A senior at the University of Notre Dame calling himself “John Doe” was dismissed from the University this spring, mere weeks before graduation, after being found guilty of violations of four Notre Dame Standards of Conduct. Doe challenges his dismissal from Notre Dame on a number of legal theories, including a breach of contract claim and a claim under Title IX. Doe recently sought a preliminary injunction order instructing Notre Dame to allow him to take the two final examinations that he needs to complete his coursework for the semester.
United States District Judge Philip Simon issued a written opinion and order in which he wrote: “[t]he public has an interest in fundamentally fair and sound educational discipline that is not imposed arbitrarily or capriciously.” In the somewhat terse but well written and comprehensive opinion Judge Simon observed numerous instances of unfairness in the process that led to John’s dismissal from Notre Dame that contributed to his decision to order Notre Dame to allow John to complete his final examinations, while the court continues to examine the case in its entirety.
Among several instances of unfairness that garnered the Judge’s attention was the fact that although the two students made cross allegations of misconduct against each other during the course of Notre Dame’s investigation, the school inexplicably kept Doe and Roe’s “countercomplaints” against each other on separate tracks, which is unusual when “back-and-forth complaints are made by people in a long-term relationship.” Judge Simon further wrote:
Notre Dame sometimes consolidates the handling of counter complaints between parties. That seems like the sensible thing to do when back-and-forth complaints are made by people in a long-term relationship. In such a situation, there is the possibility that the parties are abusing the process. In any event, in this instance, Notre Dame did not consolidate the dueling complaints between John and Jane, and the allegations against her were largely omitted from the investigative Summary Report and the Administrative Hearing of John.
Judge Simon noted that the end result was Roe’s alleged misdeeds were “largely omitted” from the University’s report and from the hearing it conducted, about Doe’s alleged misconduct. The opinion suggests that Roe was never the subject of a hearing, in response to Doe’s complaints about her misdeeds.
Judge Simon’s concern about Notre Dame’s seeming unwillingness to evaluate Roe’s alleged misdeeds was further underscored by his observation that in relying upon Roe’s various complaints to find Doe guilty of code of conduct violations, the school did not consider the fact that when Roe had Doe arrested in class for allegedly violating the University’s mutual no-contact order, “credible testimony” established that Doe had a “happenstance,” unintentional encounter with Roe, showing her complaint was “utterly spurious,” Judge Simon wrote. The Judge further observed that Roe also had a telling response when, after seeking a restraining order against Doe in state court, Doe sought discovery of “the entirety of his text exchanges with Jane.” According to Judge Simon, Jane balked, and instead of producing the text stream, she decided to dismiss her request for the restraining order and in the process frustrated John’s efforts to get the full exchange between the two so that he could tell the story of their tumultuous relationship in full context.
Judge Simon also expressed concern about the school’s summary dismissal of Doe’s appeal of its decision dismissing him from the University, noting that John submitted two briefs in support of his request, making a number of arguments for reconsideration. Most significantly, the Judge wrote, John offered video clips of Jane, recorded on a friend’s phone, just twelve days before she testified at the administrative hearing that led to John’s dismissal. In the video clips, which were played in court but not considered by the University, Jane can be heard saying what her real intentions were relating to the dispute with John: “I want to fuck up his reputation; I want him to never have a girlfriend here at Notre Dame or St. Mary’s or anywhere; I want him to never be able to have a social life at St. Mary’s or Notre Dame.” Judge Simon wrote, “[t]his kind of admission would have seriously undermined Jane’s testimony at the hearing.”
The Judge identified a long list of University actions in the disciplinary process against Doe that he concluded could be found by a jury to have been unfair, arbitrary and capricious, preventing Doe from being able to defend himself. But perhaps most telling about the Judge’s overall feeling about the lack of fairness throughout the process was the following excerpt from his opinion:
At the Administrative Hearing, the accused student is essentially on his own. The actual presentation of the student’s side of the case is left to the student himself, but with severe limitations. As noted, while he is permitted to have a lawyer or advisor present, those folks can’t really do anything. They can’t talk with the accused; they can’t ask questions; they can’t even pass notes to the accused. They are only permitted to consult with the students during breaks, given at the Hearing Panel’s discretion. If, for example, a witness says something very inculpatory about the accused, and there is no break, the student can’t talk with his advisor or lawyer about what he should ask the witness. And by the time the accused finally has a chance to talk with his advisor on a break, the witness could be long gone.
When asked at the preliminary injunction hearing why an attorney is not allowed to participate in the administrative hearing especially given what is at stake—potential dismissal from school and the forfeiture of large sums of tuition money— Notre Dame’s Director of the Office of Community Standards and a member of the Hearing Panel told Judge Simon it’s because he views this as an “educational” process for the student, not a punitive one. About that statement, Judge Simon concluded, “[t]his testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is “punishment in any reasonable sense of that term.”