John Doe lawsuit fizzles out

Joe Schulz, Managing Editor

A year-long legal dispute between a former student and UW Oshkosh regarding the constitutionality of a Title IX proceeding concluded last week Friday with a judge dismissing the case.

The dismissal came after the former student — referred to in court documents as John Doe — and his legal counsel, Peter Culp, failed to appear at an Oct. 22 hearing.

After Doe failed to appear before the court, U.S. District Judge Brett Ludwig ordered Culp or Doe’s other counsel to “show cause in writing on or before Nov. 5.”

Culp filed a legal brief on Nov. 6, but it was too late and the case was dismissed by Ludwig that day for “failure to prosecute.”

Ludwig’s ruling marks the end of a legal fight that began with a Sept. 11, 2019 lawsuit from Doe against the university that aimed to poke holes in the university’s administrative process, claiming UWO had violated his 14th Amendment rights to due process and equal protection.

The case stems from a March 16, 2019 off-campus party sponsored by the Zeta Tau Alpha sorority, after which Doe allegedly sexually assaulted a sorority member.

UWO held nonacademic 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 nonacademic 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.

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, further complicating his due process claims.

Ultimately, the lawsuit ended before a judge could make a ruling regarding Doe’s argument and UWO’s response.