USM football player reinstated by federal court

HATTIESBURG, MS (WDAM) - A federal judge ordered the University of Southern Mississippi last month to allow a football player to return after the university ruled that he had broken the school’s sexual misconduct policy and suspended him for a year.

In ruling on the player’s “emergency motion for temporary restraining order and injunctive relief,” United States District Judge Keith Starrett concluded that the university had not extended due process during a July hearing before the university’s Sexual Misconduct Investigative Team.

The player was identified only as “John Doe” in the civil action filed in United States District Court for the Southern District of Mississippi.

Starrett ruled that a four-prong test for granting what he termed “an extraordinary remedy” had been met, and granted a preliminary injunction on Sept. 13, ordering USM President Rodney Bennett to: "Immediately reinstate plaintiff as a student in good standing at the university during the pendency of this matter; and

"Allow plaintiff to enter campus for the purpose of attending the courses at the university that he is presently enrolled in and all activities necessary to maintain his athletic scholarship, which may include, inter alia, training, practices, games, team meetings and the like.”

The court prefaced it’s decision by noting that “the purpose of a preliminary injunction is to preserve the status quo and thus prevent irreparable harm until the respective rights of the parties can be ascertained during a trial on the merits.

“Only in rare instances is this type of injunction proper,” the opinion went on to read. “In its discretion, based on the totality of the circumstances of this case, the (c)ourt finds this is one of those rare instances.”

In an email, the university declined to comment on the ruling.

“The University of Southern Mississippi does not comment on student conduct matters or pending litigation,” wrote Jim Coll, USM chief communication officer.

In a finding of facts, the court laid out the circumstances that led to Doe’s civil action.

This past May, “Jane Roe” reported to university police “an alleged sexual assault that took place sometime during the early part (February) of the spring semester 2016.”

Soon after, Roe contacted the university’s Title IX coordinator and filed a complaint. That signed complaint was sent to Doe on June 25.

The next day, Doe met with the Title IX coordinator, who explained the investigative and hearing process.

Per university policy, the three-person SMIT would “conduct the interviews, review the evidence and render the decision. Doe was informed that he could have no contact with Roe or any witnesses during the process.

The formal hearing was held July 18 and July 20, with Roe, Doe and six witnesses interviewed. Doe received transcripts of the interviews and was asked to “submit any changes, additions or corrections,” though he never did.

“Plaintiff was not allowed to be present during any of the interviews nor was he allowed to submit any questions to be asked of any of the witnesses, as the procedures for the hearing do not allow for the parties to do so,” the court order read.

Doe was notified on Aug. 10 that the SMIT had found he had violated the university’s sexual misconduct policy. On Aug. 21, Doe received a letter from USM’s vice president of student affairs that a one-year suspension was being imposed.

Doe’s attorney filed an appeal through the Title IX office, and was told on Sept. 7 that a decision would be rendered by Sept. 20.

Doe then filed his motion in federal court, and an evidentiary hearing was held on Sept. 10.

During the hearing, Doe testified that he needed six hours to graduate and that he was currently enrolled in his final two classes. He also testified that he attended school on an athletic scholarship, which requires taking classes and participating in football.

He testified that if the suspension continued, he would lose his scholarship and that if he tried to transfer, not all his credits would transfer. Doe testified that as the youngest of 18 children, without his scholarship, he would not be able to attend school and be unable to graduate.

The motion asked for the court to consider three reasons to grant an injunction, but the court decided to limit the scope to the alleged procedural due process violation during the disciplinary hearing.

The university argued that in such a proceeding, a student only has to be notified of the hearing and given the opportunity to be heard.

Doe argued that in “this he said/she said scenario, involving accusations of sexual misconduct where credibility is the central issue, more is required,” and that the plaintiff “was entitled to confront the witnesses against him by cross examination and also to ask follow-up questions.”

In its decision, the court wrote that it had reviewed the SMIT interviews and other testimony “and contradictions abound.”

The court also said four “tests” were met needed to grant the injunction, including:

“A substantial likelihood that plaintiff will prevail on the merits”

The court ruled that the university’s hearing process was “inadequate” and that the value of additional “safeguards is immense in a he said/she said situation” and that this “is a case where cross examination is warranted because such a procedural safeguard would have lessened the risk of an erroneous deprivation.”

The court cited the SMIT’s panel acceptance of Jane Roe’s version of events, despite witnesses questioning her truthfulness, including the USM police officer who conducted the initial interview.

“The only highly-trained investigator flatly said he did not find her credible,” the court said.

The court said even though the plaintiff was offered an opportunity to edit summaries of the interviews after the fact, doing so “would just create more he said/she said.”

The court pointed out one of the factors the SMIT panel relied on to “undermine plaintiff’s credibility” was a conclusion that the plaintiff had been informed in October 2016 by a mutual friend that Roe had mentioned the sexual assault allegation.

The court said that conclusion appears in none the panel members’ notes, but only in summary.

“He could not know whether the summary was correct because he never heard the testimony in the first place,” the court said. “Writing a rebuttal after the testimony is complete is not the same as a cross-examination.”

The court ruled that “without a live proceeding with plaintiff present, the risk of erroneous deprivation of plaintiff’s interest in his reputation, education and employment is significant … the Court finds that there is a substantial likelihood on the success of the merits of plaintiff’s procedural due process claim.

“Substantial threat that irreparable injury will result if the injunction is not granted”

The court ruled that if not reinstated, the plaintiff would lose his scholarship and be unable to graduate, thus meeting that test’s “burden.”

“Threatened injury if injunction is denied outweighs the harm that will result if injunction is granted”

The plaintiff’s ability to go to school is in jeopardy if the injunction is denied, the court wrote. Plaintiff has no record of prior or subsequent issues. Doe and Roe were in school together for two years after the alleged incident without any incident.

The court ruled Doe’s request met that test as well

“Granting of injunction will not disservice the public interest”

The court was succinct ruling in this area.

“Protecting a person’s constitutional right to due process is always in the public interest…Accordingly, the public interest is not only not disserved but also served,” the court wrote.

With the Doe’s motion meeting all four “burdens,” Starrett granted the temporary injunction.