A Virginia judge will allow a formerly accused Washington and Lee University student to continue with his lawsuit alleging gender bias against the university.
Judge Norman K. Moon denied W&L's motion to dismiss the lawsuit, allowing John Doe — as he is referred to in the claim — to continue to seek damages resulting from his expulsion from the university. John believes he was wrongly accused of sexual misconduct, and Moon appears to agree.
On Feb. 8, 2014, John and his eventual accuser, Jane Doe, met at an off-campus party. The two danced, talked and kissed.
The two eventually went back to John's residence and talked for awhile. Jane then walked over to John and allegedly told him, "I usually don't have sex with someone I meet on the first night, but you are a really interesting guy." Jane then began kissing John and the two had sex.
The next morning, John drove Jane home and the two exchanged cellphone numbers. Shortly after the encounter, the two became friends on Facebook. The two exchanged friendly messages.
During the summer of 2014, Jane worked at a women's clinic that handled sexual assault issues. After speaking to people there about her encounter with John, she began reclassifying the encounter as sexual assault.
When she returned to campus in the fall, Jane claimed on a study abroad application that she had been sexually assaulted. She also attended a presentation by W&L's Title IX officer Lauren Kozak. Kozak claimed that "regret equals rape," and introduced the concept as a new idea people were now supporting.
Once Jane learned that John had been accepted into the study abroad program, she filed a sexual assault claim, now eight months after the encounter.
Kozak conducted the investigation. John alleges in his lawsuit that he was given six hours notice to meet with the investigators but was not told why. When John met with Kozak and learned of the allegations against him, he was not shown a copy of Jane's complaint.
John was denied legal representation, and when he tried to postpone a meeting with Kozak, she allegedly told him: "That's fine. We'll just submit the investigation report without your side of the story."
With this, John was forced to give his side of the story and provide Kozak with a list of potential witnesses. Only two of the four names given were interviewed because, as Kozak would later tell him, she had enough facts.
John's witnesses stated they had seen he and Jane after the encounter and nothing seemed out of the ordinary. "There never seemed to be anything wrong. It seemed to be two people who got along well," one witness said.
Two of Jane's witnesses contradicted her claims as well. One of Jane's friends described how she acted the next day, without any indication that a sexual assault had happened until five months later. Jane's former roommate stated that Jane seemed confused about the encounter the day after it happened but was surprised to learn of the allegation since Jane had never before claimed it was sexual assault. The former roommate also noted how Jane made the accusations only after working at a women's clinic over the summer.
W&L's investigation included statements from two therapists who allegedly worked with Jane. The first explained that Jane "had feelings for [John]" and that she "enjoyed the sexual intercourse" with him. The therapist acknowledged that she "walked [Jane] through those feelings to discuss how her actions and feelings didn't negate that it was a sexual assault."
The second therapist to treat Jane claimed the accuser described "an evolution about how she felt about the incident," and had a "strong physical reaction" to learning that John was also accepted into the study abroad program, which is why she filed her claim.
Kozak's investigative report, according to John, was incomplete. He tried to change portions of the report, including the inaccurately clipped quote from Jane. John claims Jane said "I usually don't have sex with someone I meet on the first night, but you are a really interesting guy," but the report included only the first part of the sentence, omitting the "interesting guy" part.
Kozak didn't fix the report.
John was then required to meet with W&L Dean Tammi Simpson, who had been given the report. Simpson allegedly suggested to John that he transfer schools rather than face the disciplinary hearing. John refused.
The hearing was typical for current accusations of campus sexual assault. John was prohibited from having representation, and could only submit questions ahead of time to be asked of Jane. There were no witnesses at the hearing, only their summary statements compiled by Kozak. Jane was physically separated from John by a partition, a move certain to show bias toward the accused.
The panelists did not ask all of John's submitted questions, and the ones they did ask were paraphrased incorrectly or asked out of order, John alleges.
Jane's testimony was also different from what she told the investigators, according to John's lawsuit. During the investigation, Jane said she was not intoxicated the night of the encounter and had no recollection of talking to John on a porch after the party where they met. During the hearing, she claimed she was "considerably intoxicated" and remembered the conversation in detail.
Jane also contradicted herself during the hearing, at first describing John as disrespectful and later describing him as sweet and genuinely interested in her.
John, despite no evidence other than Jane's belated accusation, was found responsible for sexual misconduct and expelled.
Judge Moon found that there was sufficient evidence for John to claim that he was discriminated against as a male and thus entitled to sue under the anti-discrimination law Title IX.
He added that John "plausibly established a causal link between his expulsion and gender bias." Moon offered Kozak's claim that "regret equals rape" as an example, since Kozak was clearly biased and was responsible for the investigation that led to John's expulsion.
"Given these allegations, as well as plaintiff's charge that W&L was under pressure from the government to convict male students of sexual assault, a reasonable fact finder could plausibly determine that plaintiff was wrongly found responsible for sexual misconduct and that this erroneous finding was motivated by gender bias," Moon wrote.
This is a huge finding considering that the claim of Title IX gender bias has been thrown out in the past by other judges. That John was able to continue with a discrimination claim may affect future cases (although it is not guaranteed that he will ultimately win this case or that W&L won't choose to settle instead).
But it is not all good news for John. His two other claims — break of contract and lack of due process — were dismissed by Moon.
Moon said that since John attended a private university, he was not entitled to the due process protections afforded to him under the U.S. Constitution (take note, future private school students). But Moon did offer hope to future public school students by noting in his denial of W&L's motion to dismiss that "had plaintiff been enrolled at a public university, he would have been entitled to due process and the proceedings against him might have unfolded quite differently."
Of course, we have seen similar outcomes in public universities since the federal government has eviscerated due process rights in recent years.
As for John's "breach of contract" claim, Moon's decision offers some insights for future accused students. "[T]he Student Handbook does not form a mutuality of engagement between W&L and plaintiff, and therefore does not create a contract," Moon wrote.
John's attorneys have not responded to a Washington Examiner request for comment.