HARRISONBURG — A month after a federal judge ruled that James Madison University violated the due process rights of a student suspended for sexual misconduct, attorneys are filing motions to prepare for a February hearing.

In December, U.S. District Court Judge Elizabeth Dillon ruled that John Doe, the accused, didn’t have a fair chance to respond to evidence, was hampered by rules prohibiting contact with witnesses and was not allowed to appear at the appeal board hearing.

“Taking all of these deficiencies together, the court concludes that no reasonable jury could find Doe was given fundamentally fair process,” Dillon wrote last month. “Instead, the undisputed facts show that JMU denied Doe a ‘meaningful hearing.’”

Doe was accused of raping a woman in August 2014. An initial hearing ended in his favor, but his accuser, a woman known as Jane Roe in court filings, appealed. The school then suspended Doe for more than five years.

The Latest Motions

Doe’s attorneys are asking Dillon for about a dozen remedies, including allowing Doe back to the school and purging campus records of any document mentioning his name in connection with the case.

“He was forced to put his life on hold for a significant period of time, to adjust and adapt his educational and career goals at great expense and then to engage in a costly legal battle to vindicate his constitutional rights,” his attorneys wrote in a motion filed on Monday.

In another motion Monday, JMU officials asked the judge to allow the university to start over and hold a new hearing. Noting that Roe is still a student, they argue that reinstating Doe would violate Roe’s rights to a fair procedure.

“JMU will bear the burden and expense of selecting and training impartial, objective and unbiased decision-makers from among its employees to serve on the appeals panel,” the university’s attorneys wrote.

Doe’s attorneys wrote that JMU’s remedy — what amounts to retrying the case — is not acceptable.

“The fundamental flaws in JMU’s disciplinary process calls out for meaningful equitable remedies that … will establish an incentive for JMU and other public, state-funded universities to refrain from violating the due process rights of their students in sexual misconduct proceedings, so that these institutions do not come to believe that blatant constitutional violations can be cured years later simply by providing more or additional process, in other words a ‘do-over,’” his attorneys wrote.

A hearing to discuss remedies is scheduled for Feb. 22 in U.S. District Court in Harrisonburg.

The Lawsuit

In 2015, Doe sued JMU President Jonathan Alger and Vice President Mark Warner in their capacity as school leaders. Doe accused JMU of denying his due process rights, noting that his sexual encounter with Roe during their first week on campus was consensual. Roe had filed a complaint with the school about two months later, claiming Doe raped her.

Doe’s disciplinary hearing was held in December 2014. The hearing board ruled in his favor.

Roe appealed, presented new evidence, and in January 2015 a three-person panel reversed the earlier decision.

Warner affirmed the revised decision and Alger refused to set it aside, according to the lawsuit. The university is not named in the lawsuit, but the judge ruled JMU several mistakes were well before Alger and Warner reviewed the case.

The university accepted responsibility for those errors after Dillon’s ruling, according to university spokesman Billy Wyatt.

“We are disappointed in the ruling in the Doe case,” Wyatt wrote in a statement. “Over the past five and a half years, the university has worked diligently to bring our procedures in line with evolving Title IX guidance coming from federal regulatory bodies, as well as state government mandates on this topic. The university believes that it has made the best decisions possible based on the complex guidance it received, the best practices it identified and the need to protect all of our students in these cases.”

Wyatt said the university is open to further changes.

“Even before the ruling, the university had already made changes to our student conduct policies and procedures that address the concerns raised by the judge in this case and we will continue to implement appropriate changes to ensure fairness for both sides in these proceedings,” the statement said. “We believe that this ruling is a reflection of the complicated nature of the Title IX environment that colleges and universities are required to operate in on a daily basis. Our primary concern has been and remains the welfare of our students and we will continue to work to make our campus a safe place for students accused of Title IX violations as well as those who report them.”

Contact Pete DeLea at 574-6267 or pdelea@dnronline.com

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