UWO files motion to dismiss: Defendants say student’s 14th amendment claim is invalid

Joseph Schulz, Managing Editor

An ongoing legal dispute between a John Doe and UW Oshkosh may be nearing its end as the university’s lawyer Anne Bensky and state Attorney General Josh Kaul filed a motion to dismiss the case on Oct. 4.

Doe filed a lawsuit against UWO on Sept. 11 that argued the university’s Title IX investigation into a possible sexual assault violated his 14th Amendment rights to due process and equal protection under the law.

The case stems from a March 16, 2019 off-campus Zeta Tau Alpha party, where Doe alleges a sorority member invited him to the party and afterward they had sex.

The woman’s version of events is considered confidential, but on May 13, she reported the encounter as nonconsensual to Associate Dean of Students Joann “Buzz” Bares.

The brief explaining the motion to dismiss closely resembles the university’s Sept. 25 response, which argued Doe’s due process claim is invalid and that UWO’s nonacademic misconduct procedure is constitutional.

The university argues Doe did not claim a property interest in his initial suit, but Doe alleges his property interest is continuing his education as he signed acceptance agreements that gives him the right to continue at UWO.
The university argues he must establish that the contract entitled him to specific rights and that the university denied him these rights.

The brief argues Wisconsin Administrative Code provides constitutional due process because the procedure allows Doe to access the university’s evidence and enables his lawyer to present new evidence and cross-examine witnesses.
Court documents add that Doe can also appeal the process if the hearing committee suspends or expels him from UWO.
“There is simply no case law holding that procedures such as those provided by the University are constitutionally inadequate,” the brief said.

The brief stated that Doe was treated no differently than any other student subject to a Title IX investigation.
Doe’s allegation that equal protection was violated requires him to show that he was treated differently because he was part of a specific group, but court papers argue that he didn’t sufficiently show that he was treated differently.

“Even if [Doe] had alleged some sort of wrongful treatment, he did not allege it was discriminatory; there was no reference to the Defendants treating others subject to the nonacademic misconduct process better,” court papers said.
The brief said Title IX Coordinator Shawna Kuether, Hearing Examiner Abigail Sylvia and Chancellor Andrew Leavitt, who were all sued along with the university on Sept. 11, are entitled to immunity with respect to due process and equal protection claims.

Kuether should be given immunity, court papers argue, because she was following a federal law requiring universities to investigate sexual assault allegations.

Documents argue that Sylvia should be immune because there is no law indicating she has failed to comply with the Constitution.

Leavitt should also be immune, court papers argue, because he wasn’t alleged to have any personal involvement with the investigation.

The brief concluded that there is no law supporting the theory that when a university investigates allegations of campus sexual assault, the investigators are violating someone’s constitutional rights.
A judge did not dismiss Doe’s case prior to publication.