A federal court ordered a Regis University undergraduate student to identify himself by his initials in a lawsuit that challenges on constitutional grounds his suspension for sexual misconduct.
The litigation is part of an increasing trend of alleged student perpetrators raising questions about the adequacy of campus investigations and the procedural rights of those defending themselves against complaints of inappropriate sexual contact or worse.
The student, now identified as JL, initially sued the school under the name "John Doe" and argued for continued anonymity because of the psychological harm that flowed from the "highly sensitive and personal nature of being falsely accused of sexual misconduct." The university countered that it should not have to defend itself publicly "while an adult be permitted to make accusations under the cloak of anonymity."
U.S. Magistrate Judge Nina Y. Wang found a middle path forward, noting the public has a strong interest in knowing about court proceedings, as well as how institutions of higher learning respond to sexual misconduct.
"At this juncture, the court is not persuaded by Defendants’ arguments concerning the weighing of interests so as to unmask Plaintiff altogether, but finds that Defendants’ concerns can be adequately addressed by requiring Plaintiff to proceed by his initials," she wrote in a Nov. 16 order.
The legal proceeding revolves around whether the investigation Regis University afforded to student JL was so deficient as to violate the process owed to him by the U.S. Constitution. JL maintains that he should have had a live hearing, identification of all witnesses, and an assessment of witnesses' credibility, among other safeguards. He did not receive those, he alleges.
According to JL's narrative, he was a sophomore in fall 2018 when the private Jesuit university in Denver notified him that it had received a complaint about his improper touching of a female student. JL acknowledged that he may have made "incidental contact" with the reporting student but "was not interested in starting anything" with her.
Within a month, the school alerted JL to another complaint from a different student, also alleging nonconsensual touching. JL responded that he had merely placed his arm around the student's shoulder after she said she was cold. He raised the issue of "false claims and rumors" about him from other sophomore students.
Regis imposed restrictions on JL while it performed an investigation under Title IX, the federal civil rights law that outlaws sex-based discrimination in educational programs that receive federal funding.
In the meantime, yet another complaint from a third female student arose, this time accusing JL of nonconsensual touching, kissing and attempted undressing. JL denied those allegations.
The university's investigator, Mark Flynn, issued his findings in January 2019. He found JL to be more likely than not responsible for all of the alleged conduct.
JL took issue with Flynn's report, arguing there was no finding of sexual harassment, no investigation of the accusers' motives and several pieces of evidence seemed to contradict the allegations.
"At no point in the investigation was JL permitted a live hearing, an opportunity to cross-examine witnesses in a live hearing, or permitted to learn the identity of certain witnesses against him," the lawsuit reads.
Ultimately, Assistant Dean of Students Jackie Kus agreed with Flynn's findings and suspended JL through May 2022.
JL filed a lawsuit in February of this year to seek reinstatement as a student and monetary damages. The university has moved to dismiss the lawsuit, arguing it is not subject to constitutional requirements because it is a private institution.
Earlier this year, the federal appeals court based in Colorado, the 10th Circuit, ruled that an expelled student could sue the University of Denver over allegations that anti-male bias played a role in his own Title IX investigation. DU is also a private university, but accepts federal funds.
"Over the past 10 years, what we've seen is that the pendulum has swung from pretty far in one direction to concern about primarily male students being railroaded," Chloe M. Neely, an attorney with The Fierberg National Law Group who represents victims of school-related violence, said at the time. "It's definitely a new way of thinking about these cases."
Bloomberg reports that the number of Title IX lawsuits by accused students has increased rapidly over the past decade, with 59 being filed in 2020. Last year, the Trump administration released guidance for schools that heightened procedural protections for alleged perpetrators of misconduct. Opponents of the changes worried they would deter victims from reporting.
A 2019 article in the N.Y.U. Journal of Legislation & Public Policy noted that Title IX claims brought by accused students typically allege due process violations, anti-male bias or breach of contract.
"Stepping back from the traditional deference on campus disciplinary matters, courts have increasingly intervened, perhaps startled by the indifference to fairness and the pursuit of truth of academic institutions that in all other capacities champion both concepts," wrote Samantha Harris and KC Johnson.
The specific due process protections JL sought included an opportunity to present witnesses, an investigation into possible witness bias, and the consideration of a possible "conspiracy of students" acting against him.
JL submitted several character references to the school during the investigation and said the origin of the misconduct complaints baffled him.
"I have tried to make sense of the accusations against me, and I really cannot because they involve behavior that is entirely foreign to me," JL wrote to the school. "I do not drink and was entirely sober during the incidents, but others involved were drinking."
A confidential document included in the lawsuit indicated the university saw JL's statements as indicating a lack of remorse, and speculated that he did not properly understand the notion of consent.
The motion by Regis to dismiss the case is pending before U.S. District Court Judge Daniel D. Domenico.
The case is JL v. Regis University et al.