Monthly Archives: March 2019

FINALLY A BILL for Due Process. Missouri Students Will See Charges/Evidence Against Them

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FINALLY A BILL for Due Process. Missouri Students Will See Charges/Evidence Against Them

A St. Louis billionaire is leading the fight to transform the way Missouri universities handle sexual assault cases. The Missouri Campus Due Process Coalition is conducting polling to measure support of the House and Senate bills that would revise the way universities handle sexual harassment and assault claims. For instance, both the Senate and House bills would allow the accused to see the evidence against them and ban schools from declining to consider evidence. Sponsors say both bills will be amended before any final action. But as currently drafted:

▪ Both versions say that if the administrative courts find that a student was not given due process, a student can sue his or her university and the employees who conducted the investigation. The state attorney general would also be able to investigate and punish universities.

▪ The Senate version would allow those accused of sexual misconduct to personally sue whoever accused them if the administrative courts decide it was a false claim.

Sponsors of the bill argue there’s a lack of basic fairness and due process for those accused of sexual harassment or assault at school, so they’re doing right by everybody. “It is a safeguard for due process,” said Rep. Dean Dohrman sponsor of the House bill. “We want to make sure that if a complaint is brought forward it’s taken seriously, that the truth is discovered and that everybody is confident in the resolution at the end,” adding that they’re working with higher education groups and others to learn more about the issue and improve upon the bill. “We want to protect the integrity of both parties, the accused and the accusers.”

kansascity.government By E. McKinley

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STEPHANIE MALTER Accused Him Of Stalking After A One-Day FB Chat. Occidental’s Process Led Him To Suicidal Overdose. His Family Sues.

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STEPHANIE MALTER Accused Him Of Stalking After A One-Day FB Chat. Occidental’s Process Led Him To Suicidal Overdose. His Family Sues.

Two Occidental students had an extended Facebook chat for one day. The exchange was initiated by Stephanie Malter and ended after she said she no longer wished to participate in the conversation. Later, she would tell school administrators that the male student stalked her, according to a lawsuit filed in California superior court. He was found responsible for stalking by Occidental and believed he would be barred from law school or medical school based on the finding. The male student, who had known depression issues, overdosed on multiple prescription drugs and died. His family is now suing the school, the administrators who conducted the investigation, and their son’s accuser for the wrongful death of their son, as well as multiple charges that the school discriminated against their son because of his gender and denied him due process….The male student, Davis Xu, was accused after the female student, identified as Stephanie Malter in publicly available court documents learned that he had called her a “b****” in a private conversation with another student, according to his family’s lawsuit.

Occidental informed Xu that he had been accused of sending Malter Facebook messages even after she asked him to stop. Though Xu insisted Malter only filed the complaint after she learned Xu had called her a “b****” to a third-party, he was investigated for stalking, his family claims in their lawsuit. Mark Hathaway, attorney for Xu’s family, gave a brief statement on the situation. “The family is devastated and had hoped to avoid litigation,” Hathaway said.

Xu is not the only male student to die following what he and his family believed was an unfair adjudication process. Two months after Xu’s death in February 2017, University of Texas at Arlington student Thomas Klocke took his own life after being accused of typing homophobic slurs to a gay classmate. Klocke said the classmate actually made sexual advances toward him, and insisted he did not do what he was accused of. He was found responsible and put on disciplinary probation for the rest of his college career and told he would have a mark on his record, even though the school acknowledged there was no evidence for their decision.

As with Xu, according to court documents, Klocke believed this mark on his record would keep him out of graduate school, and he took his own life.

dailywire By Ashe Schow

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LIVELY ORAL Argument in Third Circuit Clarion University Due Process Case

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LIVELY ORAL Argument in Third Circuit Clarion University Due Process Case

Today, the Third Circuit heard its first direct appeal of a campus due process lawsuit. This case involved an African-American student from Clarion University in Pennsylvania. Clarion becomes the sixth lawsuit from an accused student awaiting a decision before an Appeals Court.

The Clarion case presented a somewhat unusual fact pattern in the array of due process lawsuits: the accused student, Tafari Haynes, was arrested and faced criminal charges as Clarion moved with lightning speed to conduct a Title IX adjudication. The rush to act was puzzling because Haynes already was suspended, and thus posed no threat to campus safety; and the parties were awaiting a DNA test that seemed likely to shed light on the accuser’s claims. (The DNA tests would show no match to Haynes, raising the possiibility of actual innocence, and all charges were dropped after the accuser decided she did not want to proceed with the case.)

Clarion’s handling of the Title IX adjudication process raised a number of red flags. Significant allegations of bias existed against the investigator, Matthew Shaffer.  Critically, however, Haynes acted on advice of counsel to avoid the possibility to self-incrimination, and did not participate in the hearing. That was enough for the district court to dismiss his due process claim. The student appealed.

The Third Circuit panel that heard Haynes’ appeal consisted of Thomas Ambro (Clinton), L. Felipe Restrepo (Obama), and Morton Greenberg (Reagan). Joshua Engel argued for Haynes. The Third Circuit panel pressed Engel on the consequences of Haynes’ non-attendance, albeit in an odd way. Based primarily on a single footnote in Clarion’s brief, the judges seemed open to believing that it was at least possible that Haynes’ criminal attorney could have shown up at the hearing, and then been allowed by Clarion officials to participate and ask questions of the accuser. (Clarion’s general rules don’t allow cross-examination, and prohibit a student’s lawyer from speaking in the hearing.) Clarion’s claim that cross-examination might have been allowed, however, produced a remarkable exchange between Judge Ambro and Hopkirk, where Clarion’s attorney eventually had to admit that the university had never informed Haynes or his attorney that the university might modify its procedures to allow the lawyer to conduct cross-examination.  While anything is possible, I’m not aware of any Title IX case in which a university, at the last minute, has changed its procedures in such a fundamental way to grant more procedural protections to the accused.

academicwonderland By KC Johnson Full 53 Min Third Circuit Oral Arguments-Haynes v. Clarion University Of Pennsylvania

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SETTLEMENT for Two Black Males. White Girl Consents-Brags-Then Accuses. UFindlay Settled.

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SETTLEMENT for Two Black Males. White Girl Consents-Brags-Then Accuses. UFindlay Settled.

The University of Findlay has settled with two black male student-athletes. The University expelled Justin Browning and Alphonso Baity after a female student ‘M.K.’ bragged about her sexual encounter and then 10 days later filed a complaint claiming she was sexually assaulted. Browning and Baity continually stated M.K. gave her consent for the sexual encounter. The two male students were expelled two days after M.K. made her accusation. The male students sued their former university and have now reached a settlement for an undisclosed amount.

“The University of Findlay and two previously expelled student-athletes, Justin Browning and Alphonso Baity, have resolved all claims between them to their mutual satisfaction, the specifics of which are confidential. They have no further comment.” Findlay’s statement.

Read more@ dailywire By Ashe Schow Read more on Alphonso Baity: A False Accusation and Unfair Investigation Derailed This Student Athlete’s Life- by Robby Soave

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TITLE IX Has a Cross-Examination Crisis. Comments From University Leaders Show Guilt-Presuming Sentiment

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TITLE IX Has a Cross-Examination Crisis. Comments From University Leaders Show Guilt-Presuming Sentiment

The Supreme Court has described cross-examination as the “greatest legal engine ever invented for the discovery of truth.” Until recently, that lesson had failed to permeate the nation’s Title IX tribunals. Obama-era guidance “strongly” discouraged direct cross-examination between students accused of sexual assault and those making the accusations. Nearly all colleges and universities went further and prevented lawyers or advocates for the accused from asking questions of witnesses. Only in the last few weeks have academic leaders explained in detail why they support denying accused students who face the most serious offense to come before most campus tribunals—sexual assault—the procedural protections associated with cross-examination.

The comments from higher-ed leaders require accepting one assumption: that all, or nearly all, campus allegations are true, and so a system primarily designed to test the veracity of each individual claim is not only unnecessary but counterproductive. This guilt-presuming sentiment veers dangerously close to deeming a college’s educational goals consistent with sacrificing innocent students to pursue a greater good. But as one federal judge has noted, a university’s mission is stymied if, through unfair procedures, the school “ejects innocent students who would otherwise benefit from, and contribute to, its academic environment.”

A federal court ruling already requires cross-examination in public universities in Michigan, Ohio, Kentucky, and Tennessee. (The ruling also maintains that private institutions denying cross-examination risk Title IX liability.) And a series of state appellate court rulings have prompted California universities to institute hearings with some form of cross-examination. The record in these five states suggests that, even if the DeVos regulations are adopted, universities will still try to subvert fair treatment of accused students in the Title IX process.

mindingthecampus.org KC Johnson

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SETTLEMENT for Straight Male. Montana State TIX Ms. Shaffer Loathed Straight Males. She Denied Him His Rights. MSU Settled w Male.

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SETTLEMENT for Straight Male. Montana State TIX Ms. Shaffer Loathed Straight Males. She Denied Him His Rights. MSU Settled w Male.

The federal lawsuit that a former MSU student filed last year against Montana State University, Jyl Shaffer, and other MSU employees has settled.  This is the lawsuit where a straight male accused MSU’s Title IX administrator Ms. Shaffer of bias in favor of transgender students and against straight men. The lawsuit charged that the university violated his constitutional rights in 2016 by banning him from the Bozeman campus in the summer and fall semesters, after he privately voiced his objections to transgenderism to an instructor, comments he contended were misconstrued as threatening violence. The male’s lawsuit alleged that the transgender student filed a complaint with the Title IX Office, and neither the MSU dean of students office nor campus police thought the male student’s comments were serious threats that warranted his suspension, but Title IX administrator Ms. Shaffer called the case “cut and dried” and had him kicked off campus. The lawsuit alleged Shaffer showed bias when she wrote an email to the transgender student calling herself “an aspiring ally” and saying, “I’m grateful you trusted us.” Shaffer then offered to assist the transgender student to find work or academic help, and to meet with the ASMSU students’ attorney – but didn’t offer the same assistance to the male student. THe lawsuit went on to state that “Shaffer also has firmly held anti-male beliefs that she shared on her Twitter account,” It cited her 2018 comment calling “accurate AF (as expletive deleted)” an article that talked about “entitled toxic masculinity.”

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JURY BELIEVES EVIDENCE. Ex-Baylor Player Shawn Oakman Found Not Guilty of Sex Assault

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JURY BELIEVES EVIDENCE. Ex-Baylor Player Shawn Oakman Found Not Guilty of Sex Assault

A Texas jury found former Baylor football player Shawn Oakman not guilty of sexual assault. The defense called Mr. Conner, a digital forensics expert as its final witness. Conner said text messages inviting Oakman to the bar were deleted from the accuser’s phone.  As my Tennessee neighbor Clay Travis notes, the charges against Oakman were heavily publicized, and carried serious repercussions for the Baylor football program. As Clay also points out, Oakman is hardly the only high-profile NFL prospect recently acquitted. Tennessee’s A.J. Johnson (and his teammate Michael Williams) were found not guilty after a mere 90 minutes of deliberations last summer.

At this point, how many more court cases do we need before we return to sanity and reason in the battle over campus sexual assault? As I wrote last month, judges across the country (including, most notably, California judges) are rebuking colleges and universities for establishing campus kangaroo courts designed to secure more punishments for young men. And now we’re seeing real courts demonstrate once again the power of due process.

nationalreview -David French dailywire -Ashe Schow

 

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BOSTON COLLEGE Fights to Suppress Doe’s Evidence. Files New Brief In $3M Lawsuit

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BOSTON COLLEGE Fights to Suppress Doe’s Evidence. Files New Brief In $3M Lawsuit

Ahead of a hearing scheduled to take place this coming Thursday, Boston College, in the $3 million lawsuit brought by a alumnus—“John Doe”—submitted its brief in support of limiting the scope of the upcoming jury trial as much as possible. The brief provides a rebuttal to many of the requests put forward by Doe on Feb. 15.

The University is arguing that the “forensically enhanced” video that was considered exculpatory evidence by the criminal prosecutors that dropped charges against Doe for sexual assault should not be presented in court, since it was not available to the hearing board members. Since this trial is not supposed to reconsider whether Doe committed assault, but whether BC breached its contract with Doe, presenting additional evidence is not necessary, according to the brief. Doe’s lawyers have argued that the video should be considered by the jury because the hearing board declined to wait to see the enhanced video, and the video there was not considered exculpatory when BC considered Doe’s appeal of the original decision with the enhanced video. BC’s response has been that charges relating to the appeal and 2014 independent review have already been ruled in the University’s favor, rendering the context irrelevant. The University is particularly concerned with the idea that further witnesses will be called. Doe’s legal team is seeking testimony from Brett Sokolow. Sokolow makes arguments related to Title IX guidelines BC allegedly violated, but the University is arguing that since such matters were ruled on by Casper’s summary judgement Sokolow’s testimony shouldn’t be considered.

Doe originally brought six claims against BC, four of which Casper and the Appeals Court ruled in favor of BC via summary judgement. Those included Title IX gender-bias related claims, negligence, and negligent infliction of emotional distress. Only the breach-of-contract and basic fairness claims need to be decided during the jury trial, but according to Sokolow’s testimony, improper execution of Title IX guidelines and gender bias are tied to the breach-of-contract and basic fairness claims.

bcheights.com -Jack Goldman

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COURT RULING: Accused Male Can Move Forward w Title IX Claim Against SyracuseU

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COURT RULING: Accused Male Can Move Forward w Title IX Claim Against SyracuseU

This case has been ongoing for about thirteen months. Before getting into the motion to dismiss, here’s a refresher. Syracuse student Jane Roe was drinking at a bar. She claimed that when she left, a “black male pulled her into an alley, grabbed her, and tried to kiss her….put his hands down her pants-” Roe got away with the help of a friend. Three months later, she found a black male in the bar who looked similar to her alleged assailant. This man was Syracuse student John Noakes. After engaging the police on several occasions she decided to pursue the matter exclusively through the school’s Title IX office. Jane did not show up to the hearing, so it proceeded without her. Noakes’ primary defense was that he was misidentified by Roe. Title IX Syracuse found Noakes guilty and suspended him for two years. He then sued. Noakes claimed that Syracuse’s process was flawed in numerous ways. Namely, the school:

  • Failed to consider exculpatory evidence (such as text messages and selfies on Noakes’ phone)
  • Used Noakes’ drunken state as evidence of guilt but did not consider whether Roe’s drunken state prevented her from accurately identifying her assailant
  • Ignored Roe’s contradictory statements
  • Failed to acquire sufficient evidence from the police investigation
  • Did not allow Noakes the opportunity to read the school’s investigative report against him
  • Relied on faulty information
  • Did not allow Noakes the opportunity to cross-examine his accuser since she skipped the hearing (note that if accused students skip hearings this is often considered inculpatory by the school)
  • Concluded that Roe was more credible despite the Board never hearing testimony directly from her

Noakes brought four claims against the school: Title IX, Breach of Contract, Title VI (race discrimination), and Negligence. As usual, the school filed a motion to dismiss each of Noakes’ claims in an attempt to quickly end the legal battle. Judge Thomas McAvoy granted and denied in part the motion to dismiss on February 26th. To see highlights from the Decision and Order go here: titleixforall.com/Motion to dismiss granted/denied in part in Noakes v. Syracuse University  -J.Taylor   thecollegefix.com -Staff

 

 

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