State Attorney General supports dissmissal of Title IX lawsuit

Joseph Schulz, Managing Editor

The university’s legal counsel, composed of state Attorney General Josh Kaul as well as Assistant Attorney Generals Anne Bensky and Gesina Carson, filed a brief in support of UW Oshkosh’s motion to dismiss an ongoing legal battle.

The Nov. 20 brief reiterates arguments made in previous filings in response to a John Doe suing the university on Sept. 11, alleging his constitutional right to due process and equal protection was violated in a Title IX investigation into a potential sexual assault.

The university argues that Doe’s due process claim fails because he has not properly pled a loss of property nor exhausted procedures already provided by the state.

A property interest is paramount in a due process case because the 14th Amendment to the United States Constitution says that the state can’t deprive someone of life, liberty or property without due process.

In previous court filings Doe’s lawyer, Peter Culp, argues that Doe facing suspension from all UW institutions for one year and from UWO for two years constitutes a loss of property.

In the most recent filing, the university’s legal counsel said Culp’s argument ignores state precedent by citing cases from other states and that case law dictates that a college education by itself is not a property interest.

The brief argues that Doe has not been constitutionally deprived of anything and that he is trying to avoid the “inconvenience of having to go through the administrative process.”

Even after a future student nonacademic misconduct hearing, if Doe is found guilty of sexual assault, he can appeal the ruling to Chancellor Andrew Leavitt prior to receiving punishment, court papers added.

The university argues that Doe’s due process claim is premature because adequate state remedies exist.
“Doe’s due process claim amounts to a request that he not be subject to the State’s process at all — or, at least not right now,” the brief said.

Culp also argued in prior filings that the hearing examiner was biased toward the victim Doe’s potential sexual assault.

The university’s brief argues that even if the hearing examiner was biased, other administrative remedies from unbiased decision makers are still available.

“[Doe] will have multiple avenues of review and appeal,” court papers said. “He cannot attempt to avoid the state process by instead asserting a federal claim.”

The brief also said Doe failed to state an equal protection claim showing that he was treated any differently than anyone else subject to a Title IX investigation.

“Assuming, as required at this stage, the allegations in the complaint are true, they at best may infer irregularities in the procedure that do not violate the Constitution,” court documents said.

A judge did not rule on this case prior to publication.