In an environment where accused students too often need to go to court to undo unfair Title IX adjudications, lawsuits against universities continued apace in 2019. A critical ruling in the Seventh Circuit highlighted the year, but some troubling rulings elsewhere provided a reminder that in this area of the law, an unsympathetic judge can be enough to ensure a bad outcome…First, the statistics. For the year, there were 78 new federal lawsuits filed by accused students, a rate essentially unchanged from 2018 (77 federal lawsuits filed) and 2017 (78 federal lawsuits filed). Both the state and federal level produced decisions in 96 cases—43 of which were university setbacks. Universities prevailed in 46 cases, while seven yielded mixed or neutral decisions.

The most significant ruling came in June, from the Seventh Circuit. Other 2019 significant victories for accused students came at the district court level, where the court denied summary judgment for the university, greenlighting the case to trial. (In each of these cases, the university then settled.) At the same time, the year featured some troubling results. Despite seemingly strong complaints, accused students lost in lawsuits against Arkansas and Oberlin (both cases have been appealed). The Occidental case, in which the accused student was found guilty despite text messages from the accuser indicating her consent, came to an end with a horrific ruling from a California appeals court. And Appeals Court decisions from the First Circuit (BC) and Seventh Circuit (Columbia College) wound up being quite narrowly written but nonetheless seemed to have an intent to narrow earlier circuit rulings for accused students.

In 2020, we await issuance of the DeVos Title IX regulations, which seek to create a more level playing field in Title IX adjudications.

mindingthecampus.org-KC Johnson

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1. Her Boyfriend Claimed She Was Raped By Another Man. The Accused Sued, And The Case Is Heading To Trial: I covered the lawsuit from the student John Doe at length last year. John had a sexual relationship with a woman referred to as Mary Smith, who also had a boyfriend, B.K. (unknown to John at the time) B.K. and Mary moved in together and decided to lodge a formal complaint against John. Mary now claimed she had been sexually assaulted and that it affected her life in one specific way — “her relationship with her boyfriend.” John was charged with sexual assault and faced a campus hearing, where he was not allowed to see the evidence against him. Mary was allowed to name B.K. as her advisor, which kept him from being questioned by John about his motivation or inconsistent statements. John was expelled and sued. Incredibly, the three campus [kangaroo] “judges” who found John responsible all used the exact same phrases to claim they were impartial. Author and professor K.C. Johnson explained how “judges” Elizabeth Zmarlicki, Tim Brown, and Caitlin Codding all tried to claim they were fair in their decision with eerily similar affidavits that raise questions about their authenticity. dailywire-Schow

2. Johnson & Wales: The Disciplinary Panel That Thought Alike: A district court recently denied summary judgment to Johnson & Wales University clearing the case for trial. The trial will focus on whether JWU’s handling of the case violated an explicit promise of fair treatment for the accused that its procedures provided. As Judge Mary McElroy noted in her ruling, this matter was unusual in that the student’s lawyer, James Erhard, made “his case for an unfair proceeding virtually entirely on facts put forth or acknowledged by JWU itself.” That material included affidavits justifying their guilty votes filed by the three members of the JWU disciplinary panel. Each member of the panel appears to be an at-will employee, as opposed to students or tenured faculty who might have been less susceptible to feeling pressured by the school. academicwonderland-KC Johnson

3. ‘Mindless automatons’ Title IX adjudicators separately used identical language to defend guilty finding: Judge McElroy ruled that a jury will hear allegations against Johnson & Wales University for finding a student guilty of sexual assault without letting him question either his accuser or her boyfriend. One of the issues ripe for the consideration of jurors: whether the members of the Title IX tribunal exhibited anything close to independent thought in reviewing the evidence against “John Doe” and the potential ulterior motives of “Mary Smith” and her boyfriend, who first reported she had been assaulted. Assistant Director of Clubs Elizabeth Zmarlicki, Assistant Director of Residential Communities Caitlin Codding, and Culinary Associate Instructor Tim Brown “offered identical sentiments and, often, language” in the sworn affidavits they signed to justify their findings against John. They all justified their votes against John with the same language, “suggesting that they either collaborated on the documents after the fact or exhibited a degree of groupthink that raises questions about the fairness of the proceedings,” which were neither recorded nor transcribed. KC Johnson observes: “If this trio were JWU students, they would have been brought up on plagiarism charges.” None explained why they weren’t troubled that Mary’s boyfriend, the “complaining witness,” refused to testify, or that university officials refused to let them hear testimony from John’s roommates. thecollegefix-Piper 4. helpsaveoursons-Pease

5. University Student Gets Trial on Fairness of Sex Assault Hearing: Johnson & Wales University may have violated the contract rights of a male student accused of sexual assault by not providing him with a fair chance to call witnesses and ask “productive questions,” the District of Rhode Island ruled. The contract assured Doe that the disciplinary complaint process would be fair. The term “fair” doesn’t have “a commonly accepted definition.” But in the context, the question is whether the university was as “fair” with Doe as he reasonably could have expected, Judge Mary S. McElroy said. A jury could find that it wasn’t, she said. Doe was a college junior proceeding without a lawyer and “facing the frightening and very serious prospect of possible expulsion.” The university provided him with copies of its relevant policies and procedures, but that information didn’t make clear what questions Doe could ask or when and to whom he could pose them. Doe also wasn’t told whether he could make opening and closing statements at his hearing or who qualified as a potential witness. He likewise was never provided a copy of Mary Smith’s 18-page complaint against him, and instead was only read the statement and told he could take notes. The panelists who conducted the hearing went back and forth questioning Doe and Smith but never asked Doe if he had any questions for his accuser, Judge McElroy said. bloomberglaw-Dorrian

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