John Doe v. W&L trial date postponed
Judge Norman Moon denies W&L’s motion to dismiss case
September 14, 2015
The trial date of John Doe v. Washington and Lee was delayed to April 22 of next year according to court documents. The lawsuit, claiming that a male student faced gender-based discrimination in a disciplinary hearing, is one of 62 that has been filed across the country since 2011.
Court filings from Aug. 18 show that both John Doe and the university requested a delay from the original Nov. 16 trial date, asking for more time to complete the discovery phase. During the discovery phase, parties share evidence and information freely to weigh the strength of each other’s cases.
John Doe alleges that the environment created by the since-discredited Rolling Stone article published Nov. 19 about sexual assault at University of Virginia and guidelines issued by the Office of Civil Rights led to an unfair and gender-biased investigation and hearing.
He also points to flaws in the investigation and hearing, mainly an omission of key statements in witness summaries compiled by Title IX Coordinator Lauren Kozak and Jason Rodocker, dean of first year students.
John Doe also alleges the failure of the Student Faculty Hearing Board to weigh the evidence of the post-incident consensual sexual encounter between him and Jane Doe.
John Doe’s case seeks declaratory relief on the grounds that W&L denied him his fifth amendment right to due process and violated Title IX through flawed and biased proceedings.
Title IX of the US Education Amendments prohibits gender-based discrimination in any education program that receives federal funding. Sexual assault complaints are considered Title IX complaints because the law defines sexual assault as a form of gender-based discrimination.
W&L filed a motion to dismiss the lawsuit in April. The motion said that the plaintiff’s argument misrepresents the university’s strong stance against sexual assault accusations.
W&L also argued that the case should be limited to whether its investigation and hearing followed sound and legal policies, rather than whether the student was convicted wrongfully.
Moon denied the university’s motion in part. He released his memorandum opinion on Aug. 5.
“Plaintiff has pleaded sufficient facts to cast doubt on the accuracy of the outcome reached in the proceeding against him,” Moon said in his opinion.
He said the plaintiff’s allegations, if taken as true, suggest that W&L’s disciplinary procedures for sexual misconduct amount to “a practice of railroading accused students.”
Moon said that although John Doe “carried his burden with respect to the accuracy of the proceedings,” he still has the burden to prove that gender-bias caused the outcome of his hearing. Moon established a causal link from the alleged flaws in the proceedings, statements from university officials such as Kozak, and the pressure from the article and the government.
Moon denied the dismissal of John Doe’s Title IX claim by ruling that W&L’s proceedings seem inaccurate.
Moon dismissed John Doe’s due process claim and said that as a private institution, W&L is not subject to the constitutional protections of the fifth amendment.
Moon’s opinion distinguishes the W&L lawsuit from the other 61 gender-based discrimination cases. Many of the other lawsuits have focused upon the question of whether the university denied the male student due process in its investigation of him, not on a Title IX complaint.
The Office of Civil Rights revised its guidelines for universities in 2011. Universities must comply with these guidelines or they will risk losing federal funding.
According to the guidelines, a school must “adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints of sex discrimination, including sexual violence.”
A school must also publish a definition of sexual assault, the potential consequences and the process for handling complaints.
The documents mandate that universities conduct sexual assault investigations independent of the courts or police.
The OCR’s last revision to the guidelines also lowers the evidentiary standard from “beyond a shadow of a doubt” to “upon preponderance of the evidence.” The accused student will be convicted if investigators believe it is more likely than not that sexual violence occurred.
A Voice for Male Students, a national organization that promotes educational equality for men and boys, supports John Doe’s lawsuit. The group says that disciplinary processes adopted by some universities discriminate against young men accused of sexual assault.
“We support John Doe’s cause of action; it is substantial,” James Taylor, director and founder of A Voice for Male Students, said. “I cannot say I believe 100 percent that he is innocent because ultimately that decision belongs to the criminal justice system. But I would say it is very likely that he is innocent.”
A Voice for Male Students has a relationship with John Doe’s lead attorney, Andrew Miltenberg of New York. Taylor said they speak weekly and share case updates.
Miltenberg was unavailable for comment at the time of the Phi’s publication. W&L’s lead attorney, Melissa Riley of Charlottesville, was also unavailable for comment.
Donald Nimey • Sep 20, 2015 at 9:37 am
I agree with Charlie Jones’ concerns. The circumstances remind me of the poem about a father who only has a “good name” to pass along to his son…cautioning him to keep it good in turn for his son.
So what can you do when a good name is threatened. You can be proactive, and, you can fix everything that is wrong – even items that a judge’s decision have have excluded.
It looks like W&L has a perfect storm of prejudicial administration and a less than fair set of policies and procedures (afforded it as a private university).
While, W&L does not appear at this time to be proactive in addressing its personnel or policies and procedures, hopefully it will make changes which will ensure its good name after the conclusion of this suit.
One item that was dismissed in Judge Moon’s ruling is deserving of additional discussion.
Why doesn’t a student at W&L have the same due process in a rape hearing as a student at UVA, William and Mary, or any other VA public university?… the answer is because as a private school it can and does deny these same protections. This lack of fairness should be a concern for every prospective and current student and their families. Those who are not concerned are likely unaware of the issue as I was until I read articles about this case and Judge Moon’s ruling. Now we have a good example of why these protections matter.
I challenge W&L’s trustees to do better – give W&L students the same rights in such a hearing as a VA public university student.
Melvin Robert Counts • Sep 21, 2015 at 9:52 pm
The administration’s attitude of “we are a private university and we can do whatever we want” is finally coming home to roost. Many an undergraduate and parent have heard this comment.
What the school has done to some students is not right. John Doe is not the only example. The arrogance and contempt for due process is breath taking in light of parents spending hundreds of thousands of dollars in tuition and fees.
Where is the fundamental fairness and human decency?
Charlie Jones • Sep 15, 2015 at 3:12 pm
Assuming everything in the public record is true, it’s hard to believe that this is happening. I find it more than coincidental that Ms. Kozak is a UVA graduate and that the rush to judgement at Duke and UVA have proven to, in my mind, tarnish significantly the reputation of those schools and their administrations. Looks like we are next, and no matter what, the allegations against John Doe don’t even come close to the alleged events at the other two schools. Common wisdom among several W&L law grads with 45-50 years of legal experience is that John will get a significant settlement before this thing ever goes to trial, like the Duke boys did. I hope Jane Doe and Ms. Kozak and our administration are proud of what they are doing to our reputation.