Two New Federal Court Decisions of Interest

Tim Burke, Manley Burke, tburke@manleyburke.com

Cases involving allegations of sexual assault, the rights of those accused, and who is liable for the wrongdoers conduct continue to pile up.

Two federal district court cases are among the latest examples.  One in Indiana; the other in Ohio.

Jane Doe No. 62 v. Delta Tau Delta, Beta Alpha Chapter,¹ involved allegations that a member of the DTD Chapter had a known history of sexual assault.  Eighteen months after the first alleged known assault of another woman, the Plaintiff reported that the same individual assaulted her.  She reported that to the police.  The assailant was charged with sexual assault and ultimately pled guilty to a charge of battery.

The court points out that:

“The Delta Tau Delta Fraternity maintains a code of conduct for its members.  That code includes ten statements regarding conduct that it states members ‘must adhere to,’ and it includes an oath that states ‘on my solemn oath, I will abide by this code of conduct and will confront members of the Fraternity who are in violation.’  Among those obligations, members are asked to agree that they ‘will respect the dignity of all persons and therefore they will not sexually abuse any human being’ and ‘they will not abuse or support the abuse of alcohol.’”

At the point the court issued this decision, the only matters remaining to be resolved were claims that the DTD Chapter was negligent in the retention and supervision of its members, negligent with regard to premises liability, negligent due to willful, wanton and reckless misconduct, and under general common law negligence.

The court’s 23-page decision did not resolve the matter, but rather granted part of DTD’s Motion for Summary Judgment, effectively dismissing the claims of negligent supervision and retention.

Instead of deciding the remainder of the matters, the court took an unusual step and certified a series of legal questions to the Indiana Supreme Court for its consideration.

Here, it is important to recognize that the case was brought in federal court as a result of diversity (parties from separate states).  The federal court properly desired to apply Indiana law to the resolution of the matter because that is where the alleged wrongdoing occurred.

After spending considerable time in its decision discussing developing legal standards under Indiana law, the court concluded that “even using its best predictive powers, it is not clear to this court what the Indiana Supreme Court would conclude as to whether a fraternity chapter owes a duty to a female social invitee to protect her from sexual assault by a member against whom an accusation of sexual assault had previously been made.”   While the court indicates that it could have decided these issues, it did not want to “deprive the Indiana Supreme Court of the opportunity to address these legal questions in light of the relatively new and unexplored precedent” – two somewhat analogous but non-fraternity cases involving property owner liability.²

The court certified a series of four questions, asking for guidance from the Indiana Supreme Court.  The questions can be summarized as follows:

“Could the court consider the knowledge the chapter may have had in determining the foreseeability of the sexual assault of the plaintiff?

Under Indiana law, does a fraternity owe a duty to a female social invitee to protect her from sexual assault by a member of the Fraternity during a fraternity-sponsored event?

Does it make a difference if there is evidence that prior to the event some members of the Fraternity were told by a third party that the alleged perpetrator had on an earlier occasion sexually assaulted a female?

Does it make any difference that the victim of a sexual assault may have been under the influence of alcohol, [the decision indicates that the plaintiff ‘consumed approximately six shots of alcohol with friends in her dorm room] at the time of the sexual assault?”

The court did find that Indiana law was clear that a claim of negligent retention and supervision was only applicable against an employer.  As a result, it granted the part of DTD’s Motion for Summary Judgment that related to the negligent supervision and retention claim, but it denied the remainder of DTD’s Motion for Summary Judgment regarding the other negligence claims, recognizing that those issues could be re-raised after, and depending upon how, the Indiana Supreme Court answered the certified questions.

But as it turns out, the Federal District Court will have to exercise its “predictive powers” because it won’t be getting any guidance from the Indiana Supreme Court after all.  On June 1^st the Supreme Court exercised its authority under Indiana Rule of Appellate Procedure 64 regarding certified questions of state law from Federal Court and declined by a majority vote to accept the certified questions.

It has already been over three years since the event where Plaintiff was assaulted occurred.  It appears to be likely that neither the Plaintiff nor DTD will have a judicial resolution to this case for a considerable period of time.  Presumably the district court will schedule the case for trial and then answer the four questions.

The other federal court case was in an Ohio United States District Court sitting in Columbus.  There the court considered the due process entitled to a student accused of sexually assaulting another student.  In Roe v. Adams-Gaston,³ Jane Roe was suspended and ultimately expelled for two alleged sexual assaults.  Roe sued defendant representatives of Ohio State University (OSU) focusing her claims on a constitutional right to due process, specifically the ability to cross-examine adverse witnesses during university disciplinary hearings.

Roe was charged with two separate instances of sexual assault.  The first incident occurred on September 3, 2016.  Eight months later, following a disciplinary hearing, Roe was suspended for two years.

In the interim, between the first instance and the hearing eight months later, a second incident occurred on November 12, 2016.  The hearing regarding that charge resulted in Roe’s permanent dismissal from OSU on July 21, 2017, which was upheld in the University appeal process in October 21^st.

Roe’s complaint, filed shortly after her permanent dismissal, seeks a declaratory judgment that “defendants violated her right to due process under the Ohio and United States Constitutions, and claims a violation of the United States Civil Rights Act, 42 U.S.C., Section 1983” and an injunction prohibiting her punishment.  The court conducted a hearing on Roe’s Motion for a Preliminary Injunction to prevent OSU from disciplining her.  That hearing and Roe’s argument at this point in the litigation, focused only on the alleged procedural deficiency of the disciplinary process – Roe’s inability to effectively cross-examine adverse witnesses.  In the two disciplinary hearings involving Jane Roe, critical witnesses did not even attend the hearing.  Instead, witness statements were read.  Some of the statements were those of a university investigator summarizing what witnesses said.

As the court summarized, the United States Supreme Court instructed in Matthews v. Eldridge,⁴ that to determine the amount of process required under the Constitution, the courts must consider 1) the nature of the private interest effected by the deprivation; 2) the risk of an erroneous deprivation and the value of any additional or alternative procedures; and 3) the governmental interest involved, including the burden additional procedures would entail.  The court went on to note, “the Sixth Circuit has held that a student facing suspension or expulsion is entitled, at a minimum, to notice of the charges, an explanation of the evidence against her, and an opportunity to present her side of the story before an unbiased decision-maker.”⁵

The court recognized how important the ability to cross-examine is.  It is “a fundamental feature of our legal system … An individual’s ability to test the government’s evidence is important with respect to documentary evidence, but ‘it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice or jealousy.’”

The district court repeated a long quote from the Sixth Circuit explaining the critical importance of cross-examination:

“Cross-examination takes aim at credibility like no other procedural device.  A cross-examiner may ‘delve into the witnesses’ story to test the witnesses’ perceptions and memory.’  He may ‘expose testimonial infirmities, such as forgetfulness, confusion, or evasion, thereby calling to the attention of the fact-finder the reasons for giving scant weight to the witnesses’ testimony.’  His strategy may also backfire, provoking the kind of confident response that makes the witness appear more believable to the fact-finder than he intended.  Whatever the outcome, ‘the greatest legal engine ever invented for the discovery of truth’ will do what it is meant to do ‘permit the fact-finder that is to decide the litigant’s fate to observe the demeanor of the witness in making his statement, thus aiding the fact-finder in assessing his credibility’.”⁶

While recognizing the critical value of cross-examination, the courts have permitted universities “some flexibility in the cross-examination procedures they use in disciplinary hearings.”  Universities may not be required to allow the Perry Mason-style riveting cross-examination often depicted on television where a witness breaks down and admits they are lying.  Under appropriate circumstances, universities may be limited to allowing the accused to submit written questions, or impose other limitations designed in part to protect the victim from being required to relive a horrific experience while allowing the accused some ability to test the facts as related by the victim and other witnesses.

A university disciplinary hearing is not a criminal proceeding.  The resolution does not include the possibility of a long jail sentence.  On the other hand, the suspension or expulsion from a university is a very serious matter and can have long-term consequences for the accused.  A university disciplinary hearing does not depend on proving an individual’s guilt by the criminal standard of beyond a reasonable doubt.  On some campuses, the standard of evidence is simply more likely than not, the preponderance of evidence, (50% + 1), that an individual engaged in the proscribed conduct.  All of which makes it critically important that an accused has the right to test in some appropriate fashion the credibility of the witnesses against them.

It is not until the end of the court’s decision that we learn that Roe had completed all of her coursework and simply seeks the conferral of her degree.  As a result, the court did not need to consider the issue of any substantial harm to others or how the public interest might be harmed by permitting Roe to remain on campus.  The court concludes by granting Roe’s Motion for a Preliminary Injunction, prohibiting OSU from disciplining Roe based on the two hearings it conducted.  But it concludes with this final paragraph:

“To be clear, the court’s preliminary injunction does not prevent defendants or OSU from prohibiting Roe from entering the campus and contacting the complainants or other individuals involved in the disciplinary matters.  Nor does the court’s preliminary injunction prohibit defendants or OSU from holding new disciplinary hearings that satisfy the Constitution’s due process requirements and then disciplining Roe if, based on the hearings, she is found to have violated OSU’s Code of Student Conduct.”

Judge Edmund A. Sargus, Jr., who authored the decision in Roe v. Adams-Gaston, will be a speaker at November’s Fraternal Law Conference.

1 No. 1:16:CV:0148-JMS-DML, (S.D. Ind April 17, 2018).

2 Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016) and Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016).

3 No. 2:17-CV-945, (S.D. Ohio April 14, 2018).

4 424 U.S. 319, 335 (1976).

5 See Doe v. Univ. of Cincinnati, 872 F.3d 393, 399-400 (6^th Cir. 2017).

6 Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 641 (6^th Cir. 2005).