It may finally be payback time for one student at James Madison University. In a case involving a dubious sexual-assault claim and a proceeding reminiscent of Franz Kafka’s The Trial, “John Doe,” the accused male student, received a five-year suspension from the university. A court later reinstated him. And now the university may be required to pay Doe a cool $849,231.25 to cover his legal costs — if the judge on the case accepts the recommendation of a federal magistrate.
The report filed by U.S. magistrate Joel Hoppe in John Doe v. Alger says that the school unfairly suspended the student for a sexual assault that was alleged but never proven. In fact, Doe was found innocent by the campus tribunal that originally heard the claim.
The case’s “Jane Roe,” a female student who lived in the same dorm as Doe, had sexual intercourse with Doe and then alleged — several months later — that she had been too intoxicated to consent. Doe claims they had intercourse again several days later, which Roe denies. However, Doe produced text messages in which it appears, according to the court, that Roe was “either seeking to have more of a relationship with Doe, or being upset that he had ‘move[d] on like it was nothing.’”
Roe’s own roommate testified that she did not see Roe drink that night and that Roe was “completely fine” earlier in the evening. Roe did seem “droopyish” and “tired” when the roommate returned to the dorm and went to get Roe from Doe’s room, but Roe did not seem drunk and did not need any help walking back to her own dorm room or getting ready for bed. Another student testified in writing that Roe had come to Doe’s room on another occasion and, on seeing him with another woman, had left “visibly angry and upset.”
The campus tribunal concluded that Doe was “not responsible” on the charge of sexual misconduct. However, Roe filed an appeal with a campus board, a maneuver that would have been barred by the double-jeopardy clause of the Fifth Amendment of the Constitution if this had been a criminal prosecution in a court instead of a campus proceeding.
This state of affairs stems from the Obama administration’s “Dear Colleague” letter sent out to universities in 2011 threatening to withhold federal funding unless they changed their procedures for handling sexual-assault claims. This letter told the universities to weaken already minimal due-process protections for students accused of rape and sexual assault
That included lowering the standard of proof, prohibiting cross-examination of the accuser, not allowing the accused to be represented by a lawyer, and accepting these “double jeopardy” appeals by alleged victims in cases where the original tribunal found in favor of the alleged perpetrator. The letter’s strictures violated basic due-process rights and were roundly criticized in liberal and conservative quarters, from law professors to think-tank scholars to members of Congress.
The appeal was heard by a board of three university professors, who would not permit Doe to appear, who examined no witnesses, and who reviewed additional evidence submitted by Roe without allowing Doe even to see some of it.
Jane Roe presented a voicemail from a friend at another university in an effort to prove she was intoxicated on the night of the alleged rape. However, a screenshot of the voicemail showed that the message had been left the evening prior to the night of the alleged assault. One of the appeal-board members, Professor Dana Haraway, admitted she didn’t realize this until after Doe filed his lawsuit, a sad comment on the incompetence of the board’s procedures as well as its members.
Roe also alleged that her roommate had lied when she testified in the original hearing that Roe was not intoxicated the night Roe claims she was raped. Roe said her roommate was trying to “cover her tracks” because the roommate had been drinking, too.
These pieces of evidence were never presented to Doe, rendering him incapable of defending himself against them. Furthermore, because of school policy, Doe was barred from contacting Roe’s roommate to further question her original testimony or even ask her to reaffirm her previous statements. The appeals board also didn’t bother to question either Roe or the roommate about these contradictory claims.
Without giving any explanation for its decision to overrule the campus tribunal, the appeals board suspended Doe from the university for five years. That decision was reviewed by Mark Warner, JMU’s senior vice president of student affairs and university planning, who affirmed the appeal board’s decision — also without explanation. Doe’s readmission would be allowed only if he completed “an education/counseling program and then reapplied” after half a decade. And, even if readmitted, he would be banned from “Greek involvement and functions.”
Doe wasn’t even told about the decision of the appeal board until Warner had finalized his punishment. Thus Doe had no opportunity to provide any input to Warner. And pursuant to JMU’s policy, the entire “charge file was shredded shortly thereafter,” an inherently suspicious policy seemingly intended to thwart independent review of the university’s behavior (or misbehavior).
The court decision against JMU, finding that the school had violated Doe’s fundamental due-process rights, occurred in December 2016. In April 2017, the court ordered Doe reinstated as a student in good standing and ordered the school to expunge his record of the sexual-assault claim.
But for almost a year, Doe and his lawyers have been trying to get reimbursed for his legal costs in his lawsuit against JMU. The same intransigence and refusal to recognize its wrongdoing that was evident in the original case has been present in the court fight over these legal costs. JMU rejected numerous attempts to settle the case despite its plain and obvious mishandling of the sexual-assault claim. Judge Hoppe points out that while JMU claimed Doe’s request was too high because Doe’s attorneys “overstaffed the case, were inefficient, and duplicated each other’s work,” JMU did “not offer any specific support for this position.”
Hoppe’s recommendation, that Doe receive just under $850,000 to cover his legal costs, is now with U.S. District Court Judge Elizabeth Dillon, who hopefully will approve it. But unless JMU changes its procedures and its attitude, any parents thinking about sending their kids to the university should think twice. Otherwise, they might find themselves in the same nightmare that John Doe did.
This piece originally appeared in the National Review