14th Amendment lawsuit against UWO drags on

Joseph Schulz, Managing Editor

A hearing in a year-long legal dispute between UW Oshkosh and a former student over the constitutionality of a Title IX proceeding that followed an alleged sexual assault set for Oct. 29 has been canceled.

However, a status conference has been set for Thursday at 11 a.m. via telephone conference.

Additionally, a recent legal brief filed by the university says administrative proceedings wrapped up last December. the Sept. 25 status report from UWO’s legal representation said the student could file an amended legal complaint, making the current motion to dismiss “moot.”

The case stems from a March 16, 2019 off-campus party sponsored by the Zeta Tau Alpha sorority, after which the lawsuit’s plaintiff — who is referred to in court documents as John Doe — allegedly sexually assaulted a sorority member.

UWO held non-academic student misconduct hearings on Sept. 26 and Oct. 15, 2019 “to hear the university’s case against John Doe,” court papers say. The hearing examiner found Doe “responsible for non-academic misconduct” on Oct. 28, 2019.

According to court documents, Chancellor Andrew Leavitt sustained the findings and sanction of suspending Doe with no-contact with the university for two years on Dec. 11, 2019.

Doe’s Sept. 11, 2019 lawsuit aimed to cast doubt over the allegations and poke holes in the university’s administrative process, claiming it violated his 14th Amendment right to due process and equal protection.

Court papers alleged that the investigation into the potential sexual assault was unconstitutional because Doe’s lawyer, Peter Culp, was forced to cross-examine the woman via notecards and was barred from bringing witnesses into the student nonacademic misconduct hearing.

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

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

Meanwhile, the university’s legal counsel — composed of state Attorney General Josh Kaul as well as Assistant Attorney Generals Anne Bensky and Gesina Carson — argued last year that Doe’s due process claim was invalid 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 U.S. Constitution says that the state can’t deprive someone of life, liberty or property without due process.

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

However, in a Nov. 20 legal brief, 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 filing 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.”

Additionally, court papers say Doe did not appeal Leavitt’s Dec. 11, 2019, decision to the UW System Board of Regents, which could further complicate his due process claims.