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VICTIM-CENTERED Investigations in Title IX Disciplinary Proceedings: A Litigator’s Perspective

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VICTIM-CENTERED Investigations in Title IX Disciplinary Proceedings: A Litigator’s Perspective

Since 2011, I have represented upwards of 100 falsely accused students in Title IX disciplinary procedures at universities across America. I also have filed over 20 lawsuits against Universities that erroneously suspended or expelled students who were alleged to have engaged in sexual misconduct. These lawsuits have a common thread shared by hundreds of other lawsuits, including two by parents of students who committed suicide. That common thread is the denial of basic due process protections that any person accused of sexual misconduct in America would expect. These lawsuits document how basic due process protections have been removed by University investigators and adjudicators who stack the deck in favor of accusing students. I want to provide two examples how Start By Believing training programs have caused college investigators and adjudicators to violate our most fundamental ideas of due process, by excluding evidence that proves the accusing students’ allegations are false.

In the first case, a hearing panel of university employees rejected every one of the 264 cross-examination questions that the accused student sought to ask his accuser and the university’s witnesses, even though the university’s handbook allowed for such questions. When asked why the panel didn’t ask any of the 264 questions, the hearing panel admitted, The questions didn’t matter because the answers would not change their mind that the accused student was guilty.

In a second case, a student was accused of engaging in sexual misconduct. During the course of the investigation he presented: 1. Polygraph expert testimony that he never engaged in the sexual misconduct alleged. 2. Toxicologist expert testimony that proved it was impossible for the accusing student to have been in the incapacitated state she claimed was in when she engaged sexually with the accused student. Nonetheless, the university panel refused to ask any of the cross-examination questions that the accused student proposed. The hearing panel later found him “responsible” and suspended him. Why did a hearing panel that was charged with administering justice in a fair and impartial way reject facts proving the accused student was innocent?

My experience pointed to one very clear conclusion: that no amount of evidence was going to change their predetermined position that they must believe the accusing student.

saveservices– Attorney Eric Rosenberg

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LAWSUIT: John Sues Jane and UChicago. It’s Because of This Admitted Liar-Jane-That Parents Fight For Due Process

John Expelled: On June 5, 2018, four days before he was scheduled to graduate with honors, UChicago expelled John Doe. The purported bases for UC’s decision to expel John were the false and defamatory allegations of his ex-girlfriend, Jane Roe. UC expelled John despite overwhelming evidence that Jane fabricated her story because she was too embarrassed to admit to her friends at UC that she was engaged in a secret sexual relationship with her ex-boyfriend.

John & Jane Meet: In the Autumn Quarter 2017, Plaintiff was in his senior year at UC. Plaintiff was an exemplary student, on track to earn his B.A. degree in June 2018. As a result of his academic excellence and successful summer work history, Plaintiff obtained an offer of employment with a global supply chain consulting firm, contingent upon his successful completion of his studies at UC.  Plaintiff first met defendant Jane Roe at a mixer in October of 2017. The next week, they saw each other again at a fraternity “bar night.” That night, Plaintiff and Jane Roe went back to Plaintiff’s apartment and spent the night. Every night for the rest of that week, Jane Roe slept at Plaintiff’s apartment and they engaged in consensual sexual activity. Within that first week, Plaintiff and Jane Roe agreed to be “exclusive” and tell people they were “dating.” Within two weeks of dating, Plaintiff and Jane Roe were saying “I love you” to each other. Almost every night for the remainder of the Autumn Quarter, Jane Roe slept in Plaintiff’s bed at Plaintiff’s apartment. Most nights, and often times during the day, Plaintiff and Jane Roe engaged in consensual sexual activity.

Jane Files Complaint on April 5, 2018. Jane falsely accuses John of domestic violence and sexual misconduct.

Evidence of John’s Innocence Includes: Jane Roe’s text messages to a non-UC friend stating: 1. that she “hooked up” with John again, “but like we can’t tell anyone” because “we both said shit to our friends and they’d be pissed if they knew we went back to each other in any capacity,” 2. sex with John was “good,” 3. that “I just might use him for sex when I want it and have no emotional connection” and Jane Roe’s testimony that during this time, 4. “I was just letting him buy me food and was having sex with him, to satisfy my own desires, as I knew he would be willing” and 5. Jane’s admission that she was lying to her UC friends about her consensual sexual relationship for fear that they would be mad that she had re-kindled a relationship with her ex-boyfriend.

UChicago Emotional Torture of John: UC disregarded this and all other exculpatory evidence supporting John Doe’s vehement denials of wrongful conduct and accepted Jane Roe’s unsupported accusations for no reason other than the fact that John is male and Jane is female.  As a result of Jane Roe’s false and defamatory allegations and UC’s discriminatory conduct, John Doe’s life has been shattered. He lost the college degree and job he earned. His future economic opportunities have been crippled. His reputation has been destroyed, having been brandished a rapist. And, he suffers from extreme depression, anxiety, emotional distress and suicidal ideation from the stress and humiliation inflicted on him.

Read it: Doe v UChicago & Jane Roe

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RULING: Third Lawsuit Against Dartmouth in a Year Survives. The Unlawful Expulsion of This ‘John Doe’ Moves Forward.

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RULING: Third Lawsuit Against Dartmouth in a Year Survives. The Unlawful Expulsion of This ‘John Doe’ Moves Forward.

A federal judge recently ruled that the latest wrongful expulsion lawsuit brought by a male student against Dartmouth College can move forward in part, but the judge appeared skeptical of the student’s remaining arguments. Doe’s attorneys claim that Dartmouth failed to meet its contractual obligation to provide a fair and impartial investigation because the school refused to let the student submit a polygraph test into evidence and failed to properly scrutinize the credibility of his accuser, among other issues. Judge Joseph Laplante dismissed the claims that Dartmouth violated Title IX by discriminating against Doe based on his gender. He allowed the case to move forward to the discovery phase on the basis of the breach of contract claims. “I do think the plaintiff has stated a claim for a breach of contract, although I’m not going to say it’s a strong case,” Laplante said after announcing his decision.

The case is at least the third lawsuit filed by a male former student against Dartmouth in a one-year period alleging that the school mishandled its disciplinary process and discriminated against the accused student based on his gender. The actual judicial system has seen an increase in the number of so-called John Doe cases filed under pseudonyms by male students who claim their investigations weren’t handled fairly. But many judges, while willing to hear arguments that a college’s investigative process violated its own policies or federal law, are hesitant to second-guess school investigators’ decisions absent procedural errors. “The courts should not be appellate courts for university disciplinary proceedings,” Laplante said Wednesday, adding “I don’t want this court to be in that business.”

unionleader-Todd Feathers

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Victim-Centered Investigations Create New Victims. Just Ask Innocent Accused Trent.

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Victim-Centered Investigations Create New Victims. Just Ask Innocent Accused Trent.

The West Point cadet beat sexual-assault charges that could have sent him to prison for life. Yet the military academy still kicked out Trent Cromartie on the eve of his senior year. The two-year investigation started with Cromartie being dragged to a military police station right after he completed a grueling, multi-day field training exercise. He was “dehydrated, sleep deprived, and hadn’t eaten,” yet was subjected to a five-hour interrogation. His accuser got a “victim advocate” and regular check-ins about her health and well-being, while he was left to fend for himself against a hostile interrogator who “used leading questions in an attempt to reshape my statements.” Witnesses at trial, including at least one female cadet, testified that the interrogator tried to coach them on answers. “He would tell me what to say” and “argue with me about my answer,” she said. Most outrageously, his accuser faced no consequences from West Point for perjury on the stand. Cromartie suffered from “severe depression and even suicidal ideations” throughout the investigation and for years after. He was presumed guilty in his cohort because of “the seriousness of the allegations.”  You may remember seeing his story told in The Wall Street Journal.  It’s only gotten worse for accused students in every institution of higher learning.

Cromartie is sharing his story again now with a bipartisan group of members of Congress, as part of a broad push by due-process advocates to sound the alarm about victim-centered investigations. They are seeking to put grassroots pressure on Attorney General William Barr to stop funding “Start By Believing” programs with a Change.org petition, which is approaching 1,700 signatures. The former cadet and other advocates held a Capitol Hill event earlier this month to highlight the training resources that instruct investigators to favor accusers and build a prosecution against accused students, regardless of the evidence. Being branded a rapist for not asking your partner verbally if you can switch sexual positions over the course of an encounter makes the accused student just as much a victim, yet training resources ignore their mental health.

Lawyer Eric Rosenberg said he was “a somewhat reluctant advocate” for accused students because of his prior work with a nongovernmental organization, that helped sex-trafficked women abroad. Rosenberg has been contacted by hundreds of parents seeking help for their accused college child and he shared one adjudication where he represented an accused student: The hearing panel rejected all 264 questions posed as cross-examination to the accuser and witnesses. The panel told him the answers to the questions wouldn’t change their minds. In another case, his client was blocked from asking questions in violation of school policy, including from a toxicology expert who contradicted the accuser.  Adjudicators are being trained not to “retraumatize,” but the practical effect is that “common sense due process protections” are missing, he said.

thecollegefix -Greg Piper

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CALIFORNIA Senator Hannah Beth Jackson Bullies Supporters of Due Process. “Just Some Moms of Accused Students”

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CALIFORNIA Senator Hannah Beth Jackson Bullies Supporters of Due Process. “Just Some Moms of Accused Students”

What happens when one party controls everything in the world’s fifth-largest economy? It buries the existence of even its opposition. Families Advocating for Campus Equality was flabbergasted to learn that its opposition letter to California’s SB-493, which would impose campus sexual misconduct policies that have been struck down in state courts, was left out of the bill record. Senator Hannah-Beth Jackson the bill sponsor and a former prosecutor, knew FACE opposed SB-493 because the group had met with her staffer on March 20, when the group distributed the letter in person to every office. She also “both raised and attempted to undermine” FACE’s arguments in its opposition letter at the April 3 hearing, FACE Co-President Cynthia Garrett said.

Those who sought to testify against the bill “were treated rudely, interrupted, and denied the full four minutes they had been allotted,” Garrett said. Families of accused students were denied the opportunity to testify.  Senator Jackson made the stunning and evidence-free accusation that FACE had “lied” when it said she ignored the recommendations of a working group set up by then-Gov. Jerry Brown, who vetoed another anti-due process bill by Jackson. Her new bill shows no sign of incorporating the recommendations. It mandates trauma-informed hearings, which instruct adjudicators to favor accusers and were explicitly rejected by the governor’s working group as “incompatible with due process protections.” Garrett said she’s “never before encountered such a corruption of our system of representation” in her time lobbying at both the state and federal level for due process. It’s all the more outrageous because Jackson’s bill reproduces the parts of the criminal justice system that progressives most loathe: targeting “the underserved, minorities, first-generation, and scholarship students” with “experienced campus attorneys and administrators who effectively act as their prosecutor.”  Even after submitting our signed opposition “letter” by hand, we were told FACE’s Opposition would never be added as opposition on the eleven-page bill analysis because our submission was previously submitted “incomplete,” presumably meaning it was not signed.

thecollegefix– Greg Piper

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LAWSUIT: EXPELLED USciences Male Sues Over Investigation. Claims Accuser Encouraged To Find More Females To Accuse Him

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LAWSUIT: EXPELLED USciences Male Sues Over Investigation. Claims Accuser Encouraged To Find More Females To Accuse Him

A former student at the University of the Sciences in Philadelphia is suing the school, claiming he was unfairly investigated by the college and its law firm, Schnader Harrison Segal & Lewis, and wrongly expelled as a result. The plaintiff,  John Doe, filed an amended complaint against the school Monday in the U.S. District Court for the Eastern District of Pennsylvania. Schnader is not named as a defendant in the case. However, the complaint describes the firm’s role in investigating the allegations against the plaintiff, specifically noting that the school hired Anne Kane, co-chair of Schnader’s litigation department, to handle the investigation.

Doe alleged that the university, through Kane’s investigation, violated its own policies by failing to interview witnesses who would have been helpful to his defense, and by not questioning inconsistencies in witness statements that were favorable to the women accusing him of sexual misconduct. The complaint also alleged that the university encouraged the first accuser to tell others about her complaint “in an effort to find other women willing to make a complaint against John.” Kane concluded her investigation in November 2018, and John Doe was informed in December that he was expelled, based on her findings. The plaintiff appealed the expulsion, but his appeal was denied, the complaint said.

“Expulsion from the university will cause John to be denied the benefits of education at his chosen school, damaged his academic and professional reputations, and will affect his ability to enroll at other institutions of higher education and to pursue a career,” the complaint said. “Unfortunately for John, Ms. Kane and the university not only misused the witnesses, but the analysis of the evidence collected in each claim against John was intentionally skewed to ensure that John would be found to have sexually assaulted [the two women],” the complaint said. The plaintiff is alleging Title IX violations and breach of contract by the university, as well as intentional infliction of emotional distress, negligent infliction of emotional distress and negligence.He alleges damages of more than $75,000.

law.com -Lizzy McLellan

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SUCCESS For Innocent Samuel Goetz. Expulsion Removed From His Transcript.

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SUCCESS For Innocent Samuel Goetz. Expulsion Removed From His Transcript.

A former Student Government leader who was kicked out of school in May 2017 for allegedly assaulting a female student in his dorm room has gotten the expulsion removed from his record. Instead, the USF St. Petersburg record of Samuel Goetz will show that he was suspended, effective December 2017, with what the  university calls “an ongoing restriction from access to the University” thereafter. The change from expulsion to suspension, hammered out in negotiations between attorneys for Goetz and the university, is a victory for Goetz. He was elected vice president of Student Government two months before his expulsion, but he has maintained in legal documents that he did not want to return to the university. He just wanted to remove the blot of expulsion from his record.

The turnaround in the Goetz case began in December, when three Pinellas County circuit judges ruled that Goetz’s rights of due process were denied by both the university’s student conduct board and Dean of Students Jacob Diaz. Reversing their own June 12, 2018, ruling, the judges said the board and the dean relied on a summary of an investigative report – “the only document on which USF relied in presenting its case” – in making their decisions.

“Although I am not looking to ever re-enroll at USF, an expulsion will effectively end my journey anywhere else,” he said. “I will lose all opportunities to obtain a good education as well as to pursue my dream of going to law school.” Samuel Goetz

crowsneststpete– Staff

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MICHIGAN STATE Ignored 2018 Federal Court Ruling on Due Process Until John Doe Sued

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MICHIGAN STATE Ignored 2018 Federal Court Ruling on Due Process Until John Doe Sued

Public universities under the 6th U.S. Circuit Court of Appeals’ jurisdiction have been on notice for seven months that they are required to provide an in-person hearing with cross-examination to students facing suspension or expulsion for sexual misconduct. Michigan State University is one of them. After all, the 6th Circuit decision last fall was against the University of Michigan, an hour away. Yet it appears to have ignored that binding order until a student sued the scandal-plagued institution for denying him what the order requires.

“John Doe” will not get the preliminary injunction against MSU that he was seeking because his punishment remains “interim,” according to the Monday opinion by U.S. District Judge Paul Maloney. But the judge ordered MSU to let Doe take a May 22 examination that he needs to complete in order to continue his fourth-year medical school studies, assuming he beats MSU’s charges. It also must give him a hearing by May 7 and rule on his case no later than May 14. According to Doe’s lawyer, the taxpayer-funded university never informed him that it had scheduled a “pre-hearing conference in April” and a hearing in May. It allegedly mentioned these meetings – required by the 6th Circuit – only after Doe sued, when the parties were in court arguing about Doe’s motion for preliminary injunction. “That was news to Plaintiff’s counsel” at oral argument, Maloney wrote in the opinion.

Maloney sided with MSU because “the final disciplinary action has not yet been decided,” even though Doe remained suspended indefinitely until MSU told the judge that it had scheduled a hearing in line with last fall’s 6th Circuit ruling. At that hearing, Doe will receive a “full and fair opportunity to confront his accusers and the allegations against him before final disciplinary action is taken against him,” the judge claimed, ignoring MSU’s ignorance of 6th Circuit precedent going back to 2017’s ruling against the University of Cincinnati.

Doe claimed that if Maloney didn’t give him relief, his medical school education could be delayed by up to two years “because of upcoming changes to the university curriculum” and the upcoming “Step 2” examinations he has to take this summer. That was the basis of Maloney’s limited decision to order MSU to let Doe sit for these exams, assuming he receives a “favorable disposition” from a hearing with cross-examination, as ordered by the 6th Circuit.

thecollegefix– Greg Piper Read Judge Maloney’s Opinion 

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STUDENTS ACCUSED of Sex Assault Are Suing Colleges And Winning in Court

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STUDENTS ACCUSED of Sex Assault Are Suing Colleges And Winning in Court

Nearly a year after having what he claimed was consensual sex and she claimed was assault, the two Aquinas College students were back together, this time separated by a curtain. For 50 minutes, they appeared in front of a panel of employees of the college in Grand Rapids, Michigan. In a 10-minute opening statement, the male student defended himself against charges he had sexually assaulted the female student. The female student offered no opening statement. A few questions from the panel later, the hearing was done. Six days later, the male student was expelled. Ten months later, he filed a federal lawsuit. Several months after that, Aquinas settled the lawsuit. Those involved are barred from talking about the case by the agreement. In suing, the Aquinas student joined a growing tide of male students, accused of sexually assaulting fellow students, who have lodged federal lawsuits against their schools, alleging discrimination and violations of their due process rights.

In 2011, then-President Barack Obama’s administration urged universities to take more action on sexual assault complaints. Since then, universities have lost more decisions in these lawsuits than they have won, according to an analysis of federal court filings. Most of the losses are judges deciding against universities’ motions to dismiss the cases. The losses share a problem, said KC Johnson, a professor at Brooklyn College and the co-author of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.” “One commonality is the lack of cross-examination,” he said. “Courts are saying each side should have the opportunity to question each other.”

One of the people paying attention to the court rulings is U.S. Education Secretary Betsy DeVos, who has proposed new regulations for how colleges handle sexual assault. Among the regulations — live hearings with cross-examinations.

usatoday-David Jesse

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IN TOO MANY Sex Assault Cases, Colleges Lack A Basic Understanding Of Fair Process. Specifically Clarion University

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IN TOO MANY Sex Assault Cases, Colleges Lack A Basic Understanding Of Fair Process. Specifically Clarion University

When a college authorizes someone to investigate whether or not a rape took place, the investigator should begin with a neutral mindset rather than an assumption that the accused student is guilty. The university’s position should be neither that the student is guilty or innocent until the university has been presented with the facts. However, a recent case involving Clarion University of Pennsylvania, a public university, shows how deeply confused universities and their attorneys can be about the basic elements of due process, even in a hearing involving a charge as serious as rape. The case was recently discussed in the blog “Academic Wonderland.”

There is a very good chance that the accused student will lose this case. That is because he chose not to attend the hearing at all. He made that decision because he was also being criminally charged and if he participated in the college hearing he would be effectively waiving his right to remain silent during the criminal investigation. This is a classic dilemma when there is both a criminal and civil case. To avoid such conflicts, judges in civil matters routinely delay the civil cases until the criminal cases are resolved. But colleges don’t do that because they want to resolve the matter quickly. Criminal prosecutors are well aware of this dilemma and use it to their advantage in order to circumvent the student’s right to silence. For example, at a 2015 meeting of the International Association of College Law Enforcement Administrators, Susan Riseling, the Chief of Police at the University of Wisconsin at Madison spoke about how to get around the right to remain silent and use Title IX proceedings to circumvent the student’s constitutional rights: “It’s Title IX, not Miranda -Use what you can.”  Riseling said.

A final matter to consider is that the Clarion accused student is African American. According to the complaint, African Americans are drastically overrepresented among Clarion students tried for sexual misconduct. He remains expelled even though the charges were dropped by the police as a result of the DNA evidence that the college hearing panel never saw.

forbes -Evan Gerstmann

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