Doe v. Wash. & Lee Univ.

JOHN DOE, Plaintiff, v. WASHINGTON & LEE UNIVERSITY, Defendant.

CASE NO. 6:19-cv-00023

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF VIRGINIA LYNCHBURG DIVISION

April 17, 2021

MEMORANDUM OPINION

JUDGE NORMAN K. MOON

Plaintiff John Doe brought this case against Defendant Washington & Lee University ("W&L"), where he used to be an undergraduate student, arguing that W&L's disciplinary proceeding against him for sexual misconduct against another student was conducted in a manner that discriminated against him on the basis of his sex. Doe claims that W&L's conduct violated Title IX. Doe claims that W&L also violated Title IX when it purportedly retaliated against him after when his lawyer sent a letter to the University.

For the following reasons, the Court has concluded that Doe demonstrated the existence of a genuine issue of material fact whether W&L discriminated against him on the basis of sex, in violation of Title IX. Therefore, that claim will proceed to trial. By contrast, the Court holds there is no genuine dispute of material fact as to Doe's retaliation claim and therefore summary judgment in favor of W&L is appropriate on that claim.

Background

As this matter is before the Court on W&L's motion for summary judgment, the factual background of the case set forth below is either uncontested or viewed in the light most favorable to Doe, as the non-movant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).¹

1. W&L's Sexual Misconduct Policy

W&L maintains a Sexual Discrimination and Misconduct Policy (the "Policy") which "prohibits a broad continuum of behaviors," including "sexual discrimination, sexual harassment, sexual assault, sexual exploitation, domestic and dating violence, stalking, and retaliation." Dkt. 74-1 at 2.² The Policy prohibits "non-consensual sexual penetration," which it defines as "[s]exual penetration with another individual without consent," and which "includes vaginal or anal penetration, however slight, with a body party (e.g., penis, tongue, finger, hand) or object, or oral penetration involving mount-to-genital contact." Id. at 13.

The Policy addresses what constitutes consent to engage in sexual activity at length. It explains that "[i]ndividuals who choose to engage in sexual activity of any type must first obtain the consent of the other party," which "is demonstrated through mutually understandable words and/or actions that clearly indicate a willingness to engage freely in sexual activity." Id. at 17. The Policy explains that "[c]onsent to one form of sexual activity does not, by itself, constitute consent to engage in all forms of sexual activity." Id.

Further, the Policy also states that an individual "who is physically incapacitated from alcohol or other drug consumption (voluntarily or involuntarily) or is asleep, unconscious, unaware, or otherwise physically helpless is considered unable to give consent." Id. at 18. That is because "[a]n individual who is incapacitated cannot consent to sexual activity." Id. at 19. Under the Policy, "incapacitation" is defined as "the inability, temporarily or permanently, to giveconsent because an individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring." Id.

Lauren Kozak is W&L's Title IX Coordinator. In that role, Ms. Kozak is responsible for overseeing W&L's "review, investigation, and resolution" of "all reports of sexual misconduct," and to further "ensure the University's compliance with Title IX and other applicable laws, and the effective implementation of [the Policy]." Id. at 6.

The University's Harassment and Sexual Misconduct Board ("HSMB") adjudicates cases of sexual misconduct. Id. at 47. It is comprised of ten individuals: three of whom may serve as Chair of an HSMB hearing, and seven administrators who may serve as members of the HSMB. Id. Under the Policy, each administrator "is appointed by the President and is specially trained to adjudicate cases of sexual misconduct." Id. at 47-48.

An allegation of sexual misconduct may prompt an investigation at W&L. Typically, a team of two investigators will conduct a sexual misconduct investigation, one of which may be the Title IX Coordinator. Id. at 45. Under the Policy, the investigators will have had "ongoing, specific training and experience investigating allegations of sexual misconduct." Id.

The Policy provides that during an investigation and any subsequent disciplinary proceeding, the complainant and respondent will be provided with one or two "Hearing Advisors." Id. at 45, 59. Hearing Advisors are "law and undergraduate students who have been trained to provide support and advice to complainants and respondents." Id. at 59. In addition, the complainant and respondent "have the right to obtain, at their own expense," assistance from an "Advisor of Choice." Id. at 59. An Advisor of Choice can be a "friend, mentor, family member, attorney, or any other supporter parties choose to advise them." Id. An Advisor of Choice, unlike a Hearing Advisor, is not trained by the University, and is not a Universityresource. Id. However, both Hearing Advisors and Advisors of Choice may be "present at any meeting or proceeding related to the investigative or disciplinary process." Id. at 45.

Once an investigation is opened, the investigators "coordinate the gathering of information from the complainant, the respondent, and any other individuals who may have information relevant to the determination." Id. They will also obtain any available physical evidence, including "communications between the parties," and "other electronic records." Id.

The Policy provides that during the investigation, "[t]he complainant and respondent will have an equal opportunity to be heard, to submit information, and to identify witnesses who may have relevant information." Id. Under the Policy, "witnesses" are those who "have observed the acts in question or have information relevant to the incident," and not merely someone who would "speak about an individual's character." Id.

A respondent is "presumed to be not responsible." Id. That presumption is only overcome when an HSMB hearing panel "concludes that there is sufficient evidence, by a preponderance of the evidence, to support a finding that the respondent violated the policy." Id. at 46.

The investigators prepare a written report at the end of their investigation. Id. at 47. The report "summarizes the information gathered and synthesizes the areas of agreement and disagreement between the parties and any supporting information." Id. The investigators give the complainant and respondent the opportunity to review the investigation report before it is finalized, and they may "submit any additional comments, request changes, or request further information" from the investigators. Id. The investigators "will make changes to the investigation report based on those comments," at their discretion. Id. Lastly, they submit the report to the designated chair of the HSMB for the specific matter. Id.

Under the Policy, the Chair of the HSMB reviews the investigation report and, if the Chair concludes "it is plausible and more than a sheer possibility that the complainant's factual allegations could constitute a violation of [the Policy]," the Chair will issue a charge to the respondent. Id. at 48.

After the student-respondent answers the charge, the Chair holds separate pre-hearing conferences with the parties and their advisors "to address evidentiary or other matters before the investigation report is presented to the HSMB hearing panel." Id. At the pre-hearing conference, the parties may submit written requests "outlining any additional investigative steps they believe are necessary," such as "follow-up interview(s) with existing witnesses," an interview with the investigators, "identifying any new witnesses who should have been interviewed," and/or describing any additional evidence that should be collected. Id. at 49-50. Among other things, at the pre-hearing conference the parties are notified of the full composition of the proposed HSMB hearing panel and may object to the appointment of panel member on the basis of suspected bias or conflict. Id. at 50.

Under the Policy, the HSMB hearing is "closed to the public and may not be audio or video-recorded." Id. at 51. The complainant and respondent "are entitled to be present during the hearing." Id. A "privacy screen" is erected between the two unless both parties do not want it. Id. The HSMB hearing panel "will review the investigation report prior to the hearing." Id. During the hearing, the HSMB panel may ask questions of the complainant, respondent, any witnesses, or investigators, as well as may examine any evidence. Id. The parties may also pose questions to each other, though they would be submitted through the Chair of the HSMB who screens the questions. Id.

After receiving and considering the evidence, the HSMB hearing panel members deliberate whether the respondent can be found responsible for violating the Policy, by a preponderance of the evidence. At least two members of the HSMB panel must vote "responsible" for the respondent to be found in violation of the Policy. Id. at 52.

If the HSMB panel concludes that a student is responsible for the offense of non-consensual sexual penetration beyond a reasonable doubt, dismissal from W&L is the mandatory sanction. Id. at 53. If the student is found responsible for non-consensual sexual penetration only by a preponderance of the evidence, there are a range of sanctions available, up to and including dismissal, but also including suspension, probation, community service, educational counseling, loss of certain privileges to participate in W&L activities, "on campus residential relocation," and/or changing the student's academic schedule. Id.

Either party may appeal a finding of the HSMB panel whether there has been a violation, as well as appeal any sanctions...