In an ongoing legal dispute between a John Doe and UW Oshkosh over the constitutionality of a Title IX sexual assault investigation, Doe’s lawyer, Peter Culp, has filed a response to the university’s motion to dismiss the case.

Culp’s Nov. 8 filing responded to arguments made in the university’s Oct. 4 motion, stating that it did not violate Doe’s 14th Amendment right to due process in its Title IX investigation into a potential sexual assault.

The case stems from a March 16, 2019 off-campus Zeta Tau Alpha party, where Doe alleges a sorority member, referred to in documents as the confidential complainant, invited him to the party and the two had sex afterward. On May 13, she reported the encounter to the university as nonconsensual.

Doe sued the university on Sept. 11, alleging the investigation into the potential sexual assault was unconstitutional because his lawyer was forced to cross examine the complainant via notecards and was barred from bringing witnesses into the student nonacademic misconduct hearing.

Culp argues the investigation was biased from the beginning because Joann “Buzz” Bares wore multiple hats after filing the initial complaint, serving as an investigator and witness in the formal hearing on the complaint.

Doe was further denied due process, Culp states in the response, because he was denied access to the investigator’s report, which impeded his ability to prepare a defense to the allegations of sexual assault.

The university’s motion to dismiss holds that Doe’s due process claim is invalid because his claim to a property or liberty interest, being his ability to continue higher education and damage to his reputation, is insufficient and cannot be legally classified under either category.

These interests are essential to Doe claiming his 14th Amendment rights were violated as the amendment prohibits states from depriving someone of liberty or property without due process of the law.

Culp’s filing said the lawsuit does, in fact, provide a sufficient property interest, arguing that Doe’s continued education and his transcripts are enough to constitute a property interest.

“It is generally accepted that a student’s interest in pursuing a public education falls within the liberty and property protections of the 14th Amendment,” court papers said. “A number of courts have specifically recognized that a public university may not suspend or expel a student for alleged sexual misconduct without due process.”

The university argues that damage to Doe’s reputation, as a result of being labeled a sex offender, is not enough to constitute a liberty interest, which is the freedom to pursue a trade, profession or other calling.

Court documents show that the university deemed Doe a sex offender and proposed suspending him from all UW institutions for one year and from UWO for two years.

According to Culp, the university’s actions will “make it virtually impossible for Doe to continue on in his calling” because when he applies to jobs or other universities, they will request his transcripts and see that he is a sex offender.

The university argued in its initial response and in its motion to dismiss that Doe will receive a constitutionally adequate process, but Culp argues that he hasn’t so far and will not in future proceedings.

The university argues that its refusal to subpoena witnesses is constitutional — Culp disagrees. He writes that witnesses help bring all the facts of a case to light, and that it is well within the hearing examiner’s power to compel witnesses to testify on Doe’s behalf.

Culp argues that the hearing examiner’s communications with the complainant violated due process because she made procedural decisions that benefited the complainant as opposed to Doe based on those communications.

One of the procedures most impacted, Culp argues, was forcing him to cross examine the complainant via notecards.
The university could verbally cross examine Doe, but Doe’s legal counsel was prohibited from verbally cross examining the complainant, court papers said.

“The differing process did not provide equal protection or treatment under the law,” Culp wrote.

Culp further argues the university lowered its standard of proof during its investigation into the allegation of sexual misconduct than in investigations into other kinds of misconduct, in order to make sexual misconduct easier to prove.

If Culp’s assertion is correct, UWO’s investigation would be in direct conflict with a directive from the United States Department of Education’s Office for Civil Rights, which states that the standard of evidence for evaluating sexual misconduct should be the same as the standard applied in other misconduct cases.

“Doe believes this is a case that should be tried on its merits rather than by summary disposition without any discovery,” court papers said. “Fairness and justice warrant granting Doe his day in court and the defendants be held responsible for their missteps by a jury of their peers.”

The university has until Nov. 22 to respond to Doe’s opposition to the motion to dismiss.