Miami temporarily prohibited from disciplining student, court says

A student suspended for violating Miami’s Sexual Misconduct Policy has filed a lawsuit against the university, claiming the school violated his right to due process.

A hearing in late April found the sophomore guilty of sexual assault for engaging in sexual conduct with a female student “on two occasions…without her knowingly being able to consent.” He was suspended until May 2019 and banned from campus.

But the student, referred to by the alias “John Nokes” in the lawsuit, says the sexual encounter was consensual.

In a court decision on Friday, the student was granted a motion for preliminary injunction, which prohibits the university from imposing “disciplinary sanctions” on Nokes. In effect, this decision would allow the defendant to attend the university until a decision is reached.

Claire Wagner, spokeswoman for Miami University, said she could not confirm whether or not Nokes is attending Miami this semester, citing the court’s order that the university not discuss the student or release the individual’s name.

According to the lawsuit, the incident occurred the evening of November 17, 2016.

About five months later, a female student, referred to as “Jane Roe” in the lawsuit, reported to the university that Nokes had assaulted her. According to the lawsuit, she told the university, “I have witnesses that can confirm that his intent was to have sex with me by the end of the night…”

A notice from Miami’s Office of Ethics & Student Conflict Resolution (OESCR), delivered to Nokes on April 5, summarized Jane Roe’s explanation of the incident. She described the sexual conduct as unwanted and not consensual.

A Summary Suspension Hearing was held to determine if Nokes posed an immediate threat to the student body. Mike Curme, dean of students, who presided over the hearing, allowed him to stay on campus during the hearing process.

On April 28, Miami held a hearing to determine if Nokes had violated the university’s Sexual Misconduct Policy. Nokes and Jane Roe both appeared and testified at the hearing.

On May 1, John Nokes was notified by letter that the Hearing Panel found him responsible of violating Miami’s Sexual Misconduct Policy.

He was suspended from Miami through May 15, 2019 and prohibited from earning credits from another institution, but the court’s Friday ruling put this disciplinary action on hold.

The suit was filed on July 16, two days after U.S. Education Secretary Betsy DeVos announced she would be reevaluating the Title IX directives introduced by the Obama administration. Specifically, she’s questioning whether or not those reforms have deprived students accused of sexual assault of their right to due process.

That’s exactly what John Nokes’s lawsuit alleges.

“After years of criticism for being too lax on campus sexual assault, colleges and universities are relying on Title IX to crack down on alleged perpetrators,” the lawsuit reads. “Unfortunately, this crackdown has gone too far.”

University spokeswoman Claire Wagner said Miami is fair in its sexual assault investigations.

“Miami actively educates students and employees about their rights and options under Title IX,” Wagner said. “The university investigates and adjudicates cases fully and fairly, following its Title IX Protocols.”

The lawsuit also criticizes the standard of proof used by universities in cases of sexual assault: a preponderance of the evidence. Legally, that means a party is able to support with evidence that the party’s version of events “more likely than not” occurred.

But advocates for sexual assault survivors have for years argued that criminal standards of proof like “clear and convincing evidence” and “beyond a reasonable doubt” require evidence that is nearly impossible for schools to get their hands on, making it much more difficult for perpetrators to be punished and putting a large evidentiary burden on the victim.

While schools cannot determine if an individual is guilty of a criminal sex offense, they are obligated to enforce sexual misconduct policies and comply with Title IX standards, which prohibit any form of sexual discrimination in an educational institution.

Joshua Engel, Nokes’s lawyer, has spoken publicly about this topic. In 2014, he was a featured speaker at a Washington, D.C., symposium, “Representing Students Accused of Sexual Assault: Due Process, Tort, Contractual, and Title IX Considerations.”

The lawsuit names five defendants, all of whom were involved in the process of Nokes’s suspension and subsequent appeals: Miami University, OESCR director Susan Vaughn, economics professor Steven Elliot, vice president for student affairs Jayne Brownell and dean of students Mike Curme.

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