Lawsuit says UWO failed to uphold 14th Amendment

Joseph Schulz, Managing editor

Hang on for a minute...we're trying to find some more stories you might like.


Email This Story






A UW Oshkosh student is suing the university, alleging it violated his constitutional right to due process and equal protection in its investigation into a possible sexual assault.

The lawsuit was filed in Winnebago County Circuit Court on Sept. 11 and moved to the U.S. District Court for Eastern Wisconsin on Sept. 16.

The student filed the case as John Doe and asked to remain anonymous, and much of the suit refers to him only as the plaintiff.

The suit also filed an injunction to postpone a Sept. 26 nonacademic misconduct proceeding that was denied by United States District Judge Pamela Pepper on Sept. 20.

The case stems from a March 16, 2019 off-campus party sponsored by the sorority group Zeta Tau Alpha’s UWO chapter.

The plaintiff alleges a sorority member invited him to the party where they sat next to each other on the bus ride home afterward; upon arriving at their destination, they ended up in the woman’s bedroom where they had sex.

The woman’s version of events is considered confidential and has not been made public.

According to court records:

On May 13, the woman spoke with Associate Dean of Students Joann “Buzz” Bares, who reported the encounter as nonconsensual and informed the male the same day.

On May 29, 30 and 31, the male’s lawyer presented Bares with information from three witnesses, which the university withheld from its investigative report.

According to May 29 and 30 emails from the male’s lawyer Peter Culp to Bares, both witnesses said the male has a good reputation and isn’t known for being sexually aggressive.

In a May 31 email, Culp provided Bares with a third witness, who was in a sorority that co-hosts events with the male’s fraternity.

The email said the witness had a close relationship with the male and that she’s never felt unsafe around him.

The first and second witnesses took aim at the woman’s sexual history, implying they both had sex with her, according to the redacted emails.

The university does not find past sexual history relevant to the case, according to a Sept. 10 email from Associate Director of Residence Life Abigail Sylvia.

“The law does protect the sexual history of a complainant,” Sylvia said. “Evidence regarding the complainant’s prior sexual conduct will not be admitted into evidence.”

The third witness did not speak on the character of the woman, yet the university declined to include information from all three in its investigative report, court papers show.

Unknown to the male, someone associated with the investigation selected professor Brant Kedrowski to serve as hearing examiner, the lawsuit noted.

The suit alleges the selection of Kedrowski went against Student Nonacademic Disciplinary Procedures, which says the hearing examiner is to be selected by the university’s chief administrative officer; UWO’s chief administrative officer is Chancellor Andrew Leavitt.

“Chancellor Leavitt was duty bound to select the hearing examiner, but did not,” the court papers state.

The suit noted on Aug. 21, Associate Dean of Students John Palmer sent an email to the plaintiff, scheduling a hearing on Aug. 28.

Court papers added that the email was sent to the university’s legal counsel, but not the male’s.

The lawsuit alleges Palmer did not consult the male about his availability, but did consult the female and others about their availability.

On Aug. 22, Palmer emailed the male, notifying him the hearing would be rescheduled and again did not include his legal counsel, in an attempt to “diminish [the] plaintiff’s rights and create an unfair process,” the lawsuit said.

Documents show on Aug. 23 Kedrowski emailed the male to recuse himself from the case.

The suit argues the university had prior knowledge of Kedrowski’s recusal, but intentionally chose to hide it from the male, who was informed on Aug. 26 that Sylvia was selected by UWO to serve as hearing examiner.

“This selection process was done outside the knowledge and involvement of plaintiff and was not otherwise transparent to afford a fundamentally fair process,” the lawsuit said, adding that the chancellor did not select Sylvia either.

The suit argues the appointment of Sylvia is a conflict of interest because she is employed by the Department of Residence Life, which reports to Associate Vice Chancellor and Dean of Students Art Munin.

The documents added that Palmer, who is described as leading the university prosecution, also reports to Munin.

“If that does not serve as an actual conflict of interest, it certainly presents a serious perceived conflict of interest,” the documents said.

In a Sept. 10 email, Sylvia barred Culp from verbally cross-examining the female and instead said questions would be written on note cards and read aloud by the hearing examiner.

“Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’s story to test her memory, intelligence or potential ulterior motives,” the lawsuit argues.

The suit argues Sylvia only considered the interest of the female, adopted the procedure at her request and never notified the male of her intention to communicate and consult with the female.

According to the documents, the male asked Sylvia to issue subpoenas to force witnesses to appear at the hearing, a request she denied.

The lawsuit argues Sylvia didn’t fully explain why she couldn’t issue subpoenas and went to lengths to impress that the proceeding was an educational and administrative proceeding, not a court of law.

“When it suited the confidential complainant, Sylvia strictly constructed and applied the Wisconsin Rules of Evidence,” the suit said. “When it suited Plaintiff to construe and apply the Wisconsin Rules of Civil Procedure, in regard to subpoena powers, she failed to do so in a manner that benefitted the confidential complainant.”

The lawsuit added the university has a duty to provide students equal and due process through any procedures it establishes.

“The student nonacademic misconduct proceeding has been plagued by numerous misrepresentations, errors, lack of communications and other acts and omissions,” court papers said.

UW System policy is not to comment on pending litigation, UWO specifically declined to comment on this case. The male’s Lawyer Peter Culp and UWO’s Lawyer Anne M Bensky declined to comment before publication. The Zeta Tau Alpha sorority also declined to comment on the case.