treatment in all aspects of life. From hiring and college admissions to adjudications before any judicial body (from campus disciplinary boards to the Federal judiciary) ones claims are given a score based on ones identity.

This is madness but it is what colleges and even much of K-12 has been teaching its students for decades now and it is not surprising that the courts have begun to back it up. The election of Obama accelerated this process dramatically as he staffed the federal government, including the judiciary, with social justice warriors as payment to his most fervent supporters.

Most campuses have a caucus of faculty and administrators who see their purpose as indoctrinating students with SJW madness and making the college rules conform to their ideology. They are not a majority but they are able to intimidate the rest into silence. When pressed by the aggressive demands of this cabal, the majority go along, usually covering up their cowardly capitulations with some form of apology for being privileged.

I voted against Obama twice because I knew that he was going to start moving this cabal from campus to government, including the courts, and it would have terrible consequences for the country and the rule of law in particular. I don’t know if Obama himself believed their nonsense but it never really mattered because he needed their enthusiastic support to get elected.

The election of Donald Trump was an effort to stem the tide of the “Intersectional” nonsense. Identity politics has become a kind of RAINBOW FASCISM, a political and social movement that stands in opposition to the basic national American creed that all are created equal and in particular are equal under the law. The great irony in our current national politics is that the defense of “all are equal” is labeled as white nationalism and a defense of white supremacy. This labeling is the damnable lie that more and more defines the politics of the Democratic Party.

Beware! They may win. Then what?

I could be wrong about this but I’ll go out on a limb and predict that there will never be a statue of William A. Jacobson at Oberlin College. But this Goya painting might.

http://www.franciscogoya.com/images/paintings/the-colossus.jpg

    Maybe we should start a campaign to get a statue of “Backwards Bill” erected. (See the explanation for the name “Backwards Bill” in my post below). It is the least that can be done for someone who has stoically suffered the indignities of innumerable not-so-micro microinsults.

    /s/ JD Nobody

It is hard to understand how OC has managed to become a litigation magnet for avoidable lawsuits. One must wonder if Queen Carmen’s lady-in-waiting Meridith Raimondo can get out of bed in the morning and screw her head on without cross-threading it.

The desperateness of the college is shown by their perceived need to blitz the world with glib, sleazy, and expensive PR. FOr those of you in doubt, take a look at how Oberlin’s Foxes are portraying the Gibson Henhouse. It is on the college website at https://www.oberlin.edu/news-and-events/bakery-litigation/media-coverage. The cheap bias in the links in the Foxes’ preferred articles cited should be enough to make any educated person puke.

It is no coincidence that the “unbiased” news stories do not contain any reference to the work of “Backwards Bill” Jacobson in hosting the LegalInsurrection blog. Bill’s quaint and obsolete view that facts and opinions are two different things disqualifies him from having anything to add to any conversation. OCs PR lackeys are so scared that they cannot allow anything which “Backwards Bill” says to see the light of day. Moreover, the OC Foxes are honorable foxes who would never, ever do anything wrong in the Gibson henhouse. The PR lackeys correctly sense that many people might believe some of the things which “Backwards Bill” allows to be posted on this blog.

The college is paying money for a PR campaign that is of far lower quality than President Trump’s twitter campaign. OC’s PR people have become some of the biggest twits on Twitter. Shame on you, PR people. President Trump must be elated over the unrelenting help his re-election campaign is getting from the OC administration and its clueless, cloistered, and elitist board of trustees.

Now you say in all honesty that Nobody told you any of this.

/s/ JD Nobody, OC ’61

JackinSilverSpring | August 18, 2019 at 10:43 am

Maybe we should go back to single sex colleges to avoid such bias.

JackinSilverSpring | August 18, 2019 at 10:43 am

Maybe we should go back to single sex colleges to avoid such bias.

Oberlin seems to be developing a pattern of avoiding the local police department and taking on the task of policing the on and off campus area themselves. No report to the police in this case, wanting the Gibson family not to report shoplifters to Oberlin Police Department.

    The full police report for the Gibson robbery is available free and online on the Oberlin Police Department web site. There is police bodycam footage of the incident available on YouTube.

    An extensive, just-released explanation of what happened is on oberlin.edu. This latest PR stunt is a disgusting and misleading portrayal of events. COMMENTS FROM ANYONE WITH AN OPPOSING VIEW are not present in this slimy-slick, big bucks PR whitewash. The PR people who came up with it are an embarrassment to the PR profession.

    Only some people seem to have read the inconvenient truths in the police report and instead are believing the intellectually incontinent truths oozing from oberlin.edu.

    /s/ JD Nobody

“You could write a strong argument for patriarchy using only the things feminists say about the fragility of women.” Glenn Reynolds.

Heaven help the Gibson’s if their case comes before this District Court Judge or a like minded Federal Judge.`

Time for Oberlin to dry up and blow away!

It would appear that the Title IX apparat, in its discriminatory application of Title IX as an anti-male weapon, has become by far the greatest violator of Title IX. They have met the enemy and it is they.

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

It would therefore appear long past time to dismantle this apparat, no matter how well-entrenched it has become, and replace it with something that at least treats both sexes equally. For there is certainly no indication that the current apprat is ideologically capable of doing so.

If/when it becomes apparent that a school’s Title IX enforcement bureaucracy is hopelessly and thoroughly biased against one sex and incapable of applying the law equally, can the school not be ordered to thoroughly reform itself on penalty of losing federal financial aid?

Better yet would be to simply limit the size and authority and scope of this apparat, but, good luck with that.

Richard Aubrey | August 19, 2019 at 6:23 pm

They missed the guy who raped Lena Dunham, though. Right?

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