A University of Dayton student referred to in court documents as John Doe alleges he was wrongfully suspended for two years following a night of consensual sexual activity with a fellow student and athletic trainer at the university, identified only as Jane Roe.
The story is similar to dozens of others from college campuses. Two students meet at a party and engage in sexual activity. Sometime later (in this case, the next day) one of the participants (typically the woman) accuses the other of sexual assault. Police declined to press charges against the male student in this case, but a university disciplinary hearing found him responsible while ignoring his due process rights.
Two People, Two Completely Different Stories
John alleges in his lawsuit that Jane initiated the sexual activity—inviting him back to her apartment, saying she wanted to hook up with him, leading him to her bedroom, taking off her own clothes, and asking him to text her about meeting up later. She also, according to the lawsuit, told him that she enjoyed the encounter when he asked her multiple times throughout.
Jane was an athletic trainer at the University of Dayton in Ohio, and John was the freshman quarterback. John believes Jane accused him because she was afraid she would get in trouble and possibly lose her job as a trainer, since she was prohibited from having sexual relationships with athletes. John provides evidence in his lawsuit that Jane opposed this rule before their encounter, stating she wanted to “hook up with whoever [she] want[ed] to.”
John provided the university the results of his polygraph test, which found he answered truthfully to statements such as “Did you in any way force [Roe] to have sex of any kind?” Dayton employed two investigators to initially determine whether there was “probable cause” to initiate proceedings against John. The two investigators stated in their report that they were “tasked not with rendering credibility determinations or a final finding, rather with rendering a probable cause determination as to whether the case should be referred to the Office of Community Standards and Civility for an Accountability Hearing or whether the case should be closed with no further disciplinary action taken.”
Yet the two included their own analysis and credibility determinations in their report. In one instance, the two strongly discouraged the disciplinary hearing board from considering John’s polygraph results, claiming, inaccurately, that courts don’t allow them. Despite being tasked with finding probable cause, the two reported that probable cause “may” have existed.
No Chance to Question His Accuser
Like so many other young men on college campuses, John was put through the wringer. Campus authorities ignored evidence suggesting Jane was not incapacitated at the time of the encounter and that she initiated the sexual activity. Most troubling, none of the questions John submitted to be asked of Jane or witnesses were accepted. Federal guidance suggests schools limit cross-examination during such non-judicial hearings, and Dayton allowed students to submit questions to be asked at the discretion of the hearing board.
John’s lawsuit lists all the questions he submitted. I could understand a few being determined to be irrelevant or too personal, but all of them? John wanted 27 questions asked of Jane, many with multiple parts regarding the evening in question. Some pertained to “safe words” that Jane and her roommates had agreed to use if they felt uncomfortable. According to John, Jane did not use any of these safe words. Asking why they weren’t used during an encounter in which Jane later said she was uncomfortable or afraid would be a perfectly valid line of inquiry.
What should help John is that in another lawsuit against Dayton, a judge dismissed a student’s breach of contract claim relating to cross-examination because the student didn’t even try to submit questions. That decision, in Pierre v. University of Dayton, suggests the student’s claim would not have been dismissed if he, like John, had submitted questions.
Without the ability to properly defend himself, John was suspended from the university for two years and lost his appeal. He is now suing Jane on two counts of defamation and suing Dayton for breach of contract and violating his rights under Title IX to be free from sex discrimination.
A Suit Against the Source of These Policies
In a move I have not seen before, John is also suing the National Center for Higher Education Risk Management (NCHERM), a consulting firm that charges colleges big bucks to teach them how to implement adjudication policies that have led to many lawsuits from accused students. It’s not clear how much Dayton has paid NCHERM, but the group held a conference in 2011 that cost $2,500 a head and netted $425,000. They also sell yearly subscriptions to their services, one of which costs $11,500 a year with a discount.
As of 2014, more than 60 schools retain NCHERM for legal counsel, and representatives from thousands of schools attend their training sessions. One of the investigators Dayton hired for this case was Dr. Daniel C. Swinton, who worked for NCHERM. He went to Ohio to conduct the investigation. John alleges NCHERM was a third party to his injustice and is suing them for breach of contract, promissory estoppel, and negligence.
Doe is also suing all three parties for emotional distress, stating that he has been under “severe emotional distress” due to their actions, which has caused him to take anxiety and depression medications.