When one student accuses another student of sexual assault, what must a school do to make sure its disciplinary process is fair to both sides?.. Nearly everything about John and Jane’s short-lived relationship has become the subject of a bitter, bizarre and high-stakes legal dispute that has dragged on for years. Their story, told here in detail for the first time, is currently binding law affecting hundreds of thousands of students enrolled in California schools of higher education. Their story also marks the first time that a state appellate court has ruled on the constitutionality of a campus sexual assault proceeding since the Obama administration directed schools to take a tougher approach in resolving these cases or risk losing millions of dollars in federal funding for violating Title IX.
politico.com By Lara Bazelon
A former Columbia University student, Paul Nungesser, who is suing his alma mater for failing to stop his accuser from publicly harassing him has lost in court a second time. “From the outset of this case, Judge Woods has been decidedly closed-minded to Paul Nungesser’s claims,” Miltenberg said. “Based upon that, we are not surprised with Judge Woods’ decision dismissing the second amended complaint. Still, we are exceptionally disappointed; Paul is a real victim, and the 100 page complaint is very detailed and clearly sets forth substantial claims including violations of Title IX, basic principles of equity and beyond.” Paul’s parents released their own statement regarding the decision: “We are disappointed but we are looking forward to bringing the case to the U.S. Court of Appeals for the Second Circuit. If Judge Woods’ decision stands, an acquittal at a university hearing is utterly pointless, since it would allow university sponsored defamation and public harassment of innocent students.”
Important Lawsuit Seeks to Hold College Accountable for its Unfair and Harmful Disciplinary Action Filed on April 4, 2017
When a college student is accused of misconduct, he or she is entitled to a fair investigation, and if a disciplinary hearing is warranted, a fair proceeding. When such a student is denied a fair review and hearing of serious misconduct allegations, the consequences may be life altering and devastating.
Far too often, college administrators who receive complaints of misconduct pre-judge guilt based on stereotypes that arise merely from the type of allegations that are made, regardless of the facts. Charged with an obligation to swiftly and harshly punish misconduct, they often decide the “case” without a real investigation, evidence or a hearing of any kind. And when they do so, they do so quickly, arbitrarily punishing the accused students on an interim and permanent basis. The range of punishments routinely doled out in such circumstances often includes expulsions or suspensions, and an obligation on the part of the accused student to report the fact that he or she suffered severe punishment for a disciplinary violation. When applying to graduate school or for employment a report of these disciplinary sanctions on the accused student’s record more often than not, destroys their candidacy for admission or the hiring they seek.
In many unfair disciplinary cases, the college officials in question circumvent established, mandatory disciplinary policies and procedures that are published by the college for the purpose of ensuring fairness. The only way this type of unfairness and the devastation it causes can be corrected, is through legal action. Legal action that holds accountable those colleges who punish students unfairly and unlawfully will serve as a reminder to all colleges that they must protect the rights of complaining students, and accused students, and ensure that fairness always prevails.
On April 4, 2017, Chaiken & Chaiken, P.C. , joined by Friedman, Suder & Cooke, P.C. filed a lawsuit against the University of Texas at Arlington (UTA), alleging that school officials unfairly mishandled a student’s misconduct complaint against another student, and ignored the rights of the accused student to a fair review and response to the allegations against him. The lawsuit charges that despite knowing the matter involved Title IX issues, the two UTA officials handling the complaint circumvented UTA’s mandatory Title IX investigation and hearing procedures. These mandatory procedures require a fair and impartial investigation by a Title IX investigator, and a hearing before a neutral hearing officer.
The lawsuit further charges that upon circumventing these mandatory procedures, the same two UTA officials severely punished the accused student on an immediate, interim basis, without conducting a proper investigation. Ultimately, a few days after the complaint was made, and again without a proper investigation, they chose to punish him on a permanent basis. Inexplicably, they did so despite acknowledging in emails to each other that there was no evidence to support the allegations against him, or the punishment they meted out, nevertheless. Tragically, the embarrassment, stress, mental anguish and damage to reputation suffered by the accused young man, and the fear that this unfair disciplinary sanction would prevent him from attending graduate school or finding a job, caused him to take his own life.
This important case serves to remind us that fairness in disciplinary proceedings on college campuses is not a given, even when the colleges’ policies and procedures say otherwise. Those who are accused of misconduct on campus find themselves in the midst of a true legal crisis with devastating potential consequences, if they do not navigate the intricacies of campus disciplinary procedures in a manner that invokes their rights to fairness. Only when students and their families understand this reality, and the need to take specific action to invoke the rights that are designed to protect fairness in campus misconduct cases, can tragic consequences be avoided.
This case report and complaint was sent to Alice from Attorney Kenneth Chaiken.
Thank you for bringing this terrible injustice of an innocent life now gone to my attention. For inquiries about this case contact: Kenneth Chaiken 214/722-9494
Campus feminists whipped up a shrieking frenzy over sexual assault allegations at a Northwestern University fraternity in February. Their hysteria was based on anonymous phone calls. There were no actual victims, no witnesses and no physical evidence or electronic evidence or any other kind of evidence that any such an event involving any such women ingesting any such drugs or suffering any such sexual assaults ever occurred. Vice President for Student Affairs Patricia Telles-Irvin who helped promote the rape lie was forced to face the facts and said recently “no disciplinary action or further investigative action related to the reports of sexual misconduct will be taken at this time.” ..And instead of admitting the whole thing was a hoax, Northwestern is scouring the targeted fraternity for “other potential violations” of campus codes to justify putting them through hell in the first place.
The ACTL has issued a watershed White Paper that highlights how the current system of campus rape tribunals shortchanges both victims and accused students, thereby undermining the goal of curbing campus rape. The White Paper makes recommendations regarding the need for procedural due process; impartial investigations; the rights to counsel, access evidence, and notice of allegations; cross-examination; and the inadequacy of the preponderance of evidence standard. “Under the current system everyone loses: accused students are deprived of fundamental fairness, complainants’ experiences are unintentionally eroded and undermined, and colleges and universities are trapped between the two.”
thefire.org By Alex Morey
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
Three Minnesota football players have been cleared of sexual harassment allegations in the final round of appeals at the school and will be allowed to return to spring practice. “These couple of months have been nothing short of a nightmare for me and I want to thank everyone who has reached out to me and shown nothing but love,” Winfield posted on Twitter. “Today I have officially been cleared and I am excited to tear up the field for my brothers and my gopher fans.”
reviewjournal.com By Jon Krawczynski
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
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