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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JANE ROE,

Plaintiff,

v.

UNIVERSITY OF CINCINNATI, ET AL. 

Defendants

Case No.

 Judge 

MOTION FOR PRELIMINARY 

INJUNCTION

Pursuant to Federal R. Civil Rule 65, Plaintiff Jane Roe seeks, following a hearing, a 

preliminary injunction prohibiting Defendants, who are employees of The University of Cincinnati

and, at all times, were implementing the policies and procedures of the school (collectively, unless 

indicated otherwise, “UC”), from suspending her in violation of her constitutional due process 

rights. This Motion is accompanied by the Affidavit of Jane Roe. 

This case is one of many cases arising amidst a national controversy stemming from the 

Federal Department of Education, Office of Civil Rights’ (“OCR”) threats to withhold federal 

education funds to compel colleges and universities to address “sexual violence” on their campuses. 

While the Complaint raises a number of claims, this Motion focuses on a single unconstitutional 

aspect of the discipline process faced by Jane Roe: the imposition of discipline against Jane Roe and 

the failure of UC to initiate a disciplinary process against a similarly situated male student, John Doe, 

in violation of the Equal Protection guarantees of the Fourteenth Amendment. This claim is 

described in Doe v. Miami Univ., 882 F.3d 579, 596 (6th Cir. 2018).

A preliminary injunction is necessary to preserve the status quo by allowing Jane Roe to finish 

school and maintain her ROTC scholarship pending the resolution of this matter. 

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MEMORANDUM

FACTS

Jane Roe brought this action for a declaratory judgment, violation of 42 U.S.C. §1983, 

violation of Title IX, and injunctive relief. This case arises out of the decision of UC to impose 

disciplinary sanctions against Jane Roe in violation of her Constitutional due process rights.

Jane Roe is an undergraduate student at UC in the nursing program. She also participates in 

the ROTC program. UC suspended Jane Roe for an indefinite period of time for allegedly engaging 

in sexual conduct with another student while that student was intoxicated and as a result, unable to 

provide consent. 

A. UC’s Response to The Growing Problem of Sexual Assaults on Campus

After years of criticism for being too lax on campus sexual assault, on April 11, 2011, OCR

sent a “Dear Colleague” to colleges and universities. The Dear Colleague Letter indicated that, in 

order to comply with Title IX, colleges and Universities must have transparent, prompt procedures 

to investigate and resolve complaints of sexual misconduct. Most notably, the Dear Colleague 

Letter required schools to adopt a relatively low burden of proof—"more likely than not"—in cases 

involving sexual misconduct, including assault. The Dear Colleague Letter has received substantial 

criticism. One federal appeals court judge observed that the Dear Colleague Letter “was not 

adopted according to notice-and-comment rulemaking procedures; its extremely broad definition of 

‘sexual harassment’ has no counterpart in federal civil rights case law; and the procedures prescribed 

for adjudication of sexual misconduct are heavily weighted in favor of finding guilt.” Plummer v. Univ. 

of Houston, 860 F.3d 767, 779-80 (5th Cir. 2017) (Jones, J., dissenting). On September 22, 2017, the 

Department of Education withdrew the Dear Colleague Letter and indicated its intent to issue new 

guidance “through a rulemaking process that responds to public comment.” Letter from Office for 

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Civil Rights, U.S. Dep't of Educ. (September 22, 2017).

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 In withdrawing the Dear Colleague Letter, 

OCR might have been describing OSU’s actions in this case: prior actions “may have been wellintentioned, but . . . led to the deprivation of rights for many students—both accused students 

denied fair process and victims denied an adequate resolution of their complaints.” Id. at 1-2. OCR 

further said:

Legal commentators have criticized the 2011 Letter . . . for placing “improper 

pressure upon universities to adopt procedures that do not afford fundamental 

fairness.” As a result, many schools have established procedures for resolving 

allegations that “lack the most basic elements of fairness and due process, are 

overwhelmingly stacked against the accused, and are in no way required by Title IX 

law or regulation.”

Id. at 1, quoting Open Letter From Members Of The Penn Law School Faculty: Sexual Assault Complaints: 

Protecting Complainants And The Accused Students At Universities, Feb. 8, 2015; Rethink Harvard’s Sexual 

Harassment Policy, Boston Globe (Oct. 15, 2014) (statement of 28 members of the Harvard Law 

School faculty).

UC has been the subject of two investigations by OCR into the manner in which it 

investigates and adjudicates complaints of sexual assault and sexual harassment on campus. OCR 

Docket No. 15-16-2178 (opened Feb. 17, 2017); OCR Docket No. 05-16-2039 (opened Feb. 9, 

2016). (See Complaint Exhibits A(1) and A(2).) UC has also been the subject of extensive litigation 

alleging that the school has not acted appropriately in the investigation and adjudication of claims of 

sexual assault. See e.g. Helmicki v. University of Cincinnati et al. S.D. Ohio No. 1:16-cv-00728; Doe v. 

Cummins, 662 F.App'x 437 (6th Cir.2016); Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 2017); 

Gischel v. Univ. of Cincinnati, S.D.Ohio No. 1:17-cv-475, 2018 U.S. Dist. LEXIS 18083 (Feb. 5, 2018). 

UC has adopted a “Sexual Misconduct” Policy. A copy of the Sexual Misconduct Policy is 

attached to the Complaint as Exhibit B. Students who violate the Sexual Misconduct Policy are 

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Available at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf. 

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subject to sanctions pursuant to the Code of Student Conduct. A copy of the Code of Student 

Conduct is attached to the Complaint as Exhibit C. The Sexual Misconduct Policy prohibits 

“Sexual/gender-based violence.” This is defined as “physical sexual acts perpetrated against a 

person’s will or where a person is incapable of giving consent due to the person’s use of drugs or 

alcohol.” The Sexual Misconduct Policy defines “consent” as follows:

Consent is informed, freely given, mutual, and can be withdrawn at any time. A 

person cannot give consent if he or she is mentally or physically incapacitated or 

impaired such that the person cannot understand the fact, nature or extent of the 

sexual situation; this includes impairment or incapacitation due to age, alcohol or 

drug consumption, or being asleep or unconscious. Similarly, a person cannot give 

consent if force, expressed or implied, duress, intimidation, threats or deception are 

used on the complainant. Silence or the absence of resistance does not necessarily 

imply consent. Consent to some sexual acts does not imply consent to other acts, 

nor does prior consent to sexual activities imply ongoing future consent with that 

person or consent to that same sexual activity with another person. Whether an 

individual has taken advantage of a position of influence or authority over an alleged 

victim may be a factor in determining consent.

Potential sanctions under the Code of Student Conduct include formal reprimand, disciplinary 

probation, suspension, dismissal, and other appropriate educational sanctions. The Code of Student 

Conduct includes a set of “procedures” for investigating and resolving complaints. Allegations of

sexual misconduct by a student are investigated by the UC Title IX Office. The Code of Student 

Conduct requires that students be notified of university charges in writing. A student accused of 

violating the Code of Student Conduct is entitled to a hearing. 

When a complaint of sexual misconduct is made, a Deputy Title IX Coordinator or designee 

will initiate a meeting with the accused student. A Deputy Title IX Coordinator or designee will 

begin interviewing witnesses, as appropriate, and review relevant evidence. The complainant and the 

accused student are supposed to have an equal opportunity to provide documents and witnesses 

during the investigation and adjudication of the complaint. At the conclusion of the investigation, 

the Deputy Title IX Coordinator prepares an investigatory report which is provided to an 

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Administrative Review Committee (“ARC”). The ARC holds an administrative hearing applying the 

preponderance of the evidence standard.

B. The Fall 2017 Incident And The UC Disciplinary Process

Jane Roe is facing a suspension from UC for events that allegedly occurred beginning on the 

evening of September 30, 2017. On that date, Jane Roe had sexual contact with John Doe, allegedly 

while John Doe was intoxicated and unable to provide consent.

On September 30, 2017 Jane Roe attended a party with John Doe. Jane Roe had been 

drinking throughout much of the evening. She left the party with John Doe when John Doe said 

that he was drunk and wanted to go home. When they arrived at John Doe’s house, John Doe 

invited Jane Roe inside. Jane Roe arranged to give John Doe some water and ibuprofen for an 

injury to his foot. She did not feel comfortable leaving John Doe and told him that she would not 

leave until he drank some water.

Jane Roe fell asleep on John Doe’s bed. John Doe’s roommates came into the room and 

asked her to leave, but she said that she was too dizzy to walk home. John Doe got into the bed and 

curled up next to James Roe. He started kissing her. They made out. John Doe removed Jane Roe’s 

shirt and asked her to lock the door. While they were making out John Doe told Jane Roe to be 

quiet because “I think my roommates can hear” and digitally penetrated Jane Roe. Jane Roe asked 

John Doe if “There was anything else you want to do?” John Doe said “I think my roommates can 

hear. Let’s go to sleep.” Jane Roe left the house the next morning..

On October 2, 2017, John Doe submitted a report to the UC Title IX Office alleging that 

Jane Roe had engaged in sexual activity with him when he was intoxicated and, therefore, unable to 

provide consent. John Doe did not report that he penetrated Jane Roe; he reported only that he 

“thinks he touched Respondent’s vagina.” John Doe did not report the incident to the police. On 

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information and belief, John Doe was motivated to file a Title IX Complaint in retaliation for a prior 

Title X Complaint Jane Roe had filed against his friend.

On October 2, 2017, Defendant Karla Phillips, the school’s Interim Title IX Coordinator,

informed Jane Roe that the Title IX Office had received a report from John Doe and was beginning

an investigation. Phillips assigned the report to Caitlin Wells, an employee in the Title IX office, to 

conduct the investigation. During the course of the investigation, Wells received information 

confirming that Jane Roe and John Doe had sexual contact. Wells wrote:

[[I] t is not disputed that the sexual conduct occurred. Respondent stated that she 

and Complainant kissed and that Complainant digitally penetrated her. As such, the 

analysis moves to whether the sexual activity was consensual or nonconsensual.

Importantly for purposes of this Motion, Well also received information that Jane Roe was 

intoxicated. This information included: (i) statements from Jane Roe that she had been drinking; (ii) 

statements that Jane Roe did not want to leave John Doe’s apartment because she was intoxicated; 

and (iii) witness statements in which Jane Roe stated that she was intoxicated. Wells, despite having 

information tat John Doe may have, also, violated the Sexual Misconduct Policy, did not investigate 

these potential violations, report the possible misconduct to the Title IX Office, or initiate any 

disciplinary proceedings.

UC conducted an ARC Hearing to determine if Jane Roe had violated the Student Code of 

Conduct. Jane Roe was found “responsible”, or “guilty” at the hearing. Jane Roe submitted an 

appeal through the UC appeals process. This appeal was denied.

On February 26, 2018, Juan Guardia, in his role as Assistant Vice President for Student 

Affairs and Dean of Students, informed Jane Roe that she was suspended from UC until John Doe 

graduates or is no longer a student at UC. The letter indicated, “This decision is final and concludes 

the conduct process.”

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ARGUMENT

A. The Standard For Resolution Of This Motion

The purpose of a preliminary injunction is to preserve the status quo. Procter & Gamble Co. v. 

Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). In considering a preliminary injunction, the court 

considers four elements: (1) a substantial likelihood of success on the merits; (2) a substantial threat 

that the movant will suffer irreparable injury if the injunction is denied; (3) that the threatened injury 

outweighs any damage that the injunction might cause the defendant; and (4) that the injunction will 

not disserve the public interest. 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).

B. Recent Cases Granting Preliminary Injunctions To Students

In a number of recent cases federal courts have granted injunctive relief prohibiting schools 

from implementing discipline against students accused of sexual assault.

• In Roe v. Adams-Gaston S.D.Ohio No. 2:17-cv-945, 2018 U.S. Dist. LEXIS _______ (Docket 

#46, April 17, 2018), this Court granted a preliminary injunction prohibiting The Ohio State 

University from expelling a student who alleged that the school disciplinary proceedings 

violated her constitutional due process right of confrontation.

• In Nokes v. Miami Univ., S.D.Ohio No. 1:17-cv-482, 2017 U.S. Dist. LEXIS 136880 (Aug. 25, 

2017), this Court granted a preliminary injunction prohibiting a public university from 

suspending a student who had alleged that the school had acted in violation of his 

constitutional due process rights to notice and confrontation of adverse witnesses.

• In Doe v. Pennsylvania State Univ., M.D.Pa. No. 17-CV-01315, 2017 U.S. Dist. LEXIS 132186 

(Aug. 18, 2017), a court granted a preliminary injunction to student who had alleged that a 

school acted in violation of his due process right to confrontation in disciplinary proceedings

• In Doe v. University of Cincinnati 223 F. Supp. 3d 704 (S.D. Ohio 2016), aff’d 873 F.3d 393 (6th 

Cir. 2017) this Court granted a preliminary injunction prohibiting a pubic university from 

suspending a student who had alleged that the school had acted in violation of his 

constitutional due process right to confront adverse witnesses.

• In Doe v. Brown Univ., 210 F. Supp. 3d 310, 313 (D.R.I. 2016), the court concluded that 

school breached its contract with a student by the manner in which it conducted his 

disciplinary hearing on an allegation of sexual misconduct. The school was ordered to vacate 

its finding and sanction against the student and expunge his record.

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• In Doe v. Univ. of Notre Dame, N.D.Ind. No. 3:17CV298, 2017 U.S. Dist. LEXIS 69645 (May 

8, 2017), the court concluded that a student facing discipline for an allegation of sexual 

misconduct has demonstrated “at least some likelihood of success on the merits of his 

breach of contract claim and of irreparable harm.” The school was ordered to stay it 

discipline of the student and permit him to sit for final examinations.

• In Ritter v. Oklahoma, W.D.Okla. No. CIV-16-043 8-HE, 2016 U.S. Dist. LEXIS 60193 (May 

6, 2016), the court observed that “universities must ensure that the rights of both the 

accused and the accuser are protected.” The school was ordered to stay any discipline and to 

permit a student facing discipline for an allegation of misconduct to attempt to complete all 

remaining graduation requirements.

• In Doe v. Middlebury College, D.Vt. No. 1:15-cv-192-jgm, 2015 U.S. Dist. LEXIS 124540 (Sep. 

16, 2015), the court found that a student accused of sexual misconduct had “demonstrated a 

sufficiently serious question regarding whether [the school] violated its policies.” The court 

ordered the school to not expel the student and allow him to remain enrolled in his courses.

• In King v. DePauw Univ., No. 2:14-cv-70, 2014 U.S. Dist. LEXIS 117075 (S.D. Ind. Aug. 22, 

2014), the court found that a student accused of sexual misconduct had demonstrated likely 

success on breach of contract claims against the school. The court prohibited the school 

from enforcing a suspension and ordered that the student be permitted to enroll in and 

attend the school without restriction. 

These cases all represent situations where students who had credible evidence that a school 

employed an unfair or discriminatory disciplinary process has demonstrated sufficient facts to 

warrant the issuance of equitable relief on either a preliminary or permanent basis.

C. The Plaintiff Has A Substantial Likelihood of Success. 

Jane Roe has brought a claim pursuant to 42 U.S.C. § 1983 against the individual defendants 

in their official capacities for injunctive relief. The basis of this claim is that the individual 

defendants have violated Plaintiff’s right to Equal Protection guaranteed by the Fourteenth 

Amendment to the United States Constitution. “The threshold element of an equal protection claim 

is disparate treatment.” Williams v. Richland Cty. Children Servs., 861 F.Supp.2d 874, 881 (N.D.Ohio 

2011), citing Howard v. City of Southfield, 97 F.3d 1452, at *5 (6th Cir. 1996). See also Thompson v. Ohio 

State Univ., 990 F.Supp.2d 801, 809 (S.D.Ohio 2014) (“in order to assert valid §1983 claims, Plaintiff 

must show that Defendants, while acting under color of state law, deprived her of a right secured by 

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the Federal Constitution or laws of the United States”), citing Alkire v. Irving, 330 F.3d 802, 813 (6th 

Cir. 2003).

The Fourteenth Amendment provides that “[n]o State shall ... deny to any person within its 

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Equal Protection 

Clause is essentially a direction that all persons similarly situated should be treated alike.” City of 

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Under Sixth Circuit precedent, the Plaintiff, 

as a “class of one” may bring an equal protection claim when the defendants, acting under the color 

of state law,2 has treated her differently from others similarly situated without a rational basis for 

doing so. Warren v. City of Athens, 411 F.3d 697, 710 (6th Cir. 2005). The Supreme Court has 

“recognized that the Equal Protection Clause gives rise to a cause of action for a ‘class of one.’”

Klimik v. Kent Cnty. Sheriff's Dep't, 91 F. App'x 396, 400 (6th Cir. 2004), citing Vill. of Willowbrook v. 

Olech, 528 U.S. 562, 564 (2000).3

1. Miami University

In Doe v. Miami Univ., supra, the Sixth Circuit held that the Equal Protection guarantees of the 

Constitution are violated when a university administrator “had credible information that both [male 

and female] students had potentially violated the University's sexual misconduct policy” but chooses 

to “not to pursue disciplinary action against” one of the students.4 The gravamen of an equal 

 2 Plaintiff does not anticipate that the defendants will dispute that they were acting under the color 

of state law.

3 By proceeding under a “class of one theory,” Plaintiff is not required to demonstrate that 

Defendants were predominantly motivated by a form of discrimination against her as a female. 

Instead, the plaintiff need only show that she has been intentionally treated differently from others 

similarly situated and that there is no rational basis for the difference in treatment. See Jan Rubin 

Assocs. v. Hous. Auth., E.D.Ky. No. 03-CV-160-DLB, 2007 U.S. Dist. LEXIS 24116, at *38 (Mar. 30, 

2007) (discussing reason a plaintiff may proceed under the “rational basis” class of one theory).

4 This Court dismissed an Equal Protection claim brought by a male student in Gischel v. Univ. of 

Cincinnati, S.D.Ohio No. 1:17-cv-475, 2018 U.S. Dist. LEXIS 18083 (Feb. 5, 2018). One of the 

significant factors for the Court in Gischel was the belief that “the accuser cannot be the similarly 

situated individual to whom the accused student plaintiff is compared.” 2018 U.S.Dist LEXIS 

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protection claim under Miami Univ. is the “unequal treatment” that arising out of a school 

administrator’s “failure to initiate the University's disciplinary process with respect to” an alleged 

victim of the opposite gender “after receiving credible information that [the alleged victim] may have 

violated the sexual-misconduct policy.” 882 F.3d at 597.

Miami Univ. involved a situation where a male and a female student had consumed alcohol

and then engaged in sexual conduct. The female student later claim that some of the activity was 

not consensual. This accusation of sexual misconduct was evaluated by Miami University, and the 

male student was found responsible for violating the school's sexual-assault policy. The court 

observed that during the investigation of whether the male student had committed misconduct, the 

investigators and administrators had received information that the male student was intoxicated and, 

as a result, unable to provide consent to sexual activity. The court approved of an equal protection 

claim in this circumstance:

[The administrator] knew that [the female student] had potentially violated the 

University's sexual misconduct provisions at the same time she reviewed the 

allegations against [the male student]. . . . [The administrator] chose to pursue 

disciplinary action against [the male student], but not [the female student]. . . . [The 

Administrator] had credible information that both students had potentially violated 

the University's sexual misconduct policy. [The administrator], however, chose not to 

pursue disciplinary action against the female student, but only against the male 

student. . . 

882 F.3d at 596. Significantly, the Sixth Circuit: observed that “the exact alleged sexual misconduct 

of each student” need not be the same. 882 F3d at 597 (“we have not previously required a plaintiff 

 

18083 at *20, citing Doe v. Ohio State Univ., 239 F. Supp. 3d at 1067; Doe v. Case W. Reserve Univ., No. 

1:14cv2044, 2015 U.S. Dist. LEXIS 123680, at *6 (N.D. Ohio Sept. 16, 2015). This aspect of Gischel

is contrary to the holding of Miami Univ.; in Miami Univ. the accuser was the similarly situated person 

to the whom the accused student plaintiff was compared by the Sixth Circuit. Notably, the Miami 

Univ. court did not require a formal complaint, but relied upon the mere awareness by the 

administrator of possible misconduct. Compare Ohio State, 239 F. Supp. 3d at 1067 (relying on fact 

that the similarly situated student was never formally accused of violating the code of student 

conduct). 

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to allege that the misconduct giving rise to an allegedly discriminatory disciplinary outcome be of the 

same type and degree”), citing Heyne, 655 F.3d at 571 (holding that the plaintiff sufficiently pleaded an 

equal-protection claim when he alleged that he was punished more harshly for running over another 

student's foot with his vehicle than the other student was for threatening the plaintiff's life because 

of the different races of the two students).

The accused student, if not pursuing a class of one theory, is also required to demonstrate 

that “the different treatment he received was based on ‘purposeful or intentional’ gender 

discrimination.” 882 F.3d at 597, quoting Smith v. City of Salem, 378 F.3d 566, 577 (6th Cir. 2004). 

The plaintiff in Miami Univ. buttressed his § 1983 equal protection claims with evidence of 

discrimination, including assertions that the school faced external pressure from the federal 

government and lawsuits brought by private parties. 882 F.3d at 594. In particular, the Sixth Circuit 

credited allegations that the school would discriminate on the basis of gender “because it was a 

defendant in a lawsuit brought by a student who alleged that she would not have been assaulted if 

the University had expelled her attacker for prior offenses.” 882 F.3d at 594. 

2. Application Of Miami Univ. To This Case

This case presents similar facts to the Equal Protection claim in Miami Univ., with the 

genders simply reversed. In this case, the UC Investigator had credible information that John Doe 

engaged in sexual activity with Jane Roe while Jane Roe was intoxicated, and, thus, unable to provide 

consent under he UC Code of Student Conduct. The Equal Protection problem arises because the 

investigator and UC Title IX personnel chose to not to pursue disciplinary action against John Doe.

Jane Roe had told investigators that she had been drinking at the party and was intoxicated. 

She also told the investigator that John Doe had initiated sexual contact and digitally penetrated her. 

This, under Miami Univ. should have been enough to cause the investigator and the UC Title IX 

Office to begin an investigation into whether John Doe engaged in sexual activity with Jane Roe 

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when Jane Roe was intoxicated and, under the terms of the UC Code of Conduct, unable to 

consent. Other witnesses confirmed the claim by Jane Roe that she was too intoxicated to engage in 

sexual activity. One witness, HG told the investigator that she spoke to Jane Roe about the incident. 

During this conversation Jane Roe indicated that she was drunk, John Doe kissed her first, and that 

she bled because John Doe had “fingered her hard.” Another witness, W1, also discussed the 

Incident with Jane Roe. During this conversation Jane Roe told W1 that both she and John Doe 

were intoxicated and that John Doe had “fingered her.” Finally, another witness, EP, confirmed 

that Jane Roe Jane Roe did not want to leave John Doe’s residence because she was “dizzy” and 

needed some rest. 

Under a “class of one” theory, UC did not have a rational basis to distinguish between Jane 

Roe and John Doe in the decision to not initiate disciplinary investigations or proceedings. The 

Sixth Circuit in Miami Univ. emphasized that the equal protection problem arises from the “failure to 

initiate the University's disciplinary process” and not on whether the student of the other gender 

actually received any discipline. 832 F.3d at 597 (observing that the disciplinary process againt the 

other student “may have led to a finding of not responsible or the imposition of a lesser sanction). 

Alternatively, gender-based motivation may be inferred from the fact the UC is currently facing 

litigation from male students accusing the school of imposing discipline in a discriminatory manner. 

The Sixth Circuit in Miami Univ. also approved of this theory, observing that the school may have 

been motivated to discriminate in response to other litigation. 832 F.3d at 594.

This case is similar to a pre-Miami Univ. case brought under a similar selective enforcement 

theory. Doe v. Amherst College, 238 F. Supp. 3d 195 (D.Mass.2017). In Amherst College, the court found 

sufficient allegations to survive a motion for judgment on the pleadings on a selective enforcement 

claim where, as in this case, there was allegations that both the male and female students in the case 

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had engaged in sexual activity while the other student was intoxicated, yet only the male student was 

subject to discipline. The court, in denying a motion for judgment on the pleadings, observed:

[Plaintiff] alleges the College took proactive steps to encourage [the female student] 

to file a formal complaint against [Plaintiff] when it learned he may have been 

subjected her to nonconsensual sexual activity. But, when the College learned [the 

female student] may have initiated sexual activity with [Plaintiff] while he was 

“blacked out,” and thus incapable of consenting, the College did not encourage him 

to file a complaint, consider the information, or otherwise investigate.

238 F. Supp. 3d at 223.

D. Irreparable Harm

The Complaint and Affidavit of Jane Roe describes the irreparable harm Jane Roe will suffer 

if a preliminary injunction is not granted. Suspension from UC or the imposition of other discipline 

would deny Jane Roe the benefits of education at her chosen school, would damage her academic 

and professional reputations, and may affect her ability to enroll at other institutions of higher 

education and to pursue a career. This has been found to constitute irreparable harm. In Doe v. 

Univ. of Cincinnati, the Sixth Circuit observed that a suspended student would “suffer reputational 

harm both on and off campus based on a finding rendered after an unfair hearing.” 872 F.3d 393 at 

*29. See also 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); Boman v. Bluestem Unified Sch. Dist. No. 205, 2000 U.S. Dist. LEXIS 5389 (D. Kan. Jan. 28, 

2000) (noting that suspension of student constitutes irreparable harm); Tully v. Orr, 608 F. Supp. 

1222 (E.D.N.Y. 1985) (an Air Force academy cadet who was expelled right before final exams and 

graduation suffered irreparable harm); Bhandari v. Trustees of Columbia Univ. in N.Y., 2000 U.S. Dist. 

LEXIS 3720, at *15-16 (S.D.N.Y. 2000) (suspension or expulsion from an academic institution may 

constitute irreparable harm).

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In addition, Jane Roe has established potential constitutional violations. “When an alleged 

deprivation of a constitutional right is involved, most courts hold that no further showing of 

irreparable injury is necessary.” Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996), cert. denied, 

520 U.S. 1251 (1997). The Sixth Circuit in Doe v. Univ. Of Cincinnati observed, “When constitutional 

rights are threatened or impaired, irreparable injury is presumed.” 872 F.3d 393 at *29, quoting Obama 

for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012); Overstreet v. Lexington-Fayette Urban Cty. Gov't, 305 

F.3d 566, 578 (6th Cir. 2002). Consistent with this presumption, courts have held that the denial of 

an injunction can “cause irreparable harm if the claim is based upon a violation of the plaintiff's 

constitutional rights.” McNeilly v. Land, 684 F.3d 611, 620-21 (6th Cir. 2012) ("Once a probability of 

success on the merits was shown, irreparable harm followed . . . .”); Preston v. Thompson, 589 F.2d 

300, 303 n.3 (7th Cir. 1978) (“[t]he existence of a continuing constitutional violation constitutes 

proof of an irreparable harm, and its remedy certainly would serve the public interest.”); Campbell v. 

Miller, 373 F.3d 834, 840 (7th Cir. 2004) (Williams, J., dissenting) (“[w]hen an alleged deprivation of 

a constitutional right is involved, most courts hold that no further showing of irreparable harm is 

necessary"). 

E. Harm to Third Parties and Public Interest

In constitutional cases, an inquiry into the public interest is difficult to separate from the 

likelihood of success on the merits because “the public interest is promoted by the robust 

enforcement of constitutional rights.” Am. Freedom Def. Initiative v. Suburban Mobility for Reg. Transp., 

698 F.3d 885, 896 (6th Cir. 2012). In this case, an injunction will not cause any harm to third parties 

or UC. UC remains able to enforce its rules and regulations in a manner consistent with 

constitutional and statutory requirements. Moreover, since Jane Roe has nearly completed her 

coursework, her presence on campus and interaction with the alleged victims would be limited. 

Moreover, any claim that Jane Roe would pose a threat to the community in undermined by the fact 

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that Jane Roe remained on campus for months after the Incident without any adverse events or 

action by UC. 

Moreover, an injunction is also in the public interest. The Sixth Circuit has observed that an 

“injunction to protect . . . constitutional and civil rights . . . is always in the public interest.” Dodds v. 

United States Dep't of Educ., 845 F.3d 217, 222 (6th Cir. 2016), citing G&V Lounge, Inc. v. Mich. Liquor 

Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1994); Cohen v. Brown Univ., 991 F.2d 888, 906 (1st Cir. 

1993). On the other hand, the failure to grant an injunction would harm the public because it would 

permit UC to violate the constitutional rights of all current and future students on an ongoing basis 

while this case is resolved, which necessarily would cause substantial, irreparable harm to those 

students. Doe v. Lee, U.S.D.C., D. Conn. No. NO. 3:99CV314, 2001 U.S. Dist. LEXIS 7282 (May 18, 

2001) (“there is a distinct public interest in having this Court discharge its duty to protect and 

enforce [constitutional] rights”). 

F. Nominal Bond Should Be Imposed

Federal R. Civ. P. 65(C) provides that “The court may issue a preliminary injunction . . . only 

if the movant gives security in an amount that the court considers proper to pay the costs and 

damages sustained by any party found to have been wrongfully enjoined or restrained.” 

UC is an educational institution. Accordingly, because money is not an issue for the 

Defendants and the school is not likely to suffer any potential losses if an injunction is granted, this 

Court should set surety in the nominal amount of $1, the same amount set by this Court in Univ. of 

Cincinnati, 223 F. Supp. 3d 704 (“The Court sets a bond in the nominal amount of $1.”).5 See also 

Elmore, 2018 U.S. Dist. LEXIS 52564, at *23 (finding “no bond is necessary” for injunction against 

school); Ponce v. Socorro Indep. Sch. Dist., 432 F. Supp. 2d 682, 707 (W.D. Tex. 2006) (setting a nominal 

 5 In Nokes, this Court found that no bond was required. 2017 U.S. Dist. LEXIS 136880, at *42. In 

Roe v. Adams-Gaston, this Court set a nominal bond of $100. 2018 U.S. Dist. LEXIS _____ at *__.

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bond of one hundred dollars because the evidence indicates that Defendant will suffer little, if any, 

damage by the issuance of the preliminary injunction), rev’d on other grounds 508 F.3d 765 (5th Cir. 

2007). Courts have declined to require plaintiffs to post a bond in cases involving constitutional 

rights. See Ogden v. Marendt, 264 F. Supp. 2d 785, 795 (S.D. Ind. 2003); Wickersham v. City of Columbia, 

371 F. Supp. 2d 1061 (W.D. Mo. 2005). 

CONCLUSION

Pursuant to Fed. R. Civil P. 65, this Court should, following a hearing, grant a Preliminary 

Injunction prohibiting Defendants from imposing any disciplinary sanctions against Jane Roe. 

Respectfully submitted, 

____/s/ Joshua Adam Engel______

Joshua Adam Engel (0075769)

Anne Tamashasky (0064393)

Jim Hardin (0056247) (admission pending)

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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