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They were both drunk. He sexually touched her. The university suspended her for sexual assault.

Equal protection violation

The University of Cincinnati is being sued for violating a student’s due process rights in a Title IX proceeding.

That is not unusual in and of itself. A previous lawsuit against the school resulted in a new precedent in its federal appeals court in favor of cross-examination in Title IX proceedings.

What stands out in the new suit: the plaintiff is a woman, and she claims that her accuser filed a complaint against her in retaliation for a complaint she filed against his friend.

“Jane Roe” claims that the taxpayer-funded university refused to open an investigation into the male student who accused her of wrongdoing, despite her allegation that his actions were the same as hers while they were both drunk.

She’s seeking a preliminary injunction against the university so that she can “finish school and maintain her ROTC scholarship pending the resolution of this matter,” according to the Monday lawsuit.

Brooklyn College Prof. KC Johnson, who chronicles Title IX-related litigation, says this appears to be the first lawsuit since the Department of Education’s 2011 “Dear Colleague” letter on sexual misconduct that stems from a female student found responsible for sexually assaulting a male.

MORE: 6th Circuit blasts refusal to investigate male’s complaints

Roe’s lawyer, Joshua Engel, also brought the case that led the 6th U.S. Circuit Court of Appeals to rule that cross-examination is required in cases where determinations rely on the “credibility” of opposing parties, which is frequent in Title IX disputes.

In this case, Roe alleged that she went home with “John Doe” after a party where both had drank heavily. She portrays Doe as the initiator for their activities, first kissing her, then removing her shirt and finally digitally penetrating her.

He declined to go any further when she asked, saying he didn’t want his roommates to hear their sexual activity, according to Roe’s account. They went to sleep, and Doe filed a Title IX complaint against her the next day.

The suit claims that Doe was “motivated” to accuse Roe because she had previously filed a Title IX complaint against his friend. (Here it misspells the complaint “Title X,” and calls the university “OSU” in one particularly glaring oversight. Ohio State University is mentioned in a citation a few pages down.)

Doe himself should have been investigated for sexual misconduct because Roe told Title IX investigator Caitlin Wells she didn’t want to leave Doe’s apartment because she was drunk. Wells also had witness statements testifying to Roe’s intoxication.

She faces discrimination because males keep suing university

Engel’s filing notes that the university has been a frequent defendant in litigation alleging that it botched sexual assault investigations in recent years, as well as the target of two ongoing Department of Education Title IX investigations.

It points out that several federal courts have recently blocked schools from punishing students accused of sexual misconduct when they alleged their due process rights were violated, including three Ohio lawsuits:

These cases all represent situations where students who had credible evidence that a school employed an unfair or discriminatory disciplinary process has demonstrated sufficient facts to warrant the issuance of equitable relief on either a preliminary or permanent basis.

Roe’s specific claim against the University of Cincinnati is violation of the Equal Protection Clause of the 14th Amendment, that the university “has treated her differently from others similarly situated without a rational basis for doing so.”

The 6th Circuit’s ruling against Miami University of Ohio earlier this year dealt with a similar factual scenario where both accuser and accused “had consumed alcohol and then engaged in sexual conduct,” but only one was investigated. It did not require their allegations against each other to be “of the same type and degree,” according to Roe’s suit.

MORE: 6th Circuit requires cross-examination in Title IX cases

Roe claims that the University of Cincinnati may have discriminated against her as a woman precisely because it is “facing litigation from male students accusing the school of imposing discipline in a discriminatory manner.”

The 6th Circuit “also approved of this theory” – discrimination following litigation – in the Miami University ruling, the suit says. It also cites a ruling against Amherst College for encouraging a female to file a complaint against a “blacked out” male, but not encouraging the male to do the same against the female.

Apparently citing another filing in the case that The College Fix has not seen, The Cincinnati Enquirer reported that Roe said her punishment amounted to “slut-shaming” because she was “engaging in the same sexual freedoms that men on the campus enjoy.”

A university spokesperson told the newspaper it’s blocked from commenting under “federal confidentiality requirements,” but said that it “makes every effort to provide an equitable process that respects everyone’s rights and accommodates their needs.”

MORE: Accuser had possible ‘romantic relationship’ with detective in UC case

IMAGE: vchal/Shutterstock

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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