SETTLEMENT: Girls Accuse Girl. St. Johns University Settles w Falsely Accused Female
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COURT Rulings & Settlements
CA Appellate Court Overturns Title IX Finding Against Former USC Tight End Bryce Dixon
Almost four years after USC expelled tight end Bryce Dixon because a Title IX investigation found he engaged in nonconsensual sex with a student athletic trainer, the decision was overturned by an appellate court that found the school’s process to be “fundamentally flawed.” The three-justice panel in California’s 2nd District Court of Appeal wrote in an opinion published recently that USC “failed to provide a fair hearing” to Dixon. “In [Dixon’s] case, he was accused of sexual misconduct for which he faced serious disciplinary sanctions, and the credibility of witnesses was central to the adjudication of the allegations against him,” the 52-page opinion said. “In those circumstances, he was entitled to a procedure in which he could cross-examine witnesses, directly or indirectly, at a hearing at which the witnesses appeared in person or by other means before a neutral adjudicator with the power to make finding of credibility and facts. Because USC failed to provide such a procedure, the adjudication findings that he committed sexual misconduct … cannot stand.” The appellate court’s opinion, which examined the differing versions of the October 2014 encounter in graphic detail, faulted USC for giving one person, Dr. Kegan Allee, “the overlapping and inconsistent roles of investigator, prosecutor, factfinder, and sentencer” in the matter.
latimes By Nathan Fenno
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GOOD! JUDGE ORDERS SouthernMiss President to ‘Immediately’ Reinstate Male. He Never X-Examined Accuser.
“Only in rare instances is the issuance of this type of injunction proper … In its discretion, based on the totality of the circumstances of this case, the Court finds this is one of those rare instances.”A federal judge took the unusual step of banning a university from suspending a student accused of sexual assault, based on the fact that he’d lose his athletic scholarship – and ability to pay for college – in the process. By preventing John Doe from cross-examining his accuser at a “live proceeding,” the University of Southern Mississippi likely violated Doe’s procedural due process rights, U.S. District Judge Keith Starrett wrote in a memorandum opinion and order. Not only was Doe not allowed to be present during anyone else’s interview, but he wasn’t allowed to submit questions for others. He was only allowed to see and comment on a “summary” of the interviews…His background makes clear he comes from a humble family. Doe is the youngest of 18 children “from the same mother” and can’t graduate if he loses his athletic scholarship, which is paying for college, Doe’s attorney said. The judge ordered President Rodney Bennett to “immediately” reinstate Doe in good standing and let him attend both courses and scholarship-required activities on campus, including practices and games. Starrett didn’t find Doe a threat based on Roe’s two-year wait to report the incident and her confirmation that Doe didn’t pose a threat to her “in any way.”
thecollegefix By Greg Piper
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DUE PROCESS WIN. CA Court of Appeal Publishes Significant Decision. John Doe v. Claremont McKenna
Recently, a California Court of Appeal published a significant decision, John Doe v. Claremont McKenna College, addressing student discipline arising from an allegation of sexual assault. The ruling is notable because the judges cited a precedent from the 6th U.S. Circuit Court of Appeals, which is not binding on California state courts, that concerned a public university, unlike CMC. In its analysis, the Court examined recent court decisions addressing an educational institution’s obligations to provide students due process in disciplinary matters, including two California Cases, Doe v. Regents of University of California and Doe v. University of Southern California. The Court also analyzed a recent decision by the Sixth Circuit Court of Appeal analyzing whether an accused’s due process rights were violated in a sexual misconduct case. In that case, the Sixth Circuit found that under due process principles, accused students must have the right to cross-examine adverse witnesses in the most serious of cases. The ruling by Justice Helen Bendix, joined by her two colleagues, (all three justices are women) said CMC had violated the “core principles” required in a case where an accused student faces a “severe penalty” on the basis of a credibility determination. The Court of Appeal reversed the trial court’s decision and instructed the trial court to review John’s request to review the College’s decision.
calpublicagencyblog By Stein-Manes thecollegefix By Thatcher
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INNOCENT MALE WINS! Court Finds Flaws With USC. ‘Overlapping & Conflicting’ Role of USC TIX Investigator Kegan Allee.
California’s Second District Court of Appeal found that USC’s Title IX investigator Dr. Kegan Allee, held the “roles of investigator, prosecutor, factfinder, and sentencer” in a case where a student was accused of sexual misconduct. In an opinion published Friday, the three-judge panel ordered a lower court to remove USC’s findings against “John Doe” from
his record, and awarded him his costs on appeal. The university will also have to create procedures to allow accused students to cross-examine both their accusers and witnesses in some form. This went even further than the previous appeals panel in the December ruling against USC. “When credibility of witnesses is essential to a finding of sexual misconduct, the stakes at issue in the adjudication are high, the interests are significant, and the accused’s opportunity to confront adverse witnesses in the face of competing narratives is key,” wrote Justice Thomas L. Willhite Jr. “The notion that a single individual, acting in these overlapping and conflicting capacities, is capable of effectively implementing an accused student’s right of cross–examination by posing prepared questions to witnesses in the course of the investigation ignores the fundamental nature of cross–examination: adversarial questioning at an in–person hearing at which a neutral fact finder can observe and assess the witness’ credibility,” Willhite wrote. “At bottom, assessing what is necessary to conduct meaningful cross–examination depends on a common sense evaluation of the procedure at issue in the context of the decision to be made. From that prospective, a right of ‘cross–examination’ implemented by a single individual acting as investigator, prosecutor, factfinder and sentencer, is incompatible with adversarial questioning designed to uncover the truth.”
Though the accused student is identified pseudonymously in Friday’s ruling, he has been previously identified as former USC football player Bryce Dixon. Dixon was a freshman on a football scholarship when he had sex with Roe, a senior and student athletic trainer. Trainers had been warned not to “hook up” with athletes or they would lose their jobs. But according to Roe’s roommate of three years, Roe had a history of sleeping with football players and had been “reprimanded for unprofessional conduct” before her encounter with Dixon. A key dispute that Allee played down was whether Roe had motive to falsely accuse Dixon. Dixon said she might have accused him so she wouldn’t get fired as a trainer. The judges again scolded Keegan Allee for “inexplicably” failing to check with the athletics department on its policies for trainer-athlete sexual relations, “let alone ascertain the existence of the agreement Roe purportedly signed” promising not to hook up with athletes.
USC’s entire sexual misconduct process is “fundamentally flawed” when serious punishments are on the line, the judges said. The right to cross-examination is hollow in the single-investigator model used by USC and embodied by Allee, who plays “divided and inconsistent roles” in proceedings. Such a person acts as “investigator, prosecutor, factfinder [sic] and sentencer,” a jumble of roles that is “incompatible with adversarial questioning designed to uncover the truth,” according to the opinion: “It is simply an extension of the investigation and prosecution itself.” Allee’s flawed judgments show the danger of the system. Allee was given “unfettered discretion” and used it in “questionable ways,” dismissing Dixon’s theory that Roe had motive to invent rape “almost immediately,” even though Allee had multiple “investigative leads” along those lines. (Allee is now listed as assistant director of the Title IX office. Two officials caught calling an accused student “motherfucker” – Gretchen Dahlinger Means and Patrick Noonan – still have their title.)
The judges noted that other California appeals courts, as well as federal courts, have reached similar conclusions in sexual-misconduct cases that turn on the credibility of witnesses and accusers. Colleges from the private Claremont McKenna to the public University of California-Santa Barbara have been ordered to dump procedures that allow credibility determinations to be made based on written statements, rather than visual assessments of a party’s live answers in response to questions.
law.com By R.Todd thecollegefix By G.Piper
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USC REINSTATES Armaan Premjee on the Heels of Court of Appeal Defeat
USC has retracted its decision to expel Armaan Premjee following a case hearing with the Los Angeles County Superior Court on Dec. 18. According to court documents, Premjee filed a petition for a writ of mandamus. This would appeal for a reevaluation of USC’s “biased” Title IX investigation into the sexual assault charges made against him after an incident involving another student in April 2017. But due to recent California court rulings requiring new investigative procedures, Judge Elizabeth White granted USC’s request to halt legal proceedings on Premjee’s appeal at the hearing. The University decided to reinstate Premjee and reopen the investigation of the case to ensure fair and lawful adjudication under new regulations.
Those “recent California court rulings” referred to are almost certainly the Court of Appeals ruling against USC in another case a mere seven days prior in which the Court reversed the Superior Court’s decision, granted John Doe’s writ of administrative mandate and – as in the other Doe v. USC case – awarded attorney’s costs.
titleixforall By J. Taylor dailytrojan By E. Toh
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SETTLEMENT. University of Cincinnati Pays Falsely Accused Male $47K After Suspending Him Based On No Evidence, Just an Accusation
A landmark due process case that led to an appeals court ruling that students need to be able to cross-examine their accusers and witnesses against them has come to an end, with the University of Cincinnati (UC) and the accused student reaching a settlement.
This appears to be the first time UC has ever settled with an accused student. The case arises from an incident involving John Doe and Jane Roe, that occurred on September 6, 2015. The two UC students met on the dating app Tinder and sent messages back-and-forth before meeting in person. After the two had sex, they continued to spend time together in John’s room. Jane told him she didn’t want their encounter to be a “one-night stand.” John, however, did not call her again and couldn’t contact her through Tinder anymore. A month later, Jane accused John of sexual assault. When John was interviewed about the incident, he said everything was consensual. Interview notes for him contain editorial comments from the interviewer. Such comments did not appear in any notes about Jane’s interviews. Jane didn’t attend the campus hearing regarding her claims against John. John said in his lawsuit that if he had been able to question Jane, he would have been able to pick out inconsistencies in her statements and show that she received generous accommodations from the school — changes to homework deadlines, grades, class schedules, test schedules, and even receiving job opportunities — which created an incentive for her to claim she was a victim. Without being able to question any of the allegations against him, John was found “responsible” by UC and suspended. He appealed and lost, so he sued the school. What makes this case so important is that it reached the Sixth Circuit Court of Appeals, which created a precedent-setting ruling stating that cross-examination is important, especially when the case boils down to a he said/she said where credibility is at stake. The ruling has been cited multiple times since. Josh Engel, one of John’s attorneys said, “We are glad the case has been resolved so my client can get his degree and move on with his career.”
dailywire By Ashe Schow
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ALASKA PACIFIC SETTLES. Male Denied Disability Accommodation, a Hearing, Never saw Evidence.
I know of one lawsuit that was filed against Alaska PacificU. The one where a female accused an autistic male and the male ‘was denied disability accommodation, not allowed to present his evidence of innocence, and denied access to evidence gathered by Alaska Pacific. Then the male was denied a hearing, and Alaska Pacific decided he was guilty of sexual misconduct, abusive sexual contact and dating violence.’.. Can you just imagine being found guilty of sexual misconduct/dating violence without a hearing? Without telling your side? Without a chance to present evidence of innocence? Now imagine being autistic. The injustices on a variety of levels are extreme… He was expelled. Then he sued and claimed: ‘This injustice was the direct result of Alaska Pacific’s failure to (1) conduct an adequate investigation; (2) provide Plaintiff with due process as defined by Alaska Pacific’s own policies and Title IX of the Education Amendments of 1972; (3) make reasonable modifications in Alaska Pacific’s policies, practices, or procedures regarding Plaintiff’s diagnosed and documented disability, namely autism, as required by the Americans with Disabilities Act, and due to (4) Alaska Pacific’s excessive and unbalanced focus on the concerns and interests of the female complainant and the convenience of the University to the total exclusion of the rights and interests of the male Plaintiff. at Alaska Pacific University.’
Although I haven’t heard from John Doe or AlaskaPacificU, I am thinking that the above case mentioned is the case that is now settled.-Alice
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WIN for John Doe. Judge Says GW Appeal Panel is ‘Divorced from the Evidence’
“Fourth and finally, the Appeals Panel addressed newly-discovered text messages between Ms. Roe and A.C. According to the texts, A.C. had no recollection of talking to Ms. Roe either during the Uber ride or in the bathroom of the dorm after Ms. Roe returned. Without explanation, the Appeals Panel found that this evidence “generally corroborate[d]” Ms. Roe’s statements that she had spoken with someone on the phone during the Uber ride and that she had spoken to A.C. about the assault when she got back to the dorm. This conclusion is divorced from the evidence and not explained by GW. To put a finer point on the matter, the Code required two determinations: (1) Ms. Roe did not have the capacity to consent; and (2) Mr. Doe should reasonably have known that she was incapacitated. The Appeals Panel was presented with direct contradictions in the evidence and appears to have strained to overlook such contradictions, leaving no trail of reasoning.” Judge Collyer
“GW’s Motion to Dismiss will be granted in part and denied in part. Mr. Doe’s claims for disparate treatment under Title IX and the DCHRA and his claim for breach of contract due to denial of his appeal will be allowed to proceed to discovery. All other claims will be dismissed.” Judge Collyer
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