Monthly Archives: March 2020

EXPELLED For A Night of Consensual Drunk Sex- MSU Male Is $283,000 in Medical Debt.

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EXPELLED For A Night of Consensual Drunk Sex- MSU Male Is $283,000 in Medical Debt.

A year ago Michigan State University refused to comply with an appeals court precedent that requires an in-person hearing with cross-examination to students facing suspension or expulsion for sexual misconduct. It didn’t follow through until a medical school student sued the taxpayer-funded institution for depriving him due process in a proceeding stemming from three-year-old accusations by two female students in his program. Robby Soave at Reason has a sad update to the case: “Dev,” the son of Sri Lankan immigrants, has little chance of ever getting his degree and being able to pay back his $283,000 in medical school debt. The federal judge who ordered MSU to let Dev take necessary exams for his program a year ago ultimately blessed its unfair process in a December ruling, according to Soave, who has reviewed the full case file. Dev also lost his attorney in January and can’t afford “the caliber of lawyer” he needs to successfully appeal.

“The elephant in the room, of course, is Larry Nassar,” Soave writes in his exhaustive feature, referring to the MSU doctor who was later convicted of “serial sexual abuse” against female Olympic gymnasts. MSU’s failure to stop Nassar-who was credibly accused of molesting more than 250 girls- is, of course a travesty. But a course correction that involves automatic suspicion of the accused and departures from due process norms is not the right remedy. Unfortunately, this is exactly what has occurred on college campuses all over the country.

The elements of Dev’s case resemble many others. A night of drunken sex that one party claims was consensual and another party remembers differently; a significant passage of time; an insinuation that eventually becomes a formal accusation; a fraught effort to mount a defense; a life-derailing finding of guilt. Each party’s account of the debauched night’s events was a contradictory mess, but MSU wanted a guilty finding against Dev. 

He is one of many students who find themselves in this situation. According to The Atlantic‘s Emily Yoffe, 40 percent of alleged victims do not immediately report what happened, and the average period of delay is 11 months.

How can these men defend themselves against this kind of accusation, when neither they nor their accusers remember everything that happened? How do they prove beyond a doubt that the people giving evidence against them—who themselves made embarrassing decisions—had reason to distort the truth, to disguise their own moral failings? How does an ostensibly fair system determine that exactly one person—Dev—must pay for what happened that night, and suffer the end of his career aspirations, social stigma, and permanent crippling debt, because of it?

“I’m broken,” says Dev. “I can’t fight this.”

thecollegefix.com-Piper reason.com-Soave

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UCSB HID Federal Settlement From Judge In Title IX Due Process Loss, Drastically Lowering Its Penalty

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UCSB HID Federal Settlement From Judge In Title IX Due Process Loss, Drastically Lowering Its Penalty

The University of California-Santa Barbara hid an agreement with federal regulators from a judge considering how to penalize the university for violating a student’s rights, according to his lawyer, Robert Ottilie. Ottilie asked for $465,000 in “private attorney general fees” about a month after UCSB signed the agreement with OCR. Instead, he got $5,000 on the basis that his client’s win did not help students at large.

The existence of the September 2018 “resolution agreement” with the Education Dept.’s Office for Civil Rights could have led the judge to award “John Doe” hundreds of thousands of dollars in attorney’s fees. Instead, Santa Barbara Superior Court Judge Thomas Anderle issued a mild chastisement to the taxpayer-funded institution for running an “arbitrary and unreasonable” Title IX proceeding. Ottilie said that the existence of the agreement shows that UCSB misrepresented the status of the federal investigation to Judge Anderle.

While the investigation found John innocent of the allegations, Ottilie said that his permanent record still reflects an interim suspension from the investigation’s launch in 2016. UCSB did not respond to queries from The Fix on the agreement, which Ottilie obtained through a California Public Records Act request. His appeal of the low fee award is scheduled to be heard by a higher California court this month.

thecollegefix.com-Poff

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CAL POLY John Doe Claims Procedures That Led To Expulsion Were Unfair. Sues CSU To Get Earned Masters Degree

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CAL POLY John Doe Claims Procedures That Led To Expulsion Were Unfair. Sues CSU To Get Earned Masters Degree

A former Cal Poly student who was found guilty of engaging in non-consensual sexual activity, filed a petition against California State University (CSU) administrators on Feb. 6 to try and get his degrees back. John Doe claims that the process he underwent through Cal Poly’s Title IX office was unjust, and therefore his expulsion, which stripped him of his earned master’s and bachelor’s degrees, was unfair.

Doe’s petition against CSU chancellor Timothy White and the CSU board of trustees claims that White is responsible for the investigation, adjudication, and appeals of all student misconduct matters at the university through his issuance of a series of executive orders, and he is responsible for the improper expulsion of Doe. The petition alleges that the Title IX investigation and administrative action was based on three she-said, he-said, complaints of off-campus sexual activity.

Doe claims Cal Poly’s decision depended entirely on the credibility of the complainants and that Doe had no opportunity to question or challenge  statements, nor was he provided with all the evidence before a decision was made…In early December 2018, Cal Poly offered Doe a settlement that would include maintaining the findings against him but conferring his degrees. Doe declined the offer because CSU wouldn’t set aside findings of sexual misconduct against him.

Doe is one of several students fighting against higher education administrations, alleging that the investigative processes that found them guilty of sexual misconduct were unjust.

newtimesslo.com-Garcia

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UPDATE! DUE PROCESS Rights Afforded To Arizona Students Under 2018 Legislation

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UPDATE! DUE PROCESS Rights Afforded To Arizona Students Under 2018 Legislation

In 2018, Arizona enacted HB 2563 (now Ariz. Rev. Stat. § 15-1866), a bill on campus free speech that FIRE criticized for missing the mark in some key respects. FIRE’s analysis of the bill focused exclusively on the aspects of the legislation that affected students’ free speech rights. We recently revisited the bill’s language and found that the final version, while still flawed on free speech grounds, greatly expanded the procedural safeguards guaranteed to students enrolled at public institutions of higher education who are accused of misconduct. We are pleased to belatedly report on the robust procedural protections provided by the statute.

In all disciplinary proceedings involving students, a student is entitled to a disciplinary hearing under published procedures that include, at a minimum, all of the following:

(a) The right to receive advanced written notice of the allegations.

(b) The right to review the evidence in support of the allegations.

(c) The right to confront witnesses who testify against that student.

(d) The right to present a defense.

(e) The right to call witnesses.

(f) A decision by an impartial person or panel.

(g) The right to appeal.

(h) If either a suspension of more than thirty days or expulsion is a potential consequence of a disciplinary proceeding under this section, the right to active assistance of counsel.

This is an incredibly important development that Arizona students need to be aware of, so they can fully exercise their rights. 

thefire.org-Cohn

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CAN COLLEGES Keep Up As Title IX Guidance Shifts And Splinters?

Colleges and universities have faced an avalanche of sexual assault lawsuits in recent years arguing that they botched cases in ways that have slighted both accusers of sexual misconduct and students accused of it.

The increase in cases comes as the legal outlook around Title IX, the federal law that governs sex discrimination on campuses, grows more complex. U.S. Secretary of Education Betsy DeVos has moved to replace guidance from the Obama administration that was credited with providing sexual assault survivors new protections, though critics claimed it flouted constitutional due process. 

DeVos’ proposal on Title IX — a draft regulation that is expected to be finalized soon — will coincide with significant decisions in Title IX court cases nationwide that stand to change how institutions report and investigate sexual violence. The rules colleges must follow vary based on their location. As institutions of all sizes attempt to figure out whether and how their existing policies might put them at risk in a new and ever-changing legal and regulatory environment, more consultants could be drawn into the market. Jody Shipper, with the newly formed consulting firm Grand River Solutions said, “we have started to get court cases that are wildly divergent.” The flurry of court cases left colleges confused. 

Universities have frequently hired external lawyers and retired judges to investigate accounts of sexual assault or run conduct hearings for these cases. Consulting work can be particularly lucrative, as Title IX-related lawsuits have accelerated. “Each (court) circuit is creating its own cottage industry, whether they realize it or not,” said Peter Lake, director of Stetson University’s Center for Excellence in Higher Education Law and Policy. 

educationdive.com-Bauer-Wolf

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NO JUSTICE FOR ACCUSED. University of Virginia Puts Accused Students Through Triple Jeopardy

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NO JUSTICE FOR ACCUSED. University of Virginia Puts Accused Students Through Triple Jeopardy

The U.S. Constitution bans double jeopardy in trials.

When it comes to campus sexual misconduct proceedings, though, the federal government actually orders double jeopardy when schools already have an appeals process (allowing accusers to appeal not-guilty findings). But have you ever heard of triple jeopardy in a college proceeding?

The University of Virginia is giving accusers yet another bite at the guilt apple under a new bylaw adopted by its Honor Committee, the student-run and student-elected body that enforces code violations.  UVA’s Honor Committee recently adopted a new bylaw addressing how the Committee will respond to allegations of lying that arise from cases adjudicated under the university’s Title IX policy.  The committee was responding to a gap in its enforcement authority, which until recently did not cover Title IX cases. Unfortunately, the language they ultimately adopted creates a form of double jeopardy that poses a serious threat to the rights of the accused.

The Foundation for Individual Rights in Education analyzes the new bylaw, which it says was devised in good faith but went horribly wrong in practice.

thecollegefix.com-Piper thefire.org-Harris

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HORRIBLE LIKELY WIN For ASU In Ninth Circuit Appeal. Judge Imagined Facts Not In The Record.

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HORRIBLE LIKELY WIN For ASU In Ninth Circuit Appeal. Judge Imagined Facts Not In The Record.

Recently the Ninth Circuit heard oral arguments in an appeal filed by an Arizona State University graduate student, Paul Schwake, who was found guilty of sexual misconduct by ASU—harming his post-university career as a researcher. It seems likely, though far from certain, that the university will prevail, though both parties got tough questions.

The specifics of this case were a little unusual because Schwake was a PhD student, doing research in a lab. So too was his accuser, with whom he had a brief romantic relationship. When the accuser filed her complaint, ASU imposed swift punishment, carrying about a barebones investigation that deemed Schwake responsible without considering his exculpatory evidence. The university also denied Schwake all access to his lab (ruining his experiments), rather than simply ensuring that he did his research when the accuser wasn’t there. Word on campus allegedly spread about his fate, harming his reputation; according to the complaint, one ASU professor, Thomas Seager, told his class that Schwake had been “convicted” and referenced specific details about the case.

The panel included Judges Kim Wardlaw (Clinton nominee), Milan Smith (W. Bush nominee), and Patrick Bumatay (Trump nominee). The most striking aspect of the hearing was the performance of Judge Smith, who repeatedly misrepresented the record to claim that Schwake had no case. According to Judge Smith, this was an open-and-shut case—Schwake’s complaint didn’t even belong in court. Dripping with condescension in deeming Schwake “upset” with the outcome, Smith explained  that the student had entered into a settlement with ASU: in exchange for receiving his degree, he forfeited the right to any disciplinary hearing. (Smith even suggested that the non-existent settlement gave Schwake access to his lab, a false claim that seemed to bewilder even ASU’s lawyer.) Second, to the extent Schwake’s reputation was harmed, it came about because he filed the lawsuit, not due to anything that ASU did. Judge Smith was wrong on both counts. No settlement existed, and Schwake’s reputational harm, as documented in his complaint, predated the filing of the lawsuit.

This is a close case, and reasonable people could disagree on which side should prevail. But Smith’s performance was an embarrassment. He spent several minutes pontificating about imagined facts that weren’t actually before him, and every exchange between the judge and lawyers on each side was a waste of time since he presumed two key facts (a settlement, and that Schwake’s reputational harm only coming from his lawsuit) that the record contradicted…The likeliest outcome? A 3-0 win for ASU.

academicwonderland.com-Johnson

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LIKELY WIN for Matt Boermeester in Closely-Watched USC Case

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LIKELY WIN for Matt Boermeester in Closely-Watched USC Case

Earlier this week, a three-judge California appellate panel heard an appeal filed by former USC kicker Matthew Boermeester—at the center of one of the most troubling cases of university procedural unfairness in the post-Dear Colleague letter era. It appears as if the appeals court will side with Boermeester, though all three justices promised openness to USC’s arguments.

The specifics of the Boermeester case are, by this point, well-known. A report reached the university—third-hand—alleging intimate partner violence by Boermeester against his girlfriend, Zoe Katz. Katz was required by the Title IX office to speak to a USC Title IX investigator—and subsequently claimed, in multiple sworn affidavits, that USC misrepresented what she said in the interview. USC immediately suspended Boermeester, and ultimately found him guilty of an offense in which the “victim” said nothing untoward happened. He received no hearing, with no right to cross-examine either the third-hand witnesses the university had or to present his own witnesses. Nor did USC give him any chance to explain during its “investigation” what the university now sees as the key evidence in the case (a grainy security video of the incident).

The process was so unfair that Secretary Betsy DeVos highlighted it in her speech announcing the rescission of the Obama-era Title IX guidance. Terming USC’s treatment of Boermeester “disturbing,” the Secretary described “the story of an athlete, his girlfriend and the failed system. DeVos concluded her recap of the case by quoting his girlfriend Zoe Katz: “’When I told the truth,’ the young woman said, ‘I was stereotyped and was told I must be a ‘battered’ woman, and that made me feel demeaned and absurdly profiled.’”

Boermeester sued USC in state court in 2017, but drew a superior court judge, Amy Hogue, who has consistently sided with universities in accused student lawsuits. As he appealed, however, the law in California started to change. Several decisions from the California Court of Appeals, including two involving USC, made clear that an accused student needed to have some form of cross-examination, and cast doubt on the single investigator model that USC used.

The appeal went before a three-justice panel of Tricia Bigelow, Maria Stratton, and John Wiley. As the hearing commenced, the judges put on record that they had issued a tentative ruling indicating an intent to side with Boermeester. USC offered two core arguments to try to persuade the panel to reverse its tentative ruling. First, claiming that the five pro-due process California appeals court decisions applied only to students accused of sexual misconduct, not intimate partner violence. No one in the panel seemed particularly persuaded by the first line of argument. Second, suggesting that credibility wasn’t key to the case and generally not a key issue in allegations of intimate partner violence, period. Justice Bigelow seemed dubious. If the panel follows through with its tentative opinion this would be a major victory, both because of the high-profile coverage the expulsion received and because USC’s procedures are particularly egregious in this area. The decision, though, would only reverse Boermeester’s discipline. 

As Justice Bigelow stated at the hearing, Boermeester had “a bright future.” In this respect, Boermeester’s ongoing battle provides a reminder of the enduring effect that unfair Title IX tribunals can have on accused students.

academicwonderland-KC Johnson

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LAWSUIT: Williams College Suspended Male For Not Dating Girl After Consenting Kiss

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LAWSUIT: Williams College Suspended Male For Not Dating Girl After Consenting Kiss

Williams College suspended a male student based on his failure to pursue a relationship with a female student after “kissing and touching” her, according to a lawsuit against the private school.

Both the unnamed Hispanic student “John Doe” and his accuser “Sally Smith” are foreign students. She accused him of sexual misconduct not because he acted without her consent, John claims, but because he was “culturally insensitive” after their amorous encounters…John asked for Sally’s permission to kiss her and she agreed. The kissing escalated to “consensual touching” while fully clothed. Two days later she sent him a message saying “I’ve liked you quite a lot” and calling their amorous encounter “amazing.” She apologized for “being so weird and awkward the entire time.” And wrote, “I’ve not been this happy ever since I started college.” But later on…Sally “expressed anger about what she saw as Doe’s cultural insensitivity around their prior interaction” – failing to seek a romantic relationship with her after showing physical affection. And then three months later Sally filed a formal Title IX complaint against John alleging both November and January encounters were nonconsensual.

John claims that he was subject to several disadvantages during the investigation and hearing, including that Williams refused to judge the credibility of Sally and witnesses “face to face.” Sally also physically threatened him but the college did nothing. Williams refused to let John offer evidence that Sally had a history of making “repeated accusations of cultural insensitivity,” casting doubt on her accusations against him.

The three-member panel concluded that John violated Sally’s consent in January but not November. The panel was operating under a set of stereotypical assumptions based on the training they had received, John claims. He submitted a 90-page training manual on adjudicating sexual assault, dating violence, stalking and retaliation cases at Williams. “These training materials contain anti-male bias and encourage panelists to stereotype men as sexually aggressive and more likely to commit sexual assault.”  “The training materials include claims about ‘traumatic memory’ suggesting that panel members should ignore inconsistencies in complainants’ accounts,” the suit says. The panel also seems to have invented a provision that isn’t written in the Code of Conduct: that students can’t ask for consent for a particular sexual activity more than once.

John’s life and career path is functionally foreclosed by the finding of nonconsensual sexual contact on his record, he argues. He has already been forced to resign from a “competitive” campus leadership position after others in the organization threatened to remove him. John wasn’t even able to finish his college career at the three schools that “routinely accept Williams students for temporary study.”

The accused student claims breach of contract, breach of the covenant of good faith and fair dealing, and violation of Title IX.

thecollegefix-Pease

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GOOD: Federal Appeals Court Continues to Rewrite Rules on Campus Sex Assault Investigations

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GOOD: Federal Appeals Court Continues to Rewrite Rules on Campus Sex Assault Investigations

Late last year, in a ruling from a three-judge panel largely unnoticed outside legal circles, the federal Sixth Circuit Court of Appeals threw out Kollaritsch’s claims, saying just seeing her abuser around campus wasn’t enough to let a sexual abuse survivor successfully sue a school. Instead, the ruling said, there had to be evidence the abuser took action again against the survivor and the school was deliberately indifferent to it. The decision continues the trend of the Sixth Circuit ruling in favor of the accused and schools in campus sexual assaults. It also sets up conflicts with other appeals court rulings, a key ingredient for what all believe is a coming U.S. Supreme Court case. The ruling is in direct conflict with a ruling in the 10th Circuit. (The 10th Circuit ruling says a survivor doesn’t have to actually suffer further sexual misconduct, just be vulnerable to it in order to have a viable suit. The Sixth Circuit says that’s too broad.)

“In short, we hold that a student-victim plaintiff must plead, and ultimately prove, that the school had actual knowledge of actionable sexual harassment and that the school’s deliberate indifference to it resulted in further actionable sexual harassment against the student-victim, which caused the Title IX injuries,” Judge Alice Batchelder wrote. “A student-victim’s subjective dissatisfaction with the school’s response is immaterial to whether the school’s response caused the claimed Title IX violation.”

The women “just didn’t like what MSU did” in terms of punishment, said Deborah Gordon, an attorney who represents a University of Michigan student in another landmark Sixth Circuit decision. In that case, Gordon’s client had been accused of sexual assault. He sued the school, alleging his due process rights had been violated. The case ended up at the Sixth Circuit, which ruled universities must offer the accused a live hearing with a chance for cross-examination of their accuser. That set off a chain of massive changes to how universities in the states covered by the federal court — Michigan, Ohio, Kentucky and Tennessee — had to investigate these issues. U.S. Department of Education Secretary Betsy DeVos is expected to make similar hearings a centerpiece of her new rules for how campuses across the nation must handle these cases.

The Kollaritsch case at MSU also could reshape the landscape. If Kollaritsch had won, “the court would be flooded with litigation,” Gordon said. “A violation of (sexual misconduct rules) shouldn’t mean that everyone should be immediately expelled. That seems to be what they wanted. The ruling makes it very clear that there was sexual harassment or sexual assault that was dealt with. 

“What this Sixth Circuit opinion makes clear is being vulnerable is not just being on campus with the person. This is the court pushing back against the view that all women must be viewed as victims and all accused should be banished.”

freep.com-Jesse

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