Title IX / College Discipline Practice - Warshaw Burstein LLP | <em >Doe v. Amherst College</em >, 238 F.Supp3d 195 (D. Mass.2017). 
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  • Doe v. Amherst College, 238 F.Supp3d 195 (D. Mass.2017). 
    John Doe was accused of violating Amherst College’s sexual misconduct policy following a sexual encounter with another student, Sandra Jones, in February 2012.  Jones alleged that the encounter began consensually, but that Doe failed to stop when she withdrew her consent.  The school’s investigation, and testimony from the hearing established that Doe was blackout drunk while hanging out with other students in a common room.  Jones was with Doe in the common room and described herself as being buzzed.  The two were seen by others kissing in the common room before heading to Jones’ room together.  This created a problem because Doe was casually dating Jones’ roommate, and text messages between Jones and another student following the sexual encounter showed she was concerned with her roommate EK finding out about her and Doe.

    During the investigation, text messages between Jones and another student, DR, were never uncovered.  These text messages expressed Jones’ concerns about other students telling her EK about what happened.  In Fall 2012, Jones published an essay referring to her encounter Doe as beginning consensually, but evolving into something that was not.  When Doe learned this essay was about him, he sought out LR, a student on the Special Oversight Committee on Sexual Misconduct, for advice on how to make amends.  LR took this as a confession and encouraged Jones to file an official complaint.  Jones eventually filed a complaint on October 28, 2013.  Following a hearing, Doe was found responsible under a preponderance of the evidence.  Doe subsequently appealed alleging there was new evidence, and the initial hearing had material procedural errors.  Some of the new evidence Doe uncovered were the text messages between Jones and DR, as well as sexually-charged texts between Jones and another student ML, whom Jones invited to her room after Doe had left on the night in question.  These texts suggested Jones viewed herself as the initiator of the sexual activity, and showed expressions of hatred of Doe.  Doe also alleged the complaint was politically motivated in support of a public campaign to get a male student expelled for sexual assault.  Doe’s appeal was denied.
    The District Court held that Doe’s claim there was insufficient evidence to find him responsible could proceed because a student reading the school’s policy could reasonably expect that while “blacked out” they could be victims of sexual misconduct, but their own actions could not violate the policy.  Additionally, it was reasonable to assume any investigation would seek out exculpatory evidence as well as inculpatory, which Doe alleged Amherst failed to do.  Doe’s allegation of gender discrimination could proceed because Amherst encouraged Jones to file a formal complaint against Doe, but when it learned Jones may have initiated sexual activity with Doe while he was “blacked out,” Amherst did not encourage him to file a complaint, and took no steps to determine if Doe should be considered a victim under the school policy.  This was also the basis for supporting Doe’s Title IX selective enforcement and deliberate indifference claims. Doe supported his Title IX erroneous outcome claim based on gender because he alleged sufficient facts that Amherst intended his punishment to appease campus activists.  
    CATEGORY: Civil Litigation