In an ongoing legal battle between a John Doe and UW Oshkosh, the university’s lawyer Anne Bensky and Wisconsin Attorney General Josh Kaul filed a response to Doe’s allegation on Sept. 25 that the university violated his constitutional right to due process.
Doe filed a lawsuit against UWO on Sept. 11 asserting the university’s investigation into a possible sexual assault was unconstitutional.
The case stems from a March 16, 2019 off-campus party sponsored by the sorority group Zeta Tau Alpha’s UWO chapter.
Doe 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 documents, on May 13, she reported the encounter as nonconsensual to Associate Dean of Students Joann “Buzz” Bares.
The response argues that Doe’s due process claim is invalid and that UWO’s nonacademic misconduct procedure is constitutional.
The documents argue Doe does not have a property or liberty interest at risk, which are essential to claiming his 14th Amendment rights were violated, as the amendment prohibits states from depriving someone’s liberty or property without due process of the law.
The response says a college education is not a property interest the same way a public education from kindergarten through 12th grade is.
“Seventh Circuit case law dictates that a college education itself does not create a property interest,” court papers said.
Doe has not claimed a liberty interest because damaging his reputation is not the same as damaging his liberty, the documents argue.
The papers provide an example from a previous lawsuit where another plaintiff’s liberty was damaged because he was expelled from his military ROTC program, which deprived him of pursuing the career of his choice.
“In the present case, John Doe has not alleged deprivation of a liberty interest and thus his due process claim, as pled, must fail,” according to court documents.
Doe has not exhausted the procedures provided by UWO and the state of Wisconsin, the response added, arguing that a state law cannot be found to violate the Constitution unless it’s “inadequate enough to the point that it is meaningless or nonexistent.”
Court papers note that Wisconsin has post-deprivation procedures in place that allow a court to set aside a state administrative decision if the decision was impaired.
The response argues that Doe will receive a constitutionally adequate process.
The documents said Doe’s argument that the hearing examiner’s refusal to subpoena witnesses hinges on a 1982 case that is “not binding on this court” because the case’s verdict did not address “whether the Fourteenth Amendment requires an administrative body to issue subpoenas in a student disciplinary proceeding.”
Court papers acknowledge hearing examiner Abigail Sylvia and university prosecution John Palmer both report to Dean of Students Art Munin, but papers say this is “insufficient to offend due process.”
Documents noted Sylvia’s communications with the woman accusing Doe of sexual assault do not violate the 14th Amendment either because he has not provided information explaining the nature of those communications and does not cite legal authority that the communications violate due process.
UWO’s cross-examination procedure of forcing Doe’s lawyer to cross-examine the woman with note cards is constitutional because a hearing examiner can adopt procedures for questioning appropriate to the circumstances, the response argues.
“The Sixth Circuit, however, has addressed whether cross examination by alternative means violates due process and has indicated that questioning a complainant via ‘written preapproved questions’ is permissible,” court papers said.
The documents argue Doe has not established irreparable injury because the process has not yet deprived him of anything.
“The plaintiff did not cite to any legal precedent showing that a student facing Title IX proceedings can be irreparably harmed by simply participating in the process,” court papers said.