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Doe v. Columbia College Chicago

United States District Court, N.D. Illinois, Eastern Division

October 25, 2017

JOHN DOE, Plaintiff,
COLUMBIA COLLEGE CHICAGO, et. al., Defendants.


          AMY J. ST. EVE, District Court Judge

         On January 30, 2017, Plaintiff John Doe (“Doe”) brought the present Complaint against Defendants Jane Roe and Columbia College Chicago (“CCC”), collectively “Defendants, ” alleging violations of the 20 U.S.C. § 1681, Title IX (“Title IX”), defamation, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. Before the Court is CCC's motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants CCC's motion without prejudice and grants Plaintiff leave to file an Amended Complaint consistent with this opinion.


         This case arises from an alleged sexual assault that occurred at CCC and the discipline that resulted from that alleged assault. Plaintiff and Defendant Roe were both students at CCC in 2015, and after they had a sexual interaction on December 11, 2015, Roe accused Plaintiff of sexually assaulting her when she was incapacitated by alcohol. (R. 1, Compl. ¶¶ 4, 22-23.) CCC then suspended Plaintiff for the 2016-17 academic year-a decision Plaintiff claims was wrongful. (Id. ¶ 23.)

         I. Roe's Initial Complaint and Doe's Response

         Doe alleges that all physical contact between himself and Roe on December 11, 2015 was consensual and that Roe requested that Doe engage in sexual intercourse with her-a request he declined. (Id. ¶ 5.) Doe claims that he presented CCC with the following pieces of evidence that demonstrated he had not sexually assaulted Roe when she was incapacitated by alcohol:

. A toxicologist expert determined that Roe falsely alleged her self-induced alcohol consumption caused her to fade “in and out of consciousness” when interacting with Doe;
. Affidavits from three CCC students indicated that Roe did not manifest signs of incapacitation the night of incident;
. CCC's panel (“Hearing Panel”) concluded that Roe falsely alleged that Doe held her down and forced her to engage in non-consensual kissing;
. A polygraph expert confirmed that Doe honestly testified that he did not force Roe to perform oral sex on him, Roe did not push his head away when he performed oral sex on her, and Roe did not appear to Doe to be under the influence of alcohol or drugs;
. Roe sent Doe a text message the morning after the incident saying she had a “great time” with Doe;
. Roe admitted to the Hearing Panel that her responses to Doe were “unclear or very passive” despite previously claiming that she made repeated requests for the sexual interaction to stop.

(Id. ¶ 6.) Doe alleges that Roe acted with malice by falsely telling CCC that he assaulted her because she was angry that Doe declined Roe's request to have sexual intercourse. (Id. ¶ 7.)

         II. Roe's Non-Privileged Defamation

         Doe alleges that in February 2016, Roe began making false statements to third parties accusing Doe of sexually assaulting her. (Id. ¶ 8.) Roe made statements, for example, to individuals who anonymously gave Doe a note on or about February 3, 2016, which threatened Doe and called him a “fucker” for sexually assaulting Roe. (Id. ¶ 9.) Also in February 2016, Roe made a social media post in which she stated: “I have 46 followers her [sic] on Twitter and nothing to lose . . . why the hell would I lie about being raped? . . . [t]he point is Columbia needs to get their shit together because I'm leaving this school & this city if they don't do something now . . . [because] they are just letting a predator get away and it makes me sick.” (Id. ¶ 10.)Although that post did not mention Doe, several of her Twitter followers responded with statements such as “[Doe] is a rapist and should not have the privilege of attending school at Columbia, ” and “boy like [Doe] are the reason #INeedFeminism.” (Id. ¶ 11.) Roe also made statements to friends, which led female CCC students to make the following social media posts, among others:

. “I do not feel safe knowing I live in the same building as a rapist. [D]o something about [Doe].”
. “[Doe] is a rapist and endangering all of Columbia's students, & he is still allowed to live here. Columbia is so disappointing.

(Id. ¶ 12.) Doe alleges Roe's statements caused a female friend of hers to punch Doe and caused other friends to give him the middle finger. (Id. ¶¶ 13, 15.)

         III. Doe's Complaints to CCC About Roe's Retaliatory Conduct

         On March 13, 2016, Doe informed CCC that he was suffering retaliation, physical assault, and widespread defamation at the hands of Roe and her friends, after he engaged in “protected activity” by participating in CCC's investigation. (Id. ¶ 28.) CCC's Student Sexual Misconduct Policy & Procedures (“SMP”) states in § VI that it “is a violation of this Policy and Title IX to retaliate in any way against an individual who has . . . assisted in the Grievance Procedures. Columbia will promptly investigate any allegation of retaliation and pursue disciplinary action as needed.” (Id. ¶ 29.) Despite this policy and Doe's complaints, after Doe complained, CCC sent Doe a letter stating that it was not aware of Roe's friends' physically assaulting Doe. (Id. ¶ 30.) On April 8, 2016, Doe sent CCC a social media post from a female student that stated: “@coolandcozy one of my best friends punched [Doe] in the face. [I]t was immediately reported to the police and the dean. Isn't that cute.” (Id. ¶ 31.) On April 8, 2016, CCC Associate Dean Wilson-Taylor responded to Doe in a letter stating that CCC was not able to initially identify the student, but that CCC had addressed the issue with the female student and asking Doe to inform him if the student interacted with him at all. (Id. ¶ 32.) Doe alleges on information and belief that CCC did not discipline the female student in the same way it disciplines male students involved in similar conduct. (Id. ¶ 33.)

         On March 13, 2016, Doe informed CCC that Roe's retaliation was forcing him to withdraw from CCC. (Id. ¶ 34.) He stated that it was impossible for him to focus on school after being falsely accused of sexual assault and then being physically attacked. (Id.) Doe sent another email to CCC on March 29, 2016 informing CCC that two of Roe's friends gave him the middle finger. (Id. ¶ 35.) Doe alleges that CCC's communications with Doe did not respond to his allegations, and as a consequence, he sent a letter to CCC on April 8, 2016, stating that he believed CCC's failure to respond to Roe's retaliation created a hostile and abusive environment for himself and other male students. (Id. ¶ 36.) On or about April 22, 2016, Doe informed CCC that a CCC student texted Doe's then girlfriend, who is now his wife, and told her he was a “rapist” who was “lucky he has his teeth.” (Id. ¶ 40.) On April 25, 2016, CCC sent Doe a letter informing him that CCC had spoken to the student and told him not to have any contact with Doe or his wife. (Id. ¶ 41.) Despite this letter, Doe alleges that CCC refused to accommodate Doe's wife when she wanted to be in a different class than Roe after Roe threated to fight her on social media. (Id.) Doe alleges that these interactions are evidence of CCC's repeated refusal to discipline students who were engaging in retaliation in violation of Title IX. (Id. ¶¶ 42-43.) Doe also alleges upon information and belief that CCC never disciplined Roe for violating CCC's no-contact order or for disclosing confidential information related to CCC's disciplinary process. (Id. ¶ 45.)

         IV. CCC's Disciplinary Proceeding

         Doe claims that he repeatedly put CCC on notice that its disciplinary proceeding violated its own policies and Title IX. (Id. ¶ 45.) In a March 13 letter, for example, Doe informed CCC of the following violations, among others:

. SMP § XIV(C)(1) - “the Coordinator . . . shall serve . . . the Respondent with written notification than an Actionable claim has been filed, a description of the type of Sexual Misconduct alleged . . ., and the investigator's name.”
. SMP § XIV(C)(2) - “the Coordinator shall meet . . . the Respondent to apprise [him] of [his] rights under this Policy and to . . . provide . . . notice of the types of information that likely will be disclosed during the investigation. . .”
. SMP § 1 XII - CCC “shall complete an adequate, reliable, and impartial investigation.”

(Id.) CCC responded by informing Doe that its policies were designed to comply with the rules and regulations issued by the Department of Education's Office of Civil Rights (“OCR”), including providing due process to the alleged perpetrator and employing procedures designed to lead to supportable decisions. (Id. ¶¶ 46-47.)

         Doe claims CCC violated Title IX and its own policies because it completed its “investigation” of the incident and scheduled a disciplinary hearing before Doe had access to Roe's complaint and allegations and then informed Doe of Roe's accusations in person not by mail or email as CCC's policy requires. (Id. ¶ 48.) At the time of Doe's meeting with CCC officials, CCC had only provided Doe with an email asking him to meet, an email prohibiting him from entering certain CCC buildings, and an email stating that he may have violated CCC's sexual misconduct policy. (Id. ¶ 49.) Doe claims that he was thus denied the opportunity raise a conflict of interest issue with regard to the CCC investigator or to submit evidence and witnesses, and that he was not updated on the status of the investigation. (Id. ¶ 50.)

         Eventually, on April 22, 2016, after requesting to submit evidence, Doe submitted a written statement to CCC on April 25, 2016. (Id. ¶ 53.) In the statement, Doe provided the names of multiple witnesses he and Roe interacted with the night of the incident and claimed that their physical interactions were completely consensual. (Id.) Doe also claimed that he had suffered retaliation and that he would be willing to withdraw from CCC and not reapply if CCC would allow him to withdraw in good standing. (Id.) Doe claims that he wrote this statement because CCC refused to identify the policies he was accused of violating, refused to include facts he submitted in its investigation, and refused to provide him with information about the evidence Roe provided. (Id. ¶¶ 54-57.) CCC did not provide Doe with access to the investigatory file until May 12, 2016, and Doe still did not receive CCC's investigator's interview notes. (Id. ¶¶ 58-59.) Doe alleges that the investigative file did not contain information about Roe's receipt of medical treatment, and he claims CCC removed this exculpatory information from the file. (Id. ¶ 60.)

         Doe and his advisor attended the CCC hearing, as well as CCC's attorney, Hearing Panel Members Chindlun, Wordlow, and Baldford, and Roe and her advisor, who attended by Skype. (Id. ¶ 62.) The Hearing Panel found by a preponderance of the evidence that Roe falsely alleged that Doe physically held her down and that he forced her to engage in non-consensual kissing. (Id. ¶ 63.) Nevertheless, the Hearing Panel found Doe responsible for sexually assaulting Roe after determining her testimony was more credible than Doe's. (Id.) As a result, on June 7, 2016, CCC suspended Doe for the 2016-17 academic year and barred him from ever living in a CCC residence hall. (Id. ¶ 64.)

         On June 23, 2016, Doe appealed the Hearing Panel's decision. (Id. ¶ 65.) In his appeal, Doe claimed that he did not assault Roe and that CCC conducted an inadequate and biased investigation. (Id.) Doe argued in the appeal that Roe made contradictory statements, that a toxicology expert proved she was not unconscious the night of the incident, he passed a polygraph test showing he did not assault Roe, and three students provided affidavits stating that Roe was not incapacitated the night of the incident. (Id.) Doe's appeal claimed that CCC's investigation did not comply with the SMP and resulted in an unlawful and biased decision that CCC should have reversed. (Id.) Doe's appeal also claimed that the Hearing Panel's decision was motivated by “anti-male gender bias” and that the investigation demonstrated that CCC gives preferential treatment to female alleged victims at the expense of falsely accused male students. (Id.) In his appeal, Doe also claimed that the Hearing Panel did not provide an “impartial adjudication” in part because the Hearing Panel members received gender biased training. (Id.) Regardless of their training, Doe claimed that the Panel conducted a biased inquiry in which they unfairly questioned only his credibility while not asking critical questions of Roe or questioning her contradictory and inconsistent testimony. (Id.)

         On July 11, CCC acknowledge receipt of Doe's timely appeal and sent it to Roe to allow her to provide a written response. (Id. ¶ 66.) Roe responded on July 8, and on July 13, CCC assigned Joe Steiff as the Appeals Officer for Doe's appeal. (Id. ¶¶ 67-68.) On July 15, Doe sent CCC a letter challenging Steiff for having a conflict of interest because he created an educational documentary entitled “How Will I Tell? Surviving Sexual Assault” that told the story of a victim of sexual assault. (Id. ¶ 69.) In response, CCC replaced Steiff with Elizabeth Davis-Berg an Associate Professor of Science and Mathematics. (Id. ¶¶ 18, 70.) Davis-Berg rejected Doe's appeal on August 22, 2016. (Id. ¶ 71.)

         Doe claims that the Hearing Panel's gender bias violated his rights under Title IX and CCC's policies. (Id. ¶¶ 72-73.) Doe alleges, for instance, that CCC refused to provide him with information about any accommodations CCC offered Roe in response to her complaint, and he argues that she may have accused him of sexual assault to receive certain accommodations. (Id. ¶¶ 74-76.) CCC told him that FERPA privacy concerns prohibited it from disclosing any accommodations it gave Roe. (Id. ¶¶ 76-77.) At the same time, CCC refused to grant Doe any accommodations despite Doe requesting accommodations to avoid confrontations with Roe and her friends.

         V. CCC's Alleged Anti-Male Bias

         Doe alleges that SMP § XII “explicitly encourages” participation in “anti-male public awareness” events such as “Take Back the Night, ” the Clothesline Project, candlelight vigils, protests, and survivor speak-out events. (Id. ¶ 79.) Doe claims that these events demonstrate an intent to afford preferential treatment to females instead of implementing a gender neutral approach to alleged sexual misconduct. (Id. ¶ 81.) The Clothesline Project, for example, has the goal of “break[ing] the silence and bear[ing] witness to one issue - violence against women.” (Id. ¶ 82.) Further, Doe alleges that CCC's SMP defines Roe as a “victim” who CCC must avoid subjecting to “additional trauma, ” which demonstrates an anti-male bias. (Id. ¶ 83.) Doe also alleges that CCC's SMP consistently requires that CCC “protect the complainant, ” “minimize the burden to the complainant, ” and “accommodate the complainant, ” without any concern for the interests of the accused. (Id. ¶ 84.) Doe alleges that CCC continually refused Doe's document and information requests that would have allowed him to expose gender bias at CCC. (Id. ¶ 85.) CCC also refused Doe's requests to review CCC's training materials, which would have allowed him to investigate his gender bias claims. (Id. ¶¶ 87-88.) Doe alleges that CCC's bias arose in part from OCR complaints CCC female students filed, which caused OCR to investigate CCC and caused CCC officials to have an anti-male bias. (Id. ¶¶ 89-92.)

         Furthermore, Doe alleges that the anti-male bias at CCC, and at other colleges, began in 2011 when OCR sent a “Dear Colleague” letter instructing colleges on how to comply with Title IX when investigating and resolving complaints of sexual misconduct. (Id. ¶ 93.) According to Doe, this letter uses language that caused colleges to equate females with being victims in sexual misconduct cases and to give them preferential treatment. (Id.) The letter identifies only women as victims and instructs colleges not to treat victims as if they are at fault. (Id.) Doe claims that the letter also makes it difficult for males accused of sexual assault to defend themselves by adopting the lowest burden of proof-more likely than not-in sexual assault cases. (Id. ¶ 94.) A later communication from OCR in 2014 similarly makes it difficult for an accused male to defend himself by instructing schools that the complainant need not be present at disciplinary hearings and recommending that schools avoid “revictimization” and consider eliminating cross-examination of victims. (Id. ¶ 95.) Neither the letter nor the 2014 communication were subject to notice-and-comment rulemaking, and some federal legislators, as well as private lawsuits, have challenged the communications' validity. (Id. ¶¶ 96-97.)

         Despite the OCR communications' allegedly questionable legitimacy, Doe alleges that CCC has treated the Dear Colleague letter as law and revised its policies in line with the letter. (Id. ¶ 98.) These policy changes and OCR's investigation of CCC, occurred at the same time CCC was investigating Roe's claims. (Id. ¶ 99.) Doe alleges that OCR pressured CCC to treat women as victims and to give them preferential treatment in sexual misconduct cases. (Id. ¶ 100.) Doe claims that CCC felt compelled to update its policies for fear that OCR would investigate and withdraw federal funds if it found CCC to not be in compliance with its interpretation of Title IX. (Id. ¶¶ 102-04.) As a result, Doe alleges that OCR essentially pressured CCC to severely discipline male students and alter its burden of proof standard to make it easier to find accused males responsible in sexual misconduct cases. (Id. ΒΆ 105-06.) As a result, Doe alleges that CCC ...

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