By a split 2–1 decision, the US Court of Appeals for the Fifth Circuit recently held that the University of Houston did not violate the due process rights of two students who were expelled for sexual misconduct. The Plummer case presents two clearly contrasting judicial viewpoints-a majority opinion showing deference to the University and a dissenting opinion asserting that the judiciary must intervene to correct processes that are not protecting the rights of the accused. The case remains before the Fifth Circuit, where the students have petitioned for a full en banc review…In their petition, the students request that the full Fifth Circuit provide “what the [majority opinion] failed to do: guidance for colleges and universities to implement Title IX in accordance with the Due Process Clause.” (Plummer v. University of Houston, et al., No. 15-20350 (5th Cir. June 26, 2017).
nixonpeabody.com By Sciocchetti and Richard
Title IX Lawsuits
Falsely accused are fighting back with Title IX and other lawsuits. Some wins, some losses.
A Title IX accused male is suing Miami University claiming “Miami was heavily invested in protecting female accusers even when there is no evidence of wrongdoing by males in order to avoid scrutiny from the (U.S.) Department of Education.” The case is the latest example of a growing legal pushback seen on some campuses nationally as men sue, and in some cases win. Some accused male students say they are wrongly presumed guilty by their universities and forced to prove their innocence -sometimes while suffering quick disciplinary actions prior to or during any college hearing process -in what they claim is a reversal of American criminal and civil law’s presumption of innocence until proven guilty.
daytondailynews.com By M.D.Clark
A former Catholic University of America student filed a lawsuit against the school last week seeking $1 million in general damages, saying it discriminated against him by gender in a sexual-assault investigation. The lawsuit said the procedures governing the disciplinary hearing are “entirely inadequate” because they don’t let accused students investigate allegations, vet evidence or train participants to “evaluate evidence in any manner”.
The University of Oregon lost in state court for suspending a student accused of rape without letting him respond to evidence and an expert opinion, and not documenting interviews with his accuser. Now “John Doe” is taking the university to federal court to obtain damages for emotional distress, harm to his academics and reputation, and attorney’s fees stretching back to UO’s investigation. Doe told investigators he wasn’t interested in having sexual contact with the accuser because he believed she had herpes, and that she may have made the accusation to get attention from her ex-boyfriend. Doe’s complaint alleges that “The University responded to Jane Roe’s accusations through arbitrary, discriminatory and illegal actions designed to reach a predetermined outcome, namely, John Doe’s suspension from the University.”
The University of Cincinnati ignored evidence of innocence and unlawfully disciplined a male student who was accused of sexual assault in an encounter he said was consensual. “UC created an environment in which male students accused of sexual assault, such as Gischel, are fundamentally denied due process as to be virtually assured of a finding of guilt.” It adds that Gischel, was wrongly disciplined “for accepting [accuser] Schoewe’s offer to engage in sexual activity that Shoewe initiated and consented to, but apparently later regretted.” The lawsuit says [UC police detective who investigated the incident, and is himself being investigated for inappropriate relationships with women, including Schoewe, ] Richey and Schoewe “were conspiring to present false testimony against Gischel.”
cincinnati.com By Kevin Grasha
A former student government leader at the University of South Florida St. Petersburg is accusing the school of wrongly expelling him over allegedly false accusations of sexual wrongdoing. John Doe told campus officials that Roe did not object to the sexual encounter, and she had continued contact through texting – and even had breakfast with him and friends the following morning – until he declined her request for a date and after she allegedly saw a social-media photo of him with another woman…Despite Doe’s claims of consensual sex, USF expelled Doe in May 2017, denying him a subsequent appeal. In the suit Doe concludes with a plea for his future, “I am 19 years and I stand before you literally fighting for my life. Please don’t end it before it even begins over allegations that are absolutely not true.”
A Cal State San Marcos student accused of rape has filed a federal lawsuit alleging the university violated his rights to due process through an unfair investigation. (No criminal charges were ever filed.) The procedure “denied plaintiff any access to the investigatory reports, the details of the false accusation against him, or the opportunity to adequately prepare a defense to the allegations against him, and the opportunity for a fair and unbiased process…” The student’s degree and transcripts were placed on hold and the suit argues that by withholding his academic credentials, without giving him the chance to defend himself, the university breached his constitutional rights to due process under the fifth and fourteenth amendments.
sandiegouniontribune.com By D. Brennan
‘Jane Roe’ initiated sexual activity with ‘John Doe’. Roe told Doe she had hooked up with men from other fraternities and she “repeatedly” affirmed she wanted to have sex with him. Roe brought Doe to climax with her hand, and put her phone number in his phone. But 10 days later she accused Doe claiming she didn’t remember much about that night and couldn’t have consented because of the “significant amount of alcohol” she consumed. Even though witnesses said Roe did not show signs of incapacitation, Doe should have known she was “incapacitated.” John Doe was found responsible for violating the school’s sexual violence policy and was suspended and physically blocked from campus for three years. According to the lawsuit, UC-Berkeley’s Title IX process is riddled with “structural error.”
thecollegefix.com By Devyn Deeter
A University of Dayton student referred to in court documents as John Doe alleges he was wrongfully suspended for two years following a night of consensual sexual activity with a fellow student and athletic trainer. Like so many other young men on college campuses, John was put through the wringer. Without the ability to properly defend himself, John was suspended from the university for two years and lost his appeal. He is now suing the accuser on two counts of defamation and suing Dayton for breach of contract and violating his rights under Title IX to be free from sex discrimination. In a move I have not seen before, John is also suing the National Center for Higher Education Risk Management (NCHERM), a consulting firm that charges colleges big bucks to teach them how to implement adjudication policies that have led to many lawsuits from accused students. It’s not clear how much Dayton has paid NCHERM, but the group held a conference in 2011 that cost $2,500 a head and netted $425,000. One of the investigators Dayton hired for this case was Dr. Daniel C. Swinton, who worked for NCHERM. He went to Ohio to conduct the investigation. John alleges NCHERM was a third party to his injustice and is suing them for breach of contract, promissory estoppel, and negligence.
thefederalist.com By Ashe Schow
“John Doe” filed a federal lawsuit earlier this month claiming Rider University kicked him out of school and “blindly accepted” a female classmate’s claims that he sexually assaulted her. While John was forced to sit at home, he was subjected to a Title IX disciplinary process that was unabashedly pro-complainant, refused to afford him any semblance of fundamental fairness, and considered him guilty until proven innocent.
nj.com By Kelly Heyboer