Campus Due Process Litigation Tracker

Gischel v. University of Cincinnati, 302 F. Supp. 3d 961 (S.D. Ohio 2018)

School type: Public
State: Ohio
Federal Circuit: Sixth
Decision primarily favorable to: Student
Stage of litigation: Motion to dismiss
Keywords: Cross-examination, Due process, Erroneous outcome, Title IX

The court granted in part and denied in part the university’s motion to dismiss.

Plaintiff Tyler Gischel met Jennifer Schoewe at an off-campus party on August 22-23, 2015. Schoewe was intoxicated, and Gischel and a friend agreed to walk her home. The friend became separated on their way. Schoewe kept making wrong turns and Gischel took her to his apartment, where, according to him, they had consensual sex.

At some point between August 23 and August 25, Schoewe reported the incident to UC’s Title IX coordinator, Jyl Shaffer. She claimed that she had blacked out on the night of the incident despite not drinking enough to black out. She suspected that she was drugged and was sexually assaulted when she was unconscious.

Gischel alleged that the panel hearing his case was biased because a significant portion of his questions to Schoewe were not asked, even though he was asked all of her questions to him. First, the panel did not ask Schoewe whether she had a personal or romantic relationship with Detective Richey, the detective investigating her case. Second, the panel did not ask questions intended to show that Schoewe was not incapacitated on the night of the incident. Gischel was found responsible for sexual misconduct at the hearing and was expelled.

Gischel alleges due process, equal protection, and Title IX claims against the university, and a malicious prosecution claim against Detective Richey.

The court held that Gischel’s hostile environment and deliberate indifference claims could be collapsed. Since he had not shown sexual harassment in the disciplinary proceeding context, those claims were dismissed. For his selective enforcement claim, the court found that Gischel failed to plead facts suggesting that “a female accused of sexual assault was treated more favorably by UC,” so that claim was dismissed.

The court held that Gischel had, however, stated a plausible “erroneous outcome” claim under Title IX, which requires a plaintiff to (1) plead facts sufficient to cast articulable doubt on the outcome of the proceeding, and (2) plead facts suggesting a causal connection between the erroneous outcome and gender bias. Gischel’s complaint alleged that Schoewe gave investigators conflicting evidence of how much alcohol she had consumed and that Gischel was not allowed to ask questions about Schoewe’s potential involvement with Detective Richey. Both of these were sufficient to cast articulable doubt on the outcome of the proceeding. With regard to gender bias, the court noted that UC was under Title IX investigation at the time of Gischel’s hearing and that a note in Gischel’s case file stated that his case was “part of” that investigation. The court also held that Gischel had raised the possibility of gender bias by Detective Richey, who may have been romantically and sexually involved with Gischel’s accuser Schoewe, and thus might have “a gender-based animus against Gischel, a male who had sexual intercourse, whether consensual or non-consensual, with Schoewe.”

On Gischel’s §1983 due process claims claims, the court held that Gischel had stated a plausible procedural due process violation based on the fact that he was not promptly notified of the investigation, the investigation was not timely adjudicated, and that he was only granted limited right of cross-examination during the hearing.

The court also allowed Gischel’s malicious prosecution claim against Detective Richey to proceed.