In a college sexual assault case where witnesses give contradicting testimonies, the investigator cannot withhold information from the accused student without compromising the fairness of the hearing. A California appeals court faulted a Christian college for doing just that, violating its own policies in the process. In a ruling last week written by Associate Justice Martin Tangeman, the three-judge panel found that Westmont College improperly denied an accused student the ability to ask questions to both his accuser and relevant witnesses.

Westmont, an evangelical liberal arts school, was criticized by the court for deeming “nontestifying witnesses more credible than their testifying counterparts” without any explanation. It also selectively picked through the written statements by nontestifying witnesses, citing portions that put Doe in a bad light. The appeals court was particularly concerned by the Westmont panel’s pattern of picking and choosing which parts of testimonies to credit, when the witnesses made drastically different claims. Westmont got tripped up by its failure to follow “its own policies and procedures” and give Doe “the opportunity to fully respond to the evidence against him,” Tangeman wrote for the appeals court. The ruling also frowned upon Cleek’s dual roles as an “investigator and adjudicator,” which increased the judges’ concerns about the panel’s “credibility determinations.” The panel appeared to have “simply approve[d] the credibility” of one member, Cleek, who was also the investigator.  Cleek’s practices came in for scrutiny. Though Westmont policies required Cleek to turn over his interview notes – Doe must be given access to “all evidence” – the investigator “omitted some of his questions and the witnesses’ answers” from his reports, which limited the “scope of questions” Doe could propose for witnesses, Tangeman’s ruling said. Because the panel refused to give Doe its notes from witnesses’ responses to panel questions, his “information deficit grew” and he had to live with “less detailed” oral summaries. A fair hearing does not allow an adjudicatory body to “rely on evidence that has never been revealed to the accused,” the judges said. Finally, the appeals court found Doe was denied the right to pose questions “even if indirectly” and to “challenge the discrepancies he saw” in witness responses to panel questions.

Westmont must let Doe “access Cleek’s notes,” as required by policies and procedures, in a new proceeding. It must also give him notes regarding panel questions and witness answers, and permit Doe to submit questions for witnesses, the appeals court ruled. The appeals court largely affirmed the trial court ruling against Westmont, except that it allowed Cleek to participate again as an adjudicator.

thecollegefix – Ethan Berman  Read Court Ruling: Doe v Westmont

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A federal judge recently ruled that the latest wrongful expulsion lawsuit brought by a male student against Dartmouth College can move forward in part, but the judge appeared skeptical of the student’s remaining arguments. Doe’s attorneys claim that Dartmouth failed to meet its contractual obligation to provide a fair and impartial investigation because the school refused to let the student submit a polygraph test into evidence and failed to properly scrutinize the credibility of his accuser, among other issues. Judge Joseph Laplante dismissed the claims that Dartmouth violated Title IX by discriminating against Doe based on his gender. He allowed the case to move forward to the discovery phase on the basis of the breach of contract claims. “I do think the plaintiff has stated a claim for a breach of contract, although I’m not going to say it’s a strong case,” Laplante said after announcing his decision.

The case is at least the third lawsuit filed by a male former student against Dartmouth in a one-year period alleging that the school mishandled its disciplinary process and discriminated against the accused student based on his gender. The actual judicial system has seen an increase in the number of so-called John Doe cases filed under pseudonyms by male students who claim their investigations weren’t handled fairly. But many judges, while willing to hear arguments that a college’s investigative process violated its own policies or federal law, are hesitant to second-guess school investigators’ decisions absent procedural errors. “The courts should not be appellate courts for university disciplinary proceedings,” Laplante said Wednesday, adding “I don’t want this court to be in that business.”

unionleader-Todd Feathers

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