Title IX/College Disciplinary Practice - Warshaw Burstein LLP | <em >Doe v. Arizona Board of Regents,</em > NO.1 CA-CV 18-0784 (Ct. App. Dec. 24, 2019)<br > <em >Unknown Party v. Arizona Board of Regents,</em > No. CV-18-01623-PHX-DWL (D. Ariz. Dec. 27, 2019)
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  • Doe v. Arizona Board of Regents, NO.1 CA-CV 18-0784 (Ct. App. Dec. 24, 2019)
    Unknown Party v. Arizona Board of Regents, No. CV-18-01623-PHX-DWL (D. Ariz. Dec. 27, 2019)
    John Doe was expelled from Arizona State University (“ASU”) for sexual misconduct and furnishing alcohol to an underage person. Doe appealed to the Maricopa County Superior Court challenging ASU’s decision. Doe also filed an action in the United States District Court for the District of Arizona, alleging due process and Title IX violations, as well as various state law causes of action.

    The Maricopa County Superior Court affirmed ASU’s decision, finding that it was supported by substantial evidence. Doe then appealed to the Arizona Court of Appeals, which affirmed in part and vacated in part. The Court of Appeals held that ASU’s findings regarding the complainant’s incapacitation, and Doe’s alleged use of force were not supported by substantial evidence. The Court of Appeals noted that “the issue of incapacitation is not whether, in hindsight, the person made a smart decision. Instead, it is whether the person had the cognitive ability at the time to make the decision for herself or himself.” While the complainant had consumed a large amount of alcohol before engaging in sexual intercourse with Doe and another male student (“Participant”), the evidence showed that she was lucid and able to verbally communicate. The complainant was able to recount in detail what happened in the bedroom that night, including the fact that she asked Doe and Participant to stop when the sex became painful for her; which they did. The Court of Appeals also held ASU’s finding that Doe engaged in sex with the complainant by force was not supported by substantial evidence. There were no allegations of force being used to compel the complainant to have sex with Doe, and while the complainant was in pain during the sexual encounter, Doe and Participant stopped when asked by the complainant. John Doe’s administrative appeal was remanded to the Superior Court.

    In Doe’s simultaneous federal action, the District Court held that Doe’s Title IX erroneous outcome claim could proceed. However, Doe’s due process claim was dismissed because Arizona does not recognize a property interest in higher education. Doe’s state law claims were also dismissed.

    Doe alleged ASU’s Title IX investigation was full of procedural errors and irregularities. ASU allegedly failed to seek out exculpatory evidence, and instead relied on the complainant to provide whatever documents she felt were relevant. ASU also issued its decision without considering crucial evidence from Doe. Furthermore, ASU found Doe responsible for sexual misconduct by impermissible force even though such charge was not added until after the close of evidence at the hearing, and Roe told police no force was used.

    ASU sought to dismiss Doe’s Title IX claim on the grounds that Doe failed to allege a particularized causal connection between the outcome and gender bias. The District Court held that OCR’s 2011 “Dear Colleague” letter, OCR’s investigations into ASU at the time of Doe’s Title IX case, emails that purported to show Doe was being treated differently because he was a male athlete, and various irregularities during the disciplinary proceedings supported an inference of gender bias.