Monthly Archives: October 2019

THIS IS EXCELLENT. Announcing The Campus Due Process Litigation Tracker!

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THIS IS EXCELLENT. Announcing The Campus Due Process Litigation Tracker!

Many lawyers and journalists use a spreadsheet maintained by Brooklyn College Prof. KC Johnson and due process advocate Samantha Harris to keep track of lawsuits filed by students accused of sexual misconduct. Now Harris’s organization, the Foundation for Individual Rights in Education, has launched an even more comprehensive resource to keep tabs on litigation involving due process in every kind of campus disciplinary proceeding.

The Campus Due Process Litigation Tracker is searchable by school type, state, federal appeals court and several other categories, including judicial decisions “primarily favorable” to either college or student, stage of litigation and common keywords (“cross-examination,” “basic fairness,” etc.). It includes “summaries of cases affecting students’ and faculty members’ rights in campus judicial proceedings” and will be continually updated with both newly decided and older cases. A spokesperson for FIRE said that it debuted the tracker “in preparation for any Title IX updates” from the Department of Education, which is expected to announce new regulations for campus sexual misconduct proceedings this fall…The spokesperson clarified that the tracker goes beyond Title IX: “It will include decisions that impact students’ procedural rights in campus judicial proceedings, whether the decision is made in the context of a due process claim, a breach of contract claim, a Title IX claim, etc.”

thecollegefix- Staff thefire-Samantha Harris

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RULING: Judge Dismisses Defamation Case of HS Male Falsely Accused of Sexual Assault

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RULING: Judge Dismisses Defamation Case of HS Male Falsely Accused of Sexual Assault

A federal judge has dismissed the defamation case of a high school student accused of sexual assault by four other students, but who then had the charges dropped against him after two of the accusing students admitted they lied.

Parents Michael and Alecia Flood and their minor son, T.F., filed the lawsuit against four other students, K.S., C.S., E.S., and H.R., their parents, and the Seneca Valley School District in Pennsylvania, on grounds that their son was the victim of defamatory statements when two of the minor defendants admitted they lied in accusing him of sexual assault. Though the charges against T.F. were ultimately dismissed, the four accusing students were never punished.

The plaintiffs alleged that the school district violated the 14thAmendment and discriminated against T.F. on the basis of sex when the school district enforced its student discipline policies based on the sexual assault accusations made against him. The Floods and their son said the school district had punished T.F. based on the false accusations, but failed to punish the accusing students for lying.

In his opinion, Chief U.S. District Judge Mark R. Hornak in the U.S. District Court for the Western District of Pennsylvania, wrote that the Floods’ complaint “fails to plead that a final policymaker took any action toward T.F. that could represent official policy attributable to the school district.”  Hornak continued: The court also concludes that the amended complaint fails to plead that any final policymaker of the school district had knowledge or constructive knowledge of prior events of sexual misconduct such that any final policymaker could have been “deliberately indifferent” to the need for additional safeguards against disparate applications of school district policy.

clarion.causeaction  breitbart-Dr. Susan Berry

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MASSACHUSETTS Court of Appeals: 1st Circuit Addresses Due Process Rights in Title IX Hearings

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MASSACHUSETTS Court of Appeals: 1st Circuit Addresses Due Process Rights in Title IX Hearings

As colleges and universities continue to grapple with how to handle Title IX disciplinary proceedings, yet another federal court has weighed in on the due process protections that should be afforded to college students accused of sexual assault.  In August, the First Circuit concluded in Haidak v. University of Massachusetts-Amherst that the University of Massachusetts violated a former student’s due process rights by suspending him for five months without proper notice and a fair hearing… In its decision, the First Circuit agreed that the suspension was improper, as Haidak had not been afforded adequate due process protections, such as proper notice and a hearing. This was not the end of the inquiry though, as the First Circuit also squarely addressed the fairness of the subsequent expulsion proceeding. The court also considered the key question of whether the accused has a right to personally cross-examine his accuser, ultimately agreeing that the tenets of fairness and due process demand that some opportunity for reasonably adequate real-time cross-examination be provided to an accused student.  However, the First Circuit stopped short of saying that an accused student has an absolute right to first-hand cross-examination of the accuser, concluding that examination through a hearing panel, as was the case in Haidak, is sufficient.

The decision in Haidak is consistent with the First Circuit’s earlier decision in Gorman v. University of Rhode Island, which had concluded that the “right to unlimited cross-examination has not been deemed an essential requirement of due process in school disciplinary cases.” Since the right is not unlimited, the court in Haidak concluded that it is sufficient to permit questioning by a hearing panel, as the court was not convinced that the person doing the confronting must be the accused student or the student’s representative.

The First Circuit’s decision in Haidak is therefore at odds with the Sixth Circuit’s decision last year in Doe v. Baum, which ruled that the University of Michigan had to provide for direct cross-examination by the accused or his or her representative in all cases turning on credibility determinations. This difference in outcome has created a circuit split, which is often an important criterion for U.S. Supreme Court review, thus making it more likely that the Court may take this issue up in the future to resolve any difference of legal opinion with respect to the important question of due process rights under Title IX hearings and the extent of an accused student’s right to question an accuser. At least for now, in the First Circuit, questioning by a hearing panel is sufficient, while in the Sixth Circuit, questioning must be allowed by the accused or a representative.

jdsupra-Shipman & Goodwin LLP

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SHERIFF: Ohio Anderson HS Female Fabricated Sex Assault Claims Against Male Teacher

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SHERIFF: Ohio Anderson HS Female Fabricated Sex Assault Claims Against Male Teacher

An Anderson High School student fabricated claims that her teacher sexually assaulted her, officials with the Hamilton County Sheriff’s Office say. A 13-year-old girl falsely claimed that a male teacher grabbed her right arm, unzipped her hoodie and grabbed her breasts, according to a police report. The student told school officials it happened inside the teacher’s classroom during a class break.

But following an investigation, officials with the Sheriff’s Office said there was no wrongdoing, and that the female student made up the entire incident. The falsely accused teacher is cleared to return to teaching after spending two and a half weeks on leave. “Although we’ve had a tough day, we’re all working through it,” Forest Hills Superintendent Scot Prebles said. “The repercussions of this do have long term impact.”

“We have a staff who is jittery right now, because this could be done on any day to any one of us,” Prebles said. “We’re also going to make sure that we are supporting our staff member. We have a staff member who has been hurt by an accusation. It was not an accurate accusation.

angloamerica101 msn.com

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BIG NEWS: Two Executive Orders Ban ‘Guidance’ Practice That Enabled Obama’s TitleIX Kangaroo Courts

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BIG NEWS: Two Executive Orders Ban ‘Guidance’ Practice That Enabled Obama’s TitleIX Kangaroo Courts

An easy way for federal agencies to get what they want, regardless of the laws on the books, is to issue “guidance” purporting to explain the law…”Think of guidance as an off-the-books way for the government to ignore commonly held understandings of fairness. It’s a shameless, unconstitutional scheme designed to skirt judicial review, avoid public scrutiny, and evade accountability”…Recall that the whole due process conundrum on campuses involving sexual assault is the result of a 2011 Department of Education “guidance” memo that pressured universities to lower the burden of proof in such cases. The threat of federal investigation, possible defunding – and perhaps most importantly, public shaming – was enough to convince colleges to make it easier to find accused students guilty. They banned cross-examination, lowered evidence standards and imposed double jeopardy on exonerated students. Was this authorized by law or regulation? Of course not, and a lawsuit targeting the “Dear Colleague” guidance was proceeding when the Trump administration rescinded its predecessor’s guidance. Now, the administration is going even further with a pair of executive orders issued Wednesday that would bar federal agencies from issuing “substantive guidance” – in other words, new rules outside a formal rulemaking.

The first order criticizes commonplace agency practices of evading the notice-and-comment provisions in the Administrative Procedure Act by issuing substantive guidance…Even when accompanied by a disclaimer that it is non-binding [the Obama administration’s repeated defense of its “Dear Colleague” guidance], a guidance document issued by an agency may carry the implicit threat of enforcement action if the regulated public does not comply. Moreover, the public frequently has insufficient notice of guidance documents, which are not always published in the Federal Register or distributed to all regulated parties. The order instructs federal agencies to “treat guidance documents as non-binding both in law and in practice,” include public input in formulating guidance, and make the documents “readily available to the public”

The second order bars federal agencies from pursuing “a civil administrative enforcement action or adjudication absent prior public notice of both the enforcing agency’s jurisdiction over particular conduct and the legal standards applicable to that conduct.” It notes that the Freedom of Information Act amended the Administrative Procedure Act to better protect Americans from “the inherently arbitrary nature of unpublished ad hoc determinations.” The Freedom of Information Act also generally prohibits an agency from adversely affecting a person with a rule or policy that is not so published, except to the extent that the person has actual and timely notice of the terms of the rule or policy.

There is, of course, a proper role for a regulatory bureaucracy in a democratic republic. But empowering it to operate largely unbound by the traditional checks and balances represents a very real danger. The president’s orders are welcome and long overdue.

thecollegefix– Greg Piper reviewjournal-Editorial

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ESSAY BY STANFORD Law Alum. Choices Have Consequences: Chanel Miller & Brock Turner

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ESSAY BY STANFORD Law Alum. Choices Have Consequences: Chanel Miller & Brock Turner

The Ultimate Question

What really happened between Brock Turner and Chanel Miller during and after a fraternity party at the Kappa Alpha fraternity house on the Stanford University campus the weekend of January 17-18, 2015? Anyone who has children in college or destined for college, whether sons or daughters, should be terrified of the contradictions on college campuses and in the legal system. This analysis begins with the thoughtful, fair and balanced discussion of the Miller/Turner matter contained in Malcolm Gladwell’s recently published book, Talking to Strangers.

“[Miller] has no memory of meeting Brock Turner, no memory of whether she did or didn’t dance with him, no memory of whether she did or didn’t kiss him, did or didn’t agree to go back to his dorm, and no memory of whether she was a willing or unwilling participant in their sexual activity. Did she resist when they left the party? Did she struggle? Did she flirt with him? Did she just stumble, blindly, after him? We’ll never know. After the fact, when she was sober, Doe was adamant that she would never have willingly left the party with another man. She was in a committed relationship. But it wasn’t the real [Miller] who met Brock Turner. It was drunk and blacked-out [Miller], and our drunken, blacked-out selves are not the same as our sober selves.” [Talking to Strangers, emphasis added].

The catastrophic outcome of the evening for Miller and Turner was agonizingly predictable considering the circumstances and context:

“Brock Turner was asked to do something of crucial importance that night – to make sense of a stranger’s desires and motivations. That is a hard task for all of us under the best circumstances, because the assumption of transparency we rely on in those encounters is so flawed. Asking a drunk and immature nineteen-year-old to do that, in the hypersexualized chaos of a frat party, is an invitation to disaster.” [Talking to Strangers, emphasis added]

Choices and Consequences

A responsible, proactive parent teaches her or his children that choices have consequences. A necessary corollary is that all of us are accountable for our decisions.

The subject matter of this essay is an analysis of the consequences for the choices made by Miller and Turner the evening the two of them voluntarily got together at the KA party and afterward.

Choices Have Consequences, by Tom Lallas 

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THE ROLE OF ALCOHOL & Alcohol-Induced Blackout Amnesia In People v Brock Turner

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THE ROLE OF ALCOHOL & Alcohol-Induced Blackout Amnesia In People v Brock Turner

Alcohol Use and Abuse on College and University Campuses: A core issue associated with the Brock Turner case is the rampant use and abuse of alcohol on college and university campuses. According to the National Institute on Alcohol Abuse and Alcoholism, a college freshman’s first six weeks of college life, stand out as a time of harmful alcohol intake and its resultant undesirable effects and events. Studies show that approximately 50% of student sexual assaults involved alcohol. Of these, 46% of the victims had ingested alcohol, as did 69% of the perpetrators.

Alcohol-induced Blackout Amnesia: According to court documents, Emily Doe had a history of alcohol-induced blackout amnesia. Alcohol-induced blackout, a form of anterograde amnesia, is typically experienced during binge drinking when an individual’s blood alcohol concentration (BAC) quickly rises to approximately 0.14 g/dL (0.14%) or higher through consumption of a high quantity of alcohol in a short amount of time…In blackout amnesia, the individual can have the appearance of consciousness—but will have no memory (en bloc), or only partial memory (fragmentary), of what occurred during the period of blackout… Emily Doe stated to police that after drinking four shots of whiskey at home before attending the Stanford fraternity party, “She felt kind of buzzed but was coherent and able to function.” In California, a drinker is legally intoxicated when a BAC reaches 0.08 or higher. Emily Doe’s extrapolated BAC was approximated by Alice King, Santa Clara County supervising criminologist, to be 0.242 to 0.249% –about three times the legal limit. Turner’s BAC, extrapolated was estimated at 0.171%.

“A blackout is when you don’t remember what happened. You can appear to be completely awake. An observer can’t tell when someone is in the midst of not forming a memory.” This is relevant because Turner would not have known if or when Emily Doe was in blackout, as she would have appeared functional. Doe’s state of blackout during her encounter with Turner can make the case that Turner believed Doe was coherent and provided consent.

Blacking Out the Evidence of Alcohol-induced Blackout: The prosecution argued that the defense expert witness testimony on alcohol-induced blackout should be withheld from the jurors because “it has not been established that alcoholic blackouts are generally accepted in the scientific community.” Contrary to the prosecution’s belief that alcoholic blackout is not accepted by the scientific community, formal scientific research of alcohol-induced blackout began as early as the 1940s by E.M. Jellinek… In 2011, neuroscientists at Washington University School of Medicine identified the process of alcohol-induced blackout at the cellular level. It was discovered that a large quantity of alcohol consumption interferes with certain brain receptors… ultimately interfering with synaptic plasticity in the brain’s hippocampus and inhibiting memory formation. During Turner’s trial, Prosecutor Kianerci made multiple statements against blackout expert witness Dr. Kim Fromme in an effort to discredit and prevent Dr. Fromme’s testimony.

Emily Doe herself has acknowledged experiencing alcohol-induced blackouts at previous parties. She testified in court that she had experienced “four to five” episodes of blackout while in college. In the police report Doe told police that, “She has blacked out before from drinking, but only when she has been continually drinking for a long time, and it is usually at the end of the night when it happens.” This is similar to what had occurred at the Stanford fraternity party.

Evidence shows that Emily Doe’s self-described alcohol-induced state of blackout did indeed play a major role in her sexual encounter with Brock Turner. There is a likelihood that Emily Doe could have consented to sexual activity with Brock Turner while she was in a state of en bloc alcohol-induced blackout. Of course, Emily Doe cannot remember.

Alcoholic Blackout–Brock Turner Trial 

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NEW STUDY Shows #MeToo Is Now a Convoluted Catch-22

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NEW STUDY Shows #MeToo Is Now a Convoluted Catch-22

A new workplace study, soon to be published in the journal Organizational Dynamics, finds that following the #MeToo movement, relationships between men and women have shifted considerably. The study essentially concluded that men are reluctant to interact with their female colleagues at work for fear of retribution, even if undeserved. This was predictable, yet some are finding the results difficult to interpret.

The study found that nearly one-third of the men surveyed avoided one-on-one meetings with female co-workers. Twenty-one percent said they would be hesitant to hire a woman for a job that might require regular, close interaction, such as business travel, and nearly the same percentage would be reluctant to hire an attractive woman. Men are avoiding women more in 2019 than they were even a year ago.

Are men just simply unaware of what sexual assault is? Doubtful. Women might be, though. From false rape charges tried in university kangaroo courts to a weird date with a celebrity, women seem to struggle to define what is uncomfortable or a poor choice versus what is assault or rape.

What was once an awkward date, drunken sex, or a bumbling compliment has now all been rolled into the same heinous act and the perpetrators all weighted with the terrible accusations. I wrote back in a 2017 column that it “creates a dynamic where all women are basically victims and all men are near-perpetrators,” and two years later, this study shows it has.

theepochtimes.com-Nicole Russell

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IS YALE More Dangerous than Detroit?

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IS YALE More Dangerous than Detroit?

Few universities have a more troubling record on Title IX matters than Yale. A few months after settling a lawsuit brought by former basketball captain Jack Montague—thereby avoiding trial on a variety of claims, including that the university manipulated its procedures to bring charges against Montague and then found him guilty despite a preponderance of the evidence suggesting otherwise—the university has released its sixteenth semi-annual report of sexual assault allegations among the Yale student body.

As always—if accepted at face value—the data in the report, penned by Stephanie Spangler, indicates an extraordinarily dangerous campus, with a much higher violent crime rate than any of the nation’s most dangerous cities. And, as always, the specifics within the Spangler Report suggest instead a campus motivated by a frenzy to report, with few cases even brought for adjudication in Yale’s notoriously one-sided adjudication system. Spangler explains that her document “uses a more expansive definition of sexual assault” than that offered in state or federal law. She has never provided an explanation as to why Yale has chosen to redefine a commonly-understood term, but the broader definition allows figures that create a greater sense of crisis.

At first blush, the chart suggests a campus awash in violent crime. A closer look, however, shows that formal adjudications of Title IX cases have actually decreased, by a fairly substantial percentage, since 2014. Spangler’s report offers no explanation for this trend, or what it might say about dubious claims being submitted to the Title IX office by accusers who have no intention of moving forward with their claims.

Yale is the only school to provide reports like Spangler’s (thanks to a resolution agreement with the Office for Civil Rights). Over the years, Spangler has removed more and more details from her reports—the documents, for instance, no longer detail third-party reports involving anonymous alleged victims and accused students. But a couple of items from the most recent report do stand out. Minding the Campus has broken down each of the previous Spangler documents.

mindingthecampus– KC Johnson

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DUE PROCESS Legal Update: 5 New Federal Complaints. 3 New Federal Court Decisions.

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DUE PROCESS Legal Update: 5 New Federal Complaints. 3 New Federal Court Decisions.

As the Department of Education continues to consider more than 100,000 comments on its proposed new Title IX regulations, the tide of lawsuits from accused students who allege they were denied a fair process in campus judicial proceedings continues to rise in the courts.

Five new federal complaints were filed in September, against Eastern Kentucky University, the University of Wisconsin-Oshkosh, the University of Pittsburgh, Rice University, and the University of Maine Farmington. September also brought three new federal court decisions, continuing to reshape the relationship between higher education and the judiciary.

Most notably, on Sept. 23, a jury found Boston College liable for breaching its contract with a student who was wrongly found responsible for sexual misconduct in a case of mistaken identity… Last week, a federal district court in Tennessee dismissed a student’s lawsuit against Vanderbilt University stemming from his expulsion from Vanderbilt without a hearing, without the opportunity to confront his accuser, and without the opportunity to see all of the evidence against him.

Even at public universities, where students are constitutionally entitled to at least some degree of procedural fairness, there are many hurdles to getting relief in the courts.

thefire.org– Samantha Harris

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