Federal Court Emphasizes Importance of Procedural Fairness

Tim Burke, Manley Burke, tburke@manleyburke.com

On August 25, 2017, United States District Court Judge Michael Barrett granted a preliminary injunction to a Miami University student which prohibited the University from enforcing a 2-year suspension for the student’s alleged sexual misconduct.¹

Five months after a night in November of 2016 of what apparently was heavy drinking by both the plaintiff and Jane Roe, Roe filed a complaint with the university that she had been sexually assaulted.  The notice of violation subsequently delivered to Nokes (the Plaintiff’s pseudonym) stated in part “you allegedly penetrated [Jane Roe] with your fingers and performed unwanted oral sex on her in an alleyway by Bishop Hall.  You allegedly continued even when she showed resistance….  As she entered the restroom in Bishop Hall, you allegedly entered with her, holding her head down to perform oral sex on you.”

From there, matters proceeded quickly.  The very next day after that initial notice was received by Nokes, a summary hearing was held to determine whether or not he could safely remain on campus.  He was allowed to do so.

At the time of that summary hearing, he received the first written statement Roe submitted to the University.

A second statement by Roe was received by Nokes seven days prior to his full disciplinary hearing which was held in late April.  The initial notice and statement had implied the use of force.  The second statement by Roe turned the case instead into an allegation of inability to consent due to intoxication.  The court was critical of the timing of the second statement by Roe, finding that Nokes had inadequate time to address it because it changed the nature of the case, and he received it only after he had filed his response to the claimed use of force.

The court was also particularly critical of the fact that at the disciplinary hearing, while only Roe testified in support of her claims, she also submitted three written statements from witnesses who were not presented in person, and were not subject to questioning by the panel or cross-examination by Nokes.  One of the participants on the University’s hearing panel stated that “if we can’t ask questions, I have to take this as fact, that all is true,” referring to the written statements.  That statement clearly demonstrates the unfairness of accepting such written statements when the accused has no opportunity, and for that matter neither do the hearing officials, to test the credibility of the statement by questioning its author.

Miami University and its individual defendants attempted to argue that the plaintiff would not be irreparably harmed by the denial of the injunction.  The court dismissed that argument, noting in a footnote that:

“The court feels compelled to at least note that Ohio’s public universities often benefit from a presumption of irreparable harm in their business injunction cases.  For example, in trademark cases, universities have benefitted from the rule that, due to a ‘trademark’s unique role in protecting the intangible assets such as reputation and good will,’ injuries ‘that arise as a result of trademark infringement and public confusion are by their very nature irreparable and not susceptible of adequate measurement for remedy at law.’”  Ohio State Univ. v.  Thomas, 738 F.Supp.2d 743 at 755-756 (S.D. Ohio Aug. 27, 2010) (emphasis added; internal citations omitted).  Yet when faced with a split in authority, Defendant Miami University would have this court take the view that a damages such as ‘embarrassment, humiliation and damage to an individual’s reputation falls short of irreparable harm.’ … In other words, damage to an entity’s reputation based on a single act of trademark infringement may be irreparable; damage to a person’s reputation – connecting that individual to something as universally reviled as sexual assault – is not irreparable.  The court is simply not persuaded.”

This is not the first time Judge Barrett has emphasized the importance of some form of cross-examination being available to students in major disciplinary hearings.²

1 Nokes v. Miami University, United States District Court, Southern District of Ohio, Case No. 1:17-CV-482.

2 See January 2017 Fraternal Law “Two Cases Highlight the Court’s Difficulty Resolving Due Process Challenges.”