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IU student accused of sex misconduct denied injunction

January 31, 2019

A male student accused of sexual misconduct was denied a preliminary injunction to prevent Indiana University Bloomington from suspending him as a sanction from what he called a “fundamentally unfair disciplinary process.”

Filing under the pseudonym of “John Doe,” the student was suspended for four years from Indiana University after an investigation by the school concluded he had engaged in nonconsensual sexual activity. A disciplinary panel unanimously determined Doe was responsible for sexual assault, sexual harassment and sexual exploitation.

Doe sued IU, asserting, among other claims, Title IX violations and breach of contract. The case, John Doe v. Indiana University-Bloomington, 1:18-cv-03713, was filed in the U.S. District Court for the Southern District of Indiana.

The case involves an unusual set of facts — while Doe and the female student were having sexual intercourse, someone entered the room and took a picture. The photo was later posted on social media, which led to a separate investigation by the IU Office of Student Conduct.

In his motion for preliminary injunction, Doe argued IU’s investigation, disciplinary hearing and decision were biased against him because he is male.

The Southern Indiana District Court found the arguments and evidence did not show any gender discrimination or bias.

Doe argued as part of the investigation, IU did not develop leads or evidence on its own and the investigators arbitrarily determined the relevance of certain witness statements and did not resolve inconsistencies. Also, he asserted IU selectively enforced its policy of not allowing evidence of sexual history when the university did not interview his past sexual partners about his practice of obtaining consent, but did allow evidence that the female student was a virgin at the time of the incident.

However, the court noted witness statements, including one that contradicted the female student’s account, were turned over the panelists conducting the hearing. In addition, the information about Doe’s previous sexual partners who could speak to his practice of always obtaining consent was included in the final report and the packet of materials provided to the panelists at the hearing.

When Doe pointed to IU’s reports from 2017 and 2018 showing that male students were 51 percent more likely to have to defend sexual assault charges at a hearing after being investigated, the court cited to the university’s explanation. IU maintained that no disciplinary hearings were held for accused female students because the two women who had been facing sexual misconduct charges accepted responsibility so there was no need to proceed to the disciplinary process.

“John Doe’s arguments simply consist of his desire to have different or additional procedures in place to handle sexual misconduct investigations, hearings, and determinations,” Judge Tanya Walton Pratt wrote. “… While John Doe attacks the procedural protections afforded him during the disciplinary process, he has not provided any evidence of specific statements or conduct that suggests gender bias or discrimination.”

“His arguments exhibit his disagreement with weighing evidence and making credibility determinations. However, his arguments and evidence do not show gender discrimination or bias," Pratt wrote. "That is what is required for a Title IX claim.”

The district court also concluded IU had not waived its sovereign immunity, which barred Doe’s breach of contract claim. The student alleged IU’s investigation of him was substantially flawed and biased for its lack of thoroughness and arbitrary relevance determinations.

IU supported its sovereign immunity assertion by pointing to Bull v. Board of Trustees of Ball State University, in which the Southern Indiana District Court ruled the 11th Amendment prohibits the court from adjudicating state-law claims where, as here, the state agency objects.

Doe countered with the 7th Circuit Court of Appeals’ 1987 ruling in Kashani v. Purdue University, which found the 11th Amendment does not bar lawsuits against state defendants for prospective injunction relief. His counsel argued the 11th Amendment does not bar a claim for injunctive relief in the form of reinstatement; however, counsel did concede the 11th Amendment does bar claims for breach of contract.

“Based on IU’s assertion of the Eleventh Amendment sovereign immunity against the state law claim for breach of contract, the Court concludes that John Doe does not have a reasonable likelihood of success on the merits of his breach of contract claim, and, thus, he is not entitled to a preliminary injunction” on that claim, Pratt wrote.

The case is one of at least 10 filed by students against at least six state universities that claim disciplinary cases concerning allegations of sexual misconduct violated students’ rights.

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