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Dayton Daily News (Ohio)
University of Dayton attorneys want a federal judge to toss a lawsuit from an ex-football player who said he was suspended for two years after being falsely accused of violating the university's sexual misconduct rules.
"John Doe" alleged a Title IX violation in Dayton's U.S. District Court, saying that the suspension was gender biased, the school didn't consider the alleged victim's alcohol intake and that the sexual contact with "Jane Roe" was consensual.
Filed as a John Doe in Dayton's U.S. District Court, the plaintiff's attorney said UD violated Title IX by creating a gender biased hostile environment against males based in part on the school's pattern and practice of disciplining male students who engage in consensual sexual activity with female students.
UD attorneys and those for the National Center for Higher Education Risk Management (NCHERM) both filed motions to have U.S. District Court Judge Thomas Rose throw out the lawsuit.
"Mr. Doe brings a number of Title IX claims, purportedly under different theories," UD attorney Doreen Canton wrote. "However, those all fail because Mr. Doe fails to allege any more than conclusory allegations that the University acted with any bias toward his gender when it responded to, investigated, and ultimately adjudicated Jane Roe's complaint that she had been sexually assaulted by Mr. Doe."
The filing said UD made "extensive efforts" to investigate Roe's claims of sexual misconduct and that "when viewing the facts in a light most favorable to the complainant (as the University's policy requires), that probable cause existed to believe" that non-consensual sex happened on Sept. 4, 2016.
Doe's attorney alleged that his client's appeal was not fairly handled, especially noting that Doe passed a polygraph exam and that university officials didn't consider Roe's alcohol consumption that day.
The original complaint details how Doe, a freshman football player, and Roe met at a party and played corn-hole before going to Roe's residence and, ultimately, her bedroom.
The versions of what happened after that differ, but both agree they had sex — Doe said it was consensual — and that later, Doe left. That night, two UD police officers showed up at Doe's residence to question him.
The NCHERM motion to dismiss, written by attorneys Julie Juergens and Brooke Hamilton, included that the university did get evidence about Roe's drinking.
The filing said Roe's sorority sister said they started drinking mimosas at 10 a.m. that day and went to a deli to get more champagne and orange juice.
The witness said they "drank a few more drinks" before leaving at 4 p.m. with a case of Bud Light Platinum and bonged beers during a multi-person beer bong.
Notes in the report said "personal conclusions regarding the level of intoxication are not proper in such a report; the Investigators included factual statements from witnesses regarding Roe's level of intoxication."
UD investigators "concluded there was no probable cause to believe Ms. Roe was incapacitated due to intoxication such that she was unable to consent to sexual activity."
Doe was suspended from the university for two school years, until May 1, 2018. Eric Rosenberg, Doe's attorney, said he is optimistic the defense motions will be rejected and that he will file a memo in opposition early next month.
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