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    Matthew Schwade
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    University of Dayton's response.

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    SKM_364e15101411420

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    University of Dayton's response.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    2K views41 pages

    SKM 364e15101411420

    Uploaded by

    Matthew Schwade
    University of Dayton's response.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    of 41
    Case: 3:15-cv-00362-TMR Doc #: 7 Filed: 10/14/15 Page: 1 of 41 PAGEID #: 305 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION DYSHAWN PIERRE, : Case No. 3:15-cv-00362 Plaintiff, : JUDGE THOMAS M. ROSE, v. ; DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S UNIVERSITY OF DAYTON, ; MOTION FOR TEMPORARY RESTRAINING ORDER AND Defendant. : PRELIMINARY INJUNCTION Defendant University of Dayton (“University”) submits this Response in Opposition to Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction. (Doc. 2) This response in opposition is supported by the attached memorandum and declarations. Respectfully submitted, By: /s/ Doreen Canton Doreen Canton (0040394) Evan T. Priestle (0089889) Taft Stettinius & Hollister LLP 425 Walnut Street, Suite 1800 Cincinnati, OH 45202 Tel: (513) 381-2838 Fax: (513) 381-0205 canton@taftlaw.com epriestle@taftlaw.com Attorneys for Defendant University of Dayton 13638198.1 Case: 3:15-cv-00362-TMR Doc #: 7 Filed: 10/14/15 Page: 2 of 41 PAGEID #: 306 TABLE OF CONTENTS I. INTRODUCTION....... i. A. The University’s Student Discipline Process ...... B. Mr. Pierre’s Familiarity with the Accommodation Process. 5 B. Facts and Procedure of Mr. Pierre’s Disciplinary Matter... 5 Il. ARGUMENT 12 A. No Likelihood of Success on the Merits.. 13, 1. Mr. Pierre Has Offered No Admissible Evidence to Establish That He is Likely to Succeed on the Merits. 13 Averring that facts are “true and correct tothe best of my knowledge” is insufficient and does not result in admissible evidence before the Court. See Totman v. Louisville Jefferson Cnty. Metro Gou't, 301 F. Appx 454, 464 (th Cir. 2010); Davis v. Michigan Dep't of Corr., No. 1:13-CV-1231, 2015 WL 179393, at *2 (WD. Mich. Sept. 4, 2015). Without admissible evidence, Mr. Pierre cannot meet his burden of establishing that he is likely to succeed on the merits. 2. Because Mr. Pierre Cannot Show That the University Acted Arbitrarily, He is Unlikely to Succeed on the Merits of His Breach of Contract Claim ... 14 “Contracts for private education have unique qualities and must be construed to allow the institution's governing body to meet its educational and doctrinal responsibilities.” Valente v. Univ. of Dayton, 438 F. App'x 381, 384 (6th Cir 2011) (quoting Ray v. Wilmington Coll, 667 N.E.2d 39, 42 (Ohio App. 1995) “Courts therefore will not interfere with a private university's right to make regulations, establish requirements, set scholastic standards, and enforce disciplinary rules absent a clear abuse of discretion.” Id. (citations and internal quotations omitted). Mr. Pierre has not established by clear and convincing ‘evidence that the University acted arbitrarily through its disciplinary hearing that ultimately resulted in finding Mr. Pierre responsible for sexual harassment. a. Mr. Pierre’s allegation that he shouldered the burden of proof in his disciplinary hearing is correct and otherwise insufficient to establish a due process violation ‘The preponderance of the evidence standard used by the University in its disciplinary hearings does not place the burden of proof on accused students. Additionally, placing the burden of proof on the accused in this setting is not violative of due process. See Lavine v. Milne, 424 US. 557, 585 (1976) 7 12698100. Case: 3:15-cv-00362-TMR Doc #: 7 Filed: 10/14/15 Page: 3 of 41 PAGEID #: 307 19638198.4 b. Mr. Pierre has no constitutional right to be actively represented by counsel in a discipline proceeding .. 19 Unless an attorney is presenting a case against a student or the evidentiary or procedural rules are complex, due process does not require that the student be permitted to be actively represented by counsel. See Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 636 (6th Cir. 2005). ¢. Iti nota due process violation to prohibit students from directly cross- examining each other, witnesses, or University employees..... v.19 “Students do have a right to have the evidence against them explained and to be given an opportunity to rebut that evidence, but this right does not entitle them to know the identity of student witnesses, of to cross-examine students or school administrators.” C.Y. ex rel. Antone v. Lakeview Pub. Sch., 557 F. App'x 426, 431 (6th Cir. 2014). d. Due process does not require that Mr. Pierre be afforded the epee to engage in discovery. “A student is not entitled to ‘discovery’ as if he were a

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