COURT Rulings & Settlements

SETTLEMENT: Purdue Files Settlement Notice In Federal Suit Over Sex Assault Case

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SETTLEMENT: Purdue Files Settlement Notice In Federal Suit Over Sex Assault Case

Purdue has reached a settlement with a former student-athlete more than a year after he first filed a discrimination lawsuit against the University. Former football player Brandon Roberts was expelled in 2017 when he was [falsely] accused of sex assault, by a white female student. Court documents state that the allegations and his subsequent expulsion “dealt a serious blow” to Roberts’ hope to play professional football.

The Tippecanoe County prosecutor’s office did not press charges against Roberts. Roberts appealed Purdue’s internal investigation, as he was not provided with police recordings of relevant interviews or a full copy of the investigative report.

Roberts later filed a discrimination lawsuit, alleging that he was denied due process and discriminated against because he’s a black man accused of sexual assault by a white woman. The lawsuit alleges that the University’s investigation was “preordained” by Roberts’ race.

Roberts’ counsel has no objection to Purdue’s filing.

purdueexponent.org

 

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TITLE IX Bureaucrats Meet Due Process Once Again

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TITLE IX Bureaucrats Meet Due Process Once Again

In recent years, more and more college students have found themselves wrongly accused of sexual misconduct and denied basic due process rights by their schools, with little ability to clear their names. Title IX, which began as a necessary and reasonable part of the Higher Education Act (HEA) designed to protect students from sexual discrimination, has morphed into an administrative behemoth with little regard for the rights of the accused, especially when the accusation is sexual misconduct as discrimination. The presumption of innocence becomes the presumption of guilt as students are punished before their alleged misconduct is proven.

One such case occurred back in 2018 at the University of Michigan, where student John Doe’s transcript and degree were indefinitely withheld after he was accused of sexual misconduct by a female peer. Doe was never given a hearing or the chance for cross examination, prompting him to file a lawsuit against the school. He was but the latest in a long line of students who have sued their colleges for violations of basic due process rights.

Late last month, Senior U.S. District Judge Arthur Tarnow handed down his decision regarding UMich’s behavior in Doe’s case. He ruled that the disciplinary action taken, and importantly, that the school’s Title IX policy in general was unconstitutional due to administrators’ blatant disregard for Doe’s rights. Furthermore, these same bureaucrats have been stripped of their “qualified immunity,” meaning they can now be held personally liable for John Doe’s damages. In this week’s featured article, Connor Ellington of The College Fix breaks down the history and full substance of Judge Tarnow’s ruling, placing it in context with similar decisions.

Higher education bureaucrats must know that there are consequences for corruption: they can no longer hide behind a shield of immunity. With the shield removed, these bureaucrats will be far more likely to respect the rights of their accused students. www.nas.org/blogs-John David

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‘COMPLETE Vindication’: Appeals Court Reinstates Anti-Male Bias TitleIX Suit Against Oberlin

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‘COMPLETE Vindication’: Appeals Court Reinstates Anti-Male Bias TitleIX Suit Against Oberlin

Oberlin College likely discriminated against a male student when it found him guilty of sexual assault based on his female sexual partner allegedly saying “I am not sober,” a federal appeals panel ruled. The 6th U.S. Circuit Court of Appeals overturned a lower court’s decision that found no sex-based discrimination in the private college’s judgment against John Doe. It remanded the case back to U.S. District Judge Solomon Oliver nearly a year after John and Oberlin submitted their appellate briefs.

Even the dissenting opinion agreed that John has a “colorable claim” on the first prong of the “erroneous outcome” test for Title IX violations: “casting doubt on the accuracy of his disciplinary proceeding’s outcome.” Jane Roe’s alleged comment to John that “I am not sober” was the only evidence Oberlin cited that John did not get her consent. It ignored evidence of Jane changing her story during a hearing and statements from John’s advisor, appointed by Oberlin’s Title IX team, that suggest bias against him.

“Any number of federal constitutional and statutory provisions reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group,” Judge Raymond Kethledge wrote for the majority. John has “amply” argued that Oberlin judged him based on his sex “when it determined his responsibility on a sexual-assault allegation,” the judge continued.

“The decision is complete vindication for John Doe, and we’re all very grateful for it,” his lawyer Christopher Muha said.

thecollegefix.com-Lexi Lonas reason.com-Eugene Volokh

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SIXTH Circuit: Hearing Panel’s Decision May Itself Be Evidence Of Sex Bias In Title IX case

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SIXTH Circuit: Hearing Panel’s Decision May Itself Be Evidence Of Sex Bias In Title IX case

Generally speaking, you know a court opinion about due process on campus is going to be good when it starts off with a lofty paean to the core values undergirding our justice system. So it was with a decision of the U.S. Court of Appeals for the Sixth Circuit, which earlier this week reversed a district court’s decision to dismiss a sex discrimination case brought by a student expelled for sexual misconduct:

“Any number of federal constitutional and statutory provisions reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group. That principle has not always been perfectly realized in our Nation’s history, but as judges it is one that we take an oath to enforce.”

That set the tone for the court’s decision in Doe v. Oberlin College, brought by John Doe who was expelled for sexual misconduct in a proceeding that he alleged was tainted by gender bias. Doe, who was represented by Chris Muha of KaiserDillon PLLC, alleged a number of serious procedural irregularities in the investigation and adjudication of his case. Doe also alleged that he did not learn the substance of the allegation until the investigative report was issued, four months after the filing of the complaint; that the advisor provided to him by the college left the hearing early and later retweeted a comment about believing all survivors; and that the panel found him responsible despite the fact that Jane Roe’s testimony was inconsistent with her allegation that she was incapacitated. Doe’s appeal was also denied despite the fact that a new witness came forward to say that he knew Jane Roe had given false testimony at the hearing about Doe’s alleged use of force.

Doe brought a Title IX sex discrimination claim against Oberlin stemming from the disciplinary proceeding. Under the widely accepted framework set forth by the Second Circuit in Yusuf v. Vassar College, “[p]laintiffs attacking a university disciplinary proceeding on grounds of gender bias” can do so under an “erroneous outcome” or a “selective enforcement” theory. Doe brought an erroneous outcome claim, which requires a plaintiff to plead facts (1) casting articulable doubt on the outcome of a disciplinary proceeding and (2) connecting the outcome of the proceeding to gender bias.

In March of last year, the U.S. District Court for the Northern District of Ohio dismissed Doe’s Title IX claim, holding that although he had cast articulable doubt on the outcome of the proceeding, he had not tied that outcome to gender bias. The district court rejected Doe’s argument that some of the Title IX coordinator’s statements about the goals of Oberlin’s policy suggested gender bias. Earlier this week, the Sixth Circuit reversed the dismissal of Doe’s Title IX claim. In its ruling, the court considered not only Doe’s allegations of gender bias (which were substantial), but also the substance of the hearing panel’s decision in Doe’s case.

Along with the Third Circuit’s recent decision in Doe v. University of the Sciences, this decision represents a huge step forward for private university students seeking relief from unfair disciplinary proceedings. While public university students have constitutional due process rights, the path has been much harder for private university students, since courts have historically been reluctant to interfere in the inner workings of campus disciplinary proceedings.

thefire.org– Samantha Harris dailywire.com-Ashe Schow

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EXPELLED USC Kicker Scores Victory In Title IX Case, Vows To Continue Fighting Male Bias

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EXPELLED USC Kicker Scores Victory In Title IX Case, Vows To Continue Fighting Male Bias

For more than three years, expelled University of Southern California (USC) football player Matt Boermeester – embroiled in a Title IX assault accusation case – has been fighting the state legal system just for the chance to have his side heard on a federal level. Despite a small and rare legal victory, the one-time National Football League (NFL) hopeful says he has a long way to go in his quest for due process in a life derailed by what he deems an unjust “male bias witch hunt.”

“The truth is important because the consequences for me have been so devastating. The truth is all I am seeking here,” Boermeester told Fox News this week. “You don’t realize, you are a kid at the time, that USC is trying to protect itself and its hundreds of millions of Title IX funding, not you as the student.”

Late last month, the California Court of Appeal reversed the trial court decision and overturned Boermeester’s January 2017 expulsion, ruling that his Title IX proceeding was “unfair.”

This paves the way for Boermeester, now 26, to forge ahead with a seven-count federal lawsuit against the prominent university on the grounds of “breach of contract, infliction of emotional distress, negligence and selective enforcement of Title IX,” the federal legislation that outlaws gender-based discrimination in the education system and obliges institutions to pursue investigations around sexual misconduct. “Based on nothing more than a third-party report by a non-witness–essentially a rumor that was easily and repeatedly disputed–a star athlete lost his education and his future career in the NFL,” lawyer Andrew Miltenberg said. 

According to multiple attorneys interviewed by Fox News on the subject nationwide, more and more cases in a similar vein to Boermeester’s are now gaining traction in the justice system at a time when the Education Department is making sweeping changes to the way such investigations take place.

“The procedures at college campuses still stand out. Appeals like those in the recent Matt Boermeester case in California are becoming more common, as disturbingly deficient records reach appeals courts,” observed David Katz, a former assistant U.S. Attorney. “New rules encourage hearings by such standard, not a mere preponderance. New initiatives sent to campuses are a step in the right direction to try to get away from some colleges’ fawning acceptance and knee-jerk pursuit of accusations.”

foxnews.com-Hollie McKay

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USC MATT Boermeester, Wins in Court. He Was Expelled After An Unethical TitleIX Investigation.

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USC MATT Boermeester, Wins in Court. He Was Expelled After An Unethical TitleIX Investigation.

The 2017 expulsion of former University of Southern California (USC) football player Matt Boermeester for intimate partner violence was so blatantly unfair that Education Secretary Betsy DeVos cited the case as an argument for revising federal guidance on campus sexual assault adjudication. (DeVos’s new rules, which restore some due process protections to students accused of misconduct, will take effect in the fall.)

After three years, Boermeester has won an: an appeals court reversed his utterly unjust expulsion in a ruling last week.

“After having three years of my life derailed, I’m gratified that the California Court of Appeals finally reversed my expulsion based on USC’s wrongful, male-biased, witch hunt brought against me,” said Boermeester. “Make no mistake, USC stripped away my educational opportunities and hopes and dreams of playing in the NFL, and this ‘win’ does not erase that.”

Boermeester does not exaggerate the failings of the process by which he was deemed responsible for sexual misconduct. The underlying incident involved some public roughhousing between Boermeester and his girlfriend, Zoe Katz. A neighbor saw the interaction, thought it was a fight, and informed a USC coach who then reported it to the Title IX office. USC then initiated an investigation despite the protestations of the alleged victim—Katz—who maintained that she had “never been abused, assaulted, or otherwise mistreated by Matt.” Katz told the Title IX officials in no uncertain terms that the investigation was baseless: In response, they wrote her off as a battered woman who was too afraid to tell the truth about her abuser. Boermeester wasn’t given the opportunity to defend himself—USC deemed him guilty without so much as a hearing. 

“The California Court of Appeal’s decision, finding that USC violated Matt Boermeester’s right to basic fairness, is a great initial victory,” said Andrew Miltenberg, an attorney for Boermeester. “We will not rest until Matt Boermeester’s name is cleared and USC answers for their blatant misconduct.”

Boermeester is also pursuing a federal lawsuit against USC alleging breach of contract, infliction of emotional distress, negligence, and selective enforcement of Title IX, the federal law that prohibits sex-based discrimination in education and compels schools to investigate sexual misconduct.

reason.com-Robby Soave

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GOOD NEWS: 7th Circuit’s Purdue Ruling Impacting Other Title IX Lawsuits

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GOOD NEWS: 7th Circuit’s Purdue Ruling Impacting Other Title IX Lawsuits

The case against Purdue University brought by a male student who was expelled and lost his Navy ROTC scholarship after the school determined he had sexually assaulted a female student has survived a second motion to dismiss. John Doe, the male student filed the lawsuit in 2017. He claimed Purdue violated his due process rights under the 14th Amendment and violated Title IX of the Education Amendments of 1972 by reaching the “erroneous outcome,” solely because of his gender, that he had sexually assaulted his former girlfriend.

Along with Purdue University, the plaintiff included Purdue President Mitch Daniels, vice president of ethics and compliance Alysa Christmas Rollock, dean of students Katherine Sermersheim and the Purdue board of trustees as defendants. They successfully petitioned for the case to be dismissed, but the decision from the U.S. District Court for the Northern District of Indiana was overturned in June 2019 by the 7th Circuit Court of Appeals. In its ruling in John Doe v. Purdue University, 928 F.3d 652 (7th Cir. 2019), the Chicago appellate court rejected the formulas other circuit courts used to evaluate Title IX claims and offered its own method.

The 7th Circuit’s opinion helped Doe overcome the motion to dismiss on remand and has enabled another male student, also identified as John Doe, to keep his own lawsuit alive against Purdue. In addition, a May 29 opinion from the 3rd Circuit Court of Appeals used the 7th Circuit’s evaluation process in a similar Title IX lawsuit lodged by a male student. This is the first appellate court to adopt the Chicago panel’s method, according to Brooklyn College history professor KC Johnson, who has studied and tracked Title IX lawsuits filed against institutions of higher education.

In using the 7th Circuit’s “straightforward pleading standard,” the 3rd Circuit panel said the standard “hews most closely to the test of Title IX.” Doe’s case was the first such Title IX lawsuit to reach the 7th Circuit. Complaints have been filed against colleges and universities across the United States primarily by male students claiming their schools found them guilty of sexual misconduct without giving them any chance to review the evidence or rebut the witnesses.

theindianalawyer.com-Marilyn Odendahl

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THIRD CIRCUIT: Private Universities That Promise Basic Fairness Must Provide Hearing, X-Examination To Students Accused

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THIRD CIRCUIT: Private Universities That Promise Basic Fairness Must Provide Hearing, X-Examination To Students Accused

In a sweeping, decisive victory for procedural fairness on campus, the U.S. Court of Appeals for the Third Circuit reversed the dismissal of a lawsuit brought by a student expelled for sexual misconduct from the University of the Sciences in Philadelphia. The court held not only that the university may have discriminated against the accused student on the basis of sex in violation of Title IX, but also that the school’s promises of fairness obligated it to provide the student with a live hearing and the opportunity to cross-examine witnesses, including his accusers. The court’s decision has broad significance for students’ rights as it will help ensure that private colleges and universities keep the promises they make to students. 

The court took a remarkably straightforward, common-sense view of Doe’s breach of contract claim. FIRE has long argued that private schools must be required to keep their own promises, including promises of free speech and procedural fairness — and that if they fail to do so, they should be held liable for breach of contract. Recently, however, there have been some deeply frustrating court decisions on this question holding that general promises of fairness are too vague to be contractually enforceable. The Third Circuit’s decision, in contrast, breathes life into the promises that schools make in order to attract talented students and faculty, and ensures that they can’t engage in a bait-and-switch once those students and faculty are on campus. 

It is difficult to overstate the significance of this holding. Courts around the country have increasingly been recognizing that due process at public universities requires a hearing with the right to cross-examination. And the Department of Education, in its new Title IX regulations, has determined that the lack of a hearing and cross-examination violates Title IX’s requirement of an equitable process. Now, for the first time, a federal appellate court has held that a private university’s contractual guarantee of a fair and equitable process also requires these critical procedural protections. 

Critically, the court also held that the traditional judicial deference given to schools’ decisions around academic misconduct is inappropriate in the context of schools adjudicating  quasi-criminal allegations.

With this decision, universities in the Third Circuit — which includes every school in Pennsylvania, New Jersey, and Delaware — must live up to their promises of procedural fairness by providing accused students with meaningful due process. The court’s decision also has important implications for free speech cases at private universities in the Third Circuit, because it gives teeth to the kinds of promises schools so often use in their handbooks and policy language. 

FIRE is encouraged that the Third Circuit is formally recognizing principles that we have advocated for since the inception of our organization: That students must be treated with basic fairness and that universities must keep their promises.

thefire.org-Samantha Harris

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APPEALS COURT Rules USC Ran ‘Unfair’ Title IX Proceeding Against Expelled Fball Player

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APPEALS COURT Rules USC Ran ‘Unfair’ Title IX Proceeding Against Expelled Fball Player

A state appeals court issued a reprieve to a football player expelled from the University of Southern California, finding that his Title IX proceeding was “unfair.” The private university owed former kicker Matt Boermeester a “meaningful opportunity to cross-examine critical witnesses at an in-person hearing,” a California Court of Appeal ruled recently.

USC opened its domestic-violence case in response to a neighbor’s report that Boermeester  was abusing his girlfriend, fellow athlete Zoe Katz. USC had surveillance video from the alley where the Jan. 2017 playful incident took place, but refused to provide it to him. Zoe Katz accused the university of misrepresenting her statements and said that Title IX threatened her because she denied Boermeester abused her.

“We are very pleased that the Court of Appeal has again recognized that accused students under Title IX must have a meaningful opportunity to cross-examine critical witnesses at an in-person hearing,” Boermeester’s attorney Mark Hathaway wrote in a statement.

“It is gratifying that the new Federal Title IX regulations announced on May 6th will require the same fairness that Matt Boermeester has fought for so hard over the past three years, and finally won in the Court of Appeal today.”

thecollegefix-Troy Sargent

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