Doe v. University of St. Thomas

Filing 296

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; granting 128 Motion for Summary Judgment; LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Chief Judge John R. Tunheim on 2/21/2019. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JOHN DOE,

Civ. No. 16-1127 (JRT/DTS)
Plaintiff,
MEMORANDUM OPINION AND
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

v.
UNIVERSITY OF ST. THOMAS,

Defendant.

Beau D. McGraw, McGraw Law Firm, PA, 10390 Thirty-Ninth Street North,
Lake Elmo, MN 55042, for plaintiff.
David A Schooler, Ellen A. Brinkman, and Maren F. Grier, Briggs & Morgan,
PA, 80 South Eighth Street, Suite 2200, Minneapolis, MN 55402, for defendant.
Plaintiff John Doe (“Doe”) brought this action against the University of St. Thomas
(“UST”), a private university, stemming from UST’s investigation of a sexual misconduct
complaint made against him. Doe originally brought six causes of action; however, the Court
dismissed five of them, and the only remaining cause of action is one based on negligence. UST
now moves for summary judgment on the negligence claim. The Court finds that UST owed Doe
a duty of reasonable care, but because UST did not breach its duty of care, the Court will grant the
Motion.
BACKGROUND
I.

UST’S SEXUAL MISCONDUCT POLICY
The events giving rise to this action occurred in December 2015. At that time, UST had a

Sexual Misconduct Policy (the “Policy”) that set forth guidelines UST would follow when

investigating allegations of sexual misconduct. (Decl. of Linda Baughman (“Baughman Decl.”),
¶ 3, May 30, 2018, Docket No. 150.) The Policy’s “provisions [were] intended to be flexible so
as to allow UST to meet its legal obligations while fulfilling its educational mission.” (Baughman
Decl., Ex. 1 (“UST Policy”) at 15, Docket No. 150-1.)
The Policy contained both formal and informal resolution processes. At the initiation of
the formal resolution process, a “Response Manager” would be appointed to take interim actions
and manage the investigation as it began. (Id. at 16–17.) The Response Manager would also
appoint “Factfinders.” Factfinders were responsible for “conduct[ing] an investigation into the
facts of the incident” and notifying both the complainant and the respondent of the results. (Id. at
21.) The Factfinders would conduct interviews, offer written summaries of the charges and results
to the complainant and respondent, and give both the complainant and the respondent an
opportunity to participate at various points along the way. (Id at 23.) Both the complainant and
the respondent could identify witnesses, provide documents and other evidence, submit questions
for the Factfinders to ask witnesses, and supply responsive statements. (Id.)
After completing the investigation, the Factfinders would “weigh the evidence and
determine whether it [was] more likely than not (using a ‘preponderance of the evidence’ standard)
that the [r]espondent [was] responsible for the misconduct alleged.” (Id. at 24.) If the Factfinders
made such a finding, a determination would be made that the Policy had been “violated,” a report
would be prepared, and the Response Manager would determine the appropriate sanctions. (Id. at
24.) UST would then provide a written notification of the Factfinders’ decision to both the
complainant and respondent and give both the opportunity to appeal. (Id. at 25–26.) If the
respondent was a student, the Vice President for Student Affairs would be designated as the Appeal
Officer. (Id. at 26.) The Appeal Officer would have the option to consider the appeal directly or

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to appoint an appeal board. (Id. at 26–27.) If appointed, an appeal board would consider the appeal
and present a non-binding recommendation to the Appeal Officer, who would then make the final
determination. (Id. at 27.)
To assist students in the process, the Response Manager would also appoint Process
Advisors, who would “explain the response and resolution process and provide information about
available resources” to both the complainant and the respondent. (Id. at 18.) Additionally, students
were allowed a support person. (Id. at 21.) A support person could “accompany [the student]
throughout the response and resolution process . . . to consult with and advise” the student. (Id.)
II.

THE INCIDENT
Doe was a freshman at UST in 2015. (Am. Compl. ¶ 1, May 20, 2016, Docket No. 34.)

On the night of December 11, 2015, both he and Jane Doe, the complainant, attended an offcampus party. (Id. ¶ 30, 36.) Later that evening, Doe walked Jane Doe back to her dorm room
and the two began consensually kissing in the dorm’s common room. (Id. ¶ 46.) The two
eventually ended up in the bathroom connected to Jane Doe’s dorm room, where they continued
kissing and removed some of their clothing. (Id. ¶¶ 56–60.) Then, Doe digitally penetrated Jane
Doe. (Id. ¶ 62.) Jane Doe did not verbally consent nor did she verbally object. (Decl. of Vern
Klobassa (“Klobassa Decl.”) ¶ 4, May 30, 2018, Docket No. 170, Ex. 1 (“Factfinders’ Report”) at
9, Docket No. 171.) Doe left the dorm room shortly thereafter. (Am. Compl. ¶ 70.) The next
morning, Jane Doe reported the incident to UST, and UST began a formal investigation of the
incident on December 14, 2015. (Klobassa Decl. ¶ 8, Ex. 5, Docket No. 175.)
III.

THE INVESTIGATION
Linda Baughman, the Dean of Students at UST, was the designated Response Manager.

(Baughman Decl. ¶ 1.) On December 14, 2015, Baughman sent Doe an email to inform him about

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Jane Doe’s complaint. (Baughman Decl. ¶ 6, Ex. 4, Docket No. 153.) Shortly thereafter, Doe
received a second letter from Dean Baughman, which advised Doe about his rights under the Policy
and identified the Factfinders. (Baughman Decl. ¶ 9, Ex. 7, Docket No. 156.) As the investigation
commenced, Doe, Doe’s father, and Doe’s attorney attended a meeting with Dean Baughman and
UST’s Associate General Counsel Abigail Crouse, the purpose of which was to “answer questions
[Doe] and his father ha[d] about the process,” and to allow Doe’s attorney to “learn . . . how the
process works.”1 (Am. Compl., Ex. 4 at 1, Docket No. 34-4.)
In the ensuing weeks, the Factfinders conducted interviews, reviewed security footage, and
reviewed evidence provided by both Doe and Jane Doe. The Factfinders first interviewed Jane
Doe and Doe on December 21 and 22, respectively. (Factfinders’ Report at 3.) Doe’s lawyer was
present at his interview. (Klobassa Decl. ¶ 12, Ex. 9 at 1, Docket No. 178.) After the interviews,
Doe and Jane Doe provided the Factfinders with evidence and the names of witnesses they believed
had relevant information. (Factfinders’ Report at 7, 11.) Additionally, Doe and his attorney were
asked to provide suggested questions for the witnesses they identified. (Klobassa Decl. ¶ 13, Ex.
10, Docket No. 179.)

Shortly after this meeting, Doe’s attorney apparently made clear that he intended to reach
out to several witnesses and record interviews with them. (Decl. of Beau McGraw (“McGraw
Decl.”) ¶ 23, June 20, 2018, Docket No. 241, Ex. 23 (“Crouse Dep.”) at 22, Docket No. 264.)
Crouse cautioned Doe’s attorney against that plan of action. Crouse stated that “if witness
testimony appears planned or influenced, it will hurt the witness’s credibility and is likely to hurt
the credibility of your client if he is seen as trying to influence their testimony.” (Id.) For those
reasons, and because the Factfinders would interview each of the relevant witnesses anyway, she
cautioned that conducting outside interviews “is not appropriate under our process and will harm
your client more than help.” (Id.) Nevertheless, Doe’s attorney conducted five independent
interviews and provided recordings of those interviews to Crouse and the Factfinders.
(Factfinders’ Report at 11.)
1

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The Factfinders interviewed eleven other individuals during the investigation, including
Jane Doe’s roommate, her Resident Advisor, two health care professionals, and several individuals
who interacted with both parties on the night of December 11 and the morning of December 12.
(Factfinders’ Report at 1–2, 4.) The Factfinders also viewed text messages between Doe and Jane
Doe, security footage from Jane Doe’s dorm, a report from the St. Paul police department, and
Jane Doe’s relevant medical records. (Factfinders’ Report at 3, 7, 11.) After reviewing this
evidence, the Factfinders separately interviewed both Doe and Jane Doe a second time, presented
both with the evidence, and asked pertinent follow-up and clarifying questions. (Klobassa Decl.
¶¶ 10, 12; Ex. 7, Docket No. 177; Ex. 9, Docket No. 178.)
On February 10, 2016, Doe and his attorney attended a meeting with Crouse and Dean
Baughman. (Am. Compl. ¶ 144.) Doe was informed that “he had been found responsible for nonconsensual sexual intercourse.” (Id.) As a result, Doe was suspended from UST for three
semesters, which was—at that point—until the beginning of the 2017 fall semester. (Baughman
Decl. ¶ 10, Ex. 9, Docket No. 157.) On March 10, 2016, Doe appealed the decision. (Decl. of
Karen Lange (“Lange Decl.”) ¶ 3, May 30, 2018, Docket No. 165, Ex. 1 (the “Appeal”), Docket
No. 166.) Karen Lange, the Vice President of Student Affairs, was named the Appeal Officer.
(Lange Decl. ¶ 3, Ex. 3 at 1, Docket No. 168.) She appointed an Appeal Board, who considered
Doe’s appeal and determined that none of the grounds to overturn a decision were applicable. (Id.)
Lange agreed with the Board’s recommendation and upheld the Factfinders’ original
determination.2 (Id. at 2–3.)

2

Because Doe had been attending classes pending the outcome of his appeal, Lange also
adjusted the suspension to run until the spring semester of 2018. After his appeal was denied, John
Doe transferred to another university. He does not plan on re-enrolling at UST. (Decl. of Maren
Grier ¶ 5, May 30, 2018, Docket No. 136, Ex. 3 (“Doe Dep.”) at 14, Docket No. 139.)

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IV.

PROCEDURAL BACKGROUND
On May 20, 2016, Doe filed an Amended Complaint alleging that UST violated Doe’s

rights through its application of the Policy. The Amended Complaint alleged six causes of action:
(1) Declaratory Judgment under Title IX (Count I); (2) Violation of Title IX – Erroneous Outcome
(Count II); (3) Violation of Title IX – Deliberate Indifference (Count III); (4) Breach of Contract
(Count IV); (5) Breach of the Covenant of Good Faith and Fair Dealing (Count V); and (6)
Negligence (Count VI). (Am. Compl. ¶¶ 158–211.) On March 1, 2017, the Court dismissed the
first five counts. (Mem. Opinion and Order, March 1, 2017, Docket No. 63.) UST now moves for
summary judgment on the negligence claim. (Mot. for Summary J., May 30, 2018, Docket No.
128.)

DISCUSSION
STANDARD OF REVIEW
Summary judgment is appropriate when there are no genuine issues of material fact and
the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). A fact is material if it might affect the outcome of the suit, and a dispute is genuine if the
evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court considering a motion for summary
judgment must view the facts in the light most favorable to the nonmoving party and give that
party the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate if
the nonmoving party “fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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UST argues that Doe is not able to prove the elements of his negligence claim. In
Minnesota, a negligence claim requires a showing of four elements: that (1) the defendant owed
the plaintiff a duty of care; (2) the defendant breached that duty of care; (3) the plaintiff was
injured; and (4) the defendant's breach of the duty of care was the proximate cause of the injury.
Glorvigen v. Cirrus Design Corp., 816 N.W.2d 572, 581–82 (Minn. 2012). The arguments at this
stage revolve mainly around the first two elements.

DUTY OF CARE
In Minnesota, a defendant owes “a general duty of reasonable care when the defendant's
own conduct creates a foreseeable risk of injury to a foreseeable plaintiff.” Domagala v. Rolland,
805 N.W.2d 14, 23 (Minn. 2011). While this overarching concept is well-established, courts in
Minnesota have not yet applied it in the context of a challenge to a sexual assault investigation by
a private college or university. More broadly, using negligence to challenge such investigations is
a relatively new and untested legal strategy in Minnesota. As such, the Minnesota Supreme Court
has not been asked to address the precise issues presented in this case. Nevertheless, the Court
finds guidance in analogous Minnesota Supreme Court and Court of Appeals cases.
In Abbariao v. Hamline Univ. Sch. of Law, 258 N.W.2d 108 (Minn. 1977), the Minnesota
Supreme Court considered the case of a law student who had been expelled from Hamline for poor
grades. The plaintiff there, Abbariao, claimed that his expulsion was the result of a flawed process
because Hamline failed to inform him of many of his grades, failed to notify him of his
probationary status until four weeks before a finals period, and expelled him without conducting a
hearing. Id. at 110.
Abbariao first alleged that his procedural due process rights had been violated.

In

examining this argument, the Minnesota Supreme Court noted that “[d]etermination of the process

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due necessitates a balancing of the interests and needs of the student against the interests and
resources of the university.” Id. at 112. The Supreme Court further explained that the process due
depends on whether an expulsion is based on misconduct or academic deficiencies. This is an
important distinction, as “[e]xpulsion for misconduct triggers a panoply of safeguards [under the
Due Process Clause] designed to ensure the fairness of factfinding by the university.” Id. On the
other hand, courts may intervene for academic expulsions only if the expulsion is the result of
“arbitrary, capricious, or bad-faith actions of university officials.” Id.
Because the Due Process Clause applies only to public universities, Abbariao also alleged
“a common-law duty on the part of the law school not to expel students in an arbitrary manner.”
Id. In discussing this argument, the Supreme Court held that “[t]he requirements imposed by the
common law on private universities parallel those imposed by the due process clause on public
universities.” Id. at 113. Because Abbariao was expelled for academic deficiencies, the more
lenient arbitrariness standard applied.
The Minnesota Court of Appeals extended this reasoning in Rollins v. Cardinal Stritch
Univ, 626 N.W.2d 464 (Minn. Ct. App. 2001). Rollins, a male student, had sent several unsolicited
emails to female students, prompting complaints. As the university investigated those complaints,
Rollins continued sending unwanted emails. Rollins was notified of his immediate suspension
pending a hearing. At that hearing, which his attorney attended, Rollins showed little remorse and
stated that he wouldn’t change his behavior. Accordingly, the university told him that he could
not repeat his behavior and had to switch out of the specific student section he was in if he wanted
to be reinstated. Rollins refused, and thus was never reinstated. In suing the university, Rollins
argued that the university’s disciplinary actions “were unfair, biased, arbitrary, lacking in due
process, and based on the bad faith” of the university. Id. at 469. Following Abbariao, the court

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explicitly held that the “common law imposes a duty on the part of private universities not to expel
students in an arbitrary manner.” Id. at 470. Analyzing the university’s actions under this standard,
the court held that the expulsion was not arbitrary. Id.
As Abbariao and Rollins make clear, although private universities are not subject to the
Due Process Clause, they do not escape judicial oversight entirely when seeking to discipline their
students. To the contrary, private universities have a common law duty not to act arbitrarily in
handling disciplinary matters. Although not based on negligence, the Court finds the cases
sufficiently analogous to support finding a duty of reasonable care here.3
In making this finding, the Court bears in mind that universities are entitled to discretion
in dealing with their students, including in disciplinary proceedings. See Goss v. Lopez, 419 U.S.
565, 589–90 (1975) (Powell, J., dissenting) (“In prior decisions, this Court has explicitly
recognized that school authorities must have broad discretionary authority . . . [t]his includes wide
latitude with respect to maintaining discipline and good order.”); see also Davis Next Friend
LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648 (1999) (“courts should refrain from
second-guessing the disciplinary decisions made by school administrators.”).
But the Court does not believe that unfettered discretion is appropriate. The relationship
between student and university is a unique one. Universities are, for all intents and purposes,
societies within a society. These sub-societies often have their own sets of rules, manifested in the
form of student handbooks. Naturally, these handbooks establish student academic requirements
and university academic duties. Rules in this regard are necessary to sustain a productive and fair
academic culture. But the universities and colleges of today are not just responsible for providing

3

The Court is similarly unpersuaded that the difference between an expulsion and a
suspension—such as the one here—warrants different treatment.

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a productive and fair academic environment; they are also expected to ensure a healthy and safe
living environment. Thus, handbooks contain rules governing the non-academic behavior of
students. Rules to this end often apply both on- and off-campus, requiring students to conduct
themselves in accordance with stated university requirements wherever they are.
In many instances, violations of university handbooks have consequences only felt within
the university environment. But they can also have consequences that extend far beyond that
environment and can affect students in significant and permanent ways. Of course, students
voluntarily accept the rules of the university they attend. They are, or should be, aware of the
ramifications of violating those rules. The issue, therefore, is not whether universities have the
ability to discipline their students in ways that give rise to severe consequences. Instead, given
the harm that can come from that discipline, and given the unique relationship between student
and university, the question is whether a private university must use reasonable care before making
disciplinary decisions. The Court today holds that they must.
Precisely what reasonable care requires is beyond the scope of this decision. Whether a
given university exercised reasonable care will, like most negligence claims, depend on the
circumstances of each case. “However, the fact that it may be difficult to establish ‘precise criteria’
by which to judge a defendant's actions does not mean that the defendant owes others no duty.”
Atria v. Vanderbilt Univ., 142 F. App'x 246, 251 (6th Cir. 2005) (citing Stehn v. Bernarr
MacFadden Foundations, Inc., 434 F.2d 811, 815 (6th Cir. 1970)).
UST argues that the Court should adopt something like the “arbitrary” standard found in
Rollins and Abbariao. The Court disagrees. As noted above, the Abbariao court explicitly noted
that required due process protections differ depending on whether a disciplinary decision is based
on academic deficiencies or student misconduct. For review of academic violations, the Minnesota

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Supreme Court held that the arbitrary standard applies. But for misconduct violations, the common
law provides students a “panoply of safeguards designed to ensure the fairness of factfinding.”
Abbariao, 258 N.W.2d at 112. It was for academic violations which the Minnesota Supreme Court
held that the arbitrary standard applies.

Thus, when the Supreme Court stated that “the

requirements imposed by the common law on private universities parallel those imposed by the
due process clause on public universities,” it necessarily implied that something more than the
arbitrary standard would apply to university disciplinary actions based on student misconduct.
Certainly, whether an investigation or decision was arbitrary will factor into a reasonable care
analysis. But that a decision was non-arbitrary is insufficient, by itself, to establish reasonable
care.
On the other hand, Doe suggests that UST’s Policy and Procedure manual provides the
applicable duty of care, and that a failure to adhere to that manual constitutes a breach of duty.
Once again, the Court disagrees.

Reasonable care does not require strict adherence to a

university’s handbook, just as a university handbook is not considered binding in a due process
analysis. See Keefe v. Adams, 840 F.3d 523, 536 (8th Cir. 2016) (rejecting the argument that a
university’s policies could be used to “create an expectation” which, if not met, would violate due
process). University policies and procedures are fundamental to the operation of the university
environment, as they often provide the guiding principles in the relationship between university
and student. However, they are intended to, and must be, flexible, in order to account for the
unique circumstances of each situation. If courts were to require strict adherence, the purpose and
utility of the handbooks would be undercut, not bolstered. This is, in part, why Minnesota courts
have been “generally reluctant to find contractual obligations between students and their schools

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based upon student handbooks.” Shank v. Carleton College, 232 F. Supp. 3d 1100, 1116 (D. Minn.
2017) (citing Rollins, 626 N.W.2d at 470).
Doe also argues that UST “had an obligation to create and administer a process that was
fair and impartial to both parties . . . and [to] provide some measure of due process in the
proceeding to ensure that an accurate outcome was achieved.” (Pl.’s Mem. in Opp. at 23, June 20,
2018, Docket No. 241.) While vague, the Court believes that this is a closer application of the
Abbariao decision and of the parallel due process protections afforded students at public
universities. “Due process is flexible and calls for such procedural protections as the particular
situation demands.” Keefe, 840 F.3d at 535 (quoting Mathews v. Eldridge, 424 U.S. 319, 334
(1976)). What constitutes reasonable care must also be flexible.

BREACH
Having determined that UST owed Doe a duty of reasonable care, the Court must now
analyze whether UST breached that duty during its investigation. Doe’s breach argument is twofold. First, he argues that UST breached its duty of care to provide him a fair hearing because the
individuals adjudicating and investigating his claim had been indoctrinated with bias against men
accused of sexual assault. Second, he argues that procedural flaws throughout the process, when
considered together, amount to a breach of the duty of reasonable care.
A. Bias as Breach
In arguing that UST’s administrators had a bias against him, Doe highlights training
materials that UST provided these administrators on the increasingly salient issue of campus sexual
assault. The types of things that Doe takes exception to can fairly be categorized as: (1) genderslanted language used in training materials; (2) training about how victims of sexual assault

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typically behave following the assault; and (3) statistics about campus sexual assaults and the low
rate of false reports.
When it exists, bias certainly provides some indication that a university failed to use
reasonable care in conducting its investigation. Indeed, fundamental to any fair investigation and
hearing is that the tribunal is unbiased and the outcome not predetermined. However, none of the
factors cited by Doe, when viewed in context, establishes that UST or those involved in Doe’s
adjudication were impermissibly biased such that UST failed to exercise reasonable care.
University “administrators are ‘entitled to a presumption of honesty and integrity unless
actual bias . . . can be proven.’” Richmond v. Fowlkes, 228 F.3d 854, 858 (8th Cir. 2000) (quoting
Ikpeazu v. Univ. of Nebraska, 775 F.2d 250, 254 (8th Cir. 1985)); see also Robinson v. Univ. of
Minnesota, No. A17-1620, 2018 WL 4395020, at *3 (Minn. Ct. App. Sept. 17, 2018) (“the party
claiming otherwise has the burden of proving that a decision was made improperly by showing a
risk of actual bias”) (citing Kennedy v. L.D., 430 N.W.2d 833, 837 (Minn. 1988)) (emphasis
omitted). Where a plaintiff relies only on his or her belief that administrators acted with bias, the
presumption is not overcome. See de Llano v. Berglund, 282 F.3d 1031, 1035 (8th Cir. 2002).4
This presumption is a common one across the country and has been applied in similar cases
to this one. For instance, in Gomes v. Univ. of Maine Sys., 365 F. Supp. 2d 6, 31–32 (D. Me.
2005), the mere fact that a hearing board chair had participated in sexual assault victim advocacy
programs was insufficient to prove bias. The court in that case refused to presume that, “because

4

Even though the cited cases dealt with public universities and therefore considered bias
in the due process context, the principles apply equally here. “The requirements imposed by the
common law on private universities parallel those imposed by the due process clause on public
universities.” Abbraio, 258 N.W.2d at 113.

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someone is against sexual assault, [he or she] would be unable to be a fair and neutral judge as to
whether a sexual assault had happened in the first place.” Id.
Doe v. Univ. of Cincinnati, 173 F. Supp. 3d 586, 602 (S.D. Ohio 2016), is another
remarkably similar case. There, a plaintiff complained that “training materials that allegedly
presume that sexual assault complainants are truthful and that elevate the rights of the
complainants over the due process rights of the accused” impermissibly conditioned the
adjudicatory body against the accused. The court disagreed and stated that, without concrete facts
showing actual bias, “such as statements by board members or university officials indicating bias,”
a plaintiff could not show that an adjudicatory panel was biased. Id. at 601–02. The court went
on to say that, instead of holding training against a university, “[i]t should be a laudable goal for a
university to raise the awareness of its faculty and staff to sexual assault and to increase their
sensitivity to the particular problems that victims of sexual violence experience in coming forward
to make complaints.” Id at 602.
Doe has not provided any facts suggesting that those involved in his adjudication process
were actually biased against him; nowhere does he show any connection between the training that
UST administrators were given and bias in his specific case. Instead, he relies on bare platitudes
such as arguing that the “training and indoctrination of everyone involved in the process [created]
a process that was going to lead to a particular and biased result” and that “those involved in the
process are working toward a predetermined result and evidence of that is everywhere in the
proceedings against” Doe.

(Pl.’s Mem. in Opp. at 35–36.)

Doe does not overcome the

presumption of fairness that should be afforded to UST administrators. Instead, Doe would have
the Court presume just the opposite, and hold that university training aimed at gaining a greater
understanding of sexual violence, and which uses materials backed by research, presumptively

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biases administrators against accused males. The Court refuses to make such a presumption.
Accordingly, Doe’s argument that UST’s bias establishes a breach of reasonable care is without
merit.
B. Procedural Deficiencies as Breach
Doe’s second complaint is with alleged procedural flaws throughout the process. Doe
argues that UST’s Policy and Procedures manual, and relevant Title IX guidance, are instructive
of the scope of reasonable care, such that a failure to comply with them evidences a breach. As
discussed above, the Court does not believe that strict adherence to a university’s policies and
procedures is required for a university to satisfy its duty of reasonable care. However, adherence
to school policy is also not irrelevant when considering whether that duty has been breached. As
evidenced in UST’s policies, there will often be substantial overlap between procedures employed
in university handbooks and those procedures that courts consider indicative of a fair investigation.
Thus, when—as here—a university relied on and sought to follow its own policies, evidence that
it failed to do so may provide evidence of a university’s failure to use reasonable care.
Doe points to a number of alleged discrepancies and improprieties on the part of UST.
However, Doe does not point out any specific provisions of the Policy, or relevant Title IX
guidance, that these alleged improprieties violated. At his most specific, he says that UST failed
to adhere to its own Policy by: (1) denying Plaintiff access to information he needed to identify
people and documents favorable to his defense; (2) refusing Plaintiff access to the written findings
against him; and (3) even when providing ”access, ” doing so only for his counsel and then only
to heavily redacted documents. (Def.’s Mem. in Opp. at 38, June 20, 2018, Docket No. 240.)
However, none of these actions violated the Policy.

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As to the first category, Doe seems to be under the erroneous impression that he would be
able to mount something of a full defense and become intricately involved in the investigatory
process. To the contrary, the Policy clearly established that the Factfinders were responsible for
all aspects of the investigation, that they would conduct the investigation at an arms-length from
the parties, and that they would seek input from the parties only when they needed it. UST’s policy
was never intended to provide the protections of a trial. Instead, the Policy states that, before the
Factfinders finished, they would ensure that both parties were “provided a written summary of all
allegations . . . and []an opportunity to respond,” including “(1) an opportunity to identify relevant
witnesses, documents, and other physical evidence, (2) identify questions that may be asked of
witnesses, and (3) provide responsive written or oral remarks.” (UST Policy at 23.) UST did all
those things.
The alleged wrongdoings cited in categories two and three, while potentially violations of
the Policy if true, do not form the basis for a violation in this case. Doe was not prohibited from
accessing the written Factfinders’ report, though his access was restricted insofar as he or his
lawyer were forced to come to campus to view the report. And while the names of the witnesses
were redacted in the report made available to Doe, there was not “heavy” redaction, as Doe alleges.
Of course, the Court’s inquiry is not limited to considering whether UST violated its own
policies. It is entirely plausible that UST, or any university, could breach its duty of care without
violating its policies, if the application of those policies does not provide reasonable care. Thus,
even though Doe does not plausibly show that UST violated its policy, the Court must otherwise
consider whether his allegations demonstrate a breach of the duty of reasonable care. In doing so,
the Court finds that most of the facts Doe cites as evidence of breach are either mischaracterized

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or otherwise fail to establish that UST did not exercise reasonable care, even when viewed in the
aggregate.
For instance, Doe argues the fact that Jane Doe was found credible by the Factfinders, even
after initially lying or omitting facts when speaking to St. Paul Police and UST investigators, is
evidence that UST was not impartial. He contends that this fact is particularly egregious because
she was allegedly never confronted about her inconsistencies. However, the Factfinders did
question her about these inconsistences during their second interview with her. (See Complainant
Interview, May 30, 2018, Docket No. 177.) The Factfinders also challenged Doe about his own
inconsistences during his second interview, and found him credible as well.
Doe also complains that “during the investigation process” Dean Baughman was in
“constant communication” with Jane Doe’s Process Advisor, who was telling Dean Baughman
that Jane Doe was courageous and strong. (Def.’s Mem. in Opp. at 36.) However, as evidence,
Doe cites a single email from the Process Advisor to Dean Baughman. While the email does say
that Doe was courageous and strong, it was in reference to how Jane Doe was handling the news
that Doe had decided to appeal the decision. The email was written on February 29, 2016, after
Dean Baughman had received the report by the Factfinders and after she had made her disciplinary
decision.
Doe further claims that he was prohibited from conducting his own investigation into the
matter. This seems to be in reference to General Counsel Abigail Crouse’s warning him against
conducting his own interviews of witnesses. As discussed above, instead of telling Doe that he
could not interview witnesses, Crouse simply warned Doe that affirmatively interviewing
witnesses may make them appear coached when the Factfinders finally interviewed them, and that

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any appearance of coaching would harm a witness’s credibility. For this reason, she stated that
conducting interviews may “harm your client more than help.”5 (Crouse Dep. at 22.)
This is not to say that UST’s actions were flawless, and the Court does believe that UST
acted improperly on two occasions. First, while Dean Baughman was writing the final disposition
letter to Doe to inform him of the Factfinder’s determination and the punishment she was imposing,
she sent a draft to VP Lange, who would go on to be the Appeal Officer, and asked for suggestions
or edits. (See Declaration of Beau McGraw (“McGraw Decl.”) ¶ 9, June 20, 2018, Docket No.
241, Ex. 7 (“Lange Dep.”) at 25, Docket No. 248.) Second, just six days after Doe received notice
of the decision, Baughman emailed Lange, asking if Doe had appealed the decision and stating
that she didn’t see any of the grounds for appeal being applicable. (Lange Dep. at 26.)
Because Baughman and Lange were, respectively, the overseer of Doe’s original
investigation and the overseer of Doe’s appeal, their contact in this case raises questions. At a
minimum, it gives the impression that Lange was involved with the original disposition of the case,
or that Baughman was priming Lange on the issue before Lange took up the appeal. Either is
undesirable. Ideally, there is complete separation between the two levels of the adjudicatory
process. However, the Court is unpersuaded that this contact indicates a breach of UST’s duty of
care. UST utilized an Appeal Board in this case, consisting of five members who were trained in
UST’s policies and had no role in the original adjudication. The Appeal Board heard and
considered the appeal, and ultimately recommended to Lange that it be denied. Thus, the contact
between Lange and Baughman, while arguably improper, was likely harmless.

Doe also takes issue with Crouse’s statement in front of Baughman that the state “always”
declines prosecution in “he said she said” cases. It is unclear what Doe thinks was wrong with this
statement, and it seems to simply reflect the reality that criminal prosecutions come with a high
standard of proof that often provides a barrier for sexual assault claimants.
5

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Although the Court finds that UST owed John Doe a duty of reasonable care, even
considering all of the facts in a light most favorable to Doe, Doe cannot show a genuine issue of
material fact as to UST’s alleged breach. The Court therefore concludes that no reasonable jury
could decide that UST breached its duty of care. As such, Doe “fails to make a showing sufficient
to establish the existence of an element essential” of his case. Accordingly, the Court will grant
summary judgment for UST.6
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY
ORDERED that UST’s Motion for Summary Judgment [Docket No. 128] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: February 21, 2019
at Minneapolis, Minnesota.

______s/John R. Tunheim_____
JOHN R. TUNHEIM
Chief Judge
United States District Court

UST alternatively argues for summary judgment based on Doe’s failure to identify an
expert. UST contends that an expert is required in cases such as this. As the Court grants summary
judgment because Doe cannot establish breach, it need not reach the expert issue. Nevertheless,
the Court notes that an expert is not always necessary in cases involving standards of care.
Generally, “when the standard of care centers around the exercise of professional judgment, it must
be proven by expert testimony.” A.M.J. v. Royalton Pub. Sch., Civ. No. 05-2541, 2006 WL
3626979, at *3 (D. Minn. Dec. 12, 2006). “[I]f it would be speculative for the factfinder to decide
the issue of negligence without having the benefit of expert testimony on the standard of care, the
expert testimony is necessary.” Atwater Creamery Co. v. W. Nat. Mut. Ins. Co., 366 N.W.2d 271,
279 (Minn. 1985). In the present case, a jury would be asked whether the university exercised
reasonable care in conducting its disciplinary proceeding. This question necessarily centers around
issues like fairness and impartiality, issues that the average citizen can consider without the help
of an expert. Were the Court to decide this issue, the Court would likely find an expert to be
unnecessary.
6

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