A Federal Ju
dge has granted a preliminary injunction to an accused student from the University of Southern Mississippi. Throughout his ruling, the Judge repeatedly praised the reasoning of the recent CA6 Univ.of Michigan opinion to highlight the value of cross-examination.
It’s one judge’s ruling, but if it catches on, it’s a dagger in the heart of the Obama administration’s Title IX guidance, still widely used by universities even though it’s been rescinded. U.S. District Judge James Browning refused to dismiss due process claims against the University of New Mexico in a five-page order last week. He told the taxpayer-funded institution that plaintiff “J. Lee” has “alleged facts sufficient to state a plausible Fourteenth Amendment procedural due process claim” against the board of regents and president of the university. Lee alleged that the university violated his liberty and property interests by ruining his “good reputation” and expelling him for allegedly sexual misconduct. Judge Browning wrote:
“Lee’s allegations plausibly support a finding that his sexual misconduct investigation resolved into a problem of credibility such that a formal or evidentiary hearing, to include the cross-examination of witnesses and presentation of evidence in his defense, is essential to basic fairness. Moreover, the Court concludes that preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on Lee’s transcript.”
By finding that the long-lasting consequences of a sexual-misconduct finding justify a higher evidence standard, Browning is taking direct aim at the Department of Education’s six-year mandate that colleges use the preponderance standard regardless of the consequences faced by an accused student. According to Brooklyn College Prof. KC Johnson, co-author of The Campus Rape Frenzy, this is the first explicit holding against the preponderance standard’s use in Title IX proceedings, at least in sexual-misconduct cases.
thecollegefix.com By Greg Piper
SETTLEMENT! Great news for this falsely accused male student. Ohio State negotiated a settlement agreement and as is often the case, settlements are confidential.
A black student athlete accused of sexual misconduct by a white student has painted “a picture of an ongoing, racially discriminatory pattern of conduct” in his Title IX proceeding, a federal judge ruled last month. Brown University lost its motion to dismiss all claims by “John Doe,” meaning it’s going to face trial on allegations that it discriminated against him as both a man and a black person. Two of John’s allegations about Brown’s attempts to get him off campus are particularly explosive. “Over the past fifteen months, this matter has been governed by three separate complaints and been subjected to two motions to dismiss,” U.S. District Judge John McConnell wrote. “The time has finally come for this case to go on to discovery and toward an ultimate resolution.”
thecollegefix.com By C. Tremoglie
A former college student accused of sexual assault should have been able to present an account from his accuser about her sexual history at trial, the Pennsylvania Superior Court has ruled. On Sept. 5, a three-judge panel of the appeals court ordered a new trial in the criminal case against ex-Clarion University student Darold Palmore, finding that a Clarion County trial judge erred in not allowing portions of the victim’s testimony into evidence. A three-judge appeals panel said the trial judge misapplied the state’s rape shield law, wrongly hiding information from jurors and violating Mr. Palmore’s rights under the Sixth Amendment’s confrontation clause. “[T]his was not harmless error,” said the opinion by Judge Judith Olson: Jurors weren’t allowed to hear Palmore’s explanation for why “K.H.” might have accused him of sexual assault.
thecollegefix.com By Greg Piper
The U.S. Court of Appeals for the Sixth Circuit issued the strongest judicial opinion to date in support of the right to cross-examination in campus judicial proceedings that turn on credibility. “If a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder. Because the University of Michigan failed to comply with this rule, we reverse.” The decision is also remarkable for its support for allowing students the active participation of an advisor, which would provide effective cross-examination while avoiding the potential problems with having the parties personally cross-examine one another in sexual misconduct proceedings. In today’s ruling in Doe v. Baum, the Sixth Circuit reversed a lower court’s dismissal of an accused student’s due process lawsuit…In this case, like so many others, two University of Michigan students (John Doe & Jane Roe) had attended a fraternity party, drank, danced and then had sex….What really makes this decision unique, beyond its particularly strong language on cross-examination, is its implicit endorsement of the importance of allowing students the active participation of an advisor — a right that very few schools currently provide.. The U.S. 6th Circuit Court of Appeals is making a name for itself as a defender of due process.
thefire.org By Harris reason.com By Soave detroitnews.com By Jacques
A series of federal cases in the Midwest is likely to shift the way universities investigate sexual assault claims on their campuses. On the way out is a process that puts the onus for collecting information on a staff member, who interviews the person making the claim of a sexual assault, the person accused of the sexual assault and any witnesses. On the way in is more opportunity for the two sides to ask questions of each other, with some judges saying there needs to be a live hearing with all parties present, even if it’s through something like Skype. The reshaping is focused in the U.S. 6th Circuit Court of Appeals and the courts that make up its district. There’s been a ruling by the appeals court and one by a federal court in Michigan shaping the movement. Another case is pending before the appeals court, while another case in a federal court based in Michigan is also pushing for the change. All the cases are federal cases, with arguments that the universities are violating the U.S. Constitution’s due process protections.
bakersfield.com By David Jesse
