Carleton College Accused of Hiding Evidence That Would Exonerate Student Accused of Rape

CASE 0:19-cv-01878-MJD-LIB Document 1 Filed 07/17/19 Page 1 of 50
UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
John Doe,
Jury Trial Demand
Plaintiff,
VERIFIED COMPLAINT
v.
Case No.:
Carleton College,
Defendant.
_____________________________________________________________________________
Plaintiff John Doe1 ("Plaintiff’) as and for his Complaint against Carleton College
respectfully alleges as follows:
THE NATURE OF THIS ACTION
1. John Doe seeks damages and injunctive relief from the unlawful actions taken and
procedures employed by Defendant and its agents that resulted in the wrongful suspension
and then expulsion of Plaintiff, then a sophomore. The suspension and expulsion were the
result of a rigged and unfair disciplinary process put in place to rush to a pre-determined
result and to minimize legal risk, with deliberate disregard for the consequences to Plaintiff,
in violation of both state and federal law.
THE PARTIES
2. Plaintiff John Doe is of mixed race, and resides in the State of Washington. John Doe was a
full-time student at Carleton College in Spring 2017.
1
Plaintiff has filed a Motion to proceed pseudonymously.
1
3. Defendant Carleton College is a private, liberal arts college and a domestic non-profit
corporation incorporated in Minnesota, with its principal place of business located at One
North College Street, Northfield, MN 55057.
JURISDICTION AND VENUE
4. This Court has federal question and supplemental jurisdiction pursuant to 28 U.S.C. § 1331
and under 28 U.S.C. § 1367 because: Plaintiff states claims arising under the Constitution
and laws of the United States, including Title IX of the Education Amendments of 1972, 20
U.S.C. §§ 1681-88; and the state law claims are so closely related to the federal law claims
as to form the same case or controversy under Article III of the U.S. Constitution.
5. Plaintiff also invokes this Court’s jurisdiction pursuant to 28 U.S.C. § 1332, because the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs,
and is between citizens of different states.
6. This Court has personal jurisdiction over Defendant on the grounds that it is conducting
business within the State of Minnesota.
7. Venue for this action properly lies in this district pursuant to 28 U.S.C. §1391 because
Defendant is considered to reside in this judicial district and a substantial part of the events
or omissions giving rise to the claim occurred in this judicial district.
FACTUAL BACKGROUND
A. Carleton College
8. Defendant is a private university with a student population of approximately 2,100
undergraduate students.
2
9. During the 2016-2017 academic year, the United States Department of Education (“ED”)
distributed billions of dollars to public and private colleges and universities for students
attending their schools. Upon information and belief, Carleton College was a recipient of
such federal funding.
B. Growing National and Federal Pressure to Hold Male Students Responsible for
Sexually Assaulting Female Students
10. This case arises amidst a growing national controversy stemming from the Department of
Education’s Office of Civil Rights (“OCR”) threats to withhold federal education dollars in
order to compel colleges and universities to address so-called “sexual violence” on
campuses.
11. OCR’s threatened withholding of federal funds puts great pressure on Defendant and other
universities to treat male students accused of sexual misconduct with a presumption of guilt
and to simply punish the male student in order to avoid jeopardizing the flow of taxpayer
dollars, under the guise of making campuses safe for female students.
12. As detailed below, for years, Defendant and other universities were under federal scrutiny
from the ED for alleged indifference to sexual violence on campus in violation of Title IX,
and for violations of the Clery Act, which requires colleges to keep and disclose information
about crime on and near their respective campuses. Title IX compliance is monitored in part
by the ED which can impose civil penalties and can suspend institutions from participating in
federal student aid programs.
13. Upon information and belief, Defendant’s violations of Plaintiff’s rights occurred in part
because of threats by the federal government that universities could lose federal funding or
3
face other adverse consequences for not finding male students like Plaintiff responsible for
sexually assaulting female students. Evidence of this pressure includes but is not limited to,
the White House’s April 2014 report entitled “Not Alone”, which encouraged schools to
combat sexual assault of women on campuses and warnings that if colleges do not adhere to
Title IX they “risk[] losing federal funds” and/or face potential lawsuits filed by the
Department of Justice.”2
C. Federal Statutory and Regulatory Requirements Concerning Allegations of Sexual

Assault.
14. The issue of sexual assaults on college and university campuses is primarily addressed by an
act of Congress known as Title IX of the Education Amendments of 1972, 20 U.S.C.
§§ 1681-1688. Title IX applies to all public and private educational institutions that receive
federal funds, including colleges and universities. The statute prohibits discrimination on the
basis of sex in a school’s “education program or activity,” which includes all of the school’s
operations.3 A school specifically agrees, as a condition for receiving federal funds, to
operate all of its programs and activities in accordance with Title IX and the Department of
Education’s Title IX regulations. This agreement is known as an “assurance of compliance.”4
In this respect, Title IX is no different from other federal legislation that conditions the
entitlement to federal funds on adherence to a federal regulatory scheme.
15. Defendant, as a recipient of federal funds, is bound by Title IX and its regulations, and, upon
information and belief, has executed an assurance of compliance.
2
See https://www.notalone.gov/assets/report.pdf.
3
20 U.S.C. §§ 1681(a), 1687.
4
34 C.F.R. § 106.4(a)-(c).
4
16. Since regulations were first promulgated under Title IX in 19725, there has been a
requirement that a school “adopt and publish grievance procedures providing for the prompt
and equitable resolution of student . . . complaints alleging any action which would be
prohibited by” Title IX or its regulations.6 Both the Department of Education and the
Department of Justice have set forth this requirement by way of regulation.7 It has also long
been recognized by “[t]he Supreme Court, Congress, and Federal executive departments and
agencies . . . that sexual harassment of students can constitute discrimination prohibited by
Title IX.”8 “Sexual Harassment” is broadly defined as “unwelcome conduct of a sexual
nature” that includes sexual intercourse, sexual assault, and rape. Student-on-student sexual
harassment is prohibited by Title IX, as are other forms of sexual harassment.9
17. The Office for Civil Rights (“OCR”) of the Department of Education investigates and
administratively enforces Title IX as it relates to sexual harassment. In 2001, OCR
promulgated regulations pursuant to notice-and-comment rulemaking10 in a document
entitled “Revised Sexual Harassment Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties” (“2001 Guidance”).11 OCR issued these
regulations to “continue[ ] to provide the principles that a school should use to recognize and
5
U.S. Dep’t of Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties – Title IX (2001) at 36 n.98 (notice of publication at 66 Fed. Reg. 5512 (January
19, 2001)) (“2001 Guidance”), available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.
6
34 C.F.R. § 106.8(b)
7
34 C.F.R. § 106.8(b) (Dep’t of Education); 28 C.F.R. § 54.135(b) (Dep’t of Justice).
8
2001 Guidance at 2 & n.3.
9
Id. at 2-3 & nn.2, 3, 6, 8, 20.
10
Id. at ii.
11
See note 3 supra.
5
effectively respond to sexual harassment of students in its program as a condition of
receiving Federal financial assistance.”12
18. Title IX’s regulations, including the 2001 Guidance, have the force and effect of law, for
they affect individual rights and obligations, and were the product of notice-and-comment
rulemaking.
19. In the 2001 Guidance, OCR recognized that “procedures adopted by schools will vary
considerably in detail, specificity, and components, reflecting differences in audiences,
school sizes and administrative structures, State or local legal requirements, and past
experience.”13 Nevertheless, OCR has identified a number of factors to be used in
determining whether a school’s procedures satisfy the “prompt and equitable” requirement of
the regulations.
20. First, in a section entitled “Due Process Rights of the Accused,” OCR states that the
procedures must not only “ensure the Title IX rights of the complainant,” but must do so
while “according due process to both parties involved.”14 This Title IX “due process”
requirement applies to both state and private colleges and universities.15
21. The “prompt and equitable” procedures that a school is required to implement to “accord due
process to both parties involved” must include, at a minimum: “Notice . . . of the procedure,
including where complaints may be filed”; “Application of the procedure to complaints
alleging [sexual] harassment . . .”; “Adequate, reliable, and impartial investigation of
12
2001 Guidance at i.
13
2001 Guidance at 20.
14
Id. at 22.
15
Id. at 2, 22.
6
complaints, including the opportunity to present witnesses and other evidence”; “Designated
and reasonably prompt timeframes for the major stages of the complaint process”; and
“Notice to the parties of the outcome of the complaint . . . .”16
22. A school also has an obligation under Title IX to make sure that all employees involved in
the conduct of the procedures have “adequate training as to what conduct constitutes sexual
harassment,” which includes “alleged sexual assaults.”17
23. In April 2011, OCR issued a “significant guidance document” commonly referred to as the
“Dear Colleague Letter.”18 The Letter reaffirmed the vitality of the 2001 Guidance while
putting pressure on schools to find male students accused of sexual assault responsible. As
set forth in the Letter, OCR states that compliance with Title IX requires the following:
a. A school’s “Title IX coordinator [the official charged with compliance] should review
the [school’s] disciplinary procedures to ensure that the procedures comply with the
prompt and equitable requirements of Title IX.”19
b. “Although a school may need to delay temporarily the fact-finding portion of a Title
IX investigation while the police are gathering evidence, once notified that the police
department has completed its gathering of evidence . . . , the school must promptly
resume and complete its fact-finding for the Title IX investigation.”20
16
Id. at 20.
17
Id. at 21.
18
“Dear Colleague” Letter from Russlynn Ali, Assistant Secretary for Civil Rights, U.S. Department of Education (Apr. 4,
2011), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleagues-201104.pdf.
19
Id. at 8.
20
Id. at 10 (emphasis added) (footnote omitted).
7
c. The complainant and the accused student “must have an equal opportunity to present
relevant witnesses and other evidence.”21
d. The complainant and the accused student “must be afforded similar and timely access
to any information that will be used at the hearing. For example, a school should not
conduct a pre-hearing meeting during which only the [complainant] is present and
given an opportunity to present his or her side of the story, unless a similar meeting
takes place with the [accused student].”22
e. “Schools must maintain documentation of all proceedings, which may include written
findings of fact, transcripts, or audio recordings.”23
f. “[S]chools [should] provide an appeals process.”24
g. “In sexual violence cases, the fact-finder and decision-maker also should have
adequate training or knowledge regarding sexual violence.”25
h. “If an investigation or hearing involves forensic evidence, that evidence should be
reviewed by a trained forensic examiner.”26
D. 2011 Dear Colleague Letter and April 29, 2014 guidance question and answers
rescinded, basis fairness to both accuser and accused required.
24. In September 2017, in response to concerns that prior guidelines had created a system that
had gone too far and was treating the accused unfairly, the OCR issued a “significant
guidance document” entitled “Q&A on Campus Sexual Misconduct.” That Q&A rescinded
21
Id. at 8.
22
Id. (emphasis added).
23
Id. at 12 (emphasis added).
24
Id.
25
26
8
the Dear Colleague letter and the Questions and Answers on Title IX Sexual Violence dated
April 29, 2014, noting that the withdrawn documents “ignored notice and comment
requirements, created a system that lacked basic elements of due process and failed to ensure
fundamental fairness.27”
25. The 2017 Q&A, while reaffirming the vitality of the 2001 and 2006 Guidance Documents,
made notable changes from the guidance provided in the Dear Colleague Letter and the 2014
Q&A Guidance, including:
a. Removing the requirement that findings of fact and conclusions must be reached by
applying a preponderance of the evidence standard and allowing institutions to decide
whether to apply the more likely than not preponderance standard or the highly
probable clear and convincing evidence standard28;
b. Making it clear that the burden is on the institution, and not on either party, to gather
sufficient evidence to reach a fair and impartial determination as to whether sexual
misconduct has occurred29; and
c. Removing the 60-day deadline for adjudication of claims in favor of a prompt
resolution of claims that afforded both parties fairness.
27
https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf
28
Id. at Question 8
29
Id. at question 6
9
E. Defendant’s Policy Prohibiting Discrimination, Harassment and Related

Misconduct.
26. Defendant’s “Policy Against Sexual Misconduct” (hereinafter “Policy”) sets forth the
definitions applicable to allegations of sexual misconduct. (See Exhibit 1 – Policy Against
Sexual Misconduct).
27. In the Policy effective in April 2017, “Consent” is defined as:
Consent means the mutual understanding of words or actions freely and actively
given by two informed people that a reasonable person would interpret as a
willingness to participate in mutually agreed upon sexual activity.
• Consent is not effective when force, threat, or coercion is used

• Consent is not effective if the recipient party is incapacitated,
asleep, or unconscious
• Silence or non-communication should never be interpreted as
effective consent
• Consent to one type of sexual activity does not imply consent to
other types of sexual activity Past consent is not future consent
• Consent can be withdrawn at any time
28. “Incapacitation” is defined as:
Incapacitation is the physical and/or mental inability to make informed, rational

judgments. A person is incapacitated if they lack the necessary judgment to give
consent to sexual activity. For example, a person may be incapacitated when
asleep or under the influence of alcohol or drugs to an extent that the person is not
capable of making a knowing decision. Knowledge of incapacity is evaluated
based on a reasonable person standard. Accordingly, if a person has sexual contact
with someone whom that person knows to be, or whom a reasonable person would
know to be, incapable of making a rational, reasonable decision, that contact
violates this policy.
Being intoxicated or under the influence of any substance at the time of sexual
contact is never an excuse for violating this Policy
10
29. “Sexual contact” is defined as:
Sexual contact includes, but is not limited to, intentional touching of the
genitals, buttocks, or breasts; coercion to force someone else to touch one’s
genitals, buttocks, or breasts; penetration of an orifice (anal, oral or vaginal)
with the penis, finger, or other object in a sexual manner; or sexual inter ‐
course. Sexual contact can occur over clothing
30. According to the Policy effective April 28, 2017 any employee of Defendant who is not a
“Confidential Campus Resource” has an obligation to report that information either directly
or through a Community Concern Form to the Title IX Coordinator or the Title IX Deputy
for Faculty and Staff.
31. Defendant’s “Student Sexual Misconduct Resolution Process” set forth the school’s policies
and procedures for investigating and adjudicating allegations of sexual misconduct. See
(Exhibit 2 – Student Sexual Misconduct Resolution Process).
32. Once the Title IX Coordinator is made aware of the complaint, the Title IX Coordinator will
confer with the reporting party in order to consider options, which include whether the
complainant wishes to pursue a “Adjudicated Resolution Process” or prefers to resolves the
allegation with a “Non-Adjudicated Resolution Process”, or whether the Complainant does
not wish to pursue a “Resolution Process” of any kind. If the Complainant wishes to pursue
an “Adjudicated Resolution Process”, and if, after an investigation, the Title IX Coordinator
determines there is sufficient evidence to proceed, a hearing will be conducted. If the
Complainant wishes to pursue a “Non-Adjudicated Resolution”, the Title IX Coordinator
may initiate that proceeding if both parties agree, but is not bound by that request if the Title
IX Coordinator determines the “Non-Adjudicated Resolution Process is not in the best
interests of the involved parties or the College.” If the Complainant wishes not to pursue the
11
matter, the Title IX Coordinator must consider the request, but may go forward with a
response regardless of the complainant’s request.
33. The Title IX Coordinator, or a designee may also issue interim restrictions, which include,
but are not limited to
• no-contact or stay away orders between the complainant and the respondent;
• interim suspension;
• temporary exclusion from areas of campus;
• removal from or relocation to another residence hall;
• changes in academic/course schedules; or
• limiting participation in certain events, gatherings, or activities.
34. The “Adjudicated Resolution Process” provided by the College are defined as follows:
2. Adjudicated Resolution Process
a. Investigation. Upon initiation of a complaint, the Title IX Coordinator will

ask the College investigator to pursue an investigation. The investigator will
conduct a prompt, thorough and impartial investigation and prepare a written
investigative report. In most circumstances, the investigator will meet individually
with the complainant and respondent at least once during the investigation. The
investigator may also meet with other persons who may have information about
the incident, and may review e-mails, text messages, photographs, video
surveillance and/or other physical, documentary, or other evidence as appropriate
and available. The College will provide an opportunity during the investigation
for both the complainant and respondent to advise the investigator of any
witnesses they believe should be interviewed and other evidence they believe
should be reviewed by the investigator.
At the conclusion of the investigation, the investigator will submit a written

investigative report to the Title IX Coordinator setting forth the information that
was collected. The investigator will also compile and submit to the Title IX
Coordinator any documents or other evidence that will be provided to the CBSM
panel. The Title IX Coordinator may ask clarifying questions of the parties or
12
may ask the investigator to conduct additional investigation if determined

necessary.
b. Charging. The Title IX Coordinator will review the investigative report and
determine whether there is sufficient information to support charging a student
with a violation of the Sexual Misconduct Policy.
i. If the Title IX Coordinator determines that there is insufficient
information to support charging a student with a violation of the Sexual
Misconduct Policy, the student will not be charged.
ii. If the Title IX Coordinator determines that there is sufficient information
that a student may have violated the Sexual Misconduct Policy, then within
5 business days after the final investigative report is submitted, a written
Notice of Charges of Policy Violation (Notice of Charges) will be provided
to the respondent and the complainant with summary information that
supports the charge(s).
c. Acceptance of Responsibility. Within 5 business days after receipt of the

Notice of Charges, the respondent has an opportunity to accept or not accept
responsibility for the charge(s).
i. If a respondent is charged and accepts responsibility for having violated
the Sexual Misconduct Policy, the Title IX Coordinator will forward the
case to the Community Board on Sexual Misconduct [CBSM] panel for
determination of sanctions only.
ii. If a respondent is charged but does not accept responsibility for having
violated the Sexual Misconduct Policy, the Title IX Coordinator will
forward the case to the CBSM panel for determination of both
responsibility and sanctions.
d. Adjudication Hearing
i. Adjudicator. The CBSM hears all cases that proceed to an Adjudication

Hearing. CBSM members receive annual training on issues related to
sexual harassment, sexual assault, intimate partner violence, stalking, and
how to conduct an investigative and decision-making process that protects
the safety of all and promotes accountability.
ii. Hearing Goals. During a CBSM hearing, a CBSM panel determines

whether there has been a violation of the College’s Sexual Misconduct
Policy. The hearing is intended to facilitate a decision based on
information gathered during the investigative process and presented at the
hearing. It is not intended to be an adversarial proceeding. The hearing is
not a legal process, and it is not intended to mimic or substantially duplicate
a civil or criminal trial.
13
The goals of the hearing are 1) to allow both the complainant and the
respondent the opportunity to present their experiences and discuss the
investigative report; 2) to allow an impartial panel to ask questions,
consider the information presented, and decide whether a Sexual
Misconduct Policy violation has occurred; and 3) if a violation is found, to
allow the CBSM the opportunity to ask questions relevant to sanctions and
determine appropriate sanctions for a violation.
iii. Preparation for the Hearing. The Title IX Coordinator or a designee

will arrange the administrative details for the hearing, including: 1)
selecting the members of the CBSM panel to hear and decide the
complaint; 2) arranging a time and place for the hearing; and 3) making the
investigative report and accompanying documentary or other evidence
available to the panel members and to the parties.
iv. The Panel. In preparation for a hearing with a CBSM panel, the Title
IX Coordinator selects a three-person panel from the full roster of trained
board members to hear and adjudicate the complaint. The panel will
ordinarily consist of one faculty, one staff, and one student representative.
Before the panel is selected, the Title IX Coordinator will provide to the
complainant and respondent the list of CBSM members available to serve
on the panel. The complainant and respondent then have 48 hours to
submit a written objection if the party believes that any prospective panel
member has a conflict or is otherwise unable to fairly evaluate the
information presented. After the panel is selected, the Title IX Coordinator
will also inform the panel members of the parties’ identities to determine
whether any panel member has a relationship with either party that would
affect their ability to decide the case impartially. The Title IX Coordinator
will evaluate any objection by a party or potential conflict identified by
panel members and determine which board members will serve on the
panel.
v. Role of the CBSM Chair in the Hearing. The College Title IX

Coordinator ordinarily serves as the CBSM chair. The chair’s role is to
ensure that procedures are followed and that Title IX requirements are met.
The chair facilitates and is present for all phases of the hearing, but does
not take a substantive role in the deliberations or vote following
deliberations. The chair will resolve all questions that arise during the
hearing, including but not limited to procedural issues and issues regarding
the propriety or relevance of specific questions, arguments, and information
presented. The CBSM chair will also seek to ensure an orderly and fair
exchange of information and perspectives during the hearing. If anyone
14
attending the hearing acts without appropriate respect or decorum, the chair
may ask them to leave the hearing. In consultation with the CBSM chair,
the panel will determine whether it is necessary for the panel to hear and/or
question particular witnesses.
vi. Role of Advisers. The adviser’s role at the hearing is to offer support
and assistance in a manner that does not disrupt the proceedings. Advisers
will not be permitted to offer written or oral information to the panel.
Students will be responsible for presenting their own statements and for
answering the panel’s questions. For more detailed information about the
role of advisers, see the Advisers’ Role and Responsibilities document
available at this link.
vii. Role of Additional Support Individuals. In addition to an adviser,

each complainant and respondent may have up to four other individuals
present in a nearby support room during a hearing. These support
individuals may not be present in the hearing room or participate in the
hearing in any way.
viii. Hearing Procedures. Hearings are private and are not open to
members of the College community or the public. Present during a hearing
are the three CBSM panel members, the CBSM chair, the complainant, the
complainant’s adviser (if any), the respondent, and the respondent’s adviser
(if any). Any additional persons in attendance must be approved by the
CBSM chair. During the hearing, complainants and respondents will be
offered the opportunity to present prepared initial statements orally. The
panel will then have the opportunity to ask the complainant and respondent
questions. After the panel has had the opportunity to ask questions, the
complainant and respondent will be offered the opportunity to make final
oral comments.
At either party’s request, the hearing can be set up so that the complainant
and respondent will have minimal interaction during the hearing or will not
be in the hearing room at the same time.
ix. Information Considered by the CBSM Panel. In reaching a decision,

the panel will only consider information included in the investigative report
or presented at the hearing, pertinent College policies, and other documents
or materials shared with the panel by the Title IX Coordinator. A party’s
decision to not participate in an Adjudication Hearing does not preclude a
determination regarding a complaint. Silence in response to an allegation
will not be viewed as an admission of the allegation, but may leave the
allegations undisputed.
15
Information about unrelated past behavior of the complainant and/or

respondent, including the sexual history or dress of either party, will
typically be excluded from consideration.
x. Determination of Violation or No Violation. Following the

presentation of information at the hearing, the CBSM panel will determine
whether a violation of the Sexual Misconduct Policy occurred. The CBSM
panel will deliberate in private. In reaching a decision, the panel will apply
a preponderance of the evidence standard, and will conclude that a
violation occurred if it is “more likely than not” that a violation occurred.
The panel will reach a decision by majority vote.
The chair will orally report the panel’s decision to the complainant and
respondent before the commencement of the sanctioning phase of the
hearing.
xi. Sanctioning. If the panel determines that the respondent violated the
College’s Sexual Misconduct Policy, the hearing will continue. The panel
will then allow both the complainant and the respondent to express their
views orally about appropriate sanctions. The panel will then deliberate
further to determine appropriate sanctions.
In determining sanctions, the panel’s objective will be to ensure campus

health and safety by preventing the recurrence of problematic behavior and
addressing its effects, including the effects of the violation on the
complainant. The panel may consider a variety of factors in determining
sanctions, including, but not limited to, the type of misconduct, the wishes
of the complainant, the weight of the evidence, and the respondent’s
disciplinary record. The sanctioning decision will also be informed by the
degree to which the behavior was intentional, irresponsible, or without
knowledge.
The complete disciplinary record of the respondent will be made available

to the panel by the Dean of Students Office for use during sanctioning.
Possible sanctions include, but are not limited to:
Dismissal from the College
Suspension for one or more terms, with or without conditions for return
Disciplinary Probation
No Contact or Limited Contact Order
Chemical Health Assessment
Restricted Campus Access
Restricted Course Enrollment
16
Change of Housing
Warning
Required education or training
Sanctions may be combined.
A majority vote of the CBSM panel is required for all sanctions.
After the panel has reached a decision about sanctions, the chair will orally
communicate the decision to the complainant and respondent, each
separately.
The sanctions imposed by the CBSM do not go into effect until the appeal
period has passed.
The Title IX Coordinator will follow up to ensure compliance with the

sanctions determined by the CBSM panel and will maintain the resulting
disciplinary record in accordance with the College Student Records policy.
xii. Record of the Hearing
Hearings will be audio recorded by the College for use in the event of an
appeal. No other recordings are allowed. The recording and any notes
taken during the hearing by any panel members, including the CBSM chair,
will be maintained in accordance with the College’s Student Records
Policy. The Title IX Coordinator will maintain the resulting disciplinary
record in accordance with the College Student Records policy.
xiii. Notice of Outcome
The parties will also receive simultaneous formal written notice of the
hearing outcome. The College will strive to provide the written notice of
outcome to the parties within two business days following the hearing. In
some cases, more time may be required.
The determination of the CBSM panel may be appealed as provided below.

In the event that no appeal is filed within the time periods prescribed below,
the decision will be final.
17
e. Appeal
Both parties have the right to appeal the outcome on any of the following grounds:
• procedural errors substantially impacted the final decision;
• relevant new information has come to light that was not available at the
time of the hearing and would have substantially affected the panel’s
decision;
• the sanction is inconsistent with the seriousness of the offense.
A Statement of Appeal must be made in writing to the Title IX Coordinator within

5 business days of the date that the party receives written notification of the
panel’s decision and the sanctions imposed, if any. Any sanctions imposed by the
CBSM are held in abeyance until the deadline for submission of a Statement of
Appeal has passed. Once a student has submitted a Statement of Appeal, the
sanction(s) will continue to be held in abeyance pending final appeal decision
outcome.
The appeal adjudicator is the Dean of Students. In the event the Dean of Students
is unavailable or has a conflict, the Vice President/Treasurer will act as the
adjudicator. The appeal adjudicator determines the merits of the appeal and
determines an appropriate remedy, if any.
Within 24 hours of receiving a Statement of Appeal, the Title IX Coordinator will

notify the nonappealing party that an appeal has been filed and will communicate
the basis of the appeal. The Title IX Coordinator will provide a copy of the
Statement of Appeal to the non-appealing party. If the non-appealing party wishes
to respond, they will have 3 business days to submit a written response to the
appeal adjudicator.
The appeal adjudicator will act upon an appeal within a reasonable time, normally
5 business days after their receipt of the Statement of Appeal and any written
response to the statement of appeal. After the appeal is decided, the appeal
adjudicator will notify both parties concurrently in writing of the decision.
Decisions of the appeal adjudicator are the final institutional response and may not
be appealed.
F. The Night of April 27 and Morning of April 28, 2017
35. On or around April 23, 2017, Plaintiff received an email containing language about “a
tradition of excellence” and an invitation to a meeting on campus set to take place at 2:00
18
a.m. on April 28, 2017. Plaintiff was instructed that if he wanted to take part, he was to meet
at the Japanese Pagoda on campus at 2:00 a.m. and told not to speak to anyone about the
message.
36. Over the course of the week leading up to the event, Plaintiff received several items,
including a rock and a potato, that said “DO NOT LIVE IN FEAR” on them. In addition,
several upperclassmen approached Plaintiff over the course of the week and said “DO NOT
LIVE IN FEAR” when they passed by him.
37. At approximately 2:00 a.m., on Friday April 28, 2017, as instructed, Plaintiff arrived at the
Japanese Pagoda, where a number of people had gathered and a box of alcoholic beverages
awaited.
38. There were also a number of masked upperclassmen, who appeared to be in charge, who told
the invitees they were being invited to join a secret group (DTX), and that if they did not
want to take part in what was to come, they needed to leave. No one left.
39. At that location, Plaintiff, along with most of the group, consumed beer, wine, and shots of
hard alcohol.
40. After most of the alcohol at the location was consumed, the group was instructed to go to
then tennis courts down the hill from the Japanese Pagoda.
41. At that location there was another group of masked students, who provided the initiates with
a box of jello shots and a case of beer, which they were instructed to consume.
42. Plaintiff vomited after chugging a beer at the tennis courts.
19
43. When the alcohol at the tennis courts was consumed, the initiates were told to go to the
Goodsell Building, where masked students had a variety of beer and hard liquor the initiates
were instructed to consume.
44. When the alcohol at the Goodsell Building was finished, the initiates were told to go to
Stewsie Island, where masked students gave them wine, rum, rice krispy treats, and cheese.
45. The initiates were told to drink the alcohol and consume the food.
46. When the food and alcohol was gone, the initiates were then told to go to the hill of three
oaks where masked students gave them lime-o-rita’s and a bottle of Hot 100.
47. When the entire group arrived at the hill of three oaks, the entire group walked to the
arboretum, where there was a bonfire.
48. At the bonfire, the masked students revealed their faces and told the initiates they were being
initiated into their secret club called DTX.
49. The initiates then passed around and drank from the bottle of hot 100 while being given
“new names” from the upperclassmen group members.
50. Once the bottle was finished, the initiates were instructed to go to the School President’s
House (Steve P) where they were to cover the house in toilet paper.
51. When the group left the bonfire, Plaintiff walked with his roommate and another friend who
had been initiated.
52. Plaintiff and his roommate both had to be at a 6:00 a.m. workout for football, so they tried to
stay together.
20
53. As the group neared the school president’s house, they stopped at Central Park next to the
Weitz Center for a bathroom break. When everyone was ready, they continued towards the
President’s House.
54. Following this stop, Jane Doe approached Plaintiff and introduced herself.
55. Plaintiff stated that he did not believe he had seen Jane Doe on campus before, and Jane Doe
explained that she had not been on campus much as she had gone to study abroad twice.
56. As they walked, Plaintiff and Jane Doe talked.
57. Jane Doe explained that she was a Religion major and Plaintiff stated he was an Economics
major.
58. They also discussed things they were involved in on campus, with Plaintiff explaining he
played football and was on the club lacrosse team and Jane Doe explaining that she played
frisbee.
59. Plaintiff was friends with another person on the frisbee team, so they talked about how they
were both friends with that person.
60. Jane Doe also mentioned to Plaintiff an individual who she stated had lived on her floor
during her freshman year. Plaintiff believes this was a reference to one of the masked
students Jane Doe knew.
61. While this conversation was taking place, the group continued to walk toward the president’s
house.
62. Plaintiff was careful to stay with the group because he did not know where the president’s
house was and wanted to stay near his roommate so they would both be sure to make it on
time to their morning workout.
21
63. As Plaintiff and Jane Doe were walking with each other, Jane Doe came to a stop, which
halted Plaintiff because Jane Doe had her arm around Plaintiff.
64. At that time, Plaintiff looked at Jane Doe and said “what”, and Jane Doe started kissing
Plaintiff.
65. Plaintiff took a step back out of confusion and suggested they continue walking to keep up
with the group.
66. After a few more feet, Jane Doe stopped Plaintiff again and kissed him more.
67. While Plaintiff and Jane Doe kissed, Jane Doe grabbed Plaintiff’s penis over his clothes.
68. At that point, Jane Doe suggested she and Plaintiff find somewhere to sit, so they went back
to Central Park and sat near a tree while talking about how crazy the night had been.
69. Plaintiff and Jane Doe then kissed more, with Jane Doe continuing to rub Plaintiff’s penis
through his clothes.
70. Plaintiff then said that he felt uncomfortable doing what they were doing in the middle of the
park and Jane Doe suggested that they go to Plaintiff’s dorm room, which was closer than
hers.
71. Plaintiff and Jane Doe then then started to walk toward Plaintiff’s dorm.
72. On their way, they ran into some people who were part of the larger group, who said that
campus security was approaching, so Plaintiff and Jane Doe followed the group away from
the area.
73. During this time, Plaintiff saw his roommate, standing with a number of other people, and
told him that he had Jane Doe would need the room.
74. While standing in a group of people, Plaintiff’s roommate responded “okay”.
22
75. Plaintiff later sent a message in his roommate group chat also requesting privacy in the room.
76. Plaintiff and Jane Doe then continued to walk toward Plaintiff’s dorm.
77. At the outside entrance to the dorm, Plaintiff got out his OneCard, which was attached to his
phone, and scanned them into the building.
78. As they walked into the building, Jane Doe began kissing Plaintiff’s neck, which made
Plaintiff laugh as they walked up the steps.
79. Plaintiff and Jane Doe then entered Plaintiff’s room, where they sat on the couch, making
out.
80. After some time, Plaintiff excused himself to use the bathroom, and went to the hallway
bathroom to use the restroom.
81. Plaintiff also took a cup, which he filled with water that he then shared with Jane Doe as they
sat on the couch in his room.
82. Jane Doe thanked Plaintiff for the water, and Plaintiff mentioned that he would need to leave
soon for his morning workout.
83. Jane Doe stated that was “okay” and she and Plaintiff started kissing again.
84. Plaintiff and Jane Doe then undressed, with Jane Doe removing Plaintiff’s shirt, then
Plaintiff removing Jane Doe’s shirt, then Jane Doe helping Plaintiff remove his pants, and
then Plaintiff helping Jane Doe take off her boots, while Jane Doe undid the top of her pants
and pulled them to her knees, where Plaintiff finished removing them.
85. When Plaintiff and Jane Doe finished removing their clothes, Jane Doe said she was on birth
control, but said Plaintiff should get a condom.
86. Plaintiff then walked to his closet, got a condom, and then returned to the couch.
23
87. Before starting, Plaintiff checked with Jane Doe and asked if she was certain that she wanted
to have sex and was comfortable with doing it.
88. Jane Doe responded by saying “Yes I am”, to which Plaintiff responded, “Are you sure? I
want to make sure we are on the same page.” Jane Doe giggled and said “Yes I am”.
89. Plaintiff then put on the condom and penetrated Jane Doe.
90. Plaintiff bumped into Jane Doe’s face a few times and apologized, to which Jane Doe would
react and respond with “it’s okay” and laugh.
91. While Plaintiff was on top of Jane Doe, he struggled to maintain an erection and told Jane
Doe.
92. Jane Doe responded, saying “Hey you’re doing okay don’t worry”.
93. Eventually, Plaintiff and Jane Doe switched positions so that Plaintiff was laying on his
back.
94. From this position, Jane Doe aggressively stroked Plaintiff’s penis to get him erect.
95. After a few minutes of this, Jane Doe got on top of Plaintiff and used her hand to insert
Plaintiff’s penis into her vagina.
96. Jane Doe then rocked back and forth while Plaintiff laid on his back with his hands behind
his head.
97. Plaintiff’s room consisted to two (2) rooms with a bathroom connecting them.
98. While Jane Doe was on top of Plaintiff, Plaintiff heard a knock at the bathroom door and
then his roommate telling him to hurry up through the door because they had to be at
workouts in 10 to 15 minutes.
24
99. Around this same time, the alarm Plaintiff had set on his phone went off, and Plaintiff turned
it off.
100. Plaintiff told Jane Doe they would need to hurry because he had to go, and Jane Doe
responded “No problem, its fine.”
101. A few minutes later, the second alarm on Plaintiff’s phone went off and he got up and
dressed in a hurry after he saw a friend had texted him saying he had to go right away.
102. While Plaintiff was dressing, he told Jane Doe that she was welcome to stay as long as
she wanted and that if she wanted, she could use any of Plaintiff’s clothes.
103. Jane Doe responded, “Aw, thanks. That’s nice of you,” and then stood up from the couch
and kissed Plaintiff before he ran out of the room and down the stairs on his way to the
stadium for workouts.
104. At the workout, Plaintiff vomited during warmups.
G. Jane Doe Leaves Plaintiff’s Room
105. Approximately one minute after Plaintiff left his room, according to video evidence, Jane
Doe left his room wearing one of Plaintiff’s shirts.
106. Jane Doe wandered down the hallway and around for a while, looking for a bathroom,
before going up the stairs to the next floor.
107. There, Jane Doe entered a room that was on that floor.
108. There, a male student awoke to find a female wearing a t-shirt, underwear, and socks
asking to lay down.
109. He pointed to his roommate’s bed, because it was empty, and Jane Doe laid down.
110. The student’s roommate returned a few minutes later, and saw Jane Doe in his bed.
25
111. He asked her who she was and told her to leave. Jane Doe said she was “sorry” and
rolled over to go back to sleep, so they called campus security to get Jane Doe.
112. The students were able to get Jane Doe out of bed and into the hallway, where they made
small talk with her.
113. The students noted that Jane Doe seemed sluggish and unsteady on her feet, but knew her
name and was able to talk about her studies.
114. The students remained with Jane Doe until campus security arrived.
115. When security officer Steven Hanson arrived, he found Jane Doe and the students in the
hallway outside of the students’ room.
116. Security Officer Hanson felt that Jane Doe was intoxicated based on her slurred speech
and not knowing where the rest of her clothes were.
117. Security officer Hanson contacted the on-call area director, Taylor Morgan and
questioned Jane Doe regarding whether she wanted to be examined at Northfield Hospital
because of her condition.
118. Jane Doe indicated she just wanted to go to her room to sleep.
119. Security officer Hanson then escorted Jane Doe to the main entrance to Davis Hall. Jane
Doe was able to walk under her own power.
120. Taylor Morgan then met Jane Doe and security officer Hanson in the main entrance at
6:20 a.m.
121. Hanson and Morgan then drove Jane Doe to her dorm in a campus security vehicle.
122. During that drive, Jane Doe identified her roommate and said that she would be in the
room.
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123. When they arrived at the room, the roommate was present, but indicated she had to leave
for class soon.
124. At that point, security officer Hanson decided he was going to call for an ambulance to
have Jane Doe’s condition assessed.
125. While security officer Hanson and Taylor Morgan waited with Jane Doe for the
ambulance to arrive, security officer Hanson asked Jane Doe if she had been assaulted. Jane
Doe stated that she had not been assaulted and must have entered the wrong room.
126. As Hanson and Morgan continued to question Jane Doe about why she was in Davis Hall
and not wearing pants, Jane Doe explained she might have been in that dorm because she
wanted to hook up with someone there.
127. After that exchange, Jane Doe began to vomit.
128. Shortly after that, EMTs arrived to assess Jane Doe. EMTs found her alert and oriented
to place, person, and time, but unable to give correct answers to certain questions. For
example, when asked who the president was, Jane Doe stated “Steve P.”, Carleton’s
President, which is how many students refer to Carleton’s president, and when asked again
stated “Bush.” Jane Doe also stated that she was a member of a “secret society”, like a frat,
but they don’t have those at Carleton.
129. During transport to the hospital, Jane Doe vomited in the ambulance.
130. At the hospital, doctors noted that Jane Doe was not slurring her words and seemed
remorseful about being there. She was given IV fluids and discharged home.
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H. Plaintiff Returns to an Empty Room
131. At approximately 7:30 a.m., after his workout and breakfast with his teammates, Plaintiff
returned to his room.
132. Jane Doe was not there, but some of her clothes, including her boots, and her OneCard
were still in the room.
133. There was vomit on the floor and a used tampon near the garbage can.
134. Plaintiff assumed that Jane Doe had put on some of his clothes and gone back to her
room.
135. Plaintiff wanted to let Jane Doe know she could get her stuff any time, but did not know
how to contact her. He then recalled that they had a common friend from Jane Doe’s frisbee
team, so he asked the teammate for Jane Doe’s number.
136. At approximately 11:46 a.m., Plaintiff texted Jane Doe to let her know that some of her
stuff was still in his room and that she could come by to pick it up.
137. At around 7:30 p.m., Jane Doe went to Plaintiff’s room to get her stuff. Plaintiff was not
there, but left his room unlocked so Jane Doe could retrieve her belongings.
138. After that, she texted Plaintiff asking if they had sex.
139. Plaintiff responded by stating that the night was mostly a blur, but he did remember
having sex.
140. Jane Doe responded by asking if they had used a condom, which Plaintiff stated they had.
I. Jane Doe Makes a Sexual Assault Report
141. At around 3:00 p.m. an April 28, 2017, Jane Doe went to practice, where she reported
still feeling drunk.
28
142. Around 6:00 p.m., Jane Doe started to sober up and began to feel she had been
dangerously intoxicated, and started to get scared after talking with her friends, who felt she
might have been raped.
143. Around 10:30 p.m., Jane Doe went to speak with security officers, and spoke with Ryan
Holicky and Steve Romenesko, the area director on call at that time. Title IX Deputy Laura
Haave was also present at this meeting. During this meeting, Jane Doe asked if she would
face discipline for underage drinking.
144. Ms. Haave was appointed to be Jane Doe’s support person during these proceedings.
145. Ms. Haave’s online presence indicates a strong anti-male stance. (See Exhibit 3 - Haave
Twitter Posts)
146. About 20 minutes after this meeting ended, Jane Doe called campus security and asked
for a ride to the hospital for a sexual assault evaluation.
147. At the hospital, Jane Doe explained that after she sobered up and talked to some people,
including discussions via Facebook, she felt there were issues with the “informed consent” to
having sex. She was also concerned about a possibly retained tampon.
148. The Facebooks discussions that lead to Jane Doe’s decision were never submitted as
evidence in this matter.
149. Jane Doe then underwent a sexual assault examination. There was no retained tampon.
150. Campus security forwarded their reports to Title IX Coordinator Amy Sillanpa.
J. Plaintiff is Informed of Allegations
151. On May 3, 2017, Plaintiff received am email from Title IX Coordinator Amy Sillanpa,
stating that Carleton had issued a mutual no contact order between Plaintiff and Jane Doe.
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152. That notice informed Plaintiff of locations he could not be on campus, but provided no
explanation of the basis for the order. (See Exhibit 4 – No Contact Order)
153. On May 10, 2017, Plaintiff received an email from Amy Sillanpa informing him that Jane
Doe had filed a complaint against him alleging Plaintiff violated the school’s sexual
misconduct policy on April 28, 2017. (See Exhibit 5 – May 10, 2017 Email to Plaintiff from
Amy Sillanpa).
154. That email contained links to certain Carleton policies regarding sexual misconduct and
informed Plaintiff that he was to attend a meet with Ms. Sillanpa where he would not be
expected to answer questions about the allegation, but would be given information about the
process.
155. It also informed Plaintiff that he would meet with Mary Dunnewold, “our college
investigator”.
156. Mary Dunnewold, the investigator, is an alumna of St. Olaf, majoring in women’s
studies, is a Title IX Deputy and Carleton, and has presented at Carleton College regarding
sexual assault.
157. Ms. Dunnewold’s training materials to students consists of examples of male perpetrators
deemed responsible for sexual misconduct for engaging in sexual intercourse with a female
complainant under a variety of circumstances. (See Exhibit 6 - Carleton Voice Article
“A Matter of Consent” quoting Mary Dunnewold; Exhibit 7 – Carleton Voice article “Locker
Room Talk”).
158. This is consistent with Carleton College’s Evidentiary Exams with a SANE Nurse
website, which presumes students seeking evidentiary exams will be female by stating
30
“SANE Nurses are all female, and are on-call 24 hours a day.”
https://apps.carleton.edu/dos/-sexual_misconduct/get_help/immediate_help/sane_exams/
K. Plaintiff Meets with the College’s Investigator
159. That meeting happened on May 16, 2017.
160. Plaintiff was accompanied by his attorney, Jonathon Reppe. The meeting lasted for about
45 minutes. Investigator Dunnewold asked Plaintiff to explain what happened on the night
in question and presented Plaintiff with video from that night.
161. During the interview, Investigator Dunnewold asked Plaintiff to explain what the video
footage looked like was occurring, which Plaintiff did.
162. Investigator Dunnewold also asked Plaintiff if there was anything else he would like to
add, to which he stated that he would like the report to include that Jane Doe was the
aggressor and initiated contact with him and maintained her consent at all times.
Investigator Dunnewold stated “I will take note of that.”
163. Specific details provided by Plaintiff included that he met Jane Doe that night.
164. Jane Doe kissed him several times and grabbed his penis.
165. The pair then went to Plaintiff’s room, where they engaged in consensual sexual
intercourse, where he asked Jane Doe for verbal consent on several occasions, and during
which time Jane Doe stated she was on birth control and asked Plaintiff to use a condom.
166. Plaintiff also explained that while he and Jane Doe had both been drinking, Jane Doe was
coherent, able to walk and talk clearly, and had been telling him about people and events she
was involved in, in such a manner that Plaintiff had no reason to believe Jane Doe was
intoxicated to the point of incapacity.
31
167. He also explained that during intercourse, Jane Doe got on top of him on the couch,
stroked his penis, used her hand to place his penis into her vagina, and was able to move
freely and maintain her balance while on top of him on the couch.
L. Plaintiff Meets with Northfield Police Investigators
168. On May 19, 2017, Plaintiff met with investigators from the Northfield Police
Department.
169. During that interrogation, Plaintiff provided details entirely consistent with what he told
the College’s investigator.
170. Specifically, Plaintiff explained that he was invited to an initiation event for a secret
society.
171. At that event, he drank numerous kinds of alcohol, and, at one point, vomited after
consuming beer.
172. Later in the night, he met Jane Doe, and they started talking.
173. At some point, Jane Doe kissed Plaintiff, and, after that, they walked together,
occasionally stopping to kiss.
174. During one of the times they were kissing, Jane Doe grabbed Plaintiff’s penis through his
pants.
175. After that, Plaintiff and Jane Doe started going toward Plaintiff’s dorm room, where they
ended up having sexual intercourse. This occurred because Plaintiff said he was
uncomfortable engaging in this heavy petting outside and Jane Doe suggested they go to
Plaintiff’s dorm room.
32
176. Plaintiff explained that he was aware Jane Doe had been drinking, as had he, but felt that
Jane Doe was aware of what she was doing and was a willing participant in the sexual
contact to the point that he considered her the aggressor in initiating it.
177. Plaintiff was charged, by summons and complaint, with third-degree criminal sexual
conduct on July 17, 2017.
178. As part of the discovery process in the criminal case, Plaintiff learned of the following
evidence that had been provided to law enforcement by Defendant but had not been included
in the Investigative Report presented at Plaintiff’s hearing or in the materials that Plaintiff
was provided:
a. Video evidence that contradicted Jane Doe’s account of her physical state while
awaiting EMT assistance;
b. Audio evidence of Jane Doe’s conversation with campus security;
c. Evidence that Jane Doe asked campus security if she would face discipline for
underage drinking before filing her complaint and being told by Title IX Coordinator
Amy Sillanpa that she would not face discipline if it was part of a sexual assault
claim;
d. That Security Director Romenesko’s supplement was missing from the initial Security
Report used at the school’s hearing.
179. Despite the above described video and audio evidence being provided by Defendant to
the Northfield Police Department, Plaintiff was never notified of the existence of this
evidence during the course of Defendant’s proceedings against him.
33
180. Plaintiff also learned through discovery provided in the criminal proceedings that Jane
Doe stated that after learning she and Plaintiff had sex, Jane Doe spoke to a friend and told
the friend that she felt she had been sexually assaulted because she did not remember having
sex, but that Jane Doe did not remember doing anything such as saying no, pushing Plaintiff
away, or any other kind of dissenting action.
181. This information was not contained in the Investigative Report used to expel Plaintiff.
182. The charges against Plaintiff were dismissed by the prosecution in August 2018.
M. Defendant’s Disciplinary Proceedings against Plaintiff
183. Following this meeting, Plaintiff received a letter from Amy Sillanpa, dated May 19,
2017, informing him that Ms. Sillanpa had reviewed the Investigative Report and had
concluded that there was sufficient information to charge Plaintiff with a violation of the
Sexual Misconduct Policy. (See Exhibit 8 – May 19, 2017 Letter from Amy Sillanpa to
Plaintiff).
184. The letter further informed Plaintiff that he had five (5) days to either accept
responsibility for the charge or not accept responsibility for the charge, and if he did not
accept responsibility, a hearing before the Community Board on Sexual Misconduct would
take place at May 31, 2017, at 5:30 p.m.
185. Plaintiff was also informed that he would be allowed to see the Investigative Report after
2:00 p.m. on Monday, May 22, 2017, and that he would be allowed to submit, in writing,
challenges to the Report, which may or may not be considered. (See Exhibit 9 -Investigative
Report).
34
186. Despite being allowed to review the Investigative Report, Plaintiff was not allowed to
hear the recordings upon which Investigator Dunnewold’s version of events were based.
187. Plaintiff later became aware that certain evidence presented with the report, including the
text messages presented as Document 1 of the Investigative Report, did not contain all the
messages that were a part of the actual document, with important evidence weighing on the
credibility of certain witnesses about what they saw and how concerned they were about
what they saw excluded.
188. This included the GroupMe texts provided by Jane Doe, and included in the Investigative
Report, that were edited to remove a photograph of one of Jane Doe’s support witnesses that
showed the witness in a celebratory mood at the end of the night, which is contrary to her
testimony that she spent the end of the night worried about Jane Doe.
189. Plaintiff was also informed that he was to schedule a meeting with Ms. Sillanpa in
preparation for the May 31, 2017 hearing.
190. That meeting occurred May 25, 2017, with Plaintiff’s attorney present.
191. At that meeting, Plaintiff’s attorney asked if Plaintiff was able to ask or present questions
at the hearing. Ms. Sillanpa said Plaintiff would not be allowed to introduce questions. He
was also told that witnesses would not be necessary at the hearing, as he would not be
allowed to present any.
192. At that meeting Plaintiff also inquired whether Jane Doe submitting at an article to the
Carleton College CLAP accusing Plaintiff of sexual assault was considered retaliation.
193. Plaintiff was informed that it was not considered retaliation because it did not mention his
name, even though two (2) students interviewed by Mary Dunnewold said they knew what
35
happened because of the CLAP article and even though Plaintiff had been told not to attend
an upcoming lacrosse social event because of the article.
194. The hearing before the Community Board of Sexual Misconduct took place on May 31,
2017.
195. Plaintiff was allowed to hear Jane Doe’s testimony from a separate room.
196. However, he was not allowed to ask any questions and was not allowed to present any
evidence other than his text conversation with Jane Doe.
197. Plaintiff did submit an article from the National Institute of Health called “What
Happened? Alcohol, Memory, Blackouts, and the Brain.” This article was submitted to
explain why Jane Doe could not remember what happened while blacked out even though
she remained capable of rational thought and conversation during her interactions with
Plaintiff.
198. During Jane Doe’s rebuttal, Jane Doe attempted to introduce an alleged anonymous
complaint against Plaintiff from a second student without any evidence.
199. During Plaintiff’s rebuttal, he clarified certain allegedly incriminating statements, such as
telling Jane Doe to keep moving and provided additional details about the sexual encounter.
200. After deliberation, the panel found Plaintiff responsible based on the evidence presented
by the CBSM Chair/Title IX Coordinator.
201. On or around May 31, 2017, Plaintiff was informed by Ms. Sillanpa that the CBSM had
found he committed sexual misconduct and had recommended that he be suspended for three
(3) terms.
36
202. Jane Doe was also informed of the results of that hearing at around the same time.
Plaintiff could hear Jane Doe screaming after being told of the sanction
203. On June 2, 2017, Plaintiff received a letter from Ms. Sillanpa, explaining he had been
found responsible for committed sexual misconduct and explaining he had the ability to
appeal the determination on the basis of: “1) procedural errors that may substantially
impacted the final decision; 2) relevant new information that was not available at the time of
the resolution meeting, and would have substantially affected the Panel’s decision; and/or 3)
the sanction is inconsistent with the seriousness of the offense.” (See Exhibit 10 – June 2,
2017 Letter from Amy Sillanpa to Plaintiff).
204. On June 9, 2017, Plaintiff submitted an appeal of the CBSM panel decision and sanctions
imposed. (See Exhibit 11 – June 9, 2017 Appeal Letter).
205. In his appeal, Plaintiff argued that:
1. The procedure used by Carleton College (Carleton) did not meet the requirements
established by the Department of Education’s Office of Civil Rights (OCR) and resulted in
procedural errors which substantially impacted the decision.
2. The CBSM Panel did not have all of the relevant information pertaining to his intoxication
and the relative incapacitation of the parties, including the entire GroupMe text messages
that included photographs of Jane Doe’s witness.
3. The sanction is inconsistent with the seriousness of the offense based upon the facts
alleged.
206. Prior to initiating his appeal, Plaintiff requested that he have access to the actual audio
recordings of witness statements, not just the summary Investigator Dunnewold included in
the Investigative Reports.
207. This request was denied.
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208. Jane Doe also appealed, arguing that the three (3) term suspension was not sufficient
punishment and stated the sanctions did not send a strong enough message to the campus
community.
209. In a letter, dated June 19, 2017, Dean of Students Carolyn Livingston denied Plaintiff’s
appeal, stating the evidence showed that “[Jane Doe] was clearly incapacitated”. Ms.
Livingston also granted Jane Doe’s appeal, amending Plaintiff’s punishment to permanent
expulsion, stating that “The fact that you continue to assert that it was acceptable to engage
in sexual activity with a person in [Jane Doe’s] condition is deeply troubling and shows that
your continued attendance at Carleton would pose a danger to not only her, but other
members of the community as well.” The letter also stated the decision was based on
“several factors”, yet did not specify anything other than the video evidence. (See Exhibit 12
– June 19, 2017 Letter from Carolyn Livingston to Plaintiff).
COUNT I
Declaratory Judgment – Title IX
210. Plaintiff repeats and realleges paragraphs 1 through 209 as if fully set forth herein.
211. Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, and the
regulations promulgated thereunder require a school receiving federal funds to “adopt and
publish grievance procedures providing for the prompt and equitable resolution of student . .
. complaints alleging any form of sexual harassment, including sexual assault.30 These
procedures must “accord[ ] due process to both parties involved . . . .”31
30
34 C.F.R. § 106.8(b)
31
38
212. Upon information and belief, Defendant receives federal funds and must comply with
Title IX.
213. The “prompt and equitable” procedures that a school must implement to “accord due
process to both parties involved” must include, at a minimum: (a) “[n]otice . . . of the
procedure, including how complaints may be filed”; (b) “[a]dequate, reliable, and impartial
investigation of complaints”; (c) “the opportunity to present witnesses and other evidence”;
and (d) “[d]esignated and reasonably prompt timeframes for the major stages of the
complaint process.” A school must also ensure that all employees involved in the conduct of
the procedures have “adequate training as to what conduct constitutes sexual harassment,”
which includes “alleged sexual assaults.”32
214. As written, the Defendant’s student disciplinary process in effect in the 2016-2017 school
year violated Title IX and the regulations thereunder, which have the force of law, including
the requirements that: the procedures comport with due process, be “prompt and equitable,”
uphold the preponderance of the evidence standard, and Defendant deliver to Plaintiff
written notice of the outcome of the investigation and the rationale therefor.
215. Those violations include, but are not limited to, the following: (a) the lack of a
meaningful hearing process wherein Plaintiff had an opportunity to present evidence and
subject the evidence against him to any adversarial testing, (b) failure to provide Plaintiff
with written notice of the determination and the rationale therefor, (c) the lack of a
meaningful right to appeal, and (d) presuming Plaintiff’s guilt by maintaining a policy that
32
39
required no corroboration of the allegation against Plaintiff even where the complaining
witness claimed no recollection of the events.
216. As implemented, Defendant’s student disciplinary process in effect during the 2016-2017
school year, including the Student Sexual Misconduct Resolution Process, violated Title IX
and the regulations thereunder, which have the force of law, including the requirements that
the procedures comport with due process, be “prompt and equitable,” uphold the
preponderance of the evidence standard, and Defendant deliver to Plaintiff written notice of
the outcome of the investigation and the rationale therefore. Those violations, which are
described above, include, but are not limited to, the following: (a) the lack of a meaningful
hearing process wherein Plaintiff had an opportunity to present evidence and subject the
evidence against him to any adversarial testing, (b) failure to provide Plaintiff with written
notice of the determination and the rationale therefor, (c) the lack of a meaningful right to
appeal, (d) and presuming Plaintiff’s guilt by maintaining a policy that explicitly states that
corroboration of the allegations against Plaintiff is unnecessary.
217. As applied to Plaintiff, Defendant’s student disciplinary process in effect during the
2016-2017 school year, including the Student Sexual Misconduct Resolution Process,
violated Title IX and the regulations thereunder, which have the force of law, including the
requirements that the procedures comport with due process and be “prompt and equitable.”
Those violations which are described above, include, but are not limited to, the following: (a)
the failure to perform a threshold evaluation of the charge, including denying Plaintiff the
right to tell his side of the story; (b) the failure to conduct a “thorough, reliable and
impartial” investigation with a trained investigator; (c) the failure to set an appropriate, fair
40
hearing date that would have allowed Plaintiff to rely on exculpatory evidence; (d) the failure
to provide fair and meaningful notice of the charges; (e) the refusal to contact witnesses
identified by Plaintiff; (f) the failure to provide an unbiased disciplinary process and tribunal;
(g) the failure to ensure that Plaintiff be presumed innocent and that Defendant had the
burden of proof; (h) the failure to ensure that there be sufficient evidence to support the
Investigator’s conclusion; (i) otherwise acting to achieve a predetermined result, i.e., a
finding that Plaintiff committed sexual assault or some related offense.
218. Pursuant to the provisions of 28 U.S.C. §§ 2201, 2202, and 1651, Plaintiff is entitled to
(a) a declaratory judgment that Defendant’s 2016-2017 student disciplinary process,
including the Student Sexual Misconduct Resolution Process, as written, violated Title IX
(including its due process requirements); (b) a declaratory judgment that the Defendant’s
student disciplinary process as implemented, violated Title IX (including its due process
requirements); (c) a declaratory judgment that Defendant’s student disciplinary process as
applied to Plaintiff, violated Title IX (including its due process requirements); and (d) further
necessary or proper relief.
COUNT II
Violation of Title IX – Erroneous Outcome from a Flawed Proceeding
220. Title IX prohibits discrimination on the basis of sex in a school’s “education program or
activity,” which includes all of the school’s operations.
221. Upon information and belief, Defendant receives federal funds and must comply with
Title IX.
41
222. A victim of discrimination based on his or her gender has, under Title IX, a private right
of action against the offending school for monetary damages and equitable relief.
223. As set forth above, Defendant engaged in a series of rushed actions that ultimately
resulted in the erroneous finding that Plaintiff committed sexual assault. This represents
disparate treatment of Plaintiff by Defendant on the basis of his sex.
224. As fully set forth above, there were significant evidentiary weaknesses underlying
Defendant’s finding, including:
a. The absence of any evidence Jane Doe objected to the sexual contact,
b. Failure to fully interview all witnesses, ask appropriate relevant question, and present
all relevant evidence in the investigator’s report,
c. Potential bias and interest in finding the Plaintiff responsible to show compliance with
Title IX,
d. No opportunity to question Jane Doe regarding the allegations,
e. No opportunity to view all the evidence, particularly exculpatory evidence,
f. Unnecessary haste in reaching a conclusion despite the federal government removing
the 60-day timeline for completing investigations, with Plaintiff told by Amy Sillanpa
that the process had to be “wrapped up prior to the end of the term”,
g. Failure of investigation to take into consideration Jane Doe’s state of mind in making
the allegations and whether they were instigated by her regret and/or friends’
retaliatory urging to report or in order to avoid consequences of underaged drinking,
and whether she was biased against Plaintiff because of his race,
42
225. In addition to the lack of evidence against Plaintiff, there were, as set forth above,
numerous procedural flaws that affected the proof, including the lack of an appropriate
investigation by a properly trained and unbiased investigator; the refusal to provide Plaintiff
with a hearing wherein he could actually contest the allegations against him, the prohibition
on Plaintiff being allowed to conduct his own investigation or contact any potential witness,
the presumption of guilt applied to Plaintiff from the outset, and the impermissible shifting
of the burden of proof to Plaintiff.
226. The erroneous outcome of the hearing and purported appeal can only be explained by
gender bias against males in cases involving allegations of sexual assault. This bias is
reflected in the patterns of decision making by Defendant throughout the entire process and
by the biased training agents of which Defendant received.
227. Moreover, upon information and belief, in all, or in virtually all, cases of campus sexual
misconduct at Carleton College, the accused student is male and the accusing student is
female. Defendant has created an environment in which it is impossible for a male accused
of sexual assault to receive the due process guaranteed by Title IX and the US Constitution.
This significant gender-based statistical disparity demonstrates the existence of
discrimination. In fact, Defendant impermissibly presumes male students “guilty until proven
innocent” based on invidious gender stereotypes and has codified this by policy. (See
Exhibit 6, 7).
228. There are at least four causes for this discriminatory environment at Carleton College.
First, acquittal of an accused male student carries the threat that the Department of
Education’s Office for Civil Rights could institute an investigation that would result in
43
Defendant’s loss of federal funding. There could also be a civil suit filed by the female
complainant, a type of suit that garners much more publicity than a suit by the accused and
convicted male student.
229. Second, Defendant’s officials in charge of or involved in the disciplinary process are not
thinking about justice, individual rights, or their obligations to provide a fair and equitable
procedure in accordance with due process guarantees; rather, they are thinking what would
be most expedient for them in their professional roles.
230. Third, these officials also focus on what would be most expedient for Carleton College
and, in particular, avoiding publicity that could harm its image and brand, and hinder its
efforts to attract tuition-paying students, particularly in light of the criticism it received
related to its handling of a priest professor accused of sexual assault. The safer course for
these officials is to convict all accused male students rather than face the negative publicity
associated with decisions such as those made in the Madeline Wilson case at nearby St. Olaf.
Further evidence of this arose in the fact that 13 students in charge of the hazing event were
immediate suspended without a hearing due to media coverage, but later, 12 of the 13 had
their suspensions quietly overturned.
231. Fourth, Defendant’s officials are susceptible to internal and external pressures, including
efforts by those who wish to change the so-called “campus rape culture” at the expense of
the individual rights of the accused male students. Defendant and its officials have plainly
embraced this view, and the misandry it embodies. The resulting bias is obvious in the
Student Sexual Misconduct Resolution Process.
44
232. The September 2017 Q&A reaffirms the vitality of the 2001 Guidance and is OCR’s
latest interpretation of Title IX as it relates to sexual assault proceedings on campus. As set
forth in the Letter, OCR states that compliance with Title IX requires the following:
a. A school’s “Title IX coordinator [the official charged with compliance] should review
the [school’s] disciplinary procedures to ensure that the procedures comply with the
prompt and equitable requirements of Title IX.”33
b. “Although a school may need to delay temporarily the fact-finding portion of a
Title IX investigation while the police are gathering evidence, once notified that
the police department has completed its gathering of evidence . . . , the school must
promptly resume and complete its fact-finding for the Title IX investigation.”34
c. The complainant and the accused student “must have an equal opportunity to
present relevant witnesses and other evidence.”35
d. The complainant and the accused student “must be afforded similar and timely access
to any information that will be used at the hearing. For example, a school should not
conduct a pre-hearing meeting during which only the [complainant] is present and
given an opportunity to present his or her side of the story, unless a similar
meeting takes place with the [accused student].”36
e. “Schools must maintain documentation of all proceedings, which may include
written findings of fact, transcripts, or audio recordings.”37
33
Id. at 8.
34
Id. at 10 (emphasis added) (footnote omitted).
35
36
37
45
f. “[S]chools [should] provide an appeals process.”38
g. “In sexual violence cases, the fact-finder and decision-maker also should have
adequate training or knowledge regarding sexual violence.”39
h. “If an investigation or hearing involves forensic evidence, that evidence should be
reviewed by a trained forensic examiner.”40
233. The conclusion of the investigative process can only be explained by gender bias and an
improper process. Plaintiff, based solely on his gender, suffered an erroneous outcome of the
disciplinary process. This unlawful discrimination by Defendant, in violation of Title IX
proximately caused Plaintiff to sustain substantial injury, damage, and loss, including, but
not limited to: mental anguish; severe emotional distress; injury to reputation; past and future
economic loss; deprivations of due process; loss of educational opportunities; and loss of
future career prospects.
COUNT III
Negligence
235. Having put in place a student disciplinary process, including the Student Sexual
Misconduct Resolution Process, Defendant owed a duty of care to Plaintiff and others to
conduct that process in a non-negligent manner and with due care to avoid arbitrarily
dismissing students.
38
Id.
39
40
46
236. The conduct of Defendant and its agents fell below the applicable standard of care and
amounted to breaches of the duty of due care and incompetence. This conduct included, but
was not limited to, implementing its Policy in a manner that is biased on the basis of gender,
failing to proceed with a presumption of innocence, and failing to implement the policy in a
manner that would result in a fair process, tilted to favor a particular outcome by not having
a fair and neutral fact finder.
237. These breaches of the duty of due care caused Plaintiff, in fact and proximately, to
sustain substantial injury, damage, and loss, including, but not limited to: mental anguish;
loss of trust; severe emotional distress; injury to reputation; past and future economic loss;
deprivations of due process; loss of educational opportunities; and loss of future career
prospects.
COUNT IV
Title VI, 42 U.S.C. § 2000d
239. 42 U.S.C. § 2000d, commonly referred to as Title VI, and its implementing regulations
prohibit discrimination in a federally-funded school on the basis of a student’s race.
240. Plaintiff was subjected to harassment, discrimination, and disparate treatment on the basis
of his race when he was removed from Carleton College on the basis of allegations that did
not result in the removal of similarly situated Caucasian students.
241. Carleton College intentionally, willfully, and without justification acted to deprive
Plaintiff of this rights, privileges and immunities secured to him by the laws of the United
States.
47
242. Carleton College, despite knowledge and adequate opportunity to learn of its misconduct
failed to take action to remedy the harassment, discrimination, and disparate treatment of
Plaintiff.
243. As a result of Carleton College’s conduct, customs, policies, and practices, Plaintiff was
unjustly and discriminatorily deprived of equal education opportunities and benefits.
COUNT V
Minnesota Human Rights Act, § 363A.13
245. Minn. Stat. § 363A.13 prohibits discrimination on the basis of, but not limited to, race,
color, creed, and national origin in any educational institution.
246. As such, Carleton College had a duty to provide Plaintiff with an educational atmosphere
free of racial discrimination.
247. Defendant failed to take adequate steps to provide Plaintiff with an educational
atmosphere free of racial discrimination.
248. As a result of Carleton College’s conduct, customs, policies, and practices, Plaintiff was
unjustly and discriminatorily deprived of equal education opportunities and benefits.
RELIEF REQUESTED
WHEREFORE, plaintiff prays for judgment against defendant, jointly and severally, and
asks this Court to:
1. issue a judgment that (a) declares the Defendant’s student disciplinary process,
including the Student Sexual Misconduct Resolution Process, as written, as implemented, and as
applied to Plaintiff, to be in violation of Title IX, including its due process requirements; (b)
48
requires Defendant to expunge the entire disciplinary proceeding from its records; (c) declares
Defendant’s conduct to be wrongful, willful, intentional, and reckless; (d) prohibits Defendant
from referencing Plaintiff’s disciplinary proceeding in the event of any third-party inquiry; and
(e) declares that upon any third-party inquiry, Plaintiff may reply in the negative as to any
question as to whether he has been accused of sexual misconduct or as to any similar question.
2. award plaintiff compensatory damages in an amount to be determined at trial, but not
less than $75,000.00 for mental anguish, loss of trust, severe emotional distress, serious mental
injury, injury to reputation, past and future economic loss, deprivations of due process, loss of
educational opportunities, loss of future career prospects, and other injuries proximately caused
by the wrongful conduct of defendant;
3. award plaintiff his attorney’s fees, disbursements, and costs pursuant to the provisions
of 42 U.S.C. § 1988(b) (relating to Title IX); or pursuant to any other statute or common law
doctrine providing for the award of attorney’s fees, disbursements, and/or costs;
4. award prejudgment interest; and grant such other and further relief as the Court may
deem just and proper.
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury of all claims so triable.
49
Dated: ___________________ _____________________________

John Doe
7-16-19
Dated: ___________________ MCGRAW LAW FIRM, P.A.
_____________________________
Beau D. McGraw, I.D. No.: 31190X
Attorney for Plaintiff
10390 39th Street North, Suite 3
Lake Elmo, MN 55042
Telephone: (651) 209-3200
[email protected]
50

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CASE 0:19-cv-01878-MJD-LIB Document 1 Filed 07/17/19 Page 1 of 50

UNITED STATES DISTRICT COURT

respectfully alleges as follows:

THE NATURE OF THIS ACTION

in violation of both state and federal law.

full-time student at Carleton College in Spring 2017.

North College Street, Northfield, MN 55057.

JURISDICTION AND VENUE

and is between citizens of different states.

business within the State of Minnesota.

or omissions giving rise to the claim occurred in this judicial district.

such federal funding.

order to compel colleges and universities to address so-called “sexual violence” on

federal student aid programs.

C. Federal Statutory and Regulatory Requirements Concerning Allegations of Sexual

act of Congress known as Title IX of the Education Amendments of 1972, 20 U.S.C.

operations.3 A school specifically agrees, as a condition for receiving federal funds, to

Education’s Title IX regulations. This agreement is known as an “assurance of compliance.”4

entitlement to federal funds on adherence to a federal regulatory scheme.

information and belief, has executed an assurance of compliance.

agencies . . . that sexual harassment of students can constitute discrimination prohibited by

Title IX.”8 “Sexual Harassment” is broadly defined as “unwelcome conduct of a sexual

harassment is prohibited by Title IX, as are other forms of sexual harassment.9

administratively enforces Title IX as it relates to sexual harassment. In 2001, OCR

promulgated regulations pursuant to notice-and-comment rulemaking10 in a document

entitled “Revised Sexual Harassment Guidance: Harassment of Students by School

effectively respond to sexual harassment of students in its program as a condition of

receiving Federal financial assistance.”12

considerably in detail, specificity, and components, reflecting differences in audiences,

experience.”13 Nevertheless, OCR has identified a number of factors to be used in

requirement applies to both state and private colleges and universities.15

including where complaints may be filed”; “Application of the procedure to complaints

alleging [sexual] harassment . . .”; “Adequate, reliable, and impartial investigation of

“Notice to the parties of the outcome of the complaint . . . .”16

harassment,” which includes “alleged sexual assaults.”17

prompt and equitable requirements of Title IX.”19

resume and complete its fact-finding for the Title IX investigation.”20

relevant witnesses and other evidence.”21

takes place with the [accused student].”22

findings of fact, transcripts, or audio recordings.”23

f. “[S]chools [should] provide an appeals process.”24

adequate training or knowledge regarding sexual violence.”25

h. “If an investigation or hearing involves forensic evidence, that evidence should be

reviewed by a trained forensic examiner.”26

Q&A Guidance, including:

applying a preponderance of the evidence standard and allowing institutions to decide

probable clear and convincing evidence standard28;

sufficient evidence to reach a fair and impartial determination as to whether sexual

misconduct has occurred29; and

c. Removing the 60-day deadline for adjudication of claims in favor of a prompt

resolution of claims that afforded both parties fairness.

E. Defendant’s Policy Prohibiting Discrimination, Harassment and Related

definitions applicable to allegations of sexual misconduct. (See Exhibit 1 – Policy Against

27. In the Policy effective in April 2017, “Consent” is defined as:

• Consent is not effective when force, threat, or coercion is used

28. “Incapacitation” is defined as:

Incapacitation is the physical and/or mental inability to make informed, rational

29. “Sexual contact” is defined as:

for Faculty and Staff.