Title IX Complaint Trial Underway in Jane Doe v. Nebraska State Colleges
By Bill Kelly , Senior Producer/Reporter Nebraska Public Media and Elizabeth Rembert , Food, Energy and Agriculture Reporter Nebraska Public Media, Harvest Public Media
Dec. 8, 2021, 6 a.m. ·
Editor's Note: The jury is currently deliberating the case of Doe v. State Colleges at the Federal District Courthouse in Omaha.
We'll update the developments in the trial daily on this page. Scroll down for the latest update.
The trial concerns Chadron State College’s actions after the woman reported she had been sexually assaulted. This was in the basement of a dormitory hall in September 2016 while she was at her job as a student desk worker.
The college’s investigation found the man had sex with Doe without her consent, and had continued even after she’d told him to stop. The perpetrator admitted to college investigators Doe had not given him verbal consent and had said “stop” at least three times.
Chadron State barred contact between Doe and the man. It banned him from entering her on-campus workplace and required him to leave any event, gathering or location where Doe was present.
It also assigned counseling and reading to him and placed him on behavioral probation. The college also allowed Doe to finish her college classes remotely.
The trial hinges around if the college fulfilled its obligations under the federal civil rights law Title IX, in which institutions promise to protect students from sexual harassment to receive federal funds.
When a college knows about harmful sexual harassment, it must “take immediate action to eliminate the sexual harassment or sexual violence, prevent its recurrence, and address its effects,” according to the U.S. Department of Education.
Tuesday, November 30: Opening arguments
Attorneys for the former student identified as Jane Doe and the Nebraska State college system made their opening statements Tuesday to a jury of six women and two men.
Maren Chaloupka, the woman’s attorney, said the measures the college took against the perpetrator weren’t enough. She said following the assault and report, Doe isolated herself in her off-campus apartment and suffered panic attacks.
The sanctions allowed the perpetrator to remain on campus, put the responsibility on Doe to protect herself and deprived her of access to college amenities, Chaloupka told the jury.
Doe asked the male student be removed from campus for the remaining months of her last semester before she graduated in December 2016. Jon Hansen, who was then the vice president of student affairs, told her the college stood by its decision to restrict the perpetrator’s movement on campus and assign counseling and reading. He then began to look into options for Doe to finish her courses remotely.
“If someone had to leave campus it should have been the perpetrator and not her,” Chaloupka told the jury. “Chadron was able to roll on and put its own convenience first, rights of victims a distant second and leave the perpetrator’s lives largely unaffected.”
The college’s attorney George Martin claimed in his opening statement officials followed guidance to comply with regulations as they handled Doe’s claim. Martin repeatedly said officials “took a breath” to ask themselves of their own obligations and follow through on their training.
“There’s no evidence of deliberate indifference here,” Martin said. “We will walk through each and every act that Chadron took to get this right.”
Wednesday, December 1
Most of Wednesday’s hearing focused on the testimony of expert witness Charol Shakeshaft, a professor at Virginia Commonwealth University who has studied sexual abuse at schools.
During questioning from Chaloupka, Shakeshaft said from her perspective, the college’s disciplinary actions weren’t severe enough. The college had restricted the perpetrator’s movement on campus and required him to seek counseling and read and reflect on his misconduct.
To Shakeshaft, these were primarily measures intended to help the perpetrator change his attitudes and behavior. In her opinion, the college should have put in place stronger consequences to discipline the perpetrator and protect the victim, then focused on behavioral growth.
“Reading a book is not a consequence for raping someone,” she said in her testimony. “It’s an additional thing Title IX encourages us to do to help the student learn and change. That’s good, but it’s insufficient as a consequence for rape.”
Attorneys for the college said the restrictions on the perpetrator’s movements constituted a disciplinary action, and said the college offered resources intended to help Doe feel safe on campus.
The defense also emphasized the woman did not report any more harassment after she reported the September 2016 incident. Preventing future harassment is a key element of a college’s obligations to protecting students from sexual misconduct.
The jury of six women and two men also heard from Robin Bila, Doe’s former counselor and Don Keiper, Doe’s former boss and a previous head of security at Chadron State College. Keiper’s testimony will continue in the Omaha courtroom on Thursday.
Thursday, December 2
In the third day of arguments, a jury of six women and two men heard from Anne DeMersseman. She works in Human Resources at Chadron State and handled Doe’s Title IX complaint as the college’s Title IX coordinator in 2016.
DeMersseman testified about the steps she took after Jane Doe reported the assault. DeMersseman investigated and determined a non-consensual sex act had taken place.
The perpetrator admitted to DeMersseman that he did not have verbal consent from Doe, and that he had continued the assault after she said “stop” at least three times.
During her questioning, Maren Chaloupka, representing Doe, asked DeMersseman whether she could have done more analysis and how one instance of communication breakdown during the process could have harmed Doe.
In his cross examination, the college’s attorney, George Martin, gave DeMersseman the opportunity to explain how her actions met federal guidelines.
As an example, she explained how she had challenged the perpetrator’s claim that the encounter with Doe was consensual.
Martin ran through a checklist of Title IX requirements colleges must follow regarding sexual assault prevention. DeMersseman said she believed Chadron satisfied each one.
DeMersseman is scheduled to continue her testimony Friday. The trial is expected to last into early next week.
Friday, December 3
On the fourth day of arguments, the jury watched video footage from dormitory security cameras the night of the 2016 assault. The rape occurred while the woman identified as Doe worked at the dorm’s front desk. The footage shows the woman and the perpetrator in public spaces. The actual assault occurred in areas off camera.
After several minutes of watching the video, Chaloupka asked for a recess. Her client wanted a break. After the judge granted the recess, Doe left the courtroom quickly. She returned after the 15-minute break and stayed to watch the rest of the footage with the jury.
Earlier, George Martin, representing Chadron State, continued his cross examination of Anne DeMersseman. She works in human resources at the college and handled Doe’s Title IX complaint as the college’s Title IX coordinator in 2016.
DeMersseman investigated the report and determined a non-consensual sex act had taken place. The perpetrator admitted to DeMersseman that he did not have verbal consent from Doe, and that he had continued the assault after she said “stop” at least three times.
Martin repeatedly asked DeMersseman to read over Title IX guidelines which obligate colleges to investigate and respond to reports of sexual harassment. DeMersseman recited training about avoiding biases, thoroughly analyzing evidence and treating parties with compassion and fairness.
Martin asked DeMersseman: “Do you believe you followed this advice to the best of your ability when investigating Doe’s claim?”
“Yes,” DeMersseman answered each point.
After Martin’s questioning, Chaloupka asked DeMersseman about what she had NOT done in her investigation. For example, she never watched the video footage with Doe to get Doe’s perspective on what happened on camera. Chaloupka also challenged DeMersseman on her finding that the perpetrator was not dangerous, only “clueless” and “immature.”
“If he was so immature that he couldn’t comprehend the concept of sexual consent, couldn’t that create a danger?” Chaloupka asked DeMersseman.
Jurors also heard from Sherri Simons, Chadron’s director of housing and residence life in 2016. She also served as the college’s Title IX Coordinator twice in her 39-year career with the school. Simons said Chadron had annual turnover for about eight years for the coordinator role, which she attributed to personnel issues.
Chaloupka has argued that the turnover contradicts the defense’s opening statement that Chadron had a “high standard” for its Title IX offices and procedures.
Later, Pat Beu took the stand to testify as Chadron State’s former director of student affairs.
Both Beu and Simons were involved in discussions to remove and ban the perpetrator from the Andrews dormitory, where Doe worked and where the assault took place. Eventually, Doe’s work assignment was changed to another dorm, Brooks. The perpetrator was allowed to remain in his original room, which was within the Andrews dormitory complex. The perpetrator was then banned from Brooks.
The Chadron state administrators testified that moving the woman to the other dorm gave her more control over her own safety.
Brooks has one entrance, while Andrews is a part of a complex with three different dorm buildings that have several entrances. Students can move around the complex without being monitored by the front desk employee.
In her questioning of the witnesses, Chaloupka argued that moving her client instead of the perpetrator punished a victim of a sexual assault while depriving her of a familiar workplace and coworker relationships.
Testimony is scheduled to continue Monday, when the college’s attorneys will have a chance to cross examine the former director of student affairs. Closing arguments are expected Tuesday.
Morning of Monday, December 6
Chadron State’s former director of student affairs Pat Beu continued his testimony on the fifth day of arguments. Under questioning from Maren Chaloupka – representing the anonymous woman identified as Doe – Beu said he understood Doe’s frustration and anger at the college when it failed to communicate with her about the perpetrator’s sanctions.
Doe had believed that the perpetrator would be banned from Andrews Hall, a dormitory where she worked as a student employee and where the 2016 assault took place. Instead, her work assignment was changed to Brooks Hall, and the perpetrator was allowed to remain living in his original room while being banned from Brooks.
This was after a college investigation found that non-consensual sex had taken place. The perpetrator admitted he did not have verbal consent from Doe, and that he had continued the assault after she said “stop” at least three times.
In addition to the restrictions from Andrews, the perpetrator was required to take a class on consent. It was an online course that all Chadron State students were required to take upon enrollment, but Beu admitted many students failed to take the class. The perpetrator, in his second year of college, had not taken the class until it was included in his sanctions for committing sexual assault.
The perpetrator scored a 90% in the pre-assessment test before taking the class. After he finished the course, he got a perfect score.
“This was not a person who needed a class to understand that no meant no, correct?” Chaloupka asked Beu. “Correct,” Beu replied.
Chaloupka and a previous expert witness have criticized the college’s sanctions on the perpetrator for, in their eyes, focusing on helping the perpetrator learn and grow over protecting Doe.
During the college’s cross examination of Beu, George Martin showed the jury an email that Beu sent to Doe’s work supervisor, asking how she was doing at her new work location.
Next, Chaloupka called Jon Hansen to the witness stand. In 2016, he was the vice president of enrollment, marketing, management and student services. He was responsible for doling out punishments to students found to have committed sexual assault.
He told jurors he had been trained that sexual assault sanctions should be primarily disciplinarian and intended to protect the victim and campus community, over focusing on the development of the perpetrator.
Chaloupka will continue her questions for Hansen after the court’s lunch break, and the defense will have the opportunity to cross-examine Hansen.
Afternoon of Monday, December 6
On the witness stand Monday afternoon, two former and current Chadron administrators faced similar questions about the discipline given the perpetrator following the sexual assault in 2016. They testified the college developed a discipline plan after an investigation determined a assault had taken place on campus.
The student signed a statement admitting he did not have the consent of Jane Doe. Nor would he challenge any discipline from the college.
The jury learned the college could have expelled the perpetrator, but Chadron State decided against it because it would be difficult for him to continue his education.
Also, the college did not ban the perpetrator from the building where the victim worked and where the assault took place. Apparently, this was to avoid necessitating the perpetrator from changing his dorm room. Instead, the college reassigned where the victim worked overnights at the front desk. They did so without consulting Jane Doe.
The college did implement a no contact order for both parties, but there were no other limits on where the perpetrator could show up on the small campus. Rather than assigning security to follow the perpetrator, the college offered an escort to shadow the victim. She declined.
The college also required the perpetrator to write a report after reading a book on sexual harassment and they required counseling. The two counselors on campus have no special training in sex crimes.
Following testimony about each step taken by the college, Doe’s attorney asked the administrators: Did these steps increase support to survivors of sexual assault on campus? Each time administrators said they felt it did.
Tuesday, December 7
A jury will decide if Chadron State College failed to provide adequate support to the victim of a sexual assault in 2016. The woman, identified as Jane Doe to protect her identity, was the final witness in the trial underway in Federal District Court in Omaha.
The testimony of Doe started with her story before she came to the United States. Her attorney asked about the culture in which she was raised in her home country of Mali. Doe spoke of a country where women are expected to endure the abuse of men, especially within family. Even enduring rape. Two of her male cousins assaulted her as a teenager.
When she arrived at Chadron State, Doe felt she had a fresh start. It took a dark turn in 2016. Doe testified a casual acquaintance, another international student, offered her a ride home and led her to his dorm room. She detailed the assault that followed. It was not reported to campus officials or police. In the days that followed, she told the jury, the perpetrator and his friends would taunt her in public.
The centerpiece of Doe’s testimony focused on security camera footage taken five months after the first assault while she working at a dormitory security desk. It shows Doe and the man from the first assault, engaging each other in a commons area. The footage is silent. The second rape in the women’s restroom is never seen. A college administrator who viewed the footage, without Doe’s input, felt the footage revealed a level of consent, even playful behavior.
Doe, her voice quavering, told the jury she was fighting off an attack and trying to get her phone back from the man. He would admit later that Doe did not consent to having sex.
Later, Doe learned school administrators allowed the perpetrator to remain on campus. She felt the process that followed and her attempts to raise her concerns were not taken seriously. She described it as a “betrayal on betrayal."
“I didn’t want my freedom to walk around campus to be taken away from me,” she told the jury. When graduation day arrived, Doe did not attend the ceremony. She feared her assailant would be there.
Under questioning from an attorney for Chadron State, Doe testified she did not encounter the perpetrator after the school’s no-contact mandate.
Wednesday, December 8
The trial of Jane Doe v. the Board of the Nebraska State College system began this week in Nebraska’s federal district court. The anonymous woman alleges Chadron State College did not do enough to protect her after she reported she had been raped by a male student at the college.
After five days of testimony, the case before the jury in Jane Doe vs. State Colleges boils down to a single phrase: deliberate indifference.
That’s a legal standard to measure whether a federally-funded school failed to act on behalf of students or staff facing sexual harassment.
This case, heard in the Federal District Court in Omaha, reviews actions taken by Chadron State College after a male student sexually assaulted Doe on two occasions in 2016 on its campus.
The woman reported the second instance. She contends the school failed to provide sufficient protection for her from further harassment and made completing the final weeks before graduation difficult. Her attorney argued the school did more to assure the perpetrator of the assault stayed in school than respond to the concerns of his victim.
The framework of the lawsuit rests on the federal civil rights rules known as Title IX. Doe needed to prove Chadron State’s response to the assault unfairly denied her equal access to completing her education. The jury must decide if the school was deliberately indifferent in making that possible.
In the closing arguments before the jury, the attorney representing Chadron State, George Martin, maintained the seven administrators and staff most directly involved in the case review made a prompt and effective response to the report of Doe’s assault.
Martin said the evidence showed the school took immediate action to stop the harassment by enforcing a no-contact order placed on both the perpetrator and the victim, Jane Doe. Their efforts to ensure the harassment would not continue, including counseling and education for the man and relocating Doe’s night security job out of the dorm where her attacker lived.
Steps to ensure the woman could continue her education included offering her online classes or a transfer to another school.
He said that whatever miscommunications and missteps the school might have made did not meet the definition of deliberate indifference.
Martin told the jury repeatedly; the school likely would face criticism if it took none of those steps and now is being sued for being proactive; taking actions the school feels have been unfairly misrepresented.
In Doe’s closing arguments to the jury, attorney Maren Chaloupka argued taking ineffective actions did amount to deliberate indifference and the evidence presented provided ample proof Chadron State was “giving sexual predators free rein on campus.”
Chaloupka described the school’s investigation as “slipshod,” informed by “biased interviews” of those with knowledge of the incident.
The perpetrator admitted Doe had not given consent to sex in one encounter and had told him directly to stop in the second. Chaloupka singled out the school’s failure to implement a risk assessment of the man to determine if he was a risk to the victim and the campus at large.
Doe had been troubled by the school’s policy of instituting the same no-contact order for the victim and the man who assaulted her.
At its most basic, Chaloupka argued, the case boils down to Jane Doe not being listened to and not being heard in the wake of two sexual assaults by another student.
Judge Joseph Bataillon handed the case over to the jury mid-morning on Wednesday.
Full disclosure: Maren Chaloupka and her law firm, Chaloupka Law LLC, are among Nebraska Public Media’s financial supporters.
Editor's note: A previous version of this story misspelled Chaloupka's last name.
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