More than a dozen new lawsuits have been filed against universities by students who allege they were discriminated against and denied due process in campus sexual misconduct proceedings, and even more complaints are in the works. There have also been a number of new rulings in the many ongoing accused-student lawsuits. Today, I’ll talk about two of this month’s decisions in which federal judges denied accused students’ requests for preliminary injunctions in their cases.
www.thefire.org By Samantha Harris
Due Process Rights
Articles relating to due process rights for our College boys
William Blackstone declared, “It is better that ten guilty persons escape, than that one innocent suffer.” In 2011, the U.S. Department of Education took a different position. They decreed that Title IX sex tribunals should embrace a weaker “preponderance of the evidence” standard. So how high a risk of false conviction do the innocent face under the OCR’s Title IX guidance standards? UCLA Professor John Villasenor set out to answer that in a study that uses probability theory to model false Title IX convictions under the preponderance of the evidence standard. What he found should take all fair-minded Americans aback.
reason.com By Ronald Bailey
Georgia colleges tread where prosecutors won’t, but some claim secret tribunals are unfair to the accused. A three-month AJC investigation into the secretive world of campus tribunals found that Georgia’s largest universities are pursuing cases that prosecutors won’t touch. But the newspaper also found that campus justice comes with steep trade-offs. Procedures vary widely and are often poorly understood by both the accused and the accuser. Students, and sometimes their parents, expect the strict rules of a court of law, but instead encounter a looser system where cross-examining witnesses is sharply curtailed and the burden of proof is far lower. Several students claim the proceedings in place are deeply flawed and violated their rights to due process.
investigations.myajc By Shannon McCaffrey and Janel Davis
AMHERST JUDGE: Male student expelled for sexual assault may have been victim himself
CALIFORNIA JUDGE: Disparity in campus tribunal ‘enough to shock the Court’s conscience’
CORNELL: Caused ‘actual harm’ to student accused of sexual assault
COLORADO STATE UNIVERSITY PUEBLO: School’s sexual assault proceeding suggests ‘bias and inaccuracy’
OHIO JUDGE: Accused students have right to cross-examination
watchdog By Ashe Schow
A wave of bills dealing with campus sexual assault are moving through state legislatures, and many of them would codify elements of contentious federal guidelines that deprive accused students of due process rights. The measures would make it easier for accusations to result in expulsions and the permanent branding of students who may be innocent, without allowing them a chance to defend themselves. Some of the bills would expand the definition of sexual assault by narrowing the definition of consent to the point where nearly any sexual encounter could be considered non-consensual.
The Obama administration twice rewrote federal rules governing how allegations must be handled at colleges. In particular, since 2011, when DoED reinterpreted Title IX to require that sexual assault cases be judged by a “preponderance of the evidence” -a lower burden of proof than is used in criminal cases -more than 100 accused students have sued their schools. In most of these recent cases the colleges have lost, as they should have. Colleges are at best incapable of adjudicating allegedly criminal conduct, and at worst hopelessly biased. The vast majority of schools we studied now use procedures that stack the deck against accused students. Recent cases can be divided into two groups. In the first are colleges that considerably broadened the definition of sexual assault. The second group includes schools that violated their procedures, which were unfair to begin with.
latimes.com By KC Johnson and Stuart Taylor
An amended complaint filed in February against Yale et al, portrays a grim reality. Yale’s disciplinary procedures sanction abuse of power in the adjudication of charges of sexual misconduct. The conventional wisdom is that while public universities, as government actors, must comply with constitutional requirements, private universities operate under no such constraints. This is broadly correct. But under “state action” doctrine …“If government requires or induces a private party to engage in law enforcement, all relevant constitutional restraints apply.” This, Doe contends, is exactly what the Obama administration DoED did in April 2011 when it instructed universities, on pain of losing federal funding, to investigate, adjudicate, and punish all allegations of sexual assault. That is, although the government also demanded that universities shrink due process protections for the accused, by deputizing them to engage in law enforcement in addressing allegations of sexual misconduct, the administration in effect imposed on them an obligation to comply with constitutional guarantees of due process and equal protection. This lawsuit is very likely the first to test Rubenfield’s (Yale Law Prof. and Doe’s adviser) legal theory of “Privatization, State Action, and Title IX: Do Campus Sexual Assault Hearings Violate Due Process?”
realclearpolitics By Peter Berkowitz
No matter who Trump nominates, the key task for the next OCR head to do is to reverse its intrusion into campus discipline procedures for students accused of sexual assault. The toxic effects of that intrusion are the subject of a recent book by Johnson and Taylor. In The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, the authors give a detailed account of the damage wrought by OCR’s “guidance” to colleges. One of the most startling points the authors make is that the use of OCR methods actually undermines an important element of the justice system—Miranda rights. That is because OCR encourages schools to share evidence they’ve obtained without the presence of an attorney with the police, who can then use it if they press charges. “The major effect of this policy,” write the authors, is “an end-run around the accused’s constitutional right not to be subjected to custodial questioning by police without lawyers.”
jamesgmartin.center By George Leef
This is a terribly tragic story of discrimination and what bystander intervention really looks like. A TIX sexual assault complaint was filed by a nosy 3rd party female…Doe attempted to put an end to the matter at once: Grant Neal (the accused) recorded her making the definitive statement, “I’m fine and I wasn’t raped” to university officials. But no one cared. In the eyes of the university, it was not Doe’s place to determine whether she was a victim of sexual assault—that was the investigators job. The man in charge of investigating whether Grant Neal had raped Doe first told Neal to open emails from Doe his girlfriend, and then later told him he could be disciplined for opening them. “That’s when I immediately knew,” said Neal. “That’s when I really knew that the situation was above my control.”.. After denying Neal any meaningful way to demonstrate his innocence, CSU-Pueblo effectively ended his career, cancelling out his scholarships and opportunities to play football and pursue a wrestling career. Read Mr. Neal’s interview below.
reason By Robby Soave