Rare Win For Oberlin College Male: “We were the first case in Oberlin’s history to win a Title IX hearing”

Rare Win For Oberlin College Male: “We were the first case in Oberlin’s history to win a Title IX hearing”

I’ve been circling back on some campus cases we covered previously that dropped off the radar after an initial flurry of legal proceedings on which we reported. One of those cases involves “John Doe No. 2” – a male student accused of “sexual misconduct” who sued Oberlin College to avoid having to go through a campus disciplinary system allegedly biased against males.

Biased Campus Tribunal System Alleged

We first reported on John Doe No. 2 on May 9, 2020, in the context of a prior case against John Doe No. 1 (an update on that separately to follow), Oberlin College male student tries, and fails, to obtain injunction halting allegedly biased sexual assault hearing:

Another Oberlin College case we have followed involved an expelled Oberlin College male student (we’ll call him “John Doe No. 1”) who alleged that the Oberlin College sexual assault hearing process was so rigged against men that it had a 100% conviction rate for cases that went to hearing, at least during the period of time relevant to that case. Now there is another lawsuit by a different student raising similar issues of an allegedly biased campus process….

The alleged systemic hostility to male students is the subject of a second lawsuit filed in late March 2020 by another male student, who we’ll call John Doe No. 2. That second case has a somewhat unusual history, from what we can gather from the court docket and filings. But like John Doe No. 1, John Doe No. 2 finds himself appealing a dismissal.

The case originally was filed in state court (the same court as the Gibson’s case, but assigned to a different judge). John Doe No. 2 sought an  Ex Parte Temporary Restraining Order against the college to prevent the disciplinary process from moving towards a hearing, which because of the campus shutdown due to the coronavirus pandemic, may potentially included a telephonic or video hearing in lieu of an in-person hearing….

The case involved the now-familiar dispute over whether a female student gave “consent” to sexual interaction while intoxicated, the same issue as in John Doe No. 1’s case.

The Verified Complaint in state court recites this description given by Jane Roe given to a coach as described by the coach:

“About two weeks before Thanksgiving on a Wednesday she was at the Seo’ after the Seo’ they went back to Barrows. [Roe] says she was very drunk and doesn’t remember a lot. They were on a couch hooking up and he started fingering her. She remembers it happening but not a lot of details but knows that she didn’t want it to happen. She remembers him asking her if she wanted to go downstairs for somewhere more private. She doesn’t remember how she responded or if she did. They went downstairs and he inserted himself into her. She asked if he had a condom. He said no, and she freaked out, jumped away and then he stopped”

“he (Plaintiff) could’ve asked for consent, but I don’t know if he did and or if he did ask, I don’t even know if I gave it.”

“she didn’t realize for a while what had happened and it kind of just hit her this week [and that] [s]he has been struggling with whether or not to make a report.”

Needless to say, John Doe No. 2 disputed the lack of consent and other aspects of the accusations and charges. He sought an injunction because of what he alleged was an already tainted process:

The Verified Complaint then goes on to allege exhaustive details as to John Doe No. 2’s interactions with the administration as to a possible informal resolution of the dispute. That interaction allegedly became a formal complaint by Jane Roe against John Doe No. 2 after he complained to the administration that she was telling other students he was a rapist.

But by that time, John Doe No. 2 alleges that important electronic evidence had been destroyed. Faced with what he claimed was a rigged hearing process, John Doe No 2 requested court intervention.

John Doe No. 2 never got his injunction, for a variety of reasons described in the post link above, and in a follow up post regarding an appeal. The case fell off our radar until I circled back to it on the PACER electronic docket.

A Rare Win For A Male Student

It turns out that Oberlin College actually held a contested Zoom hearing at which testimony and evidence was presented.

The hearing was held on June 30, 2020. The tribunal judges were:

• Panelist: Melanie Hawkins, Area Coordinator for First-Year Experience
• Chair of Panel: Michael Rainaldi, Director of International Programs
• Panelist: Lisa Thuer, Director of Annual Giving

The panel ruled in favor of John Doe No. 2 finding that under the relatively low “preponderence of the evidence” standard there was insufficient evidence to find John Doe No. 2 to have violated Oberlin College’s “sexual misconduct” policy.

Here it the substance of the decision:

Findings

Section I: The night of October 30th – 31st, 2019

For this date, the Panel considered whether effective consent was obtained initially for sexual activity, whether consent was withdrawn, and whether the sexual activity ceased after consent was withdrawn.

The Panel believes that both Parties agreed that effective consent was initially obtained, that consent was subsequently withdrawn, and that sexual activity ceased thereafter. Additionally, the Panel believes that a discrepancy existed between the Parties on exactly when the sexual activity ceased after consent was withdrawn.

After careful review of the final report, and all evidence contained therein, and after the conclusion of the hearing on June 30th, the Panel does not believe that the preponderance of evidence shows a sufficient time lag between the withdrawal of consent and the cessation of sexual activity to determine that a violation of the Sexual Misconduct Policy occurred on the night of October 30- 31, 2019.

Section II: The night in November 2019

For this date, the Panel considered whether the Reporting Party was incapacitated during the time of sexual activity and whether the Responding Party knew or should have known the Reporting Party was incapacitated.

The Panel acknowledges the discrepancies between the Parties and between witnesses regarding the date of the November incident; however, the Panel does not believe the absence of agreement on the exact date in question is significant. Evidence provided in the final report and testimony presented in the hearing sufficiently indicate that the Parties and witnesses do agree that all events in question did occur on the same date in November, whichever date that may have been.

The Panel finds that the preponderance of the evidence presented in the final report and the hearing indicates that the Reporting Party could have reached a level of incapacitation through consumption of alcohol and (possibly) drugs at some point during the night in November. Factors in this instance considered by the Panel were a) timeline of consumption of alcohol and (possibly) drugs, b) physical indicators of severe intoxication visible to others as indicated in witness testimonies, c) both Parties’ recollections of the events in question, and d) distance traveled by the Reporting Party between initial consumption of alcohol and entry into Burton Hall.

Evidence provided in the final report along with witness testimony during the hearing presented discrepancies around the perceived level of and time of incapacitation of the Reporting Party during the night in November. Due to these discrepancies, the Panel does not believe that the preponderance of evidence shows that the Responding Party, or a sober, reasonable person in the Responding Party’s position knew or should have known that the Reporting Party was incapacitated at the time of the sexual activity between the Reporting Party and Responding Party. Details contained in the final report and stated during the hearing that the Panel considered in this instance were a) the Responding Party was not with the Reporting Party during the time in which alcohol and (possibly) drugs were consumed, b) the Responding Party and a witness both reported that they had a coherent conversation with the Reporting Party outside of Burton Hall and neither believed the Reporting Party to be incapacitated, c) the Responding Party saw the Reporting Party walk by herself to meet him at Burton Hall, d) two other witnesses indicated that after being very drunk earlier in the night the Reporting Party seemed less drunk while they were at the ‘Sco. Therefore, the Panel does not find that a violation of Sexual Misconduct Policy occurred on the night in November 2019.

John Doe No. 2’s lawyer provided the following account of the hearing, and why John Doe No. 2 is not voluntarily dropping the lawsuit against Oberlin College:

I believe we were able to cast significant doubt about the allegations through our investigation and examination of school schedule and complainant’s story. Through our cross examination questions the complainants witnesses contradicted each other because the evidence that she claimed proved her inebriation, we were able to establish were created on different dates and time periods. Through our hard work and thorough preparation as well as our client’s strong direct exam we won. We were the first case in Oberlins history to win a Title IX hearing. The Oberlin process is screwed to favor the complainant. We overcame the process and were blessed with a fair panel. The school’s constitutional violations of my client’s rights should not be mooted by our victory. To do so would vitiate any constitutional claim by virtue of winning the underlying cause of action.

Perhaps Oberlin College’s system wasn’t as bad as portrayed, or perhaps knowing that John Doe No. 2 already had taken the college to court had an influence.

Is Appeal Moot?

Oberlin College’s lawyers have other ideas about the lawsuit continuing, and have filed a motion in the 6th Circuit Court of Appeals to dismiss the case as moot since John Doe No. 2 won the campus hearing, Jane Roe is not appealing that ruling, and thus John Doe No. 2 no longer is in legal jeopardy, John Doe No. 2 v. Oberlin College – 6th Circuit – Defs Motion to Dismiss Appeal As Moot:

In the interim, on July 2, 2020, following an investigation into Roe’s allegations and during the pendency of this appeal, a three-person hearing panel at the College concluded that Doe did not violate Oberlin’s Policy. See Declaration of Rebecca Mosely, Oberlin’s Title IX Coordinator and Director for Equity, Diversity, and Inclusion (“Mosely Decl.”) ¶ 4, attached hereto at Exhibit 2. Since Roe did not appeal this finding, Doe will not face any discipline from the College based on Roe’s allegations, nor will his academic transcript contain any reference to the disciplinary proceedings. Id., ¶¶ 5-6. As a result, there is no possibility that the harm Doe sought to prevent can occur, thus mooting Doe’s claims. See Am. Compl., R.5-1, ¶ 2, PageID#441.

Doe did not disclose in his Appellant Brief that the hearing panel found he did not violate Oberlin’s Policy.1 Oberlin therefore moves to dismiss this appeal on grounds that it is moot because a case or controversy no longer exists between the parties and this Court cannot grant any effectual or meaningful relief that would affect the parties’ legal interests. Accordingly, this Court lacks jurisdiction over the subject matter of this appeal.

[fn. 1] 1 Prior to filing his Appellant Brief, Doe relied on the panel’s decision in his pending defamation lawsuit against Roe. See Doe v. Doe, No. 1:20-cv-01002-JG (N.D. Ohio), Pl.’s Motion for Leave to File a Brief in Opposition to Def.’s Motion to Proceed Pseudonymously Based on July 3, 2020 Title IX Hearing Ruling that Absolved Plaintiff of All Alleged Misconduct, Doc. 20 (filed July 13, 2020), at p. 3 (“[T]he three-member panel found, by a preponderance of the evidence, that the Plaintiff was Not Responsible for the misconduct alleged by the Defendant[.]”).

John Doe No. 2 denied the case was moot because he still sought money damages, John Doe No. 2 v. Oberlin College – 6th Circuit – Plaintiff’s Opposition To Motion to Dismiss Appeal As Moot:

The Defendants fail to disclose in their motion to dismiss that in addition to seeking injunctive relief, Mr. Doe’s Verified Complaint also sought monetary damages.1 The caption of Mr. Doe’s Verified Complaint clearly states in bold that he was seeking preliminary and permanent injunctive relief, and money damages against the Defendants.2

Mr. Doe asserted in his Verified Complaint that as a direct and proximate cause of the Defendants’ conduct he endured extreme emotional and psychological suffering,3 emotional distress,4 loss of educational and career opportunities,5 damages to his reputation,6 and other non-economic and economic damages.7 Moreover, in his prayer for relief, Mr. Doe requested monetary damages in an amount to be determined at trial, prejudgment interest, attorneys fees, expenses, and costs.8

The fact that the district court denied his request for injunctive relief and the Oberlin College Defendants were able to complete their investigation into allegations that he violated the College’s sexual misconduct policy and proceed to an adjudication hearing against him does not moot the harm and damages that he suffered as a direct and proximate result of Defendants’ tortious conduct in investigating, and prosecuting him over a period of approximately five (5) months. Nor does the fact that a three-person panel ultimately found that he did not violate the College’s sexual misconduct policy moot his causes of action for money damages as he was harmed and damaged by the Defendants’ decision to pursue said actions against him despite the fact the allegations against him failed to rise to the level of any threshold that would justify their decision to do so.

Accordingly, a case and controversy continues to exist between the parties as to whether the Oberlin College Defendants should be required to compensate Mr. Doe financially for the harm and damages that they caused him, and if so, the amount of said compensation. Because money damages continue to be at issue, this Honorable Court can grant effectual and meaningful relief that would affect the parties’ legal interests by deciding the merits of Mr. Doe’s appeal.

Oberlin College still claimed the case was moot, John Doe No. 2 v. Oberlin College – 6th Circuit – Defs Reply In Support Of Motion to Dismiss As Moot:

As explained in Oberlin’s Motion to Dismiss, Title IX mandates that colleges and universities investigate reports of sexual misconduct. To allow a student to sue his institution for an investigation and disciplinary process that the institution is required to undergo would create the sort of absurd result courts should avoid. Thus, Doe’s claims for monetary damages cannot render this moot appeal justiciable because Doe cannot plausibly be considered to have been harmed by a mandatory Title IX investigation.

As of this writing, the Sixth Circuit has not ruled on the motion to dismiss, but it has suspended further briefing on the appeal pending determination of the motion.

Defamation Lawsuit Against Female Accuser – Settled?

But wait, there’s more.

As referenced in Oberlin College’s Motion quoted above, John Doe No. 2 sued his accuser for defamation, originally in state court in Lorrain County. The accuser then removed the case to federal court, which denied the parties’ request to proceed under pseudonyms. So their names are in the public record in the federal court case by order of a federal judge.

The basis of the defamation case were statements the accuser allegedly made to others outside the campus tribunal:

6. Starting in approximately December 2019, but no earlier than October 31, 2019, and continuing to the present day, the Defendant began telling other individuals, including one (1) or more of Plaintiffs and Defendant’s mutual friends, that Plaintiff “raped” and/or “forced himself on her” “multiple times”.

7. Specifically, in approximately December, 2019, but no earlier than October 31, 2019, Defendant told a male Oberlin College student, K.B. as well as other individuals to be proven at trial, that Plaintiff “raped” and/or “forced himself on her” “multiple times”.

8. On or about February I 0, 2020, an investigator interviewed Witness I, a male Oberlin College student, who informed the investigator that another male Oberlin College student, K.B. had referred to Plaintiff John Doe as a “rapist” in a conversation that Witness 1 had with K.B. in December, 2019.

9. Witness 1 further told the investigator that in another conversation with Witness 1 and K.B., that occurred in or about January or February, 2020, K.B. further told him (Witness 1) that Plaintiff John Doe had “raped” Jane Roe and that the alleged “rape” had occurred “a couple of months ago”.

In her Answer, the accuser denied the accusations above and any liability.

There was a fair amount of legal jockeying as to whether the case would stay in federal court (John Doe No. 2 wanted it sent back to state court), but the judge determined the case would stay in federal court. The accuser, a California resident, also invoked California’s “anti-SLAPP” statute seeking dismissal and costs; that motion does not appear to have been ruled on. There also was a motion to dismiss for failure to state a claim, that also was not ruled on.

Based on the federal court docket, it appears the defamation case settled because there is a sealed mutual release. The terms of the settlement, and whether any money was paid to John Doe No. 2, are not known.

It Ain’t Over ‘Till It’s Over

So the John Doe No. 2 saga is not over, it’s still in the 6th Circuit, but this definitely is a case where the accused male went on legal offense to defend himself.

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