Campus Due Process Litigation Tracker

Doe v. Ohio State University, 311 F. Supp. 3d 881 (S.D. Ohio 2018)

School type: Public
State: Ohio
Federal Circuit: Sixth
Decision primarily favorable to: Student
Stage of litigation: Motion for summary judgment
Keywords: Cross-examination, Due process, Exculpatory evidence

The court granted in part and denied in part defendants’ motion for summary judgment and reinstated Plaintiff’s due process claim regarding an expert witness.

Plaintiff John Doe and his accuser, Jane Roe, were both students at the Ohio State University (OSU) medical school. Before meeting Plaintiff, Jane Roe had failed her first year of medical school, but the school granted her a reprieve and allowed her to take the courses again. One night, Plaintiff and Jane Roe were at a bar where they were seen “talking and flirting.” The two went back to Plaintiff’s apartment and engaged in sexual activity. Jane Roe alleges she had a “blackout” and remembered nothing of the event, while Plaintiff claims she was aware and consented to the sexual activity. There is conflicting testimony regarding how intoxicated Jane Roe was that night.

Two months later, OSU notified Roe that she again had failed her medical school classes and recommended a hearing with the Academic and Behavioral Review Committee (ABRC) to consider her dismissal from the medical school. After Roe had been notified that her future at the medical school was in jeopardy, she told Natalie Spiert, the assistant director of the Sexual Civility and Empowerment Program on campus, that she had been sexually assaulted by Plaintiff. Spiert wrote Roe a letter of support and attended the ABRC hearing with her. During the hearing, Roe told ABRC that the reason she had failed the curriculum again was because she had been a victim of sexual assault. She told the committee she was planning to officially report the sexual assault to the university and the committee granted her request to stay at the university and restart her first-year of medical school.

During Plaintiff’s disciplinary hearing for his alleged violations of OSU’s Code of Student Conduct, the decision turned largely on credibility. Jane Roe stated that “[the committee’s] decision to keep [her] in school and to allow [her] to continue next year in the fall was already decided before [her] decision to report this assault.” Not only was Spiert present at the hearing and did not object to Roe’s account of events, but Plaintiff was also not afforded the opportunity to cross-examine Roe on her credibility. Moreover, the hearing coordinator prohibited Plaintiff from calling an expert witness to testify regarding Roe’s level of intoxication.

The court held that Plaintiff’s due process rights may have been violated because his lack of knowledge regarding Roe’s statements to the ABRC hindered his ability to obtain “specific credibility impeachment evidence.” The court explained: “[Plaintiff] couldn’t effectively cross-examine Jane Roe on a critical issue: her credibility, and specifically, her motive to lie. This particular situation may indeed demand the procedural protection of the university either correcting a false statement or providing the accused with the necessary information to impeach a critical witness.”

The court denied summary judgment on Plaintiff’s due process claim against Spiert because there was a dispute of material fact regarding whether she knew or should have known that Roe lied at the hearing, which could amount to a due process violation. The court emphasized that “the board might have reached a different conclusion on Jane Roe’s credibility if it had been presented with all the facts.”

Additionally, the court reinstated Plaintiff’s due process claim regarding the denial of his expert witness because OSU’s own policies allowed the hearing coordinator to call on testimony from a “consultant” in “certain cases [that] may require special expertise.” Although due process does not necessarily require that expert witnesses be allowed to testify, “permitting an outside expert to testify is no greater departure from [OSU’s] current procedure.” Since Plaintiff’s expert witness was to testify on Roe’s ability to consent based on her alcohol consumption, “it may be the case that due process required OSU to permit [Plaintiff]’s expert to testify, especially since “the risk of an erroneous result here was substantial” in the absence of the expert’s testimony on intoxication and its effects on memory.