Case against Ole Miss Title IX office could set national precedent for sexual assault cases on college campuses
Published 10:30 am Sunday, August 12, 2018
Doe v. The University of Mississippi will appear before the fifth circuit court on Aug. 14, and it could set a precedent for the way sexual assault cases are handled across the country.
The case centers around a March 30, 2017 sexual encounter between John Doe and Jane Roe, both undergraduate students at the University of Mississippi. On March 31, Roe filed a complaint with the university Title IX office, who notified the University Police Department. Doe was in New Orleans at a fraternity formal with another woman at the time.
In the weeks since the initial incident, Doe and Roe remained friends and attended social functions together. On April 18, 2017, Roe indicated she did not want to press charges against Doe. Two days later, she met with a UPD officer and confirmed her desire to not press charges, saying she “felt she had the closure she needed to go about her routine and was happy with it.” Subsequently, Roe completed a non-prosecution form.
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However, in late May 2017, Roe filed a Title IX complaint against Doe.
“Upon information and belief, Roe did so at the insistence of others, including (Title IX investigator Honey) Ussery,” court documents read.
The resulting investigation, which included full cooperation from Doe, ultimately led to his expulsion. In January 2018, Doe filed a lawsuit against the Institutions of Higher Learning, the University of Mississippi, the Title IX coordinator Honey Ussery and Director of the University’s Office of Conflict Resolution and Student Conduct Tracy Murry.
Part of the reason for the lawsuit, according to official court documents, is that the University of Mississippi’s Title IX adjudicator training is unfairly biased against men and, as such, Doe feels he did not receive due process. Doe is requesting reinstatement at the university and that his record be expunged and sealed.
According to Dr. KC Johnson, a Harvard University graduate and history professor at Brooklyn University, this case stands out as one of the 225 cases of its kind since the 2011 “Dear Colleague Letter” changed federal Title IX policy. Johnson is the co-author of “Until Proven Innocent,” a book about the Duke lacrosse team scandal, and considers himself an expert on such matters.
Lawson Hester, the Jackson-based attorney representing Doe, acquired a copy of the university’s Title IX adjudicator training material and submitted it as evidence of bias. It is federally mandated that all Title IX adjudicators receive training, but it is rare for a university’s training materials to be made public.
“The Mississippi training is the most one-sided training that has appeared, because of those slides where the adjudicators are trained that, if the complaining student lies, that’s sign of the truth, which really doesn’t make a whole lot of sense,” Johnson said. “You know what they’re trying to do here, saying that sometimes victims lie, which is absolutely true. But that’s not what the training says. The only reference to lying in the training are in the context of the person being guilty.”
In particular, Johnson referenced the “Credibility” section of the presentation, which reads, “Inconsistency may or may not be important, depending on several factors; is there a reasonable explanation, is the point significant or trivial, etc. Just because a witness’s statement may vary over time (e.g. reporting party’s or respondent’s statement to police vs. what he/she says during a hearing weeks or months later), that does not compel a conclusion that the witness is lying.”
The section goes on to instruct adjudicators to ask themselves, “Is the variation something that might have resulted from a memory lapse?”
It also says too much consistency could mean the story is rehearsed or memorized.
The “Evidence” portion of the training is also problematic, he said.
This section includes statements such as, “Remember your standard: just need to have some evidence to justify outcome – only if evidence overwhelming in the other direction do you consider appeal.”
“Circumstantial evidence” such as hearsay is also deemed acceptable, according to the presentation.
“Hearsay is permitted in student conduct hearings,” the presentation read. “Hearsay is simply statements mad by one person about statements they heard from someone else.”
“In terms of the national precedent, the question that’s before us with this case is, can a university with what is sort of blatantly biased training material nonetheless be able to kick a student out?” Johnson said. “I want to be clear: I’m not saying in any way that this is a malevolent training or anything like that. I would assume this came from the best of intentions, but it is what it is.”
Johnson explained that with similar lawsuits, a plaintiff might say the panel who reviewed their case was biased, but only have influential evidence. However, the presence of clear bias in the training materials, he said, is a “smoking gun” for Doe’s case.
Because this case is in the Fifth Circuit Court, another layer of precedent is added. The fifth circuit court is the only court in the country that is required to prove “that this isn’t a clear-cut case of Doe’s guilt,” before it proceeds, Johnson said.
“This is an ambiguous case that, you can certainly imagine, if the panel were fairly trained, they would have come back with a not guilty finding,” he said. “This is not a case where you would say, ‘[Jane Roe] is an awful person because of what she did.’ There’s no reason to doubt her story. The question is, was the process a fair one?”
During a motion to dismiss hearing that was held on July 24 at the defendants’ request, judge Daniel P. Jordan, III, ruled that the training process and Title IX investigation process presumed John Doe was guilty. Doe filed for a preliminary injunction –a court order which prohibits the parties from doing an act in order to preserve the status quo until a pending ruling – following the hearing.
“As long as you start with that assumption – and of course most people who are accused are guilty – the training does make sense,” Johnson said. “That’s what makes this case such an interesting and potentially important one, is that the investigative bias is so clear-cut here. In most cases, it’s much more ambiguous.”
Compared to others of this nature, Doe v. The University of Mississippi is moving at a fast clip, Johnson said, due in part to an efficient judge. A ruling could be coming soon, but it is unclear which way it will lean.
Because they are named individually and in their official capacities, Vitter, Ussery and Murry have all been subpoenaed. If they testify in Jackson next week, Johnson explained, it could tip the scales in Doe’s favor.
“This is the first of these lawsuits in Mississippi since the Dear Colleague Letter,” Johnson said. “However he rules, I suspect judges in Louisiana and Texas will also be looking to his opinion to get a sense of how to evaluate this standard in the context of due process standards.”
If the judge rules in Doe’s favor next week, there is a very real possibility he could be back in class at the university in time for the start of fall semester, with certain provisions such as a no-contact order or whatever the judge deems appropriate.
A representative from the University and from the office of Doe’s attorney did not respond to request for comment.