John Doe v. W&L trial date postponed

Judge Norman Moon denies W&L’s motion to dismiss case

Callie Ramsey

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.