OU against reinstating student during lawsuit

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A federal court should not order a suspended Ohio University student to be reinstated while his lawsuit against OU is pending, the university is arguing.

The Messenger previously reported that Michael Marshall, a sophomore, has asked U.S. District Court for a temporary restraining order and preliminary injunction to stop the university from enforcing a one-semester suspension while he challenges it in a lawsuit.

On Wednesday, the university filed arguments against blocking enforcement of the suspension.

Marshall was suspended from Jan. 29 through May 1 after a university panel ruled that text messages he sent to a female classmate constituted sexual harassment and violated OU’s sexual misconduct policy.

Marshall’s original lawsuit argues that the sexual misconduct policy is overly broad and unconstitutional, that the disciplinary action showed gender bias and that OU overreacted due to federal pressure to aggressively pursue investigations of sexual assaults on campus. (There is no allegation of assault in this case.)

The university is asserting that Marshall has failed to meet the requirements for a temporary restraining order and preliminary injunction.

According to OU, Marshall must show a strong likelihood that his lawsuit will be successful, which OU asserts he has not done.

The university argues that Marshall “offers no evidence” that the suspension was a reaction to federal pressure, and that the sexual misconduct policy “provides fair notice of what conduct is prohibited” and is not overly broad and vague.

As for the claim of gender bias, OU argues that Marshall “supports his argument with nothing but bald assertions.”

In deciding whether to grant a preliminary injunction, the court must consider if Marshall would suffer irreparable injury if it is denied and whether granting it would cause substantial harm to others.

The university argues that granting the preliminary injunction would harm the university and the female student who received the unwanted text messages.

According to OU, Athens has a small campus and the female student would be unable to avoid Marshall. They are both in Honors Tutorial College, which has fewer than 250 students, and they live in the same honors residence hall complex. In the fall of 2014 (when the texting occurred), they were the only two members of a seminar class.

“Marshall fails to accept that his conduct undermined (her) ability to thrive academically,” the university asserts, also arguing that granting the preliminary injunction would harm the university itself.

“Universities must be able to enforce disciplinary standards if they are to provide environments that facilitate learning,” OU argues in court papers. “Enjoining a university from enforcing a disciplinary policy that is presumed constitutional would greatly undermine the university’s ability to provide a safe learning environment for all its students.”

The university states that Marshall is eligible to return to OU for the summer 2015 semester. Although Honors Tutorial College has a rule that a student who has been suspended cannot be readmitted, that can be appealed to the dean of the college.

The university also makes the claim that Marshall “wants to go on a fishing expedition examining every investigative file of every student alleged to have violated (the sexual misconduct policy) since 2010.”