Ex-student suing UI over dismissal based on sex-assault allegations

Ex-student suing UI over dismissal based on sex-assault allegations

URBANA — At a time when Education Secretary Betsy DeVos is trying to give more rights to college students accused of sexual assault, one such student is suing the University of Illinois after it dismissed him for 2 1/2 years.

The student, identified in court documents only as John Doe, says his constitutional rights to due process were violated by the student disciplinary process at the UI, which he says didn't give him a proper hearing.

Last week, his lawyers asked a federal judge to issue a ruling in their favor on their lawsuit against the UI Board of Trustees.

"I think this is a precedent-setting case that is going to have potentially wide implications across the country for all universities," said Mark Roth, an attorney representing Doe. "Hopefully, we'd have a decision in the next 120 to 150 or 180 days."

Doe, a sophomore at the time of the incident, is accused of sexually assaulting "Jane Roe," then a senior, in the early morning hours of Dec. 4, 2016, while she was intoxicated and unable to consent.

After an investigation, Doe was dismissed in April 2017 for 2 1/2 years, with a review panel concluding that he convinced Roe's friend that he could take Roe home, took her instead back to his apartment and had sex with her.

"You met the complainant and her friend at a local bar. The complainant had already been drinking when she met up with you, and she continued to drink in your presence," the panel said, later concluding: "The complainant was incapacitated at the time of the sexual activity and so could not consent."

The panel cited a text Doe allegedly sent from Roe's phone that said "she is freaking drunk," comments he allegedly made to a friend about Roe being "out of her mind completely drunk," and Roe allegedly falling asleep at a restaurant table and being unable to walk on her own.

Doe's lawyers argue that they had stopped drinking after they walked home and that the sexual activity was consensual.

In Doe's suit, his lawyers ask for a proper hearing and that his dismissal be reversed, his reputation restored, his disciplinary record expunged, his suspension removed, any record of the complaint destroyed and he be fully reinstated to the university.

They take aim at the UI's student-disciplinary process.

His lawyers say he was interviewed only once — 46 days after the alleged assault; wasn't allowed to review the final investigative report; and wasn't allowed to attend a hearing to present his side of the case and cross-examine witnesses.

"What the universities are doing, what the U. of I. is doing, is they're taking away a right to an education at the university and in order to take away that property right, we believe there needs to be due process followed," Roth said. "Due process may not be what's required in a court of law, but here, it doesn't even allow the accused student to attend a hearing."

A 3.76 GPA student while at the UI, Doe now lives in California and attends community college, Roth said.

The Dear Colleague Letter

Peter Land, an attorney representing the board of trustees, argued in court documents that Doe does not have a property interest to continuing education and is therefore not entitled to a full hearing, and that even if he were, the UI's process meets the requirements established by court precedent.

"Courts afford higher education institutions far more deference for establishing internal process that satisfy fundamental procedural fairness concepts, with which the University's procedure clearly comply," he wrote. Later, he added: "The opportunity for direct confrontation and cross-examination has repeatedly and consistently been rejected as a due-process requirement for internal proceedings, especially when respondents are allowed indirect cross-examination alternatives."

University spokeswoman Robin Kaler said she couldn't comment on specific cases, but said that accused students have "multiple opportunities" to tell their side.

"Respondents in sexual misconduct cases have multiple opportunities to meet with investigators, provide evidence, review information collected from others and submit questions to be asked of witnesses," Kaler said. "The decision is based on the written record of the investigation, and though respondents don't meet in person with the panel members who decide the case, they can participate throughout that investigation and address the panel members in writing."

Doe's lawyers also take issue with the Education Department's 2011 "Dear Colleague Letter," which said colleges should use a "preponderance of the evidence" standard of proof in sexual assault cases.

"The Dear Colleague Letter has aggressively dictated how colleges and universities handle sexual assault on campus, by laying out specific requirements that schools must adopt and utilize, causing schools to brand more students as 'rapists' based on the excessively low 'preponderance' burden of proof, permitting a form of double jeopardy, and, perhaps most importantly, deprive accused persons (overwhelmingly males) of all elements of due process," Roth wrote in court documents.

DeVos has since rescinded the Dear Colleague Letter, allowing colleges to use the higher "clear and convincing evidence" standard.

Judge questions process

The Doe case was originally filed in August 2017, and both sides have had some of their requests knocked down by U.S. District Judge Colin Bruce.

Doe's lawyers asked for a preliminary injunction seeking reinstatement to the UI and a proper hearing.

Bruce denied this, saying that Doe would not "suffer irreparable harm" by waiting for a final judgment after trial.

"The court is not convinced by Plaintiff's argument that a gap in his academic record will cause irreparable harm. The court finds Plaintiff's argument on this point to be too speculative to warrant the extraordinary and drastic remedy of an injunction," Bruce wrote. "Gaps in academic records exist for all kinds of reasons."

Bruce also denied a motion by the UI to dismiss the case for failure to state a claim.

"At this early stage in the proceedings and based upon the precedent outlined above, the court concludes that Plaintiff has pled sufficient facts to support his contention that he had a property interest in his continued education," Bruce wrote. "The court also finds that Plaintiff has presented sufficient facts to plausibly suggest that the procedures employed by the University failed to provide him with all of the process required by law."

In his decision, Bruce questioned whether Doe had a "meaningful opportunity to be heard" and said Doe's allegations that he was provided no meaningful opportunity to cross-examine witnesses were "unsettling."

This allegation "suggests, at this early stage in the litigation, that the process afforded Plaintiff may have been deficient."

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cjw61822@hotmail.com wrote on March 20, 2018 at 2:03 pm

Hopefully John will get a punitive judgement as well against the SJW who was in charge of this railroad job.