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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JANE ROE,

Plaintiff,

v.

JAVAUNE ADAMS-GASTON, ET AL. 

Defendants

Case No. 2:17-cv-00945-EAS-CMV

JUDGE: SARGUS

OPPOSITION TO MOTION FOR 

RECONSIDERATION

Plaintiff Jane Roe respectfully submits this Opposition to Defendants’ Motion for 

Reconsideration (“Def. Memo.”). The Court’s decision was correct and consistent with the decisions 

of this Court, the Sixth Circuit Court of Appeals, and the United States Supreme Court.

A. Defendants Do Not Challenge The Court’s Conclusions On Three Of The Four

Preliminary Injunction Factors

In considering the Motion for a Preliminary Injunction, the court considered all four of the 

elements set forth by the Sixth Circuit. City of Pontiac Retired Employees Ass'n v. Schimmel, 751 F.3d 427, 

430 (6th Cir. 2014); Ohio State Conf. of the NAACP v. Husted, 768 F.3d 524, 532-533 (6th Cir. 2014). 

The Court found that all four factors favored the granting of a preliminary injunction. 

Defendants challenge the Court’s decision only in respect to one of the four factors, likelihood 

of success on the merits. This is significant because the four elements must be balanced; no single 

factor is determinative. See 111 Debt Acquisition LLC v. Six Ventures, Ltd., S.D.Ohio No. 2:08-cv-768, 

2008 U.S. Dist. LEXIS 85431, at *8 (Aug. 15, 2008) (“These four considerations are not required 

elements of a conjunctive test but are rather factors to be balanced.”), citing Michigan Bell Tel. Co. v. 

Engler, 257 F.3d 587, 592 (6th Cir. 2001). As a result, even if Defendants were correct (and they are 

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not), the Court could still have granted the Motion for a Preliminary Injunction after balancing all four

factors.

B. Defendants Incorrectly State There Is No “Historical” Due Process Right To Cross 

Examination In Student Disciplinary Proceedings

Defendants incorrectly understate the obligation of OSU to provide Plaintiff due process in 

school disciplinary hearings.

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 Defendants suggest that Plaintiff can only show a substantial likelihood 

of success if Plaintiff demonstrates “lack of notice and a hearing.” Def. Memo. at 3, citing Harris v. 

City of Akron, 20 F.3d 1396 (6th Cir. 1994). The question was not whether the Plaintiff had some form 

of notice2 and an opportunity to be heard; she did. But this is only the start of the analysis. Instead 

the question is whether that opportunity to be heard was “meaningful,” or as Justice Powell explained, 

“fair.” Vitek v. Jones, 445 U.S. 480, 500, 100 S. Ct. 1254 (1980) (Powell, J., concurring in part) (“The 

essence of procedural due process is a fair hearing.”). See Doe v. Cummins, 662 F.App'x 437 (6th Cir.

2016) (a student facing suspension is entitled to “the opportunity to be ‘heard at a meaningful time 

and in a meaningful manner.’”), quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Doe v. Rector & 

Visitors of George Mason Univ., E.D.Va. No. 1:15-cv-209, 2016 U.S. Dist. LEXIS 24847, at *46-47 (Feb. 

25, 2016) (“it may well be that plaintiff deserves to be expelled or otherwise sanctioned for certain 

behavior, but the Constitution requires that if behavior is to be sanctioned, then the state must ensure 

the soundness of the decision it reaches as the situation requires.”).

 1 Defendants quote the Sixth Circuit in Flaim to observe, correctly, “A University is not a court of 

law.” Def. Memo. at 4, quoting Flaim v. Med. College of Ohio, 418 F.3d 629, 635 (6th Cir. 2005). However, 

the Sixth Circuit, in that same case, noted that the observation that school disciplinary hearings “are 

not criminal trials, and therefore need not take on many of those formalities” was a “generalized, though 

unhelpful observation.” Id. (emphasis supplied).

2 Plaintiff has asserted in the Amended Complaint a claim that Plaintiff did not receive adequate notice. 

(Am. Comp. ¶¶ 52, 78, 110(a).) This claim is consistent with Nokes v. Miami Univ., S.D.Ohio No. 1:17-

cv-482, 2017 U.S. Dist. LEXIS 136880, at *33 (Aug. 25, 2017) (granting preliminary injunction on 

claim that school failed to provide adequate notice of nature of misconduct). 

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Defendants’ argument is premised on a board claim about the current state of the law: 

A review of the relevant case law shows that Courts have traditionally held that there 

is no due process right of accused students in a school disciplinary process to crossexamine either their accusers or adverse witnesses.

Def. Memo. at 4.3 This is 180° wrong. Precedent from the U.S. Supreme Court, the Sixth Circuit, 

other Circuit Courts of Appeals, and this Court clearly establish the outlines of this right: in college 

and university disciplinary hearings, the Due Process guarantee of the Constitution requires that there 

is a right to confront adverse witnesses when the information supplied by those witnesses is the reason 

for the adverse actions and there is a question of credibility to be resolved by the finder of facts?

 3 Defendants cite two Sixth Circuit decisions to support this claim. Newsome v. Batavia Local School Dist., 

842 F.2d 920 (6th Cir. 1988); C.Y. v. Lakeview Pub. Schs, 557 F.App'x 426 (6th Cir. 2014). 

Newsome was decided 17 years before Flaim, infra., and was cited by the Sixth Circuit in Univ. of 

Cincinnati, infra., five times. As a result, to the extent there is any inconsistency with Newsome, on the 

one hand, and Flaim and Univ. of Cincinnati, on the other hand, Univ. of Cincinnati represents the current 

statement of the law. Newsome also presented a number of unique facts not present in this case that 

tipped the Mathews balancing test in that case against cross-examination. In Newsome, but unlike in this 

case, the Sixth Circuit believed that the credibility of the witnesses was “initially assessed by a school 

administrator -- in this case, the school principal -- who has, or has available to him, a particularized

knowledge of the student's trustworthiness.” 842 F.2d at 924. In addition, in Newsome, but unlike in 

this case, the school had an interest in “protecting student witnesses from ostracism and reprisal.” 842 

F.2d at 925. See Rippy v. Bd. of Sch. Trs., S.D.Ind. Cause No. IP 99-1508-C H/G, 2000 U.S. Dist. LEXIS 

7427, at *12 (Feb. 4, 2000) (observing that Newsome involved a specific fact pattern related to drug 

usage and “stop[ped] short,” however, of establishing general propositions for student hearings). 

C.Y. does not discuss the cross-examination issue in detail, most likely because the student had 

admitted to a violation of school rules and, as a result, like in Flaim, the fact-finder was not required 

to make a credibility determination. 557 F.App'x at 428 (noting that student admitted to sending a 

threatening tweet and that she threatened another student during conversations with other students).

Moreover, Newsome and C.Y. involved high school students. This Court, in the original decision in

Univ. of Cincinnati, correctly recognized that the relationship between administrators and students, 

which was key to the Newsome decision, is different in high school and college, and that, as a result, 

different standards govern the constitutional rights of high school and college students.

In a university setting, the administrators do not have the same “particularized 

knowledge” of a student’s trustworthiness that exists in a high school with a smaller 

student population. Therefore, the value of cross-examination is not “somewhat 

muted” based on the school administrator’s firsthand knowledge of the students 

involved.

Doe v. Univ. of Cincinnati, 223 F. Supp. 3d 704, 711 (S.D.Ohio 2016). 

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• In Goldberg v. Kelly, 397 U.S. 254, 269 (1970), the Supreme Court said, “in almost every 

setting where important decisions turn on questions of fact, due process requires an 

opportunity to confront and cross-examine adverse witnesses.” 397 U.S. at 269-270. 

• In Winnick v. Manning, 460 F.2d 545 (2d Cir. 1972), the Second Circuit said, “if this 

case had resolved itself into a problem of credibility, cross-examination of witnesses 

might have been essential to a fair hearing.” Id. at 550. 

• In Flaim v. Med. Coll. of Ohio, 418 F.3d 629 (6th Cir. 2005), the Sixth Circuit, relying on 

Winnick, said that when there is “a choice between believing an accuser and an accused, 

. . . cross-examination is not only beneficial, but essential to due process.” 418 F.3d 

at 641.

• In Doe v. Cummins, , 662 F. App'x 437 (6th Cir. 2016), the Sixth Circuit, relying on 

Winnick and Flaim, said, “due process may require a limited ability to cross-examine 

witnesses in school disciplinary hearings where . . . credibility is at issue.” 662 F. App'x 

at 448.

• In Doe v. Ohio State Univ., 219 F. Supp. 3d 645 (S.D. Ohio 2016), this Court, relying on 

Flaim, held, “The right to some form of cross-examination in university expulsion 

hearings is a clearly established due process right when . . . a case that turns on ‘a choice 

between believing an accuser and an accused.’” 219 F. Supp. 3d at 663, quoting Flaim.

In a later decision in the same case, this Court observed that in certain situations a 

school may be required to provide an accused student with credibility impeachment 

evidence “as part of his right to cross-examination.” Doe v. Ohio State Univ., S.D.Ohio 

No. 2:15-cv-2830, 2018 U.S. Dist. LEXIS 68364, at *28 (Apr. 24, 2018).

• In Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 2017), the Sixth Circuit, relying on 

Flaim,, said, “Accused students must have the right to cross-examine adverse witnesses 

‘in the most serious of cases.’” 872 F.3d at 401. 

• In Doe v. Miami Univ., 882 F.3d 579, 600 (6th Cir. 2018), the Sixth Circuit, relying on 

Univ. of Cincinnati, said cross examination was required “if the credibility of an alleged 

victim is at issue” as a “way for the adjudicative body to evaluate the victim's 

credibility.” 882 F.3d at 600, quoting Univ. of Cincinnati. 

• In Gischel v. Univ. of Cincinnati, S.D.Ohio No. 1:17-cv-475, 2018 U.S. Dist. LEXIS 18083 

(Feb. 5, 2018), this Court, relying on Univ. of Cincinnati, said, “The Sixth Circuit has 

recognized at least a limited right to cross-examine adverse witnesses ‘in the most 

serious of cases.’” 2018 U.S. Dist. LEXIS 18083, at *36, quoting Univ. of Cincinnati. 

These decisions recognize a well established legal principle: the Due Process guarantees of the 

Constitution include a right to confront adverse witnesses when the information supplied by those 

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witnesses is the reason for the adverse actions and there is a question of credibility to be resolved by 

the finder of facts.

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C. Defendants Improperly Attempt To Limit The Holding Of Univ. of Cincinnati

Defendants suggest that this Court failed to recognize the narrow nature of the Sixth Circuit’s 

decision in Univ. of Cincinnati. Defendant argue that Univ. of Cincinnati establishes only that “the accusing 

student must be subject to ‘some form’ of cross examination.” Def. Memo. at 8 (emphasis in original).

Nothing in the court’s decision in Univ. of Cincinnati supports the conclusion that the right to 

cross-examination is limited to accusers. On three occasions, the Sixth Circuit explained that the right 

 4 The other cases cited by Defendants all concerned junior high school or high school students and, 

as a result, are distinguishable on this basis. See e.g. Caston v. Benton Pub. Schools, E.D.Ark. 

4:00CV00215WKU, 2002 U.S. Dist. LEXIS 11299 (Apr. 11, 2002) (student attended Benton Junior 

High School); L.Q.A. v. Eberhart, 920 F.Supp. 1208 (M.D.Ala.1996) (student at Georgia Washington 

Junior High School); Dornes by & Through Lopez v. Lindsey, 18 F.Supp.2d 1086, 1087 (C.D.Cal.1998) 

(student at Etiwanda Middle School).

In many of the cases cited by Defendants, not only were the students in high school, but – significantly 

– there was not a question of credibility because the students had admitted to the misconduct. See 

Brewer v. Austin Indep. School Dist., 779 F.2d 260 (5th Cir.1985) (sixteen-year-old student at David 

Crockett High School admitted to possession of drugs); McClain v. Lafayette Cty. Bd. of Edn., 673 F.2d 

106 (5th Cir.1982) (student at Lafayette County High School admitted he possessed a knife at school); 

Sandusky v. Smith, W.D.Ky. No. 3:10-CV-00246-H, 2012 U.S. Dist. LEXIS 1422251 (Oct. 2, 2012) 

(student at Marion County High School admitted to having alcohol on school trip); Johnson v. Humble 

Indep. School Dist., 799 F.Supp. 43 (S.D.Tex.1992) (student at Humble High School admitted to striking 

a coach).

Other decisions cited by Defendants not only involve high or junior high students schools, but arose 

in the difficult and unique context of desegregation efforts in the 1970s. See Graham v. Knutzen, 351 

F.Supp. 642 (D.Neb.1972) (case concerning multiple students in Omaha public schools); Tasby v. Estes, 

643 F.2d 1103 (5th Cir.1981) (case concerning disciplinary procedures following desegregation of 

Dallas Independent School District); Boykins v. Fairfield Bd. of Edn., 492 F.2d 697 (5th Cir.1974) (case 

concerning disciplinary procedures following desegregation of Fairfield, Alabama schools).

Finally, at least one case relied upon by Defendants actually turns out to support Plaintiff. Dillon v. 

Pulaski Cty. Special School Dist., 468 F.Supp. 54 (E.D.Ark. 1978). In Dillon, a student at North Pulaski 

High School was suspended after he was observed by a teacher kissing a girl. The teacher testified at 

a hearing but the student was not permitted to ask the teacher any questions. The court concluded, 

“due process clearly demanded that the plaintiff should have been given an opportunity to question 

her before the school board at its disciplinary hearing concerning the details of his alleged 

misconduct.” 468 F.Supp. at 58.

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of confrontation applies to “adverse witnesses,” not merely the accuser. 872 F.3d at 401 (“Accused 

students must have the right to cross-examine adverse witnesses ‘in the most serious of cases.’” (emphasis 

supplied)), quoting Flaim, 418 F.3d at 636; 872 F.3d at 404-405 (“Sparing the ARC panel from having to 

navigate traditional cross-examination justifies the requirement for written preapproved questions, but 

it does not justify denying the opportunity to question an adverse witness altogether.” (emphasis 

supplied).); 872 F.3d at 406 (“Although hearsay and credibility disputes often go hand in hand, use of 

hearsay does not itself trigger the right to question an adverse witness.” (emphasis supplied)).

Another recent decision by this Court found that the failure of a school to permit the crossexamination of a witness who supplied information that provided the reason for an adverse 

disciplinary violated the due process rights of an accused student. In Gischel, this Court (Dlott, J.) 

considered a motion to dismiss a complaint brought by a student accused of sexual misconduct. This 

Court, citing to Univ. of Cincinnati, found that the due process rights of an accused student could be 

violated when the hearing panel refused to ask the alleged victim a number of questions aimed at 

demonstrating that the alleged victim gave inconsistent or inaccurate statements. This Court also

found that the due process rights of the accused student could be violated when the student was 

denied the opportunity to cross-examine a detective who had interviewed the alleged victim and 

obtained many of the witness statements relied upon by the hearing panel because the detective failed 

to appear at the hearing. Gischel, 2018 U.S. Dist. LEXIS 18083, at *37-38.

This Court’s decision is also consistent with a recent decision of a district court in Michigan

to issue an injunction against the University of Michigan’s procedure for adjudicating claims of sexual 

misconduct. In the Michigan case, as in this case, the school used an investigator to obtain statements 

from adverse witnesses and claimed that students could engage in some form of questioning through 

the investigator. Unlike OSU, Michigan did not permit any live testimony, but the result was the same: 

an accused student had no ability to cross-examine adverse witnesses. The court concluded that the 

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accused student had a substantial likelihood of success on the merits of a due process claim. The 

court, relying on Univ. of Cincinnati, said:

[T] his Policy deprives Plaintiff of a live hearing and the opportunity to face his accuser. 

Because of the University’s method of private questioning through the investigator, 

Plaintiff has no way of knowing which questions are actually being asked of Claimant 

or her response to those questions. Without a live proceeding, the risk of an erroneous

deprivation of Plaintiff’s interest in his reputation, education, and employment is

significant. Additional procedural safeguards would both assist the truth-seeking

process and help to ensure the protection of Plaintiff’s constitutional rights.

Doe v. Univ. of Michigan, E.D. Mich. No. 2:18-cv-11776-AJT-EAS, ECF No. 30 (July 6, 2018) (pursuant 

to Local Rule 7.2(b)(4), available upon request by the Court or opposing counsel).

Defendants’ other efforts to distinguish Doe v. Univ. of Cincinnati fail.5 

Defendants first suggest that because Plaintiff supposedly did not specifically recall the events 

that led to her discipline, there was no issue of credibility. Def. Memo. at 9. This description of 

Plaintiff’s testimony at the disciplinary hearing is not accurate. Plaintiff specifically denied engaging in 

any misconduct. (Hrg. Tr. at 10; PageID#160.). She did not testify that she did not remember 

anything; she testified that she did not remember engaging in the misconduct described by the alleged 

victim:

 5 Defendants suggest that Univ. of Cincinnati does not prevent a school from using hearsay evidence in 

proceedings. Def. Memo. at 8. This is correct, but also a separate issue from confrontation. Allowing 

a school to impose discipline based exclusively on hearsay, without providing any opportunity for a 

student to cross-examine the person who provides the adverse information, would allow a school to 

eviscerate the holding of Goldberg that when important governmental decisions are based on 

determinations of fact, due process usually requires an opportunity to confront and cross-examine 

adverse witnesses. 397 U.S. 254 at 269. Courts have found due process violations when an 

administrative hearing relies exclusively on hearsay to prove wrongdoing without providing any 

opportunity or mechanism to question the declarant. Ortiz v. Eichler, 616 F.Supp. 1066, 1068 (D.Del. 

1985) (an administrative hearing could admit hearsay as long as the party could compel the attendance 

of the witnesses “because claimants would then have the power to compel confrontation with, and 

cross-examination of, hearsay declarants”); Basco v. Machin, 514 F.3d 1177, 1183 (11th Cir. 2008) 

(administrative decision relying solely on hearsay could violate due process guarantees when parties 

could not subpoena the declarants); Edgecomb v. Hous. Auth., 824 F.Supp. 312, 315-16 (D.Conn.1993) 

(“Denying [plaintiff] the opportunity to confront and cross-examine persons who supplied 

information upon which the [agency’s] action is grounded is improper.”).

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I legitimately do not remember anything – anything that’s in the packet [the alleged 

victim] describes. . . .

If I – if I knew I had done this, I would have – I would have asked for much deeper 

forgiveness. I would have – I would have admitted to it. I would have taken 

responsibility at, you know, this hearing. . . . I don’t understand how I could have such 

vivid memories about what I did to [a witness] and nothing about anything I did –

anything I did to [the alleged victim].

(Hrg. Tr. at 58-59, PageID#208-209.) Moreover, as this Court observed in its decision, the hearing 

officer acknowledged having to “choose between believing [Plaintiff] and believing her accusers.” 

April 17, 2018 Entry at 17 (PageID#1075). The hearing officer specifically concluded that that 

“statements made by [Plaintiff] . . . were not plausible or credible” but that the “accounts of [the 

alleged victim] and the witnesses presented a consistent and credible account.” (May 3, 2017 Letter, 

PageID#725.)

Defendants next suggest that there is no constitutional violation because Plaintiff could have 

cross-examined the alleged victim on her written statement. 6 Def. Memo. at 9-10. Defendants, in a 

related argument, suggest, correctly, that “nothing in the Univ. of Cincinnati case suggests that every 

single witness who testimony is considered at a student disciplinary hearing must appear in person and 

be subjected to cross-examination.” Def. Memo. at 10. Plaintiff does not dispute that Plaintiff had 

the opportunity to cross-examine the alleged victim. That is not the constitutional violation. Rather, 

 6 Defendants observe that OSU does not have subpoena power. Def. Memo. at 12. This is true, but 

of no moment. OSU can certainly enact rules requiring student and faculty to cooperate with 

investigations and appear for hearings. The further suggestion that appearing would impose an undue 

burden because witnesses would have to “miss class, work, or other personal matters” is speculative 

and may not be an accurate depiction of the undergraduate experience or lifestyle, anyway (at least in 

the experience of counsel). Def. Memo. at 12. 

Moreover, this slight burden does not outweigh the recognized interest of accused students in their 

education. Univ. of Cincinnati, 872 F.3d 393 at *29 (a suspended student would “suffer reputational 

harm both on and off campus based on a finding rendered after an unfair hearing”; Elmore v. Bellarmine 

Univ., W.D.Ky. No. 3:18CV-00053-JHM, 2018 U.S. Dist. LEXIS 52564, at *20 (Mar. 28, 2018) 

(disciplinary sanctions “would damage [student’s] academic and professional reputations and may 

affect his ability to enroll at other institutions of higher education or medical school and to pursue a 

career”), citing Doe v. Cummins, 662 Fed. Appx. 437, 445 (6th Cir. 2016).

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as explained supra, the Due Process guarantees of the Constitution includes a right to confront adverse 

witnesses when two factors are present: (i) the information supplied by those witnesses is the reason 

for the adverse actions; and (ii) there is a question of credibility to be resolved by the finder of facts. 

Both factors were present in this case, as the hearing officers relied on statements from witnesses who 

did not appear at the hearing to decide an issue of credibility. Plaintiff is not claiming, as Defendants 

suggest, that the Due Process Clause requires the ability to cross examine “any witness.” Def. Memo. 

at 8. See also Def. Memo. at 11-12 (suggesting that Court’s decision would require :every witness, no 

matter how minor . . . to appear and testify in person). Plaintiff is claiming, and believe the more 

accurate description of the law, is as follows: the due process clause requires the ability to crossexamine adverse witness who the finder of fact relies upon to resolve an issue of credibility. See, 

generally, Univ. of Cincinnati, supra.

CONCLUSION

The Motion for Reconsideration should be denied. 

Respectfully submitted, 

/s/ Joshua Adam Engel

Joshua Adam Engel (0075769)

Anne Tamashasky (0064393)

ENGEL AND MARTIN, LLC

4660 Duke Drive, Ste. 101

Mason, OH 45040

(513) 445-9600

(513) 492-8989 (Fax)

engel@engelandmartin.com 

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been electronically served via the Court’s CM/ECF 

system this 12th day of July upon all counsel of record.

/s/ Joshua Adam Engel

Joshua Adam Engel (0075769)

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