University of Dayton Prevails Against Male Student’s Attempt to Stop His Suspension for Sexual Misconduct

Dyshawn Pierre, a basketball player at the University of Dayton, received a one semester suspension for sexual misconduct.  I previously wrote about the U.S. District Court’s rejection of Mr. Pierre’s Motion for a Temporary Restraining Order to halt the suspension.

Mr. Pierre subsequently took another shot at halting the suspension by filing a Motion for Preliminary Injunction with the U.S. District Court.  Once again the Pierre court rejected plaintiff’s attempt to stop the suspension imposed by the University of Dayton.

Plaintiff’s Motion for Preliminary Injunction basically alleged the same claims made in the previously denied request for a temporary restraining order.  The claims made by plaintiff against Dayton were breach of contract for failure to follow its student handbook provisions, failure to provide a fundamentally fair hearing, failure to accommodate plaintiff’s disability during the disciplinary process, and partiality and misconduct by the University Hearing Board.

The court assessed plaintiff’s motion using the traditional standards for determining whether to issue a preliminary injunction: (1) plaintiff’s likelihood of success on the merits; (2) would irreparable harm occur in the absence of the issuance of the injunction; (3) would the issuance of the injunction cause substantial harm to others; and (4) would the issuance of the injunction serve a public interest.

In its 8 page decision the court gave short shrift to plaintiff’s claims.  As to each of the claims the court found that the plaintiff was unlikely to succeed on the merits, further noting that “[e]ven if he were, he has advanced no arguments that any of his injuries are irreparable.”

The court found that all of plaintiff’s breach of contract claims were without merit. These claims were addressed as follows: the plaintiff was given all appropriate notices about the complaint and the disciplinary procedures/process; specialized training was given to the two Title IX investigators who conducted the investigation (noting that they were professors at the University’s School of Law and had been certified by the Association of Title IX Administrators); the plaintiff was not likely to prevail on the allegation that the case was not resolved in a timely manner as contractually promised; and plaintiff was not likely to prevail on the allegation that did not receive equal and fair treatment when compared to the treatment of his accuser.

As to the failure to accommodate allegation the court also held that the plaintiff was not likely to prevail on the merits. The court so found stating that plaintiff never requested an accommodation until the disciplinary process was completed, and in any event the fact that he had counsel during the disciplinary hearing was likely and adequate accommodation.

The court also did not accept plaintiff’s claim that he improperly had the burden of proving that he did not violate the Dayton’s sexual misconduct standard of conduct. The court, examining the university’s definition of effective consent  in Dayton’s University Handbook, found that the provision did not impermissibly shift the burden of proof to the plaintiff.

Lastly the court ruled that plaintiff was not likely to prevail on his claim that the Title IX report was biased and prejudicial.  The court indicated that any alleged irregularities in the Title IX report regarding the parties stories were mitigated by the fact that plaintiff had the assistance of counsel in formulating questions of the witnesses and his accuser at the disciplinary hearing.  Additionally, based on plaintiff’s statements at the hearing, the court stated that it was reasonable for the University Hearing Board to find that the plaintiff had not acquired effective consent for sexual activity with his accuser.

Although this case represents a fairly standard instance of a court not issuing a preliminary injunction, there are a couple items that are worth noting.

  • First, the court did not interfere with a disciplinary decision that was reached by use of an investigatory process for handling sexual misconduct complaints.  What is worth mentioning is that Dayton’s process was a two step system where a investigatory report was prepared and the matter was then presented to and decided by a hearing body that allowed for presentation and confrontation of witnesses by the accused and the accuser.
  • Secondly, the court was persuaded that certification by the Association of Title IX Administrators constituted a defense to  claims that the Title IX investigators were not adequately  trained. The acceptance of this certification standard by the court thus raises the specter that this will be viewed as a best practice for training Title IX investigators.

Thank you visiting and please feel free to leave a comment about this post.  Feedback is welcome.




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