Campus Due Process Litigation Tracker

Pierre v. University of Dayton, 2017 U.S. Dist. LEXIS 44442 (S.D. Ohio March 27, 2017)

School type: Private
State: Ohio
Federal Circuit: Sixth
Decision primarily favorable to: University
Stage of litigation: Motion to dismiss
Keywords: Basic fairness, Breach of contract, Erroneous outcome, Evidentiary standard, Right to counsel, Title IX

University’s motion to dismiss granted.

Plaintiff Dyshawn Pierre was suspended for sexual misconduct after an adjudication under an affirmative consent standard. He and a woman had been consensually naked in his bed, but they ultimately had intercourse that she alleged was nonconsensual. Although Plaintiff said he “interpreted [her] body language as consent,” he was ultimately unable to point to specific examples of body language that led him to believe he had consent, and was found responsible.

At Plaintiff’s hearing, both parties had the option to submit written questions to be asked of the witnesses and of one another, but Plaintiff did not do so. After his suspension, Plaintiff appealed, raising for the first time the fact that he has a disability that affects his ability to express himself verbally. His appeal was denied.

Plaintiff alleged breach of contract based on a variety of concerns he had with the process, including timeliness, notice, and the thoroughness of the investigation. The court, noting that “[t]he proper focus in analyzing whether a private university provided fundamental fairness is whether the University adhered to its misconduct procedure,” dismissed Plaintiff’s breach of contract claims after finding that “[v]iewing the record of the University proceedings attached to Plaintiff’s Complaint, the University did comply with its own policies.”

Plaintiff also claimed that the university shifted the burden of proof to him to prove his innocence, which is a concern that many due process advocates have raised with regard to “affirmative consent” standards. The court was highly dismissive of this argument, however, noting only that the university was using the preponderance-of-evidence standard required at the time by the Department of Education, and that Plaintiff could have chosen to not even participate in the disciplinary proceeding.

The court also dispatched quickly with Plaintiff’s argument that he had the right to active representation of counsel, noting that absent extenuating circumstances (such as an attorney presenting the university’s case, or unusually complex evidentiary rules), students in campus disciplinary proceedings have no such right.

The court dismissed Plaintiff’s Title IX “erroneous outcome” claim, noting that Plaintiff had plead no facts that would connect his allegedly flawed proceeding to gender bias, and dismissed his other remaining claims as well.